Congress agrees to spend another $500 million on Special Education

1/18/14
After being pounded by budget cuts last year, special education is set to see some relief under a deal approved by Congress. Federal funding for programs benefiting students with disabilities will rise by roughly $500 million this year under a $1.012 trillion bipartisan spending bill passed this week in Congress that’s expected to be signed by President Barack Obama.
Click this link to read more.



US Department of Education Guidance on School Climate and Discipline

1/12/14
The U.S. Department of Education (ED), in collaboration with the U.S. Department of Justice (DOJ), released on January 8th a school discipline guidance package that will assist states, districts and schools in developing solutions to enhance school climate, and improve school discipline policies and practices. While incidents of school violence have decreased overall, too many schools are still struggling to create positive, safe environments. The guidance package provides resources for creating such climates, which are essential for boosting student academic success and closing achievement gaps.
Click this link to go to the US Department of Education site.



US Department of Education: Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline

1/12/14
The Guidance letter prepared by the U.S Department of Education and the U.S. Department of Justice describing how schools can meet their obligations under federal law to administer student discipline without discriminating on the basis of race, color, or national origin.
Click this download a pdf of the guidance.

Compendium of School Discipline Laws and Regulations

1/12/14
An online tool that catalogues the laws and regulations related to school discipline in each of the 50 States, Washington, D.C., and Puerto Rico states and compares laws across states and jurisdictions.
Click this link to go to the online tool.

The Antioch School Board in California approved a settlement of Eight Million dollars in a Special Education Abuse Case.

1/7/14
Parents of the eight victims alleged that the special education teacher slapped, pinched, and verbally abused her students. The Antioch, CA school administrators failed to report abuse suspicions to the authorities. Some of the students were nonverbal children with autism in a Kindergarten class. The parents sued the district and five current and former employees. This appears to be the largest special ed settlement ever, having surpassed Steven Wyner's Manhattan Beach $6.7 Million case."
Click this link to read more about the story.

States and Schools move to revise discipline policies

12/11/13
NY Times report on an emerging national movement away from severe punishments, including arrests, for students. As the NY Times reports "Faced with mounting evidence that get-tough policies in schools are leading to arrest records, low academic achievement and high dropout rates that especially affect minority students, cities and school districts around the country are rethinking their approach to minor offenses."
Click this link to read a pdf of the NY Times Article.

NY State Webinars on the new Career Development and Occupational Studies Commencement Credential

12/10/13
The New York State Education Department, P-12: Office of Special Education has published a series of six webinar modules on the New York State (NYS) Career Development and Occupational Studies (CDOS) Commencement Credential. The modules are as follows:
  • Module 1: Overview;
  • Module 2:Career Plan and CareerZone;
  • Module 3: CDOS Learning Standards;
  • Module 4: Career and Technical Education Coursework and Work-based Learning
  • Module 5: Employability Profile; and
  • Module 6: National Work Readiness Credentials.
Each module provides information on a specific topic related to the credential. Questions and answers are also posted on the P-12: Office of Special Education website as noted. You are encouraged to check the site often for new information.
Click this link to go to the webinars.


NY State guidance on students who Wander and Elope from School

12/9/13
NY State has issued a memorandum that addresses policies and protocols that all public and private schools serving students with disabilities must have in place to address, prevent and respond to student behaviors of wandering and elopement, particularly for students with cognitive impairments. These policies should include performing, or including in the students Functional Behavioral Assessment (FBA) the wandering or elopement behaviors, and also including interventions to address these behaviors in the student's Positively Based Behavior Management Plan (BIP).
Click this link to go the NY State webpage with this information.
Click this link to read the pdf file for the guidance.

NY State has approved the new Career Development and Occupational Studies Commencement Credential

7/31/13
The New York State Board of Regents has approved regulations that establish an important new exiting credential for students with disabilities. Beginning with the 2013-14 school year and thereafter, students with disabilities will be able to earn a New York State Career Development and Occupational Studies (CDOS) Commencement Credential. This credential will recognize each individual student's preparation and skills for post-school employment.
More information is available at http://www.p12.nysed.gov/specialed/publications/CDOScredential-memo-613.htm. There is a lot more to this credential then just deciding in 12th grade that a student will receive it. Planning for students who would be eligible for this credential should start as early as middle School. Students can graduate with Regents or Local Diplomas and still receive the credential. Other students who will not graduate with a Regents or Local Diploma can graduate with this credential alone. Students who graduate with this credential are still eligible to receive IEP services until the School year ends that they turn 21 years of age.


What is extended School year?

7/9/13
Some children with IEP's qualify for extended School year services. This is different from any regular education summmer programming that may be offered through a local School District. So who qualifies and who doesn't?
Click this link to see a helpful blog post that answers these questions.


NY State to offer a New Graduation Credential for students with Disabilities

6/5/13
The NY State Regents are set to pass in June a new graduation credential for students with disabilities. The New York State Career Development and Occupational Studies Commencement Credential will be in part in place of the former IEP diploma.

NY State has made a number of changes over the last year to graduation requirments. These include the following:
  • Removed the option of using the Regents Competency Tests (RCT) option for a student with a disability to graduate with a local diploma beginning with the entering cohort of September 2011.
  • Added a compensatory option whereby a student with a disability could graduate with a local diploma. This option is in addition to the safety net option that allows a student with a disability to graduate with a local diploma if he/she earns a 55-64 score on one or more of the required Regents examinations.
  • Repealed the IEP diploma
  • Added, effective July 1, 2013, a Skills and Achievement Commencement Credential for students with severe disabilities who are eligible to take the New York State Alternate Assessment (NYSAA). This credential is not a regular high school diploma but rather a certificate of a student’s achievement of the Career Development and Occupational Studies (CDOS) learning standards.
  • Since December the Regents have been moving forward with the New York State Career Development and Occupational Studies Commencement Credential. This will likely be voted on at the June NS State Regents meeting after the public comment period has ended.
Click this link to download the 53 page pdf explaining the new credential.


NY proposes to gut many area of Special Educaton law

6/2/13
The following is a summary of proposed changes being sent to the Senate and Assemby by the NYS Education Department. Note that the bill (Assembly bill A-7060; Senate bill S-5557) was referred to the education committee on 5/20/13:
1. 3602-c:
  • Moving notice date from June 1 to April 1 for students who already have an IEP
  • No entitlement to special class or ICT
  • Mediation required before impartial hearing except in child find cases
  • ESY available
2. abolishes appointment by the commissioner to state supported schools and makes CSE responsible for such placements.

3. CSE membership
  • Eliminates school physician
  • Parent member only upon request of the parent
  • Elimination of subcommittees
4. Transportation
  • Students receiving transportation under the 50 mile rule are not eligible to receive special education services under 3602-c.
5. Statute of Limitations:
  • Reduce the current S/L from 2 years to 1 year, except in tuition reimbursement cases in which case it would be 6 months from "from the placement by the parent or person in parental relation in the private school, provided that the student shall be deemed placed for such purpose on the first day the student is enrolled in and is liable for tuition in the private school."
6. Preschool
  • Parent can no longer choose the evaluator.
  • All school districts are deemed to be approved evaluators.
Click this link to go the Jeff Markus law office for additional information.


NY State School District report cards on Special Education performance

5/23/13
Public reports for each school district's Special Education School District Data Profile for 2011-12 are now available.
The reports display 2011-12 data results for students with disabilities (with links to prior years) for the following areas: Enrollment & Classification Rate; Graduation Rate; Drop-Out Rate; State Assessments; Suspension Rate; Significant Discrepancy by Race/Ethnicity in Suspension Rate; School-Age Least Restrictive Environment (LRE); Preschool LRE; Preschool Outcomes; Parental Involvement; Disproportionality - Identification for Special Education; Disproportionality in Specific Disability Categories; Disproportionality in Special Education Placements; Timely Evaluations (Child Find); Early Childhood Transition; Secondary Transition; and Post-School Outcomes.
Click this link to go the NY State Department of Education site.


How to prepare for a manifestation review meeting

5/20/13
"One of the most devastating calls you can receive as a parent is the School calling to tell you they have initiated an expulsion proceeding against your child due to poor behavior. If your child has an Individualized Education Program ("IEP") before the expulsion process can start they must hold a Manifestation Determination review. This review must be held within 10 days of the conduct. At which time the IEP team must review the complete file and consider all relevant information, including the IEP, any teacher observations, and any information supplied by the parents. The IEP team must then answer two questions:
  1. Was the conduct caused by, or had a direct and substantial relationship to the child's disability; and
  2. Was the conduct the direct result of the School's failure to implement the IEP.
The importance of this meeting is sometimes lost on the Parents and they show up unprepared and oblivious to the magnitude of this undertaking. If the answer to either of those questions is yes, then by law, the behavior was a manifestation of the disability and the expulsion process will stop immediately. If the answer is no to both questions, then the school personnel may then apply the same disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities. This means the expulsion process would be allowed to continue. It's important to note that your child will not be expelled during a manifestation determination review but rather this will determine whether that process will be allowed to continue to an expulsion hearing. While there is no guarantee of outcome, preparation for a Manifestation Determination review is crucial to increase the likelihood of success. Especially since most Schools will be highly reluctant to admit that the behavior was caused by the child's disability or the School's FAILURES to implement the IEP correctly. Immediate First steps:
  1. Send a letter to the School in writing requesting a complete copy of your child's education records and an incident report of the alleged behavior. This is the file you will be reviewing in the meeting to answer the manifestation determination questions;
  2. Review your State's policy on tape recording IEP meetings and send a letter notifying the School that you will be recording the Manifestation Determination review (i.e. in California you need to give the School 24 hours notice to tape record);
  3. If your child has private assessments that will be helpful during the review then provide copies to the School;
  4. If your child has private physicians, therapists, psychiatrists or other providers contact them immediately and solicit their help in determining whether the behavior is symptomatic of your child's disability. If any of them think the behavior is symptomatic of your child's disability ask them to attend the review meeting;
  5. If you do not have private providers to solicit for help begin researching symptoms of your child's disabilities (i.e. ADHD children are impulsive and don't think things through). Print out credible information to bring to the manifestation determination review regarding your child's disability. Start researching at the National Association website for your child's disability (i.e. Autism Society, Attention Deficit Disorder Association, etc.); and
  6. Contact a Special Education Advocate or Special Education Attorney that specialize in discipline issues to discuss your child's upcoming meeting. It is my opinion you should hire an advocate or attorney to attend the meeting with you but at minimum you should consult with a professional on the process.
These initial first steps should help you organize and strategize but these steps are just the tip of the iceberg in preparing for the manifestation determination review. The next steps:
  1. Review all of the documents highlighting all statements made in the IEP or assessments discussing your child's needs that can be directly related to the discipline issue. Statements that might include, acts impulsively, has difficulty processing spoken language, does not think through actions prior to acting, is highly stimulated by environmental factors. Statements like these can be used to make the case that your child's actions were a manifestation of their disability;
  2. Create a list of all these statements and try to tie them back to your child's disability and the behaviors that caused the referral for expulsion;
  3. Review all of the documents again this time highlighting all services that your child is supposed to be receiving, how the school is collecting data on IEP Goals and whether the IEP lists specific behavior goals and/or has a behavior support plan. Try to determine whether the School has been following the IEP and providing your child with all of the required services; and
  4. Create a list of those services that the School has not been providing. These could include failure to provide adult supervision as provided in the IEP, failure to collect data on behavior goals as stated in the IEP or failure to follow the behavior support plan to name a few.
At this point you should be prepared to attend the Manifestation Determination review. When attending the meeting try to remain calm especially since you will be tape recording the meeting. Make sure the administrative designee for the meeting explains the process correctly to the entire IEP team and everyone reviews the complete file. The private therapists/doctors you have brought with you should be ready and willing to explain their qualifications, their experience with your child and how they have determined that the behavior was symptomatic of their disability. You should also provide copies of both of the lists you created above and ask for the information to be reviewed during the process. Try to ask specific, direct questions and make sure the answers you receive are adequate. Are the team members answering the questions you ask or skirting around the issues?
If at the conclusion of the meeting the School still feels the behavior WAS NOT a manifestation of the child's disability then if the parents disagree they may appeal the decision by requesting a due process hearing. Due process hearings regarding discipline issues are handled on an expedited basis which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing. The tape recording you made at the manifestation determination review may also be used as evidence in the Due Process hearing."
Click this link to read the original article.


OSEP issues policy letter regarding work placements in IEPS

5/19/13
When a teen is at risk for having difficulties with meaningful employment after high school graduation and they present with specific deficits that would make college work difficult, I often push for work training for these students. While BOCES provides vocational training for students, other students need direct on site job training with a one-on-one job coach. For these patients this often means that they get academic credits for there work and also get a small paycheck for their work time.

OSEP recently issued a policy letter providing guidance on a number of issues related to transition work placements. In sum:
  • if the CSE determines that work placement is an appropriate transition service, it must be included on the IEP;
  • initiating or changing a student’s work placement triggers prior written notice requirements;
  • LRE requirements apply to work placements; and
  • 4. the CSE must consider supplementary aids and services necessary to enable the student to participate with other disabled and non-disabled students in the work place and the LEA must provide any supplementary aids and services as identified by the CSE on the IEP.
Click this link to read the PDF of the Policy Letter.


The Federal Government received a record number of complaints regarding special education

5/5/13
A new report from the U.S. Department of Education's office for civil rights says that, from 2009 to 2011, the agency received more complaints about disability issues than ever before in a three-year period.
Click this link to read more about the complaints.


