THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:	The Honorable the Members of the Board of Regents EMSC-VESID Committee
FROM:	Rebecca H. Cort
SUBJECT:	Monitoring of Nondistrict Programs (including New York State Schools at Rome and Batavia) and the Impact of Billy’s Law; and, Building In-state Capacity to Serve Students with Disabilities at Risk of Out-of-State Placement
DATE:	May 31, 2006
STRATEGIC GOAL:	Goals 1 and 2
AUTHORIZATION(S):

 

Executive Summary

 

Issues for Discussion

 

          How can the State Education Department exercise appropriate control and oversight over the financing and quality of care received by children placed in out-of-state residential facilities and programs? How can the in-state system of care for children at risk of out-of-state placement be enhanced?

 

Proposed Handling

 

          The EMSC-VESID Committee will review the attached report of monitoring activities and actions related to improving in-state capacity.  Recommendations will be made; and, an update will be provided to the EMSC-VESID Committee in March 2007 to assess progress. 

 

Background Information

 

          In August 2005, the EMSC-VESID Committee discussed monitoring the impact of Chapter 392 of the Laws of 2005, commonly referred to as “Billy’s Law” on the approximately 1,400 New York State students who were placed in residential out-of-state facilities.  The purpose of monitoring is to determine the quality of care these children receive as well as to ensure that the oversight of these programs by the responsible New York State agencies is effective. 

 

          The Legislature’s intent in passing Billy’s Law was to:  ensure that NYS and local governmental agencies exercise appropriate control and oversight over the financing and quality of care received by children placed in out-of-state residential facilities and appropriate programs; and, enhance the in-state system of care for children at risk of out-of-state placement.

 

Recommendation

 

          It is recommended that the Regents affirm their support of the work of the Department and others to build in-state capacity to serve students with disabilities that are at risk of out-of-state placement; and, continue to support increased monitoring of out-of-state residential facilities. 

 

Timetable for Implementation

 

Efforts to build in-state capacity have begun and will continue.  Currently, there is a five-year plan that focuses on enhancing existing services for students with disabilities and on developing bed capacity.

 

 

 

Billy’s Law/Building In-State Capacity

June Regents Report

 

Background

 

          Governor Pataki signed Chapter 392 of the Laws of 2005, commonly referred to as “Billy’s Law,” on August 2, 2005.  Residential out-of-state placements of New York State children, then numbered at about 1,400, raised concerns about the quality of care these children were receiving as well as the effectiveness of the oversight of these programs by the responsible New York State agencies.  Since over 1,000 of the children were placed by NYS Committees on Special Education (CSEs), the NYS Education Department has been fully engaged in Billy’s Law activities and, for many of these initiatives, has assumed a lead role.

 

          The Legislature’s declared intent in passing Billy’s Law was twofold:

 

§       ensure that NYS and local governmental agencies exercise appropriate control and oversight over the financing and quality of care received by children placed in out-of-state residential facilities and programs; and,

 

§       enhance the in-state system of care for children at risk of out-of-state placement by:

 

-    improving the monitoring of out-of-state schools by conducting regular visits;

               -    developing processes that will assure the consistency of decision-making concerning the placement of children;

-    establishing a system of checks and balances that will assure that in-state placement options are recognized and considered prior to making an out-of-state placement;

-    promoting coordination across systems and levels of government;

-    developing in-state residential school placement options as well as preventative residential placement strategies; and,

-    establishing a system that reduces or eliminates, insofar as practical, barriers to appropriate in-state placement.

 

Implementation Activities

 

          VESID staff participate on all of the interagency workgroups created by Billy’s Law.  These groups are charged with developing out-of-state placement registries, uniform contract parameters, model placement processes, technical assistance resources, and integrated funding streams that follow the child.  VESID has taken the lead on the interagency initiative to build capacity in our in-state residential schools (see Developing In-State Capacity).  VESID has also committed considerable resources to strengthen the monitoring and oversight of the out-of-state schools.  A description of selected activities related to many of these initiatives follows.

