Thirty-five years ago, on this day, the Willowbrook State School was shuttered, signaling a new day for people with developmental disabilities. It was the courageous reporting of Geraldo Rivera, aided by a brave young named Bernard Carabello, that led to its closure by exposing the failure of a system that relied heavily on mass institutionalization of people with disabilities. Mr. Rivera’s expose 50 years ago launched a multi-year effort to change the service delivery system, leading ultimately to the closure of 20 institutions across New York State over 30 years in favor of community living.
The history and the mission of the Office for People With Developmental Disabilities is irrevocably intertwined with the history of the Willowbrook State School. This agency was born out of the strong and heroic advocacy of family members and people with developmental disabilities to ensure better treatment and better services for people within their communities and ultimately led to the end of institutionalization.
The opening of the Willowbrook Mile today preserves this history for future generations so that we may never forget what happened, nor take for granted the actions that led to the school’s eventual closure and, ultimately, the integrated and community-based living opportunities that exist for people with developmental disabilities today.
As we continue to remember Willowbrook, we are reminded of how very important our ongoing advocacy is. We need continued advocacy from people with disabilities, their families, our provider partners and those of us working in state government service to keep our system safe, accountable and responsive to the needs of people with developmental disabilities.
So, as we reflect on this Anniversary and the opening of the Willowbrook Mile, I ask that you join me in remembering our history and continuing to use your voices to help pave the path forward. While we have come a long way, there’s so much further we can go. Let’s work together to secure the support and the funding we need to ensure that all the people we support can live rich lives and realize their full potential. Bernard, the many brave families who fought to close Willowbrook and similar institutions and so many others who have followed in their footsteps have shown us what is possible. It is up to us all to continue pressing forward to achieve what is possible for people with developmental disabilities both now and in the future.
Revised Protocols for the Implementation of Isolation and Quarantine of Individuals in OPWDD Certified Facilities Following COVID-19 Exposure or Infection
Dear Colleagues and Friends,
In accordance with Governor Hochul’s announcement lifting the requirement for masks to be worn in certain facilities, OPWDD is revising its COVID-19 guidance.
As of September 7, 2022, OPWDD will no longer be requiring masks to be worn in its certified or operated facilities, with the exception of Specialty Hospitals. Masking is also no longer required during transport. As set forth in the attached guidance, masking may still be required in certain individual circumstances, such as when a person or staff is recovering from COVID-19 or is suspected of having COVID-19.
This guidance also more clearly explains OPWDD’s isolation and quarantine guidance and its applicability in OPWDD’s various certified settings.
This guidance will supersede the following guidance documents:
Post State of Emergency COVID-19 Guidance for OPWDD Certified, Operated, and/or Funded Facilities and Programs – Issued September 15, 2021;
Frequently Asked Questions (FAQ) About OPWDD’s Emergency Regulation 14 NYCRR Section 633.26 Mandatory Face Coverings in OPWDD Certified Services and Facilities – Issued September 24, 2021; Revised June 30, 2022
Revised Protocols for the Implementation of Isolation and Quarantine of Individuals in OPWDD Certified Facilities Following COVID-19 Exposure or Infection – Issued July 8, 2022.
Thank you for your continued partnership as we continue to ensure health and safety for all.
Low pay and difficult working conditions are exacerbating the widespread closure of facilities that serve disabled individuals
ALBANY — A staffing crisis at residential facilities that serve those who are intellectually and developmentally disabled is costing more than $100 million a year to handle the fallout from the flood of individuals leaving those jobs, according to a recent survey conducted by New York Disability Advocates.
The survey captured more than 50 percent of the industry’s stakeholders, confirming that low pay and difficult working conditions are exacerbating the widespread closure of facilities, including many run by the state Office for People with Developmental Disabilities.
“The statistics are rather sobering,” said Erik Geizer, CEO of the Arc New York, the state’s largest nonprofit organization serving people with intellectual and developmental disabilities.
Geizer noted that there is a 35 percent annual staff turnover rate and that is being compounded by the roughly 20 percent vacancy rate for the “direct support professionals” who provide the unique services.
In addition, 40 percent of providers have closed or reduced programs in the past several years.
