In anticipation that New York will be required to conform to these
provisions in IDEA, the Department has proposed legislation that would
begin with the 2006-07 school
year. In this way, school districts
where nonpublic schools are located would have sufficient time to prepare for
the transfer of responsibilities for consultation with nonpublic schools, child
find, equitable provision of service responsibility and expenditure of federal
funds. The proposed legislation
would require the school district where the student resides to evaluate the
student, develop the IEP and contract with the district where the nonpublic
school is located to provide services.
This proposal would result in one school district consulting with and
providing services to students with disabilities who attend nonpublic schools,
while ensuring that special education services to such students are not
diminished and that the school districts where the nonpublic schools are located
do not incur local costs to provide services to students who are not residents
of their school districts. The
proposed regulations would revise the procedures to locate, identify and
evaluate such students and to report student specific information consistent
with Education Law.
Pursuant to
Education Law sections 207, 3208, 3209, 3214, 3602-
c, 3713, 4002,
4308, 4355, 4401, 4402, 4403, 4404, 4404-a and 4410
1.
Subparagraph (iv) of paragraph (4) and subparagraphs (i), (v) and (vi) of
paragraph (7) of subdivision (x) of section 100.2 are amended, effective
September 29, 2005, as follows:
(iv)
immediately contact the school district where the child’s records are
located for a copy of such records and coordinate the transmittal of records
for students with disabilities consistent with section 200.4(e)(8)(iii) of this
Title;
(i)
Enrollment. Each school
district shall:
(a)
ensure that homeless children and youth are not segregated in a separate
school, or in a separate program within a school, based on their status as
homeless; [and]
(b)
to the extent feasible and consistent with the requirements of paragraphs
(2) and (4) of this subdivision, keep a homeless child or youth in the school of
origin except when doing so is contrary to the wishes of the child’s or youth’s
parent or guardian; and
(c)
a student with a disability as defined in section 200.1(zz) of this
Title, who transfers school districts within the same academic year, is provided
with a free appropriate public education, including services comparable to those
described in the previously held individualized education program (IEP) pursuant
to section 200.4(e)(8) of this Title.
(e)
Assistive technology device means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified, or
customized, that is used to increase, maintain, or improve the functional
capabilities of a student with a disability. Such term does not include a medical
device that is surgically implanted, or the replacement of such a
device.
(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(i)(3)(vii)] 200.5(j)(3)(vii) 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(j)] 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(i)(3)(ix)] 200.5(j)(3)(ix) of this Part.
(t)
General curriculum means the same general education curriculum as
for students without disabilities.
(x)
Impartial hearing officer means an individual assigned by a board of
education pursuant to Education Law, section 4404(1), or by the commissioner in
accordance with section 200.7(d)(1)(i) of this Part, to conduct a hearing and
render a decision. [Commencing July
1, 1996, no] No individual employed by a school district, school or
program serving students with disabilities placed there by a school district
committee on special education may serve as an impartial hearing officer and no
individual employed by such schools or programs may serve as an impartial
hearing officer for two years following the termination of such employment,
provided that a person who otherwise qualifies to conduct a hearing under this
section shall not be deemed an employee of the school district, school or
program serving students with disabilities solely because he or she is paid by
such schools or programs to serve as an impartial hearing officer. An impartial hearing officer
shall:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4)
be certified by the commissioner as an impartial hearing officer eligible
to conduct hearings pursuant to Education Law, section 4404(1) and subject to
suspension or revocation of such certification by the commissioner for good
cause in accordance with the provisions of section 200.21 of this Part. In order to obtain and retain such a
certificate, an individual shall:
(i)
. . . .
(ii)
attend such periodic update programs as may be scheduled by the
commissioner; [and]
(iii) [commencing July 1,
2002,] annually submit, in a format and by a date prescribed by the
commissioner, a certification that the impartial hearing officer meets the
requirements of paragraphs (1), (2) and (3) of this
subdivision[.];
(iv)
possess knowledge of, and the ability to understand, the provisions of
federal and State law and regulations pertaining to the Individuals with
Disabilities Education Act and legal interpretations of such law and regulations
by federal and State courts; and
(v)
possess knowledge of, and the ability to conduct hearings in accordance
with appropriate, standard legal practice and to render and write decisions in
accordance with appropriate standard legal practice.
(dd) Mediator
means a qualified and impartial individual who is trained in effective mediation
techniques to resolve disputes in accordance with Education Law, section 4404-a
and 200.5(h) of this Part and who is knowledgeable in laws and regulations
relating to the provision of special education services. An individual who serves as a mediator
may not have a personal or professional interest which would conflict with his
or her objectivity in the mediation process and may not be an employee of a
State educational agency that is providing direct services to a student who is
the subject of the mediation process or a school district or program serving
students with disabilities, provided that a person who otherwise qualifies to
conduct mediation under section 200.5(h) of this Part shall not be deemed an
employee of the State, a school district, school or a program serving students
with disabilities solely because he or she is paid by a community dispute
resolution center through grant funds provided by the State Education Department
to serve as a mediator.
(ii)
Parent means a natural or adoptive parent, a guardian, a person in
parental relationship to the child as defined in Education Law section 3212,
an individual acting in the place of a natural 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(m)]
200.5(n) of this Part. The
term does not include the State if the student is a ward of the State. A foster parent may act as a parent if
the natural or adoptive parent's authority to make educational decisions
on the student's behalf has been extinguished under State law; and the foster
parent has an ongoing, long-term parental relationship with the student; is
willing to make the educational decisions required of parents; and has no
interest that would conflict with the interests of the
student.
(oo) Prior written notice means written statements
developed in accordance with section 200.5(a) of this Part, and provided 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, or educational placement of the student or the provision of a free
appropriate public education to the student.
(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, [appropriate access to
recreation] and other appropriate support services and includes the early
identification and assessment of disabling conditions in
students.
(ss) School
health services means nursing 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.
(ww) Special education
means specially designed individualized or group instruction or special services
or programs, as defined in subdivision 2 of section 4401 of the Education Law,
and special transportation, provided at no cost to the parent, to meet the
unique needs of students with disabilities.
(1) .
. . .
(2) .
. . .
(3)
For purposes of this definition:
(i)
The individual needs of a student shall be determined by a committee on
special education in accordance with the provisions of section 200.4 of this
Part upon consideration of the present levels of performance and expected
learning outcomes of the student.
Such individual-need determinations shall provide the basis for written
annual goals, direction for the provision of appropriate educational programs
and services and development of an individualized education program for the
student. The areas to be considered
shall include:
(a)
academic [or educational] achievement, functional performance and
learning characteristics which shall mean the levels of knowledge and
development in subject and skill areas, including activities of daily living,
level of intellectual functioning, adaptive behavior, expected rate of progress
in acquiring skills and information, and learning style;
(b) .
. . .
(c) .
. . .
(d) .
. . .
(ii)
. . . .
(zz)
Student with a disability means a student with a disability as defined in
section 4401(1) of the 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. 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. [A student who exhibits a discrepancy of
50 percent or more between expected achievement and actual achievement
determined on an individual basis shall be deemed to have a learning
disability.]
(7) .
. . .
(8) .
. . .
(9) .
. . .
(10) . . .
.
(11) . . .
.
(12) . . .
.
(13) . . .
.
(ccc) Surrogate parent
means a person appointed to act in place of parents or guardians when a
student's parents or guardians are not known, or when after reasonable efforts,
the board of education cannot discover the whereabouts of a parent, the
student is an unaccompanied homeless youth or the student is a ward of the
State.
(fff) Transition Services means a coordinated set of activities for a
student with a disability, designed within [an outcome-oriented] a
results-oriented process that [promotes movement] 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 [training]
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)
[if] when appropriate, acquisition of daily living skills and
functional vocational evaluation.
(hhh) Homeless youth means the same as the term ‘homeless child’ as
defined in section 100.2(x) of this Title.
(iii) Limited English proficient student means the same as the term
‘pupils with limited English proficiency’ as defined in section 154.2(a) of this
Title.
(jjj) Universal design means a concept or philosophy for designing and
delivering products and services that are usable by people with the widest
possible range of functional capabilities, which include products and services
that are directly usable (without requiring assistive technologies) and products
and services that are made usable with assistive
technologies.
(kkk) Ward of the State means a child or youth under the age of twenty-one:
(1) who is in
foster care and whose foster parents are not parents as defined in subdivision
(ii) of this section;
or
(2) who is not
in foster care but whose custody and guardianship has been committed to an
authorized agency pursuant to section 384 or 384-b of the Social Services
Law;
or
(3) who has
been placed by a court in the permanent custody of a State or local social
services agency or officer, and whose parents as defined in subdivision (ii) of
this section are deceased or cannot be located.
5.
Subdivisions (a), (b), (d), (e) and (h) and of section 200.2 of the
Regulations of the Commissioner of Education are amended and a new subdivision
(j) is added, effective September 29, 2005, as follows:
(a)
Census and register of students with disabilities. (1) The board of education or trustees
of each school district shall conduct a census in accordance with Education Law,
sections 3240, 3241 and 3242, to locate and identify all students with
disabilities who reside in the district and shall establish a register of such
students who are entitled to attend the public schools of the district or are
eligible to attend a preschool program in accordance with section 4410 of the
Education Law during the next school year, including students with
disabilities who are homeless or who are wards of the State. The register of such students and others
referred to the committee as possibly having a disability shall be maintained
and revised annually by the district committee on special education or the
committee on preschool special education, as appropriate. Procedures shall be implemented to
assure the availability of statistical data to readily determine the status of
each student with a disability in the identification, location, evaluation,
placement and program review process.
Census data shall be reported by October 1st to the committee on special
education or committee on preschool special education, as
appropriate.
(2)
Data requirements. (i) Procedures shall be designed to record data on
each student, and shall include at least the following types of
data:
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e)
site where the student is currently receiving an educational program;
[and]
(f)
other student information as required by the Individuals with
Disabilities Education Act (20
U.S.C. 1400 et. seq.) and federal regulations, including but not limited to the
student’s race, ethnicity, limited English proficiency status, gender and
disability category;
[(f)] (g)
. . . .
(ii)
. . . .
(3) .
. . .
(4)
Data reporting. The
reporting of data shall be conducted in accordance with the following policies
and procedures:
(i)
. . . .
