Section 100.2(ii), as added, establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.

Section 120.6(a), as amended, incorporates by reference the Federal definition of highly qualified special education teachers.

Section 200.1, as amended, revises definitions of parent, related services, school health school services and supplementary aids and services; adds the definition of interpreting services consistent with the Federal definition; makes technical amendments to definitions of consultant teacher services and transition services; and corrects cross citations relating to definitions of full-day preschool program, guardian ad litem, preschool program, student with a disability and twelve-month special service and/or program.

Section 200.2, as amended, makes technical changes and corrects cross citations and incorporations by reference relating to board of education written policies and procedures, responsibilities of boards of cooperative education services, and maintenance of impartial hearing officer (IHO) lists; requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.

Section 200.3, as amended, corrects a cross citation relating to subcommittee membership; and conforms State regulations relating to the role of a regular education teacher on the committee on special education (CSE) to federal regulations.

Section 200.4, as amended, makes technical amendments and corrects cross citations relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to federal requirements relating to: parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, individualized education program (IEP) contents, and students who transfer districts; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner of Education; and adds additional procedures for identifying students with learning disabilities.

Section 200.5, as amended, corrects cross citations relating to other required notifications, consent for release of information, and impartial hearing timelines; corrects incorporations by reference relating to parent participation in CSE meetings and confidentiality of personally identifiable data; makes a technical change relating to surrogate parent; conforms State due process requirements to federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations, mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner of Education; adds steps the district must take to ensure parents participate in the resolution meetings; adds that the terms of a settlement agreement may be read into the record as an agreement between the parties only and the agreement would be enforceable in State or Federal court; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.

Section 200.6, as amended, makes certain technical changes relating to the continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; adds that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.

Section 200.7(b), as amended, conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to federal regulations.

Section 200.8(c), as amended, corrects a cross citation relating to the submission of claims for preschool students with disabilities.

Section 200.9(f), as amended, corrects a cross citation relating to tuition reimbursement methodology.

Section 200.13, as amended, corrects cross citations relating to educational programs for students with autism.

Section 200.14(f), as amended, corrects a cross citation relating to students with disabilities enrolled in day treatment programs.

Section 200.16, as amended, makes technical changes regarding IEEs; corrects cross citations relating to referral and the continuum of services for preschool students; conforms State regulations relating to procedural safeguards to federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.

Section 201.2, as amended, removes an incorporation by reference and adds a cross citation relating to the definition of a student presumed to have disability for discipline purposes; conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the federal definitions; adds that district has authority to determine on a case-by-case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.

Section 201.3, is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments and behavioral intervention plans to federal requirements.

Section 201.4, as amended, requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.

Section 201.5, as amended, removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.

Section 201.6, as amended, requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.

Section 201.7(e), as amended, corrects a cross citation. 201.7(f), as amended, clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.

Section 201.8, as amended, repeals the considerations that an IHO must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.

Section 201.9(c), as amended, corrects a cross citation relating to the procedures for suspensions of more than five school days.

Section 201.10, as amended, repeals an incorporation by reference and establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.

Section 201.11, as amended, conforms procedures for expedited hearings and timelines for an expedited hearing consistent with federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.

A cross citation has also been corrected in section 200.22(b)(3).

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the following substantial revisions were made to the proposed rule:

Section 100.2(ii) was revised to provide further specificity to the minimum requirements for response to intervention (RTI) programs; define research-based instruction in reading; require the district to identify the RTI criteria and process for levels of intervention and progress monitoring; and require schools to ensure staff have knowledge and skills to implement RTI with consistency and fidelity.

Section 200.1(ss) was revised to clarify that the definition of school health services includes school nurse services.

Revisions were made to sections 200.4(a), regarding referrals, 200.4(b) regarding timelines for the evaluation, and 200.4(j), regarding learning disability (LD) procedures, to simplify the procedures for LD identification; to delete the alternative research based criteria; to extend the date for prohibition of the discrepancy criteria for grades K to four LD determinations in the area of reading to July 1, 2012.

Section 200.4(a) was revised to add language indicating that a school district must initiate a referral and promptly request parental consent to evaluate a student if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction as described in section 100.2(ii).

Section 200.4(a)(8) was revised to add examples of documented attempts to obtain parent consent for an evaluation.

