Civil enforcement proceedings for the unauthorized practice of the professions and the unauthorized use of a professional title.
Purpose:
To implement Education Law section 6516, as added by chapter 615 of the Laws of 2003, by specifying the requirements and procedures for the submission of complaints, investigations, hearing requests and stay requests; the content of cease and desist orders; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals.
Substance of proposed rule (Full text is posted at the following State website: www.op.nysed.gov):
The Board of Regents proposes to add Part 31 to the Rules of the Board of Regents relating to civil enforcement proceedings for the unauthorized practice of the professions and the unauthorized use of a professional title.
Section 31.1 provides that the new Part applies to all proceedings commenced pursuant to section 6516 of the Education Law.
Subdivision (a) of section 31.2 provides that any person or organization who has reasonable cause to believe that a person has violated any provision of section 6512 or 6513 of the Education Law may file a written complaint, on a form prescribed by the Commissioner, with the professional conduct officer. This subdivision specifies the procedure for filing a complaint and the information to be included in such complaint.
Subdivision (b) of section 31.2 authorizes the department to investigate a complaint, when appropriate, or initiate its own investigation if the department has information indicating that a violation of section 6512 or 6513 has occurred. The results of such investigation must then be forwarded to the professional conduct officer, or his designee, for consultation with a member of the applicable state professional board to determine whether there is substantial evidence of unauthorized practice or unauthorized use of a title and whether further action is warranted.
Subdivision (a) of section 31.3 authorizes the department to issue a cease and desist order, on a form prescribed by the commissioner, if the department has reasonable cause to believe that a person has violated section 6512 or 6513 of the Education Law.
Subdivision (b) of section 31.3 specifies the content of cease and desist orders, including a particularized description of the alleged violation; an order to cease the specified unlawful activity; written notification of the respondent's right to request a hearing within 30 days of receipt of the cease and desist order and where a hearing request form can be obtained; written notification of respondent's right to request a stay of the cease and desist order at the time a hearing is requested and where a form to request a stay can be obtained, written notification of respondent's right to file an answer to the cease and desist order and written notification of respondent's rights at a hearing.
Subdivision (c) of section 31.3 specifies the service requirements for cease and desist orders.
Subdivision (d) of section 31.3 specifies that whenever the department concludes that civil penalties and/or restitution may be warranted, it shall serve a notice, specifying the allegations of unlawful activity and the department's intention to order the respondent to make restitution and/or impose a civil penalty. The department shall include in such notice a notice of hearing regarding the civil penalty and/or restitution sought, unless a hearing is currently pending. The notice shall be on a form prescribed by the Commissioner and should specify the civil penalty sought for each violation.
Subdivision (a) of section 31.4 authorizes the Department to impose a civil penalty of up to $5,000 for each violation whenever the department concludes that civil penalties may be warranted.
Paragraph (1) of subdivision (a) of section 31.4 sets forth the factors to be considered in determining whether to impose a civil penalty.
Paragraph (2) of subdivision (a) of section 31.4 states that in the event that respondent violates a cease and desist order during the course of a hearing or appeal, the department may deem such violation to constitute sufficient cause upon which to seek a civil penalty.
Subdivision (b) of section 31.4 authorizes the Department to order restitution to any person who has an interest in money or property acquired by the respondent as a result of the unauthorized practice of a profession or the unauthorized use of a professional title.
Paragraph (1) of subdivision (b) of section 31.4 sets forth the factors to be considered in determining whether to order restitution.
Paragraph (2) of subdivision (b) of section 31.4 provides that any person who seeks to make a claim for restitution based upon respondent's unlawful practice or unauthorized use of a professional title shall submit a written claim for restitution to the department, on a form prescribed by the Commissioner, and specifies the information to be included in a claim for restitution.
Subdivision (a) of section 31.5 requires a respondent to request a hearing conducted by the department within 30 days of receipt of a cease and desist order if the respondent wishes to contest the cease and desist order.
Subdivision (b) of section 31.5 requires hearing requests to be in writing, on a form prescribed by the Commissioner, and specifies the information to be included in the hearing request.
Subdivision (c) section 31.5 provides the address for the submission of hearing requests.
Subdivision (d) of section 31.5 permits the respondent to file an answer to a cease and desist order and sets forth the filing and service requirements for such answer and specifies the information to be included in an answer.
Section 31.6 permits the respondent to file a written application for a stay of the cease and desist order with the professional conduct officer, on a form prescribed by the commissioner, stating the facts and the law upon which stay shall be granted.
