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Special education programs in New York are governed by both federal and state law., but in no circumstances may state laws limit the protections offered under federal law.  

Under both federal and state law, school districts must provide each student with a disability with a “free appropriate public education” (“FAPE”). 

A child is not eligible for special education if:

 Their educational needs are due primarily to unfamiliarity with the English language, environmental, cultural, or economic factors.  NY CLS Educ. §4410(1)(i); 8 NYCRR § 200.1(mm).

 Lack of instruction in reading or mathematics or limited English proficiency cannot be a determinant factor in identifying whether a student has a disability. NY CLS Educ. §4401(1). 

Specially-designed instruction means “adapting, as appropriate to the needs of an eligible child…the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 

34 C.F.R. § 300.38(b)(3); 8 NYCRR § 200.1(vv).

Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).

 FAPE means special education and related services:

1. are provided at public expense and without charge
2. meet appropriate standards
3. include preschool through secondary education
4. that use an Individual Education Program (“IEP”).

 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17

5. provided in the least restrictive environment (“LRE”)

6. To an extent students with disabilities should be educated with students who are not disabled.
34 C.F.R. § 300.114

A free appropriate public education includes not just special education, but also “related services.”

Related services are developmental, corrective, and other supportive services that assist students with disabilities.  8 NYCRR § 200.1(qq). 

In New York, related services may include any of the following:

• Transportation;
• Interpreting services
• Speech pathology and audiology;
• Psychological services;
• Physical and occupational therapy;
• Therapeutic recreation;
• Social work services;
• Counseling services (rehabilitation counseling services)
• Orientation and mobility services;
• Medical services (only to determine if disability exists);
• Parent counseling and training;
• School health services;
• School nurse services.

8 NYCRR § 200.1(qq); 20 U.S.C. § 1401(26)(A); Matter of Ellison v. Board of Educ. of Three Village Cent. Sch. Dist., 189 A.D.2d 518, 519 (N.Y. App. Div. 1993).

The state education agency and the local school district are both responsible for ensuring that appropriate special education services are delivered. 

In New York, each school board is required to establish a Committee on Special Education (“CSE”) and a Committee on Preschool Special Education (“CPSE”) which must review, at least annually, all information relevant to each disabled child and recommend to the school board an appropriate special education program and placement.

If the recommendation of the CSE or CPSE is unacceptable to the parents of a disabled child, it may be reviewed. 

N.Y. Educ. Law § 4402(1)(b); 8 NYCRR § 200.3; Matter of Northeast Cent. School Dist. v. Sobol, 79 N.Y.2d 598, 603 (N.Y. Ct. App. 1992).   

Special education also includes related services and can be offered in a:

• Mainstream classroom
• Resource room
• Home
• Hospital
• Residential program.

 Special education must be provided in the least restrictive environment. 

 Children with disabilities must be educated with their nondisabled peers.

 Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications, supplementary aids and services are insufficient in the general education environment. 

20 U.S.C. § 1412 (a)(5)(A); 34 C.F.R. § 300.114. 

New York law further defines a “least restrictive environment” as an educational setting as close as possible to the student’s home. 

8 NYCRR § 200.1(cc).

 But if a child’s needs cannot be best met in the mainstream classroom even with accommodations and services: the IEP team may decide that some combination of a specialized learning environment and the general classroom, a more segregated setting, or an approved private school or facility, is necessary to permit that child to benefit from his or her education. 8 NYCRR §§ 200.1(d), 200.4.

Every school district in New York has a Committee on Preschool Special Education and a Committee on Special Education (collectively “committee”) that are responsible for a child’s special education needs and services. 

A parent that suspects his or her child may have a disability should make a referral to the committee in their school district for an initial evaluation to determine whether in fact their child does have a disability. 

In addition to a student’s parent, a number of individuals can make a similar referral:  

• the Commissioner
• designee of a public agency responsible for providing education to students with disabilities
• professional staff member of the school which the student attends
• professional staff member of the school district in which the student resides
• physician
• judicial officer

 If the student is eighteen years of age or older, or is an emancipated minor, he or she may refer him or herself.  NY CLS Educ. § 4401-a; 8 NYCRR § 200.4.

 A referral submitted by a parent should:

1. Be submitted in writing to the committee chairperson or the building administrator of the school which the student attends or is eligible to attend.
2. If the referral is submitted to the building administrator, the building administrator must forward a copy to the committee chairperson.
3. If such referral is submitted to the committee chairperson he or she must forward a copy of the referral to the building administrator of the school which the student attends or is eligible to attend.
4. The building administrator of the school the child attends may request a meeting with the parent for the purpose of discussing educational alternatives to special education.
   NY CLS Educ. § 4401-a; 8 NYCRR § 200.4.

