BILL - 2003-04 ELFA


                STATE OF NEW YORK
       ________________________________________________________________________
 
           S. 1407                                                  A. 2107
 
                SENATE - ASSEMBLY
 
                                   January 29, 2003
                                      ___________
 
       IN  SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
         cle seven of the Constitution -- read twice and ordered  printed,  and
         when printed to be committed to the Committee on Finance
 
       IN  ASSEMBLY  --  A  BUDGET  BILL, submitted by the Governor pursuant to
         article seven of the Constitution -- read once  and  referred  to  the
         Committee on Ways and Means
 
       AN  ACT  to  amend  the  education law, in relation to the powers of the
         boards of trustees of the state university of New York  and  the  city
         university  of  New York to establish tuition rates (Part A); to amend
         the education law, in relation to the powers of the boards of trustees
         of the state university of New York to  establish  and  contract  with
         not-for-profit  corporations  (Part B); to amend the arts and cultural
         affairs law, the state finance law, the parks, recreation and historic
         preservation law and the not-for-profit corporation law,  in  relation
         to  establishing  the  New  York  institute for cultural education and
         providing for the orderly transfer of all functions,  powers,  duties,
         obligations, and assets of the office of cultural education located in
         the  state education department to the New York institute for cultural
         education; and repealing  certain  provisions  of  the  education  law
         relating  thereto (Part C); to amend the education law, in relation to
         the calculation and payment of  state  aid  to  school  districts  and
         boards  of  cooperative  educational services, school construction and
         the apportionment of aid, the apportionment of aid for the purchase of
         cooperative educational services, the special act school districts and
         their status regarding the boards of cooperative educational services,
         the creation of a needs resource index in the education law  in  order
         to  prioritize the payment of aid on school construction projects, and
         the ability of the state education department to continue using admin-
         istrative discretion in  the  award  of  grants  to  school  districts
         notwithstanding  provisions  of  the  state  finance law; to amend the
         general municipal law,  in  relation  to  the  contracting  of  school
         district  construction  projects; to amend the public authorities law,
         in relation to special school purpose agreements; to amend chapter  60
         of  the  laws  of  2000,  amending  the education law, relating to the
         enactment of major components necessary to the implementation  of  the
         2000-01  state  fiscal  plan, chapter 82 of the laws of 1995, amending
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD12112-01-3
       S. 1407                             2                            A. 2107
 
         the education law and certain laws relating to aid to school districts
         and the appropriation of funds for  the  support  of  government,  and
         chapter 169 of the laws of 1994 relating to certain provisions related
         to  the  1994-95 state operations, aid to localities, capital projects
         and debt service budgets, in relation to certain expiration and repeal
         dates contained therein; to amend chapter 756  of  the  laws  of  1992
         relating to funding a program for workforce education conducted by the
         consortium  for  worker education in New York City, in relation to the
         effectiveness thereof; to repeal certain provisions of  the  education
         law relating to letting of construction contracts; to repeal paragraph
         b of subdivision 1 of section 1734 and subdivisions 1 and 3 of section
         1735  of  the  public authorities law relating to contracts of the New
         York city school construction authority; and to repeal section  11  of
         chapter  795  of  the  laws  of  1967, amending the education law, the
         public authorities law and the  real  property  tax  law  relating  to
         authorizing  boards  of  cooperative  educational  services to own and
         construct buildings relating  to  boards  of  cooperative  educational
         services  constructing buildings through the dormitory authority (Part
         D); to amend the education law, in relation to the number and appoint-
         ment of members of the board of regents, promulgation  of  regulations
         by the regents and the commissioner of education, and the responsibil-
         ities  and  compensation  of  superintendents of boards of cooperative
         educational services and supervisory districts; to  amend  the  county
         law,  in relation to making certain technical corrections; and repeal-
         ing certain provisions of the education law relating to the  board  of
         regents  (Part  E);  to  amend  the  education law, in relation to the
         eligibility requirements for the tuition assistance  program  and  the
         creation  of  a tuition assistance loan program (Part F); to amend the
         real property law and the state finance law, in relation  to  the  fee
         for  recording  real  property  transfer  reporting forms (Part G); to
         amend chapter 540 of the laws of 1992, amending the real property  tax
         law  relating to oil and gas charges, in relation to the effectiveness
         of such chapter (Part H); to amend  the  labor  law,  in  relation  to
         transfer  of  certain  programs  for  the vocational rehabilitation of
         individuals with disabilities from the  education  department  to  the
         department of labor, transfer of certain programs for blind or visual-
         ly  handicapped  persons  and the equipment loan fund for the disabled
         from the office of children and family services to the  department  of
         labor,  and  transfer of certain programs for blind and visually hand-
         icapped persons aged fifty-five and over to the office for the  aging;
         to amend the mental hygiene law, the social services law, the election
         law and the education law, in relation to making technical corrections
         thereto; to repeal articles 21 and 23-A and section 4210 of the educa-
         tion  law  relating to vocational and educational services to individ-
         uals with disabilities; to repeal title 9-A of article 5 of the social
         services law relating to the equipment loan fund for the disabled;  to
         repeal  section  38 of the social services law relating to the commis-
         sion for the blind and visually handicapped; and to repeal subdivision
         23 of section 305 of the education law relating to the powers  of  the
         commissioner of education (Part I); to amend the executive law and the
         social  services law, in relation to the transfer of the state council
         on children  and  families  to  the  office  of  children  and  family
         services,  and  to  repeal  article  19-C of the executive law related
         thereto, and to repeal subdivision 3 of section 409-i  of  the  social
         services  law relating to the review of programs concerning adolescent
         pregnancy and teenage motherhood (Part J); to amend the executive law,
       S. 1407                             3                            A. 2107
 
         in relation to utilization of non-secure juvenile detention for  juve-
         nile  delinquents and persons in need of supervision and reimbursement
         therefor (Part K); to amend the social services law,  in  relation  to
         the  eligibility of certain foster care children in managed care plans
         (Part L); to amend the social services law and the education  law,  in
         relation  to  requiring  a  school  district share for the maintenance
         costs associated with the committee on special  education  residential
         placements  (Part  M);  to repeal title 1-A of article 6 of the social
         services law, relating to the  state  commission  on  the  quality  of
         foster care (Part N); to amend the social services law, in relation to
         the  local  agency  maximum  monthly  shelter  allowance in the family
         assistance and safety net programs and to make provision  for  payment
         of  additional  shelter allowances to the extent provided in an appro-
         priation (Part O); to amend the social services law,  in  relation  to
         increasing  the standards of monthly need for aged, blind and disabled
         persons and increasing  mandatory  minimum  state  supplementation  of
         federal  supplemental  security income benefits (Part P); to amend the
         social services law, in relation to the transfer of functions  of  the
         welfare  inspector  general  and to repeal section 74 of the executive
         law relating thereto (Part Q); to amend the real property tax law,  in
         relation to the maximum tax savings from the school tax relief program
         for the two thousand three--two thousand four school year (Part R); to
         amend  the  education  law,  in  relation  to limiting school district
         spending increases (Part S); and to amend the  general  business  law,
         the  public health law, the criminal procedure law, the mental hygiene
         law and the state finance law, in relation to providing for the trans-
         fer of certain programs relating to  the  regulation  of  professional
         practice  from  the  state  education  department to the department of
         state; and to amend the administrative code of the city of  New  York,
         the  agriculture  and  markets  law, the business corporation law, the
         civil practice law and rules, the correction law, the criminal  proce-
         dure  law,  the education law, the executive law, the general business
         law, the general municipal law, the insurance law, the labor law,  the
         limited liability company law, the mental hygiene law, the partnership
         law,  the  penal law, the public buildings law, the public health law,
         the real property tax law, the social services  law,  the  surrogate's
         court  procedure act, the tax law, the town law, the vehicle and traf-
         fic law, and the workers' compensation  law,  in  relation  to  making
         technical corrections thereto; and providing for the repeal of certain
         provisions  upon  expiration  thereof; and to repeal title VIII of the
         education law relating thereto (Part T)
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1.  This  act enacts into law major components of legislation
    2  which are necessary to implement the state fiscal plan for the 2003-2004
    3  state fiscal year.  Each component is wholly  contained  within  a  Part
    4  identified  as Parts A through T. The effective date for each particular
    5  provision contained within such Part is set forth in the last section of
    6  such Part. Any provision in any section contained within a Part, includ-
    7  ing the effective date of the Part, which makes reference to  a  section
    8  "of  this  act", when used in connection with that particular component,
    9  shall be deemed to mean and refer to the corresponding  section  of  the
       S. 1407                             4                            A. 2107
 
    1  Part  in  which  it  is  found. Section three of this act sets forth the
    2  general effective date of this act.
 
    3                                   PART A
 
    4    Section  1.  Subparagraph 4 of paragraph h of subdivision 2 of section
    5  355 of the education law, as amended by chapter 309 of the laws of 1996,
    6  is amended to read as follows:
    7    (4) The trustees shall not impose a differential tuition charge  based
    8  upon  need  or  income.  All undergraduate students enrolled in programs
    9  leading to like degrees at  state-operated  institutions  of  the  state
   10  university shall be charged a uniform rate of tuition except for differ-
   11  ential  tuition rates based on state residency. [Provided, however, that
   12  the] The trustees may, for  state-operated  institutions  of  the  state
   13  university,  impose  a differential tuition charge for students enrolled
   14  in programs leading to graduate  or  professional  degrees  at  doctoral
   15  campuses  and  health  science  campuses that is in excess of the charge
   16  imposed at other campuses.  In addition, the trustees may authorize  the
   17  presidents of the colleges of technology and the colleges of agriculture
   18  and  technology  to  set  differing  rates  of  tuition  for each of the
   19  colleges for students enrolled in degree-granting programs leading to an
   20  associate degree and  non-degree  granting  programs  so  long  as  such
   21  tuition  rate  does  not exceed the tuition rate charged to students who
   22  are enrolled in like degree programs  or  degree-granting  undergraduate
   23  programs  leading  to  a  baccalaureate  degree  at other state-operated
   24  institutions of the state university of New York.  [The  trustees  shall
   25  not  adopt  changes  affecting tuition charges prior to the enactment of
   26  the annual budget.]
   27    § 2. Paragraph (a) of subdivision 7 of section 6206 of  the  education
   28  law,  as  amended by chapter 327 of the laws of 2002, is amended to read
   29  as follows:
   30    (a) The board of  trustees  shall  establish  positions,  departments,
   31  divisions  and  faculties; appoint and in accordance with the provisions
   32  of law fix salaries of  instructional  and  non-instructional  employees
   33  therein;  establish  and conduct courses and curricula; prescribe condi-
   34  tions of student admission, attendance and discharge; and shall have the
   35  power to determine in its discretion whether tuition  shall  be  charged
   36  and  to  regulate  tuition  charges, and other instructional and non-in-
   37  structional fees and other fees and charges at the educational units  of
   38  the  city  university.    The  trustees  shall not impose a differential
   39  tuition charge based upon need or  income.  All  undergraduate  students
   40  enrolled  in  programs  leading  to  like degrees at the senior colleges
   41  shall be charged a uniform rate  of  tuition,  except  for  differential
   42  tuition  rates  based  on state residency.  The trustees may, for senior
   43  colleges, impose a differential tuition charge for students enrolled  in
   44  programs  leading  to graduate or professional degrees that is in excess
   45  of the charge imposed for students enrolled in other programs. The trus-
   46  tees shall further provide that the payment of tuition and fees  by  any
   47  student  who is not a resident of New York state, other than a non-immi-
   48  grant alien within the meaning of paragraph (15) of  subsection  (a)  of
   49  section  1101  of  title 8 of the United States Code, shall be paid at a
   50  rate or charge no greater than that imposed for students who  are  resi-
   51  dents of the state if such student:
   52    (i)  attended  an approved New York high school for two or more years,
   53  graduated from an approved New York high school and applied for  attend-
       S. 1407                             5                            A. 2107
 
    1  ance at an institution or educational unit of the city university within
    2  five years of receiving a New York state high school diploma; or
    3    (ii)  attended  an  approved New York state program for general equiv-
    4  alency diploma exam preparation, received a general equivalency  diploma
    5  issued  within  New York state and applied for attendance at an institu-
    6  tion or educational unit of the city university  within  five  years  of
    7  receiving a general equivalency diploma issued within New York state; or
    8    (iii)  was  enrolled in an institution or educational unit of the city
    9  university in the fall semester or quarter of the two thousand  one--two
   10  thousand  two  academic  year  and was authorized by such institution or
   11  educational unit to pay tuition  at  the  rate  or  charge  imposed  for
   12  students who are residents of the state.
   13    A  student without lawful immigration status shall also be required to
   14  file an affidavit with such institution or educational unit stating that
   15  the student has filed an application to legalize his or her  immigration
   16  status,  or will file such an application as soon as he or she is eligi-
   17  ble to do so. [The trustees shall not adopt changes in  tuition  charges
   18  prior  to the enactment of the annual budget.] The board of trustees may
   19  accept as partial reimbursement for the education  of  veterans  of  the
   20  armed  forces of the United States who are otherwise qualified such sums
   21  as may be authorized by federal legislation to be paid for  such  educa-
   22  tion. The board of trustees may conduct on a fee basis extension courses
   23  and  courses  for  adult  education  appropriate  to the field of higher
   24  education.  In  all  courses  and  courses  of  study  it  may,  in  its
   25  discretion,  require students to pay library, laboratory, locker, break-
   26  age and other instructional and non-instructional fees and meet the cost
   27  of books and consumable supplies. In addition to the foregoing fees  and
   28  charges,  the  board of trustees may impose and collect fees and charges
   29  for student government and other  student  activities  and  receive  and
   30  expend them as agent or trustee.
   31    §  3.  This  act  shall take effect immediately and shall be deemed to
   32  have been in full force and effect on and after April 1, 2003.
 
   33                                   PART B
 
   34    Section 1. Subdivision 2 of  section  355  of  the  education  law  is
   35  amended by adding a new paragraph x to read as follows:
   36    x. To establish and/or contract with one or more not-for-profit corpo-
   37  rations  or  subsidiaries  of  such  corporations,  pursuant  to  a plan
   38  approved by the commissioner of health, upon such terms  and  conditions
   39  as the trustees may deem appropriate, for the transfer of the operations
   40  of the state university hospitals at Brooklyn, Stony Brook and Syracuse,
   41  or any part thereof, the clinical practice plans thereof or of any other
   42  program operated by such hospitals.
   43    § 2. The state university trustees shall develop a plan for the trans-
   44  fer  of  the  operations  of the state university hospitals at Brooklyn,
   45  Stony Brook and Syracuse to one or more not-for-profit corporations.  In
   46  developing such plan, the trustees shall take into consideration various
   47  aspects of hospital operations including, but not limited to, the conti-
   48  nuity of employment of hospital staff, access to capital, revenue maxim-
   49  ization,  alternative  governance  structures, the teaching and research
   50  missions of the hospitals, and an implementation  timetable.  The  state
   51  university  trustees  shall  submit  such  plan  to the governor and the
   52  legislature on or before October 1, 2003.
   53    § 3. This act shall take effect immediately and  shall  be  deemed  to
   54  have been in full force and effect on and after April 1, 2003.
       S. 1407                             6                            A. 2107
 
    1                                   PART C
 
    2    Section 1. Section 140 of the education law is REPEALED.
    3    § 2.  Sections  232,  233, 233-a, 234, 235 and subdivisions 4 and 5 of
    4  section 236 of the education law are REPEALED.
    5    § 3. Sections 245, 246, 247, 248, 249, 250, 251 and 252 of the  educa-
    6  tion law are REPEALED.
    7    § 4.  Sections  271,  272,  273  and  273-a  of  the education law are
    8  REPEALED.
    9    § 5. Sections 284 and 285 of the education law are REPEALED.
   10    § 6. The arts and cultural affairs law is  amended  by  adding  a  new
   11  title R to read as follows:
   12                                   TITLE R
   13                THE NEW YORK INSTITUTE FOR CULTURAL EDUCATION
   14  Article 40. General provisions (§§ 40.01 - 40.11)
   15          41. State museum (§§ 41.01 - 41.07)
   16          42. State library (§§ 42.01 - 42.06)
   17          43. Library aid (§§ 43.01 - 43.06)
   18          44. Aid to public broadcasting stations (§§ 44.01 - 44.02)
   19                                 ARTICLE 40
   20                             GENERAL PROVISIONS
   21  Section 40.01. Legislative findings and purposes.
   22          40.02. Definitions.
   23          40.03. New York institute for cultural education; establishment.
   24          40.04. Board of the institute.
   25          40.05. Preliminary powers of the board.
   26          40.06. General powers and duties of the institute.
   27          40.07. Public hearings.
   28          40.08. Budget requests.
   29          40.09. Officers and employees; compensation; transfer.
   30          40.10. Recognition   and  continuation  of  existing  bargaining
   31                   agents and units.
   32          40.11. Reporting.
   33    § 40.01. Legislative findings and  purposes.  The  legislature  hereby
   34  finds and declares as follows:
   35    1. The cultural resources of the state of New York including the state
   36  museum,  state library and state archives are in need of further invest-
   37  ment and innovation to benefit from the most advanced  technologies  and
   38  to  meet  their  full  potential  to contribute to economic development,
   39  tourism and the cultural experiences of the state's residents and  visi-
   40  tors.  Such investment and innovation can be accomplished by appropriate
   41  organizational and financial arrangements relating to the management  of
   42  critical  cultural  institutions that would ensure them a high degree of
   43  autonomy, reliable sources of adequate revenues and a  leadership  which
   44  is  fully  focused  on  the  promotion  of  all  of the state's cultural
   45  resources, capable of forging partnerships with federal, local and state
   46  government agencies, non-profit organizations and foundations and corpo-
   47  rations, and accountable to the public and the  leaders  of  the  state.
   48  Therefore,  with  the enactment of this legislation, it is the intent of
   49  the legislature to create the New York institute for cultural  education
   50  with the central mission of enriching the state's cultural resources and
   51  to  bestow such institute with necessary powers, flexibility and funding
   52  sources and to transfer to such institute the  administrative  responsi-
   53  bilities  for  certain critical cultural institutions that are currently
   54  administered by the state education department.
       S. 1407                             7                            A. 2107
 
    1    2. The purposes of the New York institute for cultural education shall
    2  include, but not be limited to: a. Provide leadership for  the  develop-
    3  ment of the state's cultural resources in partnership with local govern-
    4  ments, not-for-profit cultural organizations, and the private sector;
    5    b.  Cooperate  with  and  assist  other state and federal departments,
    6  boards, commissions, agencies, public benefit  corporations  and  public
    7  authorities  in the development of policies and programs which encourage
    8  promotion,  development,  or  preservation  of  the   state's   cultural
    9  resources;
   10    c.  Strengthen  the  interrelationships and cooperation among entities
   11  that work with different  aspects  of  the  state's  cultural  resources
   12  including  the  management,  preservation,  display and dissemination of
   13  records, artifacts and information;
   14    d. Promote cultural tourism to strengthen and  diversify  the  state's
   15  economy,  create  private employment opportunities, and to highlight the
   16  state's cultural diversity;
   17    e. Use and encourage the use of the most current and appropriate tech-
   18  nology to preserve cultural resources and facilitate  the  understanding
   19  and appreciation of such resources by the general public;
   20    f.  Accept  gifts,  contributions and bequests of funds and properties
   21  from individuals, foundations, corporations and other organizations  and
   22  institutions  for  the purpose of enhancing the efforts for preservation
   23  and promotion of cultural resources;
   24    g. Provide for the financial stability and growth of the state museum,
   25  state library, and state  archives  by  maximizing  revenues  from  both
   26  public and private sources;
   27    h.  Administer  programs  of  technical  and  financial  aid for local
   28  governments  and  not-for-profit  organizations  to  encourage  cultural
   29  development programs and events; and
   30    i.  Contribute to the mutual understanding of the cultural heritage of
   31  various regions  and  nations  by  participating  in  cultural  exchange
   32  programs  with  other  states and regions in the United States and other
   33  countries.
   34    § 40.02. Definitions. As used in this title, the following terms shall
   35  have the following meanings unless otherwise specified:
   36    1. "Institute" shall mean the New York institute for  cultural  educa-
   37  tion.
   38    2. "Board" shall mean the board of the New York institute for cultural
   39  education.
   40    3. "Chief executive officer" shall mean the chief executive officer of
   41  the New York institute for cultural education.
   42    §  40.03.  New  York  institute for cultural education; establishment.
   43  There is hereby created the New York institute for cultural education, a
   44  body corporate and politic constituting a public corporation.
   45    § 40.04. Board of the institute. 1. The institute shall be headed by a
   46  board which shall consist of fifteen members each  appointed  for  five-
   47  year  terms  as  follows:  eight  members appointed by the governor; two
   48  members appointed by the majority leader  of  the  senate;  two  members
   49  appointed  by  the  speaker of the assembly; one member appointed by the
   50  minority leader of the senate; one  member  appointed  by  the  minority
   51  leader  of  the  assembly;  and  one  member  appointed  by the board of
   52  regents. Members shall be appointed for their interest in the  promotion
   53  and  advocacy of the cultural resources of New York; their knowledge and
   54  experience regarding resources for cultural  and  educational  programs;
   55  and their support for the purposes of the institute.
       S. 1407                             8                            A. 2107
 
    1    2.  Initial  appointments to the board shall be for staggered terms as
    2  follows: two of the appointments by the governor and  the  two  appoint-
    3  ments  by  minority  leaders  of  the  legislature shall be for two year
    4  terms; two of the appointments by the governor and one of  the  appoint-
    5  ments  by  the majority leader of the senate and one of the appointments
    6  by the speaker of the assembly shall be for three year terms; two of the
    7  appointments by the governor and one of the appointments by the majority
    8  leader of the senate and one of the appointments by the speaker  of  the
    9  assembly  shall  be  for four year terms; and two of the appointments by
   10  the governor and one appointment by the board of regents  shall  be  for
   11  five year terms.
   12    3.  Members  of the board may be reappointed and may serve two consec-
   13  utive full terms, in addition to the term of  the  initial  appointment,
   14  but  not  more than twelve consecutive years. Each member shall continue
   15  in office until such member's successor has been  appointed  and  quali-
   16  fies.  Such  continuation  in office shall not be counted in determining
   17  whether a member has served twelve consecutive years. In the event of  a
   18  vacancy occurring in the office of any member, other than by the expira-
   19  tion of a member's term, such vacancy shall be filled for the balance of
   20  the  unexpired  term,  if applicable, in the same manner as the original
   21  appointment.
   22    4. Members of the  board  shall  receive  no  compensation  for  their
   23  services,  but shall be reimbursed for the actual and necessary expenses
   24  incurred by them in the performance of their duties.
   25    5. A majority of the whole number of  members  then  in  office  shall
   26  constitute  a quorum for the transaction of any business or the exercise
   27  of any power of the board. Except as otherwise specified in  this  chap-
   28  ter, for the transaction of any business or the exercise of any power of
   29  the  board,  the  board  shall  have  the  power to act by a majority of
   30  members present at a meeting at which a quorum  is  in  attendance.  The
   31  board  may  delegate  to one or more of its members, or to its officers,
   32  agents or employees, such powers and duties as the board may deem  prop-
   33  er.
   34    6.  Notwithstanding any inconsistent provision of any general, special
   35  or local law, ordinance, resolution or charter, no  officer,  member  or
   36  employee  of  the  state,  or  of  any public corporation, shall have to
   37  forfeit his or her office or employment or any benefits  provided  under
   38  the  retirement  and  social security law or under any public retirement
   39  system maintained by the state or any of its subdivisions by  reason  of
   40  his  or her acceptance of membership on the board, nor shall the service
   41  on such board be deemed incompatible or in conflict with such office  or
   42  employment.
   43    7. The governor shall designate one of the members of the board as the
   44  chair of such board.
   45    §  40.05.  Preliminary powers of the board. Notwithstanding any incon-
   46  sistent provision of law to the contrary, the board is hereby authorized
   47  to exercise the powers of such board if sixty days after  the  effective
   48  date  of  this  article  fewer  than  fifteen  members but at least nine
   49  members have been appointed to the board, then  such  board  is  further
   50  authorized to take any action which the board is otherwise authorized to
   51  take upon a favorable vote of a majority of the board members present at
   52  the  meeting  at  which  such  action  is  taken. The provisions of this
   53  section shall expire and be deemed repealed upon the appointment of  all
   54  fifteen members of the board.
   55    §  40.06. General powers and duties of the institute. For carrying out
   56  its purposes, the institute shall have power to:
       S. 1407                             9                            A. 2107
 
    1    1. Sue and be sued;
    2    2. Have a seal and alter the same at pleasure;
    3    3.  Acquire,  hold  and dispose of personal property for its corporate
    4  purposes, including the power to purchase, alter, install and dispose of
    5  fixtures, installations and equipment. The institute may dispose of  its
    6  own  property,  provided  however,  that any such action is subject to a
    7  resolution which must be approved by a majority of the  members  of  the
    8  board at a meeting;
    9    4.  Lease  other  real  property from the state and other entities for
   10  such terms and such conditions as may be agreed upon and, subject to the
   11  provisions of such lease or leases, to sublease said property to others;
   12    5. Appoint such employees as it may require for the performance of its
   13  duties, and to fix  and  determine  their  qualifications,  duties,  and
   14  compensation  and  to  retain  or  employ counsel, auditors, and private
   15  consultants on a contract basis or otherwise for rendering  professional
   16  or technical services and advice;
   17    6.  Make  all  contracts  necessary  and  convenient  to carry out its
   18  purposes of promotion, education and operations, to execute all  instru-
   19  ments  necessary and convenient, and to determine all procedures, sched-
   20  ules and criteria  necessary  to  implement  the  institute's  statutory
   21  duties;
   22    7.  Accept  gifts,  grants,  loans  or  contributions  from the United
   23  States, the state of New York,  or  any  agency  or  instrumentality  of
   24  either  of them, or individuals, foundations, firms or corporations, and
   25  other entities by bequest or otherwise, and to expend the  proceeds  for
   26  any purposes of the institute;
   27    8. Be required to pay no taxes or assessments upon any of the property
   28  acquired  by  or under its jurisdiction, control or supervision, or upon
   29  its activities;
   30    9. Administer the state museum,  state  library,  state  archives  and
   31  other  programs  assigned to the institute by statute, and do all things
   32  necessary or convenient to carry out the functions,  powers  and  duties
   33  expressly   set  forth  in  this  article  including  determination  and
   34  collection of  appropriate  fees  and  charges  on  the  users  of  such
   35  programs;
   36    10.  Appoint  the  chief executive officer of the institute, who shall
   37  hold office at the pleasure of the board, and establish the  salary  and
   38  other  remunerations  of such chief executive officer provided, however,
   39  that the first chief executive officer shall be designated by the gover-
   40  nor who shall also prescribe the salary and remunerations of such  first
   41  chief executive officer;
   42    11.  Administer various programs of technical and financial assistance
   43  for non-profit organizations and local governments  as  consistent  with
   44  applicable statutes and pursuant to the policies of the institute within
   45  appropriations  provided  by  the  legislature  and  the institute's own
   46  resources;
   47    12. Hold meetings in accordance with the open meetings  law  at  least
   48  quarterly  and  at  other times at the request of the chair or any three
   49  members of the board upon giving notice thereof to all  members  of  the
   50  institute at least forty-eight hours in advance.
   51    §  40.07. Public hearings. The institute shall hold one public hearing
   52  each year in Albany at a location designated by the board  fifteen  days
   53  after  the  submission of the institute's budget to the board and before
   54  the board votes on its yearly budget proposal.  At  least  fifteen  days
   55  prior  to holding the public hearing pursuant to this section, the board
   56  shall give public notice of such hearing in at least three newspapers of
       S. 1407                            10                            A. 2107
 
    1  general circulation located throughout the state and in other  media  as
    2  appropriate and feasible. The purpose of the hearing shall be to solicit
    3  from  members  of  the  public,  suggestions, comments, and observations
    4  about  the cultural resources of the state of New York and to afford the
    5  institute an opportunity to  present  and  explain  its  activities  and
    6  programs  including,  but  not  limited to, the cultural and educational
    7  institutions and the technical and financial aid  programs  administered
    8  by  the  institute, and to answer questions. The chief executive officer
    9  shall be responsible for conducting such hearings.
   10    § 40.08. Budget requests. The institute shall annually submit a budget
   11  request to the director of  the  budget  at  the  same  time  as  budget
   12  requests  are  required  to be submitted by state agencies. The proposed
   13  request shall consist of the projected requirements of the institute  in
   14  relation  to all funds subject to appropriation by the legislature. Such
   15  budget request shall be presented in a manner prescribed by the division
   16  of the budget and shall comply with the directives issued by the  budget
   17  director.  Upon  request of the division of the budget, the chief execu-
   18  tive officer shall promptly provide additional information  relating  to
   19  the institute's budget request including data on revenues, expenditures,
   20  staffing  and  programs for prior years and projected revenues, expendi-
   21  tures, staffing and programs for the year to which  the  budget  request
   22  relates.
   23    §  40.09.  Officers  and  employees; compensation; transfer. 1. On the
   24  effective date of the transfer of the operations of the state  education
   25  department's cultural education program pursuant to an agreement between
   26  the  state and the institute as authorized in this chapter, officers and
   27  employees of the state employed in the cultural education program of the
   28  education department shall become officers and employees of  the  insti-
   29  tute; such persons transferred shall be deemed public officers or public
   30  employees, as the case may be, in the civil service.
   31    2.  The civil service rights of such persons continuing in the service
   32  of the institute at the time of such transfer and for  persons  entering
   33  the  service  of the New York institute for cultural education following
   34  the date of transfer shall be governed by  the  civil  service  law  and
   35  associated  regulations  except  as  otherwise provided pursuant to this
   36  title.
   37    3. The salary or compensation of any such officer or  employee,  after
   38  such transfer, shall be paid by the institute.
   39    4. The institute shall, upon transfer, acknowledge and give credit for
   40  all  leave balances held by such officers and employees of the state who
   41  become officers or employees of the institute on the date of transfer.
   42    5. Notwithstanding any inconsistent provision of law for  purposes  of
   43  eligibility  for  promotional  examinations  offered for state employees
   44  generally, an employee of the institute shall be  entitled  to  all  the
   45  rights  thereto  as if such employee was a state employee subject to the
   46  pertinent provisions of the civil service law.
   47    § 40.10. Recognition and continuation of  existing  bargaining  agents
   48  and  units. 1. The employees of the institute shall, for all purposes of
   49  article fourteen of the civil service law, be deemed to be employees  of
   50  the  state of New York and shall be employed within the current state of
   51  New York bargaining unit designations of either the management confiden-
   52  tial, professional, scientific and technical  unit,  the  administration
   53  services unit, operational services unit, institutional services unit or
   54  security  services  unit.  The  governor's  office of employee relations
   55  shall, for all purposes of article fourteen of the  civil  service  law,
   56  act  as  agent  for the institute, and shall, with respect to the insti-
       S. 1407                            11                            A. 2107
 
    1  tute, have all the powers and duties provided under sections six hundred
    2  fifty through six hundred fifty-four of the executive law. Those persons
    3  who become employees of the institute pursuant to  this  subdivision  or
    4  who enter into the service of the institute following the effective date
    5  of  the transfer shall retain their current bargaining unit designations
    6  in either the professional, scientific and technical services unit,  the
    7  administrative services unit, the institutional services unit, the oper-
    8  ational services unit, the security services unit or the security super-
    9  visors unit of state employees. The institute and the state shall recog-
   10  nize  the  existing  certified  or recognized employee organizations for
   11  state employees as the exclusive collective  bargaining  representatives
   12  for  such employees. Titles within collective bargaining units in exist-
   13  ence prior to the transfer of operations to the institute  shall  remain
   14  in  those  units  and  will  not  be  altered  by  the public employment
   15  relations board without the consent of the institute, the state and  the
   16  recognized   or  certified  representatives  of  the  negotiating  units
   17  involved. New titles created after the date of  the  transfer  of  oper-
   18  ations  to the institute will be placed in the appropriate unit of state
   19  employees consistent with the provisions  of  article  fourteen  of  the
   20  civil service law.
   21    2.  The  institute  shall be bound by all collective bargaining agree-
   22  ments between the state of  New  York  and  such  collective  bargaining
   23  representatives,  in  effect as of the date of transfer of operations to
   24  the institute and any successor agreements between such parties.
   25    3. Nothing contained in this provision shall be construed to affect:
   26    (a) the rights of employees pursuant to a collective bargaining agree-
   27  ment;
   28    (b) the bargaining relationship between the executive  branch  of  the
   29  state of New York and an employee organization;
   30    (c)  existing law with respect to an application to the public employ-
   31  ment relations board seeking the designation of persons as managerial or
   32  confidential.
   33    § 40.11. Reporting. 1. The board of the institute shall issue a report
   34  to the governor and the legislature on or before September thirtieth  of
   35  each year on the condition of the cultural resources in the state during
   36  the  fiscal year of the institute immediately preceding the date of such
   37  report. Such report shall include, but not be limited to the following:
   38    (a) An overview of the cultural assets in the  state,  the  degree  to
   39  which  they  are  utilized  as indicated by such measures as attendance,
   40  memberships, private contribution, and ticket sales;
   41    (b) An evaluation of the institute's activities as to  their  contrib-
   42  utions to the preservation and promotion of cultural resources; and
   43    (c)  Comparison of New York's cultural development programs with simi-
   44  lar programs in other states.
   45    2. The institute shall attach  to  the  report  prepared  pursuant  to
   46  subdivision one of this section, copies of the reports of every external
   47  examination  of  the  books and accounts of the institute including, but
   48  not limited to, an audited statement by an independent certified  public
   49  accountant  experienced  in auditing cultural institutions including its
   50  receipts and disbursements, or revenues and expenses, during each fiscal
   51  year in accordance with generally accepted accounting principles.
   52                                 ARTICLE 41
   53                                STATE MUSEUM
   54  Section 41.01. Authorization.
   55          41.02. Collections.
   56          41.03. Cultural resource survey.
       S. 1407                            12                            A. 2107
 
    1          41.04. Native American collection.
    2          41.05. Properties of the state museum.
    3          41.06. State science service.
    4          41.07. New York state biodiversity research institute.
    5    §  41.01.  Authorization.  The  institute  is  hereby  authorized  and
    6  directed to administer  the  state  museum  and  all  related  programs,
    7  collections,  functions and exhibits. The board shall appoint a director
    8  of the state museum.
    9    § 41.02. Collections. 1. All  scientific  specimens  and  collections,
   10  works  of  art, objects of historic interest and similar property appro-
   11  priate to a general museum, if owned by the  state  and  not  placed  in
   12  other custody by a specific law, shall constitute the collections of the
   13  state   museum.   The  state  museum  shall  be  the  custodian  of  the
   14  collections, shall perform standard curatorial, research and educational
   15  activities.
   16    2. Any scientific collection made by a  member  of  the  museum  staff
   17  during  his  or her term of office shall, unless otherwise authorized by
   18  resolution of the board, belong to the state and form part of the  state
   19  museum.
   20    §  41.03. Cultural resource survey.  1. The state of New York, through
   21  its legislative authority accepts the provisions of section one  hundred
   22  twenty  of  the  federal  aid  highway act of nineteen hundred fifty-six
   23  (70Stat. 374) relating to the salvage of archaeological and paleontolog-
   24  ical objects, including ruins, sites, Native  American  burial  grounds,
   25  buildings,  artifacts,  fossils  or  other  objects  of antiquity having
   26  national significance from an historical or scientific  standpoint,  and
   27  empowers  and  directs the institute to make agreements with appropriate
   28  state departments or agencies and such agency or agencies as the federal
   29  government may designate to carry out the purposes of such provision  of
   30  law.
   31    2. Except as otherwise provided in subdivision one of this section, no
   32  person  shall  appropriate,  excavate,  injure  or destroy any object of
   33  archaeological and paleontological interest, situated on or under  lands
   34  owned  by  the  state of New York, without the written permission of the
   35  chief executive officer. A violation of this provision shall  constitute
   36  a misdemeanor. The discovery of such objects shall be forthwith reported
   37  to the institute or an agency having jurisdiction over such lands.
   38    3. Permits for the examination, excavation or gathering of archaeolog-
   39  ical  and  paleontological objects upon the lands under their respective
   40  jurisdictions may be granted by the heads of state departments or  other
   41  state  agencies to persons authorized by the chief executive officer for
   42  the purposes of the state museum and state science service, with a  view
   43  to the preservation of any such objects worthy of permanent preservation
   44  and,  in  all  cases,  to the acquisition and dissemination of knowledge
   45  relating thereto.
   46    § 41.04. Native American collection. There shall be a Native  American
   47  section  of  the  state museum consisting of as complete a collection as
   48  practicable of the historical, ethnographic and other records and relics
   49  of the Native Americans of the state of New York,  including  implements
   50  or other articles pertaining to their domestic life, economic, legal and
   51  political systems, warfare, religion and other rites or customs.
   52    §  41.05.  Properties of the state museum. 1. As used in this section:
   53  (a) The term "museum" shall mean the New York state museum.
   54    (b) The  term  "deaccession"  shall  mean  the  permanent  removal  or
   55  disposal of an object from the collection of the museum by virtue of its
   56  sale, exchange, donation or transfer by any means to any person.
       S. 1407                            13                            A. 2107
 
    1    (c)  The  term  "person"  shall  mean any natural person, partnership,
    2  corporation, company, trust association or other entity, however  organ-
    3  ized.
    4    (d) The term "property" means any inanimate object, document or tangi-
    5  ble  object  under  the  institute's  care which has intrinsic historic,
    6  artistic, scientific, or cultural value.
    7    (e) The term "claimant" means a person who asserts ownership  or  some
    8  other legal right to undocumented property held by the museum.
    9    (f)  The  term  "loan" means a deposit of property with the museum not
   10  accompanied by a transfer to the museum of title to the property.
   11    (g) The term "lender" means a person whose name appears on the records
   12  of the museum as the person legally  entitled  to,  or  claiming  to  be
   13  legally  entitled  to,  property held by the museum or, if deceased, the
   14  legal heirs of such person.
   15    (h) The term "lender's address" means the most recent address for  the
   16  lender shown on the museum's records pertaining to the property on loan,
   17  or  if the lender is deceased, the last known address of the legal heirs
   18  of such lender.
   19    (i) The term "permanent loan" means a loan of property to  the  museum
   20  for an unspecified period.
   21    (j)  The term "undocumented property" means property in the possession
   22  of the museum for which the museum cannot determine the owner by  refer-
   23  ence to its records.
   24    (k)  The  term  "conservation  measures"  means  any  actions taken to
   25  preserve or stabilize a property including, but not limited  to,  proper
   26  storage, cleaning, proper lighting, and restoration.
   27    2.  The  deaccessioning  of  property by the museum must be consistent
   28  with the mission of the museum.
   29    3. Prior to the acquisition of property  by  gift,  the  museum  shall
   30  provide  the  donor  with  a  written  copy of its mission statement and
   31  collections policy, which shall include policies and procedures  of  the
   32  museum relating to deaccessioning.
   33    4. If the museum has the knowledge of a planned bequest of any proper-
   34  ty  prior  to  the  death  of the testator, the museum shall provide the
   35  testator with a written copy of its mission  statement  and  collections
   36  policy, which shall include policies and procedures of the museum relat-
   37  ing to deaccessioning.
   38    5.  Proceeds  derived from the deaccessioning of any property from the
   39  collection of the museum shall be used only for the acquisition of prop-
   40  erty for the collection or for the preservation, protection and care  of
   41  the  collection  and  shall  not  be  used  to  defray ongoing operating
   42  expenses of the museum.
   43    6. (a) Notice given by the museum under this section must be mailed to
   44  the lender's last  known  address  by  certified  mail,  return  receipt
   45  requested. Service by mail is complete if the museum receives proof that
   46  the  notice  was received not more than thirty days after it was mailed;
   47  provided, however, notice may be given by publication if the museum does
   48  not:
   49    (i) know the identity of the lender;
   50    (ii) know the address of the lender; or
   51    (iii) receive proof that the notice  mailed  under  this  section  was
   52  received  within  thirty  days of mailing. Notice by publication must be
   53  given at least once a week for three consecutive weeks in a newspaper of
   54  general circulation in:
   55    (1) the county in which the property is held by the museum; and
   56    (2) the county of the lender's last address, if known.
       S. 1407                            14                            A. 2107
 
    1    (b) The date of notice under this subdivision shall be the date of the
    2  third published notice. In addition to any other information that may be
    3  required or seem appropriate, any notice given under this  section  must
    4  contain the following:
    5    (i) the name of the lender or claimant, if known;
    6    (ii) the last address of the lender or claimant, if known;
    7    (iii) a brief description of the property on loan to the museum refer-
    8  enced in the notice;
    9    (iv) the date of the loan, if known, or the approximate date of acqui-
   10  sition of the property;
   11    (v) the name and address of the museum; and
   12    (vi)  the  name,  address,  and  telephone  number of the person to be
   13  contacted regarding the property.
   14    7. Notwithstanding any other provisions of law regarding abandoned  or
   15  lost  property,  the  museum may, beginning five years from the date the
   16  lender last contacted the museum, clarify title to property on permanent
   17  loan or loaned for a specified term that  has  expired.  Proof  of  such
   18  contact  shall include previously sent restricted letters or loan forms,
   19  returned envelopes, inventories  and  other  documentary  evidence.  The
   20  procedure for clarifying title shall be as follows:
   21    (a)  The  museum must give notice by mail to the lender that it wishes
   22  to clarify ownership rights in the property.
   23    (b) In addition to the information described  in  subdivision  six  of
   24  this  section,  the notice shall be entitled "Notice of Termination" and
   25  must include a statement containing substantially the following informa-
   26  tion: "The records of the New York State Museum indicate that  you  have
   27  property  on loan at (name of facility). The museum is seeking to deter-
   28  mine whether you wish (i) that the museum return the  property  to  you,
   29  (ii)  that  the  property remain on loan to the museum subject to annual
   30  renewal (if the museum wishes that the  property  remain  on  loan),  or
   31  (iii)  that  the  museum  retain  the property permanently as its owner.
   32  Please contact (name of contact) in writing within  one  hundred  twenty
   33  days,  in  order  to advise the museum as to which of the above alterna-
   34  tives you wish to follow."
   35    (c) (i) If, no later than one hundred twenty days following receipt of
   36  the notice described in paragraph (b) of this  subdivision,  the  lender
   37  does  not  respond  to the notice of termination by submitting a written
   38  claim to the property on loan with verifying documentation,  the  museum
   39  shall send a second notice to the lender containing the following infor-
   40  mation: "On (date of first notice), the New York State Museum sent you a
   41  notice  concerning  property  that,  according  to our records, has been
   42  loaned to the State Museum. You have not responded  to  that  notice,  a
   43  copy  of  which is enclosed, and the museum will commence proceedings to
   44  acquire title to the property if you do not contact (name  of  contact),
   45  in  writing  within  one  hundred  twenty  days of receiving this second
   46  notice."
   47    (ii) If the lender fails to respond to the second  notice  within  one
   48  hundred twenty days of receipt, the institute may make an application to
   49  the  supreme  court pursuant to article thirty of the civil practice law
   50  and rules for a declaratory judgment to determine the museum's right  to
   51  such  property. In a case in which there is no evidence that the notices
   52  previously sent by the museum were received by the lender, upon applica-
   53  tion, the supreme court shall specify the method by which service  shall
   54  be made upon the lender.
       S. 1407                            15                            A. 2107
 
    1    8.  Notwithstanding  any other provision of law regarding abandoned or
    2  lost property the museum may acquire title to undocumented property held
    3  by the museum for at least five years as follows:
    4    (a)  The  museum  must give notice by publication that it is asserting
    5  title to the undocumented property.
    6    (b) In addition to the information described in this subdivision,  the
    7  notice shall be entitled "Notice of Intent to Acquire Title to Property"
    8  and  must  include  a  statement  containing substantially the following
    9  information: "The records of the New York State Museum fail to  indicate
   10  the  owner  of  record of certain property in its possession. The museum
   11  hereby asserts its intent to acquire  title  to  the  following  proper-
   12  ty:(general  description  of  property).  If you claim ownership of this
   13  property, you must submit written proof of ownership to the  museum  and
   14  make  arrangements  to collect the property. If you fail to do so within
   15  one hundred eighty days, the museum will commence proceedings to acquire
   16  title to the property. If you claim an interest in the property  but  do
   17  not  possess written proof of such interest, you should submit your name
   18  and address and a written statement of your claim to (name of  contact),
   19  within  one hundred eighty days, in order to receive notice of any legal
   20  proceedings concerning the property.  If  you  wish  to  commence  legal
   21  proceedings to claim the property, you should consult your attorney." If
   22  after  one hundred eighty days following the last date of publication of
   23  such notice no claimant has  responded  thereto  by  submitting  written
   24  proof  of  ownership  of  the  property  to the museum, or if there is a
   25  dispute between the museum and any claimant as to ownership of the prop-
   26  erty, the institute may make an application to the supreme court  pursu-
   27  ant to article thirty of the civil practice law and rules for a declara-
   28  tory judgment to determine the museum's rights in the property.
   29    9.  A  copy  of  all notices required by subdivision seven or eight of
   30  this section shall be sent, by certified mail, return receipt requested,
   31  to the International Foundation for Art Research, or any successor foun-
   32  dation or agency having similar purposes, on or before the date on which
   33  such notices are mailed or first published pursuant to the  requirements
   34  of this section.
   35    10.  Any  person who purchases or otherwise acquires property from the
   36  museum acquires good title to such property if the museum  has  acquired
   37  title in accordance with this section.
   38    11.  The  provisions  of  subdivisions seven and eight of this section
   39  shall not apply to any property that has been reported as  stolen  to  a
   40  law enforcement agency or to the Art Theft Archives of the International
   41  Foundation  for  Art  Research,  or  any  successor foundation or agency
   42  having similar purposes, no later than one year following the  theft  or
   43  discovery of the theft.
   44    12. The museum shall have the following duty to lenders:  (a) When the
   45  museum accepts a loan of property, it shall inform the lender in writing
   46  of the provisions of this section.
   47    (b)  The  museum  shall give a lender, at the lender's address, prompt
   48  written notice by mail of any known injury to, or loss of,  property  on
   49  loan  or  of  the need to apply conservation measures. Such notice shall
   50  advise the lender of his or her right, in lieu  of  the  application  of
   51  such  conservation  measures,  to  terminate the loan and, no later than
   52  thirty days after having received such notice, either retrieve the prop-
   53  erty or arrange for its isolation and retrieval. The museum shall not be
   54  required to publish notice of injury or loss to any undocumented proper-
   55  ty.
       S. 1407                            16                            A. 2107
 
    1    13. The owner of property loaned to  the  museum  is  responsible  for
    2  promptly  notifying  the museum, in writing, of any change of address or
    3  change in the ownership of the property.
    4    14.  (a) Unless there is a written loan agreement to the contrary, the
    5  museum may apply conservation measures to property on loan to the museum
    6  without giving formal notice or first obtaining the lender's  permission
    7  if immediate action is required to protect the property on loan or other
    8  property  in  the  custody of the museum or if the property on loan is a
    9  hazard to the health and safety of  the  public  or  the  museum  staff,
   10  provided that:
   11    (i)  the  museum  is  unable  to reach the lender at the lender's last
   12  known address or telephone number before the time the museum  determines
   13  action is necessary; or
   14    (ii)  the  lender either (1) does not respond to a request for permis-
   15  sion to apply conservation measures made pursuant to subdivision  twelve
   16  of  this  section within three days of receiving the request or will not
   17  agree to the conservation measures the museum recommends or (2) fails to
   18  terminate the loan and either retrieve the property or arrange  for  its
   19  isolation  and retrieval within thirty days of receiving the request. If
   20  immediate conservation measures are necessary to protect the property or
   21  to protect the health or safety of the public or the museum  staff,  the
   22  conditions  set  forth in this subparagraph and subparagraph (i) of this
   23  paragraph shall not apply.
   24    (b) Unless provided otherwise in an agreement with the lender, if  the
   25  museum  applies conservation measures to property under paragraph (a) of
   26  this subdivision, and provided that the measures were not required as  a
   27  result  of the museum's own action or inaction, the museum shall acquire
   28  a lien on the property in the amount of the costs incurred by the  muse-
   29  um,  including,  but not limited to the cost of labor and materials, and
   30  shall not be liable for injury to or loss of the property, provided that
   31  the museum:
   32    (i) had a reasonable belief at the time the action was taken that  the
   33  action  was  necessary to protect the property on loan or other property
   34  in the custody of the museum, or that the property on loan was a  hazard
   35  to the health and safety of the public or the museum staff; and
   36    (ii)  exercised  reasonable  care  in  the  choice  and application of
   37  conservation measures.
   38    15. The museum shall maintain or continue to maintain, as the case may
   39  be and to the extent such information is available, a record of acquisi-
   40  tion, whether by purchase, bequest, gift, loan or otherwise, of property
   41  for display or collection and of  deaccessioning  or  loan  of  property
   42  currently  held  or  thereafter  acquired for display or collection. Any
   43  such record shall include:
   44    (a) The name, address, and telephone number of the  person  from  whom
   45  such  property was acquired, or to whom such property was transferred by
   46  deaccessioning  or  loan,  and  a  description  of  such  property,  its
   47  location,  if  known, and the terms of the acquisition or deaccessioning
   48  or loan, including any restrictions as to its use  or  further  disposi-
   49  tion, and any other material facts about the terms and conditions of the
   50  transaction; and
   51    (b)  A  copy of any document of conveyance relating to the acquisition
   52  or deaccessioning or loan of such property and  all  notices  and  other
   53  documents prepared or received by the museum.
   54    16. Notwithstanding the provisions of the civil practice law and rules
   55  or  any  other  law, except for laws governing actions to recover stolen
   56  property:
       S. 1407                            17                            A. 2107
 
    1    (a) No action against the museum for damages arising out of injury  to
    2  or  loss  of  property loaned to the museum shall be commenced more than
    3  three years from the date the museum gives the lender or claimant notice
    4  of the injury or loss under this section.
    5    (b)  No  action  against  the  museum  to  recover  property  shall be
    6  commenced more than three years from the date the museum gives notice of
    7  its intent to terminate the loan or notice of intent to acquire title to
    8  undocumented property.
    9    17. The museum, at all times, shall maintain an inventory of the prop-
   10  erties within its custody which would  include  a  description  of  such
   11  property,  ownership  information and, in cases of loans, the nature and
   12  status of such loan.
   13    § 41.06. State science service. 1. Science  service.  There  shall  be
   14  maintained in the institute a state science service which shall be known
   15  as  the  state  science service and the state geologist, paleontologist,
   16  botanist and entomologist shall constitute its staff together with  such
   17  other  scientists as the board may employ. This service is empowered and
   18  directed to make available its services to all the  departments  of  the
   19  state, and the residents of the state pursuant to such procedures as the
   20  board  may  prescribe  and  is  empowered  to  engage in such scientific
   21  research as directed by law or by the board  and  shall  cooperate  with
   22  scientific  units  or  agencies of other states, the federal government,
   23  educational institutions and industry in  the  discovery,  analysis  and
   24  dissemination  of scientific information. The chief executive officer or
   25  his or her designee shall also be the director and  head  of  the  state
   26  science  service  and  the  staff of the service shall be members of the
   27  staff of the institute.
   28    2. New York state biological survey. (a) The New York state biological
   29  survey is hereby established in the New York state science service with-
   30  in the state museum to  inventory,  research,  analyze  and  disseminate
   31  information  about  all  the  biota  of  New York. The biological survey
   32  shall:
   33    (i) Develop and maintain an inventory of the biological  resources  of
   34  New  York  state,  with  special emphasis on identifying those resources
   35  that are important to  biological  diversity,  have  real  or  potential
   36  economic  significance,  or  have  particular scientific, systematic, or
   37  environmental importance;
   38    (ii) Conduct research on and advance the knowledge of  the  biological
   39  and  ecological  characteristics and processes that constitute or affect
   40  New York state's environment;
   41    (iii) Interpret and publish  the  results  of  research  on  New  York
   42  State's  biological  resources,  thereby making information available to
   43  citizens, teachers, industry, and government  for  educational  purposes
   44  and for use in decision making;
   45    (iv)  Insure the preservation and appropriate expansion of the state's
   46  collection of scientific specimens and artifacts,  conduct  research  on
   47  these  collections, and make specimens and data available for biological
   48  resource studies, ecosystem analyses, and other research projects; and
   49    (v) Cooperate with the department of environmental  conservation,  the
   50  office  of  parks, recreation and historic preservation, and other state
   51  and federal agencies, private  organizations  and  institutions,  corpo-
   52  rations, and individuals interested in biological resources.
   53    (b)  The  survey  shall not be authorized to enter any privately owned
   54  lands without the written consent of the landowner, lessee, or person in
   55  control. The survey shall be authorized to enter  into  agreements  with
   56  landowners to enter private lands on such terms as may be acceptable.
       S. 1407                            18                            A. 2107
 
    1    §  41.07.  New York state biodiversity research institute. 1. New York
    2  state biodiversity institute; creation. The New York state  biodiversity
    3  research  institute  is  hereby created within the New York state museum
    4  within the New York institute for cultural education.   The purposes  of
    5  the institute shall include:
    6    (a)  advising the governor, governmental agencies, and the legislature
    7  on matters relating to biodiversity in New York state;
    8    (b) fostering, pursuing and sponsoring  collaborative  biological  and
    9  ecological research;
   10    (c) increasing understanding of biodiversity research and conservation
   11  needs  in  New  York  by establishing and reporting on what is known and
   12  what is not known about the biological diversity of the state;
   13    (d) identifying priority needs for biodiversity research and inventory
   14  work within New York that currently are not  receiving  adequate  atten-
   15  tion,  and identifying public or private entities that are best situated
   16  to address such needs, thereby leading to better coordination of  biodi-
   17  versity research efforts in the state;
   18    (e)  promoting  awareness  of existing and new sources of biodiversity
   19  information and biodiversity expertise among  planners,  policy  makers,
   20  and resource managers;
   21    (f) educating elected officials, governmental agencies, and the gener-
   22  al public on biodiversity issues through such means as it may determine;
   23    (g) organizing and sponsoring meetings on biodiversity topics;
   24    (h)  encouraging the establishment of networks of collaborating scien-
   25  tists engaged in related aspects of biodiversity research;
   26    (i) raising sensitivity to biodiversity concerns among state and local
   27  government agencies, and serving as a  forum  for  enhanced  interagency
   28  information sharing and cooperation;
   29    (j)  recommending  priority  activities  for funding through the state
   30  land biodiversity stewardship account, created pursuant to section nine-
   31  ty-seven-oo of the state finance law, as added by chapter  five  hundred
   32  fifty-four of the laws of nineteen hundred ninety-three;
   33    (k)  assisting  the  commissioners  of  environmental conservation and
   34  parks, recreation  and  historic  preservation  in  conducting  reviews,
   35  pursuant  to  section  3-0302  of the environmental conservation law and
   36  subdivision eighteen of  section  3.09  of  the  parks,  recreation  and
   37  historic  preservation  law,  of  lands currently in state ownership, to
   38  identify lands and waters that harbor plants,  animals,  and  ecological
   39  communities that are rare in New York state;
   40    (l) assisting the commissioner of parks, recreation and historic pres-
   41  ervation  in  identifying  ecologically  significant  sites within state
   42  parks and historic sites that are candidates for park preserve  or  park
   43  preservation  area  designation pursuant to article twenty of the parks,
   44  recreation and historic preservation law; and
   45    (m) assisting the commissioner of environmental conservation in  iden-
   46  tifying  lands of ecological significance, currently in state ownership,
   47  to recommend to the governor and the legislature for dedication  to  the
   48  state  nature  and  historical preserve trust pursuant to article forty-
   49  five of the environmental conservation law.
   50    2. Definitions. When used in this section, the following  terms  shall
   51  mean:    (a)  "Biodiversity"  or  "biological diversity" means the total
   52  variety of living organisms found in the state, and  the  natural  proc-
   53  esses that support them; and
   54    (b)  "Research  institute"  shall mean the New York state biodiversity
   55  research institute created pursuant to subdivision one of this section.
       S. 1407                            19                            A. 2107
 
    1    3. Research programs. The research institute shall foster, pursue  and
    2  sponsor  original systematic and ecological research, field studies, and
    3  inventories of biological collections that are designed to:
    4    (a) increase the information base pertaining to plant, animal, biolog-
    5  ical  community,  and  ecosystem  occurrences  in  the  state, including
    6  descriptions, collections and catalogs of fauna  and  flora,  plant  and
    7  animal  life-cycle  requirements  and  characteristics,  the dynamics of
    8  ecological processes, and  the  status  of  rare  plants,  animals,  and
    9  biological communities;
   10    (b)  detect, document, and interpret patterns and changes in the flora
   11  and fauna of the state, including expansions, losses, and  introductions
   12  of species;
   13    (c)  explore  and  foster  the  gathering  of  data in poorly known or
   14  vulnerable areas of the state; and
   15    (d) investigate techniques designed to conserve, protect,  and  manage
   16  biodiversity.
   17    4. Education and information transfer programs. The research institute
   18  shall  foster  the collection, transfer, and application of biodiversity
   19  information in the state by:
   20    (a) fostering access, compatibility,  interchange,  and  synthesis  of
   21  data among biological information systems maintained by public entities,
   22  academic and research institutions, and private organizations;
   23    (b)  employing  advanced  technology to coordinate for ease of use the
   24  scattered biological collection resources of the state;
   25    (c)  promoting  adherence  to  accepted  standards  for   biodiversity
   26  research, including quality control for the collection of voucher speci-
   27  mens and data, and protocols for responsible collection policies; and
   28    (d) supporting the preparation and publication of interpretative works
   29  that draw upon biological collection resources.
   30    5.  Biennial  reports.  Every  two years, the research institute shall
   31  prepare and submit a report to the governor, the board, and the legisla-
   32  ture describing programs undertaken or sponsored by the research  insti-
   33  tute,  the  status  of knowledge regarding the state's biodiversity, and
   34  research needs related thereto.
   35    6. Executive committee. The research institute shall be guided  by  an
   36  executive  committee.  Members  of  the  committee shall be from varying
   37  backgrounds with members selected from the stewardship  community,  from
   38  the  scientific  community,  as  well as from government service.   Such
   39  committee shall consist of seventeen members including the chief  execu-
   40  tive  officer  of  the  New  York  institute for cultural education, the
   41  commissioner of environmental conservation, the commissioner  of  parks,
   42  recreation  and  historic  preservation,  the  chancellor  of  the state
   43  university of New York  or  their  designees,  seven  at  large  members
   44  appointed by the governor, one of whom shall be chairperson, two members
   45  appointed by the temporary president of the senate, one member appointed
   46  by  the  minority  leader  of  the  senate, two members appointed by the
   47  speaker of the assembly and one member appointed by the minority  leader
   48  of  the  assembly.  Appointed  members  shall  serve for a term of three
   49  years, provided that such members  may  be  reappointed.  The  executive
   50  committee shall:
   51    (a)  adopt  policies,  procedures, and criteria governing the programs
   52  and operations of the institute;
   53    (b) recommend to the governor and legislature appropriate  actions  to
   54  identify, manage and conserve exemplary occurrences of common ecological
   55  communities  on  state-owned lands. An "exemplary occurrence of a common
   56  ecological community" shall mean a representative, high quality  example
       S. 1407                            20                            A. 2107
 
    1  of  a  given  ecological  community type, characterized by a distinctive
    2  assemblage of interacting plant and animal populations;
    3    (c)  develop  and  implement  the  research, education and information
    4  transfer programs of the institute;
    5    (d) identify and rate proposals for biodiversity research;
    6    (e) identify and rate proposals for biodiversity stewardship;
    7    (f) submit to the director of the budget, and the chairpersons of  the
    8  senate finance committee and the assembly ways and means committee on or
    9  before  August  first in each year, a budget request for the expenditure
   10  of funds available from the biodiversity stewardship and research  fund,
   11  for  the  purposes  established  by section ninety-seven-oo of the state
   12  finance law, as added by chapter five hundred fifty-four of the laws  of
   13  nineteen hundred ninety-three; and
   14    (g) meet publicly at least twice a year.
   15    The committee shall widely disseminate notice of its meetings at least
   16  two  weeks  prior  to  each meeting. The chief executive officer and the
   17  commissioners of environmental conservation and  parks,  recreation  and
   18  historic preservation shall aid in such dissemination.
   19    7.  Scientific  working group. The executive committee shall appoint a
   20  scientific working group composed of not more than  fifteen  individuals
   21  representing  governmental  agencies  (including  a  biologist  from the
   22  department of environmental conservation), academic or  research  insti-
   23  tutions,  educational  organizations,  the  forest products industry and
   24  non-profit conservation organizations. Members of the scientific working
   25  group shall have knowledge and expertise  in  biodiversity  conservation
   26  and research and shall serve for a term of three years, provided, howev-
   27  er  that  members  may  be  reappointed  for  more  than one term at the
   28  discretion of the executive  committee.  The  scientific  working  group
   29  shall make recommendations to the executive committee with respect to:
   30    (a)  the identification of priority biodiversity research needs in the
   31  state;
   32    (b) the development and implementation  of  the  research  institute's
   33  research, education, and information transfer programs;
   34    (c)  the  allocation  and  expenditure  of funds from the biodiversity
   35  stewardship and research fund created pursuant to section  ninety-seven-
   36  oo of the state finance law, as added by chapter five hundred fifty-four
   37  of the laws of nineteen hundred ninety-three;
   38    (d)  identification and rating of proposals for biodiversity research;
   39  and
   40    (e) identification and rating of proposals for  biodiversity  steward-
   41  ship.
   42    8.  Director  of biodiversity research institute.  The research insti-
   43  tute shall have a director who  shall  be  appointed  by  the  executive
   44  committee and shall after appointment be an employee of the state museum
   45  and  science service. The research institute director shall serve at the
   46  pleasure of the executive committee.  The  research  institute  director
   47  shall  serve  as  chief administrative officer of the research institute
   48  and provide the necessary support for the executive committee.
   49    9. Compensation. The members of the executive committee and the scien-
   50  tific working group shall serve  without  additional  compensation,  but
   51  shall  be  eligible to receive reimbursement for their actual and neces-
   52  sary expenses from the biodiversity stewardship and research fund estab-
   53  lished by section ninety-seven-oo of the state finance law, as added  by
   54  chapter  five hundred fifty-four of the laws of nineteen hundred ninety-
   55  three, provided however, members of the executive committee representing
   56  state agencies may receive reimbursement for their actual and  necessary
       S. 1407                            21                            A. 2107
 
    1  expenses  from  their  respective  agencies.  Members  of  the executive
    2  committee and scientific working group shall be considered state employ-
    3  ees for the purposes of sections seventeen and nineteen  of  the  public
    4  officers law.
    5    10.  Memorandum  of  understanding.  The  institute, the department of
    6  environmental conservation, and the  office  of  parks,  recreation  and
    7  historic  preservation  shall  enter into a written memorandum of under-
    8  standing to facilitate the appropriate implementation of the biodiversi-
    9  ty research institute and  the  goals,  responsibilities,  and  programs
   10  established by this section.
   11                                 ARTICLE 42
   12                                STATE LIBRARY
   13  Section 42.01. Authorization.
   14          42.02. Borrowing privileges.
   15          42.03. Collections.
   16          42.04. Duplicate department.
   17          42.05. Transfers from state officers.
   18          42.06. Other libraries owned by the state.
   19    §  42.01.  Authorization.  The  institute  is  hereby  authorized  and
   20  directed to  administer  the  state  library  and  related  collections,
   21  programs  and  functions.  Such library shall be kept open not less than
   22  eight hours every weekday in the year except the legal holidays known as
   23  Independence day, Thanksgiving day and Christmas day.
   24    § 42.02. Borrowing privileges. Members of the legislature,  judges  of
   25  the  court  of appeals, justices of the supreme court and heads of state
   26  departments may borrow items from the  library  collection  for  use  in
   27  Albany,  but  shall be subject to such restrictions and penalties as may
   28  be prescribed by the board for the safety or greater usefulness  of  the
   29  library. Under such rules and conditions as the board may prescribe, the
   30  state  library  may lend items from its collection for a limited time to
   31  other individuals and institutions conforming to said rules  and  condi-
   32  tions.  Such  service shall be free to residents of this state as far as
   33  practicable, but the board may, in its discretion, charge a  proper  fee
   34  to  nonresidents  or  for  assistance  of a personal nature or for other
   35  reason not properly an expense to the state, but which may be authorized
   36  for the accommodation of users of the library.
   37    §  42.03.  Collections.  1.  State  library  collections.  All  books,
   38  pamphlets,  manuscripts,  records,  archives,  maps, other objects where
   39  information is stored and where from information can be  retrieved,  and
   40  all  other  property  appropriate  to a general library, if owned by the
   41  state and not placed in other custody by law, shall be in the charge  of
   42  the  institute  and  constitute  the  state  library.  The state library
   43  collections shall also include, but not be limited to, the following:
   44    (a) State medical collection. The state medical collection shall be  a
   45  part  of  the New York state library under the same government and regu-
   46  lations and shall be open for consultation to every citizen of the state
   47  at all hours when the state library is open and shall be  available  for
   48  loans to every licensed physician residing in the state of New York, who
   49  shall  conform  to  the  rules  made  by  the  board for insuring proper
   50  protection and the largest usefulness to the people of the said  medical
   51  collection.
   52    (b)  State law collection and legislative reference library. The state
   53  law collection and the legislative reference collection shall  be  parts
   54  of  the New York state library under the same government and regulations
   55  and shall be open for consultation to every citizen of the state at  all
   56  hours when the state library is open and the law library shall be avail-
       S. 1407                            22                            A. 2107
 
    1  able  for loans to every duly admitted attorney residing in the state of
    2  New York, who shall conform to the rules made by the board for  insuring
    3  proper  protection  and the largest usefulness to the people of the said
    4  law collection.
    5    2.  Manuscript  and records "on file". Manuscript or printed papers of
    6  the legislature, usually termed "on file," and which shall have been  on
    7  file  more than five years in custody of the senate and assembly clerks,
    8  and all public records of the state not placed in  other  custody  by  a
    9  specific  law  shall  be  part of the state library and shall be kept in
   10  rooms assigned and suitably arranged for that purpose. The  board  shall
   11  cause such papers and records to be so classified and arranged that they
   12  can be easily found. No paper or record shall be removed from such files
   13  except on a resolution of the senate and assembly withdrawing them for a
   14  temporary  purpose,  and  in  case  of such removal a description of the
   15  paper or record and the name of the person removing the  same  shall  be
   16  entered  in  a  book or file provided for that purpose, with the date of
   17  its delivery and return.
   18    § 42.04. Duplicate department. The state library shall have charge  of
   19  the preparation, publication and distribution, whether by sale, exchange
   20  or  gift,  of  the colonial history, natural history and all other state
   21  publications not otherwise assigned by law. To guard  against  waste  or
   22  destruction  of state publications, and to provide for the completion of
   23  sets to be permanently preserved in American and foreign libraries,  the
   24  board  shall maintain a duplicate department to which each state depart-
   25  ment, bureau, board, commission, authority, division, or public  benefit
   26  corporation  shall send after completing its distribution, any remaining
   27  copies which it no longer requires.   The  abovementioned  publications,
   28  with  any  other  publications not needed in the state library, shall be
   29  the duplicate department, and rules for sale, exchange  or  distribution
   30  from  it  shall  be  fixed by the board, who shall use all receipts from
   31  such exchanges or sales for the expenses of the duplicate department  or
   32  depository of the state library.
   33    §  42.05.  Transfers from state officers. The librarian of any library
   34  owned by the state, or the officer in charge of  any  state  department,
   35  bureau, board, commission or other corporation may, with the approval of
   36  the  board,  transfer  to  the permanent custody of the state library or
   37  museum any books, papers, maps, manuscripts, specimens or other articles
   38  which, because of being duplicates or for other reasons, will in his  or
   39  her  judgment be more useful to the state in the state library or museum
   40  than if retained in his or her keeping.
   41    § 42.06. Other libraries owned by the state. The state  library  shall
   42  submit  an annual report to the legislature which shall include a state-
   43  ment of the total number of volumes, pamphlets, publications  and  other
   44  library materials added to its collection during the year, with a summa-
   45  ry of operations and conditions, and any needed recommendation for safe-
   46  ty or usefulness for each of the other libraries owned by the state, the
   47  custodian  of  which  shall  furnish  such information or facilities for
   48  inspection as the board may require for  making  this  report.  Each  of
   49  these libraries shall be under the sole control now provided by law, but
   50  for  the  annual  report of the total number of books owned by or bought
   51  each year by the state, it shall be considered as a branch of the  state
   52  library  and  shall be entitled to any facilities for exchange of dupli-
   53  cates, inter-library loans or other privileges properly  accorded  to  a
   54  branch.
   55                                 ARTICLE 43
   56                                 LIBRARY AID
       S. 1407                            23                            A. 2107
 
    1  Section 43.01. Aid to Native American libraries.
    2          43.02. Eligibility for library aid.
    3          43.03. Apportionment of library aid.
    4          43.04. State aid for library construction.
    5          43.05. State aid to school library systems.
    6          43.06. State aid for cooperation with state correctional facili-
    7                   ties.
    8    §  43.01.  Aid  to  Native  American libraries. 1. Any Native American
    9  library chartered by the regents or in the absence of such  library  any
   10  tribal  government  contracting  for service from a chartered and regis-
   11  tered library or approved library system, shall be entitled  to  receive
   12  state aid during each calendar year consisting of the following amounts:
   13    (a) eighteen thousand dollars;
   14    (b)  the  sum  of  eighteen  dollars  and  twenty cents per capita for
   15  persons residing on  the  reservation  served  by  the  Native  American
   16  library  or  contract as shown by the latest federal census or certified
   17  by the New York state director of Indian services; and
   18    (c) the sum of one dollar and fifty cents per acre of area  served  by
   19  the Native American library or contract.
   20    2. Such sums shall be paid to the Native American library trustees for
   21  the  use of the Native American library, or in the absence of such trus-
   22  tees, to the tribal government for a contract for library service. Noth-
   23  ing contained in this section shall be construed to diminish the  funds,
   24  services  or  supplies  provided  to  any  Native  American library by a
   25  library system as defined in section 43.02 of this article.
   26    § 43.02. Eligibility for library aid. 1. Public library systems.   (a)
   27  The term "public library system" as used in this article means:
   28    (i) a library established by one or more counties;
   29    (ii)  a group of libraries serving an area including one or more coun-
   30  ties in whole or in part;
   31    (iii) a cooperative library system established pursuant to section two
   32  hundred fifty-five of the education law, the plan of library service  of
   33  any of which shall have been approved by the board.
   34    (b)  The  "area served" by a public library system for the purposes of
   35  this article shall  mean  the  area  which  the  public  library  system
   36  proposes  to  serve  in its approved plan of service. In determining the
   37  population of the area served by the public  library  system  the  popu-
   38  lation shall be deemed to be that shown by the latest federal census for
   39  the  political subdivisions in the area served. Such population shall be
   40  certified in the same manner as provided by section  fifty-four  of  the
   41  state finance law except that such population shall include Native Amer-
   42  ican  population in reservations and schools and inmates of state insti-
   43  tutions under the direction, supervision or control of the state depart-
   44  ment of correctional services, the state department  of  mental  hygiene
   45  and  the state department of family assistance. In the event that any of
   46  the political subdivisions receiving library service are included within
   47  a larger political subdivision which is a part  of  the  public  library
   48  system the population used for the purposes of computing state aid shall
   49  be the population of the larger political subdivision, provided however,
   50  that  where any political subdivision within a larger political subdivi-
   51  sion shall have taken an interim census since the last census  taken  of
   52  the larger political subdivision, the population of the larger political
   53  subdivision  may  be  adjusted to reflect such interim census and, as so
   54  adjusted, may be used until the next census  of  such  larger  political
   55  subdivision.   In the event that the area served is not coterminous with
   56  a political subdivision, the  population  of  which  is  shown  on  such
       S. 1407                            24                            A. 2107
 
    1  census,  or the area in square miles of which is available from official
    2  sources, such population and area shall be determined, for  the  purpose
    3  of computation of state aid pursuant to section 43.03 of this article by
    4  applying  to  the  population and area in square miles of such political
    5  subdivision, the ratio which exists between the  assessed  valuation  of
    6  the  portion  of  such  political  subdivision  included within the area
    7  served and the total assessed valuation of such political subdivision.
    8    (c) Members of a public library system shall  be  those  public,  free
    9  association,  and  Native  American libraries located within the service
   10  area which have been admitted to membership prior to October first,  two
   11  thousand  one,  or which apply for and are granted membership subsequent
   12  to that date with the approval of the board.  No public  library  system
   13  shall  be  subject  to any loss of benefits under these provisions where
   14  such system has made reasonable effort to prevent the  unapproved  with-
   15  drawal of such library from the system and the system demonstrates, in a
   16  manner  satisfactory to the board, that the residents of the area encom-
   17  passed by the withdrawing library will  continue  to  benefit  from  the
   18  library services provided by the public library system.
   19    (d)  "Approved  plan"  as used in this article means a plan of library
   20  service by a public library system approved by the board.
   21    (e) Approval shall not be given to a public library system  unless  it
   22  will  serve at least two hundred thousand people or four thousand square
   23  miles of area, provided, however, that provisional approval may be given
   24  to a public library system which will  serve  at  least  fifty  thousand
   25  persons provided the area served includes three or more political subdi-
   26  visions  and  provided  further that a satisfactory plan of expansion of
   27  service to be followed during the ensuing five-year period is adopted by
   28  such library system and approved by the board.
   29    (f) The trustees of the public library  system  shall  submit  to  the
   30  board  the plan of library service. Such plan shall be supported by such
   31  information as the board may require in the form prescribed  by  him  or
   32  her.
   33    (g)  No  such  plan  of library service shall be approved by the board
   34  unless it finds that such plan provides for the residents  of  the  area
   35  served  a  method  by which the participating libraries are obligated to
   36  permit the loan of books and material among members of  the  system  for
   37  use  on  the  same basis permitted by the library which owns or controls
   38  them.
   39    (h) In its review of such plan the board shall consider,  among  other
   40  things,  the  size  of  the collection; the diversity of such collection
   41  with respect to general subjects  and  interests;  annual  additions  to
   42  collection;  circulation; maintenance of catalogues; number and location
   43  of libraries or branch libraries; hours  of  operation  and  number  and
   44  qualifications  of personnel necessary to enable a public library system
   45  to render adequate service; population; density of population; the actu-
   46  al valuation of the taxable property within the area served; the  amount
   47  raised  by  taxation  by  or  for  the area served; the relation of such
   48  amount to population and actual value of the  property  taxed;  and  the
   49  relation of the amount of funds received by a public library system from
   50  local taxes to that derived from private contributions.
   51    (i)  Each  public  library system receiving state aid pursuant to this
   52  article shall furnish such information regarding its library service  as
   53  the  chief  executive officer may from time to time require to discharge
   54  his or her duties under such sections. The board may at any time  revoke
   55  its  approval  of  a plan of library service if it finds that the public
   56  library system no longer conforms to  the  provisions  of  the  approved
       S. 1407                            25                            A. 2107
 
    1  plan; or, in the case of provisional approval, if such library system no
    2  longer  conforms  to  the agreement, plans or conditions upon which such
    3  provisional approval was based. In such case  a  public  library  system
    4  shall  not  thereafter be entitled to state aid pursuant to this article
    5  unless and until its plan of library service is again  approved  by  the
    6  board.
    7    (j)  (i)  In  the  event  that  the sum total of local sponsor support
    8  raised by local taxation exclusive of the sum raised for capital expend-
    9  itures for the support of a  public  library  system  and  participating
   10  libraries  in  a twelve month period is less than ninety-five percent of
   11  the average of the amounts raised for such purposes  by  local  taxation
   12  for  the two preceding twelve month periods, the state aid to which such
   13  library system would otherwise be entitled shall be reduced  by  twenty-
   14  five  percent.  Such  state aid shall likewise be reduced by twenty-five
   15  percent in the event that the public library system shall  refuse  after
   16  reasonable notice to make provision for the expansion of the area served
   17  in  accordance  with  the  approved plan. In the first year in which any
   18  library system changes its reporting from the calendar year to a  fiscal
   19  year  other than the calendar year, it shall file any additional report-
   20  ing schedules deemed necessary by the chief executive  officer  for  the
   21  purpose  of  determining  maintenance  of  effort as required herein, in
   22  order that no period of time shall be exempt from such requirement.
   23    (ii) In the event that the total sum raised by local taxation,  exclu-
   24  sive  of  the  sum raised for capital expenditures, for the support of a
   25  central library of a public library system in a twelve month period,  is
   26  less  than  ninety-five percent of the average of the amounts raised for
   27  such purposes by local taxation for the two preceding twelve month peri-
   28  ods, the state aid to which such library system would otherwise be enti-
   29  tled for the development of its central  library  shall  be  reduced  by
   30  twenty-five  percent.  In  the  first  year  in which any library system
   31  changes its reporting from the calendar year to a fiscal year other than
   32  the calendar year, it shall  file  any  additional  reporting  schedules
   33  deemed  necessary  by  the  chief  executive  officer for the purpose of
   34  determining maintenance of effort as required herein, in order  that  no
   35  period of time shall be exempt from such requirement.
   36    (iii)  The  board  may waive the requirements of subparagraphs (i) and
   37  (ii) of this paragraph, if it determines that the  application  of  such
   38  subparagraphs  would result in excessive hardship for the public library
   39  system or central library brought about by an extraordinary change in  a
   40  local sponsor's economic condition, loss by a local sponsor of state aid
   41  to  local  governments  provided  under  section fifty-four of the state
   42  finance law, or by a natural disaster. The board may grant  such  waiver
   43  for  a  period  of up to two consecutive calendar years and shall report
   44  any waivers granted under this subparagraph to the speaker of the assem-
   45  bly, the temporary president of the senate, the chairs of  the  legisla-
   46  tive fiscal committees and the director of the division of the budget.
   47    (iv) A "local sponsor" shall mean any municipality, district or school
   48  district,  as  defined  in the general municipal law, or any combination
   49  thereof.
   50    (k) In approving, rejecting  or  revoking  plans  of  library  service
   51  pursuant to this section, consideration shall be given to:
   52    (i)  the  prevention  of unreasonable discrimination among the persons
   53  served by such public library system;
   54    (ii) the need for rapid expansion of library facilities in  areas  not
   55  now served;
       S. 1407                            26                            A. 2107
 
    1    (iii)  the  need  of  each  public library system for the professional
    2  services of an adequate number of  librarians  having,  in  addition  to
    3  general  familiarity  with  literature, special training with respect to
    4  book selection and organization for library use;
    5    (iv)  the  need for a library collection sufficient in size and varied
    6  in kind and subject matter;
    7    (v) the need for regular fresh additions to collections;
    8    (vi) the  need  for  adequate  books,  materials  and  facilities  for
    9  research and information as well as for recreational reading;
   10    (vii)  the  need for libraries, branches, and other outlets convenient
   11  in location, and with adequate hours of service;
   12    (viii) the desirability for the integration of existing libraries  and
   13  new  libraries  into  systems serving a sufficiently large population to
   14  support adequate library service at a reasonable cost;
   15    (ix) the need for the economic and  efficient  utilization  of  public
   16  funds;
   17    (x)  the  need  for  full  utilization of local pride, responsibility,
   18  initiative and support of library service and the use of  state  aid  in
   19  their stimulation but not as their substitute; and
   20    (xi) the needs of special populations.
   21    2.  Reference  and  research  library  resources systems. (a) The term
   22  "reference and research library resources system" as used in this  arti-
   23  cle  means  a  duly chartered educational institution resulting from the
   24  association of a group of institutions of higher  education,  libraries,
   25  non-profit  educational  institutions, hospitals, and other institutions
   26  organized to improve reference and research library  resources  service.
   27  Such  reference  and research library resource systems may be registered
   28  upon meeting the criteria prescribed by the board.
   29    (b) The "area served" by a reference and  research  library  resources
   30  system  for  the  purposes  of  this article shall include not less than
   31  seven hundred fifty thousand persons, as based upon the latest  approved
   32  federal  census,  or  not  less  than ten thousand square miles; and the
   33  defined area of service shall:
   34    (i) include more than one county;
   35    (ii) respect the integrity of the area of service of a public  library
   36  system; and
   37    (iii) constitute a service area effectively related to the availabili-
   38  ty  of  information resources and services and to the area of service of
   39  other reference and research library resources systems.
   40    (c) Membership in a reference and research  library  resources  system
   41  shall include:
   42    (i)  at  least  four  chartered degree-granting institutions of higher
   43  education of the four year level;
   44    (ii) either: (1) at least one chartered degree-granting institution of
   45  higher education offering graduate programs for a masters  degree  whose
   46  library  holds  not  less than two hundred seventy-five thousand volumes
   47  and currently receives not less than three thousand  periodical  titles,
   48  or
   49    (2)  a  public library which holds not less than four hundred thousand
   50  adult volumes and currently receives not less  than  one  thousand  five
   51  hundred periodical titles;
   52    (iii)  the  membership  may  also  include  approved public and school
   53  library systems which are within the region served by the reference  and
   54  research library resources system;
   55    (iv)  a  public  library  in  Suffolk  or  Nassau county that provides
   56  service within the area served by the system except that no such  public
       S. 1407                            27                            A. 2107
 
    1  library which is not a member of a public library system shall be eligi-
    2  ble for membership in a reference and research library resources system;
    3    (v)  a reference and research library resources system may set its own
    4  minimum standards for membership, except that:
    5    (1) any chartered institution of higher education  shall  be  eligible
    6  for membership, and
    7    (2)  any  hospital  whose  library  meets the standards established in
    8  section two hundred fifty-four of the education law  shall  be  eligible
    9  for membership; and
   10    (vi)  the  member  institutions of each reference and research library
   11  resources system shall be broadly representative of the chartered educa-
   12  tional agencies, nonprofit organizations, hospitals  and  other  special
   13  libraries  providing library service within the defined area of services
   14  of the system.
   15    (d) (i) The reference and  research  library  resources  system  shall
   16  submit  a  plan  of  service  to the board for approval, in a form to be
   17  prescribed by the board to cover resources,  needs,  proposed  programs,
   18  budget,  contractual  agreements,  and  any  other information which the
   19  board may require.
   20    (ii) The plan of service must show the manner in which  the  reference
   21  and research library resources system will improve the library resources
   22  and  services presently available in the area to the research community,
   23  including improved reader access.
   24    (iii) The plan of service shall  indicate  the  manner  in  which  the
   25  reference  and research library resources system strengthens the library
   26  programs of its members and the manner in which the  system  program  is
   27  related to appropriate regional programs in higher education.
   28    (iv)  The  plan  of  service shall identify the resources and needs of
   29  each hospital library, or library serving hospitals and show the  manner
   30  in  which  the  reference  and  research  library  resources system will
   31  improve hospital library services.
   32    (e) Each reference and research  library  resources  system  receiving
   33  state  aid  pursuant  to  this  article  shall  furnish such information
   34  regarding its library service as the chief executive  officer  may  from
   35  time  to  time  require  to  discharge  duties  of  the board under such
   36  sections. The board may at any time revoke its approval  of  a  plan  of
   37  library  service  if it finds that the library system no longer conforms
   38  to the provisions of the approved plan.  In such case a  library  system
   39  shall  not  thereafter be entitled to state aid pursuant to this article
   40  unless and until its plan of library service is again  approved  by  the
   41  board.
   42    (f)  In  approving,  rejecting  or  revoking  plans of library service
   43  pursuant to this section, consideration shall be given to:
   44    (i) the prevention of unreasonable discrimination  among  the  persons
   45  served by such library system;
   46    (ii)  the need for regional resources of sufficient size and varied in
   47  kind and subject matter;
   48    (iii) the need for adequate books, materials (print and non-print) and
   49  facilities for research and information;
   50    (iv) the need for outlets convenient in time and place for the sharing
   51  of library materials;
   52    (v) the need for the economic  and  efficient  utilization  of  public
   53  funds;
   54    (vi) the need for full utilization of local responsibility, initiative
   55  and  support of library service and the use of state aid in their stimu-
   56  lation but not as their substitute; and
       S. 1407                            28                            A. 2107
 
    1    (vii) the need for adequate books, materials, including both print and
    2  non-print materials, and  facilities  for  current  medical  information
    3  services to be provided each hospital.
    4    §  43.03.  Apportionment  of library aid. 1. Any public library system
    5  providing service under an approved plan during a calendar year shall be
    6  entitled to receive during that calendar year state  aid  consisting  of
    7  the following amounts:
    8    (a) An annual grant of:
    9    (i) ten thousand dollars where the library system serves less than one
   10  county;
   11    (ii)  twenty  thousand  dollars  where  the  library system serves one
   12  entire county; or
   13    (iii) where the library system serves more than one county the  system
   14  shall  be  entitled  to  receive  twenty-five  thousand dollars for each
   15  entire county served and/or ten thousand dollars for  each  county,  any
   16  part  of  which  is served by the library system. If an entire county is
   17  served by two or more library systems, each of which serves a part ther-
   18  eof, each of such library systems shall be entitled to receive  a  grant
   19  of  ten  thousand  dollars and in addition, a pro rata share of an addi-
   20  tional sum of ten thousand dollars, such share to be computed in accord-
   21  ance with the ratio which the population  of  the  area  of  the  county
   22  served by such library system bears to the total population of the coun-
   23  ty,  as  determined under subdivision one of section 43.02 of this arti-
   24  cle.
   25    (b) In a library system which submits a plan for  further  development
   26  of  its  central  library,  which plan shall be approved by the board in
   27  relation to standards for such central libraries, the amount of  central
   28  library development aid shall be:
   29    (i) thirty-two cents per capita of the population within the chartered
   30  area  of  service  of  such  library system with a minimum amount of one
   31  hundred five thousand dollars; and
   32    (ii) an additional seventy-one thousand five hundred  dollars  to  the
   33  library  system  for  the purchase of books and materials including non-
   34  print materials for its central library.  Ownership of library materials
   35  and equipment purchased with such central library aid provided  by  this
   36  paragraph shall be vested in the public library system.
   37    (c)  The sum of ninety-four cents per capita of population of the area
   38  served.
   39    (d)(i) An amount equal to the amount  by  which  expenditures  by  the
   40  library  system  for books, periodicals, binding and non-print materials
   41  during the preceding fiscal year exceeds forty cents per capita of popu-
   42  lation of the area served but the total apportionment pursuant  to  this
   43  subparagraph shall not exceed sixty-eight cents per capita of population
   44  served.  In  the  first  year  in  which  any library system changes its
   45  reporting from the calendar year to a fiscal year other than the  calen-
   46  dar year, it shall file any additional reporting schedules deemed neces-
   47  sary by the chief executive officer for the purpose of determining state
   48  aid for the calendar year.
   49    (ii)  Each public library system with an automation program to support
   50  bibliographic control and interlibrary sharing of information  resources
   51  of  member  libraries,  and  to  coordinate  and integrate the automated
   52  system or systems of such member libraries, shall be eligible to receive
   53  an amount equal to seven percent of the amount  earned  in  subparagraph
   54  (i)  of  this  paragraph,  or seventy-six thousand five hundred dollars,
   55  whichever is greater.
       S. 1407                            29                            A. 2107
 
    1    (e) The sum of fifty-two dollars per square mile of area served by the
    2  library system in the case of library  systems  serving  one  county  or
    3  less.  Such  sum  shall be increased by five dollars for each additional
    4  entire county served, provided, however, that no apportionment  pursuant
    5  to  this  paragraph  shall exceed seventy-two dollars per square mile of
    6  area served. If an entire county  is  served  by  two  or  more  library
    7  systems,  each  of  which  serves  a  part thereof, each of such library
    8  systems shall be entitled to receive, in addition to the aid computed in
    9  accordance with the foregoing provisions of this paragraph, a  pro  rata
   10  share  of an increase of five dollars to be computed as follows: the sum
   11  resulting from the computation of five dollars per square mile  of  area
   12  served  by the one of such library systems which would receive the larg-
   13  est amount of aid pursuant to this paragraph shall be prorated among the
   14  library systems serving such county in accordance with the  ratio  which
   15  the  population of the area served by each of such library systems bears
   16  to the population of the county as determined under subdivision  one  of
   17  section 43.02 of this article.
   18    (f)  (i)  In  calendar  years nineteen hundred ninety-one and nineteen
   19  hundred ninety-two,  local  library  incentive  aid  shall  be  paid  as
   20  follows:  the  amount of eight cents for every one dollar contributed by
   21  local sponsors to the approved public library systems and to  registered
   22  public  and  free  association  libraries  which are members of a public
   23  library system, except that no library system shall receive a sum  which
   24  is  more than one hundred seven percent greater than the sum received in
   25  local library incentive aid in nineteen hundred eighty-three and  except
   26  that  in  calendar  year  nineteen  hundred ninety-two no library system
   27  shall receive a sum which is more than twenty-two percent  greater  than
   28  the  sum  received  in  local  library incentive aid in nineteen hundred
   29  eighty-eight, and further provided  that  the  aid  shall  be  disbursed
   30  according  to  a  plan agreed upon by the public library system trustees
   31  and the trustees of a majority  of  the  member  libraries  which  shall
   32  provide that:
   33    (1)  at  least  forty  percent  of the total amount paid to any public
   34  library system under this provision shall be  used  by  the  system  for
   35  system wide services;
   36    (2)  at  least  forty  percent  of the total amount paid to any public
   37  library system under this provision shall be distributed to  its  member
   38  public and free association libraries.
   39    (ii) A "local sponsor" shall mean any municipality, district or school
   40  district,  as  defined  in the general municipal law, or any combination
   41  thereof.
   42    (iii) The local sponsor contribution shall be that amount  other  than
   43  funds  allocated for capital expenditure or debt service received in any
   44  calendar year by a public library system or a public or free association
   45  library from such sponsor.
   46    (iv) Of the annual amount payable under this paragraph, fifty  percent
   47  shall  be paid on July fifteenth and fifty percent on November fifteenth
   48  in nineteen hundred ninety-one and in nineteen hundred ninety-two.
   49    (v) Local library services aid.  In  calendar  year  nineteen  hundred
   50  ninety-three  and  thereafter,  except  in  cities  with a population in
   51  excess of one million inhabitants, each chartered and registered  public
   52  and  free  association  library,  and  each  public  or free association
   53  library serving a city with a population of one hundred thousand or more
   54  which merged with the public library system on or before January  first,
   55  nineteen  hundred  seventy-six,  shall be eligible to receive thirty-one
   56  cents per capita of the population of the  library's  chartered  service
       S. 1407                            30                            A. 2107
 
    1  area as on file with the chief executive officer on January first, nine-
    2  teen  hundred  ninety-two,  or, thirty-one cents per capita of the popu-
    3  lation of the city with a population of one  hundred  thousand  or  more
    4  whose  public or free association library merged with the public library
    5  system on or before January first, nineteen hundred seventy-six, with  a
    6  minimum  amount  of  one  thousand  five hundred dollars, except that no
    7  library shall receive less than the amount of  local  library  incentive
    8  aid received in nineteen hundred ninety-one as reported on the library's
    9  nineteen  hundred  ninety-one annual report.  Local library services aid
   10  shall be paid to the system  for  distribution  within  thirty  days  of
   11  receipt to its member libraries in accordance with this subdivision.
   12    (vi)  Local  services  support  aid. In calendar year nineteen hundred
   13  ninety-three and thereafter, except  in  cities  with  a  population  in
   14  excess  of one million inhabitants, each public library system operating
   15  under an approved plan of service shall be eligible to receive  annually
   16  local  services  support  aid  equal  to  two-thirds of the total dollar
   17  amount paid in local library services aid to the member libraries of the
   18  system plus thirty-one cents per capita of the system's  population  who
   19  do not reside within the chartered service area of a member library.
   20    (vii)  Local  consolidated  systems  aid.  In  calendar  year nineteen
   21  hundred ninety-three and thereafter, in  cities  with  a  population  in
   22  excess  of one million inhabitants, each public library system operating
   23  under an approved plan of service shall be eligible to receive  annually
   24  local consolidated system aid equal to the sum of:
   25    (1)  thirty-one  cents  per  capita  of  the  population served by the
   26  system, but not less than the amount  of  local  library  incentive  aid
   27  received  in  nineteen  hundred  ninety-one as reported on the library's
   28  nineteen hundred ninety-one annual report; and
   29    (2) an additional amount equal  to  two-thirds  of  the  total  dollar
   30  amount  computed  for the system pursuant to clause one of this subpara-
   31  graph.
   32    (g) In addition to the sums provided in paragraphs (a), (b), (c), (d),
   33  (e), (f), (h) and (i) of this subdivision, the New York  Public  Library
   34  shall  receive  an  amount  equal  to its actual expenditures for books,
   35  periodicals and binding for its research  libraries  which  expenditures
   36  are  not  otherwise  reimbursed  or  seven  hundred sixty-seven thousand
   37  dollars and the additional sum of five million  six  hundred  forty-nine
   38  thousand  six  hundred  dollars for the general support of such research
   39  libraries.
   40    (h) (i) Each public library system which provides coordinated outreach
   41  services, to persons who are  educationally  disadvantaged  or  who  are
   42  members  of  ethnic  or  minority  groups  in  need  of  special library
   43  services, or who are unemployed and in need of job placement assistance,
   44  or who live in areas underserved by a library, or who are  blind,  phys-
   45  ically  handicapped, aged or confined in institutions, shall be entitled
   46  to receive annually forty-three thousand dollars and thirteen cents  per
   47  capita of the total population of the area served.
   48    (ii)  The  board  shall  award  annually grants to each public library
   49  system which submits an acceptable plan for library service programs  to
   50  be  carried  out  by a system and/or a member library or libraries which
   51  assist adults to increase their literacy skills. The board  shall  award
   52  such  grants  having determined that such programs are being operated in
   53  direct coordination with local public schools, colleges and other organ-
   54  izations which are operating similar adult literacy  programs.    Annual
   55  state  aid  of  two  hundred  thousand dollars shall be awarded for this
   56  purpose.
       S. 1407                            31                            A. 2107
 
    1    (iii) The chief executive officer  shall  award  annually  grants  for
    2  approved  expenses  for enriched coordinated outreach programs conducted
    3  for pre-school and school age children and their parents by a library or
    4  libraries which are members of a public library system.    Annual  state
    5  aid  of  three  hundred  thousand  dollars for grants shall be allocated
    6  after review of proposals submitted by the public library systems.
    7    (i) In addition to any other sums provided for such purposes, the  New
    8  York  public  library  shall  receive  annually the sum of seven hundred
    9  thirty-four thousand dollars for the program of the Schomburg center for
   10  research in black culture, and the additional sum of nine hundred eight-
   11  y-four thousand dollars for the program of the library for the blind and
   12  physically handicapped; provided, however, that the New York  historical
   13  society  shall  receive  annual  payments  of two hundred fifty thousand
   14  dollars.
   15    (j) In addition to any other sums provided to such library the sum  of
   16  three  hundred  fifty  thousand  dollars  shall be made available to the
   17  Brooklyn public library for its business library for each calendar year.
   18    (k) In addition to any other sums provided to such library the sum  of
   19  fifty  thousand  dollars shall be made available to the Buffalo and Erie
   20  County public library for a  continuity  of  service  project  for  each
   21  calendar year.
   22    (l)  In addition to any other sums provided to such library system the
   23  sum of thirty thousand dollars shall be made  available  to  the  Nassau
   24  library  system  for  a  continuity of service project for each calendar
   25  year.
   26    (m) The minimum annual grant available to a library system under para-
   27  graphs (a), (c) and (e) and subparagraph (i) of paragraph  (d)  of  this
   28  subdivision shall be six hundred seventy-five thousand dollars.
   29    2.  The  board  may waive the requirement that a public library system
   30  serve an entire county to earn the maximum annual grant  under  subpara-
   31  graphs  (ii)  and  (iii)  of  paragraph  (a)  of subdivision one of this
   32  section and paragraphs (b), (c), (e) and (h) of subdivision one of  this
   33  section  where it deems reasonable effort has been made by the system to
   34  encourage membership by all libraries in the county.
   35    3. Reference and research library resources system. (a) Any  reference
   36  and  research  library  resources  system  providing  service  under  an
   37  approved plan during a calendar year shall be entitled to receive annual
   38  state aid consisting of an annual grant of two hundred seventy  thousand
   39  dollars  plus  the  sum of one dollar and fifty cents per square mile of
   40  area served plus the sum of six cents per capita of  the  population  of
   41  the  area served. Each system may annually appropriate the amount of ten
   42  thousand dollars or less of the aid received  under  this  provision  to
   43  obtain  matching funds from the National Endowment for the Humanities in
   44  the United States Newspaper Program. The annual amount payable  to  each
   45  approved  system  under  this  paragraph  shall  be  paid on July first,
   46  provided that, upon receipt of annual system activity reports, the chief
   47  executive officer shall determine the amount of any under-  or  overpay-
   48  ments  and  shall  apply  such adjustment to the next annual payment due
   49  such system.
   50    (b) The board is hereby authorized to expend up to  five  hundred  six
   51  thousand dollars annually to contract with the New York Academy of Medi-
   52  cine,  or  such  other agency or agencies as it may deem appropriate, to
   53  provide services to the reference and research library resources systems
   54  under the federal regional medical library program.
   55    (c) (i) The board is hereby authorized to expend  up  to  one  million
   56  three  hundred  ninety-six thousand dollars in each state fiscal year to
       S. 1407                            32                            A. 2107
 
    1  provide grants to reference and research library resources  systems  for
    2  provision  of  services  to  member hospital libraries in not-for-profit
    3  hospitals licensed by the  New  York  state  health  department,  or  to
    4  libraries serving such hospitals which are located in non-rural areas or
    5  rural  areas.  For  the  purpose of this program, the board shall define
    6  rural area on the basis of population,  population  density,  and  popu-
    7  lation  characteristics. Such grants shall be determined on the basis of
    8  criteria to be developed by the board including  specific  reference  to
    9  five-year plans to assist member hospital libraries or libraries serving
   10  hospitals,  to  provide  integration  of  member  hospital  libraries or
   11  libraries serving hospitals into existing networks and to  increase  the
   12  number of member hospital libraries or libraries serving hospitals.
   13    (ii)  The  board  shall  provide  grants to the reference and research
   14  library resources systems in the following manner:
   15    (1) an amount equal to seventy-five cents  per  square  mile  of  area
   16  served by the reference and research library resource system in further-
   17  ance of the purposes of this paragraph; and
   18    (2)  the  remainder  for library services to hospitals in non-rural or
   19  rural areas in accordance with regulations of the chief executive  offi-
   20  cer adopted for such purpose.
   21    4.  Coordinated collection development program for public and non-pro-
   22  fit independent colleges and universities. (a) Libraries of  public  and
   23  nonprofit  independent colleges and universities are entitled to receive
   24  annual funding for a coordinated collection development  grant  if  they
   25  meet the following conditions:
   26    (i) membership in a reference and research library resources system;
   27    (ii)  their  resources  are made available to the public, through full
   28  participation in  the  interlibrary  loan  and  other  resource  sharing
   29  programs of the reference and research library resources system of which
   30  they are members; and
   31    (iii)  they meet the requirements set forth by the board including but
   32  not confined to:
   33    (1) maintenance of effort;
   34    (2) relationships between reference  and  research  library  resources
   35  systems'  programs and the regional higher education institution's plan;
   36  and
   37    (3) submission of interlibrary loan statistics, and such other reports
   38  as may be required by the board.
   39    (b) Public community colleges and nonprofit independent  colleges  and
   40  universities  with libraries which meet the criteria of paragraph (a) of
   41  this subdivision are eligible for annual grants as follows:
   42    (i) four thousand four hundred dollars for each institution; and
   43    (ii) one dollar and four cents for each full-time  equivalent  student
   44  enrolled  in each qualifying institution, in the academic year completed
   45  prior to the state fiscal year. For purposes of this  section,  a  full-
   46  time equivalent shall be calculated as follows:
   47    (1)  one full-time undergraduate student shall be considered one full-
   48  time equivalent student;
   49    (2) one part-time undergraduate student shall be considered  one-third
   50  of a full-time equivalent student;
   51    (3)  one  part-time graduate student shall be considered one full-time
   52  equivalent student; and
   53    (4) one full-time graduate student shall be considered  one  and  one-
   54  half of a full-time equivalent student.
   55    (c)  If  funds for the support of this program are appropriated to the
   56  institute, such institute shall make grants to the state  university  of
       S. 1407                            33                            A. 2107
 
    1  New  York  and  the city university of New York for the purposes of this
    2  subdivision, and such funds shall be distributed in accordance with  the
    3  formula contained in paragraph (b) of this subdivision.
    4    5.  Regional bibliographic data bases and interlibrary resources shar-
    5  ing. (a) The board shall award annually to each of  the  nine  reference
    6  and  research  library resources systems, from funds appropriated by the
    7  legislature, upon submission of an acceptable annual plan, a  grant  for
    8  an automation program:
    9    (i)  to  support  bibliographic  control  and  interlibrary sharing of
   10  information resources among all types of libraries and  library  systems
   11  in  an  area  not  less  than  that  of a reference and research library
   12  resources system; and
   13    (ii) to coordinate and integrate the automated circulation  system  or
   14  systems  of  the  component  public  library  system  or systems, school
   15  library system or systems and other automated systems within the area of
   16  the reference and research library resources system. Each reference  and
   17  research library resources system of such region shall be entitled to an
   18  annual  grant  of two hundred thousand dollars plus the sum of two cents
   19  per capita of the population served.
   20    (b) To be eligible for a  grant,  a  five-year  plan  for  a  regional
   21  library  automation  program  shall  be  submitted  by the reference and
   22  research library resources system  acting  with  the  concurrence  of  a
   23  system within the region. Each annual plan submitted under paragraph (a)
   24  of  this  subdivision  shall  be consistent with the applicable regional
   25  five-year plan with respect to the description of a comprehensive  auto-
   26  mation program and identification of sources of program support in addi-
   27  tion  to the state aid funds requested. The approval and modification of
   28  five-year plans shall take into account library  automation,  continuous
   29  development  of  the  data base, and updating, access and linking of the
   30  data base program.
   31    (c) A public library  system  or  a  reference  and  research  library
   32  resources  system  is authorized to enter into contracts with the insti-
   33  tute to provide cooperative services for statewide  data  base  develop-
   34  ment, data communication and document delivery.
   35    6.  Conservation  and preservation of library research materials.  (a)
   36  The board may award in any state fiscal year  an  annual  grant  of  one
   37  hundred twenty-six thousand dollars for a program of conservation and/or
   38  preservation  of  library  research  materials  to each of the following
   39  comprehensive research libraries: Columbia university libraries, Cornell
   40  university libraries,  New  York  state  library,  New  York  university
   41  libraries,   university  of  Rochester  libraries,  Syracuse  university
   42  libraries, the research libraries of the New York public library,  state
   43  university  of  New York at Albany library, state university of New York
   44  at Binghamton library, state university of New York at Buffalo  library,
   45  and state university of New York at Stony Brook library.
   46    (b)  To  be eligible for such grants, each such comprehensive research
   47  library must submit both a five-year plan and an annual program  budget.
   48  The  plan  must satisfy criteria to be established by the board relating
   49  to the identification of library research materials, the need for  their
   50  preservation, and the means of their conservation.
   51    (c) Additional grants, the sum of which shall not exceed three hundred
   52  fifty  thousand  dollars in any state fiscal year, may be made to any or
   53  all of the eleven  comprehensive  research  libraries  for  preservation
   54  and/or  conservation  of  library  research  materials  on  the basis of
   55  project proposals. Approval of  such  proposals,  and  determination  of
   56  funding  level, shall be based upon their contribution to development of
       S. 1407                            34                            A. 2107
 
    1  cooperative programs and/or facilities for conservation and/or preserva-
    2  tion works in the state, including but not limited to such  factors  as:
    3  institutional  commitment  to  development  of a collective capacity and
    4  coordinated  approach to conservation and preservation of research mate-
    5  rials important to the people of the state; research value of  materials
    6  to  be  preserved  and/or conserved; appropriateness of conservation and
    7  preservation  techniques  in  accordance  with  statewide  planning  and
    8  national  standards; institutional capacity for successful completion of
    9  the project, including facilities, experience, and technical  expertise;
   10  availability  of staff with appropriate training and expertise; contrib-
   11  ution of the institution to the project  in  matching  funds  and  staff
   12  resources;  and volume of interlibrary lending and access to holdings by
   13  the public.
   14    (d) Other agencies and libraries which are not  eligible  for  funding
   15  under paragraph (a) of this subdivision, may receive separate grants the
   16  sum of which shall not exceed five hundred thousand dollars in any state
   17  fiscal  year  to  support the preservation and/or conservation of unique
   18  library research materials. Such agencies  and  libraries  shall  submit
   19  proposals  which  shall  be evaluated and determinations of approval and
   20  funding shall be made on the same basis set forth in  paragraph  (e)  of
   21  this subdivision.
   22    (e)  Funds  made available under the provisions of this section may be
   23  used by comprehensive research libraries and other agencies eligible for
   24  funding to obtain matching funds from the  national  endowment  for  the
   25  humanities preservation program.
   26    (f) The board shall dedicate resources to assess the technology avail-
   27  able  for such conservation and preservation of library research materi-
   28  als, and to coordinate the conservation and preservation efforts result-
   29  ing from this legislation. The board  may  also  establish  an  advisory
   30  council  on  conservation  and preservation to assist in the development
   31  and operation of this program.
   32    7. New York state talking book and braille library. The New York state
   33  talking book and braille library shall be entitled to  receive  annually
   34  an  amount  equal  to  the  product of the aid ceiling multiplied by the
   35  number of registered borrowers of such materials of such library  as  of
   36  the  November  report  for  the November immediately preceding the state
   37  fiscal year for which the payment will be made.   Such amount  shall  be
   38  used  to improve the quality of services provided to such borrowers. For
   39  aid payable in each state fiscal year, the aid  ceiling  per  registered
   40  borrower shall be nineteen dollars.  Notwithstanding any other provision
   41  of law, the New York state talking book and braille library shall be the
   42  successor  in  interest  to the New York state library for the blind and
   43  visually handicapped for all purposes, or the library for the blind  and
   44  physically  handicapped,  and  the  change  in name shall not affect the
   45  rights or interests of any party. Except where the context  indicates  a
   46  contrary  intent,  any  reference in any other general or special law to
   47  the New York state library for the blind and visually handicapped or the
   48  library for the blind and  physically  handicapped  shall  be  deemed  a
   49  reference to the New York state talking book and braille library.
   50    8.  State  aid  for  a  coordinated  program  of  library and archival
   51  services at The Center for Jewish History, Inc. (a) In addition  to  any
   52  other  sums  provided  to The Center for Jewish History, Inc., the board
   53  shall award in any state fiscal year an  annual  grant  of  two  hundred
   54  thousand  dollars  for  a  coordinated  program  of library and archival
   55  services that will increase public access to the  library  and  archival
       S. 1407                            35                            A. 2107
 
