Grants an exemption from licensing requirements for certain social work and mental health professionals employed by certain corporations

Section 2 of the bill would add a new §6503-a to Title VIII of the Education Law to allow the Department to authorize not-for-profit corporations, education corporations, firms, business corporations and other. business entities that offer services provided by professionals licensed under Education Law Article 154 (social work) or Article 163 (mental health practitioners) of the Education Law or services constituting the provision of psychotherapy as defined in Education Law §8401(2) and authorized and provided under Education Law Article 131 (medicine), 139 (nursing) or 153 (psychology) and that are not otherwise authorized by law to provide such professional services, to provide these professional services upon registering with the Department by July 1, 2011. New § 6503-a would provide that any such entity offering such professional services on this bill's effective date would be deemed registered by the Department until submission of an application for registration to the Department or until 120 days after the Department prescribes an application form, whichever is EARLIER .ct. Upon its submission of such application, the entity would be considered registered by the Department and would continue to be considered registered unless and until its application is denied. Notably, §6503-a would clarify that certain business entities would not be required to register under the section, including (1) appropriately organized professional business entities established under the Business Corporation Law, the Limited Liability Company Law or the Partnership Law; (2) certain entities operated by New York State or federal agencies, political subdivisions, municipal corporations, or local government agencies or units, (3) entities operated under properly issued operating certificates, (4) a university faculty practice. corporation established under the Not-for-Profit corporation Law, (5) institutions of higher education authorized to offer, programs leading to licensure in the affected professions that provide services as part of a registered program, and (6) institutions o f higher education that provide counseling to students or staff and their families.

New §6503-a would require the entity to submit an application for registration, as prescribed by the Commissioner of Education, and pay an initial registration fee of $400.00 and a triennial registration fee of $150.00 thereafter. Upon registration, the entity would be required to disclose the scope of its practice, the names of its owners, operators, directors, shareholder and officers, a listing of any other jurisdiction in which it intends to provide services, and a list of the professions under Title VIII of the Education Law in which it intends to employ licensees. The application would include an attestation which would include a statement that, unless otherwise authorized by law, the entity will only provide professional services authorized under §6503-a and any service appropriately related thereto, as determined by the Department, and that only licensed professionals or persons otherwise authorized to practice such services, or professional business entities authorized by law to provide such services will provide the professional services as authorized under this section.

Additionally, each shareholder, director, officer, owner, member and partner of the registering entity would be required to provide an attestation regarding his or her moral character, which would include a statement disclosing any criminal convictions, pending criminal charges, determinations of professional misconduct, pending charges of professional misconduct, or any limitations on professional practice. Under §6503-a, these entities would be supervised by the Regents of the University of the State of New York and would be subject to disciplinary action to the same extent as professionals licensed under Title VIII of the Education Law, including revocation, suspension and annulment.

Sections 3, 4 and 5 of the bill would add new subdivision B to §6527 (medicine), new paragraph h to subdivision 1 to §690B (nursing), and new subdivision 9 to §7605 (psychology), respectively, to provide that so long as an entity is registered under new §6503-a of the Education Law, it may provide psychotherapy services (as defined in Education Law §8401) to the extent permissible within the applicable scope of professional practice by either a physician, nurse, or psychologist; respectively, provided such services are provided through such an appropriately licensed professional, or a professional business entity authorized to provide such services.

Section 6 of the bill would add a new subdivision 6 to § 7706 of the Education Law to specifically permit any not-for-profit corporation, education corporation, firm, business corporation, or other lawful business entity registered with the Department pursuant to Education Law §6503-a to provide licensed master social work and licensed clinical social work services, provided such services are provided by individuals appropriately licensed or otherwise authorized to provide such services or by an authorized professional business entity.

Section 7 of the bill would add a new subdivision 7 to §8410 of the Education Law to specifically permit any not-for-profit corporation, education corporation, firm, business corporation, or other lawful business entity registered with the Department pursuant· to Education Law §6503-a to provide mental health practitioner services, provided such services are provided by individuals appropriately licensed or otherwise authorized to provide such services or by an authorized professional business entity.

Section 8 of the bill would amend paragraph c of subdivision 2 of §7704 of the Education Law to provide that work experience in social work gained in a setting of an entity registered pursuant to §6503-a of the Education Law would may be applied towards the experience qualifications required by the Department for professional licensure as a social worker, notwithstanding that such experience may have been obtained prior to the effective date of §6503-a and/or prior to the registration of the setting. Education Law §7704(2) (c),as amended, would provide that the Department may, for good cause, accept satisfactory experience obtained in such a setting which would have been eligible for registration but which has not yet registered with the Department or, experience. that was obtained in good faith by the applicant under the belief that appropriate authorization had been obtained.

