The Medicaid in Education website has been updated to include the SSHSP Handbook Update 7.  Please use the below link to access this document.

http://www.oms.nysed.gov/medicaid/news_announcements/SSHSP_Handbook_Update_7_April_2012.pdf

Each state is required to identify in writing to the Secretary of the United States Education Department and local educational agencies located in the state any rule, regulation or policy as a state-imposed requirement that is not required by the Individuals with Disabilities Education Act and federal regulations. The New York State Education Department (NYSED) has taken steps to conduct a comprehensive review of its laws and regulations that apply to the education of students with disabilities.  

More information about this report is located at http://www.p12.nysed.gov/specialed/idea/nyslawanalysis512.htm 

Sections 100.5, 100.6, 100.9 and 200.5 of the Regulations of the Commissioner of Education have been amended to replace, beginning with the 2013-14 school year and thereafter, the New York State 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.

More information and related documents are available at http://www.p12.nysed.gov/specialed/publications/SACCmemo.htm

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The following is a summary of the new regulatory requirements.  A copy of the regulations, as amended, can be found at http://www.regents.nysed.gov/meetings/2012Meetings/March2012/312brca5.pdf

Underlined language is new language. 
Bracketed [   ] language is repealed language.

Section 200.4
Procedures for Referral, Evaluation, Individualized Education Program (IEP) Development, Placement and Review

Timeline for initial evaluations – section 200.4(b)(1)

Section 200.4(b)(1) of the Regulations of the Commissioner of Education has been amended to clarify that the 60-day timeline to complete an evaluation pertains to an initial evaluation of a student suspected of having a disability.

200.4(b) Individual evaluation and reevaluation. (1) Unless a referral for an evaluation submitted by a parent or a school district is withdrawn pursuant to paragraph (a)(7) or (9) of this section, after parental consent has been obtained or a parental refusal to consent is overridden, an individual evaluation of the referred student shall be initiated by a committee on special education.  The initial individual evaluation shall be completed within 60 days of receipt of consent unless extended by mutual agreement of the student’s parents and the CSE pursuant to subparagraph (7)(i) and paragraph (j)(1) of this subdivision…

Individual psychological evaluation – section 200.4(b)(2)

Section 200.4(b)(2) has been amended to repeal the requirement that a school psychologist prepare a written report of his/her determination of the need to administer an individual psychological evaluation for a reevaluation of a student with a disability.

200.4(b)(2) A determination by a school psychologist of the need to administer an  individual psychological evaluation to a student of school age pursuant to Education Law, section 4402(1)(b)(3)(a) and section 200.1(aa) and (bb) of this Part, shall be based upon an assessment conducted by the school psychologist to substantiate his or her determination.  Whenever a school psychologist determines that a psychological evaluation is unnecessary as a component of the initial evaluation, the psychologist shall prepare a written report of such assessment, including a statement of the reasons such evaluation is unnecessary, which shall be reviewed by the committee.

Notes: 

• School psychologists must conduct an assessment to determine the need to administer a psychological evaluation to a school-age student as part of a student’s initial or reevaluation.
• A school psychologist must prepare a written report for consideration by the committee on special education (CSE) when he or she determines that a psychological evaluation is not necessary as a component of a student’s initial evaluation.
• A school psychologist is no longer required to prepare a written report when he or she determines that a psychological evaluation is not a needed component of a student’s reevaluation. 
• A school psychologist’s determination that a psychological evaluation is not necessary as part of a student’s reevaluation must, consistent with federal and State regulations, still continue to be considered by the CSE.  It is the CSE’s decision as to whether the psychological evaluation will be conducted as part of the student’s reevaluation.
• Nothing in the amended regulations would alter the requirement that a psychologist prepare a written report when he/she does conduct an individual psychological evaluation as part of a student’s initial evaluation or reevaluation.

