Current through Register Vol. 46, No. 12, March 20, 2024
(a) A student
with a disability shall be provided with appropriate special education.
(1) Students with disabilities shall be
provided special education in the least restrictive environment, as defined in
section 200.1(cc) of this
Part. To enable students with disabilities to be educated with nondisabled
students to the maximum extent appropriate, specially designed instruction and
supplementary services may be provided in the regular class, including, as
appropriate, providing related services, resource room programs and special
class programs within the general education classroom.
(2) A student with a disability shall be
provided the special education specified on the student's IEP to be necessary
to meet the student's unique needs.
(3) Students with disabilities placed
together for purposes of special education shall be grouped by similarity of
individual needs as defined in section
200.1(ww) of this
Part, in accordance with the following:
(i)
The range of academic or educational achievement of such students shall be
limited to assure that instruction provides each student appropriate
opportunities to achieve his or her annual goals. The learning characteristics
of students in the group shall be sufficiently similar to assure that this
range of academic or educational achievement is at least maintained.
(ii) The social development of each student
shall be considered prior to placement in any instructional group to assure
that the social interaction within the group is beneficial to each student,
contributes to each student's social growth and maturity, and does not
consistently interfere with the instruction being provided. The social needs of
a student shall not be the sole determinant of such placement.
(iii) The levels of physical development of
such students may vary, provided that each student is provided appropriate
opportunities to benefit from such instruction. Physical needs shall be
considered prior to determining placement to assure access to appropriate
programs. The physical needs of the student shall not be the sole basis for
determining placement.
(iv) The
management needs of such students may vary, provided that environmental
modifications, adaptations, or, human or material resources required to meet
the needs of any one student in the group are provided and do not consistently
detract from the opportunities of other students in the group to benefit from
instruction.
(b) Staffing requirements pursuant to Part 80
of this Title.
(1) When a remedial service is
included in the individualized education program, such service shall be
provided by appropriately certified or licensed individuals.
(2) When a transitional support service is
included in the individualized education program to be provided to teachers of
a student with a disability, such service shall be provided by personnel
appropriately certified or otherwise qualified in each area of
service.
(3) Related services shall
be provided by individuals with appropriate certification or license in each
area of related service.
(4)
Special education instruction shall be provided by individuals appropriately
certified or licensed pursuant to Part 80 of this Title.
(i) Notwithstanding the provisions of this
paragraph, due to the COVID-19 crisis for the 2021-2022 school year, a teacher
who holds a valid certificate in the classroom teaching service in students
with disabilities (grades 1-6), students with disabilities (grades 5-9)
generalist, or students with disabilities (grades 5-9) content specialist shall
be considered appropriately certified to teach a student with a disability in
grades 7-12, provided that they otherwise meet all certification requirements
for the teaching assignment.
(5) An administrator or supervisor of special
education programs serving more than 25 percent of his or her assignment in
such capacity shall hold a certificate valid for administrative and supervisory
service pursuant to Part 80 of this Title.
(6) When specially designed reading
instruction is included in the individualized education program, such
instruction may be provided by individuals qualified under section
80-2.7 or sections
80-3.3,
80-3.7(a)(3)(iv)
and 52.21(b)(3)(xi) of
this Title, as applicable. For purposes of this paragraph, specially designed
reading instruction shall mean specially designed individualized or group
instruction or special services or programs, as defined in subdivision 2 of
section
4401 of the
Education Law, in the area of reading and which is provided to a student with a
disability who has significant reading difficulties that cannot be met through
general reading programs.
(c) Transitional support services prescribed
in the individualized education program (IEP) shall be provided for a teacher
upon the recommendation of the committee on special education, and shall be
specified in the student's IEP. When the provision of a transitional support
service is under consideration by a committee on special education, the
teachers of the student for whom the service is being considered shall be given
the opportunity to participate in the meeting of the committee for the purpose
of advising the committee of the extent to which such services are
needed.
(d) Consultant teacher
services. Consultant teacher services, as defined in section
200.1(m) of this
Part, shall be for the purpose of providing direct and/or indirect services to
students with disabilities who attend regular education classes, including
career and technical education classes, and/or to such students' regular
education teachers. Such services shall be recommended by the committee on
special education to meet specific needs of such students and the student's
individualized education program (IEP) shall indicate the regular education
classes in which the student will receive consultant teacher services.
