Amends education law, creates waivers for certain institutions and repeals certain provisions of such law relating thereto

Summary of the provisions of the bill

Section 1 would repeal §4410(6) relating to transition of children who were in preschool programs pursuant to §236 of the Family Court Act before July 1, 1989, and would add a new subdivision 6 to §4410 of Education Law to resolve, in conjunction with sections 2 through 4 of this bill, various conflicts between the provisions of §4410 on preschool special education and the provisions of Title VIII of Education Law on professional practice.

New §4410(6)(a) would provide that approved providers of preschool special education that are operating pursuant to a waiver as special education schools under new §6503-a of Education Law would be authorized to employ licensed professionals or contract with licensees or entities legally authorized to provide professional services in accordance with §650.3-a. Without such waiver, 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 a corporation, or as a limited liability company, and 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, upon the grant of a waiver pursuant to section 6503-a of the Education Law, 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 Education Law §8207(2) that applies to an approved 4410 provider that is a center-based program, so they 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 center-based program, so they may employ a school psychologist for services rendered to students enrolled in such center-based program.

Section 2 would amend paragraphs b and d of subdivision 9 of §4410 of Education Law to 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 a waiver pursuant to §6503-a prior to providing evaluation services or related services pursuant to such written agreements or affiliations.

Section 3 would amend §4410(9-a)(a) of 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, 2011. The bill also would provide that the approval of any groups of licensed or certified professionals that are in existence on July 1, 2011 and would not be eligible for approval thereafter would terminate on July 1, 2013.

Section 4 would add a new §6503-b Education Law to provide for a waiver 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 the waiver 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 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, 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 ("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-b(2) would prohibit special education schools that are not operating under a waiver 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 title two-a of article twenty-five of the public health law which is approved or is seeking approval to deliver early intervention program multidisciplinary evaluations, service coordination services and early intervention program services, and is lawfully operated by a corporation, a limited liability company or a professional services organization. "Early intervention program services" would mean early intervention services as defined in subdivision seven of section twenty-five hundred forty-one of the public health law that are provided under the early intervention 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-b would be deemed to be operating under a waiver for a period of time commencing on the effective date (June 30, 2011) and ending on July 1, 2013, allowing them time to apply for and obtain a waiver. New §6503-b(3) would contain the procedures for obtaining a waiver, including an initial fee of $345, and provides where the applicant simultaneously applies for approval as a special education school and early intervention agency the total waiver fee will be $345. New §6503-b(4) would provide for waiver renewal, with a triennial fee of $260 and provides where the applicant simultaneously renews its waiver as a special education school and early intervention agency, the total waiver fee will be $260. New §6503-b(5) would require notification of a change in location and new §6503-b(6) would authorize special education schools and early intervention agencies operating under a waiver 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-b(7) would make special education schools and early intervention agencies operating under a waiver subject to the supervision of the Board of Regents and the Department relating to professional practice, including professional discipline.

Section 5 is the effective date.

Statement in support of the bill

This bill would add a new Education Law §6503-b 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 multidisciplinary evaluations be conducted by approved programs or groups of appropriately licensed professionals associated with a public or private agency approved by the Commissioner. 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 private schools, 4201 schools and approved preschool providers to continue to deliver related services to students with disabilities and, where applicable, conduct multi-disciplinary 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 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 is operating pursuant to 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 professional discipline. This would provide protection against unlawful practice of the professions, while allowing the special education schools and early intervention agencies to continue to function without disruption. This bill would allow schools and early intervention agencies to continue in their existing corporate form, provided that they obtained a waiver under §6503-a.

New §4410(6) would also codify the Department'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.

Budgetary implications of the bill

This bill should not result in significant costs to the State or local governments. The bill would require special education schools and early intervention agencies obtaining a waiver 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 waiver process.

Prior legislative history

In 2010 a similar bill was introduced in the Senate as S.5954-D, which passed the Senate and was referred to the Assembly Education Committee and no further action was taken.

In 2009, a similar bill was introduced in the Senate as S.5954. S.5954 was referred to the Senate Rules Committee and no further action was taken. An identical bill was introduced in the Assembly as A.8689-A, and was referred to the Assembly Higher Education Committee and reported to the Assembly Ways and Means Committee. No further action was taken.

In 2007, similar legislation was introduced in the Assembly as a portion of A.8682, which was reported to the Assembly Education Committee and no further action was taken.

Effective date

This act would take effect June 30, 2011. To ensure the protection of the practice of professions, the effective date will provide the

Department of Health time to develop and adopt in regulations, criteria and service delivery standards for approval and re-approval of early intervention providers.