(ii)
. . . .
(5) .
. . .
(6) .
. . .
(7)
[The procedures] Procedures to locate, identify, and evaluate all
nonpublic private elementary and secondary school students with
disabilities, including religious-school children [residing in the school
district,] 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
comparable 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 [board of education] school
district shall consult with [appropriate] representatives of private [school
students with disabilities, that may include representatives of organizations of
nonpublic school groups, selected parents of students with disabilities enrolled
in nonpublic schools and selected representatives of the nonpublic schools in
the school district, on how to carry out the activities described in this
section] schools and representatives of parents of parentally placed private
school students with disabilities on the child find process. 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:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) . . . .
(6) .
. . .
(7) . . . .
(8) .
. . .
(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(i)] 200.5(j) of this Part;
[and]
(10) establishes
a plan [by July 1, 2002], 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 the 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;
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 nondisabled 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)
each regular education teacher, special education teacher, related
service provider and/or other service provider, as defined in clause (a) of this
subparagraph, who is responsible for the implementation of a student’s
individualized education program (IEP) is provided a paper or electronic copy of
such student’s IEP, including amendments to the IEP made pursuant to section
200.4(g)(2) of this Part, prior to the implementation of such program:
(a) .
. . .
(ii)
. . . .
(iii) . . . .
(12) identifies the measurable steps it shall take to recruit, hire,
train and retain highly qualified personnel to provide special education
programs and services;
(13) describes the guidelines for the provision of appropriate
accommodations in the administration of districtwide assessments;
and
(14)
identifies how the district, to the extent feasible, will use universal
design principles in developing and administering any districtwide assessment
programs.
(d)
Approval of services. (1)
Approval of services for students with disabilities. The board of education or board of
trustees of each school district shall, upon completion of its review of
the [IEP] recommendation of the committee on special education for special
education programs and services, including changes to the committee on special
education’s recommendation made pursuant to section 200.4(g)(2) of this
Part, in accordance with section 200.4(e)(1) and (2) of this Part, arrange
for the appropriate special education programs and services to be provided to a
student with a disability as recommended by the committee on special
education. The board shall notify
the parent of its action in accordance with section 4402(2)(b)(2) of the
Education Law.
(2)
Approval of services for preschool students with disabilities. The board of education or the board of
trustees of each school district shall, upon completion of the [IEP]
recommendation of the committee on preschool special education for special
education programs and services, including changes to the committee’s
recommendation made pursuant to section 200.4(g)(2) of this Part, arrange
for appropriate special education programs and services for a preschool student
with a disability, as recommended by the committee on preschool special
education, from among the services and programs approved for such purpose by the
commissioner. The board shall
notify the parent, the municipality and the commissioner of its action in
accordance with section 4410 of the Education Law.
(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)
. . . .
(ii) available to serve in the district in hearings conducted pursuant to
Education Law, section 4404(1). Appointment of impartial hearing officers
pursuant to Education Law, section 4404(1) shall be made only from such list and
in accordance with the rotation selection process prescribed herein and the
timelines and procedures in section [200.5(i)] 200.5(j) of this Part.
Such names will be listed in alphabetical order. Selection from such list shall
be made on a rotational basis beginning with the first name appearing after the
impartial hearing officer who last served or, in the event no impartial hearing
officer on the list has served, beginning with the first name appearing on such
list. Should that impartial hearing officer decline appointment, or if, within
24 hours, the impartial hearing officer fails to respond or is unreachable after
reasonable efforts by the district that are documented and can be independently
verified, each successive impartial hearing officer whose name next appears on
the list shall be offered appointment, until such appointment is accepted. The
name of any newly certified impartial hearing officer who is available to serve
in the district shall be inserted into the list in alphabetical order;
(2)
persons from whom the district shall choose a surrogate parent
pursuant to section 200.5(n) of this Part; and
(3) .
. . .
(h)
[Local comprehensive system of personnel development (CSPD) plan.] The board of education or trustees of
each school district and each board of cooperative educational services shall
[submit to the State Education Department annually, by a date prescribed by the
commissioner, a local CSPD] develop and implement a plan as part of
the professional development plan pursuant to section 100.2(dd) of this
Title [containing the information demonstrating that all personnel providing
services to students with disabilities are adequate as prescribed by the
commissioner. The CSPD plan]
that shall include, but is not [be] limited to, a description of
the professional development activities provided to all professional staff and
supplementary school personnel who work with students with disabilities to
assure that they have the skills and knowledge necessary to meet the needs of
students with disabilities. [A
school district or BOCES may include the local CSPD plan as part of the
professional development plan pursuant to section 100.2(dd) of the
commissioner’s regulations.]
(i)
Responsibility of boards of cooperative educational services
(BOCES). (a) 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 the 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;
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 nondisabled 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:
(1) .
. . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(b)
Responsibility to identify and take measurable steps to recruit, hire,
train and retain highly qualified personnel. Each BOCES shall identify and take steps
recruit, hire, train and retain highly qualified personnel to provide special
education programs and services to students with disabilities served by the
BOCES.
6.
Section 200.3 of the Regulations of the Commissioner of Education is
amended, effective September 29, 2005, as follows:
(a)
Each board of education or board of trustees shall
appoint:
(1)
committees on special education in accordance with the provisions of
Education Law, section 4402, as necessary to ensure timely evaluation and
placement of students. The
membership of each committee shall include, but not be limited
to:
(i)
. . . .
(ii)
[at least] not less than one regular education teacher of the
student whenever the student is or may be participating in the regular education
environment;
(iii) not less than one special education teacher of the student,
or, if appropriate, [a] not less than one special education provider of
the student;
(iv)
. . . .
(v) a
representative of the school district who is qualified to provide or supervise
special education and who is knowledgeable about the general education
curriculum and the availability of resources of the school district, provided
that an individual who meets these qualifications may also be the same
individual appointed as the special education teacher or the special education
provider of the student or the school psychologist;
(vi)
. . . .
(vii). . . .
(viii) an additional parent member of a student with a disability
residing in the school district or a neighboring school district, provided that
the additional parent member may be the parent of a student who has been
declassified within a period not to exceed five years or the parent of a student
who has graduated within a period not to exceed five years. [such]
Such parent is not a required member if the parents of the student
request that the additional parent member not participate in the
meeting;
(ix)
. . . .
(x) .
. . .
(2)
committees on preschool special education in accordance with provisions
of Education Law, section 4410 to implement the provisions of section 200.16 of
this Part. The membership of each
committee on preschool special education shall include, but not be limited
to:
(i)
. . . .
(ii)
[a] not less than one regular education teacher of the child
whenever the child is or may be participating in the regular education
environment;
(iii) [a] not less than one special education teacher of the
child, or, if appropriate, [a] not less than one special education
provider of the child;
(iv)
a representative of the school district who is qualified to provide or
supervise special education and who is knowledgeable about the general
education curriculum and the availability of preschool special education
programs and services and other resources of the school district and the
municipality. The representative of
the school district shall serve as the chairperson of the
committee;
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
. . . .
(b) .
. . .
(c)
The board of education in a city school district in a city having a
population in excess of 125,000 inhabitants shall appoint subcommittees on
special education to the extent necessary to ensure timely evaluation and
placement of students with disabilities.
Boards of education or trustees of any school district outside of a city
having a population in excess of 125,000 inhabitants may appoint subcommittees
on special education to assist the board of education in accordance with
Education Law, section 4402(1)(b)(1)(b) and the provisions of this
subdivision.
(1) .
. . .
(2)
The membership of each subcommittee shall include, but not be limited
to:
(i)
. . . .
(ii) not less
than one regular education teacher of the student whenever the student is or
may be participating in the regular education environment;
(iii) not less than
one of the student’s special education [teacher] teachers or, if
appropriate, [a] not less than one special education provider of the
student;
(iv) a representative
of the school district who is qualified to provide, administer or supervise
special education and who is knowledgeable about the general education
curriculum and who is knowledgeable about the availability of resources of the
school district, who may also fulfill the requirement of subparagraph (iii) or
(v) of this paragraph;
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(d) .
. . .
(e)
Attendance at committee on special education, subcommittee or committee
on preschool special education meetings.
(1) A member of the committee on special education, subcommittee or
committee on preschool special education, as appropriate, shall not be required
to attend a meeting of the committee, in whole or in part, if the parent and the
school district representative appointed to the committee on special education
agree in writing that, based on the purpose of the meeting, the attendance of
such member is not necessary because the member’s area of the curriculum or
related services is not being modified or discussed in the
meeting.
(i)
The parent shall receive meeting notice pursuant to section 200.5(c) of
this Part that includes a statement that the parent and school district can
agree that the attendance of a committee member is not necessary.
(ii)
Whenever feasible, the parent and school district should reach such
agreement prior to the day of the meeting, except that the parent may provide
his or her written agreement with the school district on the day of the
scheduled meeting.
(2)
A member of the committee on special education, subcommittee or committee
on preschool special education, as appropriate, may be excused from attending a
meeting of the committee, in whole or in part, when the meeting involves a
modification to or discussion of the member’s area of the curriculum or related
services if:
(i)
the parent and school district representative appointed to the committee
on special education agree, and the
parent provides consent in writing to the excusal pursuant to section 200.5(b)
of this Part; and
(ii)
the member to be excused prepares a written summary of his or her input,
including recommendations to be considered in the development of the IEP, and
submits the summary to the committee and to the parent of the student. The written summary of the member to be
excused shall be submitted to the parent at the same time that the parent’s
consent to excuse the member is requested which must be prior to the day of the
meeting, provided that the parent may confirm his or her agreement in writing on
the day of the scheduled meeting.
7.
Section 200.4 of the Regulations of the Commissioner of Education is
amended, effective September 29, 2005 as follows:
(a) .
. . .
(1) . . .
.
(2) . . .
.
(3) . . .
.
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7) .
. . .
(8)
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 is not obtained within 30 days of the date of receipt of referral, the
chairperson shall document attempts made by the chairperson or other
representatives of the committee to obtain parental consent, and shall [request
that the board of education initiate an impartial hearing in accordance with
section 200.5(b)(1)(i)(c)] 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) .
. . .
