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

TO:	The Honorable the Members of the Board of Regents
FROM:	Kathy A. Ahearn
COMMITTEE:	Full Board
TITLE OF ITEM:	June 2004 Regulatory Agenda/Review of Existing Rules
DATE OF SUBMISSION:	May 28, 2004
PROPOSED HANDLING:	Approval
RATIONALE FOR ITEM:	Statutory requirement
STRATEGIC GOAL:	Goal 2
AUTHORIZATION(S):

SUMMARY:

Section 202-d of the State Administrative Procedure Act (SAPA) requires that the State Education Department publish, each year, a regulatory agenda in the first January issue, and in the last June issue, of the State Register.

The June 2004 regulatory agenda is a list and brief description of the subject matter of each rule the Department is considering proposing during the remainder of 2004, but has not yet submitted a Notice of Proposed Rule Making. SAPA §202-d(2) provides that nothing in the statute precludes the Department from adopting a different rule from the one appearing in the regulatory agenda. If we do intend to adopt additional rules, the Department must indicate in the Notice of Proposed Rule Making that the rule was not under consideration when the regulatory agenda was submitted for publication. SAPA §202-d(2) also provides that nothing in the statute requires an agency to adopt a rule appearing in the regulatory agenda.

Also included in the regulatory agenda is a section relating to the "review of existing rules" of the Department pursuant to State Administrative Procedure Act §207. The statute requires that each State agency review, after five years and thereafter at five-year intervals, each of its rules that is adopted on or after January 1, 1997. A list of rules adopted in calendar year 1999 was included in the 2004 Regulatory Agenda that was published in the January 7, 2004 State Register, and the public was invited to comment on whether any listed rule should be modified or repealed, or continued without modification. The review of existing rules section for the June 2004 Regulatory Agenda includes a list of rules adopted in 1999 that the Department has determined should continue without modification.

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

VOTED: That the June 2004 Regulatory Agenda/Review of Existing Rules for the State Education Department be approved, as submitted.

Attachment

STATE EDUCATION DEPARTMENT

JUNE 2004 REGULATORY AGENDA

Pursuant to section 202-d of the State Administrative Procedure Act, the State Education Department presents its regulatory agenda for the remainder of calendar year 2004. All section and part references are to Title 8 of the New York Code of Rules and Regulations. The State Education Department reserves the right to add, delete or modify, without further notice, except as required by the State Administrative Procedure Act, any item or information presented herein as relating to the June 2004 Regulatory Agenda.

OFFICE OF ELEMENTARY, MIDDLE, SECONDARY AND CONTINUING EDUCATION

Amendment to the Commissioner's Regulations relating to the program and assessment requirements for middle-level education and schools with middle-level grades to implement Regents policy.

Amendment to section 156.3 of the Commissioner's Regulations to implement Chapter 270 of the Laws of 2003, relating to applying the safety regulations applicable to public school district school bus drivers to private school bus drivers.

Amendment to section 8.2 of the Rules of the Board of Regents and section 100.7 of the Commissioner's Regulations relating to the requirements for the conferral of a college degree pursuant to section 3.47 of the Rules of the Board of Regents.

Amendment to section 100.8 of the Commissioner's Regulations relating to local high school equivalency diplomas.

Amendment to section 164.2 of the Commissioner's Regulations relating to adult literacy education aid.

Amendment of section 100.2(p) of the Commissioner's Regulations relating to the definition of annual high school and high school alternative cohorts.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

James A. Kadamus

Deputy Commissioner

New York State Education Department

Office of Elementary, Middle, Secondary and Continuing Education

Room 875 EBA

Albany, New York 12234

(518) 474-5915

Amendment to the Commissioner's Regulations to conform to Chapter 91 of the Laws of 2002 and Chapter 123 of the Laws of 2003, relating to New York City School District governance.

Amendment to Part 113 of the Commissioner's Regulations relating to the powers and duties of the New York City Board of Education in determining certain appeals.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the above-proposed amendments by contacting:

Kathy A. Ahearn

Counsel and Deputy Commissioner for Legal Affairs

New York State Education Department

State Education Building, Room 148

Albany, New York 12234

(518) 474-6400

legal@mail.nysed.gov

OFFICE OF HIGHER EDUCATION

Amendment to Part 126 of the Commissioner’s Regulations to permit non-degree granting proprietary schools to measure student progress in non-degree credit hours.

Amendment to Part 80 of the Commissioner’s Regulations to add a Supplementary Certificate in the classroom teaching service.

Amendment to section 52.21 of the Commissioner’s Regulations relating to educational leadership programs.

Amendment to the Commissioner’s Regulations to implement Chapter 219 of the laws of 2003 which requires that instructional materials in colleges be made available in electronic format.

Amendment to Part 30 of the Commissioner’s Regulations to align Part 30 tenure areas with the Part 80 certificate titles.

Amendment to Part 120 of the Commissioner’s Regulations to implement the requirements of the Elementary and Secondary Education Act of 1965 as amended by the No Child Left Behind Act of 2001.

Amendment to the Commissioner’s Regulations relating to the title for the executive director of the Office of Teaching Initiatives.

Amendment to Part 80-3 of Commissioner’s Regulations relating to the preparation, certification and assessment requirements for school leaders.

Agency Representative

Information may be obtained, and written comments may be submitted, concerning the above-proposed amendments by contacting:

Johanna Duncan-Poitier

Deputy Commissioner

Office of Higher Education and Office of the Professions

New York State Education Department

West Wing, Second Floor Mezzanine

Albany, New York 12234

(518) 474-3862

OFFICE OF PROFESSIONAL EDUCATION

Amendment to section 3.57(b) of the Rules of the Board of Regents, conferring the Doctor of Medicine degree, to eliminate the requirement of three years of licensed practice.

Amendment to Part 17 of the Rules of the Board of Regents to conform to the new three member panel law.

Amendment to Part 18 of the Rules of the Board of Regents relating to the provision of services to nurses with substance abuse problems.

Amendment to Part 24 of the Rules of the Board of Regents relating to the application period for the restoration of professional licenses.

Amendment to Part 24 of the Rules of the Board of Regents relating to the waiver of citizenship requirement for licensure in veterinary medicine, dentistry, dental hygiene and pharmacy.

Amendment to Part 28 of the Rules of the Board of Regents relating to the determination of good moral character to streamline current procedures and processes.

Amendment to Part 31 of the Rules of the Board of Regents relating to the prohibition against illegal practice.

Amendment to Part 52 of the Commissioner’s Regulations relating to the qualifications of licensure qualifying programs for social work and the mental health professions.

Amendment to Part 59 of the Commissioner's Regulations relating to the general licensing provisions for the professions.

Amendment to Part 61 of the Commissioner’s Regulations relating to dental application time limits.

Amendment to Part 64 of the Commissioner's Regulations relating to the provision of services by nurse practitioners (elimination of alternate criteria for nurse practitioners).

