Article 35 - Educational Services & Programs For Students With Disabilities
Article 35
EDUCATIONAL SERVICES & PROGRAMS
FOR STUDENTS WITH DISABILITIES
Adopted 12/18/02
Section 35.1 Purpose
The purpose of this policy is to furnish, as required
by Federal and State law, all students with disabilities with a free
appropriate education in the least restrictive environment; and to provide each
such student with an equal opportunity to participate in the full range of
District programs and services, including extracurricular programs and
activities, which are available to all other students enrolled in the
District's public schools.
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Section 35.2 Census
& Register of Students with Disabilities[1]
(A) The
District shall conduct a census in accordance with Education Law, sections
3240, 3241 and 3242, to locate and identify all students with disabilities who
reside in the District and shall establish a register of such students who are
entitled to attend the District schools or are eligible to attend a preschool
program in accordance with section 4410 of the Education Law during the next school
year. The procedures to locate, identify, and evaluate all nonpublic private
school students with disabilities, including religious-school children residing
in the District, shall be comparable to activities undertaken for students with
disabilities in public schools.
(B) The
register of such students and others referred to the Committee on Special
Education (CSE) as possibly having a disability shall be maintained and revised
annually by the District CSE or the Committee on Preschool Special Education (CPSE),
as appropriate. Procedures shall be implemented to assure the availability of
statistical data to readily determine the status of each student with a
disability in the identification, location, evaluation, placement and program
review process. Census data shall be reported by October 1st to the
CSE or CPSE, as appropriate.
(C) The
data recorded on each student shall include at least the following:
(1) student's
name, address and birth date;
(2) student's
parents' names, address(es), and the native language of the student's home;
(3) student's
suspected disability;
(4) dates of
referral, evaluations, recommendations of the CSE, or CPSE, actual placement,
and annual program reviews;
(5) site where
the student is currently receiving an educational program; and
(6) if the
student is not receiving an appropriate public education, the reason shall be
described.
(D) The
data shall be organized so that it can readily be determined whether each
student is receiving an appropriate public education, a partial education or no
education at all.
(E) All
persons involved in the collection of data shall have received prior training
and written information regarding the procedures to be followed in collecting
the data.
(F) The
reporting of data shall be conducted in accordance with the following policies
and procedures:
(1) the District
shall prepare, and keep on file, summary reports of student data, including
numbers of students who are
(a) unserved and
the reasons they are unserved, and
(b) served; and
(2) a summary
report of the students served shall be submitted by the District to the State
Education Department in a manner prescribed by the Commissioner.
(G) The
District shall keep on file the register and related summary reports which
shall be available to the superintendent of the supervisory District in which
the District is located or other representatives of the State Education
Department.
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Section 35.3 Confidentiality
of Personally Identifiable Data[2]
(A) Personally
identifiable data shall include:
(1) the name of
the student, the student's parent, or other family member;
(2) the address
of the student;
(3) a personal
identifier, such as the student's social security number or student number; or
(4) a list of
personal characteristics or other information that would make it possible to
identify the student with reasonable certainty.
(B) The
District shall preserve the confidentiality of personally identifiable data,
information or records pertaining to students with disabilities in a manner
consistent with the procedures adopted pursuant to 8 NYCRR '200.2(b)(6) and/or in accordance with 20 USC 1232(g)
and the provisions of Part 99 of title 34 of the Code of Federal Regulations or
its successor (see also Article 66).
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Section 35.4 Due Process Procedures B Prior notice[3]
(A) Written
prior notice shall be given to the parents of a student with a disability a
reasonable time before the school District proposes to or refuses to initiate
or change the identification, evaluation, educational placement of the student
or the provision of a free appropriate public education to the student.
(B) If
the prior notice relates to an action proposed by the school District that also
requires parental consent, the District must give notice at the same time it
requests parent consent.
(C) The
notice must include:
(1) a
description of the action proposed or refused by the District;
(2) an
explanation of why the District proposes or refuses to take the action;
(3) a
description of any other options that the District considered and the reasons
why those options were rejected;
(4) a
description of each evaluation procedure, test, record, or report the District
used as a basis for the proposed or refused action;
(5) a
description of any other factors that are relevant to the District's proposal
or refusal;
(6) a statement
that the parents of a student with a disability have protection under the
procedural safeguards of 8 NYCRR '200.5, and the means by which a copy of a description
of the procedural safeguards can be obtained; and
(7) sources for
parents to contact to obtain assistance in understanding the provisions of 8
NYCRR Part 200.
(D) The
notice must be written in language understandable to the general public, and
provided in the native language of the parent or other mode of communication
used by the parent, unless it is clearly not feasible to do so. If the native
language or other mode of communication of the parent is not a written
language, the school District shall take steps to ensure that the notice is
translated orally or by other means to the parent in his or her native language
or other mode of communication, that the parent understands the content of the
notice, and that there is written evidence that the requirements of this
section have been met.
(E) In
addition to the requirements of paragraphs (C) and (D) above:
(1) upon receipt
of a referral for initial evaluation or prior to conducting a reevaluation,
such notice shall include a description of the proposed evaluation or
reevaluation and the uses to be made of the information and indicate that the
parent may submit evaluation information which, if submitted, shall be
considered by the committee on special education as part of its evaluation or
review;
(2) notice
provided to parents of students referred for a reevaluation must indicate that
the parents have the right to request a test or assessment as part of the
reevaluation to determine whether the student continues to be a student with a
disability;
(3) upon the
Board's disagreement with the recommendation of the CSE/CPSE, the notice to the
parent and to the committee shall set forth in writing a statement of the
Board's reasons and indicate that the recommendation will be sent back to the
committee, with notice of the need to schedule a timely meeting to review the
Board's concerns and to revise the IEP as deemed appropriate;
(4) prior to the
student's graduation with a local high school or Regents diploma, such notice
must indicate that the student is not eligible to receive a free appropriate
public education after graduation with the receipt of the local high school or
Regents diploma, unless the District provides such services to nondisabled
students pursuant to Education Law 3202;
(5) prior to the
student's graduation with an individualized education program (IEP) diploma,
such notice must indicate that the student continues to be eligible for a free
appropriate public education until the end of the school year in which the
student turns age 21 or until the receipt of a regular high school diploma;
(6) for students
described in 8 NYCRR '200.4(h)(1), notice must be provided to the parent
and, beginning at age 18 to the student, in accordance with 8 NYCRR '200.4(h)(2) and (3);
(7) for a
student whom the CSE has determined to be at risk of a future residential placement,
information must be provided to the parent on community support services that
may be available to the family, including the name and address of agencies
which can perform an assessment of a family's community support needs, where
such list has been made available to the committee; and
(8) for students
recommended for an approved private school, a copy of the approved private
school's policy on the use of psychotropic medication must be provided to the
student's parents if the school uses psychotropic medication.
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Section 35.5 Due
Process Procedures B Notice of CSE/CPSE Meetings[4]
(A) Whenever
the CSE/CPSE proposes to conduct a meeting related to the development or review
of a student's IEP, or the provision of a free appropriate public education to
the student, the parent must receive notification in writing at least five days
prior to the meeting. The meeting notice may be provided to the parent less
than five days prior to the meeting when both the parent and the District agree
to a meeting that will occur within five days.
(B) Such
notice shall:
(1) inform the
parent(s) of the purpose, date, time, and location of the meeting and the name
and title of those persons expected to attend the meeting;
(2) indicate
that the parent(s) has the right to participate as a member of the committee on
special education with respect to the identification, evaluation and
educational placement of his or her child;
(3) state that
the parent(s) has the right to be accompanied by such individuals with
knowledge or special expertise about his or her child, including related
service personnel as appropriate, as determined by the parent(s);
(4) inform the
parent(s) of his or her right to request, in writing at least 72 hours before
the meeting, the presence of the school physician member of the CSE/CPSE at any
meeting of such committee pursuant to Education Law 4402(1)(b);
(5) inform the
parent(s) of his or her right to decline, in writing, the participation of the
additional parent member at any meeting of such committee pursuant to Education
Law 4402(1)(b);
(6) if the
meeting is being conducted by a subcommittee on special education, inform the
parent(s) that, upon receipt of a written request from the parent, the
subcommittee shall refer to the CSE/CPSE any matter on which the parent(s)
disagrees with the subcommittee's recommendation concerning a modification or
change in the identification, evaluation, educational placement or provision of
a free appropriate public education to the student; and
(7) if the
purpose of the meeting is to consider transition services, the meeting notice
must also:
(a) indicate
this purpose;
(b) indicate
that the District will invite the student; and
(c) identify any
other agency that will be invited to send a representative.
