special ed - nys v federal policy

8/2/2019 Special Ed - NYS v Federal Policy

1/31

New York State

New York State Law, Regulations and Policy Not Required by FederalLaw/Regulation/PolicyRevised January 2011

20 United States Code (USC) 1407(a)(2) requires that each state identify in writing to localeducational agencies (LEAs) located in the state and the Secretary any rule, regulation or policy

as a state-imposed requirement that is not required by the Individuals with Disabilities EducationAct (IDEA) and federal regulations. The New York State Education Department has taken stepsto conduct a comprehensive and thorough review of its laws and regulations that apply to theeducation of students with disabilities. The following summary provides a list of New York State(NYS) laws and regulations that differ from federal requirements in effect on the date of theanalysis. Items are included in the list where there are no comparable federal requirementsbecause the federal statute and regulations are silent on the subject (e.g., provisions governingrate-setting or the payment of State excess cost aid) as well as where NYS requirements gobeyond federal requirements. Accordingly, the list includes NYS requirements that, though nottechnically required by IDEA or the federal regulations currently in place, are necessary for NYS'special education system to function. Requirements that apply equally to disabled and non-disabled students are not included. Statutory requirements are listed first, followed byregulatory requirements.

Key to frequently used acronymsBOCES Board of Cooperative Educational ServicesBOE Board of EducationCPLR Civil Practice Law and RulesCPSE Committee on Preschool Special EducationCSE Committee on Special EducationEd. L. Education LawEI Early InterventionFAPE Free Appropriate Public EducationFBA Functional Behavioral AssessmentIDEA Individuals with Disabilities Education ActIEP Individualized Education ProgramIESP Individualized Education Service ProgramIHO Impartial Hearing OfficerLEA Local Educational AgencyLRE Least Restrictive EnvironmentMDT Multidisciplinary TeamNYC New York CityNYS New York StateSEA State Educational AgencySED State Education DepartmentSEIT Special Education Itinerant TeacherSP Services PlanUSC United States Code8 NYCRR New York Code, Rules and Regulations (Education)34 CFR Code of Federal Regulations Section

January 2011 1


2/31

New York State

NYS Requirement Citation How NYS Requirement isDifferent from Federal

Requirement

Boards of Cooperative EducationalServices (BOCES) must submit special

education space requirement plans by2/1 of every 5th year. Requirementsinclude development, content,submission, approval, and amendmentsto the plan and an annual progressreport.

Ed. L. 1950(17)

8 NYCRR200.2(g)

Federal law does not specifyhow a state must ensure space

in facilities to meet the needs ofstudents with disabilities andleast restrictive environmentresponsibilities.

The school district of residence is thelocal educational agency (LEA) anddevelops the individualized educationprogram (IEP) for charter schoolstudents.

Ed. L. 2853(4) Federal law leaves it to thestates to decide whether charterschools are LEAs or are schoolsof a school district.

Requires the Committee on Special

Education (CSE), upon a determinationthat a student no longer needs specialeducation services, to identify andrecommend appropriate declassificationsupport services that will be provided tothe student for the first year in thegeneral education program.

Ed. L.

3602(1)(i)(2)

8 NYCRR200.4(d)(1)(iii)

Federal regulations require that

the IEP team determinecontinued eligibility for specialeducation, but there is nofederal requirement that requiresthe IEP team to makerecommendations for a studentupon declassification.

School districts must have an approvedplan for the use of State public excesscost aid in the most educationallyadvantageous manner.

Ed. L.3602(10)(a)

Federal law does not imposeplanning requirements relatingto the use of State aid.

School districts must keep on file andmake available for public inspection anacceptable plan of service as acondition of receipt of State publicexcess cost aid.

Ed. L.3602(8)(b) Federal law does not imposeplanning requirements relatingto the use of state aid.

State aid formulas for the computationof State public excess cost aid.

Ed. L.3602(1); Chapter53 of the Laws of

2005

Federal law does not prescribeformulas for computing state aidfor services to students withdisabilities.

Minimum periods of instruction orservices to qualify for weightings that

generate additional State public excesscost aid (e.g., 20% or more of theschool week in a resource room orreceiving special services or programs;60% or more of the school day in aspecial class or an integrated setting).

Ed. L. 3602(1)(i)(3); Chapter 53

of the Laws of 2005

Federal law does not prescribeformulas for computing state aid

for services to students withdisabilities.

Students with disabilities who areresidents of the State attendingnonpublic schools located in the State

Ed. L. 3602-c(2)(a) and (b) and

(7)

Federal law requires that theschool district in which thenonpublic school is located use

January 2011 2


3/31

New York State


Requirement

are dually enrolled in the public schoolsfor purposes of special education andreceive services pursuant to an

individualized education serviceprogram (IESP) developed by the CSEof the school district of location in thesame manner and with the samecontents as an IEP. Special educationservices provided to parentally-placedstudents with disabilities must beprovided on an equitable basis. Parentsmust request special education servicesbefore June 1 preceding the school yearfor which the request is made subject tocertain exceptions.

Parents of students attending nonpublicschools may bring an impartial hearingto challenge their IESP.

Requires regulations for procedures forthe district of location to recover costsfor nonresident New York State (NYS)students.

as amended byChapter 378 of the

Laws of 2007

a proportionate share of itsIndividuals with DisabilitiesEducation Act (IDEA) funds to

provide services to nonpublicschool students, based onconsultation with nonpublicschool representatives. Districtsdevelop a Services Plan (SP) fora student that does not createan individual right to services.

Nonpublic school students donot have an individual right toservices under IDEA andtherefore are not entitled to adue process hearing.

There are no federal proceduresfor the recovery of tuition costsincurred by the school district inwhich the nonpublic school islocated for nonresident students,where the services requiredunder state law exceed thefederal minimum and require asubstantial state and localcontribution.

Home-schooled students withdisabilities are deemed to be nonpublicschool students solely for the purpose ofreceiving special education servicesduring the regular school year. Parentsmust request special education servicesbefore June 1 preceding the school yearfor which the request is made subject tocertain exceptions.

Ed. L. 3602-c (2-c) as amended byChapter 217 of the

Laws of 2008

Federal law requires home-schooled students to receivespecial education services to thesame extent that otherparentally-placed private schoolstudents receive services only ifthe home schools arerecognized under State law asprivate elementary or secondaryschools.

Establishes a timeline of 42 days of thedate of receipt of a request by a CSE forevaluative information for the CSE toprovide such information andrecommendation to the requestingagency. Establishes procedures for theCSE receiving such a request to obtain

Ed. L. 4005(1)

8 NYCRR200.4(h)

There are no comparablefederal requirements.

January 2011 3


4/31

New York State


Requirement

parental consent for the evaluation todevelop a written recommendation.

Reimbursement of costs of tuition and

maintenance for students attending aState-supported school for the deaf orblind.

Ed. L. Law

4204,4207;4204-b; 4211

Federal law does not require

that states set tuition ormaintenance rates for schoolsand leaves it to the states toassign fiscal responsibility forspecial education programs andservices among school districtsand other public agencies.

Deaf infant definition includes infantswho are unable to respond to soundspresented at intensities of 60 decibelssound pressure level.

Ed. L. 4204-a

8 NYCRR 200.7(d)(7)(i)(a)

The federal definition of deafinfant does not include a decibelsound pressure standard.

Admission to State-operated schools for

the blind and deaf through appointmentby the Commissioner.

Ed. L. 4308(1)

(2)(a); 43514355(a)(2)

8 NYCRR200.7(d)(1)

There are no federal

requirements regardingappointment to state operatedschools.

Requires school psychologist andadditional parent member as membersof the multidisciplinary team (MDT) atthe State-operated schools, except thatthe parent can decline the participationof the additional parent member.Requires a physician to be a member ofthe MDT if requested by the school or

parent 3 days before the meeting.

Additional MDT members may beappointed by the school district ofresidence.

Ed. L. 4308(2)(b)-(c); 4355(2)(b)-(c)

8 NYCRR200.7(d)(1)

Federal law and regulations donot require a schoolpsychologist, additional parentmember or physician.

34 Code of Federal Regulations(CFR) 300.118 requires theState educational agency (SEA)to ensure that the leastrestrictive environment (LRE)requirements in 300.114 areeffectively implemented forchildren in public or privateinstitutions.

Procedures requiring school districts toinform parents at least five days inadvance regarding excusal of a member

of the MDT or agreement that theattendance of a member is notnecessary, except for requests byparents, and emergency andunavoidable scheduling conflicts.