 

          Strengthen Monitoring – A new Nondistrict Unit (NDU) has been created, mostly through staff transfers from other VESID units, that has assumed responsibility for most in-state and out of-state residential schools.  Employing a new review protocol that focuses on staff preparation and health and safety issues, VESID staff has, in the last eight months, completed on-site reviews of 25 out-of-state residential schools.  In addition, staff has visited 35 in-state residential schools.  This represents 40 percent of the total of 156 such schools (see chart below, “Nondistrict Program Reviews”). The most commonly cited deficiencies were lack of teachers being appropriately certified and failure to provide services as indicated on students’ IEPs.  Health and safety notification, requiring the immediate correction of deficiencies, including those related to emergency medical procedures, dispensing medication and safe facilities, were sent to 15 of those programs.  Immediate compliance was achieved in all but one school, whose approved status was removed.  In addition, four schools in Vermont were required to cease accepting NYS students and to refer all enrolled NYS students to their Committees on Special Education for alternate placements.  These schools are being removed from the approved list due to the lack of both annual fire/safety inspections and residential licensure by the appropriate state agency.  We are seeking to enhance the monitoring capacity of the NDU through requests for additional staff.  Such approval would also enable the NDU to assume responsibility for other types of special schools such as the approved private day schools.

 

NONDISTRICT PROGRAM REVIEWS

 

Number of Residential Schools Reviewed from June 2005 through January 2006

 

*Only four of the eleven 4201 schools have a residential component.

 

          Interagency Collaboration – In addition to the joint capacity building activities described below, VESID staff regularly invite the staff of the appropriate in-state residential licensing agency and appropriate out-of-state Education Departments to join our on-site program review visits.  Copies of all review reports are shared with the same agencies.  VESID is in the process of negotiating communication agreements with the Education Departments of those states whose residential schools accept the largest numbers of New York State children.  In-state, VESID benefits from the expertise of the NYS residential licensing agencies in such areas as building safety, dispensing of medication, and restraint training.  The Office of Children and Family Services has been particularly helpful in this regard and has even assigned expert staff to join VESID monitoring teams on out-of-state reviews.

 

          Improving Communication – Recognizing that a lack of current and accurate information about in-state residential school openings was hindering CSEs and leading to unnecessary out-of-state placements, VESID worked with numerous statewide organizations[1] to develop a web-based capacity notification system.  Inaugurated in March 2006, this system gathers updated information on bed openings each week from the in-state residential schools and makes it available on the VESID website to all school district CSEs.  The organizations have all agreed to help evaluate the system at regular intervals and recommend improvements.

 

Developing In-State Capacity

 

As of May 1, 2006 there were 1,087 students with disabilities placed in out-of-state residential schools.  Of the 1,087 students, 52 percent are emotionally disabled and 48 percent of students are developmentally disabled .  Due to insufficient in-state residential schools, the number of students with disabilities placed out-of-state has increased by 300 percent since 1996.   Please see Attachment 1 for this data.

 

As a result of Billy’s Law, a State Agency Workgroup was formed and chaired by Edward Placke, VESID’s Assistant Commissioner.  The Workgroup consisted of Assistant Commissioners and their designees from the following agencies:  OMRDD, OMH, OCFS, and SED.  The Workgroup’s objective was to develop a three-year plan to increase in-state residential school capacity.  The three-year plan consisted of the following goals:

 

§       development of additional beds for students with developmental disabilities , jointly approved by OMRDD and SED;

§       development of additional approved private residential school beds for students with emotional disabilities;

§       access by local school districts to 400 residential school beds formerly reserved for placements by public agencies such as Administration for Child Services (ACS) in NYC and the county departments of social services;

§       alignment of the school components of in-state residential schools with needs of students currently placed out-of-state;

§       provision of technical support to school districts regarding NYS residential school opportunities; and

§       encourage development and expansion through meetings with current residential school program providers and school districts to discuss the in-state initiatives.

 

Additionally, the aforementioned Workgroup convened a meeting that included staff for each agency’s Division of the Budget Unit.  They all expressed support for the three-year plan.