“That’s pretty sobering because the number of people with intellectual and developmental disabilities is pretty stable. It’s not going down,” he said. “This is as bad as I’ve seen the field. I’ve never seen things so bad.”
Geizer said the quality of care is also suffering as a result of the labor shortage — in an industry where clients do better when the workers helping them are familiar faces. The program shutdowns also have led to many parents and caretakers of developmentally disabled individuals needing to quit their jobs to care for their loved ones.
With so many workers leaving the industry — where the rate of pay is in line with fast-food restaurants and retail stores — the additional costs of retraining new workers, including many of whom may not remain the jobs, is depleting the limited amount of money set aside for caregiving.
“We don’t often talk about the actual cost of our staffing crisis,” said Tom McAlvanah, president of the New York Disability Advocates and executive director of the Interagency Council of Developmental Disabilities. “Provider agencies are spending millions of dollars to combat turnover of direct support staff. Investing those resources into competitive wages and workforce initiatives that promote retention of essential staff would help stabilize our system of supports and ensure continuity of care for New Yorkers with I/DD.”
In January, Gov. Kathy Hochul’s administration announced it had applied for $2.2 billion in federal aid to strengthen the home care workforce, including implementing a “data-driven” strategy for recruiting OPWDD workers.
According to the Public Employees Federation, OPWDD’s civil service workforce declined by more than 10,000 workers — to just under 20,000 — between 1990 and last year. But most of the care in that industry is provided by non-profit service agencies.
OPWDD has recently acknowledged that “like most human services organizations across the country” it is facing “a workforce shortage of crisis proportions worsened by the COVID pandemic.”
The agency said it has needed to implement “emergency measures to ensure the safety of people living in a small number of group homes that are unable to retain or recruit sufficient staffing levels.”
In the past three years, 130 OPWDD-operated group homes across the state were “temporarily suspended” due to staff vacancies, the agency said. The non-profit organizations providing those same services have been forced to implement similar shutdowns and suspension of programs.
Group home workers have said mandatory overtime has contributed to additional departures — retirements and resignations — and it’s not unusual for some employees to be required to work shifts of more than 30 hours.
In addition to paying out more than $1 billion in bonuses to workers employed by nonprofit providers — money from the American Rescue Plan Act — the state agency also has added a 5.4 percent “cost-of-living adjustment for non-profit provider agencies to address inflation and other fiscal pressures, such as the need to enhance direct care, support and clinical staff compensation.”
But stakeholders in the industry say those measures have not led to any significant shifts in the workforce crisis.
Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team.
Three-year Agreement with National Alliance for Direct Support Professionals to Expand Opportunities; Professionalize Workforce
Partnership to Help Address Ongoing Worker Shortages in the Developmental Disabilities Field
Governor Kathy Hochul today announced that the New York State Office for People With Developmental Disabilities has entered into a $10 million partnership with the National Alliance for Direct Support Professionals to expand opportunities for professional credentialing for direct support professionals in the developmental disabilities field throughout New York State. The three-year agreement will help professionalize the direct support professional workforce and address worker shortages.
“Workforce shortages are putting a tremendous strain on our dedicated direct service professionals, and in response New York is taking action to provide career advancement and growth opportunities in this crucial field,” Governor Hochul said. “This $10 million partnership to expand credentialing will prove critical in providing support for training, education and expanded recruitment and retention efforts – an important step in meeting the needs of New Yorkers with developmental disabilities.”
OPWDD’s partnership with the National Alliance will provide access to three levels of direct support professionals credentialing and its frontline supervisor certification through participation in its E-Badge Academy. The project is supported by federal funds OPWDD is receiving through the American Rescue Plan Act of 2021.
The National Alliance credential is competency-based and modeled on the Centers for Medicaid and Medicare Services’ Direct Service Workforce Core Competencies and the National Alliance Code of Ethics.
Founded in 1996, the National Alliance for Direct Support Professionals’ mission is to enhance the quality of support provided to people with disabilities through the provision of products, services and certifications which elevate the status of direct support workers. The organization strongly promotes recognition and identity of direct support professionals to spur meaningful public policy investments, while also advancing the knowledge, skills, and values of this occupation.