Section 200.4(b)(1) was revised to add language requiring that an individual evaluation be completed within 60 days of receipt of consent unless extended by mutual agreement of the student's parents and the CSE pursuant to sections 200.4(b)(7)(i) and 200.4(j)(1).

Section 200.4(b)(6)(ii) retains the requirement that if an assessment used for an evaluation is not conducted under standard conditions, the evaluation report must describe the extent to which it varied.

Section 200.4(d)(2) was revised to extend the date for requiring the State's form for the individualized education program (IEP) to January 1, 2009.

Sections 200.5(a)(1) and (c)(1) were revised to extend the date for requiring the State's form for meeting and prior written notices to January 1, 2009.

Section 200.5(b)(1)(v) was revised to clarify when consent is required for use of public or private insurance.

Section 200.5(i)(3) was revised to clarify that, in an expedited hearing related to discipline, the parties may not challenge the sufficiency of the due process complaint notice request.

Section 200.5(j) was revised to add steps the district must take to ensure parents participate in the resolution meeting; to clarify that when parties reach a settlement, the terms of the agreement may be read into the record as an agreement between the parties only and the agreement would be enforceable in State or federal court; and to clarify that not more than one extension to the impartial hearing timeline may be granted at a time.

Section 200.6(a)(1) was revised to clarify that specially designed instruction and supplementary services provided in regular class to enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, may include, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.

Sections 200.6(d) and (f) were revised to allow the combined services of direct and/or indirect consultant teachers services and resource room services for not less than three hours per week.

Section 200.6(g) was revised to specify that when a district includes integrated co-teaching services in their continuum of services, the number of students with disabilities, cannot, effective July 1, 2008, exceed 12 students. The proposed limitation of the one-third ratio of students with disabilities to nondisabled students in integrated co-teaching classes was deleted.

For purposes of ensuring consistency with section 200.4(e)(1), section 200.6(j)(4)(ii) was revised to change the specified timeline from 60 days to 30 days of receipt of the CSE recommendation, within which a board of education must provide appropriate special programs and services to students with disabilities placed in approved private schools.

Section 200.16(i)(3)(iii)(b) was revised to no longer limit to New York City only the proposed use of a procedure to temporarily increase the enrollment of a preschool class to 13 preschool students.

The above revisions to the proposed rule require that the sixth, seventh, eighth and tenth paragraphs of the Local Government Mandates section and the Federal Standards section of the previously published Regulatory Impact Statement be revised to read as follows:

LOCAL GOVERNMENT MANDATES

Paragraph sixth:

Section 200.4 makes technical amendments relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to federal requirements relating to: referral, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, individualized education program (IEP) contents, and students who transfer districts; requires all IEPs developed on or after July 1, 2009 be on a form prescribed by the Commissioner; and adds additional procedures for identifying students with learning disabilities.

Paragraph seventh:

Section 200.5 makes a technical change relating to surrogate parent; conforms State due process requirements to Federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations (IEEs), mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner; adds steps the district must take to ensure parents participate in the resolution meeting; adds that when parties reach a settlement, the terms of the agreement may be read into the record as an agreement between the parties only and the agreement would be enforceable in State or federal court; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.

Paragraph eighth:

Section 200.6 makes technical changes regarding continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; provides that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.

Paragraph tenth:

Section 200.16 makes technical changes regarding IEEs; conforms State regulations relating to procedural safeguards to federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.

FEDERAL STANDARDS:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Federal IDEA statutes and regulations (20 U.S.C. 1400 et. seq., as amended by Public Law 108-446, and the final Federal amendments to 34 CFR Part 300) and to that extent do not exceed any minimum Federal standards. The amendments relating to evaluation and placement of preschool students; standardized forms for IEPs, written notifications and meeting notices; minimal levels of services for resource room and direct consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by Federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities; and are otherwise consistent with Federal standards.

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The revisions to the proposed rule require the Compliance Requirements section and the Minimizing Adverse Impact section of the previously published Regulatory Flexibility Analysis be revised to read as follows:

COMPLIANCE REQUIREMENTS:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et. seq.), as amended by Public Law 108-446, and recent amendments to 34 CFR Part 300 which became effective on October 13, 2006, and do not impose any additional compliance requirements upon local governments beyond those imposed by Federal statutes and regulations.

