Part 200 of the Regulations of the Commissioner

(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. 

(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. 

(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. 

(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. 

(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. 

(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. 

(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)

(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. 

(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. 

(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. 

(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. 

(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. 

(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.