Meeting of the Board of Regents | October 2008

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

 

TO:	VESID Committee
FROM:	Rebecca H. Cort
SUBJECT:	Proposed Addition of Section 177.2 of the Regulations of the Commissioner of Education Relating to Disputes of Reimbursement Claims for Special Education Services Provided to Nonresident Parentally-Placed Nonpublic School Students with Disabilities
DATE:	October 1, 2008
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

 

 

 

Summary

 

Issue for Decision

 

              Should the Board of Regents add the proposed new section 177.2 of the Regulations of the Commissioner of Education, which prescribes a dispute resolution mechanism regarding claims for reimbursement of costs for special education provided to a nonresident student with a disability, who is parentally placed in a nonpublic school located in a school district other than the school district in which the student legally resides?

 

Reason for Consideration

 

              Compliance with State statute.

             

Proposed Handling

             

              The proposed regulation is being presented to the VESID Committee for adoption at the October Regents meeting.

 

 

Procedural History

 

The VESID Committee discussed the proposed regulation at the January and May 2008 Regents meetings.  A Notice of Proposed Rule Making was published in the State Register on May 7, 2008.   The proposed regulation was revised in response to public comment and discussed at the September 2008 Regents meeting.  A Notice of Revised Rule Making was published in the State Register on August 27, 2008.  The last day for receipt of public comment on the revised regulation was September 26, 2008.  No additional public comment was received on the revised proposed regulation. 

 

Background Information

 

Section 4 of Chapter 378 of the Laws of 2007 amended Education Law section 3602-c(7), relating to the provision of special education services to parentally-placed nonpublic school students.  Section 3602-c, consistent with the federal requirements of the Individuals with Disabilities Education Act (IDEA), requires the school district where a nonpublic school is located (school district of location) to be the provider of special education services to a student with a disability.  Subdivision 7 of section 3602-c entitles the school district of location to recover costs of special education services, costs of individual evaluations provided for the student and costs of committee on special education (CSE) administration directly from the district of residence of the student (district where the student resides).  The amount charged by the school district of location for services, evaluation and CSE administrative costs cannot exceed the actual cost to the school district of location, after deducting any costs paid with federal or State funds.  The law further requires the Commissioner to adopt regulations prescribing a dispute resolution mechanism that will be available to a school district of residence where such district disagrees with the amount of the costs charged by the school district of location.

 

The proposed regulation would add a new section 177.2 to Part 177 of the Regulations of the Commissioner of Education to:

 

• Establish the process by which a claim by a school district of location for reimbursement of costs to provide special education to a New York State resident student with a disability who resides in another school district may be made to the school district of residence; and

 

• Describe the process for an administrative review by the State Education Department when the school district of residence disputes the amount of the claim by the district of location.

 

The proposed regulation was revised in response to public comment and discussed at the September Regents meeting.  A copy of the proposed regulation terms are attached. 

 

Recommendation

 

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

 

              VOTED:  That section 177.2 of the Regulations of the Commissioner of Education is added, as submitted, effective November 13, 2008.   

 

Timetable for Implementation

 

              If adopted at the October Regents meeting, the proposed regulation will become effective on November 13, 2008.

 

 

Attachment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to Education Law sections 207 and 3602-c and Chapter 378 of the Laws of 2007

              Section 177.2 of the Regulations of the Commissioner of Education is added, effective November 13, 2008, as follows:

              §177.2 Claim by a school district to recover costs for special education provided to non-resident students pursuant to Education Law section 3602-c(2).

              (a)  Definitions.  For purposes of this section:

              (1)  "Non-resident student" means a student with a disability who is a legal resident of a school district in New York State, who is placed by the student's parent, guardian or person having legal custody of the student, in a nonpublic elementary or secondary school located in another school district in New York State. 

              (2)  "School district of residence" means the school district in which the non-resident student legally resides.

              (3)  "School district of location" means the school district in which the nonpublic elementary or secondary school attended by the non-resident student is located.

              (b)  A school district of location may recover from the school district of residence the special education services costs, evaluation costs and committee on special education administrative costs for a nonresident student in accordance with the following procedures:

              (1)  Where the parent , guardian or person legally having custody of a non-resident student has provided written consent to the sharing between the school district of location and the school district of residence, of personally identifiable information concerning such student from records collected or maintained pursuant to Part B of the Individuals with Disabilities Education Act, the school district of location may submit a claim, subject to the requirements of paragraph (3) of this subdivision, to the school district of residence for the evaluation costs, committee on special education administrative costs and special education services costs for the non-resident student.  The school district of residence shall pay the school district of location the costs claimed, unless the school district of residence disagrees with such costs and submits an application for administrative review  to the State Education Department pursuant to paragraph (4) of this subdivision; provided that nothing in this section shall be construed to authorize a school district of residence, during pendency of such administrative review, to withhold reimbursement to a school district of location of any part of a claim amount that is not disputed, and provided further that nothing in this section shall be construed to preclude the submission of an application for administrative review of a claim that has been paid but is still disputed. 

