EDU-45-12-00013-RP Licensure of Non-Degree Granting Private Proprietary Schools

1/23/13 N.Y. St. Reg. EDU-45-12-00013-RP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 04

January 23, 2013

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-45-12-00013-RP

Licensure of Non-Degree Granting Private Proprietary Schools

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action:

Amendment of Part 126 and section 145-2.3 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided), 305(1), 5001 through 5010; and L. 2012, ch. 381

Subject:

Licensure of non-degree granting private proprietary schools.

Purpose:

To implement the provisions of chapter 381 of the Laws of 2012.

Substance of revised rule:

The Commissioner of Education proposes to amend Part 126 and Section 145-2.3 of the Commissioner's Regulations to implement Education Law sections 5001 through 5010, as amended by Chapter 381 of the Laws of 2012, effective March 14, 2013.

The following is a summary of the major provisions of the proposed rule.

The title of this Part has been amended to read “Licensed Private Career Schools or Licensed Private Schools”.

Section 126.1 is amended to clarify the definitions for curriculum, course, gross tuition, school, reviewed financial statement, audited financial statement and Certified English as a Second Language School to be consistent with the new law. This section also adds new definitions for practical experience and occupationally required credential.

Section 126.3 is amended to eliminate the references to registration.

Section 126.4(a) is amended to make clear that where the department retains an expert or outside consultant to review the curriculum of a school, the school shall bear the expense, in addition to any curriculum or course application fee.

Section 126.6(a) is amended to indicate that each applicant instead of the school shall submit teaching and management personnel applications. Section 126.6(c) of the Commissioner’s Regulations is amended to indicate that all teacher licenses issued after December 15, 2012 would no longer be restricted to a single school location as private career schools licenses presently are.

Section 126.6(d) of the Commissioner’s Regulations is amended to allow a school director to apply for a private school agent certificate without incurring the agent application fees. This section also clarifies the preparation requirements for directors; eliminates the references to registered business schools consistent with the new law; and eliminates the references to directors whose education and practical experience were approved prior to July 1, 1973.

Section 126.6(e) eliminates the reference to registered schools.

Section 126.6(f) sets forth the requirements for teacher licenses and permits in licensed private career schools, as appropriate, and eliminates the requirements for registered business schools/computer training facilities.

Section 126.6(n) indicates that in cases where the curricula/courses offered require the assistance of a vendor demonstrator, the need for a demonstrator must be included and approved in the specific course or curriculum approval.

Section 126.8(a) is amended to indicate that schools that are not financially viable are subject to having their licenses suspended or revoked, or the Commissioner may require the cessation of student enrollment. This section is also amended to eliminate the prior requirements and to require schools to submit to the Commissioner an annual financial statement that requires schools that receive $500,000 or more or whose combined State and Federal student financial aid is $100,000 or more to submit an audited financial statement. For schools which receive less than $500,000 and less than $100,000 in combined Federal and State student financial aid in a school fiscal year shall submit an unaudited reviewed financial statement or an audited financial statement to the commissioner for that fiscal year, provided that a reviewed financial statement cannot be submitted for two consecutive fiscal years. An audited financial statement must also be filed for the year following the fiscal year for which a reviewed financial statement was filed.

Section 126.9 is amended to require schools to include in their catalog a weekly tuition chart for each program that indicates the amount of a refund due a student upon withdrawal and the disbursement schedule for each type of financial assistance available. It also eliminates the option of allowing a school to submit an attestation that the catalog or bulletin meets all of the requirements.

Section 126.10 is amended to delete the references to registration and the requirement that the commissioner shall act on an initial application for a license or registration within 120 days of receipt of a complete application. This section also requires that upon transfer or assignment of any interest totaling 25 percent or more, the school shall be deemed a new school required to submit a new school application and obtain a new license pursuant to the requirements of this Part. The previous school license shall remain in effect until the new license is issued or denied or the previous license expires or is revoked, whichever comes first. This section also requires any school which received $500,000 or more in gross tuition in a school fiscal year to submit to the commissioner an annual audited statement of revenue prepared in accordance with generally accepted accounting principles for that fiscal year. In addition, this section clarifies the requirements for an English as a Second Language school.

Section 126.12 is amended to reflect that the certificate will be effective for three years instead of two and to require a $200 fee instead of $100, except that the school director may apply for an agent’s certificate without incurring the application fee.

Section 126.17 is amended to provide that new schools, which did not operate in the year prior to licensure, will have no gross tuition upon which to be assessed until either the end of their first fiscal year or March 31 of the year after the school was licensed, whichever comes first. For schools whose fiscal year end comes before March 31 of the year after the school was licensed, the school shall submit a complete financial statement in compliance with the provisions set forth in Education Law section 5001(4)(e) is required. For schools whose fiscal year ends later than March 31 after their initial licensure date, the school shall submit an unaudited reviewed income statement for the time period between initial licensure and March 31 detailing the amount of gross tuition received during that period. Thereafter, complete financial statements shall be required.

