Waivers from Corporate Practice Restrictions for Special Education Schools and Early Intervention Agencies

Chapter 581 of the Laws of 2011 added, among other things, a new section 6503-b to the Education Law authorizing the Department to issue waivers to special education schools (“schools”) and early intervention agencies (“agencies”) to enable them to employ licensed professionals or contract with licensees or professional business entities to provide certain professional services to children in need of their services. Absent such a waiver, employment or contracting for professional services in most licensed professions would conflict with restrictions on corporate practice under Title VIII of the Education Law.

The new law allows schools approved by the State Education Department and agencies approved by the Department of Health that are currently providing professional services to continue to do so until July 1, 2013. In order to continue to provide services after that date, schools or agencies must submit a waiver application to the Department within 120 days of the posting of the applications on the Office of the Professions website. Once a school or agency applies, it will be able to continue to provide services until the application is approved or denied. These provisions avoid a disruption in professional services provided to children receiving early intervention or preschool services. However, if the Department denies an application, the entity must cease providing professional services in New York.

What entities are eligible for a waiver from the Office of the Professions?

An approved program may be formed as an education corporation, or with the consent of the commissioner as:

1. a not-for-profit corporation;
2. a business corporation that has the operation of an approved program or another special education school as a primary purpose;
3. a limited liability company;
4. a professional service limited liability company or a foreign professional service limited liability company in accordance with the applicable provisions of article twelve or thirteen of the limited liability company law;
5. a registered limited liability partnership or registered foreign limited liability partnership in accordance with article eight-B of the partnership law.

In addition, a group of appropriately licensed or certified professionals may be formed as a professional services corporation established pursuant to article fifteen of the business corporation law or as a professional service limited liability company, foreign professional service limited liability company or registered limited liability partnership or registered foreign limited liability partnership in accordance with article eight-B of the partnership law.

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.

Why does a school or agency require a waiver from the Office of the Professions?

The purpose of Chapter 581 of the Laws of 2011 is to reconcile the provisions of Title VIII of the Education Law that prohibit corporate practice of certain licensed professions with the provisions of section 4410 of the Education Law and Title 2-A of Article 25 of the Public Health Law that contemplate that special education schools and early intervention agencies be able to provide multi-disciplinary evaluations, related services and early intervention services recommended for a student.

A special education school or early intervention agency provider may employ or contract with licensed professionals authorized under Title VIII of the Education Law to provide professional services. Title VIII defines the practice of 49 professions, but only certain health professions are qualified to provide multi-disciplinary evaluations, related services and early intervention services recommended for a student. These professions are:

• Licensed Master Social Work (an LMSW may only provide clinical social work services including psychotherapy, under supervision of an LCSW, psychologist or psychiatrist)
• Licensed Clinical Social Work
• Licensed Mental Health Counseling
• Licensed Creative Arts Therapy
• Psychology
• Optometry
• Physical Therapy (a Physical Therapist Assistant may only practice under the supervision of a Physical Therapist)
• Occupational Therapy (an Occupational Therapy Assistant may only practice under the supervision of an Occupational Therapist)
• Audiology/Speech-Language Pathology
• Nursing (Registered Nurse or Nurse Practitioner)
• Medicine (Physician, Physician Assistant, or Specialist Assistant)

Where required by law, a licensee, limited permit holder, or student in an approved field experience as part of a license-qualifying program, must be supervised to provide services authorized under the law. An entity may contract with a professional corporation (P.C.) or professional limited liability company (PLLC) to provide services authorized by the waiver.

How does a school or agency apply for a waiver?

Section 6503-b of the Education Law defines eligible entities and the professional services that may be offered by such entities, and provides for oversight by the Board of Regents. This section also requires, as part of the application process, that the entity provide attestations by each officer, director, and trustee of the entity that he or she be of good moral character. The fee for an initial waiver is $345, although an entity that simultaneously applies for waivers as both a special education school and an early intervention agency provider only has to pay the $345 fee once. An entity that receives a waiver under the law must apply for a renewal every three years and pay the triennial registration fee of $260, or a pro-rated amount as determined by the Department.

An approved entity must request a waiver certificate for each site at which professional services are provided and notify the Department in a timely manner if there are changes in the services provided or the location of the administrative office or sites operated by the entity. There is no additional fee for waiver certificates issued for additional sites operated by the entity. A request for additional site(s) or a change of address should only be submitted to the Office of the Professions when the special education school or early intervention agency provider has received approval from NYSED or DOH, as appropriate. When the entity provides services in a student’s home, an additional certificate is not required but the licensed professional must produce a copy of the entity’s waiver upon demand.

The Education law sets the requirements to be met by a qualified entity in order to receive a waiver. These include, but are not limited to, verification from the appropriate regulatory agency that the entity is a qualified special education school or early intervention provider. An entity that is already approved by, or has applied for approval by, the Education Department or the Department of Health must include a copy of the permanent or provisional approval from the Education Department or Department of Health. An entity may not apply for a waiver without such authorization.

Accountability for services provided under 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. This will ensure that preschool students and infants and toddlers in early intervention programs receive appropriate services from competent and qualified individuals who are accountable under the Education Law.