 

Results

 

          The Workgroup determined that approximately 1,000 beds were needed to address the placement needs of students currently in out-of-state residential schools and those who potentially may be placed in out-of-state residential schools.  As a result, a request for a letter of intent to increase in-state residential school capacity was developed by the Workgroup and distributed to all in-state private and public residential schools in December 2005.  Sixty letters of intent were received and 48 were approved in February 2006 by the Workgroup for programs to be developed over the three-year period.  Three hundred twelve new beds were approved for students with developmental disabilities (DD) and 132 new beds were approved for students with emotional disabilities (ED).  Four hundred beds formerly accessed by ACS and local social service districts were made available for CSE placements.  VESID’s Nondistrict Unit and Special Education Quality Assurance Units (SEQA) are working with the school component of the in-state residential schools to ensure curriculum and instruction are aligned with the needs of the targeted students.  See Attachment 2 for the schedule of the development of residential school beds.

 

          VESID Central Office staff currently provides technical support to school districts and, in some instances, to parents.  All district recommendations for out-of-state placements are reviewed by VESID staff to ensure all in-state residential placement options have been fully considered.  Out-of-state placements have been reduced by 20 percent to date, as a result of this process. 

 

Fiscal Implications

 

These efforts to strengthen in-state capacity will be accompanied by a statewide assessment of resources currently provided to the in-state residential programs.  In their June 1, 2005 Report to the Governor on Out-of-State Residential Placements, the Council on Children and Families recommended that New York State:

 

Reassess all applicable funding mechanisms and rate setting methodologies to determine the need for program intensification or modification to existing funding mechanisms that are responsive to unanticipated cost increases, to the need for enhanced services for the current or anticipated populations or to the need for structural reconfigurations to meet the specialized needs of the population.  This reassessment would focus on rate setting methodologies to encourage development for children at risk of out- of state residential placement.

 

The report further recommends that the State “Create flexibility for reimbursing capital costs for building new structures and renovating/adding to existing structures with existing rate methodologies.”  (This is reflected in recommendation 3.2 of the Council’s report.)

 

Most of the proposals to expand or intensify the in-state providers (Special Act School Districts and Approved Private Schools) include requests for additional resources in order to meet the more intensive needs of the anticipated student population.  These range from additional staffing to new construction or reconstruction.  SED has worked with the State Division of the Budget to put in place processes that will allow for appropriate modifications to tuition rates.  As stated above, all of the State agencies are committed to providing the necessary and appropriate resources to educate New York’s students within New York’s borders.

 

 

 

 

Attachment 1

April 2006 Report

Residential Placements by School Districts by School Year and Placement Type

Placement Type	1996-97	1997-98	1998-99	1999-00	2000-01	2001-02	2002-03	2003-04	2004-05	2005-06*
4201 State-Supported	264	247	324	362	223	134	173	231	234	222
CRP (OMRDD/SED)	192	196	196	199	139	161	143	248	208	195
In-state (853)	876	902	920	897	953	879	749	976	1,042	1,044
Special Act Schools	62	62	79	76	109	104	111	109	156	245
Out-of-state Schools	278	332	420	321	591	641	637	834	927	817
Emergency Interim Placements**	74	84	59	120	208	252	352	360	353	256
Total Number of Students in Residential Placements	1,746	1,823	1,998	1,975	2,223	2,171	2,165	2,758	2,920	2,779

* Reporting period runs from 7/1 – 6/30; count is updated monthly

 

2005-06 New School Year Out-of-State Placements

(Data as of April 1, 2006)

**Emergency Interim Placements are placements made in out-of-state programs where no approved private schools can serve the student

***Includes two impartial hearings

 

Attachment 2

 

State Operated Schools

 

          In addition to the residential programs discussed above, there are two State Operated Schools, the New York State School for the Blind (NYSSB) and the New York State School for the Deaf (NYSSD) that include 5-day residential programs. 

