STATE OF NEW YORK
________________________________________________________________________
8689--C
2009-2010 Regular Sessions
IN ASSEMBLY
June 3, 2009
___________
Introduced by M. of A. GLICK, PAULIN, JAFFEE, STIRPE, TITUS, CASTRO --
Multi-Sponsored by -- M. of A. LUPARDO, McENENY, PHEFFER -- read once
and referred to the Committee on Higher Education -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Higher Education
in accordance with Assembly Rule 3, sec. 2 -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee -- reported and referred to the Committee on Codes --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the education law, in relation to special education
services and programs for preschool children with handicapping condi-
tions, and in relation to waivers for certain special education
schools and early intervention agencies; and to repeal subdivision 6
of section 4410 of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 6 of section 4410 of the education law is
2 REPEALED and a new subdivision 6 is added to read as follows:
3 6. Professional practice issues. a. Notwithstanding any provisions of
4 law to the contrary, approved programs operated by private providers
5 shall be authorized to employ licensed professionals or contract with
6 licensed professionals or entities legally authorized to provide profes-
7 sional services in accordance with section sixty-five hundred three-a of
8 this chapter.
9 b. An approved program may be formed, with the consent of the commis-
10 sioner, as an education corporation or as a not-for-profit corporation.
11 In addition, an approved program or group of appropriately licensed or
12 certified professionals may be formed as a professional service limited
13 liability company or as a foreign professional service limited liability
14 company in accordance with the applicable provisions of article twelve
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02397-13-0
A. 8689--C 2
1 or thirteen of the limited liability company law or as a registered
2 limited liability partnership in accordance with section 121-1500 of the
3 partnership law or as a New York registered foreign limited liability
4 partnership in accordance with section 121-1502 of the partnership law.
5 An approved program formed as such a professional service limited
6 liability company or registered limited liability partnership may be
7 authorized to provide special education itinerant services or other
8 educational services not involving practice of a profession under title
9 eight of this chapter. An approved program or group of professionals
10 formed as such a professional service limited liability company or
11 registered limited liability partnership may contract with individuals
12 licensed or otherwise authorized to practice, or with a professional
13 service corporation, partnership or other entity legally authorized to
14 practice any profession under title eight of this chapter in which the
15 entity would not be authorized to provide professional services under
16 the applicable provisions of section twelve hundred three or subdivision
17 (a) of section thirteen hundred one of the limited liability company law
18 or sections 121-1500 or 121-1502 of the partnership law, solely for the
19 purposes of conducting a multi-disciplinary evaluation of a preschool
20 child suspected of having a disability or a preschool child with a disa-
21 bility or providing related services specified in the individualized
22 education program of a preschool child.
23 c. Notwithstanding any other provision of law to the contrary, the
24 exemption in subdivision two of section eighty-two hundred seven of this
25 chapter shall apply to persons employed by a center-based program
26 approved pursuant to subdivision nine of this section to perform the
27 duties of a speech-language pathologist, audiologist, teacher of the
28 speech and hearing impaired or teacher of the deaf to students enrolled
29 in such approved center-based program in the course of their employment.
30 d. Notwithstanding any other provision of law to the contrary, the
31 exemption in subdivision one of section seventy-six hundred five of this
32 chapter shall apply to persons employed by a center-based program
33 approved pursuant to subdivision nine of this section as a school
34 psychologist to provide activities, services and use of the title
35 psychologist to students enrolled in such approved center-based program
36 in the course of their employment.
