waivers from corporate practice restrictions - c.ymcdn.com€¦ · waivers from corporate practice...

1

Waivers from Corporate Practice Restrictions

David Hamilton, Ph.D., LMSW, ACSWExecutive Secretary

State Board for Social WorkOffice of the Professions

New York State Education DepartmentMarch 29, 2011

Overview

• How did we get to this point?

• Who does or does not need a waiver?

• How does an entity apply for a waiver?

• What does it mean to have a waiver?

• How is a waiver renewed?

• Questions and answers

2

Education Law amended 2002 • Previously, Education Law provided title

protection for the “Certified Social Worker” and “Psychologist” but did not restrict services

• No license for “mental health practitioners” and no restriction on services, including psychotherapy, by individuals or agencies

• Enactment of scope and restricted practice changed the world, although no one saw it coming or the extent to which licensees were employed in other settings

Practice is restricted by law• Only an individual licensed or authorized can

practice the profession and use the restricted title, as defined in law, unless authorized (e.g., permit holder, supervised intern)– Effective 9/1/2003 for psychology– Effective 9/1/2004 for social work (LMSW, LCSW)– Effective 1/1/2006 for mental health practitioners

(MHC, MFT, CAT, PsyAn)• Education Law sections 6512 and 6513 define

practice by an unauthorized person or entity as Illegal Practice (class E felony)

3

How did the problem come to light?

• Office of the Professions must review experience for licensure and setting for legally completed supervised experience– OP could not issue limited permit for mental

health practitioners to start experience– OP could not accept supervised experience

for LMSWs who “completed” experience• Agencies could not legally employ staff to

provide necessary services

Coalescing around issue

• SED convened stakeholders in 2008 to explain issue and explore solutions– Legislation drafted by SED; introduced in

2009 and 2010– Unintended consequences for not-for-profits,

religious and education corporations– Tied to extension of exemption and “good

faith” provisions for those in pipeline– Chapters 130 and 132 of Laws of 2010

4

Entity eligible for waiver

• In existence prior to June 18, 2010 and a:– Not-for-profit corporation formed for

charitable, educational, or religious purpose or other purposes acceptable to SED; OR

– Education corporation as defined in 216-a of the Education Law

• Must apply within 120 days of SED posting application (Feb. 16, 2011) and have waiver by July 1, 2012

Certain entities are exempt

• Operating certificate from state or local government to authorize services

• Faculty practice corporation• College providing services to students,

faculty, staff and their families• License-qualifying programs• Professional corporation, PLLC, or PLLP• Other entity that may be identified

5

2013 exemption from licensure

• Until July 1, 2013, an individual in a program regulated, funded, operated or approved by OMH, OPWDD, OASAS, OCFS, local social service or mental hygiene district may provide psychology services without license; same agencies plus DOH, DOCS and SOFA for social work and mental health practitioners

• Does not authorize use of restricted titles

Other provisions in law

• Waiver is not to supplant or replace the authority of other state agency to certify, license, contract or authorize an entity

• Collaboration between SED and other state agencies to ensure public protection

• Not-for-profit entities providing services under 2013 exemption do not require a waiver and shall be considered approved settings for supervised experience

6

Exemptions and waivers

• Provides services within scope of 153, 154 and 163 under contract with OPWDD– Exempt from licensure until July 1, 2013– After that date, only licensed persons can

provide services restricted under law• Section 6503-a waiver may only be issued

after July 1, 2012 upon demonstration of need for entity’s services

• Hence, Agency may wish to apply now

Waiver applications

7

Applying for waiver

• Submit application (Form CE) with– Certificate of incorporation or charter– Attestations including professional services,

supervision, resources & records retention – Moral character attestation (CE-1) from each

director, officer, trustee of entity– Apply (CE-2) for certificate(s) for additional

site(s) in New York where entity provides services to the public

Professional services under waiver

• Entity will provide services under articles 154 and 163 for which licensure would be required or

• Services constituting psychotherapy provided by article 131, 139 or 153

• Does not authorize the provision of other services within the scopes of nursing and medicine (e.g., injections, medications)

8

Attestation for waiver

• Persons allowed to practice only under supervision will receive such supervision

• Entity will comply with section 18 of Public Health Law related to access to records