Subdivision (a) of section 31.6 sets forth the procedures for, and information to be included in, a stay request.
Subdivision (b) of section 31.6 authorizes the hearing officer to grant a stay pending an ultimate determination, if in his or her judgment, the issuance of such stay is necessary, upon consideration respondent's likelihood of success on the merits, any irreparable harm and a balancing of the equities. This subdivision requires the hearing officer to issue a decision on the stay request within five business days of the request for a stay.
Subdivision (a) of section 31.7 requires the hearing officer to schedule a date for the hearing within 15 days of receipt of a hearing request, following consultation with the parties. Additional hearing dates may be set after consultation with the parties.
Subdivision (b) of section 31.7 authorizes the hearing officer to grant adjournments for good cause upon written request by a party.
Subdivision (c) of section 31.7 requires that the parties exchange evidence and witness lists at least five days prior to the initial hearing date and permits the hearing officer to allow additional evidence and witnesses, at his or her discretion.
Subdivision (d) requires that the Department be represented by an attorney and permits the respondent to appear personally or be represented by an attorney.
Subdivision (e) of section 31.7 allows post-hearing submissions if they are authorized in advance of the submission by the hearing officer.
Subdivision (f) of section 31.7 places the burden of proof on the department and requires the department to prove by a preponderance of the evidence the facts and circumstances constituting a violation of section 6512 or 6513 of the Education Law.
Subdivision (g) of section 31.7 specifies the information to be included in the hearing officer's written report.
Subdivision (h) of section 31.7 requires service of the written report on the parties, together with notice of the parties right to an administrative hearing within 10 days of the conclusion of the hearing. This subdivision also clarifies that a hearing shall be deemed concluded upon the hearing officer's receipt of the transcript and any post hearing submissions authorized by the hearing officer.
Paragraph (1) of subdivision (h) of section 31.7 specifies the content of the notice of appeal, which is to be contained in the hearing officer's written report.
Paragraph (2) of subdivision (h) specifies the service requirements for the written report and the notice of an administrative appeal.
Subdivision (i) of section 31.7 provides that the decision of the hearing officer shall be final, unless it is appealed to the Regents Review Committee within 20 days of the receipt of the hearing officer's report.
Subdivision (a) of section 31.8 provides that either party may appeal the hearing officer's report to the Regents Review Committee by filing a notice of appeal and establishes the form and content of the notice of appeal.
Subdivision (b) of section 31.8 sets forth the composition of the Regents Review Committee.
Subdivision (c) of section 31.8 provides that the respondent has the right to appear before the Regents Review Committee, or the Regents Review Committee may require the respondent to appear. This subdivision also sets forth the information to be included in the notification of the Regents Review Committee meeting.
Subdivision (d) of section 31.8 requires the Regents Review Committee to review the hearing officer's report and determine whether the department has met its burden of proving, by a preponderance of the evidence, that respondent has violated section 6512 or 6513 of the Education Law and to support an order of restitution and/or whether the civil penalty imposed by the hearing officer was arbitrary and capricious. This subdivision also specifies what information the Regents Review Committee may consider when making its determination.
Subdivision (e) of section 31.8 requires the Regents Review Committee to transmit a written report of its review and a recommendation to the Board of Regents. The Board of Regents shall review the report and recommendation and determine whether respondent has violated each charge identified in the cease and desist order and determine what penalties and/or restitution, if any, to impose.
Paragraph (1) of subdivision (e) of section 31.8 sets forth the information that the Board of Regents may consider in its review of the report and recommendation of the Regents Review Committee.
Paragraph (2) of subdivision (e) of section 31.8 sets forth the requirements for service of the order of the Board of Regents and requires that such order contain written notification that the decision of the Board of Regents is final and binding and that review of such order may be obtained in a proceeding pursuant to Article 78 of the Civil Practice Law and Rules commenced in Supreme Court, Albany County. The written notification must also contain a statement that the decision shall not be stayed or enjoined unless the party applies to the supreme court pursuant to Article 63 of the Civil Practice Law and Rules.
Subdivision (f) of section 31.8 authorizes the Regents Review Committee and the Board of Regents to remand a proceeding to the hearing officer.
Text of proposed rule and any required statements and analyses may be obtained from:
Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.nysed.gov
Data, views or arguments may be submitted to:
Frank Munoz, Associate Commissioner, Office of the Professions, State Education Department, 2nd Fl. West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, (518) 486-1765, e-mail: opopr@mail.nysed.gov
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Subdivision (1) of section 6506 of the Education Law authorizes the Board of Regents to supervise the practice of the professions and to promulgate rules to carry out such supervision.
