Waiver requirements for special education schools and early intervention agencies.
Purpose:
To implement chapter 581 of the Laws of 2011 by establishing waiver requirements for certain entities.
Text or summary was published
in the January 11, 2012 issue of the Register, I.D. No. EDU-02-12-00018-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, New York State Education Department, 89 Washington Avenue, Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Assessment of Public Comment
Since publication of a Notice of Proposed Rule Making in the State Register on January 11, 2012, the State Education Department received the following comments.
COMMENT: A commenter asked for clarification whether the waiver "travels with the entity," in the case of a change to the ownership of an entity holding a waiver or a merger with another entity. The commenter noted that section 59.15(i) speaks to the "Transfer or Assignment of Waiver" and suggested that the regulation should make clear that the entity itself has propriety over the waiver, even if the ownership situation or personages of the entity change.
RESPONSE: The commenter is correct that the entity retains the waiver if a change of ownership should occur, unless the change constitutes a change in control of the entity, in which case it may constitute a prohibited transfer.
COMMENT: A commenter asked if some of the information provided with an application waiver under section 6503-a of the Education Law, may be transferable to comply with similar requirements for a waiver under section 6503-b.
RESPONSE: The Department will work with an entity seeking a waiver under 6503-b to consider and review as part of that application any information that was submitted as part of an application for a waiver under 6503-a.
COMMENT: The commenter asked whether an approved private school for the education of students with disabilities is exempt from the waiver requirement, as the schools are currently under the supervision of the Education Department.
RESPONSE: The school should obtain a waiver, unless it has a clear exemption from corporate practice restrictions, such as a school that is also a health facility licensed under Article 28 of the Public Health Law. Since all such approved schools are not the same, each should make the decision to apply based on the specific circumstances.
COMMENT: A commenter indicated that the $345 application fee and the $260 triennial registration fee established in law are excessive, given that the rates for approved private schools remain at the 2008 level.
RESPONSE: As noted by the commenter, the fee is established in law and cannot be changed by regulation. The fee provides funding for the new responsibilities given to the New York State Education Department (NYSED), including the review, approval and issuance of waivers and the disciplinary process.
COMMENT: A commenter asked if the waiver will apply to a professional services entity that is authorized to provide certain services, but wants to provide additional early intervention services beyond those that the entity is otherwise authorized to provide.
RESPONSE: No, a professional services entity can only provide those early intervention services that it is lawfully authorized to provide.
COMMENT: Please clarify if the exemption from a waiver, as defined in section 59.15(b)(2), applies only to the provision of special education services.
RESPONSE: If an entity is exempt from the waiver under this section, it may provide the services specified in 6503-b(2)(a) and (b), provided that the entity is legally authorized to provide services.
COMMENT: Please clarify if the exemption from a waiver, as defined in section 59.15(b)(2) for a child care institution, extends to early intervention services.
RESPONSE: A child care institution that provides early intervention services may be required to obtain a waiver if such services are provided directly by the child care institution.
COMMENT: Section 59.15(c)(1) indicates that an entity applying for a waiver after July 1, 2013 must demonstrate a need for the entity's services. The New York State Department of Health (NYSDOH) suggests that, at a minimum, the Education Department consult with and/or obtain from NYSDOH a recommendation in determining the need for early intervention agencies.
RESPONSE: The law and regulations imply a collaboration between NYSED and NYSDOH, and we look forward to working with our colleagues to determine the need for agencies and services.
COMMENT: Section 59.15(c)(3)(ii)(b) states the application must include evidence that the entity is an approved agency, as defined in the Education Law. Does this process require that the entity already be an approved early intervention agency? Does the process allow an applicant for a waiver to be in the process of receiving a NYSDOH approval as a new agency?
RESPONSE: When the Education Department establishes the process for review and approval of waiver applicants, it will allow an entity that is approved, or has an application pending with NYSED or NYSDOH, to apply for a waiver. The issuance of a waiver may be dependent on approval by the agency, or the approval of the agency may be dependent on the issuance of a waiver, depending upon the procedures that will be developed.
COMMENT: Section 59.15(c)(3)(vi) of the regulation requires an entity to include a list of jurisdictions in which the entity may provide services. Please clarify the definition of "jurisdiction" and would this restrict an approved EI agency from providing a home and community based service in jurisdictions that were not listed in the application?
RESPONSE: The definition of jurisdiction would include other states, territories or the District of Columbia. The Department asks for this information in the event it is necessary to review any disciplinary action against an entity in another U.S. jurisdiction.
COMMENT: Section 59.15(c)(3)(vii)(h) states the entity will comply with section 18 of the Public Health Law relating to patient access to records. Access to early intervention records is governed by the Family Educational Rights and Privacy Act (FERPA) and perhaps this regulation is intended to address the records maintained by physicians involved in multi-disciplinary evaluations. Please clarify?
RESPONSE: A licensed professional or entity is required to comply with all state or federal laws or regulations relating to privacy and access to records. In the event that FERPA is applicable, those rules for access to records would apply.
