Relates to the provision of evaluations, service coordination services and early intervention program services; repealer

The bill deems existing early intervention agencies and special education schools and providers as registered for a period commencing on the effective date of the bill, and ending on July 1, 2010, to provide these agencies, schools, and providers with sufficient time to complete the required registration process. Approved EI providers and special education providers and schools that are currently in existence and subject to the provisions of this legislation must seek and obtain registration from the Commissioner of Education by July 1,2010, to continue to provide early intervention and special education services beyond that date.

Summary of specific provisions

Section 1 amends §2541 of Public Health Law (PHL) to add definitions of agency and individual providers of early intervention services and make conforming changes to modify standards for the EI program.

Sections 2 and 3 amend PHL to add PHL §§2550-a and 2550-b regarding the EI provider approval and re-approval process, add provider approval criteria, consolidate the responsibility for monitoring and approval of providers within the DOH to eliminate duplication with SED, authorize the DOH to deny approval if sufficient provider capacity exists in a municipality, and establish proceedings involving the approval of an individual or agency provider.

Section 4 repeals subdivision 18 of section 4403 of the education law.

Section 5 repeals subdivision 6 of section 4410 of the education law and adds a new subdivision 6. New §4410(6)(a) would provide that approved providers of preschool special education that are registered as special education schools under new §6503-a of the education law would be authorized to employ licensed professionals or contract with licensees or entities legally authorized to provide professional services in accordance with §6503-a. Without such registration, employment or contracting for professional services in most licensed professions would conflict with restrictions on corporate practice under Title VIII.

New §4410(6)(b) would clarify that an approved program may be formed as an education corporation, or, with the consent of the commissioner of education, as a not-for-profit corporation, business corporation, or limited liability company, or a group of appropriately licensed professionals may be formed as a professional service limited liability company (PLLC) or a registered limited liability partnership (RLLP) and if so formed, may be authorized to provide special education itinerant services or educational services, even though they are entities ordinarily formed to provide professional services. In addition, such an entity would be authorized to contract with other professionals or entities authorized to provide professional services that the PLLC or RLLP would not be authorized to provide directly, where such services are rendered for the purposes of conducting a multi-disciplinary evaluation or providing related services specified in the IEP of a preschool child.

New §4410(6)(c) would clarify, without expanding, the current exemption from the practice of speech-language pathology and audiology in §8207(2) of the education law that applies to an approved §4410 provider that is a center-based program, so it may employ a teacher of the speech and hearing handicapped, for services rendered to students enrolled in such center-based program. A center-based program is an approved §4410 school that operates special education classes and/or special education classes in an integrated facility-based setting. New §4410(6)(d) would similarly clarify that the exemption from the practice of psychology in Education Law §7605(1) would apply to an approved §4410 provider that is a centerbased program, so it may employ a school psychologist for services rendered to students enrolled in such center-based program.

Section 6 would amend paragraphs a, band d of subdivision 9 of §4410 of the education law to consolidate approval of EI providers within the DOH, require that a provider of special services or programs that relies on formal written agreements or affiliations with appropriately certified or licensed professionals, or agencies employing such professionals, certify as part of the program approval application process that it will apply for and obtain registration pursuant to §6503-a prior to providing evaluation services or related services pursuant to such written agreements or affiliations.

Section 7 would amend §4410(9-a)(a) of the education law to require that a group of appropriately licensed or certified professionals must be formed as a PLLC, foreign PLLC, RLLP or New York foreign RLLP to be eligible for approval as an evaluator on and after July 1, 2009. The bill also would provide that the approval of any groups of licensed' or certified professionals that are in existence on July 1, 2009 and

would not be eligible for approval thereafter would terminate on July 1, 2010.

Section 8 would add a new §6503-a to the education law to provide for registration of special education schools as corporate entities authorized to provide a range of professional services relating to the evaluation of students suspected of having a disability and the delivery of related services to students with disabilities either through licensees employed by the school or by contract with licensees or other authorized entities. New §6503-a would also provide for registration of early intervention agencies as corporate entities authorized to provide a range of professional services relating to the early intervention program for infants and toddlers with disabilities from birth to 2. In return, such registered special education schools and early intervention agencies would become subject to professional discipline in the same manner as professional corporations, PLLCs and other entities authorized to engage in the practice of a profession. New §6503-a (1) would supply definitions of "special education school," "early intervention agency,""early intervention program services," "multidisciplinary evaluation" for both special education schools and early intervention agencies, and "related services." A "special education school" would include a §4410 approved provider, an approved private residential or non-residential school for the education of students with disabilities (a "Chapter 853" school), and a child care institution that operates a private school or an institution for the deaf or blind (a "4201 school") that conducts a multidisciplinary evaluation or provides related services in one or more licensed professions for which no exception from prohibitions against corporate practice exists. New §6503-a(2) would prohibit special education schools that are not registered from employing licensed professionals or contracting with other entities to practice a profession while conducting a multi-disciplinary evaluation or providing related services to students with disabilities, unless an exception to the corporate practice prohibition exists. "Early intervention agency" would mean an agency as defined in PHL §2541 which is approved or is seeking approval by DOH to deliver EI program multidisciplinary evaluations, service coordination services and EI program services, and is lawfully operated by a not-for-profit corporation, private corporation, limited liability company, registered limited liability partnership, or other private entity. "Early intervention program services" would mean EI services as defined in PHL §2541(7) that are provided under the EI program and authorized in an eligible child's individualized family services plan.