Amendment to Part 65 of the Commissioner's Regulations relating to the scope of supervision provided by a podiatrist relating to x-ray services.

Amendment to Part 68 of the Commissioner's Regulations relating to mandatory continuing education for land surveyors.

Amendment to Part 70 of the Commissioner's Regulations relating to auditor independence and practice quality controls in public accountancy.

Amendment to Part 73 of the Commissioner's Regulations relating to education and examination requirements for licensure in chiropractic.

Amendment to Part 74 of the Commissioner’s Regulations relating to the implementation of the newly created professions of Licensed Master Social Worker, Licensed Clinical Social Worker, Licensed Marriage and Family Therapist, Licensed Mental Health Counselor, Licensed Psychoanalyst and Licensed Creative Arts Therapist.

Amendment to Part 76 of the Commissioner's Regulations relating to the supervision of occupational therapy assistants.

Amendment to Part 78 of the Commissioner's Regulations relating to licensure by endorsement in the profession of massage therapy.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above-proposed amendments by contacting:

Johanna Duncan-Poitier

Deputy Commissioner

Office of Higher Education and Office of the Professions

New York State Education Department

State Education Building

West Wing, Second Floor Mezzanine

Albany, NY 12234

(518) 474-3862

OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES

Amendment to Part 101 to repeal exemptions from attendance for students with disabilities.

Amendments to sections 200.1-200.16 and Part 201 relating to definitions, board of education responsibilities, committees on special education, evaluations, development and implementation of the individualized education program (IEP), procedural due process, continuum of services, the provision of education services to preschool students with disabilities and discipline provisions as may be required to conform to amendments to the Individuals with Disabilities Education Act.

Amendment to sections 200.1 and 200.6(d) through (h) relating to the continuum of services for students with disabilities.

Amendment to sections 200.2(d), and 200.6(i) relating to a school district placement of a student with a disability in an in-state or out-of-state school.

Amendment to sections 200.4 and 200.5 relating to mandating the format for required special education forms and notices and the individualized education program (IEP).

Amendment to section 200.7(a)(2)(i) and (ii) relating to the approval process for the private schools for reimbursement with public funds, eliminating conditional approval and revising the site visit requirements.

Amendment to section 200.21 relating to impartial hearing officer compensation rates.

Amendment to Part 200 to add a new section 200.22 relating to State monitoring, enforcement and technical assistance to school districts.

Amendment to Part 247 of the Regulations of the Commissioner of Education, relating to the vocational rehabilitation program operated pursuant to Title I of the Rehabilitation Act, as may be appropriate in order to conform to possible changes made when Congress reauthorizes that act this year.

Agency representative:

Information may be obtained, and written comments may be submitted, concerning any of the above-proposed amendments by contacting:

Rebecca Cort

Deputy Commissioner

New York State Education Department

Office of Vocational and Educational Services for Individuals with Disabilities

One Commerce Plaza, Room 1606

Albany, New York 12234

(518) 474-2714

rcort@mail.nysed.gov

OFFICE OF CULTURAL EDUCATION

Amendment to sections 3.27(f) and 3.30(e) of the Rules of the Board of Regents, relating to the chartering and registration of museums and historical societies, to clarify the standards that museums and historical societies must meet to obtain an absolute charter; provide that all-volunteer-run historical societies without a collection may be incorporated by the Regents rather than chartered; provide a process every five years to certify that institutions holding an absolute charter continue to meet Regents standards; and provide a peer review process in which institutions are visited, advised and assisted by qualified professionals from neighboring institutions.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above-proposed amendments by contacting:

Clifford A. Siegfried, Assistant Commissioner and Director

New York State Museum

Room 3140 Cultural Education Center

Albany, NY 12230

Phone (518) 474-5812

Amendment to Parts 185 and 188 of the Commissioner’s Regulations relating to Local Government Records Management and State Agency Records Management to update and correct various requirements affecting the management of records, including revising technical language, removing outdated requirements, authorizing the disposition of paper original or micrographic copies of records having a retention period of 10 years or more when those records are replaced by digitized images, and authorizing local governments to use locally-developed retention and disposition schedules in lieu of or in conjunction with schedules issued by the Commissioner provided that the consent of the Commissioner is obtained.

Amendment to section 188.21 of the Commissioner's Regulations relating to fees for records management services to State agencies, to make necessary changes and updates to the list of annual fixed fees paid by State agencies and to the charges for storage of records in the records center facility operated by the State Archives.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the above-proposed amendments by contacting:

Christine Ward

Assistant Commissioner for the State Archives

New York State Education Department

State Archives

Room 9C35

Cultural Education Center

Empire State Plaza

Albany, New York 12230

(518) 474-6926

Amendment to Part 90 of the Commissioner’s Regulations relating to library and library system programs and services.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the above-proposed amendment by contacting:

Janet M. Welch

State Librarian and Assistant Commissioner for Libraries

New York State Education Department

Office of Cultural Education

New York State Library, Room 10C34

Empire State Plaza

Albany, New York 12230

(518) 474-5930

jwelch2@mail.nysed.gov

OFFICE OF MANAGEMENT SERVICES

Amendment to the Commissioner’s Regulations pursuant to the Electronic Signatures in Global and National Commerce Act (P.L. 106-229) relating to performance standards to ensure accuracy, record integrity and accessibility of records that are required to be retained.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the above-proposed amendment by contacting:

David Walsh

Chief Information Officer

New York State Education Department

Office of Management Services

State Education Building, Room 121

Albany, New York 12234

(518) 486-1702

Amendment to the Commissioner's Regulations relating to school district payments to charter schools for educational costs, pursuant to section 102 of Part H of Chapter 83 of the Laws of 2002.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the above-proposed amendment by contacting:

Burt Porter

New York State Education Department

State Education Building, Room 139

Albany, New York 12234

(518) 486-2422

REVIEW OF EXISTING RULES PURSUANT TO STATE ADMINISTRATIVE PROCEDURE ACT SECTION 207

Section 207 of the State Administrative Procedure Act (SAPA) requires that each State agency review, after five years and thereafter at five-year intervals, each of its rules which is adopted on or after January 1, 1997 to determine whether such rules should be modified or continued without modification.

Pursuant to SAPA section 207, the State Education Department submits the following list of rules that were adopted during calendar year 1999 that the Department has reviewed and determined should be continued without modification. All section and part references are to Title 8 of the New York Code of Rules and Regulations.

OFFICE OF ELEMENTARY, MIDDLE, SECONDARY AND CONTINUING EDUCATION

Section 100.2(m) - Local Assistance Plans

Statutory authority: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (19) and 309(not subdivided).

Justification for continuation without modification: The regulation is necessary to satisfy the public school reporting requirements of the No Child Left Behind (NCLB) Act, 20 USC section 6311(h)(2), and achieve the Regents goal that all educational institutions will meet Regents high performance standards. The regulations were last amended in August 2003 to bring them into alignment with the requirements of NCLB.