Transition Goals in the IEP

4/9/13
Transition goals in the IEP, are often seen as the forgotten children and are rarely touched on or addressed at CSE meetings. They are however, incredibly important. Following I am reprinting a helpful blog post on this topic. "When the Individuals with Disabilities Education Act (IDEA) was reauthorized in 2004 the U. S. Department of Education through the Office of Special Education Programs (OSEP) required states to develop State Performance Plans based on 20 indicators. The data would be submitted annually, by each State, in Annual Performance Reports. The 13th Indicator, or Indicator 13, relates to transition services for students.
The National Technical Assistance and Dissemination Center (NSTTAC) which is funded by OSEP helps States achieve compliance with indicator 13 and have put together a checklist and a checklist frequently asked questions to help in their efforts.
As a reminder, transition services outlined in IDEA state that the IEP must include:
" Appropriate measurable post secondary goals based upon age-appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills;
" The transition services (including courses of study) needed to assist the child in reaching those goals; and
" Beginning not later than one year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights under Part B, if any, that will transfer to the child on reaching the age of majority under §300.520 [see 20 U.S.C. 1415(m)].
As part of the FAQ Checklist, mentioned above, prepared by the NSTTAC in 2006 it states, "students need to have at least one post secondary goal that covers the areas of education or training, employment, and, if appropriate, independent living." Based on the information provided in the FAQ many Schools have decided they only need to write a minimum of one transition goal to be in compliance with Indicator 13. In June of 2010, H. Douglas Cox of the Commonwealth of Virginia's Department of Education wrote to OSEP to "seek clarification of OSEP's position on requirements for appropriate measurable post secondary goals in individualized education programs (IEPs) under Part B of the Individuals with Disabilities Education Act (IDEA)."
In a Letter to Cox, dated September 26, 2011 OSEP responded saying:
Therefore, OSEP will inform NSTTAC that the guidance documents referred to in your letter will need to be revised to specify that, to be consistent with the IDEA, IEPs that address transition services must include a separate post secondary goal in the area of employment, in addition to at least one post secondary goal in the areas of training and education. Likewise, because independent living skills are distinct from employment, we will also inform NSTTAC that it will need to revise its guidance to specify that, to be consistent with the IDEA, a student's IEP must include a separate post secondary goal in the area of independent living skills, where appropriate.
This is only one part of the letter and I highly recommend reading the letter in its entirety and printing out a copy to bring with you to your next IEP meeting if your child has a transition plan in place. While, OSEP has provided guidance to NSTTAC they are still in the process of updating these documents and have not posted the new FAQ on their website yet. This is why it's important for parents to have the Letter to Cox with them when attending their child's IEP if transition services and goals will be discussed."
Click this link to read the original blog post.
Click this link to read the OSEP letter to Cox.


How to prepare for a manifestation hearing

4/7/13
One of the most devastating calls you can receive as a parent is the School calling to tell you they have initiated an expulsion proceeding against your child due to poor behavior. If your child has an Individualized Education Program ("IEP") before the expulsion process can start they must hold a Manifestation Determination review. This review must be held within 10 days of the conduct. At which time the IEP team must review the complete file and consider all relevant information, including the IEP, any teacher observations, and any information supplied by the parents. The IEP team must then answer two questions:
1. Was the conduct caused by, or had a direct and substantial relationship to the child's disability; and
2. Was the conduct the direct result of the School's failure to implement the IEP.
The importance of this meeting is sometimes lost on the Parents and they show up unprepared and oblivious to the magnitude of this undertaking. If the answer to either of those questions is yes, then by law, the behavior was a manifestation of the disability and the expulsion process will stop immediately. If the answer is no to both questions, then the school personnel may then apply the same disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities. This means the expulsion process would be allowed to continue. It's important to note that your child will not be expelled during a manifestation determination review but rather this will determine whether that process will be allowed to continue to an expulsion hearing.
While there is no guarantee of outcome, preparation for a Manifestation Determination review is crucial to increase the likelihood of success. Especially since most Schools will be highly reluctant to admit that the behavior was caused by the child's disability or the School's FAILURES to implement the IEP correctly.
Immediate First steps:
1. Send a letter to the School in writing requesting a complete copy of your child's education records and an incident report of the alleged behavior. This is the file you will be reviewing in the meeting to answer the manifestation determination questions;
2. Review your State's policy on tape recording IEP meetings and send a letter notifying the School that you will be recording the Manifestation Determination review (i.e. in California you need to give the School 24 hours notice to tape record);
3. If your child has private assessments that will be helpful during the review then provide copies to the School;
4. If your child has private physicians, therapists, psychiatrists or other providers contact them immediately and solicit their help in determining whether the behavior is symptomatic of your child's disability. If any of them think the behavior is symptomatic of your child's disability ask them to attend the review meeting;
5. If you do not have private providers to solicit for help begin researching symptoms of your child's disabilities (i.e. ADHD children are impulsive and don't think things through). Print out credible information to bring to the manifestation determination review regarding your child's disability. Start researching at the National Association website for your child's disability (i.e. Autism Society, Attention Deficit Disorder Association, etc.); and
6. Contact a Special Education Advocate or Special Education Attorney that specialize in discipline issues to discuss your child's upcoming meeting. It is my opinion you should hire an advocate or attorney to attend the meeting with you but at minimum you should consult with a professional on the process.
These initial first steps should help you organize and strategize but these steps are just the tip of the iceberg in preparing for the manifestation determination review.
The next steps:
1. Review all of the documents highlighting all statements made in the IEP or assessments discussing your child's needs that can be directly related to the discipline issue. Statements that might include, acts impulsively, has difficulty processing spoken language, does not think through actions prior to acting, is highly stimulated by environmental factors. Statements like these can be used to make the case that your child's actions were a manifestation of their disability;
2. Create a list of all these statements and try to tie them back to your child's disability and the behaviors that caused the referral for expulsion;
3. Review all of the documents again this time highlighting all services that your child is supposed to be receiving, how the school is collecting data on IEP Goals and whether the IEP lists specific behavior goals and/or has a behavior support plan. Try to determine whether the School has been following the IEP and providing your child with all of the required services; and
4. Create a list of those services that the School has not been providing. These could include failure to provide adult supervision as provided in the IEP, failure to collect data on behavior goals as stated in the IEP or failure to follow the behavior support plan to name a few.
At this point you should be prepared to attend the Manifestation Determination review. When attending the meeting try to remain calm especially since you will be tape recording the meeting. Make sure the administrative designee for the meeting explains the process correctly to the entire IEP team and everyone reviews the complete file. The private therapists/doctors you have brought with you should be ready and willing to explain their qualifications, their experience with your child and how they have determined that the behavior was symptomatic of their disability. You should also provide copies of both of the lists you created above and ask for the information to be reviewed during the process. Try to ask specific, direct questions and make sure the answers you receive are adequate. Are the team members answering the questions you ask or skirting around the issues?
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If at the conclusion of the meeting the School still feels the behavior WAS NOT a manifestation of the child's disability then if the parents disagree they may appeal the decision by requesting a due process hearing. Due process hearings regarding discipline issues are handled on an expedited basis which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing. The tape recording you made at the manifestation determination review may also be used as evidence in the Due Process hearing.
Click this link to read more on this topic.

2011-12 School District Special Education Data

11/4/12
The New York State Education Departments P-12: Office of Special Education has posted, effective June 1, 2012, each school district’s Special Education School District Data Profile for the 2010-11 school year as required by the Individuals with Disabilities Education Act. This report provides individual school district data relating to compliance and performance results for students with disabilities.
Click this link to go the State Education page for all School Districts in NY State.
Click this link to download a pdf of the Brighton School District Data.
Click this link to download a pdf of the Brockport School District Data.
Click this link to download a pdf of the Churchville Chili School District Data.
Click this link to download a pdf of the East Irondequoit School District Data.
Click this link to download a pdf of the East Rochester School District Data.
Click this link to download a pdf of the Fairport School District Data.
Click this link to download a pdf of the Gates Chili School District Data.
Click this link to download a pdf of the Greece Central School District Data.
Click this link to download a pdf of the Penfield School District Data.
Click this link to download a pdf of the Pittsford School District Data.
Click this link to download a pdf of the Rochester City School District Data.
Click this link to download a pdf of the Rush Henrietta School District Data.
Click this link to download a pdf of the Spencerport School District Data.
Click this link to download a pdf of the Victor School District Data.
Click this link to download a pdf of the Wayne School District Data.
Click this link to download a pdf of the Webster School District Data.
Click this link to download a pdf of the West Irondequoit School District Data.


Jobs of Thousands of Special Education Teachers At Risk

10/16/12
By Nirvi Shah on October 16, 2012 3:16 PM in Education week.
"A new report from Democratic members of the House Appropriations Committee says that those looming automatic cuts to federal spending will take an especially big bite out of special education.
The report issued last week says 12,000 special education teachers and aides could lose their jobs if automatic cuts in federal special education grants to states go through.
These automatic cuts, the wonky term for which is sequestration, are set to take effect Jan. 2. They stem from Congress' disagreement over raising the federal debt ceiling last summer. Lawmakers decided they needed to cut $1.2 trillion out of the federal budget over the next 10 years. The plan was to work on a bipartisan agreement to figure out what those cuts should be, but since they didn't figure out a compromise, across-the-board budget cuts go into effect automatically. (For schools, the single silver lining is that the cuts wouldn't really be felt until the 2013-14 school year.
The White House had already warned that cuts to special education and other education spending would be steep: an 8.2 percent cut to almost every U.S. Department of Education program. That would mean special education programs, funded at about $12.6 billion, would be cut by about $1 billion.
The result, the new report from the House says—aside from fewer special education teachers—will be 100,000 fewer children enrolled in Head Start, 20,000 fewer Head Start employees, 16,000 fewer teachers and aides working in schools where many students come from low-income families because of cuts to Title I grants, and 4,300 fewer at-risk youth in the Job Corps education and skills training program.
Those 12,000 teachers and aides affect more than 500,000 students with special needs, the Democrats said. The cuts raise a bunch of questions about requirements meant to keep spending stable from year to year—an issue that's especially delicate in the special education world. The provision was put into place to buffer students and their services from budget fluctuations. But will states be expected to make up what is cut by the feds?
As my colleagues over at Politics K-12 have written, if sequestration is to be circumvented, that won't happen until after the November election, when Congress comes back to work. Still, the Council for Exceptional Children is urging people to weigh in now."


Areas that may be assessed and who does the assessment to determine eligibility for an IEP

10/2/12
The following are components that may be included in an individual evaluation to determine whether a child has a disability. Some are evaluation components that may be used to identify the factors that may contribute to an individual student's disability (Table 2). This is offered as an FYI to parents and Schools as a reminder of what can be offered or considered through the CSE process.
Click this link to see the link.


What is Parent Training Counseling and Training in an IEP

9/2/12
As part of an IEP, the School District is supposed to provide Parent Training and Counseling if needed, so that the student with a disability can receive a Free and Appropriate Public Education. Many of my patients have been able to access this support but many parents and Schools are often confused about what this mean. This helpful article provides some background information on what can be covered through Parent Training and Counseling.
Click this link to see the article.


A Guide to the 13 Federal Special Education Classifications

8/27/12
This provide a useful guide to the 13 Federal Special Education Classification. Each State then passes regulations to implement these classifications. So each State varies on how these classifications are enacted. This link also provides data on how many children nationally were in each classification for the 2010 School year.
Click this link to see the article.


NY State - Governor vetoes proposed law

8/10/12
NY State Governor, Andrew Coumo, vetoed a proposed NY State law (see below) that would have made it easier for parents to place children with special education needs in private schools at public expense.


NY State - Governor vetoes proposed law

8/10/12
NY State Governor, Andrew Coumo, vetoed a proposed NY State law (see below) that would have made it easier for parents to place children with special education needs in private schools at public expense.


Governor may sign law allowing parents to place children with special education needs in private schools at public expense

7/31/12
Local school officials are a joining a chorus of others across the state in vehement opposition to a bill pending on Gov. Andrew Cuomo’s desk that would require the “home life and family back­ground” of special-needs children be considered when deciding whether to place a child in a private school at public expense.
Opponents of the measure call it a massive unfunded mandate and say its language is vague and if it were en­acted, parents could challenge the educational placement of their child based solely on religious or cultural back­ground. Additionally, they say, such a measure may violate federal laws. “The principle of the Individuals with Disabilities Act is to mainstream students as much as possible and be as inclusive as possible,” said Jody Siegle, executive director of the Monroe County School Boards Association. “This bill is the exact opposite of inclusion, it’s segregating by culture. Its the opposite of diversity.”
The state School Boards Association warns that the bill would create the state’s “first voucher system” and would leave “districts with high ethnic and religious populations subject to outlandish parental demands,” at high cost to existing programs and services. Jay Worona, that group’s general counsel, said language in the bill is too broad and encourages the idea of driving children to “religiously segregated” schools. “I think that the language that is used here is very amorphous and will encourage parents to unilaterally change their child’s placement to a private placement,” he said. “It gives them the impression that they will more likely than not qualify for tuition reimbursement, so parents who may not have otherwise sought that remedy will do so.”
But proponents of the bill — which was spearheaded by an ultra-Orthodox Jewish group based in New York City — say it would give parents and school administrators more freedom to consider all of a child’s developmental needs. “All this bill does is clarify and strengthen the law to help meet the particular needs of these children,” said Jim Cultrara, director of education for the state Catholic Conference in Albany, another strong supporter of the measure. “The bill is designed to strengthen federal and state law in ensuring children with special needs are placed in the least restrictive environment, and for us, that means the environment that’s most conducive to their learning.” Christopher Boshnack, administrator of the preschool through 12th-grade Northstar Christian Academy in Gates, a ministry of First Bible Baptist Church, said he would be surprised if the bill became law, as it appeared the bill would allow student placement to be based upon parents’ wishes, rather than clear data about the child in question.
School boards throughout Monroe County, including those in Webster, Churchville-Chili and Greece, have passed resolutions opposing the bill. School officials collaborate with parents to identify programs that will best meet a special education student’s needs, and the legislation “will allow a parent to place students elsewhere on their own authority and make the school district responsible for the costs,” said Shelly Cahoon, assistant superintendent of pupil services in the Webster Central School District. Superintendent Adele Bovard said the school board “felt that was not fair to taxpayers.” Jon Hunter, superintendent of the Fairport Central School District, said he’s concerned about costly legal challenges related to the measure. “I also worry this vague standard may come back to haunt us and be counterproductive, causing more segregation with kids going to special institutions and locations rather than meeting their needs in their home schools with the least restrictive environment,” he said. The bill passed in June on the last day of the 2012 legislative session. Cuomo has until Wednesday to sign or veto it. A memo for the bill notes its fiscal implications are “undetermined.” Assemblyman William Reilich, R-Greece, voted against it. “I felt it could become a tremendous unfunded mandate,” he said, noting that mandate relief promised to schools when the state imposed a 2 percent tax levy cap on districts hasn’t materialized. “I was not going to support adding additional costs to school districts when we’re asking them to hold the line on spending.” State Sen. Joseph Robach, R-Greece, voted in support of the bill. He did not return calls seeking comment. A spokesman for Cuomo did not tip the governor’s hand, but said all decisions on pending bills will be made by the Wednesday deadline.
MCDERMOT@DemocratandChronicle.com twitter.com/meagmc

NY State eliminating the RCT exam but keeping the local diploma option for students' with disabilities

6/19/12
Children with IEP's have been able to take the Regent's Competency Test (RCT) if the fail a Regent's exam. Passing the RCT allowed the individual to graduate with a local diploma. This option is still available for individuals who entered 9th grade prior to the 2011-12 School year. The RCT exam will not be available to students who entered 9th grade on or after the 2011-12 School year. All students with IEP's continue to have the 55-65 special education safety net. Students with IEPs who pass an Regents exam with a grade of 55-65 can graduate with a local diploma.
To read the NY State Education memorandum on this issue, click this link to download the pdf file.


