Implementing IDEA 2004: 2007 Changes to NYS’ Special

Education Laws and Regulations

Developed by the Office of Vocational and Educational Services, Special

Education, New York State Education DepartmentJuly 2007

All Rights Reserved

StatusChapter 378 of the Laws of 2007

Retroactive effective date of 6/30/072 year sunset

Amendments to Parts 100, 120, 200 and 201 of the Commissioner’s Regulations

Adopted through emergency action effective 7/1/07Permanent adoption effective 10/4/07

* Changes based on law

10 New Policy Areas

1. Referrals2. Evaluations3. Eligibility4. CSE Members5. IEPs

6. Continuum 7. Due Process8. Discipline9. Parentally placed10.Charter Schools

1. Referrals for Initial Evaluation

Who may initiate a referral?*Referral for initial evaluations

ParentSchool District or designee of State educational agency responsible for education of the student

Request for referralsProfessional staff members of district student resides in or private school student attendsPhysicianJudicial officerCommissioner or designee of public agency responsible for welfare or health of childrenStudent, age 18 or emancipated minor

Referrals when using Rti

School district must initiate a referral and promptly request parent consent to evaluate a student who:

has not made adequate progress after an appropriate period of timewhen provided instruction in a “response-to-intervention” process (§100.2(ii))

2. Individual Evaluations and Reevaluations

Consent, timelines, IEEs and reevaluations

Parent consent – documentation of attempts to obtain parent consent

If parent of home-schooled or parentally placed student refuses consent for initial evaluation or reevaluation, district may not pursue evaluation through due process.

60 calendar days to complete evaluation

Parent and district can agree to another timeline if:

Child moves into new district and evaluation was initiated in prior district

Agree to determine how student responds to research-based intervention (response to intervention)

Independent educational evaluations (IEE)

parent right to one IEE for each district evaluation parent disagrees with

Reevaluation every three years*unless parent and district agree, in writing, the reevaluation is not necessary

3. Eligibility Determinations

Sources of informationVariety of sources

Aptitude and achievement testsParent inputTeacher recommendationsPhysical conditionSocial or cultural backgroundAdaptive behavior

Ensure information from all sources is:documented andcarefully considered.

Learning DisabilitiesQ: If you use an RtI process, must you still conduct a complete individual evaluation?A: Yes

May not rely on any single procedureMust include observation of student’s academic performance in the regular classroom

Before referralWith parent consent, after the referralMust be conducted by CSE member

Are learning problems the result of lack of appropriate instruction in math and reading?

Data that demonstrates that prior to, or as part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel;

60-day timeline unless extended by mutual agreement of the parent and CSE

Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction

Information must have been provided to parents prior to referral

Who makes the LD determination?

CSEMust include student’s regular education teacher; andAt least one person qualified to conduct individual diagnostic examinations (e.g., school psychologist, speech/language pathologist, reading teacher)

State Criteria for LD

1. Student does not achieve adequately for age or standards;

and2. Student either:

does not make progress (RtI)

orexhibits a pattern of strengths and weaknesses in:

performance, achievement, or bothrelative to age, standards or intellectual development;

and

3. Not result of:visual, hearing or motor disability;mental retardation;emotional disturbance;cultural factors;environmental or economic disadvantage; orlimited English proficiency

Use of significant discrepancy

State does not prohibit its useExcept that effective on or after July 1, 2012 (5 years), a school district shall not use the severe discrepancy criteria for:

LD determinationin readingin grades K-4.

Written report of LD Determination

1. Does student have a LD?

2. Basis for making the determination?

3. Relevant behavior noted during the observation and the relationship of the behavior to the student’s academic functioning

4. Educationally relevant medical findings

5. Does the student meet the State’s criteria?

5. Determination of the CSE regarding exclusionary factors

6. If student participated in RtI:Instructional strategies used and the student centered data collected; andDocumentation that parents were notified

amount and nature of student performance data,general education strategies used for increasing the student’s rate of learning; andright to request a special education evaluation.

Response to Intervention§100.2(ii)

Minimum requirementsAppropriate instruction in general education classScreeningsLevels of targeted interventionRepeated assessments Application of information to make educational decisionsWritten notification to parents

School selects structure and componentsEnsure fidelity of implementation

4. CSE/CPSE Members

Member attendance not necessary*

Parent and district may agree, in writingAttendance of a CSE/CPSE member not necessary - area will not be discussed

Request to parent in writing 5 days in advance of meetingParent can request/agree at any time

Does not apply to attendance of parent of student or municipality appointee (CPSE)

Excusal of members*Excusal of members – area to be discussed

Request to parent in writing 5 days in advance of meeting

Must include written input of memberRequires parent consent in writingParent can request/agree at any time

Written input from the member to be excused must be given to parent before meeting and a reasonable time before obtaining consent of the parent

Does not apply to attendance of parent of student or municipality appointee (CPSE)

CPSE

Early intervention representative is a member at the request of the parent of the student transitioning from EI to preschool special education

5. IEP Development

Individualized Education Program

Include academic and functional goals

All IEPs developed on or after January 1, 2009 must be on a form prescribed by the Commissioner

Changes to IEP after the annual review*

The parent and district may agree to change the IEP without a meeting

If parent requests changes and district and parent agreeIf district proposes changes, submits written proposal in language understandable to the parent and provides parent opportunity to discuss with providersAfter agreement in writing, parent receives prior notice and copy of IEP or document that amends the IEP.

IEP Implementation*

Section 4410 (Preschool)IEP must be implemented as soon as possible following development of the IEP, but not later than 30 days from the recommendation of the CPSE.

6. Continuum of Services

Consultant teacher and resource room services

CT and RR combined – meet minimum level of service requirement if the combination of such services is at least 3 hours per week.

