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THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234
To: 
District Superintendents
Superintendents of Public Schools
Public School Administrators
Charter School Administrators
Superintendents of State-Operated and State-Supported Schools
Executive Directors of Approved Private Schools
Nonpublic School Administrators
Directors of Special Education
Directors of Pupil Personnel Services
Chairpersons of Committees on Special Education
Organizations, Parents, and Individuals Concerned with Special Education
From: 
Christopher Suriano
Subject: 
Chapter 428 of the Laws of 2017 Relating to Referrals to State Adult Service Agencies for Certain Students with Disabilities Who Have Reached the Age of 18 & the Requirement for Boards of Education to Have Plans & Policies for Appropriate Declassification
Date: 
November 14, 2018
The purpose of this memorandum is to inform you that, at its September 2018 meeting, the Board of Regents proposed regulations to conform section 200.4 of the Commissioner’s Regulations to Chapter 428 of the Laws of 2017 (Chapter 428). Chapter 428 amended New York State Education Law section 4402 relating to the aging out notification requirements for students needing adult residential services and the requirement for boards of education to develop plans and policies for appropriate declassification of students with disabilities. Although the regulations are currently proposed, these changes have been in effect since the Governor signed Chapter 428 into law on November 29, 2017. A copy of the full text of the proposed regulations developed consistent with the requirements of Chapter 428 can be found at the Board of Regents website. For your reference, a copy of the full text of Chapter 428 is attached.

Aging-Out Notification Requirements

Federal law establishes transition planning requirements for school districts, including the requirement that the school district invite, to the extent appropriate and with parental consent (or consent of a student 18 years of age or older), a representative of any participating agency that is likely to be responsible for providing or paying for transition services, which could include adult service State agency representatives, to committee on special education (CSE) meetings to prepare a student for transition to adult life. Consistent with this requirement, to streamline the transition planning process, Chapter 428 amended Education Law section 4402 to eliminate and/or simplify certain requirements.
 
Chapter 428 amended the requirement that the CSE provide notification about adult services to the parents of students with disabilities who receive residential special education services or nonresidential special education services 100 percent of the school day, have intensive management needs or a severe disability, and may need adult services. It also eliminated the requirement that CSEs submit an annual report to the New York State Education Department (NYSED) regarding the number of these students who were referred to State adult service agencies. Pursuant to Chapter 428, the CSE, with the consent of the parents (or the student if over the age of 18), is now required to notify and invite a representative from the Office of Mental Health, Office for People with Developmental Disabilities, or NYSED’s Office of Adult Career and Continuing Education Services-Vocational Rehabilitation (ACCES-VR) to participate in the development of adult service recommendations not later than the first annual review prior to the eighteenth birthday of a student with a disability who is placed by the CSE in a:
  • residential program; or
  • day program, but the CSE has determined that the student is likely to require adult residential services.
In addition, with the consent of the parents (or the student if over the age of 18), the CSE must release the student’s name and other relevant student information in a report to the appropriate public agency(ies), upon the request of such agency(ies), for purposes of determining appropriateness of an adult program for the student. Please note, Chapter 428 did not change the requirement that if a CSE is notified that the public agency that received the report is not responsible for determining and recommending adult services for the student, the CSE must refer the student to another public agency. In addition, in the event that there is a dispute as to which public agency has responsibility for determining and recommending adult services for the student, the CSE can refer the report to the Council on Children and Families for resolution of the dispute.

Plans and Policies for Appropriate Declassification

Chapter 428 amended Education Law section 4402 to eliminate the requirement that boards of education develop plans and policies for appropriate declassification of students with disabilities. However, consistent with federal and State requirements, committees on preschool special education (CPSEs)/CSEs must still meet at least annually (i.e., annual review) to determine a student’s continuing eligibility for special education services. In addition, all students with disabilities must continue to receive a reevaluation prior to a recommendation for declassification.
 
The Department is accepting public comment on the proposed amendment. Written comment may be submitted on or before December 3, 2018 to: Christopher Suriano, Assistant Commissioner, Office of Special Education, 89 Washington Avenue, Room 309 EB, Albany, NY 12234, Attention: Public Comment - Proposed Amendment Chapter 428. Comments may also be e-mailed to spedpubliccomment@nysed.gov or faxed to 518-473-5387.
 
Questions regarding this memorandum may be directed to the Office of Special Education Policy Unit at 518-473-2878 or SPECED@nysed.gov.
 
Attachment - Field Advisory and Chapter 428 of the Laws of 2017