FAQs about Waivers from Corporate Practice Restrictions for Special Education Schools and Early Intervention Provider Agencies
- Where can I find the definition of terms such as “multi-disciplinary evaluation” that are used in the waiver application?
- "Special education school" means an approved program as defined in paragraph b of subdivision one of section forty-four hundred ten of this chapter that meets the requirements of paragraph b of subdivision six of such section forty-four hundred ten; an approved private non-residential or residential school for the education of students with disabilities that is located within the state; a child care institution as defined in section four thousand one of this chapter that operates a private school for the education of students with disabilities or an institution for the deaf or blind operating pursuant to article eighty-five of this chapter that either: (1) conducts a multi-disciplinary evaluation for purposes of articles eighty-one or eighty-nine of this chapter that involves the practice of one or more professions for which a license is required pursuant to this title and no exception from corporate practice restrictions applies, or (2) provides related services to students enrolled in the school or approved program that involves the practice of one or more professions for which a license is required pursuant to this title and no exception from practice restrictions applies. Such term shall not include a school district, board of cooperative educational services, municipality, state agency or other public entity. Nothing in this section shall be construed to require a child care institution that conducts multi-disciplinary evaluations or provides related services through an approved private non-residential school operated by such child care institution to obtain a waiver, provided that such school obtains a waiver pursuant to this section.
- "Early intervention agency" means an agency which is approved or is seeking approval in accordance with title two-A of article twenty-five of the public health law to deliver early intervention program multi-disciplinary evaluations, service coordination services and early intervention program services, and is lawfully operated as a sole proprietorship or by a partnership, not-for-profit corporation, education corporation, business corporation, a limited liability company or professional services organization established pursuant to article fifteen of the business corporation law, article twelve or thirteen of the limited liability company law or article eight-B of the partnership law.
- "Early intervention program services" means early intervention services as defined in subdivision seven of section twenty-five hundred forty-one of the public health law that are provided under the early intervention program and authorized in an eligible child's individualized family services plan.
- "Multi-disciplinary evaluation" for purposes of a special education school means a multi-disciplinary evaluation of a preschool child suspected of having a disability or a preschool child with a disability that is conducted pursuant to section forty-four hundred ten of this chapter or an evaluation of a school-age child suspected of having a disability or with a disability which is conducted by a child care institution that operates a special education school or the special education school operated by such institution pursuant to subdivision three of section four thousand two of this chapter or by an institution for the deaf or blind operating pursuant to article eighty-five of this chapter or an evaluation of a school-age child suspected of having a disability or with a disability that is authorized to be conducted by a special education school pursuant to any other provision of this chapter and the regulations of the commissioner for purposes of identification of the child as a child with a disability or the development of an individualized education program for the child.
- "Multi-disciplinary evaluation" for purposes of the early intervention program means a professional, objective assessment conducted by appropriately qualified personnel in accordance with section twenty-five hundred forty-four of the public health law and its implementing regulations to determine a child's eligibility for early intervention program services.
- "Related services" means related services as defined in paragraph g of subdivision two of section four thousand two, paragraph k of subdivision two of section forty-four hundred one, or paragraph j of subdivision one of section forty-four hundred ten of this chapter provided to a child with a disability pursuant to such child's individualized education program.
- What happens if there is a change in the ownership of an entity that holds a waiver or such an entity merges with another entity? Section 59.15(i) of the Commissioner’s Regulations speaks to the “Transfer or Assignment of Waiver” and is it is not clear if such a change of ownership or merger is allowed under the law.
- If an entity applied for a waiver under section 6503-a of the Education Law, must the entity submit the same information when applying for a waiver under section 6503-b? For instance, does each director need to re-submit the attestation of good moral character?
- Is an approved private school for the education of students with disabilities exempt from the waiver requirement, as the schools are currently under the supervision of the Education Department?
- If a professional services entity is authorized to provide certain services, but wants to provide additional early intervention services beyond those that the entity is otherwise authorized to provide, will the waiver allow the entity to provide those services?
- Please clarify if the exemption from a waiver, as defined in section 59.15(b)(2), applies only to the provision of special education services.
- Please clarify if the exemption from a waiver, as defined in section 59.15(b)(2) for a child care institution extends to early intervention services.
