New York State Education Department



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THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234 | |

|TO: |P-12 Education Committee and |

| |Subcommittee on State Aid |

|FROM: |John B. King Jr. |

|SUBJECT: |Mandate Relief and Flexibility |

|DATE: |March 2, 2011 |

|STRATEGIC GOAL: |1, 2, 3 and 5 |

|AUTHORIZATION(S): | |

SUMMARY

Issue for Action

What mandate relief options can the Regents recommend? What are the details of specific mandate relief and flexibility recommendations in the area of school operations and special education?

Reason(s) for Consideration

Review of policy

Proposed Handling

These questions will come before a joint meeting of the Regents Subcommittee on State Aid and the P-12 Education Committee at their March meeting.

Procedural History

The Regents approved their State Aid proposal for school year 2011-12 in December 2010. The proposal supports the continued review and examination of cost containment and mandate relief options. In February, the Regents reviewed and discussed a set of draft mandate relief options intended to increase flexibility and reduce requirements for school districts in ways that do not adversely impact the health and safety of students or the essential elements of the educational reform efforts underway. The materials describe the statutory or regulatory requirement of each mandate and the rationale for its consideration, as well as alternatives for ensuring compliance. Mandate relief options seek to provide school districts with greater flexibility by streamlining requirements, specifically where the cost of implementation exceeds the benefits.

Detail about the mandate relief and flexibility options that relate to school operations, and were previously proposed by the Regents, is provided in Appendix A-1. Additional draft mandate relief and flexibility options relating to school operations can be found in Appendix A-2.

Detail concerning mandate relief and flexibility options that relate to special education services, and were previously proposed by the Regents, is delineated in Appendix B-1. Additional draft mandate and flexibility relief options relating to special education can be found in Appendix B-2.

Background Information

The Regents carefully crafted this year’s State Aid proposal to retain those critical funding directions necessary to continue the State’s progress toward educational adequacy, despite the State’s worsening revenue picture. The Regents recommended that the State continue to phase in the Foundation Aid formula and to continue to increase support for universal pre-kindergarten. In order to preserve funding for these critical priorities, the Regents recommended cost-containment strategies including mandate relief, regional transportation, and expanded use of BOCES shared services. While all of these mandates were originally enacted to enhance the rights, protections and/or performance of students and the fiscal accountability of school districts, not all have produced their intended result.

Recommendation

It is recommended that the Regents Committees discuss mandate relief and flexibility proposals concerning school operations and special education and approve those recommendations previously proposed by the Regents, as specified in Appendix A-1 and Appendix B-1. Based on discussion at the March meeting, draft mandate relief and flexibility options presented in Appendices A-2 and B-2 will be presented for approval at the April meeting.

It is recommended that the Board of Regents take the following action:

VOTED: that the Board of Regents approve the mandate relief and flexibility recommendations, as described in Appendix A-1 and Appendix B-1 of this report, each of which have been previously proposed by the Board of Regents.

Timetable for Implementation

The Executive budget proposal laid out reductions for school funding in 2011-12 and recommendations for streamlining some school operations. The proposal also called for a report by the Governor’s Mandate Relief Redesign Team by March 1, 2011, which has now been issued, and a legislative budget by April 1, 2011. The Governor will include recommendations resulting from the Mandate Relief Redesign Team, of which Commissioner Steiner and Chief Operating Office Val Grey are members, in his budget negotiations. The resulting changes in the law are expected to affect school district programs for school year 2011-12.

Appendix A-1

MANDATE RELIEF and FLEXIBILITY RECOMMENDATIONS

PREVIOUSLY PROPOSED BY THE BOARD OF REGENTS

SCHOOL OPERATIONS

Educational Management Services

|Proposed Mandate Relief or | | | |

|Flexibility Option |Citation |Description |Rationale and Comments |

|1. Provide flexibility by |Education Law §§701, 751,|Currently, State law provides aid in the form |Since Textbook Aid allows for textbooks in electronic format, this blurs the distinction |

|consolidating Textbook and |and 752 |of an expense based reimbursement, up to a |between Textbook Aid and Software Aid. Consolidating aids will provide districts with |

|Software aids |8 NYCRR §21.2, 21.3(a) |maximum amount per pupil, for instructional |greater flexibility to address local educational needs and support better long range |

| | |materials in the form of Textbook Aid and |planning for year -to-year purchases. |