    1  collections of The Center for Jewish History, Inc. and its member insti-
    2  tutions.
    3    (b)  The  Center  for  Jewish  History, Inc. is hereby admitted to the
    4  University of the State of New York and shall, as a condition of contin-
    5  ued receipt of aid, maintain such status in accordance with  appropriate
    6  regulations  of  the University. Such regulations may include submission
    7  of a five-year plan and an annual program budget.
    8    § 43.04. State aid for library construction. 1.  State  aid  shall  be
    9  provided for up to fifty percent of the approved costs, excluding feasi-
   10  bility   studies,   plans   or   similar   activities  for  acquisition,
   11  construction, renovation or rehabilitation, including leasehold improve-
   12  ments, of buildings of public libraries and library systems chartered by
   13  the regents of the state of New York or established by act of the legis-
   14  lature subject to the limitations provided in subdivision four  of  this
   15  section.  For  purposes  of this subdivision, an amount of eight hundred
   16  thousand dollars shall be available for each calendar year.
   17    2. Each application for state aid shall be submitted by  the  trustees
   18  of  the  library  or library system responsible for the operation of the
   19  subject building to the board for review and approval, after having been
   20  reviewed and approved by the  governing  board  of  the  public  library
   21  system of which such library is a member. Each application shall:
   22    (a)  demonstrate  that  resources are or shall be available to provide
   23  for maximum utilization of the project if approved;
   24    (b) contain verification in such form as  may  be  acceptable  to  the
   25  chief executive officer that the total cost of the project, exclusive of
   26  state aid, has been or will be obtained;
   27    (c)  demonstrate that library operations would be made more economical
   28  as a consequence of approval;
   29    (d) be limited to one project concerning such building, provided  that
   30  no  building shall be the subject of more than one application per year;
   31  and
   32    (e) provided such other information as may be required  by  the  chief
   33  executive officer.
   34    3. In approving any application the board shall consider the condition
   35  of  existing  libraries  and,  where  appropriate, the needs of isolated
   36  communities, provided that  no  application  shall  be  approved  for  a
   37  project  that is deemed to be more than sixty percent complete as of the
   38  date of the application.
   39    4. Aid shall be distributed pursuant to this section as follows:
   40    (a) sixty percent of the funds appropriated pursuant to  this  section
   41  shall  be  made available to libraries within each system in such manner
   42  as to insure that the ratio of the amount received within each system to
   43  the whole of the aid made available pursuant to  this  paragraph  is  no
   44  greater  than  the  ratio of the population served by such system to the
   45  population of the state;
   46    (b) forty percent of the funds appropriated pursuant to  this  section
   47  shall  be  made  available  to  library systems or libraries within each
   48  system in such manner as to insure that  an  equal  amount  is  received
   49  within each system in the state; and
   50    (c)  any funds made available pursuant to paragraph (a) or (b) of this
   51  subdivision which are declined by such libraries or library systems  for
   52  any  reason,  or  which  cannot  otherwise  be used by such libraries or
   53  library systems for  any  reason,  shall  be  made  available  to  other
   54  libraries  within such system, or if no such library can use such funds,
   55  they shall be reallocated among the  other  library  systems  and  their
       S. 1407                            36                            A. 2107
 
    1  libraries in a manner that will to the extent possible provide from such
    2  reallocated funds an equal amount to each such system.
    3    5.  The  board shall report by September thirtieth of each year to the
    4  governor, the temporary president of the  senate,  the  speaker  of  the
    5  assembly,  the  chairs  of the senate finance committee and the assembly
    6  ways  and  means  committee  concerning  the  amounts  appropriated  and
    7  expended  pursuant to this section, the status of each project for which
    8  any amount of state aid was provided as of the date of the  report,  the
    9  status  of  any  project  for which an application was submitted but for
   10  which no aid was provided as of the date of the report, the  anticipated
   11  state aid necessary to be provided for eligible projects to be completed
   12  and such other information as appropriate.
   13    §  43.05.  State aid to school library systems. 1. Each school library
   14  system established pursuant to section two  hundred  eighty-two  of  the
   15  education  law and operating under a plan approved by the board shall be
   16  eligible to receive funding under this section consisting of the follow-
   17  ing amounts:
   18    (a) Each school library system with  a  public  and  nonpublic  school
   19  enrollment  of  less  than one hundred thousand students shall receive a
   20  base grant of eighty-three thousand dollars;
   21    (b) Each school library system with  a  public  and  nonpublic  school
   22  enrollment  of  one  hundred thousand students but less than two hundred
   23  thousand students shall receive a base grant of ninety thousand  dollars
   24  except  that  in  nineteen hundred ninety-one each school library system
   25  with a public and nonpublic school enrollment of  one  hundred  thousand
   26  students  but  less  than  two hundred thousand students shall receive a
   27  base grant of eighty-seven thousand dollars;
   28    (c) Each school library system with  a  public  and  nonpublic  school
   29  enrollment  of at least two hundred thousand students but less than five
   30  hundred thousand students shall receive a  base  grant  of  one  hundred
   31  twenty-three thousand dollars;
   32    (d)  Each  school  library  system  with a public and nonpublic school
   33  enrollment of more than five hundred thousand students shall  receive  a
   34  base grant of eight hundred ninety-seven thousand dollars;
   35    (e)  In addition to the base grant provided in paragraph (a), (b), (c)
   36  or (d) of this subdivision, each school  library  system  shall  receive
   37  annually:
   38    (i) twenty-nine cents per student enrolled in the participating public
   39  and nonpublic schools comprising such system,
   40    (ii)  five  hundred  dollars  per participating public school district
   41  comprising such system, a minimum of four thousand five hundred  dollars
   42  per  system  located  within a board of cooperative educational services
   43  area, or five thousand dollars per city school district of a city with a
   44  population of one hundred twenty-five thousand inhabitants or more, and
   45    (iii) two dollars and forty-five cents per square mile of  the  school
   46  library system;
   47    (f)  In  addition  to  any other sum provided in this subdivision, any
   48  school library system which has merged  since  January  first,  nineteen
   49  hundred eighty-four shall receive fifty thousand dollars annually; and
   50    (g)  In  addition  to any other sum provided in this subdivision, each
   51  school library system shall receive annually an automation grant amount-
   52  ing to ten percent of the total aid produced for that system  by  adding
   53  the base grant provided by paragraph (a), (b), (c) or (d) of this subdi-
   54  vision  to the additional aid provided by paragraphs (e) and (f) of this
   55  subdivision.
       S. 1407                            37                            A. 2107
 
    1    2. Before a school library system shall be entitled to receive operat-
    2  ing funds, such system shall submit a plan of  library  service  to  the
    3  board  for  approval.  In  reviewing such plan the board shall take into
    4  consideration system staffing; union catalog and  database  development;
    5  interlibrary  loan; communications and delivery; governance and advisory
    6  committees; membership criteria  and  the  means  of  relating  district
    7  library resources and programs to those of the system; non-public school
    8  participation;  and  procedures for submission and approval of plans and
    9  certification of membership.
   10    3. The moneys  made  available  pursuant  to  this  section  shall  be
   11  distributed to each school library system whose plan of service has been
   12  approved under the provisions of subdivision two of this section.
   13    4.  Each  school  library  system receiving state aid pursuant to this
   14  section shall furnish such information regarding its library service  as
   15  the board may from time to time require to determine whether it is oper-
   16  ating  in  accordance  with its approved plan. The board may at any time
   17  after affording notice and an opportunity to be heard,  revoke  approval
   18  of  a plan of library service if it finds that the school library system
   19  no longer conforms to its approved plan; or, in the case of  provisional
   20  approval, if such school library system no longer conforms to the agree-
   21  ment,  plans  or  conditions  upon  which  such provisional approval was
   22  based. In such case a school library  system  shall  not  thereafter  be
   23  entitled to state aid pursuant to this section unless and until its plan
   24  of library service is again approved by the board.
   25    § 43.06. State aid for cooperation with state correctional facilities.
   26  Each  public  library  system which has a state correctional facility or
   27  facilities within its area of service shall be awarded a grant  of  nine
   28  dollars  and  twenty-five  cents per capita for the inmate population of
   29  such facility or facilities upon the approval by the board of a plan  of
   30  service,  negotiated  between the area correctional facilities libraries
   31  and the corresponding library systems to make available  to  the  inmate
   32  population  of such facility or facilities the library resources of such
   33  system. Plans shall also include organizing and providing evaluation and
   34  accountability procedures and records for each region.
   35                                 ARTICLE 44
   36                     AID TO PUBLIC BROADCASTING STATIONS
   37  Section 44.01. Grants-in-aid to public television stations.
   38          44.02. Aid for radio programming.
   39    § 44.01. Grants-in-aid to public television stations. 1.  There  shall
   40  be  apportioned  annually, as assistance for approved operating expenses
   41  of public television corporations governed by  the  provisions  of  this
   42  section,  an amount not exceeding the product of the number of residents
   43  of the state as determined from the nineteen  hundred  eighty  decennial
   44  federal  census  multiplied  by  one dollar and forty cents. Such amount
   45  shall be allocated to each such corporation in accordance with a formula
   46  and schedule of payments developed by the  board  and  approved  by  the
   47  director of the division of the budget.
   48    2. The formula and schedule of payments developed pursuant to subdivi-
   49  sion  one of this section shall include provision for an amount not less
   50  than twenty percent of the total state operating assistance for instruc-
   51  tional television services to be provided to local educational  agencies
   52  by  public  television corporations through agreements with local school
   53  districts.
   54    3. There shall be  annually  apportioned  funds  for  the  payment  of
   55  approved capital expenses of educational television corporations in such
   56  amounts and in such manner as the legislature shall provide.
       S. 1407                            38                            A. 2107
 
    1    §  44.02.  Aid  for radio programming. 1.   There shall be apportioned
    2  annually,  as  assistance  for  approved  radio  programming   operating
    3  expenses,  an  amount  not exceeding one hundred ten thousand dollars to
    4  each radio corporation, governed by the provisions of this section,  and
    5  to  each  public  radio  station,  as defined in subdivision two of this
    6  section and paid in accordance with a formula and schedule  of  payments
    7  developed  by  the board. Recipients of assistance shall render a fiscal
    8  report to the chief executive officer not later than December  first  of
    9  each  year  upon such matters as the board may require and shall furnish
   10  annually such other fiscal reports as it may require.
   11    2. Notwithstanding any other provisions of law, for purposes  of  this
   12  subdivision  the term "public radio station" shall mean a non-profit and
   13  noncommercial radio station which meets the following requirements:
   14    (a) The station shall be licensed to:
   15    (i) an institution chartered by the board of regents;
   16    (ii) an agency of a municipal corporation; or
   17    (iii) a corporation created in  the  state  education  department  and
   18  within the university of the state of New York.
   19    (b)  The station other than stations operated by corporations approved
   20  for funding prior to April first,  nineteen  hundred  eighty-five  shall
   21  have for a period of three consecutive years immediately prior to appor-
   22  tionment  of  such  money  and  all  recipients  shall continue to after
   23  receipt of such money:
   24    (i) broadcast at least eighteen hours per day or the maximum hours  of
   25  operation authorized by the federal communications commission, whichever
   26  is less, three hundred sixty-five days per year; and
   27    (ii)  operate  with a staff of at least five full-time members paid at
   28  least the federal minimum wage, a budget that includes at least  ninety-
   29  five  thousand  dollars  of  non-federal  income  of  which a reasonable
   30  portion is received from  local  business,  foundations,  or  individual
   31  contributors  paid  either  directly  to  the radio station or broadcast
   32  corporation or to a not-for-profit corporation for the benefit  of  such
   33  radio  station and an effective radiated power equivalent to three thou-
   34  sand watts at five hundred feet above average  terrain  or  the  maximum
   35  tower height authorized by the federal communications commission, which-
   36  ever  is  less  for  FM radio stations or two hundred fifty watts for AM
   37  radio stations.
   38    § 7. Subdivision 3 of section 97-zzz of  the  state  finance  law,  as
   39  added  by  section  3-a  of part B of chapter 83 of the laws of 2002, is
   40  amended to read as follows:
   41    3. Moneys of this account, following appropriation by the legislature,
   42  shall be available to the [state education department] New  York  insti-
   43  tute  for  cultural education for services and expenses of [the cultural
   44  education program] its programs including operating expenses and capital
   45  projects subject to a plan approved by [the  commissioner  of  education
   46  and] the director of the budget.
   47    §  8. Section 57.01 of the arts and cultural affairs law is amended to
   48  read as follows:
   49    § 57.01. Office of state history. There shall  be  in  the  [education
   50  department]  New  York  institute  for  cultural education the office of
   51  state history.
   52    § 9. Subdivision 3 of section 57.02 of the arts and  cultural  affairs
   53  law,  as added by chapter 113 of the laws of 1997, is amended to read as
   54  follows:
   55    3. The [commissioner of education] New  York  institute  for  cultural
   56  education,  through  the office of state history is hereby authorized to
       S. 1407                            39                            A. 2107
 
    1  undertake projects to recognize  New  York  state  history  month.  Such
    2  projects  may  include  the creation of an essay contest for state resi-
    3  dents who are enrolled in any elementary or secondary education  program
    4  which  shall  reflect upon the importance of New York state history. Any
    5  project or projects created pursuant to this  subdivision  may,  in  the
    6  discretion  of  the  [commissioner  of education] New York institute for
    7  cultural education, authorize non-monetary awards to be given to project
    8  participants or project winners as [such commissioner] the board of such
    9  institute may deem appropriate.
   10    § 10. Section 57.03 of the arts and cultural affairs law is amended to
   11  read as follows:
   12    § 57.03. Functions of the office of state history.  It  shall  be  the
   13  function of the office of state history:
   14    1. To collect, edit and publish, with the approval of the [commission-
   15  er  of  education] chief executive officer of the New York institute for
   16  cultural education, any archives, records, papers  or  manuscripts  that
   17  are  deemed  essential  or desirable for the preservation of the state's
   18  history.
   19    2. To prepare and publish, with the approval of the  [commissioner  of
   20  education]  chief  executive  officer  of  the  New  York  institute for
   21  cultural education, or assist in the  preparation  and  publication  of,
   22  works relating to the history of the colony and state of New York.
   23    3.  To  acquire,  administer,  preserve,  exhibit,  interpret, and, in
   24  conformity with the regulations of the [commissioner of education] chief
   25  executive officer of the New York institute for cultural  education,  to
   26  loan,  exchange  or  dispose  of historical objects of personal property
   27  relating to the history of the colony and state  of  New  York;  and  to
   28  advise  any  state agency, board, commission, office, civil subdivision,
   29  institution, organization, or individual on  the  acquisition,  adminis-
   30  tration,  preservation,  exhibition,  interpretation, and disposition of
   31  historical objects.
   32    4. To perform the functions of the [state  education  department]  New
   33  York  institute for cultural education set forth in section 19.11 of the
   34  parks, recreation and historic preservation law with respect to historic
   35  sites under the jurisdiction of the  office  of  parks,  recreation  and
   36  historic  preservation;  and to advise and assist any political subdivi-
   37  sion of the  state  and  any  institution,  organization  or  individual
   38  concerning the designation, acquisition, administration, interpretation,
   39  use  and disposition of any historic site, property or place relative to
   40  the history of the colony and state  of  New  York,  and  to  coordinate
   41  educational programs and projects at such historic sites or properties.
   42    5.  To  advise and assist any state agency, board, commission, office,
   43  civil subdivision, institution  or  organization  in  the  planning  and
   44  execution  of  any  commemorative  event  relating to the history of the
   45  colony and state of New York or New York's participation  in  commemora-
   46  tive events outside of the state.
   47    6.  To  perform  other  functions or duties assigned the office by the
   48  [commissioner of education] chief executive  officer  of  the  New  York
   49  institute for cultural education.
   50    §  11.  Subdivisions  1,  7  and  8  of  section 57.05 of the arts and
   51  cultural affairs law are amended to read as follows:
   52    1. There shall be continued within the [education department] New York
   53  institute for cultural education the state archives. The state  archives
   54  shall  acquire, appraise, preserve either in original or duplicate form,
   55  catalog, display, duplicate and make available for reference and use  by
   56  state  officials and others those official records that have been deter-
       S. 1407                            40                            A. 2107
 
    1  mined to have sufficient historical value  or  other  value  to  warrant
    2  their continued preservation by the state.
    3    7.  The [commissioner of education] chief executive officer of the New
    4  York institute for cultural education may [request the attorney  general
    5  to] institute legal action for the return to the custody of the state of
    6  any record which has not legally been released from state custody.
    7    8. The state archives may duplicate records in its custody, and certi-
    8  fy under its own official seal to the authenticity of the copies of such
    9  records.  The  state  archives with the approval of the [commissioner of
   10  education] chief  executive  officer  of  the  New  York  institute  for
   11  cultural  education  and  in accordance with existing state statutes may
   12  dispose of original records in its custody that have been duplicated.
   13    § 12. Subdivisions 9 and 11 of section 57.05 of the arts and  cultural
   14  affairs  law,  subdivision  9  as amended and subdivision 11 as added by
   15  chapter 42 of the laws of 1987, are amended to read as follows:
   16    9. The [commissioner of education] board of the New York institute for
   17  cultural education shall have the power to [promulgate rules  and  regu-
   18  lations]  prescribe procedures and criteria necessary and appropriate to
   19  carry out the purposes of this section, providing no objection to  those
   20  [rules  and  regulations]  procedures and criteria is made within thirty
   21  days prior to the effective date of the proposed [rules and regulations]
   22  procedures and criteria by the following: the speaker  of  the  assembly
   23  for  [rules  and  regulations]  procedures  and criteria relating to the
   24  records of the assembly; the temporary president [pro-tem] of the senate
   25  for [rules and regulations] procedures  and  criteria  relating  to  the
   26  records  of  the  senate; the director of the division of the budget for
   27  [rules and regulations] procedures and criteria relating to  records  of
   28  the  civil  departments;  and  the chief administrator of the courts for
   29  [rules and regulations] procedures and criteria relating to  records  of
   30  the judiciary.
   31    11. The state archives shall establish a state records center consist-
   32  ing  of  one  or  more  depositories  for  nonpermanent storage of state
   33  records and shall be responsible for the preservation  and  disposal  of
   34  such  records.  Solely  for  the  purposes  of  carrying  out his or her
   35  record-keeping functions, the [commissioner of education]  chief  execu-
   36  tive  officer  of the New York institute for cultural education shall be
   37  empowered:
   38    (a) To assume responsibility for  the  physical  possession,  storage,
   39  servicing  and  preservation  of  state agency records accepted into the
   40  state records center, and for the security of the information  contained
   41  in  or  on  them. State records stored with the state archives shall for
   42  all purposes be deemed to be within the possession, custody and  control
   43  of the agency that transferred such records.
   44    (b)  To authorize the disposal or destruction of state records includ-
   45  ing books, papers, maps, photographs, microphotographs or other documen-
   46  tary materials made, acquired or received by any agency. At least  forty
   47  days  prior to the proposed disposal or destruction of such records, the
   48  [commissioner of education] chief executive  officer  of  the  New  York
   49  institute  for cultural education shall deliver a list of the records to
   50  be disposed of or destroyed to the attorney general, the comptroller and
   51  the state agency that transferred such records. No state records  listed
   52  therein  shall  be destroyed if within thirty days after receipt of such
   53  list the attorney general, comptroller, or the agency  that  transferred
   54  such  records  shall notify the [commissioner of education] chief execu-
   55  tive officer of the office of cultural education  that  in  his  or  her
   56  opinion such state records should not be destroyed.
       S. 1407                            41                            A. 2107
 
    1    (c)  To  agree to the deposit of noncurrent state records in the state
    2  records center.
    3    (d)  To  review  plans  submitted  by state agencies for management of
    4  their records and to make recommendations thereupon to the head  of  the
    5  state agency and the director of the division of the budget.
    6    (e)  To  inquire  into  the condition, character, amount and method of
    7  keeping such records.
    8    (f) To develop and implement  a  comprehensive  and  ongoing  training
    9  program in records management for all state agencies.
   10    (g)  To  provide  technical assistance in records management for state
   11  agencies.
   12    (h) To provide for the transfer of such records having archival  value
   13  from  the state records center to the state archives for their permanent
   14  preservation.
   15    (i) To develop and implement a fee schedule,  to  be  adopted  by  the
   16  board  of [regents] the New York institute for cultural education pursu-
   17  ant to rules and regulations adopted in conformity with the state admin-
   18  istrative  procedure  act,  to  support  records  management  activities
   19  subject to the following:
   20    (i)  the  fee  schedule  may  be changed only once in any twelve month
   21  period, and
   22    (ii) after the initial fee schedule is established  by  the  board  of
   23  regents, proposed changes to said schedule must be included in the annu-
   24  al  budget request submitted to the director of the budget. Such amended
   25  fee schedule shall not become effective until enactment  of  the  budget
   26  submitted annually by the governor to the legislature in accordance with
   27  article  seven of the constitution, and shall generate revenues consist-
   28  ent with appropriations contained therefor within such budget and suffi-
   29  cient to cover anticipated expenditures for the period  for  which  such
   30  fees shall be effective.
   31    (j) To promulgate such other regulations as are necessary to carry out
   32  the purposes of this subdivision.
   33    §  13.  Section  57.11 of the arts and cultural affairs law, as renum-
   34  bered by chapter 737 of the laws of 1987, is amended to read as follows:
   35    § 57.11. Penalty. A public officer who refuses or neglects to  perform
   36  any duty required of him by this article or to comply with a recommenda-
   37  tion  of the [commissioner of education] New York institute for cultural
   38  education under the authority of this article, shall for each  month  of
   39  such  neglect  or refusal, be punished by a fine of not less than twenty
   40  dollars.
   41    § 14. Subdivision 6 of section 57.17 of the arts and cultural  affairs
   42  law,  as added by chapter 737 of the laws of 1987, is amended to read as
   43  follows:
   44    6. "Records retention and disposition schedule" means a list or  other
   45  instrument  describing  records  and  their  retention  periods which is
   46  issued by the [commissioner of education] chief executive officer of the
   47  New York institute for cultural education.
   48    § 15. Section 57.21 of the arts and cultural affairs law,  as  amended
   49  by chapter 203 of the laws of 1995, is amended to read as follows:
   50    § 57.21. Local  government records advisory council. The [commissioner
   51  of education] chief executive officer of  the  New  York  institute  for
   52  cultural  education  shall  appoint  a local government records advisory
   53  council consisting of representatives of local government  associations,
   54  historians,  the  chief  administrative  judge,  the commissioner of the
   55  department of records and information services of the city of  New  York
   56  or  its  successor  agency, other users of local government records, and
       S. 1407                            42                            A. 2107
 
    1  other citizens. The city clerk of the city of New York shall be  a  non-
    2  voting  [members]  member  of such advisory council.   The council shall
    3  advise the [commissioner of education] New York institute  for  cultural
    4  education  concerning  local government records policies and procedures,
    5  state services and financial support needed to assist  or  advise  local
    6  officials,  and  regulations pertaining to local government records, and
    7  grants for local government records management improvement  pursuant  to
    8  section  57.35  of  this [chapter. The advisory council shall prepare an
    9  initial report on the above matters by December first, nineteen  hundred
   10  eighty-seven to be provided to the commissioner of education, the gover-
   11  nor, and appropriate committees of the legislature.  The commissioner of
   12  education  shall  not  promulgate regulations for the administration and
   13  maintenance of local government  records  before  July  first,  nineteen
   14  hundred  eighty-eight  except with prior consultation with and review by
   15  the advisory council] article.
   16    § 16. Section 57.23 of the arts and cultural affairs law,  as  amended
   17  by chapter 78 of the laws of 1989, is amended to read as follows:
   18    § 57.23. Oversight  and advisory services. 1.  It shall be the respon-
   19  sibility of the [commissioner of education] chief executive  officer  of
   20  the  New  York  institute for cultural education to advise local govern-
   21  ments on planning and administering programs for the  creation,  mainte-
   22  nance,  preservation,  reproduction, retention, and disposition of their
   23  records; to advise local governments on the development of micrographics
   24  systems, automated data processing systems, and other systems that  rely
   25  on  technology  to  create,  store, manage, and reproduce information or
   26  records; and to advise local governments on the preservation and use  of
   27  vital  records  and  records with enduring value for historical or other
   28  research purposes.
   29    2. The [commissioner of education] chief executive officer of the  New
   30  York  institute  for  cultural  education  is  authorized  to  establish
   31  requirements for  the  proper  creation,  preservation,  management  and
   32  protection of records, and shall develop statewide plans to ensure pres-
   33  ervation  of  adequate  documentation  of  the  functions, services, and
   34  historical development of local governments.
   35    3. The [commissioner of education] board of the New York institute for
   36  cultural education is authorized to [promulgate  regulations]  prescribe
   37  procedures  and  criteria  necessary to implement the provisions of this
   38  article with advice from the local government records advisory council.
   39    § 17. Subdivision 2 of section 57.25 of the arts and cultural  affairs
   40  law,  as added by chapter 737 of the laws of 1987, is amended to read as
   41  follows:
   42    2. No local officer shall destroy, sell or otherwise  dispose  of  any
   43  public  record  without  the  consent of the [commissioner of education]
   44  chief  executive  officer  of  the  New  York  institute  for   cultural
   45  education.    The [commissioner of education] chief executive officer of
   46  the New York institute for cultural education shall, after  consultation
   47  with  other state agencies and with local government officers, determine
   48  the minimum length of time  that  records  need  to  be  retained.  Such
   49  [commissioner]  chief  executive officer is authorized to develop, adopt
   50  [by regulation, issue]  and  distribute  to  local  governments  records
   51  retention and disposition schedules establishing minimum legal retention
   52  periods.  The issuance of such schedules shall constitute formal consent
   53  by  the  [commissioner  of  education]  New  York institute for cultural
   54  education to the disposition of records that  have  been  maintained  in
   55  excess  of the retention periods set forth in the schedules. Such sched-
   56  ules shall be reviewed and adopted by formal resolution of the governing
       S. 1407                            43                            A. 2107
 
    1  body of a local government prior to the disposition of any  records.  If
    2  any law specifically provides a retention period longer than that estab-
    3  lished  by  the  records  retention and disposition schedule established
    4  herein the retention period established by such law shall govern.
    5    §  18. Section 57.27 of the arts and cultural affairs law, as added by
    6  chapter 737 of the laws of 1987, is amended to read as follows:
    7    § 57.27. Records with statewide  significance.  The  [commissioner  of
    8  education]  board  of  the  New York institute for cultural education is
    9  authorized to designate particular local government records  for  perma-
   10  nent retention because of their enduring statewide significance.
   11    §  19. Section 57.29 of the arts and cultural affairs law, as added by
   12  chapter 737 of the laws of 1987, is amended to read as follows:
   13    § 57.29. Reproduction of records and  disposition  of  the  originals.
   14  Any  local  officer  may  reproduce  any record in his or her custody by
   15  microphotography  or  other  means  that   accurately   and   completely
   16  reproduces  all  the  information  in the record. Such official may then
   17  dispose of the original record even though it has not met the prescribed
   18  minimum legal retention period, provided that the  process  for  reprod-
   19  uction  and  the  provisions  made for preserving and examining the copy
   20  meet requirements established by the  [commissioner  of  education]  New
   21  York  institute for cultural education.  Such copy shall be deemed to be
   22  an original record for all purposes, including introduction as  evidence
   23  in proceedings before all courts and administrative agencies.
   24    §  20. Section 57.31 of the arts and cultural affairs law, as added by
   25  chapter 737 of the laws of 1987, is amended to read as follows:
   26    § 57.31. Cooperative records storage and management. All local govern-
   27  ment records shall be kept in secure facilities maintained by the  local
   28  government  unless  the consent of the [commissioner of education] chief
   29  executive officer of the New York institute for  cultural  education  is
   30  obtained  to  their transfer and storage elsewhere. Any local government
   31  may cooperate with another  local  government  or  governments  for  the
   32  improved  management  and  preservation of records, and may enter into a
   33  contractual arrangement for such purposes.
   34    § 21. Subdivision 2 of section 57.33 of the arts and cultural  affairs
   35  law,  as  amended by chapter 203 of the laws of 1995, is amended to read
   36  as follows:
   37    2. The records of any city with a population of one million  or  more,
   38  and  the  records  of  any  county  contained  therein,  so  long as the
   39  destruction of the records of such city or county shall be  carried  out
   40  in  accordance  with the procedure prescribed by any existing law exclu-
   41  sively applicable to the destruction of the  records  of  such  city  or
   42  county,  provided  that  section  57.35  of  this article shall apply to
   43  grants for local government records management for supreme court records
   44  in the custody of the counties of New York, Kings, Queens, Richmond  and
   45  Bronx,  and  records under the jurisdiction of the department of records
   46  and information services of the city of New York or its successor  agen-
   47  cy,  and records under the jurisdiction of the city clerk of the city of
   48  New York. If any such law shall be amended by local law after the  first
   49  day  of July, nineteen hundred fifty-one, the provisions of this section
   50  shall not apply to the destruction of such  records  if  the  procedures
   51  therefor  established  by  such  law,  as amended by local law, shall be
   52  acceptable to the [commissioner of education] chief executive officer of
   53  the New York institute for cultural education.
   54    § 22. Section 57.35 of the arts and cultural affairs law, as added  by
   55  chapter 78 of the laws of 1989, subdivision 1 as amended and subdivision
       S. 1407                            44                            A. 2107
 
    1  2-a  as  added by chapter 203 of the laws of 1995, is amended to read as
    2  follows:
    3    § 57.35. Grants  for  local government records management improvement.
    4  1. The [commissioner of education] board of the New York  institute  for
    5  cultural  education, upon consultation with the local government records
    6  advisory council, is authorized to award grants for  records  management
    7  improvement  as  specified  in sections 57.19, 57.25, 57.29 and 57.31 of
    8  this [chapter] article to individual local governments, groups of  coop-
    9  erating  local  governments  and  local governments that have custody of
   10  court records and for records management improvement for  supreme  court
   11  records in the custody of the counties of New York, Kings, Queens, Rich-
   12  mond,  and  Bronx  and  in  accordance  with  subdivision  two-a of this
   13  section, records under the jurisdiction of the department of records and
   14  information services of the city of New York or its successor agency and
   15  the city clerk of the city of New York.
   16    2. The [commissioner of education] board of the New York institute for
   17  cultural education shall [promulgate rules and regulations setting]  set
   18  forth  criteria  and  procedures  necessary  to award grants for records
   19  management improvement from monies available for this purpose in the New
   20  York state local government records management improvement fund,  estab-
   21  lished pursuant to section ninety-seven-i of the state finance law.
   22    Such criteria shall include but not be limited to:
   23    (a)  the  development by the applicant of a written plan for a records
   24  management program;
   25    (b) the condition of the records of the applicant;
   26    (c) the geographic location of the applicant so as to provide, to  the
   27  extent practicable, equitable geographic distribution of the grants;
   28    (d)  the  particular  design  of  the  applicant's  records management
   29  program; and
   30    (e) the applicant's  arrangements  for  cooperative  activities  among
   31  local governments for a records management program.
   32    2-a.    (a) Notwithstanding the provision of paragraph (c) of subdivi-
   33  sion two of this section, the [commissioner of education] board  of  the
   34  New  York  institute for cultural education may award grants totaling in
   35  the aggregate no more than one  million  dollars  annually  for  records
   36  management  improvement  to  the  department  of records and information
   37  services of the city of New York or its successor agency  and  the  city
   38  clerk  of the city of New York in accordance with the provisions of this
   39  subdivision.
   40    (b) The department of records and information services or its  succes-
   41  sor  agency  and  the  city  clerk  of the city of New York shall submit
   42  applications to the [commissioner of education] chief executive  officer
   43  of  the  New  York  institute for cultural education at the same time as
   44  applications pursuant to subdivision two of this section are required to
   45  be submitted. The applications shall set forth  the  records  management
   46  improvement  projects proposed by the department of records and informa-
   47  tion services or its successor agency and the city clerk of the city  of
   48  New  York  is  priority order and the amount requested for each project.
   49  Priority assignment of each project shall be a factor taken into consid-
   50  eration in addition to those outlined in subdivision two of this section
   51  when making grant awards.
   52    (c) Upon receipt of grant monies, the commissioner of  the  department
   53  of records and information services or its successor agency and the city
   54  clerk  of  the  city  of New York shall direct the disbursement of grant
   55  monies to each project for which a grant has been approved.
       S. 1407                            45                            A. 2107
 
    1    (d) The commissioner of the  department  of  records  and  information
    2  services  or  its successor agency and the city clerk of the city of New
    3  York shall, in addition to monitoring  the  progress  of  and  providing
    4  technical  assistance  to  projects  receiving  awards  pursuant to this
    5  subdivision,  prepare and submit progress reports on such projects. Such
    6  reports shall be at the level of  detail  and  frequency  comparable  to
    7  reports required of other local governments receiving awards pursuant to
    8  this section.
    9    3.  All  monies  received [by the commissioner of education] under the
   10  provisions of [the third undesignated] paragraph  three  of  subdivision
   11  (a) of section eight thousand eighteen, subparagraph b of paragraph four
   12  of subdivision (a) of section eight thousand twenty-one and subparagraph
   13  b of paragraph eleven of subdivision (b) of section eight thousand twen-
   14  ty-one of the civil practice law and rules, and subdivision a of section
   15  7-604  of  the  administrative code of the city of New York, for the New
   16  York state local government records management improvement fund shall be
   17  deposited [by the commissioner of education] to the credit of  [the  New
   18  York  state  local  government records management improvement] such fund
   19  established pursuant to section ninety-seven-i of the state finance  law
   20  by the tenth day of the month following receipt of such monies.
   21    4.  Each  year  the  New  York state local government records advisory
   22  council shall review and make recommendations on a proposed  operational
   23  and  expenditure  plan  for  the New York state local government records
   24  management improvement fund prior to its adoption by  the  [commissioner
   25  of  education]  board  of the New York institute for cultural education.
   26  The annual expenditure plan shall be subject  to  the  approval  of  the
   27  director of the division of the budget.
   28    §  23. Section 57.37 of the arts and cultural affairs law, as added by
   29  chapter 78 of the laws of 1989 and subdivision 1 as amended  by  chapter
   30  203 of the laws of 1995, is amended to read as follows:
   31    § 57.37. Regional  records offices. 1. The [commissioner of education]
   32  board of the New York institute for cultural education is authorized  to
   33  establish  in  each  judicial district, except New York city, a regional
   34  records office. In New York city, the [commissioner of education]  board
   35  of the New York institute for cultural education is authorized to estab-
   36  lish  a  single  regional  records  office to oversee records management
   37  programs for entities within the city of New York whose records are  not
   38  under  the  jurisdiction  of  the  department of records and information
   39  services or its successor agency and the city clerk of the city  of  New
   40  York.
   41    2.  The  regional records offices shall provide advisory and consulta-
   42  tive services and technical assistance to local governments  on  records
   43  management and the administration of archival records and address recom-
   44  mendations of the New York state local government records advisory coun-
   45  cil.
   46    3.  The  [commissioner  of  education] New York institute for cultural
   47  education is authorized to employ  specialists  in  records  management,
   48  archives administration and other specialists necessary to provide advi-
   49  sory,  consultative  and  technical assistance to local governments from
   50  monies available for this purpose in the New York state local government
   51  records management improvement fund,  established  pursuant  to  section
   52  ninety-seven-i of the state finance law.
   53    §  24. Section 57.39 of the arts and cultural affairs law, as added by
   54  chapter 78 of the laws of 1989, is amended to read as follows:
   55    § 57.39. Reporting requirements. The [commissioner of education] board
   56  of the New York institute for cultural education, with the advice of the
       S. 1407                            46                            A. 2107
 
    1  New York state local government records advisory council,  shall  report
    2  annually on or before March first to the governor and the legislature on
    3  the status of local government records management, including a report of
    4  revenues  and  expenditures  from  the  New  York state local government
    5  records management improvement fund for the previous calendar  year  and
    6  appropriate recommendations.
    7    §  25.  The  arts  and cultural affairs law is amended by adding a new
    8  section 57.40 to read as follows:
    9    § 57.40. Historical documentary heritage grants and  aid.    1.  Short
   10  title.  This  section  shall  be known and may be cited as the "New York
   11  documentary heritage act".
   12    2. Definitions. As used in this section,  the  following  terms  shall
   13  mean:
   14    (a) "Historical records". Records that contain significant information
   15  that  is  of  enduring  value  and  are  therefore  worthy  of long-term
   16  retention and systematic  management.  Historical  records  may  include
   17  diaries,  journals,  ledgers, minutes, reports, photographs, maps, draw-
   18  ings, blueprints, agreements, memoranda, deeds, case  files,  and  other
   19  material. They may take any of several physical forms: parchment, paper,
   20  microfilm,  cassette  tape,  film, videotape, computer tapes, discs, and
   21  other "machine readable" formats.
   22    (b) "Historical records program". Any deliberate, organized program to
   23  collect, hold, care for, and make available historical records,  includ-
   24  ing identifying, appraising, arranging, describing, and referencing them
   25  and using them in exhibitions and other public and educational programs.
   26    (c)  "Institutions  eligible  for  historical records program grants".
   27  Chartered or  incorporated  nonprofit  archives,  libraries,  historical
   28  societies and museums and other nonprofit institutions in New York state
   29  which operate historical records programs and which meet standards to be
   30  established  by  the board of the New York institute for cultural educa-
   31  tion.  Institutions operated by state or  federal  government  agencies,
   32  and  local  government  archives  shall  not  be eligible for historical
   33  records project grants, except that an institution of the state  univer-
   34  sity  of  New  York  or  the  city  university of New York may apply for
   35  historical records project grants with  regard  to  records  other  than
   36  internal records generated by the institution after July first, nineteen
   37  hundred  forty-eight if it is a component of the state university of New
   38  York or after July first, nineteen  hundred  seventy-nine  if  it  is  a
   39  component  of  the  city  university of New York or after the subsequent
   40  date on which the institution became a component of such university.
   41    (d) "Historical records program project". A project to carry  out  one
   42  or  more  of  the  activities  described  in  subdivision  three of this
   43  section.
   44    (e) "Cooperative project". A collaborative effort undertaken by two or
   45  more historical records programs, to meet shared needs or to  accomplish
   46  a  common  purpose,  or  a  project  undertaken by a service provider to
   47  address the historical records needs of more than one historical records
   48  program.
   49    (f)  "Regional  advisory  and  assistance  agency".  A  reference  and
   50  research  library  resources system, or an alternate public or nonprofit
   51  agency or organization willing to  provide  historical  records  program
   52  development  advice  and  assistance  services  covering a reference and
   53  research library resources system region  which  is  acceptable  to  the
   54  board of the New York institute for cultural education.
   55    (g)  "Historical  records  program development advice and assistance".
   56  Advice and assistance on the development and strengthening of historical
       S. 1407                            47                            A. 2107
 
    1  records programs, promotion of  cooperation,  coordinated  documentation
    2  planning,  training  in historical records management techniques, advice
    3  and assistance in reporting of information concerning historical records
    4  to  statewide  and national databases where appropriate, and initiatives
    5  to increase public awareness  of  the  values  and  uses  of  historical
    6  records.
    7    (h) "Service provider". A nonprofit professional or other association,
    8  local  government,  college or university, historical service agency, or
    9  other nonprofit institution or system which provides services to histor-
   10  ical records programs.
   11    (i) "Cost sharing". Local funds, local  in-kind  services,  and  other
   12  funds and support from other than state sources.
   13    (j)  "Program  year".  The  annual period from July first through June
   14  thirtieth.
   15    3. Scope of activities to be supported. The board of the institute  of
   16  cultural  resources is authorized to provide grants and advice to insti-
   17  tutions  eligible  for  historical  records  programs  and   cooperative
   18  projects,  and  aid  to  regional  advisory and assistance agencies, the
   19  central administration of the state  university  of  New  York  and  the
   20  central  administration of the city university of New York. Grants shall
   21  be used to support the  development  and  administration  of  historical
   22  records  programs; the surveying, appraisal, identification, collection,
   23  duplication, arrangement, description, and making available  of  histor-
   24  ical  records; public and educational programming relating to historical
   25  records; projects  to  improve  archival  techniques;  and  projects  to
   26  promote the research use of historical records. Aid to regional advisory
   27  and assistance agencies shall be used to promote and assist the develop-
   28  ment  of historical records programs. Aid to the central administrations
   29  of the state university of New York and the city university of New  York
   30  shall  be used to develop guidelines, policies and procedures, training,
   31  technical assistance, materials, oversight,  retention  and  disposition
   32  schedules  for  university records, and to promote, guide and direct the
   33  component institutions of such universities in the sound  administration
   34  of archival records.
   35    4.  Distribution  of  funds. (a) Historical documentary heritage funds
   36  shall be distributed as follows:
   37    (i) Grants: (1) Individual historical  records  program  projects  are
   38  eligible  for  at least thirty-five percent of the amount available; and
   39  (2) cooperative projects shall be eligible for up to twenty  percent  of
   40  the amount available.
   41    (ii)  Aid:  (1)  Regional  advisory  and  assistance agencies shall be
   42  eligible for forty percent of the  amount  available;  (2)  the  central
   43  administration of the state university of New York shall be eligible for
   44  two  and  one-half  percent  of  the total amount available; and (3) the
   45  central administration of the city  university  of  New  York  shall  be
   46  eligible for two and one-half percent of the total amount available.
   47    (b)  Notwithstanding  the  provisions of subparagraphs (i) and (ii) of
   48  paragraph (a) of this subdivision, the board of the office  of  cultural
   49  resources, taking into account the recommendations of the New York state
   50  historical  records  advisory board, may distribute funds designated for
   51  one purpose to address the needs of another purpose, provided that  such
   52  board  determines that the significance of the contributions to be real-
   53  ized from the proposals in one category outweighs  the  significance  of
   54  the contributions to be realized from the proposals in another category.
   55    5.  Cost-sharing.  The  board  of  the New York institute for cultural
   56  education shall determine  the  amount  of  cost-sharing  required  from
       S. 1407                            48                            A. 2107
 
    1  historical  records  programs, including cooperative programs. For indi-
    2  vidual  historical  records  program  projects  involving   arrangement,
    3  historical  records  held  by a program, the amount of such cost-sharing
    4  shall be at least fifty percent.
    5    6.  Applications  for historical records program projects. (a) Filing.
    6  By dates determined by the board of the New York institute for  cultural
    7  education each year, an eligible institution may file an application, in
    8  a  form  prescribed  by the board of the New York institute for cultural
    9  education, for a grant to support  the  approved  costs  of  a  proposed
   10  historical records project.
   11    (b)  Content.  Such application shall include, but need not be limited
   12  to:
   13    (i) a statement  describing  the  applicant's  need  for  the  funding
   14  requested;
   15    (ii)  collection  statements  and  policies used by the institution to
   16  guide its acquisition efforts;
   17    (iii) a summary description of the records included in the  historical
   18  records program of the institution;
   19    (iv)  the  status of finding aids and published guides for the histor-
   20  ical records held by the institution;
   21    (v) the current and/or anticipated level of use and audience  for  the
   22  historical records;
   23    (vi)  the importance of the historical records for documenting life in
   24  New York;
   25    (vii) the expected impact of the grant  upon  the  historical  records
   26  program;
   27    (viii)  the  plan  of work for the activities for which the funding is
   28  sought;
   29    (ix) the proposed project budget, including cost-sharing  which  would
   30  be committed to the project; and
   31    (x) the staff and other resources devoted to the institution's histor-
   32  ical records program on an ongoing basis.
   33    (c)  Approval.  In approving any application pursuant to this subdivi-
   34  sion, the board of the New York institute for cultural  education  shall
   35  consider:
   36    (i)  information in the proposal as set forth in paragraph (b) of this
   37  subdivision;
   38    (ii) the capacity of the institution to make  the  historical  records
   39  known  and accessible for research, education, public programs, improved
   40  policy making and other public benefits;
   41    (iii) the potential for improving the documentation of the heritage of
   42  any racial and ethnic group; and
   43    (iv) the potential for improving the documentation of under documented
   44  subjects, institutions, or activities.
   45    7. Application for cooperative projects. (a) Filing. By  dates  to  be
   46  established  by  the board of the New York institute for cultural educa-
   47  tion each year, a service provider or an eligible institution acting  as
   48  fiscal  agent on behalf of a group of eligible institutions, may file an
   49  application, in a form prescribed by the board of the New York institute
   50  for cultural education. A  group  of  cooperating  institutions  may  be
   51  formed  because of a common purpose, rather than because of geographical
   52  proximity.
   53    (b) Content. Such application shall include, but need not  be  limited
   54  to:
   55    (i)  a  statement  describing  the  applicant's  need  for the funding
   56  requested;
       S. 1407                            49                            A. 2107
 
    1    (ii) a description of the issue, problem, or  need  that  the  project
    2  will address;
    3    (iii)  a  description  of the historical records programs to be served
    4  and how the effort to be undertaken in a cooperative project relates  to
    5  and will strengthen these programs;
    6    (iv) description of the plan of work for the project;
    7    (v)  outcome  or  product  of  the project and how it will improve the
    8  identification and administration of historical records or contribute to
    9  the strengthening of historical records programs; and
   10    (vi)  the  proposed  budget,  including  cost-sharing  that  would  be
   11  contributed to the project.
   12    (c)  Approval.  In approving any application pursuant to this subdivi-
   13  sion, the board of the New York institute for cultural  education  shall
   14  consider:
   15    (i)  information in the proposal as set forth in paragraph (b) of this
   16  subdivision;
   17    (ii) the importance of the records involved for the  documentation  of
   18  life in New York state;
   19    (iii)  the importance of the project and the intended outcome or prod-
   20  uct in terms of strengthening the programs  of  the  cooperating  insti-
   21  tutions and promoting improved historical records management;
   22    (iv) the capacities of the cooperating institutions or service provid-
   23  ers  for carrying out the project, including prior experience with coop-
   24  erative or service projects; and
   25    (v) the potential for cooperating institutions to sustain  an  ongoing
   26  productive cooperative relationship as a result of the project.
   27    8.  Aid  for  regional  advisory  and assistance agencies. (a) Coordi-
   28  nation. The board of the New York institute for cultural education shall
   29  establish statewide priorities  for  regional  advisory  and  assistance
   30  agencies and shall assist and coordinate their efforts.
   31    (b)  Historical  records  program  advice  and assistance plans. To be
   32  eligible to receive aid annually, each participating  regional  advisory
   33  and assistance agency shall submit an annual work plan acceptable to the
   34  chief  executive  officer  of the New York institute for cultural educa-
   35  tion, and, after the first year of receiving aid, a report on activities
   36  of the prior year and a five-year plan, by dates designated by the chief
   37  executive officer of the New York institute for cultural education.  The
   38  five-year  plan shall outline goals and objectives to be accomplished in
   39  the region during the five-year  period.  The  annual  work  plan  shall
   40  describe  the  activities  to  be  carried  out  during the year and the
   41  program advice and assistance to be provided. The  five-year  plans  and
   42  the  annual  work  plans  shall reflect regional priorities and shall be
   43  consistent with statewide priorities established by the board of the New
   44  York institute for cultural education.
   45    (c) Aid. The board of the New York institute  for  cultural  education
   46  shall  each  year  determine  the  distribution  of  aid  among eligible
   47  regional advisory and assistance agencies. In doing so, the board  shall
   48  take  into account the level of resources needed to provide the services
   49  described in paragraphs (f) and (g) of subdivision two of  this  section
   50  in  a satisfactory manner, the extent of the geographical area served by
   51  each agency, and the size of the population served by each  agency,  and
   52  shall  distribute the available funds in such a manner as will best give
   53  effect to this section.
   54    9. Aid for state university of New York and  city  university  of  New
   55  York. To be eligible to receive aid annually, the central administration
   56  of  the  state  university of New York and the central administration of
       S. 1407                            50                            A. 2107
 
    1  the city university of New York shall each submit annual resources, and,
    2  after the first year of receiving aid, a report  on  activities  of  the
    3  prior year and a five-year plan.
    4    §  26.  Subdivisions 3 and 4 of section 97-i of the state finance law,
    5  subdivision 3 as amended by chapter 57 of the laws  of  1993,  paragraph
    6  (i)  of  subdivision  3 as amended by chapter 82 of the laws of 1995 and
    7  subdivision 4 as added by chapter 78 of the laws of 1989, are amended to
    8  read as follows:
    9    3. The monies in such fund, when  allocated,  shall  be  available  as
   10  follows:  (i)  two  million  three  hundred  thousand  dollars  per year
   11  adjusted annually to reflect the direct and indirect  charges  resulting
   12  from  negotiated  salary  increases may be used for payment of necessary
   13  and reasonable expenses incurred by the [commissioner of education]  the
   14  New  York  institute for cultural education in carrying out the advisory
   15  services required in subdivision one of section 57.23 of  the  arts  and
   16  cultural affairs law and to implement sections 57.21, 57.35 and 57.37 of
   17  the arts and cultural affairs law; (ii) not less than five hundred thou-
   18  sand  dollars per year shall be made available to the Documentary Herit-
   19  age program as provided in [section 140 of the  education  law]  section
   20  57.40  of  the  arts and cultural affairs law; (iii) not less than three
   21  hundred thousand dollars per year shall be made  available  to  the  New
   22  York  state archives partnership trust established in chapter 758 of the
   23  laws of 1992; and (iv) the remainder of the monies in the fund shall  be
   24  used  for  the award of grants to individual local governments or groups
   25  of cooperating local governments as provided in  section  57.35  of  the
   26  arts and cultural affairs law.
   27    [4.  Monies shall be payable from the fund on the audit and warrant of
   28  the comptroller on vouchers approved by the commissioner of education or
   29  by an officer or employee of the commissioner of education designated by
   30  the commissioner of education.]
   31    § 27. Section 19.11 of the parks, recreation and historic preservation
   32  law is amended to read as follows:
   33    § 19.11 Functions of [education department] the New York institute for
   34  cultural education.  Upon the request of the commissioner, the following
   35  functions relating to identification, restoration and educational inter-
   36  pretation of historic sites and places of  historic  interest  shall  be
   37  performed  by the [education department] New York institute for cultural
   38  education:
   39    1. Preparation of interpretative literature, the texts  of  signs  and
   40  markers,  exhibition,  and  other  presentations designed to utilize the
   41  educational potential of historic sites.
   42    2. Advising the office with respect to the custody, use,  cataloguing,
   43  restoration  and  control  of  original  documents  and objects (such as
   44  furniture, paintings,  equipment,  records,  drawings,  manuscripts  and
   45  maps)  having unique historic significance. The office may assign to the
   46  [education department] New York institute for  cultural  education,  and
   47  the [education department] New York institute for cultural education may
   48  accept, custody and control of any such original documents or objects.
   49    3. Evaluation of the historic significance of historic sites, historic
   50  site  development projects and places of historic interest; and advising
   51  the office with respect to the restoration, interpretation and use ther-
   52  eof.  The office shall request the evaluation of the [education  depart-
   53  ment]  New  York  institute  for cultural education before approving the
   54  acquisition of an historic site or the undertaking of an  historic  site
   55  development project.
       S. 1407                            51                            A. 2107
 
    1    4.  Such  other  functions relating to the identification, restoration
    2  and educational interpretation of historic sites as may be  agreed  upon
    3  between the office and the [education department] New York institute for
    4  cultural education.
    5    §  28.  The  opening  paragraph  of subdivision 5 and subdivision 6 of
    6  section 97-oo of the state finance law, as added by chapter 554  of  the
    7  laws of 1993, are amended to read as follows:
    8    Moneys  in  the state land biodiversity stewardship account, following
    9  appropriation by the legislature, shall be available to  the  department
   10  of  environmental conservation, office of parks, recreation and historic
   11  preservation, and the  New  York  state  museum  within  the  [education
   12  department]  New York institute for cultural education for the following
   13  purposes:
   14    6. No more than two-thirds of the moneys deposited in the  state  land
   15  biodiversity  stewardship account may be used for personal service costs
   16  incurred by the department  of  environmental  conservation,  office  of
   17  parks,  recreation  and  historic  preservation,  and the New York state
   18  museum within the [education department] New York institute for cultural
   19  education for the  purposes  set  forth  in  subdivision  five  of  this
   20  section.  The  remaining moneys deposited in the account may be utilized
   21  to support projects undertaken by contracts with non-profit conservation
   22  organizations, scientific institutions, and other qualified entities for
   23  the purposes set forth in subdivision five of this section.
   24    § 29. Subdivisions 3 and 4 of section 97-mmm of the state finance law,
   25  as added by section 89 of part A of chapter 436 of the laws of 1997, are
   26  amended to read as follows:
   27    3. Notwithstanding any other law, rule or regulation to the  contrary,
   28  the  comptroller  is  hereby  authorized and directed to transfer to the
   29  archives records management account, within forty-five days of enactment
   30  of the state budget, fees for records management activities from various
   31  state, local and miscellaneous agencies, and  deposit  in  the  archives
   32  records  management  account such amounts as determined by a schedule of
   33  fees developed by the [commissioner of education] New York institute for
   34  cultural education and approved by the director of the budget,  pursuant
   35  to section 57.05 of the arts and cultural affairs law.
   36    4.    Moneys  of this account, following appropriation by the legisla-
   37  ture, shall be available to the [state education  department]  New  York
   38  institute  for  cultural education for services and expenses of archives
   39  records management.
   40    § 30. Paragraph (i) of section 1510 of the not-for-profit  corporation
   41  law, as added by chapter 871 of the laws of 1977 and relettered by chap-
   42  ter 565 of the laws of 1980, is amended to read as follows:
   43    (i) Record of inscriptions to be filed. Whenever, under any general or
   44  special law, any cemetery is abandoned or is taken for a public use, the
   45  town  board  of the town or the governing body of the city in which such
   46  cemetery is located, shall cause to be made, at the time of the  removal
   47  of  the  bodies  interred  therein, an exact copy of all inscriptions on
   48  each headstone, monument, slab or marker erected on each lot or plot  in
   49  such  cemetery  and  shall cause the same to be duly certified and shall
   50  file one copy thereof in the office of the town or  city  clerk  of  the
   51  town  or  city  in  which  such cemetery was located and one copy in the
   52  office of the state historian and chief of the division  of  history  in
   53  the  [department of education] New York institute for cultural education
   54  at Albany. In addition to  such  inscriptions,  such  certificate  shall
   55  state  the name and location of the cemetery so abandoned or taken for a
       S. 1407                            52                            A. 2107
 
    1  public use, the cemetery in which each such body was so interred and the
    2  disposition of each such headstone, monument, slab or marker.
    3    §  31. Upon enactment of this act and before October 1, 2003, notwith-
    4  standing any inconsistent provision of law to the  contrary,  all  func-
    5  tions,  powers, duties, obligations and assets of the office of cultural
    6  education located within the state education department assigned to  the
    7  New  York  institute  for cultural education by this act shall be trans-
    8  ferred to such institute.
    9    § 32. Transfer of authority, administration and appropriations.
   10    1. Notwithstanding any provision of law to the contrary, on and  after
   11  October  1,  2003,  all obligations of the commissioner of education and
   12  the state education department with respect to the  former  sections  of
   13  the  education  law pertaining to the cultural education program, museum
   14  and libraries, shall become obligations of the New  York  institute  for
   15  cultural  education  and  such  institute  shall  be responsible for the
   16  administration of the programs of cultural  education  formerly  located
   17  within  the  education  department.  The commissioner of education shall
   18  provide for the orderly transfer of  all  matters,  records  and  things
   19  relating  to the office of cultural education and all cultural education
   20  programs, including but not limited to the state museum, state  library,
   21  state  archives  and  educational  television  and radio, and activities
   22  under this article to the chief executive officer of the New York insti-
   23  tute for cultural education.  Such transfer may be subject to a memoran-
   24  dum of understanding between the commissioner of education and the chief
   25  executive officer of the  New  York  institute  for  cultural  education
   26  subject  to  the  approval  of the director of the budget. The education
   27  commissioner and the board of regents are  authorized  and  directed  to
   28  continue  their  respective  roles, responsibilities and functions until
   29  the board of cultural resources has been duly  constituted  pursuant  to
   30  this act and an orderly transition has been completed.
   31    2.  Notwithstanding  the  provisions  of  any law to the contrary, the
   32  director of the budget is authorized to transfer to the New York  insti-
   33  tute  for cultural education funds otherwise appropriated or reappropri-
   34  ated for the purposes of this  act  and  any  other  cultural  resources
   35  programs  and  activities,  including,  but  not  limited  to,  museums,
   36  libraries, archives and educational television.
   37    § 33. Transfer provisions. 1. Notwithstanding any other law,  rule  or
   38  regulation to the contrary, any federal funds applicable to expenditures
   39  made  as  a result of appropriations to the office of cultural education
   40  or its programs may be available to the New York institute for  cultural
   41  education subject to the approval of the director of the budget.
   42    2.  All  books,  papers  and property of the former office of cultural
   43  education with respect to the functions, powers and  duties  transferred
   44  by  this  act are to be delivered to the New York institute for cultural
   45  education at such place and time, and in such manner as the chief execu-
   46  tive officer of the New York institute for cultural education requires.
   47    3. All rules, regulations, acts, determinations and decisions  of  the
   48  board  of  regents,  the  commissioner  of  education  and the education
   49  department with respect to the administration of this article  in  force
   50  on the effective date of this section shall continue in force and effect
   51  as  rules,  regulations, acts, determinations and decisions of the board
   52  of the New York institute for cultural education until duly modified  or
   53  repealed by such board.
   54    4.  Any business or other matter undertaken or commenced by the former
   55  office of cultural education or connected with  the  functions,  powers,
   56  duties  and  obligations hereby transferred and assigned to the New York
       S. 1407                            53                            A. 2107
 
    1  institute for cultural education and pending on the  effective  date  of
    2  this  act shall be conducted and completed by the New York institute for
    3  cultural education in the same manner  and  under  the  same  terms  and
    4  conditions and with the same effect as if conducted and completed by the
    5  former office of cultural education.
    6    § 34. Terms occurring in laws, contracts and other documents. Whenever
    7  the  former office of cultural education or its programs are referred to
    8  or designated in any law, contract or document pertaining to  the  func-
    9  tions,  powers,  obligations and duties hereby transferred and assigned,
   10  such reference or designation shall be deemed to refer to the  New  York
   11  institute for cultural education or programs of or chief executive offi-
   12  cer thereof.
   13    §  35.  Existing  rights  and remedies preserved. No existing right or
   14  remedy of any character shall be lost, impaired or affected by reason of
   15  section thirty-one of this act.
   16    § 36. Severability clause. If any clause, sentence, paragraph,  subdi-
   17  vision,  section  or  part  contained  in  any part of this act shall be
   18  adjudged by any court of competent  jurisdiction  to  be  invalid,  such
   19  judgment  shall not affect, impair, or invalidate the remainder thereof,
   20  but shall be confined in its operation to the  clause,  sentence,  para-
   21  graph,  subdivision,  section  or  part  contained  in  any part thereof
   22  directly involved in the controversy in which such judgment  shall  have
   23  been rendered. It is hereby declared to be the intent of the legislature
   24  that  this  act  would have been enacted even if such invalid provisions
   25  had not been included herein.
   26    § 37. This act shall take effect immediately and shall  be  deemed  to
   27  have been in full force and effect on and after April 1, 2003.
         REPEAL NOTES.--
         1.  Section  140 of the education law, proposed to be repealed by this
       act, established documentary heritage grants and aid.
         2. Sections 232, 233,  233-a,  234  and  235  of  the  education  law,
       proposed  to  be repealed by this act, established the state library and
       state museum within the education department and provided for the admin-
       istration of the state museum.
         3. Subdivisions 4 and 5 of section 236 of the education law,  proposed
       to be repealed by this act, established grants for public television and
       radio.
         4. Sections 245, 246, 247, 248, 249, 250, 251 and 252 of the education
       law,  proposed  to  be  repealed by this act, established the powers and
       duties of the state library.
         5. Sections 271, 272, 273 and 273-a of the education law, proposed  to
       be  repealed  by this act, established state aid for library systems and
       libraries.
         6. Sections 284 and 285 of the education law, proposed to be  repealed
       by  this act, established state aid for school library systems and state
       aid for cooperation with correctional facilities.
 
   28                                   PART D
 
   29    Section 1. Subdivision 11 of section 407-a of the  education  law,  as
   30  added by chapter 737 of the laws of 1988, is amended to read as follows:
   31    11. Any contract undertaken or financed by the dormitory authority for
   32  any  construction, reconstruction, rehabilitation or improvement for any
   33  special  act  school  district  shall  comply  with  the  provisions  of
   34  [sections  one hundred one and] section one hundred three of the general
   35  municipal law.
       S. 1407                            54                            A. 2107
 
    1    § 2. Subdivisions 1 and 2 of section 458  of  the  education  law  are
    2  REPEALED.
    3    §  2-a.  Subdivision 3 of section 458 of the education law, as amended
    4  by chapter 888 of the laws of 1970, paragraph (a) as amended by  chapter
    5  900 of the laws of 1973, is amended to read as follows:
    6    [3. a.] 1. In addition to other bond or bonds, if any, required by law
    7  for  the completion of the school portion of a combined occupancy struc-
    8  ture, or in the absence of any such requirement, the fund  shall  never-
    9  theless  require,  prior to the approval of any lease or other agreement
   10  providing  for  the  construction,  reconstruction,  rehabilitation   or
   11  improvement  of any combined occupancy structure, that the developer, if
   12  other than the New York city housing authority, or  general  contractor,
   13  furnish  a bond guaranteeing prompt payment of moneys due to all persons
   14  furnishing labor or materials to or for the person furnishing said  bond
   15  or  to his subcontractors in the prosecution of the entire work provided
   16  for in such lease or other agreement. Whenever the developer is the  New
   17  York city housing authority, it shall require each of its contractors to
   18  furnish  such  bonds to said authority and fund with respect to the work
   19  to be performed and materials supplied by such contractor, and no  sepa-
   20  rate  or  other  payment  bond  shall be required to be furnished to the
   21  fund. In those instances where the developer or general contractor is an
   22  agency of the state or a public-benefit corporation created by an act of
   23  the state legislature and in instances where said developer  or  general
   24  contractor  or the guarantor of payment of the construction costs of the
   25  non-school portion of the combined "occupancy  structure"  is  a  public
   26  utility  corporation or a bank, trust company or savings bank as defined
   27  in section two of the banking law, or a national bank having its  office
   28  and principal place of business in this state, or a subsidiary of such a
   29  bank  or  trust  company of which at least eighty (80%) percent of whose
   30  stock is owned by it, the said developer  or  general  contractor  shall
   31  only be required to furnish said payment bond with respect to the school
   32  portion of the combined occupancy structure. In such instances, the said
   33  payment  bond shall not be required by the fund with respect to the non-
   34  school portion of the combined occupancy structure, but, in lieu  there-
   35  of,  such  fund  shall  require said agency, public benefit corporation,
   36  public utility corporation or banking institution, as the case may be to
   37  guarantee payment of all construction costs with  respect  to  the  non-
   38  school portion of the combined occupancy structure.
   39    [b.] 2. A copy of such payment bond shall be kept in the office of the
   40  chairman  of the fund and a copy shall also be kept in the office of the
   41  board of education; such copies shall be open to public inspection.
   42    [c.] 3. Every person who has furnished labor or material,  to  or  for
   43  the  developer  or  contractor  furnishing  such  payment bond or to his
   44  subcontractors in the prosecution of the work provided for in the  lease
   45  or other agreement for which said bond is furnished and who has not been
   46  paid  in  full therefor before the expiration of a period of ninety days
   47  after the day on which the last of the labor was performed  or  material
   48  was  furnished  by him for which the claim is made, shall have the right
   49  to sue on such payment bond in his own  name  for  the  amount,  or  the
   50  balance  thereof,  unpaid  at  the  time  of commencement of the action;
   51  provided, however, that a person having a direct  contractual  relation-
   52  ship  with a subcontractor of the developer or contractor furnishing the
   53  payment bond but no contractual relationship  express  or  implied  with
   54  such  developer  or contractor shall not have a right of action upon the
   55  bond unless he shall have given written  notice  to  such  developer  or
   56  contractor furnishing the bond within ninety days from the date on which
       S. 1407                            55                            A. 2107
 
    1  the  last  of  the  labor  was performed or the last of the material was
    2  furnished, for which his claim is made, stating with substantial accura-
    3  cy the amount claimed and the name of the party to whom the material was
    4  furnished  or  for  whom  the  labor  was performed. The notice shall be
    5  served by delivering the same personally to the developer or  contractor
    6  furnishing  said bond or by mailing the same by registered mail, postage
    7  prepaid, in an envelope addressed to such developer or contractor at any
    8  place where he maintains an office or conducts his business  or  at  his
    9  residence.
   10    §  3.  Subdivisions  1  and  2 of section 482 of the education law are
   11  REPEALED.
   12    § 3-a. Subdivision 3 of section 482 of the education law, as added  by
   13  chapter 931 of the laws of 1971, is amended to read as follows:
   14    [3. a.] 1. In addition to other bond or bonds, if any, required by law
   15  for  the completion of the school portion of a combined occupancy struc-
   16  ture, or in the absence of any such requirement, the fund  shall  never-
   17  theless  require,  prior to the approval of any lease or other agreement
   18  providing  for  the  construction,  reconstruction,  rehabilitation   or
   19  improvement  of any combined occupancy structure, that the developer, if
   20  other than the Yonkers city housing authority,  or  general  contractor,
   21  furnish  a bond guaranteeing prompt payment of moneys due to all persons
   22  furnishing labor or materials to or for the person furnishing said  bond
   23  or  to his subcontractors in the prosecution of the entire work provided
   24  for in such lease or other agreement.  Whenever  the  developer  is  the
   25  Yonkers city housing authority, it shall require each of its contractors
   26  to furnish such bond to said authority and fund with respect to the work
   27  to  be performed and materials supplied by such contractor, and no sepa-
   28  rate or other payment bond shall be required  to  be  furnished  to  the
   29  fund.
   30    [b.] 2. A copy of such payment bond shall be kept in the office of the
   31  chairman  of the fund and a copy shall also be kept in the office of the
   32  board of education; such copies shall be open to public inspection.
   33    [c.] 3. Every person who has furnished labor or material,  to  or  for
   34  the  developer  or  general  contractor  or  contractor  furnishing such
   35  payment bond or to his subcontractors in the  prosecution  of  the  work
   36  provided  for  in  the  lease  or  other agreement for which the bond is
   37  furnished and who has not been paid in full therefor before the  expira-
   38  tion  of  a period of ninety days after the day on which the last of the
   39  labor was performed or material was furnished by him for which the claim
   40  is made, shall have the right to sue on such payment  bond  in  his  own
   41  name  for  the  amount,  or  the  balance thereof, unpaid at the time of
   42  commencement of the action; provided, however, that a  person  having  a
   43  direct contractual relationship with a subcontractor of the developer or
   44  contractor  furnishing  the payment bond but no contractual relationship
   45  express or implied with such developer or contractor shall  not  have  a
   46  right  of action upon the bond unless he shall have given written notice
   47  to such developer or contractor furnishing the bond within  ninety  days
   48  from  the  date on which the last of the labor was performed or the last
   49  of the material was furnished, for which his claim is made, stating with
   50  substantial accuracy the amount claimed and the name  of  the  party  to
   51  whom the material was furnished or for whom the labor was performed. The
   52  notice shall be served by delivering the same personally to the develop-
   53  er  or  contractor furnishing said bond or by mailing the same by regis-
   54  tered mail, postage prepaid, in an envelope addressed to such  developer
   55  or  contractor at any place where he maintains an office or conducts his
   56  business or at his residence.
       S. 1407                            56                            A. 2107
 
    1    § 4. Paragraphs b and c of subdivision 2-a  of  section  1950  of  the
    2  education  law,  as  amended  by  chapter  474  of the laws of 1996, are
    3  amended to read as follows:
    4    b. Not later than the first day of February of each year the president
    5  of  the  board  of  cooperative  educational  services shall designate a
    6  single date on or after the sixteenth day and on or before the thirtieth
    7  day of April on which each component board,  other  than  the  board  of
    8  education  of  a  central  high  school district, shall conduct a public
    9  meeting which may be a regular or special meeting, for  the  purpose  of
   10  electing  members  of  the board of cooperative educational services and
   11  adopting a public resolution concerning the approval or  disapproval  of
   12  the  tentative  administrative  budget.  In  the  case of a central high
   13  school district, such public meeting shall be held on the regular  busi-
   14  ness  day  next  following  the  date designated by the president of the
   15  board of cooperative educational services. Nomination of a person to  be
   16  elected  to a board of cooperative educational services shall be made by
   17  at least one component district by  board  resolution.  Such  resolution
   18  shall be transmitted in writing to the clerk of the board of cooperative
   19  educational  services  at  least  thirty  days  prior to the date of the
   20  election as designated by the president  of  the  board  of  cooperative
   21  educational services. No nomination of a person to be elected to a board
   22  of  cooperative  educational  services  from  a component district which
   23  currently has a resident serving on such board shall be accepted  unless
   24  such member's office is to expire at the end of the current year, unless
   25  the  size of such board exceeds the number of component school districts
   26  or unless an unrepresented district declines to make a  nomination.  For
   27  purposes  of this subdivision, any such person or board member nominated
   28  by a [special act school district, a] central high  school  district  or
   29  any  district  which  is  a  component of a central high school district
   30  shall be deemed a resident of the district that  nominated  him  or  her
   31  only.    Furthermore,  it  shall be the duty of the board of cooperative
   32  educational services to encourage the nomination of persons residing  in
   33  component  districts  not currently represented on such board. The clerk
   34  shall include the name and address  of  each  person  nominated  on  the
   35  election ballot to be distributed in accordance with paragraph c of this
   36  subdivision.
   37    c.  Members of the boards of cooperative educational services shall be
   38  elected by resolution of the component boards on a  ballot  prepared  by
   39  the  clerk of the board of cooperative educational services. Such ballot
   40  shall be mailed to each component district no later than  fourteen  days
   41  prior to the date designated as the day of the election by the president
   42  of  the  board  of  cooperative  educational  services.  Each  component
   43  district shall be entitled to one vote for  each  vacant  office  to  be
   44  filled. A component board may not cast more than one vote for any candi-
   45  date.  The  candidates  receiving  a plurality of the votes cast for the
   46  several offices shall be elected, provided, however, that no  more  than
   47  one person residing in a particular component district may be elected to
   48  serve  as a member of a board of cooperative educational services at one
   49  time unless the number of seats on such  board  exceeds  the  number  of
   50  component districts or unless an unrepresented district declines to make
   51  a nomination, provided further that a person nominated by a [special act
   52  school  district,  a]  central  high school district or a component of a
   53  central high school district shall be deemed a resident of the  nominat-
   54  ing  district  only for this purpose. Where more than one position is to
   55  be filled by such election and there is a variance in the length of  the
   56  terms  for  which  such  offices  are to be filled as authorized by this
       S. 1407                            57                            A. 2107
 
    1  subdivision, or one or more persons are to be elected for a full term or
    2  terms and one or more persons  are  to  be  elected  for  the  unexpired
    3  portion  of a term or terms, or both, the candidate receiving the great-
    4  est number of votes shall be entitled to the longest term and candidates
    5  receiving  the  next  highest number of votes, to the several offices in
    6  decreasing order of the length of such terms or  unexpired  portions  of
    7  such  terms.  Each  component  school district shall mail or deliver its
    8  completed ballot to the clerk of the board  of  cooperative  educational
    9  services no later than one business day after the election.
   10    §  5.  Subdivision 2-a of section 1950 of the education law is amended
   11  by adding a new paragraph g to read as follows:
   12    g. Notwithstanding any other provision of law  to  the  contrary,  any
   13  member  of  a board of cooperative educational services in the two thou-
   14  sand two--two thousand three school year who was  nominated  exclusively
   15  by  a  special  act school district shall vacate his or her office as of
   16  the date designated as the day of the annual board election of the board
   17  of cooperative educational services in April, two thousand  three.  Such
   18  vacancy  shall  be  filled  by election at such annual board election in
   19  accordance with the provisions of  this  subdivision,  provided  that  a
   20  special act school district shall not be eligible to nominate candidates
   21  or  cast  votes at such election or to vote on the administrative budget
   22  of the board of cooperative educational services or  to  otherwise  take
   23  any  action  as  a  component school district at such election or budget
   24  vote in April, two thousand three.
   25    § 6. Intentionally Omitted.
   26    § 7. Intentionally Omitted.
   27    § 8. Clause (ii) of subparagraph 7 of paragraph b of subdivision 4  of
   28  section 1950 of the education law, as amended by chapter 474 of the laws
   29  of 1996, is amended to read as follows:
   30    (ii)  If  the  board  of  cooperative  educational services chooses to
   31  apportion administrative costs and capital expenses according to full or
   32  true valuation, [special school districts authorized  to  receive  state
   33  aid  in  accordance  with  chapter five hundred sixty-six of the laws of
   34  nineteen hundred sixty-seven, as amended, shall have  their  full  value
   35  for  purposes  of  this  section  computed  by  multiplying the resident
   36  weighted average daily attendance by the state  average  full  valuation
   37  per  pupil  as established by the commissioner for the year in which the
   38  budget is adopted. The] the school authorities of each component  school
   39  district  shall  add  [such]  the amount so apportioned to the budget of
   40  such component districts and shall pay such amount to the  treasurer  of
   41  the  board  of cooperative educational services and shall be paid out by
   42  the treasurer upon the orders of the board  of  cooperative  educational
   43  services issued and executed in pursuance of a resolution of said board.
   44    §  9.  Paragraph  m  of subdivision 4 of section 1950 of the education
   45  law, as amended by chapter 583 of the laws of 1955 and as renumbered  by
   46  chapter 378 of the laws of 1972, is amended to read as follows:
   47    m.  At the request of officials of school districts, created by legis-
   48  lative act, within the territory of a board of  cooperative  educational
   49  services,  provide  services as outlined in paragraph d of this subdivi-
   50  sion. For such districts, there shall be apportioned from state funds to
   51  the board of cooperative educational services a sum  equal  to  one-half
   52  the  total  cost  of  the  approved  services  provided  to  such school
   53  district.  Notwithstanding any other provision of law to  the  contrary,
   54  in the two thousand three--two thousand four school year and thereafter,
   55  a  special  act  school  district shall not be deemed a component school
       S. 1407                            58                            A. 2107
 
    1  district of a board of cooperative educational services for any  purpose
    2  under this section or any other provision of this chapter.
    3    §  10.  Subparagraph 2 of paragraph d of subdivision 4 of section 1950
    4  of the education law, as added by chapter 474 of the laws  of  1996,  is
    5  amended to read as follows:
    6    (2)  Certain  services  prohibited.  (i)  Commencing with the nineteen
    7  hundred ninety-seven--ninety-eight school year, the  commissioner  shall
    8  not  be  authorized  to approve as an aidable shared service pursuant to
    9  this subdivision  any  cooperative  maintenance  services  or  municipal
   10  services,  including  but not limited to, lawn mowing services and heat-
   11  ing, ventilation or air conditioning  repair  or  maintenance  or  trash
   12  collection,  or  any  other municipal services as defined by the commis-
   13  sioner.  On  and  after  the  effective   date   of   this   [paragraph]
   14  subparagraph,  the  commissioner shall not approve, as an aidable shared
   15  service, any new cooperative maintenance or municipal services  for  the
   16  nineteen hundred ninety-six--ninety-seven school year, provided that the
   17  commissioner  may approve the continuation of such services for one year
   18  if provided in the nineteen hundred ninety-five--ninety-six school year.
   19    (ii) Notwithstanding any other provision of law to  the  contrary,  on
   20  and  after the effective date of this clause, the commissioner shall not
   21  approve, as an aidable shared service  pursuant  to  this  section,  the
   22  non-instructional and instructional support services specified in clause
   23  (iii)  of this subparagraph, and, notwithstanding any other provision of
   24  law to the contrary, the expenses incurred  for  such  specified  shared
   25  services  in  the  two thousand three--two thousand four school year and
   26  thereafter shall not be eligible for aid pursuant to subdivision five of
   27  this section or as authorized by subdivision eight-c of this section.
   28    (iii) The following services or activities shall not be aidable shared
   29  services, but may be approved by the commissioner as  nonaidable  shared
   30  services:
   31    (A) Collective negotiations;
   32    (B) Personnel services--recruiting;
   33    (C) Employee Assistance Programs;
   34    (D)  Business  office  services, including competitive bidding coordi-
   35  nation, microfilming, textbook coordination, business manager,  business
   36  office  support,  Medicaid  reimbursement,  computer service management,
   37  telecommunications and employee benefit coordination;
   38    (E) Planning services, management;
   39    (F) Public information coordinator or service (public relations);
   40    (G) School food services and food management;
   41    (H) Extracurricular activities coordination,  inter-scholastic  sports
   42  coordination,  K-12 subject area coordination; reading development coor-
   43  dination, health and drug education coordination, pupil services coordi-
   44  nation,  substitute  teacher  coordination  and  primary  mental  health
   45  services coordination;
   46    (I)  Instructional  graphics,  equipment  repair,  printing, non-print
   47  duplication, educational television, test scoring, guidance  information
   48  service, comprehensive instructional management, and model schools; and
   49    (J)   Curriculum   development,  school  curriculum  improvement,  and
   50  instructional planning.
   51    § 11. Subdivision 5 of section 1950 of the education law,  as  amended
   52  by chapter 53 of the laws of 1981, paragraph a as amended by chapter 474
   53  of the laws of 1996 and paragraph b as amended by chapter 53 of the laws
   54  of 1990, is amended to read as follows:
   55    5. a. Upon application by a board of cooperative educational services,
   56  there  shall  be  apportioned and paid from state funds to each board of
       S. 1407                            59                            A. 2107
 
    1  cooperative educational services in the two thousand four--two  thousand
    2  five  school  year  an amount which shall be the product of the approved
    3  cost of services actually incurred during the base  year  multiplied  by
    4  the  sharing  ratio for cooperative educational services aid which shall
    5  equal the greater of: (i) an amount equal  to  one  minus  the  quotient
    6  expressed  as  a decimal to three places without rounding of eight mills
    7  divided by the tax rate of the local district computed upon  the  actual
    8  valuation of taxable property, as determined pursuant to subdivision one
    9  of  section  thirty-six  hundred two of this chapter and notwithstanding
   10  section three thousand six hundred three,  expressed  in  mills  to  the
   11  nearest tenth as determined by the commissioner, provided, however, that
   12  where services are provided to a school district which is included with-
   13  in  a central high school district or to a central high school district,
   14  such amount shall equal one minus the quotient expressed as a decimal to
   15  three places without rounding of three mills divided by the  tax  rates,
   16  expressed  in  mills  to the nearest tenth, of such districts, as deter-
   17  mined by the commissioner or (ii) the aid ratio of each school  district
   18  for  the  current  year, which shall be such component school district's
   19  board of cooperative educational services aid ratio and which  shall  be
   20  not  less than thirty-six percent converted to decimals and shall be not
   21  more than ninety percent converted to decimals. For the purposes of this
   22  paragraph, the tax rate for the central high school  district  shall  be
   23  the  amount  of tax raised by the common and union free school districts
   24  included within the central high school district for the support of  the
   25  central  high  school  district  divided  by the actual valuation of the
   26  central high school district. The tax rate for each common or union free
   27  school district shall be the amount  raised  for  the  support  of  such
   28  common or union free school district, exclusive of the amount raised for
   29  the  central  high  school district, divided by such actual valuation of
   30  such common or union free school district.
   31    b. [The] For aid payable in the two thousand four--two  thousand  five
   32  school year, the cost of services herein referred to shall be the amount
   33  allocated  to each component school district by the board of cooperative
   34  educational services to defray expenses of such board, except that  that
   35  part of the salary paid any teacher, supervisor or other employee of the
   36  board  of  cooperative educational services which is in excess of thirty
   37  thousand dollars shall not be such an approved expense, and except  also
   38  that  administrative  and clerical expenses shall not exceed ten percent
   39  of the total expenses for  purposes  of  this  computation.  Any  gifts,
   40  donations  or  interest  earned  by the board of cooperative educational
   41  services or on behalf of the board of cooperative  educational  services
   42  by  the dormitory authority or any other source shall not be deducted in
   43  determining the cost of services  allocated  to  each  component  school
   44  district. The expense of transportation provided by the board of cooper-
   45  ative  educational  services pursuant to paragraph q of subdivision four
   46  of this section shall be eligible for aid apportioned pursuant to subdi-
   47  vision seven of section thirty-six hundred two of this  chapter  and  no
   48  board  of  cooperative educational services transportation expense shall
   49  be an approved cost of services for the computation of  aid  under  this
   50  subdivision.  Transportation expense pursuant to paragraph q of subdivi-
   51  sion four of this section shall be included in the  computation  of  the
   52  ten percent limitation on administrative and clerical expenses.
   53    c.  The  "tax  rate" as herein referred to shall not include a special
   54  tax levied for debt service in an existing district of a central  school
   55  district or a consolidated district.
       S. 1407                            60                            A. 2107
 
    1    d.  Nothing  in  this  [act] section shall prevent school districts or
    2  boards of cooperative educational services  with  the  approval  of  the
    3  commissioner   of   education  from  providing  cooperative  educational
    4  services for which no application for state aid is to be made.
    5    e. Any aid apportioned in accordance with section two hundred thirteen
    6  of  [the  education  law]  this chapter to a board of cooperative educa-
    7  tional services in connection with the production of  educational  tele-
    8  vision  materials and programs, or the acquisition by purchase, lease or
    9  otherwise of television facilities or operational expenses in connection
   10  therewith shall not be utilized in connection with computing the  appor-
   11  tionment  to  such  board  of  cooperative educational services. Any aid
   12  apportioned or paid by the state to a board of  cooperative  educational
   13  services  for  experimental or special programs shall not be utilized in
   14  connection with computing the apportionment to such board of cooperative
   15  educational services.
   16    [f. The sum of  the  amounts  determined  for  each  component  school
   17  district  as  the  apportionment to the board of cooperative educational
   18  services pursuant to the provisions of this section shall  not  be  less
   19  than  the  amount  which would have been apportioned during the nineteen
   20  hundred sixty-seven--sixty-eight school year  under  the  provisions  of
   21  this subdivision as in effect on December thirty-first, nineteen hundred
   22  sixty-six  to the board of cooperative educational services of which the
   23  district was a component member for which such apportionment  was  made,
   24  except  that  such minimum apportionment shall be reduced in any year in
   25  which the expenditures of the component district for  board  of  cooper-
   26  ative educational purposes fall below the expenditure on which the nine-
   27  teen  hundred  sixty-seven--sixty-eight  apportionment  to  the board of
   28  cooperative educational services was based, such reduction to be made on
   29  a proportionate basis.]
   30    g. [Any] For aid payable in the two thousand four--two  thousand  five
   31  school  year, any payment required by a board of cooperative educational
   32  services to the dormitory authority or any payment required by  a  board
   33  of  cooperative  educational  services  to acquire or construct a school
   34  facility of the board  of  cooperative  educational  services,  and  any
   35  payments  for rental of facilities by a board of cooperative educational
   36  services shall, for the purposes of apportionment of  public  moneys  to
   37  the  board of cooperative educational services by the state of New York,
   38  be deemed to be an administrative expense but the entire amount of  such
   39  payment  shall  be utilized in making such apportionment and the limita-
   40  tion of ten percent of the total expenses contained in this  subdivision
   41  shall  not  be applicable. Any such payment shall not be considered part
   42  of the total expenses of the  board  for  purposes  of  determining  the
   43  administrative and clerical expenses not to exceed ten percent otherwise
   44  eligible  for  aid  under  this  subdivision, and such payments shall be
   45  considered for the purpose of apportionment during  the  current  school
   46  year  such  payment is made. The apportionment for such payments for the
   47  two thousand four--two thousand five school year shall be determined  by
   48  multiplying  the  amount  of  such  payment  allocated to each component
   49  school district in the board of cooperative educational services by  the
   50  aid  ratio, and shall be not more than ninety percent converted to deci-
   51  mals, of each such component computed pursuant to subdivision  three  of
   52  section thirty-six hundred two of this chapter and used to apportion aid
   53  to  that  district  in  that current school year; provided, however, the
   54  apportionment shall be based upon the cost of the board  of  cooperative
   55  educational services school facilities but not to exceed the cost allow-
   56  ance  set  forth in subdivision six of section thirty-six hundred two of
       S. 1407                            61                            A. 2107
 
    1  [the education law] this chapter  and  payments  for  rental  facilities
    2  shall be subject to the approval of the commissioner.
    3    h.  For  aid payable in the two thousand five--two thousand six school
    4  year and thereafter, any payment required  by  a  board  of  cooperative
    5  educational services to the dormitory authority on a project approved by
    6  the  commissioner on or before February first, two thousand three or any
    7  payment required by a  board  of  cooperative  educational  services  to
    8  acquire  or  construct  a  school  facility  of the board of cooperative
    9  educational services on a project approved by  the  commissioner  on  or
   10  before  February  first, two thousand three, and any payments for rental
   11  of facilities by a board of cooperative  educational  services  under  a
   12  lease  approved  by  the  commissioner  on or before February first, two
   13  thousand three shall, for the purposes  of  this  section,  and  section
   14  nineteen  hundred  fifty-one  of this article, be deemed to be a capital
   15  expense and shall be allocated in the same manner as  an  administrative
   16  expense  and such payments shall be considered for the purpose of appor-
   17  tionment during the current school year such payment is made. The appor-
   18  tionment for such payments shall be determined by multiplying the amount
   19  of such payment allocated to each component school district in the board
   20  of cooperative educational services by the aid ratio, and shall  be  not
   21  more  than  ninety percent converted to decimals, of each such component
   22  computed pursuant to subdivision three of section thirty-six hundred two
   23  of this chapter and used to apportion  aid  to  that  district  in  that
   24  current school year; provided, however, the apportionment shall be based
   25  upon  the  cost  of the board of cooperative educational services school
   26  facilities but not to exceed the cost allowance set forth in subdivision
   27  six of section thirty-six hundred two of this chapter and  payments  for
   28  rental facilities shall be subject to the approval of the commissioner.
   29    i.  Each board of cooperative educational services shall determine the
   30  amount of its program expenses for career education in the two  thousand
   31  three--two  thousand  four  school  year  that  was attributable to each
   32  component school district and the amount of state aid payable on  behalf
   33  of  each  such district pursuant to this subdivision in the two thousand
   34  four--two thousand five school year that was attributable to cooperative
   35  services agreements (CO-SERs) for career education, as determined by the
   36  commissioner.   Each board of  cooperative  educational  services  shall
   37  report such amounts to its component school districts and to the commis-
   38  sioner within thirty days of its receipt of notice from the commissioner
   39  of  the  total  amount of such state aid payable to the board of cooper-
   40  ative educational services in the two thousand four--two  thousand  five
   41  school  year.  Notwithstanding any other provision of law to the contra-
   42  ry, each component school district shall be required to set  aside  from
   43  its  state operating aid or other unrestricted state aid an amount equal
   44  to the state aid for career education for  the  two  thousand  four--two
   45  thousand  five school year that was attributed to such district pursuant
   46  to this paragraph and shall be required to use such  amount  to  support
   47  career  education  programs  in the current school year, commencing with
   48  the two thousand five--two thousand six school year.
   49    § 12. Subdivision 11 of section 1950 of the education law, as added by
   50  chapter 218 of the laws of 1972, is amended to read as follows:
   51    11. With the approval of the commissioner, one or more boards of coop-
   52  erative educational services and one or more school districts may  enter
   53  into  an  agreement  or  agreements  to  provide  for  sharing  costs of
   54  construction of or leases for facilities acquired  for  the  purpose  of
   55  housing  services  to  be  provided  by a board or boards of cooperative
   56  educational services for provision of which services such facilities are
       S. 1407                            62                            A. 2107
 
    1  constructed or leased, provided, however that any such agreement that is
    2  entered into, renewed or extended on or after February first, two  thou-
    3  sand  three  shall not be eligible for aid pursuant to this section.  No
    4  such  agreement  may be for a longer term than is required to retire any
    5  obligations issued by one or more of the parties to such  agreement  for
    6  the  purpose  of  acquiring  such  facilities,  or  to pay the dormitory
    7  authority in full for the acquisition of such facilities.
    8    § 13. Paragraph f of subdivision 13 of section 1950 of  the  education
    9  law,  as  added by chapter 33 of the laws of 1976, is amended to read as
   10  follows:
   11    f. State aid on account of the acquisition of such facilities shall be
   12  paid to each component school district based upon  its  respective  debt
   13  service  or share thereof paid pursuant to the agreement herein provided
   14  for, and upon its respective aid ratio, to the extent provided by subdi-
   15  vision five of this section.
   16    § 14. Paragraph f of subdivision 14 of section 1950 of  the  education
   17  law,  as added by chapter 728 of the laws of 1976, is amended to read as
   18  follows:
   19    f. State aid on account of the acquisition  or  construction  of  such
   20  facilities  shall  be  paid to each component school district based upon
   21  its respective debt service or share thereof paid pursuant to the agree-
   22  ment herein provided for, and upon its  respective  aid  ratio,  to  the
   23  extent  provided  by subdivision five of this section. Any such computa-
   24  tion of state aid shall further be based upon the cost of such  acquisi-
   25  tion,  or  construction, and including incidental costs, to the board of
   26  cooperative educational services but not to exceed  the  cost  allowance
   27  set  forth  in subdivision six of section thirty-six hundred two of this
   28  chapter.
   29    § 15. Subparagraph (v) of paragraph j of subdivision 1 of section 3602
   30  of the education law, as amended by section 11-a of part C of chapter 58
   31  of the laws of 1998, is amended and a new subparagraph (vi) is added  to
   32  read as follows:
   33    (v)  for aid payable in the nineteen hundred ninety-eight--ninety-nine
   34  school year [and thereafter] through the two thousand four--two thousand
   35  five school year, such term shall mean the net total amount  a  district
   36  was  eligible  to  receive  during the base year under the provisions of
   37  clause (i) of  paragraph  a  of  subdivision  twelve,  and  subdivisions
   38  fifteen,  and  sixteen  of this section and the adjustment in aid due to
   39  the selection made pursuant to subdivision  eighteen  of  this  section,
   40  except that the comprehensive operating aids base for aid payable in the
   41  nineteen  hundred  ninety-eight--ninety-nine school year and thereafter,
   42  and for aid calculations for subsequent school years based on aid  paya-
   43  ble  in  such  school  years,  shall  be deemed final and not subject to
   44  change on or after July first of the  school  year  following  the  last
   45  school  year  in  which the commissioner may last accept and certify for
   46  payment any additional claim for such school year pursuant to  paragraph
   47  a  of  subdivision five of section thirty-six hundred four of this arti-
   48  cle.
   49    (vi) for aid payable in the two thousand five--two thousand six school
   50  year, such term shall mean the net total amount a district was  eligible
   51  to  receive  during  the base year under the provisions of clause (i) of
   52  paragraph a of subdivision twelve, and subdivisions fifteen, and sixteen
   53  of this section and paragraphs  a  through  e  of  subdivision  five  of
   54  section  nineteen  hundred  fifty of this chapter, and the adjustment in
   55  aid due to the selection made pursuant to subdivision eighteen  of  this
   56  section, except that the comprehensive operating aids base for aid paya-
       S. 1407                            63                            A. 2107
 
    1  ble  in  such  school  year and thereafter, and for aid calculations for
    2  subsequent school years based on aid payable in such school years, shall
    3  be deemed final and not subject to change on or after July first of  the
    4  school year following the last school year in which the commissioner may
    5  last accept and certify for payment any additional claim for such school
    6  year  pursuant  to paragraph a of subdivision five of section thirty-six
    7  hundred four of this article.
    8    § 16. Subdivision 1 of section 3602 of the education law is amended by
    9  adding two new paragraphs bb and cc to read as follows:
   10    bb. Beginning with the two thousand three--two  thousand  four  school
   11  year  and  thereafter, "extraordinary needs index" shall mean the number
   12  computed to three decimals without rounding obtained when  the  extraor-
   13  dinary  needs pupil count divided by the base year public school enroll-
   14  ment of such district is divided by the  statewide  extraordinary  needs
   15  pupil count divided by the statewide base year public school enrollment.
   16  Such  statewide  average  extraordinary needs percentage shall be estab-
   17  lished each year by the commissioner.
   18    cc. Beginning with the two thousand three--two  thousand  four  school
   19  year  and  thereafter,  "needs-resource  index"  shall  mean  the number
   20  computed to three decimals without rounding obtained when  the  extraor-
   21  dinary  needs  index  is  divided  by  the combined wealth ratio of such
   22  district.
   23    § 17. The opening paragraph of subdivision 6 of section  3602  of  the
   24  education  law,  as amended by section 10 of part H of chapter 83 of the
   25  laws of 2002, is amended to read as follows:
   26    Any apportionment to a school district pursuant  to  this  subdivision
   27  shall  be based upon base year approved expenditures for capital outlays
   28  incurred prior to July first, two thousand one from  its  general  fund,
   29  capital  fund  or  reserved funds and current year approved expenditures
   30  for debt service, including  debt  service  for  refunding  bond  issues
   31  eligible  for  an apportionment pursuant to paragraph g of this subdivi-
   32  sion and lease or other annual payments to the New York city educational
   33  construction fund created by article ten of this chapter or the city  of
   34  Yonkers  educational  construction fund created by article ten-B of this
   35  chapter which have been pledged to secure the payment of bonds, notes or
   36  other obligations issued by the fund to finance the construction, acqui-
   37  sition, reconstruction, rehabilitation  or  improvement  of  the  school
   38  portion  of  combined occupancy structures, or for lease or other annual
   39  payments to the New York state urban development corporation created  by
   40  chapter  one hundred seventy-four of the laws of nineteen hundred sixty-
   41  eight, pursuant to agreement  between  such  school  district  and  such
   42  corporation  relating  to the construction, acquisition, reconstruction,
   43  rehabilitation or improvement of any  school  building,  or  for  annual
   44  payments  to  the dormitory authority pursuant to any lease, sublease or
   45  other agreement relating to  the  financing,  refinancing,  acquisition,
   46  design,   construction,   reconstruction,  rehabilitation,  improvement,
   47  furnishing and equipping of, or otherwise provide  for  school  district
   48  capital  facilities  or school district capital equipment made under the
   49  provisions of section sixteen hundred eighty of the  public  authorities
   50  law,  or  for  lease, lease-purchase or other annual payments to another
   51  school district or person, partnership or  corporation  pursuant  to  an
   52  agreement  made  under  the  provisions of section four hundred three-b,
   53  subdivision eight of section twenty-five hundred three,  or  subdivision
   54  six  of section twenty-five hundred fifty-four of this chapter, provided
   55  that the apportionment for such lease or other annual payments under the
   56  provisions of section four hundred three-b, subdivision eight of section
       S. 1407                            64                            A. 2107
 
    1  twenty-five hundred three, or subdivision  six  of  section  twenty-five
    2  hundred  fifty-four  of this chapter, other than payments under a lease-
    3  purchase agreement or an  equivalent  agreement,  shall  be  based  upon
    4  approved  expenditures in the [base] current year. Approved expenditures
    5  for capital outlays from a school district's general fund, capital  fund
    6  or reserved funds that are incurred on or after July first, two thousand
    7  two,  and are not aidable pursuant to subdivision six-f of this section,
    8  shall be aidable as debt service under an  assumed  amortization  estab-
    9  lished  pursuant  to paragraphs e and j of this subdivision. In any such
   10  case approved expenditures shall be only for  new  construction,  recon-
   11  struction,  purchase  of  existing  structures,  for  site  purchase and
   12  improvement, for  new  garages,  for  original  equipment,  furnishings,
   13  machinery, or apparatus, and for professional fees and other costs inci-
   14  dental  to  such construction or reconstruction, or purchase of existing
   15  structures. In the case of a lease or lease-purchase  agreement  entered
   16  pursuant  to  section four hundred three-b, subdivision eight of section
   17  twenty-five hundred three or  subdivision  six  of  section  twenty-five
   18  hundred  fifty-four of this chapter, approved expenditures for the lease
   19  or other annual payments shall not include the costs of heat,  electric-
   20  ity,  water  or other utilities or the costs of operation or maintenance
   21  of the leased facility. An apportionment shall be available pursuant  to
   22  this  subdivision  for  construction,  reconstruction, rehabilitation or
   23  improvement in a building, or portion thereof, being leased by a  school
   24  district  only  if  the lease is for a term of at least ten years subse-
   25  quent to  the  date  of  the  general  construction  contract  for  such
   26  construction, reconstruction, rehabilitation or improvement. Each school
   27  district  shall prepare a five year capital facilities plan, pursuant to
   28  regulations developed by the commissioner  for  such  purpose,  provided
   29  that in the case of a city school district in a city having a population
   30  of  one  million  inhabitants or more, such facilities plan shall comply
   31  with the provisions of section  twenty-five  hundred  ninety-p  of  this
   32  chapter and this subdivision. Such plan shall include, but not be limit-
   33  ed  to,  a  building inventory, and estimated expense of facility needs,
   34  for new  construction,  additions,  alterations,  reconstruction,  major
   35  repairs,  energy  consumption  and  maintenance  by  school building, as
   36  appropriate. Such five year plan shall include  a  priority  ranking  of
   37  projects and shall be amended if necessary to reflect subsequent on-site
   38  evaluations of facilities conducted by state supported contractors.
   39    §  18.  Paragraph  a of subdivision 6 of section 3602 of the education
   40  law, as added by chapter 57 of the laws of 1993, the  opening  paragraph
   41  as amended by chapter 260 of the laws of 1993 and subparagraphs 1, 2 and
   42  3 as amended and subparagraph 4 as added by section 5 of part A of chap-
   43  ter 60 of the laws of 2000, is amended to read as follows:
   44    a.  For  capital  outlays for such purposes first incurred on or after
   45  July first,  nineteen  hundred  sixty-one  and  debt  service  for  such
   46  purposes  first incurred on or after July first, nineteen hundred sixty-
   47  two, the actual approved expenditures less the amount of  civil  defense
   48  aid  received pursuant to the provisions of section thirty-five of chap-
   49  ter seven hundred eighty-four of the laws of nineteen hundred  fifty-one
   50  as  amended  shall  be  allowed for purposes of apportionment under this
   51  subdivision but not in excess of the following schedule of  cost  allow-
   52  ances:
   53    (1)  [For  new]  (a)  If  (i) the date upon which the project has been
   54  approved by the commissioner, or (ii) for a city school  district  in  a
   55  city  having  a population of one million inhabitants or more, the first
   56  date upon which a general construction contract has been  awarded  or  a
       S. 1407                            65                            A. 2107
 
    1  purchase  agreement has been executed, relating to construction [and] of
    2  a new structure, an addition to an existing structure or the purchase of
    3  an existing [structures] structure, is  prior  to  February  first,  two
    4  thousand three, the cost allowances shall be based upon the rated capac-
    5  ity of the building or addition and a basic per pupil allowance of up to
    6  six  thousand  three  hundred seventy-five dollars adjusted monthly by a
    7  statewide index reflecting changes in the cost of  labor  and  materials
    8  since  July  first,  nineteen  hundred  ninety-two,  established  by the
    9  commissioner of labor, modified by  an  annual  county  or  multi-county
   10  labor  market  composite  wage  rate, established by the commissioner of
   11  labor in consultation with the commissioner, for July first of the  base
   12  year,  commencing  July first, nineteen hundred ninety-seven for general
   13  construction contracts awarded on or after July first, nineteen  hundred
   14  ninety-eight,  indexed  to  the  median  of  such county or multi-county
   15  rates, but not less than one.   Such base allowance  shall  apply  to  a
   16  building  or  an addition housing grades prekindergarten through six and
   17  shall be adjusted for a building or an  addition  housing  grades  seven
   18  through  nine  by  a factor of one and four-tenths, for a building or an
   19  addition housing grades seven through twelve by  a  factor  of  one  and
   20  five-tenths,  for  a  building  or  addition  housing  special education
   21  programs by a factor of two, except that where such building or addition
   22  is connected to, or such space is located within, a public school facil-
   23  ity housing programs for nondisabled pupils, as approved by the  commis-
   24  sioner, a factor of three shall be used. Rated capacity of a building or
   25  an addition shall be determined by the commissioner based on space stan-
   26  dards  and other requirements for building construction specified by the
   27  commissioner.  Such assigned capacity ratings shall include, in addition
   28  to those spaces used for the instruction of pupils, those  spaces  which
   29  are  used  for  elementary  and  secondary school libraries, cafeterias,
   30  prekindergarten instructional rooms, teachers' conference rooms,  gymna-
   31  siums  and  auditoriums.  For  new  construction projects approved on or
   32  after July first, two thousand, by the voters of the school district  or
   33  by  the board of education of a city school district in a city with more
   34  than one hundred twenty-five thousand inhabitants, and/or the chancellor
   35  in a city school district in a city having a population of  one  million
   36  or more, such rated capacity for new buildings and additions constructed
   37  to replace existing buildings that, in the judgment of the commissioner,
   38  have not been adequately maintained and have not reached their projected
   39  useful  life  shall  be reduced by the commissioner by an amount propor-
   40  tional to the remaining unused portion of the useful life of the  exist-
   41  ing  buildings,  provided  however  that the commissioner may waive such
   42  requirement upon a finding that replacement of the existing building  is
   43  necessary  to  protect  the health and safety of students or staff, that
   44  reconstruction and modernization of  the  existing  building  would  not
   45  adequately address such health and safety problems, and that the need to
   46  replace  the  building  was not caused by failure to adequately maintain
   47  the building. If the commissioner of labor resets  the  statewide  index
   48  reflecting changes in the costs of labor and materials since July first,
   49  nineteen hundred ninety-two, the commissioner shall adopt regulations to
   50  supersede  the  basic  per  pupil  allowance of up to six thousand three
   51  hundred seventy-five dollars to the imputed allowance in effect at  that
   52  time.
   53    (b)  If  (i)  the date upon which the project has been approved by the
   54  commissioner, or (ii) for a city school district  in  a  city  having  a
   55  population of one million inhabitants or more, the first date upon which
   56  a general construction contract has been awarded or a purchase agreement
       S. 1407                            66                            A. 2107
 