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Section 35.6 Due
Process Procedures B Procedural Safeguards Notice[5]
(A) The
District shall use the procedural safeguards notice prescribed by the
Commissioner of Education, and ensure that such notice is provided in the
native language of the parent or other mode of communication used by the
parent, unless it is clearly not feasible to do so. If the native language or
other mode of communication of the parent is not a written language, the
District shall take steps to ensure that the notice is translated orally or by
other means to the parent in his or her native language or other mode of
communication, that the parent understands the content of the notice, and that
there is written evidence that the requirements of this section have been met.
(B) A
copy of such notice must be given to the parents of a student with a
disability, at a minimum upon:
(1) initial
referral for evaluation;
(2) each
notification of an IEP meeting;
(3) reevaluation
of the student; and
(4) receipt of a
request for an impartial hearing.
(C) The
procedural safeguards notice shall include a full explanation of all of the
procedural safeguards available under 8 NYCRR Part 200.
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Section 35.7 District Plans for Special
Education Programs[6]
The Superintendent shall develop and maintain a
two-year plan, pursuant to the Regulations of the Commissioner of Education,
which incorporates information concerning the provision of services for
students with disabilities. Students with disabilities shall be provided a free
appropriate public education which may include, but not limited to, providing a
structured learning environment; repeating and simplifying instructions about
in-class and homework assignments; supplementing verbal instructions with
visual instructions; using behavioral management techniques; adjusting class
schedules; modifying test delivery; using tape recorders, computerized
instruction, and/or other audio-visual equipment; selecting modified textbooks
or workshops and tailoring homework assignments or modification of nonacademic
times such as lunch room, recess and physical education.
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Section 35.8 Committee
on Special Education[7]
(A) The
Board shall appoint a Committee on Special Education (CSE) to identify,
evaluate and recommend placement of students with disabilities who are in need
of special services or programs. The Board shall also appoint subcommittees, if
necessary, to ensure the timely evaluation and placement of students.
(B) The
members of the CSE shall be as:
(1) the parents
or persons in parental relationship to the student;
(2) at least one
regular education teacher of the student whenever the student is or may be
participating in the regular education environment;
(3) one special
education teacher of the student, or, if appropriate, a special education
provider of the student;
(4) a school
psychologist;
(5) a
representative of the District who is qualified to provide or supervise special
education and who is knowledgeable about the general curriculum and the
availability of resources of the District, provided that 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;
(6) an
individual who can interpret the instructional implications of evaluation results
B such individual may also be the individual appointed
as the regular education teacher, the special education teacher or special
education provider, the school psychologist, the representative of the District
or a person having knowledge or special expertise regarding the student when
such member is determined by the District to have the knowledge and expertise
to fulfill this role on the committee;
(7) a school
physician, if specifically requested in writing by the parent of the student or
by a member of the school at least 72 hours prior to the meeting;
(8) an
additional parent member of a student with a disability residing in the
District or a neighboring school District, provided that such parent is not a
required member if the parents of the student request that the additional
parent member not participate in the meeting;
(9) such other
persons determined by the Board or the student’s parent as having knowledge or
special expertise regarding the student, including related services personnel
as appropriate, as the District or the parent(s) shall designate; and
(10) if
appropriate, the student.
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Section 35.9 Committee on Pre-School
Special Education[8]
(A) The
Board shall appoint a Committee on Pre-School Special Education (CPSE) to
identify, evaluate and recommend placement of pre-school students with
disabilities who are in need of special services or programs. The Board shall
also appoint subcommittees, if necessary, to ensure the timely evaluation and
placement of students.
(B) The
members of the CPSE shall be as follows:
(1) the parents
of the preschool child;
(2) a regular
education teacher of the child whenever the child is or may be participating in
the regular education environment;
(3) a special
education teacher of the child, or, if appropriate, a special education
provider of the child;
(4) a
representative of the District who is qualified to provide or supervise special
education and who is knowledgeable about the general curriculum and the
availability of preschool special education programs and services and other
resources of the District and the municipality B with such person to serve as the chairperson of the
committee;
(5) an
additional parent member of a child with a disability residing in the District
or a neighboring school District and whose child is enrolled in a preschool or
elementary level education program, provided that such parent is not a required
member if the parent(s) of the child request that the additional parent member
not participate;
(6) such other
persons determined by the Board as having knowledge or special expertise
regarding the child, including related services personnel as appropriate, as
the District or the parents shall designate.
(7) for a child
in transition from early intervention programs and services, the appropriate
professional designated by the agency that has been charged with the
responsibility for the preschool child; and
(8) a
representative of the municipality of the preschool child's residence, provided
that the attendance of the appointee of the municipality shall not be required
for a quorum.
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Section 35.10 Referrals of
Students With Disabilities B General Rules[9]
(A) A
student suspected of having a disability shall be referred in writing to the
chairperson of the CSE or to the building administrator of the school which the
student attends or is eligible to attend for an individual evaluation and
determination of eligibility for special education programs and services.
(B) A
referral may be made by:
(1) a student's
parent or person in parental relationship;
(2) a
professional staff member of the school District in which the student resides,
or the public or private school the student legally attends;
(3) a licensed
physician;
(4) a judicial
officer;
(5) the
commissioner or designee of a public agency with responsibility for welfare,
health or education of children; or
(6) for purposes
of referring one's self, a student who is over 18 years of age or older, or an
emancipated minor, who is eligible to attend the public schools of the
District.
(C) A referral
submitted by persons other than the parent, student or a judicial officer
shall:
(1) 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;
(2) 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
(3) describe the
extent of parental contact or involvement prior to the referral.
(D) A
preschool child suspected of having a disability shall be immediately referred
in writing to the CPSE chairperson by
(1) the persons
specified in paragraph (B)(1) through (5) above, or
(2) by
professional staff members of:
(a) an Early
Childhood Direction Center (ECDC);
(b) preschool
programs approved pursuant to Education Law 4410; or
(c) programs
providing special instruction to children birth to three years of age approved
by the lead State agency as designated by the Governor to administer Federal
funds for such programs.
(E) A
referral of a preschool child shall specify the extent to which such child has
received any services prior to the referral.
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Section 35.11 Referral
to CSE Chairperson[10]
(A) A
CSE chairperson who receives a referral shall:
(1) immediately
notify the parent pursuant to sections 35.4 and 35.5 of this policy; and
(2) within 5
school days forward a copy to the building administrator.
(B) In
the absence of a written agreement to withdraw a referral as provided in
section 35.15, and in the event that parental consent is not obtained within 30
days of the date of receipt of referral, the chairperson shall document
attempts made by the chairperson or other representatives of the committee to
obtain parental consent, and shall request that the Board of Education initiate
an impartial hearing in accordance with 8 NYCRR '200.5(i).
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Section 35.12 Referral to
Building Administrator[11]
(A) A
building administrator who receives a referral shall immediately forward the
same to the CSE chairperson.
(B) Upon
receipt of a referral or copy thereof, the building administrator may request a
meeting with the parent or person in parental relationship to the student, and
the student, if appropriate, to determine whether the student would benefit
from additional general education support services as an alternative to special
education, including the provision of educationally related support services,
speech and language improvement services, academic intervention services, and
any other services designed to address the learning needs of the student and
maintain a student's placement in general education with the provision of
appropriate educational and support services.
(C) If
the person making the referral is a professional staff member of the school
District in which the student resides, that person shall attend such meeting.
Any other person making a referral shall have the opportunity to attend such
meeting.
(D) The
meeting shall be conducted within 10 school days of the building
administrator's receipt of the referral, and shall not impede the CSE from
continuing its duties and functions.
