117.1 Scope of Part.

The purpose of this Part is to establish standards for the screening of every new entrant to the schools to determine which [pupils] students are possibly gifted, have or are suspected of having a [possible handicapping condition] disability in accordance with subdivision (6) of section 3208 of the Education Law and/or possibly are limited English proficient in accordance with subdivision 2-a of section 3204 of the Education Law.

117.2 Definitions.

As used in this Part:

(a) A [pupil] student who [has a possible handicapping condition] is suspected of having a disability shall mean a [pupil] student who, on the basis of diagnostic screening, shows evidence of being a [pupil with a handicapping condition] preschool student with a disability or student with a disability as defined in section 200.1[(d)] (mm) and 200.1(zz) of this Title respectively.

(b) A [pupil] student who possibly is limited English proficient shall mean a [pupil] student who, on the basis of diagnostic screening, appears to meet the definition of limited English proficiency as contained in section 154.2 of this Title.

(c) A [pupil] student who is possibly gifted shall mean a [pupil] student who, on the basis of diagnostic screening, appears to meet the definition of gifted and talented as contained in section 142.2 of this Title.

(d) New entrant shall mean a [pupil] student entering the New York State public school system, pre-kindergarten through grade 12, for the first time, or reentering a New York State public school with no available record of a prior screening.

(e) [For purposes of paragraph (a) of subdivision (5) of section 3208 of the Education Law, pupils who score below level two on either the third grade reading or mathematics test for New York State elementary schools and pupils who obtain a comparable percentile score on the Regents Preliminary Competency Test in reading or writing shall mean pupils obtaining scores that have been designated by the commissioner as the scores indicating the need for diagnostic screening.] A student with low test scores shall mean a student who scores below level two on either the third grade English language arts or mathematics assessment for New York State elementary schools. Those [pupils] students exempted from testing as non-English-speaking shall be examined in the [pupil's] student's native language through similar procedures, and shall be screened for [possible handicapping conditions] suspected disabilities if resultant scores are comparable to those indicated above.

(f) Diagnostic screening shall mean a preliminary method of distinguishing from the general population those [pupils] students who may possibly be gifted, those [pupils] students who may [possibly have a handicapping condition] be suspected of having a disability and/or those [pupils] students who possibly are limited English proficient.

117.3 Diagnostic Screening.

(a) Each school district shall develop a plan for the diagnostic screening of all new entrants [, pupils who score below level two on either the third grade reading or mathematics test for New York State elementary schools and students who obtain a comparable percentile score on the Regents Preliminary Competency Test, and all such new entrants, pupils and students shall receive such screening] and students with low test scores. All new entrants and students with low test scores shall be screened in accordance with the plan.

(b) Such diagnostic screening shall be conducted:

(1) by persons appropriately trained or qualified;

(2) by persons appropriately trained or qualified in the [pupil's] student's native language if the language of the home is other than English;

(3) in the case of new entrants, such screening shall be conducted prior to the school year, if possible, but no later than December first of the school year of entry, or within 15 days of transfer of a [pupil] student into a New York State public school should the entry take place after December first of the school year;

(4) in the case of [pupils who score below level two on either the third grade reading or mathematics test for New York State elementary schools, and students who obtain a comparable percentile score on the Regents Preliminary Competency Test,] students with low test scores, such screening shall be conducted within 30 days of the availability of the test scores.

(c) Diagnostic screening for new entrants shall include, but not be limited to:

(1) a health examination by a [duly licensed physician] health care provider, or evidence of such in the form of a health certificate, in accordance with sections 903, 904 and 905 of the Education Law;

(2) certificates of immunization or referral for immunization in accordance with section 2164 of the Public Health Law;

(3) [a determination of receptive and expressive language development, motor development, articulation skills and cognitive development;] vision, hearing and scoliosis screenings as required by section 136.3 of this Title;

(4) a determination of development in oral expression, listening comprehension, written expression, basic reading skills and reading fluency and comprehension, mathematical calculation and problem solving, motor development, articulation skills, and cognitive development using recognized and validated screening tools; and

(5) a determination [that] whether the [pupil] student is of foreign birth or ancestry and comes from a home where a language other than English is spoken as determined by the results of a home language questionnaire and an informal interview in English and the native language.