(b)
Individual evaluation and reevaluation. (1) Unless a referral is withdrawn
pursuant to paragraph (a)(7) or (9) of this section, an individual evaluation of
the referred student shall be initiated by a committee on special education and
shall include a variety of assessment tools and strategies, including
information provided by the parent, to gather relevant functional, [and]
developmental and academic information about the student [and] 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)
. . . .
(v) .
. . .
(2) .
. . .
(3) .
. . .
(4) A
committee on special education shall arrange for an appropriate reevaluation of
each student with a disability if [conditions] the school district determines
that the educational or related services needs, including improved academic
achievement and functional performance of the student warrant a
reevaluation, or if the student’s parent or teacher requests a reevaluation, but
not more frequently than once a year, unless the parent and representative of
the school district appointed to the committee on special education agree
otherwise; and at least once every three years unless the parent and the
representative of the school district appointed to the committee on special
education agree in writing pursuant to sections 200.5(a) and (b) of this Part
that a reevaluation is unnecessary.
The reevaluation shall be conducted by a multidisciplinary team or
group of persons, including at least one teacher or other specialist with
knowledge in the area of the student’s disability. In accordance with paragraph (5) of this
subdivision, the reevaluation shall be sufficient to determine the student’s
individual needs, educational progress and achievement, the student’s ability to
participate in instructional programs in regular education and the student’s
continuing eligibility for special education. The results of any reevaluations must be
addressed by the committee on special education in a meeting to
[reviewing] review and, as appropriate, [revising] revise the
student’s IEP. To the extent
possible, the school district shall encourage the consolidation of reevaluation
meetings for the student and other committee on special education meetings for
the student.
(5)
Determination of needed evaluation data.
(i)
As part of an initial evaluation, if appropriate, and as part of any
reevaluation in accordance with section 200.4(b)(4) of this Part, a group that
includes the committee on special education, and other qualified professionals,
as appropriate, shall review existing evaluation data on the student,
including evaluations and information provided by the parents of the student,
current classroom-based assessments, local or State assessments, [and]
classroom-based observations, and observations by teachers and related
services providers. The group may
conduct its review without a meeting.
(ii)
On the basis of that review, and input from the student’s parents, the
committee on special education and other qualified professionals, as
appropriate, shall identify what additional data, if any, are needed to
determine:
(a)
whether the student has a [particular category of] disability as
defined in section 200.1(mm) or (zz) of this Part, or, in the case of a
reevaluation of a student, whether the student continues to have such a
disability;
(b)
the present levels of [performance] academic achievement and
related [educational] developmental needs of the student,
including the four areas listed in section 200.1(ww) of this
Part;
(c) .
. . .
(d) .
. . .
(iii) . . . .
(iv)
If additional data are not needed, the school district must notify the
parents of that determination and the reasons for it and of the right of the
parents to request an assessment to determine whether, for purposes of services
under this Part, the student continues to be a student with a disability and
to determine the student’s educational needs. The school district is not required to
conduct the assessment unless requested to do so by the student’s parents.
(6)
School districts shall ensure that:
(i)
[tests and other assessment procedures] assessments and other
evaluation materials used to assess a student under this
section:
(a)
are provided and administered in the [student’s native] language [or
other mode of communication] and form most likely to yield accurate
information on what the student knows and can do academically, developmentally
and functionally, unless it is clearly not feasible to [do] so provide or
administer;
(b)
[have been validated for the specific purpose for which they are used]
are used for purposes for which the assessments or measures are valid and
reliable;
(c) are
administered by trained and knowledgeable personnel in accordance with the
instruction provided by those who developed such [tests or procedures]
assessments; and
(d)
are selected and administered so as not to be [racially or
culturally] discriminatory on a racial or cultural
basis;
(ii)
. . . .
(iii) tests and other [assessment procedures] 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)
. . . .
(v)
no single [procedure] measure or assessment is used as the sole
criterion for determining whether a student is a student with a disability [and]
or for determining an appropriate educational program for a
student;
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
. . . .
(x) .
. . .
(xi)
. . . .
(xii) the results of the evaluation are provided to the parents [or
persons in parental relationship] in their native language or mode of
communication, unless it is clearly not feasible to do
so;
(xiii) . . . .
(xiv) the procedures for evaluating students suspected of having a
learning disability are in accordance with sections 300.540, 300.542
[through] and 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);
(xv) the
procedures for conducting expedited evaluations are conducted pursuant to Part
201 of this Title; [and]
(xvi) materials and procedures used to assess a student with limited
English proficiency are selected and administered to ensure that they measure
the extent to which the student has a disability and needs special education,
rather than measure the student's English language skills[.]
and
(xvii) assessments of students with disabilities who transfer from one
school district to another school district in the same academic 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)
The initial evaluation to determine if a student is a student with a
disability must be completed within 60 days of receiving parental consent for
the evaluation. The 60-day
timeframe shall not apply if:
(i)
a student enrolls in a school served by the school district after the
relevant timeframe in this paragraph has begun and prior to a determination by
the student's previous school district as to whether the student is a student
with a disability, but only if the subsequent school district is making
sufficient progress to ensure a prompt completion of the evaluation, and the
parent and subsequent school district agree to a specific time when the
evaluation will be completed; or
(ii)
the parent of a student repeatedly fails or refuses to produce the
student for the evaluation.
(8)
The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall not be
considered to be an evaluation for eligibility for special
education.
(9)
No student shall be required to obtain a prescription for a drug or other
substance identified under schedule I, II, III, IV, or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c)) as a condition of receiving an
evaluation under this Part (United States Code, 2000 edition, volume 11;
Superintendent of Documents, U.S. Government Printing Office, Stop SSOP,
Washington, D.C. 20402-0001; available at the Office of Vocational and
Educational Services for Individuals with Disabilities, Room 1624, One Commerce
Plaza, Albany, NY 12234).
(c)
Eligibility Determinations
(1) .
. . .
(2) A
student [may] shall not be determined [to be] eligible for special
education if the determinant factor [for that eligibility determination]
is:
(i) lack of
appropriate instruction in reading, including explicit and systematic
instruction in phonemic awareness, phonics, vocabulary development, reading
fluency (including oral reading skills) and reading comprehension
strategies;
(ii)
lack of instruction in [or] math; or
(iii) limited English proficiency.
(3) A
school district must evaluate a student with a disability prior to determining
that the student is no longer a student with a disability, in accordance with
paragraph (b)(4) of this section, and the school district must provide a copy of
the evaluation report and the documentation of eligibility to the student's
parent.
(4) A school district is not required to conduct a reevaluation of
a student before the termination of a student's eligibility due to graduation
with a local high school or Regents diploma or exceeding the age eligibility for
a free appropriate public education but is required to provide such student
with a summary of the student's academic achievement and functional performance,
which shall include recommendations on how to assist the student in meeting his
or her postsecondary goals.
[(4)] (5) . . . .
(6)
Learning disabilities. In
determining whether a student has a learning disability as defined in section
200.1(zz)(6) of this Part, 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.
[Individualized education program (IEP).] 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 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 development of a recommendation, the committee shall ensure that
the appropriateness of the 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 [must] shall
develop an [individualized education program (IEP)] IEP. 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 districtwide assessment programs;
and any special considerations in paragraph (3) of this subdivision. The recommendation shall include the
following.[:]
(i) Present levels of
performance. The IEP shall
report the present levels of performance and indicate the individual needs of
the student according to each of the four areas listed in section 200.1(ww) of
this Part, including:
(a)
how the student’s disability affects involvement and progress in the
general education curriculum; or
(b)
for preschool students, as appropriate, how the disability affects the
student’s participation in appropriate activities[; or].
[(c) for students age 15 (and at a younger age, if determined
appropriate), a statement of the student's needs, taking into account the
student's preferences and interests, as they relate to transition from school to
post-school activities as defined in section 200.1(fff);]
(ii)
Disability classification.
The IEP shall indicate the classification of the disability
pursuant to section 200.1(mm) or (zz) of this Part.
(iii) Measurable annual goals.
(a) The IEP shall list measurable annual goals, consistent with the
student's needs and abilities[, including benchmarks or short-term instructional
objectives] and evaluative criteria, evaluation procedures and schedules to be
used to measure progress toward the annual goals and to be followed during the
period beginning with placement and ending with the next scheduled review by the
committee. [Such benchmarks or short-term instructional objectives shall be
measurable, intermediate steps between present levels of educational performance
and the annual goals that are established for a student with a disability.] The measurable annual goals must relate
to:
[(a)] (1)
meeting the student's needs that result from the student's disability to
enable the student to be involved in and progress in the general
education curriculum; and
[(b)] (2)
meeting each of the student's other educational needs that result from
the student's disability;
(b)
The IEP shall identify when periodic reports on the progress the student
is making toward the annual goals (such as through the use of quarterly or other
periodic reports that are concurrent with the issuance of report cards) will be
provided to the student’s parents.
(iv)
Short-term instructional objectives and benchmarks. For students who take alternate
assessments aligned with alternate achievement standards and for preschool
students with disabilities, the IEP shall include a description of the
short-term instructional objectives and/or benchmarks that are the measurable
intermediate steps between the student’s present level of performance and the
measurable annual goal.
(v) Special education program and services. (a) The IEP shall indicate the
recommended special education program and services as defined in sections
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) of this Part, and that are, to the extent practicable, based
on peer-reviewed research[; the class size, if appropriate; the
supplementary aids and services to be provided to the student, or on behalf of
the student; and a statement of the program modifications or supports for school
personnel] that will be provided for the student:
[(a)] (1) to advance appropriately toward attaining the annual
goals;
[(b)] (2) to be involved and progress in the general
education curriculum and to participate in extracurricular and other
nonacademic activities; and
[(c] (3)) to be educated and participate with other students with
disabilities and nondisabled students in the activities described in this
section[;].
[(v)] (b)
The recommended program and services shall, as appropriate
indicate:
(1) the regular education classes in which the student will
receive consultant teacher services;
(2) the class size, as defined in section 200.1(i) of this Part, if
appropriate;
(3)
the supplementary aids and services and program modifications to be
provided to the student or on behalf of the student;
(4)
a statement of supports for school personnel on behalf of the
student;
(5)
the extent to which the student's parents will receive parent counseling
and training as defined in section 200.1(kk) of this Part, when
appropriate;
(6) any assistive technology devices or services needed for the
student to benefit from education, including the use of such devices in the
student’s home or in other settings;
(7)
the anticipated frequency, duration and location and, for a preschool
student with a disability, the intensity for each of the recommended programs
and services, including the supplementary aids and services and program
modifications to be provided to or on behalf of the
student;
(8)
if the recommendation for a preschool student is for one or more related
services selected from the list maintained by the municipality, or itinerant
services, the child care location arranged by the parent or other site at which
each service shall be provided; and
(9)
the projected date for initiation of the recommended special education
program and services.