Section 145-2.3 is amended to eliminate the references to registered private business schools and replace these references with licensed private career schools.

Revised rule compared with proposed rule:

Substantial revisions were made in sections 126.6(f)(5), 126.7(b)(9) and 145-2.3.

Text of revised proposed rule and any required statements and analyses may be obtained from

Mary Gammon, NYS Education Department, Office of Counsel, Room 148, Washington Avenue, Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Carole Yates, NYS Education Department, Bureau of Proprietary School Supervision, Room 1613, 99 Washington Avenue, Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

30 days after publication of this notice.

Revised Regulatory Impact Statement

Since publication of the Notice of Proposed Rule Making in the State Register on November 7, 2012, revisions were made to the following sections of the proposed amendment:

The second to last sentence in section 126.6(a) of the Commissioner’s regulations is reworded to make it clearer.

Section 126.6(f)(5)(a) of the Commissioner’s regulations is renumbered to 126.6(f)(5)(i).

Section 126.7(b)(9) of the Commissioner’s regulations is amended to eliminate the requirement that an enrollment agreement include a “provision for the method or methods of payment including, as appropriate, the disbursement schedule for each type of financial assistance available which shall meet the requirements set forth in section 5002(1)(b-1) of the Education Law”.

Section 145-2.3 of the Commissioner’s regulations was also amended to delete references to registered private business schools and to replace them with references to licensed private career schools to conform to Chapter 381 of the Laws of 2012.

These amendments do not require changes to the previously published Regulatory Impact Statement.

Revised Regulatory Flexibility Analysis

Since publication of the Notice of Proposed Rule Making in the State Register on November 7, 2012, revisions were made to the proposed rule as set forth in the Revised Regulatory Impact Statement set forth herewith.

These revisions do not require any changes to the previously published Regulatory Flexibility Analysis.

Revised Rural Area Flexibility Analysis

Since publication of the Notice of Proposed Rule Making in the State Register on November 7, 2012, revisions were made to the proposed amendment as set forth in the Revised Regulatory Impact Statement submitted herewith.

These revisions do not require any changes to the previously published Rural Area Flexibility Analysis.

Revised Job Impact Statement

Since publication of the Notice of Proposed Rule Making in the State Register on November 7, 2012, revisions were made to the proposed amendment as set forth in the Revised Regulatory Impact Statement submitted herewith.

The proposed rule, as revised, amends the licensure requirements for private, non-degree granting proprietary schools to implement Chapter 381 of the Laws of 2012. Because it is evident from the nature of the proposed revised rule that it will have no impact on the number of jobs or employment opportunities in New York State, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.

Assessment of Public Comment

Since publication of a Notice of Proposed Rule Making in the November 7, 2012 State Register, the State Education Department received comments from the public. The following is a summary assessing these comments:

1. COMMENT:

One commenter expressed concern with the change to section 126.7(b)(9) of the proposed amendment which requires an enrollment agreement to include a provision for the method or methods of payment including, as appropriate, the disbursement schedule for each type of financial assistance available which shall meet the requirements set forth in section 5002(1)(b-1) of the Education Law. The commenter noted that disclosure in an enrollment agreement is not necessary and is not compliant with Federal regulations. (Financial Aid is already a highly regulated area and these types of disclosures are given to students in other documents. Additionally, this would allow for a potential cross-over of the world of financial aid into the admissions department, which is strictly prohibited by Federal regulations.)

RESPONSE:

The proposed amendment has been amended to eliminate this requirement.

2. COMMENT:

A commenter questions the amendment to 126.9(a)(19) of the Commissioner’s regulations which requires each catalog to publish a catalog which includes “a weekly tuition liability chart for each program that indicates the amount of refund due the student in the event of withdrawal.

RESPONSE:

The proposed amendment implements Education Law 5002(3)(h), as amended by Chapter 381 of the Laws of 2012. Therefore, no change is warranted.

3. COMMENT:

A commenter challenges the deletion of the following provision in section 126.9 of the current Commissioner’s regulations:

“As an alternative to the prior approval of a catalog or bulletin by the commissioner, a school may submit, in a form prescribed by the commissioner, an attestation that the catalog or bulletin meets all of the requirements set forth in subdivision (a) of this section, is true and accurate, and contains no false, misleading, or fraudulent representations. A subsequent determination by the commissioner that the catalog does not meet the requirements of subdivision (a) of this section, or is not true and accurate, or that the catalog contains false, misleading or fraudulent representations, may subject the school to disciplinary action, as prescribed in section 126.14 of this Part and section 5003 of the Education Law.”

The commenter indicates that this amendment may delay the dissemination of information to students in a timely manner.

RESPONSE:

Section 5002(5)(f) of the Education Law provides that the Commissioner shall act upon a catalog within 90 days of receipt. The statute further states that if the Commissioner fails to act within 90 days, a catalog shall be deemed approved for one year. Therefore, the Department believes that there will be no delay in getting information to students and that no change is warranted.