ASSESSMENT OF PUBLIC COMMENT

Following the publication of a Notice of Proposed Rule Making in the State Register on September 24, 2025, the Department received the following comments regarding the proposed rule:

1. COMMENT: Some commenters expressed concerns about staffing expectations and safeguards related to toileting and diapering. Questions were raised whether schools should ensure the availability of male staff to support male students who may prefer a same-gender adult. Commenters also emphasized that the proposed rule does not clearly identify who should perform toileting and diapering tasks or how these tasks should be carried out, creating uncertainty and potential risk. Commenters requested clarification on the designation of responsible staff and raised concerns about supervision during toileting or hygiene-related duties.

Additionally, some commenters raised concerns about how toileting and diapering requirements affect staffing and supervision, noting that current policies do not account for the need to maintain mandated staff-to-student ratios. Commenters worried that educators could be placed in untenable situations where they must choose between meeting a child’s needs and complying with supervision regulations. They emphasized that many early-grade classrooms, including Kindergarten, often have only one adult, and called for clearer guidance and regulations that address staffing ratios and supervision requirements when these tasks occur.

One commenter noted that the proposed rule requires supervision “per student needs” but does not specify staffing levels and emphasized that having two adults present during such duties is important to protect the safety and privacy of both students and staff. The commenter also raised concerns that custodial staff are not trained for these duties, making their inclusion inappropriate. Commenters also expressed concern that current teacher and aide contracts may not permit toileting assistance; they also raised concerns about the potential negative impact on the educator workforce and suggested that any new regulations should consider contractual limits and staffing costs.

DEPARTMENT RESPONSE: All schools are expected to follow appropriate staff-to-child ratios as required by existing regulations to ensure the health, safety, and well-being of all children. Decisions on how staff will provide diapering support will be made at the local level, based on local protocols, regulations, and operational needs.. Moreover, the proposed rule provides schools the flexibility to make such staffing decisions. Finally, while the Department appreciates commenters’ concerns related to workforce and contracting difficulties, these concerns do not override the Department’s obligations under the enacted legislation to establish statewide protocols for diapering and toileting of students in public schools. As a result, no changes to the proposed rule are necessary.

2. COMMENT: Two commenters raised concerns about the financial and staffing impacts of implementing the proposed regulations. The commenters noted that teachers may be stretched too thin without added support and emphasized that adequate staffing and supplies would require funding not currently allocated. Commenters also cautioned that, without new resources, schools might be forced to reallocate existing funds—potentially reducing investments in curriculum, interventions, and other student supports.

DEPARTMENT RESPONSE: While the Department appreciates these funding concerns, there is currently no additional state funding available for implementation of the proposed rule. The Department expects that all schools (as defined in the proposed rule) use their existing operational budgets and resources to implement the proposed rule. Additionally, as stated above, these concerns do not override the Department’s obligations under the enacted legislation to establish statewide protocols for diapering and toileting of students in public schools. Therefore, no further changes are necessary. 

3. COMMENT: One commenter indicated that the proposed rule offers limited guidance on managing challenging toileting behaviors and requested developmentally appropriate strategies for addressing student refusal or regression. Another commenter asked whether disciplinary action may be appropriate for unsafe behaviors or actions (e.g., using bodily fluids in an intentionally inappropriate manner) when such behaviors are unrelated to a student’s toileting status.

DEPARTMENT RESPONSE: The Department recognizes the importance of providing clear guidance to districts and programs and will develop and disseminate guidance to the field following finalization of the proposed rule.  Therefore, no changes to the proposed rule are necessary.

4. COMMENT: One comment asked whether menstrual care is included in the definition of “toileting” under the regulations, noting that some students require support with this and should not be excluded from school. The commenter requested clarification on whether these needs are protected within the regulations or addressed elsewhere.

DEPARTMENT RESPONSE: The Department recognizes the importance of ensuring that students receive support for menstrual care, and the Department considers menstrual care as part of toileting. Such care is provided in the same manner as other toileting assistance and hygiene includes assisting menstruating students with cleansing and changing menstrual pads. No changes to the proposed rule are necessary

5. COMMENT: Some commenters emphasized the need for adequate, dignified, and accessible spaces to support student toileting and diapering. Commenters indicated that many classrooms lack attached bathrooms, and existing private areas—such as those in nurses’ offices—are limited despite multiple students requiring diapering. Commenters sought clearer guidance on where toileting and diapering should occur. Specific questions were raised: “Can a diaper pail be used in lieu of an ‘outdoor’ location for disposal of soiled diapers?” and “Will a privacy screen suffice to create a "separate" location in classrooms?” Commenters also questioned appropriate bathroom-to-student ratios and urged the Office of Facilities Planning to ensure future building projects address these needs.

