Since publication of a Notice of Emergency Adoption and Revised Rule Making in the State Register on July 18, 2007, the State Education Department received the following new comments that were not otherwise addressed in the Summary of Assessment of Public Comment published in the State Register on July 3, 2007.

Section 100.2(ii) — Response to Intervention (RTI) Programs

COMMENT:

Add a new section (d) which states that school districts must notify parents in writing of how, and the frequency with which, progress reporting will take place throughout the RTI process. Require districts to provide information on the district's RTI program to all parents of students who are participating in the RTI program. Add that the school district must also select and define the timeframe for completion of the RTI process and report to the Department which program it has selected and the scientific research upon which the program is based.

DEPARTMENT RESPONSE:

The proposed regulation requires parent notification when a student is receiving instructional interventions beyond that provided to all students in the general education classroom that specifies the strategies for increasing the student's rate of learning, the amount and nature of the data to be collected and the general education services to be provided to the student. The school district must select and define the components of the RTI program and therefore the decision regarding a time period for participation of a student in the RTI process is best left to the professionals who have knowledge about the individual student and the RTI instructional model used in the district. The proposed regulation requires each board of education to adopt written policy that establishes administrative practices and procedures for implementing schoolwide approaches in order to remediate a student's performance prior to referral for special education, which may include an RTI process. Such policy is subject to review by the Department upon request.

Section 200.1(fff) — Transition Services

COMMENT:

Define the terms “results oriented” and “coordinated set of activities.”

DEPARTMENT RESPONSE:

It is not necessary to define these terms in regulations. “Results oriented” in the context of transition services is generally understood to refer to a process that focuses on improving academic and functional achievement to assist the student to reach his or her post secondary and annual goals. “Coordinated set of activities” is generally understood to mean that there is a relationship among transition services and activities that is reasonably calculated to assist the student in moving from school to post-school activities based on the individual student's needs, taking into account the student's strengths, preferences and interests.

Section 200.4(b)(iv) — Observation

COMMENT:

Add language to section 200.4(b)(iv) to give the evaluation team the discretion to determine “an environment appropriate for a student of that age” for observations of students of less than school age or out of school.

DEPARTMENT RESPONSE:

It is not necessary to add a regulation to address this comment since the CSE is responsible to initiate the evaluation. For a child who is less than school age or out of school, the determination of the environment in which to conduct an observation can only be made on a case-by-case basis and the committee on special education (CSE) is in the best position to make this determination.

Section 200.4 — Individualized Education Program (IEP)

COMMENT:

Include a specific timeline of not later than 30 days after the CSE meeting in which the CSE must provide a copy of the IEP to the parent to allow the parent time to review the IEP prior to the start of the school year.

DEPARTMENT RESPONSE:

We decline to further regulate when a parent must be provided a copy of the IEP since current section 200.5(a) requires that a parent be provided prior written notice of the CSE's recommendation a reasonable time before the IEP is implemented.

Section 200.4(j) — Additional Procedures for Identifying Students with Learning Disabilities (LD)

COMMENT:

Remove language that allows the 60-day timeline for the completion of the individual evaluation to be extended by mutual agreement of the student's parents and the CSE. Remove the sunset date for the use of severe discrepancy criteria in kindergarten through grade four in the area of reading until and only when RTI has been effectively demonstrated on a statewide basis. Retain section 200.4(j)(5)(ii) to allow a school to use a student's pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development in LD determination.

DEPARTMENT RESPONSE:

The proposed language allows the parent and the CSE to agree to extend the time period in which to complete the initial evaluation when the purpose is to gather further evaluative information on how the student responds to research based instruction and interventions. The Department believes that it would be appropriate to reach agreement for this purpose and federal regulations provide the parent with the right to reach such an agreement. With regard to the sunset date for the use of severe discrepancy criteria, the use of a severe discrepancy criteria to determine if a student has a LD in the area of reading is generally not supported by the research. There are many school districts currently implementing RTI programs and the Department believes five years is a sufficient time period for most other schools to develop RTI programs. In addition, the State's criteria after 2012 will continue to allow a CSE to determine that an individual student has a LD based on the student's pattern of strengths and weaknesses in performance, achievement, or both, relative to age or state approved grade level standards. The comment to retain using a student's pattern or strengths and weaknesses in the eligibility determination for a student suspected having LD is supportive in nature and no response is necessary.

Section 200.5(g) — Independent Educational Evaluations (IEE)

COMMENT:

For clarity and consistency across the State, reference to the “school district criteria” in sections 200.5(g)(1)(v) and 200.5(g)(1)(vi)(a) relating IEEs should be changed to the “State Education Department criteria.”

DEPARTMENT RESPONSE:

The State's regulation conforms to federal regulations which references criteria for IEEs as developed by individual school districts. Since such criteria includes the location of the IEE and the qualifications of the examiner must be the same as the criteria the school district uses when it initiates an evaluation, it is not appropriate for State to develop a school district's criteria for IEEs.

Section 200.6 — Continuum of Services

COMMENT:

Require that the maximum number of special education students receiving integrated co-teaching services not exceed one-third of the class enrollment or 12 students, whichever number is lower. Limit the number of students with disabilities to no more than five students in a class. Delete proposed language to limit co-teaching services to no more than 12 students with disabilities to avoid overrepresentation of special education students in the class.

DEPARTMENT RESPONSE:

The proposed regulation establishes a maximum number of students with disabilities receiving co-teaching services in a class. Recommendations for each student receiving co-teaching services must be made on an individual basis in accordance with the individual needs of the student. It is unlikely that the number of students with disabilities in such classes would exceed the number of nondisabled students, since both a general education teacher and a special education teacher must be assigned to the class. To meet the individual needs of the students in such classes, schools could assign additional staff to the class, such as teaching assistants. This regulation is expected to maximize the participation of students with disabilities in general education classes and curriculum. An integrated co-teaching classroom composed of more students with disabilities than nondisabled students would be inconsistent with the intent of this option on the continuum of services.

Other

COMMENT:

One commenter urged Governor Spitzer to sign Assembly bill 5396-A to restore the burden of proof in an impartial hearing to school districts.

DEPARTMENT RESPONSE:

The comment is beyond the scope of the proposed rule making.