Ed. L. 4308(2)(f)-(h); 4355(2)(f) -(h)(as amended by

Chapter 378 of theLaws of 2007)

8 NYCRR200.7(d)(1)(i)(c)

There is no comparable federalrequirement.

If the State Education Department(SED) proposes an amendment to theIEP without meeting, it must provide theparent with a copy of the written

Ed. L. 4308(2)(i);4355(2)(i)

(as amended byChapter 378 of the


January 2011 4


5/31

New York State


Requirement

proposal and the opportunity to consultwith the appropriate personnel orrelated service providers concerning the

proposed changes.

Laws of 2007)

8 NYCRR

200.4(g)The definition of a student with adisability includes a student with adisability who requires related servicesonly, because "special education" isdefined in a way that includes relatedservices.

For all disabilities, the definition doesnot include a child whose educationalneeds are due primarily to unfamiliaritywith the English language,

environmental, cultural or economicfactors.

Ed. L. 4401(1)and (2); 4410(1)(i)

Federal regulations provide thata student who only needsrelated services and not specialeducation is not a child with adisability, except that a statemay consider related services tobe special education, as NewYork law does. Federalregulations impose limitations oneligibility determinations basedon limited English proficiency for

all disability categories.

Definition of special services orprograms includes transportation as aspecial education service, transitionalsupport services and related services.

Ed. L. 4401(2)

8 NYCRR200.1(ww);

200.1(ddd)

Federal requirement includestransportation as a relatedservice; does not referencetransitional support services;and does not include relatedservices as special education.

Identifies individuals who can make anonbinding request that a student bereferred by the school district for aninitial evaluation.

Establishes procedures school districtsmust follow upon receipt of a writtenrequest for a referral of a studentsuspected of having a disability.

Ed. L. 4401-a(1)(as amended by


8 NYCRR200.4(a)(2) and

(9)

There is no federal requirementthat specifies who may requestthat a student be referred by theschool district for initial

evaluation and federalregulations do not establishprocedures that school districtsmust follow when such requestis made.

A request for referral for an initialevaluation submitted by an individualother than a student or judicial officermust include the reasons for referraland include any test results, records orreports upon which the referral is based,describe prereferral services provided or

why no such attempts were made anddescribe the extent of parental contactor involvement prior to the referral.

Ed. L. 4401-a(2)(as amended by


8 NYCRR200.4(a)(2)(iii)


A referral from a parent received by thebuilding administrator must beforwarded to the CSE chairpersonimmediately upon its receipt by theadministrator, or, if received by thecommittee chairperson, to the buildingadministrator within 5 days.

Ed. L. 4401-a(3)

8 NYCRR200.4(a)(3) - (5);

200.4(a)(7) - (9)

There are no federalrequirements or timelines forforwarding the referral to aschool administrator orprocedures to withdraw areferral or timelines for obtainingconsent from the parent from the

January 2011 5


6/31

New York State


Requirement

Regulations establish procedures for thewithdrawal of a referral for special

education.

If the board of education (BOE) doesnot obtain parent consent for an initialevaluation within 30 days, it may pursuedue process.

date of the receipt of the referral.

Requires plan and policies forimplementation of school wideapproaches and pre-referralinterventions.

8 NYCRR200.2(b)(7)

There are no federalrequirements for a plan orpolicies for implementation ofschool wide approaches andprereferral interventions.

A student determined ineligible for

special education must be referred tothe building administration for adetermination of general educationsupport services for that student.

Ed. L. 4401-a(6)

8 NYCRR200.4(d)(1)(i)

and (iii); 100.1(q)

There are no federal

requirements for considerationof general education supportservices when a student isdetermined ineligible for specialeducation services.

Procedures requiring school districts toinform parents at least five days inadvance regarding excusal of a memberof a CSE, subcommittee or committeeon preschool special education (CPSE)or agreement that the attendance of amember is not necessary, except for

requests by parents, and emergencyand unavoidable scheduling conflicts.

4402(1)(b)(1)(b-1) -(b-3);

4402(1)(b)(1)(d);and 4410(3)(a)(3)

though (5)(as amended by

Chapter 378 of the

Laws of 2007)

8 NYCRR 200.3(f)


Requires school psychologist andadditional parent member as membersof the CSE. Requires a physician to bea member of the CSE if requested bythe school or parent 3 days before themeeting.

Ed. L.4402(1)(b)(1)

(a) and (b)

8 NYCRR200.3(a)(1)

Federal law and regulations donot require a schoolpsychologist, additional parentmember or physician.

Subcommittees on Special Education -School districts with more than 125,000

inhabitants must appoint subcommitteesto the extent necessary to ensure timelyevaluation and placement of studentswith disabilities. The schoolpsychologist is a required memberwhenever a new psychologicalevaluation is reviewed or a change to aprogram option with a more intensivestaff-to-student ratio is recommended.Subcommittees must submit an annual

Ed. L.4402(1)(b)(1)(d)

8 NYCRR200.3(c)

The subcommittee membershipis the same as the federal

mandated IEP teammembership, with the exceptionof the requirements forparticipation of the schoolpsychologist.

January 2011 6


7/31

New York State


Requirement

report to CSE. The parent has the rightto disagree with subcommittee and referto CSE.

Individual evaluation requires specificassessments to be conducted as part ofthe initial evaluation: physicalexamination, individual psychologicalevaluation, social history and functionalbehavioral assessment (FBA).

Ed. L.4402(1)(b)(3)(a)

8 NYCRR200.1(aa), (bb),

(tt) and (ddd);200.4(b)(1)(i) (v);

200.16(c)

Federal requirements do notprescribe specific types ofassessments that must beconducted as part of an initialevaluation except that aclassroom observation is afederal requirement for studentswith specific learning disabilities.The terms psychologicalevaluation, social history andFBA are not defined in federallaw or regulation.

Establishes the process for a schoolpsychologist to determine the need toadminister an individual psychologicalevaluation and requires a written reportwhen such evaluation is determined notto be necessary.

Ed. L.4402(1)(b)(3)(a)

8 NYCRR200.4(b)(2)


If the school district proposes anamendment to the IEP without meeting,it must provide the parent with a copy ofthe written proposal and the opportunityto consult with the appropriatepersonnel or related service providers

concerning the proposed changes.

Ed. L.4402(1)(b)(3)(b)

4410(3)(a)(6)(as amended by


8 NYCRR200.4(g)

Federal regulations do notestablish procedures toimplement the agreements.

The CSE/CPSE may recommend aplacement in a school that usespsychotropic drugs only if such schoolhas a written policy pertaining to suchuse and the parent is given the writtenpolicy at the time the recommendation ismade.

Ed. L.4402(1)(b)(3)(b)(i)

8 NYCRR200.5(a)(6)(v)


The school must provide written priornotice to the parents of his/her

opportunity to address the committee,either in person or in writing, on theappropriateness of the committee'srecommendation on program placementto be made to the BOE or trustees.

Ed. L.4402(1)(b)(3)(c)

There is no specific federalrequirement for this notice to the

parent.

When a child has been placed in aresidential program or is at risk of aresidential placement, parents must benotified of when their child's right to afree appropriate public education

Ed. L.4402(1)(b)(3)(c)


January 2011 7


8/31

New York State


Requirement

(FAPE) will end.

Requires the agreement of the schooldistrict and parent that a reevaluation is

unnecessary be in writing.

Ed. L.4402(1)(b)(3)(d)

(as amended byChapter 378 of theLaws of 2007)

There is no specific federalrequirement that this agreement

be in writing.

Requires the school district to provide aform to parents of certain children withdisabilities who are veterans of theVietnam war for a report to the Divisionof Veterans' Affairs for researchpurposes.

Ed. L.4402(1)(b)(3)(h);

Executive Law353(14)


Requires BOEs to have plans andpolicies for appropriate declassificationof students with disabilities regular

consideration for declassifying studentswhen appropriate and the provision ofeducational and support services upondeclassification.

Ed. L.4402(1)(b)(3)(d-2)

8 NYCRR200.2(b)(8)


For a child at risk of residentialplacement, the CSE must provide theparent with information aboutcommunity support services, includingan assessment of the family'scommunity support service needs andthe name and address of the agencythat can perform the assessment.

Ed. L.4402(1)(b)(4)(a)


When a CSE determines that a child infoster care is at risk of a futureplacement in a residential school, theCSE must notify the local socialservices district responsible for thechild.

Ed. L.4402(1)(b)(4)(b) There is no comparable federalrequirement.

