Meeting of the Board of Regents | September 2007

Saturday, September 1, 2007 - 8:20am

TO:
FROM:	Rebecca H. Cort
SUBJECT:	Proposed Amendment to the Regulations of the Commissioner of Education relating to the 2004 Reauthorization of the Individuals with Disabilities Education Act.
DATE:	August 29, 2007
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

SUMMARY

Issue for Decision

Should the Regents approve, for permanent adoption, the proposed amendment to the Regulations of the Commissioner of Education relating to the 2004 Reauthorization of the Individuals with Disabilities Education Act? Should the Regents approve a second emergency adoption of the rule?

Reason for Consideration

To conform State regulations to the Individuals with Disabilities Education Act (IDEA), as amended by Public Law 108-446, and Part 300 of Title 34 of the Code of Federal Regulations.

Proposed Handling

The proposed rule was adopted as an emergency measure at the June 2007 Regents meeting and is now before you for adoption as a permanent rule. A second emergency adoption is also necessary at the meeting to ensure that the June emergency rule remains continuously in effect until the effective date of its adoption as a permanent rule. A statement of facts and circumstances which necessitate emergency action is attached.

Procedural History

The EMSC-VESID Committee discussed the proposed amendment at the March 2007 Regents meeting. A Notice of Proposed Rule Making was published in the State Register on March 21, 2007. Public hearings were conducted on April 16, 19 and 23, 2007. The proposed amendments were substantially revised in response to public comment. A Notice of Revised Rule making was published in the State Register on July 3, 2007. In addition, at the June 25-26, 2007 meeting of the Board, the Regents made further substantial revision to the proposed rule and adopted the revised proposed amendment on an emergency basis. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2007. The public comment period for the revised proposed rule closed on August 17, 2007.

Background Information

The purpose of the proposed amendment is to conform State regulations to the IDEA and final federal regulations to implement IDEA 2004. The final federal regulations were issued in August 2006 and became effective October 23, 2006. The State must amend its laws and regulations to conform to federal regulations by June 30, 2007 as a condition of receipt of federal funds.

Attached is the full text of the revised proposed terms of the rule. In addition, an assessment of public comment with respect to the revised rule published in the State Register on July 18, 2007 is attached. Supporting materials for the proposed amendment are available upon request from the Secretary to the Board of Regents.

Timetable for Implementation

The first emergency adoption will expire on September 26, 2007. The second emergency adoption will become effective September 27, 2007 and the permanent adoption will become effective October 4, 2007.

Recommendation

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

VOTED: That a new subdivision (ii) be added to section 100.2 of the Regulations of the Commissioner of Education; that subdivision (a) of section 120.6 be amended; that subdivisions (m),(p),(s), (ii),(nn), (qq), (ss), (zz), (bbb), (eee), (fff), of section 200.1 of the Regulations of the Commissioner of Education be amended and a new subdivision (nnn) be added to section 200.1; that section 200.2 be amended; that subparagraph (v) of paragraph (2) of subdivision (c) and subdivision (d) of section 200.3 be amended; that section 200.4 be amended; that section 200.5 be amended; that section 200.6 be amended; that paragraph (3) of subdivision (b) of section 200.7 be amended; that paragraph (2) of subdivision (c) of section 200.8 be amended; that clause (c) of subparagraph (ix) of paragraph (2) of subdivision (f) of section 200.9 be amended; that subdivisions (a) and (b) of section 200.13 be amended; that subdivision (f) of section 200.14 be amended; that subparagraph (iv) of paragraph (1) of subdivision (b), paragraph (3) of subdivision (d), subparagraph (i) of paragraph (2), paragraphs (3) and (9) of subdivision (h) and subdivision (i) of section 200.16 be amended; that paragraph (3) of subdivision (b) of section 200.22 be amended; that subdivisions (e), (i), (k) and (n) of section 201.2 be amended; that section 201.3 be repealed and a new section 201.3 be added; that subdivisions (d) and (e) of section 201.4 be amended; that subdivision (a) and paragraph (3) of subdivision (b) of section 201.5 be amended; that subdivision (b) of section 201.6 be amended; that subparagraph (i) of paragraph (1) of subdivision (e) and subdivision (f) of section 201.7 be amended; that section 201.8 be amended; that paragraph (2) of subdivision (c) of section 201.9 be amended; that subdivision (e) of section 201.10 be repealed and subdivisions (a), (c) and (d) of section 201.10 be amended; and that section 201.11 of the Regulations of the Commissioner of Education be amended, as submitted, effective September 27, 2007, 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 emergency rule adopted at the June Regents meeting, remains continuously in effect until the effective date of its adoption as a permanent rule.

Attachments

PROPOSED AMENDMENT OF SECTIONS 100.2, 120.6, 200.1 THROUGH 200.9, 200.13, 200.14, 200.16, 200.22, AND 201.2 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, 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 final federal regulations to implement the Individuals with Disabilities Education Act (IDEA) 2004, as amended by Public Law 108-446. The final Federal regulations were issued August 2006 and became effective October 13, 2006. The State must amend its laws and regulations to conform to Federal regulations by June 30, 2007 as a condition of receipt of Federal funds. The State and school districts must implement the new requirements in IDEA and the final regulations to implement the IDEA.

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the proposed amendment has been substantially revised in response to public comment. A Notice of Revised Rule Making was published in the State Register on July 3, 2007. In addition, at the June 25-26, 2007 meeting of the Board of Regents, the Regents made a further substantial revision to the proposed rule to delete the settlement agreement provision in 200.5(j)(4)(iii), and adopted the proposed rule, as so revised, by emergency action for the preservation of the general welfare in order to immediately conform the Commissioner's Regulations regarding the provision of special education services to the requirements of the IDEA, as amended, and Part 300 of Title 34 of the Code of Federal Regulations, so that such requirements become effective by the federally required date of July 1, 2007 and to ensure they are in effect by the beginning of the 2007-08 school year, 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. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2007.

The proposed rule has been adopted as a permanent rule at the September 10-11, 2007 Regents meeting. Pursuant to the State Administrative Procedure Act, the earliest the adopted rule can become effective is upon its publication in the State Register on October 3, 2007. However, the June emergency rule will expire on September 26, 2007, 90 days after its filing with the Department of State on June 29, 2007. A lapse in the rule's effectiveness could expose both the State and school districts to liability and affect their eligibility for federal funding under the IDEA, and could deny students with disabilities, parents and school districts the benefits they are intended to receive under the IDEA.

A second emergency adoption is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the June Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule.

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

Pursuant to Education Law sections 207, 3208, 3209, 3214, 3602-c, 3713, 4002, 4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410

(i) appropriate instruction delivered to all students in the general education class by qualified personnel;

(a) appropriate instruction in reading shall mean scientific research- based reading programs that include explicit and systematic instruction in phonemic awareness, phonics, vocabulary development, reading fluency (including oral reading skills) and reading comprehension strategies;

(ii) screenings applied to all students in the class to identify those students who are not making academic progress at expected rates;

(iii) instruction matched to student need with increasingly intensive levels of targeted intervention and instruction for students who do not make satisfactory progress in their levels of performance and/or in their rate of learning to meet age or grade level standards;

(iv) repeated assessments of student achievement which should include curriculum based measures to determine if interventions are resulting in student progress toward age or grade level standards;

(v) the application of information about the student’s response to intervention to make educational decisions about changes in goals, instruction and/or services and the decision to make a referral for special education programs and/or services; and

(vi) written notification to the parents when the student requires an intervention beyond that provided to all students in the general education classroom that provides information about:

(a) the amount and nature of student performance data that will be collected and the general education services that will be provided pursuant to paragraph (2) of this subdivision;

(b) strategies for increasing the student’s rate of learning; and

(2) A school district shall select and define the specific structure and components of the response to intervention program, including, but not limited to, the criteria for determining the levels of intervention to be provided to students, the types of interventions, the amount and nature of student performance data to be collected and the manner and frequency for progress monitoring.

(3) A school district shall take appropriate steps to ensure that staff have the knowledge and skills necessary to implement a response to intervention program and that such program is implemented consistent with paragraph (2) of this subdivision.

2. Subdivision (a) of section 120.6 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(a) For the purpose of compliance with the NCLB, a local educational agency shall ensure that its teachers of core academic subjects are highly qualified in accordance with the requirements and definitions prescribed in 34 CFR 200.55, [and] 200.56 (Code of Federal Regulations, revised as of July 1, 2003, title 34, volume 1, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001, 2003; available at the NYS Education Department, Office of Higher Education, 2M West Wing, Education Building, 89 Washington Avenue, Albany, NY 12234.) For the purpose of compliance with the Individuals with Disabilities Education Act (IDEA) and the NCLB, a local educational agency shall ensure that special education teachers who teach core academic subjects are highly qualified in accordance with 34 CFR 300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234). A local educational agency shall provide a teacher of core academic subjects who is not new to the profession the opportunity to meet the NCLB and IDEA [requirement] requirements to be highly qualified, in part, through passing the high objective uniform State standard of evaluation (HOUSSE). The HOUSSE shall be an evaluation, prescribed by the department and conducted locally either during a pre-employment review or at the time of an annual professional performance review prescribed in section 100.2(o) of this Title, that enables a teacher who is beyond the first year of the effective date of the teacher’s first teaching certificate, or in accordance with the provisions of 34 CFR 300.18, to demonstrate subject matter competency in all core academic subjects that the teacher teaches. The evaluation shall be based upon objective, coherent information as prescribed by the department, and shall include, but not be limited to, information on the teacher’s education, credentials, professional experience, and professional development.

3. Subdivisions (m),(p),(s), (ii),(nn), (qq), (ss), (zz), (bbb), (eee), (fff), of section 200.1 of the Regulations of the Commissioner of Education are amended, and a new subdivision (nnn) of section 200.1 of the Regulations of the Commissioner of Education is added, effective September 27, 2007, as follows:

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

(1) . . .

(2) . . .

(p) Full-day preschool program means an approved special education program for preschool students with disabilities that provides instruction for a full-day session as defined in subdivision (q) of this section, provided however that in the event a program is approved by the commissioner to provide instruction for less than a full-day session but more than a half-day session, such program shall be deemed a full-day program solely for purposes of development of a recommendation by the preschool committee on special education pursuant to subparagraph (i) of paragraph b of subdivision 5 of section 4410 of the Education Law and section [200.16 (d)(3)] 200.16(e)(3) of this Part.

(s) Guardian ad litem means a person familiar with the provisions of this Part who is appointed from the list of surrogate parents or who is a pro bono attorney appointed to represent the interests of a student in an impartial hearing pursuant to section [200.5(j)(3)(vii)] 200.5(j)(3)(ix) of this Part and, where appropriate, to join in an appeal to the State Review Officer initiated by the parent or board of education pursuant to section 200.5(k) of this Part. A guardian ad litem shall have the right to fully participate in the impartial hearing to the extent indicated in section [200.5(j)(3)(ix)] 200.5(j)(3)(xii) of this Part.