In the coming weeks, the National Alliance will release a request for proposals for eligible home and community-based service provider organizations to participate in the grant and claim seats in the E-badge Academy for staff. The National Alliance will provide credentialing or certification for about 2,442 direct service professionals and frontline supervisors over the length of the three-year contract.
The project will provide bonuses for participating direct service professionals. In addition, the project will reimburse employers for training hours undertaken by their staff.
Office for People with Developmental Disabilities Commissioner Kerri Neifeld said, “Expanding access to this industry-recognized credential will improve the competence and skills of our workforce and ultimately increase retention rates. It will provide our dedicated frontline staff who have been working tirelessly to meet the needs of New Yorkers with developmental disabilities under tremendous pressure the professional advancement and career opportunities they so well deserve. And, most importantly, it will help to ensure that thousands of New Yorkers those who need caring, expert direct service professionals to show up every day ready to meet their needs will receive the services they need to pursue their personal best and live their most fulfilling lives.”
Representative Kathleen Rice said, “Direct Support Professionals provide critical patient care and allow the most vulnerable New Yorkers to live independent, meaningful lives, but rarely do they receive pay, benefits, or training commensurate with the importance of their work. In Congress, I lead the Recognizing the Role of Direct Support Professionals Act to help the federal government understand and address the needs of this workforce, and I’m grateful for Governor Hochul’s actions to expand career opportunities for DSPs and reduce the shortage of homecare workers in New York.”
State Senator John W. Mannion said, “Direct Support Professionals need our support because the workforce crisis is having a profound impact on the ability to deliver services and necessary care. Expanding training and credentialing will allow DSPs the ability to advance professionally while helping to recruit and retain more compassionate New Yorkers into the care economy. This is an important step towards providing some relief for our overwhelmed and unfairly burdened DSPs. Governor Hochul has been a partner in addressing the workforce crisis and I look forward to working together to deliver additional solutions to this long standing problem.”
National Alliance for Direct Support Professionals President and Chief Executive Officer Joseph MacBeth said, “We are proud to be working with OPWDD and the New York provider community in demonstrating the value of direct support professional credentialing by providing access to the E-Badge Academy for nearly 2500 direct service professionals and frontline supervisors. The workforce crisis is a long-standing and complex issue that requires interventions in many areas. Recognizing the demonstration of skills and providing financial incentives for high-performing direct support professionals and frontline supervisors is an important first step to being recognized as a profession.”
New York Alliance for Inclusion and Innovation President & CEO Michael Seereiter said, “The NY Alliance for Inclusion and Innovation applauds the National Alliance for Direct Support Professionals in working together with OPWDD to administer a rigorous credentialing program for direct support professionals that will allow direct service professionals to advance their knowledge, values, and skills by obtaining certification. It offers a path to a career ladder and aides in addressing the DSP workforce shortage in addition to supporting DSPs to continue providing quality supports and services for individuals with intellectual and developmental disabilities.”
This initiative is part of a greater effort to enhance, improve and transform key aspects of the OPWDD service system using COVID-19 relief funds awarded by the federal CMS. These funds are targeted to specific activities across a wide range of OPWDD programs and provide a timely opportunity to address critical challenges. OPWDD’s plans for all of its ARPA funds can be found at: https://opwdd.ny.gov/american-rescue-plan-act-arpa.
Saratoga Bridges’ day habilitation program in Clifton Park is latest to face shutdown amid a staffing crisis plaguing facilities that serve those with disabilities
CLIFTON PARK — A staffing crisis that is crippling care programs for individuals with disabilities is forcing Saratoga County’s largest nonprofit human services agency to temporarily “pause” a day habilitation program in Clifton Park.
For some of the roughly two dozen families affected, the looming decisions include whether a parent might have to quit their job to care for their loved one during the day.
“At that particular site we felt that it’s not safe to do the day program with as many individuals, with the staffing shortages that we have,” said Jane Mastaitis, chief executive officer at Saratoga Bridges, one of 36 chapters of The Arc New York, the state’s largest nonprofit organization serving people with intellectual and developmental disabilities. “We’re just so short of staff; it’s just a decision that we made as team … for the safety of the individuals.”