| | |Software Aid. However, changes in educational| |

| | |pedagogy and technological resources suggest | |

| | |the need for a commensurate change in the way | |

| | |State Aid is organized around these two aids. | |

|2. Provide flexibility in claims|Education Law §§ |State Law now gives boards of education (BOE) |This option would expand the allowable means by which districts can meet claims auditing |

|auditing |1604(35)(a), 1709 |the authority to audit claims as a whole or to|requirements, such as providing for a Deputy Claims Auditor and authorizing BOCES Central |

| |(20-a),(a), 1724, 2526, |appoint a claims auditor to assume such |Business Office (CBO) to perform claims auditing duties for component school districts |

| |2554 (2-a) |duties. |participating in that service. It will also strengthen the fiscal accountability in small |

| |8NYCRR 170.12(c) | |districts that often have difficulty segregating duties. |

|3. Eliminate the requirement |8NYCRR 144.11 |This regulatory mandate reflects a prior |Statute for this requirement was repealed in 2007 when Foundation Aid was enacted. This |

|that school districts have an | |statute that is no longer valid. |moribund regulation should be repealed as NYSED does not have the authority to require |

|Early Grade Class Size Reduction| | |such a plan. |

|Plan | | | |

|4. Provide school calendar |Education Law §§ |Provide school districts with the flexibility |A flexible school calendar can be useful in maximizing the use of school buildings, while |

|flexibility to allow school |3602(1-4), 4408 |to adopt a school calendar with a portion of |providing additional opportunities for meeting the challenges of the Learning Standards. |

|districts outside of NYC to hold| |the required 180 days in July and/or August |This option is designed to provide greater flexibility to schools districts, not to reduce|

|regular days of session in July | |without suffering a loss of State Aid. NYC |the effects of a current mandate. |

|and August | |already has this option. | |

|5. Allow local governments to |General Municipal Law |State Law currently authorizes districts to |This option could yield savings to districts both in the prices of goods and services |

|piggyback on other states' and |§103(3) |use county contracts. This proposal would |purchased as well as their not having to incur the time and expense of going out for |

|local governments' contracts | |expand the authority of local governments to |bid(s). Options include determining specific contracts that districts could access, if on |

| | |piggyback onto other local governments’ and |a more restricted basis. |

| | |other states’ contracts. | |

|SCHOOL FACILITIES |

|6. Eliminate the Wicks Law for |General Municipal Law §101|Wicks law is a 100 year old State law |All other states and the federal government, which formerly required “multiple prime |

|school construction |(Separate specifications |requiring school districts to hire a minimum |contracting”, have abolished this practice. It is cumbersome and expensive and can delays|

| |for certain public work) |of four prime contractors for each capital |in claims resulting in litigation. There are numerous protections that can be added to |

| | |construction project. As school district |statutes to protect subcontractors from abuse by general contractors, requiring prompt |

| | |administrators are not construction experts, |payment, and preventing bid shopping. These are in place in other jurisdictions and work |

| | |the district must then hire out the role of |very well at less cost. A change in statute is required. |

| | |coordinating the project to a construction | |

| | |management firm. | |

Appendix A-2

PROPOSED MANDATE RELIEF and FLEXIBILITY OPTIONS FOR DISCUSSION

NOT PREVIOUSLY PROPOSED BY BOARD OF REGENTS

SCHOOL OPERATIONS

Educational Management Services

|Mandate Relief or Flexibility Option|Citation |Description |Rationale and Comments |

|1. Allow School Districts with 10,000|Education Law §§ |School Districts must now audit all claims, |This option would provide larger districts with the opportunity to use some kind of |

|or More Students to Audit Samples of |1604(35), 1709 (20-a), |regardless of the size of the district. |risk-based or sampling methodology to determine the number of claims to be audited |

|Claims |1724, 2526, 2554 (2-a) | |rather than auditing all claims. The specific number, percentage or type of claims that |

| |8NYCRR 170.2(a) | |must be audited will need to be determined. |

|2. Allow School Districts with Fewer |Education Law § 2116-b |Only certain districts currently are exempt |A greater number of districts would be exempt from the Internal Audit requirement with |

|than 1,000 Pupils to Forego an |8NYCRR 170.12(b)(1) |from Internal Auditing requirements including |this proposal, representing a cost savings for them. The specific internal audit level |

|Internal Audit Function | |those with fewer than 8 teachers, less than $5|or requirements that districts with fewer than 1,000 pupils would need to adhere to |

| | |million in general fund expenses the previous |would have to be determined. Other options include, providing for an Internal Audit |

| | |year, or fewer than 300 enrolled students in |requirement less than annually, such as every two to three years. |