US Department of Education appears to back down on letting District's pay less for Special Education

4/7/12
Under federal law, schools are required to maintain or increase their funding for special education from one year to the next. If they do not meet the standard known as “maintenance of effort” without obtaining an exemption from the Department of Education, districts can lose out on future federal funding. Last year (see below) the federal government granted waivers to States to let them pay less for Special Education services. In response there was an outcry from concerned groups about this decrease in funding. In response the Federal Government has now reversed its previous rule requiring School Districts to pay at least what they should have paid (not actually paid) the previous year.
To read a pdf of the Federal Government's letter, click this link.
To read a summary of the article, click this link.


What should a child’s Behavioral Health Treatment Plan look like?

1/4/12
A useful article and link explaining the process of developing a behavioral intervention plan.
Click on this link to read more on this topic.


Special Factors in an IEP

The IDEA requires that Schools consider 5 special factors in writing an IEP. These include:
Consideration of the need for positive behavioral interventions and supports, and other strategies, to address challenging behavior
Consideration of the language needs of the child of a child with limited language proficiency
Consideration of the provision of instruction in Braille and the use of Braille for a child with limited or no vision
Consideration of the communication needs of a child who is deaf or hard of hearing
Consideration whether the child needs assistive technology devices and services.
Click on this link to read more on this topic.


Final Early Intervention Regulations Released

The U.S. Department of Education has released the final regulations for the early intervention program under Part C of the Individuals with Disabilities Education Act (IDEA). These final regulations will help improve services and outcomes for infants and toddlers with disabilities. The department also released a notice of proposed rulemaking to amend Part B of the IDEA. Changes are being proposed relating to state or local agency use of a child's or parents public benefits or insurance (e.g., Medicaid) to pay for Part B services.
Click on this link to read the article.


States will be asking the Federal Government again for waivers around paying for Special Education

More States are again expected to ask for waivers from the Federal Government to again decrease their funding to pay for Special Education Services, which then shifts more of the cost back to Local Education Agencies (LEA)s. read the full article here

US Department of Education guidance on providing Special Education for Students in Private Schools

The US Department of Education has released a document to answer questions about what services children with disabilities are entitled to under the Individuals with Disabilities Education Act when they are placed in private schools by their parents. Topics include services, transportation, equipment, supplies, and home schooling for children with disabilities. private School Q&A April 2011
PDF of the Q&A

Understanding FERPA

Before there was HIPPA there was FERPA. FERPA stands for Family Education Rights and Privacy Act. It is HIPPA for Schools. It is important to know what your rights are under Federal Law in regards to your child's educational records.view some information about fERPA here

Special education in San Francisco

A federal appeals court in San Francisco is set to hear a special education case on December 15 involving the use of seclusion in school. It's a case with powerful entities supporting each side. click here to read the full article

How to file a US Department of Health and Human Services Civil Rights Complaint

If you feel a health care provider, or state or local government agency, has discriminated against you (or someone else) based on race, national origin, disability, or age, you may file a civil rights complaint. OCR can also investigate disability-based discrimination complaints against programs operated by HHS. Under certain statutes and regulations, OCR also has limited authority to investigate complaints of discrimination based on sex and religion. If you believe your health care provider conscience protection rights have been violated, you may file a complaint with OCR.
To go to the OCR website, click this link.


US Department of Education warns Schools not to delay evaluations

In a policy memorandum sent from the Department of Education's Office of Special Education Programs to State School Chiefs, OSEP has stated that School District's can not use Response To Intervention (RTI) to delay the initial evaluations of students suspected of having an educationally handicapping condition.
To read an article about the memorandum click this link.
To download a pdf file of the memorandum click this link.

New York State is mandating School Districts use a new IEP form starting during the 2011-12 School year

The new format for all IEPs must be used beginning with the 2011-12 school year. This State form will be required for use by all local and State educational agencies for all IEPs developed for use in the 2011-12 school year and thereafter. For a link to the NYS Department webpage with this information click on this link.
To read the January 2010 memorandum explaining the changes to the IEP form click on this link. To download a pdf file of the memorandum click on this link. New York State has suggested that School District's use an IEP Summary form. Click this link to download a pdf file of the Summary form. To review the new IEP form, click on this link to download a pdf file of the document. New York State has pulled together a document containing general guidelines for the use of the new IEP form. Click on this link to download a pdf file of this form. Lastly New York State has developed a Guide to Quality Individualized Education Program (IEP) Development and Implementation. Click this link to download the pdf version of this guide.

New York State's stated purpose in developing the new IEP form is to guide School Districts through the process of developing appropriate IEP's. As noted in the development guidelines "The IEP form has been developed to present Committee recommendations in the same sequence that the development of IEP recommendations should occur, beginning with present levels of performance and, for adolescent students, post-secondary goals and transition needs, followed by identification of the goals the student is expected to achieve in the school year the IEP is to be in effect. These sections are followed by recommendations to provide the student with the needed special education services, accommodations, modifications, etc. to assist him/her to reach those annual goals and to document the decisions of the Committee to provide such services to the maximum extent appropriate in regular classes and settings with the student’s nondisabled peers. The final decision of the Committee is the identification of the least restrictive placement where the student’s IEP can be implemented."

Understanding CSE meetings

This is a nicely written blog post about who actually happens at CSE meetings, and how to have a successful CSE meeting.
Click this link to read the post.

Questions and Answers about Special Education and Homeless Students

This guide from the U.S. Department of Education helps special educators, early intervention services providers and homeless assistance coordinators understand the requirements of the Individuals with Disabilities Education Act and the McKinney-Vento Homeless Assistance Act when serving homeless children with disabilities. The guide answers questions such as "What rights are afforded to homeless children with disabilities under Part B?" This link opens a PDF document.
To download the pdf file click on this link.

Summary of Diploma Requirements for Students Who First Enter Grade 9 in 2009 or 2010 Regents Diploma

NY State Graduation requirements for High Schoolers. The NYS Regents have recently changed some aspects of the graduation requirements for students with and without disabilities. This page provides an overview of the course and tests requirements for a student to graduate. This includes information on a students ability to appeal a Regent's examination grade

Summary of State Laws, Regulations, Policies, and Guideline on restraint and seclusion

The U.S. Department of Education has released a summary of state laws, regulations, policies and guidelines regarding the use of restraint and seclusion techniques in schools. This state-by-state summary is a result of U.S. Secretary of Education Arne Duncan's letter issued to Chief State School Officers on July 31, 2009, urging a review of current state policies and guidelines regarding the use of restraint and seclusion in schools. The complete report can be downloaded in PDF or Word format. The complete report provide much more information on NYS.

Continuum of Special Education Services

The State Education Department released guidance to school districts on the Continuum of Special Education Services for School-Age Students with Disabilities on 4/08. The documents clarifies the continuum of educational services and defines Integrated Co-Teach services. It also clarifies Consultant Teacher Services, Resource Room programs, Special Class, Related Services, and Teaching Assistants and Teacher Aides.

Committee on Special Education Meetings

The Committee on Special Education (CSE) Meeting is the place where the decision is first made whether a child qualifies for special education and/or related services and what services they need to address their handicapping condition. After a child is first classified the annual CSE meeting is where their progress is reviewed and changes are made to the students Individualized Educational Plan (IEP). CSE meetings are also where the law plays its heaviest role, because how CSE meetings are run, who is at the table, how services are provided, and even how an IEP is written are all regulated by federal and state special education laws. Special Education is provided not only because school's want to help students learn but because its the law.
It is important for parents to be prepared for CSE meetings. The following is a link to an article on preparing for a CSE meeting.
It is also important that teenagers are involved in the process. The following is a link to an article on Tips for Teens on attending your own Individualized Educational Plan (IEP) Meeting.

NYS Regulations

New York State Special Education Regulations

Parents, teachers, and physicians have the right to refer children for an evaluation to determine whether they are eligible for special education services.  Federal and State regulations exist that define the special education process, and that all public school districts are required by law to follow.  In NY State these laws fall under Part 200 of the commissioner's regulations. The complete regulations can be found by following this link.

Federal and State law require that a school district notify a parent of a child with an educational handicapping condition of their rights under New York State Law.  The New York State Department of Education provides School Districts with the actual documents they are to provide you with, to ensure all parents across NYS receive the same information.

New York State Education Department

                                   PROCEDURAL SAFEGUARDS NOTICE

Rights for Parents of Children with Disabilities, Ages 3-21


As a parent, you are a vital member of the Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE) inNew York State. The CSE/CPSE is responsible for developing recommendations for special education programs and services for your child.  You must be given opportunities to participate in the CSE/CPSE discussion and decision-making process about your child’s needs for special education. The following information concerns procedural safeguards that are your legal rights under federal and State laws to be informed about and involved in the special education process and to make sure that your child receives a free appropriate public education (FAPE).


A copy of this procedural safeguards notice must be provided to you one time a year and:

·         upon initial referral or your request for an evaluation of your child.

·         whenever you request a copy.

·         upon receipt of the first due process complaint in a school year requesting mediation or an impartial hearing.

·         the first time in a school year when the school district receives a copy of a State complaint that you submitted to the New York State Education Department (NYSED).

·         when a decision is made to suspend or remove your child for discipline reasons that would result in a disciplinary change in placement.


The Procedural Safeguards Notice has been adapted from the model form developed by the United States Department of Education (USDOE). Information was added regarding New York State ’s requirements.

Prior Written Notice (Notice of Recommendation)

34 CFR section 300.503; 8 NYCRR section 200.5(a) and (c)

Notice

Your school district must give you written notice (provide you certain information in writing), whenever it:

1.    proposes to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of a free appropriate public education (FAPE) to your child; or

2.    refuses to initiate or to change the identification, evaluation, or educational placement of your child, or the provision of FAPE to your child.

If the prior written notice relates to an action by the school district that requires parental consent, the district will give notice at the same time they request such consent.

Content of notice

The written notice must:

1.    describe the action that your school district proposes or refuses to take;

2.    explain why your school district is proposing or refusing to take the action;

3.    describe each evaluation procedure, assessment, record, or report your school district used in deciding to propose or refuse the action;

4.    include a statement that you have protections under the procedural safeguards provisions in Part B of the Individuals with Disabilities Education Act (IDEA);

5.    tell you how you can obtain a description of the procedural safeguards notice if the action that your school district is proposing or refusing is not an initial referral for evaluation;

6.    include resources for you to contact for help in understanding Part B of the Individuals with Disabilities Education Act (IDEA);

7.    describe any other choices that your child's Committee on Special Education (CSE) or Committee on Preschool Special Education (CPSE),considered and the reasons why those choices were rejected; and

8.    provide a description of other reasons why your school district proposed or refused the action.

Notice in understandable language

The notice must be written in language understandable to the general public and be provided in your native language or other mode of communication you use, unless it is clearly not feasible to do so.

If your native language or other mode of communication is not a written language, your school district must ensure that:

1.    the notice is translated for you orally by other means in your native language or other mode of communication;

2.    you understand the content of the notice; and

3.   there is written evidence that 1 and 2 have been met.

Native Language

34 CFR section 300.29; 8 NYCRR section 200.1(ff)

Native language, when used with an individual who has limited English proficiency, means the following:

1.    The language normally used by that person, or, in the case of a child, the language normally used by the child's parents;

2.    In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.

For a person with deafness or blindness, or for a person with no written language, the mode of communication is what the person normally uses (such as sign language, Braille, or oral communication).

Electronic Mail

34 CFR section 300.505; 8 NYCRR section 200.5(a), (f), and (i)

If your school district offers parents the choice of receiving documents by e-mail, you may choose to receive the following by e-mail:

1.    prior written notice (notice of recommendation);

2.    procedural safeguards notice; and

3.    notices related to a due process complaint.

Parental Consent - Definition

34 CFR section 300.9; 8 NYCRR section 200.1(l)

Consent

Consent means:

1.    You have been fully informed in your native language or other mode of communication (such as sign language, Braille, or oral communication) of all information about the action for which you are giving consent;

2.    You understand and agree in writing to that action, and the consent describes that action and lists the records (if any) that will be released and to whom; and

3.    You understand that the consent is voluntary on your part and you may withdraw your consent at anytime.

Your withdrawal of consent does not negate (undo) an action that has occurred after you gave your consent and before you withdrew it.

Parental Consent

34 CFR section 300.300; 8 NYCRR sections 200.5(a) and (b)

Consent for initial evaluation

Your school district cannot conduct an initial evaluation of your child to determine whether your child is eligible under Part B of IDEA to receive special education and related services without first providing you with prior written notice of the proposed action and without obtaining your consent as described under the heading Parental Consent. 

Your school district must make reasonable efforts to obtain your informed consent for an initial evaluation to decide whether your child is a child with a disability.