Procedures are established for CSEswhen a child has been determined to beat risk of a future placement in aresidential school, including inviting arepresentative from the appropriatecounty or State agency participate in

CSE meetings concerning theappropriateness of residentialplacement and other programs andplacement alternatives.

Ed. L.4402(1)(b)(4)(c)

and (d);4403(19)

8 NYCRR

200.4(d)(4)(i)(b);200.5(a)(6)(iv)


Authorizes residential schools to providetransitional care to adults who were inresidential schools prior to their 21stbirthdays and requires the residentialschool to develop a transfer plan to

Ed. L.4402(1)(b)(4)(e)

and (f)


January 2011 8


9/31

New York State


Requirement

facilitate the individual's transfer to anadult program.

Establishes procedures and timelines

for the CSE to provide written notice tothe parents or guardian (or the student ifthe student is age 18 or older) who arein residential programs, receivingspecial education services 100% of theschool day, receiving individualizedattention or intervention because ofintensive management needs or asevere disability and/or who may needadult services as determined by theCSE, to inform such students/parentsthat their eligibility for special education

services will end and obtain consent toshare information on the student withappropriate adult agencies. Requiresthe school district to forward informationto the adult agencies and prepare anannual report to SED on all studentswith disabilities aging out or graduating.

Ed. L.

4402(1)(b)(3)(c); 4402(5)

8 NYCRR200.4(i);

200.5(a)(6)(iii)

There are no comparable

federal requirements.

Requires school districts to makeperiodic evaluations of programs,services and facilities for students withdisabilities and report at least annuallyto the BOE.

Ed. L.4402(1)(b)(3)

(e) and (f); 3602(8)

8 NYCRR

200.2(c)

States and LEAs are required toassure that students withdisabilities receive FAPE, butthere are no specific federalrequirements relating to

planning or self-evaluations byLEAs or for annual reports to theBOE.

Establishes timelines and proceduresfor transfer of information to adultagencies for students transitioning toadult services, including written notice toparents or student and the opportunityto consent to transfer information within20 days.

Ed. L.4402(1)(b)(5)


The CSE/CPSE must provide a copy ofthe State's handbook for parents of

students with disabilities or a locallyapproved handbook when a student isreferred for special education.

Ed. L.4402(1)(b)(7)


Written consent of the parent is requiredprior to initial provision of specialeducation services in a 12-monthspecial service and/or program.

Ed. L. 4402(2)(a)

8 NYCRR200.5(b)(1)(iii)

Federal regulations allow a stateto require parental consent forother services and activities if itensures that each public agencyin the state establishes andimplements effective proceduresto ensure that a parent's refusal

January 2011 9


10/31

New York State


Requirement

to consent does not result in afailure to provide the child withFAPE.

For students eligible for 12-monthservices, the IEP must identify theprovider of services and for preschoolstudents, the reason for suchrecommendation.

Ed. L. 4402(2)(a)

8 NYCRR200.4(d)(2)(x)

Federal law does not requirethat IEPs include this specificinformation on providers of 12-month services.

Eligibility of students for 12-monthspecial services and/or programs inaccordance with their need to preventsubstantial regression. RequiresJuly/August programs to operate for atleast 30 days.

Ed. L.4402(2)(a);

4403(17);4410(5)(h)

8 NYCRR200.1(aaa);

200.1(eee);200.6(k);200.16(i)(3)(v)

Federal regulations require thatextended school year beprovided where necessary toprovide FAPE, but do notcontain a specific standard.Federal requirements are silenton the operation of 12-month

programs.

Requires the school district to placestudents in private school programs onlyafter consideration of public schooloptions.

Ed. L.4402(2)(b)(1) and

(2)

Federal law and regulationsrequire placement in the leastrestrictive environment.

The BOE must provide written notice ofits determination if the BOE isinconsistent with the recommendation ofthe CSE. The notice must provide thereasons for the board's determination

and identify the factors considered bythe CSE in its evaluations.

Ed. L.4402(2)(b)(2)

8 NYCRR200.2(d);

200.5(a)(6)(ii)

There are no federalrequirements relating to noticesfrom the BOE. Federal law andregulations require that parentsreceive prior written notice of a

proposed action or refusal of anaction relating to the provision ofFAPE to their child.

If the BOE disagrees with therecommendation of the CSE, the BOEmay remand the recommendation to theCSE or subcommittee or establish asecond CSE or subcommittee todevelop a new recommendation for thestudent.

Ed. L.4402(2)(b)(2)

8 NYCRR200.4(e)(2)


If the board cannot secure anappropriate special service within the

State or nonresidential program to meetthe needs of the student, it must notifythe Commissioner.

Ed. L.4402(2)(b)(3)


A BOE (except NYC) may, upon writtenapproval from the Commissioner,exceed the special class size standardsfor middle and secondary school specialclasses.

Ed. L.4402(2)(d)(1) and

(2)

8 NYCRR200.6(h)(6)

There are no federalrequirements for special classsizes.

January 2011 10


11/31

New York State


Requirement

The total number of students assignedto a resource room teacher cannotexceed 20 students (with a variance for

NYC) or 25 students in grades 7-12 or amulti-level middle school programoperating on a period basis (with avariance for NYC).

Ed. L. 4403(3)

8NYCRR

200.6(f)(5)


School districts must providetransportation up to 50 miles to andfrom a nonpublic school if a student witha disability has been identified by theCSE as receiving services or programssimilar to special education programsrecommended by the CSE.(Transportation only provision for private

school students.)

Ed. L. 4402(4)(d) There is no comparable federalrequirement.

Allows a student with a disability toreceive FAPE until the end of the schoolyear in which the student turns age 21.

Ed. L. 4402(5) Federal regulations require eachstate to ensure that all childrenwith disabilities aged 3 through21 residing in the state have aright to FAPE.

BOEs in a city school district with apopulation of 125,000 or moreinhabitants (except for NYC) arepermitted to increase class sizes inmiddle/secondary special classes. The

authorization terminates on June 30

th

ofthe school year. Districts mustimplement a study of attendanceproblems at the secondary level andimplement a corrective action plan toincrease the rate of attendance to atleast the rate for students attendinggeneral education classes in secondaryschools of the district.

Ed. L. 4402(6)

8 NYCRR200.6(h)(6)(iii)

There are no federalrequirements for special classsizes.

Requires the BOE to establishadministrative practices and proceduresto provide copies of IEPs to teachers

and providers before the implementationof the IEP. Chairperson must designatean individual as defined in statute toinform school personnel of IEPresponsibilities.

Ed. L. 4402(7)(Chapter 408 of the

Laws of 2002)

8 NYCRR200.1(xx);200.2(b)(11);

200.4(e)(3)(i) and(ii)

Federal law requires each publicagency to ensure that the childsIEP is accessible to each regular

education teacher, specialeducation teacher, relatedservice provider, and otherservice provider who isresponsible for itsimplementation.

The Commissioner must establishstandards and procedures for theprotection of students with disabilities inapproved private residential schools

Ed. L. 4403(11),(12),(13)

Social ServicesLaw 483-d;

Federal law does not addressprocedures for prevention andremediation of child abuse ormaltreatment.

January 2011 11


12/31

New York State


Requirement

from abuse and maltreatment and mustcooperate with other State agencies inresolving complaints and taking

remedial actions.

Chapter 323 of theLaws of 2008

8 NYCRR 200.15The Commissioner approves theprovision of early intervention servicesby approved preschool providers.

Ed. L. 4403(18) Federal law does not require theSEA to approve providers ofearly intervention services.

Provides that the burden of proof in animpartial due process hearing isgenerally placed on the school district(or State agency) providing specialeducation to the student. The lawcreates an exception for impartialhearings in which the parent seekstuition reimbursement for a unilateral

placement in a private school.

Ed. L. 4404(1)(c)(as amended by



Impartial Hearing Officers (IHOs) areselected from a list through a rotationalselection process. Definition of IHOrequires IHOs to be attorneys and tohave access to support and equipment.Prohibits an IHO from serving for twoyears following their term ofemployment in a school district, schoolor program serving students withdisabilities placed there by a schooldistrict CSE. Requires the IHO not have

participated in any manner in theformulation of the recommendationsought to be reviewed. Requires theIHO to complete a training program andupdates. Establishes maximum ratesfor compensation of IHOs.

