N.Y. Comp. Codes R. & Regs. tit. 8 § 126.10

Current through Register Vol. 46, No. 17, April 24, 2024

Section 126.10 - School license; licensing procedure

(a) Every applicant shall submit an application for licensure of a private career school upon forms provided by the commissioner, together with such other information as the commissioner may require, including applications for approval of curricula or courses of study, quarters or facilities, required personnel licenses, and documentation of ownership and adequacy of resources. The application shall be accompanied by the statutory fee. In accordance with section 5001(4) of the Education Law, the applicant shall receive a written approval or denial, together with the reasons for a denial of such application.

(b) An application for renewal of any license shall be submitted at least 120 days prior to the expiration date of the current authorization, on a form prescribed by the commissioner and accompanied by the statutory fee; annual financial reports on forms prescribed by the commissioner; and such other information as the commissioner may require. When complete and timely application for renewal of any license has been made, the school shall receive a written approval or denial, together with the reasons for denial of renewal, from the commissioner no less than 30 days prior to the date such license expires. Upon receiving a written denial, a school shall not enroll new students for the remainder of the term of the existing license.

(c) Pursuant to section 5001(7) of the Education Law, no license granted under this Part shall be transferable or assignable without the approval of the commissioner. Upon transfer or assignment of any interest totaling 25 percent or more, whether direct or indirect, in the total equity or assets of a school shall be deemed a new school required to submit a new school application and obtain a new license pursuant to the requirements of this Part. However, upon such a substantial change in interest, the previous school license shall remain in effect until the new license is issued or denied or the previous license expires or is revoked, whichever comes first.

(d) Each school shall display, near the entrance to the school the license which has been issued to it. Such authorization shall be displayed only during the period of its validity.

(e) A school shall be subject to an annual assessment based on the school's gross tuition from the previous year, in accordance with the requirements of sections 5001(9) and 5007(10) of the Education Law. For a school in operation in the year prior to the issuance of its license, such assessment shall begin in its initial year of licensure, based on the school's gross tuition from such previous year, in accordance with the requirements of sections 5001(9) and 5007(10) of the Education Law.

(f) Repealed

(g) Schools conducted for profit which provide instruction in English as a second language or preparation for the high school equivalency examinations to out-of-school youth or adults which are required to be licensed under section 5001 of the Education Law, pursuant to chapter 887 of the Laws of 1990, shall comply with the provisions of this Part, article 101 of the Education Law and all other applicable laws and regulations, in a time frame established by the commissioner. Such schools in operation prior to September 1, 1990 may be granted a variance from any provision of this Part relating to an initial or renewal application for licensure, if in the judgment of the commissioner, the educational quality of the program or financial viability of the school will not be impaired.

(h) Alternate licensing procedures for correspondence, internet or home study schools. Pursuant to section 5001(4)(f) of the Education Law, correspondence, internet or home study schools in which all approved programs and courses are under 300 hours shall be subject to all of the requirements of article 101 of Education Law and this Part, except that they shall be exempt from the following provisions:

(1) paragraphs (8) and (9) of subdivision (f) of this section relating to the reporting of financial assistance and placement information;

(2) section 5002(1)(c)(1) of the Education Law relating to the passing of an entrance examination, provided that the commissioner determines that such action will not impair a student's ability to successfully complete the program;

(3) section 5002(1)(c)(2) of the Education Law relating to the required counseling plan for schools admitting students who do not possess a high school diploma or its equivalent, provided that the commissioner determines that such action will not impair a student's ability to successfully complete the program;

(4) section 126.4(a) of this Part relating to student-to-teacher ratio;

(5) section 126.4(e) of this Part relating to attendance requirements;

(6) section 126.5 of this Part relating to equipment and housing;

(7) section 126.7 relating to enrollment agreements with the exception of section 126.7(c) relating to refund policies for correspondence schools;

(8) section 126.9(a)(13) of this Part relating to financial information in a school's catalog;

(9) placement data as required in section 126.9(a)(14) of this Part for a school's catalog;

(10) section 126.9(a)(10) of this Part relating to facilities and equipment information in a school's catalog;

(11) section 5005(a)(7) of the Education Law relating to a description of facilities and equipment in the student disclosure material; and

(12) section 5005(c) of the Education Law relating to a description of financial information in the student's disclosure material.