    1  has been executed, relating to construction of a new structure, an addi-
    2  tion  to an existing structure or the purchase of an existing structure,
    3  is on or after February first, two thousand three, the  cost  allowances
    4  shall be based upon the product of: (A) the building project enrollment,
    5  (B) a basic per pupil space allotment as established by the commissioner
    6  and (C) a basic per pupil allowance for such construction or purchase as
    7  established  by  the  commissioner  and  approved by the director of the
    8  budget. Such basic per pupil allowance shall be adjusted monthly  there-
    9  after  by  a statewide index reflecting changes in the cost of labor and
   10  materials, as derived from the statewide index and as  modified  by  the
   11  annual  county or multi-county labor market composite wage rate for July
   12  first of the base year, both as established by the commissioner of labor
   13  pursuant to clause (a) of this subparagraph.
   14    (c) If (i) the date upon which the project has been  approved  by  the
   15  commissioner,  or  (ii)  for  a  city school district in a city having a
   16  population of one million inhabitants or more, the first date upon which
   17  a general construction contract has been awarded and purchases executed,
   18  relating to the reconstruction,  rehabilitation  or  improvement  of  an
   19  existing  structure,  is on or after February first, two thousand three,
   20  the cost allowances shall be the lesser of: (A) one hundred  per  centum
   21  of  the  cost  allowances  for  the equivalent new construction over the
   22  projected useful life of the building, to be  determined  in  accordance
   23  with the regulations of the commissioner, or (B) the product of: (I) the
   24  building  project  enrollment,  (II)  the quotient of the square feet of
   25  space being reconstructed, rehabilitated or improved within  the  school
   26  building  divided  by  the total square feet of space within such school
   27  building, and (III) a basic per pupil allowance for such reconstruction,
   28  rehabilitation or improvement as established  by  the  commissioner  and
   29  approved  by  the director of the budget. Such basic per pupil allowance
   30  shall be adjusted monthly thereafter by  a  statewide  index  reflecting
   31  changes  in  the cost of labor and materials, as derived from the state-
   32  wide index and as modified by the annual county  or  multi-county  labor
   33  market  composite  wage  rate  for  July first of the base year, both as
   34  established by the commissioner of labor pursuant to clause (a) of  this
   35  subparagraph.   Reconstruction projects shall reasonably meet the crite-
   36  ria established for new construction, including but not limited to ener-
   37  gy, fire, personal safety and space per pupil standards.
   38    (2) (a) Where a school district has expenditures  for  site  purchase,
   39  grading  or  improvement  of  the site, original furnishings, equipment,
   40  machinery or apparatus, or professional fees, or other incidental  costs
   41  relating  to construction of a new structure, an addition to an existing
   42  structure or the purchase of an existing structure, for  which  (i)  the
   43  date  upon  which  the project has been approved by the commissioner, or
   44  (ii) for a city school district in a city having  a  population  of  one
   45  million  inhabitants  or  more,  the  first  date  upon  which a general
   46  construction  contract  has  been  awarded  or  purchase  agreement  was
   47  executed,  is  prior  to  February  first,  two thousand three, the cost
   48  allowances [for new construction and the  purchase  of  existing  struc-
   49  tures] may be increased by the actual expenditures for such purposes but
   50  by  not  more  than  the product of the applicable cost allowance estab-
   51  lished pursuant to subparagraph one of this  paragraph  and  twenty  per
   52  centum  for school buildings or additions housing grades prekindergarten
   53  through six and by not more than the product of such cost allowance  and
   54  twenty-five  per centum for school buildings or additions housing grades
   55  seven through twelve and by not more  than  the  product  of  such  cost
       S. 1407                            67                            A. 2107
 
    1  allowance  and  twenty-five per centum for school buildings or additions
    2  housing special education programs as approved by the commissioner.
    3    (b)  Where a school district has expenditures for site purchase, grad-
    4  ing or improvement of the site, original furnishings, equipment, machin-
    5  ery or apparatus, or professional fees, or other incidental costs relat-
    6  ing to an approved building project for which (i) the  date  upon  which
    7  the  project  has  been approved by the commissioner, or (ii) for a city
    8  school district in a city having a population of one million inhabitants
    9  or more, the first date upon which a general construction  contract  has
   10  been awarded or purchase agreement was executed, is on or after February
   11  first,  two  thousand three, the cost allowances may be increased by the
   12  actual expenditures for such purposes but by not more than  the  product
   13  of  the  approved cost of construction or purchase and twenty per centum
   14  for school buildings or additions housing grades prekindergarten through
   15  six and by not more than the product of such approved cost  and  twenty-
   16  five  per  centum for school buildings or additions housing grades seven
   17  through twelve and by not more than the product of  such  approved  cost
   18  and  twenty-five per centum for that portion of such school buildings or
   19  additions housing special education programs conducted  by  a  board  of
   20  cooperative  educational  services, where such board has entered into an
   21  agreement to lease such facility or facilities for a period of ten years
   22  or more, and where such program has been approved by the commissioner on
   23  or after February first, two thousand three,  provided,  however,  that,
   24  the  commissioner  may  increase  the  cost  allowance  up to the actual
   25  expenditures for such purposes upon demonstration by the  district  that
   26  such additional expenditures are necessary for cost-effective completion
   27  of  the project and that the project is essential to enable the district
   28  to ensure that all pupils meet applicable learning standards.
   29    (3) Cost allowances for  [reconstructing  or  modernizing  structures]
   30  reconstruction,  rehabilitation  or improvement of an existing structure
   31  for which (i) the date upon which the project has been approved  by  the
   32  commissioner,  or  (ii)  for  a  city school district in a city having a
   33  population of one million inhabitants or more, the first date upon which
   34  a general construction contract has been awarded or  purchase  agreement
   35  was  executed,  is prior to February first, two thousand three shall not
   36  exceed one hundred per centum of the cost allowances for the  equivalent
   37  new  construction  over the projected useful life of the building, to be
   38  determined in accordance  with  the  regulations  of  the  commissioner.
   39  Reconstruction  projects  shall reasonably meet the criteria established
   40  for new  construction,  including  but  not  limited  to  energy,  fire,
   41  personal safety and space per pupil standards.
   42    (4)  The  commissioner  shall  promulgate  regulations prescribing the
   43  methodology for establishing a multi-year cost allowance for the purpose
   44  of computation of building aid to school districts and a  procedure  for
   45  school  districts  to  appeal  the determination that a building has not
   46  been adequately maintained, as required by subparagraphs one  and  three
   47  of  this  paragraph. Such methodology shall include the development of a
   48  building replacement cost allowance  schedule  for  the  replacement  of
   49  major  building systems of a building over its projected useful life and
   50  the construction of new buildings and additions for projects  that  have
   51  been  approved on or after July first, two thousand by the voters of the
   52  school district or by the board of education of a city  school  district
   53  in  a  city with more than one hundred twenty-five thousand inhabitants,
   54  and/or the chancellor in a city school district in a city having a popu-
   55  lation of one million or more. For purposes of this subdivision,  "major
   56  building  systems"  shall mean the electrical, plumbing, heating, venti-
       S. 1407                            68                            A. 2107
 
    1  lation and air conditioning systems, and the roof and other major struc-
    2  tural elements of a school building.
    3    (5)  For  new  construction projects for which (i) the date upon which
    4  the project has been approved by the commissioner, or (ii)  for  a  city
    5  school district in a city having a population of one million inhabitants
    6  or  more,  the first date upon which a general construction contract has
    7  been awarded or purchase agreement was executed, is  prior  to  February
    8  first,  two  thousand  three,  such rated capacity for new buildings and
    9  additions constructed to replace existing buildings that, in  the  judg-
   10  ment  of  the commissioner, have not been adequately maintained and have
   11  not reached their projected useful life shall be reduced by the  commis-
   12  sioner  by an amount proportional to the remaining unused portion of the
   13  useful life of the existing buildings, provided however that the commis-
   14  sioner may waive such requirement upon a finding that replacement of the
   15  existing building is necessary to  protect  the  health  and  safety  of
   16  students or staff, that reconstruction and modernization of the existing
   17  building  would  not adequately address such health and safety problems,
   18  and that the need to replace the building was not caused by  failure  to
   19  adequately maintain the building.
   20    §  19. Clause (i) of subparagraph 2 of paragraph b of subdivision 6 of
   21  section 3602 of the education law, as amended by section 6 of part A  of
   22  chapter 60 of the laws of 2000, is amended to read as follows:
   23    (i)  Eligibility.  All  school  building  projects (a) approved by the
   24  voters of the school district or (b) approved by the board of  education
   25  of  a  city school district in a city with more than one hundred twenty-
   26  five thousand inhabitants,  and/or  the  chancellor  in  a  city  school
   27  district  in a city having a population of one million or more or (c) in
   28  the case of a construction emergency project, approved by the  board  of
   29  education  of  any school district or by the chancellor in a city school
   30  district in a city having a population  of  one  million  or  more,  for
   31  projects approved on or after July first, nineteen hundred ninety-eight,
   32  shall  be  eligible  for  an  additional  apportionment pursuant to this
   33  subparagraph to the extent  that  expenditures  for  such  projects  are
   34  otherwise  aidable  pursuant  to this subdivision, provided that for all
   35  such projects so approved on or after July first, two thousand, expendi-
   36  tures directly related to swimming pools shall not be eligible for  such
   37  additional  apportionment,  and  further  provided  that  for  all  such
   38  projects so approved on or after July first, two thousand three, expend-
   39  itures directly related to noninstructional space shall not be  eligible
   40  for  such  additional  apportionment,  and further provided that for the
   41  purposes of this subdivision a construction emergency project shall mean
   42  a school construction project approved on or after July first, two thou-
   43  sand, to remediate emergency situations which  arise  in  public  school
   44  buildings  and  threaten the health and/or safety of building occupants,
   45  as a result of the unanticipated discovery of asbestos or other  hazard-
   46  ous  substances  during  construction  work  on  a school or significant
   47  damage caused by a fire, snow storm, ice  storm,  excessive  rain,  high
   48  wind, flood or similar catastrophic event which results in the necessity
   49  for immediate repair.
   50    §  20.  Subparagraph 2 of paragraph c of subdivision 6 of section 3602
   51  of the education law is amended by adding a new clause (c)  to  read  as
   52  follows:
   53    (c)  For aid payable in the school years two thousand three--two thou-
   54  sand four and thereafter for all school building  projects  approved  by
   55  the voters of the school district or by the board of education of a city
   56  school  district  in a city with more than one hundred twenty-five thou-
       S. 1407                            69                            A. 2107
 
    1  sand inhabitants, and/or the chancellor in a city school district  in  a
    2  city having a population of one million or more, on or after July first,
    3  two  thousand  three,  any  school  district shall compute aid under the
    4  provisions of this subdivision using the building aid ratio computed for
    5  use  in  the  current  year;  or,  for school building projects approved
    6  before July first, two thousand four, for any school district for  which
    7  the pupil wealth ratio is greater than two and five-tenths and for which
    8  the  alternate  pupil  wealth ratio is less than eighty-five hundredths,
    9  the additional building aid ratio; provided that, school  districts  who
   10  are  eligible  for aid under paragraph f of subdivision fourteen of this
   11  section may compute aid under the provisions of this  subdivision  using
   12  the  highest  of the aid ratios so computed for the reorganized district
   13  or the highest of the aid ratios so computed for any of  the  individual
   14  school  districts  which  existed  prior  to the date of the reorganized
   15  school district.
   16    § 21. Clause (a) of subparagraph 5 of paragraph e of subdivision 6  of
   17  section  3602 of the education law, as amended by section 1 of part F of
   18  chapter 383 of the laws of 2001, is amended to read as follows:
   19    (a) Calculation of interest rates for the city school districts of the
   20  cities of Buffalo, Rochester, Syracuse and Yonkers. By the first day  of
   21  September  of the current year, or by the date prescribed by the commis-
   22  sioner for the two thousand one--two thousand two school year, the chief
   23  fiscal officer of each of the cities of Buffalo, Rochester, Syracuse and
   24  Yonkers shall provide to the commissioner an analysis, as prescribed  by
   25  the  commissioner,  of  the  actual average interest rate applied to all
   26  capital debt incurred  by  such  city  related  to  school  construction
   27  purposes during the base year not including debt issued by the dormitory
   28  authority  for  the  benefit of any school district and of the estimated
   29  average interest rate applied to all capital debt to be incurred by such
   30  city related to school construction purposes during the current year not
   31  including debt issued by the dormitory authority for the benefit of  any
   32  school  district. Such interest rates shall be expressed as a decimal to
   33  five places rounded to the nearest  eighth  of  one-one  hundredth.  The
   34  interest  rate of such city applicable to the base year for the purposes
   35  of this subparagraph shall be the actual average interest rate  of  such
   36  city  in the base year, and the estimated average interest rate shall be
   37  tentatively established as the interest rate of such city applicable  to
   38  the  current  year, except that all apportionments of aid payable during
   39  the current year based on such estimated average interest rate shall  be
   40  recalculated  in the following year and adjusted as appropriate based on
   41  the appropriate actual average interest rate then  established  pursuant
   42  to  this  clause  provided, however, that in any year in which such city
   43  has not incurred debt  related  to  school  construction  purposes,  the
   44  assumed interest rate calculated pursuant to clause (b) of this subpara-
   45  graph shall be the interest rate established for such city, and provided
   46  further  that  where  such  city  has entered into an agreement with the
   47  dormitory authority of the state of New York to finance debt related  to
   48  school  construction  that is subject to subparagraph four of this para-
   49  graph or has entered into an agreement with the dormitory  authority  of
   50  the state of New York for the purpose of financing a school construction
   51  project  that  is  subject  to subparagraph three of this paragraph, the
   52  interest rate applicable to the  obligations  issued  by  the  dormitory
   53  authority  of the state of New York for such purpose shall be the inter-
   54  est rate established for such city applicable to such debt.
   55    § 22. Paragraph f of subdivision 6 of section 3602  of  the  education
   56  law is amended by adding a new subparagraph 2-a to read as follows:
       S. 1407                            70                            A. 2107
 
    1    (2-a) Notwithstanding any inconsistent provisions of this subdivision,
    2  if  the earlier of (i) the date upon which the project has been approved
    3  by the commissioner, or  (ii)  the  first  date  upon  which  a  general
    4  construction  contract has been awarded or a purchase agreement has been
    5  executed, relating to construction of a new structure, an addition to an
    6  existing  structure  or  the purchase of an existing structure, is on or
    7  after February first, two thousand three, the amount of fully annualized
    8  aid apportioned pursuant to paragraph b of this subdivision for approved
    9  expenditure for debt service for bond anticipation notes and  for  bonds
   10  and  capital  notes  issued  during the current year for school building
   11  purposes and for lease-purchase or other annual payments under a  lease-
   12  purchase  agreement  or  an equivalent agreement entered into during the
   13  current year and for approved expenditures for capital  outlays  or  for
   14  leases other than lease-purchase agreements or the equivalent, shall not
   15  be greater than the sum of:
   16    (a) the funds made available for the priority project ceiling. For the
   17  two  thousand  three--two  thousand four school year and thereafter, the
   18  priority  project  ceiling  shall  be  one   hundred   million   dollars
   19  ($100,000,000).  For  the  two  thousand  two--two thousand three school
   20  year, the priority project ceiling shall be the product, rounded to  the
   21  nearest  million  dollars,  of the two thousand three--two thousand four
   22  priority project ceiling and the  quotient  of  the  number  of  months,
   23  rounded  to  the  nearest half month, in which projects are eligible for
   24  funding pursuant to this clause in the two  thousand  two--two  thousand
   25  three  school  year  divided  by twelve. Project eligibility for funding
   26  pursuant to this clause will be prioritized on the basis of the building
   27  condition surveys  submitted  pursuant  to  subdivision  six-e  of  this
   28  section. Priority projects shall have been approved by the voters of the
   29  school  district  or  approved by the trustees or board of education for
   30  school districts where voter approval is  not  required,  and  shall  be
   31  categorized by the following classifications:
   32    (i)  First  priority  projects shall be necessary to insure the health
   33  and safety of the  building's  occupants  or  of  neighboring  residents
   34  through  remediation of specific hazards identified by the department of
   35  health and  deficiencies  identified  by  fire  safety  inspections,  or
   36  through  correction  of  code  deficiencies  that  are  determined to be
   37  hazardous to health or safety and are identified through  such  building
   38  condition survey;
   39    (ii) Second priority projects shall be necessary to ameliorate immedi-
   40  ate  overcrowding,  as  defined  by  the  commissioner,  in  the  school
   41  district;
   42    (iii) Third priority projects shall be necessary to replace  or  reno-
   43  vate  school  buildings that have been in use for more than forty years,
   44  where such projects do not include a capacity increase greater than  ten
   45  percent  of  the  gross  floor area and where such school district has a
   46  needs-resource index in excess of the statewide median,  as  established
   47  by the commissioner;
   48    (iv)  Fourth priority projects shall be projects to modernize or reno-
   49  vate school buildings that have been in use for at least  twenty  years,
   50  where  such projects do not include a capacity increase greater than ten
   51  percent of the gross floor area and where such  school  district  has  a
   52  needs-resource  index  in excess of the statewide median, as established
   53  by the commissioner;
   54    (v) Fifth priority projects  shall  be  projects  to  add  significant
   55  capacity  where  the  majority of such added capacity is used to augment
   56  basic educational space such as classrooms and laboratories, or building
       S. 1407                            71                            A. 2107
 
    1  system renovations which are designed to extend the useful life  of  the
    2  building  by at least fifteen years and where such school district has a
    3  needs-resource index in excess of the statewide median,  as  established
    4  by the commissioner.
    5    (vi) Sixth priority projects shall be projects that have not been made
    6  eligible  pursuant  to  subclauses (i), (ii), (iii), (iv) or (v) of this
    7  clause and are not ineligible for building  aid  pursuant  to  subclause
    8  (vii) of this clause.
    9    (vii)  Notwithstanding any other provision of this clause, projects to
   10  modernize or renovate school buildings that have been in  use  for  less
   11  than  twenty years; projects to renovate or reconstruct space leased for
   12  non-school district purposes, excluding space leased to boards of  coop-
   13  erative  educational  services;  and  projects  to correct design flaws,
   14  errors or omissions and improper construction shall not be eligible  for
   15  an apportionment of building aid pursuant to this clause.
   16    Within  each  priority category, projects shall be ranked first by the
   17  district's needs-resource index, then by the adjusted age of the  build-
   18  ing.  Projects  shall  be selected for funding in rank order, first from
   19  first priority projects, then from second priority projects,  then  from
   20  third  priority  projects, then from fourth priority projects, then from
   21  fifth priority projects, then from sixth priority projects.  Such deter-
   22  mination shall be made pursuant to regulations of the commissioner on  a
   23  quarterly basis, on the first business day following February fifteenth,
   24  the  first  business day following May fifteenth, the first business day
   25  following August fifteenth and the first business day following November
   26  fifteenth. Any school district not in a city having a population of  one
   27  million or more shall be eligible to receive a maximum of twenty percent
   28  of  the  funds  available  pursuant  to  this paragraph. Any city school
   29  district in a city having a population of one million or more  shall  be
   30  eligible  to  receive  a minimum of forty percent of the funds available
   31  pursuant to this paragraph, but not more  than  sixty  percent  of  such
   32  funds,  provided,  however, that in the event that any such city has not
   33  made application for and been awarded such funds as of April first, they
   34  shall be made available for other projects eligible for funding pursuant
   35  to this clause. No application shall be set aside for  insufficiency  of
   36  funds  to  make  a  complete  award, but shall be eligible for a partial
   37  award in one quarter and shall  retain  its  priority  date  status  for
   38  awards designated for such purposes in a future quarter, and
   39    (b)  the  funds  made available for the emergency project ceiling. For
   40  the two thousand three--two thousand four school  year  and  thereafter,
   41  the   emergency   project   ceiling  shall  be  thirty  million  dollars
   42  ($30,000,000). For the two thousand two--two thousand three school year,
   43  the emergency project ceiling shall be the product, rounded to the near-
   44  est million dollars, of the two thousand three--two thousand four  emer-
   45  gency  project ceiling and the quotient of the number of months, rounded
   46  to the nearest half month, in which projects are  eligible  for  funding
   47  pursuant  to  this  clause  in  the two thousand two--two thousand three
   48  school year divided by twelve. Projects eligible for funding pursuant to
   49  this clause shall be construction emergency projects that  are  reviewed
   50  by  the  department at the request of the school district and are deter-
   51  mined to be necessary to remediate emergency situations which  arise  in
   52  public  school buildings and threaten the health and/or safety of build-
   53  ing occupants, as a result of the unanticipated discovery of asbestos or
   54  other hazardous substances during  construction  work  on  a  school  or
   55  significant  damage  caused  by a fire, snow storm, ice storm, excessive
   56  rain, high wind, flood or similar catastrophic event  which  results  in
       S. 1407                            72                            A. 2107
 
    1  the necessity for immediate repair.  If funds made available pursuant to
    2  this  subparagraph  remain  unallocated as of April first, they shall be
    3  made available for priority projects eligible for  funding  pursuant  to
    4  clause  (a)  of  this  subparagraph.  If,  upon subsequent review of the
    5  project, it is deemed  not  to  have  been  an  emergency  project,  the
    6  district  shall have its apportionments payable pursuant to this section
    7  reduced by the amount of any apportionments previously paid pursuant  to
    8  this  clause  for  such  project, and such project shall be eligible for
    9  funding pursuant to clause (a) of this subparagraph.
   10    § 23. Subdivision 6-c of section 3602 of the education law, as amended
   11  by chapter 217 of the laws of 2001, is amended to read as follows:
   12    6-c. Building aid for metal detectors, and safety  devices  for  elec-
   13  trically  operated  partitions,  room dividers and doors. In addition to
   14  the apportionments payable to a school district pursuant to  subdivision
   15  six  of this section, the commissioner is hereby authorized to apportion
   16  to any school district additional building aid pursuant to this subdivi-
   17  sion for its approved expenditures in the base year for the purchase  of
   18  stationary  metal  detectors, security cameras, safety devices for elec-
   19  trically operated partitions and  room  dividers  required  pursuant  to
   20  section  four  hundred nine-f of this chapter, or other security devices
   21  approved by the commissioner that increase the safety  of  students  and
   22  school  personnel,  provided,  however, that funds apportioned to school
   23  districts pursuant to this section shall not supplant funds for existing
   24  district expenditures or for existing  contractual  obligations  of  the
   25  district for stationary metal detectors, security cameras, partition and
   26  room divider safety devices, or security devices.  Portable or hand held
   27  metal  detectors shall not be eligible for aid pursuant to this subdivi-
   28  sion. Such additional aid shall [be computed in the manner prescribed in
   29  subdivision six of this section using the district's current year build-
   30  ing aid ratio] equal the product of the building aid ratio computed  for
   31  use  in  the  current year pursuant to paragraph c of subdivision six of
   32  this section and the actual approved expenditures incurred in  the  base
   33  year pursuant to this subdivision, provided that the limitations on cost
   34  allowances  prescribed by paragraph a of subdivision six of this section
   35  shall not apply. The commissioner shall  annually  prescribe  a  special
   36  cost  allowance  for  metal  detectors,  and  security  cameras, and the
   37  approved expenditures shall not exceed such cost allowance. The  commis-
   38  sioner  shall  annually prescribe a special cost allowance for partition
   39  and room divider safety devices, and the approved expenditures shall not
   40  exceed such cost allowance.
   41    § 24. Subdivision 11 of section 3602 of the education law, as  amended
   42  by section 23 of part H of chapter 83 of the laws of 2002, is amended to
   43  read as follows:
   44    11.  Approved  operating  expense.  The approved operating expense for
   45  apportionments to any school district hereunder  shall  be  computed  as
   46  follows:  The apportionment to any school district for operating expense
   47  shall be based upon the total expenditures from  its  general  fund  and
   48  from  its  capital fund and from its risk retention fund for purposes of
   49  employee benefit claims related to salaries paid from the general  fund,
   50  and  for  any  city  school districts with a population of more than one
   51  hundred twenty-five  thousand  inhabitants  its  expenditures  from  the
   52  special  aid  fund  of  grant moneys for improving pupil performance and
   53  categorical aid for special reading programs as provided in the  aid  to
   54  localities  budget during the applicable year as approved by the commis-
   55  sioner, and in accordance with the classification of expenditures in use
   56  by the commissioner for the reporting by school districts  of  receipts,
       S. 1407                            73                            A. 2107
 
    1  expenditures  and other financial data. For the purpose of this subdivi-
    2  sion operating expense shall  be  defined  as  total  cash  expenditures
    3  during  the  applicable  year,  but  shall exclude: (1) any balances and
    4  transfers;  (2)  any  payments  for transportation of pupils to and from
    5  school during the regular school year inclusive of capital  outlays  and
    6  debt  service  therefor; (2-a) a portion of any payments for transporta-
    7  tion of pupils to and from  district  operated  summer  school  programs
    8  pursuant  to  subdivision six of section thirty-six hundred twenty-two-a
    9  of this article, inclusive of capital outlays and debt service therefor,
   10  equal to the product of such expenditures multiplied by the quotient  of
   11  the  total  apportionment  after the proration, if any, required by such
   12  subdivision six  divided  by  the  total  apportionment  prior  to  such
   13  proration;  (3)  any  payments  for  capital outlay and debt service for
   14  school building purposes, provided, however,  that  in  the  case  of  a
   15  school  district which has entered into a contract with state university
   16  pursuant to paragraph o of subdivision  two  of  section  three  hundred
   17  fifty-five  of  this  chapter,  under  which  the  school district makes
   18  payments to state university on account of capital  outlay  relating  to
   19  certain  children  residing in such school district, such payments shall
   20  not be so excluded; (4) any  payments  for  cafeteria  or  school  lunch
   21  programs;  (5) any proceeds of short term borrowings in the general fund
   22  and any payments from the proceeds of the sale  of  obligations  in  the
   23  capital  fund;  (6)  any  cash receipts which reduce the cost of an item
   24  when applied against the expenditure therefor, except  gifts,  donations
   25  and  earned  interest  and  any  refunds  made; (7) any payments made to
   26  boards of cooperative educational  services  and  to  county  vocational
   27  education  and  extension  boards  for purposes or programs for which an
   28  apportionment is paid pursuant to other sections of this chapter, except
   29  that payments attributable to  eligible  pupils  with  disabilities  and
   30  ineligible  pupils  residing in noncomponent districts shall be included
   31  in operating expense; (8) any tuition  payments  made  to  other  school
   32  districts  inclusive  of payments made to a central high school district
   33  by one of its component  school  districts;  (9)  any  apportionment  or
   34  payment  received  from  the  state for experimental or special programs
   35  paid under provisions other than those found in this section  and  other
   36  than  any apportionments or payments received from the state by the city
   37  school district of the city of Yonkers for the  purpose  of  funding  an
   38  educational  improvement  program  pursuant  to  a court order; (10) any
   39  funds received from the federal government except the federal  share  of
   40  medicaid subject to the provisions of section thirty-six hundred nine or
   41  thirty-six  hundred  nine-a,  as  the  case  may be, of this chapter and
   42  except Impact Aid funds received pursuant to sections  two  and  six  of
   43  Public  Law eighty-one-eight hundred seventy-four (PL 81-874) or any law
   44  superseding such law in any such district which received aid pursuant to
   45  both such sections; provided  further,  however,  that  there  shall  be
   46  excluded  from  such  federal funds or other apportionments any payments
   47  from such funds already deducted pursuant to this  paragraph;  (11)  any
   48  payments made for which an apportionment is disallowed pursuant to regu-
   49  lations  of the commissioner; (12) any expenditures made for accounting,
   50  tabulation, or computer equipment, in excess  of  ten  thousand  dollars
   51  unless  such  expenditures  shall have been specifically approved by the
   52  commissioner; (13) any rentals received pursuant to  the  provisions  of
   53  section  four hundred three-a of this chapter; (14) any rentals or other
   54  annual payments received pursuant to  the  provisions  of  section  four
   55  hundred  three-b of this chapter; (15) any expenditures made for persons
   56  twenty-one years of age or over attending employment preparation  educa-
       S. 1407                            74                            A. 2107
 
    1  tion  programs  pursuant to subdivision twenty-four of this section; and
    2  (16) and any tuition payments made pursuant  to  a  contract  under  the
    3  provisions  of  paragraphs  e,  f,  g,  h, i and l of subdivision two of
    4  section  forty-four  hundred one of this chapter or any tuition payments
    5  on behalf of pupils attending a state school under paragraph d  of  such
    6  subdivision.
    7    §  25. Subdivision 12-b of section 3602 of the education law, as added
    8  by section 28 of part H of chapter 83 of the laws of 2002, is amended to
    9  read as follows:
   10    12-b. Notwithstanding any other section of law  to  the  contrary,  in
   11  lieu  of  aids payable pursuant to paragraph a of subdivision twelve and
   12  subdivision sixteen of this section, in the two thousand two--two  thou-
   13  sand  three  school  year,  each  school  district  shall be entitled to
   14  receive comprehensive operating aid equal to the sum of the amounts  set
   15  forth  for  such  school district for the two thousand one--two thousand
   16  two school year on the computer listing produced by the commissioner  in
   17  support  of  the  executive  budget  request  for such year and entitled
   18  "BT032-1" under the heading "FLEX AID" less the amounts  set  forth  for
   19  such  school  district  as  "Excess  Cost  -  Public" and "Excess Cost -
   20  Private" under the heading "2000-01 Base Year Aids" in  the  school  aid
   21  computer  listing  produced by the commissioner in support of the execu-
   22  tive budget request for the two thousand one--two  thousand  two  school
   23  year  and  entitled  "BT032-1"  and the amounts payable in the two thou-
   24  sand--two thousand one school year pursuant to paragraph e  of  subdivi-
   25  sion  twelve,  subdivisions six-d, [nineteen,] twenty-two, twenty-three,
   26  thirty-two and thirty-eight of this  section,  [and  section  forty-four
   27  hundred five of this article,] provided that for districts for which the
   28  combined  wealth ratio as calculated pursuant to paragraph 1 of subdivi-
   29  sion one of this section is less than one, may receive the amount calcu-
   30  lated herein multiplied by one hundred and one percent. Nothing in  this
   31  section would preclude a district from receiving extraordinary needs aid
   32  calculated pursuant to paragraph e of subdivision twelve of this section
   33  in the two thousand two--two thousand three school year.
   34    §  26.  Paragraph f of subdivision 24 of section 3602 of the education
   35  law, as added by chapter 82 of the laws of 1995, is amended to  read  as
   36  follows:
   37    f.  Approved  plan  of  service  and  program  evaluation.  All school
   38  districts and BOCES desiring to operate an aidable program  pursuant  to
   39  this subdivision shall complete a comprehensive plan of service applica-
   40  tion,  including  a budget by program component, together with an evalu-
   41  ation of the effectiveness of program components offered during the most
   42  recent July first through March thirtieth, if any. Such  evaluation  and
   43  plan  shall  be  in  a  form prescribed by the commissioner and shall be
   44  submitted not later than forty-five days after the  provisions  of  this
   45  paragraph  shall  have  become  law, and not later than May fifteenth in
   46  subsequent school years. Within forty-five days of  such  deadline,  and
   47  upon  evaluation  of such applications, the commissioner shall, evaluate
   48  such applications  based  on  (1)  demonstrated  effectiveness  of  such
   49  programs  as defined by the commissioner and approved by the director of
   50  the budget, (2) geographic availability, (3) lack of duplication of such
   51  programs, (4) support for educational initiatives,  and  (5)  compliance
   52  with required program and fiscal reporting requirements. Upon completion
   53  of  such  evaluation  the commissioner shall submit a plan for the allo-
   54  cation of funds appropriated for such purpose to  the  director  of  the
   55  budget  for approval.  Upon approval of such plan by the director of the
   56  budget, the commissioner shall notify  school  districts  and  BOCES  of
       S. 1407                            75                            A. 2107
 
    1  those  portions  of  such  plan  of  service that will be aidable in the
    2  school year ahead [after making a determination that  approval  of  such
    3  programs  will assure maximum effectiveness, geographic availability and
    4  lack  of  duplication  of  such programs, support for educational initi-
    5  atives, and  compliance  with  required  program  and  fiscal  reporting
    6  requirements].  No  aid  shall  be  payable pursuant to this subdivision
    7  unless the program is approved by the commissioner.
    8    § 27. Subdivision 6 of section 3622-a of the education law,  as  added
    9  by section 47 of part A of chapter 60 of the laws of 2000, is amended to
   10  read as follows:
   11    6.  Transportation  of  pupils  to  and  from  approved  summer school
   12  programs operated by a school district in the two thousand--two thousand
   13  one school year and thereafter, provided, however, that any expenses for
   14  which aid is received pursuant to  subdivision  thirty-nine  of  section
   15  thirty-six hundred two of this article shall be excluded from the compu-
   16  tation of allowable transportation expense, and provided further that if
   17  the  total statewide apportionment attributable to allowable transporta-
   18  tion expenses incurred pursuant to this subdivision exceeds five million
   19  dollars ($5,000,000), individual school district  allocations  shall  be
   20  prorated to ensure that the apportionment for such summer transportation
   21  does  not  exceed  five million dollars ($5,000,000), provided that such
   22  prorated apportionment computed and payable as of September one  of  the
   23  school  year immediately following the school year for which such aid is
   24  claimed shall be deemed final and not subject to change.
   25    § 28. Subparagraph 1 of paragraph b of subdivision 12 of section  3641
   26  of  the education law, as added by section 55 of part H of chapter 83 of
   27  the laws of 2002, is amended to read as follows:
   28    (1) For aid payable in  the  two  thousand  three--two  thousand  four
   29  school year, the commissioner shall, within the amounts appropriated for
   30  such  purpose,  provide  grants to school districts in the amount of any
   31  excess of [such school  district's  approved  expenditures  for  capital
   32  outlays  incurred in the two thousand one--two thousand two school year,
   33  as computed pursuant to subdivision six of  section  thirty-six  hundred
   34  two  of this article and paragraph a of this subdivision] the product of
   35  the amount of such school district's approved expenditures  incurred  in
   36  the  two  thousand one--two thousand two school year for capital outlays
   37  for school building purposes determined pursuant to subdivision  six  of
   38  section  thirty-six  hundred  two of this article from its general fund,
   39  capital fund or from a reserve fund, multiplied by the sum  of  the  aid
   40  ratio  selected  for  use  in  the  two thousand two--two thousand three
   41  school year for such expenditures pursuant to the  provisions  of  para-
   42  graph  c  of  subdivision  six of section thirty-six hundred two of this
   43  article, plus the incentive decimal, if  any,  calculated  for  the  two
   44  thousand  two--two  thousand  three school year pursuant to subparagraph
   45  two of paragraph b of such subdivision six, provided that the amount  of
   46  reimbursement  attributable to approved expenditures for capital outlays
   47  for joint facilities shall be determined pursuant to  subparagraph  four
   48  of  paragraph  a of this subdivision, based on data on file on the first
   49  business day of September, two thousand three,  over  the  amount  reim-
   50  bursed as capital outlay transition grants pursuant to the provisions of
   51  paragraph a of this subdivision.
   52    §  29. Subparagraph 2 of paragraph b of subdivision 12 of section 3641
   53  of the education law, as added by section 55 of part H of chapter 83  of
   54  the laws of 2002, is amended to read as follows:
   55    (2) A school district which was eligible for a grant pursuant to para-
   56  graph  a  of  this  subdivision  and [incurred approved expenditures for
       S. 1407                            76                            A. 2107
 
    1  capital outlays in the two thousand one--two thousand two  school  year]
    2  where  the  product  of  the  amount  of such school district's approved
    3  expenditures incurred in the two thousand one--two thousand  two  school
    4  year  for capital outlays for school building purposes determined pursu-
    5  ant to subdivision six of section thirty-six hundred two of this article
    6  from its general fund, capital fund or from a reserve  fund,  multiplied
    7  by  the  sum of the aid ratio selected for use in the two thousand two--
    8  two thousand three school year for such  expenditures  pursuant  to  the
    9  provisions  of  paragraph  c  of  subdivision  six of section thirty-six
   10  hundred two of this article, plus the incentive decimal, if any,  calcu-
   11  lated  for the two thousand two--two thousand three school year pursuant
   12  to subparagraph two of paragraph b of  such  subdivision  six,  provided
   13  that  the  amount of reimbursement attributable to approved expenditures
   14  for capital outlays for joint facilities shall be determined pursuant to
   15  subparagraph four of paragraph a of this subdivision, is  in  excess  of
   16  the  amount  it  received under paragraph a of this subdivision shall be
   17  eligible to apply for a grant pursuant to this subdivision in lieu of an
   18  apportionment of aid for such approved expenditures pursuant to subdivi-
   19  sion six of section thirty-six hundred two of this article.  Application
   20  for such grant shall be made on or before  the  first  business  day  of
   21  September,  two  thousand  three  in such form as the commissioner shall
   22  determine, and shall include documentation of actual  approved  expendi-
   23  tures for capital outlays incurred in the two thousand one--two thousand
   24  two school year.
   25    §  30.  Paragraph d of subdivision 14 of section 3602 of the education
   26  law, as amended by section 113-c of part C of chapter 58 of the laws  of
   27  1998, is amended to read as follows:
   28    d.  Incentive operating aid for reorganized districts. Notwithstanding
   29  the provisions of paragraphs a through c of this  subdivision,  whenever
   30  two  or  more school districts are scheduled for reorganization pursuant
   31  to section three hundred fourteen of this chapter,  and  whenever  after
   32  July  first,  nineteen  hundred sixty-five, all such school districts so
   33  scheduled do reorganize  in  accordance  with  the  provisions  of  such
   34  section  three  hundred  fourteen  as  amended  by chapter seven hundred
   35  forty-five of the laws of nineteen hundred sixty-five, and
   36    (1) whenever such proposed reorganization includes at least two school
   37  districts, each of which maintains its own high school, or
   38    (2) where  such  proposed  reorganization  includes  only  one  school
   39  district  maintaining  its  own  high school, whenever in such case such
   40  proposed reorganization, in addition to such school district maintaining
   41  its own high school, includes at least nine other school districts, or
   42    (3) whenever  such  proposed  reorganization  includes  at  least  two
   43  central school districts, or
   44    (4)  where  such  proposed reorganization includes at least one school
   45  district maintaining its own  high  school  and,  in  addition  thereto,
   46  includes  at least one school district employing eight or more teachers,
   47  or
   48    (5)  where  such  proposed  reorganization  includes  a  city   school
   49  district,  and in addition thereto, includes at least seven other school
   50  districts, or
   51    (6) where such reorganization includes at least two  school  districts
   52  employing  eight or more teachers forming a central high school district
   53  pursuant to section nineteen hundred  thirteen  of  this  chapter,  such
   54  reorganized  district  shall be entitled to an apportionment equal to an
   55  additional percent of the apportionment computed in accordance with  the
   56  provisions  of  subparagraph (i) of paragraph a of subdivision twelve of
       S. 1407                            77                            A. 2107
 
    1  this section; but in no case shall the sum of such  apportionment  under
    2  this  paragraph  plus  (a)  the  apportionment under subparagraph (i) of
    3  paragraph a of subdivision twelve of this section, or (b)  for  the  two
    4  thousand  two--two  thousand  three school year, the apportionment under
    5  subdivision twelve-b of this section less the amount payable in the  two
    6  thousand--two  thousand  one school year pursuant to subdivision sixteen
    7  of this section, be more than a total of ninety-five per centum  of  the
    8  year  prior to the base year approved operating expense; for a period of
    9  five years beginning with the first school year of operation as a  reor-
   10  ganized district such additional percent shall be ten percent; and ther-
   11  eafter  such additional ten percent apportionment to such district shall
   12  be reduced by one percentage point each year, beginning with  the  sixth
   13  school year of operation as a reorganized district, and continuing until
   14  such  additional  ten  percent  apportionment  is  eliminated; provided,
   15  however, that the total  apportionment  to  such  reorganized  district,
   16  beginning  with  the  first  school  year  of operation as a reorganized
   17  district, and thereafter, shall be not less than the sum of  all  appor-
   18  tionments  which  each component school district was entitled to receive
   19  and did receive during the last school year preceding such first year of
   20  operation. In the event a school  district  is  eligible  for  incentive
   21  operating  aid  and again reorganizes pursuant to a new plan or reorgan-
   22  ization established by the commissioner, and where such new  reorganiza-
   23  tion  is  again  eligible for incentive operating aid, the newly created
   24  school district shall be entitled to  receive  incentive  operating  aid
   25  pursuant  to  the  provisions  of  this  paragraph,  based on all school
   26  districts included in any such reorganization, provided,  however,  that
   27  incentive operating aid payments due because of any such former reorgan-
   28  ization shall cease.
   29    §  31.  Clauses  (a),  (b) and (d) of subparagraph 1 of paragraph b of
   30  subdivision 1 of section 4402 of the education law, as amended by  chap-
   31  ter 311 of the laws of 1999, are amended to read as follows:
   32    (a)  Such  committees  shall  be  composed  of  at least the following
   33  members:  (i) the parents or persons in  parental  relationship  to  the
   34  student;  (ii) one regular education teacher of the student whenever the
   35  student is or may be participating in the regular education environment;
   36  (iii) one special education teacher of the student, or, if  appropriate,
   37  a  special  education  provider  of the student; (iv) [a school psychol-
   38  ogist; (v)] a representative of such school district who is qualified to
   39  provide or administer or supervise special education and  is  knowledge-
   40  able  about  the general curriculum and the availability of resources of
   41  the school district; [(vi)] (v) an  individual  who  can  interpret  the
   42  instructional implications of evaluation results; [(vii) a school physi-
   43  cian;  (viii) an additional parent of a student with a disability resid-
   44  ing in the school district or a neighboring  school  district,  provided
   45  such  parent  shall not be employed by or under contract with the school
   46  district, and provided further that such additional parent shall not  be
   47  a  required  member  if  the parents request that such additional parent
   48  member not participate; (ix)] (vi) such other persons  having  knowledge
   49  or special expertise regarding the student as the school district or the
   50  parents  or persons in parental relationship to the student shall desig-
   51  nate, to the extent required under  federal  law;  and  [(x)]  (vii)  if
   52  appropriate, the student.
   53    (b)  In  determining  the  composition  of  such committee pursuant to
   54  clause (a) of this subparagraph, a school district may determine that  a
   55  member  appointed  pursuant to one of subclause (ii), (iii), (iv)[, (v)]
   56  or [(ix)] (vi) of clause (a) of  this  subparagraph  also  fulfills  the
       S. 1407                            78                            A. 2107
 
    1  requirement  of  subclause [(vi)] (v) of clause (a) of this subparagraph
    2  of a member who is an individual who  can  interpret  the  instructional
    3  implications of evaluation results where such individuals are determined
    4  by  the  school  district  to  have the knowledge and expertise to do so
    5  and/or that a member appointed pursuant to subclause (iii) [or (iv)]  of
    6  clause  (a)  of  this  subparagraph  also  fulfills  the  requirement of
    7  subclause [(v)] (iv) of clause (a) of this subparagraph of a member  who
    8  is a representative of the school district. The regular education teach-
    9  er  of  the  student  shall  participate  in the development, review and
   10  revision of the individualized education program for the student, to the
   11  extent required under federal law.  [The school physician need not be in
   12  attendance at any meeting of the committee on special  education  unless
   13  specifically  requested  in writing, at least seventy-two hours prior to
   14  such meeting by the parents or other person in parental relationship  to
   15  the  student  in  question, the student, or a member of the committee on
   16  special education. The parents or persons in  parental  relationship  of
   17  the  student  in  question  shall receive proper written notice of their
   18  right to have the school physician attend the meetings of the  committee
   19  on  special  education upon referral of said student to the committee on
   20  special education or whenever such committee plans to modify  or  change
   21  the  identification,  evaluation or educational placement of the student
   22  and their right to request that an additional parent member not  partic-
   23  ipate  at  any  meeting  of  the  committee  regarding the student.] The
   24  committee shall invite the appropriate professionals most familiar  with
   25  a  student's disability or disabilities to attend any meeting concerning
   26  the educational program for such  student.  Members  of  such  committee
   27  shall  serve  at  the pleasure of such board and members who are neither
   28  employees of nor under contract with such district shall  serve  without
   29  compensation except that such members shall be entitled to a per diem to
   30  defray  expenses  incurred  in such service, provided, however, that any
   31  expense incurred shall  be  deemed  an  aidable  operating  expense  for
   32  purposes of state aid.
   33    (d)  Boards  of education in city school districts in cities having in
   34  excess of one hundred twenty-five  thousand  inhabitants  shall  appoint
   35  subcommittees  on  special  education, to the extent necessary to ensure
   36  timely evaluation and placement of students with disabilities. Boards of
   37  education or trustees of any school district outside of a city having  a
   38  population in excess of one hundred twenty-five thousand inhabitants may
   39  appoint subcommittees on special education to assist the board of educa-
   40  tion  in  accordance with this clause and the regulations of the commis-
   41  sioner. The membership of each subcommittee shall include,  but  not  be
   42  limited  to,  the  committee  members required by [subclauses (i), (ii),
   43  (iii), (v), (vi), (ix) and (x) of] clause (a) of this subparagraph[, and
   44  a  school  psychologist  whenever  a  new  psychological  evaluation  is
   45  reviewed or a change to a more restrictive program option, as defined in
   46  regulations  of  the  commissioner,  is  considered].  Except when (i) a
   47  student is considered for initial placement in a special class, or  (ii)
   48  a student is considered for initial placement in a special class outside
   49  of  the  student's  school of attendance, or (iii) whenever a student is
   50  considered for placement in a school  primarily  serving  students  with
   51  disabilities or a school outside of the student's district, each subcom-
   52  mittee  may  perform  the  functions  for which the committee on special
   53  education is responsible pursuant to the provisions of this subdivision.
   54  Each subcommittee shall report annually the status of each student  with
   55  a  disability within its jurisdiction to the committee on special educa-
   56  tion, and the subcommittee shall refer to the committee, upon receipt of
       S. 1407                            79                            A. 2107
 
    1  a written request from the parent or person in parental relationship  to
    2  a  student, any matter in which the parent disagrees with the subcommit-
    3  tee's recommendation concerning a modification or change  in  the  iden-
    4  tification,  evaluation,  educational  placement  or provision of a free
    5  appropriate public education to such student. The committee  on  special
    6  education  shall  be  responsible  for  oversight  and monitoring of the
    7  activities of each subcommittee to assure compliance with  the  require-
    8  ments of applicable and federal law and regulations.
    9    §  32.  Subdivision 6 of section 4402 of the education law, as amended
   10  by section 55-a of part H of chapter 83 of the laws of 2002, is  amended
   11  to read as follows:
   12    6.  Notwithstanding any other law, rule or regulation to the contrary,
   13  the board of education of a city school district with  a  population  of
   14  one  hundred twenty-five thousand or more inhabitants shall be permitted
   15  to establish  maximum  class  sizes  for  special  classes  for  certain
   16  students  with  disabilities  in  accordance with the provisions of this
   17  subdivision. For the purpose of obtaining relief from any adverse fiscal
   18  impact from under-utilization of special education resources due to  low
   19  student  attendance  in  special  education  classes  at  the middle and
   20  secondary level as determined by the commissioner, such boards of educa-
   21  tion shall, during the school years nineteen hundred  ninety-five--nine-
   22  ty-six  through  June  thirtieth,  two thousand [three] five of the [two
   23  thousand two--two thousand three] two thousand four--two  thousand  five
   24  school  year,  be  authorized to increase class sizes in special classes
   25  containing students with disabilities whose age ranges are equivalent to
   26  those of students in middle and secondary  schools  as  defined  by  the
   27  commissioner for purposes of this section by up to but not to exceed one
   28  and  two  tenths  times  the  applicable maximum class size specified in
   29  regulations of the commissioner rounded up to the nearest whole  number,
   30  provided  that  in  a  city  school  district having a population of one
   31  million or more, classes that have a maximum class size of  fifteen  may
   32  be increased by no more than one student and provided that the projected
   33  average  class size shall not exceed the maximum specified in the appli-
   34  cable regulation, provided that such authorization  shall  terminate  on
   35  June  thirtieth,  two thousand. Such authorization shall be granted upon
   36  filing of a notice by such a board of education  with  the  commissioner
   37  stating the board's intention to increase such class sizes and a certif-
   38  ication  that  the  board will conduct a study of attendance problems at
   39  the secondary level and will  implement  a  corrective  action  plan  to
   40  increase  the rate of attendance of students in such classes to at least
   41  the rate for students attending regular education classes  in  secondary
   42  schools  of the district. Such corrective action plan shall be submitted
   43  for approval by the commissioner by a date during  the  school  year  in
   44  which  such  board  increases  class  sizes as provided pursuant to this
   45  subdivision to be prescribed by the commissioner. Upon at  least  thirty
   46  days  notice  to  the board of education, after conclusion of the school
   47  year in which such board increases class sizes as provided  pursuant  to
   48  this subdivision, the commissioner shall be authorized to terminate such
   49  authorization  upon  a  finding  that the board has failed to develop or
   50  implement an approved corrective action plan.
   51    § 33. The section heading and subdivision 1 of  section  4404  of  the
   52  education  law, the section heading as amended by chapter 53 of the laws
   53  of 1990 and subdivision 1 as amended by chapter 311 of the laws of 1999,
   54  are amended to read as follows:
   55    Appeal procedures for children with [handicapping conditions] disabil-
   56  ities.  1. a. If the recommendation of the committee on  special  educa-
       S. 1407                            80                            A. 2107
 
    1  tion  is not acceptable to the parent or person in parental relationship
    2  of a student, or if the committee or  board  of  education  or  trustees
    3  fails to make or effectuate such a recommendation within such periods of
    4  time as may be required by regulations of the commissioner, such parents
    5  or  persons in parental relationship shall notify the board of education
    6  of this situation and the board shall appoint an impartial hearing offi-
    7  cer to hear the appeal and make a determination within  such  period  of
    8  time  as  the  commissioner by regulation shall determine, provided that
    9  the board of education or trustees shall offer the parent or  person  in
   10  parental  relationship  the  option  of  mediation  pursuant  to section
   11  forty-four hundred four-a of this article as an alternative to an impar-
   12  tial hearing. Individuals so appointed by a board of education shall  be
   13  selected from a list of available hearing officers who have successfully
   14  completed a hearing officer training program conducted by the department
   15  according  to  a rotation selection process prescribed in regulations of
   16  the commissioner; except that a city school district of a city having  a
   17  population  of  more  than  one million inhabitants shall be exempt from
   18  such regulations to the extent it  maintains  its  rotational  selection
   19  process  in effect prior to July first, nineteen hundred ninety-three. A
   20  record of proceedings before the hearing officer shall be maintained and
   21  made available to the parties. The decision of the hearing officer shall
   22  be binding upon both parties unless appealed to the state  review  offi-
   23  cer.  The  commissioner  shall  establish  a department training program
   24  which shall be completed to the satisfaction of the  commissioner  as  a
   25  condition of certification. The commissioner shall develop and implement
   26  a  plan  to  ensure  that  no  individual employed by a school district,
   27  school or program serving students with disabilities placed by a  school
   28  district  committee  on  special  education acts as an impartial hearing
   29  officer and that no individual employed  by  such  schools  or  programs
   30  serves  as  an  impartial  hearing  officer  for two years following the
   31  termination of such employment. Such plan shall be fully implemented  no
   32  later  than  July  first,  nineteen hundred ninety-six. The commissioner
   33  shall promulgate regulations establishing procedures for the  suspension
   34  or revocation of impartial hearing officer certification for good cause.
   35  The commissioner shall establish [maximum] rates for the compensation of
   36  impartial  hearing  officers  subject to the approval of the director of
   37  the division of the budget.
   38    b. The commissioner shall promulgate regulations  establishing  proce-
   39  dures  and  timelines  for  expedited  hearings  in cases involving: (a)
   40  review of a decision that a student with a disability's behavior was not
   41  a manifestation of such student's disability, or (b) review of an inter-
   42  im alternative educational setting or  other  placement  to  the  extent
   43  required  under federal law, or (c) a request by the school district for
   44  a determination that maintaining the current  educational  placement  of
   45  the  student  is substantially likely to result in injury to the student
   46  or to others.
   47    c. The commissioner shall be authorized to promulgate any  regulations
   48  necessary to establish procedures for the conduct of impartial hearings,
   49  consistent  with  Federal  law, that are designed to assure that a final
   50  decision is rendered by the impartial hearing officer  within  the  time
   51  prescribed  by  Federal  law,  or,  where  applicable,  within  the time
   52  prescribed in section forty-four  hundred  ten  of  this  article.  Such
   53  procedures  may  include,  but  shall not be limited to, a required pre-
   54  hearing conference at which the impartial hearing officer  shall  deter-
   55  mine  the  amount  of  time  necessary to complete the hearing and shall
       S. 1407                            81                            A. 2107
 
    1  establish a schedule for the  hearing  that  provides  for  hearings  on
    2  consecutive business days.
    3    §  34.  Subdivision 3 of section 4404 of the education law, as amended
    4  by chapter 53 of the laws of 1990, is amended to read as follows:
    5    3. Review of the determination of a  state  review  officer  regarding
    6  children with [handicapping conditions] disabilities.
    7    a.  Any final determination or order of a state review officer denying
    8  or limiting any special service or program to any child under this arti-
    9  cle may only be reviewed in a proceeding brought in  the  supreme  court
   10  pursuant  to  article seventy-eight of the civil practice law and rules,
   11  as modified by this subdivision, or in United States district court.
   12    b. Notwithstanding the provisions  of  section  seventy-eight  hundred
   13  three  of  the civil practice law and rules, upon review of any determi-
   14  nation of the state review officer made as a  result  of  a  hearing  at
   15  which evidence was taken, subdivision four of such section seventy-eight
   16  hundred  three  shall  not  apply,  and  a party may raise as a question
   17  whether the determination was made as a result of a hearing held, and at
   18  which evidence was taken, pursuant to direction by law is, on the entire
   19  record, supported by a preponderance of the evidence. In  addition,  the
   20  court  in  such  proceeding  shall,  in accordance with paragraph (h) of
   21  section seventy-eight hundred four of such law, hear additional evidence
   22  at the request of a party.
   23    c. In any such proceeding under article seventy-eight, the  court  may
   24  grant  any  relief authorized by the provisions of section seventy-eight
   25  hundred six of such law and rules, which shall include any relief avail-
   26  able in a civil action under section six hundred fifteen of the individ-
   27  uals with disabilities education act (20 U.S.C.  section 1415) and  also
   28  may,  in its discretion remand the proceedings to the state review offi-
   29  cer for further consideration upon a finding that any relevant and mate-
   30  rial evidence is then available which was not previously  considered  by
   31  the commissioner.
   32    §  34-a. Paragraph a of subdivision 3 of section 4405 of the education
   33  law, as amended by chapter 57 of the laws of 1993, is amended to read as
   34  follows:
   35    a. (1) In addition to any other apportionments under the provisions of
   36  this chapter, there shall  be  apportioned  to  each  applicable  school
   37  district for each child with a handicapping condition in attendance in a
   38  state  school  under the provisions of paragraph d of subdivision two of
   39  section forty-four hundred one of this article [or an  approved  program
   40  under  the provisions of paragraphs e, f, g, h, i and l of such subdivi-
   41  sion two], the product of such attendance, computed in  accordance  with
   42  regulations  of  the  commissioner,  and  the excess cost aid: an amount
   43  computed by multiplying the excess cost, as defined in  subdivision  six
   44  of section forty-four hundred one of this article by the excess cost aid
   45  ratio defined in subdivision seven of [this] such section.
   46    (2)  Furthermore, there shall be apportioned to each applicable school
   47  district for each child with a handicapping condition in  attendance  in
   48  an approved program under the provisions of paragraphs e, f, g, h, i and
   49  l  of subdivision two of section forty-four hundred one of this article,
   50  an amount equal to the sum of (i) the  product  of  (A)  one  and  seven
   51  tenths,  (B)  such attendance computed in accordance with regulations of
   52  the commissioner, and (C) the product of the lesser  of  the  district's
   53  expense  per pupil calculated pursuant to paragraph f of subdivision one
   54  of section thirty-six hundred two of this chapter or the statewide aver-
   55  age of such expense, multiplied by the district's excess cost aid  ratio
   56  calculated  pursuant to subparagraph two of subdivision nineteen of such
       S. 1407                            82                            A. 2107
 
    1  section thirty-six hundred two and (ii) an amount computed by  multiply-
    2  ing  the  district's  excess cost aid ratio calculated pursuant to para-
    3  graph two of subdivision nineteen of such section thirty-six hundred two
    4  by the amount by which the approved program cost exceeds three times the
    5  district's expense per pupil without limits.
    6    §  35.  Subparagraph 1 of paragraph a of subdivision 3 of section 4410
    7  of the education law, as amended by chapter 311 of the laws of 1999,  is
    8  amended to read as follows:
    9    (1)  Such  board  shall  ensure  that such committee is composed of at
   10  least the following members: (i) the parents  of  the  preschool  child;
   11  (ii) a regular education teacher of such child, whenever the child is or
   12  may be participating in a regular education environment; (iii) a special
   13  education  teacher  of the child or, if appropriate, a special education
   14  provider of the child; (iv) an appropriate professional employed by  the
   15  school  district who is qualified to provide, or supervise the provision
   16  of, special education, who is knowledgeable about the general curriculum
   17  of the school district and the availability of preschool special  educa-
   18  tion  programs  and  services and other resources in the school district
   19  and the municipality, and who shall serve as chairperson of the  commit-
   20  tee;  (v) [an additional parent of a child with a disability who resides
   21  in the school district or a neighboring school district and whose  child
   22  is  enrolled  in  a  preschool  or  elementary  level education program,
   23  provided that such parent shall not be employed  by  or  under  contract
   24  with the school district or municipality, and provided further that such
   25  additional  parent shall not be a required member if the parents request
   26  that such additional parent member not participate; (vi)] an  individual
   27  who  can interpret the instructional implications of evaluation results,
   28  provided that such individual may be the member  appointed  pursuant  to
   29  clause (ii), (iii), (iv) or [(vii)] (vi) of this subparagraph where such
   30  individuals  are determined by the school district to have the knowledge
   31  and expertise to do so; [(vii)] (vi) such other persons having knowledge
   32  or expertise regarding the child as  the  board  or  the  parents  shall
   33  designate,  to the extent required under federal law; and for a child in
   34  transition from programs and services provided  pursuant  to  applicable
   35  federal  laws  relating  to early intervention services, the appropriate
   36  professional designated by the agency that has  been  charged  with  the
   37  responsibility  for  the  preschool  child  pursuant  to said applicable
   38  federal laws. In addition, the chief executive officer  of  the  munici-
   39  pality of the preschool child's residence shall appoint an appropriately
   40  certified  or licensed professional to the committee.  Attendance of the
   41  appointee of the municipality shall not be required for a quorum.
   42    § 36. Subparagraph (iii) of paragraph a of subdivision  9  of  section
   43  4410 of the education law, as amended by section 57-a of part H of chap-
   44  ter 83 of the laws of 2002, is amended to read as follows:
   45    (iii)  Commencing July first, nineteen hundred ninety-six and continu-
   46  ing through June thirtieth, two thousand [three] four, a  moratorium  on
   47  the  approval  of any new or expanded programs in settings which include
   48  only preschool children with  disabilities  is  established.  Exceptions
   49  shall  be  made  for cases in which school districts document a critical
   50  need for a new or expanded program in  a  setting  which  includes  only
   51  preschool  children  with disabilities, to meet the projected demand for
   52  services for preschool children in the  least  restrictive  environment.
   53  Applications  for  new  or expanded programs may be made directly to the
   54  state education department. Nothing herein shall  prohibit  the  commis-
   55  sioner  from approving the modification of a full-day program into half-
   56  day sessions.
       S. 1407                            83                            A. 2107
 
    1    Commencing July [1, 1999]  first,  nineteen  hundred  ninety-nine  the
    2  department  shall  only approve any new or expanded programs in settings
    3  which include only preschool children with disabilities, if  the  appli-
    4  cant  can  document  a  critical need for a new or expanded program in a
    5  setting which includes only preschool children with disabilities to meet
    6  the  projected  demand  for services for preschool children in the least
    7  restrictive environment. If the department determines that approval will
    8  not be granted, it must notify the applicant, in writing, of its reasons
    9  for not granting such approval. The department  shall  establish  guide-
   10  lines,  within  [90]  ninety  days of the effective date of this section
   11  which shall state the criteria used to determine if  the  applicant  has
   12  demonstrated  such  a  critical  need.  The  department is authorized to
   13  consult with the local school district to verify any data submitted.
   14    On December [1, 2003] first, two thousand three the commissioner shall
   15  submit a report to the board of regents,  the  majority  leader  of  the
   16  senate,  the  speaker of the assembly and governor evaluating the impact
   17  of such moratorium on the availability of  preschool  special  education
   18  services. The report shall include: (i) information regarding the number
   19  of applications for new programs and program expansions and the disposi-
   20  tion  of  those  applications by the commissioner; (ii) an assessment of
   21  the projected need for additional classes serving only disabled children
   22  and those serving disabled children with their non-disabled peers and in
   23  other less restrictive settings; (iii) an assessment  of  the  projected
   24  need  for  additional  programs  due  to program closings in the region,
   25  number of children receiving early intervention  services  and  existing
   26  waiting  lists; (iv) an assessment of the distance that children must be
   27  transported to receive preschool  special  education  services;  (v)  an
   28  evaluation  of  the  programmatic  performance and cost-effectiveness of
   29  existing programs; (vi) recommendations regarding ways in which improved
   30  quality and cost-effectiveness could be achieved through  the  selective
   31  expansion of effective programs and/or the curtailment of less effective
   32  programs;  and (vii) an assessment of the availability and effectiveness
   33  of approved programs  providing  services  to  preschool  children  with
   34  autism.
   35    §  37.  Subdivision  1 of section 101 of the general municipal law, as
   36  amended by chapter 572 of the laws  of  1964,  is  amended  to  read  as
   37  follows:
   38    1. Every officer, board or agency of a political subdivision or of any
   39  district therein, other than a school district or a board of cooperative
   40  educational  services  or  a city contracting on behalf of a city school
   41  district, charged with the duty of preparing specifications or  awarding
   42  or  entering  into  contracts  for  the  erection,  construction, recon-
   43  struction or alteration of buildings, when the entire cost of such  work
   44  shall  exceed  fifty thousand dollars, shall prepare separate specifica-
   45  tions for the following three subdivisions of the work to be performed:
   46    a. Plumbing and gas fitting;
   47    b. Steam heating, hot water heating, ventilating and air  conditioning
   48  apparatus; and
   49    c. Electric wiring and standard illuminating fixtures.
   50    §  38. Subdivision 9 of section 1689 of the public authorities law, as
   51  amended by chapter 37 of the  laws  of  1976,  is  amended  to  read  as
   52  follows:
   53    9.  Any  payment  required to be made by a board of cooperative educa-
   54  tional services to the authority shall be deemed  an  administrative  or
   55  capital  expense within the meaning of section nineteen hundred fifty of
   56  the education law.
       S. 1407                            84                            A. 2107
 
    1    § 39. Section 2435-d of  the  public  authorities  law,  as  added  by
    2  section  69  of  part H of chapter 83 of the laws of 2002, is amended to
    3  read as follows:
    4    §  2435-d.  Special school purpose agreements. In order to fulfill the
    5  purposes of this title and to provide  a  means  by  which  the  special
    6  school purpose municipalities may receive assistance to meet their obli-
    7  gations and, notwithstanding any general or special law to the contrary,
    8  the  agency  and  each  special  school  purpose municipality are hereby
    9  authorized to enter into one or more special school  purpose  agreements
   10  in accordance with the provisions of this title as to financing of costs
   11  by  the  agency, the application of school aid revenues to the agency to
   12  secure its bonds and further  assurances  in  respect  of  the  agency's
   13  receipt  of  such  revenues.  Any such special school purpose agreements
   14  shall not constitute indebtedness of the special school purpose  munici-
   15  pality  for  purposes  of  section 20.00 of the local finance law or any
   16  constitutional or statutory limitation. In addition, any special  school
   17  purpose  bonds  issued  in  connection  with such special school purpose
   18  agreement shall not constitute a debt of the state or of the  applicable
   19  special school purpose municipality under any constitutional or statuto-
   20  ry  provision.  Any such school aid revenues shall belong to the agency,
   21  shall not be, or be treated as, revenues of the special  school  purpose
   22  municipality   for  appropriation,  accounting  or  any  other  purpose,
   23  provided, however, that such school aid revenues shall be deemed  to  be
   24  revenues  of  the special school purpose municipality for the purpose of
   25  any computation of federal or state aid, and shall not be  consolidated,
   26  commingled or otherwise combined with any other moneys of the agency and
   27  any  such  special school purpose agreement shall include a statement to
   28  such effect. Any such school aid revenues and any  such  special  school
   29  purpose  agreements  may be pledged by the agency in accordance with and
   30  with the effect of subdivision ten of section two thousand four  hundred
   31  thirty-seven  of  this title to secure its bonds and may not be modified
   32  thereafter except as provided by the terms of the pledge.  Each  special
   33  school  purpose  agreement shall specify the amount to be made available
   34  to the  respective  special  school  purpose  municipality  through  the
   35  proceeds  of  an  issue  of  special school purpose bonds and such other
   36  matters as the agency shall determine necessary or desirable as  to  the
   37  application  of bond proceeds or the security of the bonds. Such special
   38  school purpose agreement shall also provide that the agency shall not be
   39  entitled to receive any special school purpose school aid revenues.  The
   40  receipt  of the proceeds of any issue of special school purpose bonds by
   41  the special school purpose municipality shall be deemed  to  satisfy  an
   42  equivalent  amount  of  prior year claims owed to the school district of
   43  such special school purpose municipality pursuant to section  thirty-six
   44  hundred  four  of the education law, and such proceeds provided pursuant
   45  to this section shall not reduce the apportionments payable for approved
   46  project costs pursuant to subdivisions six, six-a and  six-b  and  para-
   47  graph  c  of  subdivision fourteen of section thirty-six hundred two and
   48  subdivision twelve of section thirty-six hundred forty-one of the educa-
   49  tion law and may be used by an eligible  school  district  to  fund  the
   50  principal  amount  of any costs that are in excess of the costs approved
   51  for an apportionment pursuant to such subdivision six, six-a or six-b of
   52  section thirty-six hundred two or subdivision twelve of section  thirty-
   53  six hundred forty-one of the education law.
   54    §  40. Paragraph b of subdivision 1 of section 1734 and subdivisions 1
   55  and 3 of section 1735 of the public authorities law are REPEALED.
   56    § 41. Intentionally omitted.
       S. 1407                            85                            A. 2107
 
    1    § 42. Clause (b) of subparagraph 2 of paragraph c of subdivision 6  of
    2  section  3602 of the education law, as amended by section 60-a of part A
    3  of chapter 60 of the laws of 2000, is amended to read as follows:
    4    (b) For aid payable in the school years two thousand--two thousand one
    5  and  thereafter  for all school building projects approved by the voters
    6  of the school district or by the board of education  of  a  city  school
    7  district  in  a  city  with  more  than one hundred twenty-five thousand
    8  inhabitants, and/or the chancellor in a city school district in  a  city
    9  having  a population of one million or more, on or after July first, two
   10  thousand and before July first, two thousand three, any school  district
   11  shall  compute  aid  under  the provisions of this subdivision using the
   12  greater of (i) the building aid ratio computed for use  in  the  current
   13  year;  or  (ii)  a building aid ratio equal to the difference of the aid
   14  ratio that was used or that would have been used to  compute  an  appor-
   15  tionment  pursuant  to  this subdivision in the nineteen hundred ninety-
   16  nine--two thousand school year as such aid  ratio  is  computed  by  the
   17  commissioner based on data on file with the department on or before July
   18  first of the third school year following the school year in which aid is
   19  first  payable,  less  one-tenth;  or  (iii) for any school district for
   20  which the pupil wealth ratio is greater than two and five-tenths and for
   21  which  the  alternate  pupil  wealth  ratio  is  less  than  eighty-five
   22  hundredths  the  additional  building  aid  ratio; provided that, school
   23  districts who are eligible for aid  under  paragraph  f  of  subdivision
   24  fourteen  of  this  section may compute aid under the provisions of this
   25  subdivision using the difference of the highest of  the  aid  ratios  so
   26  computed  for  the reorganized district or the highest of the aid ratios
   27  so computed for any of the individual  school  districts  which  existed
   28  prior to the date of the reorganized school district less one-tenth.
   29    §  43.  Subdivision  (c)  of section 93 of part A of chapter 60 of the
   30  laws of 2000 amending the education law, relating to  the  enactment  of
   31  major  components  necessary  to the implementation of the 2000-01 state
   32  fiscal plan, is amended to read as follows:
   33    (c) [sections] section sixty [and sixty-a] of this  act  shall  expire
   34  and be deemed repealed June 30, 2004;
   35    § 44. Intentionally Omitted.
   36    §  45. Subdivisions 22 and 24 of section 140 of chapter 82 of the laws
   37  of 1995, amending the education law and certain other laws  relating  to
   38  state  aid  to  school  districts and the appropriation of funds for the
   39  support of government, as amended by section 79-a of part H  of  chapter
   40  83 of the laws of 2002, are amended to read as follows:
   41    (22)  sections  one  hundred twelve, one hundred thirteen, one hundred
   42  fourteen, one hundred fifteen and one hundred sixteen of this act  shall
   43  take effect on July 1, 1995; provided, however, that section one hundred
   44  thirteen of this act shall remain in full force and effect until July 1,
   45  [2003] 2005 at which time it shall be deemed repealed;
   46    (24)  sections one hundred eighteen through one hundred thirty of this
   47  act shall be deemed to have been in full force and effect on  and  after
   48  July 1, 1995; provided further, however, that the amendments made pursu-
   49  ant  to  section  one hundred nineteen of this act shall be deemed to be
   50  repealed on and after July 1, [2003] 2005;
   51    § 46. Subdivision 1 of section 167 of chapter 169 of the laws of  1994
   52  relating  to certain provisions related to the 1994-95 state operations,
   53  aid to localities, capital projects and debt service budgets, as amended
   54  by section 83 of part H of chapter 83 of the laws of 2002, is amended to
   55  read as follows:
       S. 1407                            86                            A. 2107
 
    1    1. Sections one through seventy of this act shall be  deemed  to  have
    2  been  in  full  force  and effect as of April 1, 1994 provided, however,
    3  that  sections  one,  two,  twenty-four,  twenty-five  and  twenty-seven
    4  through seventy of this act shall expire and be deemed repealed on March
    5  31, 2000; provided, however, that section twenty of this act shall apply
    6  only  to  hearings  commenced  prior  to September 1, 1994, and provided
    7  further that section twenty-six of this act shall expire and  be  deemed
    8  repealed  on  March  31,  1997;  and provided further that sections four
    9  through fourteen, sixteen, and eighteen, nineteen and twenty-one through
   10  twenty-one-a of this act shall expire and be deemed  repealed  on  March
   11  31,  1997; and provided further that sections three, fifteen, seventeen,
   12  twenty, twenty-two and twenty-three of this  act  shall  expire  and  be
   13  deemed repealed on March 31, [2004] 2005.
   14    §  47. Section 6 of chapter 756 of the laws of 1992, relating to fund-
   15  ing a program for work force education conducted by the  consortium  for
   16  worker education in New York city, as amended by section 85 of part H of
   17  chapter 83 of the laws of 2002, is amended to read as follows:
   18    6.  This  act  shall  take  effect  July  1, 1992, and shall be deemed
   19  repealed on June 30, [2003] 2004.
   20    § 48. Section 11 of chapter 795 of the  laws  of  1967,  amending  the
   21  education  law, the public authorities law and the real property tax law
   22  relating to authorizing boards of cooperative  educational  services  to
   23  own and construct buildings, is REPEALED.
   24    § 49. Notwithstanding any provisions of law to the contrary, the allo-
   25  cation of aid to public libraries for 2003-04 shall fund all aid recipi-
   26  ents at the same percent of total aid as they were funded in 2002-03.
   27    §  50.  Special apportionment for salary expenses.  a. Notwithstanding
   28  any other provision of law, upon  application  to  the  commissioner  of
   29  education,  not  sooner  than  June 13, 2004 and not later than June 23,
   30  2004, a school  district  eligible  for  an  apportionment  pursuant  to
   31  section 3602 of the education law shall be eligible to receive an appor-
   32  tionment  pursuant  to this section, for the school year ending June 30,
   33  2004, for salary expenses incurred between April 1 and  June  30,  2004,
   34  and such apportionment shall not exceed the deficit reduction assessment
   35  of  1990-91  as determined by the commissioner of education, pursuant to
   36  paragraph f of subdivision 1 of section 3602 of the education law, as in
   37  effect through June 30, 1993, plus one  hundred  forty-four  percent  of
   38  such  amount  for  a city school district in a city with a population in
   39  excess of one million inhabitants, and  shall  not  exceed  such  salary
   40  expenses. Such application shall be made by a school district, after the
   41  board of education or trustees have adopted a resolution to do so and in
   42  the case of a city school district in a city with a population in excess
   43  of  one  hundred  twenty-five thousand inhabitants, with the approval of
   44  the mayor of such city.
   45    b. The claim for an apportionment to be  paid  to  a  school  district
   46  pursuant  to  subdivision  a  of  this section shall be submitted to the
   47  commissioner of education on a form prescribed  for  such  purpose,  and
   48  shall  be  payable upon determination by such commissioner that the form
   49  has been submitted as prescribed. Such approved amounts shall be payable
   50  on the same day on or before September, 2004, as funds provided pursuant
   51  to subparagraph 3 of paragraph b of subdivision 4 of section 92-c of the
   52  state finance law, on the audit and warrant of the state comptroller  on
   53  vouchers  certified  or approved by the commissioner of education in the
   54  manner prescribed by law from moneys in the state lottery fund and  from
   55  the general fund to the extent that the amount paid to a school district
   56  pursuant  to  subdivision  c of this section exceeds the amount, if any,
       S. 1407                            87                            A. 2107
 
    1  due such school district pursuant to subparagraph (2) of paragraph a  of
    2  subdivision  1  of  section  3609-a  of the education law in the 2004-05
    3  school year.
    4    c.  Notwithstanding  the provisions of section 3609-a of the education
    5  law, an amount equal to the amount paid to a school district pursuant to
    6  subdivisions a and b of this section shall first be  deducted  from  the
    7  following  payments  due  the  school district during the 2004-05 school
    8  year pursuant to the subparagraphs of paragraph a of  subdivision  1  of
    9  section  3609-a of the education law in the following order: the lottery
   10  apportionment payable pursuant to subparagraph  (2)  of  such  paragraph
   11  followed by the fixed fall payments payable pursuant to subparagraph (4)
   12  of  such  paragraph  and  then followed by the districts payments to the
   13  teachers' retirement system pursuant to subparagraph (1) of  such  para-
   14  graph, and any remainder to be deducted from the individualized payments
   15  due  the  district  pursuant to paragraph b of such subdivision shall be
   16  deducted on a chronological basis starting with the earliest payment due
   17  the district.
   18    § 51. Expenditures of the state education department.  Notwithstanding
   19  any other law, rule or  regulation  to  the  contrary,  2003-2004  state
   20  fiscal  year  state operations appropriations made from the general fund
   21  and/or special revenue, other funds to the  state  education  department
   22  shall  be  available for the payment of prior years' liabilities in such
   23  fund or funds for fringe benefits,  indirect  costs,  telecommunications
   24  expenses  and  expenses  for  other centralized services.   Payments for
   25  prior years' liabilities in such fund or funds for expenses  other  than
   26  those indicated above may not exceed a total of one million five hundred
   27  thousand dollars ($1,500,000).
   28    § 52. Notwithstanding any other law, rule or regulation to the contra-
   29  ry, at the discretion of the commissioner of education, grants issued to
   30  public  entities  by the state education department shall be exempt from
   31  the provisions of paragraph (a) of subdivision 2 of section 112  of  the
   32  state finance law.
   33    § 53. Severability. The provisions of this act shall be severable, and
   34  if  the  application  of  any  clause, sentence, paragraph, subdivision,
   35  section or part of this act to  any  person  or  circumstance  shall  be
   36  adjudged  by  any  court  of  competent jurisdiction to be invalid, such
   37  judgment shall not necessarily affect, impair or invalidate the applica-
   38  tion of any such clause, sentence, paragraph, subdivision, section, part
   39  of this act or remainder thereof, as the  case  may  be,  to  any  other
   40  person  or  circumstance,  but shall be confined in its operation to the
   41  clause,  sentence,  paragraph,  subdivision,  section  or  part  thereof
   42  directly  involved  in the controversy in which such judgment shall have
   43  been rendered.
   44    § 54. This act shall take effect April 1, 2003, except that:
   45    (1) sections one, two, two-a, three, three-a, thirty-seven, forty  and
   46  forty-eight  of  this act, shall take effect immediately and shall apply
   47  to contracts entered into or on behalf of school districts and boards of
   48  cooperative educational services on and after such effective date;
   49    (2) sections four, five, nine and twenty-two  of  this  act  shall  be
   50  deemed  to  have  been in full force and effect on and after February 1,
   51  2003;
   52    (3) sections eight, twelve, sixteen, eighteen, nineteen, twenty, twen-
   53  ty-four, twenty-six, thirty-one and thirty-five of this act  shall  take
   54  effect July 1, 2003;
   55    (4)  sections  ten and thirty-nine of this act shall take effect imme-
   56  diately;
       S. 1407                            88                            A. 2107
 
    1    (5) sections eleven, thirteen,  fourteen,  thirty-four-a  and  thirty-
    2  eight of this act shall take effect July 1, 2004;
    3    (6) section fifteen of this act shall take effect July 1, 2005;
    4    (7)  sections  seventeen,  twenty-one,  twenty-eight,  twenty-nine and
    5  thirty of this act shall take effect immediately and shall be deemed  to
    6  have been in full force and effect on and after July 1, 2002;
    7    (8)  section  twenty-three  of this act shall take effect immediately,
    8  and shall be deemed to have been in full force and effect on  and  after
    9  the  effective  date  of  chapter  217 of the laws of 2001 as amended by
   10  chapter 231 of the laws of 2002;
   11    (9) section twenty-five of this act shall take effect immediately  and
   12  shall  be  deemed to have been in full force and effect on and after the
   13  effective date of section 28 of part H of chapter  83  of  the  laws  of
   14  2002;
   15    (10)  sections  twenty-seven,  forty-nine,  fifty-one and fifty-two of
   16  this act shall take effect immediately, and shall be deemed to have been
   17  in full force and effect on and after April 1, 2003;
   18    (11) section thirty-three of this act shall take effect July 1,  2003,
   19  provided  that effective immediately the commissioner of education shall
   20  be authorized to promulgate any regulations  needed  to  implement  such
   21  section on such effective date;
   22    (12)  section thirty-four of this act shall take effect June 30, 2003,
   23  and shall apply to proceedings commenced  on  or  after  such  effective
   24  date;
   25    (13)  section  forty-two  of  this act shall be deemed to have been in
   26  full force and effect on and after the effective date of section 60-a of
   27  part A of chapter 60 of the laws of 2000;
   28    (14) section forty-three of this act shall be deemed to have  been  in
   29  full force and effect on and after the effective date of subdivision (c)
   30  of section 93 of part A of chapter 60 of the laws of 2000;
   31    (15)  section forty-five of this act shall take effect immediately and
   32  shall be deemed to have been in full force and effect as of  the  effec-
   33  tive date of chapter 221 of the laws of 1998;
   34    (16)  section  forty-six  of  this act shall be deemed to have been in
   35  full force and effect on and after the effective date of section 101  of
   36  chapter 436 of the laws of 1997;
   37    (17)  section  forty-seven  of this act shall take effect immediately,
   38  and shall be deemed to have been in full force and effect on  and  after
   39  the  effective date of section 85 of part H of chapter 83 of the laws of
   40  2002; and
   41    (18) the amendments to subdivision 6 of section 4402 of the  education
   42  law, made by section thirty-two of this act, shall not affect the repeal
   43  of  such  subdivision  as  provided  by subdivision 24 of section 140 of
   44  chapter 82 of the laws of 1995, as amended, and shall be deemed repealed
   45  therewith.
         REPEAL NOTES.--Subdivisions 1 and 2 of section 458  of  the  education
       law,  as  proposed  to  be  repealed by this act, relates to contracting
       requirements for schools districts.
         Subdivisions 1 and 2 of section 482 of the education law, as  proposed
       to  be  repealed  by  this  act, relates to contracting requirements for
       schools districts and boards of cooperative education.
         Paragraph b of subdivision 1 of section 1734, and subdivisions 1 and 3
       of section 1735 of the public authorities law as proposed to be repealed
       by this act, relates to contracting requirements for boards  of  cooper-
       ative education utilizing the dormitory authority.
       S. 1407                            89                            A. 2107
 
    1                                   Part E
 
    2    Section  1.  Subdivision  1  of  section  202  of the education law is
    3  REPEALED and a new subdivision 1 is added to read as follows:
    4    1. (a) The number of members of the board of regents of the university
    5  of the state of New York shall be six more than the number  of  judicial
    6  districts of the state. The governor shall appoint a member from each of
    7  the  judicial  districts of the state; the majority leader in the senate
    8  shall appoint two at-large members; the speaker of  the  assembly  shall
    9  appoint  two  at-large members; the senate minority leader shall appoint
   10  one at-large member; and the assembly minority leader shall appoint  one
   11  at-large member.
   12    (b)  Appointments  to the board shall be for six-year terms, except as
   13  provided in paragraph (c) of this subdivision.
   14    (c) Initial appointments to the board shall be for staggered terms  as
   15  follows:  One-third of the appointments by the governor, one-half of the
   16  appointments by the majority leader of the senate and  one-half  of  the
   17  appointments by the speaker of the assembly shall be for two-year terms;
   18  one- third of the appointments by the governor, one-half of the appoint-
   19  ments  by the majority leader of the senate and one-half of the appoint-
   20  ments by the speaker of the assembly shall be for four-year terms;  one-
   21  third  of  the  appointments  by  the  governor,  the appointment by the
   22  minority leader of the senate and the appointment by the minority leader
   23  of the assembly shall be for six-year terms.
   24    § 2. Subdivision 2 of section 202 of the education law, as amended  by
   25  chapter  296 of the laws of 1984 and as designated by chapter 892 of the
   26  laws of 1985, is amended to read as follows:
   27    2. All vacancies in such office, either for full or  unexpired  terms,
   28  shall  be  so filled that there shall always be in the membership of the
   29  board of regents [at least] one resident [of] appointed by the  governor
   30  from  each of the judicial districts.  A vacancy in the office of regent
   31  for other cause than expiration of term of service shall be  filled  for
   32  the  unexpired  term  [by  an election at the session of the legislature
   33  immediately following such vacancy  in  the  manner  prescribed  in  the
   34  preceding  paragraph,  unless  the  legislature  is in session when such
   35  vacancy occurs, in which case the vacancy shall be filled by such legis-
   36  lature in the manner prescribed in the preceding  paragraph,  except  as
   37  hereinafter  provided.  However, if such vacancy occurs after the second
   38  Tuesday in March and before a resolution to adjourn sine  die  has  been
   39  adopted  by either house, then the vacancy shall be filled by concurrent
   40  resolution, unless the legislature fails to  agree  on  such  concurrent
   41  resolution within three legislative days after its passage by one house,
   42  in  which case the two houses shall meet in joint session at noon on the
   43  next legislative day and proceed to elect such regent by joint  ballots;
   44  provided,  however,  that  if  the  vacancy  occur after the adoption by
   45  either house of a resolution to adjourn sine die, then the vacancy shall
   46  be filled  at  the  next  session  of  the  legislature  in  the  manner
   47  prescribed  in  the  preceding  paragraph]  in  the  same  manner as the
   48  original appointment.
   49    § 3. Subdivision 5 of section 202 of the education law is REPEALED and
   50  a new subdivision 5 is added to read as follows:
   51    5. Members of the board are required to comply with  all  requirements
   52  in  general,  special  or local law pertaining to the discharge of their
   53  duties, including, but not limited to, those  provisions  setting  forth
   54  codes  of  ethics,  disclosure requirements and prohibitions against any
   55  business and professional activities.
       S. 1407                            90                            A. 2107
 
    1    § 4. Section 204 of the education law is amended to read as follows:
    2    § 204. Meetings  and  absences.    The regents may provide for regular
    3  meetings, and the chancellor, or the commissioner of education,  or  any
    4  [five]  seven  regents,  may  at  any time call a special meeting of the
    5  board of regents and fix the time and place therefor; and at  least  ten
    6  days'  notice  of  every meeting shall be mailed to the usual address of
    7  each regent.  Meetings of the board of  regents  shall  be  governed  by
    8  sections  one  hundred through one hundred eleven of the public officers
    9  law relating to open meetings. If any regent shall fail to attend  three
   10  consecutive  meetings,  without  excuse  accepted as satisfactory by the
   11  regents, he or she may be deemed to have resigned and the regents  shall
   12  then  report  the  vacancy to the [legislature] body responsible for the
   13  original appointment, which shall fill it.
   14    § 5. Section 205 of the education law is amended to read as follows:
   15    § 205. Quorum.[Seven] Ten regents attending shall be a quorum for  the
   16  transaction of business.
   17    § 6. Section 207 of the education law is amended to read as follows:
   18    § 207. Legislative power.  1. Subject and in conformity to the consti-
   19  tution  and  laws  of  the state, the regents shall exercise legislative
   20  functions concerning the educational system of the state, determine  its
   21  educational  policies,  and, except, as to the judicial functions of the
   22  commissioner of education, establish rules for carrying into effect  the
   23  laws  and  policies  of  the state, relating to education, and the func-
   24  tions, powers, duties and trusts conferred or charged upon the universi-
   25  ty and the education department.  But no enactment of the regents  shall
   26  modify  in  any degree the freedom of the governing body of any seminary
   27  for the training of priests or clergymen to determine and  regulate  the
   28  entire  course  of religious, doctrinal or theological instruction to be
   29  given in such institution.  No rule by which more than a  majority  vote
   30  shall  be  required  for  any  specified  action by the regents shall be
   31  amended, suspended or repealed by a smaller vote than that required  for
   32  action thereunder.  Rules or regulations, or amendments or repeals ther-
   33  eof,  adopted or prescribed by the commissioner of education as provided
   34  by law shall not be effective unless and until approved by the  regents,
   35  except where authority is conferred by the regents upon the commissioner
   36  of  education  to  adopt, prescribe, amend or repeal such rules or regu-
   37  lations.
   38    2. In the event no statutory authorization has  been  provided  for  a
   39  proposed  rule or regulation of the regents or the commissioner that has
   40  projected additional costs to the state government, local governments or
   41  the university of the state of New York, such  proposed  rule  or  regu-
   42  lation  shall be submitted for review and approval by the state director
   43  of regulatory reform before the regents or the commissioner  may  submit
   44  such rule or regulation for publication in the state register. Such cost
   45  implications  shall  be  presented  in  a regulatory impact statement or
   46  revised regulatory impact statement prepared  pursuant  to  section  two
   47  hundred  two-a  of the state administrative procedure act, and submitted
   48  by the department to the state director of regulatory reform along  with
   49  the text of the proposed or revised rule. In the event any rule or regu-
   50  lation  adopted  by  the regents or the commissioner which is determined
   51  not to require review and approval by the state director  of  regulatory
   52  reform,  pursuant  to  the  conditions stated in this section, is subse-
   53  quently identified by the state director of regulatory reform as  impos-
   54  ing  such  additional  cost,  such  rule or regulation shall cease to be
   55  mandatory in effect and shall become voluntary in operation.
       S. 1407                            91                            A. 2107
 
    1    § 7. Subparagraph 2 of paragraph a of subdivision 4 of section 1950 of
    2  the education law, as amended by section 11 of part A of chapter 436  of
    3  the laws of 1997, is amended to read as follows:
    4    (2)  Notwithstanding  any  inconsistent  provision  of law in no event
    5  shall the total salary [including amounts paid pursuant to section twen-
    6  ty-two hundred nine of this chapter] for district superintendents exceed
    7  ninety-eight percent of that earned by the commissioner for state fiscal
    8  year nineteen hundred ninety-two--ninety-three, and in  no  event  shall
    9  any  district superintendent be permitted to accumulate vacation or sick
   10  leave  credits  in  excess  of  the  vacation  and  sick  leave  credits
   11  managerial/confidential  employees of the state are permitted to accumu-
   12  late pursuant to regulations promulgated  by  the  state  civil  service
   13  commission,  nor  may  any  district superintendent at the time of sepa-
   14  ration from service be compensated for accrued and unused vacation cred-
   15  its or sick leave, or use accrued and unused sick leave  for  retirement
   16  service  credit  or to pay for health insurance in retirement, at a rate
   17  in excess of the rate permitted to managerial/confidential employees  of
   18  the state pursuant to regulations of the state civil service commission.
   19  In addition to the payment of [supplementary] salary, a board of cooper-
   20  ative  educational  services  may  provide  for  the payment of all or a
   21  portion of the cost of insurance benefits for the  district  superinten-
   22  dent of schools, including but not limited to health insurance, disabil-
   23  ity  insurance,  life  insurance  or any other form of insurance benefit
   24  made  available  to  managerial/confidential  employees  of  the  state;
   25  provided  that  any  such payments for whole life, split dollar or other
   26  life insurance policies having a cash value shall  be  included  in  the
   27  total salary of the district superintendent for purposes of this subpar-
   28  agraph, and provided further that any payments for the employee contrib-
   29  ution,  co-pay  or  uncovered  medical expenses under a health insurance
   30  plan also shall be included in the total salary of the  district  super-
   31  intendent. Notwithstanding any other provision of law, payments for such
   32  insurance  benefits  may be based on the district superintendent's total
   33  salary [or the amount of his or  her  supplementary  salary  only].  Any
   34  payments  for  transportation  or  travel  expenses in excess of actual,
   35  documented expenses incurred in the performance of duties for the  board
   36  of  cooperative  educational services [or the state], and any other lump
   37  sum payment not specifically excluded from total salary pursuant to this
   38  subparagraph, shall be included in the  total  salary  of  the  district
   39  superintendent  for purposes of this subparagraph.  Nothing herein shall
   40  prohibit a district superintendent from waiving any rights provided  for
   41  in an existing contract or agreement as hereafter prohibited in favor of
   42  revised  compensation  or  benefit provisions as permitted herein. In no
   43  event shall the terms of the district superintendent's contract, includ-
   44  ing any provisions relating to an increase in  salary,  compensation  or
   45  other  benefits, be contingent upon the terms of any contract or collec-
   46  tive bargaining agreement between the board of  cooperative  educational
   47  services and its teachers or other employees. The commissioner may adopt
   48  regulations for the purpose of implementing the provisions of this para-
   49  graph.
   50    §  8.  Section  2209 of the education law, subdivision 1 as amended by
   51  chapter 295 of the laws of 1993, is amended to read as follows:
   52    § 2209. Salary of district superintendent. [1.  Each  district  super-
   53  intendent  shall  receive an annual salary from the state of forty-three
   54  thousand four hundred ninety-nine dollars, payable by  the  commissioner
   55  of  education  from  moneys appropriated therefor, and in no event shall
       S. 1407                            92                            A. 2107
 
    1  any moneys in excess of such amount be paid  for  such  salaries  unless
    2  this section is amended or explicitly notwithstood.
    3    2.]  The  supervisors  of the towns composing any supervisory district
    4  may by adopting a resolution by a majority vote increase the  salary  to
    5  be  paid by such district to its district superintendent.  Such supervi-
    6  sors must thereupon file with the clerk of the board  of  supervisors  a
    7  certificate  showing the amount of such increase.  The board of supervi-
    8  sors of each county shall levy such amount annually by tax on the  towns
    9  composing such supervisory district within the county.
   10    § 9. Section 2211 of the education law is REPEALED.
   11    §  10.   The opening paragraph and subdivisions 1, 2, 6, 8, 9, 10, 12,
   12  13, 14, 15 and 16 of section 2215 of the education law,  subdivisions  6
   13  and  8 as amended and subdivision 16 as added by chapter 474 of the laws
   14  of 1996, subdivision 12 as amended by chapter 310 of the laws  of  1962,
   15  subdivision 14 as amended by chapter 744 of the laws of 1952, and subdi-
   16  vision  15  as amended by chapter 57 of the laws of 1993, are amended to
   17  read as follows:
   18    A district superintendent of schools shall have power and it shall  be
   19  his  or  her  duty:  1.  To inquire from time to time into and ascertain
   20  whether the boundaries of the school districts within his or her  super-
   21  visory  district  are definitely and plainly described in the records of
   22  the office of the proper town clerk; to cause to be made  and  filed  in
   23  the  [education] department a record of such boundaries; and in case the
   24  record of the boundaries of any school district shall be  found  indefi-
   25  nite or defective, or if the same shall be in dispute, then to cause the
   26  same to be amended or an amended record of the boundaries to be made and
   27  filed  in  the  office  of  the proper town clerk and in the [education]
   28  department. All necessary expenses incurred in making  and  filing  such
   29  records  and  in  establishing such amended records shall be a charge on
   30  the district or districts affected, to be audited  and  allowed  by  the
   31  trustees thereof, on the certificate of the district superintendent.
   32    2.  To  assemble  all  the teachers of his or her district by towns or
   33  otherwise, for the purpose of conference on the  course  of  study,  for
   34  reports  of  and  advice  and  counsel in relation to discipline, school
   35  management and other school work, and for promoting the general good  of
   36  all  the  schools of the district. Teachers shall be entitled to compen-
   37  sation for days actually in attendance upon such conference.
   38    6. [At the direction of the commissioner, to] To direct  the  trustees
   39  of any district to abate any nuisance in or on the school grounds.
   40    8. [At the direction of the commissioner, to] To condemn a schoolhouse
   41  as provided in section four hundred twelve of this chapter.
   42    9.  To examine and license teachers pursuant to the provisions of this
   43  chapter. [He shall also conduct such other examinations as  the  commis-
   44  sioner of education shall direct.]
   45    10. To examine any charge affecting the moral character of any teacher
   46  residing  or  employed  within  his  or her district, and to revoke such
   47  teachers' certificate as provided by section three thousand eighteen  of
   48  this chapter.
   49    12.  To  take  and  report to the commissioner [of education under the
   50  direction of such commissioner] testimony in a case on appeal. In such a
   51  case or in any matter or proceeding to be heard  or  determined  by  the
   52  district  superintendent,  he  or she may issue a subpoena to compel the
   53  attendance of a witness. A subpoena issued under this section  shall  be
   54  regulated by the civil practice law and rules.
   55    13. To exercise in his or her discretion any of the powers and perform
   56  any  of  the  duties  of  another district superintendent on the written
       S. 1407                            93                            A. 2107
 
    1  request of such other superintendent[, and he must exercise such  powers
    2  and  perform  such  duties when directed to do so by the commissioner of
    3  education].
    4    14.  To  make  such  investigations  and  to  make such reports to the
    5  commissioner [of education] upon any matter or act [as said commissioner
    6  shall from time to time request] as appropriate.  He or she  shall  make
    7  an  annual  report  on  the first day of August [in such form and giving
    8  such information as] to the commissioner [of education shall require].
    9    15. To participate in  the  permanent  computerized  statewide  school
   10  district  address  match  and  income verification system as provided in
   11  section one hundred seventy-one of the tax law, and  cooperative  agree-
   12  ment pursuant thereto [and as directed by the commissioner].
   13    16. To report to the commissioner [under the direction of such commis-
   14  sioner]  on  cost-effective  practices as defined in section two hundred
   15  fifteen-c of this chapter in school districts within his or her supervi-
   16  sory district.
   17    § 11. Paragraph d of subdivision 3 of section 233-a of the county law,
   18  as added by chapter 593 of the laws of  1950,  is  amended  to  read  as
   19  follows:
   20    d. Increase of salary of a district superintendent of schools pursuant
   21  to [subdivision two of] section twenty-two hundred nine of the education
   22  law.  A  tax  so  levied  upon  property in a town shall be treated as a
   23  purpose of and a charge against such town.
   24    § 12. Transition of the  board  of  regents.  1.  Notwithstanding  any
   25  inconsistent  provision  of  law  to the contrary, the board established
   26  pursuant to subdivision 1 of section 202 of the education law  as  added
   27  by  section  one of this act is hereby authorized to exercise the powers
   28  of such board if at least ten members have been appointed to the  board,
   29  and  such board may take any action which the board is otherwise author-
   30  ized to take upon a favorable vote of a majority of  the  board  members
   31  present at the meeting at which such action is taken.
   32    2.  The terms of office of all members serving on the board of regents
   33  on the effective date of this act shall be deemed terminated on the date
   34  on which the members of the board who have been  appointed  pursuant  to
   35  section one of this act hold the first meeting of such board to exercise
   36  the  board's  powers to take actions as authorized in subdivision one of
   37  this section.
   38    3. The provisions of this section shall expire  and  shall  be  deemed
   39  repealed upon the appointment of all eighteen members of the board.
   40    §  13.   This act shall take effect immediately and shall be deemed to
   41  have been in full force and effect on and after April 1, 2003.
         REPEAL NOTES.--Subdivision 1 of section  202  of  the  education  law,
       proposed  to  be  repealed  by  this  act,  prescribes the number of the
       members of the board of regents and the process for their selection.
         Subdivision 5 of section 202 of the  education  law,  proposed  to  be
       repealed  by  this  act, provides for financial disclosure statements by
       members of the board of regents.
         Section 2211 of the education law, proposed to  be  repealed  by  this
       act,  authorizes  the  education  commissioner to withhold the salary of
       superintendents for dereliction of duty.
 
   42                                   Part F
 
   43    Section 1. Subdivision 3 of section 667 of the education law, as added
   44  by chapter 83 of the laws of 1995, paragraph a as amended by  section  1
   45  of  part  B, clause (B) of subparagraph (i) of paragraph b as amended by
       S. 1407                            94                            A. 2107
 
    1  section 2 of part B, subparagraph (iv) of  paragraph  b  as  amended  by
    2  section 3 of part B and clause (B) of subparagraph (i) of paragraph c as
    3  amended  by  section  4 of part B of chapter 60 of the laws of 2000, and
    4  paragraph b as amended by chapter 309 of the laws of 1996, is amended to
    5  read as follows:
    6    3.  Tuition assistance program awards.  a. Amount. The president shall
    7  make awards to students  enrolled  in  degree-granting  institutions  or
    8  registered  not-for-profit  business schools qualified for tax exemption
    9  under § 501(c)(3) of the internal revenue code for  federal  income  tax
   10  purposes in the following amounts:
   11    (i) For each year of undergraduate study, assistance shall be provided
   12  as  computed  on  the  basis  of  the  amount which is the lesser of the
   13  following:
   14    (A) (1) In the case of students who have not been granted an exclusion
   15  of parental income or had a dependent for income tax purposes during the
   16  tax year next preceding the academic year for which application is made:
   17    (a) For students first receiving aid after  nineteen  hundred  ninety-
   18  three--nineteen  hundred  ninety-four and before two thousand--two thou-
   19  sand one, four thousand one hundred twenty-five dollars; or
   20    (b) For students first receiving aid in nineteen hundred ninety-three-
   21  -nineteen hundred ninety-four or earlier, three  thousand  five  hundred
   22  seventy-five dollars; or
   23    (c)  For students first receiving aid in [the] two thousand--two thou-
   24  sand one and thereafter, five thousand dollars.
   25    (2) In the case of students receiving awards pursuant to  subparagraph
   26  (iii) of this paragraph.
   27    (a)  For  students first receiving aid in nineteen hundred ninety-four
   28  --nineteen hundred ninety-five and nineteen  hundred  ninety-five--nine-
   29  teen  hundred  ninety-six  and  thereafter,  three  thousand twenty-five
   30  dollars, or
   31    (b) For students first receiving aid in nineteen hundred  ninety-two--
   32  nineteen  hundred  ninety-three and nineteen hundred ninety-three--nine-
   33  teen  hundred  ninety-four,  two  thousand  five  hundred   seventy-five
   34  dollars, or
   35    (c)  For students first receiving aid in nineteen hundred ninety-one--
   36  nineteen hundred ninety-two or earlier, two thousand four hundred  fifty
   37  dollars; or
   38    (B)  (1)  Ninety-five  percent  of the amount of tuition (exclusive of
   39  educational fees) charged and, if applicable, the college fee levied  by
   40  the  state  university of New York pursuant to the April first, nineteen
   41  hundred sixty-four financing agreement with the New York state dormitory
   42  authority.
   43    (2) For the two thousand one--two thousand two academic year and ther-
   44  eafter one hundred percent of the amount of tuition (exclusive of educa-
   45  tional fees) charged and, if applicable, the college fee levied  by  the
   46  state  university  of  New  York  pursuant  to the April first, nineteen
   47  hundred sixty-four financing agreement, as  subsequently  amended,  with
   48  the New York state dormitory authority.
   49    (ii)  Except for students as noted in subparagraph (iii) of this para-
   50  graph, the base amount as determined from subparagraph (i) of this para-
   51  graph, shall be reduced in relation to income as follows:
 
   52  Amount of income                    Schedule of reduction
   53                                      of base amount
 
   54  (A) Less than seven thousand        None
       S. 1407                            95                            A. 2107
 
    1      dollars
    2  (B) Seven thousand dollars or       Seven per centum of excess
    3      more, but less than eleven      over seven thousand dollars
    4      thousand dollars
    5  (C) Eleven thousand dollars or      Two hundred eighty dollars
    6      more, but less than eighteen    plus ten per centum of excess
    7      thousand dollars                over eleven thousand dollars
    8  (D) Eighteen thousand dollars or    Nine hundred eighty dollars
    9      more, but not more than eighty  plus twelve per centum of
   10      thousand dollars                excess over eighteen
   11                                      thousand dollars
 
   12    (iii)  For students who have been granted exclusion of parental income
   13  and were single with no dependent for income tax purposes during the tax
   14  year next preceding the academic year for which application is made, the
   15  base amount, as determined in subparagraph (i) of this paragraph,  shall
   16  be reduced in relation to income as follows:
 
   17  Amount of income                    Schedule of reduction
   18                                      of base amount
 
   19  (A) Less than three thousand        None
   20      dollars
   21  (B) Three thousand dollars or       Thirty-one per centum of
   22      more, but not more than ten     amount in excess of three
   23      thousand dollars                thousand dollars
 
   24    (iv)  If  the  amount  of reduction is not a whole dollar, it shall be
   25  reduced to the next lowest whole dollar. In the case of any student  who
   26  has  received  four  or  more  payments  pursuant  to any and all awards
   27  provided for in this subdivision, for the two thousand--two thousand one
   28  academic year the base amount shall be  reduced  by  an  additional  one
   29  hundred fifty dollars for the two thousand one--two thousand two academ-
   30  ic year and thereafter the base amount shall be reduced by an additional
   31  one hundred dollars.
   32    (v)  The  award  shall be the net amount of the base amount determined
   33  pursuant to subparagraph (i)  of  this  paragraph  reduced  pursuant  to
   34  subparagraph  (ii) or (iii) of this paragraph but the award shall not be
   35  reduced for the two thousand--two thousand one and two thousand one--two
   36  thousand two academic years below two hundred  seventy-five  dollars  if
   37  the  amount  of  income is eighty thousand dollars or less and more than
   38  seventy thousand dollars,  three  hundred  twenty-five  dollars  if  the
   39  amount of income is seventy thousand dollars or less and more than sixty
   40  thousand  dollars  and four hundred twenty-five dollars if the amount of
   41  income is sixty thousand dollars or less.
   42    (vi) For the two thousand two--two thousand three  academic  year  and
   43  thereafter,  the award shall be the net amount of the base amount deter-
   44  mined pursuant to subparagraph (i) of this paragraph reduced pursuant to
   45  subparagraph (ii) or (iii) of this paragraph but the award shall not  be
   46  reduced below five hundred dollars.
   47    (vii)  The  awards  as determined pursuant to subparagraphs (i), (ii),
   48  (iii) and (iv) of this paragraph as adjusted  pursuant  to  subparagraph
   49  (vi) of this paragraph shall further be reduced by one-third to create a
   50  base award for supplementation by a performance award.
   51    b. Amount. The president shall make awards to students enrolled in two
   52  year  programs offered in registered private business schools except for
       S. 1407                            96                            A. 2107
 
    1  registered not-for-profit business schools qualified for  tax  exemption
    2  under  section 501(c)(3) of the internal revenue code for federal income
    3  tax purposes in the following amounts:
    4    (i)  For  each year of study, assistance shall be provided as computed
    5  on the basis of the amount which is the lesser of the following:
    6    (A) (1) eight hundred dollars, or
    7    (2) for students receiving awards pursuant to  subparagraph  (iii)  of
    8  this paragraph, six hundred forty dollars; or
    9    (B)  (1)  Ninety-five  percent  of the amount of tuition (exclusive of
   10  educational fees) charged.
   11    (2) For the two thousand one--two thousand two academic year and ther-
   12  eafter one hundred percent of the amount of tuition (exclusive of educa-
   13  tional fees).
   14    (ii) Except for students as noted in subparagraph (iii) of this  para-
   15  graph,  the  base amount as determined in subparagraph (i) of this para-
   16  graph, shall be reduced in relation to income as follows:
 
   17  Amount of income                    Schedule of reduction
   18                                      of base amount
 
   19  (A) Less than seven thousand        None
   20      dollars
   21  (B) Seven thousand dollars or       Seven per centum of the excess
   22      more, but less than eleven       over seven thousand dollars
   23      thousand dollars
 
   24  (C) For students first receiving aid:
   25    (1) for the first time in academic years nineteen hundred eighty-nine-
   26  -nineteen hundred ninety, nineteen hundred ninety-two--nineteen  hundred
   27  ninety-three  and  nineteen hundred ninety-three--nineteen hundred nine-
   28  ty-four:
 
   29  Amount of income                    Schedule of reduction of
   30                                      base amount
 
   31  Eleven thousand dollars or          Two hundred eighty dollars plus
   32  more but not more than forty-       ten per centum of the excess
   33  two thousand five hundred           over eleven thousand dollars
   34  dollars
 
   35    (2) for the first time in academic  years  nineteen  hundred  ninety--
   36  nineteen   hundred  ninety-one,  nineteen  hundred  ninety-one--nineteen
   37  hundred ninety-two, nineteen hundred ninety-four--nineteen hundred nine-
   38  ty-five and thereafter:
 
   39  Amount of income                    Schedule of reduction of
   40                                      base amount
 
   41  Eleven thousand dollars or          Two hundred eighty dollars plus
   42  more but not more than fifty        ten per centum of the excess
   43  thousand five hundred               over eleven thousand dollars
   44  dollars
 
   45    (3) for the first time in academic years prior to academic year  nine-
   46  teen hundred eighty-nine--nineteen hundred ninety:
       S. 1407                            97                            A. 2107
 
    1  Amount of income                    Schedule of reduction of
    2                                      base amount
 
    3  Eleven thousand dollars or          Two hundred eighty dollars plus
    4  more but not more than thirty-      ten per centum of the excess over
    5  four thousand two hundred fifty     eleven thousand dollars
    6  dollars
 
    7    (iii)  For students who have been granted exclusion of parental income
    8  and were single with no dependent for income tax purposes during the tax
    9  year next preceding the academic year for which application is made, the
   10  base amount, as determined in subparagraph (i) of this paragraph,  shall
   11  be reduced in relation to income as follows:
 
   12  Amount of income                    Schedule of reduction of
   13                                      base amount
 
   14  (A) Less than three thousand        None
   15      dollars
   16  (B) Three thousand dollars or       Thirty-one per centum of the ex-
   17      more, but not more than ten     cess over three thousand dollars
   18      thousand dollars
 
   19    (iv)  If  the  amount  of reduction is not a whole dollar, it shall be
   20  reduced to the next lowest whole dollar. In the case of any student  who
   21  has  received  four  or  more  payments  pursuant  to any and all awards
   22  provided for in this subdivision, for the two thousand--two thousand one
   23  academic year the base amount shall be  reduced  by  an  additional  one
   24  hundred fifty dollars for the two thousand one--two thousand two academ-
   25  ic year and thereafter the base amount shall be reduced by an additional
   26  one hundred dollars.
   27    (v)  The  award  shall be the net amount of the base amount determined
   28  pursuant to subparagraph (i)  of  this  paragraph  reduced  pursuant  to
   29  subparagraph  (ii) or (iii) of this paragraph but the award shall not be
   30  reduced below one hundred dollars. If the  income  exceeds  the  maximum
   31  amount  of  income  allowable  under  subparagraph (ii) or (iii) of this
   32  paragraph, no award shall be made.
   33    (vi) The awards as determined pursuant  to  subparagraphs  (i),  (ii),
   34  (iii)  and  (iv)  of this paragraph as adjusted pursuant to subparagraph
   35  (v) of this paragraph shall further be reduced by one-third to create  a
   36  base award for supplementation by a performance award.
   37    c. Amount. The president shall make awards to graduate students in the
   38  following amounts:
   39    (i)  For  each year of graduate study, assistance shall be provided as
   40  computed on the basis of the amount which is the lesser of  the  follow-
   41  ing:
   42    (A) Five hundred fifty dollars; or
   43    (B)  (1)  Ninety-five  percent  of the amount of tuition (exclusive of
   44  [education] educational fees) charged.
   45    (2) For the two thousand one--two thousand two academic year and ther-
   46  eafter one hundred percent of the amount of tuition (exclusive of educa-
   47  tional fees).
   48    (ii) Except for students as noted in subparagraph (iii) of this  para-
   49  graph,  the  base amount as determined in subparagraph (i) of this para-
   50  graph, shall be reduced in relation to income as follows:
       S. 1407                            98                            A. 2107
 
    1  Amount of income                       Schedule of reduction of
    2                                         base amount
 
    3  (A) Less than two thousand             None
    4      dollars
    5  (B) Two thousand dollars or more,      Seven and seven-tenths
    6      but not more than twenty thou-     per centum of the excess over two
    7      sand dollars                       thousand dollars
 
    8    (iii)  For students who have been granted exclusion of parental income
    9  and were single with no dependent for income tax purposes during the tax
   10  year next preceding the academic year for which application is made, the
   11  base amount as determined in subparagraph (i) of this  paragraph,  shall
   12  be reduced in relation to income as follows:
 
   13  Amount of income                    Schedule of reduction
   14                                      of base amount
   15  (A) Less than one thousand          None
   16      dollars
   17  (B) One thousand dollars or         Twenty-six per centum of the excess
   18      more, but not more than five    over one thousand dollars
   19      thousand six hundred sixty-
   20      six dollars
 
   21    (iv)  If  the  amount  of reduction is not a whole dollar, it shall be
   22  reduced to the next lowest whole dollar.
   23    (v) The award shall be the net amount of the  base  amount  determined
   24  pursuant  to  subparagraph (ii) or (iii) of this paragraph but the award
   25  shall not be reduced below seventy-five dollars. If the  income  exceeds
   26  the  maximum amount of income allowable under subparagraph (ii) or (iii)
   27  of this paragraph, no award shall be made.
   28    d. Restrictions. In no [even shall] event shall any award:
   29    (i) be made unless the annual tuition (exclusive of educational  fees)
   30  and,  if  applicable,  the college fee levied by the state university of
   31  New York pursuant  to  the  April  first,  nineteen  hundred  sixty-four
   32  financing  agreement,  as  subsequently amended, with the New York state
   33  dormitory authority charged for the program  in  which  the  student  is
   34  enrolled total at least two hundred dollars; or
   35    (ii)  exceed  the  amount  by  which such annual tuition (exclusive of
   36  educational fees) and, if applicable, the  college  fee  levied  by  the
   37  state  university  of  New  York  pursuant  to the April first, nineteen
   38  hundred sixty-four financing agreement, as  subsequently  amended,  with
   39  the  New  York  state  dormitory authority exceed the total of all other
   40  state, federal, or other educational aid that is received or  receivable
   41  by  such student during the school year for which such award is applica-
   42  ble and that, in the judgment of the commissioner, would  duplicate  the
   43  purposes of the award; or
   44    (iii) be made when income exceeds the maximum income set forth in this
   45  subdivision.  The  commissioner  shall list in his regulations all major
   46  state and federal financial aid available to New York state students and
   47  identify any forms of aid that are duplicative of the  purposes  of  the
   48  tuition  assistance  program.  For  the  purposes  of  this subdivision,
   49  neither United States war orphan educational benefits nor benefits under
   50  the veterans' readjustment act of nineteen hundred  sixty-six  shall  be
   51  considered as federal or other educational aid.
       S. 1407                            99                            A. 2107
 
    1    §  2.  Section  667  of  the  education law is amended by adding a new
    2  subdivision 4 to read as follows:
    3    4.  Student  performance  award.    a.  An  undergraduate  student who
    4  completes an approved program as defined in section six hundred  one  of
    5  this  title  shall  be  eligible for a performance award. A "performance
    6  award" shall be defined as the aggregate amount  of  the  reductions  in
    7  awards applied pursuant to subparagraph (vii) of paragraph a and subpar-
    8  agraph  (vi) of paragraph b of subdivision three of this section and the
    9  interest (if any) accrued on any loans received by or on behalf  of  the
   10  undergraduate  student  under  Title  IV  of the Higher Education Act of
   11  1965, as amended, and this article for the  purpose  of  financing  such
   12  reductions in awards.
   13    b. Student performance awards will be made to eligible students certi-
   14  fied  by  the  institution of post-secondary education in a format to be
   15  prescribed by the president as meeting the requirement of paragraph a of
   16  this subdivision.
   17    c. The president shall  be  responsible  for  calculating  the  dollar
   18  amount  of  the  performance  award  for which a student is eligible and
   19  shall be responsible for all performance award payments. The  amount  of
   20  interest  paid  shall  not exceed the amount that would accrue on a loan
   21  that is repaid in a ten year repayment schedule.
   22    § 3. Subdivision 1 of section 680 of the education law is  amended  by
   23  adding a new paragraph d to read as follows:
   24    d.  To lend money or guarantee loans, consistent with applicable state
   25  law, and, upon such terms as the board may prescribe to persons who  are
   26  eligible  for  the tuition assistance loan program, to assist in meeting
   27  their post-secondary education tuition expenses.
   28    § 4. The education law is amended by adding a  new  section  680-a  to
   29  read as follows:
   30    §  680-a.  Tuition  assistance loan program.   1. Recipient qualifica-
   31  tions. The president shall make or guarantee  loans  to  a  student  who
   32  received  an award under section six hundred sixty-seven of this article
   33  upon demonstration that the student has received the maximum annual loan
   34  amount available under the federal guaranteed loan program or the feder-
   35  al direct loan program.
   36    2. Amount. The president shall make or  guarantee  loans  to  eligible
   37  students for the amount of the annual reduction in awards applied pursu-
   38  ant  to subparagraph (vii) of paragraph a and subparagraph (vi) of para-
   39  graph b of subdivision three of section six hundred sixty-seven of  this
   40  article  that  are  still  remaining after receipt of the maximum annual
   41  loan amounts available under the federal guaranteed loan program or  the
   42  federal direct loan program.
   43    3.  Repayment  of loan. Any loan made or guaranteed by the corporation
   44  pursuant to this section shall have the same  terms  and  conditions  as
   45  student  loans  under  Part B of Title IV of the Higher Education Act of
   46  1965, as amended, provided that the loan shall accrue  interest  at  the
   47  same rate as PLUS loans under Part B of Title IV of the Higher Education
   48  Act of 1965, as amended.
   49    §  5.  This act shall take effect April 1, 2003; provided, however, if
   50  this act shall become a law after such date it shall take  effect  imme-
   51  diately and shall be deemed to have been in full force and effect on and
   52  after  April 1, 2003 and shall apply to the academic years starting July
   53  1, 2003 and thereafter.
 