(ii) (1) Parent means a birth or adoptive parent, a legally appointed guardian generally authorized to act as the child’s parent or authorized to make educational decisions for the child[,]; a person in parental relationship to the child as defined in Education Law, section 3212[,]; an individual designated as a person in parental relation pursuant to title 15-A of the General Obligations Law including an individual so designated who is acting in the place of a birth or adoptive parent (including a grandparent, stepparent, or other relative with whom the child resides)[,]; or a surrogate parent who has been appointed in accordance with section 200.5(n) of this Part. The term does not include the State if the student is a ward of the State.

(2) . . .

(3) . . .

(4) . . .

(nn) Preschool program means a special education program approved pursuant to section 4410 of the Education Law to provide special education programs and services, from the continuum of services set forth in section [200.16(h)] 200.16(i) of this Part, and to conduct evaluations of preschool students with disabilities if such program has a multidisciplinary evaluation component.

(qq) Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, interpreting services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school social work, assistive technology services, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services and includes the early identification and assessment of disabling conditions in students. [The term does not include a medical device that is surgically implanted, or the replacement of such device.]

(1) Services that apply to children with surgically implanted devices, including cochlear implants. Related services do not include a medical device that is surgically implanted, the optimization of that device’s functioning (such as mapping), maintenance of that device, or the replacement of that device, provided that nothing in this paragraph:

(i) limits the right of a student with a surgically implanted device to receive related services that are determined by the CSE or CPSE to be necessary for the student to receive a free appropriate public education; or

(ii) limits the responsibility of a school district to appropriately monitor and maintain medical devices that are needed to maintain the health and safety of the student, including breathing, nutrition, or operation of other bodily functions, while the student is transported to and from school or is at school; or

(iii) prevents the routine checking of an external component of a surgically implanted device to make sure it is functioning properly.

(ss) School health services means [nursing] school nurse 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.

(zz) Student with a disability means a student with a disability as defined in section 4401(1) of Education Law, who has not attained the age of 21 prior to September 1st and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. The terms used in this definition are defined as follows:

(1) . . .

(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)] 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural or economic disadvantage.

(7) . . .

(8) . . .

(9) . . .

(10) . . .

(11) . . .

(12) . . .

(13) . . .

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

(eee) Twelve-month special service and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections [200.6(j)(1)] 200.6(k)(1) and [200.16(h)(3)(v)] 200.16(i)(3)(v) of this Part whose disabilities require a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student's individualized education program.

(fff) Transition services means a coordinated set of activities for a student with a disability, designed within a results-oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the student’s movement from school to post-school activities, including, but not limited to, post-secondary education, vocational education, integrated competitive employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based on the individual student's needs, taking into account the student's strengths, preferences and interests, and shall include needed activities in the following areas:

(1) . . .

(2) . . .

(3) . . .

(4) . . .

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

(nnn) Interpreting services means oral transliteration services, cued language transliteration services, sign language transliteration and interpreting services and transcription services, such as communication access real-time translation (CART), C-Print and TypeWell for students who are deaf or hard of hearing; and special interpreting services for students who are deaf-blind.

4. Section 200.2 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(a) Census and register of students with disabilities.

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) Procedures to locate, identify, and evaluate all nonpublic private elementary and secondary school students with disabilities, including religious-school children as required by the Education Law must be established to ensure the equitable participation of parentally placed private school students with disabilities and an accurate count of such students. The child find activities must be similar to activities undertaken for students with disabilities in public schools and must be completed in a time period comparable to that for other students attending public schools in the school district. The school district shall consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process.

(i) If a student is parentally-placed, or is going to be parentally-placed in a private elementary or secondary school that is not located in the student’s school district of residence, parental consent, or consent of a student 18 years of age or older, must be obtained before any personally identifiable information about the student is released between officials in the district where the private school is located and officials in the parent’s district of residence.

(ii) 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 establishes administrative practices and procedures:

(1) [establishes administrative practices and procedures] to ensure that students with disabilities residing in the district have the opportunity to participate in school district programs, to the maximum extent appropriate to the needs of the student including nonacademic and extracurricular programs and activities, which are available to all other students enrolled in the public schools of the district, which may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the school district, referrals to agencies that provide assistance to individuals with disabilities and employment of students, including both employment by the school district and assistance in making outside employment available;

(2) [establishes administrative practices and procedures] to ensure that each preschool student with a disability residing in the district has the opportunity to participate in preschool programs, including timely evaluation and placement;

(3) [establishes administrative practices and procedures] for appointing and training appropriately qualified personnel, including the members and chairpersons of the committee on special education and the committee on preschool special education, to carry out the functions identified in this Part;

(4) [establishes policies and administrative practices and procedures] to implement the provisions of section 200.6(a) of this Part and to provide special services or programs, to the extent appropriate to the needs of the student, to enable the student to be involved in and progress in the general education curriculum;

(5) [establishes administrative practices and procedures] for the purpose of ensuring that parents have received and understand the request for consent for evaluation of a preschool student;

�� (6) [establishes administrative practices and procedures] for the purpose of ensuring the confidentiality of personally identifiable data, information or records pertaining to a student with a disability. Such personally identifiable information shall not be disclosed by any officer or employee of the State Education Department or any school district, or member of a committee on special education or committee on

preschool special education to any person other than the parent of such student, except in accordance with [sections] section 300.500 and [300.560 through 300.577] sections 300.610 through 300.625 and Part 99 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title 34, section 300.500, Federal Register/ Vol.71, No.156/ August 14, 2006/ p.46791; title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp.46802-46804 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001; Code of Federal Regulations, [1999] 2006 edition, title 34, Part 99, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-0001[: 1999] - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234);

(7) [establishes a plan and policies] for implementing schoolwide approaches, which may include a response to intervention process pursuant to section 100.2(ii) of this Title, and pre-referral interventions in order to remediate a student’s performance prior to referral for special education;

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

(i) . . .

(ii) . . .

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

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

(10) and establishes a plan, pursuant to sections 1604(29-a), 1709(4-a), 2503(7-a) and 2554(7-a) of the Education Law, to ensure that all instructional materials to be used in the schools of the district are available in a usable alternative format, which shall meet National Instructional Materials Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public Law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; 2004] in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code of Federal Regulation, 2006 edition, title 34, Part 300, Appendix C, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46814-46817 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234), for each student with a disability in accordance with the student's educational needs and course selections at the same time that such materials are available to non-disabled students. For purposes of this paragraph, "alternative format" is defined as any medium or format for the presentation of instructional materials, other than a traditional print textbook, that is needed as an accommodation for a student with a disability enrolled in the school district, including but not limited to Braille, large print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible with at least one alternative format conversion software program that is appropriate to meet the needs of the individual student. The plan shall:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

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

(i) . . .

(a) . . .

(ii) . . .

(iii) . . .

(12) that [identifies] identify the measurable steps it shall take to recruit, hire, train and retain highly qualified personnel, as defined in section 120.6 of this Title and 34 CFR 300.18 (Code of Federal Regulations, 2006 edition, title 34, section 300.18, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46758-46759 – Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234), to provide special education programs and services;

(13) that [describes] describe the guidelines for the provision of appropriate accommodations necessary to measure the academic achievement and functional performance of the student in the administration of district-wide assessments; [and]

(14) that [identifies] identify how the district, to the extent feasible, will use universal design principles in developing and administering any district-wide assessment programs; and

(15) to ensure that the school district publicly reports on revisions to its policies, procedures and/or practices upon a finding by the Department that the district has inappropriate policies, procedures or practices resulting in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.

(d) . . .

(e) Maintenance of lists. The board of education or trustees of each school district shall establish a list of:

(1) the name and statement of the qualifications of each impartial hearing officer who is:

(i) certified by the Commissioner of Education pursuant to section [220.1(x)(2)] 200.1(x)(4) of this Part; and

(ii) . . .

(2) . . .

(3) . . .

(f) . . .

(g) . . .

(h) . . .

(i) Responsibility of boards of cooperative educational services (BOCES). (1) Responsibility for ensuring the availability of instructional materials in alternative formats for students with disabilities. By July 1, 2002, each BOCES shall establish a plan to ensure that all instructional materials to be used in the programs of the BOCES are available in a usable alternative format, which shall meet National Instructional Materials Accessibility Standard [as defined in 20 U.S.C. section 1474(e)(3)(B) (Public law section 108-446, section 674, 118 STAT. 2792; Superintendent of Documents, Stop SSOP, U. S. Government Printing Office, Washington, DC 20402-0001; 2004] in accordance with Appendix C to Part 300 of Title 34 of the Code of Federal Regulations (Code of Federal Regulations, 2006 edition, title 34, Part 300, Appendix C, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp. 46814-46817 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), for each student with a disability in accordance with the student's educational needs and course selections at the same time that such materials are available to non-disabled students. For purposes of this subdivision, "alternative format" is defined as any medium or format for the presentation of instructional materials, other than a traditional print textbook, that is needed as an accommodation for a student with a disability enrolled in a program of the BOCES, including but not limited to Braille, large print, open and closed captioned, audio, or an electronic file. An electronic file must be compatible with at least one alternative format conversion software program that is appropriate to meet the needs of the individual student. The plan shall:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(2) . . .

5. Subparagraph (v) of paragraph (2) of subdivision (c) and subdivision (d) of section 200.3 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(v) a school psychologist, whenever a new psychological evaluation is reviewed or a change to a program option with a more intensive staff/student ratio, as set forth in section [200.6(g)(4)] 200.6(h)(4) of this Part, is considered;

(d) The regular education teacher of the student with a disability must, to the extent appropriate, participate in the development, review and revision of a student's IEP, including assisting in the determination of:

(1) appropriate positive behavioral interventions and supports and other strategies for the student; and

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

6. Section 200.4 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(a) Referral. A student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on special education or to the building administrator of the school which the student attends or is eligible to attend for an individual evaluation and determination of eligibility for special education programs and services. The school district must initiate a referral and promptly request parental consent to evaluate the student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction as described in section 100.2(ii) of this Title.

(1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) [In] Except as otherwise provided in section 200.5(b)(6) of this Part,in the absence of a written agreement to withdraw a referral, as described in paragraph (7) of this subdivision, and in the event that parental consent to an initial evaluation is not obtained within 30 days of the date of receipt of referral, the chairperson shall document attempts, including, but not limited to, telephone calls made or attempted and the results of those calls and correspondence sent to the parents and any responses received, made by the chairperson or other representatives of the committee to obtain parental consent, and shall notify the board of education that they may utilize the due process procedures described in section 200.5 of this Part to permit the district to conduct an evaluation of the student without the consent of the parent.

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

(i) If the person making the referral is a professional staff member of the school district in which the student resides, that person shall attend such meeting. The building administrator shall ensure that the parent understands the proceedings of the meeting and shall arrange for the presence of an interpreter, if necessary. Any other person making a referral shall have the opportunity to attend such meeting. If at such meeting the parent or person in parental relationship and the building administrator agree in writing that, with the provision of additional general education support services, the referral is unwarranted, the referral shall be deemed withdrawn, and the building administrator shall provide the chairperson of the committee on special education, the person who made the referral if a professional staff member of the school district, the parent or person in parental relationship to the student, and the student, if appropriate, with copies of the agreement.

