Amd Art 101 Art head, SS5001, 5002, 5003, 5004, 5006, 5007, 5008, 5009 & 5010, Ed L
Relates to the licensure of private proprietary schools; provides for increased competition among schools to improve the quality of training provided at private proprietary schools and the quality of student performance in the workplace.
STATE OF NEW YORK
________________________________________________________________________
4268--C
Cal. No. 512
2011-2012 Regular Sessions
IN SENATE
March 25, 2011
___________
Introduced by Sen. LAVALLE -- (at request of the State Education Depart-
ment) -- read twice and ordered printed, and when printed to be
committed to the Committee on Higher Education -- reported favorably
from said committee, ordered to first and second report, ordered to a
third reading -- reported favorably from said committee and committed
to the Committee on Finance -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the education law, in relation to the licensure of
private proprietary schools; and providing for the repeal of certain
provisions upon the expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The article heading of article 101 of the education law is
2 amended to read as follows:
3 LICENSED PRIVATE [TRADE AND
4 CORRESPONDENCE] CAREER SCHOOLS AND CERTIFIED
5 ENGLISH AS A SECOND LANGUAGE SCHOOLS
6 § 2. Legislative intent. The legislature hereby finds and declares
7 that there is a growing need to protect students enrolled in certain
8 non-degree granting proprietary schools from inadequate job training and
9 school closure, which disrupts the academic progress of these students
10 and jeopardizes their tuition funds. Given the growing needs and demands
11 of business and industry, the legislature further finds and declares it
12 necessary to align the state education department's current oversight of
13 these schools with these significantly increasing needs. The legislature
14 finds it necessary for the department to review these schools' curric-
15 ulums and instruction to help ensure students receive adequate training
16 to obtain employment and to successfully perform their occupation in the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08579-14-1
S. 4268--C 2
1 workplace. It also finds it necessary for the department to intervene in
2 certain school closures where teach out plans may not be efficiently
3 implemented and students may not complete training.
4 The legislature also finds it necessary for the department to review
5 these schools for financial viability to prevent school closure, which
6 will, in turn, preserve tuition funds and federal and state funding
7 sources. This act is also necessary to increase the accountability and
8 transparency of these schools by allowing students to check on whether a
9 school is approved or whether a teacher at such school is licensed.
10 The legislature intends for this act to increase competition among
11 these schools, which will, in turn, improve the quality of training
12 offered at these schools and the quality of student performance in the
13 workplace. This act will provide the department with the tools and
14 resources necessary to effectively supervise these schools for compli-
15 ance and to reimburse students for tuition and other related costs when
16 these schools close as a result of fiscal failure or noncompliance,
17 which will overall strengthen student protection.
18 § 3. Section 5001 of the education law, as added by chapter 817 of the
19 laws of 1972, the section heading, subdivision 1, paragraph h of subdi-
20 vision 2 and paragraph b of subdivision 4 as amended and paragraphs i,
21 j, k, l and m of subdivision 2 and subdivisions 2-a and 2-b as added by
22 chapter 434 of the laws of 1999, paragraph b of subdivision 2 as amended
23 and subdivisions 5, 6, 7, 8 and 9 as added by chapter 887 of the laws of
24 1990, paragraph d of subdivision 2 and subdivision 4 as amended, para-
25 graphs a, b, c and d of subdivision 9 as added and subdivisions 5, 6, 7,
26 8 and 9 as renumbered by chapter 604 of the laws of 1993, paragraph e of
27 subdivision 2 as amended by chapter 439 of the laws of 1980, and para-
28 graph f of subdivision 2 as amended by chapter 13 of the laws of 2010,
29 is amended to read as follows:
30 § 5001. Licensed private career schools [and registered business
31 schools/computer training facilities]. 1. Schools required to be
32 licensed [or registered]. No private school [or computer training facil-
33 ity] which charges tuition or fees [for] related to instruction and
34 which is not exempted hereunder shall be operated by any person or
35 persons, firm, corporation, or private organization for the purpose of
36 teaching or giving instruction in any subject or subjects, unless it is
37 licensed [or registered] by the department. As used in this article[,
38 the following terms shall have the following meanings]:
39 a. ["Licensed] "licensed private career school" or "licensed private
40 school" shall mean any entity offering to instruct or teach any subject
41 by any plan or method including written, visual or audio-visual meth-
42 ods[.], and shall include any institution licensed or registered as a
43 registered business school or computer training facility on the effec-
44 tive date of the chapter of the laws of two thousand twelve which
45 amended this subdivision. Following such effective date, there shall be
46 no distinction between institutions previously defined as "registered
47 business schools" or "computer training facilities" and other licensed
48 private schools, and any reference in law to a registered business
49 school or computer training facility shall be deemed a reference to a
50 licensed private career school. Institutions holding a valid business
51 school registration on such effective date, including computer-training
52 facilities, shall have such registrations replaced by the commissioner,
53 at no cost, with licenses valid until the expiration date listed on such
54 previous registration; and
55 b. ["Registered business school" shall mean a school in which a
56 curriculum primarily provides a sequence of courses that may include
S. 4268--C 3
1 accounting or bookkeeping, marketing, business arithmetic, business law,
2 business English, shorthand, typing, computer business
3 applications/programming, or substantially all said courses, for the
4 purpose of preparing an individual to pursue a business occupation;
5 provided, however, that a registered business school program may include
6 instruction in English as a second language at a beginning or basic
7 level, provided such instruction shall not constitute more than fifty
8 percent of such program. Such authorization shall apply to all students
9 who commence instruction in a registered business school program prior
10 to July first, nineteen hundred ninety-one. A business school registered
11 under this section shall employ only teachers licensed by the depart-
12 ment, whose qualifications are substantially equivalent to those
13 required of teachers of equivalent subjects in public secondary schools.
14 c. "Computer training facility" shall mean any entity primarily
15 engaged in providing training on the use, language, programs, applica-
16 tion, networking and technical repair of computers] "certified English
17 as a second language school" or "certified ESL school" shall mean a
18 language school conducted for-profit which provides instruction in
19 English as a second language and which accepts no public funds and is
20 certified pursuant to paragraph f of subdivision four of this section.
21 2. Exempt schools. The following schools are exempted from the licens-
22 ing requirement of this section:
23 a. institutions authorized to confer degrees in this state;
24 b. schools[, other than correspondence schools,] providing kindergar-
25 ten, nursery, elementary or secondary education, except schools
26 conducted for profit which provide instruction in English as a second
27 language or preparation for high school equivalency examinations to
28 out-of-school youth or adults;
29 c. schools operated by governmental agencies or authorities;
30 d. schools which engage exclusively in training of students with disa-
31 bilities as defined in section forty-four hundred one of this chapter;
32 e. schools conducted on a not-for-profit basis by firms or organiza-
33 tions for the training of their own employees only, provided that such
34 instruction is offered at no charge to such employees, or by a fraternal
35 society or benevolent order for its members or their immediate relatives
36 only;
37 f. schools which provide instruction in the following subjects only:
38 religion, dancing, music, painting, drawing, sculpture, poetry, dramatic
39 art, languages, reading comprehension, mathematics, recreation, yoga,
40 martial arts, pilates and athletics, including the training of students
41 to teach such subjects, provided, however, that schools conducted for
42 the purpose of training personal trainers shall be excluded from this
43 exemption and shall be required to obtain licensure;
44 g. schools in which the course of instruction is licensed, registered
45 or approved under any other section of this chapter or by any other
46 department or agency of the state;
47 h. schools which provide instruction designed solely for giving flight
48 training and/or related ground school instruction;
49 i. schools in which instruction designed solely to prepare applicants
50 for admission to professional licensing examinations administered by the
51 department pursuant to title eight of this chapter, and applicants for
52 examination for admission to the practice of law;
53 j. schools which offer continuing education courses exclusively for
54 individuals licensed by the department pursuant to title eight of this
55 chapter and for individuals admitted to the practice of law;
S. 4268--C 4
1 k. schools which provide instruction given exclusively to employees of
2 a person or organization which has contracted with another person or
3 organization to provide such instruction at no cost to the employees;
4 l. conferences, trade shows, workshops, seminars, institutes or cours-
5 es of study offered and sponsored either jointly or individually by
6 recognized trade, business or professional organizations for the benefit
7 of their membership; [or those offered to the general public by individ-
8 uals, firms or organizations which neither conduct such activities for a
9 duration of more than five consecutive days nor more frequently than
10 twice in any one calendar year;]
11 m. schools that limit their total conferences, trade shows, workshops,
12 seminars, institutes or other course offerings to no more than twice in
13 one calendar year with each of those offerings for no more than five
14 days;
15 n. schools which provide instruction exclusively to persons employed
16 full-time or part-time in the field in which instruction is being
17 offered, where the instruction is provided to meet continuing education
18 standards required for professional licensure as defined by law in this
19 state; and
20 o. schools in candidacy status pursuant to subparagraph (iv) of para-
21 graph b of subdivision four of this section.
22 2-a. Schools exempted pursuant to subdivision two of this section may
23 waive such exemption and apply for a license [or registration];
24 provided, however, that the review of such applications shall be left to
25 the discretion of the commissioner.
26 2-b. Programs offered by licensed private career schools [or regis-
27 tered business schools to private businesses where there is no tuition
28 liability] to employees of a person or organization which has contracted
29 with another person or organization to provide such instruction at no
30 cost to the employees shall be exempt from the requirements of this
31 article, provided that the following requirements are met:
32 a. Only employees of the [private business] employer for which the
33 program is being offered may enroll in classes that make up the program.
34 b. Certificates or diplomas awarded to students in the program may not
35 reference in any way the department.
36 c. Prior to the commencement of the program, such schools shall submit
37 to the department a disclosure form, prescribed by the commissioner,
38 copies of which shall be provided to all students in such exempt
39 program, which shall include but not be limited to the following infor-
40 mation:
41 (i) a description of the location and time period in which the program
42 will be offered;
43 (ii) a statement that the students enrolled in the program shall not
44 be subject to any tuition liability for the program, even if such
45 students do not complete the program;
46 (iii) a statement that the program being provided to the [private
47 business] employer has not been approved by the department and is not
48 under the department's jurisdiction and that the students in the program
49 have been advised of the fact; and
50 (iv) the signatures of the school director or owner of the school and
51 the representative of the [private business] employer for which the
52 program is being offered certifying the accuracy of the statements on
53 the form.
54 d. Any additional student openings in a program deemed exempt by the
55 department may be made available to students not affiliated with the
56 [private business] employer on the condition that such students execute
S. 4268--C 5
1 a disclosure form as prescribed in paragraph c of this subdivision. Such
2 admitted students shall only constitute up to ten percent of the exempt
3 program's total capacity.
4 4. Application, renewal application and application fees. a. Applica-
5 tion and renewal application for a license as a private career school
6 [or registration as a business school] required by the commissioner
7 shall be filed on forms prescribed and provided by the department.