Ed. L. 4404(1)(c)

8 NYCRR200.1(x);200.2(b)(9);

200.2(e);200.5(j)(3);200.21(a)

Although necessary to complywith federal requirements toimplement 20 United StatesCode (USC) 1415, federal lawand regulations do not specifythe process for selecting an IHO.1415(f)(2)(a) and 34 CFR300.511(c) require that the IHOnot be an employee of the SEAor LEA involved in the educationor care of the child or be a

person who has a personal orprofessional interest thatconflicts with the personsobjectivity in the hearing,possess the knowledge andability to conduct hearings inaccordance with appropriate,standard legal practice andability to render and writedecisions in accordance withappropriate, standard legalpractice. There are no federalrequirements that a state setmaximum rates for IHOs.

Two year statute of limitations oncommencement of an impartial hearing.

Ed. L. 4404(1)(a)

8 NYCRR200.5(j)(1)(i)

Federal law applies a two-yearstatute of limitation, exceptwhere the state prescribes anexplicit time limitation forrequesting a hearing.

Procedures for review of the decision ofan IHO.

Ed. L. 4404(2);4410(7)(d)

Although necessary to complywith 20 USC 1415(g), federallaw does not prescribe specific

January 2011 12


13/31

New York State


Requirement

8 NYCRR200.5(k);

200.16 (h)(9-10);

Part 279

procedures for the State-levelreview of the IHO's decision.

Four-month statute of limitations forjudicial review under Article 4 of the CivilPractice Law and Rules (CPLR).

Ed. L. 4404(3)(a);CPLR 217(1)

Federal law provides for a 90-day statute of limitations unlessthe State has an explicit timelimitation.

The CSE or CPSE must immediatelyamend the student's IEP to beconsistent with a mediation agreement.

Ed. L.4404-a (5)

8 NYCRR200.5(h)(3)


Reimbursement of costs of tuition andmaintenance for students attending anapproved private school for students

with disabilities, a special act schooldistrict or the State-operated schools forthe deaf and blind.

Ed. L. 4405,4401 (3) and (5)Social Services

Law 153(10)

8 NYCRR200.9; 200.10

Federal law does not requirethat states set tuition ormaintenance rates for schools

and leaves it to the states toassign fiscal responsibility forspecial education programs andservices among school districtsand other public agencies

Reimbursement of costs of tuition andmaintenance for students attending aState-supported school.

Ed. L. 4204;4207; 4204-b; 4211

8 NYCRR200.10

Federal law does not requirethat states set tuition ormaintenance rates for schoolsand leaves it to the states toassign fiscal responsibility forspecial education programs andservices among school districts

and other public agenciesState aid formula for the computation ofState private excess cost aid.

Ed. L. 4405(3);4401 (6) and (7);Chapter 53 of the

Laws of 2005

Federal law does not prescribeformulas for computing State aidfor services to students withdisabilities.

With approval of SED, school districtsmay contract with educational facilitieslocated outside of the State where thereare no appropriate public or privatefacilities for instruction of the studentbecause of the student's unusual type ofdisability or combination of disabilities.

Ed. L. 4407(1) Federal law does not establish aspecific standard for out-of-stateplacements of students withdisabilities.

SED must maintain a register ofapproved out-of-state schools and, to beincluded on such registry, approvedresidential schools must meet the corerequirements of the out-of-stateplacement committee established by 483-d of the Social Services Law (e.g.,site visit, licensed or chartered byagency of state of location, appropriate

Ed. L. 4407(2);Social Services

Law 483-d(2)(b)

8 NYCRR200.1(d)

Federal law does not requirestates to establish registries ofapproved out-of-state schoolsand does not prescribe criteriaor procedures to be used bystates in approving out-of-stateschools.

January 2011 13


14/31

New York State


Requirement

laws and regulation relating toallegations of abuse or neglect, types ofservices consistent with NYS law).

State aid formula for reimbursement ofthe cost of tuition, maintenance andtransportation for students withdisabilities receiving services in July and

August, including a 10 percentchargeback to a municipality.

Ed. L. 4408,Chapter 53 of theLaws of 2005

Federal law does not prescribeformulas for computing state aidfor services to students withdisabilities or assign fiscalresponsibility for specialeducation programs andservices among school districtsand other public agencies.

Approved July and August programsmust operate for six weeks and shall befunded for 30 days of service.

Ed. L. 4408(1) Federal law does not prescribecriteria for the approval ofprograms or the conditionsunder which State aid is paid.

Preschool evaluators may be privateproviders or a group of appropriatelylicensed or certified professionals.

Ed. L.4410(1)(a),(4)(b), (9), and (9-a)

8 NYCRR

200.16 (c)


Definition of preschool child makeschildren who turn age 5 on or beforeDecember 1 ineligible for preschoolservices and continues preschooleligibility through August of the year inwhich the student is first eligible to

attend kindergarten. Establishes criteriafor the identification of a preschool childwith a disability.

Ed. L. 4410 (1)(i)

8 NYCRR200.1(mm)


Related services must be provided at asite determined by the BOE, includingbut not limited to a child care location orthe child's home.

Ed. L. 4410(1)(j)

8 NYCRR200.16(i)(3)(i)

There is no specific federalrequirement as to the location atwhich related services must bedelivered.

Special education itinerant teacher(SEIT) services are provided at a sitedetermined by the BOE, including butnot limited to a childcare location or thechild's home.

Ed. L. 4410(1)(k)

8 NYCRR200.16(i)(3)(ii)

Although federal regulationsrequire itinerant teachers in thecontinuum of services, there isno federal definition of SEITservices and no specific federal

requirement as to the location atwhich special education must bedelivered.

Membership of the CPSE includes anadditional parent member and amunicipality representative, except thatthe parent can decline the participationof the additional parent member and theattendance of the municipality

Ed. L. 4410(3)(a)(1)

8NYCRR200.3(a)(2)

There are no federalrequirements for an additionalparent member or municipalityrepresentative on the committee.

January 2011 14


15/31

New York State


Requirement

representative is not required for aquorum.

Requires the representative of the

school district on the CPSE to serve asthe chairperson of the CPSE.

Ed. L.

4410(3)(a)(1)

8NYCRR200.3(a)(2)

There is no comparable federal

requirement.

Written meeting notice must be given toCPSE members 5 business days beforemeeting.

Ed. L.4410(3)(a)(2)

8 NYCRR200.5(c)(1)

Federal regulations require ameeting notice to parents, notother CPSE members, andparent notice must be earlyenough to assure opportunity toattend.

BOE must provide parent with list ofapproved evaluators in the geographic

area.

Ed. L. 4410(4)(b)

8 NYCRR200.16 (h)(2)

Federal law imposes evaluationresponsibilities on the LEA and

does not require a list of privateapproved evaluators.Parent selects evaluator from list ofapproved evaluators.

Ed. L. 4410(4)(b)

8 NYCRR200.16 (c)(1)

Federal law imposes evaluationresponsibilities on the LEA, withparental right to independentevaluation under limitedcircumstances.

Documentation of the evaluation mustinclude summary report of findings ofevaluation.

Ed. L. 4410(4)(c)

8 NYCRR200.16(c)(2)

There is no federal requirementfor a summary report.

Approved evaluators must transmit

documentation of evaluation to all CPSEmembers and a person designated bythe municipality; municipality must notifyapproved evaluators in the geographicarea of the person so designated.

Ed. L. 4410(4)(d)

8 NYCRR200.16(c)(2)

The IEP team must review the

evaluation, but there is nofederal requirement that alldocumentation be sent to all IEPteam members or to amunicipality.

Costs of translating summary report andevaluation separately reimbursed.

Ed. L. 4410(4)(d) Federal law is silent on methodof reimbursement of translationcosts.

CPSE must recommend intensity ofservices on the IEP and consider singleservices or half-day programs or relatedservices only or SEIT only or related

services plus SEIT only.

Ed. L.4410(5)(b)(i)

8 NYCRR

200.1(p), (q), (u)and (v);200.4(d)(2)(v)(b)(7); 200.16(e)(3)

IEP must state the specialeducation and related servicesand specify the frequency,duration and location of such

services. There is no explicitreference in federal law orregulation to intensity ofservices. IEP team is notrequired to consider singleservices or half-day programs orrelated services only or SEITonly for every student.

Where a related service or SEIT is Ed. L. Federal law is silent about

January 2011 15


16/31

New York State


Requirement

recommended, CPSE must ask parentto identify child care location or othersite at which services will be delivered.

4410(5)(b)(ii) requesting parent to identify siteat which services will bedelivered.

CPSE recommendation must include anexplanation of why the CPSE did notadopt the parent's expressedpreference with respect to frequency,duration or intensity or with respect tomore or less restrictive settings.

Ed. L. 4410(5)(b)(iii)

8 NYCRR200.16(e)(6)

There is no specific federalrequirement that the IEP teamrespond in writing to parents'expressed preferences.