DEPARTMENT RESPONSE: In general, decisions regarding the appropriate spaces needed to provide diapering and toileting support are to be made at the local level based on local requirements and available space within each school.  However, the Department recognizes the importance of providing clear guidance to districts and programs and will develop and disseminate guidance to the field following finalization of the proposed rule.

Additionally, the Office of Facilities Planning requires all capital construction work to be compliant with NYS Uniform Fire Prevention and Building Code which sets minimum restroom facilities based on the building’s calculated occupancy. When the restroom needs of a specific building population exceed Code requirements, the district is responsible for determining what facilities are necessary and ensuring that those facilities are provided. No changes to the proposed rule are necessary.

6. COMMENT: Commenters indicated the proposed rule should balance school support with clearly defined parental responsibilities. Commenters emphasized the importance of parental accountability and involvement, noting challenges when students enter school without being toilet-trained, even when there are no underlying medical issues. One commenter noted that children “typically train by 27 months,” and recommended that when students are not toilet trained, schools should rely on medical documentation and work with families on a structured plan. Commenters also raised concerns that the proposed rule may place undue responsibility on school staff, effectively “shifting responsibility for toilet training from families to teachers,” with some noting that toilet training is a “parent’s job” and that it is not fair to expect educators to continually “pick up the slack.” Commenters suggest clear guidance and resources for families on toileting expectations before school entry, including incorporating this information into pre-K screenings. They also pointed out that the NYS Learning Standards “do not require teachers to provide toilet-training instruction,” underscoring that schools can support but should not replace the parental role. One commenter stated that expecting schools to potty train children is “unacceptable” and reinforced that, unless there is a medical issue, parents should ensure children are toilet-trained before entering school.

DEPARTMENT RESPONSE: The Department recognizes the importance of schools partnering with families to develop toileting plans that support skill development and ensure consistent support across home and school environments. Thus, the Department will coordinate with other relevant agencies that support early care and education to ensure that there is consistent guidance and messaging on this topic. No changes to the proposed rule are necessary.

7. COMMENT: Some commenters emphasized the importance of clearly defining the role of school nurses, particularly in relation to toileting and toilet training, and recommend that toileting should not be “performed by a nurse.” Commenters maintain that toileting is an activity of daily living (ADL), not a nursing function, noting that “hospital nurses have long delegated such tasks to aides” and warn that assigning toileting and diapering responsibilities to school nurses could detract from essential medical care. Commenters were concerned that the inclusion of school nurses in the legislation could result in school districts placing all toileting responsibilities on school nurses, even as many schools face multiple unfilled positions and a single nurse may serve roughly 400 students. Commenters indicated that including ADL tasks was unsafe, unsustainable, and potentially harmful to the workforce. Additional commenters highlighted the role of school medical directors and recommended annual consultations for students who have not achieved independent daytime toileting. 

DEPARTMENT RESPONSE: The Department agrees that toileting and diapering are not strictly the responsibility of school nurses. In addition, neither the proposed rule nor the enacted legislation suggest that diapering and toileting are the responsibility of school nurses. The proposed rule does not specify which school personnel may carry out these responsibilities, and the proposed rule provides schools with the flexibility to assign these responsibilities to appropriate staff based on their job descriptions. Thus, no further changes to the proposed rule are necessary. 

8. COMMENT: One commenter expressed concern that the proposed rule does not provide sufficient practical guidance for safe and effective implementation. Commenters also opposed assigning diapering and toileting responsibilities to teachers, noting that these tasks would substantially increase staff workload with limited support.

DEPARTMENT RESPONSE: The Department recognizes the importance of providing clear guidance to districts and programs and plans to develop and disseminate guidance to the field following finalization of the proposed rule.

The Department appreciates that school staff carry significant responsibilities.  While the proposed rule requires schools to establish clear procedures and provide annual training to ensure a safe, hygienic, and supportive environment, the proposed rule gives schools the flexibility to assign diapering and toileting responsibilities based on job descriptions, local protocols, and operational needs. Moreover, toileting and diapering plans should be developed collaboratively through local decision-making. As a result, no further changes to the proposed rule are necessary. 

9. COMMENT: One commenter supported the Department’s efforts to establish statewide protocols for toileting and diapering. Other commenters expressed support for the proposed rule, noting that changes to toileting procedures would positively impact both staff and students. Two commenters also applauded the Department’s efforts to clarify procedures for school districts, and one commenter highlighted the importance of providing clear, consistent guidelines. Another commenter supported non-discrimination for students who are not potty trained and welcomed the inclusion of all PK–12 students, ensuring no students are excluded from enrollment.

DEPARTMENT RESPONSE: The Department acknowledges and appreciates the support in upholding the dignity of all students learning concerning personal care and hygiene. The regulation is intended to provide guidance and support to ensure that all students’ needs are met.