8 Except as provided in subparagraph (iii) of paragraph e of this subdivi-
9 sion, each renewal application for [a private business school registered
10 pursuant to this section or for] a private career school licensed pursu-
11 ant to this section shall include an audited financial statement audited
12 according to generally accepted auditing standards by an independent
13 certified public accountant or an independent public accountant and
14 statistical reports certified by the owner or operator of the school, as
15 required by the commissioner; provided, however, that the commissioner
16 shall accept a copy of a current financial statement previously filed by
17 a school with any other governmental agency in compliance with the
18 provisions of any federal or state laws, or rules or regulations if such
19 statement contains all of the information required under this subdivi-
20 sion and conforms to this subdivision's requirements of auditing, review
21 and certification. Any required audit of the financial statement shall
22 be a condition of licensure [or registration] and shall be paid for by
23 the school, and the results of the audit shall be forwarded to the
24 commissioner. Applications not accompanied by the audits and reports
25 required pursuant to this subdivision shall not be considered for
26 approval by the commissioner. Initial applications shall be accompanied
27 by financial reports as required by the commissioner. [The commissioner
28 shall act on an initial application for a license or registration within
29 one hundred twenty days of receipt of a complete application.] The
30 applicant shall receive a written approval or denial together with the
31 reasons for a denial of such application.
32 b. (i) An initial license [or registration] issued pursuant to the
33 provisions of this article shall be valid for a period of two years. A
34 renewal of license [or registration] issued pursuant to the provisions
35 of this article shall be valid for a period of four years. [All license
36 and registration fees for a renewal shall be double the amounts listed
37 in paragraph g of this subdivision.]
38 (ii) Every applicant and renewal applicant shall pay to the department
39 a nonrefundable, nontransferable application fee. The initial applica-
40 tion fee for new schools shall be five thousand dollars, of which three
41 thousand dollars shall accrue to the credit of the proprietary voca-
42 tional school supervision account and two thousand dollars shall accrue
43 to the tuition reimbursement account. For additional licensed locations
44 of currently operating schools, the application fee shall be two thou-
45 sand five hundred dollars, which shall accrue to the credit of the
46 proprietary vocational school supervision account. For renewal applica-
47 tions, the fee shall be based on gross annual tuition income as deter-
48 mined by the annual financial statements required in paragraph a of this
49 subdivision for the most recent school fiscal year, according to the
50 following schedule:
51 GROSS ANNUAL TUITION INCOMEFEE
52 0-$199,999$ 750.00
53 $200,000-$499,999$ 1,500.00
54 $500,000-$999,999$ 2,225.00
S. 4268--C 6
1 $1,000,000-$4,999,999$ 4,500.00
2 $5,000,000-$9,999,999$ 9,000.00
3 $10,000,000 or above$18,000.00
4 Such renewal fees shall accrue to the credit of the proprietary voca-
5 tional school supervision account. If the evaluation of a particular
6 course or facility requires the services of an expert not employed by
7 the department, the department shall retain such expert and the school
8 shall reimburse the department for the reasonable cost of such services.
9 (iii) Each school shall display, near the entrance to the school [and
10 under glass], the license [or registration] which has been issued to it.
11 Such authorization shall be displayed only during the period of its
12 validity.
13 (iv) A school which has applied for a private career school license
14 may request candidacy status for one time only. Candidacy status shall
15 not be issued to schools offering programs to train students to pass
16 licensure examinations such as appearance enhancement tests, achieve
17 nurse aide or nurse assistant certification, or pass examinations lead-
18 ing to licensure in any other profession or occupation determined by the
19 commissioner to require full licensure status. Candidacy status shall
20 allow a school to operate unlicensed for an initial period of twelve
21 months during the licensure application process, which may be extended
22 to a maximum, non-renewable period of eighteen months, under the follow-
23 ing conditions:
24 (1) the prospective school submits a candidate school application fee,
25 separate from the school application fee, of five thousand dollars which
26 shall accrue to the credit of the proprietary vocational school super-
27 vision account;
28 (2) the school shall not represent that it is licensed or that its
29 programs are approved through the department;
30 (3) to every prospective student, the school shall disseminate a
31 statement, provided by the department, that the facilities, instructors,
32 and programs being provided have not been approved and are not under the
33 department's jurisdiction during the candidacy period. Such statement
34 shall indicate that students attending candidate schools shall have no
35 recourse through the department's student complaint process nor have any
36 restitution available from the tuition reimbursement account. Students
37 shall sign an attestation to the receipt of this statement. The school
38 shall retain the signed attestation and provide the student with a copy
39 of such signed statement;
40 (4) the school shall demonstrate financial viability through means
41 deemed appropriate by the commissioner. Such means may include submit-
42 ting an audited financial statement based on the most recently completed
43 fiscal year; securing and maintaining a performance bond, payable to the
44 commissioner, in an amount appropriate to eliminate any liability to the
45 tuition reimbursement account in the event the school ceases operation;
46 limiting the collection of tuition funds until each student completes
47 the program of study; or other means acceptable to the commissioner; and
48 (5) any breach of the above conditions shall result in the disapproval
49 of the school's licensure application and the forfeiture of candidate
50 status. Continued operation after this disapproval shall subject the
51 school to the disciplinary action prescribed under paragraph b of subdi-
52 vision six of section five thousand three of this article.
53 (6) On or before the end of the initial twelve-month period of candi-
54 dacy status, the commissioner shall review the school's application for
55 licensure and documentation relating to the school's candidacy status
S. 4268--C 7
1 and shall determine whether such candidacy status should be extended to
2 the full eighteen months and whether the school may continue to enroll
3 students beyond the eighteen-month period or the school's application
4 for licensure will be initially disapproved for failure to meet required
5 standards.
6 c. An application for renewal of any license [or registration] shall
7 be submitted at least one hundred twenty days prior to the expiration
8 date of the current authorization to operate accompanied by the nonre-
9 fundable application fee and such certified statistical reports and
10 annual financial statements required pursuant to this subdivision.
11 d. When complete and timely application has been made for renewal of
12 any license [or registration], the school shall receive a written
13 approval or denial, together with the reasons for denial of renewal,
14 from the commissioner no less than thirty days prior to the date such
15 license [or registration] expires.
16 e. Financial statements and statistical reports. (i) Licensed private
17 career schools and [registered business] candidate schools shall submit
18 such certified statistical reports and annual financial statements as
19 required by the commissioner. The commissioner may require audited
20 statistical reports upon a determination that a school has provided
21 false or inaccurate certified statistical reports. The financial state-
22 ments shall be based on the fiscal year of the school and shall also
23 include an itemized account of tuition refunds due and owing to past or
24 presently enrolled students. Statistical reports shall include, but not
25 be limited to, enrollment, completion and placement data. The commis-
26 sioner shall use such financial statements and statistical reports
27 submitted for the purposes of licensure [and registration] of schools,
28 establishing fees or assessments pursuant to this article and determin-
29 ing standards pursuant to paragraph b of subdivision five of section
30 five thousand two of this article. The attorney general, the comptroller
31 and the president of the higher education services corporation shall
32 have access to this information when it is necessary to perform their
33 duties as required by state law.
34 (ii) Any school which received [in excess of two hundred fifty] five
35 hundred thousand dollars or more in gross tuition in a school fiscal
36 year shall be required to submit to the commissioner an annual audited
37 financial statement [to the commissioner] prepared in accordance with
38 generally accepted accounting principles for that fiscal year. In addi-
39 tion, any school which has a gross tuition of [two hundred fifty] less
40 than five hundred thousand dollars [or less] in a school fiscal year but
41 whose combined state and federal student financial aid in such year
42 [exceeds] equals one hundred thousand dollars or more shall also submit
43 an annual audited financial statement to the commissioner for that
44 fiscal year.
45 (iii) Schools whose gross tuition is [two hundred fifty] less than
46 five hundred thousand dollars [or less] in a school fiscal year and
47 which receive less than one hundred thousand dollars in state and feder-
48 al student financial aid in a school fiscal year shall file with the
49 commissioner an unaudited financial statement in a format prescribed by
50 the commissioner, provided, however, that any such school [with gross
51 tuition in excess of fifty thousand dollars shall have filed at least
52 one audited financial statement after the first year of its operation.
53 The statement shall be signed by the president or chief executive offi-
54 cer and the chief fiscal officer of the school who shall certify that
55 the statements are true and accurate] shall file an audited financial
56 statement the fiscal year after a reviewed financial statement is
S. 4268--C 8
1 submitted. For such schools, audited financial statements are required
2 every two years, at minimum, with reviewed financial statements allowed
3 during the alternate year. Upon a determination by the commissioner that
4 a school has submitted false or inaccurate statements or that a signif-
5 icant, unsubstantiated decline in gross tuition has occurred, the
6 commissioner may require any such school to file an audited financial
7 statement pursuant to this paragraph even during alternate years when
8 reviewed statements would ordinarily be allowed.
9 f. Alternate licensing provision. The commissioner shall issue regu-
10 lations which define alternate licensing or certification requirements
11 for the following:
12 (1) correspondence schools in which all approved programs and courses
13 are under three hundred hours;
14 (2) schools which are eligible for exemption under this section but
15 which elect to be licensed;
16 (3) non-profit schools exempt from taxation under section 501(c)(3) of
17 the internal revenue code whose programs are funded entirely through
18 donations from individuals or philanthropic organizations, or endow-
19 ments, and interest accrued thereon; and
20 (4) language schools conducted for-profit which provide instruction in
21 English as a second language and which accept no public funds.
22 [g. Application fee. Every applicant and renewal applicant shall pay
23 to the department a nonrefundable, nontransferable fee based on gross
24 annual tuition income as determined by the annual financial statements
25 required in paragraph a of this subdivision for the most recent school
26 fiscal year, according to the following schedule:
27 GROSS ANNUAL TUITION INCOME FEE
28 0-$199,999 $ 250.00
29 $200,000-$499,999 $ 500.00
30 $500,000-$999,999 $ 750.00
31 $1,000,000-$4,999,999 $1,500.00
32 $5,000,000-$9,999,999 $3,000.00
33 $10,000,000 or above $6,000.00
34 Such fees shall accrue to the credit of the proprietary vocational
35 school supervision account. If the evaluation of a particular course or
36 facility requires the services of an expert not employed by the depart-
37 ment, the department shall retain such expert and the school shall reim-
38 burse the department for the reasonable cost of such services.]
