EDU-12-14-00013-EP Special Education Services and Programs for Preschool Children with Disabilities

3/26/14 N.Y. St. Reg. EDU-12-14-00013-EP

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 12

March 26, 2014

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-12-14-00013-EP

Filing No. 215

Filing Date. Mar. 11, 2014

Effective Date. Apr. 17, 2014

Special Education Services and Programs for Preschool Children with Disabilities

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of sections 200.16 and 200.20 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (20), 308(not subdivided), 4401(1)-(11), 4402(1)-(7), 4403(1)-(5), (9), (11), (13), (15), (20), 4410(1)-(5), (9), (9-a), (9-b), (9-d), (10), (11), (13); and L. 2013, ch. 545, sections 1 and 2

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The purpose of the proposed amendment is to conform the Commissioner's Regulations to Education Law section 4410, as amended by Chapter 545 of the Laws of 2013, which was enacted to address certain findings in relation to audits of preschool providers conducted by the Office of the State Comptroller. The proposed amendment to section 200.16(c) would require the Committee on Preschool Special Education to submit a written notice to the Commissioner when it places a preschool student with a disability in a program operated by the same provider who evaluated the student. The proposed amendment to section 200.20(b) would add a requirement that providers ensure that executive directors or individuals assigned with executive director responsibilities have an education background in a field related to business, administration and/or education and have the knowledge and ability to oversee a preschool special education program; ensure that executive directors reside within a reasonable geographic distance from the program to ensure appropriate oversight of the day to day activities of the program; and that individuals who are assigned in a full-time role as the executive director are not engaging in activities that would interfere with or impair the executive director’s ability to carry out and perform his or her duties, responsibilities and obligations.

Because the Board of Regents meets at fixed intervals, the earliest the proposed amendment can be presented for adoption as a permanent rule, after expiration of the required 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), would be the June 23-24, 2014 Regents meeting. Furthermore, pursuant to SAPA section 203(1), the earliest effective date of the proposed amendment, if adopted at the June meeting, would be July 9, 2014, the date a Notice of Adoption would be published in the State Register. However, the provisions of Chapter 545 of the Laws of 2013 become effective on April 17, 2014.

Emergency action to adopt the proposed amendment is necessary for the preservation of the general welfare in order to ensure the timely implementation of the provisions of Chapter 545 of the Laws of 2013 that: (1) require Committees on Preschool Special Education (CPSE) that recommend placement of a child in an approved program that also conducted an evaluation of the child to indicate in writing that such placement is appropriate and provide notice of such recommendation to the Commissioner; and (2) require a provider of preschool special education services or programs to certify pursuant to regulations promulgated by the Commissioner that it will take measures to ensure its executive director or person performing duties of a chief executive officer meets the criteria established by the Commissioner to be an executive director and, if paid as a full time executive director, that such executive director is employed in a full time, full year position and shall not engage in activity that would interfere or impair such executive director's ability to carry out and perform his or her duties, responsibilities and obligations.

It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the June 23-24, 2014 Regents meeting, which is the first meeting scheduled after expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5).

Subject:

Special Education Services and Programs for Preschool Children with Disabilities.

Purpose:

To implement L. 2013, Ch. 545, relating to CPSE placement of a child in an approved program that also conducted an evaluation of the child, and qualifications for executive directors of approved preschool programs.

Text of emergency/proposed rule:

1. Paragraph (3) of subdivision (c) of section 200.16 of the Regulations of the Commissioner of Education is amended, effective April 17, 2014, as follows:

(3) Prior to making any recommendation that would place a child in an approved program owned or operated by the same agency which conducted the [initial] evaluation of the child, the committee may exercise its discretion to obtain an evaluation of the child from another approved evaluator. If the committee recommends placing a child in an approved program that also conducted an evaluation of the child, it shall indicate in writing that the placement is appropriate for the child and shall provide written notice to the commissioner of such recommendation on a form prescribed by the commissioner.

2. A new paragraph (3) of subdivision (b) of section 200.20 of the Regulations of the Commissioner of Education is added, effective April 17, 2014, as follows:

(3) Each approved preschool program shall ensure that:

(i) the executive director or person assigned to perform the duties of a chief executive officer hired or assigned on or after April 17, 2014, shall have earned a bachelor’s degree or higher from an accredited or approved college or university in a field related to business, administration and/or education and shall have, but not be limited to, the following qualifications:

(a) knowledge of the requirements for providing appropriate evaluations and/or special education services and supervision to preschool students with disabilities;

(b) knowledge of and ability to comply with applicable laws and regulations;

(c) ability to maintain or supervise the maintenance of financial and other records;

(d) ability to establish the approved program’s policy, program and budget; and

(e) ability to recruit, employ, train, direct and evaluate qualified staff.

