S01407A / A02107A
STATE OF NEW YORK
________________________________________________________________________
S. 1407--A A. 2107--A
SENATE - ASSEMBLY
January 29, 2003
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to
article seven of the Constitution -- read once and referred to the
Committee on Ways and Means -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the education law, in relation to the powers of the
boards of trustees of the state university of New York and the city
university of New York to establish tuition rates (Part A); to amend
the education law, in relation to the powers of the boards of trustees
of the state university of New York to establish and contract with
not-for-profit corporations (Part B); to amend the arts and cultural
affairs law, the state finance law, the parks, recreation and historic
preservation law and the not-for-profit corporation law, in relation
to establishing the New York institute for cultural education and
providing for the orderly transfer of all functions, powers, duties,
obligations, and assets of the office of cultural education located in
the state education department to the New York institute for cultural
education; and repealing certain provisions of the education law
relating thereto (Part C); to amend the education law, in relation to
the calculation and payment of state aid to school districts and
boards of cooperative educational services, school construction and
the apportionment of aid, the apportionment of aid for the purchase of
cooperative educational services, the special act school districts and
their status regarding the boards of cooperative educational services,
the creation of a needs resource index in the education law in order
to prioritize the payment of aid on school construction projects, and
the ability of the state education department to continue using admin-
istrative discretion in the award of grants to school districts
notwithstanding provisions of the state finance law; to amend the
general municipal law, in relation to the contracting of school
district construction projects; to amend the public authorities law,
in relation to special school purpose agreements; to amend chapter 60
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12112-02-3
S. 1407--A 2 A. 2107--A
of the laws of 2000, amending the education law, relating to the
enactment of major components necessary to the implementation of the
2000-01 state fiscal plan, chapter 82 of the laws of 1995, amending
the education law and certain laws relating to aid to school districts
and the appropriation of funds for the support of government, and
chapter 169 of the laws of 1994 relating to certain provisions related
to the 1994-95 state operations, aid to localities, capital projects
and debt service budgets, in relation to certain expiration and repeal
dates contained therein; to amend chapter 756 of the laws of 1992
relating to funding a program for workforce education conducted by the
consortium for worker education in New York City, in relation to the
effectiveness thereof; to repeal certain provisions of the education
law relating to letting of construction contracts; to repeal paragraph
b of subdivision 1 of section 1734 and subdivisions 1 and 3 of section
1735 of the public authorities law relating to contracts of the New
York city school construction authority; and to repeal section 11 of
chapter 795 of the laws of 1967, amending the education law, the
public authorities law and the real property tax law relating to
authorizing boards of cooperative educational services to own and
construct buildings relating to boards of cooperative educational
services constructing buildings through the dormitory authority (Part
D); to amend the education law, in relation to the number and appoint-
ment of members of the board of regents, promulgation of regulations
by the regents and the commissioner of education, and the responsibil-
ities and compensation of superintendents of boards of cooperative
educational services and supervisory districts; to amend the county
law, in relation to making certain technical corrections; and repeal-
ing certain provisions of the education law relating to the board of
regents (Part E); to amend the education law, in relation to the
eligibility requirements for the tuition assistance program and the
creation of a tuition assistance loan program (Part F); to amend the
real property law and the state finance law, in relation to the fee
for recording real property transfer reporting forms (Part G); to
amend chapter 540 of the laws of 1992, amending the real property tax
law relating to oil and gas charges, in relation to the effectiveness
of such chapter (Part H); to amend the labor law, in relation to
transfer of certain programs for the vocational rehabilitation of
individuals with disabilities from the education department to the
department of labor, transfer of certain programs for blind or visual-
ly handicapped persons and the equipment loan fund for the disabled
from the office of children and family services to the department of
labor, and transfer of certain programs for blind and visually hand-
icapped persons aged fifty-five and over to the office for the aging;
to amend the mental hygiene law, the social services law, the election
law and the education law, in relation to making technical corrections
thereto; to repeal articles 21 and 23-A and section 4210 of the educa-
tion law relating to vocational and educational services to individ-
uals with disabilities; to repeal title 9-A of article 5 of the social
services law relating to the equipment loan fund for the disabled; to
repeal section 38 of the social services law relating to the commis-
sion for the blind and visually handicapped; and to repeal subdivision
23 of section 305 of the education law relating to the powers of the
commissioner of education (Part I); to amend the executive law and the
social services law, in relation to the transfer of the state council
on children and families to the office of children and family
services, and to repeal article 19-C of the executive law related
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thereto, and to repeal subdivision 3 of section 409-i of the social
services law relating to the review of programs concerning adolescent
pregnancy and teenage motherhood (Part J); to amend the executive law,
in relation to utilization of non-secure juvenile detention for juve-
nile delinquents and persons in need of supervision and reimbursement
therefor (Part K); to amend the social services law, in relation to
the eligibility of certain foster care children in managed care plans
(Part L); to amend the social services law and the education law, in
relation to requiring a school district share for the maintenance
costs associated with the committee on special education residential
placements (Part M); to repeal title 1-A of article 6 of the social
services law, relating to the state commission on the quality of
foster care (Part N); to amend the social services law, in relation to
the local agency maximum monthly shelter allowance in the family
assistance and safety net programs and to make provision for payment
of additional shelter allowances to the extent provided in an appro-
priation (Part O); to amend the social services law, in relation to
increasing the standards of monthly need for aged, blind and disabled
persons and increasing mandatory minimum state supplementation of
federal supplemental security income benefits (Part P); to amend the
social services law, in relation to the transfer of functions of the
welfare inspector general and to repeal sections 46 and 74 of the
executive law relating thereto (Part Q); to amend the real property
tax law, in relation to the maximum tax savings from the school tax
relief program for the two thousand three--two thousand four school
year (Part R); to amend the education law, in relation to limiting
school district spending increases (Part S); and to amend the general
business law, the public health law, the criminal procedure law, the
mental hygiene law and the state finance law, in relation to providing
for the transfer of certain programs relating to the regulation of
professional practice from the state education department to the
department of state; and to amend the administrative code of the city
of New York, the agriculture and markets law, the business corporation
law, the civil practice law and rules, the correction law, the crimi-
nal procedure law, the education law, the executive law, the general
business law, the general municipal law, the insurance law, the labor
law, the limited liability company law, the mental hygiene law, the
partnership law, the penal law, the public buildings law, the public
health law, the real property tax law, the social services law, the
surrogate's court procedure act, the tax law, the town law, the vehi-
cle and traffic law, and the workers' compensation law, in relation to
making technical corrections thereto; and providing for the repeal of
certain provisions upon expiration thereof; and to repeal title VIII
of the education law relating thereto (Part T)
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
30 PART T
31 Section 1. Title VIII of the education law is REPEALED.
32 § 2. Article 40 and sections 900 and 901 of the general business law,
33 as renumbered by chapter 407 of the laws of 1973, are renumbered article
34 50 and sections 5000 and 5001.
35 § 3. The general business law is amended by adding a new article 40 to
36 read as follows:
37 ARTICLE 40
38 THE PROFESSIONS
39 Subarticle 1. General provisions
40 2. Medicine
41 2-A. Definitions of professional misconduct applicable to
42 physicians, physician's assistants and specialist's
43 assistants
44 2-B. Physician's assistants and specialist's assistants
45 3. Chiropractic
46 4. Dentistry and dental hygiene
47 5. Veterinary medicine and animal health technology
48 6. Physical therapy and physical therapist assistants
49 7. Pharmacy
50 8. Nursing
51 9. Professional midwifery practice act
52 10. Podiatry
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1 11. Optometry
2 12. Ophthalmic dispensing
3 13. Engineering and land surveying
4 14. Architecture
5 15. Landscape architecture
6 16. Public accountancy
7 17. Shorthand reporting
8 18. Psychology
9 19. Social work
10 20. Massage therapy
11 21. Occupational therapy
12 22. Dietetics and nutrition
13 23. Speech-language pathologists and audiologists
14 24. Acupuncture
15 25. Interior design
16 26. Athletic trainers
17 28. Respiratory therapists and respiratory therapy techni-
18 cians
19 29. Medical physics practice
20 SUBARTICLE 1
21 GENERAL PROVISIONS
22 TITLE A
23 General provisions.
24 Section 900. Introduction.
25 901. Admission to a profession; licensing.
26 902. Disclosure with respect to loans made or guaranteed by the
27 New York state higher education services corpo-
28 ration.
29 903. Duration and registration of a license.
30 904. Practice of a profession.
31 905. Regulation of the professions.
32 906. Construction.
33 907. Professional referrals.
34 908. Course work or training in infection control practices.
35 TITLE B
36 State management.
37 Section 920. Supervision by the secretary of state.
38 921. Administration by the department of state.
39 922. State boards for the professions.
40 TITLE C
41 Professional misconduct.
42 Section 940. Definitions of professional misconduct.
43 941. Additional definition of professional misconduct; limited
44 application.
45 942. Additional definition of professional misconduct; arrears
46 in payment of support; limited application.
S. 1407--A 143 A. 2107--A
1 943. Additional definition of professional misconduct; failure
2 to comply in paternity or child support proceedings;
3 limited application.
4 944. Proceedings in cases of professional misconduct.
5 945. Temporary surrender of licenses during treatment for drug
6 or alcohol abuse.
7 946. Nurse peer assistance programs.
8 947. Voluntary non-disciplinary surrender of a license.
9 948. Penalties for professional misconduct.
10 TITLE D
11 Unauthorized acts.
12 Section 960. Unauthorized practice a crime.
13 961. Unauthorized use of a professional title a crime.
14 961-a. Penalties.
15 962. Criminal proceedings.
16 963. Restraint of unlawful acts.
17 TITLE A
18 General provisions.
19 § 900. Introduction. This article provides for the regulation of the
20 admission to and the practice of certain professions. This first subar-
21 ticle applies to all the professions included in this article, except
22 that prehearing procedures and hearing procedures in connection with the
23 regulation of professional conduct of the profession of medicine and
24 physician's assistants and specialist's assistants shall be conducted
25 pursuant to the provisions of Title II-A of article two of the public
26 health law. Each of the remaining subarticles applies to a particular
27 profession.
28 § 901. Admission to a profession; licensing. Admission to practice of
29 a profession in this state is accomplished by a license being issued to
30 a qualified applicant by the department of state. To qualify for a
31 license an applicant shall meet the requirements prescribed in the
32 subarticle for the particular profession and shall meet the requirements
33 prescribed in section 3-503 of the general obligations law.
34 § 902. Disclosure with respect to loans made or guaranteed by the New
35 York state higher education services corporation. Every application for
36 a license issued pursuant to the provisions of this subarticle shall
37 contain a question inquiring whether the applicant has any loans made or
38 guaranteed by the New York state higher education services corporation
39 currently outstanding, and if so, whether such applicant is presently in
40 default on any such loan. The name and address of any applicant who
41 answers either or both of such questions in the affirmative shall be
42 transmitted to such corporation by the department of state prior to the
43 date on which such license is issued.