Establishes procedures if the BOEdisagrees with the CPSErecommendation for a preschool studentwith a disability.

Ed. L. 4410(5)(d)

8 NYCRR200.5(a)(6)(ii);

200.16(e)(6);200.16(f)

There are no federalrequirements relating to the roleof the BOE.

The BOE must select related serviceproviders from list maintained bymunicipality.

Ed. L. 4410(5)(d)

8NYCRR200.16(f)(2)

Under federal law, the LEAprovides or contracts for relatedservices.

The BOE must provide each relatedservice provider with a copy of the IEPand the name and address of eachrelated service provider.

Ed. L. 4410(5)(d)

8NYCRR200.16(f)(2)

Federal law and regulations donot specifically require thatrelated services providersreceive a copy of the IEP and donot require sharing ofinformation about other relatedservice providers.

The BOE must designate a related

service provider or the SEIT provider tocoordinate the provision of services.

Ed. L. 4410(5)(d)

8 NYCRR200.16(f)(2)

Federal law and regulations are

silent about coordination.

A preschool child must receive servicescommencing with starting date ofprogram, as soon as possible followingthe development of the IEP, but no laterthan 30 days after CPSErecommendation.

Ed. L. 4410(5)(e)

8 NYCRR200.16(f)(1)

Federal regulations require thatthe IEP be implemented "assoon as possible" following theIEP team recommendation, butdo not specify a specifictimeframe for implementation ofthe IEP.

Role of municipality in contracting with

approved programs and related serviceproviders to provide special educationprograms and services.

Ed. L. 4410(5)(f)

8 NYCRR200.16(f)(3)

Municipality rather than LEA

contracts for services.

The BOE determines the appropriatemunicipality based on residence.

Ed. L. 4410(5)(g)

8 NYCRR200.16(f)(4)

Rights under federal law arebased on the child's schooldistrict of residence, notmunicipality of residence.

Where preschool child moves to anotherschool district within a reasonable

Ed. L. 4410(5)(g) Under IDEA 614(d)(C)(i)(I), achild who transfers to another

January 2011 16


17/31

New York State


Requirement

distance of the placement, the child maycontinue in the placement if it isconsistent with the child's individual

needs.

8 NYCRR200.16(f)(5)

school district must be providedcomparable services until thenew LEA adopts the existing IEP

or develops and implements anew IEP.

Municipality must provide transportationto and from special services orprograms and must request parents totransport their own children at publicexpense.

Ed. L. 4410(8);and (13)(a)(ii)

Federal law imposes obligationto provide transportation on theLEA, not a municipality andthere is no federal requirementto ask parents to transport atpublic expense.

Approval of the Commissioner ofEducation required for transportationbeyond 50 miles.

Ed. L. 4410(8) There is no federal requirementfor approval of transportationbeyond a specified distance.

Preschool program may include

evaluation component including multi-disciplinary evaluation component.

Ed. L. 4410(9)(a);

and (b)

8 NYCRR200.1(nn);200.16(c)(1)

Federal law imposes

responsibility to conductevaluations on the LEA and issilent about approval of privateproviders to conductevaluations.

Commissioner approves programs andproviders of early intervention servicesmay become approved providers undersection 4410.

Ed. L. 4410(9)(a);Public Health L.

2551

Federal law leaves programapproval up to the states.

Reviews of approved programs may beconducted not more than once every 3

years in accordance with proceduresdeveloped in collaboration withmunicipalities and approved programs.

Ed. L. 4410(9)(a)

8 NYCRR200.20(c)

Federal law is silent aboutreviews of approved programs.

Municipalities shall be allowed toparticipate in reviews of approvedprograms.

Ed. L. 4410(9)(a)

8NYCRR200.20(c)

Federal law is silent aboutreviews of approved programs.

Multi-disciplinary evaluation programsmay rely on formal written agreementsor affiliations with appropriately certifiedor licensed professionals or agenciesemploying them.

Ed. L. 4410(9)(b) Federal law is silent about multi-disciplinary evaluation programs.

Approved providers may conduct aprogram that relies on writtenagreements or affiliations with otherapproved programs or appropriatelycertified or licensed professionals.

Ed. L. 4410(9)(d) Federal law leaves programapproval up to the states.

School districts and groups ofappropriately licensed and/or certifiedprofessionals may apply for approval asan evaluator, including provision of

Ed. L.4410(9-a)(a)

Although 20 USC section1412(a)(11) requires the SEA toexercise general supervisionover all educational programs in

January 2011 17


18/31

New York State


Requirement

multi-disciplinary evaluation services. the State, federal law does notrequire SEA approval of schooldistricts or groups of

professionals to conduct anevaluation.

Commissioner shall establish a billingand reimbursement system forapproved evaluators.

Ed. L.4410(9-a)(c)

8 NYCRR 200.9

Federal law is silent aboutreimbursement and billingsystems.

Commissioner shall establish a processfor reapproval of preschool programsand review of evaluators.

Ed. L. 4410(9-b)and 4410(9-a)(b)

8 NYCRR200.20(c)

Federal law is silent aboutreapproval of an approvedprogram.

Commissioner may require approved

programs and evaluators to submitcopies of advertising and may revokeapproval for false, misleading, deceptiveor fraudulent advertising.

Ed. L. 4410(9-c)

8 NYCRR200.20(a)(10)

Federal law is silent about

advertising by approvedprograms.

Approved providers were required tosubmit business plans to theCommissioner by 1/1/97.

Ed. L. 4410(9-d)

8 NYCRR200.20(a)(11)

Federal law is silent aboutbusiness plans.

Commissioner establishes tuition ratesfor approved programs.

Ed. L.4410(10)(a)

8 NYCRR 200.9

Federal law is silent about tuitionrates and reimbursementmethodologies.

Commissioner provides forreimbursement for evaluation costs andapproved costs for transportation by themunicipality.

Ed. L. 4410(10)(b)and (c) Federal law is silent about tuitionrates and reimbursementmethodologies.

Commissioner provides forreimbursement of administrative costsincurred by the BOE using federal fundsallocated by formula, with the balancebilled to the municipality.

Ed. L.4410(10)(d)(i)

8 NYCRR200.17(a)

Federal law allowsreimbursement of the LEA'sadministrative costs, but is silentabout reimbursement from Stateor local funds.

Commissioner provides forreimbursement of a BOE's due processcosts by municipality.

Ed. L.4410(10)(d)(ii)

8 NYCRR200.17(b)


Commissioner provides forreimbursement of municipality'sadministrative costs.

Ed. L.4410(10)(d)(iii)


Financial responsibility for approvedcosts of programs and services isimposed on the municipality in the firstinstance, with partial reimbursement by

Ed. L.4410(11)(a), and

(b)

Federal law makes the LEAresponsible for providing FAPE,but leaves assignment of fiscalresponsibility to the states.

January 2011 18


19/31

New York State


Requirement

the State.

Municipalities may conduct fiscal auditsof approved programs and services.

Ed. L. 4410(11)(c)

8 NYCRR200.18

Federal law leaves it to thestates to determine who

conducts audits.

Commissioner must establish advisorycommittee on tuition ratemethodologies.

Ed. L. 4410(12)(a) Federal law is silent aboutdevelopment of tuition ratemethodologies.

Commissioner must establish regionalcost ceilings on average per pupiltransportation costs.

Ed. L.4410(13)(a)(i)

8 NYCRR200.9(f)(4)

Federal law is silent aboutreimbursement methodologies.

Commissioner must require that eachapproved program apply to provide

special education itinerant services.

Ed. L.4410(13)(a)(iii)


Commissioner shall develop clinicalpractice guidelines to assist evaluators.

Ed. L. 4410(13)(c) There is no comparable federalrequirement.

Provides reimbursement mechanism forpayment of costs for preschool child infoster care or a homeless child or inresidential care by municipality and theState.

Ed. L. 4410-a Although necessary toimplement the requirements of34 CFR 300.154 to establishresponsibility for services, thereis no specific federalrequirement concerningreimbursement methodologies.

Provides for allocation by LEAs to

approved providers of an amount equalto the per capita share of IDEA Part Bfunds provided to the LEA.

Ed. L. 4410-b Federal law provides for

allocation of IDEA Part B fundsto LEAs, not private providers.

School bus used to transport childrenwith disabilities, with parental consent,must have information on the name ofthe student, the nature of the student'sdisability and a contact in case ofemergency.

Vehicle and TrafficLaw 375(20)(1)

Federal law does not requirethat information on students withdisabilities be maintained onschool buses.