   54                                   Part G
       S. 1407                            100                           A. 2107
 
    1    Section 1. Subdivision 3 of section 333 of the real property  law,  as
    2  amended  by  chapter  259  of  the  laws  of 2002, is amended to read as
    3  follows:
    4    3.  The  recording  officer  of  every county and the city of New York
    5  shall impose a fee of [twenty-five] fifty dollars for every [sales] real
    6  property transfer reporting form submitted  for  recording  as  required
    7  under  subdivision  one-e  of  this section. The recording officer shall
    8  [return eighty-eight percent of the revenue collected]  remit  forty-one
    9  dollars  from  such  fee  to  the state office of real property services
   10  every month[. All revenue collected and returned to the state office  of
   11  real  property  services shall be deposited] for deposit in the improve-
   12  ment of real property tax administration account established pursuant to
   13  section ninety-seven-ll of the state finance law. The remainder  of  the
   14  revenue  collected shall be retained by the county or by the city of New
   15  York.
   16    § 2. Section 97-11 of the state finance law, as added by  chapter  166
   17  of  the  laws of 1991, subdivisions 2 and 3 as amended by chapter 385 of
   18  the laws of 1994, is amended to read as follows:
   19    § 97-ll. Improvement of real property tax administration  account.  1.
   20  There  is  hereby  established  in  the joint custody of the state comp-
   21  troller and the commissioner of taxation and finance [a] an  improvement
   22  of  real  property  tax  administration account within the miscellaneous
   23  special revenue fund.
   24    2. All revenue received by the state office of real property  services
   25  from the state share of a [real property sales] recording fee pertaining
   26  to the transfer of real property shall be deposited to the credit of the
   27  improvement of real property tax administration account.
   28    3.  Moneys  within the improvement of real property tax administration
   29  account, upon appropriation by the legislature, shall  be  available  to
   30  the state office of real property services for all services and expenses
   31  of the state office which relate to activities including, but not limit-
   32  ed  to,  preparation  and certification of state equalization rates, the
   33  administration of state technical  and  financial  assistance  to  local
   34  governments,  review  and certification of adjusted base proportions for
   35  special assessing units and approved assessing units pursuant  to  arti-
   36  cles  eighteen  and  nineteen of the real property tax law, the determi-
   37  nation of class equalization rates for portions within special assessing
   38  units and approved assessing units pursuant to  article  twelve  of  the
   39  real  property  tax  law,  continuance of the market value survey cycle,
   40  maintenance of effort in the  production  of  agricultural  lands  value
   41  assessments,  advisory  appraisals,  and  assessor  training and certif-
   42  ication.
   43    § 3. This act shall take effect April 1, 2003.
 
   44                                   Part H
 
   45    Section 1. Section 2 of chapter 540 of the laws of 1992, amending  the
   46  real  property  tax  law  relating to oil and gas charges, as amended by
   47  chapter 17 of the laws of 2000, is amended to read as follows:
   48    § 2. This act shall take effect immediately and  shall  be  deemed  to
   49  have been in full force and effect on and after April 1, 1992; provided,
   50  however that any charges imposed by section 593 of the real property tax
   51  law  as  added  by section one of this act shall first be due for values
   52  for assessment rolls with  tentative  completion  dates  after  July  1,
   53  1992[,  and  provided  further, that this act shall remain in full force
       S. 1407                            101                           A. 2107
 
    1  and effect until March 31, 2003 at which time section 593  of  the  real
    2  property tax law as added by section one of this act shall be repealed].
    3    §  2.  This  act  shall take effect immediately and shall be deemed to
    4  have been in full force and effect on and after March 31, 2003.
 
    5                                   PART I
 
    6    Section 1. Articles 21 and 23-A and section 4210 of the education  law
    7  are REPEALED.
    8    §  2.  The  labor law is amended by adding a new article 32 to read as
    9  follows:
 
   10                                 ARTICLE 32
   11                          VOCATIONAL REHABILITATION
 
   12  Section 1000. Definitions.
   13          1001. Application for vocational rehabilitation.
   14          1002. Powers and duties of the department.
   15          1003. Sheltered workshops for the  mentally  retarded,  mentally
   16                   ill and severely physically handicapped.
   17          1004. Integrated  employment  opportunities for individuals with
   18                  severe disabilities.
   19          1005. Gifts and donations.
   20          1006. Acceptance of law of the United States.
   21          1007. Vocational rehabilitation records.
   22          1008. Use of appropriations.
   23          1009. Powers and duties of the department relating to vocational
   24                  rehabilitation of blind persons.
   25          1010. Aid for blind and deaf students.
   26    § 1000. Definitions. As used in this article:
   27    1. "Handicapped person" means any person who in the  judgment  of  the
   28  department  is under a physical or mental disability which constitutes a
   29  substantial handicap to employment but which is of such  a  nature  that
   30  vocational  rehabilitation services may reasonably be expected to render
   31  him or her fit to engage in gainful  employment,  and  also  any  person
   32  under  a  physical  or mental disability which constitutes a substantial
   33  handicap to employment and for whom vocational  rehabilitation  services
   34  are necessary to ascertain his or her rehabilitation potential.
   35    2.  "Person  who  is  under  a physical or mental disability" means an
   36  individual who has a physical or mental condition which in the  judgment
   37  of the department limits, contributes to limiting, or, if not corrected,
   38  will result in limiting his or her activities or functioning.
   39    3.  "Substantial  handicap  to  employment"  means  that a physical or
   40  mental disability (in the light  of  attendant  medical,  psychological,
   41  vocational,  educational,  cultural,  social  or  environmental factors)
   42  impedes an individual's occupational performance, by preventing  his  or
   43  her obtaining, retaining, or preparing for a gainful occupation consist-
   44  ent with his or her capacities and abilities.
   45    4.  "Gainful  occupation"  includes any employment for which a compen-
   46  sation is paid either in goods and/or in services; practice of a profes-
   47  sion; self-employment; homemaking, farm or family work  (including  work
   48  for which payment is in kind rather than in cash); sheltered employment;
   49  and home industries or other gainful homebound work.
   50    5. "Vocational rehabilitation services" means:
   51    (a)  Any  goods  and services necessary to render a handicapped person
   52  fit to engage in a gainful occupation and includes:
       S. 1407                            102                           A. 2107
 
    1    (1) Evaluation, including diagnostic and related services;
    2    (2) Counseling and guidance;
    3    (3) Training;
    4    (4) Placement;
    5    (5)  Reader  service  where necessary for individuals who are visually
    6  handicapped and interpreter services in the case of individuals who  are
    7  deaf;
    8    (6) Attendants and amanuenses where required;
    9    (7) Occupational and business licenses;
   10    (8) Books, training supplies and fees;
   11    (9) Transportation;
   12    (10) Physical restoration services;
   13    (11)  Maintenance  payments to cover the handicapped person's expenses
   14  essential to achievement of his or her vocational rehabilitation  objec-
   15  tive;
   16    (12) Tools, equipment, initial stocks and supplies;
   17    (13)  Training  allowances  which may be paid to individuals receiving
   18  training and related services in public and other workshops and rehabil-
   19  itation facilities to the extent that funds may be  made  available  for
   20  this purpose;
   21    (14)  Other  goods  and  services, not enumerated in this subdivision,
   22  necessary to render a handicapped person fit  to  engage  in  a  gainful
   23  occupation.
   24    (b)  The  establishment  of  rehabilitation facilities for handicapped
   25  persons; the establishment of workshops for  the  severely  handicapped;
   26  and the staffing of workshops for the severely handicapped so that work-
   27  shops may be established, extended, improved or continued.
   28    6.  "Physical  restoration  services" mean those medical and medically
   29  related services which are necessary to correct or substantially  modify
   30  within  a reasonable period of time a physical or mental condition which
   31  is stable or slowly progressive  and  which  constitutes  a  substantial
   32  handicap to employment, and includes, but is not limited to:
   33    (a) corrective surgery or therapeutic treatment;
   34    (b)  necessary hospitalization in connection with surgery or treatment
   35  specified in paragraph (a) of this subdivision;
   36    (c) prosthetic devices essential to obtaining or retaining employment;
   37  and
   38    (d) other necessary medical or medically related services.
   39    7. "Rehabilitation facility" means a facility, operated for the  prin-
   40  cipal  purpose of assisting in the rehabilitation of handicapped persons
   41  and
   42    (a) provides one or more than one of the following types of services:
   43    (1) prevocational or conditioning therapy;
   44    (2) adjustment training;
   45    (3) testing, fitting or training in the use of prosthetic devices;
   46    (4) physical or occupational therapy;
   47    (5) evaluation, treatment or control of special disabilities; or
   48    (b) through which  is  provided  an  integrated  program  of  medical,
   49  psychological,  social  and  vocational  evaluation  and  services under
   50  appropriate professional supervision, provided that the major portion of
   51  such evaluation and services is furnished within the facility, and  that
   52  all  medical and related health services are prescribed by and are under
   53  the supervision of persons licensed to practice medicine in the state.
   54    8. "Workshop" means a place where  any  manufacture  or  handiwork  is
   55  carried  on and which is operated for the principal purpose of providing
   56  gainful employment to severely handicapped persons  (a)  as  an  interim
       S. 1407                            103                           A. 2107
 
    1  step  in  the rehabilitation process for those who cannot be absorbed in
    2  the competitive labor market; or (b)  during  such  time  as  employment
    3  opportunities for them in the competitive labor market do not exist.
    4    9. "Establishment of a workshop" or "rehabilitation facility" means:
    5    (a)  In  the  case of a workshop, the expansion, remodeling, or alter-
    6  ation of existing buildings, necessary to adapt such buildings to  work-
    7  shop  purposes or to increase the employment opportunities in workshops,
    8  and the acquisition of initial equipment necessary for new workshops  or
    9  to increase the employment opportunities in workshops; and
   10    (b)  In the case of a rehabilitation facility, the expansion, remodel-
   11  ing, or alteration of existing buildings, and initial equipment of  such
   12  buildings,  necessary to adapt such buildings to rehabilitation facility
   13  purposes or to  increase  their  effectiveness  for  such  purposes  and
   14  initial staffing thereof for a period not exceeding one year.
   15    10.  With  respect to the construction of workshops and rehabilitation
   16  facilities, the following definitions shall apply:
   17    (a) "Construction" includes construction of new buildings, acquisition
   18  of existing buildings, and expansion, remodeling, alteration, and  reno-
   19  vation  of  existing buildings, and initial equipment of such new, newly
   20  acquired, expanded, remodeled, altered or renovated buildings;
   21    (b) The "cost" of construction may include  the  cost  of  architects'
   22  fees  and  acquisition of land in connection with construction, but does
   23  not include the cost of offsite improvements.
   24    (c) A "project for construction of a workshop" may include  provisions
   25  for residential accommodations to be used by and in conjunction with the
   26  rehabilitation  of categories of handicapped individuals as may be here-
   27  after designated.
   28    11. "Supported employment" means paid competitive  work  performed  by
   29  individuals  with  severe  disabilities  who  require  intensive support
   30  services to obtain such employment and extended support to sustain  such
   31  employment,  and  which  is  performed  in  an  integrated setting which
   32  provides regular interactions with individuals who do not have disabili-
   33  ties, other than paid caregivers.
   34    12. "Supported employment services" means support services  needed  by
   35  individuals  with  severe  disabilities  to obtain and sustain supported
   36  employment.  Such  term  shall  also  include  transitional   employment
   37  services  for  individuals with severe and persistent mental illness, as
   38  defined by the commissioner in consultation with the commissioner of the
   39  office of mental health.
   40    13. "Paid competitive work", as used in the  definition  of  supported
   41  employment  pursuant  to  subdivision  eleven of this section means work
   42  that is performed on a full-time or  part-time  basis,  with  a  minimum
   43  expectation of averaging at least twenty hours per week as an employment
   44  goal,  except  that such requirement may be waived for good cause by the
   45  commissioner, and for which an individual is compensated  in  accordance
   46  with  the federal fair labor standards act and state wage and hour regu-
   47  lations.
   48    14. "Individuals with severe  disabilities"  means  persons  for  whom
   49  competitive employment has either not traditionally occurred or has been
   50  interrupted  or  intermittent  as  a  result  of  having a permanent and
   51  substantially disabling physical, sensory, or mental condition.
   52    § 1001. Application for vocational rehabilitation. 1. Any  handicapped
   53  person available for vocational rehabilitation services may apply to the
   54  department  for  advice  and  assistance regarding his or her vocational
   55  rehabilitation.
       S. 1407                            104                           A. 2107
 
    1    2. The state may, to the extent that funds are made available pursuant
    2  to the federal social security act,  furnish  vocational  rehabilitation
    3  services  to  applicants  for  and  beneficiaries of disability benefits
    4  under the social security act as provided in such act and any  rules  or
    5  regulations adopted pursuant thereto.
    6    §  1002.  Powers  and  duties of the department.  The department shall
    7  have the responsibility of and is hereby authorized:
    8    1. To adopt and promulgate such rules and regulations  and  take  such
    9  action as may be necessary to carry out the provisions of this article.
   10    2.  To  provide vocational rehabilitation services directly or through
   11  public or private instrumentalities for handicapped  persons  (excepting
   12  blind  persons and, with respect to physical restoration services, those
   13  persons who are entitled to  such  services  pursuant  to  the  workers'
   14  compensation  law  and  the  volunteer  firefighters' benefit law) whose
   15  vocational rehabilitation the department determines after full  investi-
   16  gation  may  be  satisfactorily  achieved. In the course of its investi-
   17  gation of an individual applicant's vocational rehabilitation  potential
   18  the  department  may  conduct  an  extended evaluation program including
   19  utilization of such  vocational  rehabilitation  services  as  it  deems
   20  necessary.
   21    3.  To  enter  into reciprocal agreements with other states to provide
   22  for the vocational rehabilitation of handicapped persons.
   23    4. To engage in and contract  for  the  making  of  studies,  investi-
   24  gations,  demonstrations,  research  and  reports,  and the provision of
   25  training and instruction (including the establishment and maintenance of
   26  fellowships and traineeships with such stipends and allowances as may be
   27  deemed necessary) the assessment of existing facilities and services and
   28  the evaluation of present and future requirements, including  plans  for
   29  the purposes enumerated above in matters relating to vocational rehabil-
   30  itation.
   31    5.  To  arrange  and  pay  part of the cost of projects leading to the
   32  construction of workshops and rehabilitation facilities and  the  exten-
   33  sion  and  improvement or the establishment of vocational rehabilitation
   34  services for handicapped persons, including the furnishing of  equipment
   35  or  the  furnishing of funds for the purchase of equipment and supplies,
   36  personnel and other necessary and proper expenses in  the  construction,
   37  establishment,  improvement, continuation or extension of rehabilitation
   38  facilities and workshops.
   39    6. To cooperate in the operation of this article with the state agency
   40  or agencies administering the state's public assistance  program,  work-
   41  ers'  compensation  program,  the departments of health, mental hygiene,
   42  the federal agencies charged with  the  administration  of  the  federal
   43  social  security  act  and the federal fair labor standards act or other
   44  appropriate federal legislation and with other public and private  agen-
   45  cies  providing  services  related  to vocational rehabilitation, making
   46  maximum feasible utilization of the job placement and  employment  coun-
   47  seling  services  and other services and facilities of such offices, and
   48  to issue such certifications as are required or indicated thereby.
   49    7. Within its discretion, to consider financial  need  of  handicapped
   50  individuals  for the purposes of determining the extent of their respec-
   51  tive participation in the costs of  vocational  rehabilitation  services
   52  and to promulgate rules and regulations establishing financial need as a
   53  condition  to the availability of any of the services specified in para-
   54  graph (a) of subdivision five of section one thousand  of  this  article
   55  except  that  no  economic  need test will be applied as a condition for
   56  furnishing the following vocational rehabilitation services: (a)  evalu-
       S. 1407                            105                           A. 2107
 
    1  ation,  including  diagnostic  and  related services; (b) counseling and
    2  guidance; and (c) placement.
    3    8.  To  supervise  and  monitor service centers for independent living
    4  pursuant to section one thousand forty-two of this chapter.
    5    9. To contract with  organizations  for  the  provision  of  supported
    6  employment  services,  as  defined  in subdivision twelve of section one
    7  thousand of this article,  to  individuals  having  severe  disabilities
    8  defined  in subdivision fourteen of section one thousand of this article
    9  in integrated work settings. The commissioner shall  ensure  that  funds
   10  provided  pursuant to this subdivision are not used for the provision of
   11  services that are the responsibility of other state agencies pursuant to
   12  the plan developed pursuant to subdivision two of section  one  thousand
   13  four of this article. Services shall be provided at a cost not to exceed
   14  that  which  is  necessary  and reasonable, and shall include short-term
   15  intensive and extended support  mechanisms  within  an  integrated  work
   16  setting.  The  commissioner  shall  require service providers to develop
   17  appropriate  policies  and  procedures  for  directing  their  supported
   18  employment  programs,  and  to  provide such reports as the commissioner
   19  deems to be appropriate.
   20    § 1003. Sheltered workshops for the mentally  retarded,  mentally  ill
   21  and severely physically handicapped. 1.  The conditions of mental retar-
   22  dation,  mental  illness and severe physical handicap are such that many
   23  young people, after laborious training in  the  schools  and  otherwise,
   24  reach  the  point in their lives where they can and should, under proper
   25  and continued guidance, engage in sheltered employment. The  effects  of
   26  such  employment  are salutary in many ways.  The affected individual is
   27  helped to become a contributing member of society. The  state  is  saved
   28  the  expense  of  his or her institutionalization in already overcrowded
   29  state schools and facilities. The family retains closer contact with him
   30  or her and is spared the anxieties naturally attaching to separation and
   31  institutionalization. All of these  factors  have  also  been  shown  to
   32  reflect  tangible  benefit  upon the mentally retarded, mentally ill and
   33  severely physically handicapped person in improving his or  her  overall
   34  condition.  The purpose of this measure is to specifically encourage the
   35  development, improvement and  expansion  of  such  sheltered  employment
   36  facilities,  so  that  the salutary effects mentioned can be expediently
   37  accomplished.
   38    2. Special provisions relating to mentally retarded, mentally ill  and
   39  severely physically handicapped persons in extended sheltered employment
   40  in  workshops. Notwithstanding any other provision of this article, when
   41  it shall appear to the satisfaction of the department  that  a  mentally
   42  retarded,  mentally  ill  or severely physically handicapped person over
   43  the chronological age of seventeen years can reasonably be  expected  to
   44  benefit  from,  or  in  his  or  her  best interests reasonably requires
   45  extended sheltered employment in a workshop as  defined  in  subdivision
   46  eight  of section one thousand of this article, furnished by an approved
   47  organization, the department is authorized to contract with such  organ-
   48  ization for the furnishing of such sheltered employment to such mentally
   49  retarded,  mentally  ill  or severely physically handicapped person; and
   50  the department is further authorized to expend for such purpose a sum or
   51  sums not less than one thousand five hundred dollars per annum for  each
   52  such  mentally retarded, mentally ill or severely physically handicapped
   53  person, for or towards the cost of providing such  sheltered  employment
   54  for  each  such  mentally  retarded, mentally ill or severely physically
   55  handicapped person.
       S. 1407                            106                           A. 2107
 
    1    The department shall pay at least quarterly during  the  state  fiscal
    2  year  such  sums  as are authorized to such organizations for such shel-
    3  tered employment immediately  upon  the  completion  of  evaluation  and
    4  personal adjustment services under the sponsorship of the department.
    5    3.  The  department  shall  maintain  a register of such organizations
    6  which, after inspection  of  the  facilities  for  sheltered  employment
    7  provided  by them, it deems qualified to meet the needs of such mentally
    8  retarded, mentally ill and severely physically handicapped persons. Such
    9  inspection shall also determine the eligibility of such organization  to
   10  receive the funds hereinbefore specified.
   11    4.  The  department  is authorized to contract with such organizations
   12  for the provision of vocational rehabilitation services  which  lead  to
   13  sheltered employment.
   14    5. The department shall assure that individuals in long-term sheltered
   15  employment  are  periodically  reviewed  to determine the feasibility of
   16  their  employment,  or  training  for  employment,  in  integrated  work
   17  settings and that maximum efforts toward such employment occur, whenever
   18  it is determined to be feasible.
   19    6.  The commissioner is authorized to promulgate such reasonable rules
   20  and regulations as he or she may deem necessary or proper to  carry  out
   21  the provisions of this section.
   22    §  1004.  Integrated  employment  opportunities  for  individuals with
   23  severe disabilities.  1. The department shall have the responsibility to
   24  stimulate the development of programs intended to furnish  opportunities
   25  for  integrated  employment  including,  but  not  limited to, supported
   26  employment and paid competitive work, to individuals with  severe  disa-
   27  bilities, and to coordinate with state agencies responsible for furnish-
   28  ing  necessary  services to individuals with severe disabilities related
   29  to such opportunities.
   30    2. (a) The commissioner, in consultation with and with  the  agreement
   31  of  the  commissioners  of  the  office  of mental health, the office of
   32  mental retardation and developmental  disabilities  and  the  office  of
   33  temporary  and  disability  assistance shall develop a state interagency
   34  plan for the implementation of integrated employment  opportunities  for
   35  individuals  with  severe  disabilities, including supported employment.
   36  Such plan shall be designed so as to ensure that the state's  integrated
   37  employment  efforts,  including  the  supported  employment program, are
   38  planned, developed  and  implemented  comprehensively,  with  roles  and
   39  responsibilities  of  the  respective  agencies  well-defined. Such plan
   40  shall reflect the department's primary responsibility for  the  develop-
   41  ment  of integrated employment opportunities for individuals with severe
   42  disabilities, including short-term and  intensive  supported  employment
   43  services, as well as appropriate responsibilities for long term extended
   44  support  services. Such plan shall specify the role and responsibilities
   45  of each such agency in assuring that:
   46    (1) services are provided fully and equitably;
   47    (2) an array of services is established and appropriate procedures are
   48  developed to allow persons with severe  disabilities  timely  access  to
   49  appropriate support services;
   50    (3)  compatible  definitions, program evaluation and accounting stand-
   51  ards and reporting documents are implemented;
   52    (4) services and eligibility requirements are integrated  and  coordi-
   53  nated  between  agencies,  including  the  manner  in  which appropriate
   54  responsibilities for funding and administering both short-term intensive
   55  and long-term extended support services for supported employment are  to
   56  be implemented;
       S. 1407                            107                           A. 2107
 
    1    (5)  funding  sources  are clearly defined and amounts are adequate to
    2  support persons with short-term intensive and long-term extended support
    3  needs;
    4    (6)  all  necessary  steps  are taken to maximize the success and cost
    5  effectiveness of such programs and the potential of  persons  served  by
    6  such programs;
    7    (7)  continuity  of  support  services  is  not broken for individuals
    8  placed in an integrated employment setting in the event  such  placement
    9  is interrupted; and
   10    (8)  eligibility  standards  are consistent regarding the placement of
   11  individuals in integrated work settings, including supported  employment
   12  and other competitive work placements.
   13    (b)  In addition, the plan shall address the manner in which continued
   14  support for current  programs  will  be  maintained;  and  establishment
   15  grants  will  be  provided. Such establishment grants shall include, but
   16  not be limited to, special  projects  which  enhance  the  provision  of
   17  supported  employment  and new integrated employment program initiatives
   18  which would target individuals who have  severe  disabilities  who  have
   19  aged-out  or  have otherwise exited the school system. In addition, such
   20  grants may be used to provide additional resources to existing  programs
   21  for  the  purpose  of  increasing the numbers of persons served who have
   22  been determined by the commissioner to  have  been  unserved  or  under-
   23  served.  Such  grants  may also be used for new programs for these popu-
   24  lations.
   25    (c) The commissioner, in consultation with the  commissioners  of  the
   26  office  of  mental health, the office of mental retardation and develop-
   27  mental disabilities and the office of temporary and  disability  assist-
   28  ance,  shall  develop  an  audit  protocol to verify the actual costs of
   29  providing such programs.
   30    3. (a) It shall be the primary responsibility of the  commissioner  to
   31  provide  annual  reports  on the progress of achieving the components of
   32  the implementation plan as contained in subdivision two of this section.
   33  In addition, such reports shall include:
   34    (1) a current description of  individuals  served,  and  services  and
   35  technical assistance provided;
   36    (2)  employment  status  of  persons transitioned from sheltered work-
   37  shops, special  education  programs,  day  treatment  centers,  and  day
   38  services   programs   into  integrated  employment  programs,  including
   39  supported employment programs and other competitive work placements;
   40    (3) incidence of persons  in  reverse  transition  between  integrated
   41  employment  programs,  including  supported employment programs and paid
   42  competitive work, and sheltered workshops, day  treatment  programs  and
   43  day services programs; and
   44    (4)  number  of  persons  for  whom  employment  in an integrated work
   45  setting has been requested and who are waiting for placement.
   46    The commissioners of the office of mental health, the office of mental
   47  retardation and developmental disabilities, and the office of  temporary
   48  and  disability  assistance  shall  provide  any information required to
   49  assist the commissioner in making such report.
   50    (b) The implementation plan shall be transmitted to the governor,  the
   51  temporary  president  of the senate, the speaker of the assembly and the
   52  senate committee on finance, the assembly committee on ways  and  means,
   53  the  senate committee on labor and the assembly committee on labor on or
   54  before October first, two thousand three with a report on the status  of
   55  the  implementation  plan transmitted on or before October first of each
   56  succeeding year.
       S. 1407                            108                           A. 2107
 
    1    § 1005. Gifts and donations. The department is authorized to  receive,
    2  accept and use gifts and donations for the purpose of this article which
    3  may   be  offered,  conditionally  or  unconditionally,  notwithstanding
    4  section eleven of the state finance law or any other provision  of  law.
    5  All  money  received  as gifts or donations shall be paid to the commis-
    6  sioner of taxation and finance, who together with the state  comptroller
    7  is  hereby  constituted  and  appointed  the joint custodian thereof and
    8  shall constitute a special fund to be used under the  direction  of  the
    9  department  for  the purpose of this article.  A full report of all such
   10  gifts and donations, together with the names of the donors, the  amounts
   11  contributed  by  each and all disbursements therefrom shall be submitted
   12  annually to the legislature as part of the report of the department.
   13    § 1006. Acceptance of law of the United States.    The  state  of  New
   14  York, through its legislative authority:
   15    1.  Accepts  the  provisions of any law of the United States making an
   16  appropriation to be apportioned among the states for vocational rehabil-
   17  itation of disabled persons, and accepts the provisions of  any  law  of
   18  the  United  States  making an appropriation for apportionment or grants
   19  among the states for services for disabled persons.
   20    2. Empowers and directs the New York state board for vocational educa-
   21  tion, which shall be appointed by the commissioner,  to  cooperate  with
   22  such  agency  as the federal government shall designate to carry out the
   23  purposes of such law.
   24    3. Appoints the commissioner of taxation and  finance  and  the  state
   25  comptroller  as  joint custodians of all money given to the state by the
   26  United States under the authority of such law, and such money  shall  be
   27  paid  out  in  the  manner provided by such act for the purposes therein
   28  specified.
   29    § 1007. Vocational rehabilitation records. 1. It  shall  be  unlawful,
   30  except  for  purposes  directly connected with the administration of the
   31  vocational rehabilitation program, for any person or persons to solicit,
   32  disclose, receive, or make  use  of,  or  authorize,  knowingly  permit,
   33  participate  in, or acquiesce in the use of any list of, or names of, or
   34  any information concerning, persons applying for or receiving vocational
   35  rehabilitation, directly or indirectly derived from the record,  papers,
   36  files,  communications of the state or subdivisions or agencies thereof,
   37  or acquired in the course of the performance of official duties  without
   38  the  consent  of each such applicant or recipient. Such records, papers,
   39  files and communications shall be regarded as  confidential  information
   40  and  privileged within the meaning of section forty-five hundred four of
   41  the civil practice law and rules.
   42    2. Wage reporting information obtained by the office of vocational and
   43  educational services for individuals with disabilities of the department
   44  from the state department of taxation and finance pursuant  to  the  tax
   45  law  shall  be  considered  confidential  and  shall not be disclosed to
   46  persons or agencies other than those considered entitled to such  infor-
   47  mation  when  such disclosure is necessary for the proper administration
   48  of the department's vocational rehabilitation program.
   49    § 1008. Use of appropriations. Any appropriation made to carry out the
   50  provisions of this article, in addition to any moneys  allotted  to  the
   51  state  for  a similar purpose by the government of the United States may
   52  be used for the payment of salaries, travel, maintenance and  operation,
   53  and  other  administrative  expenses including the purchase of necessary
   54  office furniture, supplies, et cetera, the necessary costs  for  persons
   55  being  evaluated  for  or undergoing vocational rehabilitation including
   56  tuition, fees, books and other training supplies, maintenance and  trav-
       S. 1407                            109                           A. 2107
 
    1  eling  expenses,  occupational  examinations  and license fees, medical,
    2  psychiatric and psychological  examinations  and  other  diagnostic  and
    3  related  services,  tools  and  equipment,  initial stocks and supplies,
    4  surgical  fees,  hospitalization,  therapeutic  treatment and prosthetic
    5  appliances, the establishment and construction of public and other reha-
    6  bilitation facilities to provide services  for  handicapped  individuals
    7  and  the  establishment  and  construction of workshops for the severely
    8  handicapped, including the furnishing of equipment or the  providing  of
    9  grants  of  funds  to  rehabilitation  facilities  and  workshops  to be
   10  utilized for the acquisition of equipment, supplies, personnel and other
   11  necessary and proper items to be utilized in such facilities.
   12    § 1009. Powers and duties of the  department  relating  to  vocational
   13  rehabilitation  of  blind  persons. 1. The New York state commission for
   14  the blind and visually handicapped shall retain, and shall  continue  to
   15  exercise,  all the powers and duties relating to blind persons conferred
   16  on them by the provisions of any other law and shall become  a  part  of
   17  the department.
   18    2. The department is empowered to perform any and all acts that may be
   19  required  to be performed by it by any law of the United States in order
   20  to obtain funds through the New York state board for  vocational  educa-
   21  tion,  or  otherwise,  from any federal department or agency, for use in
   22  the vocational rehabilitation  of  blind  persons;  such  department  is
   23  further  empowered  to  use and expend such funds for the purpose herein
   24  mentioned in accordance with the provisions of any  law  of  the  United
   25  States making such funds available to the state.
   26    3.  (a)  Notwithstanding  any  inconsistent provision of this article,
   27  funds made available to the state by the United States to  be  used  for
   28  vocational rehabilitation of blind persons shall be accepted and used by
   29  the  state  for such purposes provided the department shall determine to
   30  accept and to use the same in accordance with the provisions of any  law
   31  of the United States.
   32    (b)  Provided  the  federal government shall make funds available, the
   33  department and its commission for the blind and visually handicapped are
   34  empowered to accept gifts for the extension and improvement  of  facili-
   35  ties and workshops for the training and rehabilitation of blind persons,
   36  and  to match the value of such gifts made to such department or commis-
   37  sion for such purposes by or on behalf of such facilities or  workshops.
   38  The  department  may  utilize  such  federal  funds  and  gifts for such
   39  purposes and may make  appropriate  agreements  therefor  with  suitable
   40  agencies serving the blind.
   41    §  1010.  Aid  for  blind or deaf students. 1. (a) Whenever a blind or
   42  deaf person, who is a citizen of this state  and  a  student  in  actual
   43  attendance  at  a college, university, technical or professional school,
   44  including agriculture and technical institutes and state  institutes  of
   45  applied  arts  and sciences, located in this state and authorized by law
   46  to grant degrees, other than an institution established for the  regular
   47  instruction  of  the  blind or deaf, shall be designated by the trustees
   48  thereof as a fit person to receive the  aid  hereinafter  provided  for,
   49  there  shall  be paid by the state for the use of such student a sum not
   50  to exceed one thousand dollars per  annum,  within  the  limits  of  the
   51  appropriation  therefor,  with  which  to employ persons to read to such
   52  blind student from textbooks and pamphlets used by such student  in  his
   53  or  her  studies at such college, university or school, or to aid a deaf
   54  student in receiving  instruction  in  such  studies.  In  case  such  a
   55  college,  university,  technical or professional school as will meet the
   56  needs or requirements of such a  student  is  not  located  within  this
       S. 1407                            110                           A. 2107
 
    1  state,  such  a  sum  shall  be  paid  by this state for the use of such
    2  student attending such a college, university, technical or  professional
    3  school which shall conform to the requirements of this section in anoth-
    4  er  state.  Such  a sum shall also be available to aid a deaf student in
    5  receiving instruction in a regularly approved institution for  the  deaf
    6  located  outside  of the state but within one hundred fifty miles of the
    7  borders thereof.
    8    (b) The trustees of any institution meeting the requirements  of  this
    9  section  shall  submit  reports  in  such  form  and  at  such  times as
   10  prescribed by the commissioner identifying the number of students eligi-
   11  ble to receive aid pursuant to this subdivision and shall  estimate  the
   12  funds  needed  to  support such students as provided herein. The commis-
   13  sioner shall advance twice during the school year to each such  institu-
   14  tion  such  estimated  amounts within the limits of the annual appropri-
   15  ation provided therefore.
   16    (c) At the conclusion of the academic year for which  such  funds  are
   17  provided,  each institution receiving funds pursuant to this subdivision
   18  shall submit to the commissioner a final accounting for the use of  such
   19  funds and shall return any unspent funds.
   20    2.  Such  moneys  shall  be  paid annually, after the beginning of the
   21  school year of such institution, by the  commissioner  of  taxation  and
   22  finance  on  the  warrant  of  the comptroller, to the treasurer of such
   23  institution, on his or her presenting  an  account  showing  the  actual
   24  number of blind or deaf students matriculated and attending the institu-
   25  tion,  which  account shall be verified by the president of the institu-
   26  tion and accompanied by his or her certificate that  the  trustees  have
   27  recommended the students named in said account as hereinbefore provided.
   28    3.  The  trustees  of  any of the said institutions shall recommend no
   29  blind or deaf person, who is not regularly matriculated, and who is  not
   30  in  good  and regular standing, and who is not working for a degree from
   31  the institution in which he or she is matriculated; and no blind or deaf
   32  person shall be  recommended,  who  is  not  doing  the  work  regularly
   33  prescribed  by  the  institution for the degree for which he or she is a
   34  candidate. The moneys so paid to any such institution shall be disbursed
   35  for the purposes aforesaid by and under the direction of  its  board  of
   36  trustees.
   37    §  3.  The  labor law is amended by adding a new article 33 to read as
   38  follows:
   39                                  ARTICLE 33
   40                   SERVICE CENTERS FOR INDEPENDENT LIVING
   41  Section 1040. Declaration of intent.
   42          1041. Service  centers  for  independent  living;  purpose   and
   43                  duties.
   44          1042. Labor department; responsibilities.
   45          1043. Regulations.
   46          1044. Distribution of funds.
   47    §  1040.  Declaration  of intent. Persons with disabilities comprise a
   48  large percentage of New York's total population. The legislature  hereby
   49  finds  and declares that action is necessary to assist these individuals
   50  to integrate and live more independently in the community.  Since  their
   51  inception,  service  centers  for  independent  living have enhanced the
   52  ability of persons with disabilities to pursue an independent and active
   53  lifestyle within their community. In order to achieve this, it is neces-
   54  sary for the state to  provide  funding  to  maintain  existing  service
   55  centers  designed  to  promote  independent  living and to encourage the
   56  establishment of new centers. In  addition,  the  office  of  vocational
       S. 1407                            111                           A. 2107
 
    1  rehabilitation  should  have  the  responsibility  and authority for the
    2  encouragement of the  planning,  development,  funding,  evaluation  and
    3  monitoring of such service centers.
    4    §  1041.  Service  centers for independent living; purpose and duties.
    5  1. A service center for independent living shall be  a  community  based
    6  non-residential  program  designed  to  promote  independent  living for
    7  persons with disabilities.
    8    (a) Such center shall:
    9    (1) be a corporation, provided, however, that persons  with  disabili-
   10  ties  comprise  at  least fifty-one percent of the board of directors of
   11  such corporation;
   12    (2) be staffed by persons experienced in assisting persons with  disa-
   13  bilities;
   14    (3)  provide services designed to meet the needs of persons with disa-
   15  bilities, including such services as assisting persons with disabilities
   16  to obtain housing, employment referral, transportation referral, attend-
   17  ant care, independent living skills, peer counseling, advocacy services,
   18  job training, health care, homemaker services, and other  such  services
   19  as approved by the commissioner;
   20    (4) train personnel for the purpose of attendant care in assisting and
   21  serving persons with disabilities; and
   22    (5) serve persons with disabilities.
   23    (b)  Such center may also, but need not limit itself to, provide disa-
   24  bility awareness programs, peer counseling, role modeling and any  other
   25  appropriate services within elementary and secondary schools.
   26    2.  Such  service  centers  shall  not be established or operated as a
   27  residential or housing facility.
   28    3. Such service centers shall make maximum use of  existing  resources
   29  available  to  persons  with  disabilities  and  shall not duplicate any
   30  existing services or programs, to  the  extent  that  such  services  or
   31  programs  are available through other state sources to meet the needs of
   32  persons with disabilities. Such centers shall however provide  necessary
   33  information and referral to assist a person with a disability in obtain-
   34  ing  such  services  and  coordinate where possible the delivery of such
   35  services to persons with disabilities.
   36    4. Such service centers shall be in  compliance  with  all  applicable
   37  local laws and ordinances.
   38    §  1042.  Labor  department;  responsibilities.  The  department shall
   39  assist individuals and organizations in the planning  and  establishment
   40  of  such  service  centers. The department shall ensure program account-
   41  ability and shall monitor and evaluate such centers.
   42    § 1043. Regulations. The commissioner shall promulgate rules and regu-
   43  lations necessary for the implementation of this article.
   44    § 1044. Distribution of funds.  1.  Service  centers  for  independent
   45  living shall be funded out of appropriations available for such purposes
   46  to the extent of the entire approved budget of such centers.
   47    2.  Budgets  submitted by service centers shall be approved in accord-
   48  ance with regulations of the commissioner, subject to  approval  of  the
   49  director of the budget.
   50    3.  Service centers shall be located in the cities of Albany, Buffalo,
   51  Rochester, Syracuse, Utica, White Plains, Binghamton,  Kingston,  Pough-
   52  keepsie,  Jamestown,  Yonkers,  the  counties  of Queens, Kings, Nassau,
   53  Bronx, Richmond and New York and  the  township  of  Brookhaven  with  a
   54  satellite center in Central Islip in the county of Suffolk.
   55    4.  Additional  service  centers  shall  be  located  in the cities of
   56  Niagara Falls, Olean, Troy, Amsterdam, Newburgh, Corning, Ithaca,  Cort-
       S. 1407                            112                           A. 2107
 
    1  land,  Auburn, Watertown, Plattsburgh, Batavia, Massena and Glens Falls,
    2  the counties of Delaware and Rockland, the county of Orange,  in  either
    3  the city of Middletown or Port Jervis or in the town of Deerpark, Green-
    4  ville, Mount Hope, Warwick or Wawayanda or in the village of Goshen, and
    5  in the county of New York to serve the Harlem community.
    6    § 4. Title 9-A of article 5 of the social services law is REPEALED.
    7    §  5.  The  labor law is amended by adding a new article 34 to read as
    8  follows:
    9                                 ARTICLE 34
   10                    EQUIPMENT LOAN FUND FOR THE DISABLED
   11  Section 1050. Fund established; participation; other provisions.
   12    § 1050. Fund established; participation; other provisions.   1.  There
   13  is  hereby  established in the joint custody of the commissioner and the
   14  comptroller the equipment loan fund for the disabled.
   15    2. Participation in the loan of the monies of the fund shall be avail-
   16  able to all disabled persons on the basis of  need,  pursuant  to  regu-
   17  lations of the commissioner.
   18    3.  The loan fund shall provide the disabled with the financial oppor-
   19  tunity to purchase or replace essential equipment used by them for daily
   20  living or vocational functioning  following  rehabilitation,  including,
   21  but  not  limited  to,  prosthesis,  ramps,  wheelchairs, wheelchair van
   22  lifts, telecommunication devices for  the  deaf  and  hearing  impaired,
   23  devices  which  allow  persons  who  are  blind  or visually impaired to
   24  discern printed materials and adaptive equipment to  permit  a  disabled
   25  person to operate a motor vehicle but not to purchase or replace a motor
   26  vehicle itself.
   27    4.  Loans shall be made available directly to the disabled person, the
   28  parent, legal guardian, or individual with  whom  such  disabled  person
   29  resides.
   30    5.  Where any equipment purchase is approved by the department, a loan
   31  shall be made in an amount not  to  exceed  four  thousand  dollars  per
   32  applicant.
   33    6.  The  commissioner shall establish regulations governing payment of
   34  interest, repayment periods, certification and approval of purchase, and
   35  such other orders, rules and regulations as may be necessary for  inter-
   36  pretations, implementation or administration of this article.
   37    7.  The  fund shall consist of all monies appropriated for the purpose
   38  of such fund, all monies transferred to such fund pursuant to  law,  all
   39  monies required by the provisions of this section or any other law to be
   40  paid  into or credited to this fund, and all monies, including interest,
   41  paid by borrowers to the fund in repayment of loans made from the fund.
   42    8. Monies of the fund following appropriations made by the legislature
   43  and allocation by the director of the  budget  to  the  fund,  shall  be
   44  available  solely  for  the  purpose  of enabling eligible applicants to
   45  borrow money at less than the prevailing rates of interest for  compara-
   46  ble loans.
   47    9.  When used in this article, the term "disabled" shall mean a person
   48  having a disability as so defined in subdivision twenty-one  of  section
   49  two hundred ninety-two of the executive law.
   50    § 6. Section 38 of the social services law is REPEALED.
   51    §  7.  Notwithstanding any provision of law to the contrary, effective
   52  October 1, 2003, the vocational rehabilitation  program  established  by
   53  article  21  of  the  education law, the service centers for independent
   54  living established by article 23-A of such law, and aid  for  blind  and
   55  deaf  students  established  by section 4210 of such law shall be trans-
   56  ferred from the education department to the department of labor, and all
       S. 1407                            113                           A. 2107
 
    1  functions, powers, duties,  obligations  and  assets  relating  to  such
    2  programs shall be transferred subject to the provisions of this act.
    3    § 8. Transfer of authority, administration and appropriations.  1. The
    4  commissioner  of education shall provide for the orderly transfer of all
    5  matters, records and other items relating to the programs identified  in
    6  section  seven  of this act. Program and administrative matters relating
    7  to such transfer shall be included in a transition  plan  developed  and
    8  agreed  to by the department of labor and the state education department
    9  no later than 120 days  after  the  effective  date  of  this  act,  and
   10  approved  by  the  director  of  the  budget.  Fiscal and administrative
   11  details may be included in a memorandum of understanding to be developed
   12  between the department of labor and the education department and subject
   13  to the approval of the director  of  the  budget.  The  commissioner  of
   14  education  and  the  board  of  regents  are  authorized and directed to
   15  continue their respective roles, responsibilities and functions until an
   16  orderly transition has been completed.
   17    2. The director of the budget is hereby authorized to transfer to  the
   18  department  of  labor  funds otherwise appropriated or reappropriated to
   19  the education department consistent with the purposes of this act.
   20    § 9. Notwithstanding any other law, rule or regulation to the  contra-
   21  ry,  effective  October  1, 2003, the commissioner of labor shall be the
   22  designee of the state of New York  for  the  purpose  of  carrying  into
   23  effect the provisions of the federal laws relating to the programs iden-
   24  tified in section seven of this act, and any federal funds applicable to
   25  appropriations to the education department for such programs may be made
   26  available  to  the  department  of  labor subject to the approval of the
   27  director of the budget.
   28    § 10. Transfer of records. All books, papers, records and property  of
   29  the programs transferred hereby are to be delivered to the department of
   30  labor  at such place and time, and in such manner as the commissioner of
   31  the department of labor requires.
   32    § 11. Continuation of rules and regulations. All  rules,  regulations,
   33  acts,  determinations and decisions of the board of regents, the commis-
   34  sioner of education and the education department  with  respect  to  the
   35  administration  of  this  act in force at the time of the transfer shall
   36  continue in force and effect as rules, regulations, acts, determinations
   37  and decisions of the commissioner of the department of labor unless  and
   38  until superseded by the commissioner of labor.
   39    §  12. Completion of unfinished business. Any business or other matter
   40  undertaken or commenced by the  education  department  relating  to  the
   41  functions,   powers,  duties  and  obligations  hereby  transferred  and
   42  assigned to the department of labor and pending on the effective date of
   43  such transfer shall be conducted and  completed  by  the  department  of
   44  labor  in  the  same  manner and under the same terms and conditions and
   45  with the same effect as if conducted  and  completed  by  the  education
   46  department.
   47    §  13.  Terms  occurring in laws, contracts and other documents.  Upon
   48  the effective date of this transfer or such alternate dates as shall  be
   49  identified in the transition plan, whenever the functions, powers, obli-
   50  gations,  duties  and  officials  relating to the programs hereby trans-
   51  ferred and reassigned are referred to or designated in any law, contract
   52  or document, such reference or designation shall be deemed to  refer  to
   53  the  appropriate functions, powers, obligations, duties and officials in
   54  department of labor or of the commissioner thereof.
       S. 1407                            114                           A. 2107
 
    1    § 14. Existing rights and remedies preserved.  No  existing  right  or
    2  remedy of any character shall be lost, impaired or affected by reason of
    3  section seven of this act.
    4    §  15.  Notwithstanding any other provision of law, rule or regulation
    5  to the contrary, effective  October  1,  2003,  responsibility  for  the
    6  equipment  loan fund for the disabled authorized by title 9-A of article
    7  5 of the social services law is hereby transferred and assigned  to  the
    8  department  of  labor, and all functions, obligations and assets of such
    9  fund shall be transferred to the department  of  labor  subject  to  the
   10  provisions of this act.
   11    §  16. Notwithstanding any provision of law to the contrary, effective
   12  October 1, 2003, the commission for the blind and  visually  handicapped
   13  established by chapter 1 of title 24 of the unconsolidated laws shall be
   14  transferred  from  the  office  of  children  and family services to the
   15  department of labor, and all functions, powers, duties, obligations  and
   16  assets  relating  to  such  programs, except those programs that provide
   17  non-vocational rehabilitative services to the blind and  visually  hand-
   18  icapped  population age 55 and over, shall be transferred to the depart-
   19  ment of labor subject to the provisions of this act.
   20    § 17. Transfer of authority, administration and  appropriations.    1.
   21  The  commissioner  of  the  office of children and family services shall
   22  provide for the orderly transfer of  all  matters,  records  and  things
   23  relating  to  the programs identified in sections fifteen and sixteen of
   24  this act. Such transfer may be subject to a memorandum of  understanding
   25  between  the office of children and family services and the commissioner
   26  of labor, which shall be subject to the approval of the director of  the
   27  budget.
   28    2.  The director of the budget is hereby authorized to transfer to the
   29  department of labor funds otherwise appropriated  or  reappropriated  to
   30  the  office of children and family services consistent with the purposes
   31  of this act.
   32    § 18. Notwithstanding any other law, rule or regulation to the contra-
   33  ry, effective October 1, 2003, the commissioner of labor  shall  be  the
   34  designee  of  the  state  of  New  York for the purpose of carrying into
   35  effect the provisions of the federal laws  relating  to  the  functions,
   36  powers,  duties  and  obligations hereby transferred and assigned to the
   37  department of labor pursuant to sections fifteen  and  sixteen  of  this
   38  act, and any federal funds applicable to appropriations to the office of
   39  children  and family services for such programs may be made available to
   40  the department of labor subject to the approval of the director  of  the
   41  budget.
   42    §  19.  Transfer  of  records. All books, papers, records and property
   43  relating to the functions, powers, duties and obligations hereby  trans-
   44  ferred  and  assigned  to the department of labor are to be delivered to
   45  the department of labor at such place and time, and in  such  manner  as
   46  the commissioner of the department of labor requires.
   47    §  20.  Continuation of rules and regulations. All rules, regulations,
   48  acts, determinations and decisions of the commissioner of the office  of
   49  children  and  family  services  with  respect to the functions, powers,
   50  duties and obligations hereby transferred and assigned to the department
   51  of labor in force at the time of the transfer shall  continue  in  force
   52  and  effect as rules, regulations, acts, determinations and decisions of
   53  the commissioner of the department of labor until and unless  superseded
   54  by the commissioner of the department of labor.
   55    §  21. Completion of unfinished business. Any business or other matter
   56  undertaken or commenced by the office of children  and  family  services
       S. 1407                            115                           A. 2107
 
    1  relating  to the functions, powers, duties and obligations hereby trans-
    2  ferred and assigned to the department of labor and pending on the effec-
    3  tive date of such transfer shall  be  conducted  and  completed  by  the
    4  department of labor, unless agreed to by the department of labor and the
    5  office  of  children  and  family services as remaining under the super-
    6  vision of the office of children and family services for a stated period
    7  of time, in the same manner and under the same terms and conditions  and
    8  with  the  same  effect  as  if conducted and completed by the office of
    9  children and family services.
   10    § 22. Terms occurring in laws, contracts and other  documents.    Upon
   11  the  effective  date  of  the  transfer, whenever the functions, powers,
   12  obligations, duties and officials relating to the programs hereby trans-
   13  ferred and reassigned are referred to or designated in any law, contract
   14  or document, such reference or designation shall be deemed to  refer  to
   15  the  appropriate functions, powers, obligations, duties and officials in
   16  the department of labor or of the commissioner thereof.
   17    § 23. Existing rights and remedies preserved.  No  existing  right  or
   18  remedy of any character shall be lost, impaired or affected by reason of
   19  sections fifteen and sixteen of this act.
   20    §  24. Notwithstanding any provision of law to the contrary, effective
   21  October 1, 2003, non-vocational rehabilitative services  for  the  blind
   22  and  visually  handicapped  population  age  55 and over provided by the
   23  commission for the blind and visually handicapped established by chapter
   24  1 of title 24 of the unconsolidated laws shall be transferred  from  the
   25  office  of children and family services to the office for the aging, and
   26  all functions, powers, duties, obligations and assets relating  to  such
   27  programs  shall be transferred to the state office for the aging subject
   28  to the provisions of this act.
   29    § 25. Transfer of authority, administration and  appropriations.    1.
   30  The  commissioner  of  the  office of children and family services shall
   31  provide for the orderly transfer of  all  matters,  records  and  things
   32  relating  to the programs identified in section twenty-four of this act.
   33  Such transfer may be subject to a memorandum  of  understanding  between
   34  the  office  of  children  and  family  services and the director of the
   35  office for the aging, which shall be subject  to  the  approval  of  the
   36  director of the budget.
   37    2.  The director of the budget is hereby authorized to transfer to the
   38  office for the aging funds otherwise appropriated or  reappropriated  to
   39  the  office of children and family services consistent with the purposes
   40  of this act.
   41    § 26. Notwithstanding any other law, rule or regulation to the contra-
   42  ry, effective October 1, 2003, the director of the office for the  aging
   43  shall be the designee of the state of New York for the purpose of carry-
   44  ing into effect the provisions of the federal laws relating to the func-
   45  tions, powers, duties and obligations hereby transferred and assigned to
   46  the  office  for  the aging pursuant to section twenty-four of this act,
   47  and any federal funds applicable to  appropriations  to  the  office  of
   48  children  and family services for such programs may be made available to
   49  the office for the aging subject to the approval of the director of  the
   50  budget.
   51    §  27.  Transfer  of  records. All books, papers, records and property
   52  relating to the functions, powers, duties and obligations hereby  trans-
   53  ferred  and  assigned to the office for the aging are to be delivered to
   54  the office for the aging at such place and time, and in such  manner  as
   55  the director of the office for the aging requires.
       S. 1407                            116                           A. 2107
 
    1    §  28.  Continuation of rules and regulations. All rules, regulations,
    2  acts, determinations and decisions of the commissioner of the office  of
    3  children  and  family  services  with  respect to the functions, powers,
    4  duties and obligations hereby transferred and assigned to the office for
    5  the  aging  in force at the time of the transfer shall continue in force
    6  and effect as rules, regulations, acts, determinations and decisions  of
    7  the director of the office for the aging.
    8    §  29. Completion of unfinished business. Any business or other matter
    9  undertaken or commenced by the office of children  and  family  services
   10  relating  to the functions, powers, duties and obligations hereby trans-
   11  ferred and assigned to the office for  the  aging  and  pending  on  the
   12  effective  date of such transfer shall be conducted and completed by the
   13  office for the aging in the same manner and under  the  same  terms  and
   14  conditions and with the same effect as if conducted and completed by the
   15  office of children and family services.
   16    §  30.  Terms  occurring in laws, contracts and other documents.  Upon
   17  the effective date of the  transfer,  whenever  the  functions,  powers,
   18  obligations, duties and officials relating to the programs hereby trans-
   19  ferred and reassigned are referred to or designated in any law, contract
   20  or  document,  such reference or designation shall be deemed to refer to
   21  the appropriate functions, powers, obligations, duties and officials  in
   22  the office for the aging or of the director thereof.
   23    §  31.  Existing  rights  and remedies preserved. No existing right or
   24  remedy of any character shall be lost, impaired or affected by reason of
   25  section twenty-four of this act.
   26    § 32. The commissioner of labor  is  authorized  to  promulgate  regu-
   27  lations  on  an  emergency  basis to implement the transfer contemplated
   28  herein and to administer the programs transferred hereby.
   29    § 33. Subdivision 23 of section 305 of the education law is REPEALED.
   30    § 34. Subdivision (h) of section 7.09 of the mental  hygiene  law,  as
   31  added by chapter 515 of the laws of 1992, is amended to read as follows:
   32    (h) The commissioner shall work cooperatively with the commissioner of
   33  the  office of mental retardation and developmental disabilities and the
   34  commissioner of social services to assist the  commissioner  of  [educa-
   35  tion]  labor in furnishing integrated employment services to individuals
   36  with severe disabilities, including the  development  of  an  integrated
   37  employment  implementation  plan, pursuant to article [twenty-one] thir-
   38  ty-two of the [education] labor law.
   39    § 35. Subdivision (d) of section 13.09 of the mental hygiene  law,  as
   40  added by chapter 515 of the laws of 1992, is amended to read as follows:
   41    (d) The commissioner shall work cooperatively with the commissioner of
   42  the  office  of mental health and the commissioner of social services to
   43  assist the commissioner of [education] labor  in  furnishing  integrated
   44  employment  services  to individuals with severe disabilities, including
   45  the development of an integrated employment implementation plan,  pursu-
   46  ant to article [twenty-one] thirty-two of the [education] labor law.
   47    §  36.  Subdivision  (e)  of section 17 of the social services law, as
   48  added by chapter 515 of the laws of 1992, is amended to read as follows:
   49    (e) work cooperatively with the commissioner of the office  of  mental
   50  health  and  the  commissioner  of  the office of mental retardation and
   51  developmental disabilities to assist  the  commissioner  of  [education]
   52  labor  in  furnishing integrated employment services to individuals with
   53  severe disabilities, including the development of an integrated  employ-
   54  ment  implementation plan pursuant to article [twenty-one] thirty-two of
   55  the [education] labor law;
       S. 1407                            117                           A. 2107
 
    1    § 37. Subdivision (a) of section 41.39 of the mental hygiene  law,  as
    2  added by chapter 515 of the laws of 1992, is amended to read as follows:
    3    (a)  The  commissioner of mental health and the commissioner of mental
    4  retardation and developmental disabilities shall,  consistent  with  the
    5  state  integrated  employment  implementation plan developed pursuant to
    6  subdivision two of section one thousand [four-b of the  education]  four
    7  of the labor law, and subject to appropriations made therefor, to devel-
    8  op  and  support services that provide individuals with mental disabili-
    9  ties the opportunity to learn and develop employment related skills  and
   10  work  experience,  including  but not limited to sheltered workshops and
   11  integrated employment opportunities, including supported employment,  as
   12  provided  pursuant to sections one thousand [four-a] three and one thou-
   13  sand [four-b] four of the [education] labor law. Such programs shall, to
   14  the extent possible:
   15    1. be integrated with and not duplicate employment  programs  provided
   16  through  the [state education] department of labor and shall ensure that
   17  funding provided pursuant to  this  subdivision  is  not  used  for  the
   18  provision  of  services that are the responsibility of other state agen-
   19  cies pursuant to the plan  developed  pursuant  to  subdivision  two  of
   20  section one thousand [four-b] four of the [education] labor law;
   21    2.  provide  an array of rehabilitation and support services necessary
   22  to meet the individual's vocational and career developmental needs;
   23    3. integrate the office's vocational programs and other needed support
   24  services including but not limited to: clinical,  social,  case  manage-
   25  ment,  residential  and transportation services to ensure flexibility in
   26  meeting the needs of individuals in transition between  program  models;
   27  and
   28    4.  provide  each  individual with the appropriate supports to achieve
   29  and maintain employment in  the  most  integrated  setting  appropriate,
   30  while  maximizing each [individuals] individual's personal strengths and
   31  preferences.
   32    § 38. Subdivision 1-a of section 4-104 of the election law, as amended
   33  by chapter 580 of the laws of 1995, is amended to read as follows:
   34    1-a. Each polling place shall have at least one entrance that provides
   35  access, by ramp or otherwise, to physically disabled  voters,  provided,
   36  however,  that  this  requirement may be waived in writing by the county
   37  board of elections upon a petition to the board by the legislative  body
   38  of  the  city  or  town designating such polling places showing good and
   39  sufficient cause. In the city of New York and in counties in which poll-
   40  ing places are designated by the board of  elections,  the  board  shall
   41  specify  in  writing  why  it has determined that it is unable to comply
   42  with the provisions of this  subdivision.  Such  petition,  waiver,  and
   43  written  determination,  as  provided  for in this subdivision, shall be
   44  filed in the office of the board and be available for public inspection.
   45  Such a waiver may be granted and filed or such a  written  determination
   46  may  be  filed only where the board of elections determines, with regard
   47  to each specific polling place for which a waiver is sought or a written
   48  determination is to be filed, (1) that an alternative accessible polling
   49  place is not reasonably available in the election district or a  contig-
   50  uous  election  district  and  that  specific efforts were undertaken in
   51  cooperation with persons with disabilities who have contacted the legis-
   52  lative body of the city or town which requested such waiver or the board
   53  of elections which filed such written determination to  locate  such  an
   54  alternative  accessible polling place and such efforts are listed in the
   55  petition or written determination, (2) that compliance with the  polling
   56  place  accessibility requirements of this subdivision would require that
       S. 1407                            118                           A. 2107
 
    1  unreasonable expenses be incurred and paid, pursuant to section 4-136 of
    2  this article  and  that  specific  information  regarding  expenses  for
    3  compliance  is  listed in the petition or written determination, and (3)
    4  that  substantial efforts will be undertaken in cooperation with persons
    5  with disabilities who have contacted the legislative body of the city or
    6  town which requested such waiver or the board of elections  which  filed
    7  such  written  determination  during  the period for which the waiver is
    8  effective to achieve compliance with  the  polling  place  accessibility
    9  requirements  of  this  subdivision  and  that  the specific substantial
   10  efforts to be undertaken to achieve compliance are listed in  the  peti-
   11  tion  or  written  determination.  For purposes of this subdivision, the
   12  term "persons with disabilities" shall mean  persons  with  disabilities
   13  who shall be entitled to vote in the election district for which a waiv-
   14  er  is  sought  and  service  centers for independent living established
   15  pursuant to article [twenty-three-A]  thirty-three  of  the  [education]
   16  labor  law  and  other entities which represent the interests of persons
   17  with disabilities. A request for a waiver shall be  filed  at  the  same
   18  time  that  the list of polling places is submitted to or established by
   19  the board of elections. The board of elections shall forthwith prepare a
   20  list of all election districts for which a waiver is sought or a written
   21  determination filed. Such list together  with  all  such  petitions  for
   22  waiver  and written determinations shall be public records at the office
   23  of the board of elections. Not later than May seventh of each year,  the
   24  board of elections shall mail a copy of said list by first class mail to
   25  every person who has made a written request for such list within the two
   26  preceding  calendar  years. The board of elections shall either grant or
   27  deny the waiver no later than June  first  of  the  year  in  which  the
   28  request  is  made.  The  state board of elections shall promulgate regu-
   29  lations necessary to ensure proper execution of the provisions  of  this
   30  subdivision.
   31    §  39.  Subdivision 2 of section 4209 of the education law, as amended
   32  by chapter 348 of the laws of 1975, is amended to read as follows:
   33    2. In the discretion of the commissioner of education  a  sum  not  to
   34  exceed  a  sum  equal  to  double the average annual per capita cost for
   35  pupils attending all of the schools which are subject to the  provisions
   36  of section forty-two hundred one of this article  shall be available [in
   37  the manner provided in section forty-two hundred ten of this article] to
   38  aid  a  blind  and deaf pupil in receiving instruction in an institution
   39  for the instruction of the deaf or blind located outside  the  state  in
   40  order  to  continue  the  education of such blind and deaf pupil for the
   41  term of instruction provided in section forty-two hundred seven of  this
   42  article.
   43    §  40.  This  act shall take effect immediately and shall be deemed to
   44  have been in full force and effect on and after April 1, 2003; provided,
   45  however, that sections one through six of this  act  shall  take  effect
   46  October 1, 2003.
 
   47                                   PART J
 
   48    Section 1. Article 19-C of the executive law is REPEALED.
   49    §  2.  The social services law is amended by adding a new article 10-C
   50  to read as follows:
   51                                ARTICLE 10-C
   52                    STATE COUNCIL ON CHILDREN AND FAMILIES
 
   53  Section 483.  Council on children and families; chair.
       S. 1407                            119                           A. 2107
 
    1          483-a. Utilization of other agency assistance.
    2          483-b. Powers and duties of council.
    3          483-c. Coordinated   children's   services   for  children  with
    4                   emotional and/or behavioral disorders.
    5    § 483. Council on children and families; chair. 1. There  shall  be  a
    6  council  on children and families established within the office of chil-
    7  dren and family services consisting of the following members: the  state
    8  commissioner of children and family services, the commissioner of tempo-
    9  rary  and  disability assistance, the commissioner of mental health, the
   10  commissioner of mental retardation and developmental  disabilities,  the
   11  commissioner  of  the office of alcoholism and substance abuse services,
   12  the commissioner of education,  the  state  director  of  probation  and
   13  correctional  alternatives, the commissioner of health, the commissioner
   14  of the division of criminal justice services,  the  state  advocate  for
   15  persons with disabilities, the director of the office for the aging, the
   16  commissioner  of  labor,  and  the chair of the commission on quality of
   17  care for the mentally disabled.  The governor shall designate the  chair
   18  of the council and the chief executive officer.
   19    2.  The  chair of the council in consultation with the commissioner of
   20  the office of children and family services, shall designate  staff  from
   21  the office of children and family services to work full time in carrying
   22  out the functions of the council.
   23    3. The council may conduct its meetings and, by and through the chair,
   24  perform  its  powers and duties notwithstanding the absence of a quorum;
   25  provided, however that no action may be taken by the council without the
   26  concurrence of the chair.
   27    § 483-a. Utilization of other agency  assistance.  To  effectuate  the
   28  purposes  of  this  article,  any  department,  division, board, bureau,
   29  commission or agency of the state or of any political subdivision there-
   30  of shall, at the request of the  chair,  provide  to  the  council  such
   31  facilities,  assistance  and data as will enable the council properly to
   32  carry out its powers and duties and those of the chair.
   33    § 483-b. Powers and duties of council. 1. As used in this section, the
   34  terms "care", "services", "programs", and "services programs" shall mean
   35  and include care, maintenance, services and programs provided  to  chil-
   36  dren  of  the state and their families by or under the jurisdiction of a
   37  member agency. The term "member agency" shall mean an agency headed by a
   38  member of the council.
   39    2. The council shall have the following powers:
   40    (a) to identify problems and  deficiencies  in  residential  care  and
   41  community-based services programs and, on a selective basis, to plan and
   42  make recommendations to the governor for the remedy of such problems and
   43  deficiencies  and  for  the development of programs of care and services
   44  for children and their families;
   45    (b) to make recommendations to improve  coordination  of  program  and
   46  fiscal  resources  of state-local, public-voluntary care and services to
   47  children and their families;
   48    (c) to coordinate program and management research of  member  agencies
   49  for  the  purpose of monitoring, evaluating or redirecting existing care
   50  and services programs or developing new programs, and to conduct,  spon-
   51  sor,  or  direct  member  agencies  to  undertake such research or other
   52  activities;
   53    (d) to review and resolve differences, if any,  concerning  rules  and
   54  regulations  of each member agency insofar as such rules and regulations
   55  impact on services programs provided by other member agencies;
       S. 1407                            120                           A. 2107
 
    1    (e) to promulgate, amend and rescind rules and regulations relating to
    2  the administration and performance of the powers and duties of the coun-
    3  cil pursuant to this article;
    4    (f)  to  review  significant  state and locally operated and supported
    5  care and services, plans and proposals for new services for children and
    6  families to determine whether such services  are  planned,  created  and
    7  delivered in a coordinated, effective and comprehensive manner;
    8    (g)  to perform all other things necessary and convenient to carry out
    9  the functions, powers and duties of the council and  to  effectuate  the
   10  purposes of this article; and
   11    (h)  to accept and expend any grants, awards, or other funds or appro-
   12  priations as may be available to the council to effectuate the  purposes
   13  of this article, subject to the approval of the director of the budget.
   14    3.  The  council  shall  review the budget requests of member agencies
   15  insofar as such budgets jointly affect services  programs  for  children
   16  and  their  families and shall make comments and recommendations thereon
   17  to the relevant member agencies and the governor.
   18    4. (a) The council shall meet on a  regular  basis  to  implement  the
   19  purposes  of this article and to discuss and resolve disputes, including
   20  but not limited to disputes between member agencies, relating  to  their
   21  functions,  powers  and duties over the provision of services to partic-
   22  ular children and their families or to categories of children  or  child
   23  and  family  problems when all the internal statutory and administrative
   24  grievance or appeal procedures applicable to a member agency have failed
   25  to finally resolve such dispute. The council shall  direct  each  member
   26  agency to establish and maintain such grievance or appeal procedures.
   27    (b) The council shall direct member agencies to provide an evaluation,
   28  including a diagnostic study, of a particular child and his or her fami-
   29  ly  when  there  is a dispute as to the appropriate agency or program in
   30  which the child should be placed or from which the child and his or  her
   31  family  should  receive services, and, following such study, the council
   32  shall order placement of a child with a member agency, or with a  social
   33  services  official,  or  order a member agency to provide or require the
   34  provision of services to the child and his or her  family  in  a  manner
   35  consistent  with  the  legal  authority  of  the member agency or social
   36  services official, as applicable.
   37    (c) The council shall  direct  member  agencies  to  take  appropriate
   38  direct  action  or to exercise their supervisory powers over local offi-
   39  cials and agencies, in the resolution of such disputes.
   40    (d) The duty of the council to resolve disputes  involving  particular
   41  children  may be performed on a selective basis within the discretion of
   42  the council. Exercise of jurisdiction over such disputes by the  council
   43  or  appeals to the council therefor shall not be required as a condition
   44  precedent to the initiation of a proceeding pursuant to  article  seven-
   45  ty-eight of the civil practice law and rules.
   46    (e) A dispute relative to which member agency shall have the responsi-
   47  bility  for  determining  and  recommending  adult  services pursuant to
   48  sections 7.37 and 13.37 of the mental hygiene law, section three hundred
   49  ninety-eight-c of the social services law, or subdivision ten of section
   50  forty-four hundred three of the  education  law  shall  be  resolved  in
   51  accordance with this subdivision.
   52    5.(a)  Notwithstanding any other provision of state law to the contra-
   53  ry, the council may request any member agency to submit to  the  council
   54  and  such member agency shall submit, to the extent permitted by federal
   55  law, all information in the form and manner and at  such  times  as  the
       S. 1407                            121                           A. 2107
 
    1  council may require that it is appropriate to the purposes and operation
    2  of the council.
    3    (b)  The council shall protect the confidentiality of individual iden-
    4  tifying information submitted to or provided by the council, and prevent
    5  access thereto, by, or the distribution thereof to, persons not  author-
    6  ized by law.
    7    §  483-c.  Coordinated children's services for children with emotional
    8  and/or behavioral disorders. 1. Purpose. The  purpose  of  this  section
    9  shall  be  to  establish  a coordinated system of care for children with
   10  emotional and behavioral disorders,  and  their  families,  who  require
   11  assistance  from  multiple agency systems to appropriately maintain such
   12  children with their families, in their communities and  in  their  local
   13  school  systems.  Such  system  of  care shall provide for the effective
   14  collaboration among state and local health, mental  hygiene,  education,
   15  juvenile  justice,  probation  of care and other human services agencies
   16  directed at improving outcomes for children with emotional and/or behav-
   17  ioral disorders and their families  leading  to  full  participation  in
   18  their  communities  and schools. This shall include children with co-oc-
   19  curring disorders. The absence of  coordinated  care  often  results  in
   20  inappropriate  and  costly institutional placements and limited communi-
   21  ty-based services that support maintaining the child in  the  community.
   22  Establishing the coordinated children's services initiative statewide is
   23  intended to improve the manner in which services of multiple systems are
   24  delivered and to eliminate barriers to a coordinated system of care.
   25    2. Definitions. As used in this section:
   26    (a)  "Child with an emotional and/or behavioral disorder" shall mean a
   27  person under eighteen years of age, or a person under  twenty-one  years
   28  of age who has not completed secondary school, who has a mental illness,
   29  as  defined  in subdivision twenty of section 1.03 of the mental hygiene
   30  law, or is classified as a student with a disability pursuant to article
   31  eighty-nine of the education law or section 504 of the federal rehabili-
   32  tation act, or is considered to have a serious emotional  or  behavioral
   33  problem,  as  considered  by a tier I and/or tier II team representative
   34  pursuant to this section. Such term shall include children  with  co-oc-
   35  curring disorders.
   36    (b)  "Individualized  family support plan" shall mean a plan developed
   37  in conjunction with the family through a strength-based child and family
   38  assessment containing a summary of the strengths, needs and goals  of  a
   39  child with an emotional and/or behavioral disorder, and the services and
   40  supports  agreed  to  by the child, family and the tier I team represen-
   41  tatives.
   42    (c) "Family" shall mean, when appropriate, a child with  an  emotional
   43  and/or  behavioral  disorder,  his  or  her parents or those in parental
   44  relationship to the child, blood relatives and extended family,  includ-
   45  ing  non-relatives  identified  by  the child and/or parents. Nothing in
   46  this section shall be construed to deny the child, his or her parents or
   47  those persons in parental relationship to the child of any  rights  they
   48  are otherwise entitled to by law.
   49    (d)  "County" shall mean a county, except in the case of a county that
   50  is wholly included within a city, such term shall mean such city.
   51    (e) "Family support representative" shall mean a volunteer who is also
   52  a parent or primary caregiver of a child with an emotional and/or behav-
   53  ioral disorder. The family support representative shall assist  families
   54  throughout  the process of developing and implementing an individualized
   55  family support plan as defined in this section.
       S. 1407                            122                           A. 2107
 
    1    3. Interagency structure. (a)  There  shall  be  established  a  three
    2  tiered interagency structure, as follows:
    3    (i)  State  tier  III  team.  There is hereby established a state team
    4  designated as the "tier III team", which shall consist of the  chair  of
    5  the  council,  the commissioners of children and family services, mental
    6  health, health, education, alcohol and  substance  abuse  services,  and
    7  mental  retardation  and developmental disabilities, and the director of
    8  probation and correctional alternatives, or their  designated  represen-
    9  tatives,  and  representatives  of  families  of children with emotional
   10  and/or behavioral disorders. Other representatives may be added  at  the
   11  discretion of such team.
   12    (ii)  County tier II team. A county, or consortium of counties, choos-
   13  ing to participate in the  coordinated  children's  services  initiative
   14  shall  establish  an interagency team consisting of, but not limited to,
   15  the local commissioners or leadership  assigned  by  the  chief  elected
   16  official  responsible  for  the  local  health, mental hygiene, juvenile
   17  justice, probation and  other  human  services  systems.  The  education
   18  system  shall be represented by the district superintendent of the board
   19  of cooperative educational services, or his or her designee, and in  the
   20  case  of  the  city  of  New  York, by the chancellor of the city school
   21  district of the city of New York, or his or her designee, and  appropri-
   22  ate  local school district representatives as determined by the district
   23  superintendent of the board of cooperative educational services or  such
   24  chancellor.  Such  team  shall be sensitive to issues of cultural compe-
   25  tence, and shall include representatives of families of children with an
   26  emotional and/or behavioral disorder. Regional  state  agency  represen-
   27  tatives may participate when requested by such team.
   28    (iii)  Family-based  tier I team. Tier II teams, in cooperation with a
   29  child with an emotional and/or behavioral disorder and his or her  fami-
   30  ly, shall establish interagency teams to work with such child and family
   31  to  develop  an  individualized,  strength-based family support plan and
   32  coordinate interagency services agreed to in such plan. Such teams shall
   33  include such child and family and, based on the needs of the  child  and
   34  family,  should  also include a family support representative, represen-
   35  tatives from the mental hygiene, education, juvenile justice, probation,
   36  health, and other county child and family services systems.
   37    (b) Roles and responsibilities of teams. (i) The state tier  III  team
   38  shall  coordinate statewide implementation of the coordinated children's
   39  services initiative. Such team shall:
   40    (A) coordinate planning across the health, mental hygiene,  education,
   41  juvenile justice, probation and human services systems;
   42    (B)  address  barriers  to the effective delivery of local interagency
   43  services;
   44    (C) coordinate the provision of technical assistance and training  for
   45  the  effective  implementation  of  the  coordinated children's services
   46  initiative;
   47    (D) develop an appropriate reporting mechanism to track  the  outcomes
   48  being  achieved.  Such  mechanism  shall  be  developed  in concert with
   49  participating counties; and
   50    (E) report results and recommendations for  change  to  the  governor,
   51  legislature and state board of regents, as appropriate.
   52    (ii)  The  tier  II  teams shall coordinate the coordinated children's
   53  services initiative at the local level. Such team shall:
   54    (A) coordinate cross-systems training and provide  linkages  to  other
   55  county and school district planning for children;
   56    (B) address local/regional barriers to the coordination of services;
       S. 1407                            123                           A. 2107
 
    1    (C)  report on state level barriers to the effective delivery of coor-
    2  dinated services and recommended changes to the state tier III team;
    3    (D) report on outcomes using the mechanism developed by the state tier
    4  III team;
    5    (E)  implement  the goals and principles of the coordinated children's
    6  services initiative; and
    7    (F) make monies available consistent with  subdivision  five  of  this
    8  section.
    9    (iii)  Each  tier I team shall work collaboratively with the family to
   10  develop an individualized family support plan that is:
   11    (A) family-focused and family driven;
   12    (B) built on child and family strengths; and
   13    (C) comprehensive, including appropriate services  and  supports  from
   14  appropriate systems and natural supports from the community.
   15    4. Goals and principles of operation. (a) Goals. The coordinated chil-
   16  dren's  services  initiative shall enable children with emotional and/or
   17  behavioral disorders, whenever appropriate for the child and family to:
   18    (i) reside with their families;
   19    (ii) live and participate successfully in their communities;
   20    (iii) attend and be successful in their local school systems; and
   21    (iv) grow towards becoming independent, contributing  members  of  the
   22  community.
   23    (b) Principles of operation. The tier III and II teams shall provide a
   24  system  for  serving children with emotional and/or behavioral disorders
   25  that is:
   26    (i)  community-based,  allowing  children  and  families  to   receive
   27  services close to their home;
   28    (ii) culturally competent;
   29    (iii) individualized and strengths-based in approach;
   30    (iv) family friendly, involving the family as full and active partners
   31  at  every  level of decision making, including policy development, plan-
   32  ning, treatment and service delivery;
   33    (v) comprehensive, involving all appropriate  parties,  including  but
   34  not  limited  to  the family, child, natural supports, provider agencies
   35  and other necessary community services;
   36    (vi) funded through multiple systems with flexible funding  mechanisms
   37  that support creative approaches;
   38    (vii) unconditionally committed to the success of each child; and
   39    (viii)  accountable  with  respect  to  use  of agreed on and measured
   40  outcomes.
   41    5. Funding. Counties and school districts, including boards of cooper-
   42  ative educational services as requested by component  school  districts,
   43  choosing  to  participate  in the coordinated children's services initi-
   44  ative, unless expressly prohibited by law, shall have the authority to:
   45    (a) combine state and federal resources of  the  participating  county
   46  and  educational  agencies  to  provide services to groups or individual
   47  children  and  their  families  necessary  to  maintain  children   with
   48  emotional  and/or  behavioral  disorders in their homes, communities and
   49  schools, and support families in achieving this goal, as long as the use
   50  of the funds is consistent with the purposes for which they were  appro-
   51  priated; and
   52    (b)  apply  flexibility in use of funds, pursuant to an individualized
   53  family-support plan, or for collaborative programs, an  agreement  among
   54  the county, city and school districts or the board of cooperative educa-
   55  tional  services,  monies  combined  pursuant  to  paragraph (a) of this
   56  subdivision may be used to allow flexibility in determining and applying
       S. 1407                            124                           A. 2107
 
    1  interventions that will address the unique needs of the family. The tier
    2  III team shall develop guidelines for  the  flexible  use  of  funds  in
    3  implementing an individualized family support plan.
    4    6.  Administration  and  reports. The council shall be responsible for
    5  the administration of the provisions of this section.
    6    (a) The tier III team shall submit a report to the  council  detailing
    7  the  effectiveness  in  reaching the goals and objectives of the program
    8  established by this section. Such report shall include  recommendations,
    9  based  on the experience gained pursuant to the provisions of this arti-
   10  cle, for modifying statewide  policies,  regulations  or  statutes.  The
   11  council  shall  forward such report to the governor, the legislature and
   12  the state board of regents on or before the first day of  July  of  each
   13  year,  including  the  recommendations of the tier III members regarding
   14  the feasibility and implications of implementing the recommendations.
   15    (b) The tier III team shall have authority to receive funds  and  work
   16  within agency structures, as agreed to by member agencies, to administer
   17  funds for the purposes of carrying out its responsibilities.
   18    (c)  Parents  and representatives of families, who are not compensated
   19  for attendance as part of their employment,  shall  be  compensated  for
   20  their  tier  III  team participation and reimbursed for actual expenses,
   21  including, but not limited to, child care.
   22    7. Confidentiality. (a) Notwithstanding any other provision  of  state
   23  law to the contrary, tier I, II and III team participants in the coordi-
   24  nated  children's  services  system shall have access to case record and
   25  related treatment information as necessary to support  the  purposes  of
   26  this section, to the extent permitted by federal law.
   27    (b)  Tier  I, II and III team participants shall protect the confiden-
   28  tiality of all individual identifying case record and related  treatment
   29  information, and prevent access thereto, by, or the distribution thereof
   30  to, other persons not authorized by State or federal law.
   31    §  3.  Notwithstanding any provision of law to the contrary, effective
   32  April 1, 2003, the council  of  children  and  families,  as  originally
   33  established  by  article  19-C  of the executive law, and all functions,
   34  powers, duties, obligations and assets relating to the  council  as  set
   35  forth  in  section two of this act shall be transferred to the office of
   36  children and family services.
   37    § 4. Transfer of authority, administration and appropriations.
   38    1. The executive director of the  council  on  children  and  families
   39  shall  provide  for  the  orderly  transfer  of all matters, records and
   40  things relating to the council.
   41    2. The director of the budget is hereby authorized to transfer to  the
   42  office  of  children and family services funds otherwise appropriated or
   43  reappropriated to the council on children and families  consistent  with
   44  the purposes of this act.
   45    § 5. Transfer of employees.
   46    1.  Upon the transfer of the functions, powers and duties of the coun-
   47  cil pursuant to section three of this  act,  the  transfer  of  affected
   48  employees  shall  be  in accordance with section 70 of the civil service
   49  law.
   50    § 6. Notwithstanding any other law, rule or regulation to the  contra-
   51  ry,  effective  April  1,  2003, the commissioner of children and family
   52  services shall be the designee of the state of New York for the  purpose
   53  of  carrying  into effect the provisions of the federal laws relating to
   54  the functions, powers, duties and obligations of the council on children
   55  and families hereby transferred and assigned to the office  of  children
   56  and  family services, and any federal funds applicable to appropriations
       S. 1407                            125                           A. 2107
 
    1  to the council on children and  families  for  such  functions,  powers,
    2  duties  and  obligations may be made available to the office of children
    3  and family services subject to the approval of the director of the budg-
    4  et.
    5    §  7.  Transfer  of  records.  All books, papers, records and property
    6  relating to the functions, powers, duties and obligations of the council
    7  on children and families are to be delivered to the office  of  children
    8  and  family  services  at such place and time, and in such manner as the
    9  commissioner of children and families requires.
   10    § 8. Continuation of rules and regulations.  All  rules,  regulations,
   11  acts,  determinations  and  decisions  of  the executive director of the
   12  council on children and families with respect to the functions,  powers,
   13  duties  and  obligations  of the council in force on April 1, 2003 shall
   14  continue in force and effect as rules, regulations, acts, determinations
   15  and decisions of the commissioner of the office of children  and  family
   16  services until amended or revised by said commissioner.
   17    §  9.  Completion of unfinished business. Any business or other matter
   18  undertaken or commenced by the council on children and families relating
   19  to the functions, powers, duties and obligations of the council  pending
   20  on April 1, 2003 shall be conducted and completed by the office of chil-
   21  dren and families in the same manner and under the same terms and condi-
   22  tions  and  with  the  same  effect as if conducted and completed by the
   23  council on children and families.
   24    § 10. Terms occurring in laws, contracts and other documents.  Whenev-
   25  er the functions, powers, obligations, duties and officials relating  to
   26  the  council on children and families and the executive director thereof
   27  are referred to or designated in any law,  contract  or  document,  such
   28  reference  or  designation  shall  be deemed to refer to the appropriate
   29  functions, powers, obligations, duties  and  officials  in  the  council
   30  established by section two of this act, the office of children and fami-
   31  ly services, or of the commissioner thereof, as applicable.
   32    §  11.  Existing  rights  and remedies preserved. No existing right or
   33  remedy of any character shall be lost, impaired or affected by reason of
   34  this act.
   35    § 12. Subdivision 1 of section 465 of  the  social  services  law,  as
   36  added by chapter 974 of the laws of 1984, is amended to read as follows:
   37    1. "Council" means those member state agencies of the council on chil-
   38  dren and families, created pursuant to [article nineteen-C of the execu-
   39  tive law] article ten-C of the social services law.
   40    §  13.  Subdivision  3  of section 409-i of the social services law is
   41  REPEALED.
   42    § 14. Subdivision 1 of section 441 of the executive law, as  added  by
   43  chapter 757 of the laws of 1977, is amended to read as follows:
   44    1.  "Council"  shall mean the council on children and families created
   45  by section [four hundred forty-two] four hundred eighty-three  of  [this
   46  article] the social services law.
   47    § 15. Section 992 of the executive law, as added by chapter 166 of the
   48  laws of 1990, is amended to read as follows:
   49    § 992. Implementation of the family policy. The family policy shall be
   50  implemented  by  the  state council on children and families pursuant to
   51  [paragraph (i) of subdivision two of section four hundred forty-four  of
   52  this  chapter]  paragraph (f) of subdivision two of section 483-b of the
   53  social services law.
   54    § 16. This act shall take effect April 1, 2003.
 
   55                                   PART K
       S. 1407                            126                           A. 2107
 
    1    Section 1. Subdivision 2 of section  530  of  the  executive  law,  as
    2  amended  by  chapter  920  of  the  laws  of 1982, is amended to read as
    3  follows:
    4    2.  Expenditures  made by social services districts in providing care,
    5  maintenance and supervision to youth in detention facilities  designated
    6  pursuant  to  sections seven hundred twenty-four and 305.2 of the family
    7  court act and certified by the [division for youth] office  of  children
    8  and family services, shall be subject to reimbursement by the state upon
    9  approval  by  the  [division]  office of children and family services in
   10  accordance with its regulations, as follows:
   11    (1) the full amount expended by the district for care, maintenance and
   12  supervision of state charges;
   13    (2) (a) fifty percent of the amount expended for the care, maintenance
   14  and supervision of [local] other  than  state  charges  held  in  secure
   15  detention  where counties conform with the requirements of subdivision B
   16  of section two hundred eighteen-a of the county law; and
   17    (b) for any day a youth is in detention from the first day of October,
   18  two thousand three through the thirty-first day of December,  two  thou-
   19  sand four, where counties conform with the requirements of subdivision B
   20  of  section  two  hundred eighteen-a of the county law and such youth is
   21  detained in non-secure detention pursuant to article three or  seven  of
   22  the family court act: fifty percent of the amount expended for the care,
   23  maintenance  and  supervision of such youth for up to forty-five days in
   24  detention and twenty-five percent of the amount expended for  the  care,
   25  maintenance  and  supervision  of  such youth for days forty-six through
   26  ninety in detention.  Reimbursement shall not be  available  under  this
   27  subdivision for the amount expended for the care, maintenance and super-
   28  vision  of  such  youth  for days in excess of ninety days in detention.
   29  When determining the level of reimbursement available for  a  youth  for
   30  any  day  covered under this paragraph, the number of days the youth was
   31  in detention on or after the first day of April two  thousand  three  or
   32  the  number  of  days  the  youth  was in detention within the preceding
   33  twelve months, whichever is less, shall count regardless of whether such
   34  days are continuous or non-consecutive;
   35    (c) for any day a youth is in detention from the first day of  January
   36  through the thirty-first day of December, two thousand five, where coun-
   37  ties  conform  with  the  requirements  of  subdivision B of section two
   38  hundred eighteen-a of the county law and such youth is detained in  non-
   39  secure  detention pursuant to article three or seven of the family court
   40  act:  fifty percent of the amount expended for the care, maintenance and
   41  supervision of such youth for up to forty-five  days  in  detention  and
   42  twenty-five percent of the amount expended for the care, maintenance and
   43  supervision of such youth for days forty-six through sixty in detention.
   44  Reimbursement  shall  not  be  available  under this subdivision for the
   45  amount expended for the care, maintenance and supervision of such  youth
   46  for  days  in  excess  of sixty days in detention.  When determining the
   47  level of reimbursement available for a youth for any day  covered  under
   48  this paragraph, all of the days the youth was in detention in the twelve
   49  months  immediately preceding that day, whether continuous or non-conse-
   50  cutive, shall count even if some of those days occurred before the first
   51  day of January, two thousand five;
   52    (d) for any day a youth is in detention from the first day of January,
   53  two thousand  six  and  thereafter,  where  counties  conform  with  the
   54  requirements  of  subdivision B of section two hundred eighteen-a of the
   55  county law and such youth is detained in non-secure  detention  pursuant
   56  to  article three or seven of the family court act: fifty percent of the
       S. 1407                            127                           A. 2107
 
    1  amount expended for the care, maintenance and supervision of such  youth
    2  for  up  to  forty-five  days of detention.   Reimbursement shall not be
    3  available under this subdivision for the amount expended for  the  care,
    4  maintenance  and  supervision of such youth for days in excess of forty-
    5  five days in detention.   When determining the  level  of  reimbursement
    6  available  for  a youth for any day covered under this paragraph, all of
    7  the days the youth was in detention in  the  twelve  months  immediately
    8  preceding  that  day, whether continuous or non-consecutive, shall count
    9  even if some of those days occurred before the first day of January, two
   10  thousand six; or
   11    (3) where counties conform with the requirements of subdivision  B  of
   12  section  two  hundred eighteen-a of the county law, fifty percent of the
   13  amount expended for the care,  maintenance  and  supervision  of  youth,
   14  other  than  state  charges,  who  are  detained in secure or non-secure
   15  detention pursuant to the criminal procedure law, youth who are  in  the
   16  custody  of  the office of children and family services or youth who are
   17  remanded to detention pursuant to sections seven  hundred  fifty-six  or
   18  353.3 of the family court act.
   19    §  2. Subdivision 2-a of section 530 of the executive law, as added by
   20  chapter 419 of the laws of 1987 and the closing paragraph as amended  by
   21  chapter 465 of the laws of 1992, is amended to read as follows:
   22    2-a.  Expenditures  made  by  the  city of New York in providing care,
   23  maintenance and supervision to youth detained pursuant to article  seven
   24  of the family court act in foster care facilities approved by the [state
   25  department  of  social]  office of children and family services shall be
   26  subject to reimbursement by the state upon the approval  of  the  [divi-
   27  sion] office of children and family services, as follows:
   28    (1)  the  full  per  diem rate set by the [state department of social]
   29  office of children and family services for such programs for  the  care,
   30  maintenance and supervision of state charges;
   31    (2) fifty percent of the per diem rate set by the [state department of
   32  social] office of children and family services for such programs for the
   33  care,  maintenance  and supervision of [local] other than state charges;
   34  except:
   35    (a) for any day a youth is in detention from the first day of October,
   36  two thousand three through the thirty-first day of December,  two  thou-
   37  sand four: fifty percent of the per diem rate set by the office of chil-
   38  dren and family services for such programs for the care, maintenance and
   39  supervision  of  such  youth  for up to forty-five days in detention and
   40  twenty-five percent of the per diem rate set for such programs for  days
   41  forty-six  through  ninety  in  detention.    Reimbursement shall not be
   42  available under this subdivision for the amount expended for  the  care,
   43  maintenance  and  supervision of such youth for days in excess of ninety
   44  days in detention.  When determining the level of  reimbursement  avail-
   45  able for a youth for any day covered under this paragraph, the number of
   46  days  the youth was in detention on or after the first day of April, two
   47  thousand three or the number of days the youth was in  detention  within
   48  the  preceding  twelve months, whichever is less, shall count regardless
   49  of whether such days are continuous or non-consecutive;
   50    (b) for any day a youth is in detention from the first day of  January
   51  through  the  thirty-first  day  of December, two thousand five:   fifty
   52  percent of the per diem rate set by the office of  children  and  family
   53  services  for such programs for the care, maintenance and supervision of
   54  such youth for up  to  forty-five  days  in  detention  and  twenty-five
   55  percent of the per diem rate set for such programs for the care, mainte-
   56  nance  and supervision of such youth for days forty-six through sixty in
       S. 1407                            128                           A. 2107
 
    1  detention. Reimbursement shall not be available under  this  subdivision
    2  for  the  amount  expended  for the care, maintenance and supervision of
    3  such youth for days in excess of sixty days in detention.   When  deter-
    4  mining  the  level  of  reimbursement  available for a youth for any day
    5  covered under this paragraph, all of the days the youth was in detention
    6  in the twelve months immediately preceding that day, whether  continuous
    7  or  non-consecutive,  shall  count  even  if some of those days occurred
    8  before the first day of January, two thousand five; and
    9    (c) for any day a youth is in detention from the first day of January,
   10  two thousand six and thereafter:  fifty percent of the per diem rate set
   11  by the office of children and family services for such programs for  the
   12  care,  maintenance  and  supervision  of such youth for up to forty-five
   13  days in detention.   Reimbursement shall not  be  available  under  this
   14  subdivision  for  days  in excess of forty-five days in detention.  When
   15  determining the level of reimbursement available for a youth for any day
   16  covered under this paragraph, all of the days the youth was in detention
   17  in the twelve months immediately preceding that day, whether  continuous
   18  or  non-consecutive,  shall  count  even  if some of those days occurred
   19  before the first day of January, two thousand six.
   20    Notwithstanding the provisions  of  this  subdivision,  section  three
   21  hundred  ninety-eight-a  of  the  social services law shall not apply to
   22  facilities certified by the [division] office  of  children  and  family
   23  services pursuant to section five hundred three of this chapter.
   24    § 3. This act shall take effect October 1, 2003.
 
   25                                   PART L
 
   26    Section  1.  Subparagraph  (xi)  of  paragraph (d) of subdivision 3 of
   27  section 364-j of the social services law, as amended by  section  67  of
   28  part A of chapter 1 of the laws of 2002, is amended to read as follows:
   29    (xi)  a  foster child in the placement of a voluntary agency, with the
   30  exception of children placed in foster boarding homes;
   31    § 2. Subparagraph (ii) of paragraph (f) of subdivision  3  of  section
   32  364-j  of the social services law, as amended by chapter 649 of the laws
   33  of 1996, is amended to read as follows:
   34    (ii) a foster [care] child in the direct  care  of  the  local  social
   35  services  district  or  a  foster child in a foster family boarding home
   36  operated by a voluntary authorized agency. Participation  in  a  managed
   37  care  program  by a foster child in a foster boarding home operated by a
   38  voluntary authorized agency may only be in accordance  with  a  district
   39  plan  approved  by the commissioner of the social services district with
   40  responsibility for the foster children covered by the  plan,  the  state
   41  office  of  children  and  family  services  and the state department of
   42  health. Such plan shall be developed in accordance with standards estab-
   43  lished jointly by the state office of children and family  services  and
   44  the  state  department  of  health.  Such plan shall include, but not be
   45  limited to, provisions assuring that such children receive uninterrupted
   46  medical assistance benefits and continuity of care and that  such  chil-
   47  dren  may  disenroll  from a managed care program upon good cause shown,
   48  including a change in foster care placement.
   49    § 3. This act shall take effect  immediately;  provided,  however  the
   50  amendments  to  paragraphs (d) and (f) of subdivision 3 of section 364-j
   51  of the social services law made by sections one  and  two  of  this  act
   52  shall not affect the repeal of such section and shall be deemed repealed
   53  therewith.
       S. 1407                            129                           A. 2107
 
    1                                   PART M
 
    2    Section  1.  Subdivision 10 of section 153 of the social services law,
    3  as amended by section 11 of part C of chapter 83 of the laws of 2002, is
    4  amended to read as follows:
    5    10. Expenditures made by a social services district  for  the  mainte-
    6  nance  of  [handicapped]  children  with  disabilities, placed by school
    7  districts, pursuant to section forty-four hundred five of the  education
    8  law shall, if approved by the office of children and family services, be
    9  subject  to  [fifty] forty percent reimbursement by the state and twenty
   10  percent reimbursement by school districts in accordance  with  paragraph
   11  (c)  of subdivision one of section forty-four hundred five of the educa-
   12  tion law, after first deducting therefrom any federal funds received  or
   13  to  be received on account of such expenditures, except that in the case
   14  of a student attending a state-operated school for  the  deaf  or  blind
   15  pursuant  to  article  eighty-seven or eighty-eight of the education law
   16  who was not placed in such school by a school district such expenditures
   17  shall be subject to fifty percent reimbursement by the state after first
   18  deducting therefrom any federal funds received  or  to  be  received  on
   19  account  of  such  expenditures  and  there shall be no reimbursement by
   20  school districts.  Such expenditures shall not be subject to the limita-
   21  tions on state reimbursement contained in subdivision two of section one
   22  hundred fifty-three-k of this chapter.  In the event of the  failure  of
   23  the  school  district  to  make  the maintenance payment pursuant to the
   24  provisions of this subdivision, the  state  comptroller  shall  withhold
   25  state  reimbursement  to  any such school district in an amount equal to
   26  the unpaid obligation for maintenance and  pay  over  such  sum  to  the
   27  social  services  district upon certification of the commissioner of the
   28  office of children and family services and the commissioner of education
   29  that such funds are overdue  and  owed  by  such  school  district.  The
   30  commissioner of the office of children and family services, in consulta-
   31  tion with the commissioner of education, shall promulgate regulations to
   32  implement the provisions of this subdivision.
   33    §  2.  Paragraph  b  of subdivision 1 of section 4405 of the education
   34  law, as amended by chapter 53 of the laws of 1990, is amended and a  new
   35  paragraph c is added to read as follows:
   36    b. Expenditures made by a social services district for the maintenance
   37  of  a child with a [handicapping condition] disability placed in a resi-
   38  dential school under the provisions of this article, including  a  child
   39  with  a  disability  placed in a special act school district by a school
   40  district committee on special education pursuant to this article,  or  a
   41  child with a disability placed in a state school under the provisions of
   42  articles  eighty-seven and eighty-eight of this chapter shall be subject
   43  to reimbursement by the state pursuant to the provisions of  subdivision
   44  ten  of  section  one  hundred  fifty-three  of the social services law.
   45  Expenditures shall include both  direct  payments  and  deductions  from
   46  state  aid  made  by  the  comptroller,  if  any, in lieu of such direct
   47  payments.
   48    c. Expenditures made by a social services district for the maintenance
   49  of a child with a disability placed in a residential  school  under  the
   50  provisions  of  this article, including a child with a disability placed
   51  by a school district committee on special  education  pursuant  to  this
   52  article  in  a special act school district, or a state school subject to
   53  the provisions of articles eighty-seven and eighty-eight of  this  chap-
   54  ter,  shall  be  subject  to twenty percent reimbursement by the child's
   55  school district of residence pursuant to the provisions  of  subdivision
       S. 1407                            130                           A. 2107
 
    1  ten  of  section one hundred fifty-three of the social services law. The
    2  amount of such reimbursement shall be a charge upon such school district
    3  of residence.
    4    §  3. This act shall take effect July 1, 2003; provided, however, that
    5  the amendments to subdivision 10 of section 153 of the  social  services
    6  law  made by section one of this act shall not affect the repeal of such
    7  subdivision and shall be deemed to be repealed therewith.
 