37 § 2. Paragraphs b and d of subdivision 9 of section 4410 of the educa-
38 tion law, as amended by chapter 705 of the laws of 1992, are amended to
39 read as follows:
40 b. As part of an application submitted pursuant to paragraph a of this
41 subdivision, a provider of special services or programs shall submit a
42 description of its multi-disciplinary evaluation component, if any,
43 which shall be subject to the approval of the commissioner in accordance
44 with regulations adopted for such purpose after consultation with the
45 appropriate advisory committee. Such components or program may rely in
46 part on formal written agreements or affiliations with appropriately
47 certified or licensed professionals, or agencies employing such profes-
48 sionals, provided that such professionals or agencies perform their
49 responsibilities in conformance with regulations of the commissioner and
50 that providers fully disclose any such arrangements on all applications
51 for program approval, and provided further that the provider certifies
52 that it shall apply for and obtain a waiver pursuant to section sixty-
53 five hundred three-a of this chapter prior to providing evaluation
54 services pursuant to such written agreements or affiliations. Nothing
55 herein shall require a provider of special services or programs to have
56 a multidisciplinary evaluation program.
A. 8689--C 3
1 d. Providers may make application to conduct a program that relies on
2 formal written agreements or affiliations with other approved programs
3 or appropriately certified or licensed professionals, provided that such
4 arrangements are fully disclosed on all applications to the commissioner
5 for program approval, and provided further that the provider certifies
6 it shall apply for and obtain a waiver pursuant to section sixty-five
7 hundred three-a of this chapter prior to providing related services
8 pursuant to any such written agreements or affiliations involving
9 licensed professionals.
10 § 3. Paragraph (a) of subdivision 9-a of section 4410 of the education
11 law, as added by chapter 82 of the laws of 1995, is amended to read as
12 follows:
13 (a) A school district or a group of appropriately licensed and/or
14 certified professionals associated with a public or private agency may
15 apply to the commissioner for approval as an evaluator on a form
16 prescribed by the commissioner. The commissioner shall approve evalu-
17 ators pursuant to this subdivision consistent with the approval process
18 for the multi-disciplinary evaluation component of programs approved
19 pursuant to subdivision nine of this section consistent with regulations
20 adopted pursuant to such subdivision.
21 Such application shall include, but not be limited to, a description
22 of the multi-disciplinary evaluation services proposed to be provided
23 and a demonstration that all agency employees and staff who provide such
24 evaluation services shall have appropriate licensure and/or certif-
25 ication and that the individual who shall have direct supervision
26 responsibilities over such staff shall have an appropriate level of
27 experience in providing evaluation or services to preschool or kinder-
28 garten-aged children with [handicapping conditions] disabilities. To be
29 eligible for approval as an evaluator on and after July first, two thou-
30 sand ten, a group of appropriately licensed or certified professionals
31 shall be formed as a professional service limited liability company,
32 foreign professional service limited liability company, registered
33 limited liability partnership or New York registered foreign limited
34 liability partnership. The approval of any groups of licensed or certi-
35 fied professionals that are in existence on July first, two thousand ten
36 and would not be eligible for approval thereafter shall terminate on
37 July first, two thousand eleven.
38 § 4. The education law is amended by adding a new section 6503-a to
39 read as follows:
40 § 6503-a. Waiver for certain special education schools and early
41 intervention agencies. 1. Definitions. As used in this section:
42 a. "Special education school" means an approved program as defined in
43 paragraph b of subdivision one of section forty-four hundred ten of this
44 chapter that meets the requirements of paragraph b of subdivision six of
45 such section forty-four hundred ten; an approved private nonresidential
46 or residential school for the education of students with disabilities
47 that is located within the state; a child care institution as defined in
48 section four thousand one of this chapter that operates a private school
49 for the education of students with disabilities or an institution for
50 the deaf or blind operating pursuant to article eighty-five of this
51 chapter that either: (1) conducts a multi-disciplinary evaluation for
52 purposes of articles eighty-one or eighty-nine of this chapter that
53 involves the practice of one or more professions for which a license is
54 required pursuant to this title and no exception from corporate practice
55 restrictions applies, or (2) provides related services to students
56 enrolled in the school or approved program that involves the practice of
A. 8689--C 4
1 one or more professions for which a license is required pursuant to this
2 title and no exception from practice restrictions applies. Such term
3 shall not include a school district, board of cooperative educational
4 services, municipality, state agency or other public entity. Nothing in
5 this section shall be construed to require a child care institution that
6 conducts multi-disciplinary evaluations or provides related services
7 through an approved private nonresidential school operated by such child
8 care institution to obtain a waiver, provided that such school obtains a
9 waiver pursuant to this section.