(vi) Testing accommodations.
The IEP shall provide a statement of any individual testing
accommodations to be used consistently by the student in the recommended
educational program and in the administration of districtwide assessments of
student achievement and, in accordance with department policy, State assessments
of student achievement that are necessary to measure the academic achievement
and functional performance of the student.
[(vi)] (vii)
Participation in State and districtwide assessments. [indicate
if] If the student will
[not] participate in an alternate assessment on a particular State or
[local] districtwide [assessments (or part of an assessment), why the
assessment is not appropriate for the student and how the student will be
assessed] assessment of student achievement, the IEP shall provide a
statement of why the student cannot participate in the regular assessment and
why the particular alternate assessment selected is appropriate for the
student.[;]
[(vii)] (viii) Participation in regular programs. The IEP shall
provide:
(a)
an explanation of the extent, if any, to which the student will not
participate in the regular education programs; or
(b)
for preschool students, an explanation of the extent, if any, to which
the student will not participate in appropriate activities with age-appropriate
nondisabled peers;
(c) identify if the provision of IEP services for a preschool child
with a disability will be in a setting with no regular contact with
age-appropriate peers without disabilities; and
(d)
if a student is not participating in a regular physical education
program, the extent to which the student will participate in specially-designed
instruction in physical education, including adapted physical
education[;].
[(viii) provide for those students age 14 and updated annually, a
statement of the transition service needs of the student under applicable
components of the student's IEP that focuses on the student's courses of study,
such as participation in advanced-placement courses or a vocational education
program;]
(ix) Transition services. [provide, for] For those students
beginning not later than the first IEP to be in effect when the student
is age 15 (and at a younger age, if determined appropriate), and updated
annually, the IEP shall, under the applicable components of the student’s IEP,
include: [a statement of the student's projected post-school outcomes, based
on the student's needs, preferences, and interests, in the areas of employment,
post secondary education, and community living and] a statement of the needed
transition services as defined in section 200.1(fff) of this Part,
including]
(a)
a statement of the student's needs, taking into account the student's
preferences and interests, as they relate to transition from school to
post-school activities as defined in section
200.1(fff);
(b) appropriate
measurable postsecondary goals based upon age appropriate transition assessments
relating to training, education, employment and, where appropriate, independent
living skills;
(c) a statement of the transition service needs of the student that
focuses on the student's courses of study, such as participation in
advanced-placement courses or a vocational education program;
(d)
needed activities to facilitate the student’s movement from school to
post-school activities, including instruction, related services, community
experiences, the development of employment and other post-school adult living
objectives and, when appropriate, acquisition of daily living skills and
functional vocational evaluation; and
(e) a statement of the responsibilities of the school district
and, when applicable, participating agencies for the provision of such services
and activities that promote movement from school to postschool opportunities, or
both, before the student leaves the school setting. [Needed activities shall be provided in
each area specified in section 200.1(fff)(1) through (4) and, as appropriate,
(5) of this Part;]
(x)
[provide a statement of how the student's parents will be regularly
informed of their child's progress, at least as often as parents are informed of
their nondisabled student's progress, toward the annual goals and the extent to
which that progress is sufficient to enable the student to achieve the goals by
the end of the year; (xi)] 12-month services. For students eligible for 12-month
service and/or program, the IEP shall indicate the [projected date for
initiation of special education and related services and supplementary aids and
services, the frequency, location and duration of such services, whether the
student is eligible for a 12-month special service and/or program and the]
identity of the provider of services during the months of July and August,
and, for preschool students determined by the committee on preschool special
education to require a structured learning environment of 12 months duration to
prevent substantial regression, a statement of the reasons for such
recommendation.
(xi) Projected date of annual review. The IEP shall indicate the projected
date of the review of the student's need for such
services[;].
[(xii) describe any assistive technology devices or services needed for
the student to benefit from education;
(xiii) provide a statement of any individual testing accommodations to be
used consistently by the student in the recommended educational program and in
the administration of district-wide assessments of student achievement and, in
accordance with department policy, State assessments of student achievement that
are needed in order for the student to participate in the assessment;
and]
(xiv) Placement. The IEP
shall indicate the recommended placement.
(3)
Consideration of special factors.
The CSE shall:
(i)
in the case of a student whose behavior impedes his or her learning or
that of others, consider[, when appropriate,] strategies, including positive
behavioral interventions and supports and other strategies to address
that behavior;
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
(vi)
. . . .
(4)
Such recommendations shall:
(i)
be developed in meetings of the committee on special education, except
as provided in subdivision (g) of this section.
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d)
when conducting a meeting of the committee on special education, the
parent and the representative of the school district appointed to the committee
on special education may agree to use alternative means of meeting
participation, such as videoconferences and conference
calls.
(ii) be developed in
conformity with the least restrictive environment provisions of this Part.
(a) . . . .
(b) . . .
.
(c) . . . .
(d) a student with a disability must not be removed from
education in age-appropriate regular classrooms solely because of needed
modifications in the general education curriculum.
(5) .
. . .
(6) .
. . .
(e)
IEP implementation. (1) Within 60 school days of the receipt of
consent to evaluate for a student not previously identified as having a
disability, or within 60 school days of the referral for review of the student
with a disability, the board of education shall arrange for appropriate special
programs and services, except that if such recommendation is for placement in an
approved in-state or out-of-state private school, the board shall arrange for
such programs and services within 30 school days of the board's receipt of the
recommendation of the committee.
(i)
. . . .
(ii)
The school district shall ensure that each student with a disability has
an IEP in effect at the beginning of each school year.
(2) .
. . .
(3)
The school district shall ensure that the recommendations on a student's
IEP, including changes to the IEP made pursuant to subdivision (g) of this
section, are implemented, including but not limited
to:
(i)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
ensuring that a copy of the IEP is provided to the student's parents,
including a revised copy of the IEP at the parent's request with the amendments
developed pursuant to subdivision (g) of this section incorporated, at no
cost to the student's parents.
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7)
The school district must provide special education and related services
to a student with a disability in accordance with the student's IEP and must
make a good faith effort to assist the student to achieve the annual
goals and, if appropriate, short-term instructional objectives or
benchmarks listed in the student's IEP.
(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 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 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) Transmittal of Records.
(a) To facilitate the transition for a student described in this
paragraph, the new school district in which the student enrolls shall take
reasonable steps to promptly obtain the student's records, including the IEP and
supporting documents and any other records relating to the provision of special
education services to the student, from the previous school in which the student
was enrolled pursuant to 34 C.F.R. section 99.31(a)(2) (Code of Federal
Regulations, 2004 edition, Superintendent of Documents, U.S. Government Printing
Office, Stop SSOP, Washington, DC 20402-0001: 2004 – available at the Office of
Vocational and Educational Services for Individuals with Disabilities, Room
1624, One Commerce Plaza, Albany, NY 12234).
(b) The previous school in which the student was enrolled shall take
reasonable steps to promptly respond to such request from the new
school.
(9)
The school district shall not require a student with a disability to
obtain a prescription for a drug or other substance identified under schedule I,
II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C.
section 812(c)) as a condition of receiving services under this Part (United
States Code, 2000 edition, volume 11; Superintendent of Documents, U.S.
Government Printing Office, Stop SSOP, Washington, D.C. 20402-0001: 2001 -
available at the Office of Vocational and Educational Services for Individuals
with Disabilities, Room 1624, One Commerce Plaza, Albany, NY 12234).
(f) Annual review [and
reevaluation]. The individualized education program (IEP) of each
student with a disability shall be reviewed and, if appropriate, revised,
periodically but not less than annually to determine if the annual goals for
the student are being achieved. [(1)] Any meeting to develop, review or
revise the IEP of each student with a disability to be conducted by the
committee on special education or subcommittee thereof, pursuant to section
4402(1)(b)(2) of the Education Law, shall be based upon review of a student's
IEP and other current information pertaining to the student's performance.
(1)
Such review shall consider the following factors:
[(i)] (a) [consider] the strengths of the
student[,];
(b) the concerns of
the parents for enhancing the education of their
child[,];
(c) the results of the initial or most recent evaluation of the
student[,];
(d) as appropriate, the results of the student's performance on
any general State or district-wide assessment
programs[,];
(e)
the academic, developmental and functional needs of the
student;
(f) the special factors described in paragraph (d)(3) of this
section[,]; and
(g) the educational progress and achievement of the student with a
disability and the student's ability to participate in instructional programs in
regular education and in the least restrictive environment[; and].
[(ii) upon consideration of the factors in clause (a) of this paragraph,
revise the IEP as appropriate to address]
(2)
If appropriate, the IEP must be revised to
address:
(a) any lack of expected
progress toward the annual goals and in the general education curriculum
or participation in appropriate activities for preschool students with
disabilities, if appropriate;
(b) the results of any
reevaluation conducted pursuant to this Part and any information about
the student provided to, or by, the parents;
(c) the student’s
anticipated needs;
(d) or other matters,
including a student’s need for test accommodations and/or modifications and
the student's need for a particular device or service (including an
intervention, accommodation or other program) in consideration of the special
factors contained in paragraph (3) of subdivision (d) of this section in order
for the student to receive a free appropriate public education.
[(2)](3) . . . .
[(3)] (4)
Upon completion of the annual review, the committee on special education
shall notify the parent of the committee's recommendation in accordance with
section [200.5(a)(4)] 200.5(a) of this Part.
[(4) In
accordance with paragraph (b)(4) of this section, the results of any
reevaluations must be addressed by the committee on special education in a
meeting to review, and as appropriate, revise the student’s
IEP.]
(g)
Changes to the IEP after the annual review. (1) In making changes to a student's IEP
after the annual review meeting for that school year, the parent of the student
with a disability and the representative of the school district appointed to the
committee on special education may agree not to convene the committee on special
education for the purposes of making such changes, and instead may develop a
written document to amend or modify the student's current
IEP.