(E) The
building administrator shall ensure that the parent understands the proceedings
of the meeting and shall arrange for the presence of an interpreter, if
necessary. If at such meeting the parent or person in parental relationship and
the building administrator agree in writing that, with the provision of
additional general education support services, the referral is unwarranted, the
referral shall be deemed withdrawn, and the building administrator shall
provide the CSE chairperson, the person who made the referral if a professional
staff member of the school District, the parent or person in parental
relationship to the student, and the student, if appropriate, with copies of
the agreement.
(F) An
agreement under paragraph (e) above shall contain a description of the
additional general education support services to be provided and the proposed
duration of such program. A copy of the agreement shall:
(1) be placed in
the student's cumulative education record file; and
(2) be provided to the parent or person in parental relationship to such student in the native language of such person.
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Section 35.13 Referral
to CPSE Chairperson[12]
(A) Upon
receipt of a referral, the CPSE chairperson shall immediately notify the parent
that a referral has been received and shall request consent for evaluation of
the preschool student.
(B) In
the event that consent for an individual evaluation is not provided, the
committee shall implement the District's practices and procedures for the
purpose of ensuring that parents have received and understand the request for
consent.
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Section 35.14 Court & Agency Requests For Evaluation/Recommendations[13]
(A) Upon
receipt of a written request for evaluative information and program
recommendations for a student receives a written request for evaluative
information and program recommendations for a student under Education Law '4005 from a Family Court judge, a probation
department, a social services District, the Office of Children and Family
Services, or a preadmission certification committee established under Mental
Hygiene Law '9.51(d), the CSE/CPSE shall:
(1) forward a
copy of the agency's request, as well as a request for parental consent for an
evaluation, to the parent of the student at the address indicated in the
request from the agency;
(2) in the event
that the parent does not grant consent, within five days after receipt of the
request for such consent, the CSE/CPSE shall notify the Board of Education of
the need to initiate a formal impartial hearing to be conducted pursuant to 8
NYCRR '200.5(i), to permit the District to conduct an
evaluation of the student without the consent of the parent;
(3) if consent
has been obtained, conduct an evaluation comparable to that described in
section 35.19, or section 35.20 for preschool children, of this policy; and
(4) develop a
written recommendation which:
(a) indicates
the reasons for determining that no disability exists; or
(b) if the
student is determined to have a disability, provides a recommendation in
accordance with subparagraphs (d)(2)(i) through (ix) and (xii) through (xiii)
and paragraph (3) of this section.
(B) The
CSE/CPSE shall forward a copy of the evaluation and recommendation to the
requesting agency and to the Board of Education within 42 days of the date of
receipt of such a request, provided that the CSE/CPSE has obtained the parent’s
consent to conduct the evaluation.
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Section 35.15 Withdrawal
of Referral[14]
(A) No
referral may be withdrawn except upon a written agreement signed by both the
parent and the person submitting the referral containing the following minimum
information:
(1) a statement
that the parties agree that the referral shall be withdrawn,
(2) specifying
any alternative methods suggested to resolve the identified learning difficulty
of the student, and
(3) providing
the opportunity for a follow-up conference within an agreed period of time to
review the student's progress.
(B) A
copy of the agreement shall be:
(1) placed
in the student's cumulative educational record file, and
(2) furnished by
the CSE chairperson to the parent and to the referring person.
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Section 35.16 Parental
Consent[15]
(A) Written
consent of the parent is required prior to:
(1) conducting
an initial evaluation or reevaluation, except that such consent is not required
(a) before
reviewing existing data as part of an evaluation or a reevaluation or
administering a test or other evaluation that is administered to all students
unless, before administration of that test or evaluation, consent is required
of parents of all students, or
(b) a
reevaluation if the school District can demonstrate that it has taken
reasonable measures to obtain that consent, and the student's parents failed to
respond;
(2) initial
provision of special education to a student who has not previously been
identified as having a disability, except that consent for initial evaluation
may not be construed as consent for initial provision of special education
services;
(3) initial
provision of special education services in a 12- month special service and/or
program:
(4) releasing
any identifiable information as provided in section 35.3;
(5) each time
the school District proposes to access a parent's private insurance proceeds.
(B) Notwithstanding
subparagraphs (2) and/or (3) of paragraph (A) above, the Board of Education
shall initiate an impartial hearing to determine if the provision of services
to a student other than a preschool child is warranted without parental consent
where a parent does not grant consent for an initial provision of special
education services in a 12-month program within 30 days of a notice of
recommendation.
(C) Parents
shall be informed that their refusal to permit the District to access their
private insurance does not relieve the District of its responsibility to ensure
that all required services are provided at no cost to the parents.
(D) The
District shall keep and maintain a record of all attempts to obtain parental
consent.
(E) In
the event the parent of the student to be evaluated does not grant consent for
an initial evaluation, such parent shall be informed by the CSE/CPSE
chairperson that, upon request, the parent will be given an opportunity to
attend an informal conference with the committee or designated professionals
most familiar with the proposed evaluation, the person who referred the student
for such an evaluation, and counsel or an advisor of the parent's choice, at
which time the parent shall be afforded an opportunity to ask questions
regarding the proposed evaluation. If at this meeting the parent and the person
initiating the referral agree in writing that the referral in not warranted,
the referral shall be withdrawn. Except in the case of a preschool child, if
the parent does not request or attend such a conference, or continues to
withhold consent for evaluation otherwise required for a period of 30 days
after the date of receipt of a referral, the Board of Education shall initiate
an impartial hearing to be conducted in accordance with 8 NYCRR '200.5(i) for the purpose of determining whether such
an evaluation shall be conducted without parental consent.
(F) The
District may not use a parent's refusal to consent to one service or activity
to deny the parent or child any other District service, benefit or activity,
except where parental consent to such other service, benefit or activity is
required.
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Section 35.17 Parent
Participation In CSE/CPSE Meetings[16]
(A) The
District shall take steps to ensure that one or both of the student's parents
are present at each CSE/CPSE meeting or are afforded the opportunity to
participate, including:
(1) notifying
the parent(s) of the meeting, consistent with section 35.5, prior to the
meeting to ensure that he or she will have an opportunity to attend;
(2) scheduling
the meeting at a mutually agreed on time and place and in a location that is
physically accessible to the parents; and
(3) using other
methods to ensure parent participation, including individual or conference
telephone calls if neither parent can attend.
(B) A
meeting does not include informal or unscheduled conversations involving school
personnel and conversations on issues such as teaching methodology, lesson
plans, or coordination of service provision if those issues are not addressed
in the student's IEP. A meeting also does not include preparatory activities
that school personnel engage in to develop a proposal or response to a parent
proposal that will be discussed at a later meeting.
(C) The
District may conduct a CSE/CPSE meeting without a parent in attendance if the
school is unable to convince the parents that they should attend. In this case,
the school must have a detailed record of its attempts, and the results of
those attempts to arrange a mutually agreed on time and place.
(D) A
decision may be made by the CSE/CPSE without the involvement of the parents, if
the District is unable to obtain the parents' participation in the decision,
and the District shall make and maintain a record of its attempt to ensure
their involvement.
(E) The
District shall take whatever action is necessary to ensure that the parent
understands the proceedings at the CSE/CPSE meetings, including arranging for
an interpreter for parents with deafness or whose native language is other than
English.
(F) The
parents of a student with a disability shall be afforded an opportunity to
inspect and review all education records with respect to the identification,
evaluation, and educational placement of the student and the provision of a
free appropriate public education to the student.
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Section 35.18 Uniform
Procedures B CSE & CPSE[17]
The CSE/CPSE shall identify students/children with
disabilities who are in need of special services or programs and develop an
individualized educational program (IEP) for each student in accordance with
the following:
(A) Upon
receipt of written notification that a student/child is suspected of having a
disability, the CSE/CPSE chairperson shall notify, in the dominant language or
mode of communication of the student’s/child’s parent or guardian, the
student’s/child’s parent(s) or guardian(s) that a referral has been made and to
request consent for the individual evaluation, with such notice to include at
least the following information:
(1) the right to
consent or withhold consent to an initial evaluation or placement;
(2) the right to
a hearing;
(3) procedures
for appeal;
(4) the
availability of mediation to resolve complaints regarding the education of a
student/child with a disability;
(5) the
acknowledgment that if consent is refused there will be no evaluation and the
student/child shall remain in his/her current placement, or receive admittance
to the requested school pending the outcome of a hearing;
(6) the
availability of free or low cost legal aid and reimbursement of reasonable
attorney’s fees if the parent(s) or guardian(s) win their hearing.