The amendments relating to evaluation and placement of preschool students; standardized forms for individualized education programs (IEPs), written notifications and meeting notices; minimal levels of services for resource room and consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by Federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and are otherwise consistent with Federal standards.

Section 100.2(ii) establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.

Section 120.6(a) incorporates by reference the Federal definition of highly qualified special education teachers.

Section 200.2 requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.

Section 200.3 conforms State regulations relating to the role of a regular education teacher on the committee on special education (CSE) to Federal regulations.

Section 200.4 makes technical amendments relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to Federal requirements relating to: referrals, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, IEP contents, and students who transfer districts; requires documentation of attempts, including telephone calls and correspondence, to obtain parent consent; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner; and adds additional procedures for identifying students with learning disabilities.

Section 200.5 makes a technical change relating to surrogate parent; conforms State due process requirements to Federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations (IEEs), mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner; adds steps the district must take to ensure parents participate in the resolution meeting; adds that when parties reach a settlement, the terms of the agreement may be read into the record as an agreement between the parties only and the agreement would be enforceable in State or Federal court; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.

Section 200.6 makes technical changes regarding continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; provides that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.

Section 200.7(b) conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to Federal regulations.

Section 200.16 makes a technical change regarding IEEs; conforms State regulations relating to procedural safeguards to Federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.

Section 201.2 conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the Federal definitions; adds that the district has authority to determine on a case by case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.

Section 201.3 is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs) to Federal requirements.

Section 201.4 requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.

Section 201.5 removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.

Section 201.6 requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.

Section 201.7(f) clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.

Section 201.8 repeals the considerations that an IHO must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.

Section 201.10 establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.

Section 201.11 conforms procedures for expedited hearings and timelines for an expedited hearing consistent with Federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.

If a district uses a process to determine if a student responds to scientific, research-based intervention, written notification must be given to parents when the student requires an intervention beyond that provided to all students in the general education classroom that identifies student performance data, strategies for increasing the student's rate of learning and notification of the parents' right to request an evaluation for special education programs and/or services. In addition, the CSE must develop a written document for the determination of a student with a learning disability.

Consistent with Federal requirements, districts must obtain consent before: personally identifiable information about a nonpublic school student is released between the district of location of the private school and the district of residence; releasing information to a representative of any participating agency that is likely to be responsible for providing or paying for transition services or inviting such individual to a CSE meeting; and accessing a parent's public insurance. Changes also require consent before personally identifiable information is released to officials of participating agencies when a student is determined to be at risk of a future placement in a residential school and before providing evaluative information and program recommendations for a student to a Family Court judge, a probation department, a social services district, the Office of Child and Family Services, or a preadmission certification committee established pursuant to Mental Hygiene Law section 9.51(d).

Changes to due process provisions require that districts provide parents with a copy of the procedural safeguards notice upon receipt of their first State complaint and upon a disciplinary change in placement.

MINIMIZING ADVERSE IMPACT:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Federal IDEA statutes and regulations (20 U.S.C. 1400 et. seq., as amended by Public Law 108-446, and the final Federal amendments to 34 CFR Part 300) and to that extent do not exceed any minimum Federal standards. The amendments relating to evaluation and placement of preschool students; standardized forms for IEPs, written notifications and meeting notices; minimal levels of services for resource room and direct consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by Federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and are otherwise consistent with Federal standards.

School districts and other LEAs are required to comply with IDEA as a condition to their receipt of Federal funding. The proposed conforming amendments have been carefully drafted to meet Federal statutory and regulatory requirements and do not impose any additional costs or compliance requirements on these entities beyond those imposed by Federal law and regulations and State statutes.

Various alternatives for establishing the staff-to-student ratio in the integrated co-teaching class option were considered, including only establishing a ratio of students with disabilities to nondisabled students, but the current proposal was selected to ensure reasonable class size. With regard to minimum levels of service requirements, the Department considered the repeal of minimum levels established for speech and language services, consultant teacher services and resource room services. The proposed amendment was selected because it is expected to maximize the participation of students with disabilities in general education classes and curriculum; will allow more students with disabilities to receive special education services without removing students from their required academic courses; and yield a more efficient and effective use of human and fiscal resources.