Consultant teacher services shall be provided in accordance with the following
provisions:
(1) The total number of students
with disabilities assigned to a consultant teacher shall not exceed
20.
(2) Each student with a
disability requiring consultant teacher services shall receive direct and/or
indirect services consistent with the student's IEP for a minimum of two hours
each week, except that the committee on special education may recommend that a
student with a disability who also needs resource room services in addition to
consultant teacher services, may receive a combination of such services
consistent with the student's IEP for not less than three hours each
week.
(3) Upon application and
documented educational justification to the commissioner, approval may be
granted for a variance for the number of students with disabilities assigned to
a consultant teacher as specified in paragraph (1) of this
subdivision.
(e) Related
services shall be recommended by the committee on special education to meet
specific needs of a student with a disability as set forth in the
individualized education program (IEP).
(1)
The frequency, duration and location of each such service shall be in the IEP,
based on the individual student's need for the service.
(2) For students with disabilities determined
to need speech and language services, the total caseload of such students for
teachers providing such services shall not exceed 65.
(3) When a related service is provided to a
number of students at the same time, the number of students in the group shall
not exceed five students per teacher or specialist except that, in the city
school district of the city of New York, the commissioner shall allow a
variance of up to 50 percent rounded up to the nearest whole number from the
maximum of five students per teacher or specialist.
(4) A student with a disability may be
provided with more than one such service in accordance with the need of the
student.
(5) Related services may
be provided in conjunction with a regular education program or with other
special education programs and services.
(f) Resource room programs. Resource room
programs shall be for the purpose of supplementing the regular or special
classroom instruction of students with disabilities who are in need of such
supplemental programs.
(1) Each student with
a disability requiring a resource room program shall receive not less than
three hours of instruction per week in such program except that the committee
on special education may recommend that for a student with a disability who
also needs consultant teacher services in addition to resource room services
may receive a combination of such services consistent with the student's IEP
for not less than three hours per week.
(2) Students shall not spend more than 50
percent of their time during the day in the resource room program.
(3) An instructional group which includes
students with disabilities in a resource room program shall not exceed five
students per teacher except that, in the city school district of the City of
New York, the commissioner shall allow a variance of up to 50 percent rounded
up to the nearest whole number from the maximum of five students per
teacher.
(4) The composition of
instructional groups in a resource room program shall be based on the
similarity of the individual needs of the students according to:
(i) levels of academic or educational
achievement and learning characteristics;
(ii) levels of social development;
(iii) levels of physical development;
and
(iv) the management needs of
the students in the classroom.
(5) The total number of students with a
disability assigned to a resource room teacher shall not exceed 20 students or,
for the city school district of the city of New York, the commissioner shall
allow a variance of up to 50 percent rounded up to the nearest whole number
from the maximum of 20 students per teacher; except that the total number of
students with a disability assigned to a resource room teacher who serves
students enrolled in grades seven through twelve or a multi-level middle school
program operating on a period basis shall not exceed 25 students or, for the
city school district of the city of New York, the commissioner shall allow a
variance of up to 50 percent rounded up to the nearest whole number from the
maximum of 25 students per teacher.
(6) Upon application and documented
educational justification to the commissioner, approval may be granted for a
variance from the size of an instructional group and the total number of
students assigned to a resource room teacher as specified in paragraphs (3) and
(5) of this subdivision.
(g) A school district may include integrated
co-teaching services in its continuum of services. Integrated co-teaching
services means the provision of specially designed instruction and academic
instruction provided to a group of students with disabilities and nondisabled
students.
(1) 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 the number of students with disabilities in such
classes shall not exceed 12 students, unless a variance is provided pursuant to
subparagraph (i) or (ii) of this paragraph.
(i) Variance by notification. A board of
education or trustees of a school district may submit written notice to the
commissioner to temporarily add one additional student with a disability to an
integrated co-teaching class for the remainder of the school year, provided
that at the start of classes in September of the current school year it is in
compliance with the standards specified in this paragraph. Written notice to
the commissioner shall be submitted on a form prescribed by the commissioner
and shall sufficiently demonstrate educational justification and consistency
with providing an appropriate education for all children affected.
