Implementing IDEA 2004: 2007 Changes to NYS’ Special Education Laws and Regulations

1. 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 Department July 2007 All Rights Reserved

2. Status • Chapter 378 of the Laws of 2007 • Retroactive effective date of 6/30/07 • 2 year sunset • Amendments to Parts 100, 120, 200 and 201 of the Commissioner’s Regulations • Adopted through emergency action effective 7/1/07 • Permanent adoption effective 10/4/07 * Changes based on law

3. Referrals Evaluations Eligibility CSE Members IEPs Continuum Due Process Discipline Parentally placed Charter Schools 10 New Policy Areas

4. 1. Referrals for Initial Evaluation

5. Who may initiate a referral?* • Referral for initial evaluations • Parent • School District or designee of State educational agency responsible for education of the student • Request for referrals • Professional staff members of district student resides in or private school student attends • Physician • Judicial officer • Commissioner or designee of public agency responsible for welfare or health of children • Student, age 18 or emancipated minor

6. 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 time when provided instruction in a “response-to-intervention” process (§100.2(ii)) Referrals when using Rti

7. 2. Individual Evaluations and Reevaluations

8. 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.

9. 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)

10. 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

11. 3. Eligibility Determinations

12. Sources of information • Variety of sources • Aptitude and achievement tests • Parent input • Teacher recommendations • Physical condition • Social or cultural background • Adaptive behavior • Ensure information from all sources is: • documented and • carefully considered.

13. Learning Disabilities • Q: If you use an RtI process, must you still conduct a complete individual evaluation? • A: Yes • May not rely on any single procedure • Must include observation of student’s academic performance in the regular classroom • Before referral • With parent consent, after the referral • Must be conducted by CSE member

14. 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

15. Who makes the LD determination? • CSE • Must include student’s regular education teacher; and • At least one person qualified to conduct individual diagnostic examinations (e.g., school psychologist, speech/language pathologist, reading teacher)

16. State Criteria for LD • Student does not achieve adequately for age or standards; and • Student either: • does not make progress (RtI) or • exhibits a pattern of strengths and weaknesses in: • performance, achievement, or both • relative to age, standards or intellectual development; and

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

18. Use of significant discrepancy • State does not prohibit its use • Except that effective on or after July 1, 2012 (5 years), a school district shall not use the severe discrepancy criteria for: • LD determination • in reading • in grades K-4.

19. Written report of LD Determination • Does student have a LD? • Basis for making the determination? • Relevant behavior noted during the observation and the relationship of the behavior to the student’s academic functioning • Educationally relevant medical findings • Does the student meet the State’s criteria?

20. Determination of the CSE regarding exclusionary factors • If student participated in RtI: • Instructional strategies used and the student centered data collected; and • Documentation that parents were notified • amount and nature of student performance data, • general education strategies used for increasing the student’s rate of learning; and • right to request a special education evaluation.

21. Response to Intervention§100.2(ii) • Minimum requirements • Appropriate instruction in general education class • Screenings • Levels of targeted intervention • Repeated assessments • Application of information to make educational decisions • Written notification to parents • School selects structure and components • Ensure fidelity of implementation

22. 4. CSE/CPSE Members

23. Member attendance not necessary* • Parent and district may agree, in writing • Attendance of a CSE/CPSE member not necessary - area will not be discussed • Request to parent in writing 5 days in advance of meeting • Parent can request/agree at any time • Does not apply to attendance of parent of student or municipality appointee (CPSE)

24. 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 member • Requires parent consent in writing • Parent 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)

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

26. 5. IEP Development Individualized Education Program

27. Include academic and functional goals • All IEPs developed on or after January 1, 2009 must be on a form prescribed by the Commissioner

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

29. 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.

30. 6. Continuum of Services

31. 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

32. Integrated Co-Teaching Services • May add to continuum • Requires special education teacher and general education teacher • No 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.

33. Preschool special classes • Maximum class size of 12 • Preschool 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

34. 7. Due Process Procedural safeguards notice Prior notice Mediation Parent consent State complaints Meeting notices Resolution sessions Parent participation in meetings Impartial hearings and appeals Surrogate parents Confidentiality of personally identifiable information

35. Prior written notice • “Notice of recommendation” • Effective January 1, 2009, all prior notices must be on a form prescribed by the Commissioner

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

37. Procedural Safeguards Notice • Notice 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; and • whenever there is a disciplinary change in placement

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

39. 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)

40. Resolution Process • Steps to ensure parent participation • Failure to participate • School may request IHO dismiss parent complaint at the conclusion of 30 days • Parent may request IHO begin hearing if district fails to convene meeting within 15 days of receipt of complaint

41. Impartial hearings • School district request for hearing • Hearing commences within 14 days after IHO is appointed • Parent request for hearing • Hearing commences within 14 days after • Parties waive resolution meeting; or • IHO notified resolution meeting held and no agreement reached; or • Expiration 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.

42. 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*

43. 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.

44. 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.

45. 8. Discipline

46. Determining if there is a pattern of removals • Removals cumulate to more than 10 school days in a school year • Student’s behavior is substantially similar to student’s behavior in previous incidents that resulted in the series of removals • Additional factors (length, total time, proximity of suspensions) • Determination on a case-by-case basis • Subject to due process challenge

47. Functional behavioral assessmentsBehavioral intervention plans • CSE must: • conduct an FBA (if one has not been conducted) and • implement a BIP (or if developed, review and modify if necessary) • whenever there is a manifestation determination (behavior is related to the disability)

48. 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

49. Expedited impartial hearings • No sufficiency challenge to due process complaint notice • Must schedule resolution session within 7 days • Resolution period ends at 15 days • Impartial hearing must begin within 20 school days of date complaint filed • IHO decision within 10 school days after hearing • No extensions

50. 9. Parentally placed students*