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(1) Except as provided in paragraph (3) of this subdivision, upon application and review by the commissioner, a preschool program which meets the requirements of section 200.7(a)(2)(i)(a) through (d) of this Part shall be granted conditional approval, provided that no such conditional approval shall be granted for new or expanded programs subject to the moratorium established by subparagraph (iii) of paragraph a of subdivision 9 of section 4410 of the Education Law, except as authorized by subparagraph. 

(2) Each approved program shall apply to the commissioner for approval to provide special education itinerant services by February 3, 1997. 

(3) Commencing July 1, 1996, a moratorium on the approval of any new or expanded programs in settings which include only preschool children with disabilities is established for three years. Exceptions may be made at the discretion of the commissioner for cases in which school districts document a critical need for a new or expanded program in a setting which includes only preschool children with disabilities, to meet the projected demand for services for preschool children in the least restrictive environment. Nothing shall prohibit the commissioner from approving the modification of a full-day program into half-day sessions. 

(4) Notwithstanding the provisions of section 200.7(a)(2)(i)(d)(1) of this Part, an in-state not-for-profit school operating a preschool program as a corporate entity on the effective date of this section may satisfy the requirements of section 200.7(a)(2)(i)(d) of this Part by submitting evidence of approval by the commissioner of the school's incorporation for the provision of special education. 

(5) Notwithstanding the provisions of section 200.7(a)(2)(ii) of this Part, final approval of preschool programs shall be based on at least one site visit by program or fiscal staff of the State Education Department during the period of conditional approval and will take effect as of the date that a final approval letter is issued by the commissioner, or the commissioner's designee. No such final approval shall be granted for new or expanded programs subject to the moratorium established by subparagraph (iii) of paragraph (a) of subdivision (9) of section 4410 of the Education Law, except as authorized by such subparagraph. 

(6) Each preschool program shall be in operation for not less than 180 days each year. Any day that a school is closed pursuant to an Executive Order(s) of the Governor and the 180-day requirement has been waived pursuant to the State of emergency for the COVID-19 crisis shall be waived from the 180-day requirement of this section in accordance with the terms of such Executive Order. 

(7) Approved preschool programs shall submit calendars of days of operation to the commissioner for approval by July 1st of the preceding school year. 

(8) Approved preschool programs shall make attendance registers available for inspection by appropriate personnel of the department and the school district in which each preschool student resides 

(9) Each preschool student with a disability shall be provided with the extent and duration of services described in the student's individualized education program. 

(10) Advertising. 

(i) As used in this paragraph, false advertising shall mean advertising containing false, misleading, deceptive or fraudulent information or as defined in section 350-a of the General Business Law. 

(ii) Approved programs and evaluators shall not issue, or cause to be issued, false advertising with respect to the services to be provided to preschool children and their families. 

(iii) On or before July 1, 1997 and on or before July 1st of each subsequent school year, each approved program and approved evaluator shall submit to the commissioner for review copies of any advertising published, broadcast or disseminated by or on behalf of such approved program or evaluator during the preceding school year. Radio advertising may be submitted in the form of a written transcript or an audiotape. Television advertising shall be submitted in a standard videotape format. Where identical advertising is published, broadcast or otherwise disseminated on more than one occasion, a submission of a single copy shall be sufficient for purposes of this paragraph. 

(iv) At any time, the commissioner, upon a finding that a program or evaluator may have engaged in false advertising, may provide such program or evaluator with written notice of such finding and of the commissioner's intention to revoke the approval of such program or evaluator on the basis of such conduct in accordance with section 200.7(a)(3) of this Part. In addition, the commissioner shall review advertising as part of the regular reapproval process pursuant to subdivision (c) of this section. 

(v) In a proceeding to revoke the approval of an approved program or evaluator based on false advertising, such approved program or evaluator may submit to the commissioner a response containing information and evidence to show why the approval of such program or evaluator should not be revoked for engaging in false advertising. Such response may include, among other things, information and evidence to show that the advertisement is subject to and complies with the rules and regulations of, and the statutes administered by the Federal Trade Commission or any official department, division, commission or agency of the State. 

(11) Business plan. 

(i) By January 1, 1997, each approved provider of special services and programs for preschool children with disabilities, including local educational agencies, shall develop and submit to the department, in a format prescribed by the department, a business plan in accordance with subdivision 9-d of section 4410 of the Education Law and this paragraph. 

(ii) The business plan shall include: 

(a) a plan for the redirection of fiscal and personnel resources toward providing special education programs and services in settings with children who do not have disabilities rather than a program or setting which includes only preschool children with disabilities, by such means as: 

(1) converting a full-day special education class to a half-day class; and/or 

(2) replacing a full or half-day special education class with a program which serves preschool children with disabilities through special education itinerant (SEIT) services or a related services only model; and/or 

(3) for those programs serving preschool children with disabilities whose disabilities are of such nature or severity that they need a special education class because they are unable to benefit from education in a less restrictive setting with supplemental aids and services, other means to assure that such children have regular contact with their nondisabled peers.