- Section 59.15(c)(3)(ii)(b) states the application must include evidence that the entity is an approved agency, as defined in the Education Law. Does this process require that the entity already be an approved early intervention agency? Does the process allow an applicant for a waiver to be in the process of receiving a NYSDOH approval as a new agency?
- Section 59.15(c)(3)(vii)(h) states the entity will comply with section 18 of the Public Health Law relating to patient access to records. Access to early intervention records is governed by the Family Educational Rights and Privacy Act (FERPA) and perhaps this regulation is intended to address the records maintained by physicians involved in multi-disciplinary evaluations. Please clarify.
- Under section 59.15(d)(2) the application must include an attestation of moral character from each director, officer or trustee of the entity seeking a waiver, and questions will be referred to the Office of Professional Discipline and the determination made in accordance with Subpart 28-1 of the Rules of the Board of Regents. Does this process allow for an interagency exchange of information since the continued approval as an EI agency should also be re-assessed should there be a discovery related to moral character?
- Must an entity with a waiver from the Office of the Professions employ licensed professionals to provide professional services or can the entity contract with a licensed professional or professional services corporation that is otherwise authorized to practice a profession?
- Section 59.15(f) states an application may be denied if all necessary information has not been received. Will the Office of the Professions notify the Department of Health and/or Department of Education of the determination to deny an application?
- Section 59.15(f) states that, if an application is denied, the entity must cease the provision of professional services. Does this allow for a period of time for the transitioning of services to new agencies or must the provision of professional services end immediately upon the NYSED notification of denial?
- Section 59.15(g)(5) allows an entity to submit an amended application to include additional professional services. In the case of an early intervention agency program or special education school applying for a waiver, would the Office of the Professions seek the input of NYSDOH or NYSED in regard to those entities?
- Sections 59.15(h)(1) and (2) state that an entity holding a waiver must notify the Office of the Profession within 30 days if there is a change in the location of its executive offices and within 60 days if there are other changes in the information supplied to OP. Is the Office of the Professions responsible for approving any change before it occurs? Or, should the notification be be submitted after the fact?
- Section 29.18 of the Regents Rules indicates that an entity holding a waiver is subject to the same disciplinary procedures and protections as a licensed individual or professional corporation. Will this process allow for the disclosure of information to the NYSDOH regarding the investigation and resulting decision for those entities which are EI agencies?
- Where can I access more information?
Many of the terms are defined in section 6503-b of the Education Law and these are repeated below for convenience:
The entity retains the waiver if a change of ownership should occur, unless the change constitutes a change in control of the entity, in which case it may constitute a prohibited transfer.
The Department will work with an entity seeking a waiver under 6503-b to consider and review as part of that application any information that was submitted as part of an application for a waiver under 6503-a.
The school should obtain a waiver, unless it has a clear exemption from corporate practice restrictions, such as a school that is also a health facility licensed under Article 28 of the Public Health Law. Since all such approved schools are not the same, each should make the decision to apply based on the specific circumstances.
A professional services corporation may only provide services in the profession in which the member(s) of the entity are licensed. For example, a hypothetical PC named "Occupational Therapists For Everyone, PC" may only provide occupational therapy services. It cannot offer physical therapy services, speech services or any other professional services. Also, because it is allowed only to provide professional services, it can only manage the services that it provides. These restrictions on professional service corporations are not changed by sub-part 6503-b of the Education Law.
Generally speaking, a professional service limited liability company may provide professional services in more than one profession provided that the company includes an "owner" (i.e., member) licensed in each of the professions in which the company will offer services. For example, the hypothetical LLC, Health Professionals, has seven members: an acupuncturist, an audiologist, a nurse, an occupational therapist, a physical therapist, a psychologist, and a speech-language pathologist. Only professionals licensed in one of the areas that the PLLC is authorized to practice may become a member or owner of that entity. However, under a waiver from the Department, the hypothetical LLC may provide services in all of these professions and, in order to conduct multi-disciplinary evaluations and to provide early intervention services or related services, it may employ or contract with licensed professionals to offer provide respiratory therapy or massage therapy services, even though none of its "owners" is licensed in those two professions.