Training in cardiopulmonaryresuscitation (CPR) is required forschool bus attendants who serve

students with disabilities whose IEPsrequire school bus attendants.

Vehicle & TrafficLaw 1229-d(3)

Federal law does not prescribetraining requirements for schoolbus attendants serving students

with disabilities.

Establishes training for school busdrivers and attendants relating to theneeds of students with disabilities.

Vehicle & TrafficLaw 1229-d(4)as amended by

Chapter 181 of theLaws of 2007Ed. L. 3650


Prohibits use of aversive interventions 8 NYCRR Not defined in federal law or

January 2011 19


20/31

New York State


Requirement

except as provided by a child-specificexception. Defines aversiveintervention.

19.5(b)

8 NYCRR

200.1(lll)

regulation.

Definition of adaptive behavior. 8 NYCRR200.1(a)

Not defined in federal law orregulation.

Definition of adapted physicaleducation.

8 NYCRR200.1(b)


Definition of annual review. 8 NYCRR200.1(c)


Definition of change in program. 8 NYCRR200.1(g)


Definition of change in placement. 8 NYCRR200.1(h)

Federal regulations definechange of placement fordiscipline.

Definition of days includes school daysduring the months of July and August.

8 NYCRR200.1(n)

Federal regulations do notdefine school days for July and

August.

Definition of medical services includesservices provided by anotherappropriately licensed or registeredhealth professional in consultation withor under the supervision of a licensedphysician.

8 NYCRR200.1(ee)

Federal regulations definemedical services to meanservices provided by a licensedphysician.

Definition of occupational therapy -means the functional evaluation of thestudent and the planning and use of a

program of purposeful activities todevelop or maintain adaptive skills,designed to achieve maximal physicaland mental functioning of the student inhis or her daily life tasks.

8 NYCRR200.1(gg)

Ed. L. 7901

Federal regulations defineoccupational therapy to meanservices provided by a qualified

occupational therapist andincludes improving, developingor restoring functions impairedor lost through illness, injury ordeprivation; improving ability toperform tasks for independentfunctioning if functions areimpaired or lost; and preventing,through early intervention, initialor further impairment or loss offunction.

Group instruction means instruction of

students grouped together according tosimilarity of individual needs for thepurpose of special education andrequires the curriculum and instructionprovided to such groups to beconsistent with the individual needs ofeach student in the group and that theinstruction needed to meet the individualneeds of any one student in the group

8 NYCRR

200.1(ww)(3)(ii)


requirement.

January 2011 20


21/31

New York State


Requirement

shall not consistently detract from theinstruction provided other students inthe group.

Definition of other health impaired. 8 NYCRR200.1(zz)(10) The State's definition includestuberculosis.

Definition of traumatic brain injury. 8 NYCRR200.1(zz)(12)

The State's definition includesinjuries caused by certainmedical conditions; does notexclude degenerative braininjuries and omits from itsdefinition that the injury mustresult in total or partial functionaldisability or psychosocialimpairment.

Definition of behavioral intervention

plan.

8 NYCRR

200.1(mmm)

Not defined in federal law or

regulation.Requires all persons involved incollection of data to have prior training.

8 NYCRR200.2(a)(3)

Although 20 USC 1416(b)(2)(B)and 1416(i) requires the state toensure valid and reliableinformation, there is no specificrequirement for staff training.

The BOE must adopt a written policythat establishes administrative policiesand procedures to ensure parents havereceived and understand the request forconsent for evaluation of a preschoolchild.

8 NYCRR200.2(b)(5)


Requires plan and policies forimplementation of school wideapproaches and pre-referralinterventions.

8 NYCRR200.2(b)(7) There are no federalrequirements for a plan or policyfor implementation of schoolwide approaches and prereferralinterventions.

The BOE must maintain lists including asurrogate parent list; list of preschoolprograms.

8 NYCRR200.2(e)

While necessary to implementthe federal requirements forappointment of surrogateparents and placement inpreschool programs, there areno federal requirements forspecific lists.

Requires representative of the schooldistrict on the CSE to serve as thechairperson of the CSE and thesubcommittee.

8 NYCRR200.3(a)(1)(v)and 200.3(c)(2)(iv)


Establishes the role of the chairpersonof the CSE, Subcommittee and CPSE.

8 NYCRR200.3(e)


Specifies that the LEA representativewho can reach agreement with theparent for reevaluations more frequently

8 NYCRR200.4(b)(4)

Federal law states that the LEAand the parent can reachagreement that a reevaluation is

January 2011 21


22/31

New York State


Requirement

than once a year must be the LEArepresentative appointed to the CSE orCPSEs.

necessary more than once in ayear.

Specifies the four areas to beconsidered for present levels ofacademic achievement and relateddevelopmental needs of the student.

8 NYCRR200.1(ww)(3)(i);

200.4(b)(5)(ii)(b)

Although federal law requiresthe IEP to report on thestudent's current level ofacademic achievement andrelated developmental needs, itdoes not specifically require theIEP to include such areas asphysical, social andmanagement needs.

The evaluation is made by amultidisciplinary team or group ofpersons, including at least one teacher

or other specialist with certification orknowledge in the area of the suspecteddisability.

8 NYCRR200.4(b)(6)(vi)

Federal law or regulation doesnot specify that amultidisciplinary team must

conduct the individualevaluation.

Requires that the evaluation include adescription of the extent to which anassessment varied from standardconditions if it was not conducted understandard conditions.

8 NYCRR200.4(b)(6)(ii)


Requires students age 12 and thosereferred to special education for the firsttime who are age 12 and over to receive

an assessment that includes a review ofschool records and teacherassessments, and parent and studentinterviews to determine vocational skills,aptitudes and interests.

8 NYCRR200.4(b)(6)(viii)

There is no federal requirementfor a vocational assessment atage 12.

The results of the evaluation areprovided to the parents in their nativelanguage or other mode ofcommunication unless it is clearly notfeasible to do so.

8 NYCRR200.4(b)(6)(xii)

Federal regulations require thatthe public agency takereasonable efforts to ensure thatthe parents understand, and areable to participate in, any groupdiscussions relating to theeducational placement of their

child, including arranging for aninterpreter if needed.

Requires the recommendation of theCSE be provided to the BOE whichmust arrange for special educationprograms and services to be provided tothe student with a disability within 60school days of the receipt of consent toevaluate.

8 NYCRR200.4(d);200.4(e)(1)

34 CFR 300.323(c) requires ameeting to develop the IEP beconducted within 30 days of thedate of eligibility and for the IEPto be implemented as soon aspossible following developmentof the IEP, but does not specifya specific timeframe for

January 2011 22


23/31

New York State


Requirement

implementation of the IEP.

IEPs developed for the 2011-12 schoolyear, and thereafter, must be on a form

prescribed by the Commissioner ofEducation.

8 NYCRR200.4(d)(2)

There is no federal law orregulation requiring LEAs to use

a state-mandated IEP form.

The IEP must indicate the individualneeds of the student in accordance withthe four need areas academic, social,physical and management needs.

8 NYCRR200.1(ww)

(3)(i); 200.4(d)(2)(i)

Federal law and regulationsrequire a statement of presentlevels of academic achievementand functional performance butdo not specify the need areasthat must be addressed.

The IEP must indicate the classificationof the disability.

8 NYCRR200.4(d)(2)(ii)

There is no federal requirementthat the classification of thestudent's disability be indicatedin the IEP.

The IEP must include evaluative criteria,evaluation procedures and schedules tobe used to measure progress towardmeeting the annual goal.

8 NYCRR200.4(d)(2)(iii) Although necessary toimplement the federal law thatrequires a description of how thechild's progress toward meetingthe annual goals will bemeasured, federal law does notspecify documentation ofevaluative criteria, proceduresand schedules.

The IEP must include short-terminstructional objectives and benchmarksfor all preschool students.

8 NYCRR200.4(d)(2)(iv)

Federal law requires short-termobjectives and benchmarks onlyfor students who take the

alternate assessment.The IEP must indicate the regularclasses in which the student will receiveconsultant teacher services, the classsize, the extent to which the studentsparents will receive parent counselingand training.

8 NYCRR200.4(d)(2)(v)(b)

(1), (2) and (5)

There are no comparablefederal requirements, exceptthat parent counseling andtraining is a related service, andfor all related services, the IEPmust specify the duration,frequency and location ofservices.

For preschool students, indicate thechildcare location arranged by theparent or other site if the

recommendation is for one or morerelated services or itinerant services.