CT definition clarified – direct CT means services provided to the student in the general education class

Integrated Co-Teaching Services

May add to continuumRequires special education teacher and general education teacherNo more than 12 students with disabilities in the class (effective 7/1/08)Teacher aides/teaching assistants can not be in place of the special education teacher.

Preschool special classes

Maximum class size of 12Preschool programs at maximum enrollment may temporarily enroll an additional preschool child, with the assignment of additional staff, when there is no other appropriate program available to serve the student

7. Due Process

Prior notice

Procedural safeguards notice

Meetingnotices

Mediation

Impartial hearingsand appeals

Resolution sessions

Statecomplaints

Parent participationin meetings

Surrogate parents

Parentconsent

Confidentiality of personally identifiable information

Prior written notice

“Notice of recommendation”

Effective January 1, 2009, all prior notices must be on a form prescribed by the Commissioner

Meeting notices

Effective January 1, 2009, all meeting notices must be on a form prescribed by the Commissioner

Procedural Safeguards NoticeNotice must be given to parent at least one time a year and

upon initial referral or parental request for evaluation; upon  the first filing of a due process complaint notice to request mediation or an impartial hearing;upon request by a parent; upon receipt of first State complaint in a school year received from a parent; andwhenever there is a disciplinary change in placement

Mediation

A mediator must not have a personal or professional interest that conflicts with the person’s objectivityRepeals that the parent and district may have to sign a “confidentiality pledge”*

Due process complaint notice

Sufficiency challenge – IHO must be notified within 15 days of receipt of the complaint notice.

The parties cannot challenge the sufficiency of a due process complaint notice during an expedited impartial hearing (a hearing relating to discipline issues)

Resolution ProcessSteps to ensure parent participationFailure to participate

School may request IHO dismiss parent complaint at the conclusion of 30 daysParent may request IHO begin hearing if district fails to convene meeting within 15 days of receipt of complaint

Impartial hearingsSchool district request for hearing

Hearing commences within 14 days after IHO is appointed

Parent request for hearingHearing commences within 14 days after

Parties waive resolution meeting; orIHO notified resolution meeting held and no agreement reached; orExpiration of 30 day period; unless

• Parties agree to continue mediation after 30 day resolution period, then hearing begins 14 days after either party withdraws from mediation.

State complaint procedures

Information required in a complaint

Party filing complaint must forward a copy to the district at same time sent to SED

District must provide parent with copy of Procedural Safeguards Notice upon receipt of first State complaint in that school year.

Timeline to resolve complaint may be extended if parties agree to mediation

Alleged violation occurred within one year

Remedy may include compensatory services*

Pendency

Child transitioning from early intervention (EI) to preschool

District not required to provide EI services If found eligible, district must provide those services not in dispute between parent and district.

Surrogate parents

For unaccompanied homeless youth

Appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogate parents until another surrogate can be appointed.

8. Discipline

Determining if there is a pattern of removals

Removals cumulate to more than 10 school days in a school yearStudent’s behavior is substantially similar to student’s behavior in previous incidents that resulted in the series of removalsAdditional factors (length, total time, proximity of suspensions)Determination on a case-by-case basisSubject to due process challenge

Functional behavioral assessmentsBehavioral intervention plans

CSE must:conduct an FBA (if one has not been conducted) andimplement a BIP (or if developed, review and modify if necessary)whenever there is a manifestation determination (behavior is related to the disability)

Determining services and setting - students suspended for more than10

school daysin a school year

If not a disciplinary change in placement – school personnel in consultation with the student’s teacher

If a disciplinary change in placement – the CSE

Expedited impartial hearingsNo sufficiency challenge to due process complaint noticeMust schedule resolution session within 7 daysResolution period ends at 15 daysImpartial hearing must begin within 20 school days of date complaint filedIHO decision within 10 school days after hearingNo extensions

9. Parentally placed students*

District of Location*Child find, including evaluationsExpenditure of proportionate share of federal fundsConsultation with nonpublic school and parent representativesCSE meetingsEligibility and recommendations for servicesEquitable provision of services

NYS Resident Students*Parents request services, in writing, by June 1 of the preceding year to the district of locationIESP – Individualized Education Services Program

Based on student needsDeveloped by CSESame contents as IEP

Transition 2007-08*District of residence sends IEP to district of location, with consent of parentIEP deemed IESP, unless district of location CSE meets to develop a new IESPIf evaluation started in district of residence, can be shared with district of location who can adopt, in whole or in part, evaluation conducted in other district2006-07 IEPs binding on district of residence2007 – parent has 30 days from date law goes into effect to request in writing services from the district of location (August 18, 2007).

Provision of services*

Equitable basisCompared to special education programs and services provided other students with disabilities attending public and nonpublic schools located within the school district

Due Process*

Parentally placed students who are residents of NYS can use the due process procedures to resolve disputesDue process complaint notice goes to district of location

Unless parent is disputing a district of residence’s offer of FAPE (IEP)

Recovering of costs*District of location may charge district of residence for actual costs for:

EvaluationCSE administrationServices

Parent consent to share personally identifiable special information between the districts is required for billing.If no consent, district can submit claim to SED on form prescribed by the Commissioner.

Students who are not NYS residents*

Services Plan (SP)Based on the proportionate share of federal dollarsDetermined through the consultation processNo FAPE entitlementNo process for district of location to recover costs for evaluations or CSEDue process for evaluations only

10. Charter Schools*

Special Education Services*

If the Charter school arranges to have the school district of residence provide special education, such district must provide services in the same manner it serves students with disabilities in other public schools in the district, including the provision of supplementary and related services on site to the same extent to which it has a policy or practice of providing such service on the site of other public schools.