• Adequate fiscal and financial resources• Any prior or current action or investigation

by oversight agency against the entity• Prompt notice to SED of any changes

Moral character attestation

• Entity must include with application a list of directors, officers, trustees

• Each director, officer or trustee must complete moral character form (CE-1) that is submitted with the entity’s application

• Responses that raise question of moral character will be investigated and reviewed, pursuant to 28.2 of Regulations

9

Multi-purpose entities may need waiver for certain programs

• Entity with a single board of directors, trustees, officers (Agency A) that provides social work services to the public

• Clinic with operating certificate from OPWDD does not require a waiver under the law

• Outreach program under contract with local government or grant does require a waiver

– Apply for waiver (CE) with moral character attestations (CE-1)

• Apply (CE-2) for certificate for each site where services are provided

“Affiliated” entity may need more than one waiver

• Overarching entity is established for general purpose under the law (Agency B)– Establishes separate programs, each with a

board of directors, would need waiver for each program (B-1, B-2, B-3)

– Same rules apply to each program: submit waiver application (CE), moral character (CE-1) and, if needed, additional site(s) (CE-2)

10

Notification of changes

• Entity is responsible to notify State Board within 60 days of any change in:– Name and term of directors, officers, trustees– Address at which services are provided– Name or identity of contact person,

responsible for application, or– Transfer or assignment of interest

• Waivers are not transferable

Important dates

• Waiver applications were posted 2/16/11– Entity must have existed on 6/18/2010– Entity must apply within 120 days (6/16/11)– Application allows entity to continue providing

services to the public– Entity must cease provision of services if

application is denied by the State Board– Entity must have approved waiver by 7/1/12

or cease providing services to the public

11

Public protection

• Law was required to address corporate practice restrictions, not because entities are providing “bad” services

• Waivers are not required of all entities that provide services and should not be seen as a mark of distinction or superiority

• But, entities are accountable under the Education Law and Regents Rules

Waiver is same as license

• Entity must display waiver where services are provided, same as licensee

• Entity can be charged with misconduct under Part 29, same as a licensee or professional entity, and sanctioned/fined

• Entity has same rights under Education Law and Regents Rules as a licensee or professional entity

12

Law, Rules and Regulations

• OP on the web: www.op.nysed.gov for:– Section 6503-a of the Education Law, Part 59.14 of

the Commissioner’s Regulations define application requirements and process

– Part 29.18 of the Regents Rules define unprofessional conduct

– Articles 131, 139, 153, 154 and 163 define practice of the professions and definition of psychotherapy

– Link to applications and FAQs on waivers– “Find Answers” tab for updated answers

Contact information

• State Board for Social Work (SWBD)– [email protected]– 89 Washington Ave., 2nd

Floor, East Wing, Albany, NY 12234-1000

– (518) 474-3817 ext. 1-450

– www.op.nysed.gov

Application for Waiver

This application must be submitted by an entity that is seeking a waiver of the corporate practice prohibitions under section 6503-a of theEducation Law. The application will not be deemed complete until all the information required in this application and a Moral CharacterAttestation of Director, Trustee or Officer (Form CE-1) for each director, trustee and officer of the entity have been submitted to the StateBoard. Please note that you must submit a Request for Additional Setting (Form CE-2) for each site at which professional services areprovided.

1. Name of the entity seeking a waiver of corporate practice prohibitions:

___________________________________________________________________________________________________________

2. Primary address of the entity seeking a waiver:

Street and Number: __________________________________________________________________________________________

City: ______________________________________________________________________________________________________

County: ________________________________________________________ State: _________________ Zip: _______________

Telephone: ______________________________________________ Fax: ______________________________________________

E-mail: ______________________________________________ Web site: _____________________________________________

Federal Employer ID Number: _____________________________ State Employer ID Number: _____________________________

Note: A waiver certificate must be issued for each setting at which the entity provides professional services. If services are providedat a setting other than the address above, you must complete and submit the Request for Additional Setting Form (CE-2).