(ii) The copy of the agreement provided to the parent or person in parental relationship shall be in the native language of such person. Such agreement shall contain a description of the additional general education support services to be provided, instructional strategies to be used and student centered data to be collected and the proposed duration of such program. A copy of the agreement shall also be placed in the student's cumulative education record file.

(iii) The meeting:

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

[(ii)](b) shall not impede a committee on special education from continuing its duties and functions under this Part.

(b) Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a) (7) or (9) of this section after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education. The individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student’s parents and the CSE pursuant to sections 200.4(b)(7)(i) and 200.4(j)(1) of this Part. The individual evaluation [and] shall include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional, developmental and academic information about the student that may assist in determining whether the student is a student with a disability and the content of the student’s individualized education program, including information related to enabling the student to participate and progress in the general education curriculum (or for a preschool child, to participate in appropriate activities). The individual evaluation must be at no cost to the parent, and the initial evaluation must include at least:

(i) . . .

(ii) . . .

(iii) . . .

(iv) an observation of the student in the [current educational placement] student’s learning environment (including the regular classroom setting) or, in the case of a student of less than school-age or out of school, an environment appropriate for a student of that age, to document the student’s academic performance and behavior in the areas of difficulty; and

(v) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) School districts shall ensure that:

(i) . . .

(ii) . . .

(iii) [tests] assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a general intelligence quotient;

(iv) [tests] assessments are selected and administered to ensure that, when [a test] an assessment is administered to a student with impaired sensory, manual or speaking skills, the [test] assessment results accurately reflect the student's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student's impaired sensory, manual or speaking skills, except where those skills are factors which the test purports to measure;

(v) . . .

(vi) . . .

(vii) . . .

(viii) . . .

(ix) . . .

(x) . . .

(xi) . . .

(xii) . . .

(xiii) for purposes of eligibility and continuing eligibility determinations, a copy of the evaluation report and the documentation of determination of eligibility are provided at no cost to the parent;

(xiv) the procedures for evaluating students suspected of having a learning disability are in accordance with [sections 300.540 through 300.543 of title 34 of the Code of Federal Regulations (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)] subdivision (j) of this section;

(xv) the procedures for conducting expedited evaluations are conducted pursuant to [Part 201] section 201.6 of this Title;

(xvi) . . .

(xvii) assessments of students with disabilities who transfer from one school district to another school district in the same [academic] school year are coordinated with such student's prior and subsequent schools, as necessary, and as expeditiously as possible to ensure prompt completion of full evaluations.

(7) . . .

(8) . . .

(9) . . .

�� (c) Eligibility determinations. (1) [Upon completing the administration of tests and other evaluation materials,] In interpreting evaluation data for the purpose of determining if a student is a student with a disability, as defined in sections 200.1(mm) or (zz) of this Part, and determining the educational needs of the student, the committee on special education and other qualified individuals must [determine whether the student is a student with a disability, as defined in sections 200.1(mm) or 200.1(zz) of this Part] draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student’s physical condition, social or cultural background, and

adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered. [and the] The school district must provide a copy of the evaluation report and the documentation of eligibility to the student's parent.

(2) A student shall not be determined eligible for special education if the determinant factor is:

(i) . . .

(ii) lack of appropriate instruction in math; or

(iii) . . .

(3) . . .

(4) . . .

(5) . . .

(6) [Learning disabilities. In determining whether] The determination that a student has a learning disability as defined in section 200.1(zz)(6) of this Part shall be made pursuant to subdivision (j) of this section.[, the school district:

(i) may use a process that determines if the student responds to scientific, research-based intervention as part of the evaluation procedures pursuant to paragraph (b) of this section; and

(ii) is not required to consider whether a student has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning.]

(d) Recommendation. For a student not previously identified as having a disability, the committee on special education shall provide a recommendation to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the receipt of consent to evaluate. For a student with a disability referred for review pursuant to subdivision (f) of this section, a recommendation shall be provided to the board of education, which shall arrange for the appropriate special education programs and services to be provided to the student with a disability within 60 school days of the referral for review of the student with a disability. Prior to the development of a recommendation, the committee shall ensure that the appropriateness of [the] reading and math instruction and other resources of the regular education program, including educationally related support services, and academic intervention services, has been considered.

(1) . . .

(2) Individualized education program (IEP). If the student has been determined to be eligible for special education services, the committee shall develop an IEP. IEPs developed on or after January 1, 2009, shall be on a form prescribed by the Commissioner. In developing the recommendations for the IEP, the committee must consider the results of the initial or most recent evaluation; the student’s strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the results of the student's performance on any general State or district-wide assessment programs; and any special considerations in paragraph (3) of this subdivision. The IEP recommendation shall include the following:

(i) . . .

(ii) . . .

(iii) Measurable annual goals.

(a) The IEP shall list measurable annual goals, including academic and functional goals, consistent with the student's needs and abilities. The measurable annual goals[, including benchmarks or short-term objectives,] must relate to:

(1) . . .

(2) . . .

(b) . . .

(iv) . . .

(v) Special education program and services.

(a) The IEP shall indicate the recommended special education program and services as defined in section 200.1(qq) and 200.1(ww) of this Part from the options set forth in section 200.6 of this Part or, for preschool students from those options set forth in section [200.16(h)] 200.16(i) of this Part, and the supplementary aids and services as defined in section 200.1(bbb) of this Part that will be provided for the student:

(1) . . .

(2) . . .

(3) . . .

(b) . . .

(vi) . . .

(vii) . . .

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

(a) an explanation of the extent, if any, to which the student will not participate in regular [education programs] class; or

(b) . . .

(d) . . .

(ix) . . .

(x) . . .

(xi) . . .

(xii) . . .

(3) . . .

(4) Such recommendations shall

(i) be developed in meetings of the committee on special education.

(a) . . .

(b) where a child is determined to be at risk of a future placement in a residential school, the committee must, with parental consent or consent of a student 18 years of age or older, request in writing that a designee of the appropriate county or State agency participate in any proceeding of the committee to make recommendations concerning the appropriateness of residential placement and other programs and placement alternatives, including but not limited to, community support services that may be available to the family. The committee must notify the local social services district when a student who is in a foster care placement is at risk of a future placement in a residential school. A copy of such request must be forwarded to the Office of Mental Health and the Office of Mental Retardation and Developmental Disabilities. In the event that such persons are unable to attend such meetings, the committee shall attempt alternative means allowing for their participation, such as individual or conference telephone discussions, and such attempts shall be documented;

(c) if the purpose of the meeting is to consider [the need for transition services] the postsecondary goals for the student and the transition services needed to assist the student in reaching those goals, the school district shall invite the student [and a representative of the agencies likely to be responsible for providing or paying for transition services]. If the student does not attend, the district shall take steps to ensure that the student's preferences and interests are considered. To the extent appropriate and with parental consent or consent of a student 18 years of age or older, the school district must invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services. If an agency invited to send a representative to a meeting does not do so, the district [shall] should take steps to involve the other agency in the planning of any transition services;

(d) . . .

(ii) . . .

(5) . . .

(6) . . .

(e) IEP implementation. (1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(7) . . .

(8) Students with disabilities who transfer school districts. (i) Transfer within New York State. In the case of a student with a disability who had an IEP that was in effect in this State and who transfers from one school district and enrolls in a new school district within the same [academic] school year, the new school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with Federal and State law and regulations.

(ii) Transfer from outside New York State. In the case of a student with a disability who transfers school districts within the same [academic] school year, who enrolls in a new school district and who had an IEP that was in effect in another State, the school district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district conducts an evaluation pursuant to this section, if determined to be necessary by such school district, and develops a new IEP, if appropriate, that is consistent with Federal and State law and regulation.

(iii) . . .

(9) . . .

(f) . . .

(g) Amendments to the IEP. Amendments to an IEP made after the annual review [by the CSE] may be made by rewriting the IEP or by developing a written document to amend or modify the student’s current IEP, provided that:

(1) . . .

(2) . . .

(h) Requests to the committee on special education pursuant to section 4005 of the Education Law. (1) If, pursuant to section 4005 of the Education Law, a committee on special education receives a written request for evaluative information and program recommendations for a student from a Family Court judge, a probation department, a social services district, the Office of Child and Family Services, or a preadmission certification committee established pursuant to section 9.51(d) of the Mental Hygiene Law, the committee shall, with parental consent or consent of a student 18 years of age or older, provide such information and recommendation to the requesting agency within 42 days of the date of receipt of such a request, provided that the committee on special education can obtain the consent of the student's parent to conduct an evaluation.

(2) . . .

(3) . . .

(i) Written notice upon graduation or aging out. Pursuant to Education Law, section 4402(1)(b)(5), the committee on special education or, in the case of a State-operated school, the multidisciplinary team, shall provide written notice to the parents or guardian of each student specified in subparagraphs (1)(i) and (ii) of this subdivision and, if such student is 18 years of age or older, to the student, of the date upon which the student will no longer be entitled to receive tuition free educational services by reason of receipt of a high school diploma or in accordance with Education Law, section 4402(5), whichever is earlier.

(1) . . .

(2) . . .

(3) In addition to the requirements of paragraph (2) of this subdivision, the notice to the parent, or student, where appropriate, shall:

(i) . . .

(ii) . . .

(iii) provide assurances of the confidentiality of personally identifiable data which shall be in accordance with section 200.5(e) of this Part and section [247.4] 247.5 of this Title, as applicable.

(4) . . .

(5) . . .

(j) Additional procedures for identifying students with learning disabilities.

(1) A student suspected of having a learning disability as defined in section 200.1(zz)(6) of this Part must receive an individual evaluation that includes a variety of assessment tools and strategies pursuant to subdivision (b) of this section. The CSE may not rely on any single procedure as the sole criterion for determining whether a student has a learning disability. The individual evaluation shall be completed within 60 days of receipt of consent, unless extended by mutual agreement of the student’s parent and the CSE.

(i) The individual evaluation must include information from an observation of the student in routine classroom instruction and monitoring of the student’s performance that was either done before the student was referred for an evaluation or from an observation of the student’s academic performance in the regular classroom after the student has been referred for an evaluation and parental consent, consistent with section 200.5(b) of this Part, is obtained. Such observation shall be conducted by an individual specified in paragraph (2) of this subdivision.

(ii) To ensure that underachievement in a student suspected of having a learning disability is not due to lack of appropriate instruction in reading or mathematics, the CSE must, as part of the evaluation procedures pursuant to section 200.4(b) and (c) of this Part, consider,

(a) data that demonstrate that prior to, or as part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

(b) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student’s parents.