COMMENT: Under section 59.15(d)(2) the application must include an attestation of moral character from each director, officer or trustee of the entity seeking a waiver, and questions will be referred to the Office of Professional Discipline and the determination made in accordance with Subpart 28-1 of the Rules of the Board of Regents. Does this process allow for an interagency exchange of information since the continued approval as an EI agency should also be re-assessed should there be a discovery related to moral character?
RESPONSE: Education Law section 6510(8) states that investigation files related to the moral fitness of an applicant are confidential, but allows the NYSED to share information with other duly authorized public agencies responsible for professional regulation or criminal prosecution. Therefore, the Department may consult with NYSDOH or other agency, as appropriate, in the review of a question of an applicant's moral character.
COMMENT: NYSDOH suggests that section 59.15(e)(1) be amended to clarify that a special education school or early intervention program operating under a waiver may employ "or contract with" individuals licensed or otherwise authorized to practice a profession.
RESPONSE: The comment has already been addressed in subdivision 59.15(d) which requires the entity, as part of the application, to describe whether the services will be provided by licensed or authorized individuals employed by the entity or provided through a contract with licensed professionals or individuals otherwise authorized to practice or a professional entity, as set forth in Education Law section 6503-b(6). Therefore, a clarification of section 59.15(3)(1) is not required.
COMMENT: Section 59.15(f) states an application may be denied if all necessary information has not been received. We suggest that this process allow for notification to the NYSDOH of the determination to deny an application, with respect to an early intervention agency.
RESPONSE: The Education Department concurs with the suggestion and will provide notification to the NYSDOH if any application is denied. It should be noted that all approved entities will be posted on the Office of the Professions website: www.op.nysed.gov.
COMMENT: Section 59.15(f) states that, if an application is denied, the entity must cease the provision of professional services. Does this allow for a period of time for the transitioning of services to new agencies or must the provision of professional services end immediately upon the NYSED notification of denial?
RESPONSE: Education Law 6503-b(3)(b) states that if the waiver application is denied the school or agency shall cease providing such services in the State of New York. The regulation is consistent with the statute.
COMMENT: Section 59.15(g)(1) states an entity must display a waiver certificate for each setting at which professional services. The commenter asked for clarification about this requirement when the agency provides services in the client's home and there may not be a facility operated by the agency.
RESPONSE: Similar to section 59.8(c) of the Commissioner's Regulations, which requires a licensed professional to display the registration certificate, where practice is carried on in places other than individual offices, the entity shall have a current waiver certificate available for inspection at all times.
COMMENT: Section 59.15(g)(2) states that an application for additional waiver certificates may be made as part of the initial application or after the Department has approved the entity for a waiver. Please clarify if the agency will be required to pay a fee if they apply for additional certificates after submitting the initial waiver application.
RESPONSE: The regulations do not impose any fee for additional waiver certificates, if the entity has paid the initial application fee.
COMMENT: Section 59.15(g)(5) allows an entity to submit an amended application to include additional professional services. In the case of an early intervention program applying for a waiver, would NYSED seek the input of NYSDOH in regard to those entities?
RESPONSE: The Department plans to consult with NYSDOH, as appropriate, throughout its review of applications.
COMMENT: Section 59.15(h)(1) and (2) state that an entity holding a waiver must notify the NYSED within 30 days if there is a change in the location of its executive offices and within 60 days if there are other changes in the information supplied to the Department. The NYSDOH asks for clarification if NYSED plans to approve or deny any planned changes or if the notification can be submitted after the fact.
RESPONSE: The NYSED would expect that notification be made after a planned change of address, phone number, etc., has been made, in order to ensure that NYSED can contact the entity in the future. Whether the Department would approve or deny any planned change would depend on the nature of the change submitted.
COMMENT: Section 59.15(j) states a waiver is valid for three years and an entity must submit an application for renewal. The NYSDOH asks if NYSED contemplates posting information about an entity's waiver status, including expiration date, on the Office of the Professions website. Further, will there be a process by which NYSDOH is notified regarding the decisions of an early intervention agency?
RESPONSE: The Department will post on the Office of the Professions website (www.op.nysed.gov) information about entities, including the date a waiver certificate expires.
COMMENT: Section 29.18 of the Regents Rules indicates that an entity holding a waiver is subject to the same disciplinary procedures and protections as a licensed individual or professional corporation. Will this process allow for the disclosure of information to the NYSDOH regarding the investigation and resulting decision for those entities which are EI agencies?
RESPONSE: As noted in the earlier response, under Education Law section 6510(8) information about pending investigations and disciplinary action is protected, but may be shared with "other duly authorized public agencies responsible for professional regulation or criminal prosecution." All final actions taken by the Board of Regents will be posted on the Department's website, the same as for actions taken against a licensed individual or professional entity.
COMMENT: One commenter expressed strong opinions about the provisions of Chapter 581 of the Laws of 2011 to allow the Department to issue waivers from corporate practice restrictions to for-profit providers, and urged that the Department oppose the waiver process to ensure public protection.
RESPONSE: The Department is implementing legislation that it supported to ensure that special education schools and early intervention agencies providing services to children are accountable to the Board of Regents, thus providing public protection.
