N.Y. Comp. Codes R. & Regs. tit. 8 § 200.16

Current through Register Vol. 46, No. 45, November 2, 2024

Section 200.16 - Educational programs for preschool students with disabilities

Educational programs and services for preschool students with disabilities, as defined in section 200.1(mm) of this Part, shall be provided in accordance with this section, and those other applicable provisions of this Part that are not inconsistent with this section. Where other provisions of this Part are made applicable to preschool students with disabilities, committee on special education shall mean a committee on preschool special education; student shall mean a preschool student with a disability; and programs shall mean preschool programs.

(a)Eligibility.

A preschool student with a disability shall be eligible for special education services and programs pursuant to section 4410 of the Education Law provided that the student has a disability as defined in section 200.1(mm) of this Part.

(b)

(1) Referral. Referral.

(i) A preschool student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on preschool special education. Such referral may be made by the persons specified in section 200.4(a)(1) of this Part.

(ii) If a referral is received by a professional staff member of the school district, it shall be forwarded to the chairperson of the committee on preschool special education immediately upon its receipt by such staff member.

(iii) A referral shall specify the extent to which the preschool student has received any services prior to referral.

(iv) A committee chairperson who receives a referral shall immediately notify the parent pursuant to paragraphs (h)(1) and (2) of this section that a referral has been received and shall request consent for evaluation of the preschool student.

(v) In the event that consent for an individual evaluation is not provided, the committee shall implement the district's practices and procedures for the purpose of ensuring that parents have received and understand the request for consent.

(c) Individual evaluation and reevaluation.

(1) Upon the consent and selection by the parent of an approved program with a multidisciplinary evaluation component to conduct an individual evaluation, as defined in section 200.1(aa) of this Part, the board shall arrange for such evaluation by the approved evaluator, as defined in section 200.1(ppp) of this Part, selected by the parent. In addition, with the consent of the parents, approved evaluators and committees shall be provided with the most recent evaluation report for a child in transition from programs and services provided pursuant to title two-a of article 25 of the Public Health Law. Nothing herein shall be construed to prohibit an approved evaluator or the committee from reviewing other assessments or evaluations to determine if such assessments or evaluations fulfill the requirements of this Part.

(2) Except as provided in section 200.4(b)(7) of this Part, 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. The summary report shall include a detailed statement of the preschool student's individual needs, if any. The summary report shall not include a recommendation as to the general type, frequency, location and duration of special education services and programs that should be provided; shall not address the manner in which the preschool student can be provided with instruction or related services in the least restrictive environment; and shall not make reference to any specific provider of special services or programs. Reports of the assessment and/or evaluation and a summary portion of the evaluation shall be provided to the members of the committee on preschool special education and to the person designated by the municipality in which the preschool student resides. An approved evaluator shall provide the parent with a copy of the statement and recommendation provided to the committee. Such statement and recommendation including the summary evaluation shall be provided in English and when necessary, in the native language of the parent or other mode of communication used by the parent unless it is not feasible to do so.

(3) Prior to making any recommendation that would place a child in an approved program owned or operated by the same agency which conducted the evaluation of the child, the committee may exercise its discretion to obtain an evaluation of the child from another approved evaluator. If the committee recommends placing a child in an approved program that also conducted an evaluation of the child, it shall indicate in writing that the placement is appropriate for the child and shall provide written notice to the commissioner of such recommendation on a form prescribed by the commissioner.

(4) For school years 1994-95 and thereafter, if the approved evaluator finds that the student requires evaluations beyond those previously authorized by the committee during the school year, or requires a reevaluation of any component, the committee must provide written authorization prior to the approved evaluator conducting the evaluation. The chairperson of the committee shall notify, at least five business days prior to the date of the evaluation, the representative of the municipality and other members of the committee of such request. The representative of the municipality or other members of the committee may request a meeting of the committee to determine the need for such an evaluation.

(5) Prior to the committee meeting, the committee shall provide the parent with a copy of the summary report of the findings of the evaluation in accordance with paragraph (2) of this subdivision. Upon request of the parent, the committee shall provide copies of all written documentation to be considered by the committee in the development of the preschool student's individualized education program.