(ii) Variance with commissioner approval. If
the school district has enrolled one student with a disability beyond the
maximum 12 students with disabilities in an integrated co-teaching services
class pursuant to the procedures established in subparagraph (i) of this
paragraph, and it determines there is a need to temporarily add one additional
student to such class, the school district may submit to the commissioner for
approval an application for a variance to enroll the one additional student in
the same class for the remainder of the school year. The application to the
commissioner shall be on a form prescribed by the commissioner and shall
sufficiently demonstrate educational justification and consistency with
providing an appropriate education for all children
affected.
(2) School
personnel assigned to each class shall minimally include a special education
teacher and a general education teacher.
(3) Additional personnel, including
supplementary school personnel, assigned to such classes by the district, may
not serve as the special education teacher pursuant to paragraph (2) of this
subdivision.
(h) Special
classes. The following standards shall be used in the provision of special
classes for students with disabilities:
(1) A
student with a disability shall be placed in a special class for instruction on
a daily basis to the extent indicated in the student's individualized education
program.
(2) In all cases the size
and composition of a class shall be based on the similarity of the individual
needs of the students according to:
(i)
levels of academic or educational achievement and learning
characteristics;
(ii) levels of
social development;
(iii) levels of
physical development; and
(iv) the
management needs of the students in the classroom.
(3) A special class shall be composed of
students with disabilities with similar individual needs.
(4) Special class size for students with
disabilities. The maximum class size for those students whose special education
needs consist primarily of the need for specialized instruction which can best
be accomplished in a self-contained setting shall not exceed 15 students, or 12
students in a State-operated or State-supported school, except that:
(i) The maximum class size for special
classes containing students whose management needs interfere with the
instructional process, to the extent that an additional adult is needed within
the classroom to assist in the instruction of such students, shall not exceed
12 students, with one or more supplementary school personnel assigned to each
class during periods of instruction.
(ii)
(ii)
(a) The maximum class size for special
classes containing students whose management needs are determined to be highly
intensive, and requiring a high degree of individualized attention and
intervention, shall not exceed six students, with one or more supplementary
school personnel assigned to each class during periods of
instruction.
(b) The maximum class
size for special classes containing students whose management needs are
determined to be intensive, and requiring a significant degree of
individualized attention and intervention, shall not exceed eight students,
with one or more supplementary school personnel assigned to each class during
periods of instruction.
(iii) The maximum class size for those
students with severe multiple disabilities, whose programs consist primarily of
habilitation and treatment, shall not exceed 12 students. In addition to the
teacher, the staff/student ratio shall be one staff person to three students.
The additional staff may be teachers, supplementary school personnel and/or
related service providers.
(5) The chronological age range within
special classes of students with disabilities who are less than 16 years of age
shall not exceed 36 months. The chronological age range within special classes
of students with disabilities who are 16 years of age and older is not limited.
However, there shall be no chronological age-range limitations for groups of
students placed in special classes as described in subparagraph (4)(iii) of
this subdivision.
(6) Upon
application and documented educational justification to the commissioner,
approval may be granted for variance from the special class sizes and
chronological age ranges specified in paragraphs (4) and (5) of this
subdivision, respectively, except that, to the extent authorized by the
provisions of Education Law, section 4402(2)(d) and (6):
(i) Provided that the district is in
compliance with the standards specified in paragraph (4) of this subdivision at
the start of classes in September of the current school year, a board of
education or trustees of a school district, except a city school district in a
city with a population of one million or more inhabitants, may for the
remainder of the school year exceed the class size standards specified in
paragraph (4) of this subdivision by no more than 20 percent for
middle/secondary students upon parental notification and written notice to the
commissioner on a form prescribed by the commissioner which sufficiently
demonstrates educational justification and consistency with continuing an
appropriate education for all children affected.
(ii) The board of education of a city school
district in a city with a population of 125,000 or more and less than one
million inhabitants may establish maximum class sizes in accordance with the
provisions of either subparagraph (i) or (iii) of this paragraph.
(iii) The board of education of a city school
district with a population of 125,000 or more inhabitants may, except as
otherwise provided in clause (a) of this subparagraph, establish maximum class
sizes not to exceed one and two tenths times the applicable maximum class size
as specified in paragraph (4) of this subdivision rounded up to the nearest
whole number for students with disabilities whose chronological age ranges are
equivalent to those students in middle and secondary schools, provided that the
board of education shall notify parents and shall file a notice stating the
board's intention to increase such class sizes and a certification that the
board will conduct a study of attendance problems at the secondary level and
will implement a corrective action plan to increase the rate of attendance of
students in such classes to at least the rate for students attending regular
education classes in secondary schools of the district in accordance with
Education Law, section 4402(6).