Your consent for initial evaluation does not mean that you have also given your consent for the school district to start providing special education and related services to your child.

If your child is enrolled in public school or you are seeking to enroll your child in a public school and you have refused to provide consent or failed to respond to a request to provide consent for an initial evaluation and your child is school-age, your school district may, but is not required to, seek to conduct an initial evaluation of your child by utilizing mediation or due process complaint, resolution meeting, and impartial due process hearing procedures.  Your school district will not violate its obligations to locate, identify and evaluate your child if it does not pursue an evaluation of your child in these circumstances and your child can not receive special education services even if he/she would have been eligible.

Special rules for initial evaluation of wards of the State

If a child is a ward of the State and is not living with his/her parent, the school district does not need consent from the parent for an initial evaluation to determine if the child is a child with a disability if:

1.    despite reasonable efforts to do so, the school district cannot find the child’s parent;

2.    the rights of the parents have been terminated in accordance with State law; or

3.    a judge has assigned the right to make educational decisions and to consent for an initial evaluation to an individual other than the parent.

In New York State, ward of the state means a child or youth under the age of twenty-one:

1.    who has been placed or remanded pursuant to section 358-a, 384 or 384-a of the Social Services Law, or article 3, 7, or 10 of the Family Court Act, or freed for adoption pursuant to section 383-c, 384, or 384-b of the Social Services Law; or

2.    who is in the custody of the Commissioner of Social Services or the Office of Children and Family Services; or

3.    who is a destitute child under section 398(1) of the Social Services Law.

Parental consent for services

Your school district must obtain your informed consent before providing special education and related services to your child for the first time.  In New York State, parental consent is also required before your child receives, for the first time, special education services during July/August.

The school district must make reasonable efforts to obtain your informed consent before providing special education and related services to your child for the first time.

If you do not respond to a request to provide your consent for your child to receive special education and related services for the first time, or if you refuse to give such consent, your school district may not use due process procedures (i.e., mediation, resolution meeting, or an impartial due process hearing) in order to obtain agreement or a ruling that the special education and related services (recommended by your child's CSE or CPSE) may be provided to your child without your consent.

If you refuse to give your consent for your child to receive special education and related services for the first time, or if you do not respond to a request to provide such consent and the school district does not provide your child with the special education and related services for which it sought your consent, your school district:

1.    is not in violation of the requirement to make FAPE available to your child for its failure to provide those services to your child; and

2.    is not required to have an IEP meeting or develop an IEP for your child for the special education and related services for which your consent was requested.

Revocation of parental consent

If you inform the school district in writing that you revoke (take back) your consent for your school district to provide special education and related services to your child, your school district:

1.    may not continue to provide special education and related services to your child; 

2.    may not use due process procedures (i.e., mediation, resolution meeting, or an impartial due process hearing) in order to obtain agreement or a ruling that the services may be provided to your child;

3.    is not in violation of the requirement to make FAPE available to your child for its failure to provide further special education and related services to your child;

4.    is not required to have an IEP meeting or develop an IEP for your child for the further provision of special education and related services; and

5.    is not required to amend your child’s education records to remove any reference to your child’s receipt of special education and related services because of the revocation of consent.

Parental consent for reevaluations

Your school district must obtain your informed consent before it reevaluates your child, unless your school district can demonstrate that:

1.    it took reasonable steps to obtain your consent for your child's reevaluation; and

2.    you did not respond.

If you refuse to consent to your child's reevaluation, the school district may, but is not required to, pursue your child's reevaluation by using mediation, due process complaint, resolution meeting, and impartial due process hearing procedures to seek to override your refusal to consent to your child's reevaluation. As with initial evaluations, your school district does not violate its obligations under Part B of IDEA if it declines to pursue the reevaluation in this manner.

Documentation of reasonable efforts to obtain parental consent

Your school must maintain documentation of reasonable efforts to obtain parental consent for initial evaluations and reevaluations, to provide special education and related services for the first time, and to locate parents of wards of the State for initial evaluations.  The documentation must include a record of the school district’s attempts in these areas, such as:

1.    detailed records of telephone calls made or attempted and the results of those calls;

2.    copies of correspondence sent to the parents and any responses received; and

3.    detailed records of visits made to the parent’s home or place of employment and the results of those visits.

Parental consent for insurance access

Parent consent is required prior to the school district accessing a parent’s private or public insurance proceeds as described under the heading of Use of Public and Private Benefits/Insurance.


Consent for Parentally-Placed and Home-Instructed Students


If you have enrolled your child in a private school at your own expense or if you are home schooling your child, and you do not provide your consent for your child's initial evaluation or your child's reevaluation, or you fail to respond to a request to provide your consent, the school district may not use its consent override procedures
(i.e., mediation, due process complaint, resolution meeting, or an impartial due process hearing) and is not required to consider your child as eligible to receive equitable services (services made available to parentally-placed private school children with disabilities).

Other consent requirements

Your consent is not required before your school district may:

1.    review existing data as part of your child's evaluation or a reevaluation; or

2.    give your child a test or other evaluation that is given to all children unless, before that test or evaluation, consent is required from all parents of all children.

Your school district may not use your refusal to consent to one service or activity to deny you or your child any other service, benefit, or activity.

The school district must develop and implement procedures to ensure that your refusal to consent to any of these other services and activities does not result in a failure to provide your child with FAPE.

Independent Educational Evaluations

34 CFR section 300.502; 8 NYCRR section 200.5(g)

General

As described below, you have the right to obtain an independent educational evaluation (IEE) of your child if you disagree with the evaluation of your child that was obtained by your school district. 

If you request an IEE, the school district must provide you with information about where you may obtain one and about the school district’s criteria that apply to IEEs.

Definitions

Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the school district responsible for the education of your child.

Public expense means that the school district either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to you, consistent with the provisions of Part B of IDEA, which allow each state to use whatever State, local, federal and private sources of support are available in the State to meet the requirements of Part B of IDEA. 

Parent right to evaluation at public expense

You have the right to an IEE of your child at public expense if you disagree with an evaluation of your child obtained by your school district, subject to the following conditions:

1.    If you request an IEE of your child at public expense, your school district must, without unnecessary delay, either:  (a) file a due process complaint to request a hearing to show that its evaluation of your child is appropriate; or (b) provide an IEE at public expense, unless the school district demonstrates in a hearing that the evaluation of your child that you obtained did not meet the school district’s criteria.

2.    If your school district requests a hearing and the final decision is that your school district’s evaluation of your child is appropriate, you still have the right to an IEE, but not at public expense.

3.    If you request an IEE of your child, the school district may ask why you object to the evaluation of your child obtained by your school district. However, your school district may not require an explanation and may not unreasonably delay either providing the IEE of your child at public expense or filing a due process complaint to request a due process hearing to defend the school district’s evaluation of your child.

You are entitled to only one IEE of your child at public expense each time your school district conducts an evaluation of your child with which you disagree.

Parent-initiated evaluations

If you obtain an IEE of your child at public expense or you choose to share with the school district an evaluation of your child that you obtained at private expense:

1.    Your school district must consider the results of the evaluation of your child, if it meets the school district’s criteria for IEE, in any decision made with respect to the provision of FAPE to your child; and

2.    You or your school district may present the evaluation as evidence at a due process hearing regarding your child.

Requests for evaluations by impartial hearing officers

If an impartial hearing officer requests an IEE of your child as part of a due process hearing, the cost of the evaluation must be at public expense.

School district criteria

If an IEE is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria that the school district uses when it initiates an evaluation (to the extent those criteria are consistent with your right to an IEE).

Except for the criteria described above, a school district may not impose conditions or timelines related to obtaining an IEE at public expense.

Confidentiality of Information

Definitions

34 CFR section 300.611

As used under the heading Confidentiality of Information:

Destruction means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.

Education records means the type of records covered under the definition of ‘‘education records’’ in 34 CFR Part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).

Participating agency means any school district, agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of IDEA.

Personally Identifiable

34 CFR section 300.32; 8 NYCRR section 200.5(e)

Personally identifiable means information that has:

(a)  your child's name, your name as the parent, or the name of another family member;

(b)  your child's address;

(c)  a personal identifier, such as your child’s social security number or student number; or

(d)  a list of personal characteristics or other information that would make it possible to identify your child with reasonable certainty.

Notice to Parents

34 CFR section 300.612

When the New York State Education Department (NYSED) and school districts maintain personally identifiable information, notice must be given that is adequate to fully inform parents about confidentiality of personally identifiable information, including:

1.    a description of the extent to which the notice is given in the native languages of the various population groups in the State;

2.    a description of the children on whom personally identifiable information is maintained, the types of information sought, the methods used in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;

3.    a summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

4.    a description of all of the rights of parents and children regarding this information, including the rights under FERPA and its implementing regulations in 34 CFR Part 99.

Before any major identification, location, or evaluation activity (also known as “child find”), the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents of the activity to locate, identify, and evaluate children in need of special education and related services.

Access Rights

34 CFR section 300.613; 8 NYCRR sections 200.2(b)(6) and 200.5(d)(6)

The participating agency must permit you to inspect and review any education records relating to your child that are collected, maintained, or used by your school district under Part B of IDEA. The participating agency must comply with your request to inspect and review any education records on your child without unnecessary delay and before any meeting regarding an IEP, or any impartial due process hearing (including a resolution meeting or a hearing regarding discipline), and in no case more than 45 calendar days after you have made a request.

Your right to inspect and review education records includes:

1.    a response from the participating agency to your reasonable requests for explanations and interpretations of the records;

2.    a request that the participating agency provide copies of the records if you cannot effectively inspect and review the records unless you receive those copies; and

3.    to have your representative inspect and review the records.

The participating agency may presume that you have authority to inspect and review records relating to your child unless advised that you do not have the authority under applicable State law governing such matters as guardianship, or separation and divorce.

Record of Access

34 CFR section 300.614

Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of IDEA (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records.

Records on More Than One Child

34 CFR section 300.615

If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

List of Types and Locations of Information

34 CFR section 300.616

On request, each participating agency must provide you with a list of the types and locations of education records collected, maintained, or used by the agency.

Fees

34 CFR section 300.617

Each participating agency may charge a fee for copies of records that are made for you under Part B of IDEA, if the fee does not effectively prevent you from exercising your right to inspect and review those records.

A participating agency may not charge a fee to search for or to retrieve information under Part B of IDEA.

Amendment of Records at Parent’s Request

34 CFR section 300.618

If you believe that information in the education records regarding your child collected, maintained, or used under Part B of IDEA is inaccurate, misleading, or violates the privacy or other rights of your child, you may request the participating agency that maintains the information to change the information.

The participating agency must decide whether to change the information in accordance with your request within a reasonable period of time of receipt of your request.

If the participating agency refuses to change the information in accordance with your request, it must inform you of the refusal and advise you of the right to a hearing for this purpose as described under the heading Opportunity For a Hearing.

Opportunity for a Hearing

34 CFR section 300.619

The participating agency must, on request, provide you an opportunity for a hearing to challenge information in education records regarding your child to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child.

Hearing Procedures

34 CFR section 300.621

A hearing to challenge information in education records must be conducted according to the procedures for such hearings under FERPA.

Result of Hearing

34 CFR section 300.620

If, as a result of the hearing, the participating agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must change the information accordingly and inform you in writing.

If, as a result of the hearing, the participating agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child, it must inform you of your right to place in the records that it maintains on your child a statement commenting on the information or providing any reasons you disagree with the decision of the participating agency.

Such an explanation placed in the records of your child must:

1.    be maintained by the participating agency as part of the records of your child as long as the record or contested portion is maintained by the participating agency; and

2.    if the participating agency discloses the records of your child or the challenged portion to any party, the explanation must also be disclosed to that party.

Consent For Disclosure of Personally Identifiable Information

34 CFR section 300.622; 8 NYCRR section 200.5(b)

Unless the information is contained in education records, and the disclosure is authorized without parental consent under FERPA, your consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies. Except under the circumstances specified below, your consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of IDEA.

Your consent, or consent of an eligible child who has reached the age of majority under State law (age 18), must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.

If your child is in, or is going to go to, a private school that is not located in the same school district you reside in, your consent must be obtained before any personally identifiable information about your child is released between officials in the school district where the private school is located and officials in the school district where you reside. 

Safeguards

34 CFR section 300.623

Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.

All persons collecting or using personally identifiable information must receive training or instruction regarding New York State’s policies and procedures regarding confidentiality under Part B of IDEA and FERPA.

Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

Destruction of Information

34 CFR section 300.624

Your school district must inform you when personally identifiable information collected, maintained, or used is no longer needed to provide educational services to your child.

The information must be destroyed at your request. However, a permanent record of your child’s name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

State Complaint Procedures

Difference Between Due Process Hearing Complaint and State Complaint Procedures

The regulations for Part B of IDEA set forth separate procedures for State complaints and for due process complaints and hearings. As explained below, any individual or organization may file a State complaint alleging a violation of any Part B requirement by a school district, NYSED, or any other public agency. Only you or a school district may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child. NYSED staff generally must resolve a State complaint within a 60-calendar-day timeline, unless the timeline is properly extended. An impartial due process hearing officer must hear a due process complaint (if not resolved through a resolution meeting or through mediation) and issue a written decision within 45 calendar days for school-age students and 30 calendar days for preschool students after the end of the resolution period, (as described in this document under the heading Resolution Process) unless the hearing officer grants a specific extension of the timeline. Such an extension would be at your request or the school district's request. The State complaint and due process complaint, resolution and hearing procedures are described more fully below.

Adoption of State Complaint Procedures

34 CFR section 300.151; 8 NYCRR section 200.5(l)

General

NYSED must have written procedures for:

1.    resolving any complaint, including a complaint filed by an organization or individual from another State;

2.    the filing of a complaint with NYSED. State complaints may be sent to:
     Statewide
Special Education Coordinator

New York State Education Department
Office of Vocational and Educational Services for Individuals with Disabilities (VESID)

One Commerce Plaza, Room 1624
Albany, NY 12234

3.    widely disseminating the State complaint procedures to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities.

