August 2008
| TO: |
District Superintendents |
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Superintendent of Schools |
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Presidents of Boards of Education |
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Directors of Special Education |
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Superintendents of State-Operated and State-Supported Schools |
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Executive Directors of Approved Private Schools |
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New York City Board of Education |
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Principals of Public Schools |
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Directors of Pupil Personnel Services |
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Organizations, Parents and Individuals Concerned with Special Education |
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Commissioner's Advisory Panel for Special Education Services |
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SETRC Project Directors and Professional Development Specialists |
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Regional School Support Centers |
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Other State Agencies |
| FROM: |
James P. DeLorenzo |
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SUBJECT:
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New Requirements for Special Education Programs and
Services: Amendments
to State Regulations Relating to Chapter 378 of the Laws of 2007 and
the 2004 Reauthorization of the Individuals with Disabilities Education
Act of 2004 - PDF (122KB) |
This is to inform you
that the Board of Regents has approved for permanent adoption regulations to
conform the Regulations of the Commissioner of Education to New York State
(NYS) Education Law, as amended by Chapter 378 of the Laws of 2007, IDEA 2004,
and 34 Code of Federal Regulations (CFR) Part 300. The amended regulations
relate to:
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the provision of special education services to parentally-placed students
in nonpublic schools;
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definitions of “school health and school nurse services” and “transition
services”;
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the qualifications and role of the chairperson of the Committee on Special
Education (CSE);
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participation of a representative from Early Intervention (EI) in the Committee
on Preschool Special Education (CPSE) meeting of a child transitioning from
EI to preschool special education;
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agreements between school districts and parents regarding:
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attendance of CSE or CPSE members;
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the three-year reevaluation of a student; and
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changes to an individualized education program (IEP) after the annual review
without a meeting;
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the parties that can make a referral for an initial evaluation of a student
suspected of having a disability;
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the parties that can make a written request that a school district or agency
refer a student for an initial evaluation and the actions the school district
must take upon receipt of a written request for a referral of a student suspected
of having a disability; and
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timelines for provision of services to preschool students.
The effective date of the amendment to regulations is August 21, 2008. However,
except for the requirements relating to the chairperson of the CSE and procedures
for “requests for referrals”, these requirements have been in effect
since June 30, 2007 pursuant to NYS law. Attached is a summary of the
changes to NYS regulations that were adopted at the July Regents meeting with
suggested school district action implementation steps. A copy of the amended
regulations may be found at www.regents.nysed.gov/2008Meetings/July2008/0708vesida1.doc.
To ensure dissemination
to appropriate individuals within a school district, I ask Superintendents
to please share this memorandum with individuals such as Directors of Special
Education, School Psychologists, CSE and CPSE Chairpersons, Guidance Counselors
and Directors of Pupil Personnel and Parent Teacher Associations. Questions
regarding this memorandum may be directed to the Special Education Policy Unit
at 518-473-2878 or to the Special Education Quality Assurance Office in your
region:
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Central Regional Office
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(315) 428-3287
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Eastern Regional Office
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(518) 486-6366
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Hudson Valley Regional Office
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(914) 245-0010
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Long Island Regional Office
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(631) 884-8530
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New York City Regional Office
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(718) 722-4544
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Western Regional Office
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(585) 344-2002
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Attachment
Effective August 28, 2008
SECTION 177.1
SERVICES TO PUPILS ATTENDING NONPUBLIC SCHOOLS
Nonpublic school students – section 177.1
The parent of a student parentally placed in a nonpublic school must request
services from the school district responsible for providing such services in
accordance with section 3602-c(2) of the Education Law.
SECTION 200.1
DEFINITIONS
The definition of related services was amended to include school nurse services.
School health services – section 200.1(ss)
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School health services was
amended to mean health services, provided by either a qualified school
nurse or other qualified person, that are designed to enable a student
with a disability to receive a free appropriate public education (FAPE)
as described in the individualized education program (IEP) of the student.
- School nurse services was added to mean services,
provided by a qualified school nurse pursuant to section 902(2)(b) of the
Education Law, that are designed to enable a student with a disability
to receive FAPE as described in the IEP of the student.
Transition services – section 200.1(fff)
The definition of transition services was amended to mean "a coordinated
set of activities for a student with a disability, designed within a results-oriented
process, that is focused on improving the academic and functional achievement
of the student with a disability to facilitate the student's movement from
school to post-school activities, including, but not limited to, post-secondary
education, vocational education, integrated employment (including supported
employment), continuing and adult education, adult services, independent living,
or community participation. The coordinated set of activities must be based
on the student's strengths, preferences and interests, and shall include needed
activities in the following areas: (1) instruction; (2) related services; (3) community
experiences; (4) the development of employment and other post-school adult
living objectives; and (5) when appropriate, acquisition of daily living skills
and provision of a functional vocational evaluation."
Chairperson of the CSE and Subcommittee on Special Education – sections
200.3(a)(1)(v) and 200.3(c)(2)(iv)
Sections 200.3(a)(1)(v) and 200.3(c)(2)(iv) of the Regulations have been amended
to require that the representative of the school district serve as the chairperson
of the CSE and the subcommittee.