(a) In the
city school district having a population of one million or more, special
classes that have a maximum class size of 15 students may be increased by no
more than one student.
(iv) For the purpose of subparagraphs
(i)-(iii) of this paragraph, students in middle schools shall be defined as
students in grades 7 and 8 and students in secondary schools shall be defined
as students in grades 9 through 12.
(7) Each district operating a special class
wherein the range of achievement levels in reading and mathematics exceeds
three years shall, except for special classes described in subparagraphs
(4)(ii) and (iii) of this subdivision, provide the committee on special
education and the parents and teacher of students in such class a description
of the range of achievement in reading and mathematics, and the general levels
of social development, physical development and management needs in the class,
by November 1st of each year. The parent of each student entering such a class
after November 1st shall also be provided a description of the class. A
district providing such a description shall also inform the parent of each
student in such class that, upon request, the parent shall be afforded the
opportunity to discuss the description with an appropriate representative of
the district. A copy of such description shall also be included in the district
plan required by section
200.2(c) of this
Part.
(8) For parents of students
placed in special classes described in subparagraphs (4)(ii) and (iii) of this
subdivision, provision shall be made for parent counseling and training as
defined in section
200.1(kk) of this
Part for the purpose of enabling parents to perform appropriate follow- up
intervention activities at home.
(i) Home and hospital instruction. Students
with disabilities who are recommended for home and/or hospital instruction by
the committee on special education shall be provided instruction and
appropriate related services as determined and documented by the committee on
special education in consideration of the student's unique needs. Home and
hospital instruction shall only be recommended if such placement is in the
least restrictive environment and must be provided for at least the number of
days and length of time as provided in section
100.22(e)(2) of
this Chapter.
(j) In-state or
out-of-state private schools.
(1) State
assistance for instruction of public school students placed in approved private
schools. An application by a board of education for State reimbursement
pursuant to section
4405 of the
Education Law for a student in an in-state or out-of-state private school shall
be approved by the commissioner provided that:
(i) The committee on special education of the
school district in which the student resides has provided a current individual
evaluation or reevaluation of the student, as prescribed by section
200.4(b) of this
Part. For purposes of this subparagraph, the individual evaluation and the
classroom observation where applicable, and any other evaluations necessary to
describe the relevant circumstances leading up to the recommendation and the
basis for the recommendation for change of placement shall have been completed
within six months prior to the committee on special education's initial
recommendation for private school placement.
(ii) The committee on special education has
provided a current individualized education program (IEP) for the student as
required by section
200.4(d)(2) of
this Part.
(iii) The committee on
special education has certified that the student is of school-age and has a
disability or combination of disabilities, and has further documented that the
nature or severity of the student's disability is such that appropriate public
facilities for instruction are not available. This documentation shall include,
but need not be limited to:
(a) documentation
of efforts to place the student in a public facility and the outcomes of those
efforts, and/or of committee on special education findings regarding the lack
of suitability of each currently available and geographically accessible public
placement;
(b) documentation of all
efforts to enable the student to benefit from instruction in less restrictive
settings using support services and supplementary aids and special education
services as set forth in subdivisions (d), (e), (f), (g) and (h) of this
section, and/or for those services not used, a statement of reasons why such
services were not recommended;
(c)
detailed evidence of the student's lack of progress in previous less
restrictive programs and placements or a statement of reasons that such
evidence is not available;
(d) in
the case of a recommendation by the committee on special education for
placement of a student in a residential program, documentation that residential
services are necessary to meet the student's educational needs as identified in
the student's IEP, including a proposed plan and timetable for enabling the
student to return to a less restrictive environment or a statement of reasons
why such a plan is not currently appropriate;
(e) in the case of a recommendation by the
committee on special education for placement of a student in an educational
facility outside of the State, documentation that there are no appropriate
public or private facilities for instruction available within this State;
and
(f) in the case of a
reapplication for reimbursement, documentation of the continuing need for
placement of the student in a private school.
(iv) The application includes statement that
the placement is for the entire school year or the balance
thereof.