All special education schools and early intervention agencies in existence on the effective date of new §6503-a would be deemed registered for a period of time commencing on the effective date and ending on July 1,2010, allowing them time to apply for and obtain registration to continue providing services after such date. New §6503-a (3) would contain the procedures for registration, including an initial fee of $345. New §6503-a (4) would provide for registration renewal, with a triennial fee of $260. If an applicant simultaneously applies for registration or renewal registration as a special education school and early intervention agency, the applicant is required to pay only one fee. New §6503-a (5) and (6) respectively would require notification of a change in location and impose a good moral character requirement on applicants. New §6503a(7) would authorize registered special education schools and early intervention agencies to employ licensed professionals or contract with licensees or entities legally authorized to practice the profession involved, solely for the purpose of conducting a multi-disciplinary evaluation or providing related services to students with disabilities. New §6503-a(8) would make registered special education schools and early intervention agencies subject to the supervision of the Board of Regents and SED relating to professional practice, including professional discipline. Section 9 provides the effective date.

Existing law

PHL § 2541 contains definitions applicable to the El program. In particular, PHL § 2541 (2) defines "coordinated standards and procedures" as those developed by state El service agencies.

PHL § 2541(7) identifies services that qualify as EI services, including family education and counseling, home visits, and parent support groups; speech pathology; physical therapy; nursing services; and social work services.

PHL § 2541(12) identifies DOH as the lead agency responsible for the administration of the E1 program.

PHL § 2541(17) defines "state early intervention service agencies" as DOH, SED, the Department of Social Services (which is now the Department of Family Assistance), the Office of Mental Health, the Office of Mental Retardation and Developmental Disabilities, and the Office of Alcoholism and Substance Abuse Services.

PHL § 2544 sets forth the requirements for screening and evaluations used to determine a child's eligibility for E1 services. Subdivision 6 allows evaluators to use the findings of external evaluators, if such assessments are consistent with coordinated standards and procedures developed by the E1 service agencies.

PHL § 2549 contains provisions permitting parents of children in the EI program to challenge a determination of the evaluator or EI officials with regard to eligibility or provision of EI services. Subdivision 5 of § 2549 requires the hearing officer to send a copy of the findings to any state EI service agency with an interest in the conclusions.

PHL § 2550 sets forth DOH's responsibilities over the E1 program, including the authority to approve and monitor providers.

PHL § 2551 authorizes the various E1 services agencies (defined above) to formulate coordinated standards and procedures for the E1 program.

PHL § 2553 sets forth the responsibilities of the Early Intervention Coordinating Council, which provides advice and assistance to the Commissioner in the administration of the EI program.

PHL § 2559-b authorizes the Commissioner to promulgate regulations and requires the Commissioner to incorporate coordinated standards and consider any guidelines developed by other state E1 service agencies in developing such regulations.

Education Law § 4403(18) grants SED the authority to approve E1 providers.

Education Law § 4410(9)(a) requires providers seeking approval from SED to provide EI services to apply to the Commissioner of Education for such approval and requires SED to monitor these providers.

Education Law § 6512 makes it a Class E felony to practice a profession without a license, or to assist at least three other persons in doing so.

Education Law § 6513 makes it a Class A misdemeanor to use a professional title without authorization. Further, § 6513 provides that it is a Class E felony to assist at least three other persons in the use of a professional title without authorization. These

provisions operate to prevent the corporate practice of the professions.

Justification

This bill would add a new Education Law §6503-a and a new §44l0(6) and would amend §4410(9) and (9-a) to resolve a series of conflicts between the provisions of article 89 of the education law, particularly §4410, as well as the provisions of title 2-A of article 25 of the PHL relating to EI programs, and the provisions of title VIII of the education law that prohibit licensed professionals from engaging in corporate practice in most professions, particularly in an organization with licensees from other professions. Education Law

§6512 makes it a Class E felony for an unlicensed person to practice a licensed profession or hold oneself out as being able to practice a licensed profession. With certain exceptions, such as speech-pathology and audiology, corporate practice (practice of a profession by a corporation or other corporate entity) is generally prohibited, particularly where multiple professions are involved.