Remedies for denial of appropriate services

In resolving a State complaint in which NYSED has found a failure to provide appropriate services, NYSED must address:

1.    the failure to provide appropriate services, including corrective action appropriate to address the needs of the child; and

2.    appropriate future provision of services for all children with disabilities.

Minimum State Complaint Procedures

34 CFR section 300.152; 8 NYCRR section 200.5(l)

Time limit; minimum procedures

NYSED must include in its State complaint procedures a time limit of 60 calendar days after a complaint is filed to:

1.    carry out an independent on-site investigation, if NYSED determines that an investigation is necessary;

2.    give the complainant (the person submitting the complaint) the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

3.    provide the school district or other public agency with the opportunity to respond to the complaint, including, at a minimum: (a) at the option of the agency, a proposal to resolve the complaint; and (b) an opportunity for a parent who has filed a complaint and the agency to agree voluntarily to engage in mediation;

4.    review all relevant information and make an independent determination as to whether the school district or other public agency is violating a requirement of Part B of IDEA; and

5.    issue a written decision to the complainant that addresses each allegation in the complaint and contains: (a) findings of fact and conclusions; and (b) the reasons for NYSED’s final decision.

Time extension; final decision; implementation

NYSED’s procedures described above also must:

1.    permit an extension of the 60 calendar-day time limit only if: (a) exceptional circumstances exist with respect to a particular State complaint; or (b) the parent and the school district or other public agency involved voluntarily agree to extend the time to resolve the matter through mediation.

2.    include procedures for effective implementation of NYSED’s final decision, if needed, including: (a) technical assistance activities; (b) negotiations; and (c) corrective actions to achieve compliance.

State complaints and due process hearings

If a written State complaint is received that is also the subject of a due process hearing as described below under the heading Filing a Due Process Complaint, or the State complaint contains multiple issues of which one or more are part of such a hearing, NYSED must set aside the State complaint, or any part of the State complaint that is being addressed in the due process hearing until the hearing is over. Any issue in the State complaint that is not a part of the due process hearing must be resolved using the time limit and procedures described above.

If an issue raised in a State complaint has previously been decided in a due process hearing involving the same parties (you and the school district), then the due process hearing decision is binding on that issue and NYSED must inform the complainant that the decision is binding.

A complaint alleging a school district’s or other public agency’s failure to implement a due process hearing decision must be resolved by NYSED.

Filing a Complaint

34 CFR section 300.153; 8 NYCRR section 200.5(l)

An organization or individual may file a signed written State complaint under the procedures described above.

The State complaint must include:

1.   a statement that a school district or other public agency has violated a requirement of Part B of IDEA or its regulations;

2.   the facts on which the statement is based;

3.   the signature and contact information for the complainant; and

4.   if alleging violations regarding a specific child:

(a) the name of the child and address of the residence of the child;

(b) the name of the school the child is attending;

(c)  in the case of a homeless child or youth, available contact information for the child, and the name of the school the child is attending;

(d)  a description of the nature of the problem of the child, including facts relating to the problem; and

(e)  a proposed resolution of the problem to the extent known and available to the party filing the complaint at the time the complaint is filed.

The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received as described under the heading Adoption of State Complaint Procedures.

The party filing the State complaint must forward a copy of the complaint to the school district or other public agency serving the child at the same time the party files the complaint with NYSED.

Due Process Complaint Procedures

Filing a Due Process Complaint

34 CFR section 300.507; 8 NYCRR section 200.5(i) and section 200.5(j)

General

You or the school district may file a due process complaint on any matter relating to a proposal or a refusal to initiate or change the identification, evaluation or educational placement of your child, or the provision of FAPE to your child.

The due process complaint must allege a violation that happened not more than two years before you or the school district knew or should have known about the alleged action that forms the basis of the due process complaint.

The above timeline does not apply to you if you could not file a due process complaint within the timeline because:

1.    the school district specifically misrepresented that it had resolved the issues identified in the complaint; or

2.    the school district withheld information from you that it was required to provide you under Part B of IDEA.

Information for parents

The school district must inform you of any free or low-cost legal and other relevant services available in the area if you request the information, or if you or the school district file a due process complaint.

Due Process Complaint

34 CFR section 300.508; 8 NYCRR section 200.5(i) and (j)

General

In order to request a hearing, you or the school district (or your attorney or the school district's attorney) must submit a due process complaint to the other party. That complaint must contain all of the content listed below and must be kept confidential.

You or the school district, whichever one filed the complaint, must also provide NYSED with a copy of the complaint.

Content of the complaint

The due process complaint must include:

1.    the name of the child;

2.    the address of the child’s residence;

3.    the name of the child’s school;

4.    if the child is a homeless child or youth, the child’s contact information and the name of the child’s school;

5.    a description of the nature of the problem of the child relating to the proposed or refused action, including facts relating to the problem; and

6.    a proposed resolution of the problem to the extent known and available to you or the school district at the time.

Notice required before a hearing on a due process complaint

You or the school district may not have a due process hearing until you or the school district (or your attorney or the school district's attorney), files a due process complaint that includes the information listed above.

Sufficiency of complaint

In order for a due process complaint to go forward, it must be considered sufficient. The due process complaint will be considered sufficient (to have met the content requirements above) unless the party receiving the due process complaint (you or the school district) notifies the hearing officer and the other party in writing, within 15 calendar days of receiving the complaint, that the receiving party believes that the due process complaint does not meet the requirements listed above.

Within five calendar days of receiving the notification the receiving party (you or the school district) considers a due process complaint insufficient, the impartial hearing officer must decide if the due process complaint meets the requirements listed above, and notify you and the school district in writing immediately.

Complaint amendment

You or the school district may make changes to the complaint only if:

1.    the other party approves of the changes in writing and is given the chance to resolve the due process complaint through a resolution meeting, described below; or

2.    by no later than five days before the due process hearing begins, the hearing officer grants permission for the changes.

If the complaining party (you or the school district) makes changes to the due process complaint, the timelines for the resolution meeting (within 15 calendar days of receiving the complaint) and the time period for resolution (within 30 calendar days of receiving the complaint) start again on the date the amended complaint is filed.

Local educational agency (LEA) or school district response to a due process complaint

If the school district has not sent a prior written notice to you, as described under the heading Prior Written Notice, regarding the subject matter contained in your due process complaint, the school district must, within 10 calendar days of receiving the due process complaint, send a response to you that includes:

1.    an explanation of why the school district proposed or refused to take the action raised in the due process complaint;

2.    a description of other options that your child's CSE or CPSE considered and the reasons why those options were rejected;

3.    a description of each evaluation procedure, assessment, record, or report the school district used as the basis for the proposed or refused action; and

4.    a description of the other factors that are relevant to the school district’s proposed or refused action.

Providing the information in items 1-4 above does not prevent the school district from asserting that your due process complaint was insufficient.

Other party response to a due process complaint

Except as stated under the sub-heading immediately above, LEA or school district response to a due process complaint, the party receiving a due process complaint must, within 10 calendar days of receiving the complaint, send the other party a response that specifically addresses the issues in the complaint.

Model Forms

34 CFR section 300.509

NYSED must develop model forms to help you file a State complaint and a due process complaint. However, NYSED or the school district may not require you to use these model forms.  You can use the State’s model form or another appropriate form, so long as it contains the required information for filing a due process complaint or a State complaint. The State’s model forms may be found at http://www.vesid.nysed.gov/specialed/ . Copies of the forms will be provided to you by the school district or by contacting NYSED, VESID, Special Education at 518-473-2878.

Mediation

34 CFR section 300.506; 8 NYCRR section 200.5(h)

General

The school district must make mediation available to allow you and the school district to resolve disagreements involving any matter under Part B of IDEA, including matters arising prior to the filing of a due process complaint.  Thus, mediation is available to resolve disputes under Part B of IDEA, whether or not you have filed a due process complaint to request a due process hearing as described under the heading Filing a Due Process Complaint.

Requirements

The procedures must ensure that the mediation process:

1.    is voluntary on your part and the school district's part;

2.    is not used to deny or delay your right to a due process hearing, or to deny any other rights you have under Part B of IDEA; and

3.    is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

The school district may develop procedures that offer parents and schools that choose not to use the mediation process, an opportunity to meet, at a time and location convenient to you, with a disinterested party:

1.    who is under contract with the Community Dispute Resolution Center (CDRC); and

2.    who would explain the benefits and encourage the use of the mediation process to you.

New York State uses qualified mediators trained by CDRC who know the laws and regulations relating to the provision of special education and related services. Mediators are selected by CDRCs on a random, rotational, or other impartial basis. 

Arranging mediation

Mediation is arranged through the school district with CDRCs. The State is responsible for the cost of the mediation process, including the costs of meetings.

Each meeting in the mediation process must be scheduled in a timely manner and held at a place that is convenient for you and the school district.

Mediation agreements

If you and the school district resolve a dispute through the mediation process, both parties must enter into a legally binding agreement that sets forth the resolution and:

1.    states that all discussions that happened during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

2.    is signed by both you and a representative of the school district who has the authority to bind the school district.

A written, signed mediation agreement is enforceable in any State court of competent jurisdiction (a court that has the authority under State law to hear this type of case) or in a district court of the United States.

Discussions that happened during the mediation process must be confidential. They cannot be used as evidence in any future due process hearing or civil proceeding of any federal court or State court of a State receiving assistance under Part B of IDEA.

Impartiality of mediator

The mediator:

1.    may not be an employee of a State educational agency or school that is involved in the education or care of your child; and

2.    must not have a personal or professional interest which conflicts with the mediator’s objectivity.

A person who otherwise qualifies as a mediator is not an employee of a school district or State agency solely because he or she is paid by the agency or school district to serve as a mediator.

The Child’s Placement While the Due Process Complaint and Hearing are Pending  (Pendency)

34 CFR section 300.518; 8 NYCRR section 200.5(m)

Except as provided below under the heading PROCEDURES WHEN DISCIPLINING CHILDREN WITH DISABILITIES, once a due process complaint is sent to the other party, during the resolution process time period, and while waiting for the decision of any impartial due process hearing or court proceeding, unless you and your school district or you and the State Review Officer agree otherwise, your child must remain in his or her current educational placement.

If the due process proceeding concerns consent for an initial evaluation, your child will not be evaluated while the proceeding is pending.

If the due process complaint involves an application for initial admission to public school, your child, with your consent, must be placed in the regular public school program until the completion of all such proceedings.

A child who received preschool special education services and is now school-age may, during hearings and appeals, remain in the same programs as the preschool program if that program also has an approved school-age special education program.

If your preschool child is currently not receiving special education services and programs, he or she may, during any hearings or appeals, receive special education services and programs if you and the school district agree.


If the due process complaint involves an application for initial services under Part B of IDEA for a child who is transitioning from being served under Part C of IDEA (Early Intervention Services) to Part B of IDEA (Preschool Special Education Services) and who is no longer eligible for Part C services because the child has turned three, the school district is not required to provide the Part C services that the child has been receiving. If the child is found eligible under Part B of IDEA and you consent for the child to receive special education and related services for the first time, then, pending the outcome of the proceedings, the school district must provide those special education and related services that are not in dispute (those which you and the school district both agree upon).

A child who has received early intervention services and is not of preschool age may, during hearings and appeals, receive special education in the same program as the early intervention program if that program is also an approved preschool program.

Resolution Process

34 CFR section 300.510; 8 NYCRR section 200.5(j)

Resolution meeting

Within 15 calendar days of receiving notice of your due process complaint, and before the due process hearing begins, the school district must convene a meeting with you and the relevant member or members of the CSE or CPSE who have specific knowledge of the facts identified in your due process complaint. The meeting:

1.    must include a representative of the school district who has decision-making authority on behalf of the school district; and

2.    may not include an attorney of the school district unless you are accompanied by an attorney.

You and the school district determine the relevant members of the CSE or CPSE to attend the meeting.

The purpose of the meeting is for you to discuss your due process complaint, and the facts that form the basis of the complaint, so that the school district has the opportunity to resolve the dispute.

The resolution meeting is not necessary if:

1.    you and the school district agree in writing to waive the meeting; or

2.    you and the school district agree to use the mediation process, as described under the heading Mediation.

A school district must make reasonable efforts to obtain your participation in the resolution meeting.

Resolution period

If the school district has not resolved the due process complaint to your satisfaction within 30 calendar days of the receipt of the due process complaint (during the time period for the resolution process), the due process hearing may occur.

The 45-calendar-day timeline for school-age students or 30-calendar-day timeline for preschool students for issuing a final decision begins at the expiration of the 30-calendar-day resolution period, with certain exceptions for adjustments made to the 30-calendar-day resolution period, as described below.

Except where you and the school district have both agreed to waive the resolution process or to use mediation, your failure to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until you agree to participate in a meeting. If you decide not to attend the resolution meeting, your impartial hearing may be dismissed by an impartial hearing officer.

If after making reasonable efforts and documenting such efforts, the school district is not able to obtain your participation in the resolution meeting, the school district may, at the end of the 30-calendar-day resolution period, request that an impartial hearing officer dismiss your due process complaint. Documentation of such efforts must include a record of the school district’s attempts to arrange a mutually agreed upon time and place, such as:

1.    detailed records of telephone calls made or attempted and the results of those calls;

2.    copies of correspondence sent to you and any responses received; and

3.    detailed records of visits made to your home or place of employment and the results of those visits.

If the school district fails to hold the resolution meeting within 15 calendar days of receiving notice of your due process complaint or fails to participate in the resolution meeting, you may ask a hearing officer to order that the 45-calendar-day due process hearing timeline for school-age students (or the 30-calendar-day due process hearing timeline for preschool) begin.

Adjustments to the 30-calendar-day resolution period

If you and the school district agree in writing to waive the resolution meeting, then the 45 calendar day for school-age (or 30 calendar day for preschool) timeline for the due process hearing starts the next calendar day.

After the start of mediation or the resolution meeting and before the end of the 30-calendar-day resolution period, if you and the school district agree in writing that no agreement is possible, then the 45 calendar day for school-age students or 30 calendar day for preschool timeline for the due process hearing starts the next calendar day.

