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 
 

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

10 New Policy Areas  
 

• Referrals
• Evaluations
• Eligibility
• CSE Members
• IEPs

 
 
 

• Continuum
• Due Process
• Discipline
• Parentally placed
• Charter Schools

 
 
 
 
 
 
 

1.  Referrals for Initial Evaluation

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

Referrals when using Rti 
 

• School district must initiate a referral and promptly request parent consent to evaluate a student who:
  • has not made adequate progress after an appropriate period of time
  • when provided instruction in a “response-to-intervention” process (§100.2(ii))

 
 
 
 
 
 
 

2.  Individual Evaluations and Reevaluations

 
 
 
 
 
 
 

Consent, timelines, IEEs and reevaluations 
 

• Parent consent – documentation of attempts to obtain parent consent

 
 

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

 
 
 
 
 
 
 

60 calendar days to complete evaluation 
 

• Parent and district can agree to another timeline if:
  • Child moves into new district and evaluation was initiated in prior district

 
 

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

 
 
 
 
 
 
 

• Independent educational evaluations (IEE)
  • parent right to one IEE for each district evaluation parent disagrees with
• Reevaluation every three years*
  • unless parent and district agree, in writing, the reevaluation is not necessary

 
 
 
 
 
 
 

3.  Eligibility Determinations

 
 
 
 
 
 
 

Sources of 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.

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

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

• Data that demonstrates that prior to, or as part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel;
  • 60-day timeline unless extended by mutual agreement of the parent and CSE

 
 

• Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction
  • Information must have been provided to parents prior to referral

 
 
 
 
 
 
 

Who makes the LD determination? 
 

• 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)

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

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.

 
 
 
 
 
 
 

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?

 
 
 
 
 
 
 

• 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.

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

4.  CSE/CPSE Members

 
 
 
 
 
 
 

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)

 
 
 
 
 
 
 

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)

 
 
 
 
 
 
 

CPSE  
 

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

 
 
 
 
 
 
 

5.  IEP Development 
 

Individualized

Education

Program

 
 
 
 
 
 
 

• Include academic and functional goals

 
 

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

 
 
 
 
 
 
 

Changes to IEP  
after the annual review* 
 

• The parent and district may agree to change the IEP without a meeting
  • If parent requests changes and district and parent 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.

 
 
 
 
 
 
 

IEP Implementation* 
 

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

 
 
 
 
 
 
 

6.  Continuum of Services

 
 
 
 
 
 
 

Consultant teacher and resource room services 
 

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

 
 

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

 
 
 
 
 
 
 

Integrated Co-Teaching Services 
 

• May add to 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.

 
 
 
 
 
 
 

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

 
 
 
 
 
 
 

7.  Due Process 
 

Prior notice 
 

Procedural safeguards notice 
 

Meeting

notices 
 

Mediation 
 

Impartial

hearings

and appeals 
 

Resolution

sessions 
 

State

complaints 
 

Parent

participation

in meetings 
 

Surrogate

parents 
 

Parent

consent 
 

Confidentiality of personally identifiable information

 
 
 
 
 
 
 

Prior written notice 
 

• “Notice of recommendation”

 
 

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

 
 
 
 
 
 
 

Meeting notices 
 

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

 
 
 
 
 
 
 

Procedural Safeguards 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

 
 
 
 
 
 
 

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”*

 
 
 
 
 
 
 

Due process complaint notice 
 
 

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

 
 

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

 
 
 
 
 
 
 

Resolution 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

 
 
 
 
 
 
 

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.

 
 
 
 
 
 
 

State complaint procedures 
 

• Information required in a complaint

 
 

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

 
 

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

 
 

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

 
 

• Alleged violation occurred within one year

 
 

• Remedy may include compensatory services*

 
 
 
 
 
 
 

Pendency 
 

• Child transitioning from early intervention (EI) to preschool
  • District not required to provide EI services
  • If found eligible, district must provide those services not in dispute between parent and district.

 
 
 
 
 
 
 

Surrogate parents 
 

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

 
 
 
 
 
 
 

8.  Discipline

 
 
 
 
 
 
 

Determining if there is a pattern of removals 
 

• Removals cumulate to more than 10 school days in a school 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

 
 
 
 
 
 
 

Functional behavioral assessments 
Behavioral 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)

 
 
 
 
 
 
 

Determining services and setting - students suspended for more than10 school days 
in a school year 
 

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

 
 

• If a disciplinary change in placement – the CSE

 
 
 
 
 
 
 

Expedited impartial 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

 
 
 
 
 
 
 

9.  Parentally placed students*

 
 
 
 
 
 
 

District of Location* 
 

• Child find, including evaluations
• Expenditure of proportionate share of federal funds
• Consultation with nonpublic school and parent representatives
• CSE meetings
• Eligibility and recommendations for services
• Equitable provision of services

 
 
 
 
 
 
 

NYS Resident Students* 
 

• Parents request services, in writing, by June 1 of the preceding year to the district of location
• IESP – Individualized Education Services Program
  • Based on student needs
  • Developed by CSE
  • Same contents as IEP

 
 
 
 
 
 
 

Transition 2007-08* 
 

• District of residence sends IEP to district of location, with consent of parent
• IEP deemed IESP, unless district of location CSE meets to develop a new IESP
• If evaluation started in district of residence, can be shared with district of location who can adopt, in whole or in part, evaluation conducted in other district
• 2006-07 IEPs binding on district of residence
• 2007 – parent has 30 days from date law goes into effect to request in writing services from the district of location (August 18, 2007). 

 
 
 
 
 
 
 

Provision of services* 
 

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

 
 
 
 
 
 
 

Due Process* 
 

• Parentally placed students who are residents of NYS can use the due process procedures to resolve disputes
• Due process complaint notice goes to district of location
  • Unless parent is disputing a district of residence’s offer of FAPE (IEP)

 
 
 
 
 
 
 

Recovering of costs* 
 

• District of location may charge district of residence for actual costs for:
  • Evaluation
  • CSE administration
  • Services
• Parent consent to share personally identifiable special information between the districts is required for billing.
• If no consent, district can submit claim to SED on form prescribed by the Commissioner.

 
 
 
 
 
 
 

Students who are not NYS residents* 
 

• Services Plan (SP)
  • Based on the proportionate share of federal dollars
  • Determined through the consultation process
  • No FAPE entitlement
  • No process for district of location to recover costs for evaluations or CSE
  • Due process for evaluations only

 
 
 
 
 
 
 

10.  Charter Schools*

 
 
 
 
 
 
 

Special Education Services* 
 

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