Please check one: Initial application for waiver under 6503-a Revised/updated application for waiver

3. Contact person to clarify information provided on this application:

Name: _____________________________________________________________________________________________________

Telephone: _______________________ Fax: _______________________ E-mail: _______________________________________

4. Is the entity filed with the NYS Department of State?

Yes No If yes, provide name on file: ___________________________________________________

5. On what date was the entity formed under the Not-for-Profit, Religious, or Education Corporations Law?

_______ / _______ / _______ mo. day yr.

(Note: Entity established after 6/18/2010 may be asked to submit additional information regarding the need for services.)

SWMHP CorporationForm CE

SWMHP Corporation Form CE, Page 1 of 4, 1/11

6. Trade name or assumed name of firm, if any (only assumed names registered with the County Clerk or NYS Department of Stateare acceptable)

__________________________________________________________________________________________________________

7. Please indicate the type of ownership for the entity:

Education Corporation (pursuant to 216 of Education Law)

Not-for-Profit Corporation (pursuant to Article 4 of the Not-For-Profit Corporation Law)

Religious Corporation (not otherwise authorized under Not-for-Profit Corporation or Education Laws)

You must include with this application the educational charter, certificate of incorporation, or other documentation that authorizes theentity to provide services in the professions identified in Item 10.

8. Please indicate any other State in which the entity provides services:

___________________________________________________________________________________________________________

9. Has the entity ever been known by any other name(s)?

Yes No

If yes, please indicate the former names and the reason for changing: __________________________________________________

___________________________________________________________________________________________________________

10. Professional Services to be Offered by Qualified Individuals

Indicate below the profession(s) in which the entity will provide services that are restricted under Articles 153, 154 and 163 of theEducation Law through the use of licensed professionals, permit holders or interns under supervision, or other exempt individuals.

Note: this waiver only authorizes the provision of services identified here. You can access the scope of practice for each professionin the Education Law at www.op.nysed.gov.

Licensed Master Social Work Licensed Clinical Social Work Licensed Mental Health Counseling Licensed Marriage & Family Therapy Licensed Creative Arts Therapy Licensed Psychoanalysis Psychology

11a.Has any contract, license or operating certificate issued to this entity by a New York State, federal or local government unit(e.g., the NYS Office of Mental Health (OMH), NYS Office for People with Developmental Disabilities (OPWDD), NYS Office ofAlcoholism and Substance Abuse Services (OASAS), NYS Office of Children and Family Services (OCFS), NYS Departmentof Health (DOH), NYS Department of Correctional Services (DOCS), NYS Office for the Aging (SOFA), Veterans'Administration, local mental hygiene district or local social services district) ever been revoked, suspended or annulled? (If yes, please attach explanation)

Yes No

11b.Is any program or service operated by the entity currently under review, investigation or suspension by a New York State,federal or local government unit (e.g., the NYS Office of Mental Health (OMH), NYS Office for People with DevelopmentalDisabilities (OPWDD), NYS Office of Alcoholism and Substance Abuse Services (OASAS), NYS Office of Children and FamilyServices (OCFS), NYS Department of Health (DOH), NYS Department of Correctional Services (DOCS), NYS Office for theAging (SOFA), Veterans' Administration, local mental hygiene district or local social services district)? (If yes, please attach explanation)

Yes No


12. Give full name and requested information for each corporate officer, trustee and director. (Use additional sheets if necessary.):

Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________

Home telephone: ______________________________ E-mail: ________________________________________________________

Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________


Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________


Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________


Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________


Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________


Full name: ____________________________________________ Title: _________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________



Attestation

The undersigned affirms under penalty of perjury that the answers and statements he/she has made in the above application are true andhave been made and given with the intent of having the New York State Education Department and the Office of the Professions rely onthe truth thereof.

In addition, I affirm the following:

• I am authorized (COO, CFO, CEO or other person) to act on behalf of the entity named in this application;

• The entity will notify the State Education Department and State Board of Social Work within 60 days of any change in theinformation provided in this application, including but not limited to, the names and terms of officers, trustees and directors,site(s) at which professional services are provided and the person responsible for filing the waiver application on behalf of theentity or the contact information for such persons;

• Additional information that is requested by the Education Department to complete the evaluation of this application will beprovided within a reasonable period of time, as determined by the Department and failure to provide the requested informationwill result in the denial of the waiver application;

• The entity will request a waiver certificate for each setting at which the entity provides professional services in New York;

• The willful failure to display the waiver certificate at each site shall be subject to the penalties set forth in section 6511 of theEducation Law;

• An entity that receives a waiver certificate is subject to oversight by the Board of Regents and to the disciplinary procedures andpenalties set forth in subarticle 3 of Article 130 of the Education Law and may be charged with unprofessional conduct as definedin the Education Law and Part 29 of the Regents Rules;

• An entity that receives a waiver certificate that is found guilty of unprofessional conduct, as provided in Part 29.18 of the RegentsRules, is subject to the penalties and fines authorized in section 6511 of the Education Law.