(B) If
parental consent is not obtained within 30 days of receipt of referral the
Board shall initiate an impartial hearing to determine if the individual
evaluation shall be conducted. The CSE/CPSE chair shall notify the
parent(s)/guardian(s) of his/her right to request an informal conference at
which the parent(s)/guardian(s) may ask questions regarding the evaluation.
(C) The
CSE/CPSE shall ensure that an individual evaluation of the student/child is
conducted by an approved evaluator at no cost to the parent(s)/guardians(s),
with such evaluation to include at least:
(1) a physical
examination,
(2) a social
history,
(3) a classroom
observation,
(4) a
psychological evaluation unless determined unnecessary by the school
psychologist, and
(5) other
appropriate assessments or evaluation as necessary to ascertain the physical,
mental and emotional factors which contribute to the suspected disabilities.
(D) The
evaluator shall submit a written report to the CSE/CPSE which shall include a
detailed statement of the student’s/child’s individualized educational needs,
and if the student/child is determined to have a disability a recommendation as
to the frequency and duration of services and the manner in which the
student/child can be provided with instruction in the least restrictive
environment.
(E) The
parent(s)/guardian(s) shall be provided the results of the evaluation and a
copy of the CSE/CPSE recommendation in their dominant language or mode of
communication.
(F) For
a student/child not previously identified as a student with a disability, the
CSE/CPSE must provide a recommendation to the Board of Education and the
student’s parent(s) within 30 days of receipt of the consent or 40 days from
receipt of referral, whichever occurs earlier. For a student/child with a
disability referred to the CSE/CPSE for a review, a recommendation shall be
made within 30 days of the referral.
(G) Prior
notice of the recommendation of the CSE/CPSE shall be provided to the Board and
to the parent of the student/child in accordance with the Commissioner’s
regulations. The notice of recommendation for a pre-school child shall indicate
that, in the event that the parent does not provide consent for the initial
provision of special education services, no further action will be taken by the
CPSE until such consent is obtained.
(H) The
CSE/CPSE shall make an annual report to the Board on the status of each
student/child with a disability and report on the adequacy of special education
programs and services.
[Back To Top]
Section 35.19 Individual
Evaluation B CSE[18]
(A) Unless
a referral is withdrawn pursuant to section 35.15, and provided that parental
consent is obtained as required by section 35.16, an individual evaluation of
the referred student shall be initiated by the CSE and shall be at no cost to
the parent.
(B) The
individual evaluation and the initial evaluation must include at least the
following:
(1) a physical
examination in accordance with Education Law sections 903, 904 and 905;
(2) an
individual psychological evaluation, except when a school psychologist
determines after an assessment of a school-age student, pursuant to paragraph
(C) of this section, that further evaluation is unnecessary;
(3) a social
history;
(4) an
observation of the student in the current educational placement;
(5) information
provided by the parent; and
(6) other
appropriate assessments or evaluations, including
(a) a functional
behavioral assessment for a student whose behavior impedes his or her learning
or that of others, as necessary to ascertain the physical, mental , behavioral
and emotional factors which contribute to the suspected disabilities; and/or
(b) relevant
functional and developmental information about the student and information
related to enabling the student to participate and progress in the general education
curriculum (or for a preschool child, to participate in appropriate
activities).
(C) A
determination by a school psychologist of the need to administer an individual
psychological evaluation to a student of school-age pursuant to Education Law,
section 4402(1)(b)(3)(a) and 8 NYCRR '200.1(aa) and (bb), shall be based upon an assessment
conducted by the school psychologist to substantiate his or her determination.
Whenever a school psychologist determines that a psychological evaluation is
unnecessary, the psychologist shall prepare a written report of such
assessment, including a statement of the reasons such evaluation is
unnecessary, which shall be reviewed by the committee.
(D) Notwithstanding
any provisions of this section or 8 NYCRR '200.1(aa) to the contrary, the CSE/CPSE may direct
that additional evaluations or assessments be conducted in order to
appropriately assess the student in all areas related to the suspected
disabilities.
(E) The
CSE shall arrange for an appropriate reevaluation of each student with a
disability if conditions warrant a reevaluation, or if the student's parent or
teacher requests a reevaluation, but at least once every three years by a
multidisciplinary team or group of persons, including at least one teacher or
other specialist with knowledge in the area of the student's disability. In
accordance with paragraph (F) below, the reevaluation shall be sufficient to
determine the student's individual needs, educational progress and achievement,
the student's ability to participate in instructional programs in regular
education and the student's continuing eligibility for special education. The
results of any reevaluations must be addressed by the committee on special
education in reviewing and, as appropriate, revising the student's IEP.
(F) As
a part of any initial evaluation or reevaluation, a group that includes the CSE
and other qualified professionals, as appropriate, shall be governed by the
following:
(1) the group
may conduct its review without a meeting;
(2) existing
evaluation data on the student shall be reviewed including evaluations and
information provided by the parents of the student, current classroom-based
assessments and observations, and observations by teachers and related services
providers;
(3) based on such
review, and input from the student's parents, the group shall identify what
additional data, if any, are needed to determine:
(a) whether the
student has a particular category of disability, or, in the case of a
reevaluation of a student, whether the student continues to have such a
disability;
(b) the present
levels of performance and educational needs of the student;
(c) whether the
student needs special education, or, in the case of a reevaluation of a
student, whether the student continues to need special education; and
(d) whether any
additions or modifications to the special education services are needed to
enable the student to meet the measurable annual goals set out in the IEP of
the student and to participate, as appropriate, in the general curriculum.
(G) The
District shall administer tests and other evaluation materials as may be needed
to produce the data identified under paragraph (F) above.
(H) If
additional data are not needed, the District must notify the parents of that
determination and the reasons for it and of the right of the parents to request
an assessment to determine whether, for purposes of services under this policy,
the student continues to be a student with a disability. The District shall not
be required to conduct the assessment unless requested to do so by the
student's parents.
(I) If
the parent(s)/guardian(s) disagrees with the evaluation, they shall notify the
District so the District may initiate in impartial hearing to determine the
adequacy of the evaluation. If the hearing officer determines the evaluation
was inadequate, then the parent(s) / guardian(s) may obtain an independent
evaluation at no cost to themselves. Even if the evaluation is determined to be
adequate by the hearing officer, the parent(s)/guardian(s) may obtain an
independent evaluation, but not at public expense.
(J) Notwithstanding
the foregoing, a student may not be determined to be eligible for special
education if the determinant factor for that eligibility determination is lack
of instruction in reading or math or limited English proficiency.
[Back To Top]
Section 35.20 Individual
Evaluation B CPSE[19]
(A) Upon
the consent and selection by the parent of an approved program with a
multidisciplinary evaluation component to conduct an individual evaluation, the
District shall arrange for such evaluation by the service provider selected by
the parent.
(B) In
addition, with the consent of the parents, approved evaluators and committees
shall be provided with the most recent evaluation report for a child in transition
from programs and services provided pursuant to title two-a of article 25 of
the Public Health Law. Nothing herein shall be construed to prohibit an
approved evaluator or the committee from reviewing other assessments or
evaluations to determine if such assessments or evaluations fulfill the
requirements of State regulation.
(C) The
individual evaluation shall be conducted in accordance with paragraphs (B)
through (I) of Section 35.19.
(D) The
following requirements shall also apply to evaluations of preschool children:
(1) The summary
report shall include a detailed statement of the preschool student's individual
needs, if any;
(2) The summary
report shall not include a recommendation as to the general type, frequency,
location and duration of special education services and programs that should be
provided; shall not address the manner in which the preschool student can be
provided with instruction or related services in the least restrictive
environment; and shall not make reference to any specific provider of special
services or programs.