| | |the previous year. | |

|3. Allow School Districts to Enter |General Municipal Law |State law currently restricts school districts|Would provide authority for school districts to enter into national contracts and use |

|Into Credit Card Contracts of |§§ 104-b, 77-b (limits |from utilizing certain contracts, particularly|credit cards that allow for rebates. There is currently no statutory authority for |

|National Scope |travel expenses for |national contracts. |either. Such contracts might provide cost savings and/or revenues for districts, |

| |certain employees) | |particularly where rebates are offered based on volume of purchases. Specific contracts |

| |Local Finance Law §176 | |that districts could access, if on a more restricted basis, would need to be determined.|

| |(provides that LFL | | |

| |supersedes all other | | |

| |inconsistent laws) | | |

|4. Clarify that BOCES has the |Education Law §1950 |BOCES can operate and service school district |When procuring high tech equipment, school districts would benefit if BOCES contracted |

|Authority to Contract for | |equipment used for telecommunications and |for these purchases on their behalf, ensuring that the school district’ equipment is |

|Telecommunications on Behalf of their| |technology services and computer networks, |compatible with BOCES’ telecommunication and network equipment and allowing BOCES and |

|Component School Districts | |however State law currently limits or |district personnel to efficiently service the equipment. State law would need to be |

| | |prohibits certain types of school |amended to require standardization where BOCES and school districts wish to use |

| | |district-BOCES relationships. |compatible equipment, or the same equipment, and districts would be required to procure |

| | | |such equipment. |

|5. Eliminate the requirement that |NYC Governance Law |Both State law and Commissioner’s Regulation |The Comprehensive District Education Plan (CDEP) for Rest of State and the District |

|school districts have a Shared |§2590-h(15) |requires school districts to undertake a |Comprehensive Education Plan (DCEP) for New York City are inclusive of a range of |

|Decision Making Team |8NYCRR 100.11 |Shared Decision Making process with |information from districts and would continue to be required, but would not incorporate |

| | |statutorily prescribed committee members. |the Shared Decision Making mandate. In addition to participation in board of education |

| | |Currently districts are not required to submit|(BOE) meetings, other opportunities exist for parent involvement in school district |

| | |the biennial reviews of their Shared Decision |planning efforts, such as the Consolidated Application for Title I schools and other |

| | |making plans, but are required to have them on|federal parent involvement mandates. |

| | |file, for NYSED review, as requested. | |

| 6. Enable local government to hold |General Municipal Law |Currently, districts must follow |This change would allow districts to have vendors “bid down” prices rather than |

|reverse auctions, in which vendors |§103(1) |statutorily-required bidding requirements and |submitting a single price option once via paper copy. Options include amending state law|

|bid against one another for lower |Education Law |processes. |to expand and promote the use of electronic methods for conducting and receiving bids. |

|prices |§305(14)(a) | | |

|7. Allow for piggybacking on Federal|General Municipal Law |State Law limits school district access to |Contracts already awarded may reflect better pricing than a district could achieve on |

|General Services Administration |§103(3) and §103(6) |these types of contracts. |its own. This option could also conserve district resources by reducing the number of |

|Schedule 70 IT, Federal e-government,| | |bids a district would need to conduct in a single year. Determine specific contracts |

|and national defense authorization | | |that districts could access, if on a more restricted basis. |

|act contracts | | | |

|8. Allow for contracts to be awarded |General Municipal Law |State Law stipulates the awarding of school |For complex technical and service contracts, this would allow districts to consider |

|by "best value"--a power the State |§103(1) |district contracts to lowest, responsible |other factors in awarding contracts. These might include costs, such as conversion |

|already has |Education Law |bidders (also the authority to award via the |costs, rather than solely the price bid for a product. Options could include amending |

| |§305(14)(f) |RFP process in certain instances). |state law to include elements of the RFP process in the competitive bidding |

| | | |requirements. |

|9. Provide local governments with the|General Municipal Law |Districts are currently required under state |This option should provide access to a greater audience leading to greater interest and |

|option of publishing procurement |§103(2) |law to advertise in official newspaper(s) |ultimately better pricing for districts. The threshold for purchase contracts subject |

|notices in the Contract Reporter |Education Law |designated by the board of education (BOE) |to competitive bidding is now $20,000.  All contracts for public works involving an |

|instead of publishing in newspapers |§305(14)(a) |when placing legal notices. |expenditure of more than $35,000 are subject to competitive bidding.   Amounts below |

