Contracting for School Psychological Services in New York State

New York state school psychologists continue to misunderstand the issues related to contracting for services.  This is problematic, because other who are in a position of authority tend to misrepresent what is old news. 

To begin with, districts have unique systems that allow them to subcontract other agencies or individuals to provide services when schools cannot do so (typically through BOCES although private contractors are used in some LEA's such as the NYC DOE).  For example, a district can seek an outside contractor if there is a student who is deaf or hard of hearing and if they can demonstrate that they do not employ school psychologists with the expertise to evaluate a student with those needs (and if there are no interpreters within the district). 

Somehow, people in the field have begun to worry that this practice can eliminate the employment of school psychologists by districts.  

Nothing could be farther than the truth.

The issue of a district eliminating school psychologists and contracting for their services has already been challenged at the state level and the New York State Educational Department (NYSED) has consistently ruled that a district has no authority to eliminate a position and contract for the same services provided by these professionals.

My goal is to disseminate some of the rulings by the Education Commissioner which highlight that this practice runs counter to Education Law.  I'll begin with one ruling and will continue onwards.

On particular ruling (Maxine Davis v. Westport School District http://www.counsel.nysed.gov/Decisions/volume39/d14234.htm)

involves a school psychologist who was employed full time by the district for five years and then .6 for the year after that.  After that year, the position was eliminated. 

At that time, the district also contracted with an agency that provided substance abuse prevention services who placed one of their employees in the school to provide services to children. 

While the district maintained that the services that the agency staff provided (on school grounds) were different than those that were provided by the school psychologist, attorneys for Maxine Davis disagreed.  They stated that the services that the agency person provided included:

Counseling services to students with existing alcohol, tobacco, or other drug abuse concerns. Additional services are provided in the areas of individual counseling, student assessment, family contacts, recommendations for referrals to other needed services in the community, student support groups such as Banana Splits and Students Against Drunk Drivers (SADD), peer mediation or related training, faculty, staff, parent training, and assistance with planning and carrying out positive alternative activities.

The Education Commissioner, of course, ruled that the school psychologist needed to be reinstated immediately and paid back-pay.

In ruling on this case, the Commissioner cited a few cases that are important for all school psychologists to keep in mind.

• Mairs v. Board of Education - Affirmed NYS Education Law which states that if a district eliminates a position and creates another position whose duties are similar to those performed by the person whose position was eliminated, then the person holding such position at the time of its abolition shall be appointed to the newly created position.

• Matter of Friedman - This is the first ruling that indicated that a school board has no authority to eliminate a position and contract out for the same services. It further provides a strong rationale for having a school psychologist as an integrated member of the school team, as opposed to a contracted professional that is not integrated into the school.   It goes on to indicate that the duties of a school psychologist are pedagogical in nature and since a board of education has no general authorization to contract for instructional services then all school districts must continue to employ certified school psychologists to perform those duties which are truly instructional in nature, including serving on the CSE and providing psychological evaluations and counseling. This decision continues to be referenced whenever there is even a hint of using independent contractors to provide school psychological services. 

• Appeal of Spataro - Affirmed that a district may not ignore the tenure rights of its employees by attempting to contract with an independent contractor to perform the same services previously performed by its tenured staff.

I strongly suggest that all school psychologists who are employed in New York state familiarize themselves with this case and reference the document located at: http://nyasp.org/pdf/cutting_sps.pdf  which offers some more information contracting for services.

I'd encourage you to share this information widely with your colleagues, peers and administrators, as well as other individuals in positions of authority.