    8                                   PART N
 
    9    Section 1. Title 1-A of article  6  of  the  social  services  law  is
   10  REPEALED.
   11    § 2. This act shall take effect April 1, 2003.
 
   12                                   PART O
 
   13    Section  1.    Paragraph  (b) of subdivision 2 of section 131-a of the
   14  social services law, as amended by chapter 87 of the laws  of  1993,  is
   15  amended to read as follows:
   16    (b)  In  addition  to  the  above,  the standard of need shall include
   17  amounts for shelter and  fuel  for  heating,  amounts  for  home  energy
   18  payments    (including  amounts  for  supplemental  home energy grants),
   19  amounts for additional cost of meals  for  persons  who  are  unable  to
   20  prepare meals at home and amounts for other items when required by indi-
   21  vidual case circumstances for which specific provision is otherwise made
   22  in  article five of this chapter. For purposes of determining the amount
   23  to be included in the standard of need for shelter and fuel for heating,
   24  to the extent that federal reimbursement is available  therefor,  social
   25  services  officials  shall  include  in  the household any child who has
   26  entered foster care pursuant to section three hundred  eighty-four-a  of
   27  this  chapter who was eligible for and in receipt of assistance and care
   28  as a member of the household in and for the month of entry  into  foster
   29  care  and  for whom the family service plan, as defined in section  four
   30  hundred nine-e of this chapter, includes a goal of discharge to a member
   31  of the household.   The amount actually expended  for  shelter,  not  to
   32  exceed  the  amount  in  the  following  schedules, shall be the maximum
   33  amount to be included in the standard of need for  shelter  for  private
   34  housing:
 
   35               LOCAL AGENCY MAXIMUM MONTHLY SHELTER ALLOWANCES
   36                                WITHOUT HEAT
   37                               By Family Size
   38                                           1   2   3   4   5   6   7   8+
   39  Albany                                  176 204 234 255 276 285 297 325
   40  Allegany                                143 165 190 207 224 232 241 264
   41  Broome                                  170 197 227 247 268 277 288 316
   42  Cattaraugus                             143 165 190 207 224 232 241 264
   43  Cayuga                                  160 185 213 232 251 260 271 296
   44  Chautauqua                              145 168 193 210 228 235 245 268
   45  Chemung                                 155 179 206 225 243 251 262 286
   46  Chenango                                142 164 189 206 223 231 240 263
   47  Clinton                                 137 159 183 199 216 223 232 254
   48  Columbia                                155 180 207 226 244 253 263 288
   49  Cortland                                179 208 239 261 282 292 304 332
   50  Delaware                                151 175 201 219 237 245 255 279
   51  Dutchess                                174 202 232 253 274 283 295 322
       S. 1407                            131                           A. 2107
 
    1  Erie                                    155 182 205 223 242 250 260 285
    2  Essex                                   145 168 193 210 228 235 245 268
    3  Franklin                                128 145 167 182 197 204 212 232
    4  Fulton                                  125 145 167 182 197 204 212 232
    5  Genesee                                 160 185 213 232 251 260 271 296
    6  Greene                                  155 180 207 226 244 253 263 288
    7  Hamilton                                145 168 193 210 228 235 245 268
    8  Herkimer                                125 145 167 182 197 204 212 232
    9  Jefferson                               187 217 249 271 294 304 316 346
   10  Lewis                                   105 122 140 153 165 71  178 195
   11  Livingston                              158 183 210 229 248 256 267 292
   12  Madison                                 152 176 202 220 238 246 257 281
   13  Monroe                                  227 263 302 329 356 368 384 420
   14  Montgomery                              125 145 167 182 197 204 212 232
   15  Nassau                                  270 313 360 392 425 439 472 503
   16  New York City                           207 240 276 301 326 337 356 384
   17  Niagara                                 163 189 217 237 256 265 276 302
   18  Oneida                                  131 152 175 191 207 214 222 243
   19  Onondaga                                185 214 246 268 290 300 312 342
   20  Ontario                                 165 191 220 240 260 268 279 306
   21  Orange                                  195 226 260 283 307 317 330 361
   22  Orleans                                 160 185 213 232 251 260 271 296
   23  Oswego                                  141 164 188 203 222 229 239 261
   24  Otsego                                  153 177 204 222 241 249 259 284
   25  Putnam                                  195 226 260 283 307 317 330 361
   26  Rensselaer                              134 157 164 179 194 200 208 228
   27  Rockland                                272 316 363 396 428 443 461 505
   28  St. Lawrence                            134 156 179 195 211 218 227 249
   29  Saratoga                                164 190 218 238 257 266 277 303
   30  Schenectady                             168 195 224 244 264 273 284 311
   31  Schoharie                               153 177 204 222 241 249 259 284
   32  Schuyler                                149 172 198 216 234 242 251 275
   33  Seneca                                  162 188 216 235 255 264 274 300
   34  Steuben                                 137 159 183 199 216 223 232 254
   35  Suffolk                                 290 337 387 422 457 472 491 538
   36  Sullivan                                164 190 218 238 257 266 277 303
   37  Tioga                                   163 189 217 237 256 265 276 302
   38  Tompkins                                190 220 253 276 299 309 321 352
   39  Ulster                                  221 256 294 320 347 359 373 409
   40  Warren                                  159 184 212 231 250 259 269 295
   41  Washington                              168 195 224 244 264 273 284 311
   42  Wayne                                   165 191 220 240 260 268 279 306
   43  Westchester                             259 300 345 376 407 421 438 480
   44  Wyoming                                 155 179 206 225 243 251 262 286
   45  Yates                                   139 161 185 202 218 226 235 257
   46              LOCAL AGENCY MAXIMUM MONTHLY SHELTER  ALLOWANCES
   47                                  WITH HEAT
   48                               By Family Size
   49                                           1   2   3   4   5   6   7   8+
   50  Albany                                  184 213 245 267 289 299 311 341
   51  Allegany                                190 220 253 276 299 309 321 352
   52  Broome                                  218 252 290 316 342 354 368 403
   53  Cattaraugus                             179 208 239 261 282 292 304 332
   54  Cayuga                                  179 208 239 261 282 292 304 332
   55  Chautauqua                              167 194 223 243 263 272 283 310
   56  Chemung                                 197 228 262 286 309 320 333 364
       S. 1407                            132                           A. 2107
 
    1  Chenango                                189 219 252 275 297 307 320 350
    2  Clinton                                 156 181 208 227 245 254 264 289
    3  Columbia                                191 221 254 277 300 310 323 353
    4  Cortland                                199 231 265 289 313 323 337 368
    5  Delaware                                200 232 267 291 315 326 339 371
    6  Dutchess                                216 251 288 314 340 351 366 400
    7  Erie                                    169 201 215 234 254 262 273 299
    8  Essex                                   199 231 265 289 313 323 337 368
    9  Franklin                                161 191 212 239 250 259 269 295
   10  Fulton                                  159 184 212 231 250 259 269 295
   11  Genesee                                 202 234 269 293 317 328 342 374
   12  Greene                                  197 229 263 287 310 321 334 366
   13  Hamilton                                159 184 212 231 250 259 271 296
   14  Herkimer                                173 200 230 251 271 281 292 320
   15  Jefferson                               200 232 267 291 315 326 339 371
   16  Lewis                                   152 177 203 221 240 248 258 282
   17  Livingston                              187 217 249 271 294 304 316 346
   18  Madison                                 199 231 265 289 313 323 337 368
   19  Monroe                                  257 298 343 374 405 418 436 477
   20  Montgomery                              158 184 211 230 249 257 268 293
   21  Nassau                                  288 334 384 419 453 468 527 561
   22  New York City                           215 250 286 312 337 349 403 421
   23  Niagara                                 174 202 232 253 274 283 295 322
   24  Oneida                                  179 207 238 259 281 290 302 331
   25  Onondaga                                203 235 270 294 319 329 343 375
   26  Ontario                                 207 240 276 301 326 337 351 384
   27  Orange                                  229 265 305 332 360 372 387 424
   28  Orleans                                 202 234 269 293 317 328 342 374
   29  Oswego                                  183 212 244 266 288 298 310 339
   30  Otsego                                  200 232 267 291 315 326 339 371
   31  Putnam                                  237 275 316 344 373 386 401 439
   32  Rensselaer                              153 179 193 210 228 235 245 268
   33  Rockland                                302 350 402 438 474 490 511 559
   34  St. Lawrence                            182 211 242 264 286 295 307 336
   35  Saratoga                                185 215 247 269 291 301 314 343
   36  Schenectady                             195 226 260 283 307 317 330 361
   37  Schoharie                               199 231 265 289 313 323 337 368
   38  Schuyler                                194 224 258 281 304 315 328 359
   39  Seneca                                  204 237 272 296 321 332 345 378
   40  Steuben                                 159 184 212 231 250 259 269 295
   41  Suffolk                                 309 358 412 449 486 503 523 573
   42  Sullivan                                211 244 281 306 332 343 357 391
   43  Tioga                                   201 233 268 292 316 327 340 373
   44  Tompkins                                217 251 289 315 341 353 367 402
   45  Ulster                                  263 305 350 382 413 427 445 486
   46  Warren                                  215 250 287 313 339 350 364 399
   47  Washington                              199 231 265 289 313 323 337 368
   48  Wayne                                   207 240 276 301 326 337 351 384
   49  Westchester                             271 314 361 393 426 440 474 536
   50  Wyoming                                 199 231 265 289 313 323 337 368
   51  Yates                                   181 210 241 263 284 294 306 335
   52    §  2.  Notwithstanding paragraph (b) of subdivision 2 of section 131-a
   53  of the social services law, as amended by section one of this act, shel-
   54  ter allowances exceeding the amounts set forth therein shall continue to
   55  be paid to the extent provided in an appropriation  expressly  therefore
   56  to persons eligible for assistance.
       S. 1407                            133                           A. 2107
 
    1    § 3. This act shall take effect April 1, 2003.
 
    2                                   PART P
 
    3    Section  1.  Paragraphs  (a),  (b),  (c)  and  (d) of subdivision 1 of
    4  section 131-o of the social services law, as amended by chapter  109  of
    5  the laws of 2002, are amended to read as follows:
    6    (a)  in  the  case of each individual receiving family care, an amount
    7  equal to at least [$105.00] $106.00 for each month beginning on or after
    8  January first, two thousand [two] three.
    9    (b) in the case of each  individual  receiving  residential  care,  an
   10  amount  equal  to at least [$122.00] $124.00 for each month beginning on
   11  or after January first, two thousand [two] three.
   12    (c) in the case of each individual receiving care in a school for  the
   13  mentally  retarded, an amount equal to at least [$84.00] $85.00 for each
   14  month beginning on or after January first, two thousand [two] three.
   15    [(d) for the period commencing January first, two thousand three,  the
   16  monthly  personal needs allowance shall be an amount equal to the sum of
   17  the amounts set forth in subparagraphs one and two of this paragraph:
   18    (1) the amounts specified in paragraphs (a) through (c) of this subdi-
   19  vision; and
   20    (2) the amount in subparagraph one of this  paragraph,  multiplied  by
   21  the  percentage  of  any  federal  supplemental  security income cost of
   22  living adjustment which becomes effective on or after January first, two
   23  thousand three, but prior to June thirtieth, two thousand three, rounded
   24  to the nearest whole dollar.]
   25    § 2. Paragraphs (a), (b), (c), (d), (e), (f) and (g) of subdivision  2
   26  of  section 209 of the social services law, as amended by chapter 109 of
   27  the laws of 2002, are amended to read as follows:
   28    (a) On and after January first,  two  thousand  [two]  three,  for  an
   29  eligible individual living alone, [$632.00] $639.00; and for an eligible
   30  couple living alone, [$921.00] $933.00.
   31    (b)  On  and  after  January  first,  two thousand [two] three, for an
   32  eligible individual living with others with or without  in-kind  income,
   33  [$568.00] $575.00; and for an eligible couple living with others with or
   34  without in-kind income, [$863.00] $875.00.
   35    (c)  On  and  after  January  first,  two thousand [two] three, for an
   36  eligible individual receiving family care, [$811.48] $818.48  if  he  or
   37  she  is  receiving  such  care  in the city of New York or the county of
   38  Nassau, Suffolk, Westchester or Rockland; or [$773.48] $780.48 if he  or
   39  she  is  receiving  such  care  in any other county in the state; for an
   40  eligible couple receiving family care, [$1622.96] $1636.96 if  they  are
   41  receiving  such  care  in  the city of New York or the county of Nassau,
   42  Suffolk, Westchester or Rockland; or [$1546.96]  $1560.96  if  they  are
   43  receiving such care in any other county in the state.
   44    (d)  On  and  after  January  first,  two thousand [two] three, for an
   45  eligible individual receiving residential care, [$980.00] $987.00 if  he
   46  or  she  is receiving such care in the city of New York or the county of
   47  Nassau, Suffolk, Westchester or Rockland; or [$950.00] $957.00 if he  or
   48  she  is receiving such care in any other county in the state; and for an
   49  eligible couple receiving residential care, [$1960.00] $1974.00 if  they
   50  are  receiving residential care in the city of New York or the county of
   51  Nassau, Suffolk, Westchester or Rockland; or [$1900.00] $1914.00 if they
   52  are receiving such care in any other county of the state.
   53    (e) On and after January first,  two  thousand  [two]  three,  for  an
   54  eligible  individual  receiving  care  in  a  school  for  the  mentally
       S. 1407                            134                           A. 2107
 
    1  retarded, [$1027.96] $1034.96 if he or she is receiving such care in the
    2  city of New York; or [$1003.96] $1010.96 if he or she is receiving  such
    3  care in counties outside the city of New York.
    4    (f)  On  and  after  January  first,  two thousand [two] three, for an
    5  eligible couple receiving care in a school for  the  mentally  retarded,
    6  [$2055.92]  $2069.92  if they are receiving such care in the city of New
    7  York; or [$2007.92] $2021.92 if they are receiving such care in counties
    8  outside the city of New York.
    9    (g) [The] If and only to the extent that any such increase is required
   10  to meet the requirements of paragraph four of subsection (a) of  section
   11  1618  of  the  federal social security act, without regard to subsection
   12  (b) of such section, the amounts set forth in paragraphs (a) through (f)
   13  of this subdivision shall be  increased  to  reflect  any  increases  in
   14  federal supplemental security income benefits for individuals or couples
   15  which  become  effective on or after January first, two thousand [three]
   16  four but prior to June thirtieth, two thousand [three]  four;  provided,
   17  however,  that  the  amounts set forth in paragraphs (c), (d) and (f) of
   18  this subdivision with respect to eligible couples shall be increased  by
   19  an  amount  equal  to twice the increase hereunder for eligible individ-
   20  uals.
   21    § 3. Subdivision 1 of section 210  of  the  social  services  law,  as
   22  amended  by  chapter  109  of  the  laws  of 2002, is amended to read as
   23  follows:
   24    1. Any inconsistent provisions of this title or any other law notwith-
   25  standing, but subject to the provisions of subdivisions two and three of
   26  this section, an individual who is deemed to have  met  the  eligibility
   27  criteria  for  additional  state  payments  pursuant to paragraph (c) of
   28  subdivision one of section two hundred nine  of  this  title,  shall  be
   29  entitled  to  receive  for  each  month after December, nineteen hundred
   30  seventy-three an additional state payment in an amount which, when added
   31  to the supplemental security income benefit and other countable  income,
   32  is  equal  to such individual's December, nineteen hundred seventy-three
   33  cash grant of assistance under the state's program of  old  age  assist-
   34  ance,  assistance  to  the  blind,  aid  to the disabled or the combined
   35  program of aid to aged, blind and  disabled  persons,  plus  income  not
   36  excluded  under such state program, plus an amount equal to the January,
   37  nineteen hundred seventy-two bonus value of food stamps as determined in
   38  accordance with the regulations of the office of temporary and disabili-
   39  ty assistance plus, for any month after June, nineteen hundred  seventy-
   40  five,  an  amount reflecting the federal supplemental security increases
   41  resulting from July first, nineteen hundred seventy-five cost of  living
   42  increases  in  such  benefits,  plus  for any month after June, nineteen
   43  hundred eighty-two, an amount equal to the July first, nineteen  hundred
   44  eighty-two  federal  supplemental security income cost of living adjust-
   45  ment, providing such individual was  eligible  to  receive  a  mandatory
   46  state supplement for the month of December, nineteen hundred eighty-one,
   47  plus  for any month after June, nineteen hundred eighty-three, an amount
   48  equal to $17.70 for individuals, $26.55 for couples who are living alone
   49  or living with others and $35.40  for  couples  receiving  family  care,
   50  residential  care or care in schools for the mentally retarded, plus for
   51  any month after December, nineteen hundred eighty-three, an amount equal
   52  to $9.70 for individuals, $15.60 for couples who  are  living  alone  or
   53  living  with  others and $19.40 for couples receiving family care, resi-
   54  dential care or care in schools for the mentally retarded, plus for  any
   55  month  after  December, nineteen hundred eighty-four, an amount equal to
   56  $11.00 for individuals, $16.00 for  couples  who  are  living  alone  or
       S. 1407                            135                           A. 2107
 
    1  living  with  others and $22.00 for couples receiving family care, resi-
    2  dential care or care in schools for the mentally retarded, plus for  any
    3  month  after  December, nineteen hundred eighty-five, an amount equal to
    4  $11.00  for  individuals,  $16.00  for  couples  who are living alone or
    5  living with others and $22.00 for couples receiving family  care,  resi-
    6  dential  care or care in schools for the mentally retarded, plus for any
    7  month after December, nineteen hundred eighty-six  an  amount  equal  to
    8  $4.00  for individuals, $6.00 for couples who are living alone or living
    9  with others and $8.00 for couples  receiving  family  care,  residential
   10  care  or  care  in schools for the mentally retarded, plus for any month
   11  after December, nineteen hundred eighty-seven an amount equal to  $14.00
   12  for  individuals, $22.00 for couples who are living alone or living with
   13  others and $28.00 for couples receiving family care, residential care or
   14  care in schools for the mentally retarded,  plus  for  any  month  after
   15  December,  nineteen  hundred  eighty-eight an amount equal to $14.00 for
   16  individuals, $21.00 for couples who are  living  alone  or  living  with
   17  others and $28.00 for couples receiving family care, residential care or
   18  care  in  schools  for  the  mentally retarded, plus for any other month
   19  after December, nineteen hundred eighty-nine an amount equal  to  $18.00
   20  for  individuals, $27.00 for couples who are living alone or living with
   21  others and $36.00 for couples receiving family care, residential care or
   22  care in schools for the mentally retarded,  plus  for  any  month  after
   23  December, nineteen hundred ninety an amount equal to $21.00 for individ-
   24  uals,  $31.00 for couples who are living alone or living with others and
   25  $42.00 for couples receiving family care, residential care  or  care  in
   26  schools  for  the  mentally retarded, plus for any month after December,
   27  nineteen hundred ninety-one an amount equal to $15.00  for  individuals,
   28  $23.00 for couples who are living alone or living with others and $30.00
   29  for  couples  receiving family care, residential care or care in schools
   30  for the mentally retarded, plus for any month after  December,  nineteen
   31  hundred  ninety-two,  an  amount equal to $12.00 for individuals, $19.00
   32  for couples who are living alone or living with others  and  $24.00  for
   33  couples  receiving  family care, residential care or care in schools for
   34  the mentally retarded  plus  for  any  month  after  December,  nineteen
   35  hundred  ninety-three  an amount equal to $12.00 for individuals, $17.00
   36  for couples who are living alone or living with others  and  $24.00  for
   37  couples  receiving  family care, residential care or care in schools for
   38  the mentally retarded  plus  for  any  month  after  December,  nineteen
   39  hundred  ninety-four  an  amount equal to $12.00 for individuals, $18.00
   40  for couples who are living alone or living with others  and  $24.00  for
   41  couples  receiving  family care, residential care or care in schools for
   42  the mentally retarded, plus  for  any  month  after  December,  nineteen
   43  hundred  ninety-five  an  amount equal to $12.00 for individuals, $18.00
   44  for couples who are living alone or living with others  and  $24.00  for
   45  couples  receiving  family care, residential care or care in schools for
   46  the mentally retarded, plus  for  any  month  after  December,  nineteen
   47  hundred ninety-six, an amount equal to $14.00 for individuals and $21.00
   48  for  couples plus for any month after December, nineteen hundred ninety-
   49  seven an amount equal to $10.00 for individuals and $15.00  for  couples
   50  plus  for  any  month  after  December, nineteen hundred ninety-eight an
   51  amount equal to $6.00 for individuals and $11.00 for  couples  plus  for
   52  any  month  after December, nineteen hundred ninety-nine an amount equal
   53  to $13.00 for individuals and $18.00 for  couples  plus  for  any  month
   54  after  December,  two thousand an amount equal to $18.00 for individuals
   55  and $27.00 for couples plus for any month after December,  two  thousand
   56  one  an  amount  equal  to $15.00 for individuals and $21.00 for couples
       S. 1407                            136                           A. 2107
 
    1  plus for any month after December, two thousand two an amount  equal  to
    2  $7.00  for  individuals  and $12.00 for couples plus for any month after
    3  December, two thousand three an  amount  equal  to  the  amount  of  any
    4  increases  in federal supplemental security income benefits for individ-
    5  uals or couples which become effective on or after  January  first,  two
    6  thousand  [three] four but prior to June thirtieth, two thousand [three]
    7  four.
    8    § 4. This act shall take effect December 31, 2003, and shall apply  to
    9  benefits and allowances in months beginning after such date.
 
   10                                   PART Q
 
   11    Section 1. Section 74 of the executive law is REPEALED.
   12    §  2. The social services law is amended by adding a new section 18 to
   13  read as follows:
   14    § 18.  Investigation of fraud. 1. Definitions. For  purposes  of  this
   15  section, the following definitions shall apply:
   16    (a)  "Investigation of fraud" means, investigation of fraud, abuse, or
   17  illegal acts perpetrated within local social services districts,  or  by
   18  contractees or recipients of public assistance.
   19    (b) "Office" means the office of temporary and disability assistance.
   20    (c)  "Commissioner"  means the commissioner of the office of temporary
   21  and disability assistance.
   22    2. The office shall hereby have as one of its  purposes  the  investi-
   23  gation of fraud.
   24    3.  Functions,  duties  and  responsibilities.  The commissioner shall
   25  designate an employee to  be  welfare  inspector  general  to  have  the
   26  following functions, duties and responsibilities concerning the investi-
   27  gation of fraud:
   28    (a)  to  conduct and supervise investigations relating to the programs
   29  of the office and, to the greatest extent possible, to  coordinate  such
   30  activities  with  such other state agencies as deemed appropriate by the
   31  commissioner;
   32    (b) to prosecute fraud, abuse or illegal acts perpetrated  within  the
   33  social  services  districts,  or  by contractees or recipients of public
   34  assistance;
   35    (c) to make information and evidence relating to criminal acts,  which
   36  he or she or the employees designated to investigate fraud may obtain in
   37  carrying  out  their  duties,  available  to appropriate law enforcement
   38  officials and to consult with local  district  attorneys  to  coordinate
   39  investigations and criminal prosecutions;
   40    (d)  to  subpoena  witnesses,  administer  oaths or affirmations, take
   41  testimony and compel the production of such books, papers,  records  and
   42  documents  as  he or she may deem to be relevant to an audit or investi-
   43  gation undertaken pursuant to this section;
   44    (e) to monitor the implementation of his or  her  recommendations  and
   45  those of other audit or investigation agencies;
   46    (f)  to recommend policies relating to the prevention and detection of
   47  fraud and abuse or the identification and prosecution of participants in
   48  such fraud or abuse; and
   49    (g) to receive complaints of alleged failures of  local  officials  to
   50  prevent, detect and prosecute fraud and abuse.
   51    4.  Cooperation  of agency officials and employees. (a) In addition to
   52  the authority otherwise provided by this section, the commissioner,  and
   53  any  staff  designated  by  the commissioner for investigating fraud, in
   54  carrying out the provisions of this section, is authorized:
       S. 1407                            137                           A. 2107
 
    1    (i) to have full and unrestricted  access  to  all  records,  reports,
    2  audits,  reviews,  documents,  papers, recommendations or other material
    3  available to the local social services districts  relating  to  programs
    4  and  operations  with respect to which the commissioner has responsibil-
    5  ities under this section;
    6    (ii) to make such investigations relating to the administration of the
    7  programs  and operations of the social services districts as are, in the
    8  judgment of the commissioner, necessary or desirable; and
    9    (iii) to request such information, assistance and cooperation from any
   10  federal, state or local governmental department, board, bureau,  commis-
   11  sion  or  other  agency or unit thereof as may be necessary for carrying
   12  out the duties and responsibilities enjoined upon him  or  her  by  this
   13  section. State and local agencies or units thereof are hereby authorized
   14  and directed to provide such information, assistance and cooperation.
   15    (b)  Notwithstanding any other provision of law, rule or regulation to
   16  the contrary, no person shall prevent, seek to prevent, interfere  with,
   17  obstruct  or otherwise hinder any investigation being conducted pursuant
   18  to this section. Section one hundred thirty-six of this chapter shall in
   19  no way be construed to restrict any person  or  governmental  body  from
   20  cooperating  and  assisting  the commissioner or his or her designees in
   21  carrying out their duties under this section.   Any  violation  of  this
   22  paragraph  shall  constitute cause for suspension or removal from office
   23  or employment.
   24    5. Disclosure of information. (a) The commissioner shall not  publicly
   25  disclose information that is:
   26    (i) a part of any ongoing investigation; or
   27    (ii) specifically prohibited from disclosure by any other provision of
   28  law.
   29    (b)  Notwithstanding  paragraph  (a)  of  this subdivision, any report
   30  under this section may be disclosed  to  the  public  in  a  form  which
   31  includes  information  with  respect  to  a  part of an ongoing criminal
   32  investigation if such information has been included in a public record.
   33    § 3. Subdivision 2 of section 136  of  the  social  services  law,  as
   34  amended  by  section 24 of part B of chapter 436 of the laws of 1997, is
   35  amended to read as follows:
   36    2. All communications and information relating to a  person  receiving
   37  public  assistance  or  care  obtained  by any social services official,
   38  service officer, or employee in the course of his or her work  shall  be
   39  considered  confidential  and,  except  as  otherwise  provided  in this
   40  section, shall be disclosed only to the commissioner of  the  office  of
   41  temporary  and disability assistance, or his or her authorized represen-
   42  tative, the commissioner of labor, or his or  her  authorized  represen-
   43  tative,  the  commissioner of health, or his or her authorized represen-
   44  tative, [the  welfare  inspector  general,  or  his  or  her  authorized
   45  representative,]  the  county  board  of supervisors, city council, town
   46  board or other board or body  authorized  and  required  to  appropriate
   47  funds  for  public  assistance  and care in and for such county, city or
   48  town or its authorized representative or, by authority  of  the  county,
   49  city  or town social services official, to a person or agency considered
   50  entitled to such information. Nothing herein  shall  preclude  a  social
   51  services  official  from reporting to an appropriate agency or official,
   52  including law enforcement agencies  or  officials,  known  or  suspected
   53  instances  of  physical  or mental injury, sexual abuse or exploitation,
   54  sexual contact with a minor or negligent treatment or maltreatment of  a
   55  child  of  which  the  official  becomes  aware in the administration of
   56  public assistance and care nor shall it preclude communication with  the
       S. 1407                            138                           A. 2107
 
    1  federal immigration and naturalization service regarding the immigration
    2  status of any individual.
    3    §  4.  Transfer of employees.   Upon transfer of the functions, powers
    4  and duties of the former office of  welfare  inspector  general  to  the
    5  office  of temporary and disability assistance pursuant to sections one,
    6  two, and three of this act, the transfer of affected employees shall  be
    7  in accordance with section 70 of the civil service law.
    8    § 5. Transfer of records. All books, papers and property of the former
    9  welfare  inspector  general concerning the functions, powers, duties and
   10  obligations hereby transferred and assigned to the office  of  temporary
   11  and  disability  assistance  are  to be delivered to such office at such
   12  place and time, and in such manner as the commissioner of the office  of
   13  temporary and disability assistance requires.
   14    §  6.  Completion of unfinished business. Any business or other matter
   15  undertaken or commenced by the former welfare inspector general pertain-
   16  ing to or connected with the functions, powers, duties  and  obligations
   17  hereby transferred and assigned to the office of temporary and disabili-
   18  ty  assistance  and  pending  on the effective date of this act shall be
   19  conducted and completed  by  the  office  of  temporary  and  disability
   20  assistance  in  the  same manner and under the same terms and conditions
   21  and with the same effect as if conducted and  completed  by  the  former
   22  welfare  inspector  general.  Any business or other matter undertaken or
   23  commenced by the former welfare  inspector  general  pertaining  to  the
   24  office  of temporary and disability assistance or the office of children
   25  and family services pending on the effective date of this act  shall  be
   26  conducted and completed by the attorney general.
   27    § 7. Terms occurring in laws, contracts and other documents.  Whenever
   28  the former welfare inspector general is referred to or designated in any
   29  law,  contract  or  document  pertaining to the functions, powers, obli-
   30  gations and duties hereby transferred and assigned,  such  reference  or
   31  designation  shall  be  deemed  to  refer to the office of temporary and
   32  disability assistance.
   33    § 8. Existing rights and remedies  preserved.  No  existing  right  or
   34  remedy of any character shall be lost, impaired or affected by reason of
   35  this act.
   36    §  9. Pending actions and proceedings. No action or proceeding pending
   37  at the time this act shall take effect relating to the functions, powers
   38  and duties of the former welfare inspector general transferred  pursuant
   39  to  this  act, brought by or against the welfare inspector general shall
   40  be affected by any provision of this act, but the same may be prosecuted
   41  or defended in the name of the commissioner of the office  of  temporary
   42  and  disability  assistance.    In all such actions and proceedings, the
   43  commissioner of the office of temporary and disability assistance,  upon
   44  application to the court, shall be substituted as a party.
   45    §  10.  Transfer  of  appropriations  heretofore  made. Subject to the
   46  approval of the director of the budget, all appropriations and  reappro-
   47  priations  heretofore  made  to the former welfare inspector general for
   48  the functions and purposes herein transferred by this act to the  office
   49  of  temporary and disability assistance to the extent of remaining unex-
   50  pended or unencumbered balances thereof, whether  allocated  or  unallo-
   51  cated  and  whether  obligated or unobligated, are hereby transferred to
   52  and made available for use and expenditures by the office  of  temporary
   53  and  disability  assistance  for  the same purposes for which originally
   54  appropriated or reappropriated and shall be payable on  vouchers  certi-
   55  fied  or  approved  by  the  commissioner of the office of temporary and
   56  disability assistance on audit and warrant of the comptroller.  Payments
       S. 1407                            139                           A. 2107
 
    1  for liabilities for expenses of personal services, maintenance and oper-
    2  ation  heretofore  incurred  by  and  for liabilities incurred and to be
    3  incurred in completing the  affairs  of  the  former  welfare  inspector
    4  general  with  respect  to  the powers, duties and functions transferred
    5  herein, shall also be made on vouchers or certificates approved  by  the
    6  commissioner  of  the  office  of temporary and disability assistance on
    7  audit and warrant of the comptroller.
    8    § 11. Transfer of assets and liabilities. All assets  and  liabilities
    9  of  the  former  welfare inspector general are hereby transferred to and
   10  assumed by the office of temporary and disability assistance.
   11    § 12. This act shall take effect April 1, 2003.
 
   12                                   PART R
 
   13    Section 1. Subdivision 2 of section 1306-a of the  real  property  tax
   14  law,  as  added  by  section  16 of part B of chapter 389 of the laws of
   15  1997, is amended to read as follows:
   16    2. Tax savings.  (a) The tax savings for  each  parcel  receiving  the
   17  exemption authorized by section four hundred twenty-five of this chapter
   18  shall  be computed by subtracting the amount actually levied against the
   19  parcel from the amount that would  have  been  levied  if  not  for  the
   20  exemption,  provided  however,  that  for  purposes  of the two thousand
   21  three--two thousand four school year, in no case shall the  tax  savings
   22  for  the basic exemption within any school district "portion" (which for
   23  purposes of this section, shall mean that  part  of  an  assessing  unit
   24  located  within  a  school district) exceed the maximum tax savings that
   25  was applicable within that portion for  purposes  of  the  two  thousand
   26  two--two   thousand  three  school  year  relative  to  the  basic  STAR
   27  exemption. The maximum tax savings for the  basic  exemption  applicable
   28  within  a  portion  for  the two thousand two--two thousand three school
   29  year shall be determined for this  purpose  by  multiplying  the  exempt
   30  amount determined by the state board pursuant to paragraph (a) of subdi-
   31  vision  two  of section four hundred twenty-five of this chapter for the
   32  portion in question for the basic exemption by the school tax rate which
   33  was applicable within that portion for the two thousand  two--two  thou-
   34  sand three school year. Where a school tax rate was changed in the midst
   35  of  the  two thousand two--two thousand three school year, an annualized
   36  school tax rate shall be used for this purpose. The annualized tax  rate
   37  for  this  purpose shall be determined by calculating the average of the
   38  tax rates in effect at various times during the  school  year,  weighted
   39  according  to  the  length  of  time during which they were respectively
   40  applicable.
   41    (b) A statement shall then be placed on the tax bill for the parcel in
   42  substantially the following form: "Your tax savings this year  resulting
   43  from the New York state school tax relief (STAR) program is $_______."
   44    §  2.  Subparagraph (iii) of paragraph (k) of subdivision 2 of section
   45  425 of the real property tax law, as added by section 1-a of part  E  of
   46  chapter  83  of  the laws of 2002, is redesignated subparagraph (iv) and
   47  amended to read as follows:
   48    (iv) Notwithstanding the provisions of subparagraph (ii) of this para-
   49  graph, when a cooperative apartment corporation  is  incorporated  as  a
   50  mutual  company  pursuant  to  the  private housing finance law, and the
   51  granting of an exemption pursuant to this section would not inure to the
   52  benefit of eligible tenant-stockholders because  the  real  property  of
   53  such  corporation  is  subject to an exemption from taxation pursuant to
   54  section thirty-three, ninety-three,  one  hundred  twenty-five  or  five
       S. 1407                            140                           A. 2107
 
    1  hundred  fifty-six  of  the  private housing finance law, an alternative
    2  benefit shall be provided to such  corporation  and  passed  through  to
    3  eligible tenant-stockholders in the manner provided by this subdivision.
    4  Such  alternative benefit shall consist of a reduction in the real prop-
    5  erty taxes or payments in lieu of taxes that would otherwise be  payable
    6  on  account  of  such  real property. The total amount of such reduction
    7  shall be the sum of the "STAR savings" for all of the cooperative apart-
    8  ment units that are occupied by one or more  eligible  tenant-stockhold-
    9  ers.  The STAR savings for each such unit shall be equal to one-third of
   10  the exempt amount determined pursuant to paragraph (a) of this  subdivi-
   11  sion  for  purposes  of the basic or enhanced exemption, as the case may
   12  be, multiplied by the applicable school tax rate, or in the  case  of  a
   13  school  district  described in paragraph (j) of this subdivision, by the
   14  applicable city tax rate. Provided, however, in no case shall  the  STAR
   15  savings for any individual unit exceed the amount payable by or chargea-
   16  ble to the unit on account of real property taxes or payments in lieu of
   17  taxes.  Provided, further, that for purposes of the two thousand three--
   18  two thousand four school year, in no case shall the STAR savings for the
   19  basic exemption within any school district "portion" (which for purposes
   20  of this section, shall mean that part of an assessing unit located with-
   21  in a school district) exceed the maximum STAR savings that was  applica-
   22  ble  within that portion for purposes of the two thousand two--two thou-
   23  sand three school year relative to the basic STAR exemption. The maximum
   24  STAR savings for the basic exemption applicable within a portion for the
   25  two thousand two--two thousand three school year shall be determined for
   26  this purpose by multiplying the one-third of the  exempt  amount  deter-
   27  mined  by  the  state  board  for  the portion in question for the basic
   28  exemption by the school  tax  rate  which  was  applicable  within  that
   29  portion  for the two thousand two--two thousand three school year. Where
   30  a school tax rate was changed in the midst of the two thousand  two--two
   31  thousand  three school year, an annualized school tax rate shall be used
   32  for this purpose. The annualized tax rate  for  this  purpose  shall  be
   33  determined  by  calculating  the  average  of the tax rates in effect at
   34  various times during the school year, weighted according to  the  length
   35  of time during which they were respectively applicable. The STAR savings
   36  so  determined for each unit shall be credited by the cooperative apart-
   37  ment corporation against the real property taxes or payments in lieu  of
   38  taxes  otherwise  payable by or chargeable to the eligible tenant-stock-
   39  holders. The total of the alternative benefits provided pursuant to this
   40  subparagraph shall be a state charge which shall be payable in the  same
   41  manner  that  school districts are compensated pursuant to section thir-
   42  teen hundred six-a of this  chapter  for  tax  savings  attributable  to
   43  exemptions granted pursuant to this section.
   44    § 3. This act shall take effect immediately.
 
   45                                   PART S
 
   46    Section  1.  Section  2022 of the education law is amended by adding a
   47  new subdivision 6 to read as follows:
   48    6. a. Notwithstanding any other provision  of  law  to  the  contrary,
   49  commencing with school district budgets for the school year two thousand
   50  three--two thousand four, total spending under the school district budg-
   51  et  for any district whose budget is subject to voter approval shall not
   52  exceed total spending under the school district  budget  for  the  prior
   53  school  year  by  a  percentage  that  exceeds  the  lesser of: (i) four
   54  percent, or (ii) the result obtained when one hundred twenty percent  is
       S. 1407                            141                           A. 2107
 
    1  multiplied  by  the percentage increase in the consumer price index over
    2  the twelve month period preceding January first of the calendar year  in
    3  which  the current school year commences, with the result rounded to two
    4  decimal  places, except with the approval of the qualified voters in the
    5  manner prescribed in paragraph b of this subdivision.
    6    b. Notwithstanding any other provision of law  to  the  contrary,  the
    7  approval  of  at  least  two-thirds  of the qualified voters present and
    8  voting at an annual or special school district meeting shall be required
    9  in order to override the  total  spending  limitation  imposed  by  this
   10  subdivision  in  the  current  school  year.  Notwithstanding  any other
   11  provision of law to the contrary, where a two-thirds  vote  is  required
   12  pursuant  to this paragraph and a majority of the qualified voters pres-
   13  ent and voting, but less than two-thirds, approve  the  school  district
   14  budget or other proposition for the expenditure of money:
   15    (i)  such budget or proposition shall be deemed approved by the voters
   16  subject to the spending limitation imposed by this subdivision;
   17    (ii) the school authorities shall be authorized to make any reductions
   18  in such budget or proposition that are  necessary  to  comply  with  the
   19  spending  limitation  without further approval of the voters and without
   20  adopting a contingency budget pursuant to section two  thousand  twenty-
   21  three of this part; and
   22    (iii)  the  school  authorities shall be authorized to resubmit to the
   23  voters on one additional occasion a separate proposition to override the
   24  total spending limitation imposed by this section for the current school
   25  year and  to  fully  implement  the  budget  or  proposition  previously
   26  approved  by  majority  vote, provided that such separate proposition to
   27  override is approved by at least  two-thirds  of  the  qualified  voters
   28  present  and voting.   Notwithstanding any other provision of law to the
   29  contrary, if the approval of the qualified voters to override the  limi-
   30  tation on total spending is not obtained upon such one resubmission, the
   31  school  authorities  shall make any reductions in the budget or proposi-
   32  tion that are necessary to comply with the total spending limitation.
   33    c. The notice of any annual or special district meeting at  which  any
   34  proposition  for  the  expenditure  of  moneys  that  could result in an
   35  increase in total spending in excess of the limitation imposed  by  this
   36  subdivision  is  submitted  to the voters, and the notice of any special
   37  district meeting at which a proposition to override such spending  limi-
   38  tation  is  submitted, shall include a statement that a vote of at least
   39  two-thirds of the qualified voters present and  voting  is  required  to
   40  approve such propositions.
   41    d. For the purposes of this subdivision:
   42    (i)  "Consumer  price index" shall mean the percentage that represents
   43  the average of the national consumer price indexes for all urban consum-
   44  ers (CPI-U) determined by the United States department of labor.
   45    (ii) "Current school year" shall mean the school year for which school
   46  taxes are levied.
   47    (iii) "Total spending" shall mean the total amount appropriated  under
   48  the  school  district  budget  for  the  school  year, provided that the
   49  following types of expenditures  shall  be  disregarded  in  determining
   50  total spending:
   51    (A)  the types of expenditures set forth in paragraph b of subdivision
   52  four of section two thousand twenty-three of this part, whether or not a
   53  contingency budget has been adopted; and
   54    (B) expenditures resulting from an actual increase in enrollment  over
   55  the projected enrollment used to develop the school district budget; and
       S. 1407                            142                           A. 2107
 
    1    (C)  expenditures  from appropriations for gifts or federal grants-in-
    2  aid that are added after adoption of the school district budget for  the
    3  current school year.
    4    § 2. This act shall take effect immediately.
 
    5                                   PART T
 
    6    Section 1. Title VIII of the education law is REPEALED.
    7    §  2. Article 40 and sections 900 and 901 of the general business law,
    8  as renumbered by chapter 407 of the laws of 1973, are renumbered article
    9  50 and sections 5000 and 5001.
   10    § 3. The general business law is amended by adding a new article 40 to
   11  read as follows:
   12                                 ARTICLE 40
 
   13                               THE PROFESSIONS
 
   14  Subarticle 1.  General provisions
   15            2.   Medicine
   16            2-A. Definitions  of  professional  misconduct  applicable  to
   17                     physicians,  physician's  assistants and specialist's
   18                     assistants
   19            2-B. Physician's assistants and specialist's assistants
   20            3.   Chiropractic
   21            4.   Dentistry and dental hygiene
   22            5.   Veterinary medicine and animal health technology
   23            6.   Physical therapy and physical therapist assistants
   24            7.   Pharmacy
   25            8.   Nursing
   26            9.   Professional midwifery practice act
   27            10.  Podiatry
   28            11.  Optometry
   29            12.  Ophthalmic dispensing
   30            13.  Engineering and land surveying
   31            14.  Architecture
   32            15.  Landscape architecture
   33            16.  Public accountancy
   34            17.  Shorthand reporting
   35            18.  Psychology
   36            19.  Social work
   37            20.  Massage therapy
   38            21.  Occupational therapy
   39            22.  Dietetics and nutrition
   40            23.  Speech-language pathologists and audiologists
   41            24.  Acupuncture
   42            25.  Interior design
   43            26.  Athletic trainers
   44            28.  Respiratory therapists and  respiratory  therapy  techni-
   45                     cians
   46            29.  Medical physics practice
 
   47                                SUBARTICLE 1
 
   48                             GENERAL PROVISIONS
   49                                   TITLE A
   50                             General provisions.
       S. 1407                            143                           A. 2107
 
    1  Section  900. Introduction.
    2           901. Admission to a profession; licensing.
    3           902. Disclosure with respect to loans made or guaranteed by the
    4                      New  York  state  higher  education  services corpo-
    5                      ration.
    6           903. Duration and registration of a license.
    7           904. Practice of a profession.
    8           905. Regulation of the professions.
    9           906. Construction.
   10           907. Professional referrals.
   11           908. Course work or training in infection control practices.
 
   12                                   TITLE B
   13                              State management.
 
   14  Section  920. Supervision by the secretary of state.
   15           921. Administration by the department of state.
   16           922. State boards for the professions.
 
   17                                   TITLE C
   18                          Professional misconduct.
 
   19  Section  940. Definitions of professional misconduct.
   20           941. Additional definition of professional misconduct;  limited
   21                      application.
   22           942. Additional  definition of professional misconduct; arrears
   23                      in payment of support; limited application.
   24           943. Additional definition of professional misconduct;  failure
   25                      to comply in paternity or child support proceedings;
   26                      limited application.
   27           944. Proceedings in cases of professional misconduct.
   28           945. Temporary  surrender of licenses during treatment for drug
   29                      or alcohol abuse.
   30           946. Nurse peer assistance programs.
   31           947. Voluntary non-disciplinary surrender of a license.
   32           948. Penalties for professional misconduct.
 
   33                                   TITLE D
   34                             Unauthorized acts.
 
   35  Section  960. Unauthorized practice a crime.
   36           961. Unauthorized use of a professional title a crime.
   37           961-a. Penalties.
   38           962. Criminal proceedings.
   39           963. Restraint of unlawful acts.
 
   40                                   TITLE A
   41                             General provisions.
 
   42    § 900. Introduction.  This article provides for the regulation of  the
   43  admission  to and the practice of certain professions. This first subar-
   44  ticle applies to all the professions included in  this  article,  except
   45  that prehearing procedures and hearing procedures in connection with the
   46  regulation  of  professional  conduct  of the profession of medicine and
   47  physician's assistants and specialist's assistants  shall  be  conducted
       S. 1407                            144                           A. 2107
 
    1  pursuant  to  the  provisions of Title II-A of article two of the public
    2  health law. Each of the remaining subarticles applies  to  a  particular
    3  profession.
    4    § 901. Admission to a profession; licensing.  Admission to practice of
    5  a  profession in this state is accomplished by a license being issued to
    6  a qualified applicant by the department of state.    To  qualify  for  a
    7  license  an  applicant  shall  meet  the  requirements prescribed in the
    8  subarticle for the particular profession and shall meet the requirements
    9  prescribed in section 3-503 of the general obligations law.
   10    § 902. Disclosure with respect to loans made or guaranteed by the  New
   11  York state higher education services corporation.  Every application for
   12  a  license  issued  pursuant to the provisions  of this subarticle shall
   13  contain a question inquiring whether the applicant has any loans made or
   14  guaranteed by the New York state higher education  services  corporation
   15  currently outstanding, and if so, whether such applicant is presently in
   16  default  on  any such loan.   The name  and address of any applicant who
   17  answers either or both of such questions in  the  affirmative  shall  be
   18  transmitted  to such corporation by the department of state prior to the
   19  date on which such license is issued.
   20    § 903. Duration and registration of a license.  1. A license shall  be
   21  valid  during  the  life  of  the  holder  unless  revoked,  annulled or
   22  suspended by the secretary of state or in the case of physicians, physi-
   23  cians  practicing  under  a  limited  permit,  physician's   assistants,
   24  specialist's  assistants and medical residents, the licensee is stricken
   25  from the roster of such licensees by the secretary of state on the order
   26  of the state board for professional medical conduct in the department of
   27  health. A licensee must  register  with  the  department  and  meet  the
   28  requirements  prescribed in section 3-503 of the general obligations law
   29  to practice in this state.
   30    2. The department of state shall establish the beginning dates of  the
   31  registration  periods  for  each  profession and mail an application for
   32  registration conforming to the requirements  of  section  3-503  of  the
   33  general  obligations law to every licensee currently registered at least
   34  four months prior to the beginning of the registration  period  for  the
   35  respective profession.
   36    3.  An  application for registration and the required registration fee
   37  shall be submitted together with or as a part of the application  for  a
   38  license.    A  person initially licensed or a licensee resuming practice
   39  after a lapse of registration during the last two years of  a  triennial
   40  registration  period shall receive a prorated refund of one-third of the
   41  total registration fee for each full year of the triennial  period  that
   42  has  elapsed  prior  to the date of registration.  Except as provided in
   43  subdivision three-a of this section, the department of state shall renew
   44  the registration of each licensee upon receipt of a proper  application,
   45  on  a  form  prescribed by the department of state and conforming to the
   46  requirements of section 3-503 of the general obligations  law,  and  the
   47  registration  fee.   Any licensee who fails to register by the beginning
   48  of the appropriate registration period shall be required to pay an addi-
   49  tional fee for late filing of ten dollars for each month that  registra-
   50  tion  has  been delayed.  No licensee resuming practice after a lapse of
   51  registration shall be permitted to practice without actual possession of
   52  the registration certificate.
   53    3-a. Prior to issuing any registration pursuant to  this  section  and
   54  section one thousand four of this article, the department of state shall
   55  request  and  review  any  information  relating  to  an applicant which
   56  reasonably appears to relate to professional misconduct in  his  or  her
       S. 1407                            145                           A. 2107
 
    1  professional  practice  in this and any other jurisdiction. Such depart-
    2  ment shall advise the director of the  office  of  professional  medical
    3  conduct  in  the department of health of any information about an appli-
    4  cant  which  reasonably appears to be professional misconduct as defined
    5  in sections one thousand fifty and one thousand fifty-one of this  arti-
    6  cle,  within  seven days of its discovery. The registration or re-regis-
    7  tration of such applicant shall not be delayed for  a  period  exceeding
    8  thirty  days  unless the director finds a basis for recommending summary
    9  action pursuant to subdivision twelve of section two hundred  thirty  of
   10  the  public  health  law  after consultation with a committee on profes-
   11  sional conduct of the state board for professional medical  conduct,  if
   12  warranted.    Re-registration  shall  be  issued  if the commissioner of
   13  health fails to issue a summary order pursuant to subdivision twelve  of
   14  section  two  hundred thirty of the public health law within ninety days
   15  of notice by the department  of  state  pursuant  to  this  subdivision.
   16  Re-registration  shall  be denied if the commissioner of health issues a
   17  summary order pursuant to subdivision  twelve  of  section  two  hundred
   18  thirty of the public health law.
   19    4.  Any  licensee  who  is  not engaging in the practice of his or her
   20  profession in this state and does not desire to register shall so advise
   21  the department of state. Such licensee shall not be required to  pay  an
   22  additional fee for failure to register at the beginning of the registra-
   23  tion period.
   24    5.  Licensees  shall  notify  the  department of any change of name or
   25  mailing address within thirty days of such change.  Failure to  register
   26  or  provide  such  notice  within one hundred eighty days of such change
   27  shall be willful failure under section one thousand fifty of this  arti-
   28  cle.
   29    6.  The  fee  for  replacement  of  a lost registration certificate or
   30  license or for  registration  of  an  additional  office  shall  be  ten
   31  dollars.
   32    7.  An  additional fee of twenty-five dollars shall be charged for the
   33  licensure or registration of any applicant who submits a  bad  check  to
   34  the department of state.
   35    § 904. Practice  of  a  profession.  Admission  to  the  practice of a
   36  profession (1) entitles the  licensee  to  practice  the  profession  as
   37  defined  in  the  subarticle for the particular profession, (2) entitles
   38  the individual licensee to use the professional title as provided in the
   39  subarticle for the particular profession, and (3) subjects the  licensee
   40  to   the   procedures  and  penalties  for  professional  misconduct  as
   41  prescribed in this subarticle.
   42    § 905. Regulation of the professions.   Admission to the  practice  of
   43  the  professions  (licensing)  and  regulation of such practice shall be
   44  supervised by the secretary of state and administered by the  department
   45  of state, assisted by a state board for each profession.
   46    § 906. Construction.    No  definition of the practice of a profession
   47  shall be construed to restrain or restrict the  performance  of  similar
   48  acts authorized in the definition of other professions.
   49    § 907. Professional  referrals.   There shall be no monetary liability
   50  on the part of, and no cause of action for damages shall arise  against,
   51  any association or society of professionals authorized to practice under
   52  this  article,  or any employee, agent, or member thereof, for referring
   53  any person to a member of the profession represented by such association
   54  or society provided that such referral was  made  without  charge  as  a
   55  service  to the public, and without malice, and in the reasonable belief
   56  that such referral was warranted, based upon the facts disclosed.
       S. 1407                            146                           A. 2107
 
    1    § 908. Course work or training in infection control practices.   Every
    2  dentist, registered nurse, licensed practical nurse, podiatrist, optome-
    3  trist  and  dental  hygienist  practicing in the state shall, every four
    4  years, complete course work  or  training  appropriate  to  the  profes-
    5  sional's   practice  approved  by  the  department  of  state  regarding
    6  infection control and barrier  precautions,  including  engineering  and
    7  work  practice controls, in accordance with regulatory standards promul-
    8  gated by the department of state, in consultation with the department of
    9  health, which shall be consistent, as  far  as  appropriate,  with  such
   10  standards  adopted  by  the department of health pursuant to section two
   11  hundred thirty-nine of the public health law to prevent the transmission
   12  of HIV/HBV in the course of professional  practice.  Each  such  profes-
   13  sional  shall  document to the department of state at the time of regis-
   14  tration that the professional has completed course work or  training  in
   15  accordance  with  this  section,  provided,  however that a professional
   16  subject to the provisions of paragraph (f) of subdivision one of section
   17  twenty-eight hundred five-k of  the  public  health  law  shall  not  be
   18  required  to  so  document.  The  department  of  state shall provide an
   19  exemption from this requirement to anyone who requests such an exemption
   20  and who (i) clearly demonstrates that there would be no need for him  or
   21  her  to  complete  such course work or training because of the nature of
   22  his or her practice or (ii) that he or she has completed course work  or
   23  training  deemed  by  the  department  of  state to be equivalent to the
   24  course work or training approved by the department of state pursuant  to
   25  this  section.  The department of state shall consult with organizations
   26  representative of professions, institutions and those with expertise  in
   27  infection  control and HIV and HBV with respect to the regulatory stand-
   28  ards promulgated pursuant to this section.
   29                                    TITLE B
   30                              State management.
   31    § 920. Supervision by the secretary of state.  The secretary of  state
   32  shall supervise the admission to and the practice of the professions. In
   33  supervising, the secretary of state may:
   34    (1)  Promulgate  rules,  except  that  no  rule  shall  be promulgated
   35  concerning subarticle two-A of this article;
   36    (2) Establish by rule, high school, preprofessional, professional  and
   37  other   educational   qualifications   required  for  licensing  in  the
   38  professions regulated by this article;
   39    (3)  Recognize  schools  offering   educational   programs   for   the
   40  professions regulated by this article;
   41    (4)  Appoint  such  committees  as  it  deems necessary and compensate
   42  members of such committees who are not  members  of  the  department  of
   43  state  up to one hundred dollars per day for each day devoted to commit-
   44  tee functions, together with their necessary expenses;
   45    (5) Waive education, experience and  examination  requirements  for  a
   46  professional  license  prescribed  in  the  subarticle  relating  to the
   47  profession, provided the secretary of state shall be satisfied that  the
   48  requirements of such subarticle have been substantially met;
   49    (6)  Indorse a license issued by a licensing board of another state or
   50  country upon the applicant fulfilling the following requirements:
   51    (a) Application: file an application with the department of state;
   52    (b) Education: meet educational requirements in  accordance  with  the
   53  regulations of the secretary of state;
   54    (c) Experience: have experience satisfactory to the secretary of state
   55  and in accordance with the secretary's regulations;
       S. 1407                            147                           A. 2107
 
    1    (d)  Examination: pass an examination satisfactory to the secretary of
    2  state and in accordance with the secretary's regulations;
    3    (e) Age: be at least twenty-one years of age;
    4    (f)  Citizenship  or immigration status: be a United States citizen or
    5  an alien lawfully admitted for permanent residence in the United States;
    6    (g) Character: be of good moral character as determined by the depart-
    7  ment of state;
    8    (7) Direct the department of state  to  remedy  any  error,  omission,
    9  delay  or  other  circumstance  in  the  issuance  or  registration of a
   10  license;
   11    (8) Designate a professional conduct officer, who shall be  the  chief
   12  administrative  officer  of the office of the professions, or his or her
   13  designee, in  connection  with  professional  licensing  and  misconduct
   14  proceedings  and criminal matters, such officer to be empowered to issue
   15  subpoenas and administer oaths in connection with such proceedings;
   16    (9) Establish by rule, standards of conduct with respect to  advertis-
   17  ing, fee splitting, practicing under a name other than that of the indi-
   18  vidual  licensee  (when  not  specifically  authorized),  proper  use of
   19  academic or professional degrees or titles tending to imply professional
   20  status, and such other ethical practices as the secretary of state shall
   21  deem necessary, except that no  rule  shall  be  established  concerning
   22  subarticle two-A of this article; and
   23    (10)  Delegate  to department of state officers the disposition of any
   24  licensing matters pursuant to rules.
   25    § 921. Administration by the department of state. 1.   The  department
   26  of  state  shall  administer  the  admission  to and the practice of the
   27  professions.
   28    2. In administering, the department of state may:
   29    a. Promulgate regulations, except that no regulations shall be promul-
   30  gated concerning subarticle two-A of this article;
   31    b. Conduct investigations;
   32    c. Issue subpoenas;
   33    d. Grant immunity from prosecution in accordance with section 50.20 of
   34  the criminal procedure law to anyone subpoenaed in any investigation  or
   35  hearing conducted pursuant to this article; and
   36    e.  Excuse, for cause acceptable to the department of state, the fail-
   37  ure to register with the department of state.  Such excuse  shall  vali-
   38  date  and authorize such practitioner's right to practice pending regis-
   39  tration.
   40    3. The department of state assisted by the board for each  profession,
   41  shall:
   42    a. Establish standards for preprofessional and professional education,
   43  experience  and  licensing  examinations  as  required  to implement the
   44  subarticle for each profession. Notwithstanding any other  provision  of
   45  law, the secretary of state shall establish standards requiring that all
   46  persons  applying,  on  or  after  October  first,  two  thousand three,
   47  initially, or for the renewal of, a  license,  registration  or  limited
   48  permit  to  be  a  physician,  chiropractor,  dentist, registered nurse,
   49  podiatrist, optometrist, psychiatrist, psychologist or dental  hygienist
   50  shall,  in  addition to all the other licensure, certification or permit
   51  requirements, have completed two hours of coursework or training regard-
   52  ing the identification and reporting of child  abuse  and  maltreatment.
   53  The  coursework  or  training  shall  be obtained from an institution or
   54  provider which has been approved by the department of state  to  provide
   55  such  coursework  or  training. The coursework or training shall include
   56  information regarding the physical and behavioral  indicators  of  child
       S. 1407                            148                           A. 2107
 
    1  abuse  and maltreatment and the statutory reporting requirements set out
    2  in sections four hundred thirteen through four  hundred  twenty  of  the
    3  social services law, including but not limited to, when and how a report
    4  must  be made, what other actions the reporter is mandated or authorized
    5  to take, the legal protections afforded reporters, and the  consequences
    6  for  failing  to  report. Each applicant shall provide the department of
    7  state with documentation showing  that  he  or  she  has  completed  the
    8  required  training.  The  department of state shall provide an exemption
    9  from the child abuse  and  maltreatment  training  requirements  to  any
   10  applicant  who  requests such an exemption and who shows, to the depart-
   11  ment of state's satisfaction, that there would be no need because of the
   12  nature of his or her practice for him or her to complete such training;
   13    b. Review qualifications in connection  with  licensing  requirements;
   14  and
   15    c. Provide for licensing examinations and reexaminations.
   16    4. The department of state shall:
   17    a.  Register  or approve educational programs designed for the purpose
   18  of providing professional preparation which meet  standards  established
   19  by the department of state.
   20    b.  Issue  licenses,  registrations,  and limited permits to qualified
   21  applicants;
   22    c. (i) Issue a certificate of authority to  a  qualified  professional
   23  service  corporation being organized under section fifteen hundred three
   24  of the business corporation law or  to  a  university  faculty  practice
   25  corporation being organized under section fourteen hundred twelve of the
   26  not-for-profit  corporation  law  on payment of a fee of ninety dollars,
   27  (ii) require such corporations to file a certified copy of each  certif-
   28  icate  of  incorporation  and amendment thereto within thirty days after
   29  the filing of such certificate or amendment on payment of a fee of twen-
   30  ty dollars, (iii) require such corporations to file a  triennial  state-
   31  ment required by section fifteen hundred fourteen of the business corpo-
   32  ration law on payment of a fee of one hundred five dollars.
   33    d.  Revoke  limited  permits on the recommendation of the committee on
   34  professional conduct for the profession concerned,  except  for  limited
   35  permits  issued  to  physicians, physician's assistants and specialist's
   36  assistants which shall be subject to sections two  hundred  thirty,  two
   37  hundred  thirty-a,  two hundred thirty-b and two hundred thirty-c of the
   38  public health law;
   39    e. Maintain public records of licenses issued and retain in its  files
   40  identifying  data  concerning  each  person  to  whom a license has been
   41  issued;
   42    f. Collect the fees prescribed by this article or  otherwise  provided
   43  by law;
   44    g.  Prepare  an  annual  report  for the legislature, the governor and
   45  other executive offices, the state boards for the  professions,  profes-
   46  sional  societies,  consumer agencies and other interested persons. Such
   47  report shall include but not be limited to a description and analysis of
   48  the administrative procedures and operations of the department of  state
   49  based  upon  a  statistical  summary relating to (i) new licensure, (ii)
   50  discipline, (iii) complaint, investigation, and  hearing  backlog,  (iv)
   51  budget,  and  (v)  the  state  boards  for  the professions. Information
   52  provided shall be enumerated by profession; and
   53    h. Establish an administrative unit which shall be responsible for the
   54  investigation, prosecution and determination of  alleged  violations  of
   55  professional conduct.
       S. 1407                            149                           A. 2107
 
    1    5.  The  secretary  of state and the department of state shall perform
    2  any other functions necessary to implement this article.
    3    § 922. State  boards  for the professions. 1. A board for each profes-
    4  sion shall be appointed by the secretary of state  for  the  purpose  of
    5  assisting  him  or her and the department of state on matters of profes-
    6  sional licensing, practice, and conduct. The composition of  each  board
    7  shall  be  as  prescribed in the subarticle relating to each profession.
    8  Within each board a committee on licensing may be appointed by the board
    9  chairman.
   10    Except as provided in paragraph a of this subdivision, the  membership
   11  of  each  professional licensing board shall be increased by one member,
   12  and each such board shall have at least one  public  representative  who
   13  shall be selected by the secretary of state from the general public.
   14    a.  The  membership of the professional licensing boards created under
   15  sections one  thousand  three,  thirteen  hundred  fifty-four,  fourteen
   16  hundred  four,  and  eighteen  hundred  three  of  this article shall be
   17  increased by two members, and each such board shall have  at  least  two
   18  public  representatives, who shall be selected by the secretary of state
   19  from the general public.
   20    b. For the purposes of this article, a "public  representative"  shall
   21  be  a person who is a consumer of services provided by those licensed or
   22  otherwise supervised or regulated by the boards created  hereunder,  and
   23  shall  not  be,  nor within five years immediately preceding appointment
   24  have been:
   25    (i) a licensee or person otherwise subject to the supervision or regu-
   26  lation of the board to which appointed; or
   27    (ii) a person maintaining a contractual relationship with  a  licensee
   28  of  such  board,  which  would constitute more than two percentum of the
   29  practice or business of any such licensee, or an officer,  director,  or
   30  representative of such person or group of persons.
   31    2.  Each board, or its committee on licensing, shall select or prepare
   32  examinations, may conduct oral and practical examinations and reexamina-
   33  tions, shall fix passing grades, and assist the department of  state  in
   34  other licensing matters.
   35    3.  Each board shall conduct disciplinary proceedings as prescribed in
   36  this subarticle and shall assist in other professional conduct matters.
   37    4. Members of each board shall be appointed by the secretary of  state
   38  for five-year terms except that the terms of those first appointed shall
   39  be  arranged  so that as nearly as possible an equal number shall termi-
   40  nate annually. A vacancy occurring during a term shall be filled  by  an
   41  appointment by the secretary of state for the unexpired term. Each state
   42  professional  association or society may nominate one or more candidates
   43  for each appointment to be made to the board for its profession, but the
   44  secretary of state shall not be required to appoint candidates so  nomi-
   45  nated. Former members of a board may be re-appointed by the secretary of
   46  state to serve as members of the board solely for the purposes of disci-
   47  plinary  proceedings,  proceedings relating to the moral character of an
   48  applicant for licensure, and proceedings relating  to  applications  for
   49  the restoration of a professional license. In addition, each board shall
   50  establish  a  roster  of  auxiliary members from candidates nominated by
   51  professional associations or societies for appointment by the  secretary
   52  of  state  to  serve  as members of the board solely for the purposes of
   53  disciplinary proceedings, proceedings relating to the moral character of
   54  an applicant for licensure, and proceedings relating to applications for
   55  the restoration of a professional license.
       S. 1407                            150                           A. 2107
 
    1    5. Each member of a board shall receive a certificate of  appointment,
    2  shall  before  beginning his or her term of office file a constitutional
    3  oath of office with the secretary of state,  shall  receive  up  to  one
    4  hundred  dollars  for each day devoted to board work, and shall be reim-
    5  bursed for his or her necessary expenses. Any member may be removed from
    6  a  board by the secretary of state for misconduct, incapacity or neglect
    7  of duty.
    8    6. Each board shall elect from its members a chairman and  vice-chair-
    9  man  annually, shall meet upon call of the chairman or the department of
   10  state, and may adopt bylaws consistent with this article and approved by
   11  the secretary of state.  A quorum for the transaction of business by the
   12  board shall be a majority of members but not less than five members.
   13    7. An executive secretary to each board  shall  be  appointed  by  the
   14  secretary  of state.   Such executive secretary shall not be a member of
   15  the board, shall hold office at the pleasure  of,  and  shall  have  the
   16  powers, duties and annual salary prescribed by the secretary of state.
   17                                  TITLE C.
   18                          Professional misconduct.
   19    § 940. Definitions  of  professional misconduct. Each of the following
   20  is professional misconduct,  and  any  licensee  found  guilty  of  such
   21  misconduct  under  the  procedures  prescribed  in  section nine hundred
   22  forty-four of this title shall be subject to the penalties prescribed in
   23  section nine hundred forty-eight of this title:
   24    (1) Obtaining the license fraudulently,
   25    (2) Practicing the  profession  fraudulently,  beyond  its  authorized
   26  scope,  with  gross  incompetence, with gross negligence on a particular
   27  occasion or negligence or incompetence on more than one occasion,
   28    (3) Practicing  the  profession  while  the  ability  to  practice  is
   29  impaired by alcohol, drugs, physical disability, or mental disability,
   30    (4)  Being  habitually drunk or being dependent on, or a habitual user
   31  of narcotics, barbiturates, amphetamines, hallucinogens, or other  drugs
   32  having similar effects,
   33    (5)  (a)  Being  convicted  of  committing an act constituting a crime
   34  under:
   35    (i) New York State law or,
   36    (ii) Federal law or,
   37    (iii) The law of another jurisdiction and which, if  committed  within
   38  this state, would have constituted a crime under New York State law;
   39    (b)  Having  been  found  guilty  of improper professional practice or
   40  professional misconduct by a duly authorized  professional  disciplinary
   41  agency  of  another  state  where the conduct upon which the finding was
   42  based would, if committed in New  York  state,  constitute  professional
   43  misconduct under the laws of New York state;
   44    (c) Having been found by the commissioner of health to be in violation
   45  of article thirty-three of the public health law.
   46    (d)  Having  his  license  to  practice medicine revoked, suspended or
   47  having other disciplinary action taken, or having his application for  a
   48  license refused, revoked or suspended or having voluntarily or otherwise
   49  surrendered  his license after a disciplinary action was instituted by a
   50  duly authorized professional disciplinary agency of another state, where
   51  the conduct resulting in the revocation, suspension or  other  discipli-
   52  nary  action  involving the license or refusal, revocation or suspension
   53  of an application for a license or the surrender of the  license  would,
   54  if committed in New York state, constitute professional misconduct under
   55  the laws of New York state.
       S. 1407                            151                           A. 2107
 
    1    (6)  Refusing  to  provide professional service to a person because of
    2  such person's race, creed, color, or national origin,
    3    (7)  Permitting,  aiding  or  abetting an unlicensed person to perform
    4  activities requiring a license,
    5    (8) Practicing the profession  while  the  license  is  suspended,  or
    6  wilfully  failing  to  register or notify the department of state of any
    7  change of name or mailing address, or, if a professional service  corpo-
    8  ration  wilfully  failing  to comply with sections fifteen hundred three
    9  and fifteen hundred fourteen of the business corporation law  or,  if  a
   10  university  faculty practice corporation wilfully failing to comply with
   11  paragraphs (b), (c) and (d) of section fifteen hundred three and section
   12  fifteen hundred fourteen of the business corporation law,
   13    (9) Committing unprofessional conduct, as defined by the secretary  of
   14  state  in  its  rules  or  in  regulations approved by the department of
   15  state,
   16    (10) A violation of section twenty-eight hundred  three-d  or  twenty-
   17  eight hundred five-k of the public health law.
   18    (11) A violation of section nine hundred eight of this subarticle by a
   19  professional  other  than  a  professional  subject to the provisions of
   20  paragraph (f) of subdivision one of section twenty-eight hundred  five-k
   21  of the public health law.
   22    (12)  In  the  event that the department of environmental conservation
   23  has reported to the department of state alleged misconduct by an  archi-
   24  tect  or  professional  engineer in making a certification under section
   25  nineteen of the tax law (relating to the green building tax credit)  the
   26  secretary  of state, upon a hearing and a finding of willful misconduct,
   27  may revoke the license of such  professional  or  prescribe  such  other
   28  penalty as it determines to be appropriate.
   29    § 941. Additional   definition  of  professional  misconduct;  limited
   30  application.  Notwithstanding any inconsistent provision of this  subar-
   31  ticle  or  of any other provision of law to the contrary, the license or
   32  registration of a person subject to the provisions of subarticles three,
   33  four, six, seven, eight, ten, eleven, twelve,  twenty-one,  twenty-three
   34  and  twenty-eight  of this article may be revoked, suspended or annulled
   35  or such person may be subject to any other penalty provided  in  section
   36  nine  hundred  forty-eight  of  this  subarticle  in accordance with the
   37  provisions and procedure of this subarticle for the following:
   38    That any person subject  to  the  above  enumerated  subarticles,  has
   39  directly  or indirectly requested, received or participated in the divi-
   40  sion, transference, assignment, rebate, splitting or refunding of a  fee
   41  for, or has directly requested, received or profited by means of a cred-
   42  it or other valuable consideration as a commission, discount or gratuity
   43  in  connection  with  the  furnishing  of professional care, or service,
   44  including x-ray examination and treatment, or for or in connection  with
   45  the  sale,  rental,  supplying  or  furnishing  of  clinical  laboratory
   46  services or supplies, x-ray laboratory services or supplies,  inhalation
   47  therapy  service  or  equipment,  ambulance service, hospital or medical
   48  supplies, physiotherapy or other therapeutic service or equipment, arti-
   49  ficial limbs, teeth  or  eyes,  orthopedic  or  surgical  appliances  or
   50  supplies,  optical appliances, supplies or equipment, devices for aid of
   51  hearing, drugs, medication or  medical  supplies  or  any  other  goods,
   52  services or supplies prescribed for medical diagnosis, care or treatment
   53  under  this article, except payment, not to exceed thirty-three and one-
   54  third per centum of any fee received for x-ray examination, diagnosis or
   55  treatment, to any hospital furnishing facilities for  such  examination,
   56  diagnosis or treatment.  Nothing contained in this section shall prohib-
       S. 1407                            152                           A. 2107
 
    1  it  such  persons from practicing as partners, in groups or as a profes-
    2  sional corporation or as a university faculty practice  corporation  nor
    3  from  pooling  fees  and  moneys  received,  either by the partnerships,
    4  professional  corporations,  university faculty practice corporations or
    5  groups by the individual  members  thereof,  for  professional  services
    6  furnished  by  any  individual  professional member, or employee of such
    7  partnership, corporation or group, nor shall the  professionals  consti-
    8  tuting the partnerships, corporations or groups be prohibited from shar-
    9  ing, dividing or apportioning the fees and moneys received by them or by
   10  the  partnership,  corporation or group in accordance with a partnership
   11  or other agreement; provided that no such practice as  partners,  corpo-
   12  rations  or  in  groups or pooling of fees or moneys received or shared,
   13  division or apportionment of fees shall be  permitted  with  respect  to
   14  care  and  treatment  under  the  workers'  compensation  law  except as
   15  expressly  authorized  by  the  workers'  compensation  law.     Nothing
   16  contained  in  this  article  shall prohibit a medical or dental expense
   17  indemnity corporation pursuant to its contract with the subscriber  from
   18  prorationing  a  medical or dental expense indemnity allowance among two
   19  or more professionals in proportion to the  services  rendered  by  each
   20  such  professional at the request of the subscriber, provided that prior
   21  to payment thereof such professionals shall submit both to  the  medical
   22  or dental expense indemnity corporation and to the subscriber statements
   23  itemizing the services rendered by each such professional and the charg-
   24  es therefor.
   25    § 942. Additional  definition  of  professional misconduct; arrears in
   26  payment of support; limited application.   1.  The  provisions  of  this
   27  section  shall  apply  in all cases of licensee or registrant arrears in
   28  payment of child support or combined child and spousal support  referred
   29  to  the  secretary  of  state by a court pursuant to the requirements of
   30  section two hundred forty-four-c of the domestic relations law or pursu-
   31  ant to section four hundred fifty-eight-b of the family court act.
   32    2. Upon receipt of an order from the court  pursuant  to  one  of  the
   33  foregoing  provisions of law, the secretary of state, if he or she finds
   34  such person to be so licensed or registered, shall within thirty days of
   35  receipt of such order from the court, provide notice to the licensee  or
   36  registrant  of,  and  cause  the review committee to initiate, a hearing
   37  which shall be held at least twenty days and no more  than  thirty  days
   38  after  the  sending  of  such  notice to the licensee or registrant. The
   39  hearing shall be held solely for  the  purpose  of  determining  whether
   40  there  exists  as  of the date of the hearing proof that full payment of
   41  all arrears of support established by the order of the court to  be  due
   42  from  the  licensee  or registrant have been paid. Proof of such payment
   43  shall be a certified check showing full payment of  established  arrears
   44  or  a notice issued by the court or by the support collection unit where
   45  the order is payable to the support collection unit  designated  by  the
   46  appropriate  social services district. Such notice shall state that full
   47  payment of all arrears of support established by the order of the  court
   48  to be due have been paid. The licensee or registrant shall be given full
   49  opportunity to present such proof of payment at the hearing in person or
   50  by counsel. The only issue to be determined by the review committee as a
   51  result of the hearing is whether the arrears have been paid. No evidence
   52  with respect to the appropriateness of the court order or ability of the
   53  respondent  party in arrears to comply with such order shall be received
   54  or considered during such hearing.
   55    3. Notwithstanding any inconsistent provision of this subarticle or of
   56  any other provision of law to the contrary, the license or  registration
       S. 1407                            153                           A. 2107
 
    1  of  a person subject to the provisions of this article and/or subject to
    2  the provisions of title two-A of article two of the  public  health  law
    3  shall be suspended if, at the hearing provided for by subdivision two of
    4  this  section,  the  licensee  or  registrant  fails to present proof of
    5  payment as required by such subdivision.  Such suspension shall  not  be
    6  lifted  unless the court or the support collection unit, where the court
    7  order is payable to the support collection unit designated by the appro-
    8  priate social services district, issues notice to the  review  committee
    9  that  full payment of all arrears of support established by the order of
   10  the court to be due have been paid.
   11    4. The secretary of state shall inform the court of all actions  taken
   12  hereunder as required by law.
   13    5.  This  section  applies to support obligations paid pursuant to any
   14  order of child  support  or  child  and  spousal  support  issued  under
   15  provisions of section two hundred thirty-six or two hundred forty of the
   16  domestic  relations  law,  or article four, five or five-A of the family
   17  court act.
   18    6. Notwithstanding any inconsistent provision of this subarticle or of
   19  any other provision of law to  the  contrary,  the  provisions  of  this
   20  section  shall  apply to the exclusion of any other requirements of this
   21  subarticle and to the exclusion of any other requirement of law  to  the
   22  contrary.
   23    §  943.   Additional definition of professional misconduct; failure to
   24  comply in paternity or child support proceedings;  limited  application.
   25  1.  The  provisions of this section shall apply in all cases of licensee
   26  or registrant failure after receiving appropriate notice, to comply with
   27  a summons, subpoena or warrant relating to a paternity or child  support
   28  proceeding referred to the secretary of state by a court pursuant to the
   29  requirements  of  section  two  hundred  forty-four-c  of  the  domestic
   30  relations law or pursuant to section four hundred fifty-eight-b or  five
   31  hundred forty-eight-b of the family court act.
   32    2.  Upon  receipt  of  an  order from the court pursuant to one of the
   33  foregoing provisions of law, the secretary of state, if he or she  finds
   34  such person to be so licensed or registered, shall within thirty days of
   35  receipt  of such order from the court, provide notice to the licensee or
   36  registrant that his or her license or registration shall be suspended in
   37  sixty days unless the conditions as set forth in  subdivision  three  of
   38  this section are met.
   39    3. Notwithstanding any inconsistent provision of this subarticle or of
   40  any  other provision of law to the contrary, the license or registration
   41  of a person subject to the provisions of this article and/or subject  to
   42  the  provisions  of  title two-A of article two of the public health law
   43  shall be suspended unless the court terminates  its  order  to  commence
   44  suspension  proceedings.  Such suspension shall not be lifted unless the
   45  court issues an order to the secretary of state terminating its order to
   46  commence suspension proceedings.
   47    4. The secretary of state shall inform the court of all actions  taken
   48  hereunder as required by law.
   49    5.  This  section  applies  to  paternity or child support proceedings
   50  commenced under, and support obligations paid pursuant to any  order  of
   51  child  support  or  child and spousal support issued under provisions of
   52  section two hundred thirty-six or two  hundred  forty  of  the  domestic
   53  relations  law,  or  article  four, five, five-A or five-B of the family
   54  court act.
   55    6. Notwithstanding any inconsistent provision of this subarticle or of
   56  any other provision of law to  the  contrary,  the  provisions  of  this
       S. 1407                            154                           A. 2107
 
    1  section  shall  apply to the exclusion of any other requirements of this
    2  subarticle and to the exclusion of any other requirement of law  to  the
    3  contrary.
    4    § 944. Proceedings  in  cases  of professional misconduct. In cases of
    5  professional misconduct the proceedings shall be as follows:
    6    1. Preliminary procedures.
    7    a. Complaint. A complaint of a licensee's professional misconduct  may
    8  be made by any person to the department of state.
    9    b.  Investigation.  The  department  of  state  shall investigate each
   10  complaint which alleges conduct  constituting  professional  misconduct.
   11  The  results  of the investigation shall be referred to the professional
   12  conduct officer designated by the secretary of state pursuant to section
   13  nine hundred twenty of this subarticle.   If such officer  decides  that
   14  there  is  not  substantial  evidence of professional misconduct or that
   15  further proceedings are not warranted, no further action shall be taken.
   16  If such officer, after consultation with a professional  member  of  the
   17  applicable  state  board  for  the  profession, determines that there is
   18  substantial  evidence  of  professional  misconduct,  and  that  further
   19  proceedings  are warranted, such proceedings shall be conducted pursuant
   20  to this section.  If the complaint involves a question  of  professional
   21  expertise,  then  such  officer  may  seek,  and if so shall obtain, the
   22  concurrence of at least two members of a panel of three members  of  the
   23  applicable  board.    The  department of state shall cause a preliminary
   24  review of every report made to  the  department  of  state  pursuant  to
   25  sections twenty-eight hundred three-e, as added by chapter eight hundred
   26  sixty-six of the laws of nineteen hundred eighty, and forty-four hundred
   27  five-b  of the public health law and three hundred fifteen of the insur-
   28  ance law, to determine if such  report  reasonably  appears  to  reflect
   29  conduct warranting further investigation pursuant to this subdivision.
   30    c.  Charges.  In  all disciplinary proceedings other than those termi-
   31  nated by an administrative warning pursuant to paragraph a  of  subdivi-
   32  sion  two  of  this  section,  the department of state shall prepare the
   33  charges. The charges shall state the alleged professional misconduct and
   34  shall state concisely the material facts but not the evidence  by  which
   35  the charges are to be proved.
   36    d.  Service of charges and of notice of hearing. A copy of the charges
   37  and notice of any hearing pursuant to subdivision two or three  of  this
   38  section  shall be served on the licensee personally by the department of
   39  state at least fifteen days before  the  hearing.  If  personal  service
   40  cannot  be  made  after  due  diligence and such fact is certified under
   41  oath, a copy of the charges and the notice of hearing shall be served by
   42  certified mail, return receipt requested to the  licensee's  last  known
   43  address by the department of state at least twenty days before the hear-
   44  ing.
   45    e.  Records  and  reports  as  public information. In all disciplinary
   46  proceedings brought pursuant to this section or in any voluntary settle-
   47  ment of a complaint between the licensee and the  department  of  state,
   48  the  department  of  state shall notify the licensee in writing that the
   49  record and reports of such disciplinary proceeding or of such  voluntary
   50  settlement  shall  be  considered  matters  of public information unless
   51  specifically excepted in this subarticle, or in any other law or  appli-
   52  cable rule or regulation.
   53    2. Expedited procedures.
   54    a. Violations. Violations involving professional misconduct of a minor
   55  or  technical nature may be resolved by expedited procedures as provided
   56  in paragraph b or c of this subdivision. For purposes of  this  subdivi-
       S. 1407                            155                           A. 2107
 
    1  sion, violations of a minor or technical nature shall include, but shall
    2  not  be  limited to, isolated instances of violations concerning profes-
    3  sional advertising or record  keeping,  and  other  isolated  violations
    4  which  do  not  directly  affect or impair the public health, welfare or
    5  safety.  The initial instance of any violation of a minor  or  technical
    6  nature  may  be  resolved  by  the issuance of an administrative warning
    7  pursuant to paragraph b of this  subdivision.  Subsequent  instances  of
    8  similar  violations  of  a  minor or technical nature within a period of
    9  three years may be resolved by the procedure set forth in paragraph c of
   10  this subdivision.
   11    b. Administrative warning. If a professional  conduct  officer,  after
   12  consultation  with  a professional member of the state board, determines
   13  that there is substantial evidence of professional misconduct  but  that
   14  it  is  an  initial violation of a minor or technical nature which would
   15  not justify the imposition of a more severe  disciplinary  penalty,  the
   16  matter  may  be terminated by the issuance of an administrative warning.
   17  Such warnings shall be confidential and shall not constitute an  adjudi-
   18  cation  of  guilt  or be used as evidence that the licensee is guilty of
   19  the alleged misconduct. However, in the event of a further allegation of
   20  similar misconduct by the same licensee, the matter may be reopened  and
   21  further proceedings instituted as provided in this section.
   22    c.  Determination  of  penalty  on  uncontested minor violations. If a
   23  professional conduct officer, after  consultation  with  a  professional
   24  member of the state board, determines that there is substantial evidence
   25  of  a violation of a minor or technical nature, and of a nature justify-
   26  ing a penalty as specified in this paragraph, the  department  of  state
   27  may prepare and serve charges either by personal service or by certified
   28  mail,  return  receipt requested. Such charges shall include a statement
   29  that unless an answer is received within twenty days denying the  charg-
   30  es, the matter shall be referred to a violations committee consisting of
   31  five members of the state board for the profession, at least one of whom
   32  shall  be  a  public  representative for determination.   The violations
   33  panel shall be appointed by the executive secretary of the state  board.
   34  The licensee shall be given at least fifteen days notice of the time and
   35  place  of  the  meeting  of  the violations committee and shall have the
   36  right to appear in person and by an attorney and to make a statement  to
   37  the  committee  in  mitigation  or  explanation  of  the misconduct. The
   38  department of state may appear and make a statement in  support  of  its
   39  position.  The  violations  committee may issue a censure and reprimand,
   40  and in addition, or in the alternative, may impose a fine not to  exceed
   41  five  hundred  dollars  for  each  specification  of minor, or technical
   42  misconduct. If the fine is not paid within three months the  matter  may
   43  be  reopened and shall be subject to the hearing and decision procedures
   44  of this section. The determination of the panel shall be final and shall
   45  not be subject to the decision procedures of this section. If an  answer
   46  is  filed denying the charges, the matter shall be processed as provided
   47  in subdivision three of this section.
   48    d. Convictions of crimes or administrative  violations.  In  cases  of
   49  professional  misconduct  based  solely  upon a violation of subdivision
   50  five of section nine hundred  forty  of  this  title,  the  professional
   51  conduct  officer  may  prepare  and  serve the charges and may refer the
   52  matter directly to a review committee for its review and report  of  its
   53  findings,  determination as to guilt, and recommendation as to the meas-
   54  ure of discipline to be imposed. In such cases  the  notice  of  hearing
   55  shall state that the licensee may file a written answer, brief and affi-
   56  davits;  that  the  licensee  may  appear  personally  before the review
       S. 1407                            156                           A. 2107
 
    1  committee, may be represented by counsel and  may  present  evidence  or
    2  sworn  testimony  on  behalf of the licensee, and the notice may contain
    3  such other information as may be considered appropriate by  the  depart-
    4  ment  of  state.    The department of state may also present evidence or
    5  sworn testimony at the hearing. A stenographic  record  of  the  hearing
    6  shall  be  made. Such evidence or sworn testimony offered at the meeting
    7  of the review committee shall  be  limited  to  evidence  and  testimony
    8  relating  to  the  nature and severity of the penalty to be imposed upon
    9  the licensee. The presiding officer at the meeting of the review commit-
   10  tee may, in his or  her  discretion,  reasonably  limit  the  number  of
   11  witnesses  whose  testimony  will be received and the length of time any
   12  witness will be permitted to testify. In lieu of referring the matter to
   13  the secretary of state, the review committee may refer any  such  matter
   14  for further proceedings pursuant to paragraph b or c of this subdivision
   15  or subdivision three of this section.
   16    3. Adversary proceedings. Contested disciplinary proceedings and other
   17  disciplinary  proceedings  not  resolved  pursuant to subdivision two of
   18  this section shall be tried before a hearing panel  of  the  appropriate
   19  state board as provided in this subdivision.
   20    a.  Notice  of hearing. The department of state shall set the time and
   21  place of the hearing and shall prepare the notice of hearing. The notice
   22  of hearing shall state (1) the time and place of the hearing,  (2)  that
   23  the licensee may file a written answer to the charges prior to the hear-
   24  ing,  (3) that the licensee may appear personally at the hearing and may
   25  be represented by counsel, (4) that the licensee shall have the right to
   26  produce witnesses and evidence in his or her  behalf,  to  cross-examine
   27  witnesses and examine evidence produced against him or her, and to issue
   28  subpoenas  in  accordance  with the provisions of the civil practice law
   29  and rules, (5) that a stenographic record of the hearing will  be  made,
   30  and  (6)  such other information as may be considered appropriate by the
   31  department of state.
   32    b. Hearing panel. The hearing shall be conducted by a panel  of  three
   33  or more members, at least two of whom shall be members of the applicable
   34  state  board  for  the  profession,  and at least one of whom shall be a
   35  public representative who is a member of the applicable state  board  or
   36  of  the  state  board  for  another profession licensed pursuant to this
   37  article. The executive secretary for the applicable  state  board  shall
   38  appoint  the  panel  and  shall  designate  its  chairperson.  After the
   39  commencement of a hearing, no panel member shall be replaced. A determi-
   40  nation by the administrative officer of a need to disqualify  or  remove
   41  any  panel  member will result in the disqualification or removal of the
   42  panel and cause a new panel to be appointed. In addition to  said  panel
   43  members, the department of state shall designate an administrative offi-
   44  cer,  admitted  to practice as an attorney in the state of New York, who
   45  shall have the authority to rule on all motions,  procedures  and  other
   46  legal  objections  and  shall draft a report for the hearing panel which
   47  shall be subject to the approval of and signature by  the  panel  chair-
   48  person  on  behalf of the panel. The administrative officer shall not be
   49  entitled to a vote.
   50    c. Conduct of hearing. The evidence in support of the charges shall be
   51  presented by an attorney for the department  of  state.    The  licensee
   52  shall  have  the  rights required to be stated in the notice of hearing.
   53  The panel shall not be bound by the rules of evidence, but its  determi-
   54  nation  of  guilt  shall  be based on a preponderance of the evidence. A
   55  hearing which has been initiated shall not be  discontinued  because  of
   56  the death or incapacity to serve of one member of the hearing panel.
       S. 1407                            157                           A. 2107
 
    1    d. Results of hearing. The hearing panel shall render a written report
    2  which  shall include (1) findings of fact, (2) a determination of guilty
    3  or not guilty on each charge, and (3) in the event of a determination of
    4  guilty, a recommendation of the penalty to be imposed. For the panel  to
    5  make  a  determination of guilty, a minimum of two of the voting members
    6  of the panel must vote for such a determination. A copy of the report of
    7  the hearing panel shall be transmitted to the licensee.
    8    4. Decision procedures.
    9    a. Review committee. The transcript and report of  the  hearing  panel
   10  shall  be  reviewed  at a meeting by a review committee appointed by the
   11  secretary of state. The review committee shall consist of three members.
   12    b. Review committee meetings. The review shall be based on  the  tran-
   13  script  and  the report of the hearing panel. The licensee may appear at
   14  the meeting, and the  review  committee  may  require  the  licensee  to
   15  appear.  The  licensee  may be represented by counsel. The department of
   16  state shall notify the licensee at least seven days before  the  meeting
   17  (1)  of  the  time  and place of the meeting, (2) of his or her right to
   18  appear, (3) of his or her right to be represented by counsel, (4) wheth-
   19  er or not he or she is required to appear, and (5) of such other  infor-
   20  mation  as  may be considered appropriate. After the meeting, the review
   21  committee shall transmit a written report of its review to the secretary
   22  of state.  In cases referred directly to the review  committee  pursuant
   23  to  paragraph  d of subdivision two of this section, the review shall be
   24  based upon the  charges,  the  documentary  evidence  submitted  by  the
   25  department  of  state,  any answer, affidavits or brief the licensee may
   26  wish to submit, and any evidence or sworn  testimony  presented  by  the
   27  licensee  or  the  department  of  state at the hearing, pursuant to the
   28  procedures described by paragraph d of subdivision two of this section.
   29    c. Decision and order. The department of state (1) shall consider  the
   30  transcript,  the  report  of  the  hearing  panel, and the report of the
   31  review committee, (2) shall decide whether the licensee is guilty or not
   32  guilty on each charge, (3) shall  decide  what  penalties,  if  any,  to
   33  impose  as prescribed in section nine hundred forty-eight of this title,
   34  and (4) shall issue an order to carry out its decisions.  Such decisions
   35  shall require the approval of the secretary of state. If  the  secretary
   36  of state disagrees with the hearing panel's determination of not guilty,
   37  it  shall remand the matter to the original panel for reconsideration or
   38  to a new panel for a new hearing. The panel's determination of not guil-
   39  ty on reconsideration or a new hearing shall be final. The  order  shall
   40  be  served  upon  the  licensee  personally  or by certified mail to the
   41  licensee's last known address and such service shall be effective as  of
   42  the date of the personal service or five days after mailing by certified
   43  mail.  The licensee shall deliver to the department of state the license
   44  and  registration  certificate  which  has   been   revoked,   annulled,
   45  suspended,  or  surrendered within five days after the effective date of
   46  the service of the order.  If the license or registration certificate is
   47  lost, misplaced or its whereabouts is otherwise  unknown,  the  licensee
   48  shall submit an affidavit to that effect, and shall deliver such license
   49  or certificate to the department of state when located.
   50    5.  Court  review  procedures. The decisions of the secretary of state
   51  may be reviewed pursuant to the proceedings under article  seventy-eight
   52  of  the  civil practice law and rules. Such proceedings shall be return-
   53  able before the appellate division of the third judicial department, and
   54  such decisions shall not be stayed or enjoined except  upon  application
   55  to  such  appellate division after notice to the department of state and
       S. 1407                            158                           A. 2107
 
    1  to the attorney general and upon a showing that  the  petitioner  has  a
    2  substantial likelihood of success.
    3    6.  The  provisions  of  subdivisions one through four of this section
    4  shall not be applicable to proceedings in cases of professional  miscon-
    5  duct  involving  the medical profession, except as provided in paragraph
    6  (m) of subdivision ten of section  two  hundred  thirty  of  the  public
    7  health law.
    8    7.  Notwithstanding any other provision of law, persons who assist the
    9  department of state as consultants or expert witnesses in  the  investi-
   10  gation  or  prosecution  of  alleged  professional misconduct, licensure
   11  matters, restoration proceedings, or criminal prosecutions for unauthor-
   12  ized practice, shall not be liable for damages in any  civil  action  or
   13  proceeding  as  a result of such assistance, except upon proof of actual
   14  malice. The attorney general shall  defend  such  persons  in  any  such
   15  action or proceeding, in accordance with section seventeen of the public
   16  officers law.
   17    8.  The files of the department of state relating to the investigation
   18  of possible instances of professional misconduct, or the unlawful  prac-
   19  tice  of  any  profession  licensed  by  the department of state, or the
   20  unlawful use of a professional title or the moral fitness of  an  appli-
   21  cant for a professional license or permit, shall be confidential and not
   22  be  subject  to disclosure at the request of any person, except upon the
   23  order of a court in a pending action or proceeding.  The  provisions  of
   24  this  subdivision shall not apply to documents introduced in evidence at
   25  a hearing held pursuant to  this  article  and  shall  not  prevent  the
   26  department  of  state from sharing information concerning investigations
   27  with other duly authorized public agencies responsible for  professional
   28  regulation or criminal prosecution.
   29    § 945. Temporary  surrender  of  licenses during treatment for drug or
   30  alcohol abuse. 1. The license and registration of a licensee who may  be
   31  temporarily  incapacitated  for  the  active  practice  of  a profession
   32  licensed pursuant to this article, except professionals licensed  pursu-
   33  ant  to  subarticle  two  or subarticle two-B thereof, and whose alleged
   34  incapacity is the result of a problem of drug or alcohol abuse which has
   35  not resulted in harm to a patient or client, may be voluntarily  surren-
   36  dered to the department of state, which may accept and hold such license
   37  during  the period of such alleged incapacity or the department of state
   38  may accept the surrender of such license after agreement  to  conditions
   39  to  be  met  prior  to the restoration of the license. The department of
   40  state shall give written notification of such surrender to the licensing
   41  authorities of any other state or  country  in  which  the  licensee  is
   42  authorized  to practice. In addition to the foregoing, the department of
   43  state shall also  give  written  notification  of  such  surrender,  for
   44  professionals licensed pursuant to subarticles three, four, five, seven,
   45  eight  and  ten  of this article to the commissioner of health or his or
   46  her designee, and where  appropriate  to  each  hospital  at  which  the
   47  professional has privileges, is affiliated, or is employed. The licensee
   48  whose  license  is  so  surrendered shall notify all persons who request
   49  professional services that he or she has temporarily withdrawn from  the
   50  practice  of  the  profession.  The  department of state may provide for
   51  similar notification of patients or  clients  and  of  other  interested
   52  parties,  as  appropriate  under  the  circumstances of the professional
   53  practice and responsibilities of the licensee. The licensure  status  of
   54  such  licensee shall be "inactive" and he or she shall not be authorized
   55  to practice the profession and shall refrain from practice in this state
   56  or in any other state or country. The voluntary surrender shall  not  be
       S. 1407                            159                           A. 2107
 
    1  deemed  to  be an admission of disability or of professional misconduct,
    2  and shall not be used as evidence of a violation of subdivision three or
    3  four of section nine hundred forty of this title,  unless  the  licensee
    4  practices  while  the license is "inactive"; and any such practice shall
    5  constitute a violation of subdivision eight of said section. The surren-
    6  der of a license under this subdivision shall not bar  any  disciplinary
    7  action  except  action  based  solely upon the provisions of subdivision
    8  three or four of section nine hundred forty of this title, and  only  if
    9  no harm to a patient has resulted; and shall not bar any civil or crimi-
   10  nal  action  or proceeding which might be brought without regard to such
   11  surrender. A surrendered license shall be restored upon a showing to the
   12  satisfaction of the department of state that the licensee is  not  inca-
   13  pacitated  for  the active practice of the profession, provided that the
   14  department of state may, by order of  the  secretary  of  state,  impose
   15  reasonable  conditions on the licensee, if it determines that because of
   16  the nature and extent of the licensee's former incapacity,  such  condi-
   17  tions  are  necessary  to  protect the health, safety and welfare of the
   18  public. Prompt written notification of such restoration shall  be  given
   19  to  all  licensing bodies which were notified of the temporary surrender
   20  of the license.
   21    2. There shall be appointed within the department of state, a  commit-
   22  tee on drug and alcohol abuse, which shall advise the secretary of state
   23  on  matters  relating to practice by professional licensees with drug or
   24  alcohol abuse problems, and which shall  administer  the  provisions  of
   25  this  section. The secretary of state shall determine the size, composi-
   26  tion, and terms of office of such committee, a majority of  the  members
   27  of  which shall be persons with expertise in problems of drug or alcohol
   28  abuse. The committee shall recommend to  the  secretary  of  state  such
   29  rules  as  are  necessary  to  carry  out  the purposes of this section,
   30  including but not limited to procedures for the submission  of  applica-
   31  tions  for  the surrender of a license and for the referral of cases for
   32  investigation or prosecution pursuant to section nine hundred forty-four
   33  of this title if a licensee fails to comply with the  conditions  of  an
   34  approved  program  of  treatment.  There shall be an executive secretary
   35  appointed by the secretary of state to assist the committee. The  execu-
   36  tive  secretary  shall  employ,  or  otherwise retain, the services of a
   37  registered  professional  nurse  with  appropriate   qualifications   in
   38  substance  abuse  and  addiction  to assist in the implementation of the
   39  program authorized by section nine  hundred  forty-six  of  this  title.
   40  Determinations  by  the committee relating to licensees shall be made by
   41  panels of at least three members of  the  committee  designated  by  the
   42  executive  secretary,  who  shall  also  designate a member of the state
   43  board for the licensee's profession as the ex-officio non voting  member
   44  of  each  panel.  In  the case of a determination relating to a licensed
   45  nurse, at least one panel member must be a registered professional nurse
   46  licensed by the state.
   47    3. Application for the surrender of a license pursuant to this section
   48  shall be submitted to the  committee,  and  shall  identify  a  proposed
   49  treatment  or rehabilitation program, and shall include a consent to the
   50  release of all information concerning the licensee's  treatment  to  the
   51  committee.  All  information  concerning  an application, other than the
   52  fact of the surrender of  the  license  and  the  participation  in  the
   53  program  and  the successful completion or failure of or withdrawal from
   54  the program, shall be strictly confidential, and may not be released  by
   55  the committee to any person or body without the consent of the licensee.
   56  The immunity from disciplinary action conferred by this section shall be
       S. 1407                            160                           A. 2107
 
    1  conditioned upon the approval of the treatment or rehabilitation program
    2  by  the committee and its successful completion by the applicant and the
    3  elimination of the incapacity to practice. Approval of  a  treatment  or
    4  rehabilitation program by the committee shall not constitute a represen-
    5  tation as to the probability of success of the program or any assumption
    6  of financial responsibility for its costs.
    7    4. The immunity from disciplinary action conferred by this section may
    8  be  revoked by the committee upon a finding that the licensee has failed
    9  to successfully complete the program or that the incapacity to  practice
   10  has not been eliminated. Such revocation shall be made only after notice
   11  and  an  opportunity  to  be heard, but no adjudicatory hearing shall be
   12  required. The matter  shall  be  referred  for  appropriate  proceedings
   13  pursuant  to  section nine hundred forty-four of this title. The license
   14  must be returned unless charges are  served  pursuant  to  section  nine
   15  hundred forty-four of this title within thirty days after the revocation
   16  of the approval of the special treatment afforded by this section.
   17    5.  The secretary of state is authorized to adopt regulations to carry
   18  out the purposes of this section,  including  but  not  limited  to  the
   19  notice  of  temporary  inactive  status  to  be  required  in  different
   20  professions and practice  situations  and  the  measures  required  upon
   21  temporary withdrawal from practice.
   22    6.  No  individual who serves as a member of a committee whose purpose
   23  is to confront and refer either to treatment or  to  the  department  of
   24  state  licensees who are thought to be suffering from alcoholism or drug
   25  abuse shall be liable for damages to any person for any action taken  by
   26  such individual provided such action was taken without malice and within
   27  the  scope  of such individual's function as a member of such committee,
   28  and provided further that such committee has  been  established  by  and
   29  functions  under  the  auspices  of an association or society of profes-
   30  sionals authorized to practice under this article.
   31    7. In addition to the provisions of section two thousand eight hundred
   32  three-e of the public health law, as  added  by  chapter  eight  hundred
   33  sixty-six  of  the  laws of nineteen hundred eighty, any entity licensed
   34  pursuant to articles thirty-six, forty  and  forty-four  of  the  public
   35  health law, and any mental hygiene facilities, and correctional, occupa-
   36  tional, school and college health services shall provide a report to the
   37  office   of   professional   discipline  when  there  is  a  suspension,
   38  restriction, termination, curtailment or resignation  of  employment  or
   39  privileges  in any way related to a licensed nurse that is impaired when
   40  the impairment is alleged to have been caused by a drug-related problem.
   41  Any person, facility, or corporation which makes a  report  pursuant  to
   42  this section in good faith shall have immunity from any liability, civil
   43  or  criminal,  for  having  made  such a report except where the conduct
   44  constitutes negligence, gross negligence or intentional misconduct.  For
   45  the  purpose of any proceeding, civil or criminal, the good faith of any
   46  person, facility or corporation required  to  make  a  report  shall  be
   47  presumed.  Such presumption may be rebutted by any competent evidence.
   48    § 946. Nurse peer assistance programs. 1. As used in this section:
   49    a. "Drug-related problem" means a problem or problems that are related
   50  to the use, misuse or addiction to drugs or alcohol.
   51    b.  "Participant"  means an individual licensed pursuant to subarticle
   52  eight of this article who has or may have a drug-related problem.
   53    c. "Approved nurse peer assistance program" means a  program  operated
   54  by  the  New  York  State Nurses Association or a statewide professional
   55  association of nurses which has experience in providing peer  assistance
   56  services  to nurses who have drug-related problems which are designed to
       S. 1407                            161                           A. 2107
 
    1  help a participant or a licensee's employer and has been approved by the
    2  department of state in accordance with  criteria  established  in  regu-
    3  lations of the secretary of state.
    4    d.  "Peer  assistance  services"  includes  assessing  the  needs of a
    5  participant, including early identification  of  drug-related  problems,
    6  and providing information, support, and advice as requested by a partic-
    7  ipant.
    8    2.  a.  The department of state shall provide funds, including but not
    9  limited to a portion  of  the  funds  made  available  pursuant  to  the
   10  provisions  of  this section, for services provided by an approved nurse
   11  peer assistance program. Funds used to provide  services  shall  not  be
   12  used  for  the treatment of participants. Funded services shall include,
   13  but not be limited to:
   14    (1) providing peer assistance services for  nurses  with  drug-related
   15  problems;
   16    (2)  maintaining  a toll-free telephone information line for anonymous
   17  nurses, their employers, and others to provide assistance in  the  iden-
   18  tification  of services and information for nurses dealing with drug-re-
   19  lated problems;
   20    (3) training monitors for the professional assistance program;
   21    (4) arranging for mental health consultants to assess nurses  for  the
   22  professional assistance program, as needed; and
   23    (5)  preparing  written  assessments  of nurses who have been referred
   24  from the professional assistance program.
   25    b. An additional fee of fifteen dollars shall be paid at the  time  of
   26  application  for licensure and first registration and every registration
   27  by those licensed pursuant to subarticle eight of this article  for  the
   28  purpose  of  implementing  this  program. The funds made available under
   29  this provision shall be deposited in the office of  professions  special
   30  revenue  account  for  its  purposes  in  implementing this section. The
   31  department of state may use a portion of this amount for its administra-
   32  tive expenses incurred in implementing this program including,  but  not
   33  limited  to,  employment  of  personnel,  the  costs  of  approving  and
   34  contracting with a peer assistance program as required by  this  section
   35  and outreach activities to promote this program.
   36    3.  No approved nurse peer assistance program or individual who serves
   37  in an approved nurse peer assistance program shall be liable in  damages
   38  to  any person for any action taken or not taken or recommendations made
   39  unless, based on the facts disclosed by a participant,  the  conduct  of
   40  the  program  or  person  with respect to the person asserting liability
   41  constituted negligence, gross negligence, or intentional misconduct.
   42    4. All information concerning a participant gathered by  the  approved
   43  nurse peer assistance program shall be strictly confidential and may not
   44  be  released  to  any  person or body without the consent of the partic-
   45  ipant, except upon the order of a court in a pending action or  proceed-
   46  ing. Aggregate data may be released to the committee on drug and alcohol
   47  abuse.
   48    §  947.  Voluntary  non-disciplinary surrender of a license. A profes-
   49  sional who is licensed pursuant to subarticle eight of this article  may
   50  voluntarily  surrender  a  license  to the committee on drug and alcohol
   51  abuse when such licensee requests to be monitored  and/or  receive  peer
   52  support  services  in relation to the use, misuse or addiction to drugs.
   53  The committee shall accept such voluntary non-disciplinary surrender  of
   54  a  license and provide for expedited reinstatement of the license if the
   55  licensee meets  criteria  set  by  the  committee.  Such  criteria  will
   56  include,  but  not  be limited to, confidence that the licensee's use of
       S. 1407                            162                           A. 2107
 
    1  drugs and/or alcohol has not resulted in harm to a patient or client and
    2  the licensee is not incapacitated, unfit for practice or a threat to the
    3  health, safety and welfare of the public.  Such voluntary surrender,  if
    4  accepted by the committee, shall result in an immediate reinstatement of
    5  the  license  and shall provide immunity from a violation of subdivision
    6  three or four of section nine hundred forty of this title and cannot  be
    7  deemed  an  admission  or  used  as evidence in professional misconduct.
    8  Acceptance by the committee shall not require a report to the department
    9  of health or to any employer or licensing authority of another jurisdic-
   10  tion, nor require any disclosure to patients or to the public that  such
   11  license  has  been temporarily surrendered, except if it is subsequently
   12  determined by the department of state that a participant being monitored
   13  by the department of state is found to have used  drugs  and/or  alcohol
   14  which has resulted in harm to a patient or client.
   15    § 948. Penalties  for professional misconduct. The penalties which may
   16  be imposed by the secretary of state on a  present  or  former  licensee
   17  found  guilty  of  professional  misconduct  (under  the definitions and
   18  proceedings prescribed in sections nine hundred forty and  nine  hundred
   19  forty-four of this title) are: (1) censure and reprimand, (2) suspension
   20  of license, (a) wholly, for a fixed period of time; (b) partially, until
   21  the  licensee  successfully completes a course of retraining in the area
   22  to which the suspension applies; (c) wholly, until the licensee success-
   23  fully completes a course of  therapy  or  treatment  prescribed  by  the
   24  secretary  of state, (3) revocation of license, (4) annulment of license
   25  or registration, (5) limitation  on  registration  or  issuance  of  any
   26  further  license,  (6)  a  fine not to exceed ten thousand dollars, upon
   27  each specification of charges of which the respondent is  determined  to
   28  be  guilty,  (7) a requirement that a licensee pursue a course of educa-
   29  tion or training, and (8) a requirement that a licensee  perform  up  to
   30  one hundred hours of public service, in a manner and at a time and place
   31  as  directed  by the secretary of state. The secretary of state may stay
   32  such penalties in whole or in part, may place the licensee on  probation
   33  and  may restore a license which has been revoked, provided, in the case
   34  of licensees subject to section two hundred thirty of the public  health
   35  law,  notice that the secretary of state is considering such restoration
   36  is given to the office of professional medical conduct at  least  thirty
   37  days before the date on which such restoration shall be considered. Upon
   38  the  recommendation  of  the office of professional medical conduct, the
   39  secretary of state may deny such restoration. Any fine imposed  pursuant
   40  to  this  section or pursuant to subdivision two of section nine hundred
   41  forty-four of this title may be sued for and recovered in  the  name  of
   42  the people of the state of New York in an action brought by the attorney
   43  general.  In such action the findings and determination of the secretary
   44  of state or of the violations committee shall be admissible evidence and
   45  shall be conclusive proof of the violation and the penalty assessed.
   46                                    TITLE D
   47                             UNAUTHORIZED ACTS.
   48    § 960. Unauthorized practice a crime.  1.  Anyone  not  authorized  to
   49  practice under this article who practices or offers to practice or holds
   50  himself  or  herself  out as being able to practice in any profession in
   51  which a license is a prerequisite to the practice of the  acts,  or  who
   52  practices any profession as an exempt person during the time when his or
   53  her  professional license is suspended, revoked or annulled, or who aids
   54  or abets an unlicensed person to practice a profession, or  who  fraudu-
   55  lently sells, files, furnishes, obtains, or who attempts fraudulently to
   56  sell,  file,  furnish  or  obtain any diploma, license, record or permit
       S. 1407                            163                           A. 2107
 
    1  purporting to authorize the practice of a profession, shall be guilty of
    2  a class E felony.
    3    2. Anyone who knowingly aids or abets three or more unlicensed persons
    4  to practice a profession or employs or holds such unlicensed persons out
    5  as  being  able  to  practice  in any profession in which a license is a
    6  prerequisite to the practice of the acts, or who knowingly aids or abets
    7  three or more persons to  practice  any  profession  as  exempt  persons
    8  during  the  time  when  the  professional  licenses of such persons are
    9  suspended, revoked or annulled, shall be guilty of a class E felony.
   10    § 961. Unauthorized use of a professional title a crime.    1.  Anyone
   11  not  authorized  to  use a professional title regulated by this article,
   12  and who uses such professional title, shall  be  guilty  of  a  class  A
   13  misdemeanor.
   14    2.  Anyone  who  knowingly  aids  or  abets  three or more persons not
   15  authorized to use a professional title regulated by this article, to use
   16  such professional title, or knowingly employs three or more persons  not
   17  authorized  to  use  a professional title regulated by this article, who
   18  use such professional title in the course of such employment,  shall  be
   19  guilty of a class E felony.
   20    § 961-a. Penalties.  As  used in this section, "utilization committee"
   21  means:
   22    (a) a committee established to administer a utilization review plan of
   23  a hospital or extended care facility as provided  and  required  in  the
   24  "Health  Insurance  for  the  Aged  Act", 79 Stat. 313 (1965), 42 U.S.C.
   25  1395x(k);
   26    (b) a committee of a medical staff in a hospital having the  responsi-
   27  bility  of evaluation and improvement of the quality of care rendered in
   28  the hospital; and
   29    (c) any medical review committee or subcommittee thereof of  a  local,
   30  county  or  state  medical or dental society and any such society itself
   31  when such committee, subcommittee or society is performing  any  medical
   32  review function described in subdivisions (a) and (b) of this section or
   33  involving  any controversy or dispute between (i) a physician or dentist
   34  and a patient concerning  the  diagnosis,  treatment  or  care  of  such
   35  patient  or  the fees or charges therefor or (ii) a physician or dentist
   36  and a provider of medical or dental benefits concerning any  medical  or
   37  health charges or fees of such physician or dentist.
   38    No  physician  or  dentist  who serves as a member of such utilization
   39  committee shall be liable in damages to any person for any action  taken
   40  or recommendation made by him or her within the scope of his function as
   41  such member of such committee if such action was taken or such recommen-
   42  dation  was  made  without malice and in the reasonable belief that such
   43  action or recommendation is warranted by the facts known to him  or  her
   44  after  reasonable effort by him or her to ascertain the facts upon which
   45  such action is taken or such recommendation is made.
   46    Neither the proceedings nor the records of any such committee shall be
   47  subject to disclosure under article thirty-one of the civil practice law
   48  and rules except as hereinafter provided or as  provided  by  any  other
   49  provision  of  law.  No  person  in  attendance at a meeting of any such
   50  committee shall be required to testify as to  what  transpired  thereat.
   51  The  prohibition  relating  to discovery of testimony shall not apply to
   52  the statements made by any person in attendance at such a meeting who is
   53  a party to an action or proceeding  the  subject  matter  of  which  was
   54  reviewed at such meeting.
   55    §  962.  Criminal  proceedings.  1. All alleged violations of sections
   56  nine hundred sixty or nine hundred sixty-one  of  this  title  shall  be
       S. 1407                            164                           A. 2107
 
    1  reported  to  the department or state which shall cause an investigation
    2  to be instituted.   All  alleged  violations  of  section  one  thousand
    3  fifty-one  of this article shall be reported to the department of health
    4  which  shall  cause  an  investigation to be instituted. If the investi-
    5  gation substantiates that violations exist,  such  violations  shall  be
    6  reported to the attorney general with a request for prosecution.
    7    2.  The  attorney general shall prosecute such alleged offenses in the
    8  name of the state, provided, however, in the event of alleged violations
    9  of subarticle twenty of this article, a district attorney may  prosecute
   10  such  alleged  offenses in the name of the state provided, however, that
   11  any district attorney may prosecute such offenses where they  are  inci-
   12  dental  to  a  criminal prosecution instituted by him or her under other
   13  statutes.
   14    3. All criminal courts having jurisdiction over misdemeanors are here-
   15  by empowered to hear, try and determine alleged  violations  under  this
   16  article, which constitute misdemeanors, without indictment and to impose
   17  applicable  punishment  of  fines  or imprisonments or both. It shall be
   18  necessary to prove in any prosecution under this article only  a  single
   19  prohibited  act or a single holding out without proving a general course
   20  of conduct.
   21    4. A proceeding before a committee on professional conduct  shall  not
   22  be  deemed  to  be  a  criminal  proceeding  within  the meaning of this
   23  section.
   24    § 963. Restraint of unlawful acts.  Where a violation of this  article
   25  is  alleged  to  have occurred, the attorney general or, in the event of
   26  alleged violations of subarticle twenty of  this  article  occurring  in
   27  cities having a population of one million or more, the corporation coun-
   28  sel may apply to the supreme court within the judicial district in which
   29  such  violation  is  alleged  to have occurred for an order enjoining or
   30  restraining commission or continuance of the  unlawful  acts  complained
   31  of.  The court shall have jurisdiction of the proceedings and shall have
   32  power  to  grant  such temporary relief or restraining order as it deems
   33  just and proper.   In any such proceeding it  shall  be  unnecessary  to
   34  allege  or  prove  that an adequate remedy at law does not exist or that
   35  irreparable damage would result if such order were  not  granted.    The
   36  remedy provided in this section shall be in addition to any other remedy
   37  provided by law or to the proceedings commenced against a licensee under
   38  this article.
 