(2) The determination of eligibility for special education for a student suspected of having a learning disability must be made by the CSE, which shall include the student’s regular education teacher as defined in section 200.1(pp) of this Part and at least one person qualified to conduct individual diagnostic examinations of students (such as a school psychologist, teacher of speech and language disabilities, speech/language pathologist or reading teacher),

(3) A student may be determined to have a learning disability if, when provided with learning experiences and instruction appropriate for the student’s age or State-approved grade-level standards, the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving; and

(i) The student either

(a) does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in this paragraph when using a process based on the student’s response to scientific, research-based intervention pursuant to section 100.2(ii) of this Title; or

(b) exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the CSE to be relevant to the identification of a learning disability, using appropriate assessments consistent with section 200.4(b) of this Part; and

(ii) The CSE determines that its findings under this paragraph are not primarily the result of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency.

(4) In addition to the criteria in paragraph (3) of this subdivision, the CSE is not prohibited from considering whether there is a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematical calculation and/or mathematical problem solving; provided that effective on and after July 1, 2012, a school district shall not use the severe discrepancy criteria to determine that a student in kindergarten through grade four has a learning disability in the area of reading.

(5) Specific documentation for the eligibility determination.

(i) When determining eligibility for a student suspected of having a learning disability, the CSE shall prepare a written report containing a statement of:

(a) whether the student has a learning disability;

(b) the basis for making the determination, including an assurance that the determination has been made in accordance with section 200.4(c)(1) of this Part;

(c) the relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student’s academic functioning;

(d) the educationally relevant medical findings, if any;

(e) whether, consistent with paragraph (3) of this subdivision:

(1) the student does not achieve adequately for the student’s age or to meet State-approved grade-level standards; and

(2) the student

(i) does not make sufficient progress to meet age or State-approved grade-level standards; or

(ii) exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development;

(f) the determination of the CSE concerning the effects of a visual, hearing, or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; or limited English proficiency on the student’s achievement level; and

(g) if the student has participated in a process that assesses the student’s response to scientific, research-based intervention pursuant to section 100.2(ii) of this Title:

(1) the instructional strategies used and the student-centered data collected; and

(2) the documentation that the student’s parents were notified in accordance with section 100.2(ii)(1)(vi) of this Title.

(ii) Each CSE member must certify in writing whether the report reflects the member’s conclusion. If it does not reflect the member’s conclusion, the CSE member must submit a separate statement presenting the member’s conclusions.

7. Section 200.5 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(a) Prior written notice (notice of recommendation) and other written notifications. (1) Prior written notice (notice of recommendation) that meets the requirements of section 200.1(oo) of this Part must be given 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, educational placement of the student or the provision of a free appropriate public education to the student. Effective, January 1, 2009 the prior written notice shall be on the form prescribed by the Commissioner.

(2) . . .

(3) The prior written notice must include:

(i) . . .

(ii) . . .

(iii) a description of [any] other options that the [district] CSE considered and the reasons why those options were rejected;

(iv) a description of each evaluation procedure, [test] assessment, record, or report the [district] CSE used as a basis for the proposed or refused action;

(v) a description of [the] other factors that are relevant to the [district’s] CSE’s proposal or refusal;

(vi) a statement that the parents of a student with a disability have protection under the procedural safeguards of this Part, and, if this notice is not an initial referral for an evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; and

(vii) . . .

(4) . . .

(5) . . .

(6) Other required notifications. A parent of a student with a disability shall also be provided written notification as follows:

(i) . . .

(ii) . . .

(iii) For students described in section [200.4(h)(1)] 200.4(i)(1), notice must be provided to the parent and, beginning at age 18 to the student, in accordance with section [200.4(h)(2) and (3)] 200.4(i)(2) and (3) of this Part.

(iv) . . .

(v) . . .

(7) . . .

(b) Consent. (1) The school district must make reasonable efforts to obtain written informed consent of the parent, as such term is defined in section 200.1(l) of this Part, and must have a detailed record of its attempts, and the results of those attempts. Written consent of the parent[, defined in section 200.1(l) of this Part,] is required:

(i) prior to conducting an initial evaluation or reevaluation, except that:

(a) . . .

(b) parental consent need not be obtained for a reevaluation if the school district can demonstrate that it has [taken] made reasonable [measures] efforts to obtain that consent, and the student’s parents failed to respond;

[(1) the school district must have a record of its attempts to obtain parental consent;]

(c) in the event the parent of the student to be evaluated does not grant consent for an initial evaluation, such parent shall be informed by the committee chairperson that, upon request, the parent will be given an opportunity to attend an informal conference with the committee or designated professionals most familiar with the proposed evaluation, the person who referred the student for such an evaluation, and counsel or an advisor of the parent’s choice, at which time the parent shall be afforded an opportunity to ask questions regarding the proposed evaluation. If at this meeting the parent and the person initiating the referral agree in writing that the referral is not warranted, the referral shall be withdrawn. Except in the case of a preschool child, a student who is home instructed pursuant to section 100.10 of this Title or a student placed in a private school by the parents at their own expense, if the parent does not request or attend such a conference, or continues to withhold consent for evaluation otherwise required for a period of 30 days after the date of receipt of a referral, the board of education may pursue the initial evaluation of the student by utilizing the due process procedures described in this section;

(ii) . . .

(iii) . . .

(iv) prior to releasing any personally identifiable information as described in subdivision (e) of this section, in accordance with sections 200.2(b)(6) and [200.4(g)] 200.4(h) of this Part;

�� (v) prior to each time the school district [proposes to access] accesses a parent’s private or public insurance proceeds in accordance with the requirements of 34 C.F.R. sections 300.154(d)(2)(iv)(A) and (e)(1) and (e)(2)(i) (Code of Federal Regulations, 2006 edition, title 34, section 300.154, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46771-46772, Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC

20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624 One Commerce Plaza, Albany, NY 12234).

(a) the parents must be informed that their refusal to permit the school district to access their public benefits or insurance or private insurance does not relieve the school district of its responsibility to ensure that all required services are provided at no cost to the parents.

(2) . . .

(3) If the parents of a student with a disability refuse to give consent 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. 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) . . .

(5) Consent for a ward of the State. If the student is a ward of the State and is not residing with the student's parent, the school district shall make reasonable efforts to obtain the informed consent from the parent of the student for an initial evaluation to determine whether the student is a student with a disability. The school district is not required to obtain informed consent from the parent of a student, as defined in section 200.1(ii) of this Part, for an initial evaluation to determine eligibility for special education services if:

(i) . . .

(ii) . . .

(iii) the rights of the parent to make educational decisions have been subrogated by a judge in accordance with State law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the student.

(6) Consent for a student who is home instructed, pursuant to section 100.10 of this Title, or placed in a private school by parents at their own expense. If a parent of student who is home instructed or placed in a private school by their parents at their own expense does not provide consent for an initial evaluation or reevaluation, or the parent fails to respond to a request to provide consent, the school district may not continue to pursue those evaluations by using the due process procedures described in this section; and the school district is not required to consider the student as eligible for special education services.

(c) [Notice of meetings] Meeting notice. (1) Whenever the committee on special education proposes to conduct a meeting related to the development or review of a student’s IEP, or the provision of a free appropriate public education to the student, the parent must receive notification in writing at least five days prior to the meeting. The meeting notice may be provided to the parent less than five days prior to the meeting to meet the timelines in accordance with Part 201 of this Title and in situations in which the parent and the school district agree to a meeting that will occur within five days. The parent may elect to receive the notice of meetings by an electronic mail (e-mail) communication if the school district makes such option available. Effective, January 1, 2009, meeting notice shall be on a form prescribed by the Commissioner.

(2) Such notice shall:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(vi) . . .

(vii) if the purpose of the meeting is to consider postsecondary goals and transition services, the meeting notice must also:

(a) . . .

(b) . . .

(d) Parent participation in CSE meetings. (1) . . .

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) The parents of a student with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student, in accordance with the requirements of 34 C.F.R. sections [300.562 through 300.576] 300.613 through 300.625 (Code of Federal Regulations, [1999] 2006 edition, [Superintendent of Documents, U. S. Government Printing Office, Washington, DC 20402-9328: 1999 -] title 34, sections 300.613 – 300.625, Federal Register/ Vol. 71, No. 156/ August 14, 2006/ pp. 46803-46804, Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW, Suite 700, Washington, DC 20001; available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624 One Commerce Plaza, Albany, NY 12234).

(7) . . .

(e) Confidentiality of personally identifiable data. (1) . . .

(2) Each public school, public agency and approved private school subject to the provisions of this Part shall preserve the confidentiality of personally identifiable data, information or records pertaining to students with disabilities. Such confidentiality must be preserved in a manner consistent with the procedures adopted pursuant to section 200.2(b)(6) of this Part and/or in accordance with 20 USC 1232(g) and the provisions of Part 99 of title 34 of the Code of Federal Regulations or its successor and sections 300.610 through 300.625. (United States Code, [1994] 2000 edition, Volume [10] 11, 2001; United States Code, 2000 Edition, Supplement III, Volume Two, 2005, Superintendent of Documents, U. S. Government Printing Office, Washington, DC 20402-9328: [1995] 2004; Code of Federal Regulations, [1999] 2006 edition, title 34, Part 99, Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, DC 20402 -0001 [: 1999] ; Code of Federal Regulations, 2006 edition, title 34, sections 300.610-300.625, Federal Register/ Vol.71, No.156/ August 14, 2006/ pp.46802-46804 - Office of the Federal Register, National Archives and Records Administration, 800 North Capitol Street, NW Suite 700, Washington DC 20001 – available at the Office of Vocational and Educational Services for Individuals with Disabilities; Room 1624, One Commerce Plaza, Albany, NY 12234).

(f) Procedural safeguards notice. (1) . . .

(2) . . .

(3) A copy of such notice must be given to the parents of a student with a disability, at a minimum one time per year and also:

(i) . . .

(ii) upon the first filing of a due process complaint notice to request mediation or an impartial hearing as described in subdivisions (h) and (j) of this section; [and]

(iii) upon request by a parent[.];

(iv) upon a decision to impose a suspension or removal that constitutes a disciplinary change in placement pursuant to section 201.2(e) of this Title; and

(v) upon first receipt of a State complaint pursuant to section 200.5(l) of this Part.

[(4) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available under this Part relating to

(i) independent educational evaluation;

(ii) prior written notice;

(iii) parental consent;

(iv) access to educational records;

(v) opportunity to present and resolve due process complaints, including the time period in which to request an impartial hearing, the opportunity for the school district to resolve the complaint and the availability of mediation;

(vi) the student’s placement during pendency of due process proceedings;

(vii) procedures for students who are subject to placement in an interim alternative educational setting;

(viii) requirements for unilateral placement by parents of students in private schools at public expense;

(ix) due process hearings, including requirements for disclosure of evaluation results and recommendations;

(x) State-level appeals;

(xi) civil action, including the time period in which to file such action;

(xii) attorney’s fees;

(xiii) State complaint procedures, including a description of how to file a complaint and the timelines under those procedures; and

(xiv) the parents’ right to receive information upon request relating to obtaining free or low-cost legal and other relevant services at no expense to the school district.]

[(5)](4) . . .

[(6)](5) . . .

(g) Independent educational evaluations. (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(i) . . .

