Special Education Process
in New York State
If you are considering special education services for your child or if your child already receives special education services, you should learn as much as you can about the special education system in New York State. You and your child have many rights, but the rules about special education services are complicated.
There are two important documents that every New York State parent become familiar with right away:
Special Education in New York State for Children Ages 3-21, A Parent’s Guide published by the New York State Education Department. You can find this document published at the following web address: www.vesid.nysed.gov/specialed/publications/policy/parentguide.htm
Notice of Procedural Safeguards, Part B, effective Sept. 1, 2007 http://www.vesid.nysed.gov/specialed/publications/policy/psgn807.doc
REGULATIONS OF THE NYS COMMISSIONER OF EDUCATION
Pursuant to Sections 207, 3214, 4403, 4404 and 4410 of the Education Law
PART 200 Students with Disabilities
NYSUT and the New York State PTA also collaborated on : A Guide to Special Education What you need to know about special education for New York state students ages 3-21
WHAT IS SPECIAL EDUCATION?
The federal law governing special education is called the IDEA or the Individuals with Disabilities Education Act. In addition, New York State has laws and policies that you can use to advocate for services for your child.
Special education is commonly thought of as separate classes or separate schools where children are sent. However, special education is not supposed to be about placing children in separate classes and schools. Instead, it is about providing a set of services to meet each child’s unique individual needs. Special Education is a term describing educational services, not an educational setting. Depending on the needs of the child, these services may be provided in the general education setting, in separate settings, or in a combination of the two.
There are significant differences between Section 504 and IDEA. Perhaps the most significant is that Section 504 is is a civil rights law, and IDEA is an educational benefit law. Section 504 is designed to level the playing field for individuals with disabilities. Its purpose is to ensure that individuals with disabilities have the same access to education that individuals without disabilities have. It does this by eliminating barriers that exclude individuals with disabilities from participating in protected activities, including a free and appropriate public education. As an educational benefit law, IDEA offers additional services and protections for those with disabilities that are not offered to those without disabilities.
These laws are also distinguished by the their different eligibility requirements and the benefits they provide. The definition of a disability is much broader under Section 504 than it is under IDEA. All IDEA students are covered by Section 504, where as not all Section 504 students are protected under IDEA. An IEP, which is provided to students covered by IDEA, must be tailored to the child's unique needs and must result in educational benefit. However, a Section 504 Plan provides accommodations based on the child's disability and resulting weaknesses, but does not require academic improvement.
Additionally, fewer procedural safeguards are offered to children and parents under Section 504 than under IDEA. Wrightslaw explains this in greater detail. There is also more information concerning Section 504 here from the US Department of Education, Office for Civil Rights.
WHAT SERVICES, ACCOMMODATIONS AND SUPPORTS ARE AVAILABLE?
The IDEA provides that eligible children with disabilities can receive “special education” and, if needed to benefit from special education, “related services.” Eligible children can also receive a range of other services, defined below. In general, a child with a disability must receive a set of individualized services, tailored to his or her individual needs.
“Special Education” is defined by law as “specially designed instruction” that meets “the unique needs of a child with a disability.” The definition includes instruction in the classroom, at home, and in hospitals and institutions.
“Related services” are services that may be required for some students receiving special education. “Related services” are defined by law as “transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education.”
“Transition services” are activities that help students prepare for life once they are no longer of school age. The types of activities that these services should prepare students for include, but are not limited to, college, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The services provided should include instruction, community experiences, and development of employment or other post-school adult living objectives. Transition services MUST be stated on an IEP by the time a student is 16 years old.
“Supplementary aids and services” are the aids, services and supports that are provided to children with disabilities who are being educated in regular education classes. They are designed to enable those children to be educated to the maximum extent appropriate in the LRE. Examples of supplementary aids and services include assistive technology, one-to-one paraprofessionals, and consultant teachers.
“Testing Accommodations” means that your child may be entitled to certain modifications in the way tests are administered, aids for completing the tests or modifications to the test itself. Some common modifications and accommodations include extra time, having test questions read aloud, testing in a separate location, and use of a calculator.
“Assistive Technology” means equipment, products and services to improve, maintain or increase the functional capabilities of a student with a disability. This must also include services to help a child and/or parent or professionals who work with the child to select or use assistive technology, and must also include training on the technology.