Mastaitis said the temporary closure is scheduled to begin Aug. 15 at the facility on Clifton Park Center Road.
It is among dozens of closures of similar residential and day habilitation programs by state-run and non-profit agencies that have been unfolding across the state. Although New York increased the wages it pays workers in state-run facilities, the private sector — especially non-profit organizations — account for about 80 percent of the services provided to intellectually and developmentally disabled individuals. But the average wage for care workers in that sector is still under $15 an hour.
Joseph Pisacane, 61, a Waterford resident who is the sole caretaker of his 31-year-old son, said the temporary closure of the Clifton Park program is likely to force him to quit his job. During the pandemic, he said, he had to leave his job for more than a year because of the lack of services available for his son, a situation exacerbated by COVID-19 shutdowns.
“My son has a seizure disorder from birth and he’s totally disabled,” Pisacane said. “He is mobile, but for how much longer I don’t know. He wears a diaper and doesn’t communicate. I’m a single dad trying to do this on my own for the last 13 years. I’m really struggling and I don’t know what to do anymore.”
He’s not alone: Families across the state — and nationwide — are facing similar crises as group homes and facilities that serve disabled individuals are facing closure due to an unprecedented staffing crisis brought on, in part, by low wages and other factors impacting the industry.
Laura Styczynski, whose 30-year-old son attends Saratoga Bridge’s day habilitation program, said she also may be forced to take a leave from her job at a school in order to care for him during the closure.
“They said that it’s for an indefinite period of time, and they said when day-hab reopens it may not reopen for us here in Clifton Park,” Styczynski said. “I work in a school, so come Labor Day I need the situation to be resolved so that I can go back to work to carry some of the benefits for our family as well as the income needed to help provide for all three of our children. … I can’t go to my job, which means the school system that I work for is going to be short-handed. It’s a very stressful situation for families.”
Styczynski said she does not fault the workers whom she said “break their backs every day” but in many instances could receive more pay working for a chain restaurant.
“They need to pay the staff more,” she said. “These people work so hard and are so dedicated to these individuals that it’s just a shame for everyone that they’re struggling this way.”
Kate Geurin, a spokeswoman for The Arc New York, said that government-funded one-time bonuses distributed to employees this year helped retain workers in the private sector but had little impact on recruitment.
“We’ve found that what’s much more effective is increases in base pay, and also the retention bonuses are ending so we have some concerns that we’ll actually lose staff once that’s played out,” Geurin said. “It was a real stopgap solution. So we did get COLA (cost-of-living-adjustment) funding and some providers are able to increase wages using those funds, but it’s really still not enough to remain competitive.”
Geurin added the organization is “very, very cognizant of the problems that it causes for families” when services are suspended, “but we need to know that we’re bringing people into a safe environment.”
Mastaitis said Saratoga Bridges — which also operates day habilitation programs in Malta, Wilton and Saratoga Springs that will remain open — used to compete for workers with other non-profits that provide similar services. Now, she said, they are competing with all employers — including fast-food restaurants and retail stores vying to hire the workers who are willing to fill vacant jobs.
“In fact, prior to COVID we served over 400 people in our day program, and right now are serving about half of that because of staffing,” Mastaitis said. “I don’t know where the workforce went. … It’s hitting families hard. … It’s very, very difficult to make a decision like this. Everybody is out of staff.”
Saratoga Bridges is seeking alternative programs for the families who will be effected by the closure of the Clifton Park day program, though it’s not clear how many options there are; it may require some to travel longer distances.
Rural areas of the state, especially in the Finger Lakes region, are among the regions hard-hit by the “suspensions” of residential services that have resulted in many developmentally disabled people being forced to move into new group homes or care facilities, sometimes long distances away from their families.
In January, Hochul’s administration announced it had applied for $2.2 billion in federal aid to strengthen the home care workforce, including implementing a “data-driven” strategy for recruiting workers for the state Office for People with Developmental Disabilities.
According to the Public Employees Federation, OPWDD’s civil service workforce declined by more than 10,000 workers — to just under 20,000 — between 1990 and last year.
OPWDD officials said they have been implementing salary increases since March to improve recruitment and retention. The first phase of that, which increased pay to more than $20 per hour for the state workforce’s “direct support assistants,” resulted in more than 4,000 workers receiving an increase. They are also increasing salaries for higher-level clinical workers as well as nurses.