| | | |these amounts do not require advertising. |

|10. Clarify that BOCES and school |Education Law §3635 |Districts are currently required to transport |This option would help provide for cost effective practices and coordination of services|

|districts have the ability to | |nonpublic school pupils within a specific |by reducing employee and equipment costs. It is recommended that a new CO-SER Criteria |

|coordinate nonpublic school | |distance to nonpublic schools. |Guideline be allowed for an aidable central office Transportation Coordinator. |

|transportation through legislation | | | |

|11. Require BOCES District |Education Law § 1950 |There is currently no statutory or regulatory |This option would help provide for cost effective practices and coordination of services|

|Superintendents to collaborate with | |requirement for BOCES and school districts to |by offering the opportunity to reduce employee and equipment costs. Standardizing bell |

|school districts, nonpublic schools | |coordinate bell times. |times within BOCES and districts is recommended. There is no authority to compel |

|and special education programs in | | |nonpublic or religious schools to participate. An incentive would encourage nonpublic |

|designating bell times that allow for| | |participation |

|optimum utilization of school buses | | | |

|and school bus routes | | | |

|12. Enact legislation and/or |Education Law § 3635 |Currently, public school districts are not |This option would provide cost savings for the public school districts in both employee |

|regulation that would require |(2-a) |required to transport nonpublic school |and equipment expenses. School districts are not obligated to provide transportation for|

|adoption of a standardized annual | |students on days when public schools are not |students attending nonpublic schools before the first day of public school classes but |

|school calendar to avoid conflicts | |in session. |many do so in order to serve their nonpublic school community. This will result in |

|wherein school buses are deployed on | | |better communication and coordination. |

|days when public school districts are| | | |

|otherwise closed | | | |

|SCHOOL FACILITIES |

|13. Eliminate Annual Visual |8NYCRR 155.4(b)(2) |A five year building condition survey by a |While the five year building condition surveys are useful, the annual inspections, which|

|Inspections | |licensed professional and annual inspections |strain limited district and NYSED resources, do not have a commensurate advantage. There|

| | |by district staff are required as a result of |are annual fire inspections conducted by a licensed code enforcement official and any |

| | |the 1998 RESCUE legislation (Rebuild Schools |school district with structural concerns can be reimbursed for a structural inspection |

| | |to Uphold Education). |leading to a corrective project. |

|14. Eliminate compliance with the |Chapter 433, Laws of |A 2010 State law governing “Smart Growth |The first criterion of the “Smart Growth Criteria” is reuse of existing infrastructure, |

|recently adopted Smart Growth |2010 |Criteria” requires all school districts to |which negates the need for new development. Since 95% of school projects involve the |

|Legislation (2010) for the vast |Environmental |conduct “Smart Growth Impact Statements” to |rehabilitation of existing facilities for continued use as schools, this mandate puts an|

|majority of school projects. Retain |Conservation Law §§ |ensure capital construction projects are |onerous and unnecessary responsibility on districts and SED staff by requiring “Smart |

|it only for work in new land |6-0101, 6-0103, 6-0105,|aligned with recently developed smart growth |Growth Impact Statements”. |

|acquisition and new construction. |6-0107, 6-0109 and |criteria to avoid urban sprawl and reduce | |

| |6-0111 |urban blight. | |

|15. Eliminate School Facilities |8NYCRR 155.6 |This mandate resulted from the 1998 RESCUE |While the intent of the report card was to provide easier access by the public to data |

|Report Card | |legislation, codified in CR 155.6, and |collected by districts, it represents an administrative burden and resulted in |

| | |requires school districts to summarize all |duplicative data being presented in an alternate format. The report card format |

| | |facilities activities, projects, |developed by SED merely refers readers to other available documentation. As the RESCUE |

| | |investigations, tests, etc. performed |legislation does not specifically identify the report card format, this mandate can be |

| | |throughout the year. The data is obtained from|eliminated through a regulatory change. |

| | |other required data. | |

|16. Eliminate State requirements for |Education Law §3602-a |The Asbestos Hazard Emergency Response Act |The capital planning process already provides safeguards for testing for asbestos and |

|reporting beyond the federal |of Chapter 53 Laws of |(AHERA) is a 1986 federal law, enforced by the|other hazardous materials, requires that districts hire professional consultants to |

|requirements of the Asbestos Hazard |1990 |Environmental Protection Agency (EPA), and |conduct the process, and that all work be carried out in accordance with code rule |

|Emergency Response Act | |requires all public and non-public elementary |56.As asbestos monitoring and compliance with AHERA is a federal responsibility |