(d)Evaluations and eligibility determinations.

(1) Upon the completion of the administration of tests and other evaluation materials, the committee must determine whether the student is a preschool student with a disability, as defined in section 200.1(mm) of this Part.

(2) Upon completion of the administration of assessments and other evaluation measures, the committee must provide a copy of the evaluation report and the documentation of determination of eligibility to the parent.

(3) If the parent disagrees with the evaluation, the parent may obtain an independent educational evaluation at public expense in accordance with section 200.5(g) of this Part to the extent authorized by Federal law and regulation.

(4) The committee shall forward a request for approval of reimbursement of the cost of evaluations, on a form prescribed by the commissioner, to the appropriate municipality in which the preschool student resides within 30 days of the date of the committee meeting at which the evaluation was reviewed. The committee must also send a copy of such form to the approved evaluator or, in the alternative, may provide a copy of the form available for inspection and photocopying by the approved evaluator.

(5) A committee on preschool special education shall provide for an appropriate reevaluation of a preschool student with a disability in accordance with section 200.4(b)(4), (5) and (6) of this Part.

(e)Recommendation.

(1) The committee on preschool special education shall meet to review the results of the initial evaluation and develop a recommendation within 60 calendar days of the date of the receipt of consent to evaluate.

(2) If the preschool student has been determined to be ineligible for special education, the recommendation shall indicate the reasons the student was found to be ineligible. A copy of such recommendation shall be provided to the parent consistent with the prior notice requirements in section 200.5(a) of this Part.

(3) Individualized education program (IEP). If the committee determines that the preschool child has a disability, the committee shall recommend approved appropriate services and/or special programs and the frequency, duration, location and intensity of such services including, but not limited to, the appropriateness of single services or half-day programs based on the individual needs of the preschool child. The committee shall first consider the appropriateness of providing (i) related services only; or (ii) special education itinerant services only; or (iii) related services in combination with special education itinerant services; or (iv) a half-day preschool program as defined in section 200.1(u) of this Part; or (v) a full-day preschool program as defined in section 200.1(p) of this Part. If the committee determines that the child demonstrates the need for a single related service, such service shall be provided as a related service only or, where appropriate, as a special education itinerant service. The IEP recommendation shall be developed in accordance with section 200.4(d)(2), (3) and (4) of this Part. In addition, the recommendation for special education programs and services for a preschool student with a disability shall:

(i) prior to recommending the provision of special education services in a setting which includes only preschool children with disabilities, the committee shall first consider providing special education services in a setting where age-appropriate peers without disabilities are typically found. Provision of special education services in a setting with no regular contact with age-appropriate peers without disabilities shall be documented on the child's IEP and shall only be considered when the nature or severity of the child's disability is such that education in a less restrictive environment with the use of supplementary aids and services cannot be achieved satisfactorily; and

(ii) only be made for a program which uses psychotropic drugs if such program has a written policy pertaining to such use. The parent of a student for whom such a recommendation is made must be provided with a copy of such written policy at the time such recommendation is made.

(4) The committee's recommendation shall be developed at a meeting of the committee on preschool special education in accordance with section 200.4(d)(4) of this Part and section 4410 of the Education Law. To the extent possible, any meeting of the committee shall be held at a site and time mutually convenient to the members of the committee and the parent of the preschool student, including but not limited to the worksite of the evaluator, the municipal representative on the committee, or the chairperson of the committee. The committee's recommendation shall be developed following a review of information presented by the preschool student's teacher(s) and/or the parent, the evaluation results provided by the approved program, results of other evaluations, and any other appropriate information provided by an agency charged with responsibility for the student. However, if the committee determines that a child requires a structured learning environment of 12 months duration to prevent substantial regression, the committee shall include in its recommendation a statement of the reasons for such recommendation as part of the IEP document.

(5) In developing its recommendation for a preschool student with a disability to receive programs and services, the committee must identify transportation options for the student and encourage parents to transport their child at public expense where cost-effective.