The agency said it has needed to implement “emergency measures to ensure the safety of people living in a small number of group homes that are unable to retain or recruit sufficient staffing levels.”
In the past three years, 130 OPWDD-operated group homes across the state were “temporarily suspended” due to staff vacancies, the agency said. That does not include facilities operated by non-profit agencies, which provide most of the state’s care.
As of the end of March, OPWDD was seeking emergency residential placement for 1,059 people who were either “homeless or in imminent danger of being homeless.” There were 2,270 people seeking residential placement in a “substantial need category, which includes people at an increasing risk of having no permanent place to live, such as someone whose family or other caregivers are becoming increasingly unable to continue to provide care for the person.”
An additional 2,159 people were seeking residential placement but were not considered to be in “emergency” or “substantial need” situations.
An official with the New York Disability Advocates recently told a state Senate committee that there had been a roughly 25 percent vacancy rate for direct care workers, which was about 75 percent higher than before the
Rural areas are being especially hard-hit by the “suspensions” of services in facilities that care for developmentally disabled individuals
ALBANY — A staffing crisis at residential facilities operated by the state Office for People with Developmental Disabilities is continuing to drive closures of the facilities, with labor groups and families who rely on the group homes worried there is not enough being done to recruit new workers.
Rural areas of the state, especially in the Finger Lakes region, are among the regions being hard-hit by the “suspensions” of residential services that have resulted in many developmentally disabled people being forced to move into new group homes or care facilities, sometimes long distances away from their families.
“They’re not doing a good enough job trying to recruit new people in a very rural area,” said Karen Duboy, a Wyoming County resident whose 30-year-old son Matthew, who has Down Syndrome, was uprooted in December from the group home where he had lived comfortably for years. “I just think the state has really let a lot of people down with continuing the services that we’ve all looked for.”
Duboy’s son was among a group of dozens of disabled persons who were initially going to be moved to a day center in the Finger Lakes region last November where cots were being set up in a gymnasium. That plan was quickly abandoned that month after the Times Union contacted Gov. Kathy Hochul’s office about it.
Duboy said that after the state closed her son’s longtime residence, where he had lived with four other residents, he was among 11 residents who were moved into another home with 11 other residents, many of whom used wheelchairs.
“The whole dynamics changed for both houses. So now you have 22 people that have been really disrupted,” she said. “The staff did very well helping people to adjust. … At the time Matthew was there, I feel that he got cared for — but the quality may not have been what it was in a smaller house. Again, it’s no disrespect to the staff: They did the best they could with what they had.”
In January, Hochul’s administration announced it had applied for $2.2 billion in federal aid to strengthen the home care workforce, including implementing a “data-driven” strategy for recruiting OPWDD workers.
According to the Public Employees Federation, OPWDD’s civil service workforce declined by more than 10,000 workers — to just under 20,000 — between 1990 and last year.
Earlier this month, Wayne Spence, PEF’s president, delivered remarks at one of multiple public forums the agency is conducting across the state to get input on its new five-year plan that’s schedule to go into effect next year.
“It is regrettable that the agency purposefully excluded our members and our union from active participation in the development of this draft strategic plan,” Spence said at the forum in Rochester on July 18. “We also remain concerned that this strategic plan continues to advance the flawed policy approach that private providers can provide appropriate, long-term care for the most profoundly disabled at lower cost and with the same quality of care provided by the state’s residential and other programs.”
In response to a series of questions, OPWDD issued a statement saying that “like most human services organizations across the country” it is facing “a workforce shortage of crisis proportions worsened by the COVID pandemic.”
The agency said it has needed to implement “emergency measures to ensure the safety of people living in a small number of group homes that are unable to retain or recruit sufficient staffing levels.”
In the past three years, 130 OPWDD-operated group homes across the state were “temporarily suspended” due to staff vacancies, the agency said.
Tough conditions
Statewide, OPWDD said it has nearly 3,000 full-time staff vacancies from its 2023 budgeted allocation. The agency said that in “rare circumstances” it has needed to mandate overtime that results in staffers working more than 30 consecutive hours to maintain minimum staffing requirements for those they serve.