(2) Amendments to the IEP.
Amendments to an IEP made after the annual review may be made by
rewriting the IEP or by developing a written document to amend or modify the
student's current IEP, provided that:
(a)
the parent shall receive prior written notice of any changes to the IEP
pursuant to section 200.5(a) of this Part; and
(b) upon request, the parent shall be provided a revised copy of the
IEP with the amendments incorporated.
(h)
Requests to the committee on special education pursuant to section 4005
of the Education Law. (1). . .
.
(2) A
committee on special education which receives such a request
shall:
(i)
. . . .
(ii)
in the event that the parent does not grant consent or fails to
respond to a request for consent, [within five days after receipt of the
request for such consent,] the committee shall notify the board of education [of
the need to initiate a formal impartial hearing to be conducted pursuant to
section 200.5(i)] that they may utilize the 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;
(iii) . . . .
(iv)
. . . .
(3) .
. . .
[(h)] (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) .
. . .
(4) .
. . .
(5) .
. . .
8.
Section 200.5 of the Regulations of the Commissioner of Education is
amended, effective September 29, 2005 as follows:
(a)
Prior written notice and other written notifications. (1) [Written prior] Prior written
notice 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.
(2)
If the prior written notice relates to an action proposed by the
school district that also requires parental consent under subdivision (b) of
this section, the district must give notice at the same time it requests parent
consent.
(3)
The prior written notice must include:
(i)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) a
description of [any other] the factors that the district considered and
the reasons why those options were rejected;
(vi)
. . . .
(vii) . . . .
(4)
The prior written notice must be written in language
understandable to the general public, and provided in the native language of the
parent or other mode of communication used by the parent, unless it is clearly
not feasible to do so. If the
native language or other mode of communication of the parent is not a written
language, the school district shall take steps to ensure that the notice is
translated orally or by other means to the parent in his or her native language
or other mode of communication; that the parent understands the content of the
notice; and that there is evidence that the requirements of this section have
been met.
(5)
In addition to the requirements of paragraphs (3) and (4) of this
subdivision:
(i)
Upon receipt of a referral for initial evaluation or prior to conducting
a reevaluation, such prior written notice shall include a description of
the proposed evaluation or reevaluation and the uses to be made of the
information and indicate that the parent may submit evaluation information
which, if submitted, shall be considered by the committee on special education
as part of its evaluation or review.
[Notice provided to parents of students referred for a reevaluation must
indicate that the parents have the right to request a test or assessment as part
of the reevaluation to determine whether the student continues to be a student
with a disability under this Part.
(ii)
Upon a board of education's disagreement with the recommendation of the
committee on special education pursuant to section 200.4(e)(2) of this Part, the
notice to the parent and to the committee shall set forth in writing a statement
of the board of education's reasons and indicate that the recommendation will be
sent back to the committee, with notice of the need to schedule a timely meeting
to review the board's concerns and to revise the IEP as deemed
appropriate.]
[(iii)] (ii) Prior to the student's graduation with a local high
school or Regents diploma, such prior written notice must indicate that
the student is not eligible to receive a free appropriate public education after
graduation with the receipt of the local high school or Regents diploma, unless
the school district provides such services to nondisabled students pursuant to
section 3202 of the Education Law.
[(iv)] (iii) Prior to
the student’s graduation with an individualized education program (IEP) diploma,
such prior written notice must indicate that the student continues to be
eligible for a free appropriate public education until the end of the school
year in which the student turns age 21 or until the receipt of a regular high
school diploma.
(6)
Other required notifications.
A parent of a student with a disability shall also be provided written
notification as follows.
(i) If the committee on
special education and other qualified professionals, as appropriate, determine
in accordance with section 200.4(b)(5) of this Part that no additional data are
needed to determine whether the student continues to be a student with a
disability and to determine the student's educational needs, the school district
must notify the parents of that determination and the reasons for the
determination and the right of such parents to request an assessment to
determine whether the student continues to be a student with a disability and to
determine the student's education needs.
(ii)
Upon a board of education's disagreement with the recommendation of the
committee on special education pursuant to section 200.4(e)(2) of this Part, the
notice to the parent and to the committee shall set forth in writing a statement
of the board of education's reasons and indicate that the recommendation will be
sent back to the committee, with notice of the need to schedule a timely meeting
to review the board's concerns and to revise the IEP as deemed
appropriate.
[(v)] (iii) . . . .
[(vi)] (iv) . . . .
[(vii)] (v) . . . .
(7)
A parent of a student with a disability may elect to receive prior
written notice and other required notifications by an electronic mail (e-mail)
communication if the school district makes this option
available.
(b)
Consent. (1) 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) .
. . .
(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 [in] is
not warranted, the referral shall be withdrawn. Except in the case of a preschool child,
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 [shall initiate an
impartial hearing to be conducted in accordance with subdivision (i) of this
section for the purpose of determining whether such an evaluation shall be
conducted without parental consent] may pursue the initial evaluation of the
student by utilizing the due process procedures described in this
section;
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
(vi)
prior to excusing a member of the committee on special education from
attending a committee meeting, in whole or in part, pursuant to section 200.3(e)
of this Part.
(2) .
. . .
(3)
If the parents of
a student with a disability refuse consent for an initial evaluation or
reevaluation, the school district may continue to pursue those evaluations by
using the due process procedures in section 200.5 of this
Part.
(4)
If the parent of the student refuses to consent or fails to respond to a
request to provide such consent to the provision of special education programs
and services, the school district shall not provide the special education
program and services to the student and shall not use the due process procedures
described in this section to challenge the parent's refusal to
consent.
(i)
The school district shall not be considered to be in violation of the
requirements to make available a free appropriate public education to the
student for the failure to provide such student with the special education
program and services for which the school district requests such consent;
and
(ii) the school district shall not be required to convene a meeting of
the committee on special education or develop an IEP under section 200.4 of this
Part for the special education program and services for which the school
district requests such consent.
(4)
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,:
(a) despite reasonable efforts to do so, the school district cannot
discover the whereabouts of the parent of the student;
or
(b) the rights of the parents of the student have been terminated in
accordance with State law; or
(c) the rights of the parent to make educational decisions have been
subrogated by a judge in accordance with State law.
(5)
If the student is an unaccompanied homeless youth, consent for an initial
evaluation may be provided by a surrogate parent, or, to the extent authorized
by federal law and regulations, consent may be given by an employee of a
temporary housing facility that is operated or approved by a local social
services district or a residential facility for runaway and homeless youth,
provided that such a role is temporary until a surrogate parent can be appointed
pursuant to section 200.5(n) of this Part and provided that the role of the
representative of the homeless program shall not conflict with, or be in
derogation of, the provision of a free appropriate education to a homeless
youth.
(c)
Notice of meetings. (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.
(2)
Such notice shall:
(i)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
(vi)
if the meeting is being conducted by a subcommittee on special education,
inform the parent(s) that, upon receipt of a written request from the parent,
the subcommittee shall refer to the committee on special education any matter on
which the parent(s) disagrees with the subcommittee's recommendation concerning
a modification or change in the identification, evaluation, educational
placement or provision of a free appropriate public education to the student;
[and]
(vii) state that the parent and the school district may agree in
writing, in accordance with section 200.3(e) of this Part,
that:
.
(a) the attendance of a member of such committee is not necessary;
and/or
(b)
that a member of such committee may be excused, in whole or in part, with
written consent of the parent; and
(viii) if the purpose of the meeting is to consider transition
services, the meeting notice must also:
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d)
Parent participation in CSE meetings. (1) Each school district shall take
steps to ensure that one or both of the student's parents are present at each
committee on special education meeting or are afforded the opportunity to
participate, including:
(i)
. . . .
(ii)
. . . .
(iii) using other methods to ensure parent participation, including
individual or conference telephone calls [if neither parent can attend]
pursuant to paragraph (7) of this subdivision.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7)
When conducting a meeting of the committee on special education, the
school district and the parent may agree to use alternative means of
participation, such as videoconferences or conference telephone
calls.
(e) .
. . .
(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)
upon initial referral or parental request for
evaluation;
(ii)
[upon each notification of an IEP meeting;
(iii) upon reevaluation of the student; and
(iv)] upon [receipt of a request for] the first filing of a due
process hearing request notice to request mediation or an impartial hearing
as described in [subdivision (i)] subdivisions (h) and (j) of this
section; and
(iii) upon request by a parent.
(4)
The procedural safeguards notice must include a full explanation of all
the procedural safeguards available under this Part relating
to:
(i)
. . . .
(ii)
. . . .
(iii). . . .
(iv)
. . . .
(v)
opportunity to present and resolve due process complaints [to
initiate due process hearings], 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)
. . . .
(vii) . . . .
(viii) . . . .
(ix)
[mediation;
(x)] due
process hearings, including requirements for disclosure of evaluation results
and recommendations;
[(xi)] (x)
. . . .
[(xii)] (xi) civil action, including the time period in which
to file such actions;
[(xiii)] (xii) . . . .
[(xiv)] (xiii) . . .
.
[(xv)]
(xiv) . .
. .
(5)
A school district may place a current copy of the procedural safeguards
notice on its Internet website if such website exists.
(6)
A parent of a student with a disability may elect to receive the
procedural safeguards notice by an electronic mail (e-mail) communication if the
school district makes such option available.
(g) .
. . .
(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 [that, at a minimum, must be available
whenever a hearing is requested under this section], including matters
arising prior to the filing of a request for an impartial hearing pursuant to
subdivisions (j) and (k) of this section. Such procedures must ensure
that:
(i)
the mediation process is voluntary on the part of the
parties;
(ii)
the mediation process is not used to deny or delay a
parent's right to a due process hearing 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;
(iv)
. . . .
(v)
discussions that occur during the mediation process must be confidential
and may not be used as evidence in any subsequent due process hearings or civil
proceedings[ and the parties to the mediation process may be required to sign a
confidentiality pledge prior to the commencement of the process;]
and
(vi)
[an agreement reached by the parties to the dispute in the mediation
process is set forth in a written mediation agreement] 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 be confidential
and may not be used as evidence in any subsequent due process hearing or civil
proceeding. 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 agreement is enforceable in any State court of competent jurisdiction
or in a district court of the United States.