(3) Reports of
the assessment and/or evaluation and a summary portion of the evaluation shall
be provided to the members of the CPSE on preschool special education and to
the person designated by the municipality in which the preschool student
resides so as to allow for a recommendation by the CPSE to be made to the board
within 30 school days of the receipt of consent.
(4) An approved
evaluator shall provide the parent with a copy of the statement and recommendation
provided to the CPSE, and such statement and recommendation (including the
summary evaluation) shall be provided in English and when necessary, in the
native language of the parent or other mode of communication used by the parent
unless it is not feasible to do so.
(5) Prior to
making any recommendation that would place a child in an approved program owned
or operated by the same agency which conducted the initial evaluation of the
child, the CPSE may exercise its discretion to obtain an evaluation of the
child from another approved evaluator.
(6) If the
approved evaluator finds that the student requires evaluations beyond those
previously authorized by the CPSE during the school year, or requires a
reevaluation of any component, the CPSE must provide written authorization
prior to the approved evaluator conducting the evaluation.
(7) The CPSE
chairperson shall notify, at least five business days prior to the date of the
evaluation, the representative of the municipality and other members of the
CPSE of such request. The representative of the municipality or other members
of the CPSE may request a meeting of the CPSE to determine the need for such an
evaluation.
(8) Prior to the
CPSE meeting, the CPSE shall provide the parent with a copy of the summary
report of the findings of the evaluation in accordance with paragraph (2) of
this subdivision. Upon request of the parent, the CPSE shall provide copies of
all written documentation to be considered by the CPSE in the development of
the preschool student's individualized education program.
(9) For purposes
of eligibility and continuing eligibility determinations, the CPSE must provide
a copy of the evaluation report and the documentation of determination of
eligibility to the parent.
(10) If the
parent disagrees with the evaluation, the parent may obtain an independent
evaluation at public expense in accordance with section 35.21.
(11) The CPSE
shall forward a request for approval of reimbursement of the cost of
evaluations, on a form prescribed by the commissioner, to the appropriate
municipality in which the preschool student resides within 30 days of the date
of the CPSE meeting at which the evaluation was reviewed. The CPSE must also
send a copy of such form to the approved evaluator or, in the alternative, may
provide a copy of the form available for inspection and photocopying by the
approved evaluator.
[Back To Top]
Section 35.21 Independent
Educational Evaluations[20]
(A) If
the parent disagrees with an evaluation obtained by the school District, the
parent has a right to obtain an independent evaluation at public expense.
(B) If
requested by the parent, the school District shall provide to parents,
information about
(1) where an
independent educational evaluation may be obtained,
(2) the
qualifications of the examiner, and
(3) the criteria
used by the District when it initiates an evaluation.
(C) If
a parent requests an independent educational evaluation at public expense the
District:
(1) may ask for
the parent's reason why he or she objects to the public evaluation, but such
explanation by the parent shall not be required and the District may not
unreasonably delay either providing the independent educational evaluation at
public expense or initiating a due process hearing to defend the public
evaluation; and
(2) must,
without unnecessary delay, either
(a) ensure an
independent educational evaluation is provided at public expense, or
(b) initiate an
impartial hearing to show that its evaluation is appropriate or that the
evaluation obtained by the parent does not meet the school District criteria,
and if the hearing officer determines that the District’s evaluation is
appropriate or that the evaluation obtained by the parent did not meet school
District criteria, the parent shall have a right to an independent evaluation
but not at public expense.
(D) If
the parent obtains an independent evaluation at private expense, the results of
the evaluation must be considered by the school District in any decision made
with respect to the provision of a free appropriate public education to the
student; and may be presented as evidence at a hearing under this section
regarding the student.
(E) If
a hearing officer requests an independent educational evaluation as part of an
impartial hearing, the cost of the evaluation must be at public expense.
[Back To Top]
Section 35.22 Individualized
Education Program (IEP) B CSE[21]
(A) If,
after completion of the individual evaluation, the CSE determines that the
student has a disability, the members shall develop a written individualized
education plan (IEP) for the student containing:
(1) a statement
of the present levels of educational performance of such student and his/her
individual needs;
(2) a statement
of annual goals, including short-term instructional objectives;
(3) a statement
of the specific educational services to be provided to such student, class size
if appropriate, and the extent to which such student will be able to
participate in regular educational programs;
(4) a statement
of the needed transition services for the student beginning no later than age
16 and annually thereafter (and, when determined appropriate for the
individual, beginning at age 14 or younger);
(5) the
projected date for initiation and the anticipated duration of such services;
(6) appropriate
objective criteria and evaluation procedures and schedules for determining, on
at least an annual basis, whether instructional objectives are being achieved;
(7) a
description of any specialized equipment and adaptive devices;
(8) a list of
testing modifications; and
(9) a recommended
placement.
(B) Before
the development of a recommendation, the CSE shall ensure that the
appropriateness of the resources of the regular educational program, including
educationally related support services and remedial instruction, have been considered.
(C) In
developing the IEP, the CSE shall:
(1) consider
(a) the
student’s/child’s academic or educational achievement, learning
characteristics, social development, physical development and management needs,
(b) the results
of the initial or most recent evaluation,
(c) the
student's strengths,
(d) the concerns
of the parents for enhancing the education of their child,
(e) as
appropriate, the results of the student's performance on any general State or
District wide assessment programs, and
(f) any of the
following special considerations:
(i) in the case
of a student whose behavior impedes his or her learning or that of others,
consider, when appropriate, strategies, including positive behavioral
interventions, and supports to address that behavior;
(ii) in the case
of a student with limited English proficiency, consider the language needs of
the student as such needs relate to the student's IEP;
(iii) in the
case of a student who is blind or visually impaired, provide for instruction in
Braille and the use of Braille unless the CSE determines, after an evaluation
of the student's reading and writing skills, needs, and appropriate reading and
writing media (including an evaluation of the student's future needs for
instruction in Braille or the use of Braille), that instruction in Braille or
the use of Braille is not appropriate for the student;
(iv) consider
the communication needs of the student, and in the case of a student who is
deaf or hard of hearing, consider the student's language and communication
needs, opportunities for direct communications with peers and professional
personnel in the student's language and communication mode, academic level, and
full range of needs, including opportunities for direct instruction in the
student's language and communication mode;
(v) consider
whether the student requires assistive technology devices and services,
including whether the use of school-purchased assistive technology devices is
required to be used in the student's home or in other settings in order for the
student to receive a free appropriate public education; and
(vi) include a
statement in the IEP if, in considering the special factors described in this
paragraph, the committee has determined a student needs a particular device or
service (including an intervention, accommodation, or other program
modification) in order for the student to receive a free appropriate public
education;
(2) ensure the
student is placed in the least restrictive environment, determining with the
input of the student’s/child’s parent(s)/guardian(s) and teacher(s), and the
student when appropriate, what placement is most appropriate (i.e., placement
in a general education program with supplementary aids and services, placement
in a special class or special school or a combination of general and special
education classes); and
(3) show that a
general education program was considered when the student is not placed in such
a program.
(D) Each
regular education teacher, special education teacher, related service provider,
and other service providers who are responsible fo the implementation of a
student’s IEP, shall be given a copy of the student’s IEP prior to the
implementation of the student’s special education program.
(E) A
student’s IEP, and any copy thereof, shall remain confidential and may not be
re-disclosed to any other person.
(F) The
CSE chairperson shall designate a professional employee of the District with
knowledge of the student’s disability and education program to, prior to
implementation of the IEP, inform each teacher, assistant and support staff
person of:
(1) his/her
responsibility relating to the implementation of the IEP, and
(2) the specific
accommodations, modifications and supports that must be provided for the
student in accordance with the IEP.
[Back To Top]
Section 35.23 Individualized
Education Program (IEP) B CPSE[22]
(A) If
the preschool child has been determined to be ineligible for special education,
the recommendation shall indicate the reasons the child was found to be
ineligible. A copy of such recommendation shall be provided to the parent
consistent with the prior notice requirements in section 35.4.