“The agency works to provide staffing relief as quickly as possible and will work with the employee to allow for periods of rest/meals,” the agency said.
Three years ago, there were more than 7,600 people being cared for in group homes and other 24-hour care facilities run by OPWDD. But staffing shortages that began before the pandemic have decimated that workforce, which state officials have acknowledged are underpaid for often challenging working conditions.
But waiting lists continue to remain stacked with thousands of individuals whose families or caregivers are seeking residential care.
As of the end of March, OPWDD was seeking emergency residential placement for 1,059 people who were either “homeless or in imminent danger of being homeless.” There were 2,270 people seeking residential placement in a “substantial need category, which includes people at an increasing risk of having no permanent place to live, such as someone whose family or other caregivers are becoming increasingly unable to continue to provide care for the person.”
An additional 2,159 people were seeking residential placement but were not considered to be in “emergency” or “substantial need” situations.
Group home workers interviewed for this story said the mandatory overtime has contributed to additional departures — retirements and resignations — and it’s not unusual for some employees to be required to work shifts of more than 30 hours.
“The continued outsourcing, consolidation and closure of programs and services operated by (various state agencies) — coupled with the reduction of staff and the physical beds dedicated to help the mentally ill, the developmentally disabled and those who suffer from co-occurring disorders — are disproportionately harming low-income, uninsured, underinsured, undocumented and severely handicapped New Yorkers who suffer from acute mental illness, developmental disabilities or addiction, as well as those who suffer from co-occurring disorders,” Spence said on July 18.
Duboy, whose son moved into a home earlier this year run by the ARC that serves Geneseo, Livingston, Orleans and Wyoming counties, questioned the five-year plan being proposed that she said “looks good on paper” but has not resulted in a more immediate effort to recruit workers.
“The staff that are there do really enjoy helping our loved ones on daily skills and working with them, but the future of that type of commitment is not there,” she said. “The staff feel like they’re under-appreciated. It’s just really hard. I think (the state) lost touch with families. I want Matthew to be cared for to the best of his loving care when I’m gone.”
Pay raises
PEF officials contend the state doesn’t appear to have a plan to quickly address the staffing shortages and ongoing closures despite providing supplemental benefits and bonuses for the private not-for-profit agencies that are handling many of the residents.
Randi DiAntonio, PEF’s vice president, told a state Senate panel last year that the staffing shortages were exacerbated by the pandemic — when many people quit their jobs — and also by years of handing over services for those with intellectual and developmental disabilities to private providers in an effort to cut costs.
“The state of New York has embarked on a long-term effort to reduce funding and staffing at all of its agencies. OPWDD has seen some of the most dramatic reductions in staffing overtime,” DiAntonio said in a written statement provided to the panel, noting that the agency had its workforce cut by 16 percent — nearly 3,800 employees — between 2011, when Gov. Andrew M. Cuomo began his first term, and 2020.
“This reduction in staff is directly attributable to the imposition of ‘bare-bones’ budgeting at all of the state agencies that has been in place for years so the state can remain under the arbitrary 2 percent annual state spending cap,” she added. “This budgeting approach left the state ill-prepared to address the (COVID-19) pandemic and has hampered the ability of the state to meet its ethical obligations to maintain the continuity of quality and accessible services for many at-risk New Yorkers, including individuals with developmental disabilities.”
DiAntonio, under questioning from the panel, had said nurses and other health care professionals were “leaving in droves,” and low morale and burnout in the industry were at all-time highs.
“The number of people with disabilities is not shrinking … and the needs for people with children with autism are exponentially larger,” she said. “The waiting list for services has not gone down. … We’ve closed almost 5,000 beds.”
An official with the New York Disability Advocates told that same Senate committee that there had been a roughly 25 percent vacancy rate for direct care workers, which was about 75 percent higher than before the pandemic.
Among the measures the state has undertaken to try and stem the staff shortages: allocating bonuses of up to $3,000 “for both state and nonprofit health care and mental hygiene staff, which are in the process of being effectuated.”
