Special Education / NY State Education Department Issues

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1 Cerebral Palsy Associations of New York State (CP of NYS) Perspective Paper on Special Education / NY State Education Department Issues 90 State Street, Suite 929, Albany, NY (518)

2 CEREBRAL PALSY ASSOCIATIONS OF NEW YORK STATE (CP OF NYS) Cerebral Palsy Associations of New York State (CP of NYS) was founded sixty years ago by families looking for services for their children with cerebral palsy, and today is comprised of 24 Affiliates serving all 62 counties of New York State. We are non-profit service providers and advocates for approximately 87,000 persons with developmental and other disabilities. Our Affiliates provide services to individuals of all ages with all types of developmental and other disabilities. We provide early intervention, special education services, Article 28 and Article 16 clinic services, durable medical equipment (DME), and in varied day and residential settings, we support persons with developmental disabilities, traumatic brain injuries (TBI) and other medical conditions. In providing these services, we are regulated by the New York State Education Department (SED), the New York State (NYS) Department of Health (DOH), the NYS Office of Mental Retardation and Developmental Disabilities (OMRDD) and in some instances, the NYS Office of Mental Health (OMH), and are subject to the pertinent federal and state laws and regulations for which these agencies hold responsibility. As integral parts of our communities we employ close to 20,000 people throughout New York State. We are committed to continuous improvement and compliance both in our service delivery and administrative practices. As an organization of experienced New Yorkers, we have prepared the following document to share with you our perspective on the state of special education service systems that we touch on a daily basis

3 SPECIAL EDUCATION / SED ISSUES Background/History/Role of Private Schools CP of NYS was founded sixty years ago as a result of efforts by parents to secure needed services for their young children with disabilities. At that time, there was no mandate for public schools to serve children with disabilities, and the services provided by our Affiliates were often the only option available for families seeking both educational and therapeutic services for their children. Today, CP of NYS special education programs and services are critical components of the public system to provide a Free and Appropriate Public Education (FAPE) to students with disabilities as mandated by federal law. CP of NYS Affiliates throughout New York State have been offering a wide array of early intervention, preschool and school-age special education services for children with disabilities. We have seen many changes throughout the past 60 years and have continually adapted our programs and services to meet the changing needs of children and families, incorporated emerging best practice models as well as responded to the priorities established by state and local funding agencies. Even with the passage of P.L and subsequent amendments providing an entitlement to a free, appropriate public education for students with disabilities, our preschool and school-age programs have remained an integral part of the service system, particularly for students with more severe disabilities. CP of NYS Affiliates operate private preschool program established pursuant to NYS Education Law 4410 (commonly referred to as 4410 schools) and school-age special education programs established pursuant to Chapter 853 of the Laws of 1976 (commonly referred to as 853 schools). Both types of schools are approved by the New York State Education Department (SED). These programs are publicly-funded, adhere to the same standards as, and augment the services of public school districts for students with disabilities who cannot be appropriately served by their local districts. It is important to note that families do not unilaterally choose to send their children to our schools, as is the case with other private schools or publicly-funded charter schools. Rather, it is the local school district that determines a student s placement in our schools when there is no appropriate program available through the public school system. While we serve this public function, reimbursement methodologies and other policies set by SED often do not recognize or acknowledge the critical role we play in providing students with the most severe disabilities a Free and Appropriate Public Education. Presently, 10 of the CP of NYS Affiliates operate full-day school-age programs for students between the ages A total of 22 Affiliates offer preschool programs that provide the following types of services: Preschool Evaluation; Special Education Itinerant Teacher; Therapy Services; Integrated and Self Contained Classrooms; Universal Pre- Kindergarten; Day Care and Nursery School. With this history/role serving as a backdrop, we share our perspective on the major policy issues impacting our schools and the delivery of education programs to our students