              (2)  Where the parent, guardian or person legally having custody of a non-resident student has refused to provide written consent to the sharing between the school district of location and the school district of residence, of personally identifiable information concerning such student from records collected or maintained pursuant to Part B of the Individuals with Disabilities Education Act, the school district of location may submit a claim to the State Education Department, on a form prescribed by the Commissioner and subject to the requirements of paragraph (3) of this subdivision, for reimbursement of evaluation costs, committee on special education administrative costs and special education services for the non-resident student.  Upon verification of the amount of such claim, the Commissioner shall certify the amount of the claim to the State Comptroller and request an intercept of funds from the school district of residence to the school district of location.

              (3)  The amount charged by the school district of location for the costs attributable to providing special education services to the non-resident student, the costs of conducting evaluation(s) of such student and the committee on special education administrative costs attributable to such student shall not exceed the actual cost to the school district of location, after deducting costs attributable to such student that are paid with federal or state funds.  The state aid attributable to such a student with a disability shall be determined in accordance with a methodology set forth in guidelines of the Commissioner.  The federal aid attributable to such a student with a disability shall be the per capita amount of funds received by the school district pursuant to sections 611 and 619 of Part B of the Individuals with Disabilities Education Act, 20 U.S.C.§§ 1411 and 1419 (United States Code, 2000 edition, Supplement V, Volume 3; Superintendent of Documents, U. S. Government Printing Office, Stop SSOP, Washington, D.C. 20402-0001: 2007 - available at the Office of Vocational and Educational Services for Individuals with Disabilities, Room 1624, One Commerce Plaza, Albany, New York 12234), as determined pursuant to guidelines of the Commissioner.

(4)  Administrative review of claim. 

(i)  Application. 

              (a)  A school district of residence that disagrees with the amount of costs charged by the school district of location may, after documented efforts to resolve the dispute with the district of location, submit an application for administrative review of such claim to the State Education Department on a form prescribed by the Department. 

              (1)  Claim concerning student residency.  A school district shall not submit an application for administrative review of a claim pursuant to this section for the purpose of determining the residency of a parentally placed nonpublic school student for whom a claim to such school district is made by the school district of location.  If such school district disputes that such student is a legal resident, the school district shall make a residency determination in accordance with the provisions of section 100.2(y) of this Title and this subclause.  The school district shall provide the district of location with an opportunity to submit evidence of the student's residence and shall consider such evidence, if any, in making its residency determination.  If the school district determines that the student is neither a resident of such district nor entitled to attend its schools pursuant to section 100.2(x) of this Title, such school district shall, within two business days, also provide written notice of its determination to the school district of location, consistent with the requirements in section 100.2(y) of this Title.  The school district of location may seek review of such residency determination in accordance with the procedures in section 100.2(y) of this Title, and may appeal such residency determination to the Commissioner of Education pursuant to Education Law section 310.

              (2)  Claim concerning special education services.  A school district of residence shall not submit an application for administrative review of a claim pursuant to this section for the purpose of disputing the type or amount of special education services provided to a student with a disability pursuant to the student's individualized education services program developed by the school district of location. 

              (b)  An application for administrative review by the Department, shall specify the reason(s) the school district of residence disagrees with the amount of costs charged by the school district of location and shall include documentation of its attempts to resolve the dispute prior to submission of the  application for administrative review by the Department.

(c)  The  application for administrative review shall be submitted not later than one year from the date of receipt of the claim or 30 days after final residency determination pursuant to section 100.2(y) of this Title and subclause (1) of clause (a) of subparagraph (i) of this paragraph, whichever shall occur later.  

(d)  An administrative review  of a claim pursuant to this section shall be the exclusive remedy for resolution of disputes concerning such claim, and the determination of the Commissioner or the Commissioner’s designee upon such review shall be the final determination of the Department.

              (ii)  Review process. 

              (a)  Upon receipt of  an application for administrative review of a claim, the Department shall require the school district of location to provide the following information where relevant to the reasons for the dispute of the claim: (a) certification that the costs attributable to such student represent the actual costs to the school district of location; and (b) a detailed accounting of such claim including, but not limited to, when the costs were incurred and their relationship to the reimbursable activities.  Upon request of the Department, the school district of location shall provide any applicable source documents to verify the claim.

              (b)  The review shall culminate in a determination by the Commissioner or the Commissioner’s designee and shall be limited to a determination of whether the claimed costs were attributable to the non-resident student and reflect the actual cost to the school district of location pursuant to paragraph (3) of this subdivision.  The school district of residence shall pay the costs to the school district of location, in accordance with the determination of the Commissioner or the Commissioner’s designee.  The Commissioner or the Commissioner’s designee may modify the amount claimed by the school district of location, as necessary, to reflect the actual cost to such school district.