39 5. Required disclosure for licensure. a. The commissioner shall
40 require that each applicant for a license for the operation of a private
41 [vocational or business] career school disclose the following informa-
42 tion:
43 (1) Whether the applicant, or any corporation, partnership, associ-
44 ation or organization or person holding an ownership or control interest
45 in such school, or any employee responsible in a supervisory capacity
46 for the administration of student funds or governmental funds, has been
47 convicted of a crime defined in this article, or any other crime involv-
48 ing the operation of any educational or training program, or, in
49 connection with the operation of any such program, a crime involving the
50 unlawful acquisition, use, payment or expenditure of educational or
51 training program funds; and
52 (2) Whether the applicant, or any corporation, partnership, associ-
53 ation or organization or person holding an ownership or control interest
S. 4268--C 9
1 in such school, or any employee responsible in a supervisory capacity
2 for the administration of student funds or governmental funds has been
3 convicted:
4 (A) in this state of any of the following felonies defined in the
5 penal law: bribery involving public servants; commercial bribery; perju-
6 ry in the second degree; rewarding official misconduct; larceny, in
7 connection with the provision of services or involving the theft of
8 governmental funds; offering a false instrument for filing, falsifying
9 business records; tampering with public records; criminal usury; scheme
10 to defraud; or defrauding the government; or
11 (B) in any other jurisdiction of an offense which is substantially
12 similar to any of the felonies defined in clause (A) of this subpara-
13 graph and for which a sentence to a term of imprisonment in excess of
14 one year was authorized and is authorized in this state regardless of
15 whether such sentence was imposed; and
16 (3) Whether the applicant, or any corporation, partnership, associ-
17 ation or organization or person holding an ownership or control interest
18 in such school, or any employee responsible in a supervisory capacity
19 for the administration of student funds or governmental funds, has been
20 finally determined in any administrative or civil proceeding to have
21 committed a violation of any provision of this article or any rules and
22 regulations promulgated pursuant thereto, or any related order or deter-
23 mination of the commissioner, or of any similar statute, rule, regu-
24 lation, order or determination of another jurisdiction pertaining to the
25 licensure and operation of any educational or training program; and
26 (4) Whether any school owned or operated by the applicant closed or
27 ceased operation and, if so, whether at the time of the closing the
28 applicant was subject to a pending disciplinary action, disallowance,
29 fine or other penalty and whether it owed refunds to any government
30 agency or students.
31 b. No application for any license pursuant to this article shall be
32 denied by reason of disclosure pursuant to this subdivision of the
33 applicant, or any corporation, partnership, association or organization
34 or person holding an ownership or control interest in such school, or
35 any employee responsible in a supervisory capacity for the adminis-
36 tration of student funds or governmental funds unless the commissioner
37 makes a written determination that there is a direct relationship
38 between one or more of such previous offenses and the license sought, or
39 that issuance of the license would create an unreasonable risk to prop-
40 erty or to the safety, education or welfare of specific individuals or
41 the general public. In making such determination, the commissioner shall
42 be guided by the factors set forth in section seven hundred fifty-three
43 of the correction law. For purposes of this subdivision, "ownership or
44 control interest" means: with respect to a school that is organized as
45 or owned by a corporation, a position as an officer or director of such
46 corporation; or, with respect to a school that is organized as or owned
47 by a partnership, a position as a partner; or any other interest total-
48 ing ten percent or more, whether direct or indirect, in the total equity
49 or assets of such school.
50 c. The commissioner may deny, suspend, revoke or decline to renew any
51 license: (1) if the significance of the convictions or administrative
52 violations warrant such action [or]; (2) if the commissioner determines
53 that a school did not make any disclosure required by this subdivision;
54 or (3) if the commissioner determines that a school's financial condi-
55 tion may result in the interruption or cessation of instruction or jeop-
56 ardize student tuition funds.
S. 4268--C 10
1 6. If, during the [two year] period for which a license [or registra-
2 tion] is granted, the commissioner determines that a school's financial
3 condition may result in the interruption or cessation of instruction or
4 jeopardize student tuition funds, the commissioner may, upon notice to
5 the school, place the school on probation for a period of no more than
6 [thirty days] one year, during which time the school and the department
7 must make efforts to resolve the problems at the school. The school
8 shall submit a report on its financial condition to the commissioner
9 within the time prescribed by the commissioner. Such report shall be in
10 the form and shall include content prescribed by the commissioner and
11 shall be reviewed by the commissioner to determine the school's finan-
12 cial viability. The commissioner may suspend or revoke the school's
13 license, as well as require the cessation of student enrollment, upon a
14 determination that the school's financial condition continues to threat-
15 en its ability to educate students and/or the student tuition funds.
16 Alternatives for the school to demonstrate a fiscally sound operation
17 may include securing and maintaining a performance bond, payable to the
18 commissioner, in an appropriate amount to eliminate any liability to the
19 tuition reimbursement account should the school cease operation, limit-
20 ing the collection of tuition funds until each student completes the
21 program of study, or other means acceptable to the commissioner. If no
22 resolution can be attained, a hearing, pursuant to subdivisions two and
23 three of section five thousand three of this article will be scheduled.
24 Such probation may include additional monitoring, inspections, limita-
25 tions on enrollment, teaching out some or all of a school's present
26 students or temporary cessation of instruction.
27 7. No license [or registration] granted under this section shall be
28 transferable or assignable without the approval of the commissioner.
29 [Any] Upon transfer or assignment of any interest totaling [ten] twen-
30 ty-five percent or more, whether direct or indirect, in the total equity
31 or assets of a school, such school shall be deemed a [transfer of such
32 school's license or registration. The commissioner shall approve or deny
33 a transfer or assignment based on the requirements set forth in subdivi-
34 sions three and four of this section. Such approval or denial, together
35 with the reasons for denial, shall be transmitted in writing within
36 ninety days of the receipt of the complete application by the commis-
37 sioner. Upon a showing of good cause as to why the applicant could not
38 obtain the commissioner's approval prior to a transfer or assignment,
39 the commissioner shall temporarily approve the transfer or assignment
40 for a period not to exceed forty-five days and for such additional peri-
41 ods as the commissioner may deem appropriate] new school required to
42 submit a new school application and obtain a new license pursuant to
43 this article. Provided, however, that upon such a substantial change in
44 interest, the previous school license shall remain in effect until the
45 new license is issued or denied or the previous license expires or is
46 revoked, whichever occurs first.
47 8. No licensed [or registered] school shall discontinue operation or
48 surrender its license [or registration] unless thirty days written
49 notice of its intention to do so and a plan for maintenance of safe
50 keeping of the records of the school is provided to the commissioner.
51 However, upon good cause shown, the commissioner may waive the thirty
52 days notice requirement.
53 9. Annual supervision fund and tuition reimbursement [fund] account
54 assessment. a. The commissioner shall annually assess each school a
55 total percentage of that school's gross tuition pursuant to subdivision
56 three of section five thousand two of this article, as determined by the
S. 4268--C 11
1 annual [financial statement or annual] audited financial statement
2 required by this article. This assessment shall be based upon each
3 school's gross tuition from the previous year, and shall be payable to
4 the commissioner in equal quarterly installments which shall be due on
5 June first, September first, December first and March first.
6 b. (i) [Beginning April first, nineteen hundred ninety-one, such] Such
7 annualized assessment shall be one percent for schools which have paid
8 less than sixteen quarters of assessments, but such annual assessment
9 shall not fall below five hundred dollars.
10 (ii) [Beginning July first, nineteen hundred ninety-four, such] Such
11 annualized assessment shall be [nine-tenths] eight-tenths of one percent
12 for schools which have paid sixteen or more quarters of assessments, but
13 such annual assessment shall not fall below five hundred dollars.
14 [(iii) Beginning April first, nineteen hundred ninety-five, and in
15 each succeeding year, such annualized assessment shall be eight-tenths
16 of one percent.]
17 c. (i) Of the total assessment provided for herein, five-tenths of one
18 percent shall accrue to the credit of the tuition reimbursement account
19 pursuant to section five thousand seven of this article for those
20 schools which have paid less than sixteen quarters of assessments. Of
21 the total assessment provided for schools which have paid sixteen or
22 more quarters of assessments, three-tenths of one percent shall accrue
23 to the credit of the tuition reimbursement [fund] account pursuant to
24 section five thousand seven of this article. For schools paying the
25 minimum five hundred dollars annual assessment, none shall accrue to the
26 tuition reimbursement account.
27 (ii) The balance of the total assessment provided for herein shall be
28 dedicated to fund the department's supervision and regulation of
29 licensed private schools [and registered business schools] pursuant to
30 an annual appropriation and an annual plan of expenditure prepared by
31 the commissioner and approved by the director of the budget. [Following
32 the close of each fiscal year, the commissioner, in consultation with
33 the director of the budget, shall determine if the balance in the
34 proprietary vocational school supervision fund for such fiscal year
35 exceeded the amount required for the support of the department's super-
36 visory activities taking into account projected revenues and expendi-
37 tures for the subsequent fiscal year. To the extent that a surplus is
38 identified, the commissioner, with the approval of the director of the
39 budget, shall direct the transfer of such surplus to the tuition
40 reimbursement fund.]
41 d. Payments made within thirty days following the due date shall be
42 subject to interest at one percent above the prevailing prime rate.
43 Thereafter, late payments may result in suspension of licensure by the
44 commissioner. Payments required by this subdivision shall be considered
45 a condition of licensure [or registration].
46 § 4. Section 5002 of the education law, as added by chapter 887 of the
47 laws of 1990, subparagraph 3 of paragraph b and paragraph d of subdivi-
48 sion 1, subparagraph 2 of paragraph g of subdivision 3 and subdivision 6
49 as amended and paragraph c of subdivision 1 and paragraph d of subdivi-
50 sion 2 as added by chapter 604 of the laws of 1993, paragraph c of
51 subdivision 2, paragraph a of subdivision 4 and subdivision 7 as amended
52 and paragraph e of subdivision 4 and paragraph c of subdivision 6 as
53 added by chapter 434 of the laws of 1999, paragraph f of subdivision 4
54 as added by chapter 457 of the laws of 2003 and subparagraph 2 of para-
55 graph b of subdivision 5 as amended by chapter 301 of the laws of 1996,
56 is amended to read as follows:
S. 4268--C 12
1 § 5002. Standards for licensed private career schools [and registered
2 business schools]. Any school licensed [or registered] pursuant to
3 section five thousand one of this article shall be organized and
4 conducted only as a school and shall be subject to the jurisdiction of
5 the department exclusively, or in conjunction with such other state
6 agency or department or district attorney upon which jurisdiction has
7 also been conferred by law. Such schools shall be subject to and comply
8 with the provisions of this section.
9 1. Standards. a. No program of such schools shall be conducted in a
10 factory or commercial establishment, except where the use of facilities
11 or equipment of such factory or commercial establishment is permitted
12 for necessary or desirable educational purposes and objectives.
13 b. For every such school, the commissioner shall set forth in regu-
14 lation standards governing all of the following:
15 (1) criteria for admission, which shall provide that students at least
16 possess a high school diploma or its equivalent or demonstrate the abil-
17 ity to benefit from the instruction, except that in the case of students
18 who do not possess a high school diploma or its equivalent, certif-
19 ication of the students' ability to benefit from instruction shall be
20 provided to the commissioner as provided in paragraph c of this subdivi-
21 sion;
22 (2) the standards and the methods of instruction;
23 (3) the equipment available for instruction with the maximum enroll-
24 ment that such equipment and physical plant will accommodate;
25 (4) the qualifications and experience of teaching and management
26 personnel;
27 (5) the form and content of the student enrollment agreement or
28 contract, provided that such agreement or contract shall be written in
29 the same language as that principally used in the sales presentation;
30 (6) the methods of collecting tuition;
31 (7) eligibility criteria for programs that will require licensure;
32 (8) the sufficiency and suitability of the resources available for the
33 support of such school; and
34 (9) counseling provided to students.
35 b-1. (1) Student loans or other financial aid funds received from
36 federal, state, or local governments or administered under the federal
37 student financial assistance programs governed by Title IV of the Higher
38 Education Act of nineteen hundred sixty-five, 20 U.S.C. section 1070 et
39 seq., as amended, must be collected and applied in the manner as
40 controlled by the applicable federal, state or local regulations.