(i) Alternate licensing procedures for schools exempt from licensure pursuant to subdivision (2) of section 5001 of the Education Law which elect to be licensed.

(1) Exempt schools operated, licensed, regulated, approved by or contracting with a governmental agency or authority, which elect to be licensed.

(i) Exempt schools operated, licensed, regulated, approved by or contracting with a governmental agency or authority, which elect to be licensed, shall meet all of the requirements of article 101 of the Education Law and this Part, except that such schools may meet the requirement for a certificate of occupancy by meeting the requirement in paragraph (3) of this subdivision and except that such school shall be subject to an alternate requirement established by the governmental agency or authority, provided that the commissioner determines that such requirement is equivalent to a requirement established in one or more of the following provisions:

(a) subdivisions (4) and (5) of section 5002 of the Education Law and section 126.4(a)-(d) and (f)-(g) of this Part relating to curriculum approval and reapproval;

(b) subdivision (6) of section 5002 of the Education Law and section 126.6 of this Part relating to teacher and director licensing;

(c) section 5004 of the Education Law and section 126.12 of this Part relating to school agents, for only those schools which enroll students solely on the basis of a contract with an organization or business, which do not solicit enrollment through communication aimed at the prospective student, and where there is no tuition liability to the student;

(d) section 126.4(e)(2) of this Part relating to academic standards of progress; and

(e) section 126.11 of this Part relating to school and student records.

(ii) The commissioner shall consult with the governmental agency or authority which operates, licenses, regulates, approves or contracts with such a school before implementing the provisions of section 5003(6) of the Education Law relating to civil penalties and administrative action against such school.

(2) Other exempt schools which elect to be licensed. All exempt schools which elect to be licensed, with the exception of those specified in paragraph (1) of this subdivision, shall meet all of the requirements of article 101 of the Education Law and this Part, except that such schools may meet the requirement for a certificate of occupancy by meeting the requirement in paragraph (3) of this subdivision.

(3) For any exempt school which elects to be licensed pursuant to article 101 of the Education Law and this Part and is in existence prior to such licensure, a certificate of occupancy which was in effect at the time of application for licensure shall be acceptable to the commissioner, provided that the governmental authority issuing such certificate of occupancy has determined that the certificate of occupancy is valid as of that date.

(j) Alternate licensing requirements for nonpublicly funded ESL schools.

(1) General provisions.

(i) Nonpublicly funded ESL schools shall be exempt from the requirements of this Part and Article 101 of the Education Law, except as provided in this subdivision and sections 126.1, 126.8, 126.18 , 126.19 and subdivision (c) of section 126.11 of this Part , paragraphs (b) and (c) of subdivision (1) of section 5001 of the Education Law, and subdivision (3) of section 5004 of the Education Law.

(ii) Schools that meet the requirements of this subdivision shall receive initial certification for a two-year period and renewal certification for a four-year period and shall be listed in the New York State English as a Second Language School Registry.

(iii) Schools shall be subject to unscheduled visits by the commissioner or the commissioner's designee to ensure the school's compliance with the requirements of this subdivision.

(iv) Upon request by the department, schools shall provide any and all records necessary to review compliance with the requirements of this subdivision.

(v) The payment of all fees and assessments required by this subdivision shall be considered a condition of certification.

(vi) The definitions in section 126.1 of this Part shall be applicable to such schools.

(2) Application procedures.

(i) Initial certification.

(a) Every applicant and renewal applicant shall apply for certification on an application form prescribed by the commissioner and shall submit with such application a nonrefundable and nontransferable $5,000 certificate fee of which $3,000 shall accrue to the credit of the proprietary vocational school supervision account and $2,000 shall accrue to the tuition reimbursement account. For additional locations of currently certified operating schools, the application fee shall be $2,500 which shall accrue to the credit of the proprietary vocational school supervision account.