The Department also considered proposals to allow indirect support to be provided by related service providers; to repeal the chronological age-range limitations in middle- and secondary-level special classes; and to repeal the requirement for parent notification relating to math and reading achievement levels in special classes. The proposed amendment addresses recommendations most supported by public comment and most directly related to improved results for students with disabilities and placement in the least restrictive environment.

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The revisions to the proposed rule require the Reporting, RecordKeeping and Other Compliance Requirements and Professional Services section and the Minimizing Adverse Impact section be revised to read as follows:

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400 et. seq.), as amended by Public Law 108-446, and recent amendments to 34 CFR Part 300 which became effective on October 13, 2006, and do not impose any additional compliance requirements upon rural areas beyond those imposed by Federal statutes and regulations.

The amendments relating to evaluation and placement of preschool students; standardized forms for individualized education programs (IEPs), written notifications and meeting notices; minimal levels of services for resource room and consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by Federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and are otherwise consistent with Federal standards.

Section 100.2(ii) establishes minimal requirements for using a response to intervention process to determine if a student responds to scientific research-based intervention.

Section 120.6(a) incorporates by reference the Federal definition of highly qualified special education teachers.

Section 200.2 requires consent for release of information about nonpublic school students with disabilities; adds examples of nonacademic and extracurricular programs; requires districts to take action to ensure timely evaluation and placement of preschool students; adds that districts may use a response to intervention process to remediate a student's performance prior to referral for special education; and requires districts to publicly report on revisions to inappropriate policies, procedures or practices that resulted in a significant disproportionality by race/ethnicity in the suspension, identification, classification and/or placement of students with disabilities.

Section 200.3 conforms State regulations relating to the role of a regular education teacher on the committee on special education (CSE) to Federal regulations.

Section 200.4 makes technical amendments relating to evaluation procedures, recommended special education programs and services and written notice upon graduation or aging out; conforms State regulations to Federal requirements relating to: referrals, parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations, CSE recommendations, IEP contents, and students who transfer districts; requires documentation of attempts, including telephone calls and correspondence, to obtain parent consent; requires all IEPs developed on or after January 1, 2009 be on a form prescribed by the Commissioner; and adds additional procedures for identifying students with learning disabilities.

Section 200.5 makes a technical change relating to surrogate parent; conforms State due process requirements to Federal requirements relating to prior written notice, consent, notice of meetings, procedural safeguards notice, independent educational evaluations (IEEs), mediation, due process complaint notification requirements, impartial hearings, resolution process, State complaint procedures, pendency, and surrogate parents; adds, effective January 1, 2009, that prior written notice (notice of recommendation) and meeting notices be on forms prescribed by the Commissioner; adds steps the district must take to ensure parents participate in the resolution meeting; adds that when parties reach a settlement, the terms of the agreement may be read into the record as an agreement between the parties only and the agreement would be enforceable in State or Federal court; and adds that not more than one 30-day extension at a time may be granted to an impartial hearing.

Section 200.6 makes technical changes regarding continuum of services; corrects a cross citation and timeline for providing services to students with disabilities in approved private schools; provides that the CSE may recommend that a student who needs both resource room services and consultant teacher services may receive a combination of such services for not less than three hours each week; and adds “integrated co-teaching services” option to the continuum of services and specifies that when a district provides integrated co-teaching services, the number of students with disabilities cannot, effective July 1, 2008, exceed 12 students.

Section 200.7(b) conforms State regulations relating to school conduct and discipline at private schools and State-operated and State-supported schools to Federal regulations.

Section 200.16 makes a technical change regarding IEEs; conforms State regulations relating to procedural safeguards to Federal requirements; and allows approved preschool programs to temporarily increase the enrollment of a class up to a maximum of 13 students for the remainder of the school year.

Section 201.2 conforms the definitions of disciplinary change in placement, illegal drug, and interim alternative educational setting (IAES) to the Federal definitions; adds that the district has authority to determine on a case by case basis if a pattern of removals constitutes a disciplinary change in placement and that such determination is subject to review through due process and judicial proceedings.

Section 201.3 is repealed and a new section 201.3 is added to conform CSE responsibilities for functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs) to Federal requirements.

Section 201.4 requires a school district to remedy IEP deficiencies when it is determined that the student's conduct is the direct result of the district's failure to implement the IEP.