Assessment of public comment: no comments were received.

Section 100.2(p) - Schools Under Registration Review

Statutory authority: Education Law sections 101 (not subdivided), 207 (not subdivided), 210 (not subdivided), 215 (not subdivided) and 305 (1) and (2).

Justification for continuation without modification: The regulation is necessary to meet the requirements of the No Child Left Behind (NCLB) Act, 20 USC section 6316, relating to school and district accountability and achieve the Regents goal that all educational institutions will meet Regents high performance standards. The regulations were last amended in August 2003 to bring them into alignment with the requirements of NCLB.

Assessment of public comment: no comments were received.

Part 119- Charter schools

Statutory authority: Education Law section 207(not subdivided), 2854(c) and 2856(1) and (2), and Chapter 4 of the Laws of 1998.

Justification for continuation without modification: The rule is necessary to implement statutory requirements by establishing standards for the calculation of school district obligations to charter schools and the manner in which unpaid obligations will be recovered by the State for payment to charter schools. The rule also establishes standards for participation in public employee retirement systems by those charter schools electing to do so.

Assessment of public comment: no comments were received.

Sections 155.1-155.21 - Comprehensive Public School Safety Program

Statutory authority: Education Law sections 207(not subdivided), 409-d(1) and (2), 409-e(1) through (4), 3602(3)(b) and 3641(4) and section 1 of Part B of Chapter 56 and sections 13 and 48 of Chapter 58 of the Laws of 1998.

Justification for continuation without modification: The regulations are necessary to comply with Chapters 56 and 58 of the Laws of 1998 to specify requirements for school districts to properly maintain, manage and improve public school facilities in order to provide sound educational environments for New York State's students, including the preparation of a five-year capital facilities plan that is updated annually; structural safety inspections; annual visual inspections; compliance with the Uniform Safety Standards for School Construction and Maintenance Projects and the Uniform Code of Public School Building Inspections, Safety Rating and Monitoring, and Comprehensive Public School Safety Program.

Assessment of public comment: no comments were received.

Sections 100.1 through 100.9 - State Learning Standards and Assessments and Graduation and Diploma Requirements

Statutory authority: Education Law sections 101 (not subdivided), 207 (not subdivided), 208 (not subdivided), 209 (not subdivided), 210 (not subdivided), 212(3), 215 (not subdivided), 305(1) and (2), 308 (not subdivided), 309 (not subdivided), 911 (not subdivided), 3204(2-a) and 4403(3).

Justification for continuation without modification: These regulations implement policy adopted by the Board of Regents to specify the State learning standards, the program and unit of study requirements and the assessment requirements for students at the elementary, middle and high school levels, including the requirements for high school graduation and earning a diploma. The regulations were last amended in November 2003 to reflect changes in Regents policy.

Assessment of public comment: no comments were received.

Sections 154.2 through 154.5 - Limited English Proficiency

Statutory authority: Education Law sections 207 (not subdivided), 215 (not subdivided), 3204(2), (2-a), (3) and (6), and 3602(10) and (22).

Justification for continuation without modification: The rule requires school districts that are claiming State aid for the instruction of students with limited English proficiency (LEP) to increase the amount of time for English language instruction to strengthen and improve bilingual education and free-standing English as a second language programs to help LEP students meet Regents standards and pass the new State Assessments. The regulations were amended in April 2003 to conform to the accountability provisions of the federal No Child Left Behind Act and to establish criteria for the identification and assessment of students with limited English proficiency through the use of the Language Assessment Battery-Revised test and the New York State English as a Second Language test.

Assessment of public comment: no comments were received.

Sections 154.4(a) and 154.5 - Students with Limited English Proficiency

Statutory authority: Education Law sections 207(not subdivided), 215(not subdivided), 2117(1), 3204(2), (2-a), (3) and (6), 3602(10) and (22).

Justification for continuation without modification: The amendment to section 154.4(a) was necessary to extend until September 1, 1999, the deadine for submission of the plan prescribed in section 154.4(a) that describes how the additional time requirements for English language instruction will be implemented in their free-standing English as a second language and bilingual education programs during the 1999-2000 and 2000-2001 school years. The rule also specified that the additional time requirements for English language instruction set forth in section 154.2(f) and (g) be implemented in 1999-2000 for grades 7-12 and in 2000-2001 for grades K-6. The addition of section 154.5 established a procedure to grant a one-year extension to certain schools with LEP students in grades 7-12 to the 2000-2001 school year, to implement additional time requirements for English language instruction in their bilingual and free-standing English as a second language programs contained in subdivisions 154.2(f) and (g).

Assessment of public comment: no comments were received.

OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES

Section 200.1 Definitions

Statutory authority: Education Law sections 207(not subdivided), 4401(1) - (11), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is needed in order to ensure compliance with federal regulations 34 CFR sections 300.5, 300.6, 300.7, 300.8, 300.9, 300.16, 300.19, 300.20, 300.24, 300.26, 300.15 and 300.571. The rule amended or added the following definitions relating to special education: adapted physical education, assistive technology device, assistive technology service, change in placement, child’s teacher, consent, consultant teacher, days, functional behavioral assessment, general curriculum, individualized education program, mediator, native language, parent, parent counseling and training, preschool student with a disability, prior notice, regular education teacher, related services, school health services, special class, specially designed instruction, special education, special education provider, special education teacher, student with a disability and travel training.

Assessment of public comment: no comments were received.

Section 200.2 Board of Education Child Find Responsibilities

Statutory authority: Education Law sections 207(not subdivided), 4401(1) - (11), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is needed in order to ensure compliance with 34 CFR section 300.454. The rule amended the requirements relating to procedures to locate, identify and evaluate all nonpublic private school students with disabilities.

Assessment of public comment: no comments were received.

Section 200.2(b) Written Policies of the Board of Education

Statutory authority: Education Law sections 207(not subdivided), 4401(1) - (11), 4403(3), 4410(13) and 4402(b)(3) as amended by Chapter 405 of the Laws of 1999.

Justification for continuation without modification: The rule is needed to align State regulations to State law which requires that schools provide pre-referral supports and services to ensure appropriate referrals of students who need special education. The rule added a requirement that the board of education adopt policies to ensure that students with disabilities be involved in and progress in the general education classes; establish a plan and policies for implementing school-wide approaches and pre-referral interventions prior to a referral for special education; and establish plans and policies for the appropriate declassification of students with disabilities.

Assessment of public comment: no comments were received.

Section 200.2(c) District Plans

Statutory authority: Education Law sections 207(not subdivided), 3602, 4401(1) - (11), 4403(3), 4410(13).

Justification for continuation without modification: The rule repealed the requirement for district plans for the period September 1, 1996 to September 1, 1998. The rule was no longer applicable as those dates had passed.

Assessment of public comment: no comments were received.