(b) Schools shall submit the following information with a completed application for initial certification:

(1) sample enrollment agreements, which meet the requirements in paragraph (6) of this subdivision, used for each English as a second language curriculum offered by the school;

(2) a complete description of the content of all English as a second language curricula offered by the school in a form prescribed by the commissioner;

(3) a description of refund policies which pertain to English as a second language curricula in the event a student fails to enter, withdraws or is discontinued from instruction;

(4) educational and administrative policies and procedures that are provided students in English as a second language curricula upon enrollment;

(5) disclosures required to be made to students, pursuant to paragraph (5) of this subdivision;

(6) evidence, satisfactory to the commissioner, that the school meets the requirements relating to personnel in paragraph (3) of this subdivision;

(7) evidence, satisfactory to the commissioner, that the school meets the requirements relating to facilities and equipment in paragraph (4) of this subdivision; and

(8) financial documentation as required by paragraph (1) of subdivision (e) of section 126.8 of this Part.

(ii) Renewal of certification.

(a) Schools shall apply for renewal of certification at least 120 days prior to the expiration of the current certificate on an application form prescribed by the commissioner and shall submit with such an application a nonrefundable and nontransferable fee in accordance with the provisions of section 5001(4)(b) of the Education Law.

(b) Schools shall submit financial documentation as required by paragraph (2) of subdivision (e) of section 126.8 of this Part with their renewal applications.

(iii) A school shall submit to the commissioner any changes in the information, policy or programs which it has submitted in support of an application for initial certification or an application for renewal of certification 14 days prior to the date on which such changes take effect.

(3) Personnel.

(i) Director.

(a) Each school shall employ a director who shall meet the requirements in section 126.6(d)(1)(i), (2) and (3) of this Part and this subparagraph.

(b) Directors' permits or licenses, issued on or after May 25, 2000, shall be renewable and valid only for the school for which they are issued. No individual may be employed as a director at more than one school without the approval of the commissioner. An ESL school director's license, issued on or after May 25, 2000, shall be valid for the same period for which the school is licensed or registered.

(c) Individuals shall apply for a director's license, or renewal thereof, on an application form prescribed by the commissioner. Such application form shall be submitted to the commissioner with a nonrefundable and nontransferable application fee of $100. A school director's license renewal application shall be submitted with the renewal application of the employing school.

(d) Any permanent director's license, issued prior to May 25, 2000, shall continue to be deemed approved without renewal until such time as the director leaves the school and location for which the license is valid.

(ii) Private school agent.

(a) Each school shall employ at least one private school agent who meets the requirements in this subparagraph.

(b) Each agent shall produce his or her agent certificate upon the request of the commissioner, the commissioner's designee, or any prospective student.

(c) A school shall submit an application for licensure for an agent on or before the first day of employment of such individual, in accordance with the requirements of section 126.12(a) of this Part.

(d) A school or its private school agent, as applicable, shall meet the requirements in section 126.12(b)-(e) of this Part.

(e) A private school agent meeting the requirements of this paragraph shall take responsibility for enrolling each student enrolled in an English as a second language curriculum.

(iii) Teachers.

(a) Teachers providing instruction in English as a second language programs at a nonpublicly funded ESL school shall have been awarded a baccalaureate or equivalent degree from an institution licensed or recognized by the department; and have successfully completed either an English as a second language training program recognized by the department or one year of teaching experience in an English as a second language program.

(b) Upon a finding by the commissioner that the applicant possesses sufficiently unique and exceptional training and/or experience that are substantially the equivalent of the requirements set forth in clause (a) of this subparagraph, a variance may be granted from such requirements.

(4) Facilities and equipment. The buildings, rooms or space in which staff and students are housed for any purpose while attending school, and all facilities and equipment therein, shall meet the applicable standards of local fire, health and building authorities.

(5) Disclosure to students. For all students enrolled in English as a second language curricula, schools shall provide the following information to students in a format prescribed by the commissioner prior to the execution of the enrollment agreement with them:

(i) a description of the status of the school as a nonpublicly funded English as a second language school certified by the New York State Education Department as meeting alternative licensing requirements and not subject to all of the licensing standards and requirements in article 101 of the Education Law and this Part which are applicable to licensed private career schools;

(ii) a description of the complaint procedures established pursuant to Education Law, section 5003(1)(c); and

(iii) a description of the process for obtaining a refund from the tuition reimbursement fund.

