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?
Many of the terms are defined in section 6503-b of the Education Law and these are repeated below for convenience:
- "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.
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.
- 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?
The Office of the Professions will work with an entity seeking a waiver under section 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 section 6503-a.
- 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?
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.
- 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?
A professional services corporation (PC) 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 section 6503-b of the Education Law.
Generally speaking, a professional service limited liability company (PLLC or LLC) 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 also employ or contract with licensed professionals to provide clinical social work or mental health counseling services, even though none of its "owners" is licensed in those two professions.
It should be noted that the provisions in section 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, marriage and family therapy, and applied behavior analysis. A hypothetical LLC, “Clinical Social Work for All”, whose members are all licensed clinical social workers, under a waiver issued pursuant to section 6503-b, may employ or contract with physical therapists, occupational 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 (e.g., high school age students or adults).
An approved program formed as 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 VIII of the Education Law, and, upon receiving a waiver pursuant to section 6503-b of this chapter, may employ or contract with individuals licensed or otherwise authorized to practice, or contract with a professional service corporation, partnership or other entity legally authorized to practice any profession under Title VIII of the Education Law in which the entity would not be authorized to provide professional services under the applicable provisions of section 1203 or subdivision (a) of section 1301 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.
- 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.
If an entity is exempt from the waiver under this section, it may provide the services specified in section 6503-b(2)(a) and section 6503-b(2)(b), provided that the entity is legally authorized to provide 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
It depends on what services the child care institution is legally authorized to provide.
- 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 and/or NYSED approval as a new agency?
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.
- 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
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.
- 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 early intervention agency should also be
re-assessed should there be a discovery related to moral character?
Education Law section 6510(8) states that investigation files related to the moral fitness of an applicant are confidential, but allows the Office of the Professions to share information with other duly authorized public agencies responsible for professional regulation or criminal prosecution. Therefore, the Office of the Professions may consult with NYSDOH or other agency, as appropriate, in the review of a question of an applicant’s 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?
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).
- 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
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.
- 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 Office of the Professions notification of
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.
- 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
The Office of the Professions plans to consult with NYSDOH and our colleagues in the Education Department, as appropriate, throughout its review of applications.
- 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 primary address and within 60 days if there are other changes in the information supplied to the Office of the Professions. Is the Office of the Professions responsible for approving any change before it occurs? Or, should the notification be submitted after the fact?
Where appropriate, the entity should consult with the oversight agency (NYSDOH Early Intervention Program or NYSED Special Education Services) prior to any change in name or primary address of the entity or a change in the sites at which services are delivered, as site review and approval may be required for an early intervention agency program or special education school. The Waiver Entity COI Form should be submitted to the Office of the Professions as stated above, after a planned change of address, phone number, etc., has been made, in order to ensure that the Office of the Professions can contact the entity. Any change in the directors, officers or trustees, including the Executive Director, CEO, CFO, COO or other person authorized to act on behalf of the agency, should be submitted on the Waiver Entity COI Form and each new individual must also submit a Moral Character Attestation (SE-1). If there is a change in the additional sites at which services are provided, the entity must submit Form SE-2 for the addition or deletion of sites. If there is a change in the professions in which services are provided, the entity should submit a Application for Waiver (Form SE).
- 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 Early Intervention agencies?
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, the Office of the Professions may consult with our colleagues in the Education Department and/or NYSDOH in regard to programs under their authority.
- Where can I access more information?
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.