10 b. "Early intervention agency" for purposes of this section means an
11 agency which is approved or is seeking approval in accordance with title
12 two-A of article twenty-five of the public health law to deliver early
13 intervention program multi-disciplinary evaluations, service coordi-
14 nation services and early intervention program services, and is lawfully
15 operated by a not-for-profit corporation or professional services organ-
16 ization established pursuant to article fifteen of the business corpo-
17 ration law, article twelve of the limited liability law and article
18 eight-B of the partnership law.
19 c. "Early intervention program services" means early intervention
20 services as defined in subdivision seven of section twenty-five hundred
21 forty-one of the public health law that are provided under the early
22 intervention program and authorized in an eligible child's individual-
23 ized family services plan.
24 d. "Multi-disciplinary evaluation" for purposes of a special education
25 school means a multi-disciplinary evaluation of a preschool child
26 suspected of having a disability or a preschool child with a disability
27 that is conducted pursuant to section forty-four hundred ten of this
28 chapter or an evaluation of a school-age child suspected of having a
29 disability or with a disability which is conducted by a child care
30 institution that operates a special education school or the special
31 education school operated by such institution pursuant to subdivision
32 three of section four thousand two of this chapter or by an institution
33 for the deaf or blind operating pursuant to article eighty-five of this
34 chapter or an evaluation of a school-age child suspected of having a
35 disability or with a disability that is authorized to be conducted by a
36 special education school pursuant to any other provision of this chapter
37 and the regulations of the commissioner for purposes of identification
38 of the child as a child with a disability or the development of an indi-
39 vidualized education program for the child.
40 e. "Multi-disciplinary evaluation" for purposes of the early inter-
41 vention program means a professional, objective assessment conducted by
42 appropriately qualified personnel in accordance with section twenty-five
43 hundred forty-four of the public health law and its implementing regu-
44 lations to determine a child's eligibility for early intervention
45 program services.
46 f. "Related services" means related services as defined in paragraph g
47 of subdivision two of section four thousand two, paragraph k of subdivi-
48 sion two of section forty-four hundred one, or paragraph j of subdivi-
49 sion one of section forty-four hundred ten of this chapter provided to a
50 child with a disability pursuant to such child's individualized educa-
51 tion program.
52 2. Waiver. a. No special education school may employ individuals
53 licensed pursuant to this article to conduct components of a multi-dis-
54 ciplinary evaluation of a child with a disability or a child suspected
55 of having a disability or to provide related services to children with
56 disabilities enrolled in the school, and no special education school may
A. 8689--C 5
1 provide such an evaluation component or related services by contract
2 with an individual licensed or otherwise authorized to practice pursuant
3 to this article or with a professional service corporation, professional
4 service limited liability company, or registered limited liability part-
5 nership authorized by law to provide professional services, unless such
6 school obtains a waiver pursuant to this section. All special education
7 schools approved by the commissioner as of the effective date of this
8 section shall be deemed operating under a waiver pursuant to this
9 section for a period commencing on such effective date and ending on
10 July first, two thousand eleven.
11 b. No early intervention agency may employ or contract with individ-
12 uals licensed pursuant to this article or with a professional service
13 corporation, professional service limited liability company, partnership
14 or registered limited liability partnership authorized by law to provide
15 the applicable professional services, to conduct an early intervention
16 program multi-disciplinary evaluation, provide service coordination
17 services or early intervention program services unless such agency has
18 obtained a waiver pursuant to this section and has been approved in
19 accordance with title two-A of article twenty-five of the public health
20 law as an early intervention program provider. All early intervention
21 agencies in existence as of the effective date of this section shall be
22 deemed to be operating under a waiver pursuant to this section for a
23 period commencing on such effective date and ending on July first, two
24 thousand eleven. Nothing in this section shall be construed to require
25 an early intervention agency to operate under a waiver in accordance
26 with this section provided that it is otherwise authorized by law to
27 provide the applicable professional services.