(6) Enrollment agreement.

(i) An enrollment agreement shall be completed for all students enrolled in English as a second language curricula. Such an enrollment agreement shall meet the requirements in section 126.7(a) of this Part.

(ii) The enrollment agreement shall be printed in no less than 10-point type, shall contain no advertising or extraneous material and shall set forth briefly and clearly the following:

(a) the name of the school;

(b) the title of the curriculum, course or courses for which the student is contracting;

(c) the length of the curriculum, course or courses in instructional hours;

(d) the name and address of the student;

(e) the full contract price for instruction, including all fees, tuition, and costs of textbooks, materials, and equipment;

(f) the method of payment;

(g) such reasonable rules, regulations and conditions as the school may desire to set forth in the agreement;

(h) a separately signed acknowledgment by the student that he or she has received disclosure material, as required by paragraph (5) of this subdivision;

(i) the refund the school will make in the event a student fails to enter, withdraws or is discontinued from instruction which is consistent with the refund policy submitted to the department, pursuant to the requirement in subclause (2)(i)(b)(3) of this subdivision; and

(j) the name and certificate number of the school agent responsible for enrolling the student.

(7) Advertising. A school shall meet the requirements of section 126.3 of this Part and shall be subject to section 5002(7) of the Education Law.

(8) Records. Records and files of a school pertaining to English as a second language curricula shall be maintained for three years at the location of the school or other principal place of business in New York State, unless specific disposition is authorized by the commissioner, and shall include:

(i) copies of all advertising, bulletins and other promotional materials;

(ii) the attendance register for each class, laboratory or session;

(iii) records of instructional staff showing qualifications and teaching schedules;

(iv) a completed copy of the student enrollment agreement contract signed by both an authorized agent of the school and the student prior to the time instruction begins;

(v) records of all tuition and fees owed and paid by the student; and

(vi) date of student completion or discontinuance.

(9) Teachout plans. A school may submit a teachout plan for English as a second language curricula to the commissioner for approval, subject to the requirements of section 5006 of the Education Law and section 126.16 of this Part.

(10) Disciplinary actions and penalties. Section 5003 of the Education Law shall be applicable to nonpublicly funded ESL schools, except that subparagraph (2) of paragraph (b) of subdivision (1) of such section shall not be applicable and in lieu of that requirement good cause shall include violation of any provision of this subdivision, including requirements of this Part and article 101 of the Education Law made applicable by this subdivision. Section 126.14 of this Part shall be applicable.

(11) Supervision account and tuition reimbursement account assessments.

(i) The commissioner shall annually assess each school an assessment equal to five-tenths of one percent of its gross tuition, as determined by the annual financial statements submitted in accordance with paragraph (3) of subdivision (e) of section 126.8 of this Part , of which three-tenths of one percent shall accrue to the benefit of the proprietary vocational school supervision account.

(ii) The commissioner shall also assess each school additional assessments as applicable under subdivision (10) of section 5007 of the Education Law.

(iii) For ESL schools in operation in the year prior to the issuance of their certification, such annual assessments prescribed in this paragraph shall begin in their initial year of certification, based on the schools' gross tuition from such previous year. For new ESL schools, the commissioner shall base the assessments prescribed in this paragraph on the annualized gross tuition of the school computed by the department from financial reports from the school as required by the department, and the assessments shall be prorated based upon the number of quarters that the school has operated in the assessment year.

(iv) The assessments prescribed in subparagraphs (i) and (ii) of this paragraph shall be based upon each school's gross tuition from the previous year, and shall be payable in equal installments which shall be due on June 1st, September 1st, December 1st and March 1st.

(12) Tuition reimbursement account.

(i) For all English as a second language curricula, schools shall comply with subdivisions (1) through (8) of section 5007 of the Education Law, except that paragraph (a) of subdivision (3) and paragraph (b) of subdivision (4) of such section shall not be applicable. Subparagraph (3) of paragraph (b) of subdivision (3) of such section shall not be applicable and in lieu of that requirement claimants shall be required to show that the school has failed to make the refund within the time period required by school policy.