• The entity will ensure that adequate professional staff is employed by the entity or under contract to the entity, in accordance withapplicable laws and regulations, available to provide professional services;

• The entity will verify the license, limited permit or other authorization of individuals and professional corporations that provideservices restricted under Title VIII of the Education Law as employees of or on behalf of the entity;

• Only an individual licensed and registered to practice under Title VIII of the Education Law, or a limited permit holder, studentintern, or resident under supervision of a licensed professional, or an individual otherwise exempt, will provide services that arerestricted under Title VIII of the Education Law;

• The entity will not provide services in any profession other than those identified in this application;

• A student, intern or permit holder or any individual who is only authorized to practice under supervision will be provided with theappropriate supervision, as defined in Title VIII of the Education Law and Commissioner's Regulations;

• The entity will maintain a record for each patient which accurately reflects the evaluation and treatment of the patient and theentity will comply with section 18 of the Public Health Law in relation to patient access to records;

• The entity will maintain in a secure manner the patient records for at least six years or, in the case of a minor patient, for at leastsix year and until one year after the minor patient reaches the age of 21 years; and

• The entity has and will maintain adequate fiscal and financial resources to provide services, as authorized under the law.

_______________________________________________________________________ ___________________________________Signature of authorized representative Date

_______________________________________________________________________Print name of authorized representative

Title: ___________________________________________________________________

Telephone: ________________________ E-mail: ________________________________

Mail this form with:

1. certificate of incorporation or charter that authorizes the provision of services 2. a Moral Character Attestation of Director, Trustee or Officer (Form CE-1) for each director and officer identified in Question 123. a Request for Additional Setting (Form CE-2) (if appropriate)4. a copy of the certificate of good standing from the Department of State, County Clerk or New York State Education Department5. a copy of revocation, suspension, notice of investigation, or other action by an authorizing agency (questions 11a and 11b), if

appropriate.

To: The State Board for Social Work, NYSED, 89 Washington Ave., 2nd Floor, Albany, NY 12234-1000.


Moral Character Attestation of Director, Trustee or OfficerThis form must be completed by each individual who serves as a Director, Trustee or Officer of an entity that is applying for a waiver fromthe corporate practice prohibitions under section 6503-a of the Education Law.


___________________________________________________________________________________________________________

2. Name of the director, trustee or officer completing this form:

Name: _____________________________________________________________________________________________________

Title: ______________________________________________________________________________________________________

Home address: ______________________________________________________________________________________________

______________________________________________________________________________________________


Board term dates: _______ / _______ / _______ to _______ / _______ / _______mo. day yr. mo. day yr.

Are you licensed in New York State to practice any profession established under Title VIII of the Education Law?

Yes No If yes, what profession: __________________________________ License number: ______________________

A. Have you ever been found guilty after trial, or pleaded guilty, no contest, or nolo contendere to a crime (felony or misdemeanor)in any court? Yes No

B. Are criminal charges pending against you in any court? Yes No

C. If you are licensed under Title VIII, has any licensing or disciplinary authority refused to issue you a license or ever revoked,annulled, cancelled, accepted surrender of, suspended, placed on probation, refused to renew a professional license orcertificate held by you now or previously, or ever fined, censured, reprimanded or otherwise disciplined you?

Yes No

D. If licensed, are charges pending against you in any jurisdiction for any sort of professional misconduct? Yes No

E. Have you ever willfully failed to provide records to any State licensing authority or to Federal, State or Local law enforcementofficials that are required by Federal, State or Local laws? Yes No

If yes, please explain: ___________________________________________________________________________________

F. Has any hospital or licensed facility restricted or terminated your professional training, employment or privileges or have you evervoluntarily or involuntarily resigned or withdrawn from such association to avoid imposition of such measures?