10. COMMENT: Two commenters requested additional guidance and training on health and safety procedures. One commenter suggested developing an online module similar to the Bloodborne Pathogens training. Another comment emphasized the need for clear health, hygiene, and liability guidelines to protect both staff and students. One commenter indicated that there was a “significant rise in soiling and encopresis” among pre-adolescent and adolescent students, often with no documented cause, and stressed that these challenges require closer investigation to support students’ health and academic success. Some commenters also raised concerns about privacy and staff with regards to nudity and exposure to bodily fluids, particularly when students require close, hands-on support. Commenters also raised concerns about “fecal residue on shared seating” and noted that many schools lack procedures to determine causes or private spaces for students to manage hygiene discreetly.

DEPARTMENT RESPONSE: To the extent commenters request further guidance, the Department recognizes the importance of providing clear guidance to districts and programs and will develop and disseminate guidance to the field following finalization of the proposed rule.

To the extent commenters raise concerns related to privacy and other school procedures, toileting and diapering plans are to be developed collaboratively through local decision-making. Thus, these are decisions that should be made at the local level. 

With respect to the remaining comments, the issues raised are beyond the scope of the proposed rule.  Thus, no change to the proposed rule is necessary. 

11. COMMENT: Two commenters expressed concern that implementing the proposed rule could be time-consuming and may reduce the amount of instructional time available to students.

DEPARTMENT RESPONSE: While the Department recognizes commenters’ concerns related to instructional time, these concerns do not override the Department’s obligations under the newly enacted legislation to establish statewide protocols for diapering and toileting of students in public schools.  Moreover, the proposed rule is intended to empower all students to succeed through developmentally appropriate support, accommodation, and instruction, and diapering and toileting plans should be practical, supportive, and integrated into the learning process.  Therefore, no further changes to the proposed rule are necessary. 

12. COMMENT: One commenter noted that key components of the proposed regulations are missing or need clarification to avoid ambiguity in implementation. The commenter seeks clarification whether “the regulations apply in all schools and at all locations where school activities occur, both on and off school property”. Commenters also asked, “What constitutes an unreasonable delay?” and expressed concern that while current regulations focus extensively on student rights, they do not address the rights of faculty and staff. The commenter also asked “What rights do faculty and staff have to avoid being placed in unsafe, unsanitary, or unhealthy working conditions while performing their duties?”

DEPARTMENT RESPONSE: The Department recognizes the importance of providing clear guidance to districts and programs and will develop and disseminate guidance to the field following finalization of the proposed rule in order to address ambiguities regarding the application of the proposed rule.  No change to the proposed rule is necessary.

13: COMMENT: Two commenters expressed concern that the proposed rule should exclude preschool special education programs (4410 programs) from the definition of “school” because Chapter 361 of the Laws of 2024 was amended to remove 4410 programs to avoid duplication and ensure consistency with Office of Child and Family Services oversight.

DEPARTMENT RESPONSE: The Department agrees with the commenters’ concerns.  As a result, the proposed rule will be amended to remove references to preschool special education programs that are licensed or regulated by other state agencies. However, consistent with the intent of the enacted legislation, the proposed rule will continue to apply to any other preschool special education programs that are not licensed or regulated by other state agencies, to ensure that these programs have uniform policies for diapering and toileting.

14: COMMENT: One commenter requested the Department include the needs of adolescent and adult students within the definition of “developmentally appropriate assistance with toilet learning” to avoid excluding older students who need specialized instruction but do not have significant disabilities.

DEPARTMENT RESPONSE: As noted by the commenter, the proposed rule currently includes a provision for developmentally appropriate toileting policies for school-age students who require diapering and/or toileting support due to an intellectual or developmental disability or other impairment. It was not the Department’s intention to limit the applicability of developmentally appropriate toileting policies to students with intellectual or developmental disabilities or other impairments. Therefore, the proposed rule has been amended to remove these specific disability categories in order to ensure that developmentally appropriate toileting policies are applicable to all students who need diapering or toileting support.

15: COMMENT: One commenter suggested the Department should commit to a review of the proposed rule within three years of its adoption in order to seek feedback around effectiveness; the commenter also suggested that school administration should be required to provide an annual attestation concerning the completion of diapering and toileting training. 

DEPARTMENT RESPONSE: Pursuant to section 207(1)(b) of the State Administrative Procedure Act, requires that for any rule adopted on or after January 1, 2013, for which a regulatory flexibility analysis, rural area flexibility analysis, or job impact statement is required, the initial review shall occur no later than in the third calendar year after the year in which the rule is adopted. Therefore, the Department will review this rule in the year 2028, and that review will be published in the January 2028 State Register for public comment. The proposed rule does not require an attestation; however, if training has not been provided as required by the proposed rule, individuals may reach out to the Department to provide assistance in having a school come into compliance.