(6) A written report of the recommendation, including the results of the evaluation, shall be forwarded to the board, the parent of the preschool student and to the municipality in which the preschool student resides. Such report shall include the reasons for such recommendation, including a statement of the reasons why less restrictive placements were not recommended, when the recommendation is for the provision of special education services in a setting with no regular contact where age-appropriate peers without disabilities are found and shall include all statements provided by the parent. If the recommendation of the committee differs from the expressed preference of the parent with respect to the frequency, duration or intensity of services, or with respect to more or less restrictive settings, the report shall include the reasons why the committee recommended a different program or service other than that preferred by the parent.

(7) In the event that the parent does not choose to participate in the development of such recommendation, the committee shall forward its recommendation to the board of education and the parent as otherwise required in accordance with section 200.4(d)(5) of this Part.

(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. If the board disagrees with the recommendation of the committee, it shall send the recommendation back to the committee with notice to the parent and the committee including a statement of the board of education's reasons and that the recommendation will be sent back to the committee with notice of the need to schedule a timely meeting to review the board's concerns and to revise the IEP as deemed appropriate.

(2) The board of education shall notify the parent, the commissioner, the appropriate municipality and the preschool program or related services provider selected to provide the services of its approval. If the individualized education program (IEP) includes two or more related services, where possible, the board shall select from the list maintained by the municipality pursuant to section 4410 (9) of the Education Law, such related services providers that are employed by a single agency for the provision of such services. The board shall provide each related service provider with a copy of the individualized education program and the name and location of each related service provider. The board shall designate one of the service providers to coordinate the provision of the related services. If the IEP includes special education itinerant services and one or more related services, the special education itinerant service provider shall be responsible for the coordination of such services.

(i) A statement of the reasons for such determination shall be provided to the parent and the municipality.

(ii) If the board's determination is different from the parent's preference or the recommendation of the committee, the board shall provide the parent and the municipality with the reasons the board determined to provide a different program.

(3) Upon receipt of the written notification of the approval by the board of education of the committee's recommendation, the municipality shall contract with the designated preschool program provider in a manner approved by the commissioner, pursuant to section 4410 of the Education Law.

(4) The board shall notify the parent, the appropriate municipality and the commissioner of its actions on behalf of a preschool student with a disability:

(i) if, based upon the recommendation of the committee, the board approved the preschool student's program or services;

(ii) if, based upon the recommendation of the committee the board approves that such program or services must be terminated because the preschool student with a disability has moved out of the school district; or

(iii) if, based upon the recommendation of the committee the board approves that a new municipality is responsible to contract with the provider for the same special education program and services because the preschool student with a disability has moved to a different municipality within the school district. The board shall issue a new written notice of determination for the same special education service or program effective the next school day which shall become the responsibility of the new municipality in which such student resides.

(5) When a preschool student currently placed by another school district in an approved program moves into a new district, if the approved program is within a reasonable distance of such student's new school district of residence, the board of education shall issue a notice of determination to continue such program if the board approves the committee's recommendation that the program is appropriate to the student's needs.

(6) The IEP of a preschool student with a disability shall be implemented in accordance with section 200.4(e)(1)(i) and (ii), (3), (4), (7), (8) and (9) of this Part, except that during the pendency of proceedings conducted pursuant to paragraphs (h)(9) and (10) of this section, the placement of a preschool student shall be as provided in paragraph (h)(3) of this section.

(7)

(i) The provision of remote instruction due to emergency conditions by approved preschool programs serving preschool students with disabilities, other than a multidisciplinary evaluation program, shall be provided in accordance with the requirements contained in 200.7(b)(10) of this Part;

(ii) The provision of remote related services to preschool students receiving related services only, and not part of an approved half-day or full-day program, shall be provided in accordance with (a) the emergency remote instruction plan included in the district-wide school safety plan pursuant to section 155.17(c)(1) of this Chapter of the school district responsible for the provision of special education services and programs for such student, or (b) as specified in the student's IEP or (c) as specified in the student's contingency plan to address remote learning needs in the event of intermittent or extended school closures developed by the committee on preschool special education of such school district. Remote related services shall only be provided by individuals appropriately licensed and registered under Title 8 of the Education Law or otherwise qualified individuals with appropriate certification or license in each area of related service and in accordance with applicable professional practice guidelines for engaging in telepractice.