It should be noted that the provisions in sub-part 6503-b that allow a limited liability company to contract or employ with individuals licensed in other professions will affect those professions that would not otherwise be allowed to offer services in more than one profession. The Business Corporation Law, Limited Liability Company Law, and Partnership Law do not allow licensees in certain professions to form a professional entity with members licensed in a different profession. These restrictions apply to the professions of medicine, dentistry, veterinary medicine, licensed clinical social work, mental health counseling, psychoanalysis, creative arts therapy, or marriage and family therapy. A hypothetical LLC, “Clinical Social Work for All”, whose members are all licensed clinical social workers, under a waiver issued pursuant to 6503-b, may employ or contract with physical therapists, respiratory therapists, psychologists, nurses and physicians to conduct multi-disciplinary evaluations and to provide early intervention services or related services, as defined in the law. This hypothetical LLC could not employ or contract with physicians, physical therapists, occupational therapists, nurses or other licensed professions to provide professional services to any other client population.
An approved program formed as such a professional service limited liability company or registered limited liability partnership may be authorized to provide special education itinerant services or other educational services not involving the practice of a profession under title eight of this chapter, and, upon grant of a waiver pursuant to section 6503-b of this chapter, may employ or contract with individuals licensed or otherwise authorized to practice, or with a professional service corporation, partnership or other entity legally authorized to practice any profession under title eight of this chapter in which the entity would not be authorized to provide professional services under the applicable provisions of section twelve hundred three or subdivision (a) of section thirteen hundred one of the limited liability company law or sections 121-1500 or 121-1502 of the partnership law, provided that such contract is within the scope of the department's approval and is only for the purpose of conducting a multi-disciplinary evaluation of a preschool child suspected of having a disability or a preschool child with a disability or providing related services specified in the individualized education program of a preschool child with a disability.
If an entity is exempt from the waiver under this section, it may provide the services specified in 6503-b(2)(a) and (b), provided that the entity is legally authorized to provide services.
It depends on what services the child care institution is legally authorized to provide.
The Office of the Professions will review an application from a new provider only when the provider has received conditional or provisional approval from the Education Department or the Department of Health, as appropriate. The entity shall attach a copy of the conditional/provisional approval with the application for a waiver. This will ensure that the oversight agency (that is, NYSED or DOH) that has responsibility for these services has determined that there is a need for the services proposed by the new entity. Therefore, the issuance of a waiver will be dependent on approval by the agency.
A licensed professional or entity is required to comply with all state or federal laws or regulations relating to privacy and access to records. In the event that FERPA is applicable, those rules for access to records would apply.
Education Law section 6510(8) states that investigation files related to the moral fitness of an applicant are confidential, but allows the NYSED to share information with other duly authorized public agencies responsible for professional regulation or criminal prosecution. Therefore, the Department may consult with NYSDOH or other agency, as appropriate, in the review of a question of an applicant’s moral character.
Subdivision 59.15(d) requires the entity, as part of the application, to describe whether the services will be provided by licensed or authorized individuals employed by the entity or provided through a contract with licensed professionals or individuals otherwise authorized to practice or a professional entity, as set forth in Education Law section 6503-b(6).
The Office of the Professions will provide notification to the NYSDOH and/or the Education Department if any application is denied. It should be noted that all approved entities will be posted on the Office of the Professions website: http://www.op.nysed.gov/.
Education Law 6503-b(3)(b) states that if the waiver application is denied the school or agency shall cease providing such services in the State of New York. The regulation is consistent with the statute.
The Office of the Professions plans to consult with NYSDOH and our colleagues in the Education Department, as appropriate, throughout its review of applications.
OP would expect that notification be made after a planned change of address, phone number, etc., has been made, in order to ensure that OP can contact the entity in the future. Where appropriate, the entity should consult with the oversight agency (NYSDOH or NYSED) prior to any change in address or location, as site review and approval may be required for an early intervention agency program or special education school.
Education Law section 6510(8) states that information about pending investigations and disciplinary action is protected, but may be shared with “other duly authorized public agencies responsible for professional regulation or criminal prosecution.” All final actions taken by the Board of Regents will be posted on the Department’s website, the same as for actions taken against a licensed individual or professional entity. Where appropriate, OP may consult with our colleagues in the Education Department and/or NYSDOH in regard to programs under their authority.
There is additional information about the application process and required information on the application forms, available on this site. You can also search under the “Find Answers” tab on this website to access more information about the waivers authorized under the Education Law.