Education Law §4410 requires that multidisciplinary evaluations be conducted by approved programs, which are generally education corporations, other not-for-profit corporations, or business corporations, or groups of appropriately licensed professionals associated with a public or private agency approved by the commissioner of education. It also gives the parent the right to select the approved evaluator. However, §4410 is silent, as is the rest of article 89 of the education law, about how it relates to the ability of approved programs to engage in corporate practice. A similar problem exists for EI programs regulated by the DOH pursuant to title 2-A of article 25 of the PHL, where corporations are conducting multi-disciplinary evaluations and providing EI services to infants and toddlers with disabilities. In the absence of specific language exempting such special education schools and EI agencies from the prohibitions against corporate professional practice, both the schools, agencies, and many licensees are operating in conflict with the laws relating to professional practice and are at risk of prosecution, or in the case of the licensees, of professional discipline.

It is imperative that action be taken to address this conflict in a way that would preserve the ability of approved private schools, 4201 schools and approved preschool providers to continue to deliver related services to students with disabilities and, where applicable, conduct multidisciplinary evaluations of students suspected of having a disability, and that would preserve the ability of EI agencies to conduct multi-disciplinary evaluations and provide EI services to infants and toddlers with disabilities. This bill would accomplish that goal, while striking a balance that assures that the policies underlying the laws regulating the licensed professions are preserved. It would do so by authorizing special education schools and EI agencies to employ licensed professionals or contract for services from other licensees or entities to conduct multi-disciplinary evaluations or deliver related services to students enrolled in the school, provided that the school or agency becomes registered under Education Law §6503-a and thereby becomes subject to supervision by the Regents and SED under the law governing the professions and subject to professional discipline. This would provide protection against unlawful practice of the professions. while allowing the special education schools and EI agencies to continue to function without disruption. This bill would allow schools and EI agencies to continue in their existing corporate form, provided that they become registered under §6503-a.

New York's EI program is administered by DOH in conjunction with a federal program established under the Individuals with Disabilities Education Act (IDEA). The state program seeks to identify and evaluate as early as possible those infants and toddlers with a confirmed disability or established developmental delay and provide for appropriate intervention. Although DOH has instituted a vigorous approval and monitoring program for EI providers to ensure that the state program complies with the IDEA, current PHL does not set forth specific criteria and service delivery standards for approval and re-approval of EIP providers, and authorizes several state agencies to approve and monitor EI providers. To ensure the consistent safe, effective, and high quality services are delivered to infants and toddlers with developmental vulnerabilities, it is imperative to include criteria and service delivery standards for EI program providers in PHL, and to consolidate approval and monitoring authority under the DOH.

Currently, SED is the only other state agency that currently does so. SED has approved approximately 80 EI providers. This legislation eliminates the provisions pertaining to the development of coordinated EI standards by other state agencies and terminates SED's authority to approve and monitor EI providers effective one year after the bill's enactment. Therefore, EI providers who wish to continue providing services in the EI program after that time must apply to DOH for approval; in the interim, they must comply with the PHL and with DOH's rules and regulations. This will consolidate all EI functions within DOH, permitting more consistent monitoring of providers and assisting DOH in carrying out its obligations under the IDEA.

New §4410(6) would also codify SED's past interpretation of Education Law §§8207(2) and 7605(1) that an approved center-based §4410 provider is a school indistinguishable from an elementary or secondary school that is exempted from the practice of speech-language pathology and audiology and psychology pursuant to those sections and is authorized to employ teachers of the speech and hearing handicapped and school psychologists to deliver speech and language and psychological services, respectively. Thus, this bill would maintain the status quo and allow such providers to continue to deliver these services to students enrolled in an approved center-based program without employing or contracting with licensed psychologists or licensed speech language therapists, just as other approved center-based §4410 providers who serve both preschool children and students with disabilities of school age are clearly authorized to do under any reasonable interpretation of §§8207(2) and 7605(1). If this issue is not clarified, the result could be a disruption in services to preschool students with disabilities, particularly where shortages of licensed professionals exist.

Prior legislative history

This is a new bill.

Fiscal implications

This bill should not result in significant costs to the State or local governments. The criteria for approval of providers, and approval and oversight of additional EI providers currently under the authority of SED, can be handled within the DOH's existing resources. The bill would require special education schools and early intervention agencies obtaining a registration under §6503-a to pay a fee of $345 and a triennial re-registration fee of $260, which should defray the costs of implementation of the registration process.

Effective date

This act shall take effect immediately. To ensure ongoing capacity and prevent the disruption of El services and special education services in the middle of the school year, early intervention agencies and special education schools will have until July 1, 2010 to comply with the provisions of section 7 and 8 relating to the approval and registration of such agencies and schools with the Commissioner of Education. Currently approved early intervention agencies and special education schools in existence on the effective date of this act must seek and obtain registration prior to July 1, 2010 in order to continue providing services after this date.