(g)Annual review.

The individualized education program (IEP) of each preschool student with a disability shall be reviewed and, if appropriate, revised periodically but not less frequently than annually in accordance with section 200.4(f) of this Part. In any such meeting of the committee, the professional who participated in the evaluation shall upon request of the parent or committee, attend and participate at such meeting.

(h)Procedural due process.

(1) Prior written notice of initial evaluation, review or reevaluation of a preschool student with a disability shall be made in accordance with section 200.5(a) of this Part.

(2) In addition to the requirements of paragraph (1) of this subdivision, the notice shall, for parents of preschool students referred to the committee for the first time, request parental consent to the proposed evaluation and advise the parent of the right to consent or withhold consent to an initial evaluation of the student or to the initial provision of special education services to a student who has not been previously identified as having a disability. Such notice shall also:

(i) include a list containing a description of each preschool program which has been approved by the commissioner to provide evaluations, and is located within the county in which the preschool student resides and adjoining counties, or, for students residing in the City of New York, within the City of New York and adjoining counties, and the procedures which the parent should follow to select an available program to conduct a timely evaluation.

(3) The procedural safeguards notice shall be provided to the parent in accordance with section 200.5(f) of this Part. The procedural safeguards notice shall also:

(i) indicate that during the pendency of any proceedings conducted pursuant to this Part, those preschool students with disabilities who are receiving special education programs or services pursuant to section 4410 of the Education Law shall remain in the then current education placement of such preschool student until all such proceedings have been completed, except as otherwise provided in section 200.5(m) of this Part. Nothing in this subparagraph shall require that a student with a disability remain in a preschool program for which he or she is no longer eligible pursuant to section 4410 of the Education Law during the pendency of any proceeding brought pursuant to this Part;

(ii) indicate that during the pendency of any proceedings conducted pursuant to this Part on behalf of a preschool student not described in subparagraph (i) of this paragraph, if the commissioner or local board of education and the parent(s) or legal guardian agree, the preschool student may receive those special education programs and services approved pursuant to this section until all such proceedings have been completed;

(iii) indicate that if the parent does not provide consent for initial evaluation or the initial provision of special education services, no further action will be taken by the committee on preschool special education until such consent is obtained; and

(iv) indicate that a preschool student who received services pursuant to section 236 of the Family Court Act or its successor during the previous year may continue to receive, from the provider of such services, preschool special education services in an approved program appropriate to the needs of such student until all proceedings have been completed.

(4) Notice of meetings. The meeting notice shall be provided in accordance with section 200.5(c) of this Part. In addition, such notice shall inform the parent of the opportunity to address the committee in person or in writing.

(5) Notice upon recommendation. Prior written notice of the recommendation of the committee on preschool special education shall be provided to the board of education and to the parent of the preschool student in accordance with section 200.5(a) of this Part. The notice upon recommendation shall indicate that, in the event that the parent does not provide consent for the initial provision of special education services, no further action will be taken by the committee on preschool special education until such consent is obtained.

(6) Board of education notice. The board of education shall notify the parent of the preschool student of its determination of placement pursuant to sections 200.2(d) and 200.5(a) of this Part.

(7) Consent to initial evaluation or initial placement. Written consent of the parent, as defined in section 200.1(l) of this Part, is required in accordance with section 200.5(b) of this Part.

(8) Mediation. The board of education shall ensure that mediation sessions are available to the parent of a preschool child to resolve disputes in accordance with section 4404-a of the Education Law and section 200.5(h) of this Part.

(9) Impartial due process hearings. Impartial due process hearings shall be conducted in accordance with section 200.5(j) of this Part, provided that the decision of the impartial hearing officer shall be rendered, in accordance with section 4410 of the Education Law, not later than 30 days after the time period pursuant to section 200.5(j)(5) of this Part.