Section 200.2(h) Local Comprehensive System of Personnel Development (CSPD) Plan

Statutory authority: 34 CFR section 300.135 and Education Law sections 207(not subdivided), 4401(1) - (11), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is needed to ensure compliance with 34 CFR section 300.135, which requires that the State have in effect a comprehensive system of personnel development. The rule added the requirement for each board of education to annually submit to the State Education Department a plan that demonstrates that all personnel providing services to students with disabilities are adequately trained.

Assessment of public comment: no comments were received.

Section 200.3 Committees on Special Education

Statutory authority: 34 CFR section 300.344 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402(1)(b), 4403(3) and 4410(3).

Justification for continuation without modification: The rule is necessary to conform to federal regulations and State law relating to membership of the CSE, CPSE and Subcommittees. The rule amends the required membership of the Committee on Special Education (CSE), Committee on Preschool Special Education (CPSE) and the Subcommittee on Special Education to add members required by federal law and to provide that a parent of a student may decline the participation of the additional parent member.

Assessment of public comment: no comments were received.

Section 200.4(a) Referrals for Special Education Services

Statutory authority: Education Law sections 207(not subdivided), 4401(1)-(11), 4401-a as amended by Chapter 405 of the Laws of 1999, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align State regulations with Education Law section 4402 as amended by Chapter 405 of the Laws of 1999. The rule was amended relating to the withdrawal of a referral for special education to add that the building administrator and the parent could meet to determine if additional general education support services, including academic intervention services, could be provided to the student as an alternative to special education.

Assessment of public comment: no comments were received.

Section 200.4(b) Individual Evaluation

Statutory authority: 34 CFR section 300.532 and Education Law sections 207(not subdivided), 4401(1)-(11), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is needed to conform State regulations to federal regulations relating to the required components of evaluations. The rule was amended to add that the individual evaluation include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional and developmental information about the student and information related to enabling the student to participate and progress in the general education curriculum; and to add that the evaluation must include a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others.

Assessment of public comment: no comments were received.

Section 200.4(b)(4) and (5) Initial and Reevaluations

Statutory authority: 34 CFR section 300.533 and Education Law sections 201(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is needed to align State regulations to federal regulations in 34 CFR section 300.533. The rule amended the requirements relating to the determination of needed evaluation data for initial and reevaluations of students with disabilities.

Assessment of public comment: no comments were received.

Section 200.4(b)(6) Evaluation Procedures

Statutory authority: 34 CFR sections 300.532, 300.534 and 300.535 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13) of the Education Law.

Justification for continuation without modification: The rule is necessary to conform to federal regulations in 34 CFR sections 300.532, 300.534 and 300.535. The rule amended requirements to add that evaluations be administered by individuals who are knowledgeable about the test or procedures; that assessments not conducted under standard conditions must include a description of how the administration varied from standard administration; that no single procedure be used to determine a student’s eligibility for special education; that evaluations must be comprehensive and use technically sound instruments; that assessment tools and strategies are used that provide relevant information to determine a student’s educational needs; that a copy of the evaluation report be provided to the student’s parent; that the procedures for evaluating students suspected of having a learning disability must be consistent with federal regulations; and that the procedures for conducting expedited evaluations must meet the requirements of section 201.6 of the Regulations of the Commissioner.

Assessment of public comment: no comments were received.

Section 200.4(c) Eligibility Determinations

Statutory authority: 34 CFR section 300.534 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to conform State regulations with federal regulations in 34 CFR section 300.534. The rule adds requirements relating to eligibility determinations for a student with a disability that the parent must be given a copy of the evaluation report and the documentation of eligibility; that a student may not be determined eligible for special education if the determinant factor is lack of instruction in reading or math or limited English proficiency; that a school must evaluate a student prior to declassification (which does not include prior to graduation or aging out).

Assessment of public comment: no comments were received.

Section 200.4(d) IEP Recommendations

Statutory authority: 34 CFR 300.346 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to conform State regulations to federal regulations in 34 CFR section 300.346. The rule adds that, in developing the IEP, the Committee must consider the results of the initial or most recent evaluation, the student’s strengths, the concerns of the parents, the student’s results on State or district-wide assessments and other special considerations. The rule also adds that the IEP must include program modifications or supports for school personnel; testing accommodations a student needs in the administration of district-wide assessments and, consistent with Department policy, State assessments; and a statement of a particular device or service a student needs to receive a free appropriate public education.

Assessment of public comment: no comments were received.

Section 200.4(d)(4) IEP Development

Statutory authority: 34 CFR sections 300.344 and 300.349 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule regarding participation by private school representatives is necessary to conform to federal regulations in 34 CFR section 300.349. The rule regarding participation of a person knowledgeable about the evaluation is necessary to align State regulations to federal regulations in 34 CFR section 300.344, which requires each Committee meeting to include an individual who can interpret the instructional implications of evaluation results. The rule added a requirement that a school district use other methods to ensure participation by the private school or facility, such as individual or conference telephone calls, to ensure private school participation in an IEP meeting; and repeals the requirement that the Committee ensure the participation of a person knowledgeable about the individual evaluation conducted and the evaluation results for a student with a disability who has been evaluated for the first time.

Assessment of public comment: no comments were received.

Section 200.4(d)(4)(c) Least Restrictive Environment

Statutory authority: 34 CFR section 300.552 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align State regulations to federal regulations in 34 CFR section 300.552. The rule added that, in selecting the least restrictive environment, consideration must be given to any potential harmful effect on the student or on the quality of services that he or she needs; and that a student with a disability may not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.

Assessment of public comment: no comments were received.

Section 200.4(e) IEP Implementation

Statutory authority: 34 CFR sections 300.301 and 300.342 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to ensure IEP implementation in a timely manner consistent with the requirements in 34 CFR sections 300.301 and 300.342. The rule was amended to add that there may be no delay in implementing a student’s IEP, including any case in which the payment source for providing or paying for special education to the student is being determined; and that teachers and other providers must have access to a copy of the student’s IEP. (This later rule was amended in 2003 consistent with Chapter 408 of the Laws of 2003.)

Assessment of public comment: no comments were received.

Section 200.4(e) Annual Review and Reevaluations

Statutory authority: 34 CFR sections 300.346, 300.535, 300.536 and 300.552 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align State regulations with federal regulations in 34 CFR sections 300.346, 300.535, 300.536 and 300.552. The rule was amended to require that a student’s placement in the least restrictive environment be a consideration in the annual review and that the results of any reevaluation must be addressed by the CSE or CPSE in a meeting.

Assessment of public comment: no comments were received.

Section 200.4(g) IEP for a Student Placed in a Child Care Institution by Other Agency

Statutory authority: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: This rule is necessary to be consistent with amended section 200.4(d) of the Regulations of the Commissioner of Education. This rule amended the requirements for IEP information developed by the school district where the student last attended.

Assessment of public comment: no comments were received.

Section 200.5 Due Process Procedures

Statutory authority: 34 CFR sections 300.500 through 300.515 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3), 4404, 4404-a and 4410(13).

