November 26, 2018
Submitted by AGENCIES FOR CHILDREN’S THERAPY SERVICES (ACTS)

I am Steven Sanders, Executive Director of ACTS (Agencies for Children’s Therapy Services). ACTS is a statewide association of Preschool Special Education agency providers as well as Early Intervention agency providers. The following are comments regarding the proposed regulation: I.D. No. EDU-40-18-00009-P as published in the New York State Register on October 3, 2018.

The one item of the proposed rulemaking that I wish to draw your attention to is found in Section 2 of the proposal which would “add a new subdivision (ppp)of section 200.1 of the Regulations of the Commissioner.”

This new subdivision comes about as a result of legislation enacted into law in 2017, (Chapter 429). The specific legislation is contained in Senate Bill S.1694-A (Marcellino) and Assembly Bill A. 982-A (Nolan). A reading of the bill and the sponsors memo reveals the clear purpose and intent of the legislation. The sponsors intended to relieve School districts that “WISH” to provide evaluations for services to preschool children from having to go through the burden of applying to the State Education Department for approval… provided that they have staff who are appropriately licensed or certified.

The sponsors logic is contained in the written memorandum accompanying the bill which states first and foremost in its subheading “Purpose” that the legislation is “to eliminate additional paperwork for school districts which WISH to provide evaluation services to preschool students with disabilities.” The memo continues by stating “School districts regularly provide evaluation of school-age special education students. Similar to any other public or private agency with appropriately licensed or certified professionals, a school district may apply to the Commissioner of Education to be an approved evaluator of preschool special education students. The extra application requirement to the Commissioner is burdensome and unnecessary because school districts currently provide these evaluations for school-age students. This bill will ALLOW school districts to provide preschool evaluation services without wasting staff time in applying for a waiver”.

Clearly the purpose of the legislation was to relieve school districts of having to apply for permission to do evaluations for preschool students IF they WISHED to engage in this activity. There is no suggestion that school districts must do these evaluations. In fact of the 700 school districts across the state probably hundreds may not have either the capacity or the inclination to take on this responsibility. Consequently any inference that all school districts should be placed on county lists of eligible providers that is available to parents is not only incorrect from the stand point of the legislation, but worse, it will also lead to confusion among parents should they discover that such school district in fact does not render evaluations. It is tough enough for parents to navigate preschool special education decisions for their young children. It is a highly emotional and stressful time for parents. It is the statutory right and the responsibility of parents to choose an evaluator, not the school district. It would be wrong to add to their difficulties by steering parents towards school districts who may not have the capacity or the desire to do such evaluations. Moreover it will delay the entry process for parents and their children.

At a minimum, in order for a “pre-approved” school district to be placed on county Lists, such school districts should indicate that they have qualified personal, as the legislation insists, AND that they wish to engage in the work of rendering evaluations to preschool children with potential disabilities or deficits.

ACTS SUPPORTS the provision of the rule making which tracks the enabling legislation that allows school districts to engage in preschool special education evaluations for such students suspected of having special educational needs without further approval from the State Education Department, provided they have the appropriately qualified personnel.

However ACTS VIGOROUSLY OPPOSES any erroneous interpretation of the legislation as permission to place all school districts on county lists of eligible evaluators. Any such conclusion would be entirely contrary to the language of the bill and the intent of the Legislature. There can be no question that the Legislature intended their measure ONLY as a means to relieve additional administrative burdens on those districts that WISH to preform evaluations for preschool special education. It did not require those districts to either perform such evaluations or to be listed as eligible evaluators without an express indication of their desire to do so. And just as importantly it would be unfair and a waste of precious time for parents to be misdirected to school districts that may not in fact wish to perform those evaluations.

Thank you for the opportunity to comment on this important rulemaking proposal.

Steven Sanders
Executive Director
ACTS
90 State Street, Suite 700
Albany New York, 12207
(518) 591-4659