4 FINANCING OF PRIVATE PRESCHOOL AND SCHOOL-AGE SPECIAL EDUCATION PROGRAMS Policy Issues Legislation to reform the methodology presently employed to establish tuition rates for education programs approved to serve the public placement of preschool and school-age children with disabilities was passed by the Legislature in 2005 and However, the Governor vetoed the legislation in both instances although the veto message indicated that the Governor supported the overall concept of the legislation. The objective of this reform effort is to stabilize tuition rates and ensure that they are in line with necessary and reasonable costs of educating children with special needs. The effort to reform the methodology is of particular importance given the NYS Court of Appeals decision in Campaign For Fiscal Equity, Inc. v. State of New York (the "CFE litigation"). The influx of additional State aid into public school districts will further widen the funding disparity between our schools and public schools. We believe that the ramifications of the Court s decision s on our education programs viability will be of great consequence because our schools provide the federally mandated free and appropriate public education for children with special needs. Therefore, the financial viability of our schools should be part of New York State s strategy to provide funding for a sound basic education for all of NYS s children. The current methodology evolved from a process used in the 1970 s to develop tuition rates for the school-age population as part of the enactment of Chapter 853 of the Laws of The methodology uses historical costs and enrollment from a base year to establish a tuition rate two years subsequent to the base year. The methodology has become overly complex and untimely; it has placed approved programs at a high risk of not having adequate resources to finance their education programs and of seriously compromising their ability to fulfill the requirements of the Individualized Education Plan (IEP) as directed by federal law. The factors that contribute to the complexity include: untimely rate establishment and certification making responsible financial planning virtually impossible; inadequate accommodation of costs driven by market conditions; inadequate resources to better align teachers salaries in approved programs with the public education sector; the inability of the system to respond to changes in intensity of childrens service mandates from year to year, resulting in significant working capital requirements without assurance of recoupment; - 3 -

5 fluctuations in enrollment which affect tuition rates; lack of a mechanism for demonstrating innovative ways to provide services without jeopardizing future finances; and lack of consistent and clear criteria for favorable consideration of a waiver from the methodology. Policy Recommendations CP of NYS recommends that the NY State Education Department (SED) and NYS Division of the Budget (DOB) pursue the following actions to have a more efficient and effective tuition financing system. Implement a multi-year rate-setting system, similar to the one passed by the Legislature, as rates have not been set within the timeframes required by Education Law Articles 81 and 89 in more than a decade. Establish regional rates for Special Education Itinerant Teacher (SEIT) services. Allow retainage of up to a 2% fund balance in one year. Empower approved programs to develop and propose innovative ways to provide education programs without being penalized fiscally or programmatically. Allow savings in cost-per-care-day in one year without penalty in subsequent years. Accommodate reasonable and explainable fluctuations in enrollment. Allow approved programs the flexibility to align classroom ratios to the mandates of placed students, supported by certification of compliance with regulations governing class size. Define the criteria for methodology waivers that can be approved by SED, and those that must be approved by the DOB. Ensure adequate resources to finance costs controlled by market conditions. Establish a better alignment of salaries between approved programs and public school programs. Most of the above action items have a fiscally neutral impact on state and local resources. Implementing all of these actions will result in: providing our school programs with timely tuition rates so we can better plan our budgets; provide resources for costs governed by market conditions such as health insurance and energy costs; more efficient ways to educate children and thereby avoid certain costs; and enhance our capability to retain teachers and not lose them to the public school system

6 CHILDREN S RESIDENTIAL PROGRAM Policy Issue In October 2003, the Governor s Office, through the Council on Children and Families, established the Interagency Work Group on Out-of-State Residential Placements to determine the causes at the state and community levels for the number of out-of-state residential placements in both the education and social services systems. Concerns about out-of-state residential placements then at about 1,400 children included the quality of care New York State youth were receiving, economic impact, costs of out-of-state residential placements, aggressive marketing to localities in New York State by out-of-state residential facilities, geographic and regional disparities in service delivery and placement patterns, and the many ways that families are impacted. Five of our Affiliates are involved in this effort to reduce the number of children being sent out-of-state for their education program. These Affiliates operate residential programs for students with disabilities as part of New York State s Children s Residential Project (CRP). The CRP consists of an SED-approved private school and a residence certified by the Office of Mental Retardation and Developmental Disabilities (OMRDD) as an Intermediate Care Facility for the Developmentally Disabled (ICF/DD). Admission to the CRP program is limited to those students identified through the education system as needing educational/residential services who also meet the ICF/DD eligibility criteria. Presently, our Affiliates serve 134 students placed through the CRP process and have received approval to serve an additional 80 students. CP of NYS is committed to working with SED, OMRDD and other State agencies involved in providing alternatives to placing children in out-of-state residential programs so they remain in New York State and thereby closer to their families and their community. Policy Recommendation CP of NYS recommends that New York State agencies continue their efforts to provide alternatives to placing children in out-of-state residential programs so they remain in New York State and thereby closer to their families and their community. NEED FOR COORDINATION BETWEEN SED AND OCFS FOR OVERSIGHT OF 4410 PRESCHOOL PROGRAMS Policy Issue As mentioned earlier, our special education programs, including the 4410 preschool programs, are approved and monitored by SED. In order to maintain their approval status, programs must adhere to SED regulations and other requirements regarding teacher and supervisor qualifications, child to staff ratios, health and safety, - 5 -