44 § 903. Duration and registration of a license. 1. A license shall be
45 valid during the life of the holder unless revoked, annulled or
46 suspended by the secretary of state or in the case of physicians, physi-
47 cians practicing under a limited permit, physician's assistants,
48 specialist's assistants and medical residents, the licensee is stricken
49 from the roster of such licensees by the secretary of state on the order
50 of the state board for professional medical conduct in the department of
51 health. A licensee must register with the department and meet the
S. 1407--A 144 A. 2107--A
1 requirements prescribed in section 3-503 of the general obligations law
2 to practice in this state.
3 2. The department of state shall establish the beginning dates of the
4 registration periods for each profession and mail an application for
5 registration conforming to the requirements of section 3-503 of the
6 general obligations law to every licensee currently registered at least
7 four months prior to the beginning of the registration period for the
8 respective profession.
9 3. An application for registration and the required registration fee
10 shall be submitted together with or as a part of the application for a
11 license. A person initially licensed or a licensee resuming practice
12 after a lapse of registration during the last two years of a triennial
13 registration period shall receive a prorated refund of one-third of the
14 total registration fee for each full year of the triennial period that
15 has elapsed prior to the date of registration. Except as provided in
16 subdivision three-a of this section, the department of state shall renew
17 the registration of each licensee upon receipt of a proper application,
18 on a form prescribed by the department of state and conforming to the
19 requirements of section 3-503 of the general obligations law, and the
20 registration fee. Any licensee who fails to register by the beginning
21 of the appropriate registration period shall be required to pay an addi-
22 tional fee for late filing of ten dollars for each month that registra-
23 tion has been delayed. No licensee resuming practice after a lapse of
24 registration shall be permitted to practice without actual possession of
25 the registration certificate.
26 3-a. Prior to issuing any registration pursuant to this section and
27 section one thousand four of this article, the department of state shall
28 request and review any information relating to an applicant which
29 reasonably appears to relate to professional misconduct in his or her
30 professional practice in this and any other jurisdiction. Such depart-
31 ment shall advise the director of the office of professional medical
32 conduct in the department of health of any information about an appli-
33 cant which reasonably appears to be professional misconduct as defined
34 in sections one thousand fifty and one thousand fifty-one of this arti-
35 cle, within seven days of its discovery. The registration or re-regis-
36 tration of such applicant shall not be delayed for a period exceeding
37 thirty days unless the director finds a basis for recommending summary
38 action pursuant to subdivision twelve of section two hundred thirty of
39 the public health law after consultation with a committee on profes-
40 sional conduct of the state board for professional medical conduct, if
41 warranted. Re-registration shall be issued if the commissioner of
42 health fails to issue a summary order pursuant to subdivision twelve of
43 section two hundred thirty of the public health law within ninety days
44 of notice by the department of state pursuant to this subdivision.
45 Re-registration shall be denied if the commissioner of health issues a
46 summary order pursuant to subdivision twelve of section two hundred
47 thirty of the public health law.
48 4. Any licensee who is not engaging in the practice of his or her
49 profession in this state and does not desire to register shall so advise
50 the department of state. Such licensee shall not be required to pay an
51 additional fee for failure to register at the beginning of the registra-
52 tion period.
53 5. Licensees shall notify the department of any change of name or
54 mailing address within thirty days of such change. Failure to register
55 or provide such notice within one hundred eighty days of such change
S. 1407--A 145 A. 2107--A
1 shall be willful failure under section one thousand fifty of this arti-
2 cle.
3 6. The fee for replacement of a lost registration certificate or
4 license or for registration of an additional office shall be ten
5 dollars.
6 7. An additional fee of twenty-five dollars shall be charged for the
7 licensure or registration of any applicant who submits a bad check to
8 the department of state.
9 § 904. Practice of a profession. Admission to the practice of a
10 profession (1) entitles the licensee to practice the profession as
11 defined in the subarticle for the particular profession, (2) entitles
12 the individual licensee to use the professional title as provided in the
13 subarticle for the particular profession, and (3) subjects the licensee
14 to the procedures and penalties for professional misconduct as
15 prescribed in this subarticle.
16 § 905. Regulation of the professions. Admission to the practice of
17 the professions (licensing) and regulation of such practice shall be
18 supervised by the secretary of state and administered by the department
19 of state, assisted by a state board for each profession.
20 § 906. Construction. No definition of the practice of a profession
21 shall be construed to restrain or restrict the performance of similar
22 acts authorized in the definition of other professions.
23 § 907. Professional referrals. There shall be no monetary liability
24 on the part of, and no cause of action for damages shall arise against,
25 any association or society of professionals authorized to practice under
26 this article, or any employee, agent, or member thereof, for referring
27 any person to a member of the profession represented by such association
28 or society provided that such referral was made without charge as a
29 service to the public, and without malice, and in the reasonable belief
30 that such referral was warranted, based upon the facts disclosed.
31 § 908. Course work or training in infection control practices. Every
32 dentist, registered nurse, licensed practical nurse, podiatrist, optome-
33 trist and dental hygienist practicing in the state shall, every four
34 years, complete course work or training appropriate to the profes-
35 sional's practice approved by the department of state regarding
36 infection control and barrier precautions, including engineering and
37 work practice controls, in accordance with regulatory standards promul-
38 gated by the department of state, in consultation with the department of
39 health, which shall be consistent, as far as appropriate, with such
40 standards adopted by the department of health pursuant to section two
41 hundred thirty-nine of the public health law to prevent the transmission
42 of HIV/HBV in the course of professional practice. Each such profes-
43 sional shall document to the department of state at the time of regis-
44 tration that the professional has completed course work or training in
45 accordance with this section, provided, however that a professional
46 subject to the provisions of paragraph (f) of subdivision one of section
47 twenty-eight hundred five-k of the public health law shall not be
48 required to so document. The department of state shall provide an
49 exemption from this requirement to anyone who requests such an exemption
50 and who (i) clearly demonstrates that there would be no need for him or
51 her to complete such course work or training because of the nature of
52 his or her practice or (ii) that he or she has completed course work or
53 training deemed by the department of state to be equivalent to the
54 course work or training approved by the department of state pursuant to
55 this section. The department of state shall consult with organizations
56 representative of professions, institutions and those with expertise in
S. 1407--A 146 A. 2107--A
1 infection control and HIV and HBV with respect to the regulatory stand-
2 ards promulgated pursuant to this section.
3 TITLE B
4 State management.
5 § 920. Supervision by the secretary of state. The secretary of state
6 shall supervise the admission to and the practice of the professions. In
7 supervising, the secretary of state may:
8 (1) Promulgate rules, except that no rule shall be promulgated
9 concerning subarticle two-A of this article;
10 (2) Establish by rule, high school, preprofessional, professional and
11 other educational qualifications required for licensing in the
12 professions regulated by this article;
13 (3) Recognize schools offering educational programs for the
14 professions regulated by this article;
15 (4) Appoint such committees as it deems necessary and compensate
16 members of such committees who are not members of the department of
17 state up to one hundred dollars per day for each day devoted to commit-
18 tee functions, together with their necessary expenses;
19 (5) Waive education, experience and examination requirements for a
20 professional license prescribed in the subarticle relating to the
21 profession, provided the secretary of state shall be satisfied that the
22 requirements of such subarticle have been substantially met;
23 (6) Indorse a license issued by a licensing board of another state or
24 country upon the applicant fulfilling the following requirements:
25 (a) Application: file an application with the department of state;
26 (b) Education: meet educational requirements in accordance with the
27 regulations of the secretary of state;
28 (c) Experience: have experience satisfactory to the secretary of state
29 and in accordance with the secretary's regulations;
30 (d) Examination: pass an examination satisfactory to the secretary of
31 state and in accordance with the secretary's regulations;
32 (e) Age: be at least twenty-one years of age;
33 (f) Citizenship or immigration status: be a United States citizen or
34 an alien lawfully admitted for permanent residence in the United States;
35 (g) Character: be of good moral character as determined by the depart-
36 ment of state;
37 (7) Direct the department of state to remedy any error, omission,
38 delay or other circumstance in the issuance or registration of a
39 license;
40 (8) Designate a professional conduct officer, who shall be the chief
41 administrative officer of the office of the professions, or his or her
42 designee, in connection with professional licensing and misconduct
43 proceedings and criminal matters, such officer to be empowered to issue
44 subpoenas and administer oaths in connection with such proceedings;
45 (9) Establish by rule, standards of conduct with respect to advertis-
46 ing, fee splitting, practicing under a name other than that of the indi-
47 vidual licensee (when not specifically authorized), proper use of
48 academic or professional degrees or titles tending to imply professional
49 status, and such other ethical practices as the secretary of state shall
50 deem necessary, except that no rule shall be established concerning
51 subarticle two-A of this article; and
52 (10) Delegate to department of state officers the disposition of any
53 licensing matters pursuant to rules.
54 § 921. Administration by the department of state. 1. The department
55 of state shall administer the admission to and the practice of the
56 professions.
S. 1407--A 147 A. 2107--A
1 2. In administering, the department of state may:
2 a. Promulgate regulations, except that no regulations shall be promul-
3 gated concerning subarticle two-A of this article;
4 b. Conduct investigations;
5 c. Issue subpoenas;
6 d. Grant immunity from prosecution in accordance with section 50.20 of
7 the criminal procedure law to anyone subpoenaed in any investigation or
8 hearing conducted pursuant to this article; and
9 e. Excuse, for cause acceptable to the department of state, the fail-
10 ure to register with the department of state. Such excuse shall vali-
11 date and authorize such practitioner's right to practice pending regis-
12 tration.
13 3. The department of state assisted by the board for each profession,
14 shall:
15 a. Establish standards for preprofessional and professional education,
16 experience and licensing examinations as required to implement the
17 subarticle for each profession. Notwithstanding any other provision of
18 law, the secretary of state shall establish standards requiring that all
19 persons applying, on or after October first, two thousand three,
20 initially, or for the renewal of, a license, registration or limited
21 permit to be a physician, chiropractor, dentist, registered nurse,
22 podiatrist, optometrist, psychiatrist, psychologist or dental hygienist
23 shall, in addition to all the other licensure, certification or permit
24 requirements, have completed two hours of coursework or training regard-
25 ing the identification and reporting of child abuse and maltreatment.
26 The coursework or training shall be obtained from an institution or
27 provider which has been approved by the department of state to provide
28 such coursework or training. The coursework or training shall include
29 information regarding the physical and behavioral indicators of child
30 abuse and maltreatment and the statutory reporting requirements set out
31 in sections four hundred thirteen through four hundred twenty of the
32 social services law, including but not limited to, when and how a report
33 must be made, what other actions the reporter is mandated or authorized
34 to take, the legal protections afforded reporters, and the consequences
35 for failing to report. Each applicant shall provide the department of
36 state with documentation showing that he or she has completed the
37 required training. The department of state shall provide an exemption
38 from the child abuse and maltreatment training requirements to any
39 applicant who requests such an exemption and who shows, to the depart-
40 ment of state's satisfaction, that there would be no need because of the
41 nature of his or her practice for him or her to complete such training;
42 b. Review qualifications in connection with licensing requirements;
43 and
44 c. Provide for licensing examinations and reexaminations.