| |Education Law §3641(d) |schools to develop and implement measures to |administered by the EPA, safeguards are already in place. The repeal of Education Law |

| | |1)determine if asbestos, identified as a |3641(4)(d) will reduce this burden on SED and school districts. |

| | |hazardous material, is present; and 2) how to| |

| | |mange and safely monitor it over time. The | |

| | |State has enacted additional laws over and | |

| | |above the federal mandate. Education Law | |

| | |3641(4)(d) requires that school districts | |

| | |submit a triennial report on known and assumed| |

| | |asbestos that coincides with the EPA ‘s | |

| | |mandated triennial re-inspection. | |

| | |Additionally, the NYS Labor Department also | |

| | |has extensive rules for the safe removal and | |

| | |handling of asbestos (code rule 56). | |

Appendix B-1

SPECIAL EDUCATION RECOMMENDATIONS

PREVIOUSLY PROPOSED BY THE BOARD OF REGENTS

New York State requirements not otherwise required by federal law or regulation

| | |How NYS Requirement is Different from Federal | |

|NYS Requirement |Citation |Requirement |Comments |

|PLANNING AND REPORTING REQUIREMENTS |

|1. For certain students with disabilities, including those |Education Law §4402 |There is no comparable federal requirement. |This statute was enacted prior to the federal law |

|who are in residential placements, the school district must |8 NYCRR §200.4(i) | |requirement for transition planning. With the |

|provide information, with the consent of the parent, to other| | |requirement that transition planning occur for |

|agencies prior to the date when the student graduates or ages| | |each student and representatives of other agencies|

|out. | | |likely to provide or pay for transition services |

| | | |must, with the consent of the parent, be invited |

|Proposed: | | |to the CSE meetings. The aging out notifications |

|Repeal - duplicative of transition planning requirements | | |could be eliminated without significantly |

| | | |impacting sound transition planning for individual|

| | | |students. |

|2. Boards of Cooperative Educational Services (BOCES) must |Education Law §1950(17) |Federal law does not specify how a state must |This strategy was extremely effective when the |

|submit special education space requirement plans by 2/1 of | |ensure space in facilities to meet the needs of |State had statewide issues with high rates of |

|every 5th year. Requirements include development, content, |8 NYCRR §200.2(g) |students with disabilities and least restrictive |placements in separate settings. Since then, a |

|submission, approval, and amendments to the plan and an | |environment (LRE) responsibilities. |new federal requirement has been enacted for the |

|annual progress report. | | |State to collect and publicly report on each |

|Proposed: | | |school district's LRE placements for students with|

|Repeal section 1950(17) while retaining the requirement that | | |disabilities. |

|school districts and BOCES ensure the stability and | | |The repeal of the Space Planning requirements was |

|continuity of program placements for students with | | |proposed in a prior Regents priority bill. |

|disabilities. | | | |

|DUE PROCESS |

|3. Written consent of the parent is required prior to initial|Education Law §4402(2)(a) |Federal regulations allow a state to require |Federal safeguards ensure parental consent be |

|provision of special education services in a 12-month special| |parental consent for other services and activities|obtained prior to the first time a student is |

|service and/or program. |8 NYCRR |if it ensures that each public agency in the state|provided special education services. A parent |

| |§200.5(b)(1)(iii) |establishes and implements effective procedures to|continues to have a right to disagree with a CSE |

| | |ensure that a parent's refusal to consent does not|recommendation, including a recommendation for 12 |

| | |result in a failure to provide the child with |month special education services. In addition, |

|Proposed: | |FAPE. |federal regulations now provide for the revocation|

|Repeal | | |of parental consent. |

|4. Two year statute of limitations on commencement of an |Education Law §4404(1)(a) |Federal law applies a two-year statute of |A statute of limitations of more than one year to |

|impartial hearing. | |limitation, except where the state prescribes an |request an impartial hearing is programmatically |

|Proposed: |8 NYCRR §200.5(j)(1)(i) |explicit time limitation for requesting a hearing.|inappropriate since IEPs are developed for one |

|Amend Education law to provide that a due process hearing | | |year. IDEA due process procedures should be |

|must be requested within one year of the date the parent or | | |designed to resolve disputes within one year so |

|district had knowledge of the issue, with exceptions as | | |that any resulting changes needed to assure that |

|required by federal law and with an exception that for | | |the student receives a free appropriate public |

|parents seeking tuition reimbursement, such request must be | | |education are made in time to benefit the student.|