(ii) the executive director or person assigned to perform the duties of a chief executive officer shall reside within a reasonable geographic distance from the program’s administrative, instructional and/or evaluation sites to ensure appropriate oversight of the program; and

(iii) if paid as a full time executive director, the executive director shall be employed in a full-time, full-year position and shall not engage in activity that would interfere with or impair the executive director’s ability to carry out and perform his or her duties, responsibilities and obligations.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire June 8, 2014.

Text of rule and any required statements and analyses may be obtained from:

Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

James P. DeLorenzo, Assistant Commissioner P-12, State Education Department, Office of Special Education, State Education Building, Room 309, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department and charges the Department with the general management and supervision of public schools and the educational work of the State.

Education Law 207 grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.

Education Law 305(1) and (2) provide the Commissioner, as chief executive officer of the State education system, with general supervision over schools and institutions subject to the provisions of education law, and responsibility for executing Regents policies. Section 305(20) authorizes the Commissioner with such powers and duties as are charged by the Regents.

Education Law 308 authorizes the Commissioner to enforce and give effect to any provision in the Education Law or in any other general or special law pertaining to the school system of the State or any rule or direction of the Regents.

Education Law 4401 authorizes the Commissioner to approve private day and residential programs serving students with disabilities.

Education Law 4402 establishes districts’ duties regarding education of students with disabilities.

Education Law 4403 outlines the Department’s and district’s responsibilities regarding special education programs and services to students with disabilities. Section 4403(3) authorizes the Department to adopt regulations as the Commissioner deems in their best interests.

Education Law 4410 outlines special education services and programs for preschool children with disabilities. Section 4410(3) authorizes the Commissioner to adopt regulations.

Sections 1 and 2 of Chapter 545 of the Laws of 2013 amended Education Law section 4410 in relation to special education placements for preschool children with disabilities and requirements for executive directors of preschool special education programs.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is required by sections 1 and 2 of Chapter 545 of the Laws of 2013 to address certain findings made by the Office of the State Comptroller in its audits of preschool providers. The statute requires: (1) a Committee on Preschool Special Education (CPSE) that recommends placement of a child in an approved program that also conducted an evaluation of the child to indicate in writing that such placement is appropriate and provide notice of such recommendation to the Commissioner; and (2) a provider of preschool special education services or programs to certify pursuant to regulations promulgated by the Commissioner that it will take measures to ensure its executive director or person performing duties of a chief executive officer meets the criteria established by the Commissioner to be an executive director and, if paid as a full time executive director, that such executive director is employed in a full time, full year position and shall not engage in activity that would interfere or impair such executive director's ability to carry out and perform his or her duties, responsibilities and obligations.

3. NEEDS AND BENEFITS:

The proposed amendment would ensure increased review by CPSEs in the selection of preschool providers and would establish qualifications for executive directors of preschool programs to ensure that they have the appropriate background and qualifications and reside in a reasonable geographic distance from the program to ensure appropriate oversight of the preschool program.

4. COSTS:

a. Costs to State government: None.

b. Costs to local governments: None.

c. Costs to regulated parties: None.

d. Costs to the State Education Department of implementation and continuing compliance: None.

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013 and does not impose any additional costs on the State, local governments, private regulated parties or the State Education Department beyond those inherent in the statute.

5. LOCAL GOVERNMENT MANDATES:

Consistent with sections 1 and 2 of Chapter 545 of the Laws of 2013, the proposed amendment establishes requirements for school districts to report certain information on a preschool child with a disability’s selected provider and establishes qualifications for executive directors of approved preschool programs.

Section 200.16(c)(3) is amended to require a committee on preschool special education, when placing a child in the same program that conducted the child’s evaluation, to indicate in writing that the placement is appropriate and to notify the Commissioner.

Section 200.20(c) is amended to require each approved preschool program to ensure that an executive director or persons assigned to perform the duties of a chief executive officer hired or assigned on or after April 17, 2014 has earned a bachelor’s degree or higher from an accredited or approved college or university in a field related to business, administration and/or education and shall have, but not be limited to, appropriate qualifications to oversee a special education preschool program including, but not limited to knowledge of the requirements for providing appropriate evaluations and/or special education services and supervision to preschool students with disabilities; knowledge of and ability to comply with applicable laws and regulations; ability to maintain or supervise the maintenance of financial and other records; ability to establish the approved program’s policy, program and budget; and ability to recruit, employ, train, direct and evaluate qualified staff. Further, the proposed amendment would require each executive director or persons assigned to perform the duties of a chief executive officer to reside within a reasonable geographic distance from the program’s administrative, instructional and/or evaluation sites to ensure appropriate oversight of the program; and to require that, if paid as a full time executive director, the executive director shall be employed in a full-time, full-year position and shall not engage in activity that would interfere with or impair the executive director’s ability to carry out and perform his or her duties, responsibilities and obligations.