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Note: The representative of the
school district member of the committee is an individual who is qualified
to provide or supervise special education and who is knowledgeable
about the general education curriculum and the availability of resources
of the school district. An individual who meets these qualifications
may also be the same individual appointed as the special education
teacher or the special education provider of the student or the school
psychologist. Current regulations require the Committee on
Preschool Special Education (CPSE) chairperson to also be the school
district representative on the CPSE [section 200.3(a)(2)(iv)].
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Role and Responsibilities of the Committee Chairperson – section
200.3(e)
The chairperson of the CSE, CPSE, and subcommittee on special education must:
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preside over a meeting of such committee; and
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carry out the functions of a chairperson identified in Part 200 of the
Regulations of the Commissioner of Education relating to students with disabilities
and in Education Law, including but not limited to:
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designating for each student a professional employee
of the school district with knowledge of the student’s disability and education program to
inform each teacher, assistant and support staff person of his or her responsibility
to implement the recommendations on a student’s IEP;
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carrying out responsibilities related to referrals and requests for referrals
such as:
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forwarding a copy of a referral to the building administrators within five
days of its receipt;
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notifying parents when a referral or request for referral has been received;
- documenting attempts to obtain parental consent to an initial evaluation;
- informing a parent that does not grant consent for an initial evaluation,
that upon request, the parent will be given an opportunity to attend an
informal conference to ask questions regarding the proposed evaluation;
and
- providing a parent and a referring person a copy of an agreement to withdraw
a referral.
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determining the location of any meeting held to review or evaluate a preschool
child; and
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participating in a transition planning conference for a child transitioning
from early intervention (EI) services to preschool special education and
services to review the child’s program options and establish a transition
plan (or designating another individual to participate in this meeting).
Committees on Preschool Special Education – section 200.3(a)(2)(viii)
For a child in transition from EI programs and services, the school district
must, at the request of the parent, invite an EI
service coordinator or other representative of the EI system to participate
in the initial CPSE meeting.
Committee member attendance – sections 200.3(f) and 200.7(d)(1)(i)(c)
The parent and the school district may agree that the attendance of a member
of the CSE, CPSE or subcommittee on special education is not necessary or that
a member may be excused in accordance with the following procedures:
- Member’s attendance not necessary: A member of
the committee or subcommittee is not required to attend a meeting of the
committee, in whole or in part, if the parent and the school district agree,
in writing, that the attendance of the member is not necessary because
the member’s
area of the curriculum or related services is not being modified or discussed
at the meeting.
- Excusal of member: A member of the committee may be
excused from attending a meeting of the committee or subcommittee, in whole
or in part, when the meeting involves a modification to or discussion of
the member’s area of the curriculum or related services if:
- the parent and the school district consent, in writing, to the excusal;
and
- the excused member submits to the parent and the committee, written
input into the development of the IEP, and in particular written input
with respect to their area of curriculum or related services prior
to the meeting.
- The request to excuse a member or to agree that a member’s attendance
at a meeting is not necessary, and the written input into the development
of the IEP from the member proposed to be excused must be provided not
less than five calendar days prior to the meeting date, in order to afford
the parent a reasonable time to review and consider the request. The parent
retains the right to request and/or agree with the school district to excuse
a member at any time, including where the member is unable to attend because
of an emergency or unavoidable scheduling conflict, and the school district
submits the written input for review and consideration by the parent within
a reasonable time prior to the meeting and prior to obtaining parental
consent to the excusal.
- Requests for excusals do not apply to the parent of the student for whom
the meeting is to be held or the appointee of the municipality in the case
of a CPSE.
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Note: In the Analysis of Comments and
Changes to the federal regulations to implement IDEA, the United States
Education Department (USED) provided the following guidance on committee
member attendance: “An LEA (local educational agency) may not
routinely or unilaterally excuse IEP Team members from attending IEP
Team meetings as parent agreement or consent is required in each instance.
We encourage LEAs to carefully consider, based on the individual needs
of the child and the issues that need to be addressed at the IEP Team
meeting whether it makes sense to offer to hold the IEP Team meeting
without a particular IEP Team member in attendance or whether it would
be better to reschedule the meeting so that person could attend and
participate in the discussion.” (Page 46674 of Volume 71, No.
156 of the Federal Register dated August 14, 2006).
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Action Implementation Steps
- Establish procedures to ensure the EI representative is invited to
a CPSE meeting at the request of the parent.
- Ensure that each meeting of the CSE or subcommittee is chaired by
the school district representative.
- Establish procedures for district and parent agreements to excuse
a member or to agree that the attendance of a member is not necessary
consistent with the above requirements.
