Appeal of AMY L. BARKER and JOHN PITCHER from action of the Board of Education of the Dansville Central School District and Sunrise Instructional Resources, Inc. regarding appointment from a preferred eligible list.

Decision No. 15,375

(March 8, 2006)

James R. Sandner, Esq., attorney for petitioners, Kevin H. Harren, Esq., of counsel

Harris Beach LLP, attorneys for respondents, Edward A. Trevvett, Esq., of counsel

MILLS, Commissioner.--Petitioners seek to annul an action of the Board of Education of the Dansville Central School District (“the board”) in procuring certain services of Sunrise Instructional Resources, Inc. (“Sunrise”).  Petitioner Barker also seeks appointment to her previously abolished position in the tenure area of school social worker, together with back pay and benefits.  The appeal must be sustained in part.

Petitioner Pitcher (“Pitcher”) is a resident of the Dansville Central School District (“district”).  Petitioner Barker (“Barker”) is a certified school social worker.  In August 2000, the board employed Barker as a “Student Counseling Specialist in the Elementary School,” appointing her to the “School Counselor K-12” tenure area effective September 2000.  In April 2003, the board amended the tenure area in which she served to that of “School Social Worker.”  By letter dated April 25, 2003, the district’s superintendent notified Barker that the board had “amended [her] appointment to the correct tenure area of School Social Worker retroactive to September 1, 2000.”  Petitioner was tenured in the area of School Social Worker, effective September 1, 2003.

On June 8, 2004, the board abolished a school social worker position due to economic reasons.  As the least senior individual in that tenure area, Barker’s employment was terminated.  By letter dated June 9, 2004, the superintendent notified Barker that her position had been eliminated for the 2004-2005 school year and that, pursuant to Education Law §§ 2510(3)(a) and 3013(3)(a), she would be “placed on a preferred eligible list of candidates for appointment to a similar position for seven years....”

On July 7, 2004, the board entered into a memorandum of understanding (“MOU”) with Sunrise, a for-profit corporation, under which Sunrise would deliver a “Student Conduct Management Project” (“the Project”) providing “direct student services, training, classroom support, family support, and consultation services.”[1]  Specifically, Sunrise agreed to provide: 

1)diagnostic services on as-needed basis when not part of normal school district procedures and responsibility;

2)direct student contact in the form of counseling, issue processing, in-classroom behavior intervention, and training;

3)parent counseling and consultation, family outreach and training to support the Project;

4)appropriate consultation and training for participating school district personnel;

5)liability insurance coverage for Sunrise personnel; and

6)general supervision and coordination of services to be provided in collaboration with Dansville administrative personnel.

The MOU provided that the Project would be delivered as follows:

1)5 days weekly @ 42 weeks Behavior Mentor assigned to 8:1:1 classroom,

2)3 hours daily @ 42 weeks Conduct Specialist Consultant services,

3)Up to 323 hours annually of Learning Specialist concentration, Counseling and Family Therapy, Clinical services (clinical supervision, consultation, direct counseling) and administrative and management services. 

Intensive therapy and psychiatric services are not included as part of the MOU, but are billed separately and in addition to the Project budget.

This appeal ensued.  Petitioners’ request for an interim order was denied on August 25, 2004.

Barker asserts that the duties for which the board contracted under the MOU are similar to those which she previously performed, and she is entitled to reinstatement.  Petitioners also assert that the MOU is an impermissible contract for instructional or related services.  Petitioners further contend that implementation of the MOU would result in the unlawful provision of services to students by uncertified individuals.

Respondents assert that the services provided under the MOU do not constitute a “similar position” to that previously held by Barker and, consequently, she is not entitled to reinstatement.  Respondents contend that the services provided by Sunrise employees constitute “clinical treatment” and, thus, are beyond the scope of Barker’s school social worker certification.  Respondents maintain that procuring such services through the MOU is permissible.

As a procedural matter, respondents argue that the reply affidavit submitted by petitioners is improper and should not be considered.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Respondents correctly note that their answer does not set forth new material or affirmative defenses.  However, prior to submitting their answer, respondents submitted affidavits of the district’s superintendent and Sunrise’s president and chief executive officer in response to petitioners’ request for an interim order.   Both affiants state that the affidavits were submitted in opposition to the stay request “and also in support of Respondents’ answer which will be subsequently filed in this appeal.”  I find, therefore, that those affidavits contain new material in support of respondents’ answer to which petitioners are entitled to respond.  Accordingly, I have considered paragraphs 3, 4 and 6 of Barker’s reply affidavit.