In addition to paying out more than $1 billion in bonuses to workers employed by nonprofit providers — money from the American Rescue Plan Act — the agency also has added a 5.4 percent “cost-of-living adjustment for non-profit provider agencies to address inflation and other fiscal pressures, such as the need to enhance direct care, support and clinical staff compensation.”
Additionally, the most recent state budget allows OPWDD to pay increased overtime rates of 2.5 times the rate of base pay.
Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at blyons@timesunion.com or 518-454-5547.
New guidance released today from the Department of Education’s Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) helps public elementary and secondary schools fulfill their responsibilities to meet the needs of students with disabilities and avoid the discriminatory use of student discipline.
These newly released resources are the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students and schools through pandemic recovery.
“All students deserve to have their rights protected, and schools deserve greater clarity on how they can avoid the discriminatory use of discipline, ” said U.S. Secretary of Education Miguel Cardona. “Too often, students with disabilities face harsh and exclusionary disciplinary action at school. The guidance we’re releasing today will help ensure that students with disabilities are treated fairly and have access to supports and services to meet their needs – including their disability-based behavior. We also expect that districts utilize the federal American Rescue Plan dollars to build capacity, provide professional learning opportunities for educators and school leaders, and hire additional staff. These resources will also help schools live up to their legal obligations, support an equitable recovery for all our students, and make sure that students with disabilities get the behavioral supports and special education services they need to thrive. “
The new resources reflect the concern, particularly in light of the prevalence of student mental health issues associated with the pandemic, that some students with disabilities are not receiving the supports and services necessary to address their educational needs, including their disability-based behavior.
The guidance makes clear that schools do not need to choose between complying with Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Individuals with Disabilities Education Act and keeping their school community – including students and staff – safe.
A letter from Secretary Cardona to our nation’s educators, school leaders, parents, and students about the importance of supporting the needs of students with disabilities.
In developing today’s guidance and resources, the Department drew from experience with enforcing and administering federal laws relating to students with disabilities, including Section 504 and the IDEA. The Department also considered information shared by members of the public in response to the June 2021 Request for Information Regarding the Nondiscriminatory Administration of School Discipline.
Section 504 prohibits recipients of federal financial assistance from discriminating based on disability, and the IDEA guarantees that children with disabilities have available to them a free appropriate public education (FAPE). FAPE emphasizes special education and related services designed to the needs of children with disabilities and prepare them for further education and employment services and independent living.Supporting Students and Avoiding the Discriminatory Use of Discipline under Section 504
“Today’s crucial guidance outlines how schools can effectively support and respond to behavior that is based on a student’s disability and could lead to student discipline, in addition to explaining schools’ civil rights responsibilities related to disability when administering student discipline” said Assistant Secretary for Civil Rights Catherine E. Lhamon. “We will continue to vigorously enforce federal civil rights laws to ensure that all students have equal access to educational opportunities. “
The new guidance makes clear that providing the individualized services and supports required by Section 504 can help prevent or reduce disability-based behaviors that might otherwise lead to student discipline. Additionally, the guidance:
Outlines how Section 504’s requirements to provide a FAPE apply to long-term disciplinary sanctions, such as out-of-school suspensions and expulsions.
Explains Section 504’s general nondiscrimination requirements, in the context of discipline, which applies to school staff and to the conduct of everyone with whom the school has a contractual or other arrangement, such as security staff and school police.
Makes clear that Section 504 requires schools to provide reasonable modifications to policies, practices, and procedures when necessary to avoid discrimination.
Section 504 does not prohibit a school from responding to emergency circumstances, such as contacting law enforcement or crisis intervention specialists, or from taking appropriate, nondiscriminatory steps to maintain safety and support students in learning how to be accountable for the impact of their actions on others.Supporting the Needs of Children with Disabilities and IDEA’s Discipline Provisions
Today’s resources underscore that children can experience academic success with an appropriately developed and effectively implemented individualized education program (IEP). IDEA includes specific provisions to address situations in which the behavior of a child with a disability impedes the child’s learning, the learning of others, or violates a school’s code of student conduct. Importantly, as part of the obligation to provide FAPE, in the case of a child whose behavior impedes the child’s learning or that of others, the IEP Team must consider – and include in the IEP – the use of positive behavioral interventions and supports, and other strategies, to address that behavior.