These alternatives may include the provision of services designed to address the learning needs of the student and maintain the child’s placement in general education with the provision of appropriate educational and support services.  NY CLS Educ. § 4401-a; 8 NYCRR § 200.4.

 A parent has the right to withdraw a referral; however, if the referral is not withdrawn and after the committee secures parental consent, the committee will initiate an individual evaluation of the student. 

 This individual evaluation must be completed at least sixty days after the referral, be of no cost to the parent, and must include at least a:

• Physical examination;
• Individual psychological evaluation;
• Social history;
• Observation of the student in his or her learning environment
• Functional behavioral assessment to determine the physical, mental, behavioral, and emotional factors contributing to the suspected disability.
  8 NYCRR § 200.4(b).

 The evaluation results must be forwarded to the committee and the student’s parent.  NY CLS Educ. § 4401-a.

Once it is determined that a child is eligible for special education, an Individualized Education Plan (IEP) is developed for that child by the committee. 

• An IEP outlines in writing the educational program for the student.

 The IEP is developed at a committee meeting that must include the child’s parent and an appointed representative of the school district.

•  If the meeting is to consider the postsecondary goals for the student and any necessary transition services, then the student must be invited to attend the meeting.  8 NYCRR § 200.4(d)(2). 

 In developing the recommendations for the IEP, the committee must consider:

• Results of the initial or most recent evaluation;
• The student’s strengths;
• Parental concerns for enhancing their child’s education;
• The academic, developmental, and functional needs of the students
• Any special considerations, such as limited English proficiency.
  8 NYCRR § 200.4(d)(2). 

 The IEP of each student with a disability must be reviewed at least annually, and if appropriate, revised, to ensure that the annual goals of the student are being achieved.  8 NYCRR § 200.4(f).

 If a student with an IEP transfers school districts within New York, the new school district must provide the student with FAPE, including services comparable to those described in the previously held IEP, until the school district adopts the previously held IEP or develops, adopts and implements a new IEP that is consistent with Federal and State law and regulations. 

8 NYCRR § 200.4(e)(8).

Additionally, the IEP must include the following:

•  Measurable annual goals;
• Short-term instructional objectives and benchmarks;
• Special education program and services that will be provided to the student;
• Any individual testing accommodations to be used by the student;
• Whether the student will participate in an alternative assessment on a particular state or districtwide assessment of student achievement;
• If the student will not participate in regular class with nondisabled students, an explanation of why this is the case;
• For student’s fifteen years or older, a description of transition services.
• A placement recommendation.

• A parent always has the right to request a meeting with the officials from his or her child’s school or with the committee to discuss concerns regarding IEP implementation. 

• If a parent believes the district has failed to implement a valid IEP or has failed to follow special education law, or is discriminating against a student or a group of students, the parent may file a complaint in writing with the New York Board of Education. 8 NYCRR §§ 2005(h),(j). 

If a parent disagrees with or objects to the proposed IEP placement or services, or if the parent believes the district has failed to comply with the child’s IEP, the parent is entitled to file for a due process hearing with the New York Board of Education (“Board”). 8 NYCRR §§ 200.5(i),(j).

This complaint for a hearing must be filed within two years of the date the parent knew or should have known about the alleged action that forms the basis of the complaint, unless the parent’s failure to know is due to a school district’s misrepresentation or withholding of information.  8 NYCRR § 200.5(j)(1)(i)

When filing for a hearing, the complaint must contain:

• the student’s name;
• the student’s address;
• the name of the school the student is attending;
• a description of the nature of the problem;
• a proposed resolution to the problem.
  8 NYCRR §§ 200.5(i)(1).

If the complaint does not contain one of these provisions, then the school district has fifteen days to notify the parent in writing that it does not comply. 8 NYCRR § 200.5(i)(3).  No hearing will commence unless the Board receives a complaint containing all five provisions. 8 NYCRR § 200.5(i)(3).

The Board will appoint an impartial hearing officer that may hear disputes related to the identification, evaluation or educational placement of a student with a disability, or the provision of a free appropriate public education to the child. 8 NYCRR §§ 200.5(j)(1). 

 Within ten days of receiving the complaint, the student’s school district must send the parent a response that includes:            

• An explanation of why the school district proposed or refused to take the action raised in the complaint;
• A description of each evaluation procedure, assessment, record or report the school district used as a reasoning for the proposed or refused action;
• A description of the factors that are important to the school district’s proposal or refusal. 8 NYCRR § 200.5(i)(4).

 In New York, the parent and district must participate in an informal resolution meeting within fifteen days of the complaint receipt, unless both parties agree to not having the meeting or undergo mediation.

1. The resolution process cannot exceed a thirty-day period.
2. If the parties reach an agreement at the resolution meeting, the agreement must be put in writing and signed by both parties. 
3. Both parties have three days to revoke their agreement but in the event they do not, the agreement is binding and enforceable in state or federal court. 