Justification for continuation without modification: The rule is necessary to align State regulations with federal law and regulations. This rule repealed section 200.5 and replaced it with a new section 200.5 relating to prior notice, consent, notice of meetings, parent participation in CSE meetings, confidentiality of personally identifiable data, procedural safeguards notice, independent educational evaluations, mediation, impartial hearings, appeal to a State review officer of the State Education Department, State complaint procedures and surrogate parents.

Assessment of public comment: no comments were received.

Section 200.6(a) Continuum of Services

Statutory authority: 34 CFR sections 300.550 through 300.552 and Education Law sections 207(not subdivided), 4401(1) - (11), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule clarifies that special education includes services that could be provided in a student’s general education classes to ensure a student’s placement in the least restrictive environment. The rule amends requirements to add that special education services could be provided in a general education class.

Assessment of public comment: no comments were received.

Section 200.6(d) Consultant Teacher Services

Statutory authority: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to ensure students with disabilities are able to receive consultant teacher services, as appropriate, in combination with other special education services such as resource room and related services. The rule repealed the requirement that a student with a disability be enrolled full-time in general education classes in order to be provided consultant teacher services and replaced the term “occupational education” with “career and technical education.”

Assessment of public comment: no comments were received.

Section 200.6(e) Related Services

Statutory authority: 34 CFR section 300.347 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align State regulations with federal regulations at 34 CFR section 300.347. The rule provides that the location of the related services must be documented in the IEP.

Assessment of public comment: no comments were received.

Section 200.6(g) Special Classes

Statutory authority: Education Law sections 207(not subdivided), 4402(2)(d) and (6), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary since the variance is applicable only to the extent that the Legislature extends the sunset provision and to comply with changes to State law. Therefore, any reference to a particular year required an annual amendment to State regulations. The rule provides that a variance from the special class sizes for middle and secondary students can be implemented to the extent authorized by law, repealing references to the school years 1995-96 and 1996-97. The rule also provides that a special class with 15 students in New York City could only be increased by one additional student through this variance process.

Assessment of public comment: no comments were received.

Section 200.6(h) Home and Hospital Instruction

Statutory authority: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to ensure that the CSE considers the least restrictive environment and the unique needs of a student with a disability when making a home or hospital instruction recommendation. The rule adds that a student with a disability on home and/or hospital instruction must receive instruction and related services as recommended on the IEP and that a student shall only be recommended for home and/or hospital instruction if that is the least restrictive environment for the student.

Assessment of public comment: no comments were received.

Section 200.7 Approval of Private Schools for Students with Disabilities

Statutory authority: 34 CFR sections 300.401 and 300.519 through 300.529 and Education Law sections 207(not subdivided), 3214(3)(c), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to conform to federal regulations 34 CFR sections 300.401 and 300.519 through 300.529. The rule requires that the school conduct and discipline procedures in an approved school, a State-operated school and a State-supported school must be consistent with section 100.2(l) and Part 201 of the Commissioner’s Regulations.

Assessment of public comment: no comments were received.

Section 200.7 State-Operated Schools

Statutory authority: 34 CFR sections 300.344 and 300.506 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to ensure compliance with federal regulations 34 CFR sections 300.344 and 300.506. The rule conforms the required members of the multidisciplinary team of a State-operated school to the required members in federal regulations 34 CFR section 300.344 and provides that a parent of a child in a State-operated school may request mediation to resolve a dispute.

Assessment of public comment: no comments were received.

Section 200.8 State Assistance for Instruction of Students with Disabilities

Statutory authority: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to make technical corrections to cross citations; to clarify the term “days” consistent with the amended definition in section 200.1 of the Commissioner’s Regulations; and to replace the term “triennial evaluation” with the term “reevaluation.”

Assessment of public comment: no comments were received.

Section 200.16(c) Individual Evaluation - Preschool Students with Disabilities

Statutory authority: 34 CFR section 300.534 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to conform State regulations to 34 CFR section 300.534. The rule made technical corrections to cross citations and certain terms; provided that the summary report of the evaluation not include a recommendation as to location of services; repealed the requirement that the parent must request the approved evaluator to provide the parent with a copy of the evaluation summary; and required that the CPSE provide a copy of the evaluation report and the documentation of eligibility to the parent, for purposes of eligibility and continuing eligibility determinations.

Assessment of public comment: no comments were received.

Section 200.16(d) Recommendation – Preschool Student with a Disability

Statutory authority: Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Justification for continuation without modification: The rule makes technical corrections to cross citations and certain terms and provides that the board of education must notify the parent if it sends the recommendation back to the CPSE.

Assessment of public comment: no comments were received.

Section 200.16(e) Annual Review – Preschool Student with a Disability

Statutory authority: Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align cross citations with amended sections in the Regulations.

Assessment of public comment: no comments were received.

Section 200.16(g) Procedural Due Process – Preschool Student with a Disability

Statutory authority: 34 CFR sections 300.500 through 300.505 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to clarify procedural safeguards and notice requirements as they relate to preschool students with disabilities. The rule requires that a procedural safeguards notice be provided to a parent upon initial referral, each notification of an IEP meeting, upon reevaluation of the child and upon receipt of a request for an impartial hearing; and requires that the notice upon initial referral must request consent to the proposed evaluation and advise the parent of the right to consent or withhold consent to the evaluation and initial provision of services to a student not previously identified, and indicate that if the parent does not provide such consent, no further action will be taken by the CPSE until consent is obtained.

Assessment of public comment: no comments were received.

Section 200.16(g)(3) Notice of Meetings – Preschool Student with a Disability

Statutory authority: 34 CFR section 300.345 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to ensure the CSE meeting notice is provided in accordance with section 200.4(c) of the Commissioner’s Regulations.

Assessment of public comment: no comments were received.

Section 200.16(g)(7) Mediation – Preschool Student with a Disability

Statutory authority: 34 CFR section 300.506 and Education Law section 207(not subdivided), 4403(3) and 4404-a of the Education Law.

Justification for continuation without modification: The rule is necessary to ensure compliance with 34 CFR section 300.506 and section 4404-a of the Education Law. The rule provides that the board of education must ensure that mediation sessions are available to the parent of a preschool child.

Assessment of public comment: no comments were received.

Section 200.16(g)(10) State Complaints – Preschool Student with a Disability

Statutory authority: 34 CFR sections 300.660 through 300.662 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to ensure compliance with federal regulations in 34 CFR sections 300.660 through 300.662. The rule provides that State complaint investigations shall be conducted in accordance with section 200.5(m) of the Commissioner’s Regulations.

Assessment of public comment: no comments were received.

Section 200.6(h) Continuum of Services – Preschool Student with a Disability

Statutory authority: Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align this section with other amended sections of the Commissioner’s Regulations by correcting certain cross citations and terms.

Assessment of public comment: no comments were received.

Section 200.20 Approval, Operation and Administration of Preschool Programs

Statutory authority: Education Law sections 207(not subdivided), 4401(1)-(11), 4202, 4403(3) and 4410(13).

