Relates to the practice of licensed professions by special education schools and early intervention agencies and their employees; repealer

Justification

This bill would add a new §6503-a and a new §4410(6) and would amend §4410(9) and (9-a) to resolve a series of conflicts between the provisions of Article 89 of Education Law, particularly §4410, as well as the provisions of Title 2-A of Article 25 of the Public Health Law relating to early intervention programs, and the provisions of Title VIII of 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 multi-disciplinary evaluations be conducted by approved programs, which in this bill are education corporations or as a not-for-profit corporations. In addition, an approved program or limited liability company, of appropriately

licensed or certified professionals may be formed as a professional service corporation formed pursuant to article 15 of the business corporation law, a professional service limited liability company in accordance with the applicable provisions of article twelve or thirteen of the limited liability company law or as a registered limited liability partnership or registered foreign limited liability partnership in accordance with article eight-B of the partnership law.

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 early intervention programs regulated by the Department of Health pursuant to Title 2-A of Article 25 of the Public Health Law, where corporations are conducting multi-disciplinary evaluations and providing early intervention services to infants and toddlers with disabilities. In the absence of specific language exempting such special education schools and early intervention 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 not-for-profit 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 early intervention agencies to conduct multi-disciplinary evaluations and provide early intervention 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 not-for-profit special education schools and early intervention 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 obtains a waiver under Education Law §6503-a and thereby becomes subject to supervision by the Regents and the Department under the law governing the professions and subject to professional discipline. This would provide protection against unlawful practice of the professions, while allowing not-for-profit special education schools and early intervention agencies to continue to function without disruption.

New §4410(6) would also codify the Department's past interpretation of Education Law §§6207(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).

Fiscal implications

To be determined.

Effective date

This act shall take effect immediately and shall be deemed to be in full force and effect on and after June 30, 2010.