(B) If
the CPSE determines that the preschool child has a disability, the CPSE shall
recommend approved appropriate services and/or special programs and the
frequency, duration, location and intensity of such services including, but not
limited to, the appropriateness of single services or half-day programs based
on the individual needs of the preschool child. The CPSE shall first consider
the appropriateness of providing
(1) related
services only; or
(2) special
education itinerant services only; or
(3) related
services in combination with special education itinerant services; or
(4) a half-day
preschool program; or
(5) a full-day
preschool program.
(C) If
the CPSE determines that the child demonstrates the need for a single related
service, such service shall be provided as a related service only or, where
appropriate, as a special education itinerant service.
(D) The
recommendation shall be developed into an IEP in accordance with section 35.22
(C). In addition, the recommendation for special education programs and
services for a preschool child with a disability shall:
(1) identify an
appropriate program and/or service selected from the lists of preschool
programs and services established pursuant to Education Law 4410;
(2) indicate the
recommended program option from those options set forth in this section;
(3) if the
recommendation is for one or more related services selected from the list
maintained by the municipality, or itinerant services, indicate the child care
location arranged by the parent or other site, at which each service shall be
provided;
(4) prior to
recommending the provision of special education services in a setting which
includes only preschool children with disabilities, the CPSE shall first
consider providing special education services in a setting where
age-appropriate peers without disabilities are typically found;
(5) not provide
special education services in a setting with no regular contact with
age-appropriate peers unless the nature or severity of the child's disability
is such that education in a less restrictive environment with the use of
supplementary aids and services cannot be achieved satisfactorily, and in such
event the provision of such services shall be documented on the child’s IEP;
(6) define the
extent to which the preschool child's parents will receive parent counseling
and training, when appropriate; and
(7) only be made
for a program which uses psychotropic drugs if such program has a written
policy pertaining to such use, and the parent of a child for whom such a
recommendation is made is actually provided with a copy of such written policy
at the time such recommendation is made.
(E) To
the extent possible, any meeting of the CPSE shall be held at a site mutually
convenient to the members of the CPSE and the parent of the preschool child,
including but not limited to the worksite of the evaluator, the municipal
representative on the CPSE, or the chairperson of the CPSE.
(F) The
CPSE's recommendation shall be developed following a review of information
presented by the preschool child's teacher(s) and/or the parent, the evaluation
results provided by the approved program, results of other evaluations, and any
other appropriate information provided by an agency charged with responsibility
for the child. However, if the CPSE determines that a child requires a
structured learning environment of 12 months duration to prevent substantial
regression, the CPSE shall include in its recommendation a statement of the
reasons for such recommendation as part of the IEP document.
(G) In
developing its recommendation for a preschool child with a disability to
receive programs and services, the CPSE must identify transportation options
for the child and encourage parents to transport their child at public expense
where cost-effective.
(H) A
written report of the recommendation, including the results of the evaluation,
shall be forwarded to the board, the parent of the preschool child and to the
municipality in which the preschool child resides. Such report shall include
the reasons for such recommendation, including a statement of the reasons why
less restrictive placements were not recommended, when the recommendation is
for the provision of special education services in a setting with no regular
contact where age-appropriate peers without disabilities are found and shall
include all statements provided by the parent. If the recommendation of the
CPSE differs from the expressed preference of the parent with respect to the
frequency, duration or intensity of services, or with respect to more or less
restrictive settings, the report shall include the reasons why the CPSE
recommended a different program or service other than that preferred by the
parent.
(I) In
the event that the parent does not choose to participate in the development of
such recommendation, the CPSE shall forward its recommendation to the Board of
Education and the parent.
[Back To Top]
Section 35.24 Continuum
of Services B CSE[23]
(A) A
student with a disability shall be provided with appropriate special education
in accordance with the following:
(1) in the least
restrictive environment, and in connection therewith specially designed
instruction and supplementary services (such as consultant teacher services and
other group, individual supplemental or direct special education instruction)
may be provided in the regular class to enable students with disabilities to be
educated with nondisabled students to the maximum extent appropriate;
(2) as specified
on the student's IEP to be necessary to meet the student's unique needs; and
(3) when placed
with other students with disabilities for purposes of special education,
students shall be grouped by similarity of individual needs in accordance with
the following:
(a) the range of
academic or educational achievement of such students shall be limited to assure
that instruction provides each student appropriate opportunities to achieve his
or her annual goals,
(b) the learning
characteristics of students in the group shall be sufficiently similar to
assure that this range of academic or educational achievement is at least
maintained,
(c) the social
development of each student shall be considered, but shall not be the sole
determinant, prior to placement in any instructional group to assure that the
social interaction within the group is beneficial to each student, contributes
to each student's social growth and maturity, and does not consistently
interfere with the instruction being provided,
(d) the physical
needs of such students shall be considered, but shall not be the sole
determinant, prior to determining placement to assure access to appropriate
programs and that each student is provided appropriate opportunities to benefit
from such instruction,
(e) the
management needs of such students may vary, provided that environmental
modifications, adaptations, or, human or material resources required to meet
the needs of any one student in the group are provided and do not consistently detract
from the opportunities of other students in the group to benefit from
instruction.
(B) When
the provision of a transitional support service is under consideration by the
CSE, the teachers of the student for whom the service is being considered shall
be given the opportunity to participate in the meeting of the committee for the
purpose of advising the committee of the extent to which such services are
needed. Transitional support services prescribed in the IEP shall be provided
for a teacher upon the recommendation of the CSE and shall be specified in the
student's IEP.
(C) Consultant
teacher services shall be:
(1) for the
purpose of providing direct and/or indirect services to students with
disabilities enrolled in regular education classes, including career and
technical education;
(2) recommended
by the CSE to meet specific needs of such students,
(3) included in
the student's IEP, and
(4) provided in
accordance with the following provisions:
(a) the total
number of students with disabilities assigned to a consultant teacher shall not
exceed 20 except as approved by the Commissioner of Education, and
(b) each student
with a disability requiring such services shall receive direct and/or indirect
services consistent with the student's IEP for a minimum of two hours each
week.
(D) Related
services shall be recommended by the CSE to meet specific needs of a
student/child with a disability as set forth in the IEP in accordance with the
following:
(1) the
frequency, duration and location of each such service shall be in the IEP,
based on the individual student's need for the service,
(2) for students
with disabilities determined to need speech and language services, such
services shall be provided for a minimum of two 30-minute sessions each week,
and the total caseload of such students for teachers providing such services
shall not exceed 65,
(3) when a
related service is provided to a number of students at the same time, the
number of students in the group shall not exceed five students per teacher or
specialist,
(4) a student
with a disability may be provided with more than one such service in accordance
with the needs of the student, and
(5) may be
provided in conjunction with a regular education program or with other special
education programs and services.
(E) Resource
room programs shall be for the purpose of supplementing the regular or special
classroom instruction of students with disabilities who are in need of such
supplemental programs, and shall comply with the following:
(1) each student
with a disability requiring a resource room program shall receive not less than
three hours of instruction per week in such program,
(2) students
shall not spend more than 50 percent of their time during the day in the
resource room program,
(3) an instructional
group which includes students with disabilities in a resource room program
shall not exceed five students per teacher, except as approved by the
Commissioner,
(4) the
composition of instructional groups in a resource room program shall be based
on the similarity of the individual needs of the students according to:
(a) levels of
academic or educational achievement and learning characteristics,
(b) levels of
social development,
(c) levels of
physical development, and
(d) the
management needs of the students in the classroom;
(5) the total
number of students with a disability assigned to a resource room teacher shall
not exceed 20 students, or 25 students when assigned to a resource room teacher
who serves students enrolled in grades seven through twelve or a multi-level
middle school program operating on a period basis, except as approved by the
Commissioner.