45 4. The department of state shall:
46 a. Register or approve educational programs designed for the purpose
47 of providing professional preparation which meet standards established
48 by the department of state.
49 b. Issue licenses, registrations, and limited permits to qualified
50 applicants;
51 c. (i) Issue a certificate of authority to a qualified professional
52 service corporation being organized under section fifteen hundred three
53 of the business corporation law or to a university faculty practice
54 corporation being organized under section fourteen hundred twelve of the
55 not-for-profit corporation law on payment of a fee of ninety dollars,
56 (ii) require such corporations to file a certified copy of each certif-
S. 1407--A 148 A. 2107--A
1 icate of incorporation and amendment thereto within thirty days after
2 the filing of such certificate or amendment on payment of a fee of twen-
3 ty dollars, (iii) require such corporations to file a triennial state-
4 ment required by section fifteen hundred fourteen of the business corpo-
5 ration law on payment of a fee of one hundred five dollars.
6 d. Revoke limited permits on the recommendation of the committee on
7 professional conduct for the profession concerned, except for limited
8 permits issued to physicians, physician's assistants and specialist's
9 assistants which shall be subject to sections two hundred thirty, two
10 hundred thirty-a, two hundred thirty-b and two hundred thirty-c of the
11 public health law;
12 e. Maintain public records of licenses issued and retain in its files
13 identifying data concerning each person to whom a license has been
14 issued;
15 f. Collect the fees prescribed by this article or otherwise provided
16 by law;
17 g. Prepare an annual report for the legislature, the governor and
18 other executive offices, the state boards for the professions, profes-
19 sional societies, consumer agencies and other interested persons. Such
20 report shall include but not be limited to a description and analysis of
21 the administrative procedures and operations of the department of state
22 based upon a statistical summary relating to (i) new licensure, (ii)
23 discipline, (iii) complaint, investigation, and hearing backlog, (iv)
24 budget, and (v) the state boards for the professions. Information
25 provided shall be enumerated by profession; and
26 h. Establish an administrative unit which shall be responsible for the
27 investigation, prosecution and determination of alleged violations of
28 professional conduct.
29 5. The secretary of state and the department of state shall perform
30 any other functions necessary to implement this article.
31 § 922. State boards for the professions. 1. A board for each profes-
32 sion shall be appointed by the secretary of state for the purpose of
33 assisting him or her and the department of state on matters of profes-
34 sional licensing, practice, and conduct. The composition of each board
35 shall be as prescribed in the subarticle relating to each profession.
36 Within each board a committee on licensing may be appointed by the board
37 chairman.
38 Except as provided in paragraph a of this subdivision, the membership
39 of each professional licensing board shall be increased by one member,
40 and each such board shall have at least one public representative who
41 shall be selected by the secretary of state from the general public.
42 a. The membership of the professional licensing boards created under
43 sections one thousand three, thirteen hundred fifty-four, fourteen
44 hundred four, and eighteen hundred three of this article shall be
45 increased by two members, and each such board shall have at least two
46 public representatives, who shall be selected by the secretary of state
47 from the general public.
48 b. For the purposes of this article, a "public representative" shall
49 be a person who is a consumer of services provided by those licensed or
50 otherwise supervised or regulated by the boards created hereunder, and
51 shall not be, nor within five years immediately preceding appointment
52 have been:
53 (i) a licensee or person otherwise subject to the supervision or regu-
54 lation of the board to which appointed; or
55 (ii) a person maintaining a contractual relationship with a licensee
56 of such board, which would constitute more than two percentum of the
S. 1407--A 149 A. 2107--A
1 practice or business of any such licensee, or an officer, director, or
2 representative of such person or group of persons.
3 2. Each board, or its committee on licensing, shall select or prepare
4 examinations, may conduct oral and practical examinations and reexamina-
5 tions, shall fix passing grades, and assist the department of state in
6 other licensing matters.
7 3. Each board shall conduct disciplinary proceedings as prescribed in
8 this subarticle and shall assist in other professional conduct matters.
9 4. Members of each board shall be appointed by the secretary of state
10 for five-year terms except that the terms of those first appointed shall
11 be arranged so that as nearly as possible an equal number shall termi-
12 nate annually. A vacancy occurring during a term shall be filled by an
13 appointment by the secretary of state for the unexpired term. Each state
14 professional association or society may nominate one or more candidates
15 for each appointment to be made to the board for its profession, but the
16 secretary of state shall not be required to appoint candidates so nomi-
17 nated. Former members of a board may be re-appointed by the secretary of
18 state to serve as members of the board solely for the purposes of disci-
19 plinary proceedings, proceedings relating to the moral character of an
20 applicant for licensure, and proceedings relating to applications for
21 the restoration of a professional license. In addition, each board shall
22 establish a roster of auxiliary members from candidates nominated by
23 professional associations or societies for appointment by the secretary
24 of state to serve as members of the board solely for the purposes of
25 disciplinary proceedings, proceedings relating to the moral character of
26 an applicant for licensure, and proceedings relating to applications for
27 the restoration of a professional license.
28 5. Each member of a board shall receive a certificate of appointment,
29 shall before beginning his or her term of office file a constitutional
30 oath of office with the secretary of state, shall receive up to one
31 hundred dollars for each day devoted to board work, and shall be reim-
32 bursed for his or her necessary expenses. Any member may be removed from
33 a board by the secretary of state for misconduct, incapacity or neglect
34 of duty.
35 6. Each board shall elect from its members a chairman and vice-chair-
36 man annually, shall meet upon call of the chairman or the department of
37 state, and may adopt bylaws consistent with this article and approved by
38 the secretary of state. A quorum for the transaction of business by the
39 board shall be a majority of members but not less than five members.
40 7. An executive secretary to each board shall be appointed by the
41 secretary of state. Such executive secretary shall not be a member of
42 the board, shall hold office at the pleasure of, and shall have the
43 powers, duties and annual salary prescribed by the secretary of state.
44 TITLE C.
45 Professional misconduct.
46 § 940. Definitions of professional misconduct. Each of the following
47 is professional misconduct, and any licensee found guilty of such
48 misconduct under the procedures prescribed in section nine hundred
49 forty-four of this title shall be subject to the penalties prescribed in
50 section nine hundred forty-eight of this title:
51 (1) Obtaining the license fraudulently,
52 (2) Practicing the profession fraudulently, beyond its authorized
53 scope, with gross incompetence, with gross negligence on a particular
54 occasion or negligence or incompetence on more than one occasion,
55 (3) Practicing the profession while the ability to practice is
56 impaired by alcohol, drugs, physical disability, or mental disability,
S. 1407--A 150 A. 2107--A
1 (4) Being habitually drunk or being dependent on, or a habitual user
2 of narcotics, barbiturates, amphetamines, hallucinogens, or other drugs
3 having similar effects,
4 (5) (a) Being convicted of committing an act constituting a crime
5 under:
6 (i) New York State law or,
7 (ii) Federal law or,
8 (iii) The law of another jurisdiction and which, if committed within
9 this state, would have constituted a crime under New York State law;
10 (b) Having been found guilty of improper professional practice or
11 professional misconduct by a duly authorized professional disciplinary
12 agency of another state where the conduct upon which the finding was
13 based would, if committed in New York state, constitute professional
14 misconduct under the laws of New York state;
15 (c) Having been found by the commissioner of health to be in violation
16 of article thirty-three of the public health law.
17 (d) Having his license to practice medicine revoked, suspended or
18 having other disciplinary action taken, or having his application for a
19 license refused, revoked or suspended or having voluntarily or otherwise
20 surrendered his license after a disciplinary action was instituted by a
21 duly authorized professional disciplinary agency of another state, where
22 the conduct resulting in the revocation, suspension or other discipli-
23 nary action involving the license or refusal, revocation or suspension
24 of an application for a license or the surrender of the license would,
25 if committed in New York state, constitute professional misconduct under
26 the laws of New York state.
27 (6) Refusing to provide professional service to a person because of
28 such person's race, creed, color, or national origin,
29 (7) Permitting, aiding or abetting an unlicensed person to perform
30 activities requiring a license,
31 (8) Practicing the profession while the license is suspended, or
32 wilfully failing to register or notify the department of state of any
33 change of name or mailing address, or, if a professional service corpo-
34 ration wilfully failing to comply with sections fifteen hundred three
35 and fifteen hundred fourteen of the business corporation law or, if a
36 university faculty practice corporation wilfully failing to comply with
37 paragraphs (b), (c) and (d) of section fifteen hundred three and section
38 fifteen hundred fourteen of the business corporation law,
39 (9) Committing unprofessional conduct, as defined by the secretary of
40 state in its rules or in regulations approved by the department of
41 state,
42 (10) A violation of section twenty-eight hundred three-d or twenty-
43 eight hundred five-k of the public health law.
44 (11) A violation of section nine hundred eight of this subarticle by a
45 professional other than a professional subject to the provisions of
46 paragraph (f) of subdivision one of section twenty-eight hundred five-k
47 of the public health law.
48 (12) In the event that the department of environmental conservation
49 has reported to the department of state alleged misconduct by an archi-
50 tect or professional engineer in making a certification under section
51 nineteen of the tax law (relating to the green building tax credit) the
52 secretary of state, upon a hearing and a finding of willful misconduct,
53 may revoke the license of such professional or prescribe such other
54 penalty as it determines to be appropriate.