(2)
Opportunity to meet with a disinterested party. A school district may establish
procedures [for] that provide parents and schools who elect not to
use the mediation process the opportunity to meet, at a time and location
convenient to the parents, with a disinterested party who is from a community
dispute resolution center who would explain the benefits of the mediation
process, and encourage the parents to use the process; except that, a school
district may not deny or delay a parent's right to a due process hearing under
this section if the parent elects not to participate in this meeting.
(3)
[The] If the written agreement reached by the parties in mediation
[amends] is inconsistent with the student's IEP [and is binding
upon the parties. The committee on
special education must immediately meet to amend the] then the student's
IEP must be immediately amended to be consistent with the mediation
agreement.
(4) .
. . .
(5)
When conducting meetings and carrying out administrative matters under
this subdivision, the parent and the school district may agree to use
alternative means of meeting participation, such as video conferences and
conference calls.
(i)
Due process hearing request notification requirements. (1) A parent or school district may
present a 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 hearing request notice to the party, which shall
include:
(a)
the name of the student;
(b)
the address of the residence of the student (or available contact
information in the case of a homeless student);
(c)
the name of the school the student is
attending;
(d)
a description of the nature of the problem of the student relating to
such proposed initiation or change, including facts relating to such problem;
and
(e)
a proposed resolution of the problem to the extent known and available to
the party at the time.
(2)
A party may not have an impartial due process hearing until the party, or
the attorney representing the party, files a due process hearing request notice
that meets the requirements of paragraph (1) of this
subdivision.
(3)
The due process hearing request notice shall be deemed to be sufficient
unless the party receiving the notice notifies the impartial hearing officer and
the other party in writing that the receiving party believes the notice has not
met the requirements of paragraph (1) of this
subdivision.
(4)
School district response to the parent. (i) If the school district has
not sent a prior written notice pursuant to subdivision (a) of this section to
the parent regarding the subject matter in the parent's due process hearing
request notice, such school district shall, within 10 days of receiving the
complaint, send to the parent a response that shall
include:
(a)
an explanation of why the school district proposed or refused to take the
action raised in the complaint;
(b)
a description of other options that the committee on special education
considered and the reasons why those options were
rejected;
(c) a description of each evaluation procedure, assessment, record or
report the school district used as a basis for the proposed or refused action;
and
(d)
a description of the factors that are relevant to the school district's
proposal or refusal.
(ii)
A response filed by the school district pursuant to this paragraph shall
not be construed to preclude such school district from asserting that the
parent's due process hearing request notice was insufficient where
appropriate.
(5)
Other party response. (i)
Except as provided in paragraph (4) of this subdivision, the noncomplaining
party shall, within 10 days of receiving the due process hearing request notice,
send to the complaining party a response that specifically addresses the issues
raised in the notice.
(6)
Allegation of insufficient due process hearing request notice. (a) Timing. If the party receiving the due process
hearing request notice believes the notice has not met the requirements of
paragraph (1), it shall notify the impartial hearing officer and the other party
in writing within 15 days of receiving the due process hearing request
notice.
(b)
Determination. Within
five days of the receipt of the notice of insufficiency, the impartial hearing
officer shall make a determination on the face of the notice of whether the
notification meets the requirements of paragraph (1) and shall immediately
notify the parties in writing of such determination.
(7) Amended due process hearing request notice. (a) A party may amend its due process
hearing request notice only if:
(i) the other party consents in writing to such amendment and is given
the opportunity to resolve the complaint through a meeting held pursuant to
subdivision (j)(2) of this section; or
(ii)
the impartial hearing officer grants permission, except that the
impartial hearing officer may only grant such permission at any time not later
than five days before an impartial due process hearing
commences.
(b) The applicable timelines for an impartial due process hearing,
including the timelines for a resolution session, shall recommence at the time
the party files an amended notice.
(j) Impartial
due process hearings. (1) A
parent or a school district [may initiate a] must submit a complete due
process hearing request 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. [Parental requests must be
in writing.]
[(i)
. . . .]
(i)
Timeline for requesting an impartial hearing. The request for an impartial due process
hearing must be submitted within one year of the date the parent or agency knew
or should have known about the alleged action that forms the basis of the
complaint, except that the one year timeline shall not apply to a parent if the
parent was prevented from requesting the impartial hearing due to specific
misrepresentations by the school district that it had resolved the problem
forming the basis of the complaint or the school district’s withholding of
information from the parent that was required to be provided to the parent under
this Part or under Part 201 of this Title.
(ii)
Subject matter of the impartial due process hearing. The party requesting the impartial due
process hearing shall not be allowed to raise issues at the impartial due
process hearing that were not raised in the notice filed under subdivision (i)
of this section, unless the other party agrees
otherwise.
[(2)] (iii) When [a] an impartial due process hearing is
requested by either party, the school district shall inform the parent
[shall be given notice which shall inform them] in writing of the
availability of mediation and of any free or low-cost legal and other relevant
services available in the area.
(2)
Resolution session. (i) Preliminary meeting. Prior to the opportunity for an
impartial due process hearing under paragraph (1), the school district shall,
within 15 days of receiving the due process hearing request notice from the
parent, convene a meeting with the parents and the relevant member or members of
the committee on special education 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.
(ii) When conducting meetings and carrying out administrative matters
(such as scheduling) under this paragraph, the parent and the school district
may agree to use alternative means of meeting participation, such as video
conferences and conference calls.
(iii) Waiver of resolution session. The parent and the school district may
agree, in writing, to waive the resolution session or agree to use the mediation
process described in subdivision (h) of this section to resolve the
dispute.
(iv)
Written settlement agreement.
If 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.
If the school district has not resolved the complaint to the satisfaction
of the parents within 30 days of the receipt of the due process hearing request
notice, the impartial due process hearing may occur, and all the applicable
timelines for an impartial due process hearing under subdivision (j) of this
section shall commence.
(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, [The] the board of education shall arrange for [such a]
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)
The rotational selection process must be initiated immediately, but not
later than two business days after receipt by the school district of the
[written request for the hearing] due process hearing request notice or
mailing of the due process hearing request notice to the
parent.
(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 hearing
request notice within five days of receiving such a request and to initiate
the hearing within the first 14 days of being appointed by the school
district.
(ii)
. . . .
(iii) Unless an extension is granted pursuant to subparagraph (5)(i)
of this subdivision, [The] the hearing, or a prehearing conference,
shall [be scheduled to begin] commence within the first 14 days [of the
impartial hearing officer's appointment, unless an extension is granted pursuant
to subparagraph (4)(i) of this subdivision] after:
(a) the date upon which the parent and school district agree in
writing to waive the resolution session and commence an impartial due process
hearing; or
(b) the date upon which the school district informs the impartial
hearing officer that a resolution session was held but no agreement could be
reached.
(iv)
. . . .
(v) .
. . .
(vi)
. . . .
(vii) . . . .
(viii) . . . .
(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, [at least] 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) .
. . .
(c) .
. . .
(d) .
. . .
(e) .
. . .
(f)
. . . .
(g) .
. . .
(xiii) . . . .
(xiv) . . . .
(xv) . . .
.
(xvi) . . . .
(xvii) When carrying out administrative matters relating to an
impartial due process hearing, such as scheduling, exchange of witness lists and
status conferences, the parent and the school district may agree to use
alternative means of meeting participation, such as video conferences and
conference calls.
(4)
Decision of the impartial hearing officer. (a) In general. Subject to subparagraph (b), a decision
made by an impartial hearing officer shall be made on substantive grounds based
on a determination of whether the student received a free appropriate public
education.
(b)
Procedural issues. In
matters alleging a procedural violation, an impartial hearing officer may find
that a student did not receive a free appropriate public education only if the
procedural inadequacies impeded the student's right to a free appropriate public
education, significantly impeded the parent's opportunity to participate in the
decision-making process regarding the provision of a free appropriate public
education to the parent's child, or caused a deprivation of educational
benefits. Nothing in this paragraph
shall be construed to preclude an impartial hearing officer from ordering a
school district to comply with procedural requirements under this Part and Part
201 of this Title.
(5)
Timeline to render a decision.
Except as provided in section 200.16(g)(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 [after the
receipt by the board of education of a request for a hearing or after the
initiation of such a hearing by the board] from the date required for
commencement of the impartial hearing in accordance with paragraph (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)
. . . .
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(v) .
. . .
[(j)] (k) . . .
.
[(k)] (l)
. . . .
[(l)] (m) Student's status during proceedings. (1) Except as otherwise provided in
paragraph (2) of this subdivision and section 200.16 and Part 201 of this Title,
during the pendency of any proceedings conducted pursuant to subdivision [(i)
or] (j) or (k) of this section, unless the local board of education and
the parents otherwise agree, the student shall remain in the then current
placement of such student. During
the pendency for any due process proceeding relating to the evaluation and
initial placement in special education, unless the local board of education and
the parents otherwise agree, the student shall not be evaluated and shall remain
in the then current educational placement of such student or, if applying for
initial admission to a public school, shall be placed in the public school
program until all such proceedings have been completed.
(2)
If a decision of a State review officer, pursuant to subdivision [(j)]
(k) of this section, agrees with the student's parents that a change of
placement is appropriate, that placement must be treated as an agreement between
the State or school district and the parents for purposes of pendency during any
subsequent appeals pursuant to paragraph [(j)(3)] (k)(3) of this
section.
[(m)] (n) Surrogate parents.
(1) Duty of the board
of education. The board of
education or other appropriate body shall select a surrogate parent from a list
of individuals who are eligible and willing to serve as surrogate parents in
order to ensure that the rights of a student are protected
if:
(i)
. . . .
(ii)
the school district, after reasonable efforts cannot discover the
whereabouts of a parent, or the student is an unaccompanied homeless youth,
as such term is defined in section 100.2(x)(1)(vi) of this Title;
or
(iii) . . . .
(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) . . . .
(iv)
. . . .
(v) .
. . .
9.
A new subdivision (m) is added to section 200.6 of the Regulations of the
Commissioner of Education, effective September 29, 2005, as
follows:
(m)
Interim alternative education setting (IAES). Students with disabilities who have been
suspended or removed from their current placement for more than 10 school days
pursuant to Part 201 may be placed in an IAES. The IAES, to the extent provided in Part
201 of this Title, shall be an educational setting, other than the student's
current placement at the time the behavior precipitating the IAES placement
occurred that enables the student to:
(1)
continue to progress in the general education curriculum, although in
another setting;
(2)
progress toward the goals set out in the student's IEP;
and
(3)
receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so that it does not recur.