Yes No

Note: If you answer "Yes" to any questions (a) through (f), submit a letter giving a complete explanation. Include copies of any courtrecords, and if you possess one, a copy of the "Certificate of Relief from Disabilities" or your "Certificate of Good Conduct".

Attestation

I affirm under penalties of perjury that, to the best of my knowledge, all statements made in this application are true.

_______________________________________________________________________ ___________________________________Signature Date

SWMHP CorporationForm CE-1

SWMHP Corporation Form CE-1, 1/11

You must include this form with the entity's application for a waiver of the corporate practice prohibitions under section 6503-a ofthe Education Law. Failure to provide necessary information will delay the processing of the entity's application for a waiver.

Request for Additional Setting

This form must be submitted for each additional setting at which the entity will provide professional services under the waiver authorizedby section 6503-a of the Education Law. The waiver certificate must be displayed at the setting where services are provided to the public.


___________________________________________________________________________________________________________

2. Additional site where professional services will be provided in New York:

Program name: ______________________________________________________________________________________________

Address:___________________________________________________________________________________________________

___________________________________________________________________________________________________

Telephone: ___________________________________ E-mail: ________________________________________________________

Initial site registration

Addition or change in site registration

Deletion of site registration

3. Contact person to clarify information provided on this application:

Name: ____________________________________________________________________________________________________

Telephone: _____________________________________________ Fax: _______________________________________________

E-mail: ____________________________________________________________________________________________________

Attestation

The undersigned affirms under penalty of perjury that the answers and statements he/she has made in the above application are trueand have been made and given with the intent of having the New York State Education Department and the Office of the Professionsrely on the truth thereof. The site listed on this application is under the authority of the waiver issued by the Office of the Professionsand subject to the same provisions as authorized under the waiver.

_______________________________________________________________________ ___________________________________Signature of authorized representative Date

_______________________________________________________________________Print name of authorized representative

Title: ___________________________________________________________________

Telephone: ________________________ E-mail: ________________________________

Mail this form to: The State Board for Social Work, NYSED, 89 Washington Ave., 2nd Floor, Albany, NY 12234-1000

SWMHP CorporationForm CE-2

SWMHP Corporation Form CE-2, 1/11

§6503-a. Waiver for entities providing certain professional services.

1. a. Notwithstanding any laws to the contrary, except as provided in subdivision two of this

section, a not-for-profit corporation formed for charitable, educational, or religious purposes or other similar purposes deemed acceptable by the department; or an education corporation as defined in subdivision one of section two hundred sixteen-a of this chapter may provide the following services, provided that, except as otherwise provided in paragraph b of this subdivision, the entity was in existence prior to the effective date of this section and has obtained a waiver issued by the department pursuant to this section by no later than July first, two thousand twelve:

i. services provided under article one hundred fifty-four or one hundred sixty-three of this title for which licensure would be required, or

ii. services constituting the provision of psychotherapy as defined in subdivision two of section eighty-four hundred one of this title and authorized and provided under article one hundred thirty-one, one hundred thirty-nine, or one hundred fifty-three of this title.

Such services may be provided either directly through the entity's employees or indirectly by contract with individuals or professional entities duly licensed, registered, or authorized to provide such services.

b. The department may issue a waiver on or after July first, two thousand twelve to an entity which was created before, on, or after the effective date of this section if there is a demonstration of need of the entity's services satisfactory to the department.

c. Within one hundred twenty days after the commissioner prescribes the application form and posts notice of its availability on the department's website, any entity described in paragraph a of this subdivision providing services on the effective date of this section, must apply for a waiver. Upon submission of such application, the entity may continue to operate and provide services until the department shall either deny or approve the entity's application. After the department renders a timely initial determination that the applicant has submitted the information necessary to verify that the requirements of paragraphs d, e, and f of this subdivision are satisfied, applications for waivers shall be approved or denied within ninety days; provided however, that if the waiver application is denied the entity shall cease providing professional services, pursuant to paragraph a of this subdivision, in the state of New York.