[(d)] (e) The results of the diagnostic screening shall be reviewed and a written report of each [pupil] student screened shall be prepared by appropriately qualified school district staff. Such report shall include a description of diagnostic screening devices used, the [pupil's] student's performance on those devices and, if required, the appropriate referral.

[(e)] (f) A [pupil who may have a handicapping condition] student who is suspected of having a disability shall be referred to the committee on special education or the committee on preschool special education, as appropriate, no later than 15 calendar days after completion of such diagnostic screening. Such referral shall be accompanied by the report of such screening.

[(f)] (g) A [pupil] student identified as possibly gifted shall be reported to the superintendent of schools and to the parent or legal guardian of such child no later than 15 calendar days after completion of such screening. Such referral shall be accompanied by the report of such screening.

[(g)] (h) A [pupil] student identified as possibly being limited English proficient shall be assessed in accordance with Part 154 of this Title.

STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents at its head and the Commissioner of Education as the chief administrative officer, and charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law section 207 empowers the Board of Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department by law.

Education Law section 3208(5) requires school districts to provide for the screening of all new entrants to school, as well as students with low test scores on certain statewide assessments.

Education Law section 4403(3) authorizes the Commissioner to formulate such rules and regulations pertaining to the physical and educational needs of students with disabilities as the Commissioner shall deem to be in their best interests.

LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to make technical changes to Part 117 of the Commissioner's Regulations that clarify existing requirements pertaining to the screening of new entrants to school and students with low test scores on certain statewide assessments.

NEEDS AND BENEFITS:

The proposed amendment is necessary to achieve consistency between the definitions in Part 117 and those in other provisions of the Regulations of the Commissioner of Education. Specifically, the definition of a pupil with a possible “handicapping condition” [section 117.2(a)] is amended to conform to the definitions of a “preschool student with a disability” and a “student with a disability” as defined in sections 200.1(mm) and 200.1(zz) respectively. The definition of pupils who must receive diagnostic screening based on their performance on statewide tests [section 117.2(e)] is amended to reflect the definition of a student with low test scores established in Education Law section 3208(5).

Further, these amendments clarify the existing screening requirements. Section 117.2(d) is amended to clarify that prekindergarten students are included in the definition of “new entrants.” A new section 117.2(g) is added to define “health care provider.” This definition in consistent with that found in Part 136 of the Commissioner's Regulations pertaining to school health services and provides districts and parents with greater flexibility regarding the type of health care professional who can provide the required health and immunization certifications. Section 117.3(b) is amended to incorporate the health screening requirements set forth in section 136.3.

COSTS:

(a) Costs to State government: None.

(b) Costs to local government: None.

(c) Costs to private regulated parties: None.

(d) Costs to regulating agency for implementation and continued administration of this rule: None.

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and will not impose any additional costs on the State, local governments, private parties or the State Education Department.

LOCAL GOVERNMENT MANDATES:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and does not impose any additional program, service, duty or responsibility on local governments.

PAPERWORK:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and imposes no new paperwork requirements.

DUPLICATION:

The proposed amendment does not duplicate existing State or Federal requirements, and merely conforms Part 117 of the Commissioner's Regulations to other provisions of the Commissioner's Regulations and Education Law section 3208.

ALTERNATIVES:

There are no significant alternatives to be considered. The proposed amendment is necessary to conform Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208.

FEDERAL STANDARDS:

There are no related federal standards.

COMPLIANCE SCHEDULE:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208. It is anticipated that school districts will be able to comply with the provisions of this amendment immediately.

Small Businesses:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that small businesses will not be affected, no further measures are needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

EFFECT OF RULE:

The proposed amendment applies to all public school districts in the State.

COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to conform the screening requirements for new entrants to school and students with low test scores to other provisions of the Regulations of the Commissioner of Education and Education Law section 3208, and imposes no new compliance requirements on school districts. Specifically, the definition of a pupil with a possible “handicapping condition” [section 117.2(a)] is amended to conform to the definitions of a “preschool student with a disability” and a “student with a disability” as defined in sections 200.1(mm) and 200.1(zz) respectively. The definition of pupils who must receive diagnostic screening based on their performance on the statewide tests [section 117.2(e)] is amended to reflect the definition of students with low test scores established in Education Law section 3208(5).

Further, these amendments clarify the existing screening requirements. Section 117.2(d) is amended to clarify that prekindergarten students are included in the definition of “new entrants.” A new section 117.2(g) is added to define “health care provider.” This definition in consistent with that found in Part 136 of this Title pertaining to school health services and provides districts and parents with greater flexibility regarding the type of health care professional who can provide the required health and immunization certifications. Section 117.3(b) is amended to incorporate the health screening requirements set forth in Section 136.3 of this Title.

PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional services requirements on school districts.

COMPLIANCE COSTS:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and will not impose any additional costs on school districts.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any additional costs or new technological requirements on school districts.

MINIMIZING ADVERSE IMPACT:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and does not impose any additional costs or compliance requirements upon school districts.

LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been sent for review and comment to District Superintendents for distribution to school districts within their superintendencies. The proposed amendment will also be posted on the Universal Prekindergarten web site to facilitate a wide distribution. In addition, the proposed amendment will be disseminated to the Department's External Work Group on Universal Prekindergarten, which includes representatives from small businesses and local government.

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all school districts in the State, including those located in the 44 rural counties having less than 200,000 inhabitants and the 71 towns in urban counties having a population density of 150 per square mile or less.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS, AND PROFESSIONAL SERVICES:

The proposed amendment is necessary to achieve consistency between the definitions in this Part and those in other provisions of the Commissioner's Regulations and Education Law section 3208. Specifically, the definition of a pupil with a possible “handicapping condition” [section 117.2(a)] is amended to conform to the definitions of a “preschool student with a disability” and a “student with a disability” as defined in sections 200.1(mm) and 200.1(zz) respectively. The definition of pupils who must receive diagnostic screening based on their performance on the statewide assessments [section 117.2(e)] is amended to reflect the definition of a student with low test scores established in Education Law section 3208.

The proposed amendment is necessary to conform the diagnostic screening requirements for new entrants to school and students with low test scores to other provisions of the Commissioner's Regulations and Education Law section 3208, and imposes no new compliance requirements on school districts.

Further, these amendments clarify the existing screening requirements. Section 117.2(d) is amended to clarify that prekindergarten students are included in the definition of “new entrants.” A new section 117.2(g) is added to define “health care provider.” This definition in consistent with that found in Part 136 of this Title pertaining to school health services and provides districts and parents with greater flexibility regarding the type of health care professional who can provide the required health and immunization certifications. Section 117.3(b) is amended to incorporate the health screening requirements set forth in section 136.3 of this Title.

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on rural areas.

COMPLIANCE COSTS:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and will not impose any additional costs on school districts in rural areas.

MINIMIZING ADVERSE IMPACT:

The proposed amendment merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and will not impose any additional costs or compliance requirements on school districts. Furthermore, because this amendment is applicable to all school districts across the State, it was not possible to provide for a lesser standard or an exemption for school districts in rural areas.

RURAL AREA PARTICIPATION:

The proposed amendment has been sent for review and comment to members of the Department's Rural Advisory Committee, which includes representatives from rural areas. The proposed amendment will also be posted on the Universal Prekindergarten web site to facilitate wide distribution. Additionally, the proposed amendments will be disseminated to the Department's External Work Group on Universal Prekindergarten, which includes representatives from small businesses and local government located in rural areas.

The proposed amendment relates to diagnostic screening of public school students and merely conforms Part 117 to other provisions of the Commissioner's Regulations and Education Law section 3208, and will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no impact on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.