“Transitional Support Services” are temporary services, such as consultation or training, given to a teacher to aid in providing appropriate services to a student as that student moves to a less restrictive environment. These services must be identified on the student’s IEP.
Special education law requires that every student with a disability be educated in the least restrictive environment (LRE) in which they can make meaningful educational progress. To the greatest extent possible, therefore, students with disabilities should be placed in general education classrooms alongside students without disabilities and receive the extra academic and/or behavioral help they need in general education.
The rule of LRE also applies to non-academic and extracurricular activities.
The other educational options for children that will not benefit from being placed in general education classrooms are:
Blended Classrooms : One of the fastest growing practices nationally is the provision of co-teaching, or "blended classrooms". "Integrated co-teaching services" as used in the Regulations of the Commissioner of Education means a general education teacher and a special education teacher jointly providing instruction to a class that includes both students with and students without disabilities to meet the diverse learning needs of all students in a class. The maximum number of students with disabilities receiving integrated co-teaching services in a class shall be determined in accordance with the students’ individual needs as recommended on their IEPs, provided that effective July 1, 2008, the number of students with disabilities in such classes shall not exceed 12 students.
Self Contained Classrooms: A self-contained classroom is one in which the students share similar academic requirements. For example, all the gifted children in a school or school district will be contained in the same classroom. Sometimes the children are all in the same grade level, but other times, particularly when there are a limited number of children with similar educational needs, the classroom may contain children spanning more than one grade level, grades four through six, for example.
12:1:1, 12:1:4 Classrooms: 12:1:1 and 12:1:4 Classrooms or “Special Classes” as defined by the New York State Education Department “a class consisting of students with disabilities who have been grouped together because of similar individual needs for the purpose of being provided specially designed instruction.” 12:1:1 - stands for twelve students, one special education teacher, and one special education teacher assistant. 12:1:4 – stands for twelve students, one special education teacher, and four special education teaching assistants. The number of students in this setting can be less, depending on each child's individual needs as determined by the child's IEP. There may be a 5:1:1 teacher/student ratio, or if needed, a 1:1 ratio if the child needs individual instruction.
Resource Room - “resource room program" means a special education program for a student with a disability registered in either a special class or regular class who is in need of specialized supplementary instruction in an individual or small group setting for a portion of the school day.”
HOW DOES SPECIAL EDUCATION WORK?
Special education is a five-step process. First, a child is referred for an Evaluation. Second, the child is evaluated in all areas of suspected disability. Third, once the evaluation process is completed, a team consisting of the parents, a team of clinicians, and school administrators will decide whether the child is eligible for services (Eligibility). Fourth, if a child is eligible for special education services, the team will develop a plan for services called an Individualized Education Program (IEP). The IEP contains a description of services the child should receive. Fifth, the District offers a school and/or class where the student will attend. (Placement). Parents have the right to view the placement before accepting it.
Every year, the IEP is reviewed to see whether the child is making progress and, if not, to determine whether new services should be provided. Throughout the entire process the parent is supposed to be a key participant.
Because this collaborative process between school personnel and parents does not always work, the laws governing special education provide a number of rights to parents, including notices about almost every decision made about a child, regular progress reports, rights to private evaluations, administrative hearings and mediation to resolve disputes, and special protections for students who are suspended.
STEP 1: Referral
A parent, teacher, administrator, doctor and certain public officials can refer a child to be evaluated for special education services. If you are making a referral on behalf of your child, you should make the referral in writing and save a copy of the letter.
A child should be referred for an evaluation any time the child’s behavior and/or academic performance indicates that the child may have a possible disability. Some signs that a child should be evaluated for a suspected disabilty and may be in need of special education services include: poor school performance (reading, math, spelling, writing, etc.), long-standing behavioral difficulties, school avoidance, and diagnosis of a medical or psychiatric condition.
A child or student can be referred for an evaluation at any point and up until the age of 21.
Agreeing to an evaluation or referral does not mean you have to agree to accept services. You can always refuse services after the evaluation is complete.
STEP 2: Evaluation & Re-Evaluation
Once a referral is made, the district must obtain informed parental consent before starting the evaluation.