Section 201.5 removes the requirement that an expression of concern about a student's pattern of behavior be made in accordance with the district's child find and special education referral system.

Section 201.6 requires that expedited evaluations be completed no later than 15 school days after receipt of parent consent.

Section 201.7(f) clarifies school personnel authority to consider unique circumstances when determining whether a change in placement is appropriate.

Section 201.8 repeals the considerations that an IHO must make to order a change of placement to an IAES; and repeals that an IAES ordered by an IHO be determined by the CSE.

Section 201.10 establishes that school personnel determine services for students removed for more than 10 school days when it is not a disciplinary change in placement; and requires the CSE to determine services and the IAES for students suspended for periods in excess of 10 school days which constitute a disciplinary change in placement.

Section 201.11 conforms procedures for expedited hearings and timelines for an expedited hearing consistent with Federal regulations; clarifies that an IHO appointment for an expedited hearing must be made in accordance with the rotational selection process; and establishes pendency during an expedited impartial hearing.

Consistent with Federal requirements, districts must publicly report on revisions to inappropriate policies, procedures or practices resulting in a significant disproportionality by race/ethnicity.

If a district uses a process to determine if a student responds to scientific, research-based intervention, written notification must be given to parents when the student requires an intervention beyond that provided to all students in the general education classroom that identifies student performance data, strategies for increasing the student's rate of learning and notification of the parents' right to request an evaluation for special education programs and/or services. In addition, the CSE must develop a written document for the determination of a student with a learning disability.

Consistent with Federal requirements, districts must obtain consent before: personally identifiable information about a nonpublic school student is released between the district of location of the private school and the district of residence; releasing information to a representative of any participating agency that is likely to be responsible for providing or paying for transition services or inviting such individual to a CSE meeting; and accessing a parent's public insurance. Changes also require consent before personally identifiable information is released to officials of participating agencies when a student is determined to be at risk of a future placement in a residential school and before providing evaluative information and program recommendations for a student to a Family Court judge, a probation department, a social services district, the Office of Child and Family Services, or a preadmission certification committee established pursuant to Mental Hygiene Law section 9.51(d).

Changes to due process provisions require that districts provide parents with a copy of the procedural safeguards notice upon receipt of their first State complaint and upon a disciplinary change in placement.

The amendments do not impose any additional professional service requirements on rural areas, beyond those imposed by such Federal statutes and regulations and State statutes.

MINIMIZING ADVERSE IMPACT:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the Federal IDEA statutes and regulations (20 U.S.C. 1400 et. seq., as amended by Public Law 108-446, and the final Federal amendments to 34 CFR Part 300) and to that extent do not exceed any minimum Federal standards. The amendments relating to evaluation and placement of preschool students; standardized forms for IEPs, written notifications and meeting notices; minimal levels of services for resource room and direct consultant teacher services; integrated co-teaching services; and temporary increases in the class enrollment of approved preschool programs are not required by Federal law or regulations, but are necessary to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and are otherwise consistent with Federal standards.

School districts and other LEAs are required to comply with IDEA as a condition to their receipt of Federal funding. The proposed conforming amendments have been carefully drafted to meet Federal statutory and regulatory requirements and do not impose any additional costs or compliance requirements on these entities beyond those imposed by Federal law and regulations and State statutes. Since these requirements apply to all school districts in the State, it is not possible to adopt different standards for school districts in rural areas.

Various alternatives for establishing the staff-to-student ratio in the integrated co-teaching class option were considered, including only establishing a ratio of students with disabilities to nondisabled students, but the current proposal was selected to ensure reasonable class size. With regard to minimum levels of service requirements, the Department considered the repeal of minimum levels established for speech and language services, consultant teacher services and resource room services. The proposed amendment was selected because it is expected to maximize the participation of students with disabilities in general education classes and curriculum; will allow more students with disabilities to receive special education services without removing students from their required academic courses; and yield a more efficient and effective use of human and fiscal resources.

The Department also considered proposals to allow indirect support to be provided by related service providers; to repeal the chronological age-range limitations in middle- and secondary-level special classes; and to repeal the requirement for parent notification relating to math and reading achievement levels in special classes. The proposed amendment addresses recommendations most supported by public comment and most directly related to improved results for students with disabilities and placement in the least restrictive environment.

Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the proposed rule has been substantially revised as set forth in the Revised Regulatory Impact Statement submitted herewith.

The proposed rule, as revised, is necessary in order to ensure compliance with Federal law and regulations and State law relating to the education of students with disabilities, ages 3–21; to ensure consistency in procedural safeguards; to promote timely evaluations and services; and to facilitate services in the least restrictive environment for students with disabilities, and will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the revised rule that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.

Since publication of Notice of Proposed Rule Making in the State Register on March 21, 2007, the Department received the following comments on the proposed amendments.

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

COMMENT:

Some supported RTI as general education program. Others recommended its use only in identifying learning disabilities (LD). Many requested additional specification on minimal requirements.

DEPARTMENT RESPONSE:

Revised regulation provides further specificity to RTI requirements; defines research-based reading instruction; requires districts identify RTI criteria; and requires schools ensure staff knowledge and skills to implement RTI.

§ 200.1 - Definitions

COMMENTS:

Revise parent definition to allow foster parents to serve as parent; delete term “legally appointed” and exception prohibiting State from acting as parent for wards of State; revise “related services” to include school nursing services; and clarify “group or individualized instruction” in consultant teacher (CT) definition.

DEPARTMENT RESPONSE:

Parent definition is consistent with State and Federal law. School health services is revised to replace term “nursing services” with “school nurse services.” § 200.1(ww)(3) defines group instruction. Term “individualized instruction” means specially designed instruction provided on an individual basis.

§ 200.2(b)(1) - Board of Education (BOE) Responsibilities

COMMENT:

Clarify whether students with disabilities must be enrolled in public school to access district extracurricular activities.

DEPARTMENT RESPONSE:

Consistent with Education Law section 414(2), districts must ensure students placed by Committees on Special Education (CSE) have opportunity to participate in district programs, appropriate to student's needs.

§ 200.2(b)(15) - Disproportionality

COMMENT:

Provisions on disproportionality may make it harder for eligible student to receive special education based on minority status; and will improve data collection.

DEPARTMENT RESPONSE:

Regulation complies with 34 CFR § 300.646(b).

§ 200.4(b)- Individual evaluation

COMMENT:

Clarify district's responsibility to provide services when parent refuses consent for reevaluation. Retain language requiring evaluation report describe extent an assessment varied from standard conditions.

DEPARTMENT RESPONSE:

Districts are responsible for providing special education, but may use due process to pursue evaluation. Revised rule retains § 200.4(b)(6)(ii).

§ 200.4(d) - Recommendation

COMMENT:

Clarify documentation necessary to ensure appropriateness of reading and math instruction. Require CSE members' opinions be officially noted in minutes.

DEPARTMENT RESPONSE:

Proposed § 200.4(j) specifies required documentation to ensure appropriateness of reading and math instruction. Meeting notes are recommended, but not required; prior notice requires specific documentation to parent when CSE recommends or refuses to recommend programs or services.

§ 200.4(d)(4)(i)(c) - Transition meetings

COMMENT:

Clarify when vocational rehabilitation (VR) representative must be invited to transition planning meetings. Require transition planning at age 14.

DEPARTMENT RESPONSE:

Determination to invite participating agency is made on an individual student basis. State law requires transition planning at age 15; younger if appropriate.

§ 200.4(e)(1) - 60-day timeline

COMMENT:

Clarify timelines for BOE to arrange special education upon referral for review.

DEPARTMENT RESPONSE:

Department will consider this comment for future rule making.

§ 200.4(j) - Additional Procedures for Identifying Students with LD

COMMENT:

Add specific criteria to assist districts in determining LD. Clarify time period for intervention to be provided prior to referral; limit RTI use to reading; require data from RTI process be considered as part of comprehensive evaluation; delete alternative research-based procedures; eliminate or extend discrepancy model sunset date; and change eligibility group from CSE to Federally mandated group.

DEPARTMENT RESPONSE:

§§ 200.4(a) (referrals), 200.4(b) (evaluation timelines) and 200.4(j) (LD procedures) were revised to simplify procedures for LD identification; to delete alternative research based criteria; and to prohibit, effective July 1, 2012, use of discrepancy criteria for LD determinations in area of reading for students grades K to four.