55 § 941. Additional definition of professional misconduct; limited
56 application. Notwithstanding any inconsistent provision of this subar-
S. 1407--A 151 A. 2107--A
1 ticle or of any other provision of law to the contrary, the license or
2 registration of a person subject to the provisions of subarticles three,
3 four, six, seven, eight, ten, eleven, twelve, twenty-one, twenty-three
4 and twenty-eight of this article may be revoked, suspended or annulled
5 or such person may be subject to any other penalty provided in section
6 nine hundred forty-eight of this subarticle in accordance with the
7 provisions and procedure of this subarticle for the following:
8 That any person subject to the above enumerated subarticles, has
9 directly or indirectly requested, received or participated in the divi-
10 sion, transference, assignment, rebate, splitting or refunding of a fee
11 for, or has directly requested, received or profited by means of a cred-
12 it or other valuable consideration as a commission, discount or gratuity
13 in connection with the furnishing of professional care, or service,
14 including x-ray examination and treatment, or for or in connection with
15 the sale, rental, supplying or furnishing of clinical laboratory
16 services or supplies, x-ray laboratory services or supplies, inhalation
17 therapy service or equipment, ambulance service, hospital or medical
18 supplies, physiotherapy or other therapeutic service or equipment, arti-
19 ficial limbs, teeth or eyes, orthopedic or surgical appliances or
20 supplies, optical appliances, supplies or equipment, devices for aid of
21 hearing, drugs, medication or medical supplies or any other goods,
22 services or supplies prescribed for medical diagnosis, care or treatment
23 under this article, except payment, not to exceed thirty-three and one-
24 third per centum of any fee received for x-ray examination, diagnosis or
25 treatment, to any hospital furnishing facilities for such examination,
26 diagnosis or treatment. Nothing contained in this section shall prohib-
27 it such persons from practicing as partners, in groups or as a profes-
28 sional corporation or as a university faculty practice corporation nor
29 from pooling fees and moneys received, either by the partnerships,
30 professional corporations, university faculty practice corporations or
31 groups by the individual members thereof, for professional services
32 furnished by any individual professional member, or employee of such
33 partnership, corporation or group, nor shall the professionals consti-
34 tuting the partnerships, corporations or groups be prohibited from shar-
35 ing, dividing or apportioning the fees and moneys received by them or by
36 the partnership, corporation or group in accordance with a partnership
37 or other agreement; provided that no such practice as partners, corpo-
38 rations or in groups or pooling of fees or moneys received or shared,
39 division or apportionment of fees shall be permitted with respect to
40 care and treatment under the workers' compensation law except as
41 expressly authorized by the workers' compensation law. Nothing
42 contained in this article shall prohibit a medical or dental expense
43 indemnity corporation pursuant to its contract with the subscriber from
44 prorationing a medical or dental expense indemnity allowance among two
45 or more professionals in proportion to the services rendered by each
46 such professional at the request of the subscriber, provided that prior
47 to payment thereof such professionals shall submit both to the medical
48 or dental expense indemnity corporation and to the subscriber statements
49 itemizing the services rendered by each such professional and the charg-
50 es therefor.
51 § 942. Additional definition of professional misconduct; arrears in
52 payment of support; limited application. 1. The provisions of this
53 section shall apply in all cases of licensee or registrant arrears in
54 payment of child support or combined child and spousal support referred
55 to the secretary of state by a court pursuant to the requirements of
S. 1407--A 152 A. 2107--A
1 section two hundred forty-four-c of the domestic relations law or pursu-
2 ant to section four hundred fifty-eight-b of the family court act.
3 2. Upon receipt of an order from the court pursuant to one of the
4 foregoing provisions of law, the secretary of state, if he or she finds
5 such person to be so licensed or registered, shall within thirty days of
6 receipt of such order from the court, provide notice to the licensee or
7 registrant of, and cause the review committee to initiate, a hearing
8 which shall be held at least twenty days and no more than thirty days
9 after the sending of such notice to the licensee or registrant. The
10 hearing shall be held solely for the purpose of determining whether
11 there exists as of the date of the hearing proof that full payment of
12 all arrears of support established by the order of the court to be due
13 from the licensee or registrant have been paid. Proof of such payment
14 shall be a certified check showing full payment of established arrears
15 or a notice issued by the court or by the support collection unit where
16 the order is payable to the support collection unit designated by the
17 appropriate social services district. Such notice shall state that full
18 payment of all arrears of support established by the order of the court
19 to be due have been paid. The licensee or registrant shall be given full
20 opportunity to present such proof of payment at the hearing in person or
21 by counsel. The only issue to be determined by the review committee as a
22 result of the hearing is whether the arrears have been paid. No evidence
23 with respect to the appropriateness of the court order or ability of the
24 respondent party in arrears to comply with such order shall be received
25 or considered during such hearing.
26 3. Notwithstanding any inconsistent provision of this subarticle or of
27 any other provision of law to the contrary, the license or registration
28 of a person subject to the provisions of this article and/or subject to
29 the provisions of title two-A of article two of the public health law
30 shall be suspended if, at the hearing provided for by subdivision two of
31 this section, the licensee or registrant fails to present proof of
32 payment as required by such subdivision. Such suspension shall not be
33 lifted unless the court or the support collection unit, where the court
34 order is payable to the support collection unit designated by the appro-
35 priate social services district, issues notice to the review committee
36 that full payment of all arrears of support established by the order of
37 the court to be due have been paid.
38 4. The secretary of state shall inform the court of all actions taken
39 hereunder as required by law.
40 5. This section applies to support obligations paid pursuant to any
41 order of child support or child and spousal support issued under
42 provisions of section two hundred thirty-six or two hundred forty of the
43 domestic relations law, or article four, five or five-A of the family
44 court act.
45 6. Notwithstanding any inconsistent provision of this subarticle or of
46 any other provision of law to the contrary, the provisions of this
47 section shall apply to the exclusion of any other requirements of this
48 subarticle and to the exclusion of any other requirement of law to the
49 contrary.
50 § 943. Additional definition of professional misconduct; failure to
51 comply in paternity or child support proceedings; limited application.
52 1. The provisions of this section shall apply in all cases of licensee
53 or registrant failure after receiving appropriate notice, to comply with
54 a summons, subpoena or warrant relating to a paternity or child support
55 proceeding referred to the secretary of state by a court pursuant to the
56 requirements of section two hundred forty-four-c of the domestic
S. 1407--A 153 A. 2107--A
1 relations law or pursuant to section four hundred fifty-eight-b or five
2 hundred forty-eight-b of the family court act.
3 2. Upon receipt of an order from the court pursuant to one of the
4 foregoing provisions of law, the secretary of state, if he or she finds
5 such person to be so licensed or registered, shall within thirty days of
6 receipt of such order from the court, provide notice to the licensee or
7 registrant that his or her license or registration shall be suspended in
8 sixty days unless the conditions as set forth in subdivision three of
9 this section are met.
10 3. Notwithstanding any inconsistent provision of this subarticle or of
11 any other provision of law to the contrary, the license or registration
12 of a person subject to the provisions of this article and/or subject to
13 the provisions of title two-A of article two of the public health law
14 shall be suspended unless the court terminates its order to commence
15 suspension proceedings. Such suspension shall not be lifted unless the
16 court issues an order to the secretary of state terminating its order to
17 commence suspension proceedings.
18 4. The secretary of state shall inform the court of all actions taken
19 hereunder as required by law.
20 5. This section applies to paternity or child support proceedings
21 commenced under, and support obligations paid pursuant to any order of
22 child support or child and spousal support issued under provisions of
23 section two hundred thirty-six or two hundred forty of the domestic
24 relations law, or article four, five, five-A or five-B of the family
25 court act.
26 6. Notwithstanding any inconsistent provision of this subarticle or of
27 any other provision of law to the contrary, the provisions of this
28 section shall apply to the exclusion of any other requirements of this
29 subarticle and to the exclusion of any other requirement of law to the
30 contrary.
31 § 944. Proceedings in cases of professional misconduct. In cases of
32 professional misconduct the proceedings shall be as follows:
33 1. Preliminary procedures.
34 a. Complaint. A complaint of a licensee's professional misconduct may
35 be made by any person to the department of state.
36 b. Investigation. The department of state shall investigate each
37 complaint which alleges conduct constituting professional misconduct.
38 The results of the investigation shall be referred to the professional
39 conduct officer designated by the secretary of state pursuant to section
40 nine hundred twenty of this subarticle. If such officer decides that
41 there is not substantial evidence of professional misconduct or that
42 further proceedings are not warranted, no further action shall be taken.
43 If such officer, after consultation with a professional member of the
44 applicable state board for the profession, determines that there is
45 substantial evidence of professional misconduct, and that further
46 proceedings are warranted, such proceedings shall be conducted pursuant
47 to this section. If the complaint involves a question of professional
48 expertise, then such officer may seek, and if so shall obtain, the
49 concurrence of at least two members of a panel of three members of the
50 applicable board. The department of state shall cause a preliminary
51 review of every report made to the department of state pursuant to
52 sections twenty-eight hundred three-e, as added by chapter eight hundred
53 sixty-six of the laws of nineteen hundred eighty, and forty-four hundred
54 five-b of the public health law and three hundred fifteen of the insur-
55 ance law, to determine if such report reasonably appears to reflect
56 conduct warranting further investigation pursuant to this subdivision.
S. 1407--A 154 A. 2107--A
1 c. Charges. In all disciplinary proceedings other than those termi-
2 nated by an administrative warning pursuant to paragraph a of subdivi-
3 sion two of this section, the department of state shall prepare the
4 charges. The charges shall state the alleged professional misconduct and
5 shall state concisely the material facts but not the evidence by which
6 the charges are to be proved.
7 d. Service of charges and of notice of hearing. A copy of the charges
8 and notice of any hearing pursuant to subdivision two or three of this
9 section shall be served on the licensee personally by the department of
10 state at least fifteen days before the hearing. If personal service
11 cannot be made after due diligence and such fact is certified under
12 oath, a copy of the charges and the notice of hearing shall be served by
13 certified mail, return receipt requested to the licensee's last known
14 address by the department of state at least twenty days before the hear-
15 ing.
16 e. Records and reports as public information. In all disciplinary
17 proceedings brought pursuant to this section or in any voluntary settle-
18 ment of a complaint between the licensee and the department of state,
19 the department of state shall notify the licensee in writing that the
20 record and reports of such disciplinary proceeding or of such voluntary
21 settlement shall be considered matters of public information unless
22 specifically excepted in this subarticle, or in any other law or appli-
23 cable rule or regulation.
24 2. Expedited procedures.
25 a. Violations. Violations involving professional misconduct of a minor
26 or technical nature may be resolved by expedited procedures as provided
27 in paragraph b or c of this subdivision. For purposes of this subdivi-
28 sion, violations of a minor or technical nature shall include, but shall
29 not be limited to, isolated instances of violations concerning profes-
30 sional advertising or record keeping, and other isolated violations
31 which do not directly affect or impair the public health, welfare or
32 safety. The initial instance of any violation of a minor or technical
33 nature may be resolved by the issuance of an administrative warning
34 pursuant to paragraph b of this subdivision. Subsequent instances of
35 similar violations of a minor or technical nature within a period of
36 three years may be resolved by the procedure set forth in paragraph c of
37 this subdivision.
38 b. Administrative warning. If a professional conduct officer, after
39 consultation with a professional member of the state board, determines
40 that there is substantial evidence of professional misconduct but that
41 it is an initial violation of a minor or technical nature which would
42 not justify the imposition of a more severe disciplinary penalty, the
43 matter may be terminated by the issuance of an administrative warning.
44 Such warnings shall be confidential and shall not constitute an adjudi-
45 cation of guilt or be used as evidence that the licensee is guilty of
46 the alleged misconduct. However, in the event of a further allegation of
47 similar misconduct by the same licensee, the matter may be reopened and
48 further proceedings instituted as provided in this section.
49 c. Determination of penalty on uncontested minor violations. If a
50 professional conduct officer, after consultation with a professional
51 member of the state board, determines that there is substantial evidence
52 of a violation of a minor or technical nature, and of a nature justify-
53 ing a penalty as specified in this paragraph, the department of state
54 may prepare and serve charges either by personal service or by certified
55 mail, return receipt requested. Such charges shall include a statement
56 that unless an answer is received within twenty days denying the charg-
S. 1407--A 155 A. 2107--A
1 es, the matter shall be referred to a violations committee consisting of
2 five members of the state board for the profession, at least one of whom
3 shall be a public representative for determination. The violations
4 panel shall be appointed by the executive secretary of the state board.