Justification for continuation without modification: The rule is necessary to align this section with other amended sections of Part 200 of the Commissioner’s Regulations by correcting certain cross citations and the name of the State’s special education office.

Assessment of public comment: no comments were received.

Part 201 – Procedural Safeguards for Students with Disabilities Subject to Discipline

Statutory authority: 34 CFR sections 300.121 and 300.519 through 300.529 and Education Law sections 207(not subdivided), 4403(3) and 3214(3)(c).

Justification for continuation without modification: The rule is necessary to align State regulations with federal regulations and State law relating to the discipline of a student with a disability. The rule was added to define terms relating to disciplinary actions of students with disabilities; to establish the requirements for CSEs to conduct functional behavioral assessments and develop and implement behavioral intervention plans for students with disabilities; to establish the requirements for CSEs to conduct manifestation determinations; to establish the protections for students presumed to have a disability for discipline purposes; to establish general procedures for suspensions and removals of students with disabilities, including parental notice, five school day suspensions or removals, ten school day suspensions or removals, exceptions for patterns of suspensions or removals, and change in placement to an interim alternative educational setting (IAES) for behavior involving weapons, illegal drugs or controlled substances; authority of impartial hearing officers to order a change in placement to an IAES in a dangerous situation; coordination with superintendent’s hearing and other due process procedures applicable to all students; provision of services during suspensions; and expedited due process hearings.

Assessment of public comment: no comments were received.

Part 247 – Vocational Rehabilitation Program

Statutory authority: Education Law sections 207(not subdivided) and 1004(1).

Justification for continuation without modification: These regulations are necessary to ensure that the vocational rehabilitation program is conducted according to federal requirements set forth in the 1998 amendments to the Rehabilitation Act. This rule enacted certain amendments to Part 247 to conform State regulations relating to the vocational rehabilitation program to changes in federal law made in 1998 by the reauthorization of the Rehabilitation Act (Public Law 105-22).

Assessment of public comment: no comments were received.

OFFICE OF HIGHER EDUCATION

Amendment of Section 145-2.1 of the Regulations of the Commissioner of Education Relating to TAP for Part-Time Students with Disabilities

Statutory authority: Education Law sections 207(not subdivided) and 661(4)(d).

Justification for continuation without modification: Section 145-2.1(a)(4) defines part-time study for State student financial aid purposes (TAP, etc.) for students with disabilities, as defined in the federal Americans with Disabilities Act (42 USC 12102(2)), as enrollment for at least 3 but less than 12 semester hours per semester or the equivalent, or at least 2 but less than 8 semester hours per quarter. Chapter 332 of the Laws of 1998 amended subdivision (4) of section 661 of the Education Law to eliminate the full-time attendance requirement for students with disabilities. The law did not specify the minimum course load that students with disabilities must carry. Section 145-2.1(a) defines part-time study as enrollment for at least six semester hours in a semester. However, the sponsors of Chapter 332 advised the State Education Department that the intent was for students with disabilities to be eligible for TAP providing they enroll for at least three semester hours, necessitating the amendment to the regulation. Based on guidance from Office of Counsel, it was also necessary to include the reference to the federal statute contained in Education Law and specify that, to be eligible, students must be determined to be disabled in accordance with the Americans with Disabilities Act.

Assessment of public comment: no comments were received.

Section 52.21(b) of the Regulations of the Commissioner of Education - Registration of Programs for Preparing Classroom Teachers

Statutory authority: Education Law sections 207 (not subdivided), 210 (not subdivided), 215 (not subdivided), 305(1) and 3004(1).

Justification for continuation without modification: In 1998, the Regents enacted “Teaching to Higher Standards: New York’s Commitment.” This policy statement provided the framework for sweeping changes to pre-service and in-service teacher education. In enacting these policy changes, the Regents were acknowledging the vital role played by the classroom teacher in improving student learning and achievement. The Regents believed there was a need to create a stronger linkage between the teacher preparation programs and the Regents learning standards for all students. In addition, it was important that all teachers be prepared to teach all students, especially students with disabilities and English language learners. As the State moved to establish rigorous learning standards for all students and increase graduation requirements, the Regents believed that such sweeping reforms can only be successful if all our students had access to highly qualified and certified teachers.

Assessment of public comment: no comments were received.

Amendment of Section 100.2(dd) of the Regulations of the Commissioner of Education Relating to Annual Professional Performance Reviews

Statutory authority: Education Law sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2), and 3604(8).

Justification for continuation without modification: In 1998, the Regents enacted “Teaching to Higher Standards: New York’s Commitment,” which was the blueprint for the redesign of both pre-service and in-service teacher education in New York State. One of the critical components of this policy statement was to ensure that each teacher received a rigorous annual professional performance review which assessed the teacher’s overall performance in the classroom. With the Regents sweeping reforms to K-12 educational system, they acknowledged the need to ensure that all teachers remain current and effective in the classroom to ensure that all students will attain the Regents learning standards and graduation requirements. The requirement for annual professional performance review was strengthened by ensuring that critical components of the teacher’s practice in the classroom were assessed, on an annual basis, by the district. The more rigorous annual professional performance review was another component to ensure that teachers remain current and effective in the classroom.

The purpose of the addition of Section 100.2(dd) of the Commissioner’s Regulations is to require each school district and BOCES to establish a prescribed plan for the annual professional performance review of its teachers providing instructional services or pupil personnel services. The amendment requires the governing body of each school district and BOCES to adopt a plan for the annual professional performance review of its teachers providing instructional service or pupil personnel services by September 1, 2000. The amendment prescribes criteria that school districts or BOCES must use for the evaluation of teachers providing instructional services in the following areas: content knowledge, preparation, instructional delivery, classroom management, student development, student assessment, collaboration, and reflective and responsive practice. Districts may supplement these State criteria with locally developed criteria, and the amendment permits a variance from the State criteria upon a finding by the Commissioner that the school district or BOCES has demonstrated a local model for the evaluation of teachers providing instructional services that has produced successful results. The amendment also requires the plan to describe the methods that the school district or BOCES employs to assess teachers’ performance. The amendment requires the plan to describe how the school district or BOCES addresses the performance of teachers whose performance is evaluated as unsatisfactory, and requires the development of a teacher improvement plan for teachers so evaluated, which is to be developed by the district or BOCES in consultation with the teacher. In addition, the plan must describe how the school district or BOCES provides training in good practice for the conducting of performance evaluations to staff who perform them, or alternatively, shall state the fact that the school district or BOCES permits such personnel to participate in training in this subject offered by the State Education Department. Finally, pursuant to the Taylor Law, the amendment states that the procedures for the annual professional performance review are subject to collective bargaining.

Assessment of public comment: no comments were received.

Section 100.2(o) of the Regulations of the Commissioner of Education - Professional Development Plans

Statutory authority: Education Law sections 101(not subdivided), 207(not subdivided), 215 (not subdivided), 305(1) and (2).