If you and the school district agree to use the mediation process, at the end of the 30- calendar-day resolution period, both parties can agree in writing to continue the mediation until an agreement is reached. However, if either you or the school district withdraws from the mediation process, then the 45-calendar-day or 30-calendar-day timeline for the due process hearing starts the next calendar day.

Written agreement

If a resolution to the dispute is reached at the resolution meeting, you and the school district must enter into a legally binding agreement that is:

1.    signed by you and a representative of the school district who has the authority to bind the school district; and

2.    enforceable in any State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States.

Agreement review period

If you and the school district enter into an agreement as a result of a resolution meeting, either party (you or the school district) may void the agreement within three business days of the time that both you and the school district signed the agreement.

Hearings on Due Process Complaints

Impartial Due Process Hearing

34 CFR section 300.511; 8 NYCRR sections 200.1(x), 200.5(i) and (j)

General

Whenever a due process complaint is filed, you or the school district involved in the dispute must have an opportunity for an impartial due process hearing, as described in the Due Process Complaint and Resolution Process sections. The school district appoints the impartial hearing officer from the rotational list. The impartial hearing officer convenes the impartial hearing.

Impartial hearing officer (IHO)

At a minimum, an IHO must:

1.    not be an employee of a State educational agency or school that is involved in the education or care of the child. However, a person is not an employee of the agency solely because he/she is paid by the agency to serve as a hearing officer;

2.    not have a personal or professional interest that conflicts with the hearing officer’s objectivity in the hearing;

3.    be knowledgeable and understand the provisions of IDEA, and federal and New York State regulations pertaining to IDEA, and legal interpretations of IDEA by federal and State courts; and

4.    have the knowledge and ability to conduct hearings, and to make and write decisions, consistent with appropriate, standard legal practice.

Each school district must keep a list of those persons who serve as IHOs.

Subject matter of due process hearing

The party (you or the school district) that requests the due process hearing may not raise issues at the due process hearing that were not addressed in the due process complaint notice, unless the other party agrees.

Timeline for requesting a hearing

You or the school district must request an impartial hearing on a due process complaint within two years of the date you or the school district knew or should have known about the issue addressed in the complaint.

Exceptions to the timeline

The above timeline does not apply to you if you could not file a due process complaint because:

1.    the school district specifically misrepresented that it had resolved the problem or issue that you are raising in your complaint; or

2.    the school district withheld information from you that it was required to provide to you under Part B of IDEA.

Hearing Rights

34 CFR section 300.512; 8 NYCRR section 200.5(j)

General

Any party to a due process hearing (including a hearing relating to disciplinary procedures) or an appeal, as described under the sub-heading Appeal of decisions; impartial review has the right to:

1.    be accompanied and advised by a lawyer and/or persons with special knowledge or training regarding the problems of children with disabilities;

2.    present evidence and confront, cross-examine, and require the attendance of witnesses;

3.    prohibit the introduction of any evidence at the hearing that has not been disclosed to the other party at least five business days before the hearing;

4.    obtain a written, or, at your option, electronic, word-for-word record of the hearing; and

5.    obtain written, or, at your option, electronic findings of fact and decisions.

Additional disclosure of information

At least five business days prior to a due process hearing, you and the school district must disclose to each other all evaluations completed by that date and recommendations based on those evaluations that you or the school district intend to use at the hearing.   

An IHO may prevent any party that fails to comply with this requirement from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

Parental rights at hearings

You must be given the right to:

1.    have your child present;

2.    open the hearing to the public;

3.    have the record of the hearing, the findings of fact and decisions provided to you at no cost; and

4.    have an interpreter for the deaf or an interpreter fluent in your native language, if necessary, at no cost to you.

Hearing Decisions

34 CFR section 300.513; 8 NYCRR section 200.5(j)

Decision of hearing officer

An IHO’s decision on whether your child received FAPE must be based on substantive grounds.

In matters alleging a procedural violation, an IHO may find that your child did not receive FAPE only if the procedural inadequacies:

1.    interfered with your child’s right to FAPE;

2.    significantly interfered with your opportunity to participate in the decision-making process regarding the provision of FAPE to your child; or

3.    caused a deprivation of an educational benefit.

Construction clause

None of the provisions described above can be interpreted to prevent an IHO from ordering a school district to comply with the requirements in the procedural safeguards section of the federal regulations under Part B of IDEA (34 CFR sections 300.500 through 300.536).

None of the provisions under the headings: Filing a Due Process Complaint; Due Process Complaint; Model Forms; Resolution Process; Impartial Due Process Hearing; Hearing Rights; and Hearing Decisions (34 CFR sections 300.507 through 300.513), can affect your right to file an appeal of the due process hearing decision with the State Review Officer (SRO) (see heading Appeals - Finality of Decision).

Separate request for a due process hearing

Nothing in the procedural safeguards section of the federal regulations under Part B of IDEA (34 CFR sections 300.500 through 300.536) can be interpreted to prevent you from filing a separate due process complaint on an issue separate from a due process complaint already filed.

Findings and decision to advisory panel and general public

The State educational agency or the school district (whichever was responsible for your hearing), after deleting any personally identifiable information, must provide the findings and decisions in the due process hearing or appeal to NYSED. NYSED will provide the findings and decisions to the Commissioner’s Advisory Panel for Special Education and make those findings and decisions available to the public.

Appeals

Finality of Decision; Appeal; Impartial Review

34 CFR section 300.514; 8NYCRR section 200.5(k)

Finality of hearing decision

A decision made in a due process hearing (including a hearing relating to disciplinary procedures) is final, except that any party involved in the hearing (you or the school district) may appeal the decision to NYSED, Office of State Review.

State-level appeals of IHO decisions

The decision made by the IHO is final unless you or the school district ask for a review of the decision of the IHO (called an appeal) by the State Review Officer (SRO). If you want to appeal the IHO decision to the SRO, a Notice of Intention to Seek Review (Form A) must be served on the school district not less than 10 days before the Notice of Petition (Form B) is served on the school district, and within 25 days from the date of the IHO’s decision or, if the petition is served by hand-delivery on the school district within 35 days from the date of the IHO’s decision. If the IHO’s decision was served by mail on petitioner, the date of mailing plus the four following days must be excluded in computing the 25- or 35-day period. The SRO will:

1.    make a final decision within 30 calendar days. The SRO may extend the time beyond the 30 days at the request of you or the school district. The extension must be for a specific time.

2.    mail copies of the written or, at your option, electronic findings of fact and the decision to you or your attorney and the board of education (BOE) within the 30-day period.

The rules for filing an appeal to the SRO can be found at: http://www.sro.nysed.gov/appeals.htm.

If there is an appeal, the SRO must conduct an impartial review of the findings and decision appealed. The official conducting the review must:

1.    examine the entire hearing record;

2.    ensure that the procedures at the hearing were consistent with the requirements of due process;

3.    seek additional evidence if necessary.  If a hearing is held to receive additional evidence, the hearing rights described above under the heading Hearing Rights apply;

4.    give the parties an opportunity for oral or written argument, or both, at the discretion of the reviewing official;

5.    make an independent decision on completion of the review; and

6.    give you and the school district a copy of the written, or, at your option, electronic findings of fact and decisions.

Findings and decision to advisory panel and general public

The SRO, after deleting any personally identifiable information, must:

1.    provide the findings and decisions of the appeal to the State special education advisory panel (Commissioner’s Advisory Panel for Special Education); and

2.    make those findings and decisions available to the public.

Finality of review decision

The decision made by the SRO is final unless you or the school district brings a civil action, as described below.

Timelines and Convenience of Hearings and Reviews

34 CFR section 300.515; 8 NYCRR sections 200.5(j) and 200.16(h)

The school district must ensure that, not later than 45 calendar days for school-age students or 30 calendar days for preschool students, after the expiration of the 30 calendar day period for resolution meetings or, as described under the sub-heading Adjustments to the 30-calendar-day resolution period, not later than 45 calendar days for school-age students or 30 calendar days for preschool students after the expiration of the adjusted time period:

1.    a final decision is reached in the hearing; and

2.    a copy of the decision is mailed to you and the school district.

The SRO must ensure that not later than 30 calendar days after the receipt of a request for a review:

1.    a final decision is reached in the review; and

2.    a copy of the decision is mailed to you and the school district.

An IHO or a SRO may grant specific extensions of time beyond the periods described above (45-calendar-day for school-age or 30-calendar-day for preschool hearing decision timeline and 30-calendar-day SRO decision timeline) if you or the school district make a request for a specific extension of the timeline.

Each hearing and review involving oral arguments must be conducted at a time and place that is reasonably convenient to you and your child.

Civil Actions, Including the Time Period in Which to File Those Actions

34 CFR section 300.516; 8 NYCRR section 200.5(k)

General

Any party (you or the school district) who does not agree with the findings and decision in the State-level review has the right to bring a civil action with respect to the matter that was the subject of the due process hearing (including a hearing relating to disciplinary procedures). The action may be brought in a State court of competent jurisdiction (a State court that has authority to hear this type of case) or in a district court of the United States without regard to the amount in dispute.

Time limitation

The party (you or the school district) bringing the action have four months from the date of the decision of the SRO to file a civil action.

Additional procedures

In any civil action, the court:

1.    receives the records of the administrative proceedings;

2.    hears additional evidence at your request or at the school district's request; and

3.    bases its decision on the preponderance of the evidence and grants the relief that the court determines to be appropriate.

Jurisdiction of district courts

The district courts of the United States have authority to rule on actions brought under Part B of IDEA without regard to the amount in dispute.

Rule of construction

Nothing in Part B of IDEA restricts or limits the rights, procedures, and remedies available under the U.S. Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973 (Section 504), or other federal laws protecting the rights of children with disabilities. However, before filing a civil action under these laws seeking relief that is also available under Part B of IDEA, the due process procedures described above must be exhausted to the same extent as would be required if the party filed the action under Part B of IDEA. This means that you may have remedies available under other laws that overlap with those available under IDEA, but in general, to obtain relief under those other laws, you must first use the available administrative remedies under IDEA (i.e., the due process complaint, resolution meeting, and impartial due process hearing procedures) before going directly into court.

Attorneys’ Fees

34 CFR section 300.517

General

In any action or proceeding brought under Part B of IDEA, if you prevail, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to you.

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing school district, or NYSED to be paid by your attorney, if the attorney: (a) filed a complaint or court case that the court finds is frivolous, unreasonable, or without foundation; or (b) continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation. or

In any action or proceeding brought under Part B of IDEA, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing state educational agency (SEA) or school district, to be paid by you or your attorney, if your request for a due process hearing or later court case was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to unnecessarily increase the cost of the action or proceeding.

Award of fees

A court awards reasonable attorneys’ fees as follows:

1.    Fees must be based on rates prevailing in the community in which the action or hearing began for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded.

2.    Fees may not be awarded and related costs may not be reimbursed in any action or proceeding under Part B of IDEA for services performed after a written offer of settlement to you if:

a.    the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of a due process hearing or State-level review, at any time more than 10 calendar days before the proceeding begins;

b.    the offer is not accepted within 10 calendar days; and

c.    the court or administrative hearing officer finds that the relief finally obtained by you is not more favorable to you than the offer of settlement.

Despite these restrictions, an award of attorneys’ fees and related costs may be made to you if you prevail and you were substantially justified in rejecting the settlement offer.

3.    Fees may not be awarded relating to any meeting of the CSE or CPSE unless the meeting is held as a result of an administrative proceeding or court action. Fees also may not be awarded for a mediation as described under the heading Mediation.

A resolution meeting, as described under the heading Resolution meeting, is not considered a meeting convened as a result of an administrative hearing or court action, and also is not considered an administrative hearing or court action for purposes of these attorneys’ fees provisions.

The court reduces, as appropriate, the amount of the attorneys’ fees awarded under Part B of IDEA, if the court finds that:

1.    you, or your attorney, during the course of the action or proceeding, unreasonably delayed the final resolution of the dispute;

2.    the amount of the attorneys’ fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably similar skill, reputation, and experience;

3.    the time spent and legal services furnished were excessive considering the nature of the action or proceeding; or

4.    the attorney representing you did not provide to the school district the appropriate information in the due process request notice as described under the heading Due Process Complaint.

However, the court may not reduce fees if the court finds that the State or school district unreasonably delayed the final resolution of the action or proceeding or there was a violation under the procedural safeguards provisions of Part B of IDEA.

Procedures When Disciplining Children with Disabilities

Authority of School Personnel

34 CFR section 300.530; 8 NYCRR sections 201.2 - 201.7

Case-by-case determination

School personnel may consider any unique circumstances on a case-by-case basis, when determining whether a change of placement, made in accordance with the following requirements related to discipline, is appropriate for a child with a disability who violates a school code of student conduct.

General

The procedures for the discipline of students with disabilities must be in accordance with section 3214 of the Education Law and Part 201 of the Regulations of the Commissioner of Education. While the school has the authority to suspend or remove your child for violating the school’s code of conduct, you and your child have certain rights throughout the process. 


Rights that apply to all students

1.    To be notified immediately by telephone, if possible, and to receive written notice within 24 hours of a proposed suspension of five school days or less. The notice should describe the incident, proposed suspension and your child’s rights. You also have the right to request an informal conference with the school principal, which will be held before the suspension unless your child’s presence in school poses a danger (in which case the informal conference can occur after your child is suspended).

2.    To receive written notice of your opportunity for a superintendent’s hearing, if the suspension is for more than five consecutive school days, which describes your child’s rights to counsel and to question and present witnesses. 

3.    For your child to receive alternative instruction during the first ten days of any suspension or removal to the same extent as nondisabled students, if your child is of compulsory school age.

Rights that apply to students with disabilities

To the extent that they also take such action for children without disabilities, school personnel may, for not more than 10 school days in a row, remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting (IAES) which must be determined by the child's CSE or CPSE, another setting, or suspension. School personnel may also impose additional removals of the child of not more than 10 school days in a row in that same school year for separate incidents of misconduct, as long as those removals do not constitute a change of placement (see Change of Placement Because of Disciplinary Removals for the definition, below).