(1) No preschool student with a disability shall be removed or transferred from an approved in-state preschool program without the approval of the school district contracting for education of such student pursuant to section 4410 of the Education Law. 

(2) An educational progress report on each student shall be provided by the approved school to the committee on preschool special education of the referring district or the referring agency at least annually. Other required data and/or reports shall be made available by the preschool program to the referring district or agency on request. 

(3) Each approved preschool program shall ensure that: 

(i) the executive director or person assigned to perform the duties of a chief executive officer hired or assigned on or after April 17, 2014, shall have earned a bachelor's degree or higher from an accredited or approved college or university in a field related to business, administration and/or education and/or shall hold a New York State certification or license to provide an evaluation of and/or a related service to a student with a disability as such term is defined in section 200.1(qq) of this Part. In addition, the executive director, or person assigned to perform the duties of a chief executive officer, shall, at a minimum, have the following qualifications: 

(a) knowledge of the program and supervisory requirements for providing appropriate evaluations and/or special education services to preschool students with disabilities; 

(b) knowledge of and ability to comply with applicable laws and regulations; 

(c) ability to maintain or supervise the maintenance of financial and other records; 

(d) ability to establish the approved program's policy, program and budget; and 

(e) ability to recruit, employ, train, direct and evaluate qualified staff; 

(ii) the executive director or person assigned to perform the duties of a chief executive officer shall reside within a reasonable geographic distance from the program's administrative, instructional and/or evaluation sites to ensure appropriate oversight of the program; and 

(iii) if paid as a full time executive director, the executive director shall be employed in a full-time, full-year position and shall not engage in activity that would interfere with or impair the executive director's ability to carry out and perform his or her duties, responsibilities and obligations. 

(4) Each program approved to provide special education itinerant services shall ensure that such service is provided, consistent with the recommendations in the students' individualized education programs, as an itinerant service to the preschool student at a regular early childhood program or the student's home or other child care location identified by the parent, consistent with the requirements of section 200.16(i)(3)(ii) of this Part. 

(5)Each approved preschool program shall ensure that the educational director, if hired on or after September 1, 2016, shall possess a NYS teaching certificate pursuant to section 80-3.3 of this Title valid for classroom teaching services to students with disabilities, birth-grade 2 or all grades, or certification in early childhood education, or possesses New York State certification or licensure in speech-language pathology, psychology, occupational or physical therapy or another related services field as such term is defined in section 200.1(qq) of this Part; and, consistent with the requirements of section 80-3.10 of this Title, shall hold New York State certification as a School Building Leader or School District Leader or School Administrator/Supervisor. Nothing in this paragraph shall require that an approved preschool program hire an educational director in addition to the executive director when the executive director otherwise provides the on-site direction of the program. 

(6) Make-up of missed services. Each preschool provider shall, consistent with Department guidelines, ensure the make-up of missed services occurs, consistent with the duration and location specified in the IEP, within 30 days of the missed session unless there is a documented child-specific reason why the make-up session could not be provided within 30 days. Such 30-day time period under this paragraph shall not include any day(s) that such school is closed pursuant to an Executive Order of the Governor issued pursuant to a State of emergency for the COVID-19 crisis. 

(7) Program standards for instruction of preschool students with disabilities. Each approved provider shall, as applicable, ensure that preschool students with disabilities receive instruction and positive behavioral supports that are based on peer-reviewed or evidence-based practices and consistent with the standards in this paragraph. 

(i) Instructional standards for approved preschool special class programs. 

(a) By not later than September 1, 2017, providers shall adopt and implement curricula aligned with the New York State Prekindergarten Learning Standards, which ensures continuity with instruction in the early elementary grades; and shall provide early literacy and emergent reading programs based on developmentally appropriate, effective and evidence-based instructional practices. 

(b) The instructional program for preschool students with disabilities shall be based on the ages, interests, strengths and needs of the children. 

(c) Procedures shall be implemented to promote the active engagement of parents and/or guardians in the education of their children. Such procedures shall include support to children and their families for a successful transition into kindergarten. 

(ii) Program standards for positive behavioral supports for approved preschool special class programs. 

(a) By not later than September 1, 2017, providers shall establish and implement a program-wide system of positive evidence-based practices to support social-emotional competence and teach social-emotional skills to preschool students, which shall include: 

(1) universal supports for all children through nurturing and responsive relationships and high quality environments; 

(2) practices that are targeted social-emotional strategies to prevent problem behaviors; and 

(3) practices related to individualized intensive interventions. 