Justification for continuation without modification: In 1998, the Board of Regents enacted “Teaching to Higher Standards: New York’s Commitment,” which was the blueprint for the redesign of both teacher pre-service and in-service programs in New York State. The Regents recognized the need to ensure that all teachers remain current with their professions and be given professional development focused on their capacities and the needs of their students. The Regents were guided by research which demonstrated that professional development, when locally developed, and focusing on student learning needs did improve the quality of instruction and student achievement. The enactment of the requirement of professional development plans ensured that local districts would collaborate to develop meaningful professional development to meet the needs of their teachers and students.

The rule requires each school district and BOCES to have a professional development plan, which describes how they will provide all of their teachers with substantial professional development opportunities. For plans covering the time period February 2, 2004 and thereafter, each school district or BOCES is required to describe in its plans how it will provide teachers it employs holding a professional certificate with opportunities to maintain such certificates in good standing based upon successfully completing 175 hours of professional development every five years. The intent is for school districts and BOCES to offer a menu of professional development opportunities to their teachers. Such opportunities may be in a variety of formats and offered by a variety of providers and include course work paid for by the school district or BOCES or the teacher, depending on local arrangements and how professional development offered outside the school day is collectively bargained. The amendment requires the professional development plan to be adopted by September 1, 2000 and annually thereafter. It requires the plan to be developed through collaboration with a professional development team, including the superintendent of schools or district superintendent or their designees, school administrators, teachers, at least one parent and curriculum specialist, a representative of a higher education institution provided that a qualified candidate is available, and others. A majority of the members of the professional development team must be teachers selected by their collective bargaining unit. Among other items, the plan must describe the alignment of professional development with New York standards and assessments, student needs, teacher capacities, and include a needs analysis, goals, objectives, strategies, activities and evaluation standards. It must also describe the manner in which the school district or BOCES will measure the impact of professional development on student achievement and teachers’ practices.

Assessment of public comment: no comments were received.

Part 86- Albert Shanker National Board for Professional Teacher Standards Certification Grant Programs

Statutory authority: Education Law sections 207(not subdivided) and 3004-a(4).

Justification for continuation without modification: The Shanker Grants help support rigorous and meaningful professional development for teachers, whether or not they become Board certified. The National Board process (portfolio and assessment center activities) causes teachers to consider student work as a consequence of their own work according to NBPTS standards, and the reinculcated habits of analytical and reflective practice appear to translate reliably into perceptions of changed teaching behaviors stimulating the growth of teachers content knowledge, knowledge of child development, and actual employment of a broader array of more effective strategies to facilitate teaching and learning across diverse student populations. Continued Department support for Part 86 and the Albert Shanker Grant is consistent with current Regents policy initiatives, NCLB, and seemingly omnipresent efforts to raise and maintain standards for teaching and learning with a level of reliability heretofore unattained.

Part 86 of the Regulations of the Commissioner of Education defines the rights, obligations, application procedures, and grant delimitations pertaining to the Albert Shanker Grant, pursuant to Education Law section 3004-a, establishing such grant to support and encourage qualified New York State teachers seeking a National Teaching Certificate from the National Board for Professional Teaching Standards (NBPTS.) The National Board for Professional Teaching Standards (NBPTS) is a nonprofit organization of teachers and other education stakeholders created in 1987 to assist in improving student learning through the establishment of higher, more rigorous standards of knowledge and performance for teachers. By defining and recognizing highly accomplished practice, a certificate awarded by the National Board attests that a teacher has been judged by his or her peers as one who meets meaningfully high and rigorous standards of knowledge and performance. He or she has demonstrated the ability, in a variety of settings, to make sound professional judgments about students' learning needs and to act effectively on those judgments. The NBPTS national teaching certificate has been recognized by many states as valid in lieu of a state teaching certificate and, in some, as worthy of a salary increment in recognition of ones’ status as a "master teacher." The New York State Board of Regents accepts the NBPTS national teaching certificate in reciprocity towards a permanent NYS teaching certificate in a comparable subject title.

Eligible teachers receiving the Shanker grant are awarded up to $2,000 toward the $2,300 registration fees in support of this effort. All but $300 of such registration fees are paid directly to the National Board for Professional Teaching Standards by SED. Individual candidates or their employing school districts also may be reimbursed for prior, authorized fees paid and/or for other approved expenditures in support of this effort, including up to three days for substitute teacher salary reimbursements, to a maximum of an additional $500 for each candidate.

Assessment of public comment: no comments were received.

OFFICE OF THE PROFESSIONS

Sections 3.3, 3.9, 17.1, 17.2, 17.4, 17.5, 17.6, 17.7, 17.9, 28.2, 28.3 and 28.6 - Change in title of Chief Administrator of the Office of Professional Discipline and applicability of consent order and license surrender procedures to physicians, physician assistants and specialist assistants

Statutory authority: Education Law sections 104 (not subdivided), 207 (not subdivided) and 6506(1) and (8) and Chapter 606 of the Laws of 1991.

Justification for continuation without modification: The rule is needed to reflect a change in the internal organization of the Office of Professional Discipline. The rule also prescribes that the existing procedures set forth for physicians, physician assistants and specialist assistants are applicable to cases in which charges of professional misconduct were served on or before July 26, 1991, the effective date of Chapter 606 of the Laws of 1991. This is necessary because Chapter 606 provided the Department of Health with the responsibility for administering professional discipline proceedings against such licensees in cases served after that date.

The rule changes the title of the chief administrator of the Office of Professional Discipline from "Executive Director of the Office of Professional Discipline" to "Director of the Office of Professional Discipline" and clarifies the applicability of the consent order and license surrender procedures to physicians, physician assistants and specialist assistants.

Assessment of public comment: no comments were received.

Sections 3.47 and 3.50 of the Commissioner's Regulations - Doctor of Audiology

Statutory authority: Education Law sections 207 (not subdivided), 210 (not subdivided), 218(1), 224(4) and 8206(2).

Justification for continuation without modification: The rule is necessary to prescribe requirements for the conferral of the Doctor of Audiology (Au.D.) degree, for completion of a professionally oriented doctoral program in audiology.

Assessment of public comment: no comments were received.

Sections 3.47 and 3.50 of the Commissioner's Regulations - Doctor of Physical Therapy

Statutory authority: Education Law sections 207 (not subdivided), 210 (not subdivided), 218(1), 224(4) and 6734(b).

Justification for continuation without modification: The rule is necessary to prescribe requirements for the conferral of the Doctor of Physical Therapy (D.P.T.) degree, for completion of a professionally oriented doctoral program in physical therapy.

Assessment of public comment: no comments were received.

Sections 17.5, 17.6, 24.2 and 24.7 of the Rules of the Board of Regents - Professional discipline proceedings

Statutory authority: Education Law sections 201(not subdivided), 6504 (not subdivided), 6506(1), (4) and (10), and 6507(4)(h).