Section 200.4
Educational Programs for Preschool Students with Disabilities

Preschool evaluations – sections 200.16(c), (e) and (f)

Sections 200.16(c),(e) and (f) of the Regulations of the Commissioner of Education have been amended to require that a preschool evaluation be completed within 60 calendar days of a parent’s consent for the evaluation.  The timeline for IEP implementation has not been extended (see 200.16(f) below).   

200.16(c)(2)  Except as provided in section 200.4(b)(7) of this Part, [The] the initial individual evaluation shall be completed within 60 days of receipt of consent to evaluate and conducted in accordance with section 200.4(b) of this Part…

200.16(e) Recommendation. (1) The committee on preschool special education shall [provide a] meet to review the results of the initial evaluation and develop a recommendation [to the board of education] within [30 school days] 60 calendar days of the date of the receipt of consent to evaluate. 

200.16(f) Provision of services for preschool students with disabilities. (1) Upon receipt of the recommendation of the committee, the board of education shall arrange for the preschool student with a disability to receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the committee less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided as soon as possible following development of the IEP, but no later than 30 school days from the recommendation of the committee and within 60 school days from receipt of consent to evaluate…

Notes: 

• Exceptions to the 60 calendar day timeline for preschool initial evaluations would apply if the:
  • student enrolls in a different school after timeframe has begun and the parent and district agree in writing to another timeframe; or
  • parent of the student repeatedly fails or refuses to produce the student for the evaluation.
• The CPSE must meet to review the results of the initial evaluation within 60 calendar days of the parent’s consent to evaluate.

The information about “contracting for services” recently published by NYASP (see NYASP Homepage "Thoughts on eliminating school psych positions) has generated significant discussion.  A number of questions have arisen regarding school districts “contracting” with BOCES for services.  The following information is offered as a guideline.  If you have specific questions about your district, it is best to consult with your local union leaders.

Districts are only allowed to contract out (even with BOCES) when they are unable to provide FAPE or stay within compliance timelines with current available staff.  See Q5 of NYSED Guidelines (http://www.p12.nysed.gov/resources/contractsforinstruction/qa.html ), which in part states:

Where a school district is unable to provide the related services on a student’s individualized education program (“IEP”) in a timely manner through its employees because of shortages of qualified staff or the need to deliver a related service that requires specialized expertise not available from school district employees, the board of education has authority under Education Law §§1604(30), 1709(33), 2503(3), 2554(15)(a) and 4402(2)(b) to enter into contracts with qualified individuals as employees or independent contractors to provide those related services (see also §§1804[1], 1805, 1903[1], 2503[1], 2554[1]). Section 200.6(b)(3) of the Commissioner’s regulations requires that related services be provided by individuals with appropriate certification or license in each area of related service. Consistent with the holding in Appeal of Barker and Pitcher, in order to ensure that such arrangements are not used to circumvent New York State’s teacher tenure laws, a school district must document that it would retain supervisory control over the individual and that, despite reasonable efforts, it has been unable to provide such services by hiring new employees or utilizing existing employees, or through any of the contractual arrangements authorized by Education Law §4401(2), including contracts with other school districts, BOCES, approved state or state-supported schools, and approved private residential and nonresidential schools both inside and outside New York State.

Finally, school districts that, after exhausting the steps outlined above, find it necessary to contract with individuals should do so only for a period of one school year at a time. Before any such contract can be extended, or a new contract entered, school districts must again take reasonable efforts to provide such services as described above.

 From the BOCES Operating and Procedures Handbook (http://www.p12.nysed.gov/mgtserv/boces/handbooks/Handbook5.htm#Contracting_For_Instructional_Services )

There is no general authority for a board of education to contract with an independent contractor for instructional services or specifically for psychological services. In situations in which a school district does not have a school psychologist available for service on the district's committee on Special Education, the board is authorized to contract for such services (Education Law, Section 4402[1][b][1] [a]). However, such authority is limited to a contract with a board of cooperative educational services or another school district, and does not extend to a contract with a private contractor.

However, as noted, they cannot use this contracting to avoid “teacher tenure laws,” by eliminating a position and then “contracting” for the a position of same duties (even with BOCES).  The excessed employee has a right to the position first.