5 The licensee shall be given at least fifteen days notice of the time and
6 place of the meeting of the violations committee and shall have the
7 right to appear in person and by an attorney and to make a statement to
8 the committee in mitigation or explanation of the misconduct. The
9 department of state may appear and make a statement in support of its
10 position. The violations committee may issue a censure and reprimand,
11 and in addition, or in the alternative, may impose a fine not to exceed
12 five hundred dollars for each specification of minor, or technical
13 misconduct. If the fine is not paid within three months the matter may
14 be reopened and shall be subject to the hearing and decision procedures
15 of this section. The determination of the panel shall be final and shall
16 not be subject to the decision procedures of this section. If an answer
17 is filed denying the charges, the matter shall be processed as provided
18 in subdivision three of this section.
19 d. Convictions of crimes or administrative violations. In cases of
20 professional misconduct based solely upon a violation of subdivision
21 five of section nine hundred forty of this title, the professional
22 conduct officer may prepare and serve the charges and may refer the
23 matter directly to a review committee for its review and report of its
24 findings, determination as to guilt, and recommendation as to the meas-
25 ure of discipline to be imposed. In such cases the notice of hearing
26 shall state that the licensee may file a written answer, brief and affi-
27 davits; that the licensee may appear personally before the review
28 committee, may be represented by counsel and may present evidence or
29 sworn testimony on behalf of the licensee, and the notice may contain
30 such other information as may be considered appropriate by the depart-
31 ment of state. The department of state may also present evidence or
32 sworn testimony at the hearing. A stenographic record of the hearing
33 shall be made. Such evidence or sworn testimony offered at the meeting
34 of the review committee shall be limited to evidence and testimony
35 relating to the nature and severity of the penalty to be imposed upon
36 the licensee. The presiding officer at the meeting of the review commit-
37 tee may, in his or her discretion, reasonably limit the number of
38 witnesses whose testimony will be received and the length of time any
39 witness will be permitted to testify. In lieu of referring the matter to
40 the secretary of state, the review committee may refer any such matter
41 for further proceedings pursuant to paragraph b or c of this subdivision
42 or subdivision three of this section.
43 3. Adversary proceedings. Contested disciplinary proceedings and other
44 disciplinary proceedings not resolved pursuant to subdivision two of
45 this section shall be tried before a hearing panel of the appropriate
46 state board as provided in this subdivision.
47 a. Notice of hearing. The department of state shall set the time and
48 place of the hearing and shall prepare the notice of hearing. The notice
49 of hearing shall state (1) the time and place of the hearing, (2) that
50 the licensee may file a written answer to the charges prior to the hear-
51 ing, (3) that the licensee may appear personally at the hearing and may
52 be represented by counsel, (4) that the licensee shall have the right to
53 produce witnesses and evidence in his or her behalf, to cross-examine
54 witnesses and examine evidence produced against him or her, and to issue
55 subpoenas in accordance with the provisions of the civil practice law
56 and rules, (5) that a stenographic record of the hearing will be made,
S. 1407--A 156 A. 2107--A
1 and (6) such other information as may be considered appropriate by the
2 department of state.
3 b. Hearing panel. The hearing shall be conducted by a panel of three
4 or more members, at least two of whom shall be members of the applicable
5 state board for the profession, and at least one of whom shall be a
6 public representative who is a member of the applicable state board or
7 of the state board for another profession licensed pursuant to this
8 article. The executive secretary for the applicable state board shall
9 appoint the panel and shall designate its chairperson. After the
10 commencement of a hearing, no panel member shall be replaced. A determi-
11 nation by the administrative officer of a need to disqualify or remove
12 any panel member will result in the disqualification or removal of the
13 panel and cause a new panel to be appointed. In addition to said panel
14 members, the department of state shall designate an administrative offi-
15 cer, admitted to practice as an attorney in the state of New York, who
16 shall have the authority to rule on all motions, procedures and other
17 legal objections and shall draft a report for the hearing panel which
18 shall be subject to the approval of and signature by the panel chair-
19 person on behalf of the panel. The administrative officer shall not be
20 entitled to a vote.
21 c. Conduct of hearing. The evidence in support of the charges shall be
22 presented by an attorney for the department of state. The licensee
23 shall have the rights required to be stated in the notice of hearing.
24 The panel shall not be bound by the rules of evidence, but its determi-
25 nation of guilt shall be based on a preponderance of the evidence. A
26 hearing which has been initiated shall not be discontinued because of
27 the death or incapacity to serve of one member of the hearing panel.
28 d. Results of hearing. The hearing panel shall render a written report
29 which shall include (1) findings of fact, (2) a determination of guilty
30 or not guilty on each charge, and (3) in the event of a determination of
31 guilty, a recommendation of the penalty to be imposed. For the panel to
32 make a determination of guilty, a minimum of two of the voting members
33 of the panel must vote for such a determination. A copy of the report of
34 the hearing panel shall be transmitted to the licensee.
35 4. Decision procedures.
36 a. Review committee. The transcript and report of the hearing panel
37 shall be reviewed at a meeting by a review committee appointed by the
38 secretary of state. The review committee shall consist of three members.
39 b. Review committee meetings. The review shall be based on the tran-
40 script and the report of the hearing panel. The licensee may appear at
41 the meeting, and the review committee may require the licensee to
42 appear. The licensee may be represented by counsel. The department of
43 state shall notify the licensee at least seven days before the meeting
44 (1) of the time and place of the meeting, (2) of his or her right to
45 appear, (3) of his or her right to be represented by counsel, (4) wheth-
46 er or not he or she is required to appear, and (5) of such other infor-
47 mation as may be considered appropriate. After the meeting, the review
48 committee shall transmit a written report of its review to the secretary
49 of state. In cases referred directly to the review committee pursuant
50 to paragraph d of subdivision two of this section, the review shall be
51 based upon the charges, the documentary evidence submitted by the
52 department of state, any answer, affidavits or brief the licensee may
53 wish to submit, and any evidence or sworn testimony presented by the
54 licensee or the department of state at the hearing, pursuant to the
55 procedures described by paragraph d of subdivision two of this section.
S. 1407--A 157 A. 2107--A
1 c. Decision and order. The department of state (1) shall consider the
2 transcript, the report of the hearing panel, and the report of the
3 review committee, (2) shall decide whether the licensee is guilty or not
4 guilty on each charge, (3) shall decide what penalties, if any, to
5 impose as prescribed in section nine hundred forty-eight of this title,
6 and (4) shall issue an order to carry out its decisions. Such decisions
7 shall require the approval of the secretary of state. If the secretary
8 of state disagrees with the hearing panel's determination of not guilty,
9 it shall remand the matter to the original panel for reconsideration or
10 to a new panel for a new hearing. The panel's determination of not guil-
11 ty on reconsideration or a new hearing shall be final. The order shall
12 be served upon the licensee personally or by certified mail to the
13 licensee's last known address and such service shall be effective as of
14 the date of the personal service or five days after mailing by certified
15 mail. The licensee shall deliver to the department of state the license
16 and registration certificate which has been revoked, annulled,
17 suspended, or surrendered within five days after the effective date of
18 the service of the order. If the license or registration certificate is
19 lost, misplaced or its whereabouts is otherwise unknown, the licensee
20 shall submit an affidavit to that effect, and shall deliver such license
21 or certificate to the department of state when located.
22 5. Court review procedures. The decisions of the secretary of state
23 may be reviewed pursuant to the proceedings under article seventy-eight
24 of the civil practice law and rules. Such proceedings shall be return-
25 able before the appellate division of the third judicial department, and
26 such decisions shall not be stayed or enjoined except upon application
27 to such appellate division after notice to the department of state and
28 to the attorney general and upon a showing that the petitioner has a
29 substantial likelihood of success.
30 6. The provisions of subdivisions one through four of this section
31 shall not be applicable to proceedings in cases of professional miscon-
32 duct involving the medical profession, except as provided in paragraph
33 (m) of subdivision ten of section two hundred thirty of the public
34 health law.
35 7. Notwithstanding any other provision of law, persons who assist the
36 department of state as consultants or expert witnesses in the investi-
37 gation or prosecution of alleged professional misconduct, licensure
38 matters, restoration proceedings, or criminal prosecutions for unauthor-
39 ized practice, shall not be liable for damages in any civil action or
40 proceeding as a result of such assistance, except upon proof of actual
41 malice. The attorney general shall defend such persons in any such
42 action or proceeding, in accordance with section seventeen of the public
43 officers law.
44 8. The files of the department of state relating to the investigation
45 of possible instances of professional misconduct, or the unlawful prac-
46 tice of any profession licensed by the department of state, or the
47 unlawful use of a professional title or the moral fitness of an appli-
48 cant for a professional license or permit, shall be confidential and not
49 be subject to disclosure at the request of any person, except upon the
50 order of a court in a pending action or proceeding. The provisions of
51 this subdivision shall not apply to documents introduced in evidence at
52 a hearing held pursuant to this article and shall not prevent the
53 department of state from sharing information concerning investigations
54 with other duly authorized public agencies responsible for professional
55 regulation or criminal prosecution.
S. 1407--A 158 A. 2107--A
1 § 945. Temporary surrender of licenses during treatment for drug or
2 alcohol abuse. 1. The license and registration of a licensee who may be
3 temporarily incapacitated for the active practice of a profession
4 licensed pursuant to this article, except professionals licensed pursu-
5 ant to subarticle two or subarticle two-B thereof, and whose alleged
6 incapacity is the result of a problem of drug or alcohol abuse which has
7 not resulted in harm to a patient or client, may be voluntarily surren-
8 dered to the department of state, which may accept and hold such license
9 during the period of such alleged incapacity or the department of state
10 may accept the surrender of such license after agreement to conditions
11 to be met prior to the restoration of the license. The department of
12 state shall give written notification of such surrender to the licensing
13 authorities of any other state or country in which the licensee is
14 authorized to practice. In addition to the foregoing, the department of
15 state shall also give written notification of such surrender, for
16 professionals licensed pursuant to subarticles three, four, five, seven,
17 eight and ten of this article to the commissioner of health or his or
18 her designee, and where appropriate to each hospital at which the
19 professional has privileges, is affiliated, or is employed. The licensee
20 whose license is so surrendered shall notify all persons who request
21 professional services that he or she has temporarily withdrawn from the
22 practice of the profession. The department of state may provide for
23 similar notification of patients or clients and of other interested
24 parties, as appropriate under the circumstances of the professional
25 practice and responsibilities of the licensee. The licensure status of
26 such licensee shall be "inactive" and he or she shall not be authorized
27 to practice the profession and shall refrain from practice in this state
28 or in any other state or country. The voluntary surrender shall not be
29 deemed to be an admission of disability or of professional misconduct,
30 and shall not be used as evidence of a violation of subdivision three or
31 four of section nine hundred forty of this title, unless the licensee
32 practices while the license is "inactive"; and any such practice shall
33 constitute a violation of subdivision eight of said section. The surren-
34 der of a license under this subdivision shall not bar any disciplinary
35 action except action based solely upon the provisions of subdivision
36 three or four of section nine hundred forty of this title, and only if
37 no harm to a patient has resulted; and shall not bar any civil or crimi-
38 nal action or proceeding which might be brought without regard to such
39 surrender. A surrendered license shall be restored upon a showing to the
40 satisfaction of the department of state that the licensee is not inca-
41 pacitated for the active practice of the profession, provided that the
42 department of state may, by order of the secretary of state, impose
43 reasonable conditions on the licensee, if it determines that because of
44 the nature and extent of the licensee's former incapacity, such condi-
45 tions are necessary to protect the health, safety and welfare of the
46 public. Prompt written notification of such restoration shall be given
47 to all licensing bodies which were notified of the temporary surrender
48 of the license.
