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Special Education Waiver Update: 2015-2016

By Stacy Sadove, Esq.

Advocates and parents eagerly awaited the passage of the 2015-2016 New York State Budget. In particular, the budget proposed many changes with regard to education– through the Education, Labor & Family Assistance Bill. The modified budget passed shortly before 3am on April 1, 2015.

A proposed special education waiver remained of particular concern to parents and was the topic of much debate during the passage of the 2015-2016 budget. The proposal would have allowed school districts, approved private schools, or boards of cooperative educational services (BOCES) to seek waivers from important protections contained in N.Y. Educ. Law §§ 4403 and 4403 and New York Regulations, but which are not included in the Individuals with Disabilities Education Act. The waiver would have allowed for the above educational agencies to submit waivers from special education requirements for a specific school year and provided for 60 days for the parents of students being affected to submit comments (S.2006/A.3006, Part A). The new budget did not include this proposal. Thus school districts cannot seek a waiver from protections in New York Law, which are not provided in the IDEA.Littman Krooks Special Education Advocacy

Moreover, the budget addressed the establishment of regional tuition rates for special education itinerant services (SEITS) based on average actual costs, over a four-year period (S.2006/A.3005, Part A). This proposal was adopted. SEIT services allow special education teachers to assist preschool students with disabilities in preschool general education classrooms. These important services allow for social and academic inclusion as well as education in the least restrictive environment. The new budget will establish a set rate for SEIT providers per region. Rates will be determined in the next year. The question remains whether the rates will take into account high quality services so that services may be provided by qualified preschool teachers.

Furthermore, in controversial new measures, the new budget sets new standards for evaluating teacher performance. Teachers must complete 100 hours of continuing education and recertify every five years or could lose their licenses. Also, the budget will implement a redesigned teacher evaluation system whereby teachers are rated in two categories, student performance and teacher observations. With regard to student performance, schools employ a standardized state measure, or may choose to use a state-designed supplemental assessment. With regard to teacher observation, teachers will be observed by principal observations and independent observations. Moreover, with regard to teacher tenure, new rules will provide that tenure is based on performance and is not simply a function of time. The budget extends the probationary period to a minimum of four years with no automatic right to tenure at any point. A teacher will have to receive ratings of effective or highly effective in at least three of four years to be eligible to receive tenure. If a teacher does not meet this threshold, he or she can be terminated or the district may extend the probationary period. As further incentive for performance, school districts may award a bonus of up to $20,000 to teachers who are top performers, and promotion opportunities will be tied to the evaluation system. For ineffective or poorly rated teacher, a new expedited removal procedure will be put in place

Finally, a portion of the budget also passing addressed failing schools in New York State. The proposal with regard to failing schools, sought to authorize the Commissioner of Education to a categorize a school district as failing (one that has scored in the lowest 2.5 percent of school districts statewide, when compared to other districts based on student achievement and performance on state assessments, graduation rates and drop-out rates) and appoint a receiver to create and enact a plan to improve student achievement (S.2010/A.3010, Part A). The proposal did not ultimately pass as originally proposed, and the final budget modified it, so that that schools identified under the state’s accountability system to be in the lowest five percent of public schools for at least three consecutive school years will be categorized as “failing” and have two years to institute an intervention model/comprehensive ed. plan. Those that have been identified to be among the lowest achieving public schools in the state for 10 consecutive school years will be deemed as “persistently failing” and have one year to institute such a plan.

As the new budget is implemented in the next year, we will see what changes ultimately affect special education services and placement of students in failing schools. On the education front, the current budget raised state aid to schools by $1.4 billion to $23.5 billion dollars. With careful attention and implementation, these changes should positively affect students in New York State schools to provide them with additional services and better access to a free and appropriate education. For more information regarding the new budget please see the following link:



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