Section 29.18 of the Rules of the Board of Regents implements the Board of Regents disciplinary authority over entities receiving waivers, including those issued under Education Law section 6503-b. An entity that receives a waiver from the Office of the Professions is subject to the same professional misconduct provisions as a licensed professional or professional business entity, including the same due process rights.

Are there special education schools and early intervention providers that do not require a waiver?

The law defines a “special education school” that is eligible for a waiver and states that a waiver is not required for a special education school that is operated by:

1. a school district;
2. board of cooperative educational services;
3. municipality, state agency or other public entity.

The law further states that it shall not be construed to require a childcare institution that conducts multi-disciplinary evaluations or provides related services through an approved private nonresidential school operated by such childcare institution to obtain a waiver, if such school obtains a waiver pursuant to this section.

A special education school or early intervention agency that holds an operating certificate from a federal or state government agency that authorizes the entity to provide professional services may not require a waiver to employ or contract with licensed professionals to provide multidisciplinary evaluations or early intervention services or related services, as defined in 6503-b of the Education Law. The operating certificate must grant the entity the authority to provide all of the professional services offered by the entity; a contract from a government entity is not sufficient to grant the authority to provide professional services.

What should I do if I am not sure if my entity needs a waiver?

Your corporate counsel should review your certificate of incorporation, consent from the Commissioner of Education, or other legal basis for the entity to operate in New York, to determine if a waiver is required. You can access information about charters for educational corporations and consents from the Commissioner of Education on the Office of Counsel’s website. Information about Charters and Regents Certificates of Incorporation for Education Corporations may be found at http://www.counsel.nysed.gov/charters/ and information about Consents is at http://www.counsel.nysed.gov/home.html#consents. If you have further questions, you may contact the Office of the Professions by e-mail at 4410EIWaiver@mail.nysed.gov although the Board office cannot provide legal assistance or advice.

How do the waivers affect individual applicants for licensure?

Experience for licensure must be completed in a legally authorized setting. If a student who is eligible for a limited permit is seeking employment with a prospective employer, the student should ask whether or not the entity requires a waiver from the corporate practice restrictions and if the waiver has been issued or if the entity is otherwise authorized to provide professional services, as defined in Title VIII of the Education Law.

How does the waiver affect the ability of an entity to provide professional services?

The waiver will allow an entity to employ licensed professionals or contract with licensed professionals or professional entities, to provide services that are restricted under Title VIII. The licensed professionals and professional entities are responsible for services provided. The corporation holding the waiver is subject to the definitions of professional misconduct under the same provisions of Education Law and Regents Rules and has the same rights as a licensed professional.

How can the public verify if an entity has a waiver of corporate practice restrictions?

The Department will issue a waiver certificate to a qualified entity; the waiver is valid through the dates shown on the certificate. An entity must display a waiver certificate in each setting where professional services are provided to the public, except when services are provided in the student’s home in which case the licensed professional must carry a copy of the waiver certificate. The public can use the Office of the Professions website to determine whether an entity has been issued a waiver and when that waiver expires. An entity that has been issued a waiver will receive a renewal notice from the Office of the Professions every 3 years and must register and pay the triennial fee to continue providing professional services.

What is the deadline to submit an application for a waiver?

The law requires an entity to submit the application for a waiver within 120 days of the date the applications were posted on the Office of the Professions’ website. The applications were posted on July 27, 2012 and must be submitted on or before November 26, 2012. The law authorizes an entity to provide professional services while the application is under review, but if the waiver is denied, the entity must cease the provision of professional services.

How will I know if my application was received by the deadline?

If you sent your application by certified mail, FedEx, or other carriers and requested proof of delivery, your receipt from the carrier will be proof of a timely application. The State Board office is processing the applications and will send an e-mail acknowledgement. Please avoid calling the Board office so that we can continue to process the applications. You can access a list of entities that have applied for a waiver and those that have received a waiver on our website.

What if an application is submitted after July 1, 2013?

The law allows an entity to apply for a waiver to provide multi-disciplinary evaluations and/or to provide related services after the deadline established in law, if there is demonstration of need acceptable to the Office of the Professions. Before submitting the waiver application, in order to determine the need for the proposed services, the entity must first apply to the Education Department for approval to operate a special education school or the Department of Health to operate an early intervention agency provider. If NYSED and/or DOH determines that there is not a need for the entity’s services, then a waiver may not be issued by the Office of the Professions. In order to verify the need for the proposed entity’s services, the waiver application shall include a copy of the provisional/pending approval letter from NYSED or DOH. The entity may not provide professional services until the waiver is issued.

Does each director and officer of the entity have to provide a home address, telephone number and e-mail information?

When the Office of the Professions is processing applications, including the moral character attestation, we may need to request clarification or additional information. Please provide the best way to contact you, whether this is your home or work address, telephone number and e-mail address, or if we should contact you through the entity’s contact person.

Where can I access more information?

There is additional information about the application process available on the FAQs page. Required information on the application forms is available below. You can also search under the "Find Answers" tab on this website to access more information about the waivers authorized under the Education Law.