The parties’ memoranda of law include exhibits not previously submitted as part of the record.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540).  Consequently, the additional exhibits have not been considered.

Barker claims that by entering into the MOU with Sunrise, the board created a new position similar to that which she previously held and to which she is entitled to appointment.  The Education Law provides, in pertinent part:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled. (Education Law §§2510[3][a] and 3013[3][a]).

Thus, petitioner is entitled to appointment to a newly created position if the new position is similar to that of her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028).  The test of whether the two positions are in fact "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in her former position (Greenspan v. Dutchess County BOCES, 96 AD2d 1028; Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923).  Petitioner has the burden of proving that a majority of the duties of the new position are similar to those of her former position (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923).  However, the standard of what is similar is flexible and is not to be applied mechanically (Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923; Appeal of Langton, 28 id. 146, Decision No. 12,060).  In addition, the two positions must be in the same tenure area (Kelley v. Ambach, 83 AD2d 733; Appeal of Debowy, 41 Ed Dept Rep 161, Decision No. 14,648; Appeal of Heath, 37 id. 544, Decision No. 13,923).

Sunrise’s president and chief executive officer states that, with respect to the services procured under the MOU, “[t]he goals of the Project are to provide direct student services, staff and parent training, family support, and academic and behavior consultation for a specific targeted population of children with severe behavioral/conduct problems for the purpose of: (a) helping participating students develop skills to manage their own behavior and assume responsibility for their own learning; (b) to provide these students with the academic skills and supports needed to operate successfully in the regular education setting; and (c) to plan for the students’ return to the mainstream in a systematic manner.”

The specific duties of the Behavior Mentor position under the MOU are to provide “direct care during the school day in the context of the 8:1:1 classroom.  Activities may include individual and group counseling, issue processing, in-classroom behavior intervention, academic support, and training.  Participation with both family outreach and training will help support the goals of the Project.”

The specific duties of the Conduct Specialist Consultant position under the MOU are to provide “direct daily student contact in the form of counseling, issue processing, in-classroom behavior intervention, training, parent counseling and consultation, and family outreach activities.”

Finally, Sunrise will provide Clinical Consultants described as “Learning Specialist Concentration, Counseling and Family Therapy, Supervision and Management, and Clinical Supervision...”  The consultants provide “clinical supervision, academic and behavior consultation, and management services.”

Barker avers that, during her employment, most of her time was devoted to diagnostic services, direct student contact (counseling), issue processing, in-classroom behavior intervention and training, parent counseling and consultation, family outreach and training and consultation with and training of participating school district personnel.  She contends that the duties performed under the MOU are similar to those she previously performed and that she, therefore, is entitled to reinstatement.

Respondents contend that Barker has failed to submit detailed evidence regarding her prior duties sufficient to establish similarity of her position to the duties performed under the MOU.  They assert that Barker is merely reiterating the duties set forth in the MOU.  The record, however, supports Barker’s assertions.  Barker was employed as a Student Counseling Specialist, later redesignated as school social worker, within the school social work tenure area.  Her job function was to provide support for special education students, particularly with students in an 8:1:1 special education class.  The job description for the Student Counseling Specialist set forth as its major responsibilities: providing individual and group student counseling, family counseling for families of students with disabilities, crisis management, planning for and managing students’ needs, and working with the staff, administration and parents in such planning, working with special education teachers, providing small group instruction in effective education and developing student treatment plans.  A comparison of Barker’s duties with the services procured under the MOU indicate that her former duties were essentially the same as the duties of the Behavior Mentor and Conduct Specialist Consultant.

Respondents argue that the services procured under the MOU are “clinical” in nature.  They assert that, to provide clinical services, licensure as a clinical social worker is required and that Barker is not permitted to provide such clinical services under her school social worker certificate.  Respondents maintain that, therefore, the services provided by Sunrise are not similar to the duties previously performed by Barker.   

Prior to September 1, 2004, social worker was a “title protected” profession, meaning that only individuals licensed as a certified social worker (“CSW”) pursuant to Article 154 of the Education Law could use the title “certified social worker”.  To obtain certification as a “school social worker” under Part 80 of the Commissioner’s regulations, an individual had to hold a CSW license.

Effective September 1, 2004, Article 154 was amended to make social work a “practice protected” profession, meaning only individuals who are licensed in the profession can practice social work in New York State, unless an exemption in the law applies.  The law was changed to establish two levels of professional practice of social work: licensed master social work (“LMSW”) and licensed clinical social work (“LCSW”).  Education Law §7701, as amended, sets forth the respective scope of practice and licensure requirements for each level.