(F) Special
classes shall be provided in accordance with the following standards:
(1) a student
with a disability shall be placed in a special class for instruction on a daily
basis to the extent indicated in the student's individualized education
program;
(2) in all cases
the size and composition of a class shall be based on the similarity of the
individual needs of the students according to:
(a) levels of
academic or educational achievement and learning characteristics,
(b) levels of
social development,
(c) levels of
physical development, and
(d) the
management needs of the students in the classroom;
(3) a special
class shall be composed of students with disabilities with similar individual
needs;
(4) the maximum
class size for those students whose special education needs consist primarily
of the need for specialized instruction which can best be accomplished in a
self-contained setting shall not exceed 15 students, or 12 students in a
State-operated or State-supported school, except that the maximum class size
for special classes containing students whose management needs:
(a) interfere
with the instructional process, to the extent that an additional adult is
needed within the classroom to assist in the instruction of such students,
shall not exceed 12 students, with at least one paraprofessional assigned to
each class during periods of instruction,
(b) are
determined to be highly intensive, and requiring a high degree of
individualized attention and intervention, shall not exceed 6 students, with at
least one paraprofessional assigned to each class during periods of
instruction,
(c) are
determined to be intensive, and requiring a significant degree of
individualized attention and intervention, shall not exceed 8 students, with at
least one paraprofessional assigned to each class during periods of
instruction;
(5) the maximum
class size for those students with severe multiple disabilities, whose programs
consist primarily of habilitation and treatment, shall not exceed 12 students,
and in addition to the teacher the staff/student ratio shall be 1 staff person
to 3 students and the additional staff may be teachers, paraprofessionals
and/or related service providers;
(6) the
chronological age range within special classes of students with disabilities
who are:
(a) less than 16
years of age shall not exceed 36 months,
(b) 16 years of
age and older is not limited, and
(c) placed in
special classes as described in subparagraph (5) above shall not be subject to
any chronological age-range limitations;
(7) nothing
shall prevent the District from obtaining a variance from the Commissioner of
the special class sizes and chronological age ranges specified in subparagraphs
(5) and (6) above;
(8) for parents
of students placed in special classes described in subparagraphs (4)(b) and (5)
above, provision shall be made for parent counseling and training for the
purpose of enabling parents to perform appropriate follow-up intervention
activities at home; and
(9) a special
class wherein the range of achievement levels in reading and mathematics
exceeds three years shall, except for special classes described in
subparagraphs (4)(b) and (5) of this subdivision, provide the CSE, plus the
parents and teacher of students in such class, a description of the range of
achievement in reading and mathematics, and the general levels of social
development, physical development and management needs in the class, by
November 1st of each year; and the parent of each student entering such a class
after November 1st shall also be provided a description of the class. A
District providing such a description shall also inform the parent of each
student in such class that, upon request, the parent shall be afforded the
opportunity to discuss the description with an appropriate representative of
the District. A copy of such description shall also be included in the District
plan required by 8 NYCRR '200.2(c).
(G) Students
with disabilities who are recommended for home and/or hospital instruction by
the CSE shall be provided instruction and appropriate related services as
determined by the CSE in consideration of the student's unique needs. Home and
hospital instruction shall only be recommended if such placement is in the
least restrictive environment and must be provided a minimum of:
(1) five hours
per week at the elementary level, preferably one hour daily; or
(2) ten hours
per week at the secondary level, preferably two hours daily.
(H) Nothing
shall prohibit the District from making application for and being granted a
waiver from the Commissioner relative to any requirement in this section.
[Back To Top]
Section 35.25 Continuum
of Services B CPSE[24]
Special education programs and services shall be provided
to preschool children with a disability as follows:
(A) Related
services shall be provided by an approved provider or, as authorized by section
4410 of the Education Law, such services shall be provided at a site determined
by the Board, including but not limited to an approved or licensed
prekindergarten or head start program, the work site of the provider, the
student's home, a hospital, a state facility, or a child care location. If the
board determines that documented medical or special needs of the preschool
student indicate that the student should not be transported to another site the
student shall be entitled to receive related services in the preschool
student's home.
(B) Special
education itinerant services are services provided by a certified special
education teacher of an approved program on an itinerant basis at a site
determined by the board including but not limited to an approved or licensed
pre-kindergarten or head start program, the student's home, a hospital, a State
facility, or a child care location. If the Board determines that documented
medical or special needs of the preschool student indicate that the student
should not be transported to another site, the student shall be entitled to
receive special education itinerant services in the preschool student's home.
Such services shall be for the purpose of providing specialized individual or
group instruction and/or indirect services to preschool students with
disabilities. Indirect services means consultation provided by a certified
special education teacher to assist the child' s teacher in adjusting the
learning environment and/or modifying their instructional methods to meet the
individual needs of a preschool student with a disability who attends an early
childhood program (a regular preschool program or day care program approved or
licensed by a governmental agency in which a child under the age of five
attends). Special education itinerant services shall be provided to a preschool
student with a disability for whom such services have been recommended as
follows:
(1) the service
shall be recommended by the CPSE and shall be included in the student's
individualized education program;
(2) the level of
this service should not be less than two hours per week;
(3) the total
number of students with disabilities assigned to the special education teacher
should not exceed 20;
(4) related
services shall be provided in addition to special education itinerant services,
in accordance with the student's IEP;
(5) in the event
that the Board selects a special service or program that will be provided in
the preschool student's home or another care setting to which the parent has
made or subsequently makes arrangements, no transportation shall be indicated.
(C) Special
classes shall be provided on a half-day or full-day basis and shall assure
that:
(1) the
chronological age range within special classes serving preschool students with
disabilities shall not exceed 36 months, except as otherwise approved by a
variance granted by the Commissioner;
(2) the maximum
class size shall not exceed 12 preschool students with at least one teacher and
one paraprofessional assigned to each class; and
(3) such
services shall be provided for not less than two and one half hours per day,
two days per week.
(D) A
preschool student with a disability for whom in-state residential special
education programs and services have been recommended shall be furnished such
services for a minimum of five hours per day, five days per week. Placement in
such residential programs shall be approved by the Commissioner in accordance
with 8 NYCRR '200.6(i).
(E) 12-month
special services and/or programs shall be provided to eligible preschool
students with disabilities consistent with their individual needs, as specified
in their IEPs. Preschool students with disabilities may be considered for such
special services and/or programs in accordance with their need to prevent
substantial regression if they are preschool students:
(1) whose
management needs are determined to be highly intensive and require a high
degree of individualized attention and intervention; or
(2) with severe
multiple disabilities, whose programs consist primarily of habilitation and
treatment; or
(3) whose
special education needs are determined to be highly intensive and require a
high degree of individualized attention and intervention or who have severe
multiple disabilities and require primarily habilitation and treatment in the
home; or
(4) whose needs
are so severe that they can be met only in a seven- day residential program; or
(5) who are not
described in (1) through (4) above and whose disabilities are severe enough to
exhibit the need for a structured learning environment of 12 months duration to
prevent substantial regression as determined by the CPSE.
(F) Nothing
shall prohibit the District from applying for and being granted a waiver by the
Commissioner from any requirement in 8 NYCRR Part 200.
(G) Nothing
herein shall be construed to prevent the CPSE from recommending or the Board
from selecting a special service or program for July and August, or the
frequency, location or duration of a special service or program, which is
different in type or intensity than the service or program that the child is
provided between the months of September and June.
[Back To Top]
Section 35.26 IEP
Implementation; Disagreement[25]
(A) Within
30 days of receipt of the CSE/CPSE recommendation, the Board shall arrange for
the appropriate, approved services recommended by the CSE/CPSE, subject to
paragraph (D) below.
(B) In
the event the parent(s)/guardian(s) disagree with the CSE/CPSE’s
recommendation, the CSE/CPSE fails to make a recommendation in accordance with
the Commissioner’s regulations, or the Board fails to effectuate the
recommendation with 30 days of receipt of the recommendation, the
parent(s)/guardian(s) may request, in writing, an impartial formal hearing.
Pending completion of the impartial hearing, unless the parent(s)/guardian(s)
and Board otherwise agree, the child will remain in the current educational
placement.
(C) In
addition to (B) above, parents or guardians of a student/child with, or
suspected to have, disabilities shall have mediation available to resolve
complaints regarding the education of a student/child. The availability or use
of mediation shall not diminish or limit any rights of parents or guardians
provided for in law including the right of a parent or guardian to request an
impartial hearing subsequent to mediation. Parents or guardians will not be
deemed to have failed to exhaust administrative remedies by requesting an
impartial hearing in the absence of or prior to mediation.