“These resources are intended to assist state educational agencies (SEAs) with supporting local educational agencies (LEAs) and schools in addressing the needs of children with disabilities and equitably and appropriately implementing IDEA, ” said Deputy Assistant Secretary for the Office of Special Education and Rehabilitative Services Katy Neas. “These documents can assist students and families in understanding their rights under IDEA and provide SEAs, LEAs, and educators resources to fulfill their obligations to appropriately meet the needs of children with disabilities. Together, we can reduce the use of exclusionary discipline for children with disabilities and ensure every child has access to an educational environment that is nondiscriminatory, supportive, positive, and safe for all. “
OPWDD Partners with Georgetown University to Enhance Diversity, Equity and Inclusion
Governor Kathy Hochul announced that the New York State Office for People With Developmental Disabilities has entered a three-year, $10 million partnership with Georgetown University’s National Center for Cultural Competence to advance the policies and practices of diversity, equity, inclusion and cultural and linguistic competence into all components of the OPWDD system of supports and services for people with developmental disabilities.
“As we work hard to promote diversity, equity, and inclusion in our communities, I am excited to join this important partnership with Georgetown University,” Governor Hochul said. “This three-year undertaking will help break down barriers that often prevent New Yorkers with developmental disabilities, their families and the people who support them from receiving the services they need to thrive.”
OPWDD Commissioner Kerri E. Neifeld said, “Georgetown University’s NCCC has distinguished itself as a leader in the DEI space. With this partnership, OPWDD will be able to draw upon their expertise as we learn from our stakeholders and improve our awareness of diversity, equity, inclusion and cultural competency issues within our current system.” Read more about the partnership.
Letter: State funding process outdated for preschool providers
To the editor
July 5, 2022
New York state funds preschool special education differently from school-age programs. This year, the governor is trying to make up for lost time by providing an 11 percent increase; however, the increase does not fix the real problem: the methodology used to create the rate preschool programs receive.
Stakeholders have advocated for a methodology that supports the needs of students, staffing and actual costs. The state Department of Education has recommended the elimination of reconciliation and advanced proposals for a new methodology. While stakeholders and the state education department are aligned and understand the needs of students with special needs, the state Division of the Budget remains the obstacle.
The current rate methodology requires programs to operate on rates that are 2 or 3 years old, and this results in programs being cash-strapped or having to borrow to meet student needs. The methodology impacts staffing, which is essential, in operating programs. Special education teachers and therapeutic staff are in high demand and preschool programs are not competitive with the public sector, which causes turnover or an inability to recruit.
More and more children are doing without special education services, and it is not for a lack of trying. Providers are willing to open new classrooms but need adequate funding and staffing.
Gov. Kathy Hochul and Budget Director Robert Mujica need to work to provide ongoing sustained equity in funding for all students with disabilities. We need competitive wages for all staff. We need administrative reforms to fully realize the governor’s $240 million investment.
Message from Commissioner Neifeld RegardingCOVID-19 Vaccination Reporting
Dear Colleagues and Friends, OPWDD appreciates your ongoing partnership as we begin to adjust required COVID-19 reporting and enhanced safety protocols to reflect our current pandemic status. To that end, I want to make you aware that as of Friday, July 8, OPWDD is suspending its routine COVID-19 vaccination reporting for the people we support and staff, just as other state agencies have done. As you know, we began collecting vaccination information and providing it verbally to our stakeholders in January 2021. Information about vaccine uptake has been a valuable tool for identifying areas of need and connecting with communities to emphasize the importance of vaccination. However, now that the vaccine is widely available and the data shows only minor changes in vaccine uptake from week to week, we have identified that this time- and resource-intensive reporting has become less useful in informing our efforts and policy decisions. I encourage you to reach out to me with any concerns you may have regarding this change at info@opwdd.ny.gov. I want to assure you that we remain mindful that COVID-19 is still a concern and that education and advocacy about receiving the vaccine continues to be an ongoing priority for this agency and its providers. OPWDD will continue to work with providers and CCOs to ensure that the people we support receive education about the benefits of vaccination and that individuals choosing to get vaccinated can do so. Sincerely, Kerri E. Neifeld Commissioner
ENYDDA 