Application Forms

Note: All forms are in Adobe Portable Document Format (PDF). To view or print these documents, you will need to have the free Adobe Reader installed on your computer. Download times and print quality will depend on your connection speed and printer.

Instructions for completing the Application for Waiver (Form SE) ( 30 KB)

Item 1. The application must include the legal name of the entity seeking a waiver from corporate practice. This name is typically found on the certificate of incorporation or other legal document that authorizes the entity to provide professional services.

Item 2. Provide the primary address for the entity, including phone, e-mail and Federal and State employer identification numbers, if available.

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 you are applying for a waiver for a Special Education School authorized by the Education Department (NYSED) or an Early Intervention Agency Provider, authorized by the Department of Health (NYSDOH). Note: You must attach a copy of the authorization letter from the appropriate agency. Early Intervention Agency Providers must provide a copy of a recent provider profile issued by NYSDOH.

Fees: You must include a check or money order payable to NYSED for $345 for the application and initial three-year registration period. If you are applying for a waiver for a special education school and an early intervention agency program at the same time, only one fee is required.

Item 5. Please indicate if the entity has filed with the New York Department of State and, if yes, the name and registration number.

Item 6. Please indicate if the entity operates under a trade name or assumed name and, if so, please provide the name. Only assumed names registered with the County or Department of State are acceptable.

Item 7. You must indicate the ownership of the entity and attach a copy of the certificate of incorporation, charter or other document that authorizes the entity to operate in New York as an early intervention provider agency and/or special education school.

Item 8. Please indicate any other state or jurisdiction (e.g., D.C., Puerto Rico, Ontario, etc.) 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. Indicate where shown if the entity will employ or contract with licensed professionals and/or contract with professional service corporation (P.C., Professional Limited Liability Company, Registered Limited Liability Partnership) to provide the professional services indicated on the application. If services will be provided by a professional services corporation or PLLC, please indicate the name of the professional entity in the space provided.

Item 11. Has any contract, license, operating certificate, or approval issued by a New York State, federal or local government unit ever been revoked, suspended or annulled? If yes, please attach an explanation.

Item 12. Is any program or service operated by the entity currently under investigation or suspension by any New York State, federal or local government unit? If yes, please attach an explanation.

Item 13. Please list each director, officer, trustee, shareholder or member of the corporate entity (add additional sheets if needed) and provide the requested contact information so that we can follow up in the event of any questions. A Moral Character Attestation (Form SE-1) must be submitted with this form for each listed. The preferred contact information may be the home or business address, phone, and email of the director, trustee, officer, shareholder, or member, or it may be the address of the entity. Please note that the address provided here and on the Moral Character Attestation (Form SE-1) will be used to contact the director, trustee, officer, shareholder, or member with any questions about information included on his/her application. The CEO and honorary board
members do not need to submit this form, if he/she is not a voting member of the board.

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.

Instructions for completing the Moral Character Attestation of Directors, Trustees or Officers (Form SE-1) ( 30 KB)

Section 6503-b of the Education Law and paragraph (d) of section 59.15 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 list of directors, officers, trustees, shareholders and members that is provided on Form SE will be the checklist for the Department to verify that each officer and director of the entity has submitted an attestation on Form SE-1.

If the entity is a business corporation or membership corporation, please identify on Form SE-1 the shares or percentage of the entity that is owned or controlled by the shareholder or member of the corporation. If the director, officer, trustee, shareholder, or member has ever held an interest in or position in an entity that has had a waiver certificate from the Department or an operating certificate, license, or program approval from a government agency, including NYSED and NYSDOH revoked, please indicate this on Form SE-1.

All information that is collected on Form SE-1, including the preferred contact information for the director, officer, trustee, shareholder or member is maintained in a secure, electronic form by the Department. If there is a "yes" response to any moral character question, the applicant must include a letter of explanation and attach any relevant documents (e.g., certificate of relief from disabilities or certificate of good conduct). The "yes" response will be reviewed by the Office of Professional Discipline and the applicant will be contacted if more information is required to complete the review. In general, an affirmative response is not an automatic bar to holding a position of responsibility in an entity seeking a waiver, but the determination is made on the basis of all relevant factors.

Note: If there are any changes in the directors, officers, trustees, shareholders or members 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 SE-1.

Instructions for completing the Request for Additional Setting (Form SE-2) ( 30 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, consistent with NYSED and/or NYSDOH approval of the program, you must file a Request for Additional Setting (Form SE-2) for each site. In the case of services that are provided in the home or classroom, other than those operated by the entity, the site does not require registration. However, the licensed professional should carry a copy of the entity’s waiver when providing services in a setting other than one registered with the Department. An additional setting form is not required for 4410-related services provided from the county list for approved 4410 special education schools.

Change of address or information

If the entity plans to relocate the main office and/or any changes in the settings at which services are provided, this must be submitted to the oversight agency
(NYSED or NYSDOH), for review and approval, as appropriate. You must notify the Office of the Professions 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 SE-1). You must notify the Department using a Request for Additional Setting (Form SE-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 and bills for $260 to the address on record.