(b) Except as provided pursuant to section 201.8 of this Title, no preschool student with a disability may be suspended, expelled or otherwise removed by the provider from an approved preschool special education program or service because of the student's behavior prior to the transfer of the student to another approved program recommended by the committee on preschool special education. 

(iii) Progress Monitoring. Approved preschool special education programs shall conduct regular progress monitoring of student achievement data over time to adjust, as appropriate, the student's instructional program and, as necessary, to request meetings of the CPSE to consider changes to the student's individualized education program. The program shall provide regular written reports of student progress to the student's parent and committee on preschool special education, consistent with frequency or timetable for such periodic reports on the progress the student is making toward the annual goals as identified in the student's individualized education program. 

(1) The reapproval review of an approved program shall not be conducted more than once every three years, unless the commissioner shall determine, on his own initiative or at the request of a municipality, that a reapproval review of such program is required earlier or more frequently. 

(2) The commissioner shall conduct such reapproval review in accordance with the departments ongoing quality assurance procedures, including schedules, in order to determine that the program under review provides quality services in a necessary and cost-efficient manner and in the least restrictive environment. In reaching such determination, the commissioner shall consider factors which include, but are not limited to, the following: 

(i) the percentage of children receiving services from the approved program which also conducted the initial evaluation of the child which was used to determine the child's eligibility for preschool special education programs and services; 

(ii) whether there has been evidence of misleading or erroneous advertising; 

(iii) the extent of progress in meeting the goals of the approved business plan; 

(iv) evidence to document that the program has reduced the numbers of students served in settings which do not provide opportunity for interaction with age-appropriate peers without disabilities; 

(v) whether the approved program or program component is in compliance with Federal and State law and regulations relating to the provision of special education programs and services for preschool students with disabilities; 

(vi) cost-effective program size; 

(vii) samples of materials and procedures to provide information and training to parents and opportunities which encourage parent participation and involvement in the program; 

(viii) the number and type of parent complaints, if any, regarding the program and review of the resolution of such issues; and 

(ix) for purposes of reapproving a program component, (a) the extent to which the program offers services in settings with regular contact with age-appropriate peers, where appropriate to the needs of the population served and (b) whether there has been evidence of misleading or erroneous advertising. 

(3) At least 30 days prior to completion of the reapproval review, the municipality in which the program under review is located or for which the municipality bears fiscal responsibility shall be given an opportunity to submit written comments to the commissioner concerning the program under review. 

(4) Upon his or her initial determination that the program or program component under review has failed to meet the criteria for reapproval specified in paragraph (2) of this subdivision, the commissioner shall provide the program under review with written notice of such determination, together with the specific findings underlying such determination and, if applicable, recommended corrective and/or remedial actions. 

(5) Within 30 days of its receipt of such notice, the program under review may submit a written response which shall include: 

(i) a challenge of such findings together with sufficient evidence to establish that the program is in compliance; and/or 

(ii) a proposed corrective action plan that is sufficient to correct and/or remedy each finding within a reasonable time, provided that the program submits a reasonable explanation for not immediately correcting and/or remedying such findings. 

(6) After receipt and consideration of such response, or after expiration of the 30 day time period without submission of a response, the commissioner shall: 

(i) reapprove the program or program component at issue, if sufficient evidence exists to establish that the program or component is in compliance; or 

(ii) place the program on a corrective action plan sufficient to correct and/or remedy each outstanding finding within a specified time. A program placed on a corrective action plan shall provide the commissioner with requested information and reports on a timely basis to demonstrate compliance with each outstanding finding within the time frame specified in the plan; 

(iii) if placement of the program on a corrective action plan is not feasible because the nature of the findings precludes corrective or remedial action, the commissioner shall proceed in accordance with the provisions of paragraph (8) of this subdivision. 

(7) If a program placed on a corrective action plan corrects or remedies each outstanding finding within the time frame specified in such plan, the commissioner shall issue reapproval of the program or component at issue. 

(8) If a program placed on a corrective action plan fails to correct or remedy such findings within the time specified in such plan, or if a corrective action plan was found to be infeasible pursuant to subparagraph (6)(iii) of this subdivision, the commissioner shall disapprove such program or component at issue and provide the program under review with written notice of such disapproval, including the specific findings underlying such determination. 

(9) Within 30 days of its receipt of the notice of disapproval, the program may appeal such disapproval by submitting written material to the commissioner which responds to the findings specified in the notice and presents the program's position and all evidence and information which the program believes is pertinent to the case. 

(10) After considering the evidence submitted by the department and the institution pursuant to the appeal, the commissioner shall issue a final determination on whether such program or component shall be disapproved.