 

New York State School for the Blind (NYSSB):

 

Currently, the student enrollment at NYSSB is 64.  The students have multiple disabilities and are visually impaired and/or legally blind.  Sixteen students are enrolled as day students; 35 students are enrolled in the 5-day residential program; and 13 students are enrolled in the OMRDD managed 7-day Intermediate Care Facilities (ICF).

 

          One year ago, OMRDD, the State oversight agency, surveyed the ICF.  Health and safety issues were identified and the ICF was transferred to OMRDD.    Consultants and staff from NYSSB and VESID Central Office conducted an internal review of the 5-day residential program.  All residential and health policies were reviewed and updated.  Staff training was provided regarding the implementation of the updated policies and, to ensure the safety of students, a number of new positions was approved that included a Nursing Coordinator, Registered Nurses, and a Residential Department Head.

 

          In September 2005, the Commission on Quality of Care for the Mentally Disabled (CQC) was invited by VESID to conduct a survey of the 5-day residential program.  CQC concluded that the program was well managed and provided a safe environment for students.  Recommendations concerned improving communication with parents regarding health issues.  This recommendation was implemented.  However, VESID is concerned that there is currently no external State agency experienced in residential programs to oversee the 5-day residential component of the program. VESID is currently pursuing OMRDD oversight of the 5-day residential program. OMRDD’s role as an oversight agency for NYSSB was in the Executive’s Budget, but not included in the final State  Budget.

 

          The student population at NYSSB is decreasing, primarily due to the unique 5-day residential program.  Most students with these severe disabilities require a 7-day residential program.  Therefore, very few students not within commuting distance are being referred to NYSSB as the Department does not have the resources or infrastructure necessary to operate an expanded 7-day residential program. 

         

As a result of this decrease in enrollment, the NYSSB Board of Visitors (BOV) requested permission from SED to convene a workgroup to develop a 5-year strategic plan to prepare for the future.  The workgroup consists of the President of the Board Of Visitors, representatives from the School and the 5-day residential program, VESID Central Office staff, and parents.  Various other stakeholder groups will be engaged throughout the process such as BOCES and local approved private residential school programs.

 

          This program is the only one of its kind for blind students with severe disabilities in NYS because of its extensive background in serving this unique population. Given that NYSSB has a facility, faculty and staff that could be a resource to address the needs of a severely disabled student population, including students currently placed in out-of-state residential schools, the workgroup is considering a range of possible future changes at NYSSB.  Such a proposal could include a recommendation for a new administrative structure and program operator that would allow an expansion of the type of students enrolled, expansion of the 5-day residential program to 7-days, curriculum revisions to align with proposed population changes, and corresponding adjustments to staffing patterns, among others.  These changes would require legislation to transfer operational jurisdiction for the program from the Department to another public or private entity. 

 

New York State School for the Deaf (NYSSD):

 

          NYSSD currently enrolls 85 students.  Thirty-one are day students and 53 students are enrolled in the 5-day residential program.  The student enrollment has remained relatively unchanged over the last five years.  However, the severity of student need has increased over this time.  All students are either deaf or hard-of-hearing and have additional disabilities such as learning, emotional, and/or physical disabilities.  During the last 18 months, the NYSSD was surveyed by SEQA and recommendations were made and implemented regarding curriculum, behavior management, and the procedures governing the Multi- Disciplinary Team.  Additionally, staff from NYSSD, SEQA, BOCES, and VESID Central Office reviewed all policies.  Recommended updates of policies were completed.  A retired OMRDD administrator surveyed the 5-day residential program.  Recommendations were made regarding health policies.  Staff training programs and all new policies were implemented.

 

          NYSSD’s strategic plan includes adjustment in curriculum, vocational education and rehabilitation, and community integration.

 

          The NYSSD 5-day residential program does not have an external State oversight agency.  Discussions have begun with the Office of Children and Families Services (OCFS) to provide this oversight.  In the interim, arrangements have been made for consultants to survey the 5-day residential programs at both NYSSD and NYSSB, as well as the four 4201 schools with 5-day residential programs, within the next two months.  The focus of the surveys will be requirements to ensure student health and safety.