§ 200.4(d) and § 200.5(a) and (c) - Required Forms

COMMENT:

Retain requirement for State IEPs, prior written notice and CSE meeting notice forms. Provide samples, but not mandated forms.

DEPARTMENT RESPONSE:

Revised regulation changes effective date to January 1, 2009 to ensure a public comment period.

§ 200.5(b) - Parent Consent

COMMENT:

Require consent forms be mailed within 10 days or reasonable timeframe; require consent prior to each time district proposes to access public insurance or parent's private insurance; and include in procedural safeguards notice (PSN) that district is not required to use due process procedures when parent of parentally placed student refuses consent for evaluations or services.

DEPARTMENT RESPONSE:

Revised regulation requires districts document specific steps to obtain parent consent; and clarifies consent for use of public and private insurance. PSN will include language consistent with Federal and State requirements.

§ 200.5(f) - Procedural Safeguards Notice

COMMENT:

Retain language in § 200.5(f)(4). Add to PSN that resolution sessions are mandatory; and consequences for failing to appear; add date parents of parentally placed students must request services.

DEPARTMENT RESPONSE:

The Department will adopt Federal PSN with State specific modifications and will provide guidance on parentally placed students.

§ 200.5(g) - Independent Educational Evaluation (IEE)

COMMENT:

Limit IEEs to one evaluation of same type with which parent's disagree. Require CSE to consider IEE results. Allow IEE observations in student's educational environment. Entitle parent to IEE at public expense when district evaluation is untimely.

DEPARTMENT RESPONSE:

Proposed regulations are consistent with Federal requirements. Decisions as to whether observations by independent evaluators are appropriate must be made at local level in consideration of school's policy to ensure security and safety of students and education is not disrupted.

§ 200.5(i)(3) - Due process complaint notice

COMMENT:

Proposed language regarding sufficiency challenges of due process complaint notice is incorrect.

DEPARTMENT RESPONSE:

Revised 200.5(j)(3) clarifies no party may challenge sufficiency of due process complaint for expedited hearings.

§ 200.5(j) - Impartial hearings

COMMENT:

Require districts to notify parents of consequences of not attending resolution session; resolution sessions for district initiated hearings; hearings to begin immediately when district fails to participate in resolution session; documentation of effort for parent participation in resolution sessions; and sessions are at mutually agreeable times. Delete “prehearing conference” language. Define “reasonable and documented efforts” consistent with 34 CFR § 300.510(b)(4).

DEPARTMENT RESPONSE:

PSN will notify parents of resolution session requirements. Federal regulations do not require resolution session for district initiated hearings. Revised § 200.5(i) adds steps to ensure parent participation in resolution session. Proposed timelines are correct since hearings often begin with prehearing conferences.

COMMENT:

Revise regulation that impartial hearing officers (IHOs) not accept appointments unless available to initiate hearings within 14 days. Clarify hearing timeline begins at expiration of resolution period. Require IHOs enter data or allow parties to file State complaint against IHO who improperly delays hearing.

DEPARTMENT RESPONSE:

Regulations prescribe procedures to ensure hearing timelines consistent with Federal requirements. § 200.5(j)(3)(xvi) requires BOE to report data on hearings. Since this data is used to monitor IHO compliance with timelines, it would be inappropriate for IHOs to enter data.

COMMENT:

Comments of support were received regarding settlement agreements. Some expressed concern proposal may violate IDEA 2004; may affect recovery of attorneys' fees and ability for parents, particularly low-income parents, to find and retain attorneys; and may make it less likely school districts will comply with settlement agreements. Clarify when partial agreement is reached in form of agreement on any one or more issues among those raised, regulation would not require hearing to be closed and process to start over before new IHO. Some stated proposed amendment appears to interfere with IHO independence and parent's ability to demonstrate exhaustion of administrative remedies with regard to all or part of a claim.

DEPARTMENT RESPONSE:

Department strongly disagrees proposed language violates IDEA or interferes with IHO independence. Purpose of regulation is to improve effectiveness of hearing system and aligns New York with other states in regulating this practice, clarifies consistent with section 200.5(j) that IHO decision must be based solely upon record of proceeding and must set forth reasons and factual basis for determination. Decision must reference hearing record to support findings of fact and, consistent with Federal regulations, IHO's determination of whether student receives a free appropriate public education must be based on substantive grounds. Parties are encouraged to settle all disputed issues, including attorney fees, and proposed regulation poses no impediment. If agreement is not reached on issues, either party has right to proceed with hearing. IHO must issue decision on issues in complaint not resolved in settlement agreement and are within IHO's jurisdiction. Revised proposed regulation states settlement agreement shall not constitute a final decision, prescription or order of IHO; settlement agreement may be read into record as an agreement between parties only; and such agreement shall be enforceable in any State or Federal court.