|made within 180 days of the date the parent placed his/her | | | |

|child in the private school. | | | |

|STUDENTS WITH DISABILITIES PARENTALLY PLACED IN PRIVATE SCHOOLS |

|5. Parentally placed students with disabilities are entitled |Education Law §3602-c |Federal law requires that such students are not |These recommendations were developed and supported|

|to special education services on an equitable basis. |8NYCRR §177.2 |entitled to a free appropriate public education, |by a Roundtable Task Force which included |

|Proposed: | |but rather must receive special education services|representatives of nonpublic schools, public |

|Clarify that special education services for such students do | |in accordance with a plan to expend a districts |school districts and parents of parentally placed |

|not include special classes or integrated co-teaching; | |proportionate share of federal IDEA funds based on|students with disabilities. |

|clarify responsibilities for July / August services; change | |a count of parentally placed students with |We are not proposing moving to the federal |

|the date from June 1 to April 1 for a parent to request | |disabilities. |standard which would significantly reduce |

|special education services; make mediation mandatory when due| | |eligibility for special education services for |

|process complaints are sought; and establish regional rate | | |parentally placed students but are proposing to |

|methodologies for billing to districts. | | |clarify and simplify certain aspects of New York’s|

| | | |requirements |

Appendix B-2

SPECIAL EDUCATION RECOMMENDATIONS

NOT PREVIOUSLY PROPOSED BY THE BOARD OF REGENTS

NYS requirements not otherwise required by federal law or regulation under consideration for mandate relief

| | |How NYS Requirement is Different from Federal | |

|NYS Requirement |Citation |Requirement |Comments |

|COMMITTEE ON SPECIAL EDUCATION (CSE) MEMBERSHIP |

|1. The CSE membership must include, in addition to the |Education Law §4402(1)(b)(1)(a)|Federal law and regulations do not require a |The federally required IEP team membership was |

|federal IEP team members: |and (b) |school psychologist, additional parent member or |expanded in 1997 to include general education |

|a school psychologist; | |physician. |teachers, individuals who can interpret |

|a parent of a student with disability (in addition to the |8 NYCRR §200.3(a)(1) | |instructional implications of evaluations and |

|student’s parent), except that the parent of the student may | | |others at the discretion of the parents and public|

|decline the participation of the additional parent member; | | |agency, and other individuals who have knowledge |

|and | | |or special expertise regarding the child. These |

|a physician if requested by the school or parent 72 hours | | |other individuals could include the school |

|before the meeting. | | |psychologist, another parent or a physician at the|

| | | |request of the school or parent. |

|Proposal: | | | |

|Conform the membership of the CSE to the federal IEP team | | | |

|membership. | | | |

|2. Subcommittees on Special Education - School districts with|Education Law §4402(1)(b)(1)(d)|The subcommittee membership is the same as the |Only viable if the State aligns its CSE membership|

|more than 125,000 inhabitants must appoint subcommittees to | |federal mandated IEP team membership, with the |to federal standard (above). If the membership of|

|the extent necessary to ensure timely evaluation and |8 NYCRR §200.3(c) |exception of the requirements for participation of|the CSE is aligned to the federal IEP team |

|placement of students with disabilities. Other school | |the school psychologist. |membership, Subcommittees on Special Education |

|districts may, but are not required to, have subcommittees. | | |would no longer be necessary. |

|Subcommittee membership is the same as federal IEP team | | | |

|membership, except a school psychologist is a required member| | | |

|of a subcommittee whenever a new psychological evaluation is | | | |

|reviewed or a change to a program option with a more | | | |

|intensive staff-to-student ratio is recommended. | | | |

|Subcommittees must submit an annual report to CSE. The | | | |

|parent has the right to disagree with Subcommittee | | | |

|recommendations and refer to CSE. | | | |

|Proposal: | | | |

|Repeal Subcommittee requirements, contingent upon change to | | | |

|State law to conform the CSE membership to the federal IEP | | | |

|team. | | | |

|3. Written notice of a CSE meeting must inform the parent(s) |8 NYCRR |There is no comparable federal requirement. |Only viable if the State aligns its CSE membership|

|of his or her right to request, in writing at least 72 hours |§200.5(c)(2)(iv) | |to federal standard (above). |

|before the meeting, the presence of the school physician | | | |

|member of the CSE. | | | |

|Proposal: | | | |

|Repeal contingent upon change to State law to conform the CSE| | | |

|membership to the federal IEP team. | | | |

|4. If the meeting is being conducted by a Subcommittee on |8 NYCRR |There is no comparable federal requirement. |Only viable if the State aligns its CSE membership|