Paragraph (1) of Section 6512 makes it a felony for any unauthorized person to practice, offer to practice, or hold himself out as being able to practice in any profession in which a license is a prerequisite to such practice.
Paragraph (1) of Section 6513 makes it a misdemeanor for any unauthorized person to use a professional title.
Section 6516 of the Education Law authorizes the State Education Department to issue cease and desist orders, conduct administrative proceedings, impose civil penalties and order restitution when a person is engaged in the unauthorized practice of a profession or the unauthorized use of a professional title.
2. LEGISLATIVE OBJECTIVES:
In 2003, the Legislature enacted Section 6516 of the Education Law, authorizing the State Education Department to issue cease and desist orders, conduct administrative proceedings, impose civil penalties and order restitution in instances of the unauthorized practice of a profession or the unauthorized use of a professional title under Sections 6512 and 6513 of the Education Law. The proposed amendment implements the requirements of Section 6516 of the Education Law, by specifying the requirements and procedures for the submission of complaints, investigations, hearing requests and stay requests; the content of cease and desist orders; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals.
3. NEEDS AND BENEFITS:
Section 6512 of the Education Law makes it a crime for any unauthorized person to practice or to offer to practice a profession. Similarly, Section 6513 of the Education Law makes it a crime for an unauthorized person to use a professional title. Prior to 2003, the Education Department investigated alleged violations of these sections, and, in situations where such violations were substantiated, the Education Department reported such violations to the attorney general with a request for prosecution.
In 2003, the Legislature enacted Section 6516 of the Education Law, authorizing the State Education Department to issue cease and desist orders, conduct administrative proceedings, impose civil penalties of up to $5,000 per violation and order restitution in instances of the unauthorized practice of a profession or the unauthorized use of a professional title. Specifically, this statute permits the Department to issue a cease and desist order when the Department has reasonable cause to believe that any person has violated section 6512 or 6513 of the Education Law. The cease and desist order must advise the respondent of his or her right to contest the order through a hearing before a hearing officer designated by the Department and of his or her right to request a stay of the order. The decision of the hearing officer is final, unless appealed to a Regents Review Committee by the respondent or the Department. The Regents Review Committee then makes a report to the Board of Regents which makes the final administrative decision. Review of that decision is available by means of an Article 78 proceeding in Albany County Supreme Court.
The proposed amendment is needed to implement the requirements of Section 6516 of the Education Law by specifying the requirements for the submission of complaints, investigations, hearing requests and stay requests; the contents of a cease and desist order; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals.
4. COSTS:
(a) Costs to State Government: The proposed amendment implements statutory requirements. It will not impose any costs on State government beyond those necessary to implement the procedures required by the legislation.
(b) Costs to local government: None.
(c) Costs to private regulated parties: None. The proposed amendment will not impose any cost on private regulated parties, beyond those imposed by the statute.
(d) Cost to the regulatory agency: As stated above in “Costs to State Government”, the proposed amendment does not impose costs on the State Government, including the State Education Department, beyond those necessary to implement the procedures required by the legislation.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment implements the requirements of section 6516 of the Education Law, as amended by chapter 615 of the Laws of 2003, relating to the establishment of administrative procedures regarding complaints of the unauthorized practice of the professions or the unauthorized use of a professional title. It does not impose any program, service, duty or responsibility upon local governments.
6. PAPERWORK:
The proposed amendment will not require any paperwork beyond that required by the statute but does specify the content of statutorily established documents, including the hearing request, the stay request, the answer to a cease and desist order and the administrative appeal.
7. DUPLICATION:
The proposed amendment does not duplicate other existing State or Federal requirements. Rather, it complements the ongoing authority of the New York State Attorney General to criminally prosecute the unauthorized practice of a profession or the unauthorized use of a professional title, and the authority of the Attorney General and the State Education Department to apply to the State Supreme Court for an order enjoining or restraining such activities.
8. ALTERNATIVES:
There are no viable alternatives to the proposed amendment, and none were considered. The amendment implements statutory requirements.
9. FEDERAL STANDARDS:
There are no federal standards relating to administrative proceedings to address complaints regarding the unauthorized practice of a profession or the unauthorized use of a professional title.
10. COMPLIANCE SCHEDULE:
The proposed amendment must be complied with on its effective date. No additional period of time is necessary to enable regulated parties to comply.
