N.Y. Comp. Codes R. & Regs. tit. 8 § 59.14

Current through Register Vol. 46, No. 25, June 18, 2024

Section 59.14 - Waiver for entities providing certain professional services

(a)Applicability.

Section 6503-a of the Education Law authorizes the department to issue a waiver for certain entities to provide the following services:

(1) services provided under article 154, 163 or 167 of the Education Law for which licensure would be required; or

(2) services constituting the provision of psychotherapy as defined in section 8401(2) of the Education Law and authorized and provided under article 131, 139 or 153 of the Education Law.

(b)Eligible entities.

To be eligible for a waiver under this section, an entity must be in existence prior to June 18, 2010 and be either:

(1) a not-for-profit corporation formed for charitable, educational, or religious purposes or other similar purposes deemed acceptable by the department; or

(2) an education corporation as defined in section 216-a of the Education Law.

(c)Application for a waiver.

(1) To provide the services described in subdivision (a) of this section, an eligible entity shall have applied to the department for a waiver no later than February 1, 2012. The department may issue a waiver to a qualified entity after July 1, 2012, regardless of the date on which the entity was created, upon a demonstration of need for the entity's services satisfactory to the department (e.g., the entity provides services to an underserved population or in a shortage area).

(2) No later than February 1, 2012, any entity described in subdivision (b) of this section providing services described in subdivision (a) of this section on or after June 18, 2010, shall submit an application for a waiver on forms prescribed by the commissioner. Upon submission of an application for a waiver under this section, the entity may continue to operate and provide services until the department either denies or approves the entity's application.

(3) An application for a waiver under this section shall include:

(i) the name of the entity;

(ii) evidence that the entity is either:

(a) a not-for-profit corporation that is formed for charitable, educational, or religious purposes, or other similar purposes deemed acceptable by the department; or

(b) an education corporation as defined in section 216-a(1) of the Education Law;

(iii) evidence of the date the entity came into existence;

(iv) the primary address, phone number, website and email address for the entity;

(v) contact information for the individual responsible for submitting the application for a waiver, including phone number and email address;

(vi) the name and address of each director and officer of the entity;

(vii) a copy of the certificate of incorporation or other documentation that authorizes the entity to provide the services described in subdivision (a) of this section;

(viii) a listing of other jurisdictions in which the entity may provide the services described in subdivision (a) of this section;

(ix) the information required in paragraph (e)(1) of this section; and

(x) an attestation by an officer authorized by the entity to make such attestation that:

(a) identifies the scope of services to be provided by the entity;

(b) includes a list of professions under title 8 of the Education Law in which professional services will be provided by such entity;

(c) includes a statement that only a licensed professional, a person authorized to provide such services, or a professional entity authorized by law to provide such services shall provide such professional services as are authorized under this section;

(d) the entity will comply with section 18 of the Public Health Law relating to patient access to records;

(e) the entity will make available any and all information requested by the department relating to the entity's eligibility for a waiver and the entity's compliance with the requirements of this section and section 6503-a of the Education Law;

(f) includes a statement as to whether any application by the entity for an operating certificate or license with another state or Federal agency, political subdivision, municipal corporation, or local government agency has been granted and such operating certificate or license is currently in effect; whether such application is pending or was disapproved; whether such a certificate or license was revoked; and whether a written authorization or contract was terminated for cause by one of such agencies;

(g) the entity has adequate fiscal and financial resources to provide such services;

(h) the statements on the application are true and accurate.

(d)Entities that do not require a waiver. In accordance section 6503-a of the Education Law, the following entities do not require a waiver under this section:

(1) any entity operated under an operating certificate appropriately issued in accordance with article 16, 31, or 32 of the Mental Hygiene Law, article 28 of the Public Health Law, or comparable procedures by a New York State or Federal agency, political subdivision, municipal corporation, or local government agency or unit, in accordance with the scope of the authority of such operating certificate;

(2) a university faculty practice corporation duly incorporated pursuant to the Not-For-Profit Corporation Law;

(3) an institution of higher education authorized to provide a program leading to licensure in a profession defined under article 131, 139, 153, 154 or 163 of the Education Law, to the extent that the scope of such services is limited to the services authorized to be provided within such registered program;

(4) an institution of higher education providing counseling only to the students, staff, or family members of students and staff of such institution;

(5) any other entity that is otherwise authorized by law to provide such services and only to the extent that services are authorized under any certificates of incorporation or such other organizing documents as may be applicable; or

(6) a program or service operated, regulated, funded, or approved by the department of mental hygiene, the office of children and family services, the department of corrections and community supervision, the office of temporary and disability assistance, the state office for the aging and the department of health or a local governmental unit as that term is defined in section 41.03 of the Mental Hygiene Law or a social services district as defined in section 61 of the Social Services Law.