(10) Appeal to a State review officer. Decisions of impartial hearing officers shall be subject to the review of a State review officer of the State Education Department in accordance with section 200.5(k) of this Part.

(11) State complaints. State complaint investigations shall be conducted in accordance with section 200.5(l) of this Part.

(12) Surrogate parents. Surrogate parents shall be appointed in accordance with section 200.5(n) of this Part.

(13) Confidentiality of personally identifiable information. Personally identifiable data, information or records pertaining to a preschool student with a disability shall be maintained in accordance with section 200.2(b)(6) of this Part.

(i)Continuum of services.

(1) Provision of services. A preschool student with a disability shall be provided with special education programs and services in accordance with section 200.6(a) of this Part.

(2) Staffing requirements. All professional staff who provide or supervise special education programs and services shall be appropriately licensed or certified in accordance with section 200.6(b)(3) through (5) of this Part.

(3) Special education programs and services. Special education programs and services shall be provided as follows:

(i) related services shall be provided in accordance with section 200.6(e) of this Part. Such services shall be provided by an approved provider or, as authorized by section 4410 of the Education Law, such services shall be provided at a site determined by the board, including but not limited to an approved or licensed prekindergarten or head start program; the work site of the provider; the student's home; a hospital; a state facility; or a child care location as defined in section 4410 of the Education Law. If the board determines that documented medical or special needs of the preschool student indicate that the student should not be transported to another site the student shall be entitled to receive related services in the preschool student's home;

(ii) Special education itinerant services as defined in section 4410 (1)(k) of Education Law are services provided by a certified special education teacher of an approved program on an itinerant basis at a site determined by the board including but not limited to an approved or licensed prekindergarten or head start program; the student's home; a hospital; a State facility; or a child care location as defined in section 4410 of the Education Law. If the board determines that documented medical or special needs of the preschool student indicate that the student should not be transported to another site, the student shall be entitled to receive special education itinerant services in the preschool student's home. Such services shall be for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities. Indirect services means consultation provided by a certified special education teacher to assist the child's teacher in adjusting the learning environment and/or modifying their instructional methods to meet the individual needs of a preschool student with a disability who attends an early childhood program. An early childhood program, for purposes of this paragraph, means a regular preschool program or day care program approved or licensed by a governmental agency in which a child under the age of five attends. Special education itinerant services shall be provided to a preschool student with a disability for whom such services have been recommended as follows:

(a) the service shall be recommended by the Committee on Preschool Special Education and shall be included in the student's individualized education program. Such recommendation shall identify the setting where such services would be delivered; specify the frequency, duration, intensity and location of direct special education itinerant services; and, for students who attend a regular early childhood program, specify, if any, the frequency, duration and location for the provision of indirect special education itinerant services as such term is defined in this subparagraph;

(b) the level of this service should not be less than two hours per week;

(c) the total number of students with disabilities assigned to the special education teacher should not exceed 20;

(d) related services shall be provided in addition to special education itinerant services, in accordance with the student's IEP;

(e) in the event that the board selects a special service or program that will be provided in the preschool student's home or another care setting to which the parent has made or subsequently makes arrangements, no transportation shall be indicated.

(iii) Special classes shall be provided on a half-day or full-day basis pursuant to section 200.1(p), (q), and (v) of this Part and in accordance with section 200.6(h)(2) and (3) or section 200.9(f)(2)(x) of this Part and shall assure that:

(a) the chronological age range within special classes serving preschool students with disabilities shall not exceed 36 months, except that, upon application and documented educational justification to the commissioner, approval may be granted for variance from the special class chronological age range;

(b) the maximum class size shall not exceed 12 preschool students with at least one teacher and one or more supplementary school personnel assigned to each class:

(1) If a committee on preschool special education recommends a preschool student to an approved program which has no space available in the specific special class which will meet the student's unique needs as recommended on the IEP, the approved program may temporarily increase the enrollment of a class up to a maximum of 13 preschool students for the remainder of the school year, by a procedure to be established by the commissioner, to ensure that the student receives a free appropriate public education. If the attendance during the instructional time exceeds 12 students, another staff member shall be assigned to the class. Other staff members may include related services providers and/or supplementary school personnel.