A Child Must Be Evaluated in All Areas of Suspected Disability: While you may not know what is important to bring up, if you consent to have your child evaluated, you should request as extensive an evaluation as possible to ensure that your child’s needs have been correctly identified.
Re-evaluation at Least Every 3 Years: A student who is already receiving special education services must be re-evaluated at least once every three years (this is called a “Triennial Evaulation”). Your child might not receive a full set of testing during the Triennial Evaluation. In addition, a parent or a school district can request an evaluation at any time. You do not need to wait for the three years to be up before requesting new evaluations. An evaluation should be requested when a district or parent seeks to change a child’s services or if the child is not making progress.
A set of evaluations usually consists of a psycho-educational evaluation, a social history, and a classroom observation. The CSE may also decide it is necessary to give your child additional evaluations, such as speech and language, occupational therapy and physical therapy evaluations or a functional behavioral assessment (an analysis of the factors that affect your child in the classroom) if behavior is an issue. If you feel your child needs any additional evaluations, you should ask for them. Even though a doctor’s note is not required by the law, your best chance of getting additional evaluations without going to a hearing is to get a letter from your child’s doctor requesting the particular evaluation.
Copies of evaluations: You are entitled to a copy of your child’s full set of evaluations and have the right to review them before the IEP meeting. You should make your request for the evaluations in writing and keep a copy of your request.
Once a parents makes a referral, the district must obtain consent within ten days.
A student must be evaluated within 30 school days of a parent signing a consent form (or within 40 school days after referral, whichever comes first).
If the evaluation or re-evaluation is not conducted in a timely fashion you may be entitled to a private evaluation that will be paid for by the District.
Q & A on the EVALUATION PROCESS
What happens if I do not consent to an evaluation? If a parent does not consent to evaluations, the District cannot evaluate the child unless the school files an impartial hearing against the parent and a hearing officer orders the evaluations. At the impartial hearing, the school must (1) prove that the child needs an evaluation and (2) show that the school offered the child intervention services before requesting evaluations. If the school proves these things, the IHO may order evaluations without a parent’s consent.
Can I take back my consent after I have given it? Yes. You have the right to end the evaluation process at any time by simply writing to the CSE. Once you choose to stop the evaluation process, your child’s case will often close automatically. The CSE does, however, have the option of requesting an impartial hearing and asking the hearing officer to order the evaluations without your consent. .
Can I Just Ignore the CSE If I Decide I Don’t Want an Evaluation? Ignoring the CSE will often cause problems in the future. While the CSE cannot evaluate your child without your written consent, sometimes if you ignore a request by the CSE they can make changes to your child’s IEP or placement without your consent. You should always respond to requests from the CSE and send all correspondence by certified mail return receipt requested, by fax (keep the receipt as proof), or by hand delivery (and make sure your copy is stamped received by a CSE / school official).
Can I Give an Outside or Private Evaluation to the CSE? CSEs will usually accept a private (also called independent) evaluation in place of CSE evaluations. While the CSE may conduct evaluations in addition to your private evaluation, CSEs must consider all information about the student.
What Happens If I Want a Private Evaluation and Can’t Afford One or I am dissatisfied with the CSE’s evaluation?
The law says that a parent can request that the district pay for a private evaluation if s/he is not satisfied with the evaluation conducted by the CSE (or the school). You should make your request in writing to the CSE chairperson and your child’s principal. Once you request the evaluation, the district must either request an impartial hearing or make sure that the independent evaluation is completed. If the district requests an impartial hearing, it must prove that its evaluation is appropriate. Often, a CSE will take no action when a parent makes a request. If this happens, you can request a hearing to force the CSE to comply with their obligation to pay for the evaluation(s).
In addition to asking the CSE to pay for the evaluation, you can also try to get evaluations by using insurance coverage -- most insurance companies, including Medicaid, often cover educational, psychological, and other evaluations as medical expenses.
STEP 3: ELIGIBILITY
To get special education services, an IEP team must classify the child as falling into one of thirteen different classifications listed in the federal law. However, a child does not need a medical or psychiatric diagnosis to be classified for purposes of getting special education services. The 13 classifications are:
autism, deafness, deaf-blindness, emotional disturbance, hearing impairment, learning disability (Dyslexia falls under learning disability), mental retardation, multiple disabilities, orthopedic impairment, other-health impairment, speech or language impairment, traumatic brain injury or visual impairment.