(2) Criteria for
approval. No contract for the placement of a student with a disability shall be
approved for purposes of State reimbursement unless:
(i) the application for reimbursement
contains the documentation required in paragraph (1) of this
subdivision;
(ii) such placement
will be in a private school approved by the commissioner for the education of
students with disabilities; and
(iii) the proposed placement offers the
instruction and services recommended in the student's IEP.
(3) Procedure for approval for reimbursement.
(i) In order to obtain a timely
determination, an application for State reimbursement shall be received by the
department within six business days of the recommendation by the committee on
special education that the student be placed in a private school. An annual
re-application for reimbursement in a subsequent year shall be submitted prior
to June 1st preceding the school year for which funding is sought.
(ii) Initial agency determination. Within 15
business days of receipt of an application for State reimbursement, the
commissioner's designee shall give notice to the board of education orally or
by facsimile machine, and in writing by mail of the approval or initial denial
of the application. Written notice of the denial of an application shall be
accompanied by a statement of reasons for denial, including specific findings
of deficiencies in the application, a statement of additional documentation or
information requested and notice to the board of education of the opportunity
to cure deficiencies in its application and of the availability of
administrative review of the denial.
(iii) Opportunity to cure deficiencies.
Within 20 business days after written notice of the denial of an application is
sent pursuant to subparagraph (ii) of this paragraph, the board of education
may submit a revised application which addresses any deficiencies in its
initial application identified in the statement of reasons for the denial.
Within 10 business days of receipt of a revised application, the commissioner's
designee shall send notice to the board of education orally or by facsimile
machine, and in writing by mail, of the action taken on the revised
application. Written notice of a denial of a revised application shall be
accompanied by a statement of reasons for denial including findings of
deficiencies in the revised application and shall inform the board of education
of the availability of administrative review of the denial.
(iv) Administrative review.
(a) No later than 40 days after written
notice of the initial denial of an application for reimbursement is sent
pursuant to subparagraph (ii) of this paragraph, the board of education may
request administrative review of such initial denial, or the denial of a
revised application, by the commissioner, or his or her designee. The board of
education shall submit with such request a response to the statement of reasons
for the denial and findings of deficiencies, and may submit with the request
additional evidence in support of its application.
(b) Within 10 business days of receipt of a
request for administrative review, the assistant commissioner or his or her
designee shall render a final agency determination on the application for State
reimbursement and shall notify the board of education in writing of such
determination. The decision shall include a statement of relevant findings and
deficiencies, and a concise statement of conclusions, including the legal basis
for such conclusions.
(v)
Where an application for reimbursement is approved by the commissioner's
designee, or upon review, the board of education shall be entitled to receive
reimbursement as of the date the student commenced actual attendance in the
recommended private school placement, except that where the board of education
fails to submit a timely application, as prescribed by subparagraph (3)(i) of
this subdivision, State reimbursement shall commence on the date the
application for reimbursement is received by the department.
(4) Implementation of placement.
(i) It shall be the duty of the local board
of education to implement a board-approved committee on special education
recommendation for placement in an approved private school within the time
prescribed by section
200.4(e)(1) of
this Part.
(ii) Neither the filing
of an application or revised application for reimbursement, nor the filing of a
request for review, shall be deemed to relieve the board of education of its
responsibility to provide appropriate special programs and services within 30
school days of receipt of the recommendation of its committee on special
education.
(5)
Additional procedures for private school placements.
(i) In the event that the department, in
reviewing private school placements made by school districts, determines that a
board of education has engaged in a pattern or practice of placing students
with disabilities in private day or residential schools when appropriate
placements were available in public facilities, or of failing to make
residential and/or nonresidential private school placements in a timely manner
or of failing to submit timely applications pursuant to subparagraph (3)(i) of
this subdivision, the department shall advise the board and direct the board to
take corrective action, including but not limited to:
(a) review by the district's committee on
special education of all private placements deemed by the department to be
inconsistent with the right to placement in the least restrictive
environment;
(b) compliance with
recommendations by the department to develop programs in the public school
setting to enable students to remain in public facilities; and
(c) establishment of an agreed upon deadline
for filing applications as a precondition for obtaining
reimbursement.