d. Such waiver shall provide that services rendered pursuant to this section, directly or indirectly, shall be provided only by a person appropriately licensed to provide such services pursuant to article one hundred thirty-one, one hundred thirty-nine, one hundred fifty-three, one hundred fifty-four, or one hundred sixty-three of this title, or by a person otherwise authorized to provide such services under such articles, or by a professional entity authorized by law to provide such services.

e. An application for a waiver to provide professional services pursuant to this section shall be on a form prescribed by the commissioner. Such application shall include:

i. the name of the entity, ii. the names of the directors and officers of such entity, iii. a listing of any other jurisdictions where the entity may provide services, and iv. an attestation made by an officer authorized by the entity to make such attestation

that identifies the scope of services to be provided; includes a list of professions under this title in which professional services will be provided by such entity; includes a statement that, unless otherwise authorized by law, the entity shall only provide professional services authorized under this section; includes a statement that only a licensed professional, a person otherwise authorized to provide such services, or a professional entity authorized by law to provide such services shall provide such professional services as authorized under this section; and attests to the adequacy of the entity's fiscal and financial resources to provide such services.

Such application shall also include any other information related to the application as may be required by the department.

f. Each officer and director of such entity shall provide an attestation regarding his or her good moral character as required pursuant to paragraph h of this subdivision. The commissioner shall be further authorized to promulgate rules or regulations relating to the standards of the waiver for entities pursuant to this section. Such regulations shall include standards relating to the entity's ability to provide services, the entity's maintenance of

1

patient and business records, the entity's fiscal policies, and such other standards as may be prescribed by the commissioner.

g. The entity operating pursuant to a waiver shall display, at each site where professional services are provided to the public, a certificate of such waiver issued by the department pursuant to this section, which shall contain the name of the entity and the address of the site. Such entities shall obtain from the department additional certificates for each site at which professional services are provided to the public. Each entity shall be required to re-apply for a waiver every three years. If any information supplied to the department regarding the entity shall change, the entity shall be required to provide such updated information to the department within sixty days.

h. Entities operating under a waiver pursuant to this section shall be under the supervision of the regents and shall be subject to disciplinary proceedings and penalties. The waivers for such entities shall be subject to suspension, revocation or annulment for cause in the same manner and to the same extent as individuals and professional services corporations with respect to their licenses, certificates, and registrations, as applicable, as provided in this title relating to the applicable profession. All officers and directors of such entities shall be of good moral character. Entities operating pursuant to a waiver and their officers and directors shall be entitled to the same due process procedures as are provided to such individuals and professional services corporations. No waiver issued under this section shall be transferable or assignable, as such terms are defined in the regulations of the commissioner.

i. An entity operating pursuant to a waiver shall not practice any profession licensed pursuant to this title or hold itself out to the public as authorized to provide professional services pursuant to this title except as specifically authorized by this section or as otherwise authorized by law.

2. No waiver pursuant to this section shall be required of: a. any entity operated under an operating certificate appropriately issued in accordance with

article sixteen, thirty-one, or thirty-two of the mental hygiene law, article twenty-eight 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; or

b. a university faculty practice corporation duly incorporated pursuant to the not-for-profit corporation law; or

c. an institution of higher education authorized to provide a program leading to licensure in a profession defined under article one hundred thirty-one, one hundred thirty-nine, one hundred fifty-three, one hundred fifty-four or one hundred sixty-three of this title, to the extent that the scope of such services is limited to the services authorized to be provided within such registered program; or

d. an institution of higher education providing counseling only to the students, staff, or family members of students and staff of such institution; or

e. any other entity as may be defined in the regulations of the commissioner, provided that such entity is otherwise authorized to provide such services pursuant to law and only to the extent such services are authorized under any certificates of incorporation or such other organizing documents as may be applicable.