41 (2) Student loans or other financial aid funds received from private
42 entities, including, but not limited to, banks, financing companies, and
43 other lending sources must be collected or disbursed in the following
44 manner:
45 (A) Loans or other financial aid payments for amounts of five thousand
46 dollars or less may be disbursed as a single disbursement, regardless of
47 course length.
48 (B) Loans or other financial aid payments for amounts greater than
49 five thousand dollars that reflect a class term of less than six months
50 shall have two equal disbursements. The disbursement schedule for such
51 loans or payments shall be as follows: one-half of the tuition amount
52 released initially, and the remainder released halfway through the
53 course term.
54 (C) Loans or other financial aid payments for amounts greater than
55 five thousand dollars that reflect a class term of greater than six
56 months, but less than twelve months must have three equal disbursements.
S. 4268--C 13
1 The disbursement schedule for such loans or payments shall be as
2 follows: one-third of the tuition amount released initially, the second
3 disbursement shall be released one-third of the way through the length
4 of the training, and the remainder released two-thirds of the way
5 through the course term.
6 (D) Loans of other financial aid payments for amounts greater than
7 five thousand dollars that reflect a class term greater than twelve
8 months shall have four equal disbursements. The disbursement schedule
9 for such loans or payments shall be as follows: one-quarter of the
10 tuition amount released initially, the second disbursement shall be
11 released one quarter of the way through the length of the training; the
12 third disbursement shall be released halfway through the length of the
13 training, and the remainder shall be released three-quarters of the way
14 through the training.
15 (3) No school may enter into any contract or agreement with or receive
16 any students loan or financial aid funds from private entities, includ-
17 ing, but not limited to, banks, financing companies, and any other
18 private lending sources unless the private entity has a disbursement
19 policy that, at a minimum, meets the requirements of subparagraph two of
20 this paragraph.
21 (4) The term private entity referenced in subparagraphs two and three
22 of this paragraph shall not be construed to include a friend or family
23 member of the student who is not in the routine business of providing
24 student loans or financial aid funds. The provision of such a loan or
25 fund by a private entity shall also not include the payment of the
26 student's tuition or fees by use of a credit card.
27 c. Notwithstanding any other provisions of this article to the contra-
28 ry, the commissioner shall define alternative educational and curriculum
29 standards for any program of less than forty hours designed exclusively
30 for non-occupational, personal enrichment purposes.
31 d. Admission of students under the ability to benefit provision.
32 (1) Certification. Each school admitting students who do not possess
33 at least a high school diploma or its equivalent shall certify to the
34 satisfaction of the commissioner that such prospective students have
35 been administered and passed an examination which has been approved by
36 the commissioner to determine their ability to benefit from the chosen
37 curriculum prior to admission to the curriculum or course of study. Such
38 examination shall, whenever possible, be a nationally recognized test
39 appropriate for the course of instruction which has been approved by the
40 commissioner. The examination results of each such student who is admit-
41 ted shall be made available to the commissioner at a time prescribed by
42 the commissioner and, together with the student's original answer sheet,
43 shall be maintained by the school in the student's permanent record. For
44 any student failing to achieve the necessary score on such examination
45 for enrollment, the school shall be required to provide such student
46 with a listing of appropriate counseling and educational opportunities
47 available to the student at no cost, as determined by the commissioner.
48 Where appropriate, the commissioner may accept such other entrance
49 requirement documentation such as prerequisite coursework, professional
50 or vendor certifications, personal interviews, and/or attestations of
51 equivalent knowledge in lieu of the examination requirement.
52 (2) Counseling. Each school [admitting] offering curricula which admit
53 students who do not possess a high school diploma or its equivalent
54 shall develop a plan to be approved by the commissioner for the coun-
55 seling of such students on an individual basis on matters including but
56 not limited to the student's ability to progress in the curriculum, the
S. 4268--C 14
1 student's financial aid rights and responsibilities, the availability of
2 programs to earn a high school equivalency diploma, including programs
3 provided at no cost to the student, and the potential of the training to
4 prepare the student for available employment opportunities within the
5 region.
6 (3) Compliance. (A) The commissioner shall monitor compliance with
7 this paragraph and verify the examination and counseling process and
8 student examination scores. Such procedures may include but not be
9 limited to an annual, statistically significant, random sampling of the
10 examinations taken by prospective students of each school administering
11 such examinations.
12 (B) [Such procedures shall provide that the examinations of each
13 school be inspected on site at least once annually.
14 (C)] In the event that the commissioner determines that the school is
15 out of compliance with the examination process and counseling, the
16 commissioner shall require that examinations and counseling for students
17 admitted under the ability to benefit provision and the counseling
18 required by subparagraph two of this paragraph be conducted off the
19 premises of the school by an entity approved by the commissioner for
20 such period of time as the commissioner deems appropriate, the cost of
21 which shall be incurred by the school.
22 2. Inspections. a. Every school licensed pursuant to this article
23 shall maintain adequate and accurate records for a period of not less
24 than [six] seven years at its principal place of business within this
25 state. Such records shall be maintained in a manner and form prescribed
26 by the commissioner and shall be made available to the department and
27 the higher education services corporation upon request.
28 b. In addition to other requirements in this article, the information
29 to be made a part of the record shall include, but not be limited to:
30 (1) names and addresses of each enrolled student;
31 (2) the course of study offered by the institution;
32 (3) the name and address of its faculty, together with a record of the
33 educational qualifications of each;
34 (4) the graduation date of each student; and
35 (5) for each student who fails to complete his or her program, the
36 student's last date of attendance and, if applicable, the amount of any
37 refund paid to, or on behalf of, the student and the date the refund was
38 made.
39 c. The commissioner shall conduct periodic unscheduled inspections of
40 licensed private career schools [and registered business schools] to
41 monitor compliance with the provisions of this article or the rules or
42 regulations promulgated thereunder or any final order or decision of the
43 commissioner made pursuant to this article. The department shall conduct
44 an inspection of each school at least once every [three years. The
45 department shall annually inspect schools: (1) having a high percentage
46 of students admitted under ability to benefit criteria as determined by
47 the commissioner; (2) having a high student loan default rate as deter-
48 mined by the commissioner in a manner consistent with federal standards;
49 or (3) which are the subject of a high volume of complaints by students
50 or other parties] licensure period. All schools shall provide upon
51 request of the department, any and all records necessary to review
52 compliance with the provisions of this article.
53 d. Student permanent records, as defined in the regulations of the
54 commissioner, shall be maintained for a period of twenty years.
55 3. Tuition liability. a. The tuition charge for programs approved for
56 participation in student financial aid general award programs pursuant
S. 4268--C 15
1 to articles thirteen and fourteen of this chapter shall be apportioned
2 on the basis of terms, quarters or semesters. For the purposes of this
3 section, the terms "term", "quarter" and "semester" shall be defined in
4 regulations by the commissioner.
5 b. The tuition refund policy for the first term or quarter of any
6 program at schools licensed [or registered] pursuant to section five
7 thousand one of this article shall be as follows:
8 (1) For programs which are divided into quarters of up to fourteen
9 weeks, the school shall evenly divide the total tuition charges among
10 the number of quarters. After instruction is begun in a school, if a
11 student withdraws or is discontinued, the school may retain no more
12 than:
13 (i) zero percent of the quarter's tuition if the termination is during
14 the first week of instruction; or
15 (ii) twenty-five percent of the quarter's tuition if the termination
16 is during the second week of instruction; or
17 (iii) fifty percent of the quarter's tuition if the termination is
18 during the third week of instruction; or
19 (iv) seventy-five percent of the quarter's tuition if the termination
20 is during the fourth week of instruction; or
21 (v) one hundred percent of the quarter's tuition if the termination
22 occurs after the fourth week of instruction.
23 (2) For programs organized by terms of fifteen, sixteen, seventeen or
24 eighteen weeks apiece, the school shall evenly divide the total tuition
25 charges among the number of terms. After instruction is begun in a
26 school, if a student withdraws or is discontinued, the school may retain
27 no more than:
28 (i) zero percent of the term's tuition if the termination is during
29 the first week of instruction; or
30 (ii) twenty percent of the term's tuition if the termination is during
31 the second week of instruction; or
32 (iii) thirty-five percent of the term's tuition if the termination is
33 during the third week of instruction; or
34 (iv) fifty percent of the term's tuition if the termination is during
35 the fourth week of instruction; or
36 (v) seventy percent of the term's tuition if the termination is during
37 the fifth week of instruction; or
38 (vi) one hundred percent of the term's tuition if the termination
39 occurs after the completion of the fifth week of instruction.
40 c. (1) The tuition refund policy for the second term or quarter of any
41 program at schools licensed [or registered] pursuant to section five
42 thousand one of this article shall be as follows:
43 (A) For programs which are divided into quarters of up to fourteen
44 weeks, the school shall evenly divide the total tuition charges among
45 the number of quarters. After instruction is begun in a school, if a
46 student withdraws or is discontinued, the school may retain no more
47 than:
48 (i) twenty-five percent of the quarter's tuition if the termination is
49 during the first week of instruction; or
50 (ii) fifty percent of the quarter's tuition if the termination is
51 during the second week of instruction; or
52 (iii) seventy-five percent of the quarter's tuition if the termination
53 is during the third week of instruction; or [.]
54 (iv) one hundred percent of the quarter's tuition if the termination
55 occurs after the third week of instruction.
S. 4268--C 16
1 (B) For programs organized by terms of fifteen, sixteen, seventeen or
2 eighteen weeks apiece, the school shall evenly divide the total tuition
3 charges among the number of terms. After instruction is begun in a
4 school, if a student withdraws or is discontinued, the school may retain
5 no more than:
6 (i) twenty percent of the term's tuition if the termination is during
7 the first week of instruction; or
8 (ii) thirty-five percent of the term's tuition if the termination is
9 during the second week of instruction; or
10 (iii) fifty percent of the term's tuition if the termination is during
11 the third week of instruction; or
12 (iv) seventy percent of the term's tuition if the termination is
13 during the fourth week of instruction; or
14 (v) one hundred percent of the term's tuition if the termination
15 occurs after the completion of the fourth week of instruction.
16 (2) Notwithstanding the provisions of subparagraph one of this para-
17 graph, the tuition refund policy set forth in paragraph b of this subdi-
18 vision shall apply unless the school demonstrates that there are no
19 significant educational changes in the educational program of the
20 student, such changes as defined in regulations of the commissioner.
21 d. The tuition refund policy for the third and any subsequent term or
22 quarter of any program licensed [or registered] pursuant to section five
23 thousand one of this article shall be the policy set forth in subpara-
24 graph one of paragraph c of this subdivision.
25 e. No program shall have a term in excess of eighteen weeks.
26 f. The amount of the refund shall be calculated based on the last day
27 of student attendance.
28 g. (1) Any refund due to a student shall be paid by the school within
29 forty-five days of the date on which the student withdraws from the
30 program. For the purposes of this article, such date shall be the earli-
31 est of (i) the date on which the student gives written notice to the
32 school or (ii) the date on which the student is deemed to have withdrawn
33 pursuant to subparagraph two of this paragraph.