10.
Paragraph (4) of subdivision (c) and subdivision (d) of section 200.7 of
the Regulations of the Commissioner of Education are amended, effective
September 29, 2005, as follows:
(4)
An educational progress report on each student, which describes such
student's progress toward meeting the annual goals, shall be provided by the
approved school to the committee on special education of the referring district
or the referring agency at least annually.
Other required data and/or reports shall be made available by the private
school to the referring district or agency on request.
(d)
Appointment of blind, deaf and severely physically disabled students to
certain State-operated and State-supported schools pursuant to articles 85, 87
and 88 of the Education Law, chapter 1060 of the Laws of 1974 and chapter 474 of
the Laws of 1996.
(1)
Application for State appointment of deaf, blind, severely physically
disabled or severely emotionally disturbed students to State-operated or
State-supported schools for the blind, deaf, severely physically disabled or
severely emotionally disturbed shall be initiated by parents through application
to the commissioner, supported by adequate written evidence of blindness,
deafness or severe disability, or by the committee on special education or
committee on preschool special education of the school district responsible for
the student. The commissioner or
the committee on special education or committee on preschool special education
will direct the parents to make arrangements at a State-operated or
State-supported school designated by the commissioner for an evaluation. Such school shall evaluate the student's
special educational needs and eligibility for its program.
(i)
. . . .
(a) .
. . .
(b) .
. . .
(c) .
. . .
(d) .
. . .
(e) . . . .
(f) In the case
of a student not recommended for appointment to a particular State-operated
school, or in the event of a change in a recommendation concerning the
classification, placement or provision of a free appropriate public education to
a student at a State-operated school, the State-operated school shall notify the
parent. Such notification shall be
comparable to that required by section 200.5(a) of this Part, shall include all
reasons for lack of acceptance of the student into the program or for the change
in the recommendation, and shall include suggestions for more appropriate
placement or program. The parent
may request mediation or may, in accordance with section 200.5(i) of this
Part, file with the department a written request for a hearing before an
impartial hearing officer who will be designated by the department. Such hearing officer shall not be an
employee of the department. The
procedures relating to a resolution session, the conduct of the hearing
and review of the decision of the hearing officer shall be comparable to those
set forth in section [200.5(i)] 200.5(j) through [(j)] (k) of this
Part.
(ii)
. . . .
(iii) with respect to an application for admission of a preschool student
with a disability to a State-supported school, the school shall report the
results of its evaluation to the committee on preschool special education. Upon receipt of such report, the
committee on preschool special education shall conduct a meeting in accordance
with the provisions of section 200.16 of this Part. The committee may recommend that the
commissioner appoint the student to the State-supported school, or it may
recommend a different placement. If
the parents disagree with the recommendation of the committee on preschool
special education, they may request mediation or [that the board of education
appoint an impartial hearing officer] submit a request for an due process
impartial hearing pursuant to sections 200.5(i) and (j) to review that
recommendation[,]. [and the]
The impartial hearing officer shall consider, together with all other
relevant information, the evaluation conducted by the State-supported
school. If the committee on
preschool special education has recommended a placement other than the
State-supported school, and the impartial hearing officer finds that such
recommendation is inappropriate and that placement in the State-supported school
would be appropriate, the impartial hearing officer may order that the
board of education recommend to the commissioner that the student be placed in
the State-supported school. The
decision of the impartial hearing officer may be appealed in accordance
with section 4404 of the Education Law.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6) .
. . .
(7) .
. . .
(e) .
. . .
11. Subdivisions (d) and
(e) of section 200.14 of the Regulations of the Commissioner of Education are
amended, effective September 29, 2005, as follows:
(d)
Recommendation. [Individualized education program
(IEP).]
(1)
The results of the individual evaluation described in subdivision (c) of
this section, as well as the suggestions of the treatment team, including the
type, frequency and duration of services needed to meet the student’s mental
health and educational needs, shall be used in the development of the (IEP)
individualized education program (IEP).
(2)
Individualized education program (IEP). The IEP shall be developed, pursuant to
section 200.4 of this Part, in meetings of the committee on special
education, except as provided in section 200.4(g) of this Part. A representative of the treatment team
shall be given the opportunity to attend.
In the event that such representative is unable to attend such meetings,
the committee shall attempt alternative means of assuring the representative's
participation, such as individual or conference telephone discussions, and such
attempts shall be documented.
Referral to the committee on special education for review of the IEP
shall be conducted pursuant to section 200.4(d) of this Part.
(e)
Student progress reports.
(1) .
. . .
(2) .
. . .
(3)
An annual review and reevaluation of each student's IEP shall be
conducted pursuant to [section 200.4(e)] sections 200.4(b) and (f) of
this Part and subdivision (d) of this section.
(f)
. . . .
12. Section
200.16 of the Regulations of the Commissioner of Education is amended, effective
September 29, 2005, as follows:
200.16 Educational programs
for preschool students with disabilities
Educational programs and services for preschool students with
disabilities, as defined in section 200.1(mm) of this Part, shall be provided in
accordance with this section, and those other applicable provisions of this Part
that are not inconsistent with this section. Where other provisions of this Part are
made applicable to preschool students with disabilities, committee on special
education shall mean a committee on preschool special education; student shall
mean a preschool student with a disability; and programs shall mean preschool
programs.
(a) .
. . .
(b)
[Procedures for referral, evaluation, individualized education program
development, placement and review.]
(1) Referral . . . .
(c)
Individual evaluation and reevaluation. (1) . . . .
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
[(6)] (d) Evaluations and eligibility determinations. (1) Upon the completion of the
administration of tests and other evaluation materials, the committee must
determine whether the student is a preschool student with a disability, as
defined in section 200.1(mm) of this Part.
(2) [For purposes of eligibility and continuing eligibility
determinations] Upon completion of the administration of assessments and
other evaluation measures, the committee must provide a copy of the
evaluation report and the documentation of determination of eligibility to the
parent.
[(7)] (3)
. . . .
[(8)] (4). . . .
(5)
A committee on preschool special education shall provide for an
appropriate reevaluation of a preschool student with a disability in accordance
with section 200.4(b)(4), (5) and (6) of this Part.
[(d)] (e) Recommendation.
[Individualized education program (IEP).]
(1) .
. . .
(2) .
. . .
(3)
Individualized education program (IEP). If the committee determines that the
preschool child has a disability, the committee shall recommend approved
appropriate services and/or special programs and the frequency, duration,
location and intensity of such services including, but not limited to, the
appropriateness of single services or half-day programs based on the individual
needs of the preschool child. The
committee shall first consider the appropriateness of providing (i) related
services only; or (ii) special education itinerant services only; or (iii)
related services in combination with special education itinerant services; or
(iv) a half-day preschool program as defined in section [200.1] 200.1(u)
of this Part; or (v) a full-day preschool program as defined in section
200.1(p) of this Part. If the
committee determines that the child demonstrates the need for a single related
service, such service shall be provided as a related service only or, where
appropriate, as a special education itinerant service. The IEP recommendation shall be
developed in accordance with section 200.4(d)(2), (3) and (4) of this Part
[provided that subparagraphs (2)(v), (viii), and (ix) of such section shall not
apply]. In addition, the
recommendation for special education programs and services for a preschool
student with a disability shall:
(iv)] (i) prior to recommending the provision of special education
services in a setting which includes only preschool children with disabilities,
the committee shall first consider providing special education services in a
setting where age-appropriate peers without disabilities are typically
found. Provision of special
education services in a setting with no regular contact with age-appropriate
peers without disabilities shall be documented on the child’s IEP and shall only
be considered when the nature or severity of the child’s disability is such that
education in a less restrictive environment with the use of supplementary aids
and services cannot be achieved satisfactorily; and
(vi)] (ii) . . . .
(4)
[The] Except as provided in section 200.4(g) of this Part, the
committee’s recommendation shall be developed at a meeting of the committee on
preschool special education in accordance with section 200.4(d)(4) of this Part
and section 4410 of the Education Law.
To the extent possible, any meeting of the committee shall be held at a
site and time mutually convenient to the members of the committee and the
parent of the preschool student, including but not limited to the worksite of
the evaluator, the municipal representative on the committee, or the chairperson
of the committee. The committee’s
recommendation shall be developed following a review of information presented by
the preschool student’s teacher(s) and/or the parent, the evaluation results
provided by the approved program, results of other evaluations, and any other
appropriate information provided by an agency charged with responsibility for
the student. However, if the
committee determines that a child requires a structured learning environment of
12 months duration to prevent substantial regression, the committee shall
include in its recommendation a statement of the reasons for such recommendation
as part of the IEP document.
(5) .
. . .
(6) .
. . .
(7) .
. . .
[(e)] (f) Provision of services for preschool students with
disabilities. (1) . . .
.
(2) .
. . .
(3) .
. . .
(4) .
. . .
(5) .
. . .
(6)
The IEP of a preschool student with a disability shall be implemented in
accordance with section 200.4(e)(1)(i) and (ii), (3), (4), [and]
(7), (8) and (9) of this Part, except that during the pendency of
proceedings conducted pursuant to paragraphs [(g)(9)] (h)(9) and (10) of
this section, the placement of a preschool student shall be as provided in
paragraph [(g)(3)] (h)(3) of this section.
[(f)] (g) Annual
review. The individualized
education program (IEP) of each preschool student with a disability shall be
reviewed and, if appropriate, revised periodically but not less
frequently than annually in accordance with section [200.4(f)(1) through
(3)] 200.4(f) of this Part.
In any such meeting of the committee, the professional who participated
in the evaluation shall upon request of the parent or committee, attend and
participate at such meeting.
[(g)] (h) Procedural
due process. (1) Prior
written notice of initial evaluation, review or reevaluation of a
preschool student with a disability shall be made in accordance with section
[200.5(a)(1) through (4) and (5)(i), (ii) and (vii)] 200.5(a) of this
Part.
(i)
. . . .
(2) .
. . .