49 2. There shall be appointed within the department of state, a commit-
50 tee on drug and alcohol abuse, which shall advise the secretary of state
51 on matters relating to practice by professional licensees with drug or
52 alcohol abuse problems, and which shall administer the provisions of
53 this section. The secretary of state shall determine the size, composi-
54 tion, and terms of office of such committee, a majority of the members
55 of which shall be persons with expertise in problems of drug or alcohol
56 abuse. The committee shall recommend to the secretary of state such
S. 1407--A 159 A. 2107--A
1 rules as are necessary to carry out the purposes of this section,
2 including but not limited to procedures for the submission of applica-
3 tions for the surrender of a license and for the referral of cases for
4 investigation or prosecution pursuant to section nine hundred forty-four
5 of this title if a licensee fails to comply with the conditions of an
6 approved program of treatment. There shall be an executive secretary
7 appointed by the secretary of state to assist the committee. The execu-
8 tive secretary shall employ, or otherwise retain, the services of a
9 registered professional nurse with appropriate qualifications in
10 substance abuse and addiction to assist in the implementation of the
11 program authorized by section nine hundred forty-six of this title.
12 Determinations by the committee relating to licensees shall be made by
13 panels of at least three members of the committee designated by the
14 executive secretary, who shall also designate a member of the state
15 board for the licensee's profession as the ex-officio non voting member
16 of each panel. In the case of a determination relating to a licensed
17 nurse, at least one panel member must be a registered professional nurse
18 licensed by the state.
19 3. Application for the surrender of a license pursuant to this section
20 shall be submitted to the committee, and shall identify a proposed
21 treatment or rehabilitation program, and shall include a consent to the
22 release of all information concerning the licensee's treatment to the
23 committee. All information concerning an application, other than the
24 fact of the surrender of the license and the participation in the
25 program and the successful completion or failure of or withdrawal from
26 the program, shall be strictly confidential, and may not be released by
27 the committee to any person or body without the consent of the licensee.
28 The immunity from disciplinary action conferred by this section shall be
29 conditioned upon the approval of the treatment or rehabilitation program
30 by the committee and its successful completion by the applicant and the
31 elimination of the incapacity to practice. Approval of a treatment or
32 rehabilitation program by the committee shall not constitute a represen-
33 tation as to the probability of success of the program or any assumption
34 of financial responsibility for its costs.
35 4. The immunity from disciplinary action conferred by this section may
36 be revoked by the committee upon a finding that the licensee has failed
37 to successfully complete the program or that the incapacity to practice
38 has not been eliminated. Such revocation shall be made only after notice
39 and an opportunity to be heard, but no adjudicatory hearing shall be
40 required. The matter shall be referred for appropriate proceedings
41 pursuant to section nine hundred forty-four of this title. The license
42 must be returned unless charges are served pursuant to section nine
43 hundred forty-four of this title within thirty days after the revocation
44 of the approval of the special treatment afforded by this section.
45 5. The secretary of state is authorized to adopt regulations to carry
46 out the purposes of this section, including but not limited to the
47 notice of temporary inactive status to be required in different
48 professions and practice situations and the measures required upon
49 temporary withdrawal from practice.
50 6. No individual who serves as a member of a committee whose purpose
51 is to confront and refer either to treatment or to the department of
52 state licensees who are thought to be suffering from alcoholism or drug
53 abuse shall be liable for damages to any person for any action taken by
54 such individual provided such action was taken without malice and within
55 the scope of such individual's function as a member of such committee,
56 and provided further that such committee has been established by and
S. 1407--A 160 A. 2107--A
1 functions under the auspices of an association or society of profes-
2 sionals authorized to practice under this article.
3 7. In addition to the provisions of section two thousand eight hundred
4 three-e of the public health law, as added by chapter eight hundred
5 sixty-six of the laws of nineteen hundred eighty, any entity licensed
6 pursuant to articles thirty-six, forty and forty-four of the public
7 health law, and any mental hygiene facilities, and correctional, occupa-
8 tional, school and college health services shall provide a report to the
9 office of professional discipline when there is a suspension,
10 restriction, termination, curtailment or resignation of employment or
11 privileges in any way related to a licensed nurse that is impaired when
12 the impairment is alleged to have been caused by a drug-related problem.
13 Any person, facility, or corporation which makes a report pursuant to
14 this section in good faith shall have immunity from any liability, civil
15 or criminal, for having made such a report except where the conduct
16 constitutes negligence, gross negligence or intentional misconduct. For
17 the purpose of any proceeding, civil or criminal, the good faith of any
18 person, facility or corporation required to make a report shall be
19 presumed. Such presumption may be rebutted by any competent evidence.
20 § 946. Nurse peer assistance programs. 1. As used in this section:
21 a. "Drug-related problem" means a problem or problems that are related
22 to the use, misuse or addiction to drugs or alcohol.
23 b. "Participant" means an individual licensed pursuant to subarticle
24 eight of this article who has or may have a drug-related problem.
25 c. "Approved nurse peer assistance program" means a program operated
26 by the New York State Nurses Association or a statewide professional
27 association of nurses which has experience in providing peer assistance
28 services to nurses who have drug-related problems which are designed to
29 help a participant or a licensee's employer and has been approved by the
30 department of state in accordance with criteria established in regu-
31 lations of the secretary of state.
32 d. "Peer assistance services" includes assessing the needs of a
33 participant, including early identification of drug-related problems,
34 and providing information, support, and advice as requested by a partic-
35 ipant.
36 2. a. The department of state shall provide funds, including but not
37 limited to a portion of the funds made available pursuant to the
38 provisions of this section, for services provided by an approved nurse
39 peer assistance program. Funds used to provide services shall not be
40 used for the treatment of participants. Funded services shall include,
41 but not be limited to:
42 (1) providing peer assistance services for nurses with drug-related
43 problems;
44 (2) maintaining a toll-free telephone information line for anonymous
45 nurses, their employers, and others to provide assistance in the iden-
46 tification of services and information for nurses dealing with drug-re-
47 lated problems;
48 (3) training monitors for the professional assistance program;
49 (4) arranging for mental health consultants to assess nurses for the
50 professional assistance program, as needed; and
51 (5) preparing written assessments of nurses who have been referred
52 from the professional assistance program.
53 b. An additional fee of fifteen dollars shall be paid at the time of
54 application for licensure and first registration and every registration
55 by those licensed pursuant to subarticle eight of this article for the
56 purpose of implementing this program. The funds made available under
S. 1407--A 161 A. 2107--A
1 this provision shall be deposited in the office of professions special
2 revenue account for its purposes in implementing this section. The
3 department of state may use a portion of this amount for its administra-
4 tive expenses incurred in implementing this program including, but not
5 limited to, employment of personnel, the costs of approving and
6 contracting with a peer assistance program as required by this section
7 and outreach activities to promote this program.
8 3. No approved nurse peer assistance program or individual who serves
9 in an approved nurse peer assistance program shall be liable in damages
10 to any person for any action taken or not taken or recommendations made
11 unless, based on the facts disclosed by a participant, the conduct of
12 the program or person with respect to the person asserting liability
13 constituted negligence, gross negligence, or intentional misconduct.
14 4. All information concerning a participant gathered by the approved
15 nurse peer assistance program shall be strictly confidential and may not
16 be released to any person or body without the consent of the partic-
17 ipant, except upon the order of a court in a pending action or proceed-
18 ing. Aggregate data may be released to the committee on drug and alcohol
19 abuse.
20 § 947. Voluntary non-disciplinary surrender of a license. A profes-
21 sional who is licensed pursuant to subarticle eight of this article may
22 voluntarily surrender a license to the committee on drug and alcohol
23 abuse when such licensee requests to be monitored and/or receive peer
24 support services in relation to the use, misuse or addiction to drugs.
25 The committee shall accept such voluntary non-disciplinary surrender of
26 a license and provide for expedited reinstatement of the license if the
27 licensee meets criteria set by the committee. Such criteria will
28 include, but not be limited to, confidence that the licensee's use of
29 drugs and/or alcohol has not resulted in harm to a patient or client and
30 the licensee is not incapacitated, unfit for practice or a threat to the
31 health, safety and welfare of the public. Such voluntary surrender, if
32 accepted by the committee, shall result in an immediate reinstatement of
33 the license and shall provide immunity from a violation of subdivision
34 three or four of section nine hundred forty of this title and cannot be
35 deemed an admission or used as evidence in professional misconduct.
36 Acceptance by the committee shall not require a report to the department
37 of health or to any employer or licensing authority of another jurisdic-
38 tion, nor require any disclosure to patients or to the public that such
39 license has been temporarily surrendered, except if it is subsequently
40 determined by the department of state that a participant being monitored
41 by the department of state is found to have used drugs and/or alcohol
42 which has resulted in harm to a patient or client.
43 § 948. Penalties for professional misconduct. The penalties which may
44 be imposed by the secretary of state on a present or former licensee
45 found guilty of professional misconduct (under the definitions and
46 proceedings prescribed in sections nine hundred forty and nine hundred
47 forty-four of this title) are: (1) censure and reprimand, (2) suspension
48 of license, (a) wholly, for a fixed period of time; (b) partially, until
49 the licensee successfully completes a course of retraining in the area
50 to which the suspension applies; (c) wholly, until the licensee success-
51 fully completes a course of therapy or treatment prescribed by the
52 secretary of state, (3) revocation of license, (4) annulment of license
53 or registration, (5) limitation on registration or issuance of any
54 further license, (6) a fine not to exceed ten thousand dollars, upon
55 each specification of charges of which the respondent is determined to
56 be guilty, (7) a requirement that a licensee pursue a course of educa-
S. 1407--A 162 A. 2107--A
1 tion or training, and (8) a requirement that a licensee perform up to
2 one hundred hours of public service, in a manner and at a time and place
3 as directed by the secretary of state. The secretary of state may stay
4 such penalties in whole or in part, may place the licensee on probation
5 and may restore a license which has been revoked, provided, in the case
6 of licensees subject to section two hundred thirty of the public health
7 law, notice that the secretary of state is considering such restoration
8 is given to the office of professional medical conduct at least thirty
9 days before the date on which such restoration shall be considered. Upon
10 the recommendation of the office of professional medical conduct, the
11 secretary of state may deny such restoration. Any fine imposed pursuant
12 to this section or pursuant to subdivision two of section nine hundred
13 forty-four of this title may be sued for and recovered in the name of
14 the people of the state of New York in an action brought by the attorney
15 general. In such action the findings and determination of the secretary
16 of state or of the violations committee shall be admissible evidence and
17 shall be conclusive proof of the violation and the penalty assessed.