Once a child with a disability has been removed from his or her current placement for a total of 10 school days in the same school year, the school district must, during any subsequent days of removal in that school year, provide services to the extent required below under the sub-heading Services.

Additional authority

If the behavior that violated the student code of conduct was not a manifestation of the child’s disability (see Manifestation determination, below) and the disciplinary change of placement would exceed 10 school days in a row, school personnel may apply the disciplinary procedures to that child with a disability in the same manner and for the same duration as it would to children without disabilities, except that the school must provide services to that child as described below under Services.  The child’s CSE or CPSE determines the IAES for such services.

Services

The services that must be provided to a child with a disability who has been removed from the child’s current placement may be provided in an IAES.

A school district is only required to provide services to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if it provides services to a child without disabilities who has been similarly removed.

In New York State, the school district must provide alternative instruction to a student with a disability who has been suspended for less than 10 days in a school year if the student is of compulsory school age. If the student is not of compulsory school age, alternative instruction must be provided if these services are provided to nondisabled students.

The education service requirements for students with disabilities during the first 10 days of suspension in a school year are the same as they are for nondisabled students. In New York State, alternative instruction must be provided for a minimum of one hour daily for an elementary student and two hours daily for a secondary student. If a student who is not of compulsory school age is suspended, the school district is not required to provide the student with the alternative instruction unless they provide this instruction to nondisabled students.

A child with a disability who is removed from the child’s current placement for more than 10 school days must:

1.    continue to receive educational services, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and

2.    receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not happen again.   

After a child with a disability has been removed from his or her current placement for 10 school days in that same school year, and if the current removal is for 10 school days in a row or less and if the removal is not a change of placement (see definition below), then school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

If the removal is a change of placement (see definition below), the child’s CSE or CPSE determines the appropriate services to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

Manifestation determination

Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct (except for a removal that is for 10 school days in a row or less and not a change of placement), the school district, the parent, and relevant members of the CSE or CPSE (as determined by the parent and the school district) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine:

1.    if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

2.    if the conduct in question was the direct result of the school district’s failure to implement the child's IEP.

If the school district, the parent, and relevant members of the child’s CSE or CPSE determine that either of those conditions was met, the conduct must be determined to be a manifestation of the child’s disability.

If the school district, the parent, and relevant members of the child’s CSE or CPSE determine that the conduct in question was the direct result of the school district’s failure to implement the IEP, the school district must take immediate action to remedy those deficiencies.

Determination that behavior was a manifestation of the child's disability

If the school district, the parent, and relevant members of the CSE or CPSE determine that the conduct was a manifestation of the child’s disability, the CSE or CPSE must either:

1.    conduct a functional behavioral assessment, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

2.    if a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior.

Except as described below under the sub-heading Special circumstances, the school district must return the child to the placement from which the child was removed, unless the parent and the district agree to a change of placement as part of the modification of the behavioral intervention plan.

Special circumstances

Whether or not the behavior was a manifestation of the child’s disability, school personnel may remove a student to an IAES (determined by the child’s CSE or CPSE) for up to 45 school days, if the child:

1.    carries a weapon (see the definition below) to school or has a weapon at school, on school premises, or at a school function under the jurisdiction of NYSED or a school district;

2.    knowingly has or uses illegal drugs (see the definition below), or sells or solicits the sale of a controlled substance, (see the definition below), while at school, on school premises, or at a school function under the jurisdiction of NYSED or a school district; or

3.    has inflicted serious bodily injury (see the definition below) upon another person while at school, on school premises, or at a school function under the jurisdiction of NYSED or a school district.

Definitions

Controlled substance means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)).

Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of federal law.

Serious bodily injury has the meaning given the term ‘‘serious bodily injury’’ under paragraph (3) of subsection (h) of section 1365 of title 18, United States Code.

Weapon has the meaning given the term ‘‘dangerous weapon’’ under paragraph (2) of the first subsection (g) of section 930 of title 18, United States Code. 

Notification

On the date it makes the decision to make a removal that is a change of placement of the child because of a violation of a code of student conduct, the school district must notify the parents of that decision, and provide the parents with a procedural safeguards notice.

Change of Placement Because of Disciplinary Removals

34 CFR section 300.536; 8 NYCRR section 201.2

A removal of a child with a disability from the child’s current educational placement is a change of placement if:

1.    the removal is for more than 10 school days in a row; or

2.    the child has been subjected to a series of removals that constitute a pattern because:

a.    the series of removals total more than 10 school days in a school year;

b.    the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals;

c.    of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another; and

Whether a pattern of removals constitutes a change of placement is determined on a case-by-case basis by the school district and, if challenged, is subject to review through due process and judicial proceedings.

Determination of Setting

34 CFR section 300.531; 8 NYCRR section 201.10

The CSE or CPSE must determine the IAES for removals that are changes of placement, and removals under the headings Additional authority and Special circumstances, above.

Appeal

34 CFR section 300.532; 8 NYCRR section 201.11

General

The parent of a child with a disability may file a due process complaint (see above) to request a due process hearing if he or she disagrees with:

1.    any decision regarding placement made under these discipline provisions; or

2.    the manifestation determination described above.

The school district may file a due process complaint (see above) to request a due process hearing if it believes that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

Authority of impartial hearing officer

A hearing officer that meets the requirements described under the sub-heading Impartial Hearing Officer must conduct the due process hearing and make a decision. The hearing officer may:

1.    return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of the requirements described under the heading Authority of School Personnel, or that the child’s behavior was a manifestation of the child’s disability; or

2.    order a change of placement of the child with a disability to an appropriate IAES for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

These hearing procedures may be repeated, if the school district believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

Whenever a parent or a school district files a due process complaint to request such a hearing, a hearing must be held that meets the requirements described under the headings Due Process Complaint Procedures, Hearings on Due Process Complaints, and Appeal of decisions; impartial review except as follows:

1.    The school district must arrange for an expedited due process hearing, which must occur within 20 school days of the date the hearing is requested and must result in a determination within 10 school days after the hearing.

2.    Unless the parents and the school district agree in writing to waive the meeting, or agree to use mediation, a resolution meeting must occur within seven calendar days of receiving notice of the due process complaint. The hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 calendar days of receipt of the due process complaint.

A party may appeal the decision in an expedited due process hearing in the same way as they may for decisions in other due process hearings (see Appeals, above).

Placement During Appeals

34 CFR section 300.533; 8 NYCRR section 201.10

When, as described above, the parent or school district has filed a due process complaint related to disciplinary matters, the child must (unless the parent and NYSED or school district agree otherwise) remain in IAES pending the decision of the IHO, or until the expiration of the time period of removal as provided for and described under the heading Authority of School Personnel, whichever occurs first.

Protections for Children Not Yet Eligible for Special Education and Related Services

34 CFR section 300.534; 8 NYCRR section 201.5

General

If a child has not been determined eligible for special education and related services and violates a code of student conduct, but the school district had knowledge (as determined below) before the behavior that brought about the disciplinary action occurred, that the child was a child with a disability, then the child may assert any of the protections described in this notice.

Basis of knowledge for disciplinary matters

A school district must be deemed to have knowledge that a child is a child with a disability if, before the behavior that brought about the disciplinary action occurred:

1.    the parent of the child expressed concern in writing that the child is in need of special education and related services to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child;

2.    the parent requested an evaluation related to eligibility for special education and related services under Part B of IDEA; or

3.    the child’s teacher, or other school district personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the school district’s director of special education or to other supervisory personnel of the school district.

Exception

A school district would not be deemed to have such knowledge if:

1.    the child’s parent has not allowed an evaluation of the child or refused special education services; or

2.    the child has been evaluated and determined to not be a child with a disability under Part B of IDEA.

Conditions that apply if there is no basis of knowledge

If prior to taking disciplinary measures against the child, a school district does not have knowledge that a child is a child with a disability, as described above under the sub-headings Basis of knowledge for disciplinary matters and Exception, the child may be subjected to the disciplinary measures that are applied to children without disabilities who engaged in comparable behaviors.

However, if a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures, the evaluation must be conducted in an expedited manner.

Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.

If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the school district, and information provided by the parents, the school district must provide special education and related services in accordance with Part B of IDEA, including the disciplinary requirements described above.

Referral to and Action by Law Enforcement and Judicial Authorities

34 CFR section 300.535

Part B of IDEA does not:

1.    prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities; or

2.    prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and State law to crimes committed by a child with a disability.

Transmittal of records

If a school district reports a crime committed by a child with a disability, the school district:

1.    must ensure that copies of the child’s special education and disciplinary records are transmitted for consideration by the authorities to whom the agency reports the crime; and

2.    may transmit copies of the child’s special education and disciplinary records only to the extent permitted by FERPA.

Requirements for Unilateral Placement by Parents of Children in Private Schools at Public Expense





Quick Links

NY State Quick Links

NY State Part 200 Regulations.
NY State Procedural Safeguards Notice - Revised 7/13
NY State Procedural Safeguards Notice (Spanish Version) - Revised 7/13
The NY State Procedural Safeguard Notice is also available in Chinese, Korean, Russian, and Haitian Creole. Click this link for those notices.

Federal Quick Links

Family Educational Rights and Privacy Act (FERPA)
Federal Regulations to Implement IDEA
Section 504 of the Rehabilitation Act of 1973

Latest Changes in the Law/Court Cases/Special Education Policy Memorandum

New Regulations from NY State on Impartial Hearings

2/7/14
A memorandum is now available on new regulatory requirements related to Special Education Impartial Due Process Hearings which became effective February 1, 2014. This memorandum is to inform you that the Board of Regents has approved for permanent adoption the amendment of sections 200.1, 200.5 and 200.16 of the Regulations of the Commissioner of Education. The amendment addresses seven issues relating to special education impartial hearings:
Click this link for more information.


New Guidance from NY State on Alternative Assessments and the Common Core

2/6/14
Starting with the 2013-14 administration, the New York State Alternate Assessment (NYSAA) measures the Common Core Learning Standards in English language arts (ELA) and Mathematics, and NYS Learning Standards in Science and Social Studies. These standards are measured through a datafolio style assessment with less depth, breadth, and complexity than the regular assessment administered to all students. The Office of State Assessment has provided sample tasks in ELA and mathematics that demonstrate how student work can be designed to assess an Extension.
Click this link for more information.


Appeals Court Backs Parents in Special Education Placement

1/8/14
A federal appeals court has ruled that a Colorado public school district must pay for a student with learning disabilities and mental health issues to attend an out-of-state treatment facility. In the case Jefferson County School District v. Elizabeth E., the student, Elizabeth, attended public school and later private school at public expense in Colorado. She received special education under the Individuals with Disabilities Education Act. After Elizabeth’s mental health became a serious issue, her parents sent her for treatment and education at Innercept, a residential facility in Idaho. In response, the school district told Elizabeth’s family it would not reimburse them for tuition at Innercept.
Elizabeth’s parents asked for a due process hearing and won. The school district filed a lawsuit. The case reached the federal appeals court and Elizabeth’s parents won again. The court said that the school had to reimburse the family for the cost of Elizabeth’s placement. Importantly, the court said that Elizabeth needed mental health services so she could benefit from instruction. The appeals court also said that private school placements can be out-of-state.
Click this link to read more about the case.
Click this link to read a pdf of the Appeals decision

US Office of Civil Rights Policy Memorandum on Retaliation

6/30/13
The US Department of Education Office of Civil Rights (OCR) on 4/24/13 published a Dear Colleague letter providing guidance on the issue of retaliation. OCR reports that they receive a significant number of claims every year about individuals who have raised the issue of a violation of an individuals civil rights who are then retaliated against by the public entity. The letter states that such retaliation is illegal and that OCR will follow-up on such issues to ensure that any public agency found to have retaliated with redress the issue and then ensure it does not happen again. Redress can also include monetary redress.
Click this link to read the Dear Colleague letter.


US Supreme Court refuses to take NY City Special Education Placement case

6/18/13
The U.S. Supreme Court declined this week to weigh in on a student placement case in NYC. The parents had disagreed with the School's placement of their child, in part because the District had not given them any other options to consider. They then made a unilateral placement of their child to another program. By not taking the case, the Supreme Court let stand a federal appeals court ruling last year that fount that the school district “may select the specific school without the advice of the parents so long as it conforms to the program offered in the IEP." This does not mean that parents do not have the right to make unilateral placements of thier children. It does reinforce the case that to have a District pay for the program, the program that the District has offered must not be an appropriate program to begin with.
Click this link to read more about the case.
For more information, click this link.


Amendment to Section 200.2 through 200.5 of the Regulations of the Commissioner of Education Relating to Membership of the Committee on Special Education (CSE)

As of 1/2/13 the NY State Regents changed the membership of the CSE. NY State law previously required Districts to have a parent member present at CSE meetings. The Reason was so that parents could have another parent of a child with a disability present at the CSE meeting. As of 1/2/13 Districts in NY State are no longer to make a parent representative available. Parents can still have a parent represenative present, if they request that they be present 72 hours in advance.
This change does not impact Committees on Preschool Special Education.
Specifically Section 200.3(a)(1)(viii) as amended:
200.3(a)(1)(viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years[. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting], if specifically requested in writing by the parent of the student, the student or by a member of the committee at least 72 hours prior to the meeting…
Sections 200.5(c)(2)(iv) and (v) as amended:
200.5(c)(2)(iv) for meetings of the committee on special education, inform the parent(s) of his or her right to request, in writing at least 72 hours before the meeting, the presence of the school physician member and an additional parent member of the committee on special education at any meeting of such committee pursuant to section 4402(1)(b) of the Education Law and include a statement, prepared by the State Education Department, explaining the role of having the additional parent member attend the meeting…
200.5(c)(2)(v) for meetings of the committee on preschool special education, inform the parent(s) of his or her right to decline, in writing, the participation of the additional parent member at any meeting of such committee pursuant to section [4402(1)(b)] 4410(3)(a)(1)(v) of the Education Law…
Notes:
Click this link to read more from the NY State Department of Education on this change to the Regulations.