(D) If the
Board disagrees with the recommendation of the CSE/CPSE, the Board shall be
governed by the following:
(1) The Board
may return the recommendation to the original CSE/CPSE with a statement of the Board’s objections or concerns
and request that a timely meeting be held to review the Board’s objections/
concerns. The CSE/CPSE shall consider the Board’s concerns, revise the
individualized education program (IEP) where appropriate, and resubmit a
recommendation to the Board. If the Board continues to disagree with the
recommendation of the CSE/CPSE, the Board may continue to remand the
recommendation to the original CSE/CPSE for additional reviews of its
objections or concerns, or establish a second CSE/CPSE to develop a new
recommendation, provided that the Board arranges for the programs and services
in accordance with the student's IEP within 60 school days of receipt of
consent to evaluate for a student not previously identified as having a
disability, or within 60 school days of the referral for review of the student
with a disability; or
(2) Instead of
proceeding under paragraph (1) for a student who is not a preschool child, the
Board may establish a second CSE to develop a new recommendation for the
student. If the Board disagrees with such new recommendation, the Board may
return the recommendation to such CSE with a statement of the Board's
objections or concerns and a request that a timely meeting be held to review and
consider the same. Such second CSE shall consider the Board's objections or
concerns, revise the IEP where appropriate, and resubmit a recommendation to
the Board. If the Board continues to disagree with the recommendation of such
CSE, the Board may continue to remand the recommendation for additional reviews
of its objections or concerns, provided that the Board arranges for the
programs and services in accordance with the student's IEP, as developed by
such second CSE within 60 school days of receipt of consent to evaluate for a
student not previously identified as having a disability or within 60 school
days of the referral for review of the student with a disability. Nothing
herein shall be construed to authorize the Board to select the recommendation
of the original CSE once it has established a second CSE to make a new
recommendation for the student pursuant to this subparagraph.
(E) In
the event that the parent(s) of a student/child do(es) not consent to the
furnishing of the CSE/CPSE recommended special education services, no further
action will be taken by the CSE/CPSE until such consent is obtained; except
that the Board may continue to provide the existing services to the
student/child for which prior parental consent was obtained and not revoked.
(F) Impartial
hearings shall be conducted in accordance with 8 NYCRR '200.5(i). The decision of the impartial hearing
officer shall be rendered, in accordance with section 4410 of the Education
Law, not later than 30 days after the receipt by the Board of a request for a
hearing or after the initiation of such hearing by the Board.
(G) Decisions
of impartial hearing officers shall be subject to the review of a State review
officer of the State Education Department in accordance with 8 NYCRR '200.5(j).
[Back To Top]
Section 35.27 Mediation
of Disputes[26]
(A) Whenever
an impartial hearing is requested, and the parents of a student/child requests
mediation, the District may participate in a voluntary mediation process which
complies with the following:
(1) mediation is
not used to deny or delay a parent's right to a due process hearing or to deny
any other rights afforded under law or regulation;
(2) mediation is
conducted by a qualified and impartial mediator who is trained in effective
mediation techniques and who is selected by the community dispute resolution
center on a random, i.e., rotation basis or, if not selected on a random basis,
then by mutual agreement of both parties;
(3) each session
in the mediation process is scheduled in a timely manner and is held in a
location that is convenient to the parties to the dispute;
(4) discussions
that occur during the mediation process must be confidential and may not be
used as evidence in any subsequent due process hearings or civil proceedings
and the parties to the mediation process may be required to sign a
confidentiality pledge prior to the commencement of the process; and
(5) an agreement
reached by the parties to the dispute in the mediation process is set forth in
a written mediation agreement.
(B) The
agreement reached by the parties in mediation amends the IEP and is binding
upon the parties. The committee on special education must immediately meet to
amend the student's IEP to be consistent with the mediation agreement.
(C) In
the event that the parents elect not to use the mediation process, the District
may request of the parents that they meet, at a time and location convenient to
the parents, with a disinterested party who is from a community dispute
resolution center who would explain the benefits of the mediation process, and
encourage the parents to use the process. The District may not deny or delay a
parent's right to a due process hearing under this section if the parent elects
not to participate in this meeting.
(D) Mediation,
including meetings with the parent(s) described in (C) above, shall be provided
by community dispute resolution centers through a contract with the State
Education Department.
[Back To Top]
Section 35.28 Access
to High School Diploma and Other Programs
(A) Each
student with a disability shall have access to the full range of programs and
services of this school District to the extent that such programs and services
are appropriate to the student's special educational needs, including but not
limited to:
(1) all courses
required for a high school diploma,
(2) required
state achievement and competency tests,
(3) Regents and
accelerated courses,
(4) remedial
instruction,
(5) second
language instruction,
(6) computer
instruction and usage,
(7) occupational
education, and
(8) guidance and
career education.
(B) In
order to ensure access to such programs, the CSE will review at least annually
each student's program with regard to:
(1) progress
toward a high school diploma,
(2) the extent
to which the student can benefit from participation in regular education
programs and services,
(3) the extent
to which credit towards a high school diploma can be granted through
participation in special education programs,
(4) the
appropriateness of modifications to testing, equipment and/or instructional
techniques where appropriate:
(C) Instructional
techniques and materials shall be modified to the extent appropriate to provide
the opportunity for students with a disability to meet diploma requirements,
with such modifications to be prescribed on the student's Phase I IEP and
implemented by all personnel providing programs and services to the student.
[Back To Top]
Section 35.29 High School
Individualized Education Program Diplomas[27]
(A) To
ensure that students with a disability are provided appropriate opportunities
to attain diplomas, the District shall issue a high school individualized
education program diploma to a student with a disability in accordance with the
following provisions:
(1) at the end
of the school year in which the student attains the age of 21 upon a finding
that such student has achieved the educational goals based on the appropriate
level of the learning standards, established by the Commissioner, as specified
in the student's current IEP; or
(2) upon
application of a student with a disability, or such student's parent, at any
time after such student has attended school or has received a substantially
equivalent education elsewhere for at least 12 years, excluding kindergarten,
upon a finding that such student has achieved the educational goals based on
the appropriate level of the learning standards, established by the
Commissioner, as specified in the student's current IEP.
(B) Each
high school individualized education program diploma shall be identical in form
to the diploma issued by the school District or nonpublic school, except that
there shall appear on the front of such high school individualized education
program diploma a clear annotation to indicate that the diploma is awarded on
the basis of the student's successful achievement of the educational goals
based on the appropriate level of the learning standards, established by the
Commissioner, as specified in the student's current individualized education
program as recommended by the CSE.
(C) If
the student receiving a high school individualized education program diploma is
less than 21 years of age, such diploma shall be accompanied by a written
statement of assurance that the student named as its recipient shall continue
to be eligible to attend the public schools of the District in which the
student resides without the payment of tuition until the student has earned a
high school diploma or until the end of the school year of such student's 21st
birthday, whichever is earlier.
(D) Within
15 days after the June graduation, the superintendent shall submit to the NYS
Education Department a report concerning students awarded individualized
education program diplomas in that school year. Such report shall be in a form
prescribed by the Commissioner and shall contain such information as the Commissioner
may require.
(E) No
other diploma or certificate shall be awarded except for certificates
recognizing achievement beyond the high school diploma.
(F) No
diploma shall be awarded pursuant to this section on or after February 1, 2005,
unless otherwise authorized by the Commissioner by amendment to 8 NYCRR '100.6(f).
[Back To Top]
[6] 8 NYCRR '200.2(b) and (c)
[9] 8 NYCRR '200.4(a) and '200.16(b)(1)
[10] 8 NYCRR '200.4(a)(5), (6) and (8)
[11] 8 NYCRR '200.4(a)(4) and (9)
[14] 8 NYCRR '200.4(a)(7)
[17] 8 NYCRR '200.4 and '200.16(c) and (d)
[18] 8 NYCRR '200.4(b) and (c)
[25] 8 NYCRR '200.4(e), '200.5 and '200.16