|Special Education, the meeting notice must inform the |§200.5(c)(2)(vi) | |to federal standard (above). |

|parent(s) that, upon receipt of a written request from the | | | |

|parent, the Subcommittee shall refer to the CSE any matter on| | | |

|which the parent(s) disagrees with the Subcommittee’s | | | |

|recommendation concerning a modification or change in the | | | |

|identification, evaluation, educational placement or | | | |

|provision of a free appropriate public education to the | | | |

|student. | | | |

|Proposal: | | | |

|Repeal contingent upon change to State law to conform the CSE| | | |

|membership to the federal IEP team. | | | |

|COMMITTEE ON PRESCHOOL SPECIAL EDUCATION (CPSE) |

|5. In addition to the federal IEP team members, membership of|Education Law§4410(3) (a)(1) |There are no federal requirements for an |The federally required IEP team membership was |

|the CPSE includes an additional parent member (except that | |additional parent member or municipality |expanded in 1997 to include general education |

|the parent can decline the participation of the additional |8NYCRR §200.3(a)(2) |representative on the committee. |teachers, individuals who can interpret |

|parent member) and a municipality representative, except the | | |instructional implications of evaluations and |

|attendance of the municipality representative is not required| | |others at the discretion of the parents and public|

|for a quorum. | | |agency, other individuals who have knowledge or |

|Proposal: | | |special expertise regarding the child. These |

|Align CPSE membership with the federal IEP team, except | | |other individuals could include the school |

|continue the municipality representative until such time that| | |psychologist, another parent or a physician at the|

|the county no longer has a role in the provision or payment | | |request of the school or parent. If there is no |

|of special education to preschool students. | | |revision to the payment structure for preschool |

| | | |special education, the municipality representative|

| | | |may need to be retained on the CPSE. |

|INDIVIDUAL EVALUATIONS |

|6. For preschool students, the parent selects the evaluator |Education Law §4410(4)(b) |Federal law imposes evaluation responsibilities on|This requirement has contributed to significant |

|from list of approved evaluators. | |the public school district, with parental right to|non-compliance in NYS for timely evaluations of |

|Proposal: |8 NYCRR |independent evaluation under limited |preschool students, as parents do not always |

|Repeal the requirement that parent select the evaluator and |§200.16 (c)(1) |circumstances. |select approved evaluators who are able to |

|replace it with the requirement that the school district | | |complete the individual evaluation within the |

|select an evaluator that can provide a timely evaluation of | | |State’s required timeline. Districts would have |

|the preschool child. Deem all school districts approved | | |the option of serving as approved evaluators and |

|preschool evaluators to allow any district to choose to | | |conducting the evaluation or of contracting with |

|conduct preschool evaluations themselves. | | |an approved evaluation site. |

|7. For preschool students, the board of education must |Education Law §4410(4)(b) |Federal law imposes evaluation responsibilities on|Tied to removal of parental choice of evaluator |

|provide each parent with list of approved evaluators in the | |the LEA and does not require a list of private |(above). |

|geographic area. |8 NYCRR |approved evaluators. | |

|Proposal: |§200.16 (h)(2) | | |

|Repeal contingent upon repeal of the parental choice of | | | |

|evaluator. | | | |

|8. The initial evaluation of a preschool student must be |8 NYCRR §200.16(c)(2) |Federal regulations require the initial evaluation|Our current requirements provide for less time for|

|conducted within 30 school days of the date of parental | |to be conducted within 60 calendar days of |preschool students’ evaluations to be completed |

|consent to conduct the evaluation. | |receiving parental consent for the evaluation or, |than school age evaluations, even though the |

|Proposal: | |if the State establishes a timeframe within which |preschool evaluation system relies is more complex|

|Align the timeline to be the same as school age students, | |the evaluation must be conducted, within that |and dependent upon approved evaluators and |

|which is 60 calendar days. | |timeframe. |parental choice of evaluators. This has resulted |

| | | |in substantial non-compliance in preschool |

| | | |evaluation timelines. |

|9. Each initial individual evaluation of a student suspected |Education Law §4402(1)(b)(3)(a)|Federal requirements do not prescribe specific |This would provide flexibility to Committees to |

|of having a disability must include a physical examination, | |types of assessments that must be conducted as |determine most appropriate evaluations (e.g., not |

|individual psychological evaluation, social history, |8 NYCRR |part of an initial evaluation except that a |every student would require a physical |

|observation, other appropriate evaluations and functional |§§200.1(aa), (bb), (tt) and |classroom observation is a federal requirement for|evaluation). |