28 3. Obtaining a waiver. a. A special education school and early inter-
29 vention agency shall obtain an application for a waiver on a form
30 prescribed by the department.
31 b. Within one hundred twenty days after the commissioner prescribes
32 the application form and posts notice of its availability on the depart-
33 ment's website, a special education school or early intervention agency
34 must apply for a waiver. Upon submission of such application, the school
35 or agency may continue to operate and provide services until the depart-
36 ment shall either deny or approve the application. After the department
37 renders a timely initial determination that the applicant has submitted
38 the information necessary to verify that the requirements of paragraphs
39 c, d and e of this subdivision are satisfied, applications for waivers
40 shall be approved or denied within ninety days, provided however that if
41 the waiver application is denied the school or agency shall cease
42 providing services pursuant to this subdivision in the state of New
43 York.
44 c. Such waiver shall provide that services rendered pursuant to this
45 section, directly or indirectly, shall be provided only by a person
46 appropriately licensed, except as otherwise provided in law, to provide
47 such services or by a professional services entity authorized by law to
48 provide such services.
49 d. An application for a waiver to provide services pursuant to this
50 section shall be on a form prescribed by the commissioner. Such applica-
51 tion shall include:
52 (i) the name of the special education school or early intervention
53 agency;
54 (ii) the names of the directors or trustees and officers of such
55 school or agency;
A. 8689--C 6
1 (iii) a listing of any other jurisdictions where such school or agency
2 may provide services; and
3 (iv) an attestation made by an officer authorized by such school or
4 agency to make such attestation that identifies the scope of services to
5 be provided; includes a list of professions under this title in which
6 professional services will be provided by such school or agency;
7 includes a statement that, unless otherwise authorized by law, the
8 school or agency shall only provide services authorized under this
9 section; includes a statement that only a licensed professional, a
10 person otherwise authorized to provide such services, or a professional
11 services entity authorized by law to provide such services shall provide
12 such services as authorized under this section; and attests to the
13 adequacy of the school's or agency's fiscal and financial resources to
14 provide such services. Such application shall also include any other
15 information related to the application as may be required by the depart-
16 ment. A school or agency with an approved waiver may apply, on a form
17 prescribed by the commissioner, to amend the waiver to add additional
18 professional services.
19 e. Each officer and director of such school or agency shall provide an
20 attestation regarding his or her good moral character as required pursu-
21 ant to paragraph g of this subdivision. The commissioner shall be
22 further authorized to promulgate rules or regulations relating to the
23 standards of the waiver for special education schools and early inter-
24 vention agencies pursuant to this section. Such regulations shall
25 include standards relating to the school's or agency's ability to
26 provide services, the school's or agency's maintenance of patient and
27 business records, the school's or agency's fiscal policies, and such
28 other standards as may be prescribed by the commissioner.
29 f. The special education school or early intervention agency operating
30 pursuant to a waiver shall display, at each site where services are
31 provided to the public, a certificate of such waiver issued by the
32 department pursuant to this section, which shall contain the name of the
33 school or agency and the address of the site. Such schools or agencies
34 shall obtain from the department additional certificates for each site
35 at which professional services are provided to the public. Each school
36 or agency shall be required to re-apply for a waiver every three years.
37 An early intervention agency's waiver shall not be renewed unless the
38 agency is approved to provide early intervention program multi-discipli-
39 nary evaluations, service coordination or early intervention program
40 services in accordance with title two-A of article twenty-five of the
41 public health law. Except as otherwise provided in subdivision four of
42 this section, if any information supplied to the department regarding
43 the school or agency shall change, the school or agency shall be
44 required to provide such updated information to the department within
45 sixty days.
46 g. All officers and directors of such schools or agencies shall be of
47 good moral character. Schools or agencies operating pursuant to a waiver
48 and their officers and directors shall be entitled to the same due proc-
49 ess procedures as are provided to such individuals and professional
50 services corporations. No waiver issued under this section shall be
51 transferable or assignable, as such terms are defined in the regulations
52 of the commissioner.