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or [initiating a due process] filing a due process complaint notice to request a hearing to defend the public evaluation.

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or [initiate an impartial] file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

(v) [If the hearing officer determines that the evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has a right to an independent evaluation, but not at public expense.

(a) If the parent obtains an independent evaluation at private expense, the results of the evaluation must be considered by the school district in any decision made with respect to the provision of a free appropriate public education to the student; and may be presented as evidence at a hearing under this section regarding the student.] If the school district files a due process complaint notice to request an impartial hearing and the final decision is that the school district’s evaluation is appropriate, or that the evaluation obtained by the parent did not meet school district criteria, the parent has the right to an independent educational evaluation, but not at public expense.

(vi) If the parent obtains an independent educational evaluation at public expense or shares with the school district an evaluation obtained at private expense, the results of the evaluation:

(a) must be considered by the school district, if it meets the school district’s criteria, in any decisions made with respect to the provision of a free appropriate public education for the student; and

(b) may be presented by any party as evidence at an impartial hearing for that student.

(2) . . .

(h) Mediation. (1) Each school district must ensure that procedures are established and implemented to allow parties to resolve disputes involving any matter for which an impartial due process hearing may be brought through a mediation process, including matters arising prior to the filing of a [request for an impartial hearing pursuant to subdivisions (j) and (k) of this section] due process complaint notice. Such procedures must ensure that:

(i) . . .

(ii) the mediation process is not used to deny or delay a parent’s right to a [due process] hearing on the parent’s due process complaint or to deny any other rights afforded under this Part;

(iii) the mediation session is conducted by a qualified and impartial mediator, as defined in section 200.1(dd) of this Part, who is trained in effective mediation techniques, is knowledgeable in laws and regulations relating to the provision of special education services and who is selected by the community dispute resolution center on a random, i.e., rotation basis or, if not selected on a random basis, then by mutual agreement of both parties[;]. An individual who serves as a mediator may not be the employee of any school district or State agency that is involved in the education or care of the student and must not have a personal or professional interest that conflicts with the individual’s objectivity;

(iv) . . .

(v) . . .

(vi) in the case that a resolution is reached to resolve the complaint through the mediation process, the parties shall execute a legally binding written agreement that sets forth the resolution and that states that all discussions that occurred during the mediation process shall remain [be] confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any federal or State court. The agreement shall be signed by both the parent and a representative of the school district who has the authority to bind the school district. The written, signed agreement is enforceable in any State court of competent jurisdiction or in a district court of the United States.

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(i) Due process complaint notification requirements. (1) A parent or school district may [present a] file a due process complaint with respect to any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student. The party presenting the complaint, or the attorney representing such party, shall provide a written due process complaint notice to the party, which shall include:

(i) . . .

(ii) the address of the residence of the student [(or available contact information] or in the case of a homeless student as defined in section 200.1(hhh) of this Part[);], available contact information for the student and the name of the school the student is attending;

(iii) . . .

(iv) a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem; and

(v) . . .

(2) . . .

(3) The due process complaint notice shall be deemed to be sufficient unless the party receiving the notice notifies the impartial hearing officer, appointed in accordance with the rotational selection process in section 200.2(e)(1) of this Part and the requirements in subparagraphs (3)(i) and (ii) of subdivision (j) of this Part, and the other party in writing, within 15 days of the receipt of the due process complaint notice, that the receiving party believes the notice has not met the requirements of paragraph (1) of this subdivision. No party may challenge the sufficiency of a due process complaint using this procedure for expedited impartial hearings conducted pursuant to section 201.11 of this Title.

(4) . . .

(5) . . .

(6) . . .

(7) Amended due process complaint notice. (i) . . .

(ii) The applicable timelines for an impartial due process hearing, including the timelines for [a] the resolution [session] process, shall recommence at the time the party files an amended due process complaint notice.

(j) Impartial due process hearings. (1) A parent or a school district must submit a complete due process complaint notice pursuant to subdivision (i) of this section prior to initiation of an impartial due process hearing on matters relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child.

(i) . . .

(ii) . . .

(iii) [When an impartial due process hearing is requested by either party, the] The school district shall inform the parent in writing of the availability of mediation and of any free or low-cost legal and other relevant services, such as parent centers, available in the area:

(a) when an impartial due process hearing is requested; or

(b) at the parent’s request.

(2) Resolution [session] process. (i) [Preliminary] Resolution meeting. Prior to the opportunity for an impartial due process hearing under paragraph (1) of this subdivision, the school district shall, within 15 days of receiving the due process complaint notice from the parent, convene a meeting with the parents and the relevant member or members of the committee on special education, as determined by the school district and the parent, who have specific knowledge of the facts identified in the complaint, which shall include a representative of the school district who has decision-making authority on behalf of the school district and may not include an attorney of the school district unless the parent is accompanied by an attorney, where the parents of the student discuss their complaint and the facts that form the basis of the complaint, and the school district has the opportunity to resolve the complaint. The school district shall take steps to ensure that one or both of the parents of the student with a disability are present at the resolution meeting, including notifying parents of the meeting early enough to ensure that they will have the opportunity to attend and scheduling the resolution meeting at a mutually agreed on time and place and in a location that is physically accessible to the parents.

(ii) . . .

(iii) Waiver of resolution [session] process. The parent and the school district may agree, in writing, to waive the resolution [session] process or agree to use the mediation process described in subdivision (h) of this section to resolve the dispute.

(iv) Written settlement agreement. If, during the resolution process, the parent and school district reach an agreement to resolve the complaint [at a resolution session], the parties shall execute a legally binding agreement that is signed by both the parent and a representative of the school district who has the authority to bind the school district. Such agreement shall be enforceable in any State court of competent jurisdiction or in a district court of the United States. A party may void such agreement within three business days of the agreement’s execution.

(v) [Timelines for resolution session] Resolution period. If the school district has not resolved the due process complaint to the satisfaction of the parents within 30 days of the receipt of the due process complaint notice, the impartial due process hearing may occur[, and all the applicable timelines for an impartial due process hearing under this subdivision shall commence] consistent with the time period provided in section 200.5(j)(3)(iii) of this Part.

(vi) Failure to convene or participate. Except where the parties have jointly agreed to waive the resolution process or use mediation, the failure of a parent filing a due process complaint to participate in the resolution meeting will delay the timeline for the resolution process and due process hearing until the meeting is held.

(a) If the school district is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented), the school district may, at the conclusion of the 30-day period, request that an impartial hearing officer dismiss the parents’ due process complaint.

(b) If the school district fails to hold the resolution meeting within 15 days of receipt of the parents’ due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of the impartial hearing officer to begin the due process hearing timeline.

(3) Initiation of an impartial due process hearing. [In the event that the complaint is not resolved in a resolution session conducted pursuant to paragraph (2) of this subdivision] Upon receipt of the parent’s due process complaint notice, or the filing of the school district’s due process complaint notice, the board of education shall arrange for an impartial due process hearing to be conducted in accordance with the following rules:

(i) Appointment from the impartial hearing officer list must be made in accordance with the rotational selection process established in section 200.2(e)(1) of this Part and the administrative procedures established by the board of education pursuant to section 200.2(b)(9) of this Part.

(a) . . .

(b) The impartial hearing officer may not accept appointment unless he or she is available to make a determination of sufficiency of a due process complaint notice within five days of receiving such a request and to initiate the hearing within the first 14 days of the time period specified in clause (a)[,] or (b) [or (c)] of subparagraph (iii) of this paragraph.

(ii) . . .

(iii) Timeline for commencing the hearing or pre-hearing conference. Unless an extension is granted pursuant to subparagraph (5)(i) of this subdivision:[, the hearing, or a pre-hearing conference, shall commence within the first 14 days after:

(a) the date upon which the impartial hearing officer receives the parties’ written waiver of the resolution session; or

(b) the date upon which the impartial hearing officer receives the parties’ written confirmation that a resolution session was held but no agreement could be reached; or

(c) the expiration of the 30-day period beginning with the receipt of the due process complaint notice, whichever occurs first.]

(a) when a school district files a due process complaint notice, the hearing or pre-hearing conference shall commence within the first 14 days after the date upon which the impartial hearing officer is appointed.

(b) when a parent files a due process complaint notice, the hearing or a pre-hearing conference shall commence within the first 14 days after:

(1) the date upon which the impartial hearing officer receives the parties’ written waiver of the resolution meeting; or

(2) the impartial hearing officer receives the parties’ written confirmation that a mediation or resolution meeting was held but no agreement could be reached; or

(3) the expiration of the 30-day resolution period, whichever shall occur first, unless

(4) the parties agree in writing to continue mediation at the end of the 30-day resolution period, in which case, the hearing or pre-hearing conference shall commence within the first 14 days after the impartial hearing officer is notified in writing that either party withdrew from mediation.

(iv) . . .

(v) . . .

(vi) . . .

(vii) . . .

(viii) In the event the impartial hearing officer requests an independent educational evaluation as part of a hearing, the cost of the evaluation must be at public expense.

(ix) . . .

(x) . . .

(xi) . . .

(xii) The parents, school authorities, and their respective counsel or representative, shall have an opportunity to present evidence, compel the attendance of witnesses and to confront and question all witnesses at the hearing. Each party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing.

(a) Additional disclosure of information. [Except as provided for in section 201.11 of this Title, not] Not less than five business days prior to a hearing, each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing. An impartial hearing officer may bar any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

(b) . . .

(d) . . .

(e) . . .

(f) . . .

(g) . . .

(xiii) . . .

(xiv) . . .

(xv) . . .

(xvi) . . .

(xvii) . . .

(4) Decision of the impartial hearing officer. (i) . . .

(ii) . . .

(5) Timeline to render a decision. Except as provided in section [200.16(g)(9)] 200.16(h)(9) of this Part and section 201.11 of this Title, the impartial hearing officer shall render a decision, and mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education, and to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) of the State Education Department, not later than 45 days from the date required for commencement of the impartial hearing in accordance with subparagraph (3)(iii) of this subdivision. In cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than 14 days from the date the impartial hearing officer closes the record. The date the record is closed shall be indicated in the decision. The record of the hearing and the findings of fact and the decision shall be provided at no cost to the parents. All personally identifiable information shall be deleted from the copy forwarded to VESID.

(i) An impartial hearing officer may grant specific extensions of time beyond the periods set out in this paragraph, in subparagraph (3)(iii) of this subdivision, or in section [200.l6 (g)(9)] 200.16(h)(9) of this Part at the request of either the school district or the parent. Each extension shall be for no more than 30 days. Not more than one extension at a time may be granted. The reason for each extension must be documented in the hearing record.

(ii) . . .

(iii) . . .

(iv) . . .

(v) The impartial hearing officer shall determine when the record is closed and notify the parties of the date the record is closed. The decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer, and shall set forth the reasons and the factual basis for the determination. The decision shall reference the hearing record to support the findings of fact. The impartial hearing officer shall attach to the decision a list identifying each exhibit admitted into evidence. Such list shall identify each exhibit by date, number of pages and exhibit number or letter. In addition, the decision shall include an identification of all other items the impartial hearing officer has entered into the record. The decision shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the State review officer in accordance with subdivision [(j)] (k) of this section. The decision of the impartial hearing officer shall be binding upon both parties unless appealed to the State review officer.