34 (2) If a student has failed to attend classes for a period of thirty
35 calendar days, the school shall send by regular mail a notice to the
36 student that the student shall be deemed to have withdrawn from the
37 program if the student does not notify the school to the contrary within
38 twelve days from the date on which the letter is sent. If the student
39 fails to respond within such twelve-day period, the student shall be
40 deemed to have withdrawn and the school shall notify the higher educa-
41 tion services corporation that the student has withdrawn and the date of
42 the withdrawal.
43 h. Schools shall submit, for approval by the commissioner, the school
44 catalog with a weekly tuition liability chart for each program that
45 indicates the amount of refund due the student in the event of with-
46 drawal.
47 i. Upon payment of a refund to a lender, the school shall forthwith
48 send a notice to a person designated by the president of the higher
49 education services corporation upon a form approved by the president
50 that such refund was made.
51 [i.] j. If the higher education services corporation fails to receive
52 the notice required by paragraph [h] i of this subdivision, it shall
53 forthwith notify the student of his or her right to a refund and the
54 commissioner of such failure. Upon receipt of such notification, the
55 commissioner shall take appropriate action against the school.
S. 4268--C 17
1 4. Curriculum approval. a. An application and fee shall be made for
2 the initial approval of a curriculum or course and shall include such
3 information as the commissioner may require by regulation. Approval
4 shall be valid for a period not to exceed four years. The application
5 fee for any curriculum of one hundred clock hours or more shall be two
6 hundred fifty dollars. The application fee for any course of less than
7 one hundred clock hours shall be one hundred dollars. Such application
8 fees shall accrue to the credit of the proprietary vocational school
9 supervision account.
10 b. In approving curriculum, the commissioner shall take into consider-
11 ation the following:
12 (1) that the entrance requirements demonstrate that students possess
13 the skills, competencies and prerequisite knowledge needed to progress
14 in the curriculum;
15 (2) that the content will enable the student to develop those skills
16 and competencies required for employment in the occupational area for
17 which the curriculum was developed;
18 (3) that the school will utilize appropriate instructional methods;
19 [and]
20 (4) that the instructional equipment used within the curriculum is
21 comparable to the equipment currently used by business or industry in
22 the occupational area for which the curriculum was developed; and
23 (5) that a curriculum may include instruction in English as a second
24 language at a beginning or basic level, provided such instruction shall
25 not constitute more than fifty percent of such program.
26 c. (1) If the evaluation of a particular course or facility requires
27 the services of an expert not employed by the department, the department
28 shall retain such expert [and the school shall reimburse the department
29 for the reasonable cost of such services] at the school's expense in
30 addition to the application fees prescribed in paragraph a of this
31 subdivision.
32 (2) If, in the interest of expediting the approvals, a school requests
33 the department to employ an outside consultant, the school shall [reim-
34 burse the department for] pay the [reasonable] cost of such services in
35 addition to the application fees prescribed in paragraph a of this
36 subdivision.
37 d. The commissioner shall act on applications for approval of a course
38 or curriculum within one hundred twenty days of receipt of a complete
39 application and, in the case of a denial, shall set forth in writing the
40 reasons for such denial.
41 e. Notwithstanding paragraphs b, c and d of this subdivision, curric-
42 ulum certified by a nationally recognized vendor as defined in commis-
43 sioner's regulations shall be recognized by the department in lieu of an
44 expert evaluation when such curriculum is adopted by a school in the
45 original format provided by the vendor as long as the proposed curric-
46 ulum is a stand alone program and not part of a larger comprehensive
47 course.
48 f. Notwithstanding any other provision of the law, a not-for-profit
49 [registered business] licensed career school, that is eligible for
50 participation in the tuition assistance program and which has national
51 accreditation, may, for the purpose of calculation of federal financial
52 aid amounts only, measure students' academic progress in an approved
53 curriculum in non-degree granting credit hours, based upon a national
54 accrediting agency's conversion and approval of clock hours to non-de-
55 gree credit hours. For the purposes of this paragraph, "national accred-
S. 4268--C 18
1 itation" shall mean accreditation by a national accrediting agency as
2 defined in the commissioner's regulations.
3 5. Application for reapproval. a. An application and fee shall be made
4 for reapproval of a curriculum or course. Such application shall be
5 considered timely if submitted at least one hundred twenty days prior to
6 the expiration of the current approval. The application fee for any
7 curriculum of one hundred clock hours or more shall be two hundred fifty
8 dollars. The application fee for any course of less than one hundred
9 clock hours shall be one hundred dollars, provided that no fee shall be
10 assessed for the submission of a reapproval application without change.
11 Such application fee shall accrue to the credit of the proprietary voca-
12 tional school supervision account.
13 b. Curriculum reapproval standards. (1) The commissioner shall pre-
14 scribe by regulation, standards for reapproval after the first year of
15 licensure, of any curriculum or course based upon factors including but
16 not limited to the following, as appropriate:
17 (i) for each curriculum or course, the percentage of students who have
18 dropped out;
19 (ii) the acquisition of a specified minimum level of skills by the
20 students; and
21 (iii) for each curriculum or course, the percentage of students placed
22 in occupations related to the instruction, where applicable.
23 (2) Such standards shall be consistent with those applied to all non-
24 degree career education programs.
25 c. Reapproval contingency. Reapproval of a curriculum or course shall
26 be contingent upon a demonstration by the applicant that the curriculum
27 or course has met the curriculum reapproval standards set forth in this
28 subdivision. Except as otherwise provided in paragraph d of this subdi-
29 vision, no such curriculum or course or substantially similar curriculum
30 or course may be given without reapproval by the commissioner.
31 d. When timely and complete application is made for the reapproval of
32 a curriculum or course, and no written denial is made thirty days prior
33 to the date of expiration of the existing approval, the curriculum or
34 course shall be deemed to be approved for the period of the curriculum.
35 If the application is denied, the commissioner shall set forth in writ-
36 ing the reasons for such denial.
37 e. The commissioner may provide in regulations for reapproval proce-
38 dures, consistent with this subdivision, for applications submitted less
39 than one hundred twenty days from the expiration date.
40 f. The commissioner shall act upon enrollment agreements and catalogs
41 within ninety days of receipt, and, in the case of denial, shall set
42 forth in writing the reasons for such denial. If the commissioner fails
43 to act within ninety days, a catalog shall be deemed approved for one
44 year and an enrollment agreement shall be deemed approved until the
45 commissioner acts upon it.
46 6. a. Teachers and directors. No person shall be employed by a private
47 career school as a director or teacher who is not licensed in such
48 capacity by the department pursuant to regulations of the commissioner,
49 which shall take into consideration such factors as moral character,
50 educational qualifications and practical experience. The application
51 shall include a statement, signed by the president or chief executive
52 officer of the school, certifying that to the best of his or her know-
53 ledge, the applicant is able to meet the educational qualifications and
54 practical experience set forth in the commissioner's regulations. Such
55 application shall be considered timely if mailed to the commissioner and
56 postmarked four days prior to employment at the school and must be
S. 4268--C 19
1 completed within twenty days thereafter; provided, however, that the
2 commissioner may, for good cause shown, extend the time within which to
3 complete the application. When a complete application is made, the
4 commissioner shall act upon such application within thirty days. If no
5 written denial is made within the thirty days, the application shall be
6 deemed to be approved until the commissioner acts upon it or until the
7 end of the term or semester, whichever occurs first. If a written denial
8 is made after the thirty day period, the commissioner may allow the
9 applicant to teach at the school for the remainder of the term or semes-
10 ter if the commissioner determines that the removal of the teacher would
11 not be in the best educational interest of the students. This subdivi-
12 sion shall not apply to directors or teachers employed on or before July
13 first, nineteen hundred seventy-two. Teachers' licenses issued on or
14 after [January first, nineteen hundred eighty-seven] the effective date
15 of the chapter of the laws of two thousand twelve which amended this
16 paragraph shall be valid at all [registered business] licensed private
17 career schools for the courses, curricula, or occupations indicated on
18 the license. Teachers holding valid private school teacher licenses
19 valid at only one school location shall have them replaced, at no cost,
20 with licenses valid at any licensed school in the same subject or
21 subjects and with the same expiration date as was listed on the previous
22 teaching license.
23 b. A school director shall have access to all student and school
24 records which shall be maintained in accordance with this article and
25 the regulations of the commissioner and shall make such records avail-
26 able to the commissioner or the commissioner's designee upon request
27 during an on-site school inspection.
28 c. Notwithstanding paragraph a of this subdivision, a teacher who has
29 been certified as an instructor by a nationally recognized vendor as
30 defined in commissioner's regulations may be deemed qualified as an
31 instructor by the department, provided such teacher shall only provide
32 instruction in the course or courses for which he or she holds vendor's
33 certification. A teacher authorized by this paragraph will be subject to
34 all licensing fees required by the department for licensed teachers.
35 7. Advertising. a. The commissioner is authorized to commence a disci-
36 plinary proceeding pursuant to this article for false, misleading,
37 deceptive or fraudulent advertising pursuant to regulations promulgated
38 by the commissioner which shall be consistent with article twenty-two-A
39 of the general business law. The department shall issue guidelines as to
40 appropriate advertising content. In developing such guidelines, the
41 department shall consider advertising for similar programs offered by
42 various educational institutions. In a disciplinary action or other
43 proceeding, such guidelines shall not be presumptive evidence that
44 particular advertising is appropriate.
45 b. Beginning on January first, two thousand, all schools shall include
46 in their advertising, promotional material, or letterhead the statement
47 "Licensed by the State of New York" [or "Registered by the State of New
48 York", as appropriate], and an accompanying symbol to indicate such
49 status, issued by the commissioner pursuant to section five thousand
50 nine of this article.
51 8. The higher education services corporation shall adopt rules and
52 regulations to effectuate the cessation of collection activities by
53 lenders or by the corporation in cases in which a licensed private
54 [vocational] career school [or a registered business school] at which
55 the student enrolled has closed or ceased its teaching activities during
56 the academic period for which the loan was made or guaranteed.
S. 4268--C 20
1 § 5. Section 5003 of the education law, as added by chapter 887 of the
2 laws of 1990, subparagraph 1 of paragraph c of subdivision 1 and para-
3 graphs d and e of subdivision 6 as amended by chapter 604 of the laws of
4 1993, paragraph d of subdivision 1 as added and paragraphs b and f of
5 subdivision 6 as amended by chapter 434 of the laws of 1999, is amended
6 to read as follows:
7 § 5003. Disciplinary actions, hearings and penalties. 1. Disciplinary
8 action. a. The commissioner for good cause, after affording a school an
9 opportunity for a hearing, may take disciplinary action as hereinafter
10 provided against any school authorized to operate under this article.
11 b. Good cause shall include, but not be limited to, any of the follow-
12 ing:
13 (1) fraudulent statements or representations to the department, the
14 public or any student in connection with any activity of the school;
15 (2) violation of any provision of this article or regulation of the
16 commissioner;
17 (3) conviction or a plea of no contest on the part of any owner, oper-
18 ator, director or teacher:
19 (A) of any of the following felonies defined in the penal law: bribery
20 involving public servants; commercial bribery; perjury in the second
21 degree; rewarding official misconduct; larceny, in connection with the
22 provision of services or involving the theft of governmental funds;
23 offering a false instrument for filing, falsifying business records;
24 tampering with public records; criminal usury; scheme to defraud; or
25 defrauding the government; or
26 (B) in any other jurisdiction of an offense which is substantially
27 similar to any of the felonies defined in clause (A) of this subpara-
28 graph and for which a sentence to a term of imprisonment in excess of
29 one year was authorized and is authorized in this state regardless of
30 whether such sentence was imposed; or
31 (4) incompetence of any owner or operator to operate a school.