   39                                SUBARTICLE 2
 
   40                                  MEDICINE
 
   41  Section 1000. Introduction.
   42          1001. Definition of practice of medicine.
   43          1002. Practice of medicine and use of title "physician".
   44          1003. State board for medicine.
   45          1004. Requirements for a professional license.
   46          1005. Limited permits.
   47          1006. Exempt persons.
   48          1007. Special provisions.
   49          1008. Qualification of certain applicants for licensure.
   50          1009. Power of secretary of state regarding certain physicians.
       S. 1407                            165                           A. 2107
 
    1    § 1000. Introduction.    This  subarticle applies to the profession of
    2  medicine.   The general provisions  for  all  professions  contained  in
    3  subarticle one of this article apply to this subarticle.
    4    § 1001. Definition  of  practice  of  medicine.    The practice of the
    5  profession of medicine is defined as diagnosing, treating, operating  or
    6  prescribing  for  any human disease, pain, injury, deformity or physical
    7  condition.
    8    § 1002. Practice of medicine and use of title  "physician".    Only  a
    9  person  licensed  or  otherwise  authorized  under this subarticle shall
   10  practice medicine or use the title "physician".
   11    § 1003. State board for medicine.  A state board for medicine shall be
   12  appointed by the secretary of state for the  purpose  of  assisting  the
   13  secretary  of  state  and  the department of state on matters of profes-
   14  sional licensing in accordance with section nine hundred  twenty-two  of
   15  this article. The board shall be composed of not less than twenty physi-
   16  cians  licensed in this state for at least five years, two of whom shall
   17  be doctors of osteopathy. The board shall also consist of not less  than
   18  two  physician's  assistants  licensed  to  practice  in this state. The
   19  participation of physician's  assistant  members  shall  be  limited  to
   20  matters  relating  to  subarticle  two-b  of  this article. An executive
   21  secretary to the board shall be appointed by the secretary of state  and
   22  shall  be  either a physician licensed in this state or a non-physician,
   23  deemed qualified by the secretary of state.
   24    § 1004. Requirements for a professional license. 1. To qualify  for  a
   25  license  as  a  physician,  an  applicant  shall  fulfill  the following
   26  requirements:
   27    (1) Application: file an application with the department of state;
   28    (2) Education: have received  an  education,  including  a  degree  of
   29  doctor  of  medicine, "M.D.", or doctor of osteopathy, "D.O.", or equiv-
   30  alent degree in accordance with the  regulations  of  the  secretary  of
   31  state;
   32    (3)  Experience:  have  experience  satisfactory  to  the board and in
   33  accordance with the regulations of the secretary of state;
   34    (4) Examination: pass an examination satisfactory to the board and  in
   35  accordance with the regulations of the secretary of state;
   36    (5)  Age:  be at least twenty-one years of age; however, the secretary
   37  of state may waive the age requirement for applicants who have  attained
   38  the  age of eighteen and will be in a residency program until the age of
   39  twenty-one;
   40    (6) Citizenship or immigration status: be a United States  citizen  or
   41  an alien lawfully admitted for permanent residence in the United States;
   42  provided,  however  that  the  secretary of state may grant a three year
   43  waiver for an alien physician to practice in  an  area  which  has  been
   44  designated  by  the department of state as medically underserved, except
   45  that the secretary of state may grant an  additional  extension  not  to
   46  exceed  six  years  to an alien physician to enable him or her to secure
   47  citizenship or permanent resident status, provided such status is  being
   48  actively pursued;
   49    (7) Character: be of good moral character as determined by the depart-
   50  ment of state; and
   51    (8)  Fees: pay a fee of two hundred sixty dollars to the department of
   52  state for admission to a department conducted  examination  and  for  an
   53  initial  license,  a  fee  of  one hundred seventy-five dollars for each
   54  reexamination, a fee of one hundred thirty-five dollars for  an  initial
   55  license  for  persons  not requiring admission to a department conducted
   56  examination, a fee of five hundred  seventy  dollars  for  any  biennial
       S. 1407                            166                           A. 2107
 
    1  registration period commencing August first, nineteen hundred ninety-six
    2  and  thereafter.  The  comptroller  is hereby authorized and directed to
    3  deposit the fee for each biennial registration period into  the  special
    4  revenue  funds-other entitled "professional medical conduct account" for
    5  the purpose of offsetting any expenditures made pursuant to section  two
    6  hundred  thirty of the public health law in relation to the operation of
    7  the office of professional medical  conduct  within  the  department  of
    8  health.  The  amount  of the funds expended as a result of such increase
    9  shall not be greater than such  fees  collected  over  the  registration
   10  period.
   11    2.  For  every license or registration issued after the effective date
   12  of this subdivision, an additional fee of thirty dollars shall  be  paid
   13  and  deposited  in  the  special revenue fund entitled "the professional
   14  medical conduct account" for the purpose of offsetting any  expenditures
   15  made  pursuant  to  subdivision fifteen of section two hundred thirty of
   16  the public health law. The  amount  of  such  funds  expended  for  such
   17  purpose  shall  not  be greater than such additional fees collected over
   18  the licensure period or for the duration of such program  if  less  than
   19  the licensure period.
   20    3. A physician shall not be required to pay any fee under this section
   21  if he or she certifies to the department of state that for the period of
   22  registration  or licensure, he or she shall only practice medicine with-
   23  out compensation or the expectation  or  promise  of  compensation.  The
   24  following  shall not be considered compensation for the purposes of this
   25  subdivision: (1) nominal payment solely to enable the  physician  to  be
   26  considered  an  employee  of  a  health  care provider, or (2) providing
   27  liability coverage to the physician relating to the services provided.
   28    § 1005. Limited permits.  Permits limited as to eligibility,  practice
   29  and  duration,  shall  be  issued by the department of state to eligible
   30  applicants, as follows:
   31    1. Eligibility: The following persons shall be eligible for a  limited
   32  permit:
   33    (1)  A  person who fulfills all requirements for a license as a physi-
   34  cian except those relating to the examination and citizenship or  perma-
   35  nent residence in the United States;
   36    (2)  A  foreign  physician  who  holds a standard certificate from the
   37  educational council for foreign medical graduates or who has  passed  an
   38  examination  satisfactory to the state board for medicine and in accord-
   39  ance with the regulations of the secretary of state; or
   40    (3) A foreign physician or a foreign intern who is in this country  on
   41  a  non-immigration  visa for the continuation of medical study, pursuant
   42  to the exchange student program  of  the  United  States  department  of
   43  state.
   44    2.  Limit  of  practice.  A  permittee shall be authorized to practice
   45  medicine only under the supervision of a licensed physician and only  in
   46  a public, voluntary, or proprietary hospital.
   47    3. Duration. A limited permit shall be valid for two years.  It may be
   48  renewed biennially at the discretion of the department of state.
   49    4. Fees. The fee for each limited permit and for each renewal shall be
   50  one hundred five dollars.
   51    § 1006. Exempt  persons.    The  following persons under the following
   52  limitations may practice medicine within the state without a license:
   53    1. Any physician who is employed as a resident in a  public  hospital,
   54  provided  such  practice  is  limited  to such hospital and is under the
   55  supervision of a licensed physician;
       S. 1407                            167                           A. 2107
 
    1    2. Any physician who is licensed in a bordering state and who  resides
    2  near  a  border of this state, provided such practice is limited in this
    3  state to the vicinity of such border and provided  such  physician  does
    4  not maintain an office or place to meet patients or receive calls within
    5  this state;
    6    3.  Any  physician who is licensed in another state or country and who
    7  is meeting a physician licensed in this state, for purposes of consulta-
    8  tion, provided such practice is limited to such consultation;
    9    4. Any physician who is licensed in another state or country,  who  is
   10  visiting  a medical school or teaching hospital in this state to receive
   11  medical instruction for a period not to exceed six months or to  conduct
   12  medical  instruction, provided such practice is limited to such instruc-
   13  tion and is under the supervision of a licensed physician;
   14    5. Any physician who is authorized by a foreign government to practice
   15  in relation to its diplomatic, consular  or  maritime  staffs,  provided
   16  such practice is limited to such staffs;
   17    6.  Any  commissioned  medical  officer  who  is serving in the United
   18  States armed forces or public health service or  any  physician  who  is
   19  employed  in  the  United  States Veterans Administration, provided such
   20  practice is limited to such service or employment;
   21    7. Any intern who is employed by a hospital and who is a graduate of a
   22  medical school in the United States or Canada, provided such practice is
   23  limited to such hospital and is under  the  supervision  of  a  licensed
   24  physician; or
   25    8. Any medical student who is performing a clinical clerkship or simi-
   26  lar  function  in a hospital and who is matriculated in a medical school
   27  which meets standards satisfactory to the department of state,  provided
   28  such  practice  is limited to such clerkship or similar function in such
   29  hospital.
   30    9. Any dentist or dental school graduate eligible for licensure in the
   31  state who administers anesthesia as part of a hospital residency program
   32  established for the purpose of training dentists in anesthesiology.
   33    § 1007. Special provisions. 1.  A  not-for-profit  medical  or  dental
   34  expense  indemnity  corporation or a hospital service corporation organ-
   35  ized under the insurance law may employ licensed  physicians  and  enter
   36  into contracts with partnerships or medical corporations organized under
   37  article  forty-four  of the public health law, health maintenance organ-
   38  izations possessing a  certificate  of  authority  pursuant  to  article
   39  forty-four of the public health law, professional corporations organized
   40  under article fifteen of the business corporation law or other groups of
   41  physicians  to practice medicine on its behalf for persons insured under
   42  its contracts or policies.
   43    2. Notwithstanding any inconsistent provision of any general,  special
   44  or  local  law,  any  licensed physician who voluntarily and without the
   45  expectation of monetary compensation  renders  first  aid  or  emergency
   46  treatment  at  the  scene  of  an accident or other emergency, outside a
   47  hospital, doctor's office or any other place having proper and necessary
   48  medical equipment, to a person who is unconscious, ill or injured, shall
   49  not be liable for damages for injuries alleged to have been sustained by
   50  such person or for damages for the death of such person alleged to  have
   51  occurred  by reason of an act or omission in the rendering of such first
   52  aid or emergency treatment unless it is established that  such  injuries
   53  were  or  such  death was caused by gross negligence on the part of such
   54  physician. Nothing in this subdivision shall be deemed or  construed  to
   55  relieve  a licensed physician from liability for damages for injuries or
   56  death caused by an act or omission on the  part  of  a  physician  while
       S. 1407                            168                           A. 2107
 
    1  rendering professional services in the normal and ordinary course of his
    2  or her practice.
    3    3. No individual who serves as a member of (a) a committee established
    4  to  administer  a  utilization  review  plan  of a hospital, including a
    5  hospital as defined in article twenty-eight of the public health law  or
    6  a  hospital  as defined in subdivision ten of section 1.03 of the mental
    7  hygiene law, or (b) a committee having the responsibility of the  inves-
    8  tigation of an incident reported pursuant to section 29.29 of the mental
    9  hygiene  law  or  the  evaluation and improvement of the quality of care
   10  rendered in a hospital as defined in article twenty-eight of the  public
   11  health  law  or a hospital as defined in subdivision ten of section 1.03
   12  of the mental hygiene law,  or  (c)  any  medical  review  committee  or
   13  subcommittee thereof of a local, county or state medical, dental, podia-
   14  try  or  optometrical  society,  any such society itself, a professional
   15  standards review organization or  an  individual  when  such  committee,
   16  subcommittee,  society,  organization  or  individual  is performing any
   17  medical or quality assurance review function including the investigation
   18  of an incident reported pursuant to section 29.29 of the mental  hygiene
   19  law,  either  described  in  paragraphs (a) and (b) of this subdivision,
   20  required by law, or involving any controversy or dispute between  (i)  a
   21  physician,  dentist, podiatrist or optometrist or hospital administrator
   22  and a patient concerning  the  diagnosis,  treatment  or  care  of  such
   23  patient  or  the  fees or charges therefor or (ii) a physician, dentist,
   24  podiatrist or optometrist or hospital administrator and  a  provider  of
   25  medical,  dental,  podiatric  or  optometrical  services  concerning any
   26  medical or health charges or fees of such physician, dentist, podiatrist
   27  or optometrist, or (d) a committee appointed pursuant to  section  twen-
   28  ty-eight  hundred  five-j of the public health law to participate in the
   29  medical and dental malpractice prevention program, or (e) any individual
   30  who participated in the preparation of incident reports required by  the
   31  department  of health pursuant to section twenty-eight hundred five-l of
   32  the public health law, or (f) a committee established  to  administer  a
   33  utilization  review  plan,  or  a committee having the responsibility of
   34  evaluation and improvement of the quality of care rendered, in a  health
   35  maintenance  organization  organized  under  article  forty-four  of the
   36  public health law or article forty-three of the insurance law, including
   37  a committee of an  individual  practice  association  or  medical  group
   38  acting  pursuant  to a contract with such a health maintenance organiza-
   39  tion, shall be liable in damages to any person for any action  taken  or
   40  recommendations made, by him or her within the scope of his or her func-
   41  tion in such capacity provided that (i) such individual has taken action
   42  or  made  recommendations  within  the  scope of his or her function and
   43  without malice, and (ii)  in  the  reasonable  belief  after  reasonable
   44  investigation  that  the act or recommendation was warranted, based upon
   45  the facts disclosed.
   46    Neither the proceedings nor the records relating to performance  of  a
   47  medical  or  a  quality  assurance review function or participation in a
   48  medical  and  dental  malpractice  prevention  program  nor  any  report
   49  required  by  the  department of health pursuant to section twenty-eight
   50  hundred five-l of the public health law described herein, including  the
   51  investigation  of  an incident reported pursuant to section 29.29 of the
   52  mental hygiene law, shall be subject to disclosure under  article  thir-
   53  ty-one  of  the  civil  practice  law  and  rules  except as hereinafter
   54  provided or as provided by any other provision  of  law.  No  person  in
   55  attendance  at a meeting when a medical or a quality assurance review or
   56  a medical and dental  malpractice  prevention  program  or  an  incident
       S. 1407                            169                           A. 2107
 
    1  reporting  function described herein was performed, including the inves-
    2  tigation of an incident reported pursuant to section 29.29 of the mental
    3  hygiene law, shall be required to testify as to what transpired thereat.
    4  The  prohibition  relating  to discovery of testimony shall not apply to
    5  the statements made by any person in attendance at such a meeting who is
    6  a party to an action or proceeding  the  subject  matter  of  which  was
    7  reviewed at such meeting.
    8    4.  This  subarticle  shall  not be construed to affect or prevent the
    9  following:
   10    a. The furnishing of medical assistance in an emergency;
   11    b. The practice of the religious tenets of any church;
   12    c. A physician from refusing to perform an act constituting the  prac-
   13  tice of medicine to which he or she is conscientiously opposed by reason
   14  of religious training and belief.
   15    d.  The organization of a medical corporation under article forty-four
   16  of the public health law, the organization of a university faculty prac-
   17  tice corporation under section fourteen hundred twelve of  the  not-for-
   18  profit  corporation  law  or  the organization of a professional service
   19  corporation under article fifteen of the business corporation law.
   20    e. The physician's use of whatever medical care, conventional or  non-
   21  conventional,  which  effectively  treats  human  disease, pain, injury,
   22  deformity or physical condition.
   23    5. There shall be no monetary liability on the part of, and  no  cause
   24  of  action  for  damages  shall  arise against, any person, partnership,
   25  corporation, firm, society, or other entity on account of  the  communi-
   26  cation  of information in the possession of such person or entity, or on
   27  account of any recommendation or evaluation,  regarding  the  qualifica-
   28  tions,  fitness, or professional conduct or practices of a physician, to
   29  any governmental agency, medical or specialists society, a  hospital  as
   30  defined  in article twenty-eight of the public health law, a hospital as
   31  defined in subdivision ten of section 1.03 of the mental hygiene law, or
   32  a health maintenance organization organized under article forty-four  of
   33  the  public  health  law  or  article  forty-three of the insurance law,
   34  including a committee of an individual practice association  or  medical
   35  group  acting pursuant to a contract with a health maintenance organiza-
   36  tion. The foregoing shall not apply to information which is  untrue  and
   37  communicated with malicious intent.
   38    6. A licensed physician may prescribe and order a non-patient specific
   39  regimen  to  a  registered  professional  nurse, pursuant to regulations
   40  promulgated by the secretary of state, and consistent  with  the  public
   41  health law, for:
   42    (a) administering immunizations.
   43    (b) the emergency treatment of anaphylaxis.
   44    (c) administering purified protein derivative (PPD) tests.
   45    § 1008. Qualification  of  certain  applicants  for  licensure.    (a)
   46  Notwithstanding any other provisions of this subarticle or  any  law  to
   47  the  contrary, an individual who at the time of his or her enrollment in
   48  a medical school outside the United States is a resident of  the  United
   49  States  shall  be  eligible for licensure in this state if he or she has
   50  satisfied the requirements of paragraphs one, five, six, seven and eight
   51  of subdivision one of section one thousand four of this subarticle and:
   52    (1) has studied medicine in  a  medical  school  located  outside  the
   53  United States which is recognized by the World Health Organization;
   54    (2)  has  completed  all  of  the  formal  requirements of the foreign
   55  medical school except internship and/or social service;
       S. 1407                            170                           A. 2107
 
    1    (3) has attained a score satisfactory to a medical school approved  by
    2  the  Liaison  Committee on Medical Education on a qualifying examination
    3  acceptable to the state  board  for  medicine,  and  has  satisfactorily
    4  completed  one  academic  year of supervised clinical training under the
    5  direction of such medical school;
    6    (4)  has completed the post-graduate hospital training required by the
    7  state board for medicines of all applicants for licensure; and
    8    (5) has passed the examination required by the state board  for  medi-
    9  cines of all applicants for licensure.
   10    (b) Satisfaction of the requirements of paragraphs one, two, and three
   11  of subdivision (a) of this section shall be in lieu of the completion of
   12  any  foreign  internship and/or social service requirements, and no such
   13  requirements shall be a condition of licensure as a  physician  in  this
   14  state.
   15    (c) Satisfaction of the requirements of paragraphs one, two, and three
   16  of  subdivision (a) of this section shall be in lieu of certification by
   17  the Educational Council for Foreign Medical Graduates, and such  certif-
   18  ication  shall  not  be  a condition of licensure as a physician in this
   19  state for candidates who have completed the requirements of  subdivision
   20  (a) of this section.
   21    (d)  No hospital licensed by this State, or operated by the State or a
   22  political subdivision thereof, or which receives state financial assist-
   23  ance, directly or indirectly, shall require an individual who has satis-
   24  fied the requirements of paragraphs one, two, and three  of  subdivision
   25  (a)  of  this section, and who at the time of his or her enrollment in a
   26  medical school outside the United States is a  resident  of  the  United
   27  States,  to  satisfy  any  further education or examination requirements
   28  prior to commencing an internship or residency.
   29    (e) A document granted by a medical school located outside the  United
   30  States which is recognized by the World Health Organization issued after
   31  the  completion  of  all the formal requirements of such foreign medical
   32  school except internship and/or social service shall, upon certification
   33  by the medical school in which such training was received  of  satisfac-
   34  tory  completion  by  the person to whom such document was issued of the
   35  requirements listed in  paragraph  three  of  subdivision  (a)  of  this
   36  section,  be deemed the equivalent of a degree of doctor of medicine for
   37  purposes of licensure and practice as a physician in this State.
   38    § 1009. Power of secretary  of  state  regarding  certain  physicians.
   39  Notwithstanding  any  provision of law to the contrary, the secretary of
   40  state is authorized to confer the degree of doctor  of  medicine  (M.D.)
   41  upon  physicians  who are licensed pursuant to section one thousand four
   42  or one thousand eight of this subarticle. Each applicant shall pay a fee
   43  of three hundred dollars to the department of state for the issuance  of
   44  such degree.
 
   45                                SUBARTICLE 2-A
 
   46      DEFINITIONS OF PROFESSIONAL MISCONDUCT APPLICABLE TO PHYSICIANS,
   47             PHYSICIAN'S ASSISTANTS AND SPECIALIST'S ASSISTANTS
 
   48  Section 1050. Definitions of professional misconduct.
   49          1051. Additional  definition of professional misconduct, limited
   50                  application.
   51          1052. Enforcement, administration  and  interpretation  of  this
   52                  subarticle.
       S. 1407                            171                           A. 2107
 
    1    § 1050. Definitions  of professional misconduct. Each of the following
    2  is professional misconduct,  and  any  licensee  found  guilty  of  such
    3  misconduct under the procedures prescribed in section two hundred thirty
    4  of  the public health law shall be subject to penalties as prescribed in
    5  section two hundred thirty-a of the public health law, as added by chap-
    6  ter  606  of  the  laws  of nineteen hundred ninety-one, except that the
    7  charges may be dismissed in the interest of justice:
    8    1. Obtaining the license fraudulently;
    9    2. Practicing the profession fraudulently  or  beyond  its  authorized
   10  scope;
   11    3.  Practicing  the  profession with negligence on more than one occa-
   12  sion;
   13    4. Practicing the profession with gross  negligence  on  a  particular
   14  occasion;
   15    5.  Practicing the profession with incompetence on more than one occa-
   16  sion;
   17    6. Practicing the profession with gross incompetence;
   18    7. Practicing the profession while impaired by alcohol,  drugs,  phys-
   19  ical disability, or mental disability;
   20    8.  Being  a  habitual  abuser  of alcohol, or being dependent on or a
   21  habitual user of narcotics, barbiturates,  amphetamines,  hallucinogens,
   22  or  other  drugs  having  similar  effects, except for a licensee who is
   23  maintained on an approved therapeutic regimen which does not impair  the
   24  ability to practice, or having a psychiatric condition which impairs the
   25  licensee's ability to practice;
   26    9.  (a)  Being  convicted  of  committing  an act constituting a crime
   27  under:
   28    (i) New York state law or,
   29    (ii) federal law or,
   30    (iii) the law of another jurisdiction and which, if  committed  within
   31  this state, would have constituted a crime under New York state law;
   32    (b)  Having  been  found  guilty  of improper professional practice or
   33  professional misconduct by a duly authorized  professional  disciplinary
   34  agency  of  another  state  where the conduct upon which the finding was
   35  based would, if committed in New  York  state,  constitute  professional
   36  misconduct under the laws of New York state;
   37    (c)  Having been found guilty in an adjudicatory proceeding of violat-
   38  ing a state or federal statute or regulation, pursuant to a final  deci-
   39  sion  or  determination,  and when no appeal is pending, or after resol-
   40  ution of the proceeding  by  stipulation  or  agreement,  and  when  the
   41  violation  would  constitute  professional  misconduct  pursuant to this
   42  section;
   43    (d) Having his or her license to practice medicine revoked,  suspended
   44  or having other disciplinary action taken, or having his or her applica-
   45  tion  for  a license refused, revoked or suspended or having voluntarily
   46  or otherwise surrendered his or her license after a disciplinary  action
   47  was  instituted by a duly authorized professional disciplinary agency of
   48  another state, where the conduct resulting in the revocation, suspension
   49  or other disciplinary action involving the license or  refusal,  revoca-
   50  tion  or  suspension of an application for a license or the surrender of
   51  the license would, if committed in New York  state,  constitute  profes-
   52  sional misconduct under the laws of New York state;
   53    (e) Having been found by the commissioner of health to be in violation
   54  of article thirty-three of the public health law;
   55    10.  Refusing  to  provide professional service to a person because of
   56  such person's race, creed, color or national origin;
       S. 1407                            172                           A. 2107
 
    1    11. Permitting, aiding or abetting an  unlicensed  person  to  perform
    2  activities requiring a license;
    3    12.  Practicing the profession while the license is suspended or inac-
    4  tive as defined in subdivision thirteen of section two hundred thirty of
    5  the public health law, or willfully failing to register  or  notify  the
    6  department  of  state of any change of name or mailing address, or, if a
    7  professional service  corporation,  willfully  failing  to  comply  with
    8  sections fifteen hundred three and fifteen hundred fourteen of the busi-
    9  ness  corporation  law  or, if a university faculty practice corporation
   10  wilfully failing to comply with paragraphs (b), (c) and (d)  of  section
   11  fifteen  hundred three and section fifteen hundred fourteen of the busi-
   12  ness corporation law;
   13    13. A willful violation by a licensee of subdivision eleven of section
   14  two hundred thirty of the public health law;
   15    14. A violation of section twenty-eight  hundred  three-d  or  twenty-
   16  eight hundred five-k of the public health law; or
   17    15.  Failure  to  comply  with an order issued pursuant to subdivision
   18  seven, paragraph (a) of subdivision ten, and  subdivision  seventeen  of
   19  section two hundred thirty of the public health law;
   20    16.  A willful or grossly negligent failure to comply with substantial
   21  provisions of federal, state,  or  local  laws,  rules,  or  regulations
   22  governing the practice of medicine;
   23    17. Exercising undue influence on the patient, including the promotion
   24  of  the  sale of services, goods, appliances, or drugs in such manner as
   25  to exploit the patient for the financial gain of the licensee  or  of  a
   26  third party;
   27    18.  Directly or indirectly offering, giving, soliciting, or receiving
   28  or agreeing to receive, any fee or other  consideration  to  or  from  a
   29  third  party  for  the  referral  of a patient or in connection with the
   30  performance of professional services;
   31    19. Permitting any person  to  share  in  the  fees  for  professional
   32  services,  other  than: a partner, employee, associate in a professional
   33  firm or corporation, professional subcontractor or consultant authorized
   34  to practice medicine, or a legally authorized trainee  practicing  under
   35  the  supervision  of  a  licensee.  This  prohibition  shall include any
   36  arrangement or agreement whereby the  amount  received  in  payment  for
   37  furnishing  space, facilities, equipment or personnel services used by a
   38  licensee constitutes a percentage of, or is  otherwise  dependent  upon,
   39  the  income  or  receipts  of the licensee from such practice, except as
   40  otherwise provided by law with respect to a facility  licensed  pursuant
   41  to  article twenty-eight of the public health law or article thirteen of
   42  the mental hygiene law;
   43    20. Conduct in the practice of medicine which evidences  moral  unfit-
   44  ness to practice medicine;
   45    21.  Willfully  making  or filing a false report, or failing to file a
   46  report required by law or by the department of health or the  department
   47  of  state, or willfully impeding or obstructing such filing, or inducing
   48  another person to do so;
   49    22. Failing to make available to a patient, upon  request,  copies  of
   50  documents  in  the possession or under the control of the licensee which
   51  have been prepared for and paid for by the patient or client;
   52    23. Revealing of personally identifiable facts, data,  or  information
   53  obtained  in  a  professional  capacity without the prior consent of the
   54  patient, except as authorized or required by law;
   55    24. Practicing or offering to practice beyond the scope  permitted  by
   56  law, or accepting and performing professional responsibilities which the
       S. 1407                            173                           A. 2107
 
    1  licensee  knows or has reason to know that he or she is not competent to
    2  perform,  or  performing  without  adequate   supervision   professional
    3  services  which  the  licensee  is  authorized to perform only under the
    4  supervision of a licensed professional, except in an emergency situation
    5  where a person's life or health is in danger;
    6    25.  Delegating  professional  responsibilities  to  a person when the
    7  licensee delegating such responsibilities knows or has  reason  to  know
    8  that  such  person  is  not qualified, by training, by experience, or by
    9  licensure, to perform them;
   10    25-a. With  respect  to  any  non-emergency  treatment,  procedure  or
   11  surgery  which is expected to involve local or general anesthesia, fail-
   12  ing to disclose to the patient the identities of all physicians,  except
   13  medical  residents  in  certified  training  programs,  podiatrists  and
   14  dentists, reasonably anticipated to be actively involved in such  treat-
   15  ment, procedure or surgery and to obtain such patient's informed consent
   16  to said practitioners' participation;
   17    26.  Performing  professional services which have not been duly autho-
   18  rized by the patient or his or her legal representative;
   19    27. Advertising or soliciting for patronage that is not in the  public
   20  interest. (a) Advertising or soliciting not in the public interest shall
   21  include,  but  not be limited to, advertising or soliciting that: (i) is
   22  false, fraudulent, deceptive, misleading, sensational, or flamboyant;
   23    (ii) represents intimidation or undue pressure;
   24    (iii) uses testimonials;
   25    (iv) guarantees any service;
   26    (v) makes any claim relating to professional services or  products  or
   27  the  costs or price therefor which cannot be substantiated by the licen-
   28  see, who shall have the burden of proof;
   29    (vi) makes claims of professional superiority which cannot be substan-
   30  tiated by the licensee, who shall have the burden of proof; or
   31    (vii) offers bonuses or inducements in any form other than a  discount
   32  or  reduction  in an established fee or price for a professional service
   33  or product.
   34    (b) The following shall be deemed appropriate means of  informing  the
   35  public  of  the availability of professional services: (i) informational
   36  advertising not contrary to the foregoing prohibitions; and
   37    (ii) the advertising in a newspaper, periodical or professional direc-
   38  tory or on radio or television of fixed prices, or  a  stated  range  of
   39  prices,  for  specified  routine professional services, provided that if
   40  there is an additional charge for related services which are an integral
   41  part of the overall service being provided by the licensee,  the  adver-
   42  tisement  shall  so  state,  and provided further that the advertisement
   43  indicates the period of time for which the advertised prices shall be in
   44  effect.
   45    (c)(i) All licensees placing advertisements shall maintain,  or  cause
   46  to  be maintained, an exact copy of each advertisement, transcript, tape
   47  or video tape thereof as appropriate for the medium used, for  a  period
   48  of  one  year  after its last appearance. This copy shall be made avail-
   49  able for inspection upon demand of the department of health;
   50    (ii) A licensee shall not compensate or give anything of value to rep-
   51  resentatives of the press, radio,  television  or  other  communications
   52  media  in  anticipation  of or in return for professional publicity in a
   53  news item;
   54    (d) No demonstrations, dramatizations or other portrayals  of  profes-
   55  sional  practice  shall  be  permitted  in advertising on radio or tele-
   56  vision;
       S. 1407                            174                           A. 2107
 
    1    28. Failing to respond within thirty days  to  written  communications
    2  from the department of health and to make available any relevant records
    3  with  respect  to  an  inquiry or complaint about the licensee's profes-
    4  sional misconduct. The period of thirty days shall commence on the  date
    5  when such communication was delivered personally to the licensee. If the
    6  communication  is  sent  from  the department of health by registered or
    7  certified mail, with return receipt requested, to the address  appearing
    8  in  the  last  registration, the period of thirty days shall commence on
    9  the date of delivery  to  the  licensee,  as  indicated  by  the  return
   10  receipt;
   11    29. Violating any term of probation or condition or limitation imposed
   12  on  the  licensee  pursuant  to section two hundred thirty of the public
   13  health law;
   14    30. Abandoning or neglecting a patient under and in need of  immediate
   15  professional  care,  without  making  reasonable  arrangements  for  the
   16  continuation of such care, or abandoning a professional employment by  a
   17  group  practice, hospital, clinic or other health care facility, without
   18  reasonable notice and under circumstances  which  seriously  impair  the
   19  delivery of professional care to patients or clients;
   20    31.  Willfully  harassing,  abusing,  or intimidating a patient either
   21  physically or verbally;
   22    32. Failing to maintain a record for  each  patient  which  accurately
   23  reflects the evaluation and treatment of the patient, provided, however,
   24  that a physician who transfers an original mammogram to a medical insti-
   25  tution,  or to a physician or health care provider of the patient, or to
   26  the patient directly, as otherwise provided by law, shall have no  obli-
   27  gation  under  this  section to maintain the original or a copy thereof.
   28  Unless otherwise provided by law, all patient records must  be  retained
   29  for  at  least  six  years.  Obstetrical  records  and  records of minor
   30  patients must be retained for at least six years,  and  until  one  year
   31  after the minor patient reaches the age of eighteen years;
   32    33.  Failing  to exercise appropriate supervision over persons who are
   33  authorized to practice only under the supervision of the licensee;
   34    34. Guaranteeing that satisfaction or a  cure  will  result  from  the
   35  performance of professional services;
   36    35. Ordering of excessive tests, treatment, or use of treatment facil-
   37  ities not warranted by the condition of the patient;
   38    36.  Claiming or using any secret or special method of treatment which
   39  the licensee refused to divulge to the department of health;
   40    37. Failing to wear an identifying badge, which shall be conspicuously
   41  displayed and legible, indicating the practitioner's  name  and  profes-
   42  sional title authorized pursuant to this article, while practicing as an
   43  employee  or operator of a hospital, clinic, group practice or multipro-
   44  fessional facility, or at a  commercial  establishment  offering  health
   45  services to the public;
   46    38.  Entering into an arrangement or agreement with a pharmacy for the
   47  compounding   and/or   dispensing   of   coded   or   specially   marked
   48  prescriptions;
   49    39.  With  respect  to  all  professional practices conducted under an
   50  assumed name, other than facilities licensed pursuant to  article  twen-
   51  ty-eight  of  the  public  health  law or article thirteen of the mental
   52  hygiene law, failing to post conspicuously at the site of such  practice
   53  the name and licensure field of all of the principal professional licen-
   54  sees  engaged  in  the  practice at that site (i.e., principal partners,
   55  officers or principal shareholders);
       S. 1407                            175                           A. 2107
 
    1    40. Failing to provide access by qualified persons to patient informa-
    2  tion in accordance with the standards set forth in section  eighteen  of
    3  the public health law, as added by chapter 497 of the laws of 1986;
    4    41. Knowingly or willfully performing a complete or partial autopsy on
    5  a deceased person without lawful authority;
    6    42.  Failing to comply with a signed agreement to practice medicine in
    7  New York state in an area designated by the commissioner of education as
    8  having a shortage of physicians or refusing to repay  medical  education
    9  costs  in  lieu  of such required service, or failing to comply with any
   10  provision of a written agreement with  the  state  or  any  municipality
   11  within  which  the  licensee  has  agreed to provide medical service, or
   12  refusing to repay funds in lieu of  such  service  as  consideration  of
   13  awards  made  by  the  state  or any municipality thereof for his or her
   14  professional education in medicine, or failing to comply with any agree-
   15  ment entered into to aid his or her medical education;
   16    43. Failing to complete forms or reports required for  the  reimburse-
   17  ment  of  a patient by a third party. Reasonable fees may be charged for
   18  such forms or reports, but prior payment for the  professional  services
   19  to which such forms or reports relate may not be required as a condition
   20  for making such forms or reports available;
   21    44. In the practice of psychiatry, (a) any physical contact of a sexu-
   22  al  nature  between  licensee and patient except the use of films and/or
   23  other audiovisual aids with individuals or groups in the development  of
   24  appropriate  responses to overcome sexual dysfunction and (b) in therapy
   25  groups,  activities  which  promote  explicit  physical  sexual  contact
   26  between group members during sessions; and
   27    45.  In  the  practice of ophthalmology, failing to provide a patient,
   28  upon request,  with  the  patient's  prescription  including  the  name,
   29  address,   and   signature  of  the  prescriber  and  the  date  of  the
   30  prescription.
   31    46. A violation of section two  hundred  thirty-eight  of  the  public
   32  health  law  by  a professional other than a professional subject to the
   33  provisions of paragraph (f) of subdivision one of  section  twenty-eight
   34  hundred five-k of the public health law.
   35    47.  Failure  to  use  scientifically accepted barrier precautions and
   36  infection control practices as established by the department  of  health
   37  pursuant  to  section  two hundred thirty-a of the public health law, as
   38  added by chapter six hundred six of the laws of nineteen  hundred  nine-
   39  ty-one.
   40    § 1051. Additional  definition  of  professional  misconduct,  limited
   41  application.  Notwithstanding any inconsistent provision of this  subar-
   42  ticle  or  any  other  provisions of law to the contrary, the license or
   43  registration of a person subject to the provisions  of  this  subarticle
   44  and  subarticle  two-b  of  this  article  may be revoked, suspended, or
   45  annulled or such person may be subject to any other penalty provided  in
   46  section two hundred thirty-a of the public health law in accordance with
   47  the provisions and procedures of this subarticle for the following:
   48    That  any  person  subject  to  the  above-enumerated  subarticles has
   49  directly or indirectly requested, received or participated in the  divi-
   50  sion, transference, assignment, rebate, splitting, or refunding of a fee
   51  for, or has directly requested, received or profited by means of a cred-
   52  it  or other valuable consideration as a commission, discount or gratui-
   53  ty, in connection with the furnishing of professional care  or  service,
   54  including  x-ray examination and treatment, or for or in connection with
   55  the sale,  rental,  supplying,  or  furnishing  of  clinical  laboratory
   56  services  or supplies, x-ray laboratory services or supplies, inhalation
       S. 1407                            176                           A. 2107
 
    1  therapy service or equipment, ambulance  service,  hospital  or  medical
    2  supplies, physiotherapy or other therapeutic service or equipment, arti-
    3  ficial  limbs,  teeth  or  eyes,  orthopedic  or  surgical appliances or
    4  supplies, optical appliances, supplies, or equipment, devices for aid of
    5  hearing,  drugs,  medication,  or  medical supplies, or any other goods,
    6  services, or supplies prescribed for medical diagnosis, care, or  treat-
    7  ment  under this article, except payment, not to exceed thirty-three and
    8  one-third percent of any fee received for x-ray examination,  diagnosis,
    9  or  treatment,  to  any hospital furnishing facilities for such examina-
   10  tion, diagnosis, or treatment. Nothing contained in this  section  shall
   11  prohibit  such  persons  from  practicing as partners, in groups or as a
   12  professional corporation or as  a  university  faculty  practice  corpo-
   13  ration,  nor  from pooling fees and moneys received, either by the part-
   14  nerships, professional  corporations,  or  university  faculty  practice
   15  corporations  or  groups  by the individual members thereof, for profes-
   16  sional services furnished  by  an  individual  professional  member,  or
   17  employee  of  such  partnership,  corporation,  or  group, nor shall the
   18  professionals constituting the partnerships, corporations or  groups  be
   19  prohibited  from  sharing, dividing, or apportioning the fees and moneys
   20  received by them or by the partnership, corporation, or group in accord-
   21  ance with a partnership or other agreement; provided that no such  prac-
   22  tice  as partners, corporations, or groups, or pooling of fees or moneys
   23  received or shared, division or apportionment of fees shall be permitted
   24  with respect to and treatment under the workers' compensation law. Noth-
   25  ing contained in this chapter  shall  prohibit  a  corporation  licensed
   26  pursuant  to  article  forty-three  of the insurance law pursuant to its
   27  contract with the subscribed  from  prorationing  a  medical  or  dental
   28  expenses  indemnity allowance among two or more professionals in propor-
   29  tion to the services rendered by each such professional at  the  request
   30  of  the  subscriber, provided that prior to payment thereof such profes-
   31  sionals shall submit both to the corporation licensed pursuant to  arti-
   32  cle  forty-three  of  the insurance law and to the subscriber statements
   33  itemizing the services rendered by each such professional and the charg-
   34  es therefor.
   35    § 1052. Enforcement, administration and interpretation of this  subar-
   36  ticle.   The board of professional medical conduct and the department of
   37  health shall enforce, administer and interpret this  subarticle.  Before
   38  issuing a declaratory ruling pursuant to section two hundred four of the
   39  state  administrative procedure act with respect to this subarticle, the
   40  department of health shall fully consult with the department  of  state.
   41  Neither  the  secretary  of  state  nor  the  commissioner of health may
   42  promulgate any rules or regulations concerning this subarticle.
 
   43                               SUBARTICLE 2-B
 
   44               PHYSICIAN ASSISTANTS AND SPECIALIST ASSISTANTS
 
   45  Section 1100. Definitions.
   46          1101. Registration.
   47          1102. Performance of medical services.
   48          1103. Construction.
   49          1104. Regulations.
   50          1105. Emergency services rendered by physician assistant.
   51          1106. Limited permits.
       S. 1407                            177                           A. 2107
 
    1    § 1100. Definitions.  As used in this subarticle: 1. Physician assist-
    2  ant. The term "physician assistant" means a person who is registered  as
    3  a physician assistant pursuant to this subarticle.
    4    2.  Specialist  assistant.  The  term  "specialist  assistant" means a
    5  person who is registered pursuant to this  subarticle  as  a  specialist
    6  assistant  for  a particular medical specialty as defined by regulations
    7  promulgated by the commissioner of health pursuant  to  section  thirty-
    8  seven hundred one of the public health law.
    9    3.  Physician.   The term "physician" means a practitioner of medicine
   10  licensed to practice medicine pursuant to subarticle two of  this  arti-
   11  cle.
   12    4.  Approved program.  The term "approved program" means a program for
   13  the education of physician assistants or specialist assistants which has
   14  been formerly approved by the department of state.
   15    5. Hospital. The term "hospital"  means  an  institution  or  facility
   16  possessing  a  valid  operating  certificate  issued pursuant to article
   17  twenty-eight of the public health law and authorized to employ physician
   18  assistants and specialist assistants in accordance with rules and  regu-
   19  lations of the state hospital review and planning council.
   20    § 1101. Registration.    1. To qualify for registration as a physician
   21  assistant or specialist assistant, each person shall pay a  fee  of  one
   22  hundred  fifteen  dollars  to the department of state for admission to a
   23  department conducted examination, a fee of forty-five dollars  for  each
   24  reexamination  and  a  fee  of seventy dollars for persons not requiring
   25  admission to a department conducted examination and  shall  also  submit
   26  satisfactory evidence, verified by oath or affirmation, that he or she:
   27    (a) at the time of application is at least twenty-one years of age;
   28    (b) is of good moral character;
   29    (c)  has  successfully  completed  a  four-year  course  of study in a
   30  secondary school approved by the board  of  regents  or  has  passed  an
   31  equivalency test;
   32    (d)  has satisfactorily completed an approved program for the training
   33  of physician assistants or specialist assistants. The  approved  program
   34  for  the  training  of  physician assistants shall include not less than
   35  forty weeks of supervised clinical training and thirty-two credit  hours
   36  of  classroom  work.  The  secretary  of state is empowered to determine
   37  whether an applicant possesses equivalent education and  training,  such
   38  as  experience as a nurse or military corpsman, which may be accepted in
   39  lieu of all or part of an approved program; and
   40    (e) in the case of  an  applicant  for  registration  as  a  physician
   41  assistant,  has obtained a passing score on an examination acceptable to
   42  the department of state.
   43    2. The department of state shall furnish to each person  applying  for
   44  registration  hereunder an application form calling for such information
   45  as the department deems necessary and shall issue to each applicant  who
   46  satisfies  the requirements of subdivision one of this section a certif-
   47  icate of registration as a physician assistant or  specialist  assistant
   48  in a particular medical specialty for the period expiring December thir-
   49  ty-first  of  the first odd-numbered year terminating subsequent to such
   50  registration.
   51    3. Every registrant shall apply to  the  department  of  state  for  a
   52  certificate of registration. The department of state shall mail to every
   53  registered  physician  assistant and specialist assistant an application
   54  form for registration, addressed to the registrant's post office address
   55  on file with the department of state. Upon receipt of  such  application
   56  properly  executed, together with evidence of satisfactory completion of
       S. 1407                            178                           A. 2107
 
    1  such continuing education requirements as  may  be  established  by  the
    2  commissioner  of  health pursuant to section thirty-seven hundred one of
    3  the public health law, the department of state shall issue a certificate
    4  of  registration. Registration periods shall be triennial and the regis-
    5  tration fee shall be forty-five dollars.
    6    § 1102. Performance of medical services.  1. Notwithstanding any other
    7  provision of law, a physician assistant may  perform  medical  services,
    8  but  only  when  under the supervision of a physician and only when such
    9  acts and duties as are assigned to him or her are within  the  scope  of
   10  practice of such supervising physician.
   11    2.  Notwithstanding any other provision of law, a specialist assistant
   12  may perform medical services, but only when under the supervision  of  a
   13  physician  and  only when such acts and duties as are assigned to him or
   14  her are related to the designated medical specialty for which he or  she
   15  is  registered and are within the scope of practice of his or her super-
   16  vising physician.
   17    3. Supervision shall be continuous  but  shall  not  be  construed  as
   18  necessarily requiring the physical presence of the supervising physician
   19  at the time and place where such services are performed.
   20    4.  No  physician  shall  employ  or supervise more than two physician
   21  assistants and two specialist assistants in his or her private practice.
   22    5. Nothing in this subarticle shall prohibit a hospital from employing
   23  physician assistants or specialist assistants provided they  work  under
   24  the supervision of a physician designated by the hospital and not beyond
   25  the  scope  of  practice of such physician.  The numerical limitation of
   26  subdivision four of this section shall not apply to  services  performed
   27  in a hospital.
   28    6.  Notwithstanding  any  other  provision of this subarticle, nothing
   29  shall prohibit a physician employed by  or  rendering  services  to  the
   30  department  of  correctional services under contract from supervising no
   31  more than four physician assistants or specialist assistants in  his  or
   32  her practice for the department of correctional services.
   33    7.  Notwithstanding  any  other  provision  of  law,  a  trainee in an
   34  approved program may perform medical services  when  such  services  are
   35  performed within the scope of such program.
   36    8.  Nothing  in  this  subarticle,  or  in article thirty-seven of the
   37  public health law, shall be construed to authorize physician  assistants
   38  or  specialist assistants to perform those specific functions and duties
   39  specifically delegated by law to those persons licensed as allied health
   40  professionals under the public health law or this article.
   41    § 1103. Construction.   1. Only a person  registered  as  a  physician
   42  assistant  by  the  department  of  state  may use the title "registered
   43  physician assistant" or the letters "R.P.A." after his or her name.
   44    2. Only a person registered as a specialist assistant by  the  depart-
   45  ment of state may use the title "registered specialist assistant" or the
   46  letters "R.S.A." after his or her name.
   47    § 1104. Regulations.  The secretary of state may promulgate such other
   48  regulations  as are necessary to carry out the purposes of this subarti-
   49  cle.
   50    § 1105. Emergency services rendered by physician assistant.   Notwith-
   51  standing  any  inconsistent  provision  of any general, special or local
   52  law, any physician assistant  properly  registered  in  this  state  who
   53  voluntarily and without the expectation of monetary compensation renders
   54  first  aid  or  emergency treatment at the scene of an accident or other
   55  emergency, outside a hospital, doctor's office or any other place having
   56  proper and necessary medical equipment, to a person who is  unconscious,
       S. 1407                            179                           A. 2107
 
    1  ill  or injured, shall not be liable for damages for injuries alleged to
    2  have been sustained by such person or for damages for the death of  such
    3  person  alleged  to have occurred by reason of an act or omission in the
    4  rendering  of  such first aid or emergency treatment unless it is estab-
    5  lished that such injuries were or such death was caused by gross  negli-
    6  gence  on  the part of such physician assistant. Nothing in this section
    7  shall be deemed or construed to relieve a licensed  physician  assistant
    8  from  liability  for  damages  for injuries or death caused by an act or
    9  omission on the part of a physician assistant  while  rendering  profes-
   10  sional services in the normal and ordinary course of his practice.
   11    § 1106. Limited  permits.  Permits limited as to eligibility, practice
   12  and duration, shall be issued by the department  of  state  to  eligible
   13  applicants, as follows:
   14    1.  Eligibility.  A person who fulfills all requirements for registra-
   15  tion as a physician assistant except that relating  to  the  examination
   16  shall be eligible for a limited permit.
   17    2. Limit of practice. A permittee shall be authorized to practice as a
   18  physician assistant only under the direct supervision of a physician.
   19    3.  Duration.  A limited permit shall expire one year from the date of
   20  issuance or upon notice to the permittee by the department of state that
   21  the application for registration has been denied. A limited permit shall
   22  be extended upon application for one additional year, provided that  the
   23  permittee's  request  for  such extension is endorsed by a physician who
   24  either has supervised or will supervise the permittee, except that  such
   25  extension may be denied by the department of state for cause which shall
   26  be  stated  in  writing.  If  the permittee is awaiting the results of a
   27  licensing examination at the time  such  limited  permit  expires,  such
   28  permit  shall  continue to be valid until ten days after notification to
   29  the permittee of the result of such examination.
   30    4. Fees. The fee for each limited permit shall  be  one  hundred  five
   31  dollars.
 
   32                                SUBARTICLE 3
 
   33                                CHIROPRACTIC
 
   34  Section 1150. Introduction.
   35          1151. Definition of practice of chiropractic.
   36          1152. Practice of chiropractic and use of title "chiropractor".
   37          1153. State board for chiropractic.
   38          1154. Requirements for a professional license.
   39          1155. Exempt persons.
   40          1156. Special provisions.
   41    § 1150. Introduction.    This  subarticle applies to the profession of
   42  chiropractic.  The general provisions for all professions  contained  in
   43  subarticle one of this article apply to this subarticle.
   44    § 1151. Definition  of  practice of chiropractic.  1.  The practice of
   45  the profession of chiropractic is defined as detecting and correcting by
   46  manual or mechanical means structural imbalance, distortion, or subluxa-
   47  tions in the human body for the purpose of removing  nerve  interference
   48  and  the  effects  thereof,  where such interference is the result of or
   49  related to distortion, misalignment or subluxation of or in  the  verte-
   50  bral column.
   51    2.  a.  A  license  to practice as a chiropractor shall not permit the
   52  holder thereof to use radio-therapy, fluoroscopy, or any form of  ioniz-
       S. 1407                            180                           A. 2107
 
    1  ing  radiation  except  X-ray  which  shall be used for the detection of
    2  structural imbalance, distortion, or subluxations in the human body.
    3    b.  The  requirements and limitations with respect to the use of X-ray
    4  by chiropractors shall be enforced by the state commissioner  of  health
    5  and  he  or  she is authorized to promulgate rules and regulations after
    6  conferring with the  state  board  of  chiropractic  to  carry  out  the
    7  purposes of this subdivision.
    8    c.  Chiropractors  shall  retain for a period of three years all X-ray
    9  films taken in the course of their practice, together with  the  records
   10  pertaining  thereto,  and shall make such films and records available to
   11  the state commissioner of health or his representative on demand.
   12    3. A license to practice chiropractic  shall  not  permit  the  holder
   13  thereof  to  treat  for  any  infectious diseases such as pneumonia, any
   14  communicable diseases listed in the sanitary code of the  state  of  New
   15  York, any of the cardio-vascular-renal or cardio-pulmonary diseases, any
   16  surgical  condition  of  the  abdomen  such  as  acute  appendicitis, or
   17  diabetes, or any benign or malignant neoplasms; to  operate;  to  reduce
   18  fractures  or dislocations; to prescribe, administer, dispense or use in
   19  his practice drugs or medicines; or to  use  diagnostic  or  therapeutic
   20  methods   involving  chemical  or  biological  means  except  diagnostic
   21  services performed by clinical  laboratories  which  services  shall  be
   22  approved  by the state board of chiropractic as appropriate to the prac-
   23  tice of chiropractic; or to  utilize  electrical  devices  except  those
   24  devices approved by the state board of chiropractic as being appropriate
   25  to  the  practice  of chiropractic. Nothing herein shall be construed to
   26  prohibit a licensed chiropractor who has successfully completed a regis-
   27  tered doctoral program in chiropractic, which contains courses of  study
   28  in  nutrition  satisfactory  to  the  department, from using nutritional
   29  counseling,  including  the  dispensing  of  food   concentrates,   food
   30  extracts, vitamins, minerals, and other nutritional supplements approved
   31  by  the  state  board  of chiropractic as being appropriate to, and as a
   32  part of, his or her practice of chiropractic. Nothing  herein  shall  be
   33  construed  to prohibit an individual who is not subject to regulation in
   34  this state as a licensed chiropractor from engaging in nutritional coun-
   35  seling.
   36    § 1152. Practice of chiropractic  and  use  of  title  "chiropractor".
   37  Only  a  person  licensed or exempt under this subarticle shall practice
   38  chiropractic or use the title "chiropractor".
   39    § 1153. State board for chiropractic.  A state board for  chiropractic
   40  shall  be appointed by the secretary of state for the purpose of assist-
   41  ing the secretary of state and the department of  state  on  matters  of
   42  professional  licensing  and  professional  conduct  in  accordance with
   43  section nine hundred twenty-two of this article.   The  board  shall  be
   44  composed  of  not  less  than  seven  members,  including  at least four
   45  licensed chiropractors, one licensed physician who is a doctor of  medi-
   46  cine,  one  licensed  physician  who  is a doctor of osteopathy, and one
   47  educator who holds a doctorate or equivalent degree in  either  anatomy,
   48  physiology,  pathology,  chemistry or microbiology.  An executive secre-
   49  tary to the board shall be appointed by the secretary of state.
   50    § 1154. Requirements for a professional  license.  To  qualify  for  a
   51  license  as  a  chiropractor,  an  applicant shall fulfill the following
   52  requirements:
   53    (1) Application: file an application with the department of state;
   54    (2) Education: have received an  education,  including  two  years  of
   55  preprofessional  college  study  and  completion of a four-year resident
       S. 1407                            181                           A. 2107
 
    1  program in chiropractic, in  accordance  with  the  regulations  of  the
    2  secretary of state;
    3    (3)  Experience:  have  experience  satisfactory to the state board of
    4  chiropractic and in accordance with the regulations of the secretary  of
    5  state;
    6    (4)  Examination: pass examinations satisfactory to the state board of
    7  chiropractic and in accordance with the regulations of the secretary  of
    8  state,  in clinical chiropractic analysis, the practice of chiropractic,
    9  X-ray as it relates to chiropractic analysis, and examinations satisfac-
   10  tory to the department of state in anatomy, physiology, pathology, chem-
   11  istry, microbiology, diagnosis, and the use and effect of X-ray;
   12    (5) Age: be at least twenty-one years of age;
   13    (6) Citizenship or immigration status: be a United States  citizen  or
   14  an alien lawfully admitted for permanent residence in the United States;
   15    (7) Character: be of good moral character as determined by the depart-
   16  ment of state; and
   17    (8) Fees: pay a fee of one hundred seventy-five dollars to the depart-
   18  ment  of  state  for admission to a department conducted examination and
   19  for an initial license, a fee of eighty-five dollars for each reexamina-
   20  tion, a fee of one hundred fifteen dollars for an  initial  license  for
   21  persons  not  requiring admission to a department conducted examination,
   22  and a fee of one hundred fifty-five dollars for each triennial registra-
   23  tion period.
   24    § 1155. Exempt persons.  Nothing in this subarticle shall be construed
   25  to affect or prevent a student enrolled in a college of chiropractic  in
   26  this state from engaging in all phases of clinical practice under super-
   27  vision  of  a  licensed chiropractor or physician in a curriculum regis-
   28  tered by the department of state.
   29    § 1156. Special provisions.  1. Any chiropractor who holds  a  license
   30  stating  that  the  holder  is not authorized to use X-ray in his or her
   31  practice shall on each registration, continue to  obtain  a  license  so
   32  marked.  Any  chiropractor  holding  such a license may obtain a license
   33  permitting the use of X-ray provided he or she first passes an  examina-
   34  tion  in the use and effect of X-ray satisfactory to the state board for
   35  chiropractic and the department of state.
   36    2. An applicant who graduated from a school of chiropractic  prior  to
   37  January  first,  nineteen hundred sixty-eight need not meet the two-year
   38  preprofessional college study requirement provided  for  in  subdivision
   39  two of section eleven hundred fifty-four of this subarticle.
 
   40                                SUBARTICLE 4
 
   41                        DENTISTRY AND DENTAL HYGIENE
 
   42  Section 1200.   Introduction.
   43          1201.   Definition of practice of dentistry.
   44          1202.   Practice of dentistry and use of title "dentist".
   45          1203.   State board for dentistry.
   46          1204.   Requirements for a license as a dentist.
   47          1205.   Mandatory continuing education for dentists.
   48          1206.   Limited permits.
   49          1207.   Dental anesthesia certificate.
   50          1208.   Dental    hygiene    restricted    local    infiltration
   51                    anesthesia/nitrous oxide analgesia certificate.
   52          1209.   Definition of practice of dental hygiene.
       S. 1407                            182                           A. 2107
 
    1          1210.   Practice of dental hygiene  and  use  of  title  "dental
    2                    hygienist".
    3          1211.   Definition of practice of certified dental assisting.
    4          1212.   Practice  of certified dental assisting and use of title
    5                    "certified dental assistant".
    6          1213.   Requirements for certification  as  a  certified  dental
    7                    assistant.
    8          1214.   Exempt persons.
    9          1215.   Limited permits.
   10          1216.   Requirements for a license as a dental hygienist.
   11          1217.   Mandatory continuing education for dental hygienists.
   12          1218.   Exempt persons.
   13          1219.   Special provisions.
   14          1220.   Identification  of  removable full or partial prosthetic
   15                    devices.
   16         1221.    Nitrous oxide equipment.
   17    § 1200. Introduction.  This subarticle applies to the  professions  of
   18  dentistry   and   dental  hygiene.    The  general  provisions  for  all
   19  professions contained in subarticle one of this article  apply  to  this
   20  subarticle.
   21    § 1201. Definition  of  practice  of  dentistry.  The  practice of the
   22  profession of dentistry is defined as diagnosing,  treating,  operating,
   23  or  prescribing  for  any  disease, pain, injury, deformity, or physical
   24  condition of the oral and maxillofacial area related  to  restoring  and
   25  maintaining  dental  health.  The  practice  of  dentistry  includes the
   26  prescribing and fabrication of dental  prostheses  and  appliances.  The
   27  practice  of  dentistry  may  include performing physical evaluations in
   28  conjunction with the provision of dental treatment.
   29    § 1202. Practice of dentistry and use of  title  "dentist".    Only  a
   30  person  licensed or otherwise authorized to practice under this subarti-
   31  cle shall practice dentistry or use the title "dentist".
   32    § 1203. State board for dentistry. A state board for  dentistry  shall
   33  be  appointed by the secretary of state for the purpose of assisting him
   34  or her and the department of state on matters of professional  licensing
   35  and  professional  conduct in accordance with section nine hundred twen-
   36  ty-two of this article.  The board shall be composed of  not  less  than
   37  thirteen  dentists  licensed  in this state for at least five years, not
   38  less than three dental hygienists licensed in this state  for  at  least
   39  five years, and not less than one certified dental assistant licensed in
   40  this  state  for  at least one year. An executive secretary to the board
   41  shall be appointed by the secretary of state  and  shall  be  a  dentist
   42  licensed in this state.
   43    § 1204. Requirements  for  a  license  as  a dentist. To qualify for a
   44  license as a dentist, an applicant shall fulfill the following  require-
   45  ments:
   46    (1) Application: file an application with the department of state;
   47    (2) Education: have received an education, including a doctoral degree
   48  in  dentistry,  in  accordance  with the regulations of the secretary of
   49  state;
   50    (3) Experience: have experience satisfactory to the  state  board  for
   51  dentistry  and  in  accordance  with the regulations of the secretary of
   52  state,  provided  that  such  experience  may  consist  of  satisfactory
   53  completion  of  a postdoctoral dental residency program, of at least one
   54  year's duration, in a hospital or dental facility accredited for  teach-
   55  ing  purposes  by the commission on dental accreditation of the american
   56  dental association, provided, further, that any such  residency  program
       S. 1407                            183                           A. 2107
 
    1  shall  include  a formal outcome assessment evaluation of the resident's
    2  competence to practice dentistry acceptable to the department of state;
    3    (4)  Examination:  pass an examination satisfactory to the state board
    4  for dentistry and in accordance with the regulations of the secretary of
    5  state, provided that every person pursuing the dental  residency  option
    6  of subdivision three of this section upon the satisfactory completion of
    7  such  residency  which  shall  include  the formal outcome assessment as
    8  denoted in such subdivision, shall be deemed to have  met  all  clinical
    9  dentistry  requirements  for licensure and shall not be required to take
   10  any additional clinical licensing examination;
   11    (5) Age: be at least twenty-one years of age;
   12    (6) Citizenship or immigration status: be a United States  citizen  or
   13  an alien lawfully admitted for permanent residence in the United States;
   14  provided,  however,  that  the secretary of state may grant a three year
   15  waiver for an alien to practice in an area which has been  designated  a
   16  federal  dental health professions shortage area, except that the secre-
   17  tary of state may grant an additional extension not to exceed six  years
   18  to  an  alien  to  enable  him or her to secure citizenship or permanent
   19  resident status, provided such status is being actively pursued;
   20    (7) Character: be of good moral character as determined by the depart-
   21  ment of state; and
   22    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   23  state for admission to a department conducted  examination  and  for  an
   24  initial  license,  a fee of one hundred fifteen dollars for each reexam-
   25  ination, a fee of one hundred thirty-five dollars for an initial license
   26  for persons not requiring admission to a department  conducted  examina-
   27  tion,  and a fee of two hundred ten dollars for each triennial registra-
   28  tion period.
   29    § 1205. Mandatory continuing  education  for  dentists.  1.  (a)  Each
   30  dentist,  licensed  pursuant  to  this  subarticle, required to register
   31  triennially with the department of state to practice in this state shall
   32  comply  with  the  provisions  of  the  mandatory  continuing  education
   33  requirements,  except  as  set  forth  in paragraphs (b) and (c) of this
   34  subdivision.   Dentists who do  not  satisfy  the  mandatory  continuing
   35  education  requirements  shall  not  practice  until  they have met such
   36  requirements and have been issued a registration or  conditional  regis-
   37  tration certificate.
   38    (b)  Dentists  shall be exempt from the mandatory continuing education
   39  requirement for the triennial registration period during which they  are
   40  first  licensed.  In accordance with the intent of this section, adjust-
   41  ments to the mandatory continuing education requirement may  be  granted
   42  by  the department of state for reasons of health, certified by a physi-
   43  cian, for extended active duty with  the  armed  forces  of  the  United
   44  States,  or  for other good cause acceptable to the department which may
   45  prevent compliance.
   46    (c) A licensed dentist not engaged in public practice as an individual
   47  practitioner, a partner of a partnership, a  shareholder  of  a  profes-
   48  sional service corporation, or an employee of such practice units, shall
   49  be  exempt  from the mandatory continuing education requirement upon the
   50  filing of a statement  with  the  department  of  state  declaring  such
   51  status.  Any  licensee  who  returns to the public practice of dentistry
   52  during the triennial registration period shall notify the department  of
   53  state  prior  to reentering the profession and shall meet such mandatory
   54  continuing education requirements as shall be prescribed  by  regulation
   55  of the secretary of state.
       S. 1407                            184                           A. 2107
 
    1    2.  During  each triennial registration period an applicant for regis-
    2  tration shall complete a  minimum  of  forty-five  hours  of  acceptable
    3  formal  continuing education, a maximum of fifteen hours of which may be
    4  self-instructional coursework as approved by the  department  of  state.
    5  Beginning  with  the  first  registration renewal period for any dentist
    6  occurring on or after January first, two thousand two,  and  before  the
    7  occurrence  of  the  second  registration  renewal period following that
    8  date, a dentist shall have completed on a one-time basis, as part of the
    9  forty-five hours of acceptable formal continuing education  required  by
   10  this section, no fewer than two hours of coursework and training regard-
   11  ing  the  chemical  and related effects and usage of tobacco and tobacco
   12  products and the recognition,  diagnosis,  and  treatment  of  the  oral
   13  health effects, including but not limited to cancers and other diseases,
   14  caused  by  tobacco  and tobacco products, provided that any dentist who
   15  provides written proof satisfactory to the department of state that  the
   16  dentist  has  completed, at any time subsequent to the effective date of
   17  this section, an approved mandatory continuing education course  of  not
   18  less  than two hours in the same or substantially similar subject matter
   19  shall be deemed to have met this requirement, and further provided  that
   20  dentists who are exempt from the mandatory continuing education require-
   21  ment  for  the triennial registration period during which they are first
   22  licensed shall also be exempt from this requirement for that period.   A
   23  licensee  who  has  not  satisfied  the  mandatory  continuing education
   24  requirements shall not be issued a triennial registration certificate by
   25  the department of state and shall not practice unless and until a condi-
   26  tional registration certificate is issued  as  provided  in  subdivision
   27  three  of  this  section.  The  individual  licensee shall determine the
   28  selection of courses or programs of study pursuant to  subdivision  four
   29  of this section.
   30    3. The department of state, in its discretion, may issue a conditional
   31  registration  to  a  licensee who fails to meet the continuing education
   32  requirements established in subdivision two  of  this  section  but  who
   33  agrees  to  make  up  any deficiencies and take any additional education
   34  which the department may require. The fee for such a conditional  regis-
   35  tration shall be the same as, and in addition to, the fee for the trien-
   36  nial  registration.  The duration of such conditional registration shall
   37  be determined by the department of state.  Any licensee who is  notified
   38  of  the denial of registration for failure to submit evidence, satisfac-
   39  tory to the department of state, of completion  of  required  continuing
   40  education  and who practices dentistry without such registration, may be
   41  subject to disciplinary proceedings pursuant  to  section  nine  hundred
   42  forty-four of this article.
   43    4.  As  used in this section, "acceptable formal continuing education"
   44  shall mean formal programs of learning which contribute to  professional
   45  practice  and  which meet the standards prescribed by regulations of the
   46  secretary of state.   To  fulfill  the  mandatory  continuing  education
   47  requirement,  programs  must  be taken from sponsors having at least one
   48  full-time employee and the  facilities,  equipment,  and  financial  and
   49  physical  resources to provide continuing education courses, approved by
   50  the department of state, pursuant to the regulations of the secretary of
   51  state.
   52    5. The mandatory continuing education fee shall be forty-five dollars,
   53  shall be payable on or before the first day of each triennial  registra-
   54  tion period, and shall be paid in addition to the triennial registration
   55  fee  required  by section one thousand two hundred four of this subarti-
   56  cle.
       S. 1407                            185                           A. 2107
 
    1    § 1206. Limited permits.  1. On recommendation of the state board  for
    2  dentistry, the department of state may issue a limited permit to a grad-
    3  uate  of  a  dental college who meets the educational qualifications for
    4  admission to the licensing examination in dentistry for employment in  a
    5  hospital  or  dental  facility  approved by an appropriate agency, while
    6  under the direction or supervision of a licensed dentist. No such permit
    7  shall be issued or renewed unless such graduate has a bona fide offer of
    8  a position in such a hospital or dental facility.
    9    2. On recommendation of the state board for dentistry, the  department
   10  of  state  may  issue a limited permit for instructing in dentistry to a
   11  dentist not licensed under this subarticle to be employed  by  a  regis-
   12  tered  school  of  dentistry or dental hygiene to instruct and supervise
   13  clinical dentistry or dental hygiene for students in such  a  registered
   14  school in the state, and in so doing to practice dentistry as defined in
   15  this  subarticle,  but only on the premises of such registered school or
   16  such other premises as may be used for instruction  in  the  program  of
   17  education conducted by such institution. No person shall be permitted or
   18  authorized  to  instruct  and  supervise clinical dentistry for students
   19  unless such person is licensed in this  state  or  holds  the  foregoing
   20  limited permit for instructing in dentistry.
   21    3.  The  holder  of  a  limited permit under this section may practice
   22  dentistry, as defined in this subarticle, but only in the performance of
   23  duties required by the position for which the limited permit is  issued.
   24  Nothing  in this section shall be construed to authorize such unlicensed
   25  dentist to engage in the private practice of dentistry.
   26    4. A limited permit under this section shall be valid for one year  or
   27  until  ten  days  after  notification  of  denial  of an application for
   28  license. A limited permit may be renewed for one  year,  except  if  the
   29  applicant  is  serving in a residency program in a hospital or school of
   30  dentistry in this state. A limited permit may be  renewed  annually  for
   31  the  duration of such residency program. The fee for each limited permit
   32  and for each renewal shall be one hundred five dollars.
   33    § 1207. Dental anesthesia certificate. 1. A licensed dentist shall not
   34  employ conscious sedation, deep sedation or general  anesthesia  in  the
   35  practice  of  dentistry,  at any location other than a general hospital,
   36  without a dental anesthesia certificate  issued  by  the  department  of
   37  state.
   38    2.  The  secretary of state shall promulgate regulations, establishing
   39  standards and procedures for the issuance of certificates.  Such  stand-
   40  ards shall require completion of an educational program and/or course of
   41  training  or  experience  sufficient to ensure that a dentist is specif-
   42  ically trained in the use and administration of conscious sedation, deep
   43  sedation or general anesthesia and in the possible effects of such  use,
   44  and in the recognition of and response to possible emergency situations.
   45  Such regulations may also establish standards and safeguards for the use
   46  of conscious sedation, deep sedation or general anesthesia.
   47    3.  Nothing in this section shall limit a dentist's use of local anes-
   48  thesia, a dentist's use of nitrous oxide, or  a  dentist's  use  of  any
   49  other  substance  or  agent  for  a  purpose  other  than achieving deep
   50  sedation, conscious sedation, or general anesthesia.
   51    4. The fee for a dental anesthesia certificate shall  be  one  hundred
   52  dollars  and  shall  be  paid  on a triennial basis upon renewal of such
   53  certificate. A certificate may be  suspended  or  revoked  in  the  same
   54  manner as a license to practice dentistry.
   55    § 1208.     Dental     hygiene     restricted    local    infiltration
   56  anesthesia/nitrous oxide analgesia certificate. 1.  A  dental  hygienist
       S. 1407                            186                           A. 2107
 
    1  shall  not administer or monitor nitrous oxide analgesia or local infil-
    2  tration anesthesia in the practice of dental hygiene  without  a  dental
    3  hygiene restricted local infiltration anesthesia/nitrous oxide analgesia
    4  certificate  and  except under the personal supervision of a dentist and
    5  in conjunction with the performance of dental hygiene procedures author-
    6  ized by law and in accordance with regulations promulgated by the secre-
    7  tary of state.   Personal supervision, for  purposes  of  this  section,
    8  means  that  the  supervising dentist remains in the dental office where
    9  the local infiltration anesthesia or nitrous  oxide  analgesia  services
   10  are  being  performed,  personally  authorizes and prescribes the use of
   11  local infiltration anesthesia or nitrous oxide analgesia for the patient
   12  and, before dismissal of the patient, personally examines the  condition
   13  of the patient after the use of local infiltration anesthesia or nitrous
   14  oxide  analgesia  is  completed.  It  is  professional  misconduct for a
   15  dentist to fail to provide the supervision required by this section, and
   16  any dentist  found  guilty  of  such  misconduct  under  the  procedures
   17  prescribed  in  section nine hundred forty-four of this article shall be
   18  subject to the penalties prescribed in section nine hundred  forty-eight
   19  of this article.
   20    2.  The  secretary  of state shall promulgate regulations establishing
   21  standards and procedures for the  issuance  of  such  certificate.  Such
   22  standards  shall  require  completion  of  an educational program and/or
   23  course of training or experience sufficient  to  ensure  that  a  dental
   24  hygienist  is  specifically trained in the administration and monitoring
   25  of nitrous oxide analgesia and local infiltration anesthesia, the possi-
   26  ble effects of such use, and in  the  recognition  of  and  response  to
   27  possible emergency situations.
   28    3.  The  fee  for  a  dental  hygiene  restricted  local  infiltration
   29  anesthesia/nitrous oxide  analgesia  certificate  shall  be  twenty-five
   30  dollars  and  shall  be  paid  on a triennial basis upon renewal of such
   31  certificate. A certificate may be  suspended  or  revoked  in  the  same
   32  manner as a license to practice dental hygiene.
   33    § 1209. Definition  of practice of dental hygiene.  1. The practice of
   34  the profession of dental hygiene is defined as the performance of dental
   35  services which shall include removing  calcareous  deposits,  accretions
   36  and  stains  from  the  exposed surfaces of the teeth which begin at the
   37  epithelial attachment  and  applying  topical  agents  indicated  for  a
   38  complete dental prophylaxis, removing cement, placing or removing rubber
   39  dam, removing sutures, placing matrix band, providing patient education,
   40  applying  topical medication, placing and exposing X-ray films, perform-
   41  ing topical fluoride applications and topical  anesthetic  applications,
   42  polishing   teeth,  taking  medical  history,  charting  caries,  taking
   43  impressions for study casts, placing  and  removing  temporary  restora-
   44  tions, administering and monitoring nitrous oxide analgesia and adminis-
   45  tering  and monitoring local infiltration anesthesia, subject to certif-
   46  ication  in  accordance  with  section  twelve  hundred  eight  of  this
   47  subarticle,  and any other function in the definition of the practice of
   48  dentistry as may be delegated by a licensed dentist in  accordance  with
   49  regulations  promulgated  by  the  secretary of state.   The practice of
   50  dental hygiene may be conducted in the office of any licensed dentist or
   51  in any appropriately equipped school or public institution but  must  be
   52  done under the supervision of a licensed dentist.
   53    2.  The  secretary  of state shall promulgate regulations defining the
   54  functions a dental hygienist may perform that are  consistent  with  the
   55  training and qualifications for a license as a dental hygienist.
       S. 1407                            187                           A. 2107
 
    1    § 1210. Practice  of  dental  hygiene and use of title "dental hygien-
    2  ist". Only a person licensed under section  twelve  hundred  sixteen  of
    3  this subarticle or exempt shall practice dental hygiene or use the title
    4  "dental hygienist".
    5    § 1211. Definition  of  practice  of certified dental assisting.   The
    6  practice of certified dental assisting is defined as providing  support-
    7  ive  services  to  a  dentist  in his/her performance of dental services
    8  authorized under this subarticle. Such support shall  include  providing
    9  patient  education, taking preliminary medical histories and vital signs
   10  to be reviewed by the dentist, placing and removing rubber dams, select-
   11  ing and prefitting provisional crowns, selecting and  prefitting  ortho-
   12  dontic bands, removing orthodontic arch wires and ligature ties, placing
   13  and  removing  matrix bands, taking impressions for study casts or diag-
   14  nostic casts, removing periodontal  dressings,  and  such  other  dental
   15  supportive  services authorized in regulations promulgated by the secre-
   16  tary of state, provided that such  functions  are  performed  under  the
   17  direct  personal  supervision of a licensed dentist in the course of the
   18  performance of dental services. The practice of certified dental assist-
   19  ing may be conducted in the office of any licensed  dentist  or  in  any
   20  appropriately  equipped  school  or  public institution but must be done
   21  under the direct personal supervision  of  a  licensed  dentist.  Direct
   22  personal supervision, for purposes of this section, means supervision of
   23  dental  procedures  based on instructions given by a licensed dentist in
   24  the course of a procedure who remains in the  dental  office  where  the
   25  supportive services are being performed, personally diagnoses the condi-
   26  tion  to  be  treated,  personally authorizes the procedures, and before
   27  dismissal of the patient, evaluates the services performed by the dental
   28  assistant.  Nothing herein authorizes a dental assistant to perform  any
   29  of  the  services or functions defined as part of the practice of dental
   30  hygiene in accordance with the provisions of subdivision one of  section
   31  twelve  hundred  nine of this subarticle, except those functions author-
   32  ized pursuant to this section. All dental supportive  services  provided
   33  in  this section may be performed by currently registered dental hygien-
   34  ists under a dentist's supervision, as defined  in  regulations  of  the
   35  secretary of state.
   36    § 1212. Practice  of  certified  dental  assisting  and  use  of title
   37  "certified dental assistant".   Only a person  certified  under  section
   38  twelve hundred thirteen of this subarticle or exempt pursuant to section
   39  twelve  hundred  eighteen  of  this  subarticle shall practice certified
   40  dental assisting.  Only a person certified pursuant  to  section  twelve
   41  hundred  thirteen  of  this  subarticle  shall  use the title "certified
   42  dental assistant".
   43    § 1213. Requirements for certification as a certified  dental  assist-
   44  ant.    To qualify for certification as a certified dental assistant, an
   45  applicant shall fulfill the following requirements:
   46    (1) Application: file an application with the department of state;
   47    (2) Age: be at least seventeen years of age;
   48    (3) Fees: pay a fee of forty-five dollars to the department  of  state
   49  for  initial certification and a fee of fifty dollars for each triennial
   50  registration period;
   51    (4) Education and experience: (A) have received a high school diploma,
   52  or its equivalent, and (B) have successfully  completed,  in  accordance
   53  with the regulations of the secretary of state, (i) an approved one-year
   54  course  of study in dental assisting in a degree-granting institution or
   55  a board of cooperative educational services program  which  includes  at
   56  least  two  hundred  hours  of  clinical  experience,  or  an equivalent
       S. 1407                            188                           A. 2107
 
    1  approved course of study in dental assisting in  a  non-degree  granting
    2  institution  or  (ii)  an  alternate course of study in dental assisting
    3  acceptable to the department of state which includes at least one  thou-
    4  sand hours of relevant work experience; and
    5    (5)  Examination:  pass  an examination given by an organization which
    6  administers examinations for certifying dental assistants and  which  is
    7  acceptable to the department of state.
    8    § 1214. Exempt persons.  Nothing in this subarticle shall be construed
    9  to affect or prevent a student from engaging in any procedure authorized
   10  under section twelve hundred eleven of this subarticle in clinical prac-
   11  tice  as  part  of a course of study approved by the department of state
   12  pursuant to subdivision four of section twelve hundred thirteen of  this
   13  subarticle.
   14    § 1215. Limited permits.  The department of state shall issue a limit-
   15  ed  permit  to  an applicant who meets all requirements for admission to
   16  the licensing examination. All practice under a limited permit shall  be
   17  under  the  direct  personal  supervision of a licensed dentist. Limited
   18  permits shall be for one year and may be renewed at  the  discretion  of
   19  the department of state for one additional year. The fee for each limit-
   20  ed permit and for each renewal shall be forty dollars.
   21    § 1216. Requirements  for a license as a dental hygienist.  To qualify
   22  for a license as a dental hygienist,  an  applicant  shall  fulfill  the
   23  following requirements:
   24    (1) Application: file an application with the department of state;
   25    (2) Education: have received an education, including high school grad-
   26  uation and completion of a program in dental hygiene, in accordance with
   27  the regulations of the secretary of state;
   28    (3)  Experience:  have  experience satisfactory to the state board for
   29  dentistry and in accordance with the regulations  of  the  secretary  of
   30  state;
   31    (4)  Examination:  pass an examination satisfactory to the state board
   32  for dentistry and in accordance with the regulations of the secretary of
   33  state;
   34    (5) Age: be at least seventeen years of age;
   35    (6) Citizenship or immigration status: be a United States  citizen  or
   36  an alien lawfully admitted for permanent residence in the United States;
   37  provided,  however,  that  the secretary of state may grant a three year
   38  waiver for an alien to practice in an area which has been  designated  a
   39  federal  dental health professions shortage area, except that the secre-
   40  tary of state may grant an additional extension not to exceed six  years
   41  to  an  alien  to  enable  him or her to secure citizenship or permanent
   42  resident status, provided such status is being actively pursued;
   43    (7) Character: be of good moral character as determined by the depart-
   44  ment of state; and
   45    (8) Fees: pay a fee of one hundred fifteen dollars to  the  department
   46  of  state for admission to a department conducted examination and for an
   47  initial license, a fee of fifty dollars for each reexamination, a fee of
   48  seventy dollars for an initial license for persons not requiring  admis-
   49  sion  to  a department conducted examination, and a fee of fifty dollars
   50  for each triennial registration period.
   51    § 1217. Mandatory continuing education for dental hygienists.  1.  (a)
   52  Each dental hygienist, licensed pursuant to this subarticle and required
   53  to register triennially with the department of state to practice in this
   54  state  shall  comply  with  the  provisions  of the mandatory continuing
   55  education requirements, except as set forth in paragraphs (b) and (c) of
   56  this subdivision. Dental hygienists who do  not  satisfy  the  mandatory
       S. 1407                            189                           A. 2107
 
    1  continuing education requirements shall not practice until they have met
    2  such  requirements  and  have  been issued a registration or conditional
    3  registration certificate.
    4    (b)  Dental  hygienists  shall be exempt from the mandatory continuing
    5  education requirement for the triennial registration period during which
    6  they are first licensed. In accordance with the intent of this  section,
    7  adjustments  to  the  mandatory  continuing education requirement may be
    8  granted by the department for reasons of health, certified by  a  physi-
    9  cian,  for  extended  active  duty  with  the Armed Forces of the United
   10  States, or for other good cause acceptable to the department  which  may
   11  prevent compliance.
   12    (c)  A licensed dental hygienist not engaged in the practice of dental
   13  hygiene shall be exempt from the mandatory continuing education require-
   14  ment upon the filing of a statement with the department of state declar-
   15  ing such status. Any licensee who returns  to  the  practice  of  dental
   16  hygiene  during  the  triennial  registration  period  shall  notify the
   17  department of state prior to reentering the profession  and  shall  meet
   18  such  mandatory continuing education requirements as shall be prescribed
   19  by regulation of the secretary of state.
   20    2. During each triennial registration period an applicant  for  regis-
   21  tration  shall  complete  a  minimum  of twenty-four hours of acceptable
   22  formal continuing education including  currently  mandated  child  abuse
   23  reporting  instruction and infection control training as approved by the
   24  department of state.  Of these twenty-four hours a maximum of ten  hours
   25  may  be  self-instructional  coursework as approved by the department of
   26  state.  A licensee who has not satisfied the mandatory continuing educa-
   27  tion requirements shall not be issued a triennial  registration  certif-
   28  icate by the department of state and shall not practice unless and until
   29  a conditional registration certificate is issued as provided in subdivi-
   30  sion  three of this section. The individual licensee shall determine the
   31  selection of courses or programs of study pursuant to  subdivision  four
   32  of this section.
   33    3. The department of state, in its discretion, may issue a conditional
   34  registration  to  a  licensee who fails to meet the continuing education
   35  requirements established in subdivision two  of  this  section  but  who
   36  agrees  to  make  up  any deficiencies and take any additional education
   37  which the department of state may require. The fee  for  such  a  condi-
   38  tional  registration  shall  be the same as, and in addition to, the fee
   39  for the triennial registration. The duration of such conditional  regis-
   40  tration  shall  be  determined by the department of state.  Any licensee
   41  who is notified of the denial of  registration  for  failure  to  submit
   42  evidence,  satisfactory  to  the  department  of state, of completion of
   43  required continuing education and who practices dental  hygiene  without
   44  such  registration,  may be subject to disciplinary proceedings pursuant
   45  to section nine hundred forty-four of this article.
   46    4. As used in this section, "acceptable formal  continuing  education"
   47  shall  mean formal programs of learning which contribute to professional
   48  practice and which meet the standards prescribed by regulations  of  the
   49  secretary  of  state.    To  fulfill  the mandatory continuing education
   50  requirement, programs must  be  taken  from  sponsors  approved  by  the
   51  department  of  state,  pursuant  to the regulations of the secretary of
   52  state.
   53    5. The mandatory continuing education fee of thirty dollars  shall  be
   54  payable  on or before the first day of each triennial registration peri-
   55  od, and shall be paid in addition  to  the  triennial  registration  fee
   56  required by section twelve hundred sixteen of this subarticle.
       S. 1407                            190                           A. 2107
 
    1    § 1218.   Exempt  persons.    Nothing  in  this  subarticle  shall  be
    2  construed to affect or prevent:
    3    1.  An  unlicensed  person from performing solely mechanical work upon
    4  inert matter in a dental office or on a dental  laboratory  prescription
    5  of a dentist holding a license or limited permit;
    6    2.  A  student  from engaging in clinical practice as part of a regis-
    7  tered program operated by a school of dentistry under supervision  of  a
    8  dentist holding a license or limited permit for instructing in dentistry
    9  in a school of dentistry:
   10    3.  A  student from engaging in any procedure authorized under section
   11  twelve hundred nine of this subarticle in clinical practice as part of a
   12  registered program in dental hygiene  under  supervision  of  a  dentist
   13  holding  a license or a limited permit for instructing in dentistry in a
   14  school of dental hygiene;
   15    4. An employee of a federal agency from using the title of  and  prac-
   16  ticing  as  a dentist or dental hygienist insofar as such activities are
   17  required by his salaried position;
   18    5. A dentist or a dental hygienist licensed in  some  other  state  or
   19  country from making a teaching clinical demonstration before a regularly
   20  organized  dental  or medical society or group, or from meeting licensed
   21  dentists in this state for consultation, provided  such  activities  are
   22  limited to such demonstration or consultation.
   23    6. A dentist licensed in another state or country who is employed on a
   24  full-time  basis  by a registered dental school as a faculty member with
   25  the rank of assistant professor or higher from conducting  research  and
   26  clinical  demonstrations  as a part of such employment, under the super-
   27  vision of a licensed dentist and on the premises of the school.  No  fee
   28  may be charged for the practice of dentistry authorized by this subdivi-
   29  sion.
   30    7.  A  dentist licensed in another state or country who is visiting an
   31  approved dental school to receive dental instruction for a period not to
   32  exceed ninety days from engaging in  clinical  practice,  provided  such
   33  practice  is  limited to such instruction and is under the direct super-
   34  vision of a licensed dentist.
   35    8. Any student matriculated in an  accredited  dental  school  located
   36  outside  New  York state from engaging in appropriately supervised clin-
   37  ical practice as part of the  school's  dental  program  in  a  teaching
   38  hospital  which  has a teaching affiliation agreement with the student's
   39  dental school.
   40    § 1219. Special provisions.  1. Except upon the written dental labora-
   41  tory prescription of a  licensed  dentist  and  except  by  the  use  of
   42  impressions  or  casts  made by a licensed dentist, no dental laboratory
   43  shall furnish, supply, construct, reproduce, place,  adjust,  or  repair
   44  any  dental  prosthesis,  device,  or  appliance.  A  dental  laboratory
   45  prescription shall be made out in duplicate. It shall contain such  data
   46  as  may be prescribed by the regulations of the secretary of state.  One
   47  copy shall be retained by the practitioner of dentistry for a period  of
   48  one  year.  The other copy shall be issued to the person, firm or corpo-
   49  ration engaged in filling dental laboratory prescriptions, who or  which
   50  shall  each  retain  and  file  in their respective offices or places of
   51  business their respective copies for a period of one year.
   52    2. The department of state is empowered to inspect and to have  access
   53  to  all  places,  including the office or offices of a licensed dentist,
   54  where copies of dental laboratory prescriptions issued by him or her are
   55  retained as required by this section, and to  all  places  where  dental
   56  laboratory  prescriptions  are filled or to any workroom or workrooms in
       S. 1407                            191                           A. 2107
 
    1  which prosthetic restorations, prosthetic dentures, bridges, orthodontic
    2  or other appliances or structures to be used as substitutes for  natural
    3  teeth or tissue or for the correction of malocclusion or deformities are
    4  made, repaired or altered, with power to subpoena and examine records of
    5  dental  laboratory prescriptions.  A person who fails to grant access to
    6  such places or who fails to maintain prescriptions as required  by  this
    7  section shall be guilty of a class A misdemeanor.
    8    3.  The  department  of  state may arrange for the conduct of clinical
    9  examinations in the clinic of any school of dentistry or dental  hygiene
   10  within or outside the state for dental or dental hygiene candidates.
   11    4. A not-for-profit dental or medical expense indemnity corporation or
   12  hospital service corporation organized under the insurance law or pursu-
   13  ant  to  special  legislation  may enter into contracts with dentists or
   14  partnerships of dentists to  provide  dental  care  on  its  behalf  for
   15  persons insured under its contracts or policies.
   16    5.  Legally incorporated dental corporations existing and in operation
   17  prior to January first, nineteen hundred sixteen, may continue to  oper-
   18  ate through licensed dentists while conforming to the provisions of this
   19  subarticle.  Any  such  corporation which shall be dissolved or cease to
   20  exist or operate for any reason whatsoever shall  not  be  permitted  to
   21  resume operations. No such corporation shall change its name or sell its
   22  franchise  or  transfer  its corporate rights directly or indirectly, by
   23  transfer of capital stock control or otherwise,  to  any  person  or  to
   24  another corporation without permission from the department of state, and
   25  any corporation so changing its name or so transferring its franchise or
   26  corporate  rights  without  such  permission  shall  be  deemed  to have
   27  forfeited its rights to exist and may be dissolved by an action  brought
   28  by the attorney general.
   29    6.  Notwithstanding any inconsistent provision of any general, special
   30  or local law, any licensed  dentist  who  voluntarily  and  without  the
   31  expectation  of  monetary  compensation  renders  first aid or emergency
   32  treatment at the scene of an accident or other emergency, outside  of  a
   33  hospital  or  any other place having proper and necessary medical equip-
   34  ment, to a person who is unconscious, ill or injured shall not be liable
   35  for damages for injuries alleged to have been sustained by  such  person
   36  or  for damages for the death of such person alleged to have occurred by
   37  reason of an act or omission in the rendering of such first aid or emer-
   38  gency treatment unless it is established that such injuries were or such
   39  death was caused by gross negligence on the part of such dentist.  Noth-
   40  ing in this subdivision shall  be  deemed  or  construed  to  relieve  a
   41  licensed dentist from liability for damages for injuries or death caused
   42  by  an  act or omission on the part of a dentist while rendering profes-
   43  sional services in the normal and ordinary course of practice.
   44    7. Any dentist or dental hygienist, who in the performance  of  dental
   45  services,  x-rays  the  mouth  or  teeth  of  a patient shall during the
   46  performance of such x-rays shield the torso area of such patient includ-
   47  ing but not limited to the gonads and other reproductive organs  with  a
   48  lead apron or other similar protective garment or device.
   49    8.  An  unlicensed person may provide supportive services to a dentist
   50  incidental to and concurrent with such dentist personally  performing  a
   51  service  or procedure. Nothing in this subdivision shall be construed to
   52  allow an unlicensed person to provide any service which constitutes  the
   53  practice of dentistry or dental hygiene as defined in this subarticle.
   54    9.  There  shall be no monetary liability on the part of, and no cause
   55  of action for damages shall  arise  against,  any  person,  partnership,
   56  corporation,  firm,  society, or other entity on account of the communi-
       S. 1407                            192                           A. 2107
 
    1  cation of information in the possession of such person or entity, or  on
    2  account  of  any  recommendation or evaluation, regarding the qualifica-
    3  tions, fitness, or professional conduct or practices of  a  dentist,  to
    4  any  governmental  agency, dental or specialists society, or hospital as
    5  defined in article twenty-eight of the public health law. The  foregoing
    6  shall  not  apply  to  information which is untrue and communicated with
    7  malicious intent.
    8    § 1220. Identification  of  removable  full  or   partial   prosthetic
    9  devices.    1. Except as provided herein, every dentist licensed in this
   10  state making or directing to be made  a  removable  prosthetic  denture,
   11  bridge, appliance or other structure to be used and worn as a substitute
   12  for natural teeth, shall offer to the patient for whom the prosthesis is
   13  intended  the  opportunity  to  have  such  prosthesis  marked  with the
   14  patient's name or initials. Such markings shall be accomplished  at  the
   15  time  the  prosthesis is made and the location and methods used to apply
   16  or implant them shall be determined by the dentist or the person  acting
   17  on  behalf  of the dentist. Such marking shall be permanent, legible and
   18  cosmetically acceptable.
   19    2. Notwithstanding the foregoing, if in the judgment of the dentist or
   20  the person making the prosthesis, such identification is not practicable
   21  or clinically safe, the identification marks may be omitted entirely.
   22    3. The secretary of  state  shall  adopt  rules  and  regulations  and
   23  provide standards necessary to carry out the provisions of this section.
   24    §  1221.  Nitrous oxide equipment. Any machine used in a dental office
   25  for the administration of nitrous oxide to a patient shall  be  equipped
   26  with a scavenging system that appropriately minimizes leakage of nitrous
   27  oxide.
   28                                 SUBARTICLE 5
 
   29              VETERINARY MEDICINE AND ANIMAL HEALTH TECHNOLOGY
 
   30  Section 1250.   Introduction.
   31          1251.   Definition of practice of veterinary medicine.
   32          1252.   Practice of veterinary medicine and use of title "veter-
   33                    inarian".
   34          1253.   State board for veterinary medicine.
   35          1254.   Requirements for a professional license as a veterinari-
   36                    an.
   37          1255.   Exempt persons.
   38          1256.   Emergency veterinarian service; limited liability.
   39          1257.   Corporate practice.
   40          1258.   Limited  permits to engage in the practice of veterinary
   41                    medicine.
   42          1259.   Definition of practice of veterinary technology.
   43          1260.   Practice of  veterinary  technology  and  use  of  title
   44                    "veterinary technician".
   45          1261.   Requirements  for a professional license as a veterinary
   46                    technician.
   47          1262.   Limited permits to engage in the practice of  veterinary
   48                    technology.
   49          1263.   Exempt persons.
   50          1264.   Special provisions.
   51          1265.   Treatment records.
   52    § 1250. Introduction.    This  subarticle applies to the profession of
   53  veterinary medicine and veterinary technology.   The general  provisions
       S. 1407                            193                           A. 2107
 
    1  for all professions contained in subarticle one of this article apply to
    2  this subarticle.
    3    § 1251. Definition  of  practice of veterinary medicine.  The practice
    4  of the profession of  veterinary  medicine  is  defined  as  diagnosing,
    5  treating,  operating, or prescribing for any animal disease, pain, inju-
    6  ry, deformity or physical condition, or the subcutaneous insertion of  a
    7  microchip  intended to be used to identify an animal.  "Animal" includes
    8  every living creature except a human being.
    9    § 1252. Practice of veterinary medicine and use of title  "veterinari-
   10  an".  1.  Only  a  person licensed or exempt under this subarticle shall
   11  practice veterinary medicine or use the title "veterinarian".
   12    2. A licensed  veterinarian  or  a  professional  service  corporation
   13  organized  for the practice of veterinary medicine may employ veterinary
   14  technicians to assist them in the practice of their profession  in  such
   15  capacities  as are prescribed by law and as from time to time may be set
   16  by the commissioner or the state board of veterinary medicine. A veteri-
   17  narian or professional service corporation  may  not  employ  veterinary
   18  technicians  in  a  ratio  exceeding  three  technicians per supervising
   19  licensed veterinarian. Nothing in this section  shall  be  construed  as
   20  prohibiting a veterinarian from employing unlicensed lay persons for the
   21  performance of non-technical duties.
   22    § 1253. State board for veterinary medicine.  A state board for veter-
   23  inary  medicine  shall  be  appointed  by the secretary of state for the
   24  purpose of assisting the secretary of state and the department of  state
   25  on matters of professional licensing and professional conduct in accord-
   26  ance  with  section  nine  hundred twenty-two of this article. The board
   27  shall be composed of not less than seven veterinarians licensed  in  the
   28  state  and  not  more  than  two  veterinary technicians licensed in the
   29  state. An executive secretary to the board shall  be  appointed  by  the
   30  secretary  of state.  The participation of the licensed veterinary tech-
   31  nicians shall be limited to issues concerning the licensure  of  veteri-
   32  nary technology including but not limited to qualifications, employment,
   33  scope of practice, and discipline.
   34    § 1254. Requirements  for a professional license as a veterinarian. To
   35  qualify for a license as a veterinarian, an applicant shall fulfill  the
   36  following requirements:
   37    (1) Application: file an application with the department of state;
   38    (2) Education: have received an education, including a doctoral degree
   39  in veterinary medicine, in accordance with the regulations of the secre-
   40  tary of state;
   41    (3)  Experience:  have  experience  satisfactory to the state board of
   42  veterinary medicine and in accordance with the regulations of the secre-
   43  tary of state;
   44    (4) Examination: pass an examination satisfactory to the  state  board
   45  of  veterinary  medicine  and  in accordance with the regulations of the
   46  secretary of state;
   47    (5) Age: be at least twenty-one years of age;
   48    (6) Citizenship or immigration status: be a United States  citizen  or
   49  an alien lawfully admitted for permanent residence in the United States;
   50  provided,  however  that  the  secretary  of  state may grant a one-time
   51  three-year waiver for a veterinarian who otherwise  meets  the  require-
   52  ments  of  this  subarticle  and  provided further that the secretary of
   53  state may grant an extension of such three-year waiver of not more  than
   54  one year;
   55    (7) Character: be of good moral character as determined by the depart-
   56  ment of state; and
       S. 1407                            194                           A. 2107
 