(k) . . .

(l) State complaint procedures (1) Filing a complaint.

(i) An organization or individual, including those from another state, may file a signed written complaint under the procedures described in this paragraph.

(ii) The complaint must include:

(a) . . .

(b) . . .

(d) if alleging violations with respect to a specific student:

(1) the name and address of the residence of the student;

(2) the name of the school the student is attending;

(3) in the case of a homeless child or youth as defined in section 200.1(hhh) of this Part, available contact information for the student, and the name of the school the student is attending;

(4) a description of the nature of the problem of the student, including facts relating to the problem; and

(5) a proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(iii) Limitation of time for filing a complaint.

(a) The complaint must [be received within] allege a violation that occurred not more than one year [of the date of the alleged violation, except that the one-year limitation shall not apply upon a finding that:

(1) . . .

(2) the complainant is requesting compensatory services for a violation that occurred not more than three years prior to the date that the written complaint, under the procedures described in this subdivision, is received.] prior to the date that the State complaint is received.

(iv) . . .

(v) The party filing the State complaint must forward a copy of the State complaint to the school district or public agency serving the student at the same time the party files the State complaint with the State Education Department.

(vi) The school district, or public agency when appropriate, must provide a procedural safeguards notice to the parent filing the State complaint upon receipt of the parent’s first State complaint in a school year.

(2) Complaint process. Upon receipt of a complaint the State Education Department:

(i) . . .

(ii) may require a school district or other public agency to submit a written reply to the complaint[;] which could include, at the discretion of the school district or other public agency, a proposal to resolve the complaint or notification to the Department that the parent who has filed the State complaint and the school district or other public agency have agreed to voluntarily engage in mediation;

(iii) . . .

(iv) . . .

(v) . . .

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

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

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

(vii) . . .

(viii) . . .

(3) . . .

(4) . . .

(m) Student’s Status During Proceedings. (1) . . .

(2) . . .

(3) If the complaint involves an application for initial services as a preschool student with a disability from a child who is transitioning from early intervention to preschool special education and related services, the school district is not required to provide the early intervention services that the child had been receiving. If the child is found eligible for special education and related services as a preschool student with a disability and the parent consents to the initial provision of special education and related services consistent with section 200.16(h)(7) of this Part, then the school district must provide those special education and related services that are not in dispute between the parent and the school district.

(n) Surrogate parents. (1) . . .

(2) . . .

(3) Procedures for assigning surrogates. Assignment of a surrogate parent to a particular student shall be made in accordance with the following procedures:

(i) . . .

(ii) . . .

(iii) The committee on special education shall determine whether the student’s parents can be identified or located, or whether the student is a ward of the State, consistent with paragraph (1) of this subdivision. Where the student is known to the school district to be a ward of the State, such reasonable efforts to discover the whereabouts of a parent shall include consultation with the local social services district or other agency responsible for the care of the student. The determination of the need for a surrogate parent shall be completed within a reasonable time following the receipt of a referral for an initial evaluation, reevaluation or services. If the committee on special education finds that there is a need for a surrogate parent, a surrogate parent who meets the qualifications identified in paragraph (2) of this section shall be selected from the list approved by the board of education, except as otherwise provided in subparagraph (v) [or (vi)] through (vii) of this paragraph, within 10 business days of the date of the determination by the committee of the need for the surrogate parent.

(iv) . . .

(v) . . .

(vi) . . .

(vii) Unaccompanied homeless youth. In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (2) of this section, until a surrogate can be appointed that meets the appropriate qualifications.

8. Section 200.6 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

§200.6 Continuum of services.

(a) A student with a disability shall be provided with appropriate special education.

(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom. [Such services may include, but are not limited to, consultant teacher services and other group or individual supplemental or direct special education instruction].

(2) . . .

(3) . . .

(b) . . .

(d) Consultant teacher services. Consultant teacher services, as defined in section 200.1 (m) of this Part, shall be for the purpose of providing direct and/or indirect services to students with disabilities [enrolled in] who attend regular education classes, including career and technical education classes, and/or to such students’ regular education teachers. Such services shall be recommended by the committee on special education to meet specific needs of such students and [shall be included in] the student's individualized education program (IEP) shall indicate the regular education classes in which the student will receive consultant teacher services. Consultant teacher services shall be provided in accordance with the following provisions:

(1) . . .

(2) Each student with a disability requiring consultant teacher services shall receive direct and/or indirect services consistent with the student's IEP for a minimum of two hours each week, except that the committee on special education may recommend that a student with a disability who also needs resource room services in addition to consultant teacher services, may receive a combination of such services consistent with the student’s IEP for not less than three hours each week.

(3) . . .

(e) . . .

(f) Resource room programs. Resource room programs shall be for the purpose of supplementing the regular or special classroom instruction of students with disabilities who are in need of such supplemental programs.

(1) Each student with a disability requiring a resource room program shall receive not less than three hours of instruction per week in such program except that the committee on special education may recommend that for a student with a disability who also needs consultant teacher services in addition to resource room services may receive a combination of such services consistent with the student’s IEP for not less than three hours per week.

(2) . . .

(3) . . .

(4) . . .

(5) . . .

(6) . . .

(g) A school district may include integrated co-teaching services in its continuum of services. Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students.

(1) The maximum number of students with disabilities receiving integrated co-teaching services in a class shall be determined in accordance with the students’ individual needs as recommended on their IEPs, provided that effective July 1, 2008, the number of students with disabilities in such classes shall not exceed 12 students.

(2) School personnel assigned to each class shall minimally include a special education teacher and a general education teacher.

(3) Additional personnel, including supplementary school personnel, assigned to such classes by the district, may not serve as the special education teacher pursuant to paragraph (2) of this subdivision.

[(g)](h) . . .

[(h)](i) . . .

[(i)](j) In-state or out-of-state private schools. (1) State assistance for instruction of public school students placed in approved private schools. An application by a board of education for State reimbursement pursuant to section 4405 of the Education Law for a student in an in-state or out-of-state private school shall be approved by the commissioner provided that:

(i) . . .

(ii) . . .

(iii) The committee on special education has certified that the student is of school-age and has a disability or combination of disabilities, and has further documented that the nature or severity of the student's disability is such that appropriate public facilities for instruction are not available. This documentation shall include, but need not be limited to:

(a) . . .

(b) documentation of all efforts to enable the student to benefit from instruction in less restrictive settings using support services and supplementary aids and special education services as set forth in subdivisions (d), (e), (f) [and] , (g) and (h) of this section, and/or for those services not used, a statement of reasons why such services were not recommended;

(d) . . .

(e) . . .

(f) . . .

(iv) . . .

(2) . . .

(3) . . .

(4) Implementation of placement. (i) It shall be the duty of the local board of education to implement a board-approved committee on special education recommendation for placement in an approved private school within the time prescribed by section [200.4(d)] 200.4(e)(1) of this Part.

(ii) Neither the filing of an application or revised application for reimbursement, nor the filing of a request for review, shall be deemed to relieve the board of education of its responsibility to provide appropriate special programs and services within [60] 30 school days of receipt of the recommendation of its committee on special education.

(5) . . .

[(j)](k) Twelve-month special service and/or program. (1) Eligibility of students for 12-month special services and/or programs. Students shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression, if they are:

(i) students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in classes in accordance with subparagraph [(g)(4)(ii)] (h)(4)(ii) of this section;

(ii) students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in accordance with subparagraph [(g)(4)(iii)] (h)(4)(iii) of this section;

(iii) . . .

(iv) . . .

(v) . . .

(2) . . .

(3) . . .

[(k)](l) . . .

[(l)](m) Levels of service. (1) The percent of each instructional school day during which a student is provided any one or combination of the special education programs and services shall be in keeping with the unique needs of the student and the standards established in subdivisions (a), (b), (c), (d), (e), (f), (g), (h) [and] ,(i) and (j) of this section.

(2) . . .

(3) . . .

[(m)](n) . . .

9. Paragraph (3) of subdivision (b) of section 200.7 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(3) [School conduct and discipline] Code of conduct. An approved private school, a State-operated school, and a State-supported school shall develop a [school conduct and discipline] code of conduct policy. The content of such policy shall be consistent with the provisions of section 100.2(l)(1)(i)(a)-(d), (f)-(g) of this Title. The discipline of students with disabilities attending any school governed by this section shall be consistent with Part 201 of this Title.

10. Paragraph (2) of subdivision (c) of section 200.8 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(2) for services provided to a preschool student with a disability on or after September 1, 1989, payment by the county or city for such services shall be paid at least quarterly, pursuant to the provisions of section 4410 of the Education Law, upon vouchers presented by an approved provider which has contracted with the municipality to provide those services. Upon receipt of the form provided by the committee pursuant to section [200.16(c)(7)] 200.16(d)(4) of this Part, the appropriate municipality in which the preschool student resides shall review and, if complete, shall sign the form, and shall send one copy to the department for approval and one to the approved evaluator. A municipality shall not, as a condition of approval of such claims for reimbursement, require any additional information other that the information required to be included on such form. Such vouchers shall be audited in the same manner as other claims against the municipality.

11. Clause (c) of subparagraph (ix) of paragraph (2) of subdivision (f) of section 200.9 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(c) Rates for the certified special education teacher providing special education itinerant services shall be published as half hour rates and billing by providers to municipalities must be done in half hour blocks of time. Billable time includes time spent providing direct and/or indirect special education itinerant services as defined in section [200.16(h)(3)(ii)] 200.16(i)(3)(ii) of this Part in accordance with the student's individualized education program (IEP). The difference between the total number of hours employed in the special education itinerant teacher's standard work week minus the hours of direct and/or indirect special education itinerant service hours must be spent on required functions. Such functions include but are not limited to: coordination of service when both special education itinerant services and related services are provided to a student pursuant to section 4410(1)(j) of the Education Law; preparation for and attendance at committee on preschool special education meetings; conferencing with the student's parents; classroom observation; and/or travel for the express purpose of such functions as stated above. For the purpose of this subparagraph, parent conferencing may include parent education for the purpose of enabling parents to perform appropriate follow-up activities at home. Billable time shall not be less than 66 percent or more than 72 percent of any special education itinerant teacher's total employment hours. Providers shall maintain adequate records to document direct and/or indirect service hours provided as well as time spent on all other activities related to each student served.

12. Subdivisions (a) and (b) of section 200.13 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(a) The functioning levels of students with autism, based upon the criteria set forth in section [200.6 (g)(2)] 200.6(h)(2) of this Part, shall govern their individual or small group instruction.

(1) . . .

(2) . . .

(3) The class size for such students shall be determined in accordance with section [200.6 (f) and (g)] 200.6(f) and (h) of this Part, provided that the class size of special classrooms composed entirely of students with autism shall be in accordance with section [200.6 (g)(4)(ii)(a)] 200.6(h)(4)(ii)(a) of this Part.