COMMENT:

Delete proposed rule that allows only one 30-day extension at a time.

DEPARTMENT RESPONSE:

State must establish procedures to ensure hearings are completed within required timelines. Revised regulation clarifies that not more than one extension may be granted at a time.

§ 200.5(l)(i) - State Complaints

COMMENT:

Retain current timeline for filing State complaint.

DEPARTMENT RESPONSE:

Proposed timelines will help ensure problems are raised and resolved promptly.

§ 200.5(n) - Surrogate Parents

COMMENT:

Repeal requirement that foster parents must be appointed as surrogate; clarify parents' rights may be subrogated or temporarily suspended; and require appointment of surrogates no later than 30 days from determination that student needs surrogate parent.

DEPARTMENT RESPONSE:

Regulations require surrogate parent appointment within 10 business days, which is shorter than 30-day Federal requirement. Definition of parent addresses when foster parents may be parent. Proposed regulations do not require qualified foster parents to be appointed from approved BOE list.

§ 200.6 Continuum of Services

COMMENT:

Some support, some oppose change to minimal level of service for combined resource room and CT. Allow flexibility for both direct and indirect CT. Require IEP to state time required for each service.

DEPARTMENT RESPONSE:

Revised regulation allows combined CT (direct and/or indirect) and resource room for not less than three hours per week. Regulations require IEP to specify frequency, location and duration for each special education program or service.

COMMENT:

Support co-teaching service as written. Comments ranged from recommendation for maximum one-third to 40–50 percent special education students. Clarify if students with disabilities means students with co-teaching on IEP or students in class with other recommended services. Limiting students with disabilities in regular education classes is discriminatory. Consider cost and program implications to implement co-teaching in 2007–08. Require grouping by similarity of needs and performance range of general education students be reflective of students in that grade. Clarify role of teaching assistant (TA). Separate State funding from service delivery. Repeal all instructional group size limitations and minimum level of services.

DEPARTMENT RESPONSE:

Revised regulation delays implementation of 12 student limit until July 1, 2008 and eliminates proposed one-third ratio. Regulations require grouping according to similarity of needs. Regulating performance range of general education students is beyond scope of this rulemaking. Regulations clarify TA may not be the teacher. Proposed regulations do not address funding. We decline to repeal all instructional group size limitations and minimum level of service requirements.

§ 200.16(i)(3)(iii)(b)(1) - Preschool Variances

COMMENT:

Do not limit variance to exceed 12 preschool statewide.

DEPARTMENT RESPONSE:

The recommended revision was made.

§ 201.3 - CSE Responsibilities for Functional Behavioral Assessments (FBA) and Behavioral Intervention Plans (BIP)

COMMENT:

Require FBAs whenever students' behaviors impede learning even when there is no manifestation.

DEPARTMENT RESPONSE:

It is not necessary to make change; current § 200.4 and § 200.22 specify when FBAs are required.

§ 201.4 - Manifestation Determination Review

COMMENT:

Clarify a student's no manifestation determination does not result in loss of their IDEA rights; require parent participation in manifestation determinations; and clarify that CSEs no longer determine services when student is placed in interim alternative educational setting (IAES).

DEPARTMENT RESPONSE:

Regulations clarify students with disabilities retain IDEA rights; manifestation teams include parents; and CSEs determine services for students placed in IAES for disciplinary changes in placement.

§ 201.8 - Authority of IHO

COMMENT:

Revise § 201.8(b) to allow IAES placements be repeated only once.

DEPARTMENT RESPONSE:

Federal law does not limit number of times IAES procedures may be repeated.

§ 201.11 - Expedited Hearings

COMMENT:

Require IAES to be an appropriate setting. Retain IHO considerations when changing student's placement to an IAES.

DEPARTMENT RESPONSE:

Term IAES implies the setting be appropriate. There is no statutory authority to retain IHO considerations when determining an IAES.