8 NYCRR200.4(d)(2)(v)(b)

(8)


The IEP must include transition serviceson the students IEP beginning not laterthan the first IEP to be in effect whenthe student is age 15.

8 NYCRR200.4(d)(2)(ix)

Federal requirements are thattransition services must bedocumented in the student's IEPbeginning not later than the firstIEP to be in effect when thestudent is age 16.

The IEP must indicate the projected 8 NYCRR There is no federal requirement

January 2011 23


24/31

New York State


Requirement

date of the student's next annual review. 200.4(d)(2)(xi) that the projected date of thenext annual review be includedin the student's IEP.

The IEP must identify the recommendedplacement of the student (i.e., a publicschool, BOCES or schools enumeratedin articles 81, 85, 87, 88 or 89).

8 NYCRR200.4(d)(2)(xii) There is no federal requirementthat the IEP identify the publicschool, BOCES or other schoolat which special educationservices will be delivered.

State regulations specify that theindividual representing the publicagency must be the representative ofthe school district appointed to the CSEwhen the parent and public agencyagree to use alternative means ofmeeting participation.

8 NYCRR200.4(d)(4)(i)(d)

Federal law and regulations onlyspecify public agency.

A report of the evaluation upon whichthe recommendation is based must beforwarded to the BOE along with therecommendation.In the event that the parent does notchoose to participate in thedevelopment of the IEPrecommendations, the CSE must stillforward its recommendation to the BOEand the parents.

8 NYCRR200.4(d)(5) and(6)


When consultant teacher services arespecified in a students IEP, the regular

education teachers of the student forwhom the service will be provided mustbe given the opportunity to participate inthe instructional planning process withthe consultant teacher to discuss theobjectives and determine the methodsand schedules for such servicesfollowing the development of the IEP.

8 NYCRR200.4(e)(5)

There is no similar federalrequirement.

If a participating agency fails to providetransition services, the IEP must berevised, if necessary.

8 NYCRR200.4(e)(6)

There is no specific requirementthat the IEP be revised if aparticipating agency fails toprovide transition services.

Prior to the annual review, the CSEmust notify the parent of its intent toreview the students program andplacement (prior written notice).

8 NYCRR200.4(f)(3) There is no similar federalrequirement. Federal lawrequires meeting notice.

Prior written notices (notices ofrecommendation) issued during the2011-12 school year, and thereafter,must be on a form prescribed by theCommissioner of Education.

8 NYCRR200.5(a)

There is no federal law orregulation requiring LEAs to usea state-mandated prior noticeform.

January 2011 24


25/31

New York State


Requirement

Prior written notice for initial evaluationor before a reevaluation must identifythe uses to be made of the information.

8 NYCRR200.5(a)(5)(i)

Federal regulations require adescription of the actionproposed and an explanation of

why the district proposes to takethe action.

Parent can agree in writing to withdrawa referral for special education.

8 NYCRR200.5(b)(1)


Meeting notices issued during the 2011-12 school year, and thereafter, must beon a form prescribed by theCommissioner of Education.

8 NYCRR200.5(c)(1)

There is no federal law orregulation requiring LEAs to usea state-mandated meetingnotice form.

The parent must receive notification inwriting at least five days prior to a CSEor CPSE meeting. The meeting noticemay be provided to the parent less than

five days prior to the meeting to meetthe timelines in accordance with Part201 of this Title and in situations inwhich the parent and the school districtagree to a meeting that will occur withinfive days.

8 NYCRR200.5(c)(1)

Federal regulations require aparent be notified early enoughto ensure that they will have anopportunity to attend the

meeting.

Meeting notice must inform theparent(s) of the names and titles ofthose persons who will be in attendanceat the meeting.

8 NYCRR200.5(c)(2)(i)

Federal regulations do notrequire the meeting notice toindicate the names and titles ofthe persons who will be inattendance.

Notice of meeting to include that the

parent(s) has the right to participate asa member of the CSE with respect tothe identification, evaluation andeducational placement of his or herchild.

8 NYCRR

200.5(c)(2)(ii)

Federal regulations require that

the public agency take steps toensure that one or both of theparents of a child with adisability are present at eachIEP meeting or are afforded toopportunity to participate.

Notice of meeting to inform the parent(s)of his or her right to request, in writing atleast 72 hours before the meeting, thepresence of the school physicianmember of the CSE.

8 NYCRR200.5(c)(2)(iv)


If the meeting is being conducted by a

subcommittee on special education, themeeting notice must inform theparent(s) that, upon receipt of a writtenrequest from the parent, thesubcommittee shall refer to the CSE anymatter on which the parent(s) disagreeswith the subcommitteesrecommendation concerning amodification or change in the

8 NYCRR

200.5(c)(2)(vi)


requirement.

January 2011 25


26/31

New York State


Requirement

identification, evaluation, educationalplacement or provision of FAPE to thestudent.

A school district must use theprocedural safeguards notice prescribedby the Commissioner of Education.

8 NYCRR200.5(f)(1) Federally required for NYSbased on a corrective actionmonitoring plan. There is nofederal law or regulationrequiring LEAs to use a state-mandated proceduralsafeguards notice.

Detailed procedures relating to theconduct of an impartial hearing.

8 NYCRR200.5(j)(3) and (5)

Except for the generalrequirements set forth in 20 USC1415(f) and (h) and 34 CFR300.507 300.518, the federalstatute and regulations do not

prescribe specific procedures forthe conduct of an impartialhearing except for a 45-day limitfor decisions, authority to grantextensions of time, a five-dayevidence rule, representation bycounsel or other persons withspecial knowledge and training,opportunity to compel and cross-examine witnesses andmaintaining a verbatim record.

The IHO may appoint a guardian ad

litem to protect the interests of thestudent if the IHO determines that theinterests of the parent are opposed to orare inconsistent with those of thestudent or that for any other reason theinterests of the student would best beprotected by appointment of a guardianad litem. Requires guardian ad litem tobe appointed from a list of surrogateparents or who is a pro bono attorney.

8 NYCRR

200.5(j)(3)(ix);200.1(s)


requirement.

A State complaint must include:a statement that the school district or

SED has violated a federal or State lawor regulation relating to the education ofstudents with disabilities.

8 NYCRR200.5(l)(1)(ii)(a)

Federal regulations specify thata state complaint may be filed

for a violation of a requirementof Part B of IDEA, but does notinclude state law or regulations.

Upon receipt of a complaint to SED,SED may require a school district tosubmit a written reply to the complaint

8 NYCRR200.5(l)(2)(ii)

Federal regulations provide thepublic agency the opportunity torespond.

Appointment of a surrogate parentwithin 10 business days of the date ofthe determination by the committee ofthe need for the surrogate parent.

8 NYCRR200.5(n)(3)(iii)

Federal law requires theappointment of a surrogateparent within 30 calendar days.

January 2011 26


27/31

New York State


Requirement

Students with disabilities placedtogether for purposes of specialeducation must be grouped by similarity

of individual needs in accordance withthe range of academic or educationalachievement and learningcharacteristics, social development,levels of physical development andmanagement needs.

8 NYCRR200.1(ww)(3)

(ii);

200.6(a)(3)


Transitional support services must beprovided for a teacher upon therecommendation of the CSE. When theprovision of transitional support servicesis under consideration by a CSE, theteachers of the student for whom the

service is being considered must begiven the opportunity to participate inthe CSE meeting for the purpose ofadvising the CSE of the extent to whichsuch services are needed.

8 NYCRR200.6(c);200.1(ddd)


Establishes maximum caseload andminimum level of service requirementsfor consultant teacher services.

8 NYCRR200.1(m);

200.6(d)(1)-(3)

There are no specific federalcaseload or minimum levels ofservice requirements.

Establishes a maximum caseload forteachers providing speech andlanguage services, and maximuminstructional group size for related

services.

8 NYCRR200.6(e)(2) and

(3)

There are no specific federalrequirements on group size forinstructional purposes orcaseloads for speech and

language therapists.Establishes minimum level of service,maximum amount of time per day,maximum instructional group size andmaximum caseload for resource roomservices. Requires the composition ofinstructional groups in a resource roomprogram be based on a similarity ofneeds.

8 NYCRR200.1(rr);

200.6(f)(1)-(6);200.1(i);

200.1(ww)(3)(ii)

There are no specific federalrequirements relating tominimum frequency or durationof services, instructional groupsizes, or criteria for groupingstudents receiving resourceroom services.

Establishes maximum number ofstudents in co-teaching classes, withvariance procedures to temporarily

exceed the maximum by one or twostudents.