(4) . . .

(5) . . .

(6) . . .

(b) The length of the school day for students with autism shall be that set forth in section 175.5 of this [Chapter] Title.

13. Subdivision (f) of section 200.14 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(f) Grouping for instruction. Students with disabilities enrolled in day treatment programs may be grouped for instruction based on similarity of individual mental health needs, when such needs prevent the student from benefiting from instructional groupings pursuant to section [200.6 (g)] 200.6(h) of this Part, as determined by the professional staff of the day treatment program.

14. Subparagraph (iv) of paragraph (1) of subdivision (b) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(iv) A committee chairperson who receives a referral shall immediately notify the parent pursuant to paragraphs [(g)] (h) (1) and (2) of this section that a referral has been received and shall request consent for evaluation of the preschool student.

15. Paragraph (3) of subdivision (d) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(3) If the parent disagrees with the evaluation, the parent may obtain an independent educational evaluation at public expense in accordance with section 200.5(g) of this Part to the extent authorized by Federal law and regulation.

16. Subparagraph (i) of paragraph (2) and paragraphs (3) and (9) of subdivision (h) of section 200.16 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(i) include a list containing a description of each preschool program which has been approved by the commissioner to provide evaluations, and is located within the county in which the preschool student resides and adjoining counties, or, for students residing in the City of New York, within the City of New York and adjoining counties, and the procedures which the parent should follow to select [a] an available program to conduct [an] a timely evaluation.

(3) The procedural safeguards notice shall be provided to the parent in accordance with section 200.5(f) of this Part. [In addition to the requirements of section 200.5(f)(4) of this Part, the] The procedural safeguards notice shall also:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(9) Impartial due process hearings. Impartial due process hearings shall be conducted in accordance with section 200.5 (j) of this Part, provided that the decision of the impartial hearing officer shall be rendered, in accordance with section 4410 of the Education Law, not later than 30 days after [the receipt by the board of a request for a hearing] the time period pursuant to section 200.5(j)(3)(iii) of this Part or after the initiation of such hearing by the board.

17. Subdivision (i) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(i) Continuum of services. (1) . . .

(2) . . .

(3) Special education programs and services. Special education programs and services shall be provided as follows:

(i) . . .

(ii) . . .

(iii) Special classes shall be provided on a half-day or full-day basis pursuant to section 200.1(p), (q) and (v) of this part and in accordance with section [200.6 (g)(2) and (3)] 200.6(h)(2) and (3) or section 200.9(f)(2)(x) of this Part and shall assure that:

(a) . . .

(b) the maximum class size shall not exceed 12 preschool students with at least one teacher and one or more supplementary school personnel assigned to each class[; and]. (1) If a committee on preschool special education recommends a preschool student to an approved program which has no space available in the specific special class which will meet the student’s unique needs as recommended on the IEP, the approved program may temporarily increase the enrollment of a class up to a maximum of 13 preschool students for the remainder of the school year, by a procedure to be established by the Commissioner, to ensure that the student receives a free appropriate public education. If the attendance during the instructional time exceeds 12 students, another staff member shall be assigned to the class. Other staff members may include related service providers and/or supplementary school personnel.

(iv) in-state residential special education programs and services shall be provided to each preschool student with a disability for whom such services have been recommended for a minimum of five hours per day, five days per week. Placement in such residential programs shall be approved by the commissioner in accordance with section [200.6 (i)] 200.6(j) of this Part;

(v) . . .

(vi) . . .

(vii) . . .

18. Paragraph (3) of subdivision (b) of Section 200.22 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(3) Except as provided in subdivision [(f)] (e) of this section, a behavioral intervention plan shall not include the use of aversive interventions.

19. Subdivisions (e), (i), (k) and (n) of Section 201.2 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(e) Disciplinary change in placement means a suspension or removal from a student's current educational placement that is either:

(1) . . .

(2) for a period of 10 consecutive days or less if the student is subjected to a series of suspensions or removals that constitute a pattern because they cumulate to more than 10 school days in a school year; because the student’s behavior is substantially similar to the student’s behavior in previous incidents that resulted in the series of removals; and because of such additional factors as the length of each suspension or removal, the total amount of time the student [is] has been removed and the proximity of the suspensions or removals to one another. The school district determines on a case-by-case basis whether a pattern of removals constitutes a change of placement. This determination is subject to review through due process and judicial proceedings.

(i) Illegal drug means a controlled substance [other than a substance], but does not include a controlled substance legally possessed or used under the supervision of a licensed health-care professional or a substance that is otherwise legally possessed or used under the authority of the Controlled Substances Act or under any other provision of Federal law.

(k) Interim alternative educational setting or IAES means a temporary educational placement [determined by the committee on special education], other than the student's current placement at the time the behavior precipitating the IAES placement occurred. A student who is placed in an IAES shall:

(1) . . .

(2) . . .

��

(n) Student presumed to have a disability for discipline purposes means a student who the school district is deemed to have knowledge was a student with a disability before the behavior that precipitated disciplinary action under the criteria in [subsection (k)(8) of section 1415 of title 20 of the United States Code (United States Code, 1994 edition, Supplement III, Volume 2; Superintendent of Documents, U. S. Government Printing Office, Washington, D.C. 20402-9328: 1998 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234) and the Federal regulations implementing such statute, as set forth in] section [201.5] 201.5(b) of this Part.

��

20. Section 201.3 of the Regulations of the Commissioner of Education is repealed and a new section 201.3 is added, effective September 27, 2007, as follows:

��

§201.3 CSE responsibilities for functional behavioral assessments and behavioral intervention plans. If the manifestation team pursuant to section 201.4 of this Part, makes the determination that the conduct subject to the disciplinary action was a manifestation of the student’s disability, the CSE must either:

(a) conduct a functional behavioral assessment, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the student; or

(b) if a behavioral intervention plan has already been developed, review the behavioral intervention plan and modify it as necessary to address the behavior.

21. Subdivisions (d) and (e) of section 201.4 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(d) Determination. (1) [If the manifestation team determines that] The conduct must be determined to be a manifestation of the student’s disability if the manifestation team determines that a condition in either paragraph (c)(1) or (2) of this section [is applicable for the student, the behavior shall be considered a manifestation of the student's disability] was met.

(2) If the manifestation team determines that the conduct was a manifestation of the student’s disability, the CSE shall:

(i) conduct a functional behavioral assessment and implement a behavioral intervention plan for such student in accordance with section [(3)] 201.3 of this Part; and

(ii) . . .

(e) Deficiencies in IEP [or placement.] If[, in the review of subdivisions (b) and (c) of this section, the school identifies deficiencies in the student’s IEP or placement or in their implementation, it] the manifestation team determines the conduct in question was the direct result of the school district’s failure to implement the IEP, the school district must take immediate steps to remedy those deficiencies.

22. Subdivision (a) and paragraph (3) of subdivision (b) of section 201.5 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(a) General provision. The parent of a student who has violated any rule or code of conduct of the school district and was not identified as a student with a disability at the time of such behavior may assert any of the protections set forth in [34 C.F.R. Part 300 (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234-9328) or in] this Part, if the school district is deemed to have had knowledge as determined in accordance with subdivision (b) of this section, that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. Where the school district is deemed to have had knowledge that the student was a student with a disability before such behavior occurred, such student is a "student presumed to have a disability for discipline purposes."

(3) a teacher of the student, or other personnel of the school district, has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education of the school district or to other supervisory personnel of the school district [in accordance with the district's established child find or special education referral system].

23. Subdivision (b) of section 201.6 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(b) An expedited evaluation shall be completed no later than 15 school days after receipt of [the request] parent consent for evaluation, and shall be conducted in accordance with the procedural requirements of sections 200.4 and 200.5 of this Title. The CSE shall make a determination of eligibility of such student in a meeting held no later than five school days after completion of the expedited evaluation.

24. Subparagraph (i) of paragraph (1) of subdivision (e) and subdivision (f) of section 201.7 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(i) has inflicted serious bodily injury, as defined in section [201.1(m)] 201.2(m) of this Part, upon another person while at school, on school premises or at a school function under the jurisdiction of the educational agency;

(f) School personnel may consider any unique circumstances on a case-by-case basis when determining whether [to order] a change in placement [under] consistent with the other requirements of this Part is appropriate for a student with a disability who violates a school district’s code of [student] conduct.

25. Section 201.8 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

§201.8 Authority of impartial hearing officer to order a change in placement to an IAES in a dangerous situation.

(a) An impartial hearing officer appointed pursuant to Education Law section 4404(1), in an expedited due process hearing conducted pursuant to section 201.11 of this Part, may order a change in placement of a student with a disability to an appropriate interim alternative educational setting (IAES) for not more than 45 school days, if the hearing officer determines that maintaining the current placement of the student is substantially likely to result in injury to the student or others.[:

(1) determines that the school district has demonstrated by substantial evidence that maintaining the current placement of the student is substantially likely to result in injury to the student or to others;

(2) considers the appropriateness of student's current placement;

(3) considers whether the school district has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services; and

(4) determines that the IAES proposed by school personnel meets the requirements of 34 C.F.R. section 300.522(b) (Code of Federal Regulations, 1999 edition, Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234) as set forth in section 201.2(k) of this Part.

(b) For purposes of this section, "substantial evidence" shall mean beyond a preponderance of the evidence.

[(d)](b) The procedures established in this section may be repeated[, as necessary] if the school district believes that returning the student to the original placement is substantially likely to result in injury to the student or others.

[(e)](c) . . .

[(f)](d) . . .

26. Paragraph (2) of subdivision (c) of section 201.9 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

(2) Upon a determination by the manifestation team that the behavior of a student with a disability was not a manifestation of the student's disability, such student may be disciplined in the same manner as a nondisabled student, except that such student shall continue to receive services in accordance with [this] section 201.10 of this Part. Upon receipt of notice of such determination, the superintendent or hearing officer in the superintendent’s hearing shall proceed with the penalty phase of the hearing. If the manifestation team determines that the behavior was a manifestation of the student's disability, the superintendent or hearing officer in the superintendent’s hearing shall dismiss the superintendent's hearing, except as otherwise provided in paragraph (3) of this subdivision.

27. Subdivision (e) of section 201.10 of the Regulations of the Commissioner of Education is repealed, effective September 27, 2007, and subdivisions (a), (c) and (d) of section 201.10 of the Regulations of the Commissioner of Education are amended, effective September 27, 2007, as follows:

(a) During any period of suspension, a student with a disability shall be provided services to the extent required under [the provisions of the Individuals with Disabilities Education Act (20 U.S.C. sections 1400 et seq.), 34 C.F.R. section 300.121 (United States Code, 1994 edition, supplement III, volume 2, 1998; Code of Federal Regulations, 1999 edition; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328: 1999 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234)] this section and paragraph (e) of subdivision 3 of section 3214 of the Education Law. Nothing in this section shall be construed to confer a greater right to services than is required under Education Law, section 3214(3)(e) and [such] Federal law and regulations.