Regulatory Flexibility Analysis
Section 6516 of the Education Law, as added by Chapter 615 of the Laws of 2003, authorizes the State Education Department to issue cease and desist orders, conduct administrative proceedings, impose civil penalties and order restitution in instances of the unauthorized practice of a profession or the unauthorized use of a professional title. The proposed amendment implements the requirements of Section 6516 of the Education Law, by specifying the requirements and procedures for the submission of complaints, investigations, hearing requests and stay requests; the content of cease and desist orders; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals. The proposed amendment will have no effect on small businesses and does not regulate local governments.
Because it is evident from the nature of this proposed amendment that it will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments, no further steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis is not required and one was not prepared.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendment will apply to all persons practicing a licensed profession or utilizing a professional title without being authorized to do so, including those who live in the 44 rural counties of New York State with less than 200,000 inhabitants and the 71 towns in urban counties of New York State with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment is needed to implement the requirements of section 6516 of the Education Law, as added by Chapter 615 of the Laws of 2003, authorizing the State Education Department to issue cease and desist orders, conduct civil enforcement proceedings, impose civil penalties and order restitution where persons have engaged in the unauthorized practice of a profession or the unauthorized use of a professional title. The proposed amendment implements the requirements of Section 6516 of the Education Law, by specifying the requirements and procedures for the submission of complaints, investigations, hearing requests and stay requests; the contents of cease and desist orders; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals.
The proposed amendment establishes procedures for filing a complaint when a person or organization has reasonable cause to believe that a person has violated any provision of section 6512 or 6513 of the Education Law. Section 6512 of the Education Law makes it a crime for any unauthorized person to practice or to offer to practice a profession. Similarly, Section 6513 of the Education Law makes it a crime for an unauthorized person to use a professional title. If appropriate, the department will investigate the complaint, and the results of such investigation will be referred to the professional conduct officer, or his designee. After consultation with a professional member of the applicable state board for the profession, the professional conduct officer, or his designee, shall determine whether there is substantial evidence of the unauthorized practice of a profession or unauthorized use of a professional title to warrant the issuance of a cease and desist order.
Whenever the department has reasonable cause to believe that a person has violated any provision of section 6512 or 6513 of the Education Law, the department may issue and serve upon such person a written order to cease and desist from such violation. The proposed amendment describes the content of the cease and desist order and requires that whenever the department concludes that civil penalties and/or restitution may be warranted, it serve, along with the cease and desist order, a notice of hearing on the allegations of unlawful activity and the department's intention to order respondent to make restitution and/or impose a civil penalty.
The proposed amendment also sets forth the factors to be considered in determining whether to impose a civil penalty and/or restitution. The amendment further provides that if a respondent contests the cease and desist order, he or she shall request that a hearing be conducted within 30 days of receipt of such cease and desist order and the amendment sets forth the requirements for a request for a hearing.
The proposed amendment permits a respondent to request a stay of the cease and desist order and sets forth the requirements and procedures for requesting a stay. The amendment also establishes procedures for the hearing and requirements for the evidence that may be presented at the hearing.
The amendment establishes procedures for an appeal of the hearing officer's decision to the Regents Review Committee and for the review of such decision by the Board of Regents. The proposed regulation will not require regulated parties, including those located in rural areas, to hire professional services in order to comply, and will not impose any additional recordkeeping requirements.
3. COSTS:
The proposed regulation does not impose any additional costs on public or private entities located in rural areas, beyond those imposed by the statute.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendment implements statutory requirements and makes no exception for individuals who live or work in rural areas. The Department has determined that the requirements should apply to all individuals practicing a licensed profession or utilizing a professional license, without being authorized to do so, to protect consumers. Because of the nature of the proposed rules, alternative approaches for rural areas were not considered.
5. RURAL AREAS PARTICIPATION:
Feedback concerning rules to implement section 6516 of the Education Law was sought from statewide. organizations representing parties having an interest in professional licensure. These entities have members who live or work in rural areas.
Job Impact Statement
Section 6516 of the Education Law, as added by Chapter 615 of the Laws of 2003, authorizes the State Education Department to issue cease and desist orders, conduct administrative proceedings, impose civil penalties and order restitution in instances of the unauthorized practice of a profession or the unauthorized use of a professional title. The proposed amendment implements the requirements of Section 6516 of the Education Law, by specifying the requirements and procedures for the submission of complaints, investigations, hearing requests and stay requests; the content of cease and desist orders; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals.
Because it is evident from the nature of this proposed amendment that it will have no adverse impact on jobs or employment opportunities, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one was not prepared.