Education Law §7701(1)(b) provides, “Licensed master social workers engage in the administration of tests and measures of psychosocial functioning, social work advocacy, case management, counseling, consultation, research, administration and management, and teaching.”  Education Law §7701(2)(a) provides, in pertinent part, “[t]he practice of clinical social work encompasses the scope of practice of licensed master social work and, in addition, includes the diagnosis of mental, ... disorders and disabilities and of the psychosocial aspects of illness, ... undertaken within a psychosocial framework; administration and interpretation of tests and measures of psychosocial functioning; development and implementation of appropriate assessment-based treatment plans; and the provision of crisis oriented psychotherapy....”

Education Law §7707(1) provides, “Any person who is licensed as a certified social worker on the effective date of this article shall be licensed as a master social worker without meeting any additional requirements.”  Consequently, a certified school social worker with a CSW was deemed licensed as a LMSW.

Thereafter, §80-2.3(f) of the Commissioner’s regulations relating to the certification of school social workers was amended to conform to the professional practice amendments to Article 154 of the Education Law.  To be permanently certified as a school social worker, an individual must be licensed as a LMSW or a LCSW.  Section 80-2.3(f)(3) defines the scope of practice of a certified school social worker.  This section provides, in pertinent part:

...The provisional or permanent certificate in school social work shall authorize the holder of the certificate to practice licensed master social work, ... in public schools of New York State or any other school for which the law requires certification as a school social worker pursuant to Part 80 of this Title.  For such individual to practice licensed clinical social work, ... the individual must be licensed and registered by the department as a licensed clinical social worker when performing such services, unless such individual is exempt from licensure in licensed clinical social work pursuant to section 7706 or other provision of article 154 of the Education Law.

Barker obtained certification as a school social worker at the time a CSW was required.  Upon amendment of the licensure requirements for the practice of social work, her underlying social work license converted to a LMSW.  I have compared the duties of the Behavior Mentor and the Conduct Specialist Consultant positions to the scope of practice provisions of Education Law, Article 154, and concluded that the duties performed in those positions are within the scope of practice of a LMSW.  Individuals in those positions are not required to perform diagnosis, psychotherapy or assessment-based treatment planning (see Education Law §7701 [2][a]; New York State Education Department, Social Work Guide to Practice, Rev. 09/05, at 11).  Thus, Barker would not be precluded from performing the duties of the Behavior Mentor or Conduct Specialist Consultant under her school social worker certification. 

Respondents point out that Barker is not currently trained in the use of physical restraints, a technique respondents assert is sometimes necessary in managing the behavior of certain of its students with disabilities.  However, the ability to engage in the use of physical restraints is not a function of licensure as a LMSW or LCSW or certification as a school social worker.  An individual must receive training to use that management technique.  In fact, Barker previously completed such training, but because she did not complete a refresher course within a prescribed time period, her course certification lapsed.  If the board requires Barker to be able to use physical restraints as a behavior management technique when necessary, it need only direct her to renew her certification by completing the required training.  The fact that Barker’s training certificate has lapsed is not relevant to determine the similarity of the positions at issue. 

Upon careful review of the record, I conclude that the Behavior Mentor and Conduct Special Consultant services procured under the MOU with Sunrise are similar to the duties formerly performed by Barker.  By contracting for services formally performed by Barker, the board created a new position(s) (Mairs v. Bd. of Ed., 82 Misc 2d 989; Appeal of Davis, 39 Ed Dept Rep 270, Decision No. 14,234), and petitioner is entitled to reinstatement (Appeal of  Davis, 39 Ed Dept Rep 270, Decision No. 14,234; Matter of Friedman, 19 id. 522, Decision No. 10,236).  The board 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 (Mairs v. Bd. of Ed., 82 Misc 2d 989; Appeal of  Davis, 39 Ed Dept Rep 270, Decision No. 14,234; Matter of Spataro, 25 id. 206, Decision No. 11,549; Matter of Friedman, 19 id. 522, Decision No. 10,236).

 Petitioners also challenge the MOU with Sunrise, claiming that a board of education may not contract with a private independent contractor for school social work services.

The position of school social worker is among those certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching and supervisory staff of a school district.  (In the Matter of the Certification of Classes of Positions of the Teaching and Supervisory Staffs of School Districts, Boards of Cooperative Educational Services and County Vocational Education and Extension Boards, dated July 9, 1971) (“Certification No. 4”). 