8 NYCRR200.6(g)

There is no comparable federalrequirement or variances for co-taught classes.

The size and composition of a specialclass must be based on the similarity ofthe individual needs of the students andbe composed of students withdisabilities with similar individual needs.

Maximum special class sizes based onlearning and management needs of the

8 NYCRR200.6(h)(2) (8);200.1(i), (uu) and

(ww)(3)(ii)

There are no comparablefederal requirements forgrouping students forinstructional purposes,maximum class sizes,chronological age ranges orvariances for special classes.

January 2011 27


28/31

New York State


Requirement

students.

Chronological age range within special

classes of students with disabilities whoare less than 16 years of age shall notexceed 36 months.Variance approval process for thespecial class sizes and chronologicalage range requirements.Home and hospital instruction must beprovided a minimum of five hours perweek at the elementary level, preferablyone-hour daily; or a minimum of 10hours per week at the secondary level,preferably two hours daily.

8 NYCRR200.6(i)(1) & (2);

200.1(w)


Requirements for State approval ofprivate school placements forreimbursement purposes.

8 NYCRR200.6(j)(1), (2)and (3)

Federal law does not prescribeapproval requirements for stateaid purposes.

State may require a BOE to takecorrective action if it determines that aBOE has engaged in a pattern orpractice of placing students withdisabilities in private day or residentialschools when appropriate placementswere available in public facilities or offailing to make residential and/ornonresidential private school

placements in a timely manner or offailing to submit timely applications forState approval of reimbursement.

8 NYCRR200.6(i)(5)

While this specific requirement isnot stated in federal law orregulations, it is consistent withand necessary to implementfederal requirements forensuring placements in the leastrestrictive environments and themonitoring and enforcementresponsibilities in federal law.

The commissioner may grant a waiverto a school district from any requirementin sections 200.1 and 200.6 upon afinding that such waiver will enable theschool to implement an innovativespecial education program.

8 NYCRR200.6(l)

There is no federal requirementthat the state must provide aninnovative waiver process fromits state requirements.

The percent of each instructional schoolday during which a student is providedany one or combination of the special

education programs and services shallbe in keeping with the standardsestablished in section 200.6 (i.e.,caseloads, minimum levels of service,grouping, class sizes).

8 NYCRR200.6(m)


Procedures for approval of privateschool for reimbursement with publicfunds.

8 NYCRR200.7(a)

Although necessary to complywith 20 USC 1412(a)(11)(A),federal law does not prescribespecific requirements for stateapproval of private schools.

January 2011 28


29/31

New York State


Requirement

Private, State-operated and State-supported residential schools mustestablish written procedures to review,

evaluate and verify the backgrounds of,and information supplied by, allapplicants for employment or voluntarywork.

8 NYCRR200.7(b)(6);

200.15(b)

There is no federal comparablerequirement

Requires the evaluation conducted bythe State-operated school to be sharedwith school district of residence.

8 NYCRR200.7(d)(1)(i)(a)

Federal requirements are silenton the process for State-operated or State-supportedschools.

The Commissioner determines thelocation of the MDT meetings.

If there is a tie vote at an MDT meeting,the parent casts the deciding vote.

8 NYCRR200.7(d)(1)(i)(c)

Federal regulations do notspecify who determines thelocation of an IEP team meeting.

Federal regulations do notreference voting or provide theparent with the right to cast thedeciding vote.

Procedures for the appointment ofstudents to State-supported schools.

8 NYCRR200.7(d)(1)(ii) and

(iii)

There are no federalrequirements relating toappointment to state-supportedschools.

Admission to public school of studentsresiding in Office of Mental Health(OMH), Office for People withDevelopmental Disabilities (OPWDD) or

childcare institutions the schooldistricts CSE reviews the decision ofthe recommendation of OMH, OPWDDor the childcare institutions CSE. Theschool districts CSE determination goesto the BOE.

8 NYCRR200.11

While consistent with the federalrequirement to ensure astudents placement in the leastrestrictive environment for each

student and to meet 34 CFR300.154 regarding interagencycoordination, there are nospecific comparable federalrequirements on admission topublic schools.

Mandated regulations relating toclassroom instruction of students withautism that include: grouping ofstudents with autism by age andfunctioning level, length of theinstructional day for students with

autism, starting school age for studentswith autism, the instructional programand teacher training.

Where a student with autism has beenplaced in programs containing studentswith other disabilities, or in a regularclass placement, a special educationteacher with a background in teachingstudents with autism must provide

Section 3 ofChapter 410 of the

Laws of 1978

8 NYCRR200.13

Federal law does not imposespecific requirements relating tostudents with autism and doesnot prescribe requirements oninstructional groupings or classsize.

January 2011 29


30/31

New York State


Requirement

transitional support services in order toassure that the students specialeducation needs are being met.

CPSE must provide a recommendationto the BOE within 30 school days ofreceipt of consent.

8 NYCRR200.16(e)(1) Federal law and regulation donot provide for submission of theIEP team recommendation tothe BOE, but IDEA requires thatdetermination of eligibility bemade within 60 calendar days ofconsent for the initial evaluation.

Chronological age range shall notexceed 36 months.

8 NYCRR200.16(i)(3)

(iii)(a)

There are no federalrequirements for age ranges forinstructional groupings.

Class size shall not exceed 12preschool students with disabilities with

one teacher and one or moresupplementary personnel, with avariance process to temporarily exceedthe maximum class size by one student.

8 NYCRR200.16(i)(3)

(iii)(b)

Federal law and regulation donot impose class size limitations.

Approved programs shall provideservices for not less than 2 1/2 hours aday, 2 days a week.

8 NYCRR200.16(i)(3)

(iii)(c)

Federal law and regulation donot prescribe minimum days orhours of operation of providers.

Approved in-state residential programsshall provide services for a minimum of5 hours a day, 5 days a week.

8 NYCRR200.16(i)(3)(iv)

Federal law and regulation donot prescribe minimum days orhours of operation of providers.

Approval of preschool programs. 8 NYCRR

200.20(a)

Federal law leaves approval of

schools and providers to thestates.

Approved programs shall operate for180 days each year.

8 NYCRR200.20(a)(6)

Federal law does not prescribethe number of days a programmust operate.

Approved programs must submitcalendars of days of operation forapproval of the Commissioner by Julyfirst of the preceding school year.

8NYCRR200.20(a)(7)

Federal law is silent aboutapproval of calendars ofproviders.

Approved programs must makeattendance registers available toeducation department and school

district of residence.

8 NYCRR200.20(a)(8)

Federal law is silent aboutattendance registers.

Approved program must provideeducational progress report to referringschool district or agency at leastannually.

8 NYCRR 200.20(b)(2)

Federal law is silent aboutreporting obligations ofproviders.

Procedures to suspend/revoke IHOcertification on the grounds ofincompetence or misconduct.

8 NYCRR200.21(b)(1) - (5)

1415(f)(2)(a) and 34 CFR300.511(c) require that the IHOnot be an employee of the SEAor LEA involved in the education

January 2011 30


31/31

New York State


Requirement

or care of the child or be aperson who has a personal orprofessional interest that

conflicts with the personsobjectivity in the hearing,possess the knowledge andability to conduct hearings inaccordance with appropriate,standard legal practice andability to render and writedecisions in accordance withappropriate, standard legalpractice, but there are no federalprocedures to suspend orrevoke IHO certification on the

grounds of incompetence ormisconduct.

Program standards for behavioralinterventions, including assessment ofstudent behaviors, behavioralintervention plans, use of time outrooms, emergency interventions andaversive interventions.

8 NYCRR200.22

Federal law requires functionalbehavioral assessments andbehavioral intervention plans, asappropriate, but does not specifystandards for such assessmentsand plans and for specificbehavioral interventions.

The team that makes the manifestationdetermination includes a representativeof the school district knowledgeable

about the student and interpretation ofinformation about child behavior.The parent must receive written noticeof the manifestation determinationmeeting.

8NYCRR201.4(b)

Federal law requires the team toinclude the LEA but does notspecify the qualifications of the

individual from the LEA.Federal law does not specifythat the team must make itsdecision in a meeting or that theparent receive written notice ofthe meeting.

An expedited evaluation must becompleted no later than 15 school daysafter receipt of the request forevaluation. The CSE must make adetermination of eligibility of suchstudent in a meeting held no later than 5school days after completion of theexpedited evaluation.

8 NYCRR201.6(b)

There are no federal timelines tocomplete an expeditedevaluation.

special ed - nys v federal policy

Documents