Clarification of the Use of Teachers of the Speech and Hearing Handicapped Working for 4410 Programs

Yes, under certain circumstances. The intent of the §8207 exemption, as it applies to schools, supports an interpretation that a TSHH who is employed by an approved §4410 program may be exempt from licensure under certain conditions. Accordingly, the Department reaffirms the guidance provided in the July and November memoranda on this subject that a TSHH, employed by a center-based §4410 provider who is providing services in the course of such employment, is exempt from the licensure requirement set out in Article 159 of the Education Law, but only under the following conditions:

• To be a school as intended by the §8207 exemption, the approved §4410 program must be a center-based program, in that it must operate special education classes and/or special education classes in an integrated setting. 
• The speech-language pathology services must be provided in the course of such employment in the center-based §4410 program. Therefore, to meet the §8207 conditions of an “employee of a school” who provides services “in the course of such employment,” the approved §4410 provider may only employ the TSHH to provide speech-language pathology services to students pursuant to a contract for services between the §4410 provider and the municipality, as defined in §4410. That is, services may only be provided to students enrolled in that §4410 program. This exemption does not allow for any form of subcontracting of services or leasing of employees to other programs, even to other programs that are approved §4410 providers or to any other entity that is eligible for the “school” exemption in §8207.
• The §4410 center-based provider must actually employ the TSHH, with all of the commonly accepted indicators of an employment relationship, including adequate supervision and oversight similar to the supervision provided to TSHHs who are employed in traditional school settings. The existence of an employment relationship depends on the factual context of the particular situation or setting. To demonstrate this, the individual must be a W-2 employee such that the employer is subject to federal social security and withholding taxes and other factors must indicate the existence of an employment relationship.  

Additional relevant factors, recited in federal court decisions in determining the existence of an employment relationship, include:

• The degree of the employer’s dominion and control over the autonomy of the employee, such as, is the individual required to follow the instructions of the provider relating to when, where, and how he or she is to work;
• Whether the employer requires the submission of written reports and provides training;
• The degree of oversight the employer has over the employee’s work product, such as, does the employer set the order of work to be performed; and
• Whether the employer establishes the hours of work. 

• No. The exemption applies only to those individuals employed by approved programs providing special education classes or special classes in an integrated setting. Accordingly, §4410 programs approved to provide SEIT and/or multidisciplinary evaluations, are not eligible for this exemption since they are not ”center”-based programs, and are not “schools” as interpreted under §8207(2) of the Education Law. 
• However, the Department reaffirms the guidance provided in the November 1995 memorandum relating to TSHHs contracting to provide services. That guidance held that it is permissible for TSHHs to provide specialized instruction (special education speech and language instruction, where the goals and objectives will focus on communication development to promote the child’s learning) through contractual arrangement between the §4410 SEIT only provider and a municipality that administers a SEIT program. In contrast, it is not permissible for a TSHH who is not also licensed as a speech-language pathologist under Article 159 of the Education Law to provide, as an independent contractor, speech-language pathology as a related service (where the goals and objectives will focus on preventing, correcting or remediating a communication disorder). 

The TSHH who contracts to provide specialized instruction services as described above cannot provide services identified as related services under the relevant IEP. The distinctions between specialized instruction and related services, which involve the provision of speech-language pathology services for which a license is required, are further described in Part 200.1 of the Regulations of the Commissioner, relevant sections of which are reflected below: 

(qq) Related services means developmental, corrective, and other supportive services as are required to assist a student with a disability and includes speech-language pathology, audiology services, psychological services, physical therapy, occupational therapy, counseling services, including rehabilitation counseling services, orientation and mobility services, medical services as defined in this section, parent counseling and training, school health services, school social work, assistive technology services, other appropriate developmental or corrective support services, appropriate access to recreation and other appropriate support services.

(ww) Special education means specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of §4401 of the Education Law…