(c) During subsequent suspensions or removals for periods of 10 consecutive school days or less that in the aggregate total more than 10 school days in a school year but do not constitute a disciplinary change in placement, regardless of the manifestation determination, students with disabilities shall be provided with services necessary to enable the student to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the student's IEP and to receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so it does not recur. [The CSE shall determine the services to be provided to the student.] School personnel, in consultation with at least one of the student’s teachers, shall determine the extent to which services are needed, so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress in meeting the goals set out in the student’s IEP.

(d) During suspensions or other disciplinary removals, including suspensions or removals pursuant to section 201.7(e) of this Part, for periods in excess of 10 school days in a school year which constitute a disciplinary change in placement [for behavior], regardless of the manifestation determination, students with disabilities shall be provided with services[, as determined by the CSE,] necessary to enable the student to continue to participate in the general education curriculum, to progress toward meeting the goals set out in the student's IEP, and to receive, as appropriate pursuant to section 201.3 of this Part, a functional behavioral assessment, behavioral intervention services and modifications that are designed to address the behavior violation so it does not recur. The IAES and services shall be determined by the CSE.

28. Section 201.11 of the Regulations of the Commissioner of Education is amended, effective September 27, 2007, as follows:

§201.11 Expedited due process hearings.

(a) An expedited due process hearing shall be conducted pursuant to this Part under the following circumstances:

(1) . . .

(2) . . .

(3) the parent requests a hearing from a determination that the student's behavior was not a manifestation of the student's disability. [In reviewing a decision with respect to the manifestation determination, the hearing officer shall determine whether the school district has demonstrated that the student's behavior was not a manifestation of the student's disability consistent with the requirements of section 201.4 of this Part]; or

(4) The parent requests a hearing relating to any decision regarding placement under [34 C.F.R. sections 300.520-528 or] section 201.7 of this Part, including but not limited to any decision to place the student in an IAES.

(b) An expedited due process hearing shall be conducted in accordance with the procedures specified in section 200.5(j) of this [Part] Title, except as follows:

[(1) Any party to the hearing shall have the right to prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least three business days before the hearing.

(2) At least three business days prior to the hearing, each party shall disclose to all other parties all evaluations completed as of that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

(c) An expedited due process hearing shall be completed within 15 business days of receipt of the request for a hearing, provided that the impartial hearing officer may grant specific extensions of such time period at the request of either the school district or the parent. The impartial hearing officer shall mail a copy of written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education and to the Office of Vocational and Educational Services for Individuals with Disabilities (VESID) of the State Education Department within five business days after the last hearing date, but in no event later than 45 calendar days after receipt of the request for a hearing, without exceptions or extensions.]

(1) Upon receipt of or filing of a due process complaint notice for an expedited hearing, the board of education shall arrange for an impartial hearing and the appointment of an impartial hearing officer using the list in accordance with the rotational selection process established in section 200.2(e)(l) of this Title and the administrative procedures established by the board of education pursuant to section 200.2(b)(9) of this Title.

(2) The impartial officer may not accept appointment unless available to hold the hearing and render the decision within the time period for expedited hearings pursuant to paragraph (3) of this subdivision.

(3) The school district shall arrange the expedited due process hearing according to the following time period, unless the parent and school district agree in writing to waive the resolution meeting or agree to use mediation:

(i) A resolution meeting shall occur within seven days of receiving notice of the due process complaint.

(ii) The expedited due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of receipt of the due process complaint.

(iii) The expedited due process hearing shall occur within 20 school days of the date the complaint requesting the hearing is filed.

(iv) The impartial hearing officer shall make a determination within 10 school days after the hearing.

(4) No extension to an expedited impartial hearing timeline may be granted.

(5) The impartial hearing officer shall mail a copy of the written, or at the option of the parents, electronic findings of fact and the decision to the parents, to the board of education and to the Office of Vocational and Educational Services for Individuals with Disabilities Education (VESID) of the New York State Education Department within 10 school days after the hearing.

[(d)](c) . . .

[(e) If a student is placed in an IAES under the circumstances described in this subdivision, and school personnel propose to change the student's placement after expiration of the IAES, during the pendency of any proceeding to challenge the proposed change in placement, the student shall remain in his or her current educational placement (the placement prior to removal to the IAES), except where the student is again placed in an IAES by an impartial hearing officer pursuant to section 201.8 of this Part in an expedited due process hearing where the school district maintains that it is dangerous for the student to remain in his or her current educational placement.]

(d) When an expedited due process hearing has been requested because of a disciplinary change in placement, the manifestation determination or because the school district believes that maintaining the student in the current placement is likely to result in injury to the student or others, the student shall remain in the IAES pending the decision of the impartial hearing officer or until the expiration of the period of removal, whichever occurs first, unless the parent and the school district agree otherwise.

PROPOSED AMENDMENT OF SECTIONS 100.2, 120.6, 200.1 THROUGH 200.9, 200.13, 200.14, 200.16, 200.22, 201.2 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, 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 July 18, 2007, the State Education Department received the following new comments that were not otherwise addressed in the Summary of Assessment of Public Comment published in the State Register on July 3, 2007.

Section 100.2(ii) - Response to Intervention (RTI) Programs

COMMENT:

Add a new section (d) which states that school districts must notify parents in writing of how, and the frequency with which, progress reporting will take place throughout the RTI process. Require districts to provide information on the district’s RTI program to all parents of students who are participating in the RTI program. Add that the school district must also select and define the timeframe for completion of the RTI process and report to the Department which program it has selected and the scientific research upon which the program is based.

DEPARTMENT RESPONSE:

The proposed regulation requires parent notification when a student is receiving instructional interventions beyond that provided to all students in the general education classroom that specifies the strategies for increasing the student’s rate of learning, the amount and nature of the data to be collected and the general education services to be provided to the student. The school district must select and define the components of the RTI program and therefore the decision regarding a time period for participation of a student in the RTI process is best left to the professionals who have knowledge about the individual student and the RTI instructional model used in the district. The proposed regulation requires each board of education to adopt written policy that establishes administrative practices and procedures for implementing schoolwide approaches in order to remediate a student’s performance prior to referral for special education, which may include an RTI process. Such policy is subject to review by the Department upon request.

Section 200.1(fff) - Transition Services

COMMENT:

Define the terms “results oriented” and “coordinated set of activities.”

DEPARTMENT RESPONSE:

It is not necessary to define these terms in regulations. “Results oriented” in the context of transition services is generally understood to refer to a process that focuses on improving academic and functional achievement to assist the student to reach his or her post secondary and annual goals. “Coordinated set of activities” is generally understood to mean that there is a relationship among transition services and activities that is reasonably calculated to assist the student in moving from school to post-school activities based on the individual student’s needs, taking into account the student’s strengths, preferences and interests.

Section 200.4(b)(iv) - Observation

COMMENT:

Add language to section 200.4(b)(iv) to give the evaluation team the discretion to determine “an environment appropriate for a student of that age” for observations of students of less than school age or out of school.

DEPARTMENT RESPONSE:

It is not necessary to add a regulation to address this comment since the CSE is responsible to initiate the evaluation. For a child who is less than school age or out of school, the determination of the environment in which to conduct an observation can only be made on a case-by-case basis and the committee on special education (CSE) is in the best position to make this determination.

Section 200.4 - Individualized Education Program (IEP)

COMMENT:

Include a specific timeline of not later than 30 days after the CSE meeting in which the CSE must provide a copy of the IEP to the parent to allow the parent time to review the IEP prior to the start of the school year.

DEPARTMENT RESPONSE:

We decline to further regulate when a parent must be provided a copy of the IEP since current section 200.5(a) requires that a parent be provided prior written notice of the CSE’s recommendation a reasonable time before the IEP is implemented.

Section 200.4(j) - Additional Procedures for Identifying Students with Learning Disabilities (LD)

COMMENT:

Remove language that allows the 60-day timeline for the completion of the individual evaluation to be extended by mutual agreement of the student’s parents and the CSE. Remove the sunset date for the use of severe discrepancy criteria in kindergarten through grade four in the area of reading until and only when RTI has been effectively demonstrated on a statewide basis. Retain section 200.4(j)(5)(ii) to allow a school to use a student’s pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development in LD determination.

DEPARTMENT RESPONSE:

�� The proposed language allows the parent and the CSE to agree to extend the time period in which to complete the initial evaluation when the purpose is to gather further evaluative information on how the student responds to research based instruction and interventions. The Department believes that it would be appropriate to reach agreement for this purpose and federal regulations provide the parent with the right to reach such an agreement. With regard to the sunset date for the use of severe discrepancy criteria, the use of a severe discrepancy criteria to determine if a student has a LD in the area of reading is generally not supported by the research. There are many school districts currently implementing RTI programs and the Department believes five years is a sufficient time period for most other schools to develop RTI programs. In addition, the State’s criteria after 2012 will continue to allow a CSE to determine that an individual student has a LD based on the student’s pattern of strengths and weaknesses in performance, achievement, or both, relative to age or state approved grade level standards. The comment to retain using a student’s pattern

or strengths and weaknesses in the eligibility determination for a student suspected having LD is supportive in nature and no response is necessary.

Section 200.5(g) - Independent Educational Evaluations (IEE)

COMMENT:

For clarity and consistency across the State, reference to the “school district criteria” in sections 200.5(g)(1)(v) and 200.5(g)(1)(vi)(a) relating IEEs should be changed to the “State Education Department criteria.”

DEPARTMENT RESPONSE:

The State’s regulation conforms to federal regulations which references criteria for IEEs as developed by individual school districts. Since such criteria includes the location of the IEE and the qualifications of the examiner must be the same as the criteria the school district uses when it initiates an evaluation, it is not appropriate for State to develop a school district’s criteria for IEEs.

Section 200.6 - Continuum of Services

COMMENT:

Require that the maximum number of special education students receiving integrated co-teaching services not exceed one-third of the class enrollment or 12 students, whichever number is lower. Limit the number of students with disabilities to no more than five students in a class. Delete proposed language to limit co-teaching services to no more than 12 students with disabilities to avoid overrepresentation of special education students in the class.

DEPARTMENT RESPONSE:

The proposed regulation establishes a maximum number of students with disabilities receiving co-teaching services in a class. Recommendations for each student receiving co-teaching services must be made on an individual basis in accordance with the individual needs of the student. It is unlikely that the number of students with disabilities in such classes would exceed the number of nondisabled students, since both a general education teacher and a special education teacher must be assigned to the class. To meet the individual needs of the students in such classes, schools could assign additional staff to the class, such as teaching assistants. This regulation is expected to maximize the participation of students with disabilities in general education classes and curriculum. An integrated co-teaching classroom composed of more students with disabilities than nondisabled students would be inconsistent with the intent of this option on the continuum of services.

Other

COMMENT:

One commenter urged Governor Spitzer to sign Assembly bill 5396-A to restore the burden of proof in an impartial hearing to school districts.

DEPARTMENT RESPONSE:

The comment is beyond the scope of the proposed rule making.