Application for Waiver of Corporate Practice Prohibitions

Due to prohibitions in New York State law against the "corporate practice" of the professions, certain not-for-profit, religious and education corporations that are providing professional services must apply for a waiver to continue providing those professional services. This packet contains the instructions and forms for those entities required to apply for a waiver.

Corporate practice restrictions affect agencies

Chapters 130 and 132 of the Laws of 2010 authorize the New York State Education Department (Department) to issue waivers to allow qualified entities to provide certain professional services. The services are defined in Articles 153, 154 and 163 of the Education Law and include psychotherapy. The Board of Regents approved regulations to implement these provisions, effective February 2, 2011.

New section 6503-a of the Education Law authorizes the Department to issue a waiver to certain not-for-profit, religious, or education corporations that were in existence on the effective date of the law, June 18, 2010. An entity must submit an Application for Waiver (Form CE) on or before February 1, 2012, and may continue to provide services until the application is approved or denied. If an application is denied by the Department, the entity must cease providing professional services in New York.

Applicability of the waivers

By law, the waiver is not intended to supplant the authority of other State agencies, such as the Department of Health or Office of Mental Health, that have oversight of health and mental health services. In reviewing applications for a waiver, the Department will collaborate with other State agencies to minimize the risk of an unqualified entity receiving a waiver to provide professional services. There are also provisions in the law defining eligible entities, professional services that may be offered by entities, oversight by the Board of Regents, and attestations by each officer and director of the entity that he or she is of good moral character. For more information, see Education Law, Section 6503-a.

Programs that do not require waivers

The law identifies a number of entities that do not require a waiver from the corporate practice prohibitions. Those not requiring a waiver include:

• any entity with an operating certificate issued under the Public Health Law, the Mental Hygiene Law, or in accordance with comparable procedures by a State, federal or local government agency;
  
• an institution of higher education that provides a program leading to licensure in medicine, nursing, psychology, social work or the mental health professions to the extent the services being provided are within the scope of the registered program;
  
• an institution of higher education that provides counseling to students, staff and family members of students and staff
  
• a university faculty practice corporation; and
  
• other entities identified by the Regents, provided that such entity is otherwise authorized by law to provide such services.

Requirements for a waiver

Section 59.14 of the Commissioner's Regulations implements the provisions of the law by setting forth the requirements to be met by a qualified entity in order to receive a waiver. Although the granting of a waiver resolves the issue of the authority of the entity to provide professional services, only licensed or authorized persons may provide services, and the entity is responsible for verifying the licensure of providers and the appropriate supervision of interns or permit holders who are only authorized to practice under supervision.

Ensuring Public Protection

The addition of section 29.18 of the Rules of the Board of Regents implements the Board of Regents disciplinary authority over entities receiving waivers under Education Law section 6503-a. Section 29.18 clarifies that the entity is subject to the same professional misconduct provisions of the Regents Rules as a licensed professional or professional business entity, and that the entity has the same due process rights as a licensed professional or professional business entity.

Processing of waiver applications

The Department will not review an application for a waiver from an entity unless it includes information specified in sections (c), (e) and (f) of section 59.14 of the Commissioner's Regulations. This includes a complete Application for Waiver (Form CE), signed by the individual authorized to act on behalf of the entity (e.g., Chief Executive Officer, President, or Chair of the Board); including a list of the professional services that will be provided by the entity; and a Moral Character Attestation of the Director, Trustee and Officer (Form CE-1) by each officer, trustee and director of the entity.

An application may be denied based on the entity's failure to provide the Department with information necessary to complete the application review. When, in the determination of the Department, an application is complete, it will be reviewed by the Department and a decision to approve or deny the waiver application shall be made within 90 days of such determination. If the Department requests additional or clarifying information, the entity applying for the waiver shall submit the requested information in a timely manner, as determined by the Department. An entity whose application is denied shall cease the provision of professional services as defined in the Education Law.