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SECTION 200.4
PROCEDURES FOR REFERRAL, EVALUATION, ELIGIBILITY
DETERMINATIONS, IEP DEVELOPMENT,
PLACEMENT AND REVIEW
Referral for an initial evaluation – section
200.4(a)(1)
A student suspected of having a disability may be referred for an initial
evaluation by the:
- student’s parent (defined in section 200.1(ii) of the Regulations
of the Commissioner of Education);
- designee of the school district in which the student resides or the public
school district the student legally attends or is eligible to attend;
- commissioner or designee of a public agency with responsibility for the
education of the student; and/or
- designee of an education program affiliated with a child care institution
with CSE responsibility.
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Note: While only a referral by a
parent or school district initiates the procedures to conduct an initial
evaluation to determine if the student is a student with a disability,
a school district must, in its child find procedures, consider a "request
for referral" from the following individuals consistent with
the procedures described below.
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Request for referral for an initial evaluation – section
200.4(a)(2)
A written request that the school district or agency refer the student for
initial evaluation may be made by a:
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professional staff member of the school district in which the student resides,
or the public or private school the student legally attends or is eligible
to attend;
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licensed physician;
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judicial officer;
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professional staff member of a public agency with responsibility for welfare,
health or education of children; or
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student who is 18 years of age or older, or an emancipated minor, who is
eligible to attend the public schools of the district.
The written request for referral must:
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state the reasons for the referral and include any test results, records
or reports upon which the referral is based that may be in the possession
of the person submitting the referral;
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describe in writing, intervention services, programs or instructional methodologies
used to remediate the student's performance prior to referral, including
any supplementary aids or support services provided for this purpose, or
state the reasons why no such attempts were made; and
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describe the extent of parental contact or involvement prior to the referral.
Procedures for request for referral – section 200.4(a)(2)
and 200.4(a)(9)
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When a written request for referral for an initial evaluation made to the
school where the student resides or legally attends or is eligible to attend
is received by the building administrator or any other employee of the school,
it must be forwarded to the committee chairperson immediately upon its receipt.
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Upon receiving a request for referral, a school district must within 10
school days, either:
- request parent consent to initiate the evaluation; or
- provide the parent with a copy of a request for referral; and
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A professional staff member of the school district who made a request for
referral that results in a parent referral for special education, must attend
any meeting requested by a building administrator to determine whether the
student would benefit from additional general education support services
as an alternative to special education and receive a copy of any agreement
to withdraw the referral.
Reevaluation – section 200.4(b)(4)
The parent and the school district may agree in writing that a three-year
reevaluation is unnecessary.
Amendments to the IEP after the annual review – section
200.4(g)
- After an IEP has been developed at the annual review meeting, a parent
and the school district may agree not to convene a meeting of the CSE to
make changes to a student’s IEP, and instead may develop a written
document to amend the student’s IEP under the following circumstances:
- the parent makes a request to the school district for an amendment
to the IEP and the parent and the district agree in writing; or
- the school district provides the parent with a written proposal to
amend a provision or provisions of the IEP that:
- is conveyed in language understandable to the parent (native language
or other dominate mode of communication), and
- informs and allows the parent the opportunity to consult with the
appropriate personnel or related service providers concerning the
proposed changes.
- the parent must agree in writing to such amendments.
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The parent must be provided prior written notice (notice
of recommendation) of the changes to the IEP.
- The CSE must be notified of any changes made to the IEP.
- The parent must
also receive, either a:
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Amendments made to an IEP without a meeting do not affect
the requirement that the CSE must review the IEP at the annual meeting,
or more often if necessary.
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Action
Implementation Steps
- Identify individual(s) who are authorized as the designee(s) of
the school district who may refer a student for an initial evaluation.
- Establish procedures for when a request for referral is received
by the school district.
- Ensure that each student has an annual review meeting. Establish
procedures for parent and school district agreements to amend an
IEP without a meeting.
- Ensure that documents used to amend an IEP are provided to the
parent and to the CSE and are disseminated to appropriate individuals
responsible for implementing the IEP.
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SECTION 200.5
PROCEDURAL SAFEGUARDS
Notice of meetings – section 200.5(c)(2)(viii)
The meeting notice must, in the case of a child who was previously
served under Part C EI services, inform the parent of his/her right to request
that the EI service coordinator or other representatives of the EI system be
invited to an initial CPSE meeting .
Mediation – section 200.5(h)(1)(v)
Repealed that the parties to the mediation process may be required to sign
a confidentiality agreement.
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Action Implementation Step
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SECTION
200.16
PRESCHOOL STUDENTS WITH DISABILITIES
Referral – section 200.16(b)(1)
Establishes the parties who can make a referral of a preschool student suspected
of having a disability consistent with Education law and section 200.4(a)(1)
of the Regulations of the Commissioner of Education. (See pages 4-6)
Provision of services – section 200.16(f)(1)
Requires the board of education to arrange for the preschool
student with a disability to receive programs and services commencing with
the July, September or January starting date, unless such services are recommended
by the CPSE less than 30 days prior to, or after, the starting date for a program,
in which case such services must be provided as soon as possible
following development of the IEP, but no later than 30 school
days from the recommendation of the CPSE. (Bolded language
is new)
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Action Implementation Steps
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