Section 9 of the bill would similarly amend paragraph c of subdivision 3 of §8402 of the Education Law to provide that experience in mental health counseling gained in a setting of an entity registered pursuant to §6503-a of the Education Law may be applied towards the experience qualifications required by the Department for the licensure of an individual as a mental health practitioner, notwithstanding that such experience may have been obtained prior to the effective date of §6503-a and/or prior to the registration of the setting. Education Law §8402(3) (c), as amended, would provide that the Department may, for good cause, accept satisfactory experience obtained in such setting that would have been eligible for registration but which has not yet registered with the. Department or experience that was obtained in good faith by the applicant under the belief that appropriate authorization had been obtained.

Section 10 of the bill would amend paragraph c of subdivision 3 of §8403 of the Education Law to provide that experience in marriage and family therapy gained in an entity registered pursuant to §6503-a of the Education Law may be applied towards the experience qualifications required by the Department for such professional licensure, notwithstanding that such experience may have been obtained prior to the effective date of §6503-a and/or prior to the registration of the setting. Education Law §8403(3)(c), as amended, would provide that the Department may, for good cause, accept satisfactory experience obtained in a setting that would have been eligible for registration but which has not registered with the Department or experience that was obtained in good. faith by the applicant under the belief that appropriate authorization had been obtained.

Section 11 of the bill would amend paragraph c of subdivision 3 of §8404 of the Education Law to provide that experience in creative arts therapy gained in an entity registered pursuant to new Education Law §6503-a may be applied towards the experience qualifications required by the Department for such professional licensure, notwithstanding that such experience may have been obtained prior to the effective elate of §6503-a and/or prior to the registration of the setting. Education Law §8404(3)(c), as amended, would provide that the Department may, for good cause, accept satisfactory experience obtained in a setting that would have been eligible for registration but which has not registered with the Department or experience that was obtained in good faith by the applicant under the belief that appropriate authorization had been obtained.

Section 12 of the bill would amend paragraph c of subdivision 3 of §8405 of the Education Law to provide that experience in psychoanalysis gained in an entity registered pursuant to new Education Law §6503-a may be applied towards the experience qualifications required by the Department for such professional licensure, notwithstanding that such experience may have been obtained prior to the effective date of §6503-a and/or prior to the registration of the setting. Education Law §8405(3)(c), as amended, would. provide that the Department may, for good cause, accept satisfactory experience obtained in a setting that would have been eligible for registration but which has not registered with the Department or experience that was obtained in good faith by the applicant under the belief that appropriate authorization had been obtained.

Section 13 of the bill would amend Chapter 420 of the Laws of 2002, amending the Education Law in relation to social work, to (1) expand the exemption from social work licensure requirements and from certain corporate practice prohibitions so that the exemption would apply to those employed in programs operated, regulated, funded, or approved by a New York State or federal agency, political subdivision, municipal corporation or local government agency or unit, and not just the Department of Mental Hygiene or the Office of Children and Family Services, or specified local government units, (2) extend the effectiveness of Chapter 420 to July 1, 2011 and (3) provide that the Commissioner of Education will convene a workgroup of state agencies, not-for-profit providers, professional associations and consumers, and other key stakeholders to recommend by January 1, 2011 any amendments to law, rule or regulation necessary to fully implement the requirements for licensure by the new July 1, 2011 repeal date and whether to extend beyond July 1, 2011 the authority of the Department to register entities in accordance with Education Law §6503-a.

Section 14 of the bill would amend Chapter 676 of the Laws of 2002, amending the Education Law in relation to psychology and mental health practitioners to (1) extend the effectiveness of the exemption of psychology from certain corporate practice prohibitions to July 1, 2011, which at such time it would be repealed (2) expand the exemption from mental health practitioner license requirements and from certain corporate practice prohibitions so that the exemption would apply to those employed in programs operated, regulated, funded, or approved by a New York State or federal agency, political subdivision, municipal corporation or local government agency or unit and to provide for the effectiveness of such exemption until July 1, 2011, at. which time it would be repealed, and (3) provide that the Commissioner of Education convene a workgroup of State agencies, not-for-profit providers, professional associations and consumers, and other key stakeholders to recommend by January 1, 2011 any amendments to law, role or regulations necessary to fully implement the requirements for licensure by the new repeal date of July 1, 2011 and whether to extend beyond July 1, 2011 the authority of the Department to register entities in accordance with Education Law §6503-a.