(ii) A student enrolled in an English as a second language curriculum in a school which has not closed or ceased operation, and who has not dropped out, is entitled to a full refund, provided that:

(a) the student has submitted a complaint form to the commissioner; and

(b) the commissioner has determined that the school has committed one or more of the following violations:

(1) operating a school with a registry certificate which has been suspended, revoked or not renewed;

(2) using false, misleading, deceptive or fraudulent advertising;

(3) having no licensed private agent responsible for enrolling the student;

(4) using fraudulent or improper claims by a licensed agent or school representative to enroll the student;

(5) misrepresenting the school or failing to comply with the requirements of paragraph (2) of this subdivision;

(6) dismissing or terminating a student for other than just cause; or

(7) committing any additional violation for which the commissioner demonstrates that the student would not have enrolled in the curriculum but for the commission of that violation.

(k) Alternate licensing requirements for non-profit licensed careers schools that are exempt from taxation and whose programs are funded exclusively through donations. Pursuant to Education Law § 5001(4)(f)(3), non-profit licensed career schools that are exempt from taxation under section 501(c)(3) of the Internal Revenue Code and whose pro grams, including registration fees, the sale of books, supplies, services, kits, uniforms or equipment are funded entirely through donations, exclusive of public sources, from individuals or philanthropic organizations, or endowments, and interest accrued thereon, shall be subject to all of the requirements of article 101 of Education Law and this Part, except that:

(1) such schools shall be exempt from the following requirements of Education Law:

(i) Education § 5002(3), relating to tuition liability;

(ii) Education Law § 5001(4)(e)(i), relating to the inclusion in financial statements of refunds due and owing to past or presently enrolled students;

(iii) Education Law § 5002(2)(b)(5), relating to the inclusion in any school record of the amount of any refund paid to any student;

(iv) Education Law § 5005(a)(4), relating to disclosure to prospective and enrolled students of any refund policy;

(v) Education Law §§ 5005(e) and 5005(f), relating to a tuition reimbursement fund claim form.

(2) Such schools shall also be exempt from the following requirements of this Part:

(i) section 126.4(c)(6), relating to data required to be submitted about tuition and other charges and method of payment;

(ii) sections 126.7(b)(6) through (9), relating to the inclusion in enrollment agreements of any tuition charges or fees or method of payment;

(iii) section 126.7(b)(15), relating to any refund a school will make under certain prescribed circumstances;

(iv) section 126.7(d), except section 126.7(d)(3) thereof , relating to the inclusion in enrollment agreements of a reasonable adjustment of tuition and other fees, and any refund policies;

(v) section 126.7(e), relating to the option to use the refund policy of a nationally recognized accrediting agency and the use of the refund policy required by federal law;

(vi) section 126.7(g), relating to when refunds must be paid to students who withdraw, cancel, or are discontinued;

(vii) section 126.9(a)(8), relating to the inclusion in the school catalog of a schedule of fees or charges;

(viii) section 126.9(a)(9), relating to the inclusion in th e school catalog of school policies and regulations governing the re fund of any unused portion of tuition, fees and other charges in certain circumstances;

(ix) section 126.9(a)(13)(i), relating to state and federal financial aid only, except that any private grant, scholarship, or other financial assistance offered to students by the school, which shall not expose the student to any tuition liability, shall be included in such school's catalog;

(x) section 126.9(a)(13)(ii)(d), relating to the terms and expected schedules of repayment of any loan received by the student as a part of the student's financial aid;

(xi) section 126.9(a)(18), relating to the inclusion in the school catalog of information about tuition refunds from the Tuition Reimbursement Account (TRA);

(xii) section 126.9(a)(19), relating to the inclusion in th e school catalog of requirement to include a weekly tuition liability chart for each program that indicates the amount of refund due the student in the event of a withdraw; and

(xiii) section 126.11(a)(10), relating to the maintenance of records of tuition, fees, public loans and grants, and their disbursement, by a school for seven years.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 126.10

Amended New York State Register April 19, 2017/Volume XXXIX, Issue 16, eff.4/19/2017

Amended New York State Register August 1, 2018/Volume XL, Issue 31, eff.8/1/2018

Amended New York State Register September 29, 2021/Volume XLIII, Issue 39, eff. 9/29/2021