 Certification No. 4 specifically provides that: 

 ...the following classes of positions of the teaching and supervisory staffs of school districts, ... are classes of positions, the incumbents of which are persons employed, by any title whatsoever, as members of the teaching and supervisory staffs of said units of the State School System, and by virtue of their functions, which are wholly or principally supporting the function of teaching—-whether or not such teaching function be executed through teaching one or more entire classes, or through individual teaching or counseling work involving single students or small groups of students or otherwise, or both of such functions, ... are hereby certified to be, and they are, in the unclassified service of the Civil Service:

School Social Worker   

In view of the fact that the governing board ... has the power to employ such “school social worker” as may be necessary to carry out its program and in view of the consequent fact that such boards have broad discretion in such matters; and in view further of the fact that various functions of the school social worker, such as a caseworker who counsels with students and their parents, a collaborator who works cooperatively with other members of the school staff, a coordinator who serves as an agent to bring school and home, and school and community into better working relationships, as a consultant who is available to confer with other staff members even though he may not be directly involved with students or their immediate problems, and such similarly related work, this certification is herewith tendered.

...

The qualifications for appointment to any such position listed hereinabove are hereby certified to be the qualifications and requirements set forth in Part 80 of the Regulations of the Commissioner of Education as approved by the Board of Regents of the University of the State of New York.

...[T]he duties of such positions include some or all of the following duties:

School Social Worker

Subject to the supervision and direction of the superintendent of schools, performs case work service with the individual pupil toward the correction of certain personal, social, or emotional adjustments; performs case work service with parents as an integral part of the task of helping the pupil to increase parents understanding, their constructive participation and their use of appropriate resources; performs case consultation and collaboration with other school personnel to gather and give information on a case, and to establish and plan for respective roles in the modification of the pupils behavior; cooperative action with other members of the pupil personnel service team in the referral of pupils, cooperation with parents, contact with community social agencies, coordina-[sp] of school social work services with the work of these agencies, and cooperation with such agencies in determining needs for and developing additional case work resources.

As set forth in Certification #4, school social worker duties are not limited to direct instruction of students, but rather include duties supporting the function of teaching, such as performing student and parent case work services and consulting/collaborating with other school personnel to establish and plan for respective roles in the modification of student behavior.

Certification of the position of school social worker as a member of the teaching and supervisory staff designates that position as pedagogical and exempts it from the classified service appointment procedure to permit boards of education to exercise the broad discretion in employment matters granted them under the Education Law.  This discretion, based in part on the need for close supervision and evaluation of individuals appointed by the board, is necessary for the board to carry out its responsibility for the education of children residing within the school district (see Matter of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236). 

A board of education does not have authority to contract with an independent contractor to provide instructional or educational services (Appeal of Bork, et al., 60 AD2d 13; appeal denied, 44 NY2d 647; Appeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774; Appeal of Niver, 22 id. 421, Decision No. 11,020; Matter of Friedman, 19 id. 522, Decision No. 10,236).  Where a position is certified as being part of the teaching and supervisory staff of a school district, such as a school social worker as per Certification #4, a board of education must fill such position by appointment as a district employee (Education Law §3012).  If necessary, a board may contract for such services only with a board of cooperative education services or neighboring school district (see Matter of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236).

In addition to the lack of statutory authority, contracting with private independent contractors for school social work services is contrary to sound educational policy.  School social workers are required to complete certain educational training experience in order to obtain permanent certification under §80-2.3 of the Commissioner’s regulations.  To permit a board to contract with a private independent contractor for school social work services could result in the delivery of services to children by individuals who have not been appropriately trained. 

 As noted above, respondents assert that the social work services provided under the MOU are clinical services requiring licensure as an LCSW.  They contend that a board of education may contract with licensed individuals to provide such clinical social work services.  Respondents are incorrect.

Where clinical social worker services are instructional in nature or are rendered in support of teaching, such services fall within the purview of Certification #4.  A board of education is not authorized to contract for such services with a private independent contractor (Appeal of Bork, et al., 60 AD2d 13, appeal denied, 44 NY2d 647; Appeal of McKenna, et al., 42 Ed Dept Rep 54, Decision No. 14,774; Appeal of Niver, 22 id. 421, Decision No. 11,020; Matter of Friedman, 19 id. 522, Decision No. 10,236), but must appoint a certified school social worker pursuant to Education Law §3012.  In such cases, although the required underlying licensure necessary to carry out the duties of a LMSW or a LCSW differ, §80-2.3(f)(3) of the Commissioner’s regulations, nevertheless, requires certification as a school social worker to practice either level of social work. 