32 c. (1) Any person who believes he or she has been aggrieved by a
33 violation of this section, except a person aggrieved by the actions or
34 omissions of a candidate school, shall have the right to file a written
35 complaint within: (A) two years of the alleged violation; or (B) one
36 year of receiving notification from the higher education services corpo-
37 ration or any other guarantee agency that the student has defaulted on a
38 student loan payment; provided, however, that no complaint may be filed
39 after three years from the date of the alleged violation. The commis-
40 sioner shall maintain a written record of each complaint that is made.
41 The commissioner shall also send to the complainant a form acknowledging
42 the complaint and requesting further information if necessary and shall
43 advise the director of the school that a complaint has been made and,
44 where appropriate the nature of the complaint.
45 (2) The commissioner shall within twenty days of receipt of such writ-
46 ten complaint commence an investigation of the alleged violation and
47 shall within ninety days of the receipt of such written complaint, issue
48 a written finding. The commissioner shall furnish such findings to the
49 person who filed the complaint and to the chief operating officer of the
50 school cited in the complaint. If the commissioner finds that there has
51 been a violation of this section, the commissioner shall take appropri-
52 ate action.
53 (3) The commissioner may initiate an investigation without a
54 complaint.
S. 4268--C 21
1 [d. During the initial two year licensing period, before the commis-
2 sioner may bring enforcement proceedings against a licensed entity, the
3 following shall be taken into consideration:
4 (1) whether such entity has demonstrated that the regulations promul-
5 gated under this chapter are unduly burdensome given the nature of the
6 instruction provided by such entity;
7 (2) whether such entity has identified potential areas of noncompli-
8 ance with this chapter and any such regulation within sixty days of the
9 licensing or registration date of such entity;
10 (3) whether such entity has engaged in good faith discussions with the
11 department to resolve such violations and/or promulgate regulations
12 which further the goals of this chapter.]
13 (4) Notwithstanding the provisions of subparagraph one of this para-
14 graph or any other provision of this article to the contrary, a student
15 at a candidate school shall have the right to file a written complaint
16 from an alleged violation of the provisions of clause three of subpara-
17 graph (iv) of paragraph b of subdivision four of section five thousand
18 one of this article that require disclosure of candidacy status and its
19 implications and a signed attestation by the student, within two years
20 of such violation. Upon a finding that such a violation has occurred,
21 the candidate school shall be required to provide a refund of all monies
22 and fees received from or on behalf of the student. Appropriate action
23 shall also be taken against the candidate school pursuant to the
24 provisions of subparagraph (iv) of paragraph b of subdivision four of
25 section five thousand one of this article.
26 2. Hearing procedures. a. Upon a finding that there is good cause to
27 believe that a candidate school under the provisions of subparagraph
28 (iv) of paragraph b of subdivision four of section five thousand one of
29 this article, or a licensed school, or an officer, agent, employee,
30 partner or teacher, has committed a violation of this article, the
31 commissioner shall initiate proceedings by serving a notice of hearing
32 upon each and every such party subject to the administrative action. The
33 school or such party shall be given reasonable notice of hearing,
34 including the time, place, and nature of the hearing and a statement
35 sufficiently particular to give notice of the transactions or occur-
36 rences intended to be proved, the material elements of each cause of
37 action and the civil penalties and/or administrative sanctions sought.
38 b. Opportunity shall be afforded to the party to respond and present
39 evidence and argument on the issues involved in the hearing including
40 the right of cross examination. In a hearing, the school or such party
41 shall be accorded the right to have its representative appear in person
42 or by or with counsel or other representative. Disposition may be made
43 in any hearing by stipulation, agreed settlement, consent order, default
44 or other informal method.
45 c. (1) The commissioner shall designate an impartial hearing officer
46 to conduct the hearing, who shall be empowered to:
47 (A) administer oaths and affirmations; and
48 (B) regulate the course of the hearings, set the time and place for
49 continued hearings, and fix the time for filing of briefs and other
50 documents; and
51 (C) direct the school or such party to appear and confer to consider
52 the simplification of the issues by consent; and
53 (D) grant a request for an adjournment of the hearing only upon good
54 cause shown.
55 (2) The strict legal rules of evidence shall not apply, but the deci-
56 sion shall be supported by substantial evidence in the record.
S. 4268--C 22
1 3. Decision after hearing. The hearing officer shall make written
2 findings of fact and conclusions of law, and shall also recommend in
3 writing to the commissioner a final decision including penalties. The
4 hearing officer shall mail a copy of his or her findings of fact,
5 conclusions of law and recommended penalty to the party and his or her
6 attorney, or representative. The commissioner shall make the final
7 decision, which shall be based exclusively on evidence and other materi-
8 als introduced at the hearing. If it is determined that a party has
9 committed a violation, the commissioner shall issue a final order and
10 shall impose penalties in accordance with this section. The commissioner
11 shall send by certified mail, return receipt requested, a copy of the
12 final order to the party and his or her attorney, or representative. The
13 commissioner shall, at the request of the school or such party, furnish
14 a copy of the transcript or any part thereof upon payment of the cost
15 thereof.
16 4. Judicial review. Any order imposed under this section shall be
17 subject to judicial review under article seventy-eight of the civil
18 practice law and rules, but no such determination shall be stayed or
19 enjoined except upon application to the court after notice to the
20 commissioner.
21 5. Enforcement proceedings. The attorney general, in his or her own
22 capacity, or at the request of the commissioner, may bring an appropri-
23 ate action or proceeding in any court of competent jurisdiction to
24 recover a fine or otherwise enforce any provision of this article.
25 6. Civil penalties and administrative sanctions. a. A hearing officer
26 may recommend, and the commissioner may impose, a civil penalty not to
27 exceed [two] three thousand five hundred dollars for any violation of
28 this article, including a school's failure to offer a course or program
29 as approved by the commissioner. In the case of a second or further
30 violation committed within [the previous] five years of the previous
31 violation, the liability shall be a civil penalty not to exceed [five]
32 seven thousand five hundred dollars for each such violation.
33 b. Notwithstanding the provisions of paragraph a of this subdivision,
34 a hearing officer may recommend, and the commissioner may impose a civil
35 penalty not to exceed [fifty] seventy-five thousand dollars or double
36 the documented amount from which the school benefited, whichever is
37 greater, for any of the following violations: (1) operation of a school
38 without a license in violation of section five thousand one of this
39 article; (2) operation of a school knowing that the school's license has
40 been suspended or revoked; (3) use of false, misleading, deceptive or
41 fraudulent advertising; (4) employment of recruiters on the basis of a
42 commission, bonus or quota, except as authorized by the commissioner;
43 (5) directing or authorizing recruiters to offer guarantees of jobs upon
44 completion of a course; (6) failure to make a tuition refund when such
45 failure is part of a pattern of misconduct; (7) the offering of a course
46 or program that has not been approved by the commissioner; (8) admitting
47 students, who subsequently drop out, who were admitted in violation of
48 the admission standards established by the commissioner, where such
49 admissions constitute a pattern of misconduct and where the drop out
50 resulted at least in part from such violation; (9) failure to provide
51 the notice of discontinuance and the plan required by subdivision seven
52 of section five thousand one of this article; or (10) violation of any
53 other provision of this article, or any rule or regulation promulgated
54 pursuant thereto, when such violation constitutes part of a pattern of
55 misconduct which significantly impairs the educational quality of the
56 program or programs being offered by the school. For each enumerated
S. 4268--C 23
1 offense, a second or further violation committed within [the previous]
2 five years, shall be subject to a civil penalty not to exceed [seventy-
3 five thousand dollars] one and one-half times the amount of the previous
4 violation for each such violation.
5 c. In addition to the penalties authorized in paragraphs a and b of
6 this subdivision, a hearing officer may recommend and the commissioner
7 may impose any of the following administrative sanctions: (1) a cease
8 and desist order; (2) a mandatory direction; (3) a suspension or revoca-
9 tion of a license; (4) a probation order; or (5) an order of restitu-
10 tion.
11 d. Penalty factors. In the recommendation of any penalty, a hearing
12 officer shall, at a minimum, give due consideration, where applicable,
13 to the good faith of the violator[; the performance of the school with
14 respect to student placement and retention rates, and students' acquisi-
15 tion of skills;] and the gravity of the violation[; and the harm caused
16 to the student].
17 e. The commissioner may suspend a license [or registration] upon the
18 failure of a school to pay any fee, fine, penalty, settlement or assess-
19 ment as required by this article unless such failure is determined by
20 the commissioner to be for good cause.
21 f. All civil penalties, fines and settlements received after April
22 first, nineteen hundred ninety shall accrue to the credit of the tuition
23 reimbursement account established pursuant to section ninety-seven-hh of
24 the state finance law.
25 7. Criminal penalties. In addition to any other penalties elsewhere
26 prescribed:
27 a. Any person who knowingly violates any of the provisions of this
28 article shall be guilty of a class B misdemeanor punishable in accord-
29 ance with the penal law. If the conviction is for a second offense
30 committed within five years of the first conviction under this para-
31 graph, such person shall be guilty of a class A misdemeanor punishable
32 in accordance with the penal law.
33 b. Any person who knowingly (1) falsifies or destroys school or other
34 business records relating to the operation of the school with intent to
35 defraud; (2) fails to make a tuition refund as required by section five
36 thousand two of this article with the intent to defraud more than one
37 person; or (3) operates a school without a valid license required by
38 section five thousand one of this article shall be guilty of a class A
39 misdemeanor punishable in accordance with the penal law.
40 c. Any person who, having been convicted within the past five years of
41 failing to make a tuition refund in violation of subparagraph two of
42 paragraph b of this subdivision, knowingly and intentionally engages in
43 a scheme constituting a systematic ongoing course of conduct involving
44 the wrongful withholding of refunds in violation of section five thou-
45 sand two of this article with the intent to defraud ten or more persons,
46 and so withholds tuition refunds in excess of one thousand dollars,
47 shall be guilty of a class E felony punishable in accordance with the
48 penal law.
49 d. Upon a determination that there exist reasonable grounds to believe
50 that a violation of this article has been committed, or that any other
51 crime has been committed in connection with the operation of a school
52 required to be licensed pursuant to this article, the commissioner shall
53 refer such determination, and the information upon which it is based, to
54 the attorney general or to the appropriate district attorney. The attor-
55 ney general or a district attorney may bring an action on his or her own
56 initiative.
S. 4268--C 24
1 8. Private right of action. A student injured by a violation of this
2 article may bring an action against the owner or operator of a licensed
3 private career school [or registered business school] for actual damages
4 or one hundred dollars, whichever is greater. A court may, in its
5 discretion, award reasonable attorney's fees to a prevailing plaintiff.