6. PAPERWORK:

The proposed amendment requires a written notification by school districts to the Commissioner on a form prescribed by the Commissioner.

7. DUPLICATION:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2014 and will not duplicate, overlap or conflict with any other State or federal statute or regulation.

8. ALTERNATIVES:

The Department considered requiring all executive directors of preschool programs to meet the new qualifications but determined that doing so may result in individuals losing their current positions. The Department also considered a new reporting form for CPSEs to submit notification to the Commissioner of the provider recommendation but determined it would reduce school district and State Education Department administrative burden and costs to add this information to an existing form (“Preschool STAC-1: Request for Commissioner’s Approval of Reimbursement for Services for students with Disabilities") which school districts must currently submit for each preschool student with a disability. Including this notice on the STAC-1 would minimize the administrative burden of school districts for additional reporting as well as provide the Department with the ability to verify and run reports on such data using existing technology.

9. FEDERAL STANDARDS:

The proposed amendment does not exceed any minimum standards of the federal government for the same or similar subject areas and is not required by federal law or regulations, but will ensure consistency with recent changes to State statute.

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the proposed amendment by its effective date.

Regulatory Flexibility Analysis

1. EFFECT OF RULE:

The proposed amendment of section 200.16 applies to each of the 695 public school districts in the State. The proposed amendment of section 200.20 applies to approved preschool programs for preschool children with disabilities funded pursuant to Education Law section 4410. It is estimated that 115 of such providers are small businesses.

2. COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013, which requires the Department to establish regulations regarding the qualifications of executive directors of preschool programs for students with disabilities and reporting to the Department when a school district places a child with the same provider that evaluated the child for special education. The proposed amendment does not impose any additional compliance requirements on small businesses or local governments beyond those inherent in the statute.

Section 200.16(c)(3) is amended to require a committee on preschool special education, when placing a child in the same program that conducted the child’s evaluation, to indicate in writing that the placement is appropriate and to notify the Commissioner on a form prescribed by the Commissioner.

Section 200.20(c) is amended to add a new paragraph (3) to require each approved preschool program to ensure that an executive director or persons assigned to perform the duties of a chief executive officer hired or assigned on or after April 17, 2014 has earned a bachelor’s degree or higher from an accredited or approved college or university in a field related to business, administration and/or education and shall have, but not be limited to, appropriate qualifications to oversee a special education preschool program including, but not limited to knowledge of the requirements for providing appropriate evaluations and/or special education services and supervision to preschool students with disabilities; knowledge of and ability to comply with applicable laws and regulations; ability to maintain or supervise the maintenance of financial and other records; ability to establish the approved program’s policy, program and budget; and ability to recruit, employ, train, direct and evaluate qualified staff. Further, the proposed amendment would require each executive director or persons assigned to perform the duties of a chief executive officer to reside within a reasonable geographic distance from the program’s administrative, instructional and/or evaluation sites to ensure appropriate oversight of the program; and to require that, if paid as a full time executive director, the executive director shall be employed in a full-time, full-year position and shall not engage in activity that would interfere with or impair the executive director’s ability to carry out and perform his or her duties, responsibilities and obligations.

3. PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional service requirements on small businesses or local governments.

4. COMPLIANCE COSTS:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013 and does not impose any additional costs on small businesses or local governments beyond those inherent in the statute.

5. ECONOMICAL AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements. Economic feasibility is addressed above under compliance costs.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013, and has been carefully drafted to meet State statutory requirements while minimizing adverse impact. The proposed amendment does not impose any additional costs or compliance requirements on small businesses or local governments beyond those inherent in the statute. To minimize the administrative burden on school districts imposed by statute, the regulations would provide that districts submit information on the preschool student’s placement on a form that they are currently required to submit for State reimbursement purposes (“Preschool STAC-1: Request for Commissioner’s Approval of Reimbursement for Services for students with Disabilities"). Including this notice on the STAC-1 would minimize the administrative burden of school districts for additional reporting as well as provide the Department with the ability to verify and run reports on such data using existing technology.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

Copies of the proposed amendment have been provided to District Superintendents and the chief officers of the Big 5 city school districts with the request that they distribute them to school districts within their supervisory districts for review and comment. The proposed amendment was disseminated to approved preschool special education providers, including those that are small businesses.

8. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement statutory requirements in Chapter 545 of the Laws of 2013 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10 of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The proposed amendment will apply to all public school districts and approved preschool programs for preschool children with disabilities funded pursuant to Education Law section 4410 in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with population density of 150 per square miles or less. Currently, there are 130 approved preschool programs located in rural areas.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the New York State (NYS) Laws of 2013, which requires the Department to establish regulations regarding the qualifications of executive directors of preschool programs for students with disabilities and reporting to the Department when a school district places a child with the same provider that evaluated the child for special education. The proposed amendment does not impose any additional reporting, record keeping or other compliance requirements, or professional service requirements, on entities in rural areas beyond those imposed by the statute.

Section 200.16(c)(3) is amended to require a committee on preschool special education, when placing a child in the same program that conducted the child’s evaluation, to indicate in writing that the placement is appropriate and to notify the Commissioner on a form prescribed by the Commissioner.

Section 200.20(c) is amended to require each approved preschool program to ensure that an executive director or persons assigned to perform the duties of a chief executive officer hired or assigned on or after April 17, 2014 has earned a bachelor’s degree or higher from an accredited or approved college or university in a field related to business, administration and/or education and shall have, but not be limited to, appropriate qualifications to oversee a special education preschool program including, but not limited to knowledge of the requirements for providing appropriate evaluations and/or special education services and supervision to preschool students with disabilities; knowledge of and ability to comply with applicable laws and regulations; ability to maintain or supervise the maintenance of financial and other records; ability to establish the approved program’s policy, program and budget; and ability to recruit, employ, train, direct and evaluate qualified staff. Further, the proposed amendment would require each executive director or persons assigned to perform the duties of a chief executive officer to reside within a reasonable geographic distance from the program’s administrative, instructional and/or evaluation sites to ensure appropriate oversight of the program; and to require that, if paid as a full time executive director, the executive director shall be employed in a full-time, full-year position and shall not engage in activity that would interfere with or impair the executive director’s ability to carry out and perform his or her duties, responsibilities and obligations.

The proposed amendment does not impose any additional professional service requirements on entities in rural areas.

3. COSTS:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013 and would not impose any additional costs to school districts or providers in rural areas, beyond those inherent in the statute.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013, and has been carefully drafted to meet State statutory requirements while minimizing adverse impact. Since the statutory requirements apply to all school districts and approved providers in the State, it is not possible to adopt different standards for these entities located in rural areas. The proposed amendment does not impose any additional costs or compliance requirements on these entities beyond those inherent in the statute. To minimize the administrative burden on school districts imposed by statute, the regulations would provide that districts submit information on the preschool student’s placement on a form that they are currently required to submit for State reimbursement purposes (“Preschool STAC-1: Request for Commissioner’s Approval of Reimbursement for Services for students with Disabilities"). Including this notice on the STAC-1 would minimize the administrative burden of school districts for additional reporting as well as provide the Department with the ability to verify and run reports on such data using existing technology.

5. RURAL AREA PARTICIPATION:

The proposed amendment was submitted for review and comment to the Department’s Rural Education Advisory Committee, which includes representatives of school districts in rural areas. The proposed amendment was disseminated to approved preschool special education providers, including those that are located in rural areas.

6. INITIAL REVIEW OF RULE (SAPA § 207):

Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed amendment is necessary to implement statutory requirements in Chapter 545 of the Laws of 2013 and therefore the substantive provisions of the proposed amendment cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10 of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.

Job Impact Statement

The proposed amendment is necessary to implement sections 1 and 2 of Chapter 545 of the Laws of 2013 relating to the placement of children in preschool special education programs requirements for executive directors of preschool special education programs. The statute requires: (1) Committees on Preschool Special Education (CPSE) that recommend placement of a child in an approved program that also conducted an evaluation of the child to indicate in writing that such placement is appropriate and provide notice of such recommendation to the Commissioner; and (2) a provider of preschool special education services or programs to certify pursuant to regulations promulgated by the Commissioner that it will take measures to ensure its executive director or person performing duties of a chief executive officer meets the criteria established by the Commissioner to be an executive director and, if paid as a full time executive director, that such executive director is employed in a full time, full year position and shall not engage in activity that would interfere or impair such executive director's ability to carry out and perform his or her duties, responsibilities and obligations.

The proposed amendment will not have a substantial impact on jobs and employment opportunities. Because it is evident from the nature of the amendment that it will not affect job and employment opportunities, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.