    1    (8)  Fees: pay a fee of two hundred sixty dollars to the department of
    2  state for admission to a department conducted  examination  and  for  an
    3  initial license, a fee of one hundred thirty-five dollars for each reex-
    4  amination,  a  fee  of one hundred thirty dollars for an initial license
    5  for  persons  not requiring admission to a department conducted examina-
    6  tion, and a fee of two hundred ten dollars for each triennial  registra-
    7  tion period.
    8    § 1255. Exempt  persons.    The  following persons under the following
    9  limitations may practice veterinary medicine within the state without  a
   10  license:
   11    1.  Any  commissioned veterinary medical officer serving in the United
   12  States armed forces  or  in  the  United  States  Agricultural  Research
   13  Service while so commissioned, provided such practice is limited to such
   14  service;
   15    2. Any person rendering gratuitous services in cases of emergency;
   16    3.  Any  veterinarian  who is licensed in another state or country and
   17  who is meeting a veterinarian licensed in this  state  for  purposes  of
   18  consultation provided such practice is limited to such consultation;
   19    4.  Any  veterinarian  who  is  licensed  in a bordering state and who
   20  resides near a border of this state, provided such practice  is  limited
   21  in this state to the vicinity of such border and provided such veterina-
   22  rian  does  not  maintain an office or place to meet patients or receive
   23  calls within this state;
   24    5. Any intern or resident who practices  veterinary  medicine  in  any
   25  college  in  this state offering a program in veterinary medicine regis-
   26  tered by the department of state, and who is a graduate of a  school  of
   27  veterinary  medicine  accredited  in any state or country, provided such
   28  practice is limited to such duties as intern or resident  and  is  under
   29  the supervision of a licensed or otherwise authorized veterinarian.
   30    6.  Any  faculty  member  who  is a graduate of a school of veterinary
   31  medicine accredited in any state or country and whose practice of veter-
   32  inary medicine is incidental to his or her course of  instruction  while
   33  serving  as  a faculty member in a veterinary college offering a program
   34  registered by the department of state;
   35    7. Any student who engages in clinical practice under supervision of a
   36  licensed or otherwise authorized veterinarian in a school of  veterinary
   37  medicine in this state registered by the department of state.
   38    8. Any dentist duly licensed in this state who provides dental care to
   39  an animal at the request and under the immediate personal supervision of
   40  a licensed veterinarian.
   41    9. Any student enrolled and in good standing in a school of veterinary
   42  medicine  approved  by the commissioner, who practices under the general
   43  supervision of a veterinarian licensed and registered under this  subar-
   44  ticle;  provided  however, that only such students who have completed at
   45  least two and one-half years  in  an  approved  veterinary  program  and
   46  completed  all core didactic training may assist in diagnosis, treatment
   47  and surgery in such practice, subject to the following requirements: (a)
   48  assisting in diagnosis and  surgery  be  under  the  immediate  personal
   49  supervision  of  such  veterinarian; (b) assisting in treatment be under
   50  the direct supervision of such  veterinarian;  and  (c)  only  one  such
   51  student  shall  be supervised, as specified in paragraphs (a) and (b) of
   52  this subdivision, by one such veterinarian.
   53    10. Any employee of a not-for-profit pound, shelter, duly incorporated
   54  society for the prevention of cruelty to animals, humane society or  dog
   55  or cat protective association may insert a microchip for the purposes of
       S. 1407                            195                           A. 2107
 
    1  identification  of  any animal being held for adoption by such organiza-
    2  tion.
    3    11.  A veterinary graduate of an approved program engaging in clinical
    4  practice under the supervision,  but  not  necessarily  direct  personal
    5  supervision,  of  a  licensed  veterinarian,  provided  the graduate has
    6  passed the required state licensing examination and applied and  paid  a
    7  fee for the licensing. This exemption shall not extend beyond sixty days
    8  after graduation.
    9    §  1256.  Emergency veterinarian service; limited liability.  Notwith-
   10  standing any inconsistent provision of any  general,  special  or  local
   11  law,  any licensed veterinarian who  voluntarily, and without the expec-
   12  tation of monetary compensation, renders first aid or  emergency  treat-
   13  ment  to an animal that is ill or injured at the scene of an accident or
   14  other emergency, outside of an animal hospital,  clinic,  veterinarian's
   15  office  or  other  place  having  proper and necessary equipment for the
   16  practice of veterinary medicine, shall not be  liable  for  damages  for
   17  injuries  alleged  to  have been sustained by such animal or for damages
   18  for the death of such animal alleged to have occurred by  reason  of  an
   19  act  or  omission in the rendering of such first aid or emergency treat-
   20  ment unless it is established that such injuries were or such death  was
   21  caused  by gross negligence on the part of such veterinarian. Nothing in
   22  this section shall be deemed or construed to relieve a licensed  veteri-
   23  narian from liability for damages for injuries or death caused by an act
   24  or  omission  on the part of a veterinarian while rendering professional
   25  services in the normal and ordinary course of his or her business.
   26    § 1257. Corporate practice.  1. No business corporation, other than  a
   27  professional  service  corporation  organized  under the business corpo-
   28  ration law, shall hereafter be organized for the practice of  veterinary
   29  medicine;  no  business  corporation,  other than a professional service
   30  corporation, hereafter organized shall be granted a license to  practice
   31  veterinary  medicine;  and no business corporation, other than a profes-
   32  sional service corporation, hereafter organized shall provide veterinary
   33  medical services.
   34    2. Any not-for-profit corporation may own property in connection  with
   35  an  animal  hospital  or  shelter  provided that all veterinary practice
   36  conducted in such  facilities  shall  be  performed  by  a  veterinarian
   37  licensed and registered under this subarticle.
   38    § 1258. Limited  permits to engage in the practice of veterinary medi-
   39  cine.  Permits limited as to eligibility, practice, and duration,  shall
   40  be issued by the department of state to eligible applicants as follows:
   41    1.  Eligibility. The following persons shall be eligible for a limited
   42  permit:
   43    (1) A person who fulfills all requirements for a license as a  veteri-
   44  narian  except  those  relating  to  the  examination and citizenship or
   45  permanent residence in the United States;
   46    (2) A foreign veterinarian who is in this country on a non-immigration
   47  visa for the continuation of veterinary medical study in  a  college  of
   48  veterinary medicine.
   49    2.  Limit  of  practice.  A  permittee shall be authorized to practice
   50  veterinary medicine only under the supervision of a licensed veterinari-
   51  an in accordance with regulations of the secretary of state. A  licensed
   52  veterinarian shall supervise one permittee.
   53    3.  Duration.  A  limited  permit  issued pursuant to paragraph one of
   54  subdivision one of this section shall be valid for one year or until the
   55  individual has had  the  opportunity  to  take  the  state  veterinarian
   56  licensing  examination  and  receive  the  results  of this examination,
       S. 1407                            196                           A. 2107
 
    1  whichever shall occur first. It may be renewed once at the discretion of
    2  the department of state if the permit holder has not  had  a  reasonable
    3  opportunity  to take the state veterinarian licensing examination during
    4  the period for which such limited permit was originally issued. A limit-
    5  ed  permit  may also be issued or extended for not more than one year to
    6  afford an applicant or permit holder a second opportunity to successful-
    7  ly complete such examination if such  applicant  or  permit  holder  has
    8  successfully  completed  the  written subjects and all except one of the
    9  practical subjects of such examination. A limited permit issued pursuant
   10  to paragraph two of subdivision one of this section shall be  valid  for
   11  one  year,  and  may  be  renewed at the discretion of the department of
   12  state so long as the permit holder is a bona fide student at  a  college
   13  of veterinary medicine, in this state.
   14    4. Fees. The fee for each limited permit and for each renewal shall be
   15  one hundred five dollars.
   16    § 1259. Definition of practice of veterinary technology.  1. The prac-
   17  tice  of  the  profession  of  veterinary  technology  is defined as the
   18  performance of services within the field of  veterinary  medicine  by  a
   19  person who, for compensation or personal profit, is employed by or under
   20  the supervision of a veterinarian to perform such duties as are required
   21  in  carrying out medical orders as prescribed by a licensed veterinarian
   22  requiring an understanding of  veterinary  science,  but  not  requiring
   23  professional service as set forth in section twelve hundred fifty-one of
   24  this subarticle.
   25    2.  The  secretary  of state shall promulgate regulations defining the
   26  functions a veterinary technician may perform that are  consistent  with
   27  the  training  and  qualifications for a license as a veterinary techni-
   28  cian. The secretary of state may further require  that  a  licensee  may
   29  practice  within  an  area  of  specialization  only upon the successful
   30  completion of an examination established for the purpose of establishing
   31  competence in a specific area of practice in  the  field  of  veterinary
   32  technology.
   33    § 1260. Practice of veterinary technology and use of title "veterinary
   34  technician".    Only  a  person  licensed  under sections twelve hundred
   35  sixty-one and twelve hundred sixty-two of this  subarticle  or  exempted
   36  from its provisions by section twelve hundred sixty-three of this subar-
   37  ticle  shall practice veterinary technology or use the title "veterinary
   38  technician".
   39    § 1261. Requirements for a professional license as a veterinary  tech-
   40  nician.  To  qualify for licensure as a veterinary technician, an appli-
   41  cant shall fulfill the following requirements:
   42    1. Application: file an application with the department of state;
   43    2. Education: have successfully completed a four-year course of  study
   44  in a secondary school approved by the secretary of state;
   45    3.  Have  completed  a  college-level  course  of study in, and hold a
   46  diploma from a school of veterinary science technology for the  training
   47  of  animal health technicians, giving a course of not less than eighteen
   48  months, registered by the department of  state  as  maintaining  at  the
   49  time,  a  satisfactory standard, or has completed a college-level course
   50  of study determined by the department of  state  to  be  the  equivalent
   51  thereof;
   52    4.  Examination:  pass an examination satisfactory to the board and in
   53  accordance with the regulations of the secretary of state;
   54    5. Citizenship or immigration status: be a United States citizen or an
   55  alien lawfully admitted for permanent residence in  the  United  States;
   56  provided,  however  that  the  secretary  of  state may grant a one-time
       S. 1407                            197                           A. 2107
 
    1  three-year waiver for an animal health technician  who  otherwise  meets
    2  the requirements of this article and provided further that the secretary
    3  of  state  may  grant an extension of such three-year waiver of not more
    4  than one year;
    5    6.  Character: be of good moral character as determined by the depart-
    6  ment of state; and
    7    7. Fees: pay a fee to the department of state  for  admission  to  the
    8  examination  and  for initial licensure of eighty-five dollars, for each
    9  reexamination forty-five dollars, and a fee of eighty dollars  for  each
   10  triennial registration period.
   11    § 1262. Limited  permits to engage in the practice of veterinary tech-
   12  nology.   Permits limited as to  eligibility,  practice,  and  duration,
   13  shall  be  issued  by  the department of state to eligible applicants as
   14  follows:
   15    1. Eligibility. Persons shall be eligible for  a  limited  permit  who
   16  fulfill all requirements for a license as a veterinary technician except
   17  those relating to the examination and citizenship or permanent residence
   18  in the United States.
   19    2.  Duration.  A  limited permit issued pursuant to subdivision one of
   20  this section shall be valid for one year or until the individual has had
   21  the opportunity to take the state veterinary technician licensing  exam-
   22  ination  and  receive  the  results of this examination, whichever shall
   23  occur first. It may be renewed once at the discretion of the  department
   24  of  state  if  the permit holder has not had a reasonable opportunity to
   25  take the state veterinary technician licensing  examination  during  the
   26  period for which such limited permit was originally issued.
   27    3. Fees. The fee for each limited permit and for each renewal shall be
   28  fifty dollars.
   29    § 1263. Exempt persons.  Nothing in this subarticle shall be construed
   30  to  affect  or prevent the following persons under the following limita-
   31  tions from practicing veterinary technology within the state  without  a
   32  license:
   33    1.  Technicians  in  the performance of more technical procedures in a
   34  research facility, on animals owned by that institution when  such  work
   35  is under the direct supervision of a qualified professional;
   36    2.  Technicians in the military or naval service of the United States,
   37  United States Department of  Agriculture,  the  United  States  Veterans
   38  Administration  or the United States Public Health Service, in the prac-
   39  tice of such technical procedures in obedience to  the  requirements  of
   40  the  laws  of the United States, while engaged in the performance of the
   41  actual duties prescribed under the appropriate statutes  of  the  United
   42  States;
   43    3.  Any student engaging in clinical practice under the supervision of
   44  a licensed veterinarian in pursuance of  an  approved  program  for  the
   45  training of veterinary technology.
   46    § 1264. Special  provisions.    1.  An  unlicensed  person may provide
   47  supportive services to a veterinarian,  including  but  not  limited  to
   48  administering  oral or topical medications, incidental to and/or concur-
   49  rent with such veterinarian personally performing a  service  or  proce-
   50  dure,  provided  such  supportive services do not require a knowledge of
   51  veterinary science.
   52    2. A certified emergency medical technician may  perform  endotracheal
   53  intubation  on  an  animal under the immediate personal supervision of a
   54  licensed veterinarian or a licensed veterinary technician  acting  under
   55  the direct supervision of a veterinarian, in lieu of the licensed veter-
   56  inarian personally performing the procedure, provided:
       S. 1407                            198                           A. 2107
 
    1    a.  the  emergency  medical  technician  is  enrolled  in  a course in
    2  advanced emergency medical technology approved under article  thirty  of
    3  the  public health law in which pediatric endotracheal intubation train-
    4  ing is included;
    5    b.  the procedure is performed as part of pediatric endotracheal intu-
    6  bation training in that course, after didactic and manikin  training  in
    7  human intubation, and instruction in animal anatomy and the proper meth-
    8  od of animal intubation have been received;
    9    c. the procedure is medically indicated as part of treating or operat-
   10  ing  for any non-emergency disease, pain, injury, deformity, or physical
   11  condition of the animal;
   12    d. the procedure is performed only when the animal is properly sedated
   13  or anesthetized;
   14    e. the procedure is performed no more than once per animal by no  more
   15  than one certified emergency medical technician;
   16    f. the animal owner, or where such owner is unknown, the person having
   17  lawful  charge  or  custody  of  the  animal, consents in writing to the
   18  performance of the procedure by a person meeting the  qualifications  of
   19  this subdivision; and
   20    g.  records  kept by the commissioner of health on courses in advanced
   21  emergency medical technology meeting the requirements of  this  subdivi-
   22  sion   indicate   whether  pediatric  endotracheal  intubation  training
   23  conducted in accordance with the provisions of this subdivision was part
   24  of a course in advanced emergency medical technology; provided, however,
   25  that this subdivision shall not be  construed  to  require  endotracheal
   26  intubation  on  animals,  and  the  commissioner  of  health  shall have
   27  discretion to determine  whether  endotracheal  intubation  training  on
   28  animals  shall  be  required  for  accreditation  of such courses or for
   29  certification of advanced emergency medical technicians.
   30    § 1265. Treatment records.  Upon written request from the owner of  an
   31  animal  which  has received treatment from or under the supervision of a
   32  veterinarian, such veterinarian shall provide to  such  owner  within  a
   33  reasonable  time  period a copy of all records relating to the treatment
   34  of such animal. For the purposes of this  section,  the  term  "records"
   35  shall  mean  all information concerning or related to the examination or
   36  treatment of the animal kept by the veterinarian in the course of his or
   37  her practice. A veterinarian may impose a reasonable charge for  provid-
   38  ing  copies  of  such  records. A veterinarian may make available to the
   39  owner either the original or a copy of such record or document including
   40  x-rays, electrocardiograms and other diagnostic tests and may  impose  a
   41  reasonable fee for the reproduction of such copies.
   42                                SUBARTICLE 6
 
   43             PHYSICAL THERAPY AND PHYSICAL THERAPIST ASSISTANTS
 
   44  Section 1300. Introduction.
   45          1301. Definition of physical therapy.
   46          1302. Practice  of  physical therapy and the use of title "phys-
   47                  ical therapist".
   48          1303. State board for physical therapy.
   49          1304. Requirements for a professional license.
   50          1305. Limited permits.
   51          1306. Exempt persons.
   52          1307. Non-liability of licensed physical  therapists  for  first
   53                  aid or emergency treatment.
   54          1308. Definition of physical therapist assistant.
       S. 1407                            199                           A. 2107
 
    1          1309. Duties  of  physical  therapist  assistants and the use of
    2                  title "physical therapist assistant".
    3          1310. Requirements  for  certification  as  a physical therapist
    4                  assistant.
    5          1311. Exemption.
    6          1312. Limited permits.
    7          1313. Validity of existing licenses.
    8    § 1300. Introduction.  This subarticle applies to  the  profession  of
    9  physical  therapy  and provides for the licensing of physical therapists
   10  and for the certification of physical therapist assistants.  The general
   11  provisions for all professions contained in subarticle one of this arti-
   12  cle apply to this subarticle.
   13    § 1301. Definition of physical therapy.  Physical therapy  is  defined
   14  as:
   15    a.  The  evaluation,  treatment  or  prevention of disability, injury,
   16  disease, or other condition of  health  using  physical,  chemical,  and
   17  mechanical  means  including, but not limited to heat, cold, light, air,
   18  water, sound, electricity, massage, mobilization, and therapeutic  exer-
   19  cise  with  or without assistive devices, and the performance and inter-
   20  pretation of tests and measurements to assess pathophysiological, patho-
   21  mechanical, and developmental deficits of  human  systems  to  determine
   22  treatment, and assist in diagnosis and prognosis.
   23    b.  The  use of roentgen rays or radium, or the use of electricity for
   24  surgical purposes such as cauterization shall not  be  included  in  the
   25  practice of physical therapy.
   26    c.  Such  treatment shall be rendered pursuant to a referral which may
   27  be directive as to treatment by a licensed  physician,  dentist,  podia-
   28  trist or nurse practitioner and in accordance with their diagnosis.
   29    § 1302. Practice  of  physical  therapy and the use of title "physical
   30  therapist".  Only a person licensed or otherwise authorized  under  this
   31  subarticle  shall  practice  physical therapy or use the title "physical
   32  therapist", "physiotherapist" or "mechanotherapist" or the  abbreviation
   33  of  "P.T."  in connection with his or her name or with any trade name in
   34  the conduct of his or her profession.
   35    § 1303. State board for physical therapy.  A state board for  physical
   36  therapy  shall be appointed by the secretary of state for the purpose of
   37  assisting the secretary of state and the department of state on  matters
   38  of  professional  licensing  and professional conduct in accordance with
   39  section nine hundred twenty-two of this  article.  The  board  shall  be
   40  composed  of  not  less  than eight licensed physical therapists and not
   41  less than one public representative. An executive secretary to the board
   42  shall be appointed by the secretary of state.
   43    § 1304. Requirements for a professional license.   To  qualify  for  a
   44  license  as a physical therapist, an applicant shall fulfill the follow-
   45  ing requirements:
   46    a. Application: file an application with the department of state;
   47    b. Education: have received an education, including  completion  of  a
   48  four  year  college  program in physical therapy, in accordance with the
   49  regulations of the secretary of state, provided that  such  requirements
   50  shall  include  a  bachelor's,  higher  degree or equivalent in physical
   51  therapy;
   52    c. Experience: have experience satisfactory to  the  state  board  for
   53  physical  therapy in accordance with the regulations of the secretary of
   54  state;
       S. 1407                            200                           A. 2107
 
    1    d. Examination: pass an examination satisfactory to  the  state  board
    2  for  physical  therapy  and  in  accordance  with the regulations of the
    3  secretary of state;
    4    e. Age: be at least eighteen years of age;
    5    f.  Character: be of good moral character as determined by the depart-
    6  ment of state; and
    7    g. Fees: pay a fee of one hundred seventy-five dollars to the  depart-
    8  ment  of  state  for admission to a department conducted examination and
    9  for an initial license; a fee of eighty-five dollars for each reexamina-
   10  tion; a fee of one hundred fifteen dollars for an  initial  license  for
   11  persons  not  requiring admission to a department conducted examination;
   12  and a fee of one hundred fifty-five dollars for each triennial registra-
   13  tion period.
   14    § 1305. Limited permits. a. The department  of  state  shall  issue  a
   15  limited  permit to an applicant who meets all requirements for admission
   16  to the licensing examination.
   17    b. All practice under a limited permit shall be under the  supervision
   18  of  a  licensed physical therapist in a public hospital, an incorporated
   19  hospital or clinic, a licensed proprietary hospital, a licensed  nursing
   20  home,  a  public health agency, a recognized public or non-public school
   21  setting, the office of a licensed physical therapist, or  in  the  civil
   22  service of the state or political subdivision thereof.
   23    c. Limited permits shall be for six months and the department of state
   24  may for justifiable cause renew a limited permit provided that no appli-
   25  cant  shall  practice  under any limited permit for more than a total of
   26  one year.
   27    d. Supervision of a permittee by a licensed physical  therapist  shall
   28  be  on-site  supervision and not necessarily direct personal supervision
   29  except that such supervision need not be on-site  when  the  supervising
   30  physical  therapist  has  determined, through evaluation, the setting of
   31  goals and the establishment of a treatment plan, that the program is one
   32  of maintenance as defined pursuant to title XVIII of the federal  social
   33  security act.
   34    e.  The  fee  for  each  limited  permit and for each renewal shall be
   35  seventy dollars.
   36    § 1306. Exempt persons.  a. This subarticle shall not be construed  to
   37  affect  or  prevent the administration of physical therapy or the use of
   38  modalities by a person employed by  a  licensed  physician  or  physical
   39  therapist  in his or her office, or in the civil service of the state or
   40  any political subdivision thereof, or in a hospital or clinic, or in  an
   41  infirmary  maintained  by a person, firm or corporation employing one or
   42  more full-time licensed physicians or physical therapists, provided that
   43  such person was so employed for a period of at least two years prior  to
   44  April  tenth,  nineteen  hundred  fifty,  and  has been issued a written
   45  authorization by the department of state.
   46    b. This subarticle shall not be construed to affect or prevent:
   47    (1) a physical therapy student  from  engaging  in  clinical  practice
   48  under  the  supervision  of  a  licensed physical therapist as part of a
   49  program conducted in an approved school of  physical  therapy  or  in  a
   50  clinical  facility  or  health care agency affiliated with the school of
   51  physical therapy and supervision of a  physical  therapy  student  by  a
   52  licensed  physical therapist shall be on-site supervision and not neces-
   53  sarily direct personal supervision;
   54    (2) a physical therapist graduate of an approved program from engaging
   55  in clinical practice under  the  on-site,  but  not  necessarily  direct
   56  personal supervision of a licensed physical therapist provided the grad-
       S. 1407                            201                           A. 2107
 
    1  uate  has: (a) applied and paid a fee for the licensing and examination,
    2  (b) applied and paid a fee for  the  temporary  permit.  This  exemption
    3  shall not extend beyond ninety days after graduation;
    4    (3)  a  physical  therapist  licensed in another state or country from
    5  conducting a  teaching  clinical  demonstration  in  connection  with  a
    6  program  of basic clinical education, graduate education, or post-gradu-
    7  ate education in an approved school of physical therapy or in its affil-
    8  iated clinical facility or health care agency,  or  before  a  group  of
    9  licensed physical therapists who are members of a professional society;
   10    (4)  a  physical  therapist  who is serving in the armed forces or the
   11  public health service of the United States or is employed by the  veter-
   12  ans  administration  from practicing the profession of physical therapy,
   13  provided such practice is limited to such service or employment.
   14    § 1307.  Non-liability of licensed physical therapists for  first  aid
   15  or  emergency treatment.   Notwithstanding any inconsistent provision of
   16  any general, special or local law, any licensed physical  therapist  who
   17  voluntarily and without the expectation of monetary compensation renders
   18  first  aid  or  emergency treatment at the scene of an accident or other
   19  emergency, outside a hospital, doctor's office or any other place having
   20  proper and necessary physical therapy equipment,  to  a  person  who  is
   21  unconscious,  ill  or injured, shall not be liable for damages for inju-
   22  ries alleged to have been sustained by such person or  for  damages  for
   23  the death of such person alleged to have occurred by reason of an act or
   24  omission  in  the  rendering  of  such  first aid or emergency treatment
   25  unless it is established that such  injuries  were  or  such  death  was
   26  caused  by  gross  negligence  on  the  part of such physical therapist.
   27  Nothing in this section shall  be  deemed  or  construed  to  relieve  a
   28  licensed  physical  therapist from liability for damages for injuries or
   29  death caused by an act or omission on the part of a  physical  therapist
   30  while  rendering professional services in the normal and ordinary course
   31  of his or her practice.
   32    § 1308. Definition of physical therapist  assistant.  a.  A  "physical
   33  therapist  assistant"  means  a person certified in accordance with this
   34  subarticle who works under the supervision of a licensed physical thera-
   35  pist performing such patient related activities as are assigned  by  the
   36  supervising  physical therapist. Duties of physical therapist assistants
   37  shall not  include  evaluation,  testing,  interpretation,  planning  or
   38  modification  of  patient  programs. Supervision of a physical therapist
   39  assistant by a licensed physical therapist shall be on-site supervision,
   40  but not necessarily direct personal supervision. The number of  physical
   41  therapist assistants supervised by one licensed physical therapist shall
   42  not  exceed  the  ratio  of  four  physical  therapist assistants to one
   43  licensed physical therapist as shall be determined by the regulations of
   44  the secretary of state  regulations  insuring  that  there  be  adequate
   45  supervision in the best interest of public health and safety. Nothing in
   46  this section shall prohibit a hospital from employing physical therapist
   47  assistants,  provided they work under the supervision of physical thera-
   48  pists designated by the hospital and not beyond the scope of practice of
   49  a physical therapist assistant. The numerical limitation of this section
   50  shall not apply to work performed in a hospital, provided that there  be
   51  adequate supervision in the best interest of public health and safety.
   52    b.  Notwithstanding  the  provisions of subdivision a of this section,
   53  supervision of a physical therapist assistant  by  a  licensed  physical
   54  therapist,  (i)  in  a  residential  health care facility, as defined in
   55  article twenty-eight of the public health law, (ii) in a diagnostic  and
   56  treatment  center  licensed  under  article  twenty-eight  of the public
       S. 1407                            202                           A. 2107
 
    1  health law that provides, as its principal mission, services to individ-
    2  uals with developmental disabilities, (iii) in a facility, as defined in
    3  section 1.03 of the mental  hygiene  law,  or  (iv)  under  a  monitored
    4  program  of the office of mental retardation and developmental disabili-
    5  ties as defined in subdivision  (a)  of  section  13.15  of  the  mental
    6  hygiene  law,  shall  be continuous but not necessarily on site when the
    7  supervising physical therapist has determined, through  evaluation,  the
    8  setting  of  goals  and  the establishment of a treatment plan, that the
    9  program is one of maintenance as defined pursuant to title XVIII of  the
   10  federal  social  security  act. The provisions of this subdivision shall
   11  not apply to the provision of physical therapy services when the  condi-
   12  tion  requires  multiple  adjustments of sequences and procedures due to
   13  rapidly changing physiological status and/or response to  treatment,  or
   14  to children under five years of age.
   15    c.  For  the purposes of the provision of physical therapist assistant
   16  services in a home care services setting, as such services  are  defined
   17  in  article  thirty-six  of  the public health law, except that the home
   18  care services setting shall not include early intervention  services  as
   19  defined  in title two-A of article twenty-five of the public health law,
   20  whether such services are provided by a home  care  services  agency  or
   21  under  the supervision of a physical therapist licensed pursuant to this
   22  article, continuous supervision of a physical therapist  assistant,  who
   23  has  had  direct  clinical  experience for a period of not less than two
   24  years, by a licensed  physical  therapist  shall  not  be  construed  as
   25  requiring  the  physical presence of such licensed physical therapist at
   26  the time and place where such services are performed.  For  purposes  of
   27  this  subdivision  "continuous  supervision" shall be deemed to include:
   28  (i) the licensed physical therapist's setting of goals,  establishing  a
   29  plan  of  care  and  determining  whether  the patient is appropriate to
   30  receive the services of a physical therapist assistant  subject  to  the
   31  licensed  physical  therapist's  evaluation; (ii) an initial joint visit
   32  with the patient by the supervising licensed physical therapist and  the
   33  physical therapist assistant; (iii) periodic treatment and evaluation of
   34  the patient by the supervising licensed physical therapist, as indicated
   35  in  the  plan of care and as determined in accordance with patient need,
   36  but in no instance shall the  interval  between  such  treatment  exceed
   37  every  six  patient  visits  or thirty days, whichever occurs first; and
   38  (iv) a final evaluation by the supervising licensed  physical  therapist
   39  to  determine  if  the plan of care shall be terminated. For purposes of
   40  this subdivision, the number of physical  therapist  assistant's  super-
   41  vised in the home care services setting by a licensed physical therapist
   42  shall  not  exceed the ratio of two physical therapist assistants to one
   43  licensed physical therapist.
   44    d.  (1) For purposes of the provision of physical therapist  assistant
   45  services  in  public primary or private primary or secondary schools and
   46  for preschool children, as that term is defined in paragraph i of subdi-
   47  vision one of section forty-four hundred ten of the education  law,  and
   48  receiving  services  thereunder,  continuous  supervision  of a physical
   49  therapist assistant, who has direct clinical  experience  providing  age
   50  appropriate  physical therapy services for a period of not less than two
   51  years, by a licensed  physical  therapist  shall  not  be  construed  as
   52  requiring  the  physical presence of such licensed physical therapist at
   53  the time and place where such services are performed.  For  purposes  of
   54  this subdivision "continuous supervision" shall be deemed to include:
   55    (i) the licensed physical therapist's setting of the goals, establish-
   56  ing  a plan of care, determining on an initial and ongoing basis whether
       S. 1407                            203                           A. 2107
 
    1  the patient is appropriate to receive the services of a physical  thera-
    2  pist  assistant,  determining  the  frequency  of  joint visits with the
    3  patient by both the supervising  licensed  physical  therapist  and  the
    4  physical  therapist  assistant,  except  that  in  no instance shall the
    5  interval, between joint visits, be more than every ninety calendar days,
    6  subject to the licensed physical therapist's evaluation;
    7    (ii) an initial joint  visit  with  the  patient  by  the  supervising
    8  licensed physical therapist and physical therapist assistant;
    9    (iii)  periodic  treatment and evaluation of the patient by the super-
   10  vising licensed physical therapist as indicated in the plan of care  and
   11  as  determined  in  accordance  with  patient  need,  except  that in no
   12  instance shall the interval between such treatment exceed every  twelfth
   13  visit or thirty days which ever occurs first; and
   14    (iv)  notification  of  the supervising licensed physical therapist by
   15  the physical therapist assistant whenever there is a change  in  status,
   16  condition or performance of the patient.
   17    (2)  This  subdivision  shall  not  apply to the provision of physical
   18  therapy services when a child's condition requires multiple  adjustments
   19  of  sequences  and procedures due to rapidly changing physiologic status
   20  and/or response to treatment.
   21    § 1309. Duties of physical therapist assistants and the use  of  title
   22  "physical  therapist  assistant".   Only a person certified or otherwise
   23  authorized under this subarticle shall participate in  the  practice  of
   24  physical  therapy  as  a  physical therapist assistant and only a person
   25  certified under this subarticle shall use the title "physical  therapist
   26  assistant".
   27    § 1310. Requirements for certification as a physical therapist assist-
   28  ant. a. Application: file an application with the department of state;
   29    b.  Education:  have  received  an education including completion of a
   30  two-year college program in a physical therapist  assistant  program  or
   31  equivalent in accordance with the regulations of the secretary of state;
   32    c.  Experience:  have  experience  satisfactory to the state board for
   33  physical therapy in accordance with the regulations of the secretary  of
   34  state;
   35    c-1.  Examination: pass an examination satisfactory to the state board
   36  for physical therapy and in  accordance  with  the  regulations  of  the
   37  secretary of state;
   38    d. Age: be at least eighteen years of age;
   39    e.  Character: be of good moral character as determined by the depart-
   40  ment of state;
   41    f. Registration: all certified  physical  therapist  assistants  shall
   42  register triennially with the department of state in accordance with the
   43  regulations of the secretary of state;
   44    g.  Fees:  pay a fee for an initial certificate of forty-five dollars,
   45  and a fee of fifty dollars for each triennial registration period.
   46    § 1311. Exemption. a. This subarticle shall not be construed to affect
   47  or prevent a physical therapist assistant student from engaging in clin-
   48  ical assisting under the supervision of a licensed physical therapist as
   49  part of a program conducted in an approved program for  physical  thera-
   50  pist  assistants  or in a clinical facility or health care agency affil-
   51  iated with the program for physical therapist assistants.
   52    b. Supervision of a physical therapist assistant student by a licensed
   53  physical therapist shall be  on-site  supervision  and  not  necessarily
   54  direct personal supervision.
       S. 1407                            204                           A. 2107
 
    1    c.  Nothing  in  this  subarticle  is  intended  to affect the overall
    2  medical direction by  a  licensed  physician  of  a  physical  therapist
    3  assistant.
    4    §  1312.  Limited  permits.  a.  The department of state shall issue a
    5  limited permit to an applicant who meets all requirements for  admission
    6  to the certification examination.
    7    b.  All practice under a limited permit shall be under the supervision
    8  of a licensed physical therapist in a public hospital,  an  incorporated
    9  hospital  or clinic, a licensed proprietary hospital, a licensed nursing
   10  home, a public health agency, a recognized public or  non-public  school
   11  setting,  the  office  of a licensed physical therapist, or in the civil
   12  service of the state or political subdivision thereof.
   13    c. Limited permits shall be for six months and the department of state
   14  may for justifiable cause renew a limited permit provided that no appli-
   15  cant shall practice under any limited permit for more than  a  total  of
   16  one year.
   17    d.  Supervision  of a permittee by a licensed physical therapist shall
   18  be on-site supervision and not necessarily direct personal supervision.
   19    e. The fee for each limited permit and for each renewal shall be fifty
   20  dollars.
   21    § 1313. Validity of existing licenses.  This subarticle shall  not  be
   22  construed to affect the validity of existing licenses and permits or the
   23  continuation  of  any  administrative  actions  or proceedings commenced
   24  prior to the effective date of this subarticle.
   25                                 SUBARTICLE 7
 
   26                                  PHARMACY
 
   27  Section 1350.   Introduction.
   28          1351.   Definition of practice of pharmacy.
   29          1352.   Definitions.
   30          1353.   Practice of pharmacy and use of title "pharmacist".
   31          1354.   State board of pharmacy.
   32          1355.   Requirements for a professional license.
   33          1356.   Limited permits.
   34          1357.   Exempt persons; special provisions.
   35          1358.   Registering and operating establishments.
   36          1359.   Identification of pharmacists.
   37          1359-a. Registration of nonresident establishments.
   38          1360.   Prescriptions.
   39          1361.   Misdemeanors.
   40          1362.   Certain drugs to be clearly marked or labeled.
   41          1363.   Door-to-door distribution of drugs prohibited.
   42          1364.   Special provisions.
   43          1365.   Seizure.
   44          1366.   Records of shipment.
   45          1367.   Adulterating, misbranding and substituting.
   46          1368.   Omitting to label drugs, or labeling them wrongly.
   47          1369.   When substitution is required.
   48          1370.   New drugs.
   49          1371.   Adulterated and misbranded cosmetics.
   50          1372.   Cosmetic samples.
   51          1373.   Regulations making exceptions.
   52          1374.   Certification of coal-tar colors for drugs  and  cosmet-
   53                    ics.
   54          1375.   Poison schedules; register.
       S. 1407                            205                           A. 2107
 
    1          1376.   Examinations and investigations.
    2          1377.   Factory inspection.
    3          1378.   Injunction proceedings.
    4          1379.   Proof required in prosecution for certain violations.
    5          1380.   Drug retail price lists.
    6          1381.   Mandatory continuing education.
    7    § 1350. Introduction.    This  subarticle applies to the profession of
    8  pharmacy.   The general provisions  for  all  professions  contained  in
    9  subarticle one of this article apply to this subarticle.
   10    § 1351. Definition  of  practice  of  pharmacy.    The practice of the
   11  profession  of  pharmacy  is  defined  as  the  preparing,  compounding,
   12  preserving,  or  the  dispensing  of  drugs,  medicines  and therapeutic
   13  devices on the basis of prescriptions or other legal authority.
   14    § 1352. Definitions.  1. "Pharmacy" means any place  in  which  drugs,
   15  prescriptions  or  poisons are possessed for the purpose of compounding,
   16  preserving, dispensing or retailing, or in which drugs, prescriptions or
   17  poisons are compounded, preserved, dispensed or retailed,  or  in  which
   18  such  drugs,  prescriptions  or  poisons are by advertising or otherwise
   19  offered for sale at retail.
   20    2. "Formulary" means the  latest  edition  of  the  official  national
   21  formulary, and its supplement.
   22    3.  "Pharmacopeia",  when  not  otherwise  limited,  means  the latest
   23  edition of the official United States pharmacopeia, and its supplement.
   24    4. "Homeopathic pharmacopeia" means the official  homeopathic  pharma-
   25  copeia of the United States, and its supplement.
   26    5.  "Official  compendium" means the official United States pharmacop-
   27  eia, official homeopathic pharmacopeia of the  United  States,  official
   28  national formulary, or their supplements.
   29    6. "Drugs" means:
   30    a.  Articles  recognized  in  the official United States pharmacopeia,
   31  official homeopathic pharmacopeia of  the  United  States,  or  official
   32  national formulary.
   33    b.  Articles  intended  for  use  in  the diagnosis, cure, mitigation,
   34  treatment or prevention of disease in man or animals.
   35    c. Articles (other than food) intended to affect the structure or  any
   36  function of the body of man or animals.
   37    d.  Articles  intended for use as a component of any article specified
   38  in paragraphs a, b, or c of  this  subdivision;  but  does  not  include
   39  devices or their components, parts or accessories.
   40    7. "Cosmetics" means:
   41    a.  Articles  intended  to be rubbed, poured, sprinkled or sprayed on,
   42  introduced into or otherwise applied to the human  body  for  cleansing,
   43  beautifying, promoting attractiveness, or altering the appearance.
   44    b.  Articles  intended  for  use  as a component of any such articles;
   45  except that the term shall not include soap.
   46    8. "Poison", where not otherwise limited, means any drug, chemical  or
   47  preparation  likely to be destructive to adult human life in quantity of
   48  sixty grains or less.
   49    9. "Label" means a display of written,  printed  or  pictorial  matter
   50  upon  the  immediate  container  of  any  drug,  device or cosmetic. Any
   51  requirement made by or under authority  of  this  subarticle,  that  any
   52  word,  statement,  or other information appear on the label shall not be
   53  considered to be complied with unless  such  word,  statement  or  other
   54  information  also  appears on the outside container or wrapper, if there
   55  be any, of the retail package of such drug, device  or  cosmetic  or  is
   56  easily legible through the outside container or wrapper.
       S. 1407                            206                           A. 2107
 
    1    10. "Immediate container" does not include package liners.
    2    11. "Labeling" means all labels and other written, printed or pictori-
    3  al matter:
    4    a. Upon any drug, device or cosmetic or any of its containers or wrap-
    5  pers, or
    6    b. Accompanying such drug, device or cosmetic.
    7    12.  "Misbranding".  If  a  drug,  device or cosmetic is alleged to be
    8  misbranded because the labeling is misleading, or if an advertisement is
    9  alleged to be false because it is misleading then in determining whether
   10  the labeling or advertisement is misleading there shall  be  taken  into
   11  account  (among other things) not only representations made or suggested
   12  by statement, word, design, device, sound or  any  combination  thereof,
   13  but also the extent to which the labeling fails to reveal facts material
   14  in  the light of such representations or material with respect to conse-
   15  quences which may result from the use of the drug, device,  or  cosmetic
   16  to which the labeling or advertising relates under the conditions of use
   17  prescribed  in  the labeling or advertising thereof or under such condi-
   18  tions of use as are customary or usual.  No  drug,  device  or  cosmetic
   19  which is subject to, and complies with regulations promulgated under the
   20  provisions  of  the  federal  food,  drug, and cosmetic act, relating to
   21  adulteration and misbranding  shall  be  deemed  to  be  adulterated  or
   22  misbranded  in violation of the provisions of this subarticle because of
   23  its failure to comply with the regulations of the secretary of state, or
   24  the rules of the state board of pharmacy, insofar as the regulations are
   25  in conflict with regulations relating to  adulteration  and  misbranding
   26  under the federal food, drug and cosmetic act.
   27    13.  "Antiseptic". The representation of a drug, device or cosmetic in
   28  its labeling, as an antiseptic, shall be considered to  be  a  represen-
   29  tation  that  it is a germicide, except in the case of a drug purporting
   30  to be, or represented as, an antiseptic for  inhibitory  use  as  a  wet
   31  dressing,  ointment,  dusting  powder,  or  such  other  use as involves
   32  prolonged contact with the body.
   33    14. "New drug" means:
   34    a. Any drug not  generally  recognized,  among  experts  qualified  by
   35  scientific training and experience to evaluate the safety and effective-
   36  ness  of  drugs,  as  safe  and  effective  for use under the conditions
   37  prescribed, recommended or suggested by the drug's labeling, except that
   38  such a drug not so recognized shall not be deemed to be a "new drug"  if
   39  at  any  time  prior to September first, nineteen hundred thirty-nine it
   40  was subject to the former federal food and drug act of  June  thirtieth,
   41  nineteen  hundred  six,  as  amended,  and  if at such time its labeling
   42  contained the same representations concerning the conditions of its use;
   43    b. Any drug, the composition of which is such  that  the  drug,  as  a
   44  result  of  investigations to determine its safety and effectiveness for
   45  use under such conditions, has become  recognized,  but  which  has  not
   46  otherwise  than in such investigations been used to a material extent or
   47  for a material time under such conditions.
   48    15. "Device" means instruments, apparatus, and contrivances, including
   49  their components, parts and accessories, intended:
   50    a.  For  use  in  the  diagnosis,  cure,  mitigation,  treatment,   or
   51  prevention of disease in man or animals; or
   52    b.  To  affect  the  structure  or  any function of the body of man or
   53  animals.
   54    16. The term "Federal Food, Drug and Cosmetic Act" means  the  Federal
   55  Food,  Drug,  and Cosmetic Act of the United States of America, approved
   56  June twenty-fifth, nineteen hundred thirty-eight,  officially  cited  as
       S. 1407                            207                           A. 2107
 
    1  public  document  number  seven hundred seventeen-seventy-fifth congress
    2  (chapter six hundred seventy-five--third session), and  all  its  amend-
    3  ments now or hereafter enacted.
    4    17. "Wholesaler" means a person who bottles, packs or purchases drugs,
    5  devices  or cosmetics for the purpose of selling or reselling to pharma-
    6  cies or to other channels as provided in this subarticle.
    7    18. "Advertisement" means  all  representations  disseminated  in  any
    8  manner  or  by  any  means,  other  than by labeling, for the purpose of
    9  inducing, or which are likely to induce,  directly  or  indirectly,  the
   10  purchase of drugs, devices or cosmetics.
   11    19.  "Controlled  substance"  means  any  drug defined as a controlled
   12  substance by article thirty-three of the public health law.
   13    20. "Manufacturer" means a  person  who  compounds,  mixes,  prepares,
   14  produces,  and  bottles  or  packs  drugs,  cosmetics or devices for the
   15  purpose of distributing or selling to pharmacies or to other channels of
   16  distribution.
   17    § 1353. Practice of pharmacy and use of title "pharmacist".    Only  a
   18  person  licensed  or  otherwise  authorized  under this subarticle shall
   19  practice pharmacy or use the title "pharmacist" or any derivative.
   20    § 1354. State board of pharmacy.  A state board of pharmacy  shall  be
   21  appointed  by  the  secretary  of state for the purpose of assisting the
   22  secretary of state and the department of state  on  matters  of  profes-
   23  sional  licensing  and  professional  conduct in accordance with section
   24  nine hundred twenty-two of this article. The board shall be composed  of
   25  not  less than nine pharmacists licensed in this state for at least five
   26  years. An executive secretary to the board shall  be  appointed  by  the
   27  secretary  of state and shall be a pharmacist licensed in this state for
   28  at least five years. The board shall have power:
   29    a. To regulate the practice of pharmacy and the employment of  interns
   30  and employees in pharmacies,
   31    b. To regulate and control the sale, distribution, character and stan-
   32  dard of drugs, poisons, cosmetics, devices and new drugs,
   33    c. To employ inspectors and chemists,
   34    d. To prevent the sale or distribution of such drugs, poisons, cosmet-
   35  ics,  devices  and new drugs as do not conform to the provisions of this
   36  article or of the public health law,
   37    e. To investigate alleged violations of the provisions of  this  arti-
   38  cle, through its own investigative personnel or those of other agencies,
   39  to  conduct  hearings,  to  levy  money  penalties, and to bring alleged
   40  violations to the notice of the attorney general, and
   41    f. To issue limited permits or registrations.
   42    § 1355. Requirements for a professional  license.  To  qualify  for  a
   43  pharmacist's  license, an applicant shall fulfill the following require-
   44  ments:
   45    (1) Application: file an application with the department of state;
   46    (2) Education: have received an education, including a  bachelor's  or
   47  equivalent degree in pharmacy, in accordance with the regulations of the
   48  secretary of state;
   49    (3)  Experience:  have  experience  satisfactory to the state board of
   50  pharmacy and in accordance with the  regulations  of  the  secretary  of
   51  state;
   52    (4)  Examination:  pass an examination satisfactory to the state board
   53  of pharmacy, and in accordance with the regulations of the secretary  of
   54  state;
   55    (5) Age: be at least twenty-one years of age;
       S. 1407                            208                           A. 2107
 
    1    (6)  Citizenship  or immigration status: be a United States citizen or
    2  an alien lawfully admitted for permanent residence in the United States;
    3    (7) Character: be of good moral character as determined by the depart-
    4  ment of state; and
    5    (8) Fees: pay a fee of one hundred seventy-five dollars to the depart-
    6  ment  of  state  for admission to a department conducted examination and
    7  for an initial license, a fee of eighty-five dollars for each  re-exami-
    8  nation,  a fee of one hundred fifteen dollars for an initial license for
    9  persons not requiring admission to a department  conducted  examination,
   10  and a fee of one hundred fifty-five dollars for each triennial registra-
   11  tion period.
   12    § 1356. Limited  permits.    1.  The  department  of state may issue a
   13  limited permit for employment as a "pharmacy intern" to:
   14    a. A student enrolled in the last two years of a registered program in
   15  pharmacy, or
   16    b. A graduate of a program in pharmacy which  meets  standards  estab-
   17  lished  by  the  regulations of the secretary of state who is engaged in
   18  meeting the experience requirements or  whose  application  for  initial
   19  licensure is pending with the department of state.
   20    2.  A  pharmacy  intern  may,  as determined by the regulations of the
   21  secretary of  state,  practice  as  a  pharmacist  under  the  immediate
   22  personal supervision of a licensed pharmacist.
   23    3.  A limited permit issued to a pharmacy intern shall have an expira-
   24  tion date of five years from the date of issue. Limited permits  may  be
   25  renewed once for a period not to exceed two years.
   26    4.  Fees.  The fee for each limited permit issued to a pharmacy intern
   27  shall be seventy dollars.
   28    § 1357. Exempt persons; special provisions. 1.  This subarticle  shall
   29  not be construed to affect or prevent:
   30    a.  Unlicensed  assistants  from being employed in licensed pharmacies
   31  for purposes other than the practice of pharmacy;
   32    b. Any physician, dentist, veterinarian or other licensed health  care
   33  provider legally authorized to prescribe drugs under this article who is
   34  not  the  owner of a pharmacy or who is not in the employ of such owner,
   35  from supplying his patients with such drugs as the  physician,  dentist,
   36  veterinarian  or  other licensed health care provider legally authorized
   37  to prescribe drugs under this article deems proper  in  connection  with
   38  his  or  her  practice,  provided, however, that all such drugs shall be
   39  dispensed in a container labeled  with  the  name  and  address  of  the
   40  dispenser  and patient, directions for use, and date of delivery, and in
   41  addition, such drug shall bear a label  containing  the  proprietary  or
   42  brand name of the drug and, if applicable, the strength of the contents,
   43  unless  the  person  issuing the prescription specifically states on the
   44  prescription in his or her own handwriting, that the name  of  the  drug
   45  and  the  strength  thereof  should  not  appear  on the label; provided
   46  further that if such drugs are  controlled  substances,  they  shall  be
   47  dispensed  pursuant  to  the requirements of article thirty-three of the
   48  public health law;
   49    c. Any merchant from selling proprietary medicines, except those which
   50  are poisonous, deleterious or habit forming, or  materials  and  devices
   51  specifically  exempted  by  regulations of the department of state or by
   52  the public health law;
   53    d. Any personnel in an institution of higher learning from using pres-
   54  cription-required drugs on the premises for authorized research,  exper-
   55  iments or instruction, in accordance with the regulations of the depart-
   56  ment  of  state  and,  if  such  drugs  are  controlled  substances,  in
       S. 1407                            209                           A. 2107
 
    1  accordance with title III of article thirty-three of the  public  health
    2  law; or
    3    e.  The  necessary and ordinary activities of manufacturers and whole-
    4  salers, subject to the provisions of article thirty-three of the  public
    5  health law.
    6    2.    a.  Notwithstanding the provisions of paragraph b of subdivision
    7  one of this section, no prescriber who is not the owner of a pharmacy or
    8  who is not in the employ of such owner, may dispense more than a  seven-
    9  ty-two hour supply of drugs, except for:
   10    (1) persons practicing in hospitals as defined in section twenty-eight
   11  hundred one of the public health law;
   12    (2) the dispensing of drugs at no charge to their patients;
   13    (3)  persons  whose  practices  are  situated ten miles or more from a
   14  registered pharmacy;
   15    (4) the dispensing of drugs in a clinic, infirmary or  health  service
   16  that is operated by or affiliated with a post-secondary institution;
   17    (5) persons licensed pursuant to subarticle five of this article;
   18    (6)  the  dispensing  of  drugs  in  a medical emergency as defined in
   19  subdivision six of section thirteen hundred sixty of this subarticle;
   20    (7) the  dispensing  of  drugs  that  are  diluted,  reconstituted  or
   21  compounded by a prescriber;
   22    (8) the dispensing of allergenic extracts; or
   23    (9)  the dispensing of drugs pursuant to an oncological or AIDS proto-
   24  col.
   25    b. The secretary of state, in consultation with  the  commissioner  of
   26  health,  may  promulgate  regulations  to implement this subdivision and
   27  may, by regulation, establish  additional  renewable  exemptions  for  a
   28  period not to exceed one year from the provisions of paragraph a of this
   29  subdivision.
   30    3. A pharmacist may dispense drugs and devices to a registered profes-
   31  sional nurse, and a registered professional nurse may possess and admin-
   32  ister,  drugs  and  devices,  pursuant to a non-patient specific regimen
   33  prescribed or ordered by a licensed physician or certified nurse practi-
   34  tioner, pursuant to regulations promulgated by the  secretary  of  state
   35  and the public health law.
   36    § 1358. Registering  and operating establishments. 1. No person, firm,
   37  corporation or association shall possess drugs, prescriptions or poisons
   38  for the purpose of compounding, dispensing, retailing,  wholesaling,  or
   39  manufacturing,  or  shall offer drugs, prescriptions or poisons for sale
   40  at retail or wholesale unless registered by the department of state as a
   41  pharmacy, store, wholesaler, or manufacturer.
   42    2. Pharmacies.   a. Obtaining a  registration.  A  pharmacy  shall  be
   43  registered as follows:
   44    (1)  The application shall be made on a form prescribed by the depart-
   45  ment of state.
   46    (2) The application shall be accompanied by a  fee  of  three  hundred
   47  forty-five dollars.
   48    (3)  To  secure and retain a registration, a pharmacy must be equipped
   49  with facilities, apparatus, utensils and stocks of drugs  and  medicines
   50  sufficient to permit the prompt and efficient compounding and dispensing
   51  of prescriptions, as prescribed by regulation.
   52    b.  Renewal  of  registration.  All  pharmacy  registrations  shall be
   53  renewed on dates set by the department of state. The triennial registra-
   54  tion fee shall be two hundred sixty dollars or a pro rated portion ther-
   55  eof as determined by the department of state. At the  time  of  renewal,
       S. 1407                            210                           A. 2107
 
    1  the owner of every pharmacy shall report under oath to the department of
    2  state any facts required by the board of pharmacy.
    3    c.  Display  of  registration. The registration shall be conspicuously
    4  displayed at all times in the pharmacy. The names of the owner or owners
    5  of a pharmacy shall be conspicuously displayed upon the exterior of such
    6  establishment. The names so displayed shall be presumptive  evidence  of
    7  ownership  of such pharmacy by such person or persons. In the event that
    8  the owner of a licensed pharmacy is not a licensed pharmacist, the phar-
    9  macy registration issued shall also bear the name of the licensed  phar-
   10  macist  having  personal  supervision of the pharmacy. In the event that
   11  such licensed pharmacist shall no longer have  personal  supervision  of
   12  the  pharmacy,  the  owner  shall notify the department of state of such
   13  fact and of the name of the licensed pharmacist replacing the pharmacist
   14  named on the license and shall apply for an amended registration showing
   15  the change. The amended registration must be attached  to  the  original
   16  registration  and  displayed  in the same manner. Both the owner and the
   17  supervising  pharmacist  shall  be  responsible  for  carrying  out  the
   18  provisions of this subarticle.
   19    d.  Change  of  location. In the event that the location of a pharmacy
   20  shall be changed, the owner shall apply to the department of  state  for
   21  inspection  of  the new location and endorsement of the registration for
   22  the new location. The fee for inspection and endorsement shall be  fifty
   23  dollars,  unless  it  appears  to  the satisfaction of the department of
   24  state that the change in location is of temporary nature  due  to  fire,
   25  flood or other disaster.
   26    e. Conduct of a pharmacy. Every owner of a pharmacy is responsible for
   27  the  strength,  quality,  purity  and the labeling thereof of all drugs,
   28  toxic substances, devices and cosmetics, dispensed or sold,  subject  to
   29  the  guaranty  provisions  of this subarticle and the public health law.
   30  Every owner of a pharmacy or every pharmacist in charge  of  a  pharmacy
   31  shall  be  responsible  for  the  proper conduct of this pharmacy. Every
   32  pharmacy shall be under the immediate supervision and  management  of  a
   33  licensed  pharmacist  at  all  hours when open. No pharmacist shall have
   34  personal supervision of more than one pharmacy at the same time.
   35    f. A pharmacy as a department.  When  a  pharmacy  is  operated  as  a
   36  department of a larger commercial establishment, the area comprising the
   37  pharmacy  shall  be physically separated from the rest of the establish-
   38  ment, so that access to the pharmacy and drugs is not available  when  a
   39  pharmacist is not on duty. Identification of the area within the pharma-
   40  cy by use of the words "drugs", "medicines", "drug store", or "pharmacy"
   41  or similar terms shall be restricted to the area licensed by the depart-
   42  ment of state as a pharmacy.
   43    g.  Limited  pharmacy  registration.   (1) When, in the opinion of the
   44  department of state, a high standard of patient safety, consistent  with
   45  good  patient  care,  can  be  provided by the registering of a pharmacy
   46  within a hospital, nursing home or extended care facility which does not
   47  meet all of the requirements for registration as a pharmacy, the depart-
   48  ment of state may waive any requirements pertaining to full-time  opera-
   49  tion  by  a  licensed  pharmacist,  minimum equipment, minimum space and
   50  waiting area, provided that when the waiver of any of the above require-
   51  ments is granted by the board of pharmacy, the  pharmaceutical  services
   52  to  be  rendered by the pharmacy shall be limited to furnishing drugs to
   53  patients registered for treatment by the hospital,  and  to  in-patients
   54  for treatment by the nursing home or extended care facility.
   55    (2) When in the opinion of the department of state, a high standard of
   56  patient  safety,  consistent  with good patient care, can be provided by
       S. 1407                            211                           A. 2107
 
    1  the registering of a pharmacy within a  facility  distributing  dialysis
    2  solutions  for patients suffering from end stage renal disease and where
    3  the pharmaceutical services to be rendered  by  the  pharmacy  shall  be
    4  limited  to  furnishing dialysis solutions to patients for whom such has
    5  been prescribed by a duly authorized prescriber, the department of state
    6  may waive certain requirements, including, but not limited to, full-time
    7  operation by a licensed pharmacist, minimum equipment, and minimum space
    8  and waiting area. Such solutions shall only be  dispensed  by  employees
    9  who  have  completed  an  approved  training program and who have demon-
   10  strated proficiency to perform the task or tasks of assembling, labeling
   11  or delivering a patient order and who work under the general supervision
   12  of a licensed pharmacist who shall be responsible for the  distribution,
   13  record   keeping,  labeling  and  delivery  of  all  dialysis  solutions
   14  dispensed by the distributor as required by the department of state.
   15    (3) The department of state shall promulgate such rules or regulations
   16  consistent with this paragraph as  are  necessary  to  ensure  the  safe
   17  distribution  of  such dialysis solution, including establishment regis-
   18  tration and proper record keeping, storage, and labeling.
   19    (4) The initial registration fee and renewal fee for a limited pharma-
   20  cy shall be three hundred forty-five dollars for each  triennial  regis-
   21  tration period.
   22    h. Applicant registration. An applicant for registration as a pharmacy
   23  shall  be  of  good  moral character, as determined by the department of
   24  state. In the case of  a  corporate  applicant,  the  requirement  shall
   25  extend  to  all  officers and directors and to stockholders having a ten
   26  percent or greater interest in the corporation.
   27    4. Wholesaler's or manufacturer's registration.  a. Obtaining a regis-
   28  tration. A wholesaler or manufacturer shall be registered as follows:
   29    (1) The application shall be made on a form prescribed by the  depart-
   30  ment of state.
   31    (2)  The  application  shall  be accompanied by a fee of eight hundred
   32  twenty-five dollars.
   33    b. Renewal of registration. All wholesalers' and manufacturers' regis-
   34  trations shall be renewed on dates set by the department of  state.  The
   35  triennial registration fee shall be five hundred twenty dollars or a pro
   36  rated portion thereof as determined by the department of state.
   37    c.  Display  of  registration.  The  registration  shall  be displayed
   38  conspicuously at all times in the place of business.
   39    d. Change of location. In the event that the location of such place of
   40  business shall be changed, the owner shall apply to  the  department  of
   41  state  for  inspection of the new location and endorsement of the regis-
   42  tration for the new location. The fee  for  inspection  and  endorsement
   43  shall be one hundred seventy dollars, unless it appears to the satisfac-
   44  tion  of  the  department  of  state that the change in location is of a
   45  temporary nature due to fire, flood or other disaster.
   46    5. Inspection. The state board  of  pharmacy  and  the  department  of
   47  state,  and  their employees designated by the secretary of state, shall
   48  have the right to  enter  any  pharmacy,  wholesaler,  manufacturer,  or
   49  registered  store,  or vehicle and to inspect, at reasonable times, such
   50  factory, warehouse, establishment or vehicle and all records required by
   51  this subarticle, pertinent equipment, finished and unfinished materials,
   52  containers, and labels.
   53    6. Revocation or suspension. A pharmacy, store, wholesaler or manufac-
   54  turer registration may be revoked  or  suspended  by  the  committee  on
   55  professional  conduct  of the state board of pharmacy in accordance with
   56  the provisions of subarticle one of this article.
       S. 1407                            212                           A. 2107
 
    1    7. Sale of drugs at auction. No controlled substance or substances and
    2  no poisonous or deleterious drugs or drugs in bulk or in opened contain-
    3  ers shall be sold at auction unless the place where such drugs are  sold
    4  at  auction  shall  have  been  registered by the board of pharmacy, and
    5  unless  such  sale shall be under the personal supervision of a licensed
    6  pharmacist. Drugs in open containers shall not be sold at auction unless
    7  the seller shall have in his possession a certificate of  the  board  of
    8  pharmacy  showing  that  such  drugs  have  been  inspected and meet the
    9  requirements of this article. In the event that the drug so sold is  one
   10  as  to  which  this  subarticle or any federal statute or any regulation
   11  adopted pursuant to this subarticle or  an  applicable  federal  statute
   12  require  that  the  expiration date be stated on each package, such drug
   13  may not be sold at auction after such expiration date or when such expi-
   14  ration date will occur within a period of thirty days or less  from  the
   15  date of sale.
   16    § 1359. Identification of pharmacists.  Every pharmacist on duty shall
   17  be  identified by a badge designed by the state board of pharmacy, which
   18  shall contain his or her name and title.
   19    § 1359-a. Registration of nonresident establishments.  1.  Definition.
   20  The  term  "nonresident establishment" shall mean any pharmacy, manufac-
   21  turer or wholesaler located outside of the state that  ships,  mails  or
   22  delivers  prescription drugs or devices to other establishments, author-
   23  ized prescribers and/or patients residing in this state. Such establish-
   24  ments shall include, but not be limited  to,  pharmacies  that  transact
   25  business through the use of the internet.
   26    2.  Registration.  All  nonresident establishments that ship, mail, or
   27  deliver prescription drugs and/or devices to other registered establish-
   28  ments, authorized prescribers, and/or patients into this state shall  be
   29  registered  with  the department of state; except that such registration
   30  shall not apply to intra-company transfers between any division,  affil-
   31  iate,  subsidiaries,  parent  or  other  entities  under complete common
   32  ownership and control. The provisions of this  subdivision  shall  apply
   33  solely  to  nonresident  establishments  and  shall not affect any other
   34  provision of this subarticle.
   35    3. Agent of record. Each nonresident establishment that  ships,  mails
   36  or delivers drugs and/or devices into this state shall designate a resi-
   37  dent  agent  in this state for service of process pursuant to rule three
   38  hundred eighteen of the civil practice law and rules.
   39    4. Conditions of registration.  As  a  condition  of  registration,  a
   40  nonresident establishment shall comply with the following requirements:
   41    a.  Be  licensed and/or registered and in good standing with the state
   42  of residence;
   43    b. Maintain, in readily retrievable  form,  records  of  drugs  and/or
   44  devices shipped into this state;
   45    c.  Supply,  upon request, all information needed by the department of
   46  state to carry out the department's responsibilities under the laws  and
   47  rules and regulations pertaining to nonresident establishments;
   48    d.  Comply with all statutory and regulatory requirements of the state
   49  where the nonresident establishment is located, for  prescription  drugs
   50  or devices shipped, mailed or delivered into this state, except that for
   51  controlled  substances shipped, mailed or delivered into this state, the
   52  nonresident pharmacy shall follow federal law and New York law  relating
   53  to controlled substances;
   54    e.  The application shall be made in the manner and form prescribed by
   55  the department of state;
       S. 1407                            213                           A. 2107
 
    1    f. The application of establishments to be registered as a manufactur-
    2  er or wholesaler of drugs and/or devices shall be accompanied by  a  fee
    3  as  provided in section thirteen hundred fifty-eight of this subarticle;
    4  and
    5    g. The application of establishments to be registered as a nonresident
    6  pharmacy  shall  be  accompanied  by  a  fee of three hundred forty-five
    7  dollars and shall be renewed triennially at a fee of two  hundred  sixty
    8  dollars.
    9    5. Additional requirements. Nonresident pharmacies registered pursuant
   10  to this section shall:
   11    a.  Provide  a  toll-free  telephone  number  that is available during
   12  normal business hours and at least  forty  hours  per  week,  to  enable
   13  communication  between  a  patient in this state and a pharmacist at the
   14  pharmacy who has access to the patient's records; and
   15    b. Place such toll-free telephone number on a label  affixed  to  each
   16  drug or device container.
   17    6. Disciplinary action. Except in emergencies that constitute an imme-
   18  diate  threat to public health, the department of state shall not prose-
   19  cute a complaint or otherwise take formal action against  a  nonresident
   20  establishment  based  upon  delivery  of  a  drug  into  this state or a
   21  violation of law, rule, or regulation of this state if the agency having
   22  jurisdiction in the state where the nonresident establishment  is  based
   23  commences action on the violation complained of within one hundred twen-
   24  ty days from the date that the violation was reported; provided however,
   25  that  the  department  of state may prosecute a complaint or take formal
   26  action against a nonresident establishment if  it  determines  that  the
   27  agency having jurisdiction in the state where the nonresident establish-
   28  ment  is  based  has  unreasonably  delayed  or otherwise failed to take
   29  prompt and appropriate action on a reported violation.
   30    7. Revocation or suspension. A nonresident establishment that fails to
   31  comply with the requirements of this section shall be subject to revoca-
   32  tion or suspension of its registration and other applicable penalties in
   33  accordance with the provisions of subarticle one of this article.
   34    8. Exception. The department of state may grant an exception from  the
   35  registration  requirements  of  this  section  on  the  application of a
   36  nonresident establishment that restricts its sale or dispensing of drugs
   37  and/or devices to residents of this state to isolated transactions.
   38    9. Rules and regulations. The department  of  state  shall  promulgate
   39  rules and regulations to implement the provisions of this section.
   40    § 1360. Prescriptions. 1. No drug for which a prescription is required
   41  by  the  provisions of the Federal Food, Drug and Cosmetic Act or by the
   42  commissioner of health shall be distributed or dispensed to  any  person
   43  except  upon  a  prescription  written by a person legally authorized to
   44  issue such prescription. Such drug shall be compounded or dispensed by a
   45  licensed pharmacist, and no such drug shall be dispensed without  affix-
   46  ing  to the immediate container in which the drug is sold or dispensed a
   47  label bearing the name and address of the owner of the establishment  in
   48  which  it  was  dispensed,  the  date  compounded,  the  number  of  the
   49  prescription under which it is recorded in the pharmacist's prescription
   50  files, the name of the prescriber, the name and address of the  patient,
   51  and  the directions for the use of the drug by the patient as given upon
   52  the prescription. The prescribing and dispensing of a drug  which  is  a
   53  controlled   substance  shall  be  subject  to  additional  requirements
   54  provided in article thirty-three of the public health law.    The  words
   55  "drug" and "prescription required drug" within the meaning of this arti-
   56  cle  shall  not  be  construed  to  include soft or hard contact lenses,
       S. 1407                            214                           A. 2107
 
    1  eyeglasses, or any other device for the aid  or  correction  of  vision.
    2  Nothing  in  this subdivision shall prevent a pharmacy from furnishing a
    3  drug to another pharmacy which does not have such drug in stock for  the
    4  purpose of filling a prescription.
    5    2.  A  prescription  may  not  be  refilled unless it bears a contrary
    6  instruction and indicates on its face the number  of  times  it  may  be
    7  refilled.  A prescription may not be refilled more times than allowed on
    8  the prescription. The date of each refilling must be  indicated  on  the
    9  original  prescription. Prescriptions for controlled substances shall be
   10  refilled only pursuant to article thirty-three of the public health law.
   11    3. A copy of a prescription for a controlled substance  shall  not  be
   12  furnished  to  the  patient but may be furnished to any licensed practi-
   13  tioner  authorized  to  write  such  prescription.   Copies   of   other
   14  prescriptions shall be furnished to the patient at his request, but such
   15  copies  are  issued  for  the  informational purposes of the prescribers
   16  only, and shall be so worded.
   17    4. (a) Oral prescriptions for controlled substances  shall  be  filled
   18  pursuant  to article thirty-three of the public health law. A pharmacist
   19  may fill an oral prescription  for  a  drug,  other  than  a  controlled
   20  substance, made by a practitioner legally authorized to prescribe drugs.
   21  An  oral  authorization  for  the refill of a prescription, other than a
   22  prescription for a controlled substance, may be made by  a  practitioner
   23  legally  authorized  to  prescribe  drugs. The pharmacist receiving such
   24  oral authorization for the refill of a prescription shall write  on  the
   25  reverse  side  of  the original prescription the date, time, and name of
   26  the practitioner authorizing the refill of  the  prescription.  An  oral
   27  prescription  or  an oral authorization for the refill of a prescription
   28  for the drug, other than a controlled substance, may be communicated  by
   29  an  employee  of  the  prescribing  practitioner; provided, however, the
   30  pharmacist shall:
   31    (i) contemporaneously reduce such prescription to writing;
   32    (ii) dispense the substance in conformity with the  labeling  require-
   33  ments applicable to a written prescription; and
   34    (iii)  make  a  good faith effort to verify the employee's identity if
   35  the employee is unknown to the pharmacist.
   36    (b) Oral prescriptions for  patients  in  general  hospitals,  nursing
   37  homes,  residential health care facilities as defined in section twenty-
   38  eight hundred one of the public health  law,  hospitals  as  defined  in
   39  subdivision  ten  of section 1.03 of the mental hygiene law, or develop-
   40  mental centers or developmental disabilities services offices listed  in
   41  subdivision  (b)  of  section  13.17  of  the mental hygiene law, may be
   42  communicated to a pharmacist  serving  as  a  vendor  of  pharmaceutical
   43  services  based upon a contractual arrangement by an agent designated by
   44  and under the direction of the prescriber or the institution. Such agent
   45  shall be a health care practitioner currently  licensed  and  registered
   46  under this article.
   47    5. Records of all prescriptions filled or refilled shall be maintained
   48  for  a period of at least five years and upon request made available for
   49  inspection and copying by a representative of the department  of  state.
   50  Such records shall indicate date of filling or refilling, doctor's name,
   51  patient's  name  and  address and the name or initials of the pharmacist
   52  who prepared, compounded, or  dispensed  the  prescription.  Records  of
   53  prescriptions  for controlled substances shall be maintained pursuant to
   54  requirements of article thirty-three of the public health law.
   55    6. (a) Every prescription written in this state by a person authorized
   56  to issue such prescription shall be on prescription forms containing one
       S. 1407                            215                           A. 2107
 
    1  line for the prescriber's signature. The  prescriber's  signature  shall
    2  validate  the prescription. Imprinted conspicuously in eight point upper
    3  case type immediately below the signature line shall be the words: "THIS
    4  PRESCRIPTION WILL BE FILLED GENERICALLY UNLESS PRESCRIBER WRITES 'd a w'
    5  IN THE BOX BELOW". Unless the prescriber writes d a w in such box in the
    6  prescriber's own handwriting, the prescriber's signature shall designate
    7  approval  of  substitution by a pharmacist of a drug product pursuant to
    8  paragraph (o) of subdivision one of  section  two  hundred  six  of  the
    9  public  health law. No other letters or marks in such box shall prohibit
   10  substitution. No prescription forms used or intended to  be  used  by  a
   11  person  authorized to issue a prescription shall have 'd a w' preprinted
   12  in such box. Such box shall be placed directly under the signature  line
   13  and  shall be three-quarters inch in length and one-half inch in height.
   14  Immediately below such box shall be imprinted  in  six  point  type  the
   15  words "Dispense As Written". Notwithstanding any other provision of law,
   16  no  state  official,  agency, board or other entity shall promulgate any
   17  regulation or guideline modifying those  elements  of  the  prescription
   18  form's  contents  specified in this subdivision. To the extent otherwise
   19  permitted by law, a prescriber may modify only  those  elements  of  the
   20  prescription   form's   contents  not  specified  in  this  subdivision.
   21  Notwithstanding any other provision of this section or  any  other  law,
   22  when  a generic drug is not available and the brand name drug originally
   23  prescribed is available and the pharmacist agrees to dispense the  brand
   24  name  product for a price that will not exceed the price that would have
   25  been charged for the generic substitute had it been  available,  substi-
   26  tution  of  a  generic drug product will not be required. If the generic
   27  drug product is not available and a medical emergency  situation,  which
   28  for purposes of this section is defined as any condition requiring alle-
   29  viation  of  severe  pain or which threatens to cause disability or take
   30  life if not promptly treated, exists, then the pharmacist  may  dispense
   31  the brand name product at his regular price. In such instances the phar-
   32  macist must record the date, hour and nature of the medical emergency on
   33  the back of the prescription and keep a copy of all such prescriptions.
   34    (b)  The  prescriber  shall  inform  the patient whether he or she has
   35  prescribed a brand name or its generic equivalent drug product.
   36    (c) The provisions of this subdivision shall not apply to  a  hospital
   37  as defined in article twenty-eight of the public health law.
   38    (d) No prescriber shall be subjected to civil liability arising solely
   39  from  authorizing, in accordance with this subdivision, the substitution
   40  by a pharmacist of a drug product pursuant to paragraph (o) of  subdivi-
   41  sion one of section two hundred six of the public health law.
   42    7.  (a)  No  prescription for a drug written in this state by a person
   43  authorized to issue such prescription shall be on  a  prescription  form
   44  which  authorizes  the  dispensing  or compounding of any other drug. No
   45  drug shall be dispensed by a  pharmacist  when  such  prescription  form
   46  includes any other drug.
   47    (b)  With  respect  to  drugs  other  than  controlled substances, the
   48  provisions of this subdivision shall not apply to  pharmacists  employed
   49  by  or  providing  services under contract to general hospitals, nursing
   50  homes, residential health care facilities as defined in section  twenty-
   51  eight  hundred  one  of  the  public health law, hospitals as defined in
   52  subdivision ten of section 1.03 of the mental hygiene law,  or  develop-
   53  mental  centers or developmental disabilities services offices listed in
   54  subdivision (b) of section 13.17 of the mental hygiene law, who dispense
   55  drugs in the course of said employment or in  the  course  of  providing
   56  such  services  under  contract.  With respect to such pharmacists, each
       S. 1407                            216                           A. 2107
 
    1  prescription shall be transcribed on  a  patient  specific  prescription
    2  form.
    3    8.  Every  prescription  (whether  or  not for a controlled substance)
    4  written in this state by a person authorized to issue such  prescription
    5  and  containing  the  prescriber's  signature shall, in addition to such
    6  signature, be imprinted or stamped legibly and  conspicuously  with  the
    7  printed  name  of  the  prescriber  who has signed the prescription. The
    8  imprinted or stamped name of the signing prescriber shall appear  in  an
    9  appropriate  location  on the prescription form and shall not be entered
   10  in or upon any space or line reserved for  the  prescriber's  signature.
   11  The imprinted or stamped name shall not be employed as a substitute for,
   12  or   fulfill   any   legal  requirement  otherwise  mandating  that  the
   13  prescription be signed by the prescriber.
   14    9. No person, corporation, association or other entity,  not  licensed
   15  to  issue  a prescription pursuant to this article, shall wilfully cause
   16  prescription forms, blanks or facsimiles thereof to be  disseminated  to
   17  any  person  other than a person who is licensed to issue a prescription
   18  pursuant to this article.  A violation of this subdivision  shall  be  a
   19  class  B misdemeanor punishable in accordance with the provisions of the
   20  penal law.
   21    § 1361. Misdemeanors.  It shall be a class A misdemeanor for:
   22    1. Any person knowingly or  intentionally  to  prevent  or  refuse  to
   23  permit  any  board  of  pharmacy member or department of state represen-
   24  tative to enter a pharmacy or any other establishment for the purpose of
   25  lawful inspection;
   26    2. Any person whose license has been revoked to refuse to deliver  the
   27  license;
   28    3.  Any  pharmacist  to  display his or her license or permit it to be
   29  displayed in a pharmacy of which he or she is not the owner or in  which
   30  he or she is not employed, or any owner to fail to display in his or her
   31  pharmacy the license of the pharmacist employed in said pharmacy;
   32    4. Any holder of a license to fail to display the license;
   33    5. Any owner of a pharmacy to display or permit to be displayed in his
   34  or her pharmacy the license of any pharmacist not employed in said phar-
   35  macy;
   36    6.  Any  person to carry on, conduct or transact business under a name
   37  which contains as a part thereof the words "drugs",  "medicines",  "drug
   38  store",  "apothecary", or "pharmacy", or similar terms or combination of
   39  terms, or in any manner by  advertisement,  circular,  poster,  sign  or
   40  otherwise  describe  or refer to the place of business conducted by such
   41  person, or describe the type of service or class  of  products  sold  by
   42  such  person,  by  the terms "drugs", "medicine", "drug store", "apothe-
   43  cary", or "pharmacy", unless the place of business  so  conducted  is  a
   44  pharmacy licensed by the department of state;
   45    7.  Any  person  to enter into an agreement with a physician, dentist,
   46  podiatrist or veterinarian for the compounding or dispensing  of  secret
   47  formula (coded) prescriptions;
   48    8.  Any person to sell or distribute any instrument or article, or any
   49  recipe, drug or medicine for the prevention of  conception  to  a  minor
   50  under  the  age  of sixteen years; the sale or distribution of such to a
   51  person other than a minor under the age of sixteen years  is  authorized
   52  only  by  a licensed pharmacist but the advertisement or display of said
   53  articles, within or without the premises  of  such  pharmacy  is  hereby
   54  prohibited;
       S. 1407                            217                           A. 2107
 
    1    9. Any person to manufacture, sell, deliver for sale, hold for sale or
    2  offer  for  sale  of any drug, device or cosmetic that is adulterated or
    3  misbranded;
    4    10. Any person to adulterate or misbrand any drug, device or cosmetic;
    5    11.  Any  person  to  receive in commerce any drug, device or cosmetic
    6  that is adulterated or misbranded, and to deliver  or  proffer  delivery
    7  thereof for pay or otherwise;
    8    12.  Any person to sell, deliver for sale, hold for sale, or offer for
    9  sale any drug, device or cosmetic in violation of this subarticle;
   10    13. Any person to disseminate any false advertisement;
   11    14. Any person to refuse to permit entry or inspection  as  authorized
   12  by this subarticle;
   13    15.  Any person to forge, counterfeit, simulate, or falsely represent,
   14  or without proper authority using any mark, stamp, tag, label  or  other
   15  identification  device  authorized  or required by rules and regulations
   16  promulgated under the provisions of this subarticle;
   17    16. Any person to use for his or her own advantage, or  reveal,  other
   18  than  to  the secretary of state or his or her duly authorized represen-
   19  tative, or to the courts when relevant in any judicial proceedings under
   20  this subarticle, any information acquired under authority of this subar-
   21  ticle or concerning any method or process, which is a trade secret;
   22    17. Any person to alter, mutilate, destroy, obliterate or  remove  the
   23  whole or any part of the labeling of, or the doing of any other act with
   24  respect  to  a drug, device, or cosmetic, if such act is done while such
   25  article is held for sale and results in such article being misbranded;
   26    18. Any person to use on the labeling of any drug or in any  advertis-
   27  ing  relating  to  such  drug  any  representation or suggestion that an
   28  application with respect to such drug is effective under  section  thir-
   29  teen  hundred  seventy  of this subarticle or that such is in compliance
   30  with the provisions of such section;
   31    19. Any person to violate any of the provisions  of  section  thirteen
   32  hundred sixty of this subarticle;
   33    20.  Any  person  to violate any of the provisions of section thirteen
   34  hundred sixty-eight of this subarticle;
   35    21. Any person, to sell at retail or give away in tablet form  bichlo-
   36  ride  of  mercury, mercuric chloride or corrosive sublimate, unless such
   37  bichloride of mercury, mercuric chloride or corrosive sublimate, when so
   38  sold, or given away, shall conform to the provisions of national  formu-
   39  lary  XII.  Nothing  contained in this subdivision shall be construed to
   40  prohibit the sale and dispensing of bichloride of mercury in  any  form,
   41  shape,  or  color,  when  combined  or compounded with one or more other
   42  drugs or excipients, for the purposes of internal  medication  only,  or
   43  when  sold in bulk in powder form, or to any preparation containing one-
   44  tenth of a grain or less of bichloride of mercury;
   45    22. Any pharmacy to fail to properly post the list required by section
   46  thirteen hundred eighty of this subarticle;
   47    23. Any pharmacy to change its current selling price without  changing
   48  the  listed price as provided by section thirteen hundred eighty of this
   49  subarticle;
   50    24. Any person to refuse to permit access to or copying of any  record
   51  as required by this subarticle; or
   52    25.  Any  manufacturer to sell or offer for sale any drug not manufac-
   53  tured, prepared or compounded under the personal supervision of a  chem-
   54  ist  or  licensed  pharmacist  or  not labeled with the full name of the
   55  manufacturer or seller.
       S. 1407                            218                           A. 2107
 
    1    § 1362. Certain drugs to be clearly marked or labeled.  1. No drug for
    2  which a prescription is required by the provisions of the Federal  Food,
    3  Drug  and  Cosmetic Act or by the commissioner of health may be manufac-
    4  tured or commercially distributed within this state in tablet or capsule
    5  form  unless  it  has clearly marked or imprinted on each such tablet or
    6  capsule in conformance with the applicable plan required by  subdivision
    7  three of this section:
    8    (a)  an individual symbol, number, company name, words, letters, mark-
    9  ing or National Drug Code (hereinafter referred to as N. D. C.)   number
   10  identifying the manufacturer or distributor of the drug; and
   11    (b)  an  N.  D.  C.  number, symbol, number, letters, words or marking
   12  identifying such drug or combination of drugs.
   13    2. No drug for which any prescription is required by the provisions of
   14  the Federal Food, Drug and Cosmetic Act or by the commissioner of health
   15  contained within a bottle, vial, carton or other container,  or  in  any
   16  way affixed or appended to or enclosed within a package of any kind, and
   17  designed  or  intended  for  delivery in such container or package to an
   18  ultimate consumer, shall be  manufactured  or  distributed  within  this
   19  state  unless  such  container  or  package  has clearly and permanently
   20  marked or imprinted upon it in  conformance  with  the  applicable  plan
   21  required by subdivision three of this section:
   22    (a)  an  individual  symbol,  N.  D.  C. number, company name, number,
   23  letters, words or marking identifying the manufacturer or distributor of
   24  the drug;
   25    (b) an N. D. C. number, symbol,  number,  letters,  words  or  marking
   26  identifying such drug or combination of drugs; and
   27    (c) whenever the distributor of the prescription drug product does not
   28  also  manufacture  the  product the names and places of business of both
   29  shall appear on the label in words clearly distinguishing each.
   30    3. (a) Each manufacturer and distributor shall prepare and  submit  to
   31  the  commissioner  of  health  a  proposed  plan  of the manufacturer or
   32  distributor, as the case may be, to have its products  comply  with  the
   33  marking and labeling requirements of this section.
   34    (b)  Such plan shall be in writing and shall give the respective dates
   35  by which the various products  manufactured  or  distributed  will  each
   36  contain the required mark or label. The plan shall state the reasons why
   37  the projected date of compliance has been proposed and such other infor-
   38  mation deemed relevant or that the commissioner of health shall require.
   39    (c) The commissioner may either approve the plan as proposed or, after
   40  consultation  with the manufacturer or distributor, require an amendment
   41  or the commissioner may  promulgate  a  plan  for  the  manufacturer  or
   42  distributor.   No plan or amendment to the plan shall be effective until
   43  approved or promulgated by the commissioner of health upon a finding  by
   44  him or her that the time limitations provided for therein are reasonable
   45  and will best carry out the intendment of this section.
   46    4.  Each manufacturer and/or distributor shall publish and make avail-
   47  able, upon request, to the  department  of  state,  to  each  physician,
   48  dentist,  pharmacy, hospital or other institution wherein such drugs may
   49  be used, a printed material which will identify each imprint used by the
   50  manufacturer or distributor. Updated  materials  shall  be  provided  as
   51  changes  occur,  upon the filing of an annual request. The provisions of
   52  this subdivision shall be deemed to be complied with when a prescription
   53  drug product is included in the Physician's Desk Reference.
   54    5. Every person, firm or corporation violating the provisions of  this
   55  section  for any prescription drug product shall be guilty of an offense
   56  punishable by a fine of not less than twenty-five  hundred  dollars  nor
       S. 1407                            219                           A. 2107
 
    1  more  than  ten thousand dollars. Any prescription drug product prepared
    2  or manufactured in violation of this section  shall  be  contraband  and
    3  subject  to  seizure either by the state board of pharmacy or by any law
    4  enforcement officer of the state.
    5    6.  The  provisions  of  this section shall not apply to any tablet or
    6  capsule which contains a controlled substance as that term is defined by
    7  article thirty-three of the public health law or which  is  prepared  or
    8  manufactured by a pharmacist duly licensed by the state which is made by
    9  him  or  her  for the purpose of retail sale from his principal place of
   10  business and not intended for resale.
   11    7. The commissioner of  health  may  exempt  a  particular  tablet  or
   12  capsule  from  the  requirements  of this section, upon application by a
   13  manufacturer, on the grounds that labeling such a tablet or  capsule  is
   14  unfeasible because of size or texture or other unique characteristics.
   15    8.  (a)  As  used  in  this  section, the term "distributor" means the
   16  person, firm, corporation or  other  entity  which  is  not  the  actual
   17  manufacturer  of  a prescription drug product but which distributes such
   18  product for resale under the label of such person, firm, corporation  or
   19  entity.
   20    (b)  For  purposes  of subdivision four of this section "drug product"
   21  means the entire supply of the finished dosage form of the drug.
   22    § 1363. Door-to-door distribution of drugs prohibited.  It shall be  a
   23  violation, punishable by a fine not to exceed two hundred fifty dollars,
   24  for  a  manufacturer,  distributor, or seller of drugs or an employee or
   25  agent thereof to distribute a free sample of  any  drug,  other  than  a
   26  cosmetic  not intended for ingestion, to any residential dwelling unless
   27  the sample is given directly to a person who is, or  reasonably  appears
   28  to  be, over the age of eighteen. This section shall not be construed to
   29  permit distribution where otherwise prohibited by this  chapter  or  any
   30  other law.
   31    § 1364. Special  provisions.   1. Where any pharmacy registered by the
   32  department is damaged by fire the board of pharmacy  shall  be  notified
   33  within  a period of forty-eight hours, and the board shall have power to
   34  impound all drugs for analysis and condemnation, if found unfit for use.
   35  Where a pharmacy is discontinued, the owner of its prescription  records
   36  shall  notify  the  department  of  state  as to the disposition of said
   37  prescription records, and in no case shall records be sold or given away
   38  to a person who does not currently possess a registration to  operate  a
   39  pharmacy.
   40    2.  Nothing  in  this  subarticle  shall be construed as requiring the
   41  prosecution or the  institution  of  injunction  proceedings  for  minor
   42  violations  of  this  subarticle  whenever  the  public interest will be
   43  adequately served by a suitable written notice of warning.
   44    3. The executive secretary of the state board of pharmacy  is  author-
   45  ized to conduct examinations and investigations for the purposes of this
   46  subarticle  through  officers  and  employees  of  the United States, or
   47  through any health, food, or drug officer or employee of any city, coun-
   48  ty or other political subdivision of this state.
   49    § 1365. Seizure. 1. Any drug, device or cosmetic that is  adulterated,
   50  misbranded  or may not be sold under the provisions of this article, may
   51  be seized on  petition  or  complaint  of  the  board  of  pharmacy  and
   52  condemned  in  the  supreme  court  of  any county in which it is found.
   53  Seizure shall be made:
   54    a. by process pursuant to the petition or complaint, or
       S. 1407                            220                           A. 2107
 
    1    b. if the executive secretary of the board of pharmacy or other  offi-
    2  cer  designated  by  him  or  her has probable cause to believe that the
    3  article
    4    (1) is one which may not be sold under the provisions of section thir-
    5  teen hundred seventy of this subarticle, or
    6    (2) is adulterated, or
    7    (3) is so misbranded as to be dangerous to health.
    8  The  article  shall  be seized by order of such officer. The order shall
    9  describe the article to be  seized,  the  place  where  the  article  is
   10  located, and the officer or employee making the seizure. The officer, in
   11  lieu  of  taking actual possession, may affix a tag or other appropriate
   12  marking to the article giving notice that the article has  been  quaran-
   13  tined  and warning all persons not to remove or dispose of it by sale or
   14  otherwise until permission for removal or disposal is given by the offi-
   15  cer or the court. In case of seizures or quarantine,  pursuant  to  such
   16  order,  the jurisdiction of such court shall attach upon such seizure or
   17  quarantine, and a petition or complaint for condemnation shall be  filed
   18  promptly.
   19    2. The procedure for cases under this section shall conform as much as
   20  possible  to  the  procedure for attachment. Any issue of fact joined in
   21  any case under this section shall be tried by  jury  on  the  demand  of
   22  either  party. The court at any time after seizure and up to the time of
   23  trial shall allow by order any party or his or her agent or attorney  to
   24  obtain a representative sample of the condemned material, a true copy of
   25  the  analysis  on  which  the  proceeding was based, and the identifying
   26  marks or numbers, if  any,  on  the  packages  from  which  the  samples
   27  analyzed were obtained.
   28    3.  Any drug, device or cosmetic condemned under this section shall be
   29  disposed of by destruction or sale as the court  may  direct  after  the
   30  decree  in  accordance with the provisions of this section. The proceeds
   31  of the sale, if any,  shall  be  paid  into  the  state  treasury  after
   32  deduction  for  legal  costs  and  charges. However, the drug, device or
   33  cosmetic shall not be sold contrary to the provisions of  this  subarti-
   34  cle.   After entry of the decree, if the owner of the condemned articles
   35  pays the costs of the proceeding and posts a sufficient bond as security
   36  that the articles will not be disposed of contrary to the provisions  of
   37  this  subarticle, the court may by order direct that the seized articles
   38  be delivered to the owner to be destroyed or  brought  into  conformance
   39  with this subarticle under supervision of the executive secretary of the
   40  board of pharmacy. The expenses of the supervision shall be borne by the
   41  person obtaining the release under bond. Any drug condemned by reason of
   42  its  being  a new drug which may not be sold under this subarticle shall
   43  be disposed of by destruction.
   44    4. When the decree of condemnation is entered, court costs  and  fees,
   45  storage  and  other expense shall be awarded against the person, if any,
   46  intervening as claimant of the condemned articles.
   47    5. In any proceeding against the board of pharmacy, or  the  executive
   48  secretary  of  the  board of pharmacy, or an agent of either, because of
   49  seizure, or quarantine, under this section, the board, or the secretary,
   50  or such agent shall not be liable if the  court  finds  that  there  was
   51  probable cause for the acts done by them.
   52    § 1366. Records  of shipment.  For the purpose of enforcing provisions
   53  of this subarticle, carriers engaged in commerce, and persons  receiving
   54  drugs,  devices  or  cosmetics  in  commerce or holding such articles so
   55  received, shall, upon the request of an officer  duly  assigned  by  the
   56  executive  secretary  of  the board of pharmacy, permit such officer, at
       S. 1407                            221                           A. 2107
 
    1  reasonable times, to have access to and to copy all records showing  the
    2  movement  in  commerce  of  any drug, device or cosmetic, or the holding
    3  thereof during or after such movement, and the  quantity,  shipper,  and
    4  consignee  thereof;  and  it  shall  be unlawful for any such carrier or
    5  person to fail to permit such access to and copying of any  such  record
    6  so  requested when such request is accompanied by a statement in writing
    7  specifying the nature or kind of drug, device or cosmetic to which  such
    8  request  relates;  provided,  that  evidence obtained under this section
    9  shall not be used in a criminal prosecution  of  the  person  from  whom
   10  obtained;  provided  further,  that carriers shall not be subject to the
   11  other  provisions  of  this  subarticle  by  reason  of  their  receipt,
   12  carriage,  holding  or  delivery  of  drugs, devices or cosmetics in the
   13  usual course of business as carriers.
   14    § 1367. Adulterating, misbranding and substituting.    1.    Adultered
   15  drugs.  A drug or device shall be deemed to be adulterated:
   16    a.  (1)  If  it consists in whole or in part of any filthy, putrid, or
   17  decomposed substance; or (2) if it has been prepared,  packed,  or  held
   18  under  insanitary  conditions whereby it may have been contaminated with
   19  filth, or whereby it may have been rendered injurious to health; or  (3)
   20  if  it  is a drug and its container is composed, in whole or in part, of
   21  any poisonous or deleterious substance which  may  render  the  contents
   22  injurious  to  health;  or (4) if it is a drug and it bears or contains,
   23  for purposes of coloring only, a coal-tar color other than  one  from  a
   24  batch that has been certified in accordance with regulations provided in
   25  this subarticle.
   26    b.  If  it  purports  to  be, or is represented as, a drug the name of
   27  which is recognized in an official compendium, and its strength  differs
   28  from,  or  its  quality or purity falls below, the standard set forth in
   29  such compendium. Such determination as to strength,  quality  or  purity
   30  shall be made in accordance with the tests or methods of assay set forth
   31  in  such  compendium,  or, in the absence or inadequacy of such tests or
   32  methods of assay, then in accordance with  tests  or  methods  of  assay
   33  prescribed  by regulations of the board of pharmacy as promulgated under
   34  this subarticle. Deviations from the official assays may be made in  the
   35  quantities  of  samples  and  reagents  employed,  provided  they are in
   36  proportion to the quantities stated in the official compendium. No  drug
   37  defined  in  an  official  compendium  shall be deemed to be adulterated
   38  under this paragraph because (1) it exceeds  the  standard  of  strength
   39  therefor  set  forth  in  such compendium, if such difference is plainly
   40  stated on its label; or (2) it falls below  the  standard  of  strength,
   41  quality, or purity therefor set forth in such compendium if such differ-
   42  ence is plainly stated on its label, except that this clause shall apply
   43  only  to  such  drugs,  or  classes  of drugs, as are specified in regu-
   44  lations which the board of pharmacy shall promulgate when, as applied to
   45  any drug, or class of drugs, the prohibition of such difference  is  not
   46  necessary  for  the  protection of the public health. Whenever a drug is
   47  recognized in both the United States pharmacopoeia and  the  homeopathic
   48  pharmacopoeia  of the United States, it shall be subject to the require-
   49  ments of the United  States  pharmacopoeia  unless  it  is  labeled  and
   50  offered  for  sale  as  a  homeopathic  drug,  in which case it shall be
   51  subject to the provisions of the homeopathic pharmacopoeia of the United
   52  States and not to those of the United States pharmacopoeia.
   53    c. If it is not subject to the  provisions  of  paragraph  b  of  this
   54  subdivision  and  its  strength  differs  from, or its purity or quality
   55  falls below, that which it purports or is represented to possess.
       S. 1407                            222                           A. 2107
 
    1    d. If it is a drug and any substance has  been  (1)  mixed  or  packed
    2  therewith  so  as  to  reduce its quality or strength or (2) substituted
    3  wholly or in part therefor.
    4    e.  If it is sold under or by a name not recognized in or according to
    5  a formula not given in the United States pharmacopoeia or  the  national
    6  formulary  but that is found in some other standard work on pharmacology
    7  recognized by the board of pharmacy, and it differs in strength, quality
    8  or purity from the strength, quality or purity required, or the  formula
    9  prescribed in, the standard work.
   10    2.  Misbranded  and  substituted  drugs  and devices. A drug or device
   11  shall be deemed to be misbranded:
   12    a. If its labeling is false or misleading in any particular.
   13    b. If in package form, unless it bears a label containing (1) the name
   14  and place of business of the manufacturer, packer, or  distributor;  and
   15  (2)  an  accurate  statement of the quantity of the contents in terms of
   16  weight, measure, or numerical count.  Provided, that under clause two of
   17  this paragraph the board of pharmacy may establish reasonable variations
   18  as to quantity and exemptions as to small packages.
   19    c. If any word, statement, or other information required by  or  under
   20  authority  of  this subarticle to appear on the label or labeling is not
   21  prominently placed thereon with such conspicuousness (as  compared  with
   22  other  words,  statements,  designs, or devices, in the labeling) and in
   23  such terms as to render it likely to be read and understood by the ordi-
   24  nary individual under customary conditions of purchase and use.
   25    d. If it is for use by man and contains any quantity of  the  narcotic
   26  or  hypnotic  substance  alpha  eucaine,  barbituric acid, beta eucaine,
   27  bromal, cannabis, carbromal, chloral, coca,  cocaine,  codeine,  heroin,
   28  marihuana,  morphine,  opium, paraldehyde, peyote, or sulphonmethane; or
   29  any chemical derivative of such substance, which derivative has been  by
   30  the  secretary,  after  investigation,  found  to be, and by regulations
   31  under this subarticle, or by regulations promulgated  by  the  board  of
   32  pharmacy,  designated as, habit forming; unless its label bears the name
   33  and quantity, or proportion, of such  substance  or  derivative  and  in
   34  juxtaposition therewith the statement "Warning--May be habit forming."
   35    e.  If  it is a drug and is not designated solely by a name recognized
   36  in an official compendium unless its label bears (1) the common or usual
   37  name of the drug, if such there be; and (2) in  case  it  is  fabricated
   38  from  two  or  more ingredients, the common or usual name of each active
   39  ingredient, including the kind and quantity by percentage or  amount  of
   40  any  alcohol,  and  also  including, whether active or not, the name and
   41  quantity or proportion of any bromides, ether,  chloroform,  acetanilid,
   42  acetphenetidin,  amidopyrine,  antipyrine,  atropine, hyoscine, hyoscya-
   43  mine, arsenic, digitalis, digitalis glucosides, mercury, ouabain,  stro-
   44  phanthin,  strychnine,  thyroid, or any derivative or preparation of any
   45  such substances, contained therein; provided, that, to the  extent  that
   46  compliance  with  the  requirements  of  clause two of this paragraph is
   47  impracticable, exemptions shall be established by regulations promulgat-
   48  ed by the board of pharmacy.
   49    f. Unless its labeling bears (1) adequate directions for use; and  (2)
   50  such  adequate  warnings against use in those pathological conditions or
   51  by children where its use may be dangerous to health, or against  unsafe
   52  dosage  or methods or duration of administration or application, in such
   53  manner and form, as are necessary for the protection of users; provided,
   54  that, where any requirement of clause one of this paragraph, as  applied
   55  to any drug or device, is not necessary for the protection of the public
       S. 1407                            223                           A. 2107
 
    1  health,  the  board  of  pharmacy shall promulgate regulations exempting
    2  such drug or device from such requirement.
    3    g.  If  it purports to be a drug the name of which is recognized in an
    4  official compendium, unless it is packaged  and  labeled  as  prescribed
    5  therein;  provided, that, the method of packing may be modified with the
    6  consent of the secretary of state in accordance with regulations promul-
    7  gated by the board of pharmacy.  Whenever a drug is recognized  in  both
    8  the United States pharmacopoeia and the homeopathic pharmacopoeia of the
    9  United  States,  it  shall  be subject to the requirements of the United
   10  States pharmacopoeia with respect to packaging and labeling unless it is
   11  labeled and offered for sale as a homeopathic drug,  in  which  case  it
   12  shall  be  subject to the provisions of the homeopathic pharmacopoeia of
   13  the United States, and not to those of the United States pharmacopoeia.
   14    h. (1) If it is a drug and its container is so made, formed or  filled
   15  as  to  be misleading; (2) if it is an imitation of another drug; (3) if
   16  it is offered for sale under the name of another  drug;  or  (4)  if  it
   17  bears  a  copy,  counterfeit,  or  colorable imitation of the trademark,
   18  label, container or identifying name or design of another drug.
   19    i. If it is dangerous to health when used in the dosage, or  with  the
   20  frequency or duration prescribed, recommended or suggested in the label-
   21  ing thereof.
   22    j.  Except  as  required  by article thirty-three of the public health
   23  law, the labeling provisions of this subarticle shall not apply  to  the
   24  compounding  and  dispensing  of  drugs on the written prescription of a
   25  physician, a dentist, a podiatrist or a veterinarian, which prescription
   26  when filled shall be kept on file for at least five years by the pharma-
   27  cist or druggist. Such drug shall bear a label containing the  name  and
   28  place  of  business  of the dispenser, the serial number and date of the
   29  prescription, directions for use as may be stated in  the  prescription,
   30  name  and  address of the patient and the name of the physician or other
   31  practitioner authorized by law to issue the prescription.  In  addition,
   32  such  label shall contain the proprietary or brand name of the drug and,
   33  if applicable, the strength of the contents, unless the  person  issuing
   34  the  prescription  explicitly  states on the prescription, in his or her
   35  own handwriting, that the name of the  drug  and  the  strength  thereof
   36  should not appear on the label.
   37    § 1368. Omitting  to label drugs, or labeling them wrongly.  1. a. Any
   38  person, who, in putting up any drug, medicine, or  food  or  preparation
   39  used  in medical practice, or making up any prescription, or filling any
   40  order for drugs, medicines, food or preparation puts any  untrue  label,
   41  stamp  or  other  designation  of contents upon any box, bottle or other
   42  package containing a drug, medicine, food or preparation used in medical
   43  practice, or substitutes or dispenses a different article for or in lieu
   44  of any article prescribed, ordered, or demanded, except  where  required
   45  pursuant  to  section thirteen hundred sixty-nine of this subarticle, or
   46  puts up a greater or lesser quantity of any ingredient specified in  any
   47  such  prescription,  order  or  demand  than that prescribed, ordered or
   48  demanded, except where required pursuant to paragraph (g) of subdivision
   49  two of section three hundred sixty-five-a of the social services law, or
   50  otherwise deviates from the terms of the prescription, order  or  demand
   51  by  substituting one drug for another, except where required pursuant to
   52  section thirteen hundred sixty-nine of this subarticle, is guilty  of  a
   53  misdemeanor;  provided,  however, that except in the case of physicians'
   54  prescriptions, nothing herein contained shall be deemed or construed  to
   55  prevent  or  impair  or in any manner affect the right of an apothecary,
   56  druggist, pharmacist or other person to recommend  the  purchase  of  an
       S. 1407                            224                           A. 2107
 
    1  article  other than that ordered, required or demanded, but of a similar
    2  nature, or to sell such other article in place or in lieu of an  article
    3  ordered,  required  or  demanded,  with the knowledge and consent of the
    4  purchaser.  Upon a second conviction for a violation of this section the
    5  offender must be sentenced to the payment of a fine not  to  exceed  one
    6  thousand  dollars and may be sentenced to imprisonment for a term not to
    7  exceed one year. The third conviction of  a  violation  of  any  of  the
    8  provisions of this section, in addition to rendering the offender liable
    9  to  the penalty prescribed by law for a second conviction, shall forfeit
   10  any right which he may possess under the law of this state at  the  time
   11  of  such  conviction, to engage as proprietor, agent, employee or other-
   12  wise, in the business of an apothecary, pharmacist, or druggist,  or  to
   13  compound,  prepare  or dispense prescriptions or orders for drugs, medi-
   14  cines or foods or preparations used in medical practice; and the  offen-
   15  der  shall be by reason of such conviction disqualified from engaging in
   16  any such  business  as  proprietor,  agent,  employee  or  otherwise  or
   17  compounding, preparing or dispensing medical prescriptions or orders for
   18  drugs, medicines, or foods or preparations used in medical practice.
   19    b. The provisions of this section shall not apply to the practice of a
   20  practitioner  who is not the proprietor of a store for the dispensing or
   21  retailing of drugs, medicines and poisons, or who is not in  the  employ
   22  of such a proprietor, and shall not prevent practitioners from supplying
   23  their patients with such articles as they may deem proper, and except as
   24  to  the  labeling of poisons shall not apply to the sale of medicines or
   25  poisons at wholesale when not for the use or consumption by the purchas-
   26  er; provided, however, that the sale of medicines or poisons  at  whole-
   27  sale  shall  continue  to be subject to such regulations as from time to
   28  time may be lawfully made by the board of pharmacy or by  any  competent
   29  board of health.
   30    c. The provisions of this section shall not apply to a limited pharma-
   31  cy which prepares a formulary containing the brand names and the generic
   32  names  of  drugs  and of manufacturers which it stocks, provided that it
   33  furnishes a copy of such formulary to each physician on  its  staff  and
   34  the  physician  signs a statement authorizing the hospital to supply the
   35  drug under any generic or non-proprietary name  listed  therein  and  in
   36  conformity with the regulations of the secretary of state.
   37    2. For the purposes set forth in this section, the terms prescription,
   38  order or demand shall apply only to those items subject to provisions of
   39  subdivision  one  of  section thirteen hundred sixty of this subarticle.
   40  The written order of a physician for items not subject to provisions  of
   41  subdivision  one  of  section  thirteen hundred sixty of this subarticle
   42  shall be construed to be a direction, a fiscal order or a voucher.
   43    § 1369. When substitution is required.  1. A pharmacist shall  substi-
   44  tute  a  less expensive drug product containing the same active ingredi-
   45  ents, dosage form and strength as the drug product  prescribed,  ordered
   46  or demanded, provided that the following conditions are met:
   47    (a) The prescription is written on a form which meets the requirements
   48  of  subdivision six of section thirteen hundred sixty of this subarticle
   49  and the prescriber does not prohibit substitution, or  in  the  case  of
   50  oral  prescriptions, the prescriber must expressly state whether substi-
   51  tution is to be permitted or prohibited. Any oral prescription that does
   52  not include such an express statement shall not be filled; and
   53    (b) The substituted drug product is contained  in  the  list  of  drug
   54  products  established  pursuant  to  paragraph (o) of subdivision one of
   55  section two hundred six of the public health law; and
       S. 1407                            225                           A. 2107
 