Authorization by Government Entity

The waiver is intended to allow a not-for-profit, religious or education corporation, that is not otherwise authorized, to employ licensed professionals and provide services that are restricted under Articles 153, 154 and 163 of the Education Law. A corporation may be authorized under an operating certificate, license or contract with certain government entities and, in such case, would not need a waiver from the Department. However, an entity may need to apply for a waiver to provide services through a program that is not authorized under such operating certificate, license or contract.

Application Forms

Instructions for completing the Application for Waiver (Form CE) ( 17 KB)

Item 1. The application must include the name of the entity and the primary address for the entity.

Item 2. Provide the address for the entity, including phone, e-mail and employer identification numbers.

Item 3. The applicant shall designate a contact person and provide phone and e-mail addresses, so that the Department can follow-up with the entity.

Item 4. Please indicate if the entity has filed with the New York Department of State and, if yes, the name and registration number.

Item 5. Please provide the date the entity was formed under New York law. An entity that was formed after June 18, 2010 may not be eligible for a waiver.

Item 6. If the entity operates under an assumed name or trade name, this must be provided.

Item 7. You must indicate the type of entity and attach a copy of the certificate of incorporation, charter or other document that authorizes the entity to operate in New York.

Item 8. Please indicate any other state in which the entity provides services.

Item 9. Please indicate if the entity has ever been known by another name and, if yes, why the name was changed.

Item 10. Please indicate the professions in which the entity will provide services.

Item 11a. Has any contract, license or operating certificate issued by one or more of the identified agencies ever been revoked, suspended or annulled? Please attach an explanation.

Item 11b. Is any program or service operated by the entity currently under review, investigation or suspension by any of the identified agencies? Please attach an explanation.

Item 12. Please list each director, trustee and officer (add additional sheets if needed) and provide the preferred contact information (home or business). Each director, trustee and officer must complete and submit the Moral Character Attestation of Director, Trustee or Officer (Form CE-1) as part of the application.

Attestation. An individual authorized to act on behalf of the agency and sign contracts or applications must complete the attestation. Generally, this will not be the contact person, identified in Item 3.

Demonstration of Need. An entity that applies for a waiver after July 1, 2012 must demonstrate the need for the entity's services, acceptable to the Department. The form below provides a template for submitting information for review by the Department.

• Demonstration of Need for Services form ( 29.5 KB)

Instructions for completing the Moral Character Attestation of Directors, Trustees or Officers (Form CE-1) ( 12 KB)

Section 6503-a of the Education Law and paragraph (f) of section 59.14 of the Commissioner's Regulations require each officer, trustee and director of the entity to submit an attestation of his/her moral character as part of this application. The officer, trustee or director may use a home or business address, phone, or e-mail, so that we can follow up in case there are questions about the attestation. Please provide a list of each officer and director of the entity that will submit an attestation on Form CE-1.

Note: If there are any changes in the directors, trustees and officers of the entity, an updated listing must be provided to the Office of the Professions and the new director, trustee or officer shall complete and submit the required attestation on Form CE-1.

Instructions for completing the Request for Additional Setting (Form CE-2) ( 13 KB)

The waiver authorizes the entity to provide professional services at the address named on the waiver application. If the entity provides services at other site(s) in New York State, you must file a Request for Additional Setting (Form CE-2) for each site.

Change of address or information

You must notify the Education Department within 30 days of any change in the name or address of the entity. If there is a change in directors, trustees or officers, each new individual must submit a Moral Character Attestation of Director, Trustee or Officer (Form CE-1). You must notify the Department using a Request for Additional Setting (Form CE-2) of any change in the name or address of a site at which professional services are providing, including the addition or closure of a program under the waiver.

Renewal

The waiver is valid for three years and must be renewed for the entity and any additional sites. The Department will send renewal notices.

References

You can access the Education Law, the Commissioner's Regulations and Regents Rules on this site.

You can contact the State Board for Social Work by calling 518-474-3817 ext. 450 or by e-mailing swmhpentity@mail.nysed.gov or by mail at 89 Washington Ave., Albany, NY 12234.