As set forth above, I do not find that the services performed by the Behavior Mentor or Conduct Specialist Consultant constitute clinical social work services.  With respect to the duties of the clinical consultants provided under the MOU as part of the Project, Sunrise’s president and chief executive officer states that the overall goals of the Project include providing academic and behavioral consultation for a specific population of student with severe behavioral/conduct problems.  He describes the purpose of the Project as:  “(a) helping participating students develop skills to manage their own behavior and assume responsibility for their own learning, (b) to provide these students with the academic skills and supports needed to operate successfully in the regular education setting, and (c) to plan for the students’ return to the mainstream in a systemic manner” (emphasis supplied).  He further states that the clinical consultants provide clinical supervision, intensive counseling and psychotherapy, learning specialist services and management services to support the Project.  I find in this record that the clinical consultant services procured under the MOU constitute school social work services, requiring appropriate certification under §80-2.3 of the Commissioner’s regulations and appointment pursuant to Education Law §3012.

Respondents further assert that the services procured under the MOU are “related services” provided as a component of special education for certain students with disabilities in the district.  As such, respondents contend that the board is authorized to contract with Sunrise to provide these services. 

A board of education must provide related services as part of the continuum of special services and programs available to students with disabilities to enable such students to benefit from instruction (see Education Law §4402[2]).  Specifically, “related services” include:

...speech-language pathology, audiology services, interpreting 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, appropriate access to recreation, including therapeutic recreation, other appropriate developmental or corrective support services, and other appropriate support services ... (emphasis supplied). (see Education Law §4401[k]; 8 NYCRR §200.1[qq]).

Section 200.6(b)(3) requires that related services be provided by individuals with appropriate certification or license in each area of related service.  As discussed above, the related service of school social work – the service at issue here – must be provided by an individual holding a school social worker certificate pursuant to §80-2.3 of the Commissioner’s regulations.  Where a district does not employ its own school social worker as a member of its teaching and supervisory staff to provide related services to its students with disabilities, it may contract for such services only with a board of cooperative educational services or neighboring school district to obtain such services (see Matter of Friedman, 19 Ed Dept Rep 522, Decision No. 10,236; Education Law §4401 [2][b] and [c]).

Respondents attempt to characterize the services provided under the MOU as supplemental to the district’s regular services.  However, the social work services provided under the MOU (counseling, case management, in-class behavior intervention, issue processing, academic support, training, parent and staff training and consultation) are core support services, particularly when designated as related services (as respondent claims) that are a required component of a student’s individualized education program.  Further, I note in the general description of services set forth in the MOU that only diagnostic services will be provided on an “as-needed basis when not part of normal school district procedures and responsibility.”  Therefore, respondents’ claim that the services procured under the MOU are supplemental is without merit.

Petitioners assert that the board has violated the requirements of Education Law §3009 by hiring unqualified individuals – that is, individuals not appropriately certified or licensed – to provide school social work services to district students.  Education Law §3009(1) provides, in pertinent part, “No part of the school moneys apportioned to a district shall be applied to the payment of the salary of an unqualified teacher ....” To be qualified, members of the teaching and supervisory staff of a school district must be appropriately certified in accordance with Part 80 of the Commissioner’s regulations.

As noted above, school social workers are members of the teaching and supervisory staff of a school district and, thus, must be certified under §80-2.3 of the Commissioner’s regulations. Although the record contains evidence sufficient to establish that the duties of the positions supplied by Sunrise pursuant to the MOU constitute school social work, it is silent as to the specific individuals Sunrise employed to fill those positions.  There is no information addressing whether those individuals hold certification as school social workers pursuant to §80-2.3 of the Commissioner’s regulations.  Therefore, petitioners have failed to establish a violation of §3009.  However, even if those individuals employed by Sunrise as Behavior Mentor, Conduct Specialist Consultant or as part of the clinical consultant team were certified school social workers, such would be irrelevant to the seminal issue decided in this appeal.  That is, a board of education may not contract with a private independent contractor for school social work services.

         

THE APPEAL IS SUSTAINED IN PART.

 

IT IS ORDERED that the memorandum of understanding, dated July 7, 2004, between respondent board of education and respondent Sunrise Institutional Services, Inc. be, and the same hereby is, annulled, and

 

IT IS FURTHER ORDERED that respondent board reinstate petitioner Barker to the position of school social worker with back pay and benefits in accordance with its current collective bargaining agreement less any income she may have had from other employment during this period.

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