53 4. Change of location. In the event that a change in the location of
54 the chief administrative offices of a special education school or early
55 intervention agency is contemplated, the owner shall notify the office
A. 8689--C 7
1 of professions of the department of the change of location at least
2 thirty days prior to relocation.
3 5. Professional practice. a. Notwithstanding any other provision of
4 law to the contrary, a special education school operating under a waiver
5 may employ individuals licensed or otherwise authorized to practice any
6 profession pursuant to this article to conduct components of a multi-
7 disciplinary evaluation of a child with a disability or a child
8 suspected of having a disability or to provide related services to chil-
9 dren with disabilities enrolled in the school or may provide components
10 of such an evaluation or such related services by contract with an indi-
11 vidual licensed or otherwise authorized to practice pursuant to this
12 article or a professional service corporation, professional service
13 limited liability company, partnership or registered limited liability
14 partnership authorized by law to provide the applicable professional
15 services.
16 b. Notwithstanding any other provision of law to the contrary, an
17 early intervention agency operating under a waiver that is approved in
18 accordance with title two-A of article twenty-five of the public health
19 law may employ or contract with individuals licensed or otherwise
20 authorized to practice any profession pursuant to this article or with a
21 professional service corporation, professional service limited liability
22 company, partnership or registered limited liability partnership author-
23 ized to conduct early intervention program multi-disciplinary evalu-
24 ations, provide service coordination services and early intervention
25 program services.
26 c. A special education school or early intervention agency operating
27 under a waiver shall not practice any profession licensed pursuant to
28 this title or hold itself out to the public as authorized to provide
29 professional services pursuant to this title except as authorized by
30 this section or otherwise authorized by law.
31 6. Supervision of professional practice. A special education school or
32 early intervention agency shall be under the supervision of the regents
33 of the university of the state of New York and be subject to discipli-
34 nary proceedings and penalties. A special education school or early
35 intervention agency operating under a waiver shall be subject to suspen-
36 sion, revocation or annulment of the waiver for cause, in the same
37 manner and to the same extent as is provided with respect to individuals
38 and their licenses, certificates, and registrations in the provisions of
39 this title relating to the applicable profession. Notwithstanding the
40 provisions of this subdivision, a special education school or early
41 intervention agency that conducts or contracts for a component of a
42 multi-disciplinary evaluation that involves the practice of medicine
43 shall be subject to the pre-hearing procedures and hearing procedures as
44 is provided with respect to individual physicians and their licenses in
45 title two-A of article two of the public health law. Notwithstanding
46 any other provision of law to the contrary, upon revocation or other
47 termination by the commissioner of approval of the special education
48 school pursuant to article eighty-nine of this chapter and the regu-
49 lations of the commissioner implementing such article or termination of
50 approval of the early intervention agency by the commissioner of health
51 pursuant to title two-A of article twenty-five of the public health law
52 and implementing regulations or by the commissioner pursuant to subdivi-
53 sion eighteen of section forty-four hundred three of this chapter, the
54 school's or early intervention agency's waiver pursuant to this section
55 shall be deemed revoked and annulled.
A. 8689--C 8
1 § 5. Notwithstanding any laws to the contrary, a provider of a program
2 or services approved pursuant to subdivision 9 of section 4410 of the
3 education law or pursuant to title 2-A of article 25 of the public
4 health law that, prior to the effective date of this act, was organized
5 as a for-profit business entity and that is therefore not qualified to
6 receive a waiver pursuant to the provisions of this act, shall continue
7 to operate and provide services pursuant to the approved program for a
8 period up to and ending on June 30, 2013. Commencing on July 1, 2013,
9 the approval of such provider to operate the program or provide services
10 shall be deemed revoked and terminated, unless the provider is organized
11 or formed in a manner prescribed by law that authorizes the provider to
12 operate and provide the approved program, as approved by the commission-
13 er of education.
14 § 6. This act shall take effect June 30, 2010.