    1    (c) The pharmacist shall indicate on the label affixed to the  immedi-
    2  ate  container  in  which  the  drug  is  sold or dispensed the name and
    3  strength of the drug product and its manufacturer unless the  prescriber
    4  specifically  states  otherwise.  The  pharmacist  shall  record  on the
    5  prescription  form the brand name or the name of the manufacturer of the
    6  drug product dispensed.
    7    2. In the event a patient chooses to have a prescription filled by  an
    8  out of state dispenser, the laws of that state shall prevail.
    9    § 1370. New  drugs.  1. No person shall sell, deliver, offer for sale,
   10  hold for sale, or give away any new drug, unless
   11    a. an application with respect thereto has become effective, or in the
   12  case of an investigational drug the sponsor has complied with the appli-
   13  cable requirements, under the federal food, drug, and cosmetic act, or
   14    b. when not subject to such act, such drug has been tested and has not
   15  been found to be unsafe or ineffective  for  use  under  the  conditions
   16  prescribed, recommended or suggested in the labeling thereof, and, prior
   17  to selling or offering for sale such drug, there has been filed with the
   18  department of state an application setting forth
   19    (1) full reports of investigations which have been made to show wheth-
   20  er or not such drug is safe and effective for use;
   21    (2) a full list of the ingredients used as components of such drug;
   22    (3) a full statement of the composition of such drug;
   23    (4)  a full description of the methods used in, and the facilities and
   24  controls used for, the  manufacture,  processing  and  packing  of  such
   25  drugs;
   26    (5)  such  samples  of such drug and of the ingredients used as compo-
   27  nents thereof as the board of pharmacy may require; and
   28    (6) specimens of the labeling proposed to be used for such drug.
   29    2. An application provided for in paragraph b of subdivision one shall
   30  become effective on the one hundred eightieth day after the filing ther-
   31  eof, except that if the board of pharmacy finds,  after  due  notice  to
   32  applicant  and giving him an opportunity for a hearing, that the drug is
   33  not safe and effective for use under the conditions  prescribed,  recom-
   34  mended,  or  suggested in the proposed labeling thereof, he shall, prior
   35  to the effective date of the application, issue  an  order  refusing  to
   36  permit the application to become effective.
   37    3.  A drug dispensed on a written or oral prescription of a physician,
   38  dentist, podiatrist or veterinarian  (except  a  controlled  substance),
   39  shall be exempt from the requirements of this section if such drug bears
   40  a  label containing the name and place of business of the dispenser, the
   41  serial number and date of the prescription, directions for use as may be
   42  stated in the prescription and  the  name  of  the  physician,  dentist,
   43  podiatrist  or veterinarian issuing the prescription and the name of the
   44  patient. In addition, such  drug  shall  bear  a  label  containing  the
   45  proprietary  or  brand name of the drug and, if applicable, the strength
   46  of the contents, unless the person issuing the  prescription  explicitly
   47  states on the prescription, in his or her own handwriting, that the name
   48  of the drug and the strength thereof should not appear on the label.
   49    4.  The  board  of pharmacy shall promulgate regulations for exempting
   50  from the operation of this section drugs (and with  the  concurrence  of
   51  the  commissioner  of  health,  pursuant  to article thirty-three of the
   52  public health law, controlled substances) intended solely for investiga-
   53  tional use by experts qualified by scientific training and experience to
   54  investigate the safety and efficacy of drugs and labeled "For Investiga-
   55  tional Use Only". Such regulations may, within  the  discretion  of  the
       S. 1407                            226                           A. 2107
 
    1  board  of pharmacy, among other conditions relating to the protection of
    2  the public health, provide for conditioning such exemptions upon:
    3    a.  The submission to the secretary of state before any clinical test-
    4  ing of a new drug is undertaken of reports by the manufacturer or  spon-
    5  sor  of  the investigation of such drug, of preclinical tests, including
    6  tests on animals of such drug adequate to justify the proposed  clinical
    7  testing.
    8    b.  The manufacturer or the sponsor of the investigation of a new drug
    9  proposed to be distributed to investigators for clinical testing obtain-
   10  ing a signed agreement from each of such investigators that patients  to
   11  whom  the  drug is administered will be under his or her personal super-
   12  vision, or under the supervision of investigators responsible to him  or
   13  her,  and that he or she will not supply such drug to any other investi-
   14  gator or to clinics for administration to human beings; and
   15    c. The establishment and maintenance of such records and the making of
   16  such reports to the board of pharmacy by the manufacturer or the sponsor
   17  of the investigation of such drugs of data including,  but  not  limited
   18  to,  analytical  reports by investigators obtained as the result of such
   19  investigational use of such drug as the board  of  pharmacy  finds  will
   20  enable  it  to evaluate the safety and effectiveness of such drug in the
   21  event of the filing of an application pursuant  to  subdivision  one  of
   22  this section.
   23    5.  This  section shall not apply to any drug which was licensed under
   24  the federal virus, serum, and toxin act of July first, nineteen  hundred
   25  two (32 Stat. 728) or is licensed under section two hundred sixty-two of
   26  the public health service act of July first, nineteen hundred forty-four
   27  (58  Stat.  682), or under the federal virus, serums, toxins, antitoxins
   28  and analogous products act of March fourth,  nineteen  hundred  thirteen
   29  (37 Stat.  832).
   30    § 1371. Adulterated  and  misbranded cosmetics. 1. A cosmetic shall be
   31  deemed to be adulterated:
   32    a. If it bears or contains  any  poisonous  or  deleterious  substance
   33  which  may  render  it  injurious  to  users under the conditions of use
   34  prescribed in the labeling thereof, or under such conditions of  use  as
   35  are customary or usual; provided, that this provision shall not apply to
   36  coal-tar  hair  dye,  the  label  of  which  bears  the following legend
   37  conspicuously displayed thereon "Caution--this product contains ingredi-
   38  ents which may cause  skin  irritation  on  certain  individuals  and  a
   39  preliminary  test  according  to accompanying directions should first be
   40  made. This product must not be used for dying the eyelashes or eyebrows;
   41  to do so may cause blindness", and the labeling of which bears  adequate
   42  directions  for such preliminary testing. For the purposes of this para-
   43  graph and paragraph e the term "hair dye" shall not include eyelash dyes
   44  or eyebrow dyes.
   45    b. If it consists in whole or in part of any filthy, putrid, or decom-
   46  posed substance.
   47    c. If it has been prepared, packaged, packed, shipped or held  in  any
   48  insanitary  condition or in any other condition whereby it may have been
   49  rendered injurious to health.
   50    d. If its container is composed, in whole or in part, of any poisonous
   51  or deleterious substance which may  render  the  contents  injurious  to
   52  health.
   53    e.  If  it is not a hair dye and it bears or contains a coal-tar color
   54  other than one from a batch that has been certified in  accordance  with
   55  regulations as provided by this subarticle.
   56    2. A cosmetic shall be deemed to be misbranded:
       S. 1407                            227                           A. 2107
 
    1    a. If its labeling is false or misleading in any particular.
    2    b. If in package form, unless it bears a label containing (1) the name
    3  and  place  of business of the manufacturer, packer, or distributor; and
    4  (2) an accurate statement of the quantity of the contents  in  terms  of
    5  weight,  measure, or numerical count; provided, that under clause two of
    6  this paragraph reasonable variations shall be permitted, and  exemptions
    7  as to small packages shall be established by regulations.
    8    c.  If  any word, statement, or other information required by or under
    9  authority of this subarticle to appear on the label or labeling  is  not
   10  prominently  placed  thereon with such conspicuousness (as compared with
   11  other words, statements, designs, or devices in  the  labeling)  and  in
   12  such terms as to render it likely to be read and understood by the ordi-
   13  nary individual under customary conditions of purchase and use.
   14    d.  (1)  If  its  container  is  so  made,  formed, or filled as to be
   15  misleading; or (2)  if  it  bears  a  copy,  counterfeit,  or  colorable
   16  imitation of a trademark, label, or identifying name or design of anoth-
   17  er cosmetic.
   18    § 1372. Cosmetic  samples.    1.  No person engaged in the business of
   19  selling cosmetics shall provide for the use by or application to custom-
   20  ers of any cosmetics, except for use or application to the hand  or  arm
   21  as a sample if such immediate container of cosmetics is to be used by or
   22  applied to more than one customer. For the purposes of this section, the
   23  term "cosmetic" shall not include perfume or cologne; or samples removed
   24  from  the  immediate  container  with a single use disposable applicator
   25  furnished to each customer; or samples  dispensed  from  a  tube,  pump,
   26  spray  or  shaker  container;  or  samples or applicators that have been
   27  cleansed before each use or application. The provisions of this  section
   28  shall  be  deemed  to have been satisfied if written instructions on the
   29  use or application of cosmetic samples  pursuant  to  this  section  are
   30  clearly  and  visibly posted at or near the place of display of cosmetic
   31  samples. Nothing contained in this section shall  prohibit  the  use  or
   32  application of cosmetic samples by persons trained to apply cosmetics to
   33  customers in accordance with the provisions of this section.
   34    2. Notwithstanding any other provision of this subarticle, a violation
   35  of  this  section shall result in a civil penalty of one hundred dollars
   36  for the first offense and a civil penalty of two hundred  fifty  dollars
   37  for a second or subsequent offense.
   38    § 1373. Regulations  making  exceptions.   The board of pharmacy shall
   39  promulgate regulations exempting from any labeling requirement  of  this
   40  subarticle  drugs,  devices  and cosmetics which are, in accordance with
   41  the practice of the trade, to be  processed,  labeled,  or  repacked  in
   42  substantial   quantities   at  establishments  other  than  those  where
   43  originally processed or packed, on condition that  such  drugs,  devices
   44  and  cosmetics are not adulterated or misbranded under the provisions of
   45  this subarticle upon removal from such processing, labeling, or  repack-
   46  ing establishment.
   47    § 1374. Certification  of coal-tar colors for drugs and cosmetics. The
   48  board of pharmacy shall promulgate regulations providing for the listing
   49  of coal-tar colors which are harmless and suitable for use in drugs  for
   50  purposes  of  coloring only and for use in cosmetics and for the certif-
   51  ication of batches of such colors, with or without harmless diluents.
   52    § 1375. Poison schedules; register.  1. The following schedules  shall
   53  remain  in  force until revised by the board of pharmacy and approved by
   54  the department of state.
   55    Schedule A. Arsenic, atropine, corrosive sublimate, potassium cyanide,
   56  chloral hydrate, hydrocyanic acid, strychnine and  all  other  poisonous
       S. 1407                            228                           A. 2107
 
    1  vegetable  alkaloids and their salts and oil of bitter almond containing
    2  hydrocyanic acid.
    3    Schedule B. Aconite, belladonna, cantharides, colchicum, conium cotton
    4  root,  digitalis,  ergot,  hellebore, henbane, phytolacca, strophanthus,
    5  oil of savin, oil of tansy, veratrum  viride  and  their  pharmaceutical
    6  preparations,  arsenical solutions, carbolic acid, chloroform, creosote,
    7  croton oil, white precipitate, methyl or wood  alcohol,  mineral  acids,
    8  oxalic  acid,  paris  green,  salts of lead, salts of zinc, or any drug,
    9  chemical or preparation which is liable to be destructive to adult human
   10  life in quantities of sixty grains or less.
   11    2. It shall be unlawful for any person to sell at retail or to furnish
   12  any of the poisons of schedules A and B without affixing or  causing  to
   13  be  affixed to the bottle, box, vessel or package, a label with the name
   14  of the article and the word "poison" distinctly shown and with the  name
   15  and place of business of the seller all printed in red ink together with
   16  the  name of such poisons printed or written thereupon in plain, legible
   17  characters.
   18    3. Manufacturers and wholesale dealers in drugs, medicines, pharmaceu-
   19  tical preparations, chemicals or poisons shall  affix  or  cause  to  be
   20  affixed  to every bottle, box, parcel or outer inclosure of any original
   21  package containing any of the articles of schedule A a suitable label or
   22  brand in red ink with the word "poison" upon it.
   23    4. Every person who disposes of or sells at retail  or  furnishes  any
   24  poisons included in schedule A shall before delivering the same enter in
   25  a  book  kept for that purpose the date of sale, the name and address of
   26  the purchaser, the name and the quantity of the poison, the purpose  for
   27  which it is purchased and the name of the dispenser. The poison register
   28  must be always open for inspection by the proper authorities and must be
   29  preserved  for  at  least  five years after the last entry.  Such person
   30  shall not deliver any of the poisons of schedule A or schedule  B  until
   31  he  or  she has satisfied himself or herself that the purchaser is aware
   32  of its poisonous character and that the poison  is  to  be  used  for  a
   33  legitimate  purpose.  The provisions of this subdivision do not apply to
   34  the dispensing of drugs or poisons on a doctor's prescription.
   35    5. The board of pharmacy may add to or may  delete  from  any  of  the
   36  schedules  from  time  to  time as such action becomes necessary for the
   37  protection of the public.
   38    § 1376. Examinations and investigations.   The secretary of  state  is
   39  authorized  to  conduct examinations and investigations for the purposes
   40  of this subarticle through officers and employees of the United  States,
   41  or  through  any  health, food, or drug officer or employee of any city,
   42  county or other political subdivision of this state,  duly  commissioned
   43  by the secretary of state as an officer of the board pf pharmacy.
   44    § 1377. Factory  inspection.    For  purposes  of  enforcement of this
   45  subarticle, officers duly designated  by  the  secretary  of  state  are
   46  authorized:
   47    (1)  to  enter,  at reasonable times, any factory, warehouse or estab-
   48  lishment in which drugs, devices or cosmetics  are  manufactured,  proc-
   49  essed, packed, or held, for introduction into commerce or are held after
   50  such  introduction,  or  to enter any vehicle being used to transport or
   51  hold such drugs, devices or cosmetics in commerce; and
   52    (2) to inspect, at reasonable times, such factory,  warehouse,  estab-
   53  lishment or vehicle and all pertinent equipment, finished and unfinished
   54  materials, containers, and labeling therein.
   55    § 1378. Injunction  proceedings.   In addition to the remedies herein-
   56  after provided, the secretary of state is hereby authorized to apply  to
       S. 1407                            229                           A. 2107
 
    1  the court of the proper venue for an injunction to restrain  any  person
    2  from (a) introducing or causing to be introduced into commerce any adul-
    3  terated  or misbranded drug, device or cosmetic; or (b) from introducing
    4  or  causing  to  be  introduced  in commerce any new drug which does not
    5  comply with the provisions of this subarticle; or (c) from disseminating
    6  or causing to  be  disseminated  a  false  advertisment,  without  being
    7  compelled  to  allege  or  prove that an adequate remedy at law does not
    8  exist.
    9    § 1379. Proof required in prosecution for certain violations.   1.  In
   10  an action or proceeding, civil or criminal, against a person for violat-
   11  ing  such  provisions  of this subarticle which relate to the possession
   12  of, compounding, retailing or dispensing of misbranded,  substituted  or
   13  imitated drugs, poisons or cosmetics, when it shall be necessary that an
   14  analysis  be  made  for  the purpose of establishing the quality of such
   15  drug, poison or cosmetic so as to determine  the  fact  of  misbranding,
   16  substituting  or  imitating,  then  it shall be required to prove at the
   17  trial or hearing of such action or proceeding, that the  person,  taking
   18  the  same  for  analysis  separated  it  into  two representative parts,
   19  hermetically or otherwise effectively and completely  sealed,  delivered
   20  one  such  sealed  part to the seller, manufacturer, wholesaler, pharma-
   21  cist, or druggist from whose premises such sample was taken  and  deliv-
   22  ered  the  other  part  so sealed to the chemist designated by the state
   23  board of pharmacy; and the facts herein required to be proven  shall  be
   24  alleged in the complaint or information by which such action or proceed-
   25  ing was begun. The rules of the board shall be proven prima facie by the
   26  certificate of the secretary of state.
   27    2.  Any  person  accused of violation of any of the provisions of this
   28  subarticle  relating  to  adulterating,  misbranding,  substitution   or
   29  imitation  shall  not  be  prosecuted  or convicted or suffer any of the
   30  penalties, fines or forfeitures for such violation, if he or she  estab-
   31  lishes  upon  the  hearing  or  trial  that the drug, device or cosmetic
   32  alleged to be  adulterated,  misbranded,  substituted  or  imitated  was
   33  purchased  by him or her under a written guaranty of the manufacturer or
   34  seller to the effect that said drug, device or cosmetic was not adulter-
   35  ated or misbranded, within the meaning of  this  subarticle  and  proves
   36  that  he or she has not adulterated, misbranded, substituted or imitated
   37  the same, provided the seller has taken due precaution to  maintain  the
   38  standard  set  for the drug, device or cosmetic. A guaranty, in order to
   39  be a defense to a prosecution or to  prevent  conviction  or  to  afford
   40  protection,  must  state  that  the drug, device or cosmetic to which it
   41  refers is not adulterated, misbranded, substituted  or  imitated  within
   42  the meaning of the provisions of this subarticle and must state also the
   43  full  name and place of business of the manufacturer, wholesaler, jobber
   44  or other person from whom the drug, device or  cosmetic  was  purchased,
   45  and  the  date of purchase. The act, omission or failure of any officer,
   46  agent or other employee acting for or employed by any person within  the
   47  scope  of  his or her authority or employment shall in every case be the
   48  act, omission or failure of such person as well as that of the  officer,
   49  agent  or  other  employee,  and such person shall be equally liable for
   50  violations of this subarticle by a partnership,  association  or  corpo-
   51  ration,  and  every  member  of  the  partnership or association and the
   52  directors and general officers of the corporation and the general manag-
   53  er of the partnership, association or corporation shall be  individually
   54  liable  and  any  action,  prosecution  or proceeding authorized by this
   55  subarticle may be brought against any or all of such persons.  When  any
   56  prosecution  under this subarticle is made on the complaint of the board
       S. 1407                            230                           A. 2107
 
    1  of pharmacy, any fines collected shall be paid into the  state  treasury
    2  as provided by this subarticle.
    3    3.  No  publisher,  radio-broadcast  licensee,  advertising agency, or
    4  agency or medium  for  the  dissemination  of  advertising,  except  the
    5  manufacturer,  packer,  distributor, or seller of the commodity to which
    6  the false advertisement relates,  shall  be  subject  to  the  penalties
    7  provided by this subarticle by reason of the dissemination by him or her
    8  of any false advertisement, unless he or she has refused, on the request
    9  of  the  secretary of state, to furnish the secretary the name and post-
   10  office address of  the  manufacturer,  packer,  distributor,  seller  or
   11  advertising agency, who caused him to disseminate such advertisement.
   12    § 1380.   Drug  retail  price lists. 1. Every pharmacy shall compile a
   13  drug retail price list, which shall contain the names of  the  drugs  on
   14  the  list  provided  by  the board of pharmacy and the pharmacy's corre-
   15  sponding retail prices for each drug. Every pharmacy  shall  update  its
   16  drug  retail list at least weekly. Every pharmacy shall provide the drug
   17  retail price list to any person upon request.
   18    2. a. The list provided by the board shall be prepared at least  annu-
   19  ally  by  the  board of pharmacy and distributed to each pharmacy in the
   20  state. The list shall be a compendium of  the  one  hundred  fifty  most
   21  frequently  prescribed drugs together with their usual dosages for which
   22  a prescription is required by the provisions of the "Federal Food, Drug,
   23  and Cosmetic Act" (21 U.S.C. 301, et seq.; 52 Stat. 1040, et  seq.),  as
   24  amended,  or  by the commissioner of health. The board of pharmacy shall
   25  make the compendium list available to each pharmacy free of charge, both
   26  in printed form and in an electronic form that can be  used  to  produce
   27  the pharmacy's drug retail list.
   28    b. The drug retail price list shall contain a notice which shall read:
   29  "Consult  your  pharmacist for the selection of the most economical drug
   30  product available to fill your prescription"
   31    3. The pharmacy's corresponding retail price means the actual price to
   32  be paid by a retail purchaser to the pharmacy for any listed drug at the
   33  listed dosage.
   34    4. Pharmacies shall have a sign notifying people of  the  availability
   35  of  the  drug  retail price list, conspicuously posted at or adjacent to
   36  the  place  in  the  pharmacy  where  prescriptions  are  presented  for
   37  compounding and dispensing, in the waiting area for customers, or in the
   38  area where prescribed drugs are delivered.
   39    5. Nothing contained herein shall prevent a pharmacy from changing and
   40  charging  the current retail price at any time, provided that the listed
   41  price is updated at least weekly to reflect the new retail price.
   42    6. The secretary of state shall make regulations necessary  to  imple-
   43  ment  this  section, including how this section is applied to mail-order
   44  and internet pharmacies.
   45    § 1381. Mandatory continuing education. 1. (a) Each  licensed  pharma-
   46  cist  required under subarticle one of this article to register trienni-
   47  ally with the department of state to practice in the state shall  comply
   48  with  provisions  of  the  mandatory  continuing  education requirements
   49  prescribed in subdivision two of this section except  as  set  forth  in
   50  paragraphs  (b)  and  (c)  of  this  subdivision. Pharmacists who do not
   51  satisfy the mandatory continuing education requirements shall not  prac-
   52  tice  until they have met such requirements, and they have been issued a
   53  registration certificate, except that a pharmacist may practice  without
   54  having met such requirements if he or she is issued a conditional regis-
   55  tration certificate pursuant to subdivision three of this section.
       S. 1407                            231                           A. 2107
 
    1    (b)  Pharmacists  shall be exempt from the mandatory continuing educa-
    2  tion requirement for the triennial registration period during which they
    3  are first licensed. In accord with the intent of this  section,  adjust-
    4  ment to the mandatory continuing education requirement may be granted by
    5  the  department of state for reasons of health certified by an appropri-
    6  ate health care professional, for extended active duty  with  the  armed
    7  forces  of  the United States, or for other good cause acceptable to the
    8  department of state which may prevent compliance.
    9    (c) A licensed pharmacist not engaged in practice as determined by the
   10  department of state, shall  be  exempt  from  the  mandatory  continuing
   11  education requirement upon the filing of a statement with the department
   12  of state declaring such status. Any licensee who returns to the practice
   13  of  pharmacy  during  the triennial registration period shall notify the
   14  department of state prior to reentering the profession  and  shall  meet
   15  such  mandatory  education  requirements as shall be prescribed by regu-
   16  lations of the secretary of state.
   17    2. During each triennial registration period an applicant  for  regis-
   18  tration  shall  complete  a  minimum  of  forty-five hours of acceptable
   19  formal continuing education, as specified in subdivision  four  of  this
   20  section,  provided that no more than twenty-two hours of such continuing
   21  education shall consist of self-study courses.  A licensee who  has  not
   22  satisfied  the  mandatory continuing education requirements shall not be
   23  issued a triennial registration certificate by the department  of  state
   24  and  shall  not  practice  unless  and  until a conditional registration
   25  certificate is issued as provided  for  in  subdivision  three  of  this
   26  section.  Continuing  education hours taken during one triennium may not
   27  be transferred to a subsequent triennium.
   28    3. The department of state, in its discretion, may issue a conditional
   29  registration to a licensee who fails to meet  the  continuing  education
   30  requirements  established  in  subdivision  two  of this section but who
   31  agrees to make up any deficiencies and complete any additional education
   32  which the department may require. The fee for such a conditional  regis-
   33  tration shall be the same as, and in addition to, the fee for the trien-
   34  nial  registration.  The duration of such conditional registration shall
   35  be determined by the department of state but shall not exceed one  year.
   36  Any  licensee  who is notified of the denial of registration for failure
   37  to submit evidence, satisfactory to the department of state, of required
   38  continuing education and who practices pharmacy without  such  registra-
   39  tion,  may  be  subject  to disciplinary proceedings pursuant to section
   40  nine hundred forty-four of this article.
   41    4. As used in subdivision two  of  this  section,  "acceptable  formal
   42  continuing  education"  shall  mean  formal  courses  of  learning which
   43  contribute to professional practice in pharmacy and which meet the stan-
   44  dards prescribed by regulations of the secretary of state.  The  depart-
   45  ment  of state may, in its discretion and as needed to contribute to the
   46  health and welfare of the public, require the completion  of  continuing
   47  education  courses  in  specific  subjects.  To  fulfill  this mandatory
   48  continuing education requirement, courses must be taken from  a  sponsor
   49  approved  by the department of state, pursuant to the regulations of the
   50  secretary of state.
   51    5. Pharmacists shall maintain adequate documentation of completion  of
   52  acceptable formal continuing education and shall provide such documenta-
   53  tion at the request of the department of state.  Failure to provide such
   54  documentation  upon  the  request of the department of state shall be an
   55  act of  misconduct  subject  to  disciplinary  proceedings  pursuant  to
   56  section nine hundred forty-four of this article.
       S. 1407                            232                           A. 2107
 
    1    6. The mandatory continuing education fee shall be forty-five dollars,
    2  shall  be payable on or before the first day of each triennial registra-
    3  tion period, and shall be paid in addition to the triennial registration
    4  fee required by section thirteen hundred fifty-five of this subarticle.
    5                                SUBARTICLE 8
 
    6                                   NURSING
 
    7  Section 1400. Introduction.
    8          1401. Definitions.
    9          1402. Definition of practice of nursing.
   10          1403. Practice  of  nursing and use of title "registered profes-
   11                  sional nurse" or "licensed practical nurse".
   12          1404. State board for nursing.
   13          1405. Requirements for a license as  a  registered  professional
   14                  nurse.
   15          1406. Requirements for a license as a licensed practical nurse.
   16          1407. Limited permits.
   17          1408. Exempt persons.
   18          1409. Special provision.
   19          1410. Certificates for nurse practitioner practice.
   20    § 1400. Introduction.    This  subarticle applies to the profession of
   21  nursing.  The general provisions for all professions contained in subar-
   22  ticle one of this article apply to this subarticle.
   23    § 1401. Definitions.  As used in this subarticle:
   24    1. "Diagnosing" in the context of nursing practice  means  that  iden-
   25  tification of and discrimination between physical and psychosocial signs
   26  and  symptoms  essential  to  effective  execution and management of the
   27  nursing regimen.  Such diagnostic privilege is distinct from  a  medical
   28  diagnosis.
   29    2.  "Treating"  means  selection  and performance of those therapeutic
   30  measures essential to the effective  execution  and  management  of  the
   31  nursing regimen, and execution of any prescribed medical regimen.
   32    3.  "Human  Responses" means those signs, symptoms and processes which
   33  denote the individual's interaction with an actual or  potential  health
   34  problem.
   35    4. "Board" means the state board of nursing.
   36    § 1402. Definition  of  practice  of nursing.   1. The practice of the
   37  profession of nursing as a registered professional nurse is  defined  as
   38  diagnosing  and  treating  human responses to actual or potential health
   39  problems through such services as casefinding, health  teaching,  health
   40  counseling,  and  provision of care supportive to or restorative of life
   41  and well-being, and executing medical regimens prescribed by a  licensed
   42  physician,  dentist  or  other  licensed  health  care  provider legally
   43  authorized under this article and in accordance with the regulations  of
   44  the  secretary  of state. A nursing regimen shall be consistent with and
   45  shall not vary any existing medical regimen.
   46    2. The practice of nursing as a licensed practical nurse is defined as
   47  performing tasks and responsibilities within the framework of  casefind-
   48  ing, health teaching, health counseling, and provision of supportive and
   49  restorative  care under the direction of a registered professional nurse
   50  or licensed physician, dentist or other licensed  health  care  provider
   51  legally  authorized  under this article and in accordance with the regu-
   52  lations of the secretary of state.
   53    3. (a) The practice of registered  professional  nursing  by  a  nurse
   54  practitioner,  certified  under  section  fourteen  hundred  ten of this
       S. 1407                            233                           A. 2107
 
    1  subarticle, may include the diagnosis of illness and physical conditions
    2  and the performance of therapeutic  and  corrective  measures  within  a
    3  specialty  area  of practice, in collaboration with a licensed physician
    4  qualified  to  collaborate  in  the  specialty  involved,  provided such
    5  services are performed in accordance with a written  practice  agreement
    6  and  written  practice  protocols.  The written practice agreement shall
    7  include explicit provisions  for  the  resolution  of  any  disagreement
    8  between the collaborating physician and the nurse practitioner regarding
    9  a  matter of diagnosis or treatment that is within the scope of practice
   10  of both. To the extent the practice agreement does not so provide,  then
   11  the collaborating physician's diagnosis or treatment shall prevail.
   12    (b)  Prescriptions  for  drugs,  devices  and immunizing agents may be
   13  issued by a nurse practitioner, under this subdivision and section four-
   14  teen hundred ten of this subarticle, in  accordance  with  the  practice
   15  agreement  and practice protocols. The nurse practitioner shall obtain a
   16  certificate from the department of state upon successfully completing  a
   17  program  including  an appropriate pharmacology component, or its equiv-
   18  alent, as established by the regulations  of  the  secretary  of  state,
   19  prior  to  prescribing  under  this  subdivision. The certificate issued
   20  under section fourteen hundred ten of this subarticle shall state wheth-
   21  er the nurse practitioner has successfully completed such a  program  or
   22  equivalent and is authorized to prescribe under this subdivision.
   23    (c)  Each  practice agreement shall provide for patient records review
   24  by the collaborating physician in a timely fashion but in no event  less
   25  often  than  every three months. The names of the nurse practitioner and
   26  the collaborating physician shall be  clearly  posted  in  the  practice
   27  setting of the nurse practitioner.
   28    (d)  The  practice protocol shall reflect current accepted medical and
   29  nursing practice. The protocols shall be filed with  the  department  of
   30  state  within ninety days of the commencement of the practice and may be
   31  updated periodically. The secretary  of  state  shall  make  regulations
   32  establishing  the procedure for the review of protocols and the disposi-
   33  tion of any issues arising from such review.
   34    (e) No physician shall enter into practice agreements with  more  than
   35  four  nurse practitioners who are not located on the same physical prem-
   36  ises as the collaborating physician.
   37    (f) Nothing in this subdivision shall be deemed to limit  or  diminish
   38  the  practice  of the profession of nursing as a registered professional
   39  nurse under this subarticle  or  any  other  law,  rule,  regulation  or
   40  certification,  nor  to deny any registered professional nurse the right
   41  to do any act or engage in any practice authorized by this subarticle or
   42  any other law, rule, regulation or certification.
   43    (g) The provisions of this subdivision shall not apply to any activity
   44  authorized, pursuant to statute, rule or regulation, to be performed  by
   45  a  registered  professional  nurse  in  a hospital as defined in article
   46  twenty-eight of the public health law.
   47    § 1403. Practice of nursing and use of title "registered  professional
   48  nurse"  or "licensed practical nurse".  Only a person licensed or other-
   49  wise authorized under this subarticle shall practice nursing and only  a
   50  person  licensed  under section fourteen hundred five of this subarticle
   51  shall use the title "registered professional nurse" and  only  a  person
   52  licensed under section fourteen hundred six of this subarticle shall use
   53  the title "licensed practical nurse".
   54    § 1404. State  board  for nursing.  A state board for nursing shall be
   55  appointed by the secretary of state for the  purpose  of  assisting  the
   56  secretary  of  state  and  the department of state on matters of profes-
       S. 1407                            234                           A. 2107
 
    1  sional licensing and professional conduct  in  accordance  with  section
    2  nine hundred twenty-two of this article.  The board shall be composed of
    3  not  less  than  fifteen  members,  eleven  of  whom shall be registered
    4  professional  nurses and four of whom shall be licensed practical nurses
    5  all licensed and practicing in this state for at least five years.    An
    6  executive  secretary to the board shall be appointed by the secretary of
    7  state and shall be a registered professional nurse  registered  in  this
    8  state.
    9    § 1405. Requirements for a license as a registered professional nurse.
   10  To  qualify  for a license as a registered professional nurse, an appli-
   11  cant shall fulfill the following requirements:
   12    (1) Application: file an application with the department of state;
   13    (2) Education: have received an education, and a diploma or degree  in
   14  professional  nursing,  in accordance with the regulations of the secre-
   15  tary of state;
   16    (3) Experience: meet no requirement as to experience;
   17    (4) Examination: pass an examination satisfactory to the board and  in
   18  accordance with the regulations of the secretary of state;
   19    (5) Age: be at least eighteen years of age;
   20    (6) Citizenship: meet no requirement as to United States citizenship;
   21    (7) Character: be of good moral character as determined by the depart-
   22  ment of state; and
   23    (8)  Fees:  pay a fee of one hundred fifteen dollars to the department
   24  of state for admission to a department conducted examination and for  an
   25  initial  license,  a fee of forty-five dollars for each reexamination, a
   26  fee of seventy dollars for an initial license for persons not  requiring
   27  admission  to  a  department  conducted  examination, and a fee of fifty
   28  dollars for each triennial registration period.
   29    § 1406. Requirements for a license as a licensed practical nurse.   To
   30  qualify  for a license as a licensed practical nurse, an applicant shall
   31  fulfill these requirements:
   32    (1) Application: file an application with the department of state;
   33    (2) Education: have received an education including completion of high
   34  school or its equivalent, and have  completed  a  program  in  practical
   35  nursing,  in  accordance with the regulations of the secretary of state,
   36  or completion of equivalent study  satisfactory  to  the  department  of
   37  state in a program conducted by the armed forces of the United States or
   38  in an approved program in professional nursing;
   39    (3) Experience: meet no requirement as to experience;
   40    (4)  Examination: pass an examination satisfactory to the board and in
   41  accordance with the regulations of the  secretary  of  state,  provided,
   42  however,  that the educational requirements set forth in subdivision two
   43  of this section are met prior to admission for  the  licensing  examina-
   44  tion;
   45    (5) Age: be at least seventeen years of age;
   46    (6) Citizenship: meet no requirements as to United States citizenship;
   47    (7) Character: be of good moral character as determined by the depart-
   48  ment of state; and
   49    (8)  Fees:  pay a fee of one hundred fifteen dollars to the department
   50  of state for admission to a department conducted examination and for  an
   51  initial  license,  a fee of forty-five dollars for each reexamination, a
   52  fee of seventy dollars for an initial license for persons not  requiring
   53  admission  to  a  department  conducted  examination, and a fee of fifty
   54  dollars for each triennial registration period.
   55    § 1407. Limited permits.   1. A permit to  practice  as  a  registered
   56  professional nurse or a permit to practice as a licensed practical nurse
       S. 1407                            235                           A. 2107
 
    1  may  be issued by the department of state upon the filing of an applica-
    2  tion for a license as a registered professional nurse or as  a  licensed
    3  practical  nurse and submission of such other information as the depart-
    4  ment  of state may require to (i) graduates of schools of nursing regis-
    5  tered by the department of state, (ii) graduates of schools  of  nursing
    6  approved  in another state, province, or country or (iii) applicants for
    7  a license in practical nursing whose preparation is  determined  by  the
    8  department of state to be the equivalent of that required in this state.
    9    2. Such limited permit shall expire one year from the date of issuance
   10  or  upon  notice  to  the  applicant by the department of state that the
   11  application for license has been denied, or ten days after  notification
   12  to  the  applicant of failure on the professional licensing examination,
   13  whichever shall first occur.  Notwithstanding the  foregoing  provisions
   14  of this subdivision, if the applicant is waiting the result of a licens-
   15  ing  examination  at  the  time such limited permit expires, such permit
   16  shall continue to be valid until ten  days  after  notification  to  the
   17  applicant of the results of such examination.
   18    3.  A limited permit shall entitle the holder to practice nursing only
   19  under the supervision of a nurse currently registered in this state  and
   20  with the endorsement of the employing agency.
   21    4. Fees. The fee for each limited permit shall be thirty-five dollars.
   22    5.  Graduates  of  schools  of nursing registered by the department of
   23  state may be employed to practice nursing under supervision of a profes-
   24  sional nurse currently registered in this state and with the endorsement
   25  of the employing agency for ninety days immediately following graduation
   26  from a program in nursing and pending receipt of a  limited  permit  for
   27  which an application has been filed as provided in this section.
   28    § 1408. Exempt persons.  1. This subarticle shall not be construed:
   29    a.  As  prohibiting  (i)  the  domestic  care of the sick, disabled or
   30  injured by any family member, household  member  or  friend,  or  person
   31  employed  primarily  in a domestic capacity who does not hold himself or
   32  herself out, or accept employment as a person licensed to practice nurs-
   33  ing under the provision of this subarticle; provided that if such person
   34  is remunerated, the person does not hold himself or herself out  as  one
   35  who accepts employment for performing such care; or
   36    (ii)  any  person from the domestic administration of family remedies;
   37  or
   38    (iii) the providing of care by a person  acting  in  the  place  of  a
   39  person  exempt under subparagraph (i) of this subparagraph, but who does
   40  hold himself or herself out as one who accepts employment for performing
   41  such care, where  nursing  services  are  under  the  instruction  of  a
   42  licensed  nurse,  or  under  the  instruction  of a patient or family or
   43  household member determined by a registered  professional  nurse  to  be
   44  self-directing and capable of providing such instruction, and any remun-
   45  eration  is  provided  under  section  three hundred sixty-five-f of the
   46  social services law; or
   47    (iv) the furnishing of nursing assistance in case of an emergency;
   48    b. As including services given by attendants in institutions under the
   49  jurisdiction of or subject to the visitation of the state department  of
   50  mental hygiene if adequate medical and nursing supervision is provided;
   51    c.    As  prohibiting  such performance of nursing service by students
   52  enrolled in registered schools or programs as may be incidental to their
   53  course of study;
   54    d.  As prohibiting or preventing the practice of nursing in this state
   55  by any legally qualified nurse or  practical  nurse  of  another  state,
   56  province,  or  country whose engagement requires him or her to accompany
       S. 1407                            236                           A. 2107
 
    1  and care for a patient temporarily residing in  this  state  during  the
    2  period  of  such  engagement  provided such person does not represent or
    3  hold himself or herself out as a nurse or practical nurse registered  to
    4  practice in this state;
    5    e.  As prohibiting or preventing the practice of nursing in this state
    6  during  an emergency or disaster by any legally qualified nurse or prac-
    7  tical nurse of another state, province, or country who may be  recruited
    8  by  the  American  National Red Cross or pursuant to authority vested in
    9  the state civil  defense  commission  for  such  emergency  or  disaster
   10  service,  provided  such  person  does  not represent or hold himself or
   11  herself out as a nurse or practical nurse registered to practice in this
   12  state;
   13    f.   As prohibiting or preventing the  practice  of  nursing  in  this
   14  state,  in  obedience  to  the  requirements  of  the laws of the United
   15  States, by any commissioned nurse officer in the  armed  forces  of  the
   16  United  States  or  by  any nurse employed in the United States veterans
   17  administration or United States public health service while  engaged  in
   18  the performance of the actual duties prescribed for him or her under the
   19  United  States statutes, provided such person does not represent or hold
   20  himself or herself out as a nurse registered to practice in this  state;
   21  or
   22    g.    As prohibiting the care of the sick when done in connection with
   23  the practice of the religious tenets of any church.
   24    § 1409. Special  provision.  1.   Notwithstanding   any   inconsistent
   25  provision of any general, special, or local law, any licensed registered
   26  professional nurse or licensed practical nurse who voluntarily and with-
   27  out  the expectation of monetary compensation renders first aid or emer-
   28  gency treatment at the scene of an accident or other emergency,  outside
   29  a  hospital, doctor's office or any other place having proper and neces-
   30  sary medical equipment, to a person who is unconscious, ill  or  injured
   31  shall  not  be  liable  for  damages  for  injuries alleged to have been
   32  sustained by such person or for damages for the  death  of  such  person
   33  alleged  to have occurred by reason of an act or omission in the render-
   34  ing of such first aid or emergency treatment unless  it  is  established
   35  that  such injuries were or such death was caused by gross negligence on
   36  the part of such registered professional  nurse  or  licensed  practical
   37  nurse.  Nothing  in  this  subdivision  shall  be deemed or construed to
   38  relieve a licensed registered professional nurse or  licensed  practical
   39  nurse  from liability for damages for injuries or death caused by an act
   40  or omission on the part  of  such  nurse  while  rendering  professional
   41  services in the normal and ordinary course of his or her practice.
   42    2. Nothing in this subarticle shall be construed to confer the author-
   43  ity to practice medicine or dentistry.
   44    3.  A  certified  nurse practitioner may prescribe and order a non-pa-
   45  tient specific regimen to a registered professional nurse,  pursuant  to
   46  regulations  promulgated  by  the  secretary  of  state, consistent with
   47  subdivision three of section fourteen hundred two  of  this  subarticle,
   48  and consistent with the public health law, for:
   49    (a) administering immunizations.
   50    (b) the emergency treatment of anaphylaxis.
   51    (c) administering purified protein derivative (PPD) tests.
   52    4.  A registered professional nurse may execute a non-patient specific
   53  regimen prescribed or ordered by a licensed physician or certified nurse
   54  practitioner, pursuant to regulations promulgated by  the  secretary  of
   55  state.
       S. 1407                            237                           A. 2107
 
    1    5.  A  registered  professional nurse defined under subdivision one of
    2  section fourteen hundred two of this subarticle may use accepted classi-
    3  fications of signs, symptoms, dysfunctions and disorders, including, but
    4  not limited to, classifications used in the  practice  setting  for  the
    5  purpose of providing mental health services.
    6    § 1410. Certificates for nurse practitioner practice.  1. For issuance
    7  of  a  certificate to practice as a nurse practitioner under subdivision
    8  three of section fourteen hundred two of this subarticle, the  applicant
    9  shall fulfill the following requirements:
   10    (a) Application: file an application with the department of state;
   11    (b)  License:  be  licensed  as a registered professional nurse in the
   12  state;
   13    (c) Education: (i) have satisfactorily completed educational  prepara-
   14  tion  for  provision  of  these  services in a program registered by the
   15  department of state or in a program determined by the department  to  be
   16  the equivalent; or
   17    (ii) submit evidence of current certification by a national certifying
   18  body, recognized by the department of state; or
   19    (iii) meet such alternative criteria as established by the regulations
   20  of the secretary of state;
   21    (d)  Fees:  pay  a fee to the department of state of fifty dollars for
   22  each initial certificate authorizing nurse practitioner  practice  in  a
   23  specialty  area  and  a  triennial  registration  fee of thirty dollars.
   24  Registration under this section shall  be  coterminous  with  the  nurse
   25  practitioner's registration as a professional nurse.
   26    2.  Only  a  person  certified  under this section shall use the title
   27  "nurse practitioner".
   28    3. The provisions of this section shall not apply to any act or  prac-
   29  tice authorized by any other law, rule, regulation or certification.
   30    4.  The  provisions  of  this  section shall not apply to any activity
   31  authorized, pursuant to statute, rule or regulation, to be performed  by
   32  a  registered  professional  nurse  in  a hospital as defined in article
   33  twenty-eight of the public health law.
   34    5. The secretary of state is authorized to promulgate  regulations  to
   35  implement the provisions of this section.
   36                                 SUBARTICLE 9
 
   37                     PROFESSIONAL MIDWIFERY PRACTICE ACT
 
   38  Section 1450. Introduction.
   39          1451. Definition of practice of midwifery.
   40          1452. Practice of midwifery.
   41          1453. Use of title "midwife".
   42          1454. State board of midwifery.
   43          1455. Requirements for a professional license.
   44          1456. Prior nurse-midwifery certification.
   45          1457. Exempt persons.
   46          1458. Limited permit.
   47    § 1450. Introduction.    This  subarticle applies to the profession of
   48  midwifery.   The general provisions for  all  professions  contained  in
   49  subarticle one of this article apply to this subarticle.
   50    § 1451. Definition  of  practice of midwifery.  1. The practice of the
   51  profession of midwifery is defined as the management of normal  pregnan-
   52  cies,  child  birth  and  postpartum  care as well as primary preventive
   53  reproductive health care of essentially healthy women  as  specified  in
   54  the  written  practice  agreement, and shall include newborn evaluation,
       S. 1407                            238                           A. 2107
 
    1  resuscitation and referral for infants. Midwifery shall be practiced  in
    2  accordance  with  a  written  agreement  between  the  midwife and (i) a
    3  licensed physician who is board certified as  an  obstetrician-gynecolo-
    4  gist  by  a  national  certifying  body or (ii) a licensed physician who
    5  practices obstetrics and has obstetric privileges at a general  hospital
    6  (licensed  under article twenty-eight of the public health law) or (iii)
    7  a hospital (licensed under article twenty-eight  of  the  public  health
    8  law)  that  provides  obstetrics  through  a  licensed  physician having
    9  obstetrical privileges at such institution.  The written agreement shall
   10  provide for physician consultation, collaboration, referral and emergen-
   11  cy medical obstetrical coverage, and shall  include  written  guidelines
   12  and  protocols.  The  written agreement shall provide guidelines for the
   13  identification of pregnancies that are not considered normal and address
   14  the procedures to be followed. The written agreement shall also  provide
   15  a  mechanism  for dispute resolution and shall provide that the judgment
   16  of the appropriate physician shall prevail as to whether the  pregnancy,
   17  childbirth  or postpartum care is normal and whether the woman is essen-
   18  tially healthy in the event the practice protocols do not provide other-
   19  wise.
   20    2. A licensed midwife shall have  the  authority,  as  necessary,  and
   21  limited  to the practice of midwifery, and subject to limitations in the
   22  written agreement, to prescribe and administer drugs, immunizing agents,
   23  diagnostic tests and devices, and to order laboratory tests,  as  estab-
   24  lished  by the board in accordance with the regulations of the secretary
   25  of state.  A midwife shall obtain a certificate from the  department  of
   26  state  upon  successfully  completing a program including a pharmacology
   27  component, or its equivalent, as established by the regulations  of  the
   28  secretary of state prior to prescribing under this section.
   29    3.  Any  reference to midwifery, midwife, certified nurse-midwifery or
   30  certified nurse-midwife,  nurse-midwifery  or  nurse-midwife  under  the
   31  provisions  of  this  subarticle,  this  article or any other law, shall
   32  refer to and include the profession of midwifery and a licensed midwife,
   33  unless the context clearly requires otherwise.
   34    § 1452. Practice of midwifery.  Only a person licensed or exempt under
   35  this subarticle or authorized by any other section of law shall practice
   36  midwifery.
   37    § 1453. Use of title "midwife". Only a person licensed or exempt under
   38  this subarticle shall use the title "midwife".  Only a  person  licensed
   39  under  both this subarticle and subarticle eight of this article may use
   40  the title "nurse-midwife".
   41    § 1454. State board of midwifery.   1. The state  board  of  midwifery
   42  shall  be appointed by the secretary of state for the purpose of assist-
   43  ing the secretary of state on  matters  of  professional  licensing  and
   44  professional  conduct in accordance with section nine hundred twenty-two
   45  of this article. The board shall be composed  of  thirteen  individuals.
   46  Initial  appointments to the board shall be such that the terms shall be
   47  staggered. However, no members shall serve more than two terms.
   48    2. (a) (1) Seven members of the board shall  be  persons  licensed  or
   49  exempt under this section.
   50    (2) One member of the board shall be an educator of midwifery.
   51    (b)  Two  members  of  the board shall be individuals who are licensed
   52  physicians who are also certified  as  obstetrician/gynecologists  by  a
   53  national certifying body.
   54    (c)  One  member  of  the  board  shall be an individual licensed as a
   55  physician who practices family medicine including obstetrics.
       S. 1407                            239                           A. 2107
 
    1    (d) One member of the board shall  be  an  individual  licensed  as  a
    2  physician who practices pediatrics.
    3    (e)  One  member  of  the  board shall be an individual not possessing
    4  either licensure or training in  medicine,  midwifery,  pharmacology  or
    5  nursing and shall represent the public at large.
    6    3.  For  purposes of this subarticle, "board" means the state board of
    7  midwifery created under this section unless the  context  clearly  indi-
    8  cates otherwise.
    9    § 1455. Requirements  for  a  professional license.   To qualify for a
   10  license as a midwife, an applicant shall fulfill the following  require-
   11  ments:
   12    1. Application: file an application with the department of state.
   13    2. Education: satisfactorily;
   14    (a)  complete educational preparation (degree or diploma granting) for
   15  the practice of nursing, followed by or  concurrently  with  educational
   16  preparation  for  the practice of midwifery in accordance with the regu-
   17  lations of the secretary of state, or
   18    (b) submit evidence of license or certification, the educational prep-
   19  aration for which is determined by the department of state to be  equiv-
   20  alent  to  the foregoing, from any state or country, satisfactory to the
   21  department and in accordance with the regulations of  the  secretary  of
   22  state, or
   23    (c)  complete  a  program  determined by the department of state to be
   24  equivalent to the foregoing and in accordance with  the  regulations  of
   25  the secretary of state.
   26    3.  Examination: pass an examination satisfactory to the department of
   27  state and in accordance with the regulations of the secretary of state.
   28    4. Age: be at least twenty-one years of age.
   29    5. Character: be of good moral character as determined by the  depart-
   30  ment of state.
   31    6. Citizenship or immigration status: be a United States citizen or an
   32  alien lawfully admitted for permanent residence in the United States.
   33    7.  Fee:  pay a fee of one hundred ninety dollars to the department of
   34  state for admission to a department conducted examination for an initial
   35  license, a fee of one hundred dollars for each re-examination, a fee  of
   36  one  hundred  fifteen  dollars  for  an  initial license for persons not
   37  requiring admission to a department conducted examination, a fee of  one
   38  hundred  eighty dollars for each triennial registration period and a fee
   39  of seventy dollars for a limited permit.
   40    § 1456. Prior nurse-midwifery certification.   Any individual  who  is
   41  certified  as  a  nurse-midwife  pursuant  to former section twenty-five
   42  hundred sixty of the public  health  law  before  June  first,  nineteen
   43  hundred  ninety-six,  shall  be deemed to be licensed as a midwife under
   44  this subarticle; provided that each such certified nurse-midwife  shall,
   45  prior to that date, submit evidence of such certification to the depart-
   46  ment  of state together with the appropriate fee required by subdivision
   47  seven of section fourteen hundred fifty-five of this subarticle.
   48    § 1457. Exempt persons.  Nothing in this subarticle shall be construed
   49  to affect, prevent or in any manner expand or limit any duty or  respon-
   50  sibility  of a licensed physician from practicing midwifery or affect or
   51  prevent a medical student or  midwifery  student  in  clinical  practice
   52  under  the  supervision  of  a  licensed  physician  or  board certified
   53  obstetrician/gynecologist or licensed midwife practicing pursuant to the
   54  provisions of former section twenty-five hundred  sixty  of  the  public
   55  health  law  in  pursuance  of  an educational program registered by the
   56  department of state from engaging in such practice.
       S. 1407                            240                           A. 2107
 
    1    § 1458. Limited permit.  1. A limited permit to practice midwifery may
    2  be granted for a period not to exceed twelve months to an individual who
    3  has to the satisfaction of the department of state met all the  require-
    4  ments of section fourteen hundred fifty-five of this subarticle, but has
    5  not  yet  passed  the  examination required by subdivision three of such
    6  section.
    7    2. A limited permit shall entitle the  holder  to  practice  midwifery
    8  only under the direct supervision of a licensed physician who is author-
    9  ized  under  section  fourteen hundred fifty-one of this subarticle or a
   10  licensed midwife.
   11                                SUBARTICLE 10
 
   12                                  PODIATRY
 
   13  Section 1500. Introduction.
   14          1501. Definition of practice of podiatry.
   15          1502. Practice of podiatry and use of title "podiatrist".
   16          1503. State board for podiatry.
   17          1504. Requirements for a professional license.
   18          1505. Exempt persons.
   19          1506. Special provision.
   20          1507. Limited permits.
   21    § 1500. Introduction.  This subarticle applies to  the  profession  of
   22  podiatry.    The  general  provisions  for  all professions contained in
   23  subarticle one of this article apply to this subarticle.
   24    § 1501. Definition of practice of podiatry. 1.   The practice  of  the
   25  profession of podiatry is defined as diagnosing, treating, operating and
   26  prescribing for any disease, injury, deformity or other condition of the
   27  foot,  and  may  include  performing physical evaluations in conjunction
   28  with the provision of podiatric treatment.  Podiatrists may treat  trau-
   29  matic  open  wound  fractures  only  in hospitals, as defined in article
   30  twenty-eight of the public health law.
   31    2. The practice of podiatry shall not include treating any part of the
   32  human body other than the foot, nor treating fractures of  the  malleoli
   33  or  cutting  operations upon the malleoli. Podiatrists licensed to prac-
   34  tice, but not authorized to prescribe or administer narcotics  prior  to
   35  the  effective  date  of  this subdivision, may do so only after certif-
   36  ication by the department of state in accordance with the qualifications
   37  established by the secretary of state.  The practice of  podiatry  shall
   38  include administering only local anesthetics for therapeutic purposes as
   39  well  as  for anesthesia and treatment under general anesthesia adminis-
   40  tered by authorized persons.
   41    § 1502. Practice of podiatry and use of title "podiatrist".    Only  a
   42  person  licensed or exempt under this subarticle shall practice podiatry
   43  or use the title "podiatrist" or "chiropodist".
   44    § 1503. State board for podiatry.  1. A state board for podiatry shall
   45  be appointed by the secretary of state for the purpose of assisting  the
   46  secretary  of  state  and  the department of state on matters of profes-
   47  sional licensing and professional conduct  in  accordance  with  section
   48  nine hundred twenty-two of this article.  The board shall be composed of
   49  not  less  than  seven podiatrists licensed in this state.  An executive
   50  secretary to the board shall be appointed by the secretary of  state  on
   51  recommendation of the commissioner.
   52    2. For purposes of this subarticle, "board" shall mean the state board
   53  for podiatry.
       S. 1407                            241                           A. 2107
 
    1    § 1504. Requirements  for  a  professional license.   To qualify for a
    2  license as a  podiatrist,  an  applicant  shall  fulfill  the  following
    3  requirements:
    4    (1) Application: file an application with the department of state;
    5    (2) Education: have received an education, including a doctoral degree
    6  in  podiatry,  in  accordance  with  the regulations of the secretary of
    7  state;
    8    (3) Experience: have experience  satisfactory  to  the  board  and  in
    9  accordance with the regulations of the secretary of state;
   10    (4)  Examination: pass an examination satisfactory to the board and in
   11  accordance with the regulations of the secretary of state;
   12    (5) Age: be at least twenty-one years of age;
   13    (6) Citizenship: meet no requirements as to United States citizenship;
   14    (7) Character: be of good moral character as determined by the depart-
   15  ment of state; and
   16    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   17  state for admission to a department conducted  examination  and  for  an
   18  initial  license,  a fee of one hundred fifteen dollars for each reexam-
   19  ination, a fee of one hundred thirty-five dollars for an initial license
   20  for persons not requiring admission to a department  conducted  examina-
   21  tion,  and a fee of two hundred ten dollars for each triennial registra-
   22  tion period.
   23    (9) Continuing education:  In  accordance  with  the  requirements  of
   24  section  nine hundred three of this article, at the time of re-registra-
   25  tion with the department of state, each applicant shall  present  satis-
   26  factory  evidence to the board that in the years prior to the filing for
   27  re-registration he or she attended the education programs  conducted  by
   28  the  podiatry society of the state of New York or the equivalent of such
   29  educational programs as approved by the board  in  accordance  with  the
   30  regulations of the secretary of state.
   31    § 1505. Exempt persons.  Nothing in this subarticle shall be construed
   32  to  affect or prevent a student from engaging in clinical practice under
   33  supervision of a licensed podiatrist in a school  of  podiatry  in  this
   34  state registered by the department of state.
   35    § 1506. Special  provision.    1.  No  corporation,  except a hospital
   36  corporation authorized under article forty-three of the insurance law or
   37  a corporation organized and existing under the laws of the state of  New
   38  York  which,  on  or  before  the  first  day of March, nineteen hundred
   39  forty-two, was legally incorporated to practice podiatry, shall practice
   40  podiatry, and then only through licensed podiatrists and  shall  conform
   41  to  board  rules.    No corporation organized to practice podiatry shall
   42  change its name or sell its franchise or transfer its  corporate  rights
   43  directly  or  indirectly, by transfer of capital stock control or other-
   44  wise, to any person or to another corporation  without  permission  from
   45  the  department  of state and any corporation so changing its name or so
   46  transferring its franchise or corporate rights without  such  permission
   47  or  found  guilty  of  violating  a  board  rule shall be deemed to have
   48  forfeited its right to exist and shall  be  dissolved  by  a  proceeding
   49  brought by the attorney general.
   50    2.    Any manufacturer or merchant may sell, advertise, fit, or adjust
   51  proprietary foot remedies, arch supports, corrective foot appliances  or
   52  shoes.
   53    3.  Notwithstanding any inconsistent provision of any general, special
   54  or local law, any licensed podiatrist who voluntarily  and  without  the
   55  expectation  of  monetary  compensation  renders  first aid or emergency
   56  treatment at the scene of an accident or other emergency, outside  of  a
       S. 1407                            242                           A. 2107
 
    1  hospital  or  any other place having proper and necessary medical equip-
    2  ment, to a person who is unconscious, ill or injured shall not be liable
    3  for damages for injuries alleged to have been sustained by  such  person
    4  or  for damages for the death of such person alleged to have occurred by
    5  reason of an act or omission in the rendering of such first aid or emer-
    6  gency treatment unless it is established that such injuries were or such
    7  death was caused by gross negligence on the  part  of  such  podiatrist.
    8  Nothing  in  this  subdivision shall be deemed or construed to relieve a
    9  licensed podiatrist from liability for damages  for  injuries  or  death
   10  caused by an act or omission on the part of a podiatrist while rendering
   11  professional services in the normal and ordinary course of practice.
   12    4.  An  unlicensed  person may provide supportive services to a podia-
   13  trist incidental to  and  concurrent  with  such  podiatrist  personally
   14  performing  a service or procedure. Nothing in this subdivision shall be
   15  construed to allow an unlicensed person to  provide  any  service  which
   16  constitutes the practice of podiatry as defined in this subarticle.
   17    § 1507. Limited  permits.  1. Limited permits to practice podiatry may
   18  be issued by the department of  state  to  graduates  of  a  program  of
   19  professional  education  in  podiatry  registered  by  the department or
   20  accredited by an accrediting agency acceptable to the  department.  Such
   21  permits  shall  authorize the practice of podiatry only under the super-
   22  vision of a licensed podiatrist and only in:
   23    a. a hospital or health facility licensed pursuant to article  twenty-
   24  eight of the public health law;
   25    b.  a  clerkship  for  a  period  of  two years or less conducted by a
   26  licensed podiatrist designated as a member of the faculty of an approved
   27  school of podiatry for purposes of a preceptorship program; or
   28    c. in an approved post-graduate residency training program  in  podia-
   29  tric medicine.
   30    2.  Limited  permits shall be issued for a period of one year, and may
   31  be renewed at the discretion of the department of state  for  one  addi-
   32  tional  year, except that a second renewal may be issued where necessary
   33  to permit the completion of an approved post-graduate residency.
   34    3. The fee for a limited permit shall be one hundred five dollars  and
   35  the fee for a renewal shall be fifty dollars.
 
   36                                SUBARTICLE 11
 
   37                                  OPTOMETRY
 
   38  Section 1550.   Introduction.
   39          1551.   Definition of the practice of optometry.
   40          1552.   Certification to use therapeutic drugs.
   41          1553.   Practice of optometry and use of title "optometrist".
   42          1554.   State board for optometry.
   43          1555.   Requirements for a professional license.
   44          1556.   Exempt persons.
   45          1557.   Special provisions.
   46          1558.   Advertising of non-prescription ready-to-wear magnifying
   47                    spectacles or glasses.
   48    § 1550. Introduction.    This  subarticle applies to the profession of
   49  optometry.   The general provisions for  all  professions  contained  in
   50  subarticle one of this article apply to this subarticle.
   51    § 1551. Definition  of the practice of optometry.  The practice of the
   52  profession of optometry is defined as diagnosing  and  treating  optical
   53  deficiency,  optical  deformity,  visual  anomaly,  muscular  anomaly or
       S. 1407                            243                           A. 2107
 
    1  disease of the human eye and adjacent tissue by prescribing,  providing,
    2  adapting or fitting lenses, or by prescribing or providing orthoptics or
    3  vision  training,  or  by  prescribing  and using drugs. The practice of
    4  optometry  shall  not  include  any  injection or invasive modality. For
    5  purposes of this section invasive modality means any procedure in  which
    6  human  tissue is cut, altered, or otherwise infiltrated by mechanical or
    7  other means. Invasive modality includes surgery, lasers, ionizing  radi-
    8  ation,  therapeutic  ultrasound  and  the removal of foreign bodies from
    9  within the tissue of the eye.   The use  of  drugs  by  optometrists  is
   10  authorized only in accordance with the provisions of this subarticle and
   11  regulations promulgated by the secretary of state.
   12    § 1552. Certification  to  use  therapeutic  drugs. 1. Definitions. As
   13  used in this section, the following terms shall have the following mean-
   14  ings:
   15    (a) Clinical training. Clinical training  shall  mean  the  diagnosis,
   16  treatment  and  management  of patients with ocular disease and shall be
   17  comparable to that acquired by a current graduate of the State Universi-
   18  ty College of Optometry.
   19    (b) Consultation. Consultation shall mean a confirmation of the  diag-
   20  nosis,  a plan of co-management of the patient, and a periodic review of
   21  the patient's progress.
   22    (c) Education review committee. Education review committee shall  mean
   23  the committee established pursuant to subdivision nine of this section.
   24    (d)  Diagnostic pharmaceuticals. Diagnostic pharmaceuticals shall mean
   25  those drugs which shall  be  limited  to  topical  applications  to  the
   26  surface  of the eye for the purpose of diagnostic examination of the eye
   27  and shall be limited to:
   28    (i) Anesthetic agents;
   29    (ii) Mydriatics;
   30    (iii) Cycloplegics;
   31    (iv) Miotics;
   32    (v) Disclosing agents and other substances used  in  conjunction  with
   33  these drugs as part of a diagnostic procedure.
   34    (e)  Phase one therapeutic pharmaceutical agents. Phase one pharmaceu-
   35  tical agents shall mean those drugs which shall be  limited  to  topical
   36  application to the surface of the eye for therapeutic purposes and shall
   37  be limited to:
   38    (i) antibiotic/antimicrobials;
   39    (ii) decongestants/anti-allergenics;
   40    (iii) non-steroidal anti-inflammatory agents;
   41    (iv) steroidal anti-inflammatory agents;
   42    (v) antiviral agents;
   43    (vi) hyperosmotic/hypertonic agents;
   44    (vii) cycloplegics;
   45    (viii) artificial tears and lubricants.
   46    (f)  Phase two therapeutic pharmaceutical agents. Phase two pharmaceu-
   47  tical agents shall mean those drugs which shall be  limited  to  topical
   48  application to the surface of the eye and shall be limited to:
   49    (i) beta blockers;
   50    (ii) alpha agonists;
   51    (iii) direct acting cholinergic agents.
   52    2.  Standard  of care. An optometrist authorized to use pharmaceutical
   53  agents for use in the  diagnosis,  treatment  or  prevention  of  ocular
   54  disease  shall be held to the same standard of care in diagnosis, use of
   55  such agents, and treatment as  that  degree  of  skill  and  proficiency
   56  commonly exercised by a physician in the same community.
       S. 1407                            244                           A. 2107
 
    1    3. Certificate. The secretary of state shall issue appropriate certif-
    2  icates  to  use therapeutic pharmaceutical agents in accordance with the
    3  provisions of this section to those optometrists who have satisfactorily
    4  completed a curriculum in general and ocular pharmacology at  a  college
    5  of  optometry with didactic and supervised clinical programs approved by
    6  the department of state are eligible to apply for the certificate issued
    7  pursuant to this section.
    8    4. Phase one therapeutic pharmaceutical agents. (a)  Before  using  or
    9  prescribing  phase  one  therapeutic pharmaceutical agents, each optome-
   10  trist shall have completed at least  three  hundred  hours  of  clinical
   11  training  in  the  diagnosis,  treatment and management of patients with
   12  ocular disease other than glaucoma and  ocular  hypertension  and  addi-
   13  tionally  shall  either have taken and successfully passed the treatment
   14  and management of ocular diseases portion of the National Board of Exam-
   15  iners in Optometry test or have taken and successfully passed  an  exam-
   16  ination acceptable to the board.
   17    (b)  Before  using or prescribing phase two therapeutic pharmaceutical
   18  agents, an optometrist must be certified for diagnostic  and  phase  one
   19  therapeutic agents and have completed an additional one hundred hours of
   20  clinical training in the diagnosis, treatment and management of patients
   21  with  glaucoma and ocular hypertension and shall have taken and success-
   22  fully passed an oral or written examination acceptable by the board.
   23    (c) The clinical training required  by  this  section  may  have  been
   24  acquired  prior  to  the enactment of this section not inconsistent with
   25  paragraphs (a) and (b) of this subdivision. Approval of the pre-acquired
   26  clinical training shall be in accordance with subdivision nine-a of this
   27  section.
   28    (d) The provisions of paragraphs (a) and (b) of this subdivision shall
   29  not apply to (i) graduates of an appropriate  program  approved  by  the
   30  department  of state who have successfully passed the examination on the
   31  use of diagnostic and therapeutic drugs; or (ii) optometrists  who  have
   32  been  certified  for  at least five years to use phase one and phase two
   33  drugs in another jurisdiction, have demonstrated such use  in  independ-
   34  ently  managed  patients,  and  have  been  licensed  in accordance with
   35  section fifteen hundred fifty-five of this subarticle. Provided,  howev-
   36  er, no optometrist exempt under this paragraph shall be permitted to use
   37  phase  one  therapeutic  pharmaceutical  agents or phase two therapeutic
   38  pharmaceutical agents prior to the  general  authorization  provided  to
   39  optometrists licensed in this state.
   40    5.  Suspension of certification. The department of state shall suspend
   41  the certification for the use and prescribing of phase  one  therapeutic
   42  agents  of  any optometrist who fails to receive certification for phase
   43  two therapeutic pharmaceutical agents within three years of having  been
   44  certified for phase one therapeutic pharmaceutical agents.
   45    6. Consultation. (a) After the initial diagnosis of glaucoma or ocular
   46  hypertension  and before initiating treatment of any patient, an optome-
   47  trist shall engage in a written consultation with a  licensed  physician
   48  specializing in diseases of the eye.
   49    (b)  A  consultation  shall be required for a period of three years or
   50  until the optometrist has examined and diagnosed  seventy-five  patients
   51  having  glaucoma  or  ocular  hypertension  which examinations require a
   52  written consultation in accordance with paragraph (a) of  this  subdivi-
   53  sion, whichever occurs later.
   54    (c)  The  consultation  provisions shall not apply to a graduate of an
   55  appropriate program approved by the department of state who successfully
   56  passed an examination in the use of diagnostic and  therapeutic  pharma-
       S. 1407                            245                           A. 2107
 
    1  ceutical agents approved by the department and graduated such school and
    2  who  has had at least seventy-five documented examinations and diagnosis
    3  of patients with glaucoma or ocular hypertension which examinations were
    4  part of their training and were under physician supervision.
    5    7.  Continuing  education. Each optometrist certified to use phase one
    6  or phase two therapeutic pharmaceutical agents shall complete a  minimum
    7  of  thirty-six  hours of continuing education per triennial registration
    8  period. The education shall be in the area of ocular disease and pharma-
    9  cology and may include  both  didactic  and  clinical  components.  Such
   10  educational  programs  shall be approved in advance by the department of
   11  state and evidence of  the  completion  of  this  requirement  shall  be
   12  submitted  with  each  application  for  license  renewal as required by
   13  section nine hundred three of this article.
   14    8. Notice to patient. (a) (i) An optometrist prescribing  steroids  or
   15  antiviral  medication  shall  inform  each patient that in the event the
   16  condition does  not  improve  within  five  days,  a  physician  of  the
   17  patient's choice will be notified.
   18    (ii) An optometrist engaged in a written consultation with an ophthal-
   19  mologist shall inform a patient diagnosed with glaucoma that the optome-
   20  trist  will have the diagnosis confirmed and co-managed with an ophthal-
   21  mologist of the patient's choice, or one selected by the optometrist.
   22    (b) In addition, each optometrist certified to prescribe and use ther-
   23  apeutic drugs shall have posted conspicuously in  the  office  reception
   24  area the following notice:
   25    "Dr. (Name), O.D. is certified by New York State to use drugs to diag-
   26  nose and treat diseases of the eye. In the event your condition requires
   27  the  use of steroids or antiviral medication and your condition does not
   28  improve within five days, a physician of your choice will be notified.
   29    In the event you are diagnosed with  glaucoma,  the  optometrist  will
   30  have  your diagnosis confirmed and treatment co-managed with an ophthal-
   31  mologist (MD) of your choice, or  if  you  wish,  one  selected  by  Dr.
   32  (Name)."
   33    The  second  paragraph  of  such  notice  shall only be required to be
   34  included during the period when the optometrist is engaged in a  written
   35  consultation pursuant to subdivision six of this section.
   36    9. Education review committee. An education review committee is hereby
   37  created  to  advise and assist the secretary of state in evaluating pre-
   38  acquired clinical training.  The  members  of  the  committee  shall  be
   39  appointed by the secretary of state. The committee shall consist of five
   40  members,  two  of  whom shall be optometrists on the faculty of the SUNY
   41  college of optometry, two of whom  shall  be  ophthalmologists  who,  in
   42  addition  to being members of the faculty of any approved medical school
   43  in this state and not also faculty members of SUNY college of optometry,
   44  have surgical privileges at a New York state hospital. The fifth  member
   45  who  shall  be  designated  as  chair shall be an expert in the field of
   46  public health and shall be neither an  ophthalmologist  nor  an  optome-
   47  trist.
   48    The  secretary of state shall submit each application to the committee
   49  for its review and recommendation. In making  such  recommendation,  the
   50  committee  shall  advise as to the number of hours of pre-acquired clin-
   51  ical training, if any,  to  be  approved,  based  upon  the  information
   52  submitted with the application. In evaluating such training, the commit-
   53  tee  shall  be  authorized  to require the submission of such reasonable
   54  documentation needed to facilitate the committee's review of the adequa-
   55  cy and relevance of such training.
       S. 1407                            246                           A. 2107
 
    1    9-a. Pre-acquired clinical training. (a) Each  optometrist  requesting
    2  approval of pre-acquired clinical training shall submit a written appli-
    3  cation  to the department of state. The secretary of state, in consulta-
    4  tion with the education review committee  may  provide  credit  for  the
    5  following:
    6    (i)  clinical  training  acquired  at  an  institution accredited by a
    7  regional or professional accreditation organization which is  recognized
    8  or approved by the United States Department of Education and the depart-
    9  ment;
   10    (ii) clinical training acquired at a facility licensed by the state of
   11  New  York  in  accordance with article twenty-eight of the public health
   12  law or at a comparable facility located  in  another  state  or  country
   13  provided  the  licensing  requirements  or accreditation requirements of
   14  such institution are comparable to those of New York state;
   15    (iii) hospital affiliations, including rounds and  patient  management
   16  for applicants having staff privileges at such facility;
   17    (iv)  consultation and co-management with ophthalmologists of patients
   18  with ocular disease and post-surgery recovery;
   19    (v) postdoctoral accredited residency or fellowship programs;
   20    (vi) experience at an accredited educational institution as a  faculty
   21  instructor  in  clinical practice, ocular disease management and pharma-
   22  cology;
   23    (vii) experience in other states  in  which  the  applicant  has  been
   24  certified to use therapeutic pharmaceutical agents.
   25    (b)  Any optometrist disagreeing with the recommendation of the educa-
   26  tion review committee shall have a right to appeal  in  writing  to  the
   27  secretary  of  state.  The  decision  of the secretary of state shall be
   28  final and binding on all parties.
   29    10. Pharmaceutical agents. Optometrists who  have  been  approved  and
   30  certified  by  the  department  of  state  shall be permitted to use the
   31  following drugs:
   32    (a) Diagnostic pharmaceuticals.
   33    (b) Those optometrists having been certified for phase one therapeutic
   34  pharmaceutical agents shall be authorized (i) to use and  recommend  all
   35  nonprescription  medications  appropriate  for  ocular  disease  whether
   36  intended for topical or oral use; and (ii)  to  use  and  prescribe  all
   37  phase  one  therapeutic pharmaceutical agents which are FDA approved and
   38  commercially available.
   39    In the event an optometrist treats a patient with topical antiviral or
   40  steroidal drugs and the patient's condition either fails to  improve  or
   41  worsens  within  five  days,  the  optometrist  shall notify a physician
   42  designated by the patient or, if none, by the treating optometrist.
   43    (c) Those optometrists having been certified for phase two therapeutic
   44  pharmaceutical agents shall be authorized to use and prescribe phase two
   45  therapeutic pharmaceutical agents which are FDA approved and commercial-
   46  ly available.
   47    11. Responsibilities of the secretary of state. The secretary of state
   48  shall adopt regulations (a) providing for the certification of graduates
   49  of an appropriate program approved by the department of state  who  have
   50  successfully  passed the examination on the use of diagnostic and thera-
   51  peutic pharmaceutical agents and who have graduated; and  (b)  providing
   52  for  the  certification  of  optometrists  who have graduated from other
   53  accredited colleges of optometry or who  are  licensed  to  practice  in
   54  other jurisdictions, have demonstrated such use in independently managed
   55  patients and are seeking licensure and certification in New York.
       S. 1407                            247                           A. 2107
 
    1    12.  Responsibilities  of the commissioner of health. The commissioner
    2  of health may recommend to the secretary of state additions or deletions
    3  to the regulations of the secretary of state relating to optometric  use
    4  of drugs except that such recommendations shall be limited only to addi-
    5  tions which have been determined to be equivalent to those drugs already
    6  authorized or deletions based upon a finding that the drugs are no long-
    7  er appropriate for their current use or for other similar reasons.
    8    § 1553. Practice  of optometry and use of title "optometrist".  Only a
    9  person licensed or exempt under this subarticle shall practice optometry
   10  or use the title "optometrist".
   11    § 1554. State board for optometry.   1. A state  board  for  optometry
   12  shall  be appointed by the secretary of state for the purpose of assist-
   13  ing the secretary of state and the department of  state  on  matters  of
   14  professional  licensing  and  professional  conduct  in  accordance with
   15  section nine hundred twenty-two of this  article.  The  board  shall  be
   16  composed  of  not less than seven optometrists who shall have been resi-
   17  dents of this state engaged in the practice of optometry  for  at  least
   18  five  years in this state.  An executive secretary to the board shall be
   19  appointed by the secretary of state.
   20    § 1555. Requirements for a professional license.   To  qualify  for  a
   21  license  as  an  optometrist,  an  applicant shall fulfill the following
   22  requirements:
   23    (1) Application: file an application with the department of state;
   24    (2) Education: have received  an  education,  including  a  degree  of
   25  doctor  of  optometry or equivalent degree, in accordance with the regu-
   26  lations of the secretary of state;
   27    (3) Experience: have experience  satisfactory  to  the  board  and  in
   28  accordance with the regulations of the secretary of state;
   29    (4)  Examination: pass an examination satisfactory to the board and in
   30  accordance with the regulations of the secretary of state;
   31    (5) Age: be at least twenty-one years of age;
   32    (6) Citizenship: meet no requirement as to United States citizenship;
   33    (7) Character: be of good moral character as determined by the depart-
   34  ment of state; and
   35    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   36  state for admission to a department conducted  examination  and  for  an
   37  initial  license,  a fee of one hundred fifteen dollars for each reexam-
   38  ination, a fee of one hundred thirty-five dollars for an initial license
   39  for persons not requiring admission to a department  conducted  examina-
   40  tion,  and a fee of two hundred ten dollars for each triennial registra-
   41  tion period, and for additional authorization for the purpose of utiliz-
   42  ing diagnostic pharmaceutical agents, a fee of sixty dollars.
   43    § 1556. Exempt persons.  Nothing in this subarticle shall be construed
   44  to affect or prevent:
   45    a. A student from engaging in clinical practice under supervision of a
   46  licensed optometrist or physician in a school of optometry in this state
   47  registered by the department of state; or
   48    b. A person  licensed  to  practice  optometry  from  using  a  degree
   49  conferred  in  course after resident study by an educational institution
   50  lawfully authorized by the state in which it is located to confer such a
   51  degree; or
   52    c. An optometrist licensed in another state or country who is employed
   53  on a full-time basis by a registered school of optometry  as  a  faculty
   54  member  with  the  rank of assistant professor or higher from conducting
   55  research and clinical demonstrations as part of such  employment,  under
   56  the  supervision  of  a  licensed optometrist and on the premises of the
       S. 1407                            248                           A. 2107
 
    1  school. No fee may be charged for the practice of  optometry  authorized
    2  by this subdivision.
    3    § 1557. Special  provisions.    1.  The  testimony  and  reports  of a
    4  licensed optometrist shall be received by any official,  board,  commis-
    5  sion or other agency of the state or of any of its subdivisions or muni-
    6  cipalities  as  qualified evidence with respect to any matter defined in
    7  section fifteen hundred fifty-one of this subarticle; and  no  official,
    8  board,  commission,  or other agency of the state or any of its subdivi-
    9  sions or municipalities shall discriminate among  the  practitioners  of
   10  optometry and any other ocular practitioners.
   11    2.  Eyeglasses  or  lenses for the correction of vision may be sold by
   12  any person, firm or corporation at retail, only  on  prescription  of  a
   13  licensed physician or licensed optometrist and only if a licensed physi-
   14  cian,  optometrist  or  ophthalmic  dispenser  is  in  charge  of and in
   15  personal attendance at the place of  sale.  This  subarticle  shall  not
   16  apply  to binoculars, telescopes, or other lenses used for simple magni-
   17  fication; except, that a seller of non-prescription ready-to-wear magni-
   18  fying spectacles or glasses shall have the following  language  attached
   19  to  each pair of glasses or spectacles displayed or offered for sale and
   20  in at least ten point bold type permanently affixed in plain view to the
   21  top of any point of sale display or, if there is no display, in the area
   22  of sale: "ATTENTION;  READY-TO-WEAR  NON-PRESCRIPTION  GLASSES  ARE  NOT
   23  INTENDED  TO  REPLACE PRESCRIBED CORRECTIVE LENSES OR EXAMINATIONS BY AN
   24  EYE CARE PROFESSIONAL.  CONTINUOUS EYE CHECK-UPS ARE NECESSARY TO DETER-
   25  MINE YOUR EYE HEALTH STATUS AND VISION NEEDS." As used in this  subdivi-
   26  sion  "non-prescription, ready to wear magnifying spectacles or glasses"
   27  means spherical convex lenses,  uniform  in  each  meridian,  which  are
   28  encased  in  eyeglass  frames and intended to ameliorate the symptoms of
   29  presbyopia. The lenses in such glasses shall be of uniform  focus  power
   30  in each eye and shall not exceed 2.75 diopters.
   31    3.  It shall be a class A misdemeanor to practice any fraud, deceit or
   32  misrepresentation in any advertising related to optometric services.
   33    § 1558. Advertising of non-prescription ready-to-wear magnifying spec-
   34  tacles or glasses.   1. Any  printed  advertising  for  non-prescription
   35  ready-to-wear  magnifying  spectacles  or glasses to be sold through the
   36  mail  also  shall  include  the  statement,  "ATTENTION;   READY-TO-WEAR
   37  NON-PRESCRIPTION  GLASSES ARE NOT INTENDED TO REPLACE PRESCRIBED CORREC-
   38  TIVE LENSES OR EXAMINATIONS BY AN EYE CARE PROFESSIONAL.  CONTINUOUS EYE
   39  CHECK-UPS ARE NECESSARY TO DETERMINE YOUR EYE HEALTH STATUS  AND  VISION
   40  NEEDS." As used in this section, "non-prescription, ready to wear magni-
   41  fying  spectacles  or glasses" means spherical convex lenses, uniform in
   42  each meridian, which are encased in  eyeglass  frames  and  intended  to
   43  ameliorate  the symptoms of presbyopia. The lenses in such glasses shall
   44  be of uniform focus power in each eye and shall not  exceed  2.75  diop-
   45  ters.
   46    2.  Any  person,  his  or her agent or employee who shall  violate any
   47  provision of this section shall be subject to a  civil  penalty  of  not
   48  less  than  twenty-five  dollars nor more than two hundred fifty dollars
   49  for each violation. For purposes of this section, the sale or offer  for
   50  sale  of  each pair of non-prescription ready-to-wear magnifying specta-
   51  cles or glasses which fail to meet the standards of this  section  shall
   52  constitute a violation.
   53                                 SUBARTICLE 12
 
   54                            OPHTHALMIC DISPENSING
       S. 1407                            249                           A. 2107
 
    1  Section 1600. Introduction.
    2          1601. Definition of practice of ophthalmic dispensing.
    3          1602. Practice   of  ophthalmic  dispensing  and  use  of  title
    4                  "ophthalmic dispenser" or "optician".
    5          1603. State board for ophthalmic dispensing.
    6          1604. Requirements for a professional license.
    7          1605. Exemptions.
    8          1606. Special provisions.
    9          1607. Advertising of non-prescription  ready-to-wear  magnifying
   10                  spectacles or glasses.
   11          1608. Mandatory continuing education.
   12    § 1600. Introduction.  This  subarticle  applies  to the profession of
   13  ophthalmic  dispensing.  The  general  provisions  for  all  professions
   14  contained in subarticle one of this article apply to this subarticle.
   15    § 1601. Definition of practice of ophthalmic dispensing.  The practice
   16  of  the  profession  of ophthalmic dispensing is defined as adapting and
   17  fitting lenses, for the correction of deficiencies, deformities or anom-
   18  alies of the human eyes, on written prescriptions from a licensed physi-
   19  cian or optometrist.  Replacements or duplicates of such lenses  may  be
   20  adapted  and  dispensed  without  prescription.    Contact lenses may be
   21  fitted by an ophthalmic dispenser only under the personal supervision of
   22  a licensed physician or optometrist.
   23    § 1602. Practice of ophthalmic dispensing and use of title "ophthalmic
   24  dispenser" or "optician". Only a person licensed or  exempt  under  this
   25  subarticle or a corporation, partnership or persons doing business under
   26  an assumed name and either composed of licensed ophthalmic dispensers or
   27  employing  licensed  ophthalmic  dispensers  shall  practice  ophthalmic
   28  dispensing or use the title "ophthalmic dispenser", "optician", "optical
   29  technician", "dispensing optician", or "optical dispenser".
   30    § 1603. State board for ophthalmic dispensing.  1. A state  board  for
   31  ophthalmic  dispensing  shall be appointed by the secretary of state for
   32  the purpose of assisting the secretary of state and  the  department  of
   33  state  on  matters of professional licensing and professional conduct in
   34  accordance with section nine hundred twenty-two  of  this  article.  The
   35  board  shall  be  composed  of  not  less than seven licensed ophthalmic
   36  dispensers who shall have been residents of this state  engaged  in  the
   37  practice of ophthalmic dispensing for at least five years in this state.
   38  An  executive secretary to the board shall be appointed by the secretary
   39  of state.
   40    2. For purposes of this subarticle, "board" means the state board  for
   41  ophthalmic dispensing.
   42    § 1604. Requirements  for a professional license.  a. To qualify for a
   43  license as an ophthalmic  dispenser,  an  applicant  shall  fulfill  the
   44  following requirements;
   45    (1) Application: file an application with the department of state;
   46    (2) Education: have received an education, including high school grad-
   47  uation  and completion, in accordance with the regulations of the secre-
   48  tary of state, of either (i) a two-year program in  ophthalmic  dispens-
   49  ing,  or,  (ii)  two  years  of  training  and  experience in ophthalmic
   50  dispensing under the supervision of  a  licensed  ophthalmic  dispenser,
   51  optometrist or physician;
   52    (3)  Experience:  have  experience  satisfactory  to  the board and in
   53  accordance with the regulations of the secretary of state;
   54    (4) Examination: pass an examination satisfactory to the board and  in
   55  accordance with the regulations of the secretary of state;
   56    (5) Age: be at least eighteen years of age;
       S. 1407                            250                           A. 2107
 
    1    (6) Citizenship: meet no requirement as to United States citizenship;
    2    (7) Character: be of good moral character as determined by the depart-
    3  ment of state; and
    4    (8)  Fees:  pay a fee of one hundred fifteen dollars to the department
    5  of state for admission to a department conducted examination and for  an
    6  initial  license,  a fee of forty-five dollars for each reexamination, a
    7  fee of fifty dollars for an initial license for  persons  not  requiring
    8  admission  to  a  department  conducted  examination, and a fee of fifty
    9  dollars for each triennial registration period.
   10    b. A person licensed after July first, nineteen hundred  seventy-three
   11  shall  be permitted to fit contact lenses only if the licensee, in addi-
   12  tion to the requirements of subdivision a of  this  section,  shall  (1)
   13  pass  a separate examination satisfactory to the board and in accordance
   14  with the regulations of the secretary of state; and (2) have the  requi-
   15  site  experience  in  the  fitting of contact lenses satisfactory to the
   16  board and in accordance with the regulations of the secretary of state.
   17    § 1605. Exemptions.  Nothing in this subarticle shall be construed  to
   18  affect or prevent:
   19    a.  An  unlicensed  person from performing merely mechanical work upon
   20  inert matter in an optical office, laboratory or shop; or
   21    b. A student from engaging in clinical practice, under the supervision
   22  of a licensed ophthalmic dispenser or licensed optometrist  or  licensed
   23  physician,  in  an ophthalmic dispensing school or college registered by
   24  the department of state; or
   25    c. The department of state from issuing a limited permit to an  appli-
   26  cant  who meets all requirements for admission to the licensing examina-
   27  tion; provided, however, that:
   28    (1) Practice under a limited permit shall be under the supervision  of
   29  a licensed physician, optometrist or ophthalmic dispenser.
   30    (2)  A  limited permit shall expire after two years, or upon notice to
   31  the applicant that the application for licensure has been denied, or ten
   32  days after notification to the applicant of failure on the  professional
   33  licensing  examination, whichever shall first occur. Notwithstanding the
   34  foregoing provisions of this subdivision, if the  applicant  is  waiting
   35  the  result  of  a licensing examination at the time such limited permit
   36  expires, such permit shall continue to be valid  until  ten  days  after
   37  notification  to  the  applicant  of  the results of such examination. A
   38  limited permit which has not expired as a result of notice of denial  of
   39  licensure  or of failure on the licensing examination may be renewed for
   40  a period of not more than one additional year, upon a showing  satisfac-
   41  tory  to  the  department of state that the applicant could not obtain a
   42  license within two years.
   43    (3) Supervision of a permittee by a licensed physician, optometrist or
   44  ophthalmic dispenser shall be on-site supervision  but  not  necessarily
   45  direct personal supervision.
   46    (4)  The  fee  for  each  limited permit and for each renewal shall be
   47  thirty-five dollars. The fee for issuance of a training permit shall  be
   48  thirty dollars.
   49    § 1606. Special provisions. 1. Eyeglasses or lenses for the correction
   50  of vision may be sold by any person, firm or corporation at retail, only
   51  on prescription of a licensed physician or licensed optometrist and only
   52  if  a  licensed  physician,  optometrist  or  ophthalmic dispenser is in
   53  charge of and in personal attendance at the place of sale. This subarti-
   54  cle shall not apply to binoculars, telescopes, or other lenses used  for
   55  simple  magnification;  except, that a seller of non-prescription ready-
   56  to-wear magnifying  spectacles  or  glasses  shall  have  the  following
       S. 1407                            251                           A. 2107
 
    1  language  attached  to  each  pair of glasses or spectacles displayed or
    2  offered for sale and in at least ten point bold type permanently affixed
    3  in plain view to the top of any point of sale display or, if there is no
    4  display, in the area of sale: "ATTENTION; READY-TO-WEAR NON-PRESCRIPTION
    5  GLASSES  ARE  NOT  INTENDED  TO  REPLACE PRESCRIBED CORRECTIVE LENSES OR
    6  EXAMINATIONS BY AN EYE CARE PROFESSIONAL. CONTINUOUS EYE  CHECK-UPS  ARE
    7  NECESSARY TO DETERMINE YOUR EYE HEALTH STATUS AND VISION NEEDS." As used
    8  in this subdivision, "non-prescription, ready to wear magnifying specta-
    9  cles  or glasses" means spherical convex lenses, uniform in each meridi-
   10  an, which are encased in eyeglass frames and intended to ameliorate  the
   11  symptoms  of  presbyopia. The lenses in such glasses shall be of uniform
   12  focus power in each eye and shall not exceed 2.75 diopters.
   13    2. It shall be a class A misdemeanor to practice any fraud, deceit  or
   14  misrepresentation in any advertising related to ophthalmic dispensing.
   15    § 1607. Advertising of non-prescription ready-to-wear magnifying spec-
   16  tacles  or  glasses.    1.  Any printed advertising for non-prescription
   17  ready-to-wear magnifying spectacles or glasses to be  sold  through  the
   18  mail   also  shall  include  the  statement,  "ATTENTION;  READY-TO-WEAR
   19  NON-PRESCRIPTION GLASSES ARE NOT INTENDED TO REPLACE PRESCRIBED  CORREC-
   20  TIVE LENSES OR EXAMINATIONS BY AN EYE CARE PROFESSIONAL.  CONTINUOUS EYE
   21  CHECK-UPS  ARE  NECESSARY TO DETERMINE YOUR EYE HEALTH STATUS AND VISION
   22  NEEDS." As used in this section, "non-prescription, ready to wear magni-
   23  fying spectacles or glasses" means spherical convex lenses,  uniform  in
   24  each  meridian,  which  are  encased  in eyeglass frames and intended to
   25  ameliorate the symptoms of presbyopia. The lenses in such glasses  shall
   26  be  of  uniform  focus power in each eye and shall not exceed 2.75 diop-
   27  ters.
   28    2. Any person, his or her agent or  employee  who  shall  violate  any
   29  provision  of  this  section  shall be subject to a civil penalty of not
   30  less than twenty-five dollars nor more than two  hundred  fifty  dollars
   31  for  each violation. For purposes of this section, the sale or offer for
   32  sale of each pair of non-prescription ready-to-wear  magnifying  specta-
   33  cles  or  glasses which fail to meet the standards of this section shall
   34  constitute a violation.
   35    § 1608. Mandatory continuing education. 1. (a) Each licensed ophthalm-
   36  ic dispenser required under this subarticle to register triennially with
   37  the department of state to practice in the state shall comply  with  the
   38  provisions of the mandatory continuing education requirements prescribed
   39  in subdivision two of this section except as set forth in paragraphs (b)
   40  and  (c)  of  this subdivision. Ophthalmic dispensers who do not satisfy
   41  the mandatory continuing education requirements shall not practice until
   42  they have met such requirements, and they have been issued  a  registra-
   43  tion certificate, except that an ophthalmic dispenser may practice with-
   44  out  having  met  such requirements if he or she is issued a conditional
   45  registration certificate pursuant to subdivision three of this section.
   46    (b) Ophthalmic dispensers shall be exempt from the mandatory  continu-
   47  ing  education  requirement for the triennial registration period during
   48  which they are first  licensed.  In  accord  with  the  intent  of  this
   49  section,  adjustment  to  the mandatory continuing education requirement
   50  may be granted by the department of state for reasons of  health  certi-
   51  fied  by  an  appropriate  health care professional, for extended active
   52  duty with the armed forces of the United States, or for other good cause
   53  acceptable to the department of state which may prevent compliance.
   54    (c) A licensed ophthalmic dispenser not engaged in practice, as deter-
   55  mined by the department of state, shall be  exempt  from  the  mandatory
   56  continuing education requirement upon the filing of a statement with the
       S. 1407                            252                           A. 2107
 
    1  department  of  state declaring such status. Any licensee who returns to
    2  the practice of ophthalmic dispensing during the triennial  registration
    3  period  shall  notify  the  department  of state prior to reentering the
    4  profession and shall meet such mandatory education requirements as shall
    5  be prescribed by regulations of the secretary of state.
    6    2.  During  each triennial registration period an applicant for regis-
    7  tration as an ophthalmic dispenser shall complete a minimum of  eighteen
    8  hours  of acceptable formal continuing education, as specified in subdi-
    9  vision four of this section; provided that three hours may be in  recog-
   10  nized  areas of study pertinent to the dispensing and fitting of contact
   11  lenses. During each  triennial  registration  period  an  applicant  for
   12  registration  as  an  ophthalmic  dispenser and certified to fit contact
   13  lenses shall complete  twenty  hours  of  acceptable  formal  continuing
   14  education,  as  specified  in subdivision four of this section; provided
   15  that ten hours shall be in recognized areas of study  pertinent  to  the
   16  dispensing and fitting of contact lenses.  A licensee who has not satis-
   17  fied the mandatory continuing education requirements shall not be issued
   18  a  triennial  registration  certificate  by  the department of state and
   19  shall not practice unless and until a conditional  registration  certif-
   20  icate  is  issued  as provided for in subdivision three of this section.
   21  Continuing education hours taken during one triennium may not be  trans-
   22  ferred to a subsequent triennium.
   23    3. The department of state, in its discretion, may issue a conditional
   24  registration  to  a  licensee who fails to meet the continuing education
   25  requirements established in subdivision two  of  this  section  but  who
   26  agrees to make up any deficiencies and complete any additional education
   27  which the department of state may require the fee for such a conditional
   28  registration  shall  be the same as, and in addition to, the fee for the
   29  triennial registration. The duration of  such  conditional  registration
   30  shall  be determined by the department of state but shall not exceed one
   31  year. Any licensee who is notified of the  denial  of  registration  for
   32  failure  to submit evidence, satisfactory to the department of state, of
   33  required continuing education and who practices without  such  registra-
   34  tion,  may  be  subject  to disciplinary proceedings pursuant to section
   35  nine hundred forty-four of this article.
   36    4. As used in subdivision two  of  this  section,  "Acceptable  Formal
   37  Education"  shall  mean  formal  courses of learning which contribute to
   38  professional practice in ophthalmic dispensing and which meet the stand-
   39  ards prescribed by regulations of the secretary of state.   Such  formal
   40  courses  of  learning  shall  include, but not be limited to, collegiate
   41  level credit and non-credit courses. Professional  development  programs
   42  and technical sessions offered by national, state and local professional
   43  associations  and  other  organizations  acceptable to the department of
   44  state, and  any  other  organized  educational  and  technical  programs
   45  acceptable  to  the  department.  The  department  of  state may, in its
   46  discretion and as needed to contribute to the health and welfare of  the
   47  public,  require  the  completion  of  continuing  education  courses in
   48  specific  subjects  to  fulfill  this  mandatory  continuing   education
   49  requirement.  Courses  must  be  taken  from  a  sponsor approved by the
   50  department of state, pursuant to the regulations  of  the  secretary  of
   51  state.
   52    5.  Ophthalmic  dispensers  shall  maintain  adequate documentation of
   53  completion of acceptable formal continuing education and  shall  provide
   54  such  documentation  at the request of the department of state.  Failure
   55  to provide such documentation upon the  request  of  the  department  of
       S. 1407                            253                           A. 2107
 
    1  state  shall be an act of misconduct subject to disciplinary proceedings
    2  pursuant to section nine hundred forty-four of this article.
    3    6. The mandatory continuing education fee shall be forty-five dollars,
    4  shall  be payable on or before the first day of each triennial registra-
    5  tion period, and shall be paid in addition to the triennial registration
    6  fee required by section sixteen hundred four of this subarticle.
    7                                 SUBARTICLE 13
 
    8                       ENGINEERING AND LAND SURVEYING
 
    9  Section  1650.    Introduction.
   10           1651.    Definition of practice of engineering.
   11           1652.    Practice of engineering and use of title "professional
   12                      engineer".
   13           1653.    Definition of practice of land surveying.
   14           1654.    Practice of land surveying  and  use  of  title  "land
   15                      surveyor".
   16           1655.    State board for engineering and land surveying.
   17           1656.    Requirements for a license as professional engineer.
   18           1657.    Requirements  for  a  license  as  a professional land
   19                      surveyor.
   20           1658.    Limited permits.
   21           1659.    Exempt persons.
   22           1660.    Special provisions.
   23           1661.    Certificates of authorization.
   24           1662.    Mandatory continuing education for land surveyors.
   25           1663.    Mandatory continuing education for professional  engi-
   26                      neers.
   27    § 1650. Introduction.    This subarticle applies to the professions of
   28  engineering  and  land  surveying.    The  general  provisions  for  all
   29  professions  contained  in  subarticle one of this article apply to this
   30  subarticle.
   31    § 1651. Definition of practice of engineering.   The practice  of  the
   32  profession  of engineering is defined as performing professional service
   33  such as consultation, investigation,  evaluation,  planning,  design  or
   34  supervision  of  construction or operation in connection with any utili-
   35  ties, structures, buildings, machines, equipment, processes,  works,  or
   36  projects  wherein  the  safeguarding  of  life,  health  and property is
   37  concerned, when such service or work requires the application  of  engi-
   38  neering principles and data.
   39    § 1652. Practice  of  engineering and use of title "professional engi-
   40  neer".  Only a person licensed or otherwise authorized under this subar-
   41  ticle shall practice engineering or use the  title  "professional  engi-
   42  neer".
   43    § 1653. Definition of practice of land surveying.  The practice of the
   44  profession of land surveying is defined as practicing that branch of the
   45  engineering  profession and applied mathematics which includes the meas-
   46  uring and plotting of the dimensions and areas of  any  portion  of  the
   47  earth,  including  all  naturally placed and man- or machine-made struc-
   48  tures and objects thereon, the lengths and directions of boundary lines,
   49  the contour of the surface and the application of rules and  regulations
   50  in accordance with local requirements incidental to subdivisions for the
   51  correct  determination,  description, conveying and recording thereof or
   52  for the establishment or reestablishment thereof.
       S. 1407                            254                           A. 2107
 
    1    § 1654. Practice of land surveying and use of title  "land  surveyor".
    2  Only  a  person  licensed  or otherwise authorized under this subarticle
    3  shall practice land surveying or use the title "land surveyor".
    4    § 1655. State  board  for  engineering and land surveying. 1.  A state
    5  board for engineering and land  surveying  shall  be  appointed  by  the
    6  secretary  of  state for the purpose of assisting the secretary of state
    7  and the department of state on matters  of  professional  licensing  and
    8  professional  conduct in accordance with section nine hundred twenty-two
    9  of this article.  The board shall be composed of  not  less  than  seven
   10  professional  engineers and not less than two land surveyors licensed in
   11  this state.  An executive secretary to the board shall be  appointed  by
   12  the  secretary  of  state  and  shall be a professional engineer or land
   13  surveyor licensed in this state.
   14    2. For purposes of this subarticle "board" means the state  board  for
   15  engineering and land surveying.
   16    § 1656. Requirements  for a license as a professional engineer.  1. To
   17  qualify for a license as a  professional  engineer  an  applicant  shall
   18  fulfill the following requirements:
   19    (1) Application: file an application with the department of state;
   20    (2)  Education:  have received an education, including a bachelor's or
   21  higher degree based on a program in engineering, in accordance with  the
   22  regulations of the secretary of state;
   23    (3)  Experience:  have at least four years in work satisfactory to the
   24  board, provided that the board may accept study  beyond  the  bachelor's
   25  degree in partial fulfillment of this requirement;
   26    (4)  Examination: pass an examination satisfactory to the board and in
   27  accordance with the regulations of the secretary of state;
   28    (5) Age: be at least twenty-one years of age;
   29    (6) Citizenship or immigration status: be a United States  citizen  or
   30  an alien lawfully admitted for permanent residence in the United States;
   31    (7) Character: be of good moral character as determined by the depart-
   32  ment; and
   33    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   34  state  for  admission  to  a department conducted examination and for an
   35  initial license, a fee of one hundred fifteen dollars for  each  reexam-
   36  ination, a fee of one hundred thirty-five dollars for an initial license
   37  for  persons  not requiring admission to a department conducted examina-
   38  tion, and a fee of two hundred ten dollars for each triennial  registra-
   39  tion period.
   40    2.  In  lieu  of  the  degree and experience requirements specified in
   41  paragraphs two and three of subdivision  one  of  this  section,  twelve
   42  years  of  practical experience in work satisfactory to the board may be
   43  accepted, provided that each full year of college study  in  engineering
   44  satisfactory  to  the  department  of state may at the discretion of the
   45  board be accepted in lieu of two years of the required twelve  years  of
   46  experience.
   47    3.  For  an  identification card as an "intern engineer", an applicant
   48  shall fulfill the requirements  of  subdivision  one  of  this  section,
   49  except  those  in  paragraphs three and five, provided that admission to
   50  the examination may be given when the applicant is within twenty credits
   51  of the completion of the  requirements  for  the  bachelor's  or  higher
   52  degree  as  prescribed  in  paragraph  two  of  subdivision  one, or has
   53  completed the practical experience requirement  of  subdivision  two  of
   54  this  section.  The  fee  for  examination and identification card as an
   55  "intern engineer" shall be seventy dollars and the fee for each  reexam-
   56  ination shall be seventy dollars.
       S. 1407                            255                           A. 2107
 
    1    4.  On  recommendation of the board, the department of state may waive
    2  specific requirements, except as to age, character, education and  citi-
    3  zenship,  in the case of applicants who are possessed of established and
    4  recognized standing in the engineering profession and who have practiced
    5  lawfully for more than fifteen years.
    6    § 1657. Requirements  for  a  license as a professional land surveyor.
    7  1. To qualify for a license as a professional land surveyor,  an  appli-
    8  cant shall fulfill the following requirements:
    9    (1) Application: file an application with the department of state;
   10    (2)  Education:  have received an education, including a bachelor's or
   11  higher degree based on a program in land surveying, in  accordance  with
   12  the commissioner's regulations;
   13    (3)  Experience:  (a)  If  the  applicant  has  a bachelor's or higher
   14  degree, have at least four years in  work  satisfactory  to  the  board,
   15  provided that the board may accept study beyond the bachelor's degree in
   16  partial  fulfillment of this requirement; or (b) If the applicant has an
   17  associate's degree, have at least six years in work satisfactory to  the
   18  board  provided  that  the board may accept study beyond the associate's
   19  degree in partial fulfillment of this requirement;
   20    (4) Examination: pass an examination satisfactory to the board and  in
   21  accordance with the regulations of the secretary of state;
   22    (5) Age: be at least twenty-one years of age;
   23    (6)  Citizenship  or immigration status: be a United States citizen or
   24  an alien lawfully admitted for permanent residence in the United States;
   25    (7) Character: be of good moral character as determined by the depart-
   26  ment of state; and
   27    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   28  state for admission to a department conducted  examination  and  for  an
   29  initial  license,  a fee of one hundred fifteen dollars for each reexam-
   30  ination, a fee of one hundred thirty-five dollars for an initial license
   31  for persons not requiring admission to department conducted examination,
   32  and a fee of two hundred ten dollars  for  each  triennial  registration
   33  period.
   34    2.  In  lieu  of  the  degree and experience requirements specified in
   35  paragraphs two and three of subdivision one of this section, eight years
   36  of practical experience  in  work  satisfactory  to  the  board  may  be
   37  accepted,  provided  that each full year of college study in engineering
   38  or land surveying satisfactory to the department may at  the  discretion
   39  of the board be accepted in lieu of one year of the required eight years
   40  of experience.
   41    3.  For an identification card as an "intern land surveyor", an appli-
   42  cant shall fulfill the requirements of subdivision one of this  section,
   43  except  those  in  paragraphs three and five, provided that admission to
   44  the examination may be given when the applicant is within twenty credits
   45  of the completion of the  requirements  for  the  bachelor's  or  higher
   46  degree  as  prescribed  in  paragraph  two  of  subdivision  one, or has
   47  completed the practical experience requirement  of  subdivision  two  of
   48  this  section.  The  fee  for  examination and identification card as an
   49  "intern land surveyor" shall be seventy dollars and  the  fee  for  each
   50  reexamination shall be seventy dollars.
   51    § 1658. Limited  permits.    1.  On  recommendation  of the board, the
   52  department of state may issue a limited permit to  practice  engineering
   53  to  an  engineer  not a resident of this state and having no established
   54  place of practice in this state who is legally qualified to practice  as
   55  such  in  his  or  her own country or state and who submits satisfactory
   56  evidence of established and recognized professional standing in his  own
       S. 1407                            256                           A. 2107
 
    1  country or state and who submits satisfactory certifications as to char-
    2  acter  and  qualifications from at least two licensed professional engi-
    3  neers, one of whom shall be a  resident  of  this  state.  Such  limited
    4  permit  shall  be  issued solely in connection with the specific project
    5  for which such limited permit is granted.
    6    2. A limited permit to practice as a  professional  engineer  or  land
    7  surveyor  in  this  state  may be issued by the department of state to a
    8  person not a resident in this state and having no established  place  of
    9  practice  in this state, when such practice does not aggregate more than
   10  thirty days in any calendar year, provided that such person  is  legally
   11  qualified  to  practice  in his or her own state or country. The limited
   12  permit authorizing such right to practice in this  state  shall  specify
   13  the dates within the calendar year when such right may be exercised.
   14    3.  Fees.  The  fee  for each limited permit shall be one hundred five
   15  dollars.
   16    § 1659. Exempt persons.   This subarticle shall not  be  construed  to
   17  affect  or  prevent the following, provided that no title, sign, card or
   18  device shall be used in such manner as to tend to convey the  impression
   19  that  the  person rendering such service is a professional engineer or a
   20  land surveyor licensed in this state or  is  practicing  engineering  or
   21  land surveying:
   22    a.  Offering  to  practice in this state as a professional engineer or
   23  land surveyor by any person not a resident of, and having no established
   24  place of practice in this state, provided that such  person  is  legally
   25  qualified for such practice in his own state or country;
   26    b.  Practice as a professional engineer or land surveyor in this state
   27  by any person not a resident, or having no established place of practice
   28  in this state, or any person resident in this state but who has  arrived
   29  in  this state within six months, provided, however, such a person shall
   30  have filed an application for license as a professional engineer or land
   31  surveyor, and is legally qualified for such practice  in  the  state  or
   32  country  in  which he or she resides or has his or her place of practice
   33  or in which he or she had his or her  previous  residence  or  place  of
   34  practice, such exemption continuing for only such reasonable time as the
   35  board  requires  to  grant  or  deny  the application for license, and a
   36  person intending to practice under this subdivision shall  so  state  on
   37  the application;
   38    c.  Practice  of  engineering  or  land surveying, by an employee of a
   39  county or town, in the construction, improvement  or  maintenance  of  a
   40  county  road  or town highway, or by an employee of a county, city, town
   41  or village, in the  construction,  improvement  or  maintenance  of  any
   42  public  work  wherein  the  contemplated  expenditure  for the completed
   43  project does not exceed five thousand dollars;
   44    d. Operation or maintenance of steam, power, or  refrigeration  plants
   45  by  legally  authorized  persons  not  licensed under this subarticle or
   46  persons