(e)Provision of professional services.

(1) The entity shall describe in the application the services that will be provided that would otherwise be restricted to individuals licensed or authorized under article 153, 154 or 163 of the Education Law. The description shall indicate the profession(s) in which services will be provided and shall include:

(i) an attestation that individuals authorized to provide professional services only under supervision will receive the required supervision;

(ii) a description of how the services will be provided, including a description of whether the services will be provided by licensed or authorized individuals employed by the entity or provided through a contract with licensed professional(s) or a professional entity, as defined in Education Law section 6503-a(5); and

(iii) an attestation that the entity will verify the licensure, limited permit or other authorization of individuals and professional entities providing services as employees of or on behalf of the entity.

(2) Unless otherwise authorized by law, an entity that holds a waiver under this section shall not provide services in any profession other than those authorized in 6503-a of the Education Law and included on the application for a waiver.

(f)Attestation of moral character.

(1) Each director and officer of the entity shall submit on forms prescribed by the commissioner an attestation regarding whether:

(i) the individual has been found guilty after trial, or pleaded guilty, no contest or nolo contendere to a crime (felony or misdemeanor) in any court;

(ii) the individual has criminal charges (felony or misdemeanor) pending in any court;

(iii) any licensing or disciplinary authority has refused to issue a license or has ever revoked, annulled, cancelled, accepted surrender of, suspended, placed on probation, or refused to renew a professional license or certificate held by the individual now or previously, or has ever fined, censured, reprimanded or otherwise disciplined the individual;

(iv) there are any pending charges against the individual in any jurisdiction for any sort of professional misconduct; or

(v) a hospital or licensed facility has restricted or terminated the individual's professional training, employment or privileges, or whether the individual has ever voluntarily resigned or withdrawn from such association to avoid imposition of such measure.

(2) Any information included in the application that indicates that a director or officer of the entity has committed an act which raises a reasonable question as to the individual's moral character shall be referred to the director of the Office of Professional Discipline or his or her designee. The determination of whether a director or officer of the entity is of good moral character shall be made in accordance with the procedures specified in Subpart 28-1 of this Title.

(g)Review of waiver applications.

The application shall not be deemed acceptable if the entity has not submitted information identified in subdivisions (c), (e) and (f) of this section. The department may deny an application based on the failure of the applicant to submit the required information within a reasonable period of time, as determined by the department. When, in the determination of the department, all necessary information has been received, a decision to approve or deny the waiver application shall be made within 90 days of such determination. If the waiver application is denied, then the entity shall cease the provision of professional services as defined in section 6503-a(1)(a) of the Education Law. The determination of the department shall be final, and a copy thereof shall be forwarded to the applicant.

(h)Waiver certificates.

(1) An entity that has been issued a waiver under this section shall apply for a waiver certificate for each setting at which the entity provides professional services in New York.

(2) The application for additional certificates may be made as part of the initial application for a waiver or after the department has approved the entity for a waiver under section 6503-a of the Education Law.

(3) Each waiver certificate shall display the name of the entity and the address of the site.

(4) Any entity that willfully fails to obtain a certificate of waiver for each site and/or to display the waiver certificate at each site shall be subject to the penalties set forth in section 6511 of the Education Law.

(i)Notification of changes.

(1) An entity that is issued a waiver pursuant to section 6503-a of the Education Law shall notify the department within 60 days of any change in the information supplied to the department, including but not limited to a change in the:

(i) name and terms of officers or directors;

(ii) site(s) at which professional services are provided; and

(iii) person responsible for filing the waiver application on behalf of the entity or the contact information for such person; and/or

(iv) a transfer or assignment of interest as set forth in subdivision (j) of this section, provided that the entity shall notify the department immediately of such change.

(2) Notification shall be made in a form prescribed by the department.

(j)Transfer or assignment of waiver.

A waiver issued by the department pursuant to section 6503-a of the Education Law shall not be transferable or assignable. For purposes of this section, a transfer or assignment shall mean the conveyance of a waiver under this section from one entity to another entity by any means, including but not limited to a merger, consolidation, or a change in control of the entity.

(k)Triennial application.

A waiver issued pursuant to this section shall be valid for three years. An entity that is issued a waiver pursuant to this section shall submit to the department for review an application for renewal of the waiver every three years.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 59.14

Amended, New York State Register April 1, 2015/Volume XXXVII, Issue 13, eff.4/1/2015

Amended New York State Register June 24, 2020/Volume XLII, Issue 25, eff. 6/24/2020