      8 NYCRR § 200.5(j)(2).

 Parents who waive the resolution session may still participate in mediation. 

•  Mediation is a voluntary and confidential process in which a trained, objective facilitator works with both parties to reach an agreement.
•  By electing to undergo mediation with the district, a parent does not waive their right to a due process hearing. 8 NYCRR § 200.5(h).

A parent has many rights at the hearing right to:

• Have and be advised by an attorney and/or by individuals with special knowledge or training about the education of students with disabilities;
• Present evidence and testimony, and question, cross-examine and require the attendance of witnesses;
• Receive evidence at least five business days before the hearing;
• Receive a record of the hearing and the decision of the hearing officer;
• Have the hearing open to the public;
• Have his or her child present at the hearing;
• Have an interpreter for the deaf or an interpreter fluent in the parent’s native language, at no cost to the parent;
• Have an impartial hearing conducted at a time and place that is reasonably convenient for the parent and their child;
• Receive an expedited due process hearing for certain disciplinary decisions. 

8 NYCRR § 200.5(j)(3).

Once a complaint has been filed, the student is entitled to the same placement and services of the last agreed upon IEP until the complaint has been resolved. 

An unfavorable decision by the hearing officer may be appealed to a state review officer with the State Education Department. The state review officer must reach a decision no later than thirty days after receipt of a request for review.  If the state review officer’s decision is unfavorable to the parent, the parent may seek judicial review.  8 NYCRR § 200.5(k).

In New York, students with disabilities may be suspended only in accordance with Title VI, Article 65 of New York’s education laws. NY CLS Educ. § 3214. 

Students with disabilities are subject to the same suspension rules as nondisabled students, except that suspensions of students with disabilities cannot exceed 10 consecutive days without a review.  20 U.S.C. § 1415(k)(1)(B). 

Suspensions for more than 10 consecutive school days and expulsions are considered “changes of placement,” and schools cannot change special education students’ placements without parental consent, or without a “manifestation determination” meeting, except for certain behaviors such as where the student is involved with drugs, weapons or presents a danger to himself or others.  20 U.S.C. § 1415(k)(1)(G).  In such circumstances, the district may place the student in an interim alternative setting for up to 45 days.  20 U.S.C. § 1415(k).

A manifestation determination meeting is a meeting of the relevant members of the IEP team to determine whether a child with a disability may be expelled or have his placement changed for more than 10 consecutive school days for misconduct. 

It must be held within 10 days of the school’s decision to expel the student or change his placement and the team must consider two issues:

• whether the behavior was caused by, or did it have a direct and substantial relationship to, the child’s disability
• whether the behavior was the direct result of the school’s failure to implement the IEP
  8 NYCRR § 201.4(c).

If the team answers yes to either question, the child cannot be expelled and a placement change would require the consent of the parent or a hearing officer’s order. 

If the IEP team determines that the behavior is a manifestation of the child’s disability, the child must return to his original placement, unless the parents and school agree otherwise. The school must also do a behavioral assessment for the student or modify the student’s existing behavior plan to address the behavior. 8 NYCRR § 201.4(d)(2)(i). 

If the team determines that the conduct was the direct result of the school district’s failure to implement the IEP, the district must take immediate steps to remedy those deficiencies. 8 NYCRR § 201.4(e).

If the team denies that the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing.  The appeal should be resolved within 30 days, and in the interim, the child remains in the interim educational setting.  20 U.S.C. § 1415(k)(1)(F); 34 C.F.R. § 300.530(f). 

Students with disabilities must continue to receive educational services during any period of suspension beyond 10 days and during any period of interim placement and during any period of expulsion.  20 U.S.C. § 1412(a)(1) and 1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1); 8 NYCRR § 201.7. 

The services a child receives under these circumstances must enable him to continue to participate in the general curriculum and to continue to progress toward meeting his IEP goals and to receive needed behavioral assessments and services.  20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. § 300.530(d)(1)(i)(ii); 8 NYCRR § 201.7. 

The parents of a student with a disability must be afforded an opportunity to inspect and review all education records with respect to the identification, evaluation, and educational placement of the student and the provision of a free appropriate public education to the student.  8 NYCRR § 200.5(d)(6). 

 A request to inspect records must be carried out without undue delay and must occur before any meeting regarding an IEP or hearing.  In no case may the request be carried out more than forty-five days after the request was made. 

The right to inspect and review records includes:

• The right to a response to requests for explanations and interpretations of the records;
• The right to request copies and to have any fee attached to producing copies waived if it is cost-prohibitive; and
• The right to have a representative of the parent inspect and review the records. 

34 CFR § 300.613.