Special Education Waiver Proposal Threatens Student Services
By Marion Walsh, Esq. and Sandi Rosenbaum, Special Education Advocate
On March 4, 2015, between 6:30-8:00, the Lower Hudson Valley Special Education Advocacy Task Force will be holding a Policy Discussion Forum at the Arc of Westchester (The Gleeson-Israel Gateway Center, 265 Saw Mill River Road (9A), Hawthorne, NY), to discuss the Executive Budget and the proposed waiver of special education requirements. This is an essential meeting to attend to understand the effect of the budget on special education services. 
The Governor’s proposal for his executive budget contains a proposal to allow school districts, private schools, and BOCES to obtain a one-year waiver from following requirements or providing services which are mandated by New York law, but which are not required by the Individuals with Disabilities Education Act. Here are just some of the services and mandates that could be affected:
- Autism requirements in 200.13 including parent counseling and training;
- Minimum daily/weekly requirements for home and hospital instruction;
- Notice requirements for CSE;
- Special Education Consultant Teachers required to have access to general education teachers to participate in instructional planning;
- IEP must include the name of the school and whether it is BOCES, public, or private;
- Evaluation AND implementation within 60 school days – Federal law has only an evaluation time frame, implementation “ASAP”; and
- Evaluation team must include members with relevant credentials – Federal law doesn’t require a multidisciplinary team
The Governor is proposing this for mandate relief, as well as to enable school districts to implement innovative programs. But there could be a significant loss of services to students.
The Governor and Board of Regents are selling this as allowing Districts to apply for waivers so that the District can implement an innovative special education program that is consistent with federal law, in order to enhance student achievement. The District, before initiating a proposal for a waiver, would have to provide notice to parents in the District and obtain input before applying for the waiver with the New York State Education Commissioner.
The proposed provision expands existing opportunities for districts to seek waivers from NYS requirements that exceed those of the Federal IDEA, subject to notifying all affected parents and providing them a 60 day comment period, which comments would be submitted as part of the waiver application. One downside is that only currently affected parents need be notified; since special education programs and placements are fluid, the parent of a student who has benefited from the affected program in the past, or may in the future, would not even be notified that the district received a waiver to deviate from state law in certain respects.
The proposed provision actually expands existing, though little-used, opportunities for Districts to seek waivers from the Commissioner for the purpose of enhancing student achievement and opportunities for placement in general education settings. There has been an opportunity in place for some time for Districts to seek waivers to offer innovative special education models outside the defined continuum of service. Any such program which has a waiver granted for three consecutive years may be granted a permanent waiver.
Become educated on this issue and contact your state legislators as soon as possible, as valuable services could be at risk.
Learn more about our services by visiting www.specialneedsnewyork.com.
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