Innovative Program Waivers
A public school district, Board of Cooperative Educational Services (BOCES), Special Act School District, State-supported School, State-operated School, an approved private school program approved pursuant to Article 89 of the Education Law or a special education program approved pursuant to section 4410 of the Education Law may submit an application for an innovative waiver from any requirement1 in sections 200.1, 200.6, and 200.16 of the Regulations of the Commissioner of Education.
The Commissioner2 may grant an innovative waiver of State regulations upon a finding that such waiver is consistent with State law, applicable federal requirements and all other sections of Part 200 of the Regulations and will enhance student development and/or increase opportunities for students with disabilities to interact with students without disabilities.
1 Except that an innovative waiver cannot be granted for requirements referenced by cross citation found in sections 200.1, 200.4 and 200.16 and for teacher certification and licensing requirements.
2 The Assistant Commissioner of the Office of Special Education acts as the Commissioner’s designee for innovative waiver approvals.
- The application must be received by the New York State Education Department (NYSED) at least 60 days in advance of the proposed starting date of the innovative waiver program.
- The application must be on a form prescribed by the Commissioner.
- The Commissioner may approve the innovative waiver request for up to one year.
- The district or agency must submit an annual report to the Commissioner regarding the operation and evaluation of the innovative waiver no later than 30 days after the end of each school year for which a waiver was granted. The report must provide student achievement data and/or information on opportunities for students with disabilities to interact with students without disabilities.
- If data and information presented demonstrate improved student achievement and/or enhanced opportunities for students with disabilities to interact with students without disabilities that support the effectiveness of the innovative waiver, the Commissioner may annually extend approval of the waiver for up to two additional years.
- The Commissioner may grant a permanent innovative waiver if the:
- waiver has been approved for three consecutive school years;
- Commissioner finds, upon a review of the third year annual report, that the waiver continued to result in improved student achievement and/or enhanced opportunities for students with disabilities to interact with students without disabilities; and
- Commissioner determines that the waiver continues to be consistent with State law and federal requirements and all other sections of Part 200 of the Regulations. Once the Commissioner grants a permanent waiver, the school is not required to submit an annual report.
- The Commissioner may terminate an innovative waiver 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 Part 200 of the Regulations not specifically waived in the approval. The district or agency will be provided at least 30 days’ notice of a proposed termination and will be afforded the opportunity to submit a written response to the proposed termination that addresses any deficiencies, provided the response is submitted no later than five business days prior to the date of the proposed termination.
Approval of innovative waiver requests will be based on factors including, but not limited to:
- the likelihood that the innovative waiver will enhance student development and/or opportunities for students with disabilities to learn with students without disabilities;
- the extent to which the innovative waiver application identifies the benefits to the target population and describes the program’s impact on peers without disabilities (if applicable);
- the extent to which the innovative waiver will promote use of research-based instructional practices leading to improvement of educational practices and results;
- the extent to which the application demonstrates an effective evaluation design to measure achievement of the desired learning outcomes; and
- the degree to which the innovative waiver application confirms consultation with and support by program administrators, staff, parents and, others as appropriate. .
Annual Reports and Reapplication
The district or agency must submit an Annual Report, on a form prescribed by the Commissioner. The Annual Report will serve as the reapplication for continuation of the innovative program waiver. The report must contain a detailed summary of the program and an assessment of progress toward the achievement of the desired learning outcomes as described in the innovative waiver application. All sections of the annual report must be completed.
The annual report must be submitted to the Assistant Commissioner of the Office of Special Education not later than 30 days after the end of the first full school year and each subsequent year until a permanent innovative waiver is approved.
The Office of Special Education will review the annual report to determine if the innovative waiver program is meeting its intended results, as stated in the innovative waiver application, regarding the integration and achievement of students with disabilities.
The annual report will serve as the district/agency’s reapplication for continuation of the innovative waiver program.
Upon completion of its review, the Office of Special Education will notify the district or agency as to whether:
- the waiver may continue for an additional one year period of time;
- further information is needed; or
- continuation of the innovative waiver program is denied.
The district or agency must reply to requests for additional information within 30 days of the notification.
If NYSED determines that an innovative waiver is not achieving the objectives established in the application or is no longer consistent with federal or State law or regulation, the Commissioner may terminate the innovative waiver program upon a 30-day notice. A district or agency that receives a notice of a proposed innovative waiver termination may submit a written response to address any deficiencies not later than five days prior to the date of termination.
All applications, annual reports and requests for appeal of a determination must be submitted to:
New York State Education Department
Office of Special Education
89 Washington Avenue
Room 309 EB
Albany, NY 12234
Attention: Innovative Waiver Application