7 training and staff development, and a variety of other programmatic and procedural issues, which are consistent with the requirements of public schools. Several years ago, the Office of Children and Family Services (OCFS) determined that all 4410 preschool programs, if operating more than three hours a day, fall under OCFS/day care jurisdiction, despite the fact that public school programs, which adhere to the same SED standards described above, are exempt from day care requirements. As a result, many of our 4410 preschool programs are now subject to approval and monitoring by two different state agencies, often with differing or even conflicting requirements. It is felt that some of the OCFS requirements are redundant and unnecessary, given the much higher qualifications of our teaching and supervisory staff and intensive staffing ratios. In addition, OCFS reviewers are not always familiar with the unique needs of children with disabilities, some of which are not easily accommodated under OCFS requirements. One example is the need for specialized behavioral interventions for students with significant behavioral challenges. Policy Recommendation In order to resolve these duplicative and/or conflicting requirements, we recommend that the oversight of approved 4410 preschool programs be consolidated under SED, with any additional OCFS requirements which are deemed appropriate incorporated into the SED approval and monitoring protocol. Policy Issue INTEGRATION/NEED FOR UNIVERSAL EARLY CHILDHOOD ACCESS CP of NYS is committed to the goal of providing quality, comprehensive services to children with disabilities in settings which encourage their participation and interaction with age appropriate peers without disabilities, consistent with SED priorities. Given the lack of a truly universal pre-kindergarten program for three and four year olds in New York State, the challenges for accomplishing this goal for preschool children with disabilities are many. CP of NYS Affiliates have been innovators in collaborating with Head Start programs, day care centers and with the limited available prekindergarten opportunities in order to maximize settings where children with and without disabilities participate together in early childhood education. SED s continuum of service stipulates that the first consideration for service must be the delivery of service (either special education itinerant or related service) to children with disabilities in typical early childhood settings or child care locations, primarily nursery - 6 -

8 schools and day care settings, or in the home. The lack of adequate, affordable and accessible early childhood programs and day care in this state is well recognized even for families of children without disabilities. For those with disabilities, the problem is exacerbated as day care and nursery school providers are often reluctant or unwilling to serve these children, particularly those with more significant disabilities. In addition, arrangements for transportation and the financial burden of paying for child care or nursery school costs could not be borne by a great percentage of families whose children require preschool special education services. In an effort to provide services in the least restrictive environment, an increasing number of children are receiving services in their homes. We do not believe that this is consistent with the intent of either "integration," "natural environment" or least restrictive environment. Children who need preschool special education services should not be served at home simply because their families are unable to afford or otherwise arrange an appropriate early childhood setting. We believe that one of the primary goals of preschool special education is to prepare children with disabilities to be successful in kindergarten with all of the prerequisite skills needed to function in that type of group setting. Serving children at home, in isolation of other children, can not possibly meet that goal. This type of approach also perpetuates the delivery of discrete and separate related therapy services which in the long run can prove more costly and less efficient when compared to a group/educational model where therapists can serve as consultants to classroom staff in implementing therapeutic activities as part of the daily curriculum. Policy Recommendations CP of NYS recommends the expansion of Universal Pre-Kindergarten and a permanent commitment of funding to enable all children to benefit from quality early childhood education experiences. In addition, we have made previous proposals to SED for innovative models that would allow flexibility for class size, creative use of special education and related service staff, and the maximum ability to enhance interaction between children with and without disabilities. Policy Issue TEACHER CERTIFICATION ISSUES It is well recognized that the shortage of qualified, certified teachers has been an increasing problem over the past several years. This shortage is even more significant in the special education arena, and particularly so for approved private schools whose tuition rate can not accommodate teacher salaries consistent with those of their regional public school systems. Recent changes to the special education certification categories which specify age/grade level certifications are now creating additional challenges for schools in recruiting appropriately certified staff. In many parts of the state, the teacher preparation programs - 7 -

9 have not begun to offer all of the needed concentrations and several CP of NYS Affiliates are reporting that there are no programs in their region preparing teachers in the birth to grade 2 concentration for preschool students with disabilities. In addition, concerns regarding the required certification for school-age students with significant cognitive disabilities who are in ungraded classes have also been raised. Policy Recommendation CP of NYS recommends that SED re-examine the new certification requirements to confirm their feasibility and effectiveness and also work to ensure that necessary teacher preparation programs are in place throughout the state. In addition, current initiatives to assist approved 853 private schools in the area of recruitment and retention should be continued and expanded, including initiatives specifically focused on 4410 preschool programs. CONCLUSION New York State s history tells us that our State is endowed with the tools required to effectively meet the needs of its citizens. History also tells us that New York State can be unequalled in developing and implementing programs and policies that serve the citizen in need and the taxpayer alike. CP of NYS is ready and willing to once again partner with New York State in achieving these goals and restore New York State to a level of unparalleled excellence in government and service delivery

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