Section 15 of the bill is the effective date.

Statement in support of the bill

Chapters 420 and 676 of the Laws of 2002 established restricted practice for the professions of licensed master social work, licensed clinical social work, licensed mental health counseling, licensed manage and family therapy, licensed creative arts therapy, licensed psychoanalysis, and licensed psychology, thereby making a range of activities such as psychotherapy and certain types of counseling subject to professional licensure requirements for the first time. For decades prior to the enactment of Chapters 420 and 676, not-for-profit corporations, education corporations, firms and business corporations that are not professional business entities had employed individuals to provide social work, psychotherapy and mental health services. However, there are prohibitions against engaging in corporate practice in these professions, and the new licensing law did not provide a general recognition of such providers that employ individuals licensed in these professions but who are not authorized to do so under appropriate laws, such as the Mental Hygiene Law or Article 28 of the Public Health Law.

Presently, the law restricts the practice of the professions of social work and mental health practitioners and the provision of psychotherapy services by professionals in medicine, nursing and psychology to individuals or entities licensed by the Department. Education Law §6512 makes it a Class E felony for an unlicensed person to practice a licensed profession or hold oneself out as being able to practice a licensed profession. Further, certain statutory provisions relating to corporate practice generally prohibit the provision of services by business corporations, not-for-profit corporations, or non-licensee-owned entities. With certain exceptions, such as speech-pathology and audiology, corporate practice (practice of a profession by a corporation or other corporate entity) is generally prohibited, with additional restrictions being applicable when multiple professions are involved. Such practice must be conducted in a legally authorized setting, such as a professional business entity, an OMH clinic, or a Public Health Law Article 28 hospital, or in an exempt setting. The law does not provide a general exemption or recognition of community-based providers that employ individuals in these professions, such as Riverside Mental Health or Samaritan Counseling. Although some of these community providers fall within existing statutory exemptions, others do not. Therefore, the Department cannot accept the work experience gained in such settings by applicants for licensure and such experience cannot be applied towards the qualifications for licensure of such applicants. Nor can the Department issue permits to individuals to practice in such settings if they do not have the legal authority to provide such professional services.

Unless an exception to the restrictions on corporate practice is provided, these entities could not continue to provide these professional services without violating Title VIII of the Education Law, and the Department could not accept experience gained by practitioners employed by such entities for purposes of meeting experience requirements for professional licensure.

To avoid the disruption of services that would result if these entities could no longer deliver the professional services they have been providing for many years, while assuring that the professional services are subject to professional regulation for the protection of the public, this bill would create an exception to corporate practice in these professions and provide that non-professional business entities, including not-for-profit corporations, education corporations, firms, and business corporations, could continue to deliver social work, psychotherapy and mental health services provided that they obtain a registration from the Department by July 1, 2011. Once registered, the entity would be subject to professional regulation under Title VIII of the Education Law and would be authorized to employ duly licensed professionals to provide such services or to contract with professional business entities such as professional corporations or professional limited liability companies to deliver such services.

The bill would continue to recognize the authority of clinics and programs authorized and regulated by certain public agencies, including the Office of Mental Health (OMH), Office of Mental Retardation and Developmental Disabilities (OMRDD), Office of Alcohol and. Substance Abuse Services (OASAS), and Department of Health (DOH).

This bill would address an omission in the law, which would otherwise affect the ability of community-based providers not otherwise authorized, to continue to employ licensed professionals to provide professional services in these professions. Further, it would address issues of qualifications of applicants for professional licensure so that experience gained in registered settings may be applied towards the experience qualifications for professional licensure. Thus, this bill would maintain the status quo and allow such providers to continue to deliver these services and allow potential applicants for licensure continue to gain their work experience in such community-based settings. ON BUDGETARY IMPLICATIONS OF THIS BILL :

This, bill should not result in significant costs to the State or local governments. The bill would require business entities that provide certain professional services to register with the Department under new §6503-a and pay an initial registration fee of $400.00 and a triennial registration fee of $150.00, which should defray costs incurred by the Department in implementing the registration process established in §6503-a.

Effective date

This act would take effect immediately.