(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
[subparagraph (2)(i) of this subdivision] section 200.5(f)(4) of this
Part, the procedural safeguards notice shall also:
(i)
indicate that during the pendency of any proceedings conducted pursuant
to this Part, those preschool students with disabilities who are receiving
special education programs or services pursuant to section 4410 of the Education
Law shall remain in the then current education placement of such preschool
student until all such proceedings have been completed, except as otherwise
provided in section [200.5(l)] 200.5(m) of this Part. Nothing in this subparagraph shall
require that a student with a disability remain in a preschool program for which
he or she is no longer eligible pursuant to section 4410 of the Education Law
during the pendency of any proceeding brought pursuant to this
Part;
(ii)
. . . .
(iii) . . . .
(iv)
. . . .
(4) .
. . .
(5)
Notice upon recommendation.
Prior written notice of the recommendation of the committee on
preschool special education shall be provided to the board of education and to
the parent of the preschool student in accordance with section 200.5(a) of this
Part. The notice upon
recommendation shall indicate that, in the event that the parent does not
provide consent for the initial provision of special education services, no
further action will be taken by the committee on preschool special education
until such consent is obtained.
(6) .
. . .
(7) .
. . .
(8) .
. . .
(9)
Impartial due process hearings. Impartial due process hearings
shall be conducted in accordance with section [200.5(i)] 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 or after the
initiation of such hearing by the board.
(10) Appeal to a
State review officer. Decisions of
impartial hearing officers shall be subject to the review of a State review
officer of the State Education Department in accordance with section [200.5(j)]
200.5(k) of this Part.
(11) State
complaints. State complaint
investigations shall be conducted in accordance with section [200.5(k)]
200.5(l) of this Part.
(12) Surrogate
parents. Surrogate parents shall be
appointed in accordance with section [200.5(m)] 200.5(n) of this
Part.
(13) . . .
.
[(h)] (i)
. . . .
13.
Subdivision (k) of section 201.2 of the Regulations of the Commissioner
of Education is amended, a new subdivision (m) is added and subdivisions (m)
through (r) are relettered as (n) through (s), effective September 29, 2005, as
follows:
(k)
Interim alternative educational setting or IAES means a temporary
educational placement [for a period of up to 45 days] determined by the
committee on special education, other than the student’s current placement
at the time the behavior precipitating the IAES placement occurred, that enables
the student to continue to:
(1) progress in the general education curriculum, although
in another setting[, to continue to receive those services and modifications,
including those described on the student’s current IEP, that will enable the
student to meet the goals set out in such IEP and include services and
modifications to address the behavior which precipitated the IAES placement that
are designed to prevent the behavior from
recurring];
(2)
progress toward the goals set out in the student’s IEP;
and
(3)
receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so that it does not recur.
(m)
Serious bodily injury means bodily injury which involves a substantial
risk of death, extreme physical pain, protracted and obvious disfigurement or
protracted loss or impairment of the function of a bodily member, organ or
mental faculty.
[(m)] (n) . . .
.
[(n)] (o)
. . . .
[(o)] (p)
. . . .
[(p)] (q) . . . .
[(q)] (r) . . . .
[(r)] (s)
. . . .
14. Section
201.3 of the Regulations of the Commissioner of Education is amended, effective
September 29, 2005, as follows:
201.3 CSE responsibilities for functional behavioral assessments and
behavioral intervention plans. When a student with a disability is suspended
or removed from the student’s current placement for more than 10 consecutive
school days or when a suspension or removal constitutes a disciplinary change of
placement and the student’s conduct is a manifestation of the student’s
disability, the committee on special education shall:
(a)
[Initial requirement to conduct assessment and develop plan or to review
existing plan. Not later than 10
business days after first suspending or removing a student with a disability for
more than 10 school days in a school
year or imposing a suspension or removal that constitutes a disciplinary
change in placement, including a change in placement to an IAES pursuant to
section 201.7(e) of this Part for behavior involving carrying or possessing a
weapon or possession or use of an illegal drug or selling or soliciting the sale
of a controlled substance:
(1) If the school district did not conduct a functional behavioral
assessment and implement a behavioral intervention plan for the student before
the behavior that resulted in the suspension or removal, the school district
shall convene a meeting of the CSE to develop an assessment plan. As soon as practicable after developing
such behavioral assessment plan, and completing the assessments required by the
plan, the school district shall convene a meeting of the CSE to develop
appropriate behavioral interventions to address that behavior and shall
implement those interventions; and] conduct a functional behavioral
assessment and implement a behavioral intervention plan for such student,
provided that the school district had not conducted such assessment prior to the
manifestation determination before the behavior that resulted in the change in
placement; or
(2)
if the student already has a behavioral intervention plan, the CSE shall
meet to review such plan and its implementation and modify the plan and its
implementation as necessary, to address the behavior that resulted in the
change in placement.
15. Section
201.4 of the Regulations of the Commissioner is amended, effective September 29,
2005, as follows:
(2) Upon a determination by the [CSE] 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. 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 [CSE] 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.
(3) Notwithstanding the provisions of paragraphs (1) and (2) of this
subdivision, if the superintendent or hearing officer in the superintendent's
hearing is considering the change in placement of a student with a disability to
an IAES pursuant to section 201.7(e) of this Part, upon a determination that the
student is guilty of the alleged misconduct relating to serious bodily
injury, weapons, illegal drugs or controlled substances, the superintendent
of schools may order, or the hearing officer in the superintendent's hearing may
recommend, such change in placement to an IAES, to be determined by the CSE, for
up to 45 school days, but not to exceed the length of time that a
nondisabled student would be suspended for the same misconduct under the school
district's student discipline policy. The superintendent of schools may order
such change in placement of a student with a disability to an IAES, directly or
upon recommendation of a hearing officer in the superintendent's hearing, even
where the [CSE] manifestation team determines that the student's behavior
is a manifestation of the student's disability.
(4) The penalty phase of a superintendent's hearing for a student with a
disability or a student presumed to have a disability for discipline purposes
shall be conducted in the same manner as the penalty phase of a hearing
involving a nondisabled student, including the admission of anecdotal evidence
of past instances of misconduct. The school district shall assure that copies of
the special education and disciplinary records of the student are transmitted to
the superintendent of schools or hearing officer in the superintendent's hearing
for consideration. Such records shall be transmitted whether or not the [CSE]
manifestation team has determined that the student's behavior is a
manifestation of the student's disability.
(5) Nothing in this section shall be construed to authorize the
suspension or removal of a student with a disability from his or her current
educational placement for violation of school rules following a determination by
the [CSE] manifestation team that the behavior is a manifestation of the
student's disability, except where the student is placed in an IAES for behavior
involving serious bodily injury, weapons, illegal drugs or controlled
substances pursuant to section 201.7(e) of this Part or the student is placed in
an IAES by an impartial hearing officer pursuant to section 201.8 of this Part.
20. Subdivisions (c), (d)
and (e) of section 201.10 of the Regulations of the Commissioner of Education
are amended, effective September 29, 2005, as follows:
(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 appropriately
progress in the general education curriculum and appropriately advance
toward achieving the goals set out in the student's IEP and to receive, as
appropriate, a functional behavioral assessment and behavioral intervention
services and modifications that are designed to address the behavior violation
so it does not recur. The [building principal, superintendent of schools or
other school officials imposing the suspension, or other school personnel
delegated such authority, shall determine, in consultation with the student's
special education teacher, the extent to which services are necessary to enable
the student to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals set out in the student's IEP]
CSE shall determine the services to be provided to the student.
(d) During suspensions or other disciplinary removals for periods in
excess of 10 school days in a school year which [do] constitute a disciplinary
change in placement for behavior [that has been determined by the CSE not to be
a manifestation of the student's disability], students with disabilities shall
be provided with services in the IAES necessary to enable the student to
appropriately progress in the general education curriculum and
appropriately advance toward achieving the goals set out in the student's
IEP, and to receive, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications that are designed to address
the behavior violation so it does not recur. The CSE shall determine the
extent to which services are necessary to enable the student to appropriately
progress in the general education curriculum and appropriately advance
toward achieving the goals set out in the student's IEP and the student's
need for a functional behavioral assessment, behavioral intervention services
and modifications to address the behavior.
(e) [Notwithstanding any other provision of this section to the contrary,
the] The interim alternative educational setting and the services to be
provided to a student placed in an interim alternative educational setting
[pursuant to section 201.7(e) of this Part] shall be determined by the CSE [and
the setting to be provided to a student placed in an IAES pursuant to section
201.8 of this Part shall be determined by the impartial hearing officer upon
receipt of a proposed setting by school personnel who have consulted with the
student's special education teacher]. Such setting shall:
(1) be selected so as to enable the student to continue to progress in
the general curriculum, although in another setting, and to continue to receive
those modifications[, including those described in the student's current IEP,]
that will enable the child to meet the goals set out in that IEP; and
(2) include, as appropriate, a functional behavioral assessment and
behavioral intervention services and modifications to address the behavior
that is subject to disciplinary action, that are designed to prevent the
behavior from recurring.
21.
Subdivisions (b) and (d) of section 201.11 of the Regulations of the
Commissioner of Education is amended, effective September 29, 2005, as
follows:
(b) An expedited due process hearing shall be conducted in accordance
with the procedures specified in 34 C.F.R. sections 300.508 and 300.509 (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) and subdivision [(i)] (j) of
section 200.5 of this Title, except as follows:
(1) . . . .
(2) . . . .
(d) If a parent requests a hearing or an appeal regarding the change in
placement of a student to an IAES by a superintendent of schools [pursuant to a
change in placement to an IAES pursuant to section 201.7(e) of this Part for
behavior involving carrying or possessing a weapon or illegal drug or controlled
substances], or regarding a change in placement [to an IAES] by an impartial
hearing officer pursuant to section 201.8 of this Part where the school district
maintains that it is dangerous for the student to remain in his or her current
educational placement, or regarding a determination that the behavior is not a
manifestation of the student's disability for a student who has been placed in
an IAES, the student shall remain in the IAES pending the decision of the
impartial hearing officer or until expiration of the time period determined in
accordance with [section 201.7(e)] 201.7 or [in accordance with] section
201.8 of this Part, as applicable, [but not to exceed 45 days,] whichever occurs
first, unless the parents and the school district otherwise agree.
(e) . . . .