After an initial evaluation, the IEP team must determine what the child’s classification will be. As a parent, your opinion about the classification that will be given to your child should be considered during the IEP team meeting.
Your child’s services should not be limited by his or her classification. Your child has the right to services s/he needs to meet his or her individual needs, not services based on a label given to your child. Although Districts usually do not give children more than one classification, it is possible for a child to fit into two or more classifications under the IDEA.
STEP 4: IEP DEVELOPMENT
Your child’s IEP is a very important document. It is the plan that outlines your child’s needs and all the services your child is entitled to receive. The IEP is supposed to paint an accurate picture of your child’s strengths as well as the ways in which your child’s disability affects his or her ability to learn in school.
As a parent you are AN ESSENTIAL component of the IEP team and you should have the opportunity to voice your opinion and be an equal participant in the decision-making with the other team members. Other required team members include a special education and a general education teacher (at least one, and sometimes both, of these are required to be your child’s teacher), a district representative, and someone who can interpret the evaluations. Depending on the type of review, additional members may also be required to attend.
The LAW says the IEP is supposed to contain the following things:
Preparing for an IEP Meeting
Before your IEP review, you should ensure that you have a copy of and have read and understand all of your child’s evaluations, observations and progress reports. You may want to mark relevant parts of those documents that you wish to bring to the attention of the team during the meeting. You should try to familiarize yourself with the nature of your child’s disability and how it affects him or her in terms of school performance, what your child’s performance levels are (academic, social, emotional, physical, etc.) and the extent to which that performance differs from what is expected to meet academic and non-academic standards. You will also want to familiarize yourself with the Districts’s continuum. You can also ask any service providers, teachers, or anyone else who knows your child and has relevant information to participate in the meeting, especially if you think that you and the IEP team may disagree.
STEP 5: PLACEMENT
The federal law states that placement decisions are to be made every year and have to be based on your child’s IEP. The decision of where to place your child should be made by “a group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.”
Placements must be “as close as possible to the child's home.” In fact, the child should attend the school “he or she would attend if non-disabled,” unless the IEP requires some other placement.
Within 30 school days from the date of the CSE meeting (or 60 school days from receiving your consent to evaluate your child), the school district must offer an appropriate placement.
What rights do I have if the District wants to change my child’s school or class or services but I don’t want to make the change?
Often a school will take the first step to try to change a child’s IEP, class or school. School officials can’t make most changes until after they have an IEP meeting. Prior to making any change, a parent is supposed to be notified in writing about the proposed change. If you disagree with a proposed change, you can request a new CSE review or mediation or file for a hearing.
Right to transportation: Transportation is a related service that should be included in a child’s IEP. Special education students who are not in special education classes might be eligible for transportation, depending on their individual needs. In these situations, you most likely will need to show why the child needs transportaion. If the child has any special transportation requirements (like an air-conditioned bus, limits on the time for the bus ride or a wheel-chair lift), these should be included on the IEP.
DUE PROCESS RIGHTS
The special education laws give parents many rights. The following is only a summary of some of your Due Process Rights as a parent:
Right to Get Written Notice Before the District Proposes to Change Your Child’s Placement, IEP or Classification
Written “Prior Notice” must be provided to a parent a “reasonable time” before a district “propose[s] to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child” or “refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child.
RIGHT TO PROCEDURAL SAFEGUARDS
A copy of the “Procedural Safeguards” must be provided to every parent when their child is referred for special education for the first time, any time their child is re-evaluated and before an impartial hearing. The procedural safeguards notice must include “a full explanation” of all the safeguards in the IDEA concerning disciplinary procedures, confidentiality of records and information, and the state complaint procedures relating to all of the due process rights of the IDEA.
Impartial Hearing before an Independent Hearing Officer
If there is a disagreement between the parent and the school district about a recommendation, either side may request an impartial hearing. An Impartial Hearing is held before an Impartial Hearing Officer (IHO) who acts as a judge. The IHO is an independent decision maker who is not a Department of Education employee. The IHO has the authority to decide what is appropriate after hearing testimony and receiving evidence from both the parent and the school district.