18 TITLE D
19 UNAUTHORIZED ACTS.
20 § 960. Unauthorized practice a crime. 1. Anyone not authorized to
21 practice under this article who practices or offers to practice or holds
22 himself or herself out as being able to practice in any profession in
23 which a license is a prerequisite to the practice of the acts, or who
24 practices any profession as an exempt person during the time when his or
25 her professional license is suspended, revoked or annulled, or who aids
26 or abets an unlicensed person to practice a profession, or who fraudu-
27 lently sells, files, furnishes, obtains, or who attempts fraudulently to
28 sell, file, furnish or obtain any diploma, license, record or permit
29 purporting to authorize the practice of a profession, shall be guilty of
30 a class E felony.
31 2. Anyone who knowingly aids or abets three or more unlicensed persons
32 to practice a profession or employs or holds such unlicensed persons out
33 as being able to practice in any profession in which a license is a
34 prerequisite to the practice of the acts, or who knowingly aids or abets
35 three or more persons to practice any profession as exempt persons
36 during the time when the professional licenses of such persons are
37 suspended, revoked or annulled, shall be guilty of a class E felony.
38 § 961. Unauthorized use of a professional title a crime. 1. Anyone
39 not authorized to use a professional title regulated by this article,
40 and who uses such professional title, shall be guilty of a class A
41 misdemeanor.
42 2. Anyone who knowingly aids or abets three or more persons not
43 authorized to use a professional title regulated by this article, to use
44 such professional title, or knowingly employs three or more persons not
45 authorized to use a professional title regulated by this article, who
46 use such professional title in the course of such employment, shall be
47 guilty of a class E felony.
48 § 961-a. Penalties. As used in this section, "utilization committee"
49 means:
50 (a) a committee established to administer a utilization review plan of
51 a hospital or extended care facility as provided and required in the
52 "Health Insurance for the Aged Act", 79 Stat. 313 (1965), 42 U.S.C.
53 1395x(k);
54 (b) a committee of a medical staff in a hospital having the responsi-
55 bility of evaluation and improvement of the quality of care rendered in
56 the hospital; and
S. 1407--A 163 A. 2107--A
1 (c) any medical review committee or subcommittee thereof of a local,
2 county or state medical or dental society and any such society itself
3 when such committee, subcommittee or society is performing any medical
4 review function described in subdivisions (a) and (b) of this section or
5 involving any controversy or dispute between (i) a physician or dentist
6 and a patient concerning the diagnosis, treatment or care of such
7 patient or the fees or charges therefor or (ii) a physician or dentist
8 and a provider of medical or dental benefits concerning any medical or
9 health charges or fees of such physician or dentist.
10 No physician or dentist who serves as a member of such utilization
11 committee shall be liable in damages to any person for any action taken
12 or recommendation made by him or her within the scope of his function as
13 such member of such committee if such action was taken or such recommen-
14 dation was made without malice and in the reasonable belief that such
15 action or recommendation is warranted by the facts known to him or her
16 after reasonable effort by him or her to ascertain the facts upon which
17 such action is taken or such recommendation is made.
18 Neither the proceedings nor the records of any such committee shall be
19 subject to disclosure under article thirty-one of the civil practice law
20 and rules except as hereinafter provided or as provided by any other
21 provision of law. No person in attendance at a meeting of any such
22 committee shall be required to testify as to what transpired thereat.
23 The prohibition relating to discovery of testimony shall not apply to
24 the statements made by any person in attendance at such a meeting who is
25 a party to an action or proceeding the subject matter of which was
26 reviewed at such meeting.
27 § 962. Criminal proceedings. 1. All alleged violations of sections
28 nine hundred sixty or nine hundred sixty-one of this title shall be
29 reported to the department or state which shall cause an investigation
30 to be instituted. All alleged violations of section one thousand
31 fifty-one of this article shall be reported to the department of health
32 which shall cause an investigation to be instituted. If the investi-
33 gation substantiates that violations exist, such violations shall be
34 reported to the attorney general with a request for prosecution.
35 2. The attorney general shall prosecute such alleged offenses in the
36 name of the state, provided, however, in the event of alleged violations
37 of subarticle twenty of this article, a district attorney may prosecute
38 such alleged offenses in the name of the state provided, however, that
39 any district attorney may prosecute such offenses where they are inci-
40 dental to a criminal prosecution instituted by him or her under other
41 statutes.
42 3. All criminal courts having jurisdiction over misdemeanors are here-
43 by empowered to hear, try and determine alleged violations under this
44 article, which constitute misdemeanors, without indictment and to impose
45 applicable punishment of fines or imprisonments or both. It shall be
46 necessary to prove in any prosecution under this article only a single
47 prohibited act or a single holding out without proving a general course
48 of conduct.
49 4. A proceeding before a committee on professional conduct shall not
50 be deemed to be a criminal proceeding within the meaning of this
51 section.
52 § 963. Restraint of unlawful acts. Where a violation of this article
53 is alleged to have occurred, the attorney general or, in the event of
54 alleged violations of subarticle twenty of this article occurring in
55 cities having a population of one million or more, the corporation coun-
56 sel may apply to the supreme court within the judicial district in which
S. 1407--A 164 A. 2107--A
1 such violation is alleged to have occurred for an order enjoining or
2 restraining commission or continuance of the unlawful acts complained
3 of. The court shall have jurisdiction of the proceedings and shall have
4 power to grant such temporary relief or restraining order as it deems
5 just and proper. In any such proceeding it shall be unnecessary to
6 allege or prove that an adequate remedy at law does not exist or that
7 irreparable damage would result if such order were not granted. The
8 remedy provided in this section shall be in addition to any other remedy
9 provided by law or to the proceedings commenced against a licensee under
10 this article.
50 SUBARTICLE 16
51 PUBLIC ACCOUNTANCY
52 Section 1800. Introduction.
53 1801. Definition of practice of public accountancy.
S. 1407--A 271 A. 2107--A
1 1802. Practice of public accountancy and use of title "certified
2 public accountant" or "public accountant".
3 1803. State board for public accountancy.
4 1804. Requirements for a license as a certified public account-
5 ant.
6 1805. Requirements for a license as a public accountant.
7 1806. Limited permits.
8 1807. Exempt persons.
9 1808. Special provisions.
10 1809. Mandatory continuing education.
11 § 1800. Introduction. This subarticle applies to the profession of
12 public accountancy. The general provisions for all professions contained
13 in subarticle one of this article apply to this subarticle.
14 § 1801. Definition of practice of public accountancy. The practice of
15 the profession of public accountancy is defined as holding one's self
16 out to the public, in consideration of compensation received or to be
17 received, offering to perform or performing for other persons, services
18 which involve signing, delivering or issuing or causing to be signed,
19 delivered or issued any financial, accounting or related statement or
20 any opinion on, report on, or certificate to such statement if, by
21 reason of the signature, or the stationery or wording employed, or
22 otherwise, it is indicated or implied that the practitioner has acted or
23 is acting, in relation to said financial, accounting or related state-
24 ment, or reporting as an independent accountant or auditor or as an
25 individual having or purporting to have expert knowledge in accounting
26 or auditing.
27 § 1802. Practice of public accountancy and use of title "certified
28 public accountant" or "public accountant". Only a person licensed or
29 otherwise authorized to practice under this subarticle shall practice
30 public accountancy and use the title "certified public accountant" or
31 the designation "C.P.A." or "public accountant" or any other derivative
32 or designation provided in section eighteen hundred eight of this subar-
33 ticle.
34 § 1803. State board for public accountancy. 1. A state board for
35 public accountancy shall be appointed by the secretary of state for the
36 purpose of assisting the secretary of state and the department of state
37 on matters of professional licensing and professional conduct in accord-
38 ance with section nine hundred twenty-two of this article. The board
39 shall be composed of not less than twenty licensed accountants, not less
40 than fifteen of whom shall be licensed as certified public accountants
41 in this state, and the board should be kept in such proportion if it is
42 ever increased. An executive secretary to the board shall be appointed
43 by the secretary of state and shall be a certified public accountant
44 licensed in this state.
45 2. For purposes of this subarticle, "board" means the state board for
46 public accounting.
47 § 1804. Requirements for a license as a certified public accountant.
48 1. To qualify for a license as a certified public accountant, an appli-
49 cant shall fulfill the following requirements:
50 (1) Application: file an application with the department of state;
51 (2) Education: have received an education, including a bachelor's or
52 higher degree based on a program in accountancy, in accordance with the
53 regulations of the secretary of state;
54 (3) Experience: have experience satisfactory to the board and in
55 accordance with the regulations of the secretary of state;
S. 1407--A 272 A. 2107--A
1 (4) Examination: pass a written examination satisfactory to the board
2 and in accordance with the regulations of the secretary of state and the
3 requirement with respect to such examination may not be waived;
4 (5) Age: be at least twenty-one years of age;
5 (6) Citizenship: meet no requirements as to United States citizenship;
6 (7) Character: be of good moral character as determined by the depart-
7 ment of state; and
8 (8) Fees: pay a fee of two hundred twenty dollars to the department of
9 state for admission to a department conducted examination and for an
10 initial license, a fee of one hundred fifteen dollars for each reexam-
11 ination, a fee of one hundred thirty-five dollars for an initial license
12 for persons not requiring admission to a department conducted examina-
13 tion, and a fee of two hundred ten dollars for each triennial registra-
14 tion period.
15 2. In lieu of professional requirements specified in paragraphs two
16 and three of subdivision one of this section, fifteen years in the prac-
17 tice of public accountancy satisfactory to the board may be accepted by
18 the department of state.