(ii) Upon
a finding of noncompliance with a prior directive of the department for
corrective action pursuant to subparagraph (i) of this paragraph, the
department may require prior approval by the department of individual
placements in private and residential school programs for a period prescribed
by the department.
(iii) Where the
department requires, as corrective action, that a board of education obtain
prior approval for private day and residential school placements, the
department's determination to approve or deny any such application shall be
made within 10 business days of a request by the board of education for such
approval. Where the department disapproves such a placement recommendation for
an individual student, the parent may file with the department a written
request for a hearing before an impartial hearing officer who will be
designated by the department. The procedures relating to notice and review of
the disapproval of the recommended private or residential school placement
shall be comparable to those set forth in section
200.5 of this Part, and shall be
provided by the department. Review of the determination of the hearing officer
shall be available by means of a proceeding pursuant to article 4 of the Civil
Practice Law and Rules or 20
USC 1415, and may be instituted by any party
to the hearing.
(k) Twelve-month special service and/or
program.
(1) Eligibility of students for
12-month special services and/or programs. Students shall be considered for
12-month special services and/or programs in accordance with their need to
prevent substantial regression, if they are:
(i) students whose management needs are
determined to be highly intensive and require a high degree of individualized
attention and intervention who are placed in classes in accordance with
subparagraph (h)(4)(ii) of this section;
(ii) students with severe multiple
disabilities, whose programs consist primarily of habilitation and treatment
and are placed in special classes in accordance with subparagraph (h)(4)(iii)
of this section;
(iii) students who
are recommended for home and hospital instruction 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;
(iv) students whose needs are so severe that
they can be met only in a seven-day residential program; or
(v) students who are not in programs as
described in subparagraphs (i) through (iv) of this paragraph during the period
from September through June and who, because of their disabilities, exhibit the
need for a 12-month special service and/or program provided in a structured
learning environment of up to 12 months duration in order to prevent
substantial regression as determined by the committee on special
education.
(2) All
programs as described in paragraph (1) of this subdivision and offered during
July and August shall have been approved by the commissioner in the first year
in which the program is offered and periodically thereafter.
(3) The commissioner shall establish tuition
reimbursement rates for the special education and related service programs
approved for July and August.
(l) The commissioner may grant a waiver from
any requirement in this section and section
200.1 of this Part, upon a finding
that such waiver will enable a local school district, board of cooperative
educational services, approved private school, State-operated school,
State-supported school or State department or agency to implement an innovative
special education program that is consistent with State law, applicable Federal
requirements and all other sections of this Part, and will enhance student
achievement and/or opportunities for placement in regular classes and programs.
(1) Except as otherwise provided in paragraph
(3) of this subdivision, a local school district, board of cooperative
educational services, approved private school, State-operated school,
State-supported school or State department or agency 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.
(2) Except as
otherwise provided in paragraph (3) of this subdivision, any district, school,
or agency 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.
(3) Any district, school or other agency
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 or enhanced opportunities for placement in regular
classes and is consistent with State law and Federal requirements and all other
sections of this Part. A district, school or other agency 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
paragraph (4) of this subdivision.
(4) 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.
(m) Levels
of service.
(1) The percent of each
instructional school day during which a student is provided any one or
combination of the special education programs and services shall be in keeping
with the unique needs of the student and the standards established in
subdivisions (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) of this
section.
(2) Claims for State
excess cost aid shall be based upon the minimum levels of service established
in section
3602 of the
Education Law.
(3) A child with a
disability under the age of seven who is eligible for school-age services, not
subject to compulsory attendance requirements and not on a regular school
attendance register for school-age children shall be deemed enrolled for the
purpose of claiming State aid pursuant to section
3602 of the
Education Law for the provision of special education and related services in
accordance with subdivision 2 of section
4401 of the
Education Law as recommended by the committee on special education at a site to
be arranged by the board of education.
(n) Interim alternative education setting
(IAES). Students with disabilities who have been suspended or removed from
their current placement for more than 10 school days pursuant to Part 201 of
this Title may be placed in an IAES. The IAES, to the extent provided in Part
201 of this Title, shall be an educational setting, other than the student's
current placement at the time the behavior precipitating the IAES placement
occurred. A student placed in an IAES shall:
(1) continue to receive educational services
so as to enable the student to continue to participate in the general education
curriculum, although in another setting and to progress toward the goals set
out in the student'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 recur.