An IHO decision is binding (the CSE and the parent must follow the decision, unless either side appeals). Because a hearing is a formal process, parents often bring an advocate or attorney to represent them at the hearing.
To file a hearing, you can submit a letter to the impartial hearing office requesting a hearing or you can use a form found in the Parent’s Guide (May 2002 edition) at pages 35-36. At a minimum, the request should include the child’s name, date of birth, his or her NYC ID number, the name and region number of the school s/he attends, why you are requesting the hearing and what result you would like from the hearing. When writing this request, you should be very specific as to the relief that you are requesting.
New York State Regulations require that a hearing be scheduled within 14 days from your request, and that you receive a decision within 45 days from your request.
The parent or the District can appeal the hearing officer’s decision to the New York State Office of State Review. To get information on appeals, you can visit www.sro.nysed.gov.
Right to Raise Your Complaints in Mediation
Mediation is a meeting between the parent and a CSE representative, assisted by an outside mediator. The mediator is trained to help the parent and the CSE reach an agreement about placement and services that satisfies everyone. The mediator is not a judge. If both sides reach an agreement, the agreement must be honored; it becomes part of the IEP. If no one agrees, then no binding decision exists. Parents should request mediation from the CSE chair, who usually will agree to schedule a mediation, but who can also refuse to go to mediation. Parents still have a right to ask for an impartial hearing, even after mediation.
Right to Keep Your Child in His or Her Current Placement During the Time You are in Mediation or a Hearing
While the parent is exercising his/her due process rights the student’s placement does not change (unless the parent and the school district both agree to a different placement). This right for the child to remain in the current placement until a final decision is reached or legal proceedings are finished is called by any of these three terms: “stay put,” “pendency,” or “status quo.” If the District refuses to keep your child in the current placement or return him or her to their pendency placement, you can ask the hearing officer to order them to do so.
Right to Send a Complaint to the New York State Education Department
The New York State Education Department (NYSED) will accept complaints from parents who claim that the District violated any special education law or regulation of the state or the IDEA.
If NYSED finds that the District violated the law or regulation, it may provide technical assistance to the District and require the District to correct the violation. If NYSED finds the District failed to provide services to your child, it can direct remediation of the denial of services, including, awarding of monetary reimbursement or other corrective action appropriate to your child’s needs.
The timeline for resolving this type of complaint is sixty days.
PRIVATE SCHOOL TUITION
Private School Reimbursement Through a Hearing
Where a parent can prove that the District failed to provide a child with timely “free appropriate public education” (FAPE) a parent may be able to win payment for tuition at a private day or residential school (including schools that are not approved by NYSED). In order to obtain tuition payment this way, a parent has to file for an impartial hearing and satisfy certain requirements of proof. Since these are difficult cases, it is often advisable to have an advocate or attorney advise and/or represent you.
COMPENSATORY EDUCATION OR MAKE-UP SERVICES
If your child did not get the services s/he was supposed to receive, your child may be entitled to “compensatory services.” To obtain those services, you will generally need to request a hearing or make a complaint to NYSED. Often parents whose children have not received related services can win make-up services. Children who missed school can often win private tutoring services. Since these are difficult cases, it is often advisable to have an advocate or attorney advise and/or represent you.
DECERTIFICATION / DECLASSIFICATION
Decertification (or declassification) technically means a child will no longer be receiving special education services because he or she does not need those services any longer. To actually decertify a child from special education, a full series of evaluations and provision of transition services are required.
THE ESSENTIALS OF ADVOCACY
The Essentials of Advocacy
USDOE - IDEA Site - (includes Part 300 of the Code of Federal Regulations)
New York State Education Department
Office of Vocational and Educational Services for Individuals with Disabilities (VESID) Special-Education
Parts 200 and 201 of the Regulations of the Commissioner of Education
VESID Special Education Quality Assurance Regional Offices
Location of Offices
VESID - Special Education Quality Assurance Regional Offices:
NYS Education Department
VESID Special Education Quality Assurance
The Kellum Educational Center
887 Kellum Street
Lindenhurst, NY 11757
(631) 884-8540 (fax)