(c) such services shall be provided for not less than two and one half hours per day, two days per week; and

(d) consistent with the requirements of section 200.20(a)(9) of this Part, the special class shall include instructional services and related services, as specified in the student's individualized education program.

(iv) in-state residential special education programs and services shall be provided to each preschool student with a disability for whom such services have been recommended for a minimum of five hours per day, five days per week. Placement in such residential programs shall be approved by the commissioner in accordance with section 200.6(j) of this Part;

(v) 12-month special services and/or programs shall be provided to eligible preschool students with disabilities consistent with their individual needs, as specified in their individualized education programs. Preschool students with disabilities may be considered for such special services and/or programs in accordance with their need to prevent substantial regression if they are:

(a) preschool students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention; or

(b) preschool students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment; or

(c) preschool students whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment in the home; or

(d) preschool students whose needs are so severe that they can be met only in a seven- day residential program; or

(e) preschool students who are not described in clauses (a) through (d) of this subparagraph whose disabilities are severe enough to exhibit the need for a structured learning environment of 12 months duration to prevent substantial regression as determined by the preschool committee on special education.

(vi) The commissioner may grant a waiver from any requirement in sections 200.1, 200.6 and 200.16 of this Part, upon a finding that such waiver will enable a preschool program, as defined in section 200.1(nn) of this Part, to implement an innovative special program that is consistent with State law, applicable Federal requirements and all other sections of this Part, and will enhance student development and/or increase opportunities for preschool students with disabilities to interact with students without disabilities.

(a) Except as otherwise provided in clause (c) of this subparagraph, any preschool program as defined in section 200.1(nn) of this Part shall submit an application for a waiver at least 60 days in advance of the proposed starting date of the program. Such application shall be in a form prescribed by the commissioner.

(b) Except as otherwise provided in clause (c) of this subparagraph, any preschool program as defined in section 200.1(nn) of this Part granted a waiver shall submit an annual report to the commissioner regarding the operation and evaluation of the program no later than 30 days after the end of each school year for which a waiver is granted.

(c) Any preschool program as defined in section 200.1(nn) of this Part granted a waiver for three consecutive school years may be granted a permanent waiver, upon a finding by the commissioner that the program has resulted in improved student achievement and/or enhanced opportunities for preschool students with disabilities to interact with students without disabilities and is consistent with State law and Federal requirements and all other sections of this Part. A preschool program as defined in section 200.1(nn) of this Part that is granted a permanent waiver shall not be required to submit an annual application or an annual report. A permanent waiver shall continue until terminated in accordance with clause (d) of this subparagraph.

(d) The commissioner may terminate a waiver granted pursuant to this subdivision upon a finding that the program has not met its stated objectives or upon a finding that the program is no longer consistent with any requirement of State or Federal law or provision of this Part not specifically waived in the approval granted pursuant to this subdivision. The commissioner shall provide at least 30 days' notice of a proposed termination. The district, school or agency shall be afforded the opportunity to submit a written response to the proposed termination which addresses any deficiencies, provided that such response shall be submitted no later than five business days prior to the date of the proposed termination.

(vii) Nothing herein shall be construed to prevent the committee from recommending or the board from selecting a special service or program for July and August, or the frequency, location or duration of a special service or program, which is different in type or intensity than the service or program that the child is provided between the months of September and June.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 200.16

Amended, New York State Register January 29, 2014/Volume XXXVI, Issue 4, eff. 1/29/2014

Amended, New York State Register October 1, 2014/Volume XXXVI, Issue 39, eff. 10/1/2014

Amended New York State Register June 29, 2016/Volume XXXVIII, Issue 26, eff. 6/29/2016

Amended New York State Register April 24, 2019/Volume XLI, Issue 17, eff. 4/24/2019

Amended New York State Register January 25, 2023/Volume XLIV, Issue 04, eff. 1/25/2023