Click this link to download a pdf of the Amendment to the Regulations of the Commissioner.


Amendment to Section 100.5 of the Regulations of the Commissioner of Education Relating to the Safety Net for Students with Disabilities to Graduate with a Local High School Diploma

The NY State Regents in an emergency meeting amended NY State Education Law and lowered the standards for students with IEP's and/or with Section 504 Plans (and who are recommended for the safety net as part of their 504 Plan) to graduate with Local Diplomas.
Regular education students and students with 504 Plans who are not eligible for the Safety Net must pass Regent exams with grades of 65 or above. Students with IEP's or students with 504 Plans eligible for the Safety Net have been able to pass with grades of 55 or above. With this emergency act NY State law now allows students with disabilities or 504 plans who are eligible to graduate with the Compensatory Education Safety Net (CESN)can now graduate with Regents grades of 45 or above, if the following criteria are met:
Regents examinations required to earn a regular high school diploma include Comprehensive English; Mathematics; Global History and Geography; Science; and U.S. History and Government.

Click this link to read more from the NY State Department of Education on this change to the Regulations.

Click this link to download a pdf of the Amendment to the Regulations of the Commissioner.

Click this link to read the Checklist for eligibility for the Compensatory Education Safety Net.

Click this link to read Compensatory Education Safety Net Examples.

Click this link to read a Frequently Asked Questions (FAQ) on Graduation options for Students with Disabilities.

9th Circuit rules Parents not to blame for failure of District to Provide FAPE

In a case from Alaska, the 9th Circuit Appeals Court ruled that parents were not the cause of the Anchorage School Districts's (ASD) failure to provide their child with FAPE. The ASD had appealed an Impartial Hearing Officer's ruling that they had failed to provide FAPE. The District Court ruled for the ASD and reversed the IH Officer's ruling. The parents appealed to the 9th Circuit who rule that the IH Officer was correct and ordered the District to reimburse the parent for tutoring costs.
In this case the parents had zealously fought for their child's education. Their child had been "diagnosed with high-functioning autism, pervasive development delay, and sensory integration dysfunction." At the final meeting the parents had submitted numerous changes to the proposed Draft IEP. When the District failed to adopt those changes, the parents left the CSE meeting. The District then argued that they did not finalize the IEP due to these actions, and that therefore the parents were at fault for the District failing to write the IEP. The Court found that the ASD had two options:
(1) continue working with M.P.’s parents in order to develop a mutually acceptable IEP, or
(2) unilaterally revise the IEP and then file an administrative complaint to obtain approval of the proposed IEP.

Click this link to download a pdf of the Court's Decision.
Click this link to read more about the case.

NY State Autism Insurance Mandate Goes into Effect 11/1/12

The New York State Autism mandate goes into effect November 1, 2012. As a result, self-funded employer groups that choose to participate will need to make changes to their benefit plans during renewal and then communicate those changes to their members.
Click this link to download a pdf of the Excellus Insurance information for Employers.
Click this link to read more about the law.

NY State Policy Memorandum on Skills and Achievement Commencement Credential for Students with Severe Disabilities

The NY State Policy Memorandum outlines the changes to Sections 100.5, 100.6, 100.9 and 200.5 of the Regulations of the Commissioner of Education to replace, beginning with the 2013-14 school year and thereafter, the New York State (NYS) individualized education program (IEP) diploma with a Skills and Achievement Commencement Credential for students with severe disabilities who are eligible to take the New York State Alternate Assessment (NYSAA).
Click this link to download a pdf of the memorandum from April 2012

Federal Court Says Out-of-State Move Doesn't Absolve District of Special Education Obligations to provide Compensatory Education Services

10/3/12
A federal court of appeals has ruled that when a student with disabilities moves out of state, that doesn't absolve a school district from providing compensatory education services. In a ruling this month in D.F. vs. Collingswood Borough Board of Education, the Third Circuit Court of Appeals reversed a previous ruling that excused the New Jersey school district from making up for special education services a student missed when enrolled in that district.
Click this link to read more about the case.

ADA, 504 Plans, and the IDEA: Feds offer guidance on the 2008 ADA amendments

10/3/12
When working with preschool, elementary, middle and high schools with students with disabilities, we most often talk about the IDEA, CSEs, and IEPs or possibly Section 504. It is not often we talk about the biggie the American with Disabilities Act (ADA). However that has changed somewhat because in 2008 Congress amended the ADA and changed the law. The new law directly effects students with disabilities particularly students who would, could, or should receive reasonable accommodations through a Section 504 Plan. As with all laws it takes awhile for the federal government to write the regulations for how that law will be enacted. The regulations came out in January of 2012. The amendments are important and when followed will make it easier for children with disabilities to receive Section 504 supports.
Click this link to read the Federal guidance.
Click this link to read the questions and answer section of the guidance.

NY State Policy Memorandum on Placements of Students with Disabilities in Approved Out-of-State Residential Schools and Emergency Interim Placements

This memorandum provides updated procedures, forms and policy, relating to a school district’s responsibility to submit timely and complete applications for approval of State reimbursement of tuition costs for placements of students with disabilities in out-of-State approved residential programs and emergency interim placements.
Click this link to download a pdf of the memorandum from March 2012

Wendy's Restaurant Sued by EEOC for Disability Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against CTW L.L.C., a Wendy's franchisee, for denying employment to a job applicant because he has a disability. The applicant had worked at another fast food restaurant before, but wasn't hired at Wendy's because of his hearing impairment. Under the Americans with Disabilities Act, employers must provide reasonable accommodations to an employee with a disability, unless it causes significant difficulty or expense for the employer. The ADA also requires companies to treat people with disabilities the same as all other applicants for a job.
Click this link to read more about the suit


Supreme Court asks White House for opinion on a Special Education Case

In the case Compton Unified School District v. Addison the core feature is whether a parent of a disabled child have the right to a hearing to challenge the school officials' failure to arrange an educational program for the child, if officials are only negligent and did not act intentionally. In this case two Appeal's Courts have sided with the parent and found that the District failed to provide child find. The courts have ordered compensatory education to the family. The District is arguing that they do not have to provide these services as they were only negligent in providing FAPE.
Click this link to read more about the settlement.

Justice Department settles ADA claim against U.S. Medical Licensing Examination

The Justice Department used a high-profile case to strongly signal its intention to protect the rights of disabled test takers. The settlement against the National Board of Medical Examiners found that they twice denied an otherwise qualified applicant additional time and a separate testing location that he needed to complete the U.S. Medical Licensing Examination. The case is important in that even though the new regulations under the ADAA (Americans with Disabilities Act Ammendements) will go into effect within the next few weeks the Justice Department still pursued the case.
Click this link to read more about the settlement. Click on this link to download the settlement agreement.
Click on this link to read about the ADAA.

Pennsylvania Federal Judge rules that a fear of Bullying is not a factor in School Placement under IDEA

In a decision that was to be expected, a Federal Judge in Pennsylvania ruled against the parents of a child with special needs when they asked the School District to pay for his placement in a private educational program. The parents unilaterally placed the child in a private program as they feared the child would be bullied if he was in the public school. The judge ruled that the fear of bullying was not enough of a factor that the District would have to pay for the program. There are several key factors in this decision. The first is that no actual bullying had occurred in the District's proposed program. If actual bullying had occurred the case would have been different. A second factors is that the parents did a unilateral placement (placed the student first and then asked the District to pay for it.) While this is allowed, and parents can win such a case, it changes the legal burden of proof from the District to the parents.
Click this link to read more about the case.

US Department of Justice has fined Delta Airlines $2 million for ADA violations

The U.S. Department of Transportation (DOT) has fined Delta Airlines $2 million for violating rules protecting air travelers with disabilities. This is the largest civil penalty ever assessed against an airline in a non-safety-related case by the DOT. Numerous violations of the requirements to provide assistance getting on and off airplanes and to respond to, and keep a record of, disability-related complaints were found as part of the investigation.
To read the DOJ press release, click this link.

ADAA Expanding work opportunities for individuals with significant disabilities

The Americans with Disabilities Act of 1990 (ADA) was passed in 1990 and has opened the doors for millions of people with disabilities to participate meaningfully in society in such areas as employment, education, health care, housing, voting and many other activities. Beginning in 1999, however, a series of Supreme Court decisions limited the ADA's effectiveness by interpreting its protections to have a very narrow reach. Lower courts followed suit, concluding that the ADA's protections were unavailable to people with a wide variety of impairments, including many people with diabetes, epilepsy, cancer, heart disease and mental illnesses. In response to these decisions, Congress amended the ADA in 2008 to make it clear that they had always intended individuals with disabilities to have equal access. This blog post by Chai Feldblum, Commissioner, U.S. Equal Employment Opportunity Commission explores the role of the ADAA in ensuring opportunities for individuals with significant disabilities including, intellectual disabilities, pervasive developmental disorders.
Click this link to read the blog article.

Justice Department Reaches Americans with Disabilities Act Settlement with H&R Block

The U.S. Department of Justice has announced an agreement under the ADA with HRB Tax Group Inc., H&R Block Tax Services LLC and HRB Advance LLC (H&R Block) to ensure effective communication with individuals who are deaf or hard of hearing when providing income tax preparation services and courses. The settlement agreement requires, among other things, that H&R Block provide auxiliary aids and services, including sign language interpreter services.
To read the Justice Department press release click on this link.

Large Network of Private Schools Pays $215,000 to Settle Lawsuit Alleging Discrimination against Children with Disabilities

The U.S. Department of Justice Department (DOJ) has announced the settlement of a lawsuit filed to enforce the Americans with Disabilities Act (ADA) against Nobel Learning Communities, Inc. (NLC). NLC runs a nationwide network of more than 180 preschools, elementary schools and secondary schools. DOJ alleged that NLC violated Title III of the ADA by excluding from its programs children with disabilities, including some children with autism spectrum disorder, Down syndrome, ADHD,and global developmental delays.
To read more click this link.
To read an additional story click this link.

U.S. Department of Justice Settles Remainder of Voter Registration Case with State of New York for Violating Rights of Students with Disabilities

7/20/10
The Justice Department today announced a court-approved consent decree which resolves a lawsuit against the state of New York and its public university systems for their failure to provide voter registration services at offices serving students with disabilities at each public university and college campus in New York State.

U.S. Department of Justice and the U.S. Department of Education warn colleges and universities about requiring the use of non accessible reading devices such as the Kindle

7/4/10
The U.S. Department of Justice and the U.S. Department of Education have sent a letter to colleges and universities about the use of electronic book readers that are not accessible to students who are blind or have low vision. The letter points out a serious problem with some of these devices that do not have an accessible text-to-speech function. Requiring use of an emerging technology in a classroom environment when that technology is inaccessible to an entire population of individuals with disabilities--individuals with visual disabilities--may constitute discrimination prohibited by the Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504).

The letter specifically cites a case settled by these departments with colleges that had required the use of the Kindle. A device that does not have text-to-speech capabilities.

While not directly addressing elementary and secondary education, because both laws also apply to public schools it is highly probable that the same standard would be held for these institutions.

To read the letter click on this link.

Court Ruling Holds School Liable for Compensatory Education

4/21/10
A Court Ruling in California ruled that Parents can sue a School District for not performing Child Find and classifying a high school student as a child with an educational handicapping condition. The case involves a 10th student who failed all of her classes in 10th grade. The school counselor is reported to have suggested an evaluation be completed but the school refused. The child was finally classified in 11th grade. Parents sued the school district for compensatory education in the form of private tutoring and the Court of Appeals ordered that tutoring be provided to make up for the services the student should have received.

11/20/09
Settlement Agreement Between the United States of American and Wal-Mart Stores, Inc. Under Title III of the American with Disabilities Act (ADA)
The U.S. Department of Justice determined that under title III of the ADA Wal-Mart discriminated against people with disabilities by failing to make reasonable modifications to rules, policies and procedures at Wal-Mart stores nationwide. In particular, Wal-Mart denied equal access to its stores for people with disabilities who use service animals, failed to provide disability-related assistance, denied equal access by failing to make reasonable modifications in order to accept payment by people with disabilities at different stores and denied equal access to its services because an individual was deaf and did not have a cellular telephone.

10/29/09
Although this does not effect parents in NY State, it is important to understand how changes in the law are brought about. Parents in Ohio have had a long standing legal case against the State of Ohio, and more specifically the Ohio Department of Education in regards to how the State was administering parts of the federal special education law (IDEA). As part of a consent decree the judge hearing the case has ordered changes in how the Ohio Education Department ensures that local school districts are following the proponents of the IDEA. For more information follow this link.

In June, the Supreme Court issued a Pro-Family decision in Forest Grove School District v. T.A. In this 6-3 decision, the Supreme Court found that the IDEA allows reimbursement for private special education services, even when the child did not previously receive special education services from the public school. For more information follow this link to Wrightslaw.


The Law and Disabilities

There are two primary laws that provide for both accommodations and modifications, and specific services for children presenting with disabilities.  The first is Section 504 of the Rehabilitation Act of 1973. This is a civil rights law that states that children with disabilities can not be discriminated against.  The second is the Individuals with Disability Act (IDEA) which was originally passed as PL 94-142 in 1975. This is an entitlement law that states that children with handicapping conditions are entitled to and must receive a Free and Appropriate Public Education (FAPE).  This is provided through special education and/or related services. 

Without these laws children with disabilities have no right to special services. It is therefore helpful for everyone raising, teaching, or working with these children to know what these laws do and do not provide.

Understanding the Americans with Disabilities Act Amendments Act (ADA) & Section 504 of the Rehabilitation Act

This document for parents from the National Center for Learning Disabilities explains the changes brought about by the ADA and how they apply to Section 504. These changes may impact children with disabilities, including learning disabilities and other conditions such as Attention-Deficit/Hyperactivity Disorder, Aspergers Syndrome, diabetes, asthma and life-threatening food allergies.
This link opens a PDF document.
Click this link to go to the U.S. Department of Justice Americans with Disabilities Act Home Page.
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