Justification for continuation without modification: The rule codifies the existing procedures for the settling of cases of professional misconduct. The rule clarifies the role of the Committee on the Professions in consent order and license surrender procedures, which resolves charges of professional misconduct in disciplinary proceedings conducted pursuant to Title VIII of the Education Law.

Assessment of public comment: no comments were received.

Sections 29.2 and 29.7 of the Rules of the Board of Regents and section 63.6 of the Commissioner's Regulations - Pharmacy

Statutory authority: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6506(1) and (9), 6507(2)(a), 6509(9), 6801 (not subdivided), 6803 (not subdivided), 6804(a) and (b), 6806(1), 6808(2)(a)(3) and 6810(1).

Justification for continuation without modification: The rule is needed to ensure that the public will be protected in its use of pharmaceutical services, while permitting pharmacies to employ recent developments in the electronic technologies. The requirements for the use of a common electronic file or database used to maintain dispensing information are needed to ensure the confidentiality of this information. The rule also frees pharmacists and pharmacy interns from routine tasks so they may have sufficient time to directly interact with patients, assess patient profiles and provide enhanced patient counseling. The rule is also needed to specify additional requirements for the offering of counseling by pharmacists and pharmacist assistants.

The rule authorizes the electronic transmission of prescriptions and the transfer of prescriptions between pharmacies for refills; establishes requirements for the use of a common electronic database used to maintain dispensing information; removes outdated references in registration requirements for pharmacies; authorizes the waiver of regulations to permit demonstration projects; authorizes unlicensed persons to enter and retrieve prescription data, under the supervision of a pharmacist, and clarify their permitted duties; increases from one to two the number of unlicensed persons a pharmacist may supervise; amends requirements for the offering of counsel to patients by pharmacists or pharmacy interns; and updates titles of unlicensed health professions in Regents Rule section 29.2.

Assessment of public comment: no comments were received.

Section 61.15 of the Commissioner's Regulations - Dentists

Statutory authority: Education Law sections 207(not subdivided), 6502(1), 6504(not subdivided), 6507(2)(a), and 6604-a(2) and (4).

Justification for continuation without modification: The rule implements the provisions of Chapter 354 of the Laws of 1998, which amended Education Law section 6604-a(4), by establishing standards for the approval of sponsors of continuing education relating to facilities, equipment and financial and physical resources, and otherwise implements statutory provisions.

Assessment of public comment: no comments were received.

Section 66.5 of the Commissioner's Regulations - Optometry

Statutory authority: Education Law sections 207(not subdivided), 6502(1), 6504(not subdivided), 6507(2)(a), (3)(a) and (4)(a), 6508(1) and (2), 7101(not subdivided), 7101-a(1)(f), (3)(4), (7), (9), (9-a) and (11), and sections 3 and 4(b) of Chapter 517 of the Laws of 1995.

Justification for continuation without modification: The rule clarifies and implements the requirements of Education Law section 7101-a and Chapter 517 of the Laws of 1995, relating to the certification of optometrists to use phase two therapeutic pharmaceutical agents, including clarifying clinical training requirements, examination requirements, reporting requirements and continuing education requirements.

Assessment of public comment: no comments were received.

Section 66.5 of the Commissioner's Regulations - Optometry

Statutory authority: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a) and 7101-a(1)(f), (10)(c) and (12).

Justification for continuation without modification: The rule specifies carbonic anhydrase inhibitors and prostaglandin analogs, as two additional classes of drugs that an optometrist who is certified to use phase two therapeutic pharmaceutical agents may use and prescribe to treat patients for glaucoma.

Assessment of public comment: no comments were received.

Section 75.1 of the Commissioner's Regulations - Speech Language Pathology and Audiology

Statutory authority: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6506(1) and (10), 6507(2)(a) and 8206(2).

Justification for continuation without modification: The rule is necessary to establish and clarify the necessary educational requirements for licensure in speech-language pathology and/or audiology by defining the amount of study that is equivalent to the completion of a master's degree program. The rule also redistributes the education practicum hours to be compatible with national standards.

Adjusting the definition of study that is equivalent to a master's degree program in the field from a master's to a graduate degree permits candidates for licensure who have graduated from a doctoral program in the field without receiving a master's degree to become licensed under the education equivalency requirements without requiring those individuals to return to school to receive a master's degree.

Redistribution of the education practicum hours to be compatible with national standards allows individuals who have completed education requirements at colleges or universities outside of New York State to be eligible for licensure in New York State without requiring those individuals to complete additional practicum hours.

Assessment of public comment: no comments were received.

OFFICE OF MANAGEMENT SERVICES

Section 3.2 of the Commissioner's Regulations - Standing Committees of the Board of Regents

Statutory authority: Education Law section 207(not subdivided).

Justification for continuation without modification: The rule reorganizes the committee structure of the Board of Regents to abolish the Committee on Administration, Law and Legislation (ALL) and to establish the Committee on Quality. The Board of Regents abolished the ALL Committee and established the Committee on Quality in 1999. The rule merely conforms the Regents Rules to this change in internal organization of the Board of Regents.

Assessment of public comment: no comments were received.

Sections 187.1 and 187.2 of the Commissioner's Regulations - Freedom of Information Law and Personal Privacy Protection Law

Statutory authority: Education Law sections 207(not subdivided) and 305(6) and Public Officers Law sections 87(1)(b), 94(1)(j) and 94(2)(c).

Justification for continuation without modification: The rule updates information relating to the State Education Department employee who is designated as the Department's Records Access Officer, responsible for ensuring compliance with the Freedom of Information Law and the Personal Privacy Protection Law (Articles 6 and 6-A of the Public Officers Law), and to update the addresses of the offices designated to receive requests for the Department's records. The rule updated the offices and office addresses within the State Education Department for submissions of requests under the Freedom of Information Law and the Personal Privacy Protection Law. The rule was amended again in May 2004 to further update the offices and addresses.

Assessment of public comment: no comments were received.

Section 187.7 of the Commissioner's Regulations - Freedom of Information Law

Statutory authority: Education Law sections 207(not subdivided) and 305(6) and Public Officers Law sections 87(1)(b).

Justification for continuation without modification: The rule revised the fee charged by the Department to produce computer records requested under the Freedom of Information Law. The rule changed the time-charge to reflect the actual cost incurred by the Department.

Assessment of public comment: no comments were received.

OFFICE OF CULTURAL EDUCATION

Sections 185.5 and 185.11 of the Commissioner's Regulations - Local Government Records Management

Statutory authority: Education Law section 207(not subdivided) and Arts and Cultural Affairs Law section 57.25(2)

Justification for continuation without modification: The rule is necessary to prescribe retention and disposition schedules for cities, towns, villages and fire districts pursuant to section 57.25(2) of the Arts and Cultural Affairs Law. The regulations adopted in 1999 were subsequently amended in April 2003 to provide for a revised Records Retention and Disposition Schedule MU-1.

Assessment of public comment: no comments were received.