Since publication of a Notice of Proposed Rule Making in the State Register on March 21, 2007, the proposed amendment has been substantially revised in response to public comment. A Notice of Revised Rule Making was published in the State Register on July 3, 2007. In addition, at the June 25–26, 2007 meeting of the Board of Regents, the Regents made a further substantial revision to the proposed rule to delete the settlement agreement provision in 200.5(j)(4)(iii), and adopted the proposed rule, as so revised, by emergency action for the preservation of the general welfare in order to immediately conform the Commissioner's Regulations regarding the provision of special education services to the requirements of the IDEA, as amended, and Part 300 of Title 34 of the Code of Federal Regulations, so that such requirements become effective by the federally required date of July 1, 2007 and to ensure they are in effect by the beginning of the 2007–08 school year, and thereby ensure the rights of students with disabilities and their parents consistent with Federal and State statutes and ensure compliance with requirements for receipt of Federal funds. A Notice of Emergency Adoption and Revised Rule Making was published in the State Register on July 18, 2007.

The proposed rule has been adopted as a permanent rule at the September 10–11, 2007 Regents meeting. Pursuant to the State Administrative Procedure Act, the earliest the adopted rule can become effective is upon its publication in the State Register on October 3, 2007. However, the June emergency rule will expire on September 26, 2007, 90 days after its filing with the Department of State on June 29, 2007. A lapse in the rule's effectiveness could expose both the State and school districts to liability and affect their eligibility for federal funding under the IDEA, and could deny students with disabilities, parents and school districts the benefits they are intended to receive under the IDEA.

A second emergency adoption is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the June Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule.

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: referrals, 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; add steps the district must take to ensure parents participate in the resolution meeting; 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 a 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 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 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. Section 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).

STATUTORY AUTHORITY:

Education Law section 207 authorizes the Regents and Commissioner to adopt rules and regulations to carry out State laws regarding education.

Education Law section 3208(1–5) provides for attendance and student mental/physical examination requirements.

Education Law section 3209(7) authorizes the Commissioner to promulgate regulations regarding homeless youth.

Education Law section 3214(3) establishes requirements for discipline of students with disabilities and students presumed to have a disability.

Education Law section 3602-c(2) establishes district responsibilities for provision of special education services to students enrolled in nonpublic schools.

Education Law section 3713(1) and (2) authorizes the State and districts to accept federal law making appropriations for education.

Education Law section 4002 establishes responsibilities for education of students in child-care institutions.

Education Law sections 4308(3) and 4355(3) authorizes Commissioner's regulations regarding admission to the State School for the Blind and State School for the Deaf.

Education Law section 4401 authorizes Commissioner to approve private day and residential programs serving students with disabilities.

Education Law section 4402 establishes district's duties regarding education of students with disabilities.

Education Law section 4403 outlines Department's and district's responsibilities regarding special education programs/services to students with disabilities. Section 4403(3) authorizes Department to adopt regulations as Commissioner deems in their best interests.

Education Law section 4404 establishes appeal procedures for students with disabilities.

Education Law section 4404-a establishes mediation programs for students with disabilities.

Education Law section 4410 outlines special education services and programs for preschool children with disabilities. Section 4410(3) authorizes Commissioner to adopt regulations.

LEGISLATIVE OBJECTIVES:

The amendments carry out the legislative objectives in the aforementioned statutes to ensure that students with disabilities are provided a free appropriate public education consistent with federal law and regulations.

NEEDS AND BENEFITS:

The amendments are necessary to conform the Commissioner's Regulations to 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. The amendments are also necessary to ensure consistency in procedural safeguards; promote timely evaluations and services; and facilitate services in the least restrictive environment for students with disabilities.

COSTS:

a. Costs to State government: None.

b. Costs to local governments: None.

c. Costs to regulated parties: None.

d. Costs to the State Education Department of implementation and continuing compliance: None.

The proposed amendments are necessary to conform the Commissioner's Regulations to recent changes in the IDEA statutes and regulations; ensure consistency in procedural safeguards; to promote timely evaluations and services; and facilitate services in the least restrictive environment for students with disabilities and do not impose any additional costs beyond those imposed by federal and State statutes and regulations.

LOCAL GOVERNMENT MANDATES:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the IDEA statutes and regulations and do not impose any additional program, service, duty or responsibility upon local governments beyond those imposed by federal and State statutes and regulations.

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: 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 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; 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 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 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 impartial hearing officer (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.

PAPERWORK:

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.

DUPLICATION:

The amendments will not duplicate, overlap or conflict with any other State or federal statute or regulation.

ALTERNATIVES:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes in the federal IDEA statutes and regulations and to State statute and to that extent there were no significant alternatives and none were considered.

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.

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 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.

COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the amendments by their effective date.

Small Businesses:

The proposed amendments are necessary in order to ensure compliance with federal law and regulations 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 do 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 rule that it does not affect small businesses, no affirmative steps 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:

The proposed amendments apply to all public school districts, boards of cooperative educational services (BOCES), State-operated and State-supported schools and approved private schools in the State.

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; 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 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 impartial hearing officer (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.

PROFESSIONAL SERVICES:

In general, the amendments are necessary to conform the Commissioner's Regulations to recent changes to the IDEA and recent amendments to 34 CFR Part 300, and do not impose any additional professional service requirements on local governments beyond those imposed by such federal statutes and regulations and State statutes.

COMPLIANCE COSTS:

The proposed amendments are necessary to conform the Commissioner's Regulations to recent changes in the IDEA statutes and regulations; ensure consistency in procedural safeguards; to promote timely evaluations and services; and facilitate services in the least restrictive environment for students with disabilities. School districts and other local educational agencies (LEAs) are required to comply with the IDEA as a condition to their receipt of federal funding. The proposed amendments do not impose any additional costs beyond those imposed by such federal statutes and regulations and State statutes.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendments do not impose any new technological requirements. Economic feasibility is addressed above under compliance costs.

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 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.

LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendments were provided to District Superintendents with the request that they distribute it to school districts within their supervisory districts for review and comment. The State Education Department conducted public hearings on the proposed amendments on April 16, 19, and 23, 2007.

The proposed amendments will apply to all public school districts, boards of cooperative educational services (BOCES), State-operated and State-supported schools and approved private schools in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less.

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 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, Committee on Special Education (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; 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 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 impartial hearing officer (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.

COSTS:

The proposed amendments are necessary to conform the Commissioner's Regulations to the IDEA statutes and regulations; 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. School districts and other local educational agencies (LEAs) are required to comply with the IDEA as a condition to their receipt of federal funding. The proposed amendments do not impose any additional costs 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 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 Local Education Agencies 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.

RURAL AREA PARTICIPATION:

The proposed rule was submitted for discussion and comment to the Department's Rural Education Advisory Committee that includes representatives of school districts in rural areas. The State Education Department conducted public hearings on the proposed amendments on April 16, 19, and 23, 2007.

The proposed amendments are 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 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.