6 § 6. Subdivisions 3 and 4 of section 5004 of the education law, as
7 amended by chapter 604 of the laws of 1993, are amended and a new subdi-
8 vision 4-a is added to read as follows:
9 3. Exempted from the requirements of this section are persons acting
10 solely for schools which are not required to be licensed or are specif-
11 ically exempted from the licensing [or registration] requirements of
12 this article. Persons who are paid to procure, solicit or enroll
13 students on the premises of schools required to be licensed [or regis-
14 tered] shall not be exempt from the provisions of this section. The
15 certification requirements of this section shall not apply to persons
16 receiving gifts or other non-monetary considerations valued at not more
17 than [twenty-five] seventy-five dollars from a school from which they
18 have graduated or are currently enrolled for each student referred for
19 enrollment at the school.
20 4. Application and renewal application for a private school agent's
21 certificate shall be filed on forms to be prescribed and provided by the
22 commissioner. Said certificate shall be valid for [two] three years from
23 the date of issuance. Certificates which have been renewed shall be
24 valid for a period of [two] three years from the expiration date of the
25 certificate which has been renewed. Every applicant and renewal appli-
26 cant shall pay to the department a fee of [one] two hundred dollars.
27 4-a. Notwithstanding the provisions of subdivision four of this
28 section, the school director may apply for a private school agent's
29 certificate on forms to be prescribed and provided by the commissioner
30 without incurring the agent application fee.
31 § 7. Section 5006 of the education law, as added by chapter 887 of the
32 laws of 1990, is amended to read as follows:
33 § 5006. Teachout plans. 1. A school may submit a teachout plan to the
34 commissioner for approval pursuant to regulations established by the
35 commissioner. A teachout plan shall consist of a contract between a
36 [registered business or] licensed private career school, with another
37 school, hereinafter called the teachout school, so that in the event
38 that the [registered business or] licensed private career school ceases
39 instruction, the teachout school will provide the necessary instruction
40 specified in a student's original enrollment agreement with the school
41 ceasing instruction. A teachout plan may employ more than one teachout
42 school to provide instruction to students in the school ceasing instruc-
43 tion. Schools under common ownership but having separate licenses [or
44 registrations] may, subject to the approval of the commissioner, enter
45 into teachout agreements. A teachout plan may be contracted between the
46 commissioner and one or more teachout schools in the event that the
47 closing school is unable or unwilling to do so.
48 2. A teachout plan shall include the following provisions: (a) the
49 teachout school must offer courses of study that are substantially simi-
50 lar to those offered in the school ceasing instruction;
51 (b) teachout schools must be located in the geographic area in which
52 the school ceasing instruction was located unless the school ceasing
53 instruction provided distance learning or online training;
54 (c) all provisions for a teachout plan must be included in the enroll-
55 ment agreement signed by the student; and
S. 4268--C 25
1 (d) the teachout school shall agree to fulfill the enrollment agree-
2 ment signed by the student at the school ceasing instruction.
3 3. The [registered business or] licensed school shall provide to the
4 teachout school and to the department [immediately upon closure] the
5 following information prior to closure:
6 (a) Copies of the academic and financial records for all students in
7 attendance at the school at the projected time of closure;
8 (b) A listing of all such students presently in attendance including
9 their names, addresses, social security numbers, curriculum that each
10 student is enrolled in and the number of hours the students will have
11 completed at the time of the school closure.
12 4. The department will provide to the teachout school, immediately
13 upon notification of a school closing, a copy of each approved curric-
14 ulum that the closing school is presently offering.
15 5. The commissioner shall require all teachout schools to address the
16 following issues:
17 (a) Integration of students into a curriculum which may be different
18 from the curriculum in which they are currently receiving instruction;
19 (b) Assessments of students' progress so that they may be placed into
20 an appropriate course;
21 (c) Provision of remedial instruction to students who are found to be
22 deficient in one or more course areas upon their initial assessment;
23 (d) Provision by the teachout school to adhere to the required
24 student/teacher ratios and room capacities; and
25 (e) Compliance with statutory and regulatory requirements during the
26 teachout.
27 6. The student shall not be subject to any costs beyond the total
28 costs identified in the original enrollment agreement.
29 7. A student may decline to pursue instruction at the teachout school
30 and may instead seek a refund pursuant to section five thousand seven of
31 this article.
32 § 8. Section 5007 of the education law, as added by chapter 887 of the
33 laws of 1990, the section heading, subdivision 1 and subdivision 10 as
34 amended by chapter 434 of the laws of 1999, paragraph a of subdivision
35 3, paragraphs c and d of subdivision 4, subparagraphs 1 and 3 of para-
36 graph a and paragraph b of subdivision 5, paragraph b of subdivision 9
37 as amended and paragraphs e and f of subdivision 4 as added by chapter
38 604 of the laws of 1993, is amended to read as follows:
39 § 5007. Tuition reimbursement account. 1. Except as otherwise provided
40 in subdivision six of this section, the portion of the annual assessment
41 of schools [registered and] licensed pursuant to section five thousand
42 one of this article as prescribed in subdivision [eight] nine of such
43 section and all fines, penalties and settlements received pursuant to
44 this article shall be transferred upon receipt into the tuition
45 reimbursement account.
46 3. a. The commissioner shall develop a complaint form and provide such
47 form to students. In order to claim a refund, a student shall apply to
48 the fund with a complaint form pursuant to the requirements of section
49 five thousand three of this article. Except as otherwise provided in
50 this article, the commissioner shall compute the refund, if any, using
51 the refund formula established by subdivision three of section five
52 thousand two of this article.
53 b. Claimants who had been enrolled in schools which have not closed or
54 ceased operation shall be required to show in a manner determined by the
55 commissioner that:
56 (1) the student is eligible for a refund;
S. 4268--C 26
1 (2) the student has made a request to the school for a refund; and
2 (3) the school has failed to make the refund within the time period
3 required by this article.
4 c. The commissioner shall act on each refund request within thirty
5 business days of such request.
6 4. Students may be eligible for refunds under this section as follows:
7 a. A student who is offered a teachout plan for the curriculum in
8 which the student was enrolled at the time the school closed or ceased
9 operation, which has been approved by the department, may elect to
10 continue instruction pursuant to the teachout plan or may decline to
11 continue instruction and may instead apply for a full refund under this
12 section. The option to apply for a refund shall extend to the end of the
13 first week of instruction at the teachout school.
14 b. A student who was enrolled in a school which has not closed or
15 ceased operation is entitled to a refund computed in accordance with the
16 refund policy established by subdivision three of section five thousand
17 two of this article.
18 c. A student who was enrolled in a school at the time the school clos-
19 es or ceases operation is entitled to a refund of the full amount of
20 prepaid tuition. In addition, commencing September first, nineteen
21 hundred ninety-three, a student who drops out of a school, where such
22 school closes within [fourteen] thirty days of the student's termination
23 and prior to completion of such student's program as specified in the
24 enrollment agreement, shall be entitled to a full refund of [the full
25 amount of prepaid tuition] all tuition, fees and book charges paid for
26 by or on behalf of the student in cash or in loans, excluding funding
27 provided by any government agencies.
28 d. A student who was enrolled in a school which has not closed or
29 ceased operation, and who has dropped out, is entitled to a full refund
30 of all tuition, fees and other required costs paid by the student if the
31 student has submitted a complaint form to the commissioner and the
32 commissioner has determined that a violation of this article has
33 occurred which warrants a refund. The commissioner shall promulgate
34 regulations identifying those violations that warrant a refund.
35 e. Commencing September first, nineteen hundred ninety-three, a
36 student who drops out of a school, which subsequently closes, and who is
37 owed a refund for the failure of such school to follow the provisions
38 enumerated in subdivision three of section five thousand two of this
39 article shall be eligible for a refund from the tuition reimbursement
40 fund according to the provisions of subdivision three of section five
41 thousand two of this article.
42 f. Commencing September first, nineteen hundred ninety-three, any
43 student enrolled in a school based upon an ability to benefit examina-
44 tion shall be eligible for a full refund, regardless of whether the
45 student is currently enrolled, graduated or dropped out, if the school
46 enrolled the student contrary to the provisions of the approved entrance
47 requirements and the student complies with the requirements of subdivi-
48 sion one of section five thousand three of this article.
49 5. a. For a student who had been enrolled in a school that has not
50 closed or ceased operation, the refund shall be paid as follows:
51 (1) guaranteed student loans, if any, in which case the commissioner
52 shall notify the student of such payment and shall be paid directly to
53 the lender or guarantee agency where appropriate;
54 (2) actual personal tuition expenditures, if any; and
55 (3) tuition assistance program awards and other governmental aid.
S. 4268--C 27
1 b. For schools that have closed or ceased operation, the commissioner
2 shall refund actual personal tuition, fees and book expenditures to the
3 student. The repayment of any loans incurred by the student as part of
4 the actual personal tuition, fees and book expenditures shall be paid
5 directly to the lender or the guarantee agency where appropriate.
6 6. a. Where a claim is paid to a student of an operating school, the
7 commissioner shall immediately notify the school.
8 b. Within ten days of the receipt of the notice, the school shall
9 either request a hearing to challenge the commissioner's determination
10 that a refund was owed to the student or reimburse the fund the amount
11 paid to the claimant plus a penalty up to two times such amount. This
12 payment shall also incur interest for each day it remains unpaid at an
13 annual interest rate of one percent above the prime rate. The commis-
14 sioner may promulgate streamlined procedures for conducting hearings
15 pursuant to this paragraph. Any penalty assessed under this paragraph
16 shall be in addition to any other penalties assessed pursuant to this
17 article. Notwithstanding any other provision of law, penalties and
18 interest paid pursuant to this paragraph shall accrue to the credit of
19 the proprietary vocational school supervision account to support the
20 costs associated with the hearings authorized in this subdivision.
21 7. Notwithstanding the notice procedures described in subdivision
22 three of this section, in the event of a school closing, the commission-
23 er on his or her own initiative may take appropriate action in accord-
24 ance with this section to process refund claims on behalf of all of the
25 students of the closed school.
26 8. Assignment of rights. Persons and entities receiving refunds under
27 this section shall be deemed to have assigned or subrogated their
28 tuition reimbursement rights to the commissioner on behalf of the
29 tuition reimbursement fund only for the amount refunded by the tuition
30 reimbursement fund. Within [thirty] ninety days of any refund made
31 pursuant to this section, the commissioner or the attorney general shall
32 take appropriate action to recover the total amount of the refunds made,
33 plus administrative costs, from the school.
34 9. a. A student whose loan liability is exempted pursuant to former
35 section six hundred eighty-three of this chapter and is entitled to or
36 owed a refund shall transfer to the higher education services corpo-
37 ration the right to claim the refund owed and due from the tuition
38 reimbursement fund. In such event, the corporation shall be entitled to
39 receive a refund for that portion of the claim not paid to the corpo-
40 ration by the United States Secretary of Education pursuant to the
41 federal guaranteed loan program.
42 b. Any amounts remaining in the tuition reimbursement fund as of June
43 first, nineteen hundred ninety-three and on every March thirty-first
44 thereafter, shall be made available to the higher education services
45 corporation for payment of student loans on which collection activity
46 has ceased pursuant to the provisions of subdivision six of former
47 section six hundred eighty-three of this chapter. No amounts shall be
48 paid to the higher education services corporation for loans on which
49 collection activity has ceased because of the operation of section 437
50 of the Higher Education Act of 1965, as amended.