3. Nothing in this section shall be construed to limit the authority of another state agency to certify, license, contract or otherwise authorize an entity applying for a waiver pursuant to this section, if such state agency is otherwise authorized under another provision of law to certify, license, contract or authorize such an entity, nor shall a waiver pursuant to this section be construed to provide an exemption of such entity from any certification, licensure, need to contract or any other such requirement established by such state agency or under any other provision of law. If a state agency determines that such certification, licensure, contract or other authorization is required, a waiver pursuant to this section shall not have the effect of authorizing the provision of professional services under the jurisdiction of such agency in the absence of certification, licensure, a contract or other authorization from such state agency, and the department shall consult with such agency regarding the need for licensure, contracting, certification or authorization. In determining an application for a waiver pursuant to this section, the department shall consider as a factor in such determination any denial of an operating certificate or other authority to provide the services authorized pursuant to this section by a New York state or federal agency, political subdivision, municipal corporation, or local government agency or unit, and shall not approve a waiver application authorizing an entity to provide a program or services where the entity operated such a program or provided such services for which an operating certificate or license is pending, was disapproved or was revoked, or a written authorization or contract was terminated for cause, by one of such agencies, except upon

2

approval of such action by the appropriate state agency. Such state agencies shall notify the department, upon request and within a fifteen day period, whether a waiver applicant has been subject to such disapproval, revocation or termination for cause or has a pending application for a license or operating certificate.

4. Nothing in this section shall be construed to limit the authority of the following entities to provide professional services they are authorized by law to provide:

a. any appropriately organized professional entity, including, but not limited to, those established under the business corporation law, the limited liability company law or the partnership law; or

b. any entity operated by a New York state or federal agency, political subdivision, municipal corporation, or local government agency or unit pursuant to authority granted by law, including but not limited to any entity operated by the office of mental health, the office of mental retardation and developmental disabilities, or the office of alcoholism and substance abuse services under articles seven, thirteen, and nineteen of the mental hygiene law, respectively.

5. For the purposes of this section, "professional entity" shall mean and include sole proprietorships and any professional services organization established pursuant to article fifteen of the business corporation law, article twelve of the limited liability company law and section two and article eight-B of the partnership law.

[Note- Section 15 of Chapter 132 of the Laws of 2010 provides: "Not-for-profit entities which provide programs and services for which an exemption relating to the professions is provided pursuant to sections thirteen and fourteen of this act shall not be required to receive a waiver pursuant to section 6503-a of the education law, as established pursuant to section one of this act, and further such entities shall be considered to be approved settings for the receipt of supervised experience for the professions governed by articles 153, 154 and 163 of the education law."]

3

§59.14 Waiver for entities providing certain professional services. Effective October 26, 2010

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 Articles 154 or 163 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 obtained a waiver from the Department no later than July 1, 2012. The Department may, however, 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. Within 120 days after the posting of the application form on the Department’s website, 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. (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 (1) of subdivision (e) 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;

4

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 sixteen, thirty-one, or thirty-two of the mental hygiene law, article twenty-eight 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; or

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.

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 Articles 153, 154 or 163 of the Education Law. The description shall indicate the profession(s) in which services will be provided and shall include:

5

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 the Rules of the Board of Regents.

g. Review of waiver applications. The application shall not be deemed acceptable if the entity has not submitted information identified in paragraphs (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.

6

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.

§ 29.18. Unprofessional conduct in waived entities. (Effective October 26, 2010)

a. An entity that is issued a waiver pursuant to section 6503-a of the Education Law and section 59.14 of this Title shall be under the supervision of the Board of Regents and subject to the disciplinary procedures and penalties set forth in subarticle 3 of Article 130 of the Education Law. Any such waiver shall be subject to suspension, revocation or annulment for cause, and any entity holding such a waiver shall be subject to disciplinary proceedings and penalties in the same manner, to the same extent, and for the same reasons as individuals and professional entities practicing the same profession, as provided in Title VIII of the Education Law and this Part. For purposes of this subdivision, a certificate of waiver shall be considered the same as a license to practice a profession.

b. Failure to disclose information. It shall be unprofessional conduct for an entity issued a waiver pursuant to section 59.14 of this Title to have failed to disclose all information required by the Department in order to make an accurate determination of the entity’s waiver application. This shall include the failure to notify the Department that a director or officer of the entity has committed an act which raises a reasonable question as to moral character.

c. Penalties for professional misconduct. The Board of Regents may impose upon an entity found guilty of unprofessional conduct under this section those penalties and fines authorized in section 6511 of the Education Law.

S:\Implement SWMHPWaiver\Regulations\Part 59.14 Rules 29.18.doc

7

waivers from corporate practice restrictions - c.ymcdn.com€¦ · waivers from corporate practice...

Documents