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Special Education Waiver Proposal Threatens Student Services

March 2nd, 2015

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. grad_hat_books_crop

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.


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New York State to Propose Changes to Graduation Requirements for Students with Disabilities

May 14th, 2012

Under a proposed change in graduation requirements for students with disabilities, a set of less-rigorous exams would be eliminated, but other options would be available for students to earn diplomas.  The State Education Department is recommending to the Board of Regents that the less-demanding Regents Competency Tests be phased out beginning with students who started ninth grade in 2011.

Advocates of the change say that there will still be a safety net for students with disabilities to earn a high school diploma.  While general education students, beginning this year, must score at least a 65 on five Regents exams in order to receive a Regents diploma, other options will be available for students with disabilities.

The first option is one currently available to students with disabilities: scoring between 55-64 on five Regents exams.  Students may also use a higher score to compensate for a lower one, or choose to replace the difficult Global History exam with an extra math or science Regents exam.  Any of these options would earn the student a local diploma, an option no longer available for general education students, who must earn Regents diplomas.

In announcing the change, State Education Commissioner John B. King Jr. said, “By moving to require all students to take Regents exams, the board committed many years to increased rigor in high school, but we want to make sure that we accommodate students’ particular disabilities,” according to the New York Times.

Students with disabilities who are currently sophomores, juniors or senior will still have the option of taking the Regency Competency Tests (RCTs), if they fail the more demanding Regents exams.  In order to earn a local diploma, a disabled student must pass six of the RCTs.

For assistance with questions regarding your child’s special needs visit our website at

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