51 10. Management of the tuition reimbursement account. a. As used in
52 this subdivision, net balance is defined as the actual cash balance of
53 the account as determined by the commissioner on June thirtieth, nine-
54 teen hundred ninety-three and every three months thereafter. For the
55 purpose of calculating the net balance, the commissioner shall not take
56 into consideration any refunds made from the account pursuant to para-
S. 4268--C 28
1 graphs d and f of subdivision four of this section for the year imme-
2 diately preceding the date on which the calculation is made.
3 b. In the event that the account has accumulated a net balance in
4 excess of one million eight hundred thousand dollars, the commissioner
5 shall, with the approval of the director of the budget, waive an amount
6 not to exceed the amount due for the next quarterly assessment pursuant
7 to this section and subdivision nine of section five thousand one of
8 this article for schools which have paid sixteen quarters or more of
9 assessments only. In such event, payment of future quarterly assessments
10 shall be suspended for schools which have paid sixteen quarters or more
11 of assessments until the net balance of the account falls below one
12 million three hundred thousand dollars.
13 c. In the event the net balance of the account falls below one million
14 three hundred thousand dollars, if the quarterly assessment has been
15 suspended for schools which have paid sixteen quarters or more of
16 assessments pursuant to paragraph b of this subdivision, it shall be
17 reinstated for the next quarterly assessment and all subsequent quarter-
18 ly assessments until the account has accumulated a net balance in excess
19 of one million eight hundred thousand dollars.
20 d. Notwithstanding the provisions of paragraph b of this subdivision,
21 in the event that the balance of the account is in excess of one million
22 three hundred thousand dollars, all schools licensed after June thirti-
23 eth, nineteen hundred ninety-nine shall be required to pay into the
24 account the equivalence of three years of annual assessments over a five
25 year period.
26 e. Notwithstanding the provisions of paragraph b of this subdivision
27 all schools licensed after June thirtieth, nineteen hundred ninety-three
28 and before July first, nineteen hundred ninety-nine will be required to
29 pay into the account the equivalence of three years of annual assess-
30 ments within four years of the effective date of this paragraph. This
31 amount to be assessed shall be determined based upon the school's gross
32 tuition in its first three years of licensure.
33 g. In the event that the balance of the tuition reimbursement account
34 is equal to or in excess of [one] two million [five hundred thousand]
35 dollars, the amounts assessed the schools in accordance with the
36 provisions of paragraphs d and e of this subdivision shall be deposited
37 directly to the proprietary vocational school supervision account.
38 h. The commissioner may annually apportion from the account an amount
39 up to two hundred thousand dollars for the purpose of securing, scanning
40 and otherwise making student records from closed schools available to
41 students who attended such schools. Provided, however, that in no case
42 shall such apportionment cause the account to fall below the balance set
43 forth in paragraph c of this subdivision, nor shall such apportionment
44 cause schools whose quarterly assessments have been suspended to pay
45 additional quarterly assessments.
46 11. Fund audit. The state comptroller shall [annually] audit or cause
47 to be audited the tuition reimbursement fund once every two years and
48 produce an [annual] audited financial statement according to generally
49 accepted accounting principles.
50 12. New schools. Within the first [six months] year that a school
51 begins licensed operation, the commissioner shall assess such school an
52 amount to be deposited into the fund in an amount to be determined by
53 the commissioner.
54 § 9. Section 5008 of the education law, as added by chapter 887 of
55 the laws of 1990, is amended to read as follows:
S. 4268--C 29
1 § 5008. Trust accounts. 1. If the commissioner determines that a
2 school has demonstrated a pattern or practice of failing to make tuition
3 refunds in a timely manner consistent with this article and/or the
4 school's financial condition may result in the interruption or cessation
5 of instruction or jeopardize student tuition funds, the commissioner
6 shall require a school to establish a trust account in a form or manner
7 which the commissioner[, after consultation with the advisory council,]
8 shall [prescribe in regulations] determine to be appropriate. The assets
9 or funds contained in the trust account shall be maintained for the sole
10 and exclusive benefit of the students.
11 2. In making this determination, the commissioner shall consider the
12 following factors: the number of refunds not paid by the school in a
13 timely manner; the number of claims made to, or paid by, the tuition
14 reimbursement [fund] account; [and] a pattern of misconduct which
15 substantially affects the financial interests of students or the state,
16 potential liability to the tuition reimbursement account, current assets
17 as opposed to current liabilities, and such other measures as may be
18 appropriate.
19 § 10. Section 5009 of the education law, as amended by chapter 434 of
20 the laws of 1999, is amended to read as follows:
21 § 5009. Duties of the commissioner. In addition to all other duties
22 assigned in this article, the duties of the commissioner shall include,
23 but not be limited to:
24 [(a) submitting a report to the governor, the temporary president of
25 the senate, the speaker of the assembly, the minority leader of the
26 senate and the minority leader of the assembly beginning the fifteenth
27 day of January after this section shall have become effective, and annu-
28 ally thereafter on that date, on the implementation and enforcement of
29 this article, which shall include but not be limited to (i) curriculum
30 approval and reapproval standards, (ii) student complaints, (iii) the
31 resolution of disciplinary actions brought by the department or other
32 appropriate state agency, (iv) the audited financial statements submit-
33 ted by the schools, (v) tuition reimbursement account activity, (vi)
34 data regarding retention and completion rates for students enrolled in
35 nondegree, appropriate degree or certificate programs of two years or
36 less at registered business schools, licensed private schools, proprie-
37 tary degree-granting schools and independent and public colleges, (vii)
38 the extent to which the department has met the timelines mandated by
39 this article, (viii) entrance standards, (ix) the number of schools
40 inspected annually, and (x) the number of trust accounts imposed.
41 (b)] 1. ensuring that up-to-date, accurate information is available to
42 the public, via the internet and other appropriate media, regarding
43 every duly licensed proprietary school in this state, as well as disci-
44 plinary actions decided by the state.
45 [(c)] 2. developing and issuing to duly licensed [and registered]
46 proprietary schools a symbol to indicate such status; provided that such
47 symbol shall be developed and made available to such schools no later
48 than September thirtieth, nineteen hundred ninety-nine.
49 [(d)] 3. administering a public information campaign aimed at increas-
50 ing awareness about the importance of attending licensed [or registered]
51 proprietary vocational schools. Such campaign shall be targeted to popu-
52 lations at risk of enrolling in unlicensed [or unregistered] schools,
53 and shall be conducted using means including, but not limited to, public
54 service announcements on commercial radio and television stations,
55 public access television, and print media.
S. 4268--C 30
1 [(e)] 4. providing for the orderly maintenance of any student records
2 which may be transferred to the department pursuant to any school's plan
3 developed pursuant to subdivision eight of section five thousand one of
4 this article; including responding to student requests for transcripts
5 and records within twenty days of receiving a request. The commissioner
6 is hereby authorized to impose an appropriate fee for such transcripts
7 pursuant to a schedule approved by the director of the budget.
8 § 11. Section 5010 of the education law, as added by chapter 887 of
9 the laws of 1990, subdivision 1 as amended by section 23 of part A of
10 chapter 62 of the laws of 2011, subdivision 4 as added by chapter 604 of
11 the laws of 1993, and subdivision 5 as added by chapter 434 of the laws
12 of 1999, is amended to read as follows:
13 § 5010. Advisory council. 1. An advisory council for [registered busi-
14 ness and] licensed [trade] private career schools is hereby created for
15 the purpose of advising the board of regents and the commissioner as
16 provided herein. The council shall be composed of eleven members
17 appointed by the governor, two of whom shall be upon the recommendation
18 of the temporary president of the senate, two of whom shall be upon the
19 recommendation of the speaker of the assembly, one of whom shall be upon
20 the recommendation of the minority leader of the senate and one of whom
21 shall be upon the recommendation of the minority leader of the assembly.
22 Of the five remaining members, one shall be an owner or director of a
23 school regulated pursuant to this article, [one shall be a currently
24 enrolled student at the time of appointment or a graduate of such a
25 school who graduated within three years of appointment] and one shall be
26 a student advocate. The governor shall designate a chairperson from such
27 members. The commissioner [of education], the president of the higher
28 education services corporation, the secretary of state, the comptroller,
29 the director of the division of the budget, and the executive director
30 of the job training partnership council, or their designees, shall serve
31 as ex-officio, non-voting members of the council.
32 2. The council shall meet no less than four times a year. Members of
33 the council shall receive no compensation for their services but shall
34 be reimbursed for reasonable expenses actually and necessarily incurred
35 by them in the performance of their duties. Council member terms of
36 office shall be limited to three years, provided that members may be
37 reappointed. All appointments to the council to fill vacancies in exist-
38 ence on the effective date of the chapter of the laws of two thousand
39 twelve which amended this subdivision shall be made within ninety days
40 of such effective date.
41 3. The council shall advise the commissioner on [the following] such
42 matters[:
43 (a) trust accounts;
44 (b) performance standards;
45 (c) the effectiveness and utilization of the tuition reimbursement
46 fund;
47 (d) the efficacy of instituting a fee-for-service system;
48 (e) the effectivesness of the timelines mandated by this article;
49 (f) the impact of assessments on schools;
50 (g) recruitment bonuses; and
51 (h) such other matters] as the council determines are appropriate.
52 [4. The proprietary school advisory council shall conduct a study
53 concerning the methodologies used to determine student refunds. Such
54 study shall include, but not be limited to, refund policies promulgated
55 pursuant to federal statute or regulation, state statute or regulation
56 and the policies of national accrediting organizations as they relate to
S. 4268--C 31
1 term-based and clock hour-based programs. Not later than July first,
2 nineteen hundred ninety-four, the advisory council shall make recommen-
3 dations to the commissioner and the board of regents for any changes in
4 legislation, regulations, policy or practice needed to improve and
5 simplify the student refund process. The commissioner shall submit a
6 report of the findings of the advisory council together with the recom-
7 mendations of the department to the legislature and the governor not
8 later than the first day of October, nineteen hundred ninety-four.
9 5. The advisory council shall report to the governor, the temporary
10 president of the senate, the speaker of the assembly, and the commis-
11 sioner on the status of unlicensed proprietary schools in this state.
12 The report shall also contain a statement on the effectiveness of the
13 change in the tuition reimbursement fund and any recommendations for an
14 extension of the changes or the consideration of different changes when
15 such changes are repealed. Such report is to be delivered on April
16 first, two thousand two.]
17 § 12. This act shall take effect on the one hundred twentieth day
18 after it shall have become a law; provided, however, that subparagraph
19 (iv) of paragraph b of subdivision 4 of section 5001 of the education
20 law, as added by section three of this act, shall expire and be deemed
21 repealed three years after such effective date; and provided, further,
22 that paragraph g of subdivision 10 of section 5007 of the education law,
23 as amended by section eight of this act shall not affect the repeal of
24 such paragraph and shall be deemed repealed therewith; and provided,
25 further, that effective immediately, the commissioner of education is
26 authorized and directed to promulgate any regulations needed to imple-
27 ment the provisions of this act on such effective date.