19 § 1805. Requirements for a license as a public accountant. To qualify
20 for a license as a public accountant, an applicant shall fulfill the
21 following requirements:
22 (1) Application: file an application with the department of state;
23 (2) Declaration of intention: a. Have filed a declaration of intention
24 to practice as a public accountant with the department of state on or
25 before October first, nineteen hundred fifty-nine, on the basis of
26 evidence that the applicant was engaged for a total of six years during
27 the ten years immediately preceding April twenty-third, nineteen hundred
28 fifty-nine, in the practice of public accountancy as an individual prac-
29 titioner or as a partner of a partnership or as an employee of such an
30 individual practitioner or partnership engaged in the practice of public
31 accountancy or as an employee of a department, agency or instrumentality
32 of the United States, the state, or a political subdivision of the state
33 in which employment his duties entailed the performance of all or some
34 of the services which would constitute the practice of public accountan-
35 cy, or a combination of the foregoing duties, or in the opinion of the
36 board the equivalent thereof;
37 b. Establish by evidence satisfactory to the board that at the date of
38 the filing of said declaration of intention, the applicant had complied
39 with the conditions established by law on April twenty-third, nineteen
40 hundred fifty-nine, has not violated the provisions relating to practice
41 in public accountancy, and is about to engage in the practice of public
42 accountancy as his principal occupation as an individual practitioner or
43 as a partner of a partnership;
44 (3) Character: be of good moral character as determined by the depart-
45 ment of state; and
46 (4) Fees: pay a fee to the department of state for an initial license
47 of two hundred twenty dollars, and a fee of two hundred ten dollars for
48 each triennial registration period.
49 § 1806. Limited permits. 1. On recommendation of the board, the
50 department of state may issue a limited permit to an applicant of good
51 moral character who is the holder of a certificate, license or degree in
52 a foreign country constituting a recognized qualification for the
53 performance in such country of the acts set forth in section eighteen
54 hundred one of this subarticle, provided the applicant has professional
55 qualifications satisfactory to the board, the applicant resides or has a
56 place for the regular transaction of business within the state, and
S. 1407--A 273 A. 2107--A
1 equal recognition is granted by the foreign country concerned to certi-
2 fied public accountants and public accountants licensed in this state.
3 Such limited permit shall be valid for a period of two years and may be
4 renewed on recommendation of the board. Such permit shall authorize the
5 applicant to use only the title or designation under which he or she is
6 generally known in his or her own country, followed by the name of the
7 country from which he or she received his or her certificate, license or
8 degree, notwithstanding the provisions of subdivision two of section
9 eighteen hundred eight of this subarticle.
10 2. Fees. The fee for each limited permit and each renewal shall be one
11 hundred five dollars.
12 § 1807. Exempt persons. Nothing contained in this subarticle shall be
13 construed to prohibit:
14 a. Any person who is an officer of a corporation or partner of a part-
15 nership or sole proprietor of a business enterprise or a member of a
16 joint venture or member of a committee appointed by stockholders, credi-
17 tors, courts, trustees, executors or administrators, or an employee of
18 any of the foregoing, in his or her capacity as such, from signing,
19 delivering, or issuing any financial, accounting or related statement or
20 report thereon, relating to said corporation, partnership, business
21 venture, joint venture, committee, trust or estate, provided, however,
22 that in so doing such person does not hold himself or herself out to be
23 a certified public accountant or public accountant;
24 b. An attorney-at-law or partnership of attorneys-at-law from signing
25 a financial, accounting or related statement or report thereon, prepared
26 by him or her or them as incidental to the practice of law;
27 c. Any individual from serving as an employee of a certified public
28 accountant, public accountant or partnership licensed under this subar-
29 ticle;
30 d. Any individual, not engaged in practice as a certified public
31 accountant or public accountant within the state, from performing
32 services within the state which are incidental to the practice conducted
33 by him or her outside the state;
34 e. Any official or employee of a governmental unit, agency or instru-
35 mentality in the performance of his or her official duties from signing,
36 delivering or issuing any financial, accounting, or related statement or
37 report thereon relating to said unit, agency or instrumentality; or
38 f. A corporation chartered in the state of New York to engage in the
39 practice of public accountancy and so engaged as its principal activity
40 on and before the first day of July, nineteen hundred fifty-nine, from
41 continuing in such practice as long as its corporate acts comply with
42 the board rules, provided all employees of such corporation performing
43 any acts constituting the practice of public accountancy as defined
44 herein and who are not certified public accountants or public account-
45 ants licensed under this subarticle shall in the performance of such
46 acts be under the supervision of certified public accountants or public
47 accountants licensed in this state.
48 § 1808. Special provisions. 1. Nothing contained in this subarticle
49 shall be deemed to prohibit two or more certified public accountants or
50 two or more public accountants, or any combination thereof, from forming
51 a partnership; provided, however, that no partnership shall use the
52 words "certified public accountants" or the letters "C.P.A.'s" in
53 connection with its name unless each partner of such partnership, resi-
54 dent or engaged within the United States in practice is in good standing
55 as a certified public accountant of one or more of the states or poli-
56 tical subdivisions of the United States, and each partner thereof resi-
S. 1407--A 274 A. 2107--A
1 dent or engaged in practice within the state is licensed under this
2 subarticle.
3 a. A registration shall be issued to a partnership upon payment of the
4 fee prescribed by the secretary of state upon application showing that:
5 (1) At least one partner of such partnership is licensed under this
6 subarticle and his or her license to practice is not currently
7 suspended, annulled or revoked in any jurisdiction and he or she is
8 regularly engaged in practice on behalf of the partnership within the
9 state;
10 (2) The partnership consists of at least two present members; and
11 (3) The partnership contains at least as many present partners as the
12 total number of names in the firm name, or, where the word "company" or
13 abbreviation "co." is used, the number of present partners shall be
14 greater than the number of names in the firm name.
15 b. Such registration may be revoked after a hearing conducted in
16 accordance with the provisions of section nine hundred forty-four of
17 this article upon proof:
18 (1) That the registration was obtained by either misrepresentation or
19 suppression of any material fact;
20 (2) That the license or authorization to practice of any partner is
21 suspended, annulled or revoked in any jurisdiction;
22 (3) That any partner in such a partnership is or has been engaged in
23 the practice of public accountancy in this state who is not licensed in
24 this state; or
25 (4) That the partnership failed to file the written notification
26 required pursuant to paragraph d of this subdivision of this section.
27 c. Personal service on any general partner of a notice of hearing to
28 revoke a partnership registered hereunder shall be deemed service on the
29 partnership.
30 d. A partnership registered to practice pursuant to this section shall
31 file with the department of state on or before July first of each year
32 written notification of:
33 (1) Any admission of a partner,
34 (2) Any retirement or death of a partner,
35 (3) Any termination of partnership, or
36 (4) Any occurrence of any event or events which would eliminate as to
37 such partnership conformity with the applicable requirements of this
38 section.
39 e. Partnerships shall register triennially and pay a fee of fifty
40 dollars.
41 2. Any person shall be guilty of a class A misdemeanor who shall use,
42 in connection with the practice of public accountancy, or in any manner
43 tending to imply that he is an independent accountant or auditor, the
44 designations "chartered accountant", "certified accountant", "expert
45 accountant", "certified tax accountant", "tax accountant", "enrolled
46 accountant", "enrolled public accountant", "registered accountant",
47 "licensed accountant", "incorporated accountant", "registered public
48 accountant", "licensed public accountant", or any abbreviation thereof,
49 or the letters "C.A.", "E.A.", "C.T.A.", "T.A.", "E.P.A.", "R.A.",
50 "L.A.", "I.A.", "P.A.", "R.P.A.", or, "L.P.A.", except as provided else-
51 where in this subarticle, or any other designation tending to imply that
52 he or she has expert knowledge in accounting or auditing.
53 § 1809. Mandatory continuing education. 1. (a) Each licensed certified
54 public accountant and public accountant required under subarticle one of
55 this article to register triennially with the department of state to
56 practice in the state shall comply with the provisions of the mandatory
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1 continuing education requirements except as set forth in paragraphs (b)
2 and (c) of this subdivision. Certified public accountants and public
3 accountants who do not satisfy the mandatory continuing education
4 requirements shall not practice until they have met such requirements,
5 they have paid all applicable fees, and they have been issued a regis-
6 tration or conditional registration certificate.
7 (b) Certified public accountants and public accountants shall be
8 exempt from the mandatory continuing education requirement for the
9 triennial registration period during which they are first licensed. In
10 accordance with the intent of this section, adjustments to the mandatory
11 continuing education requirement may be granted by the department of
12 state for reasons of health certified by a physician, for extended
13 active duty with armed forces of the United States, or for other good
14 cause acceptable to the department of state which may prevent compli-
15 ance.
16 (c) A licensed certified public accountant and a public accountant not
17 engaged in public practice as an individual practitioner, a partner of a
18 partnership, a shareholder of a professional service corporation, or an
19 employee of such practice units, shall be exempt from the mandatory
20 continuing education requirement and payment of the mandatory continuing
21 education fee upon the filing of a statement with the department of
22 state declaring such status. Any licensee who returns to the public
23 practice of certified public accountancy or public accountancy during
24 the triennial registration period shall notify the department prior to
25 reentering the profession and shall pay the current mandatory continuing
26 education fee and shall meet such mandatory continuing education
27 requirements as shall be prescribed by regulations of the secretary of
28 state.
29 2. During each registration period, an applicant for registration
30 shall have the option of (a) completing a minimum of forty contact hours
31 of acceptable formal continuing education in recognized areas of study,
32 or (b) completing a minimum of twenty-four contact hours of acceptable
33 formal continuing education concentrated in any one of the following
34 three subject areas: auditing, accounting, or taxation. A licensee who
35 has not satisfied the mandatory continuing education requirements shall
36 not be issued a triennial registration certificate by the department of
37 state and shall not practice unless and until a conditional registration
38 certificate is issued as provided in subdivision three of this section.
39 No hourly credits may be transferred from one year to a subsequent year.
40 The individual licensee shall determine the selection of courses or
41 programs of study pursuant to subdivision four of this section.
42 3. The department of state, in its discretion, may issue a conditional
43 registration to a licensee who fails to meet the continuing education
44 requirements established in subdivision two of this section but who
45 agrees to make up any deficiencies and take any additional education
46 which the department may require. The fee for such a conditional regis-
47 tration shall be the same as, and in addition to, the fee for the trien-
48 nial registration. The duration of such conditional registration shall
49 be determined by the department of state. Any licensee who is notified
50 of the denial of registration for failure to submit evidence, satisfac-
51 tory to the department of state, of required continuing education and
52 who practices public accountancy without such registration, may be
53 subject to disciplinary proceedings pursuant to section nine hundred
54 forty-four of this article.
55 4. As used in subdivision two of this section, "acceptable formal
56 continuing education" shall mean formal programs of learning which
S. 1407--A 276 A. 2107--A
1 contribute to professional practice and which meet the standards
2 prescribed by regulations of the secretary of state. Recognized areas of
3 study shall include but not be limited to: accounting, auditing, taxa-
4 tion, advisory services, specialized knowledge and applications related
5 to specialized industries, and such other technical areas appropriately
6 related to the practice of accounting as may be acceptable to the
7 department of state. To fulfill the mandatory continuing education
8 requirement, programs must be taken from sponsors approved by the
9 department of state, pursuant to the regulations of the secretary of
10 state.
11 5. The mandatory continuing education fee shall be determined by the
12 secretary of state, shall be payable on or before the first day of each
13 triennial registration period, and shall be paid in addition to the
14 triennial registration fee required by section eighteen hundred four of
15 this subarticle.