|behavioral assessment (FBA) when behavior impedes learning. |(ddd); |students with specific learning disabilities. The|Federal regulations require that, for eligibility |

|Proposal: |200.4(b)(1)(i) – (v); |terms psychological evaluation, social history and|determinations for special education, the |

|Adopt the federal standard for initial evaluations. |200.16(c) |FBA are not defined in federal law or regulation. |Committee must draw upon information from a |

| | | |variety of sources, including aptitude and |

| | | |achievement tests, parent input and teacher |

| | | |recommendations, as well as information about the |

| | | |student’s physical condition, social or cultural |

| | | |background and adaptive behavior. |

|10. Establishes the process for a school psychologist to |Education Law §4402(1)(b)(3)(a)|There is no comparable federal requirement. |Only viable if change definition of individual |

|determine the need to administer an individual psychological | | |evaluation (above) |

|evaluation and requires a written report when such evaluation|8 NYCRR §200.4(b)(2) | | |

|is determined not to be necessary. | | | |

| | | | |

|Proposal: | | | |

|Repeal, contingent upon adoption of the federal standard for | | | |

|individual evaluations. | | | |

|PLANNING AND REPORTING REQUIREMENTS |

|11. Requires the school district to provide a form to parents|Education Law §4402(1)(b)(3)(h)|There is no comparable federal requirement. |There are no longer any school age students of |

|of certain children with disabilities who are veterans of the| | |veterans of the Vietnam War. |

|Vietnam war for a report to the Division of Veterans' Affairs|Executive Law §353(15) | | |

|for research purposes. | | | |

|Proposal: | | | |

|Repeal - outdated statutory requirement | | | |

|POLICIES AND PROCEDURES | | | |

|12. Requires boards of education to have plans and policies |Education Law |There is no comparable federal requirement. |CSE/CPSEs must still determine whether a student |

|for appropriate declassification of students with |§4402(1)(b)(3)(d-2) | |with a disability continues to need special |

|disabilities – regular consideration for declassifying | | |education services as one component of every |

|students when appropriate and the provision of educational |8 NYCRR §200.2(b)(8) | |annual review. This has not been an effective |

|and support services upon declassification. | | |requirement leading to an increase in |

|Proposal: | | |declassification rates. |

|Repeal. | | | |

|APPROVAL OF CERTAIN EARLY INTERVENTION PROGRAMS |

|13. The Commissioner approves the provision of early |Education Law §4403(18) |Federal law does not require the State Educational|The Department of Health (DOH) under the Early |

|intervention services by approved preschool providers. | |Agency to approve providers of early intervention |Intervention Program provides services to children|

|Proposal: | |services. |with disabilities, birth to two in NY State. This |

|Repeal. | | |requirement is a duplicative burden to SED for a |

| | | |responsibility that resides in the first instance |

| | | |with DOH. |

|DUE PROCESS |

|14. The CSE/CPSE must provide a copy of the State's handbook|Education Law |There is no comparable federal requirement. |School districts must continue to provide the |

|for parents of students with disabilities or a locally |§4402(1)(b)(7) | |State’s comprehensive mandatory procedural |

|approved handbook when a student is referred for special | | |safeguards notice to a parent, which provides a |

|education. | | |comprehensive explanation of the parent's due |

|Proposal: | | |process rights. In addition, NY State now has an |

|Repeal | | |extensive network of parent centers to assist |

| | | |parents in understanding the special education |

| | | |process. The publication, printing and |

| | | |duplication costs of the parent's guide would be a|

| | | |work and cost savings to the State and to |

| | | |districts. |

|COMMISSIONER'S APPOINTMENT TO STATE SUPPORTED SCHOOLS |

|15. Procedures for the appointment of students to |8 NYCRR §200.7(d)(1)(ii) and |There are no federal requirements relating to |This would eliminate unnecessary administrative |

|State-supported schools. |(iii) |appointment to state-supported schools. |procedures that were established before the |

|Proposal: | | |federal and State laws were enacted and are |

|Repeal the Commissioner's role in appointments to State | | |duplicative costly evaluations of the student for |

|supported schools and that the State supported school | | |admission to such schools. |

|evaluate the student in addition to the evaluation conducted | | | |

|by the school district. | | | |

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Appendix A-1

Appendix A-2

Appendix A-2

Appendix A-2

Appendix A-2

Appendix A-2

Appendix B-1

Appendix B-2

Appendix B-1

Appendix B-2

Appendix B-2

Appendix B-2

Appendix B-2

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