(2) Plans and specifications for portions of facilities which require approval by other departments of the State shall be approved by the appropriate agencies having jurisdiction as a condition of commissioner's approval of plans and specifications of a facility. All plans and specifications for the creation of new instructional space must be accompanied by commissioner approval, on a form prescribed by the commissioner, that ensures that such plans and specifications are consistent with the [region's special education space requirements plan developed pursuant to section 200.2(g) of this Title] needs of participating students with disabilities for placement in the least restrictive environment and for the stability and continuity of their program placements.

2. Paragraph (6) of subdivision (b) of section 155.12 of the Regulations of the Commissioner of Education is amended, effective October 2, 2013 as follows:

(6) for a district seeking aid for lease expense pursuant to subdivision 6 of section 3602 of the Education Law, a certification by the superintendent of schools that:

(i) the leased school or facility meets requirements for access by individuals with disabilities to both facilities and programs by complying with section 200.2 of this Title [and is consistent with the special education space requirements plan developed pursuant to section 200.2(g) of this Title]; and

(ii) . . .

3. Paragraph (2) of subdivision (c) of section 200.2 of the Regulations of the Commissioner of Education is amended, effective October 2, 2013 as follows:

(2) Each such plan shall include, but need not be limited to, the following:

(i) . . .

(ii) . . .

(iii) . . .

(iv) . . .

(v) . . .

(vi) . . .

(vii) . . .

(viii) the date on which such plan was adopted by the board of education[; and].

[(ix) a description of how the district plan is consistent with the special education space requirements plan developed pursuant to subdivision (g) of this section.]

4. Paragraph (3) of subdivision (c) of section 200.2 of the Regulations of the Commissioner of Education is amended, effective October 2, 2013, as follows:

(3) Any change to the allocation of space for special education programs [which is not consistent with the regional special education space requirements plan developed pursuant to subdivision (g) of this section] shall be made [pursuant to the provisions of paragraph (g)(5) of this section] in consideration of the needs of participating students with disabilities for placement in the least restrictive environment and for the stability and continuity of their program placements.

5. Subdivision (g) of section 200.2 of the Regulations of the Commissioner of Education is repealed, effective October 2, 2013.

6. A new subdivision (g) of section 200.2 of the Regulations of the Commissioner of Education is added, effective October 2, 2013 as follows:

1. STATUTORY AUTHORITY:

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

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

Education Law section 305(1) and (2) provide the Commissioner, as chief executive officer of the State education system, with general supervision over schools and institutions subject to the provisions of education law, and responsibility for executing Regents policies. Section 305(20) authorizes the Commissioner with such powers and duties as are charged by the Regents.

Education Law section 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.

Education Law section 309 charges the Commissioner with the general supervision of boards of education and their management and conduct of all departments of instruction.

Education Law section 1950 establishes boards of cooperative educational services.

Education Law section 2215 establishes the general powers and duties of district superintendents.

Education Law 4402 establishes districts’ duties regarding education of students with disabilities.

Education Law 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.

Section 2-a of Chapter 57 of the Laws of 2013 added a new Education Law section 2215(17) to require the district superintendent of a board of cooperative educational services (BOCES) to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the board of cooperative educational services, consistent with the least restrictive environment requirement and to ensure the stability and continuity of program placements for students with disabilities, including procedures that ensure that special education programs and services located in appropriate facilities will not be relocated without adequate consideration of the needs of participating students with disabilities.

Section 2-b of Chapter 57 repealed Education Law section 1950(17), which required every BOCES to submit a special education facilities plan.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013.

3. NEEDS AND BENEFITS:

The proposed amendment is necessary to conform the Regulations of the Commissioner of Education to be consistent with a recent change to State law (L. 2013, Ch. 57, § § 2-a and 2-b), which repealed the requirement for every board of cooperative educational services (BOCES) to submit a special education space plan to the Commissioner, and requires the district superintendent of each BOCES to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the (BOCES). The facilities space must be consistent with the least restrictive environment requirement and ensure the stability and continuity of program placements for students with disabilities, including procedures that ensure that special education programs and services located in appropriate facilities will not be relocated without adequate consideration of the needs of participating students with disabilities.

4. 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 amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013, and does not impose any additional costs on the State, local governments, private regulated parties or the State Education Department. Consistent with the statute, the proposed amendment will eliminate costs to the State, to BOCES, and to local school district and approved private schools that are associated with participation in space plan meetings, and the preparation and submission of special education space plans.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013 and does not impose any additional program, service, duty or responsibility upon local governments. Consistent with the statute, the proposed amendment will lessen administrative burdens to the State, to BOCES, and to local school district and approved private schools that are associated with participation in space plan meetings, and the preparation and submission of special education space plans.

Section 155.2, as amended, removes the reference to the special education space requirements plan and establishes that specifications for the creation of new instructional space must be consistent with the needs for placement in the least restrictive environment and for the stability and continuity of program placements for participating students with disabilities.

Section 155.12, as amended, removes the reference to the special education space requirements plan.

Section 200.2, as amended, removes the reference to the special education space requirements plan and establishes that it is the duty of the district superintendent to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the (BOCES), consistent with the needs for placement in the least restrictive environment and for the stability and continuity of program placements for participating students with disabilities.

6. PAPERWORK:

The proposed amendment conforms the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013 and does not impose any additional paperwork requirements. Consistent with the statute, the proposed amendment will lessen paperwork burdens to the State and BOCES by eliminating a requirement that each BOCES submit a special education space requirements plan to the Commissioner every five years for the purpose of determining the need for additional facilities space for all special education programs in the geographic are served by the board of cooperative educational services.

7. DUPLICATION:

The proposed amendment will not duplicate, overlap or conflict with any other State or federal statute or regulation, but will ensure consistency with recent changes to State statute.

8. ALTERNATIVES:

Since the proposed amendment is necessary to conform the Commissioner’s Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013, there are no significant alternatives and none were considered.

9. FEDERAL STANDARDS:

The proposed amendment does not exceed any minimum standards of the federal government for the same or similar subject areas and is not required by federal law or regulations, but will ensure consistency with recent changes to State statute.

10. COMPLIANCE SCHEDULE:

The proposed amendment merely conforms the Commissioner's Regulations to a recent statutory change, and does not impose any compliance requirements or costs. It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.

Small Businesses:

The proposed amendment is necessary to conform the Regulations of the Commissioner of Education to be consistent with a recent change to State law (L. 2013, Ch. 57, § § 2-a and 2-b), which repealed the requirement for every board of cooperative educational services (BOCES) to submit a special education space plan to the Commissioner, and requires the district superintendent of each BOCES to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the (BOCES), consistent with the least restrictive environment requirement and to ensure the stability and continuity of program placements for students with disabilities. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment that 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:

1. EFFECT OF RULE:

The proposed amendment applies to each of the 695 public school districts and 37 boards of cooperative educational services (BOCES) in the State.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013 and does not impose any additional compliance requirements on local governments. Consistent with the statute, the proposed amendment provides mandate relief to BOCES by eliminating the requirement that each BOCES submit a special education space requirements plan to the Commissioner every five years for the purpose of determining the need for additional facilities space for all special education programs in the geographic are served by the board of cooperative educational services. The repeal of the BOCES special space requirements plan will lessen administrative burdens to the State, to BOCES, and to local school district and approved private schools associated with participation in space plan meetings, and the preparation and submission of special education space plans.

3. PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional service requirements on local governments.

4. COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013, and does not impose any additional costs on local governments. Consistent with the statute, the proposed amendment will eliminate costs to BOCES and local school districts that are associated with participation in space plan meetings, and the preparation and submission of special education space plans.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment removes references to special education space requirements plans and establishes that it is the duty of the district superintendent to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the (BOCES), in order to ensure consistency with recent changes in State statute, and does not impose any new technological requirements or costs on local governments.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013, and does not impose any additional costs or compliance requirements on the State, local governments, private regulated parties or the State Education Department. Consistent with the statute, the proposed amendment will eliminate costs and reduce administrative burdens to BOCES and local school districts that are associated with participation in space plan meetings, and the preparation and submission of special education space plans.

Sections 155.2, as amended, removes the reference to the special education space requirements plan and establishes that specifications for the creation of new instructional space must be consistent with the needs for placement in the least restrictive environment and for the stability and continuity of program placements for participating students with disabilities.

Section 155.12, as amended, removes the reference to the special education space requirements plan.

Section 200.2, as amended, removes the reference to the special education space requirements plan and establishes that it is the duty of the district superintendent to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the (BOCES), consistent with the needs for placement in the least restrictive environment and for the stability and continuity of program placements for participating students with disabilities.

The Department complies with a federal requirement to collect and publicly report on each school district’s least restrictive environment placements for students with disabilities. This reporting requirement can ensure that each school district provides appropriate educational space for students with disabilities in the least restrictive environment, which is the intended purpose of special education space planning requirements.

7. LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents with the request that they distribute them to school districts within their supervisory districts for review and comment.

8. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment merely conforms the Commissioner's Regulations to statutory requirements under sections 2-a and 2-b of Chapter 57 of the Laws of 2012 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment will apply to all public school districts and boards of cooperative educational services (BOCES) 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.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013 and does not impose any additional compliance requirements or professional services requirements on entities in rural areas. Consistent with the statute, the proposed amendment provides mandate relief to BOCES by eliminating the requirement that each BOCES submit a special education space requirements plan to the Commissioner every five years for the purpose of determining the need for additional facilities space for all special education programs in the geographic are served by the board of cooperative educational services. The repeal of the BOCES special space requirements plan will lessen administrative burdens to the State, to BOCES, and to local school district and approved private schools associated with participation in space plan meetings, and the preparation and submission of special education space plans.

3. COSTS:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013, and does not impose any additional costs on entities in rural areas. Consistent with the statute, the proposed amendment will eliminate costs to BOCES and local school districts that are associated with participation in space plan meetings, and the preparation and submission of special education space plans.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to conform the Commissioner's Regulations to sections 2-a and 2-b of Chapter 57 of the Laws of 2013, and does not impose any compliance requirements or costs on entities in rural areas. Consistent with the statute, the proposed amendment will eliminate costs and reduce administrative burdens to BOCES and local school districts that are associated with participation in space plan meetings, and the preparation and submission of special education space plans.

Section 155.2, as amended, removes the reference to the special education space requirements plan and establishes that specifications for the creation of new instructional space must be consistent with the needs for placement in the least restrictive environment and for the stability and continuity of program placements for participating students with disabilities.

Section 155.12, as amended, removes the reference to the special education space requirements plan.

Section 200.2 is amended to repeal the requirements for a special education space plan and add to the duties of the district superintendent to determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the (BOCES), consistent with the needs for placement in the least restrictive environment and for the stability and continuity of program placements for participating students with disabilities.

The statute which the proposed amendment implements applies to BOCES and school districts throughout the State, including those in rural areas. Therefore, it was not possible to establish different requirements for entities in rural areas, or to exempt them from the amendment's provisions.

5. RURAL AREA PARTICIPATION:

The proposed amendment was submitted for comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas.

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment merely conforms the Commissioner's Regulations to statutory requirements under sections 2-a and 2-b of Chapter 57 of the Laws of 2012 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10. of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

The proposed amendment is necessary to conform the Regulations of the Commissioner of Education to be consistent with a recent change to State law (L. 2013, Ch. 57, §§ 2-a and 2-b), which repealed the requirement for every board of cooperative educational services (BOCES) to submit a special education space plan to the Commissioner, and requires the district superintendent of each BOCES must determine the adequacy and appropriateness of the facilities space available to house special education programs in the geographic area served by the BOCES, consistent with the least restrictive environment requirement and to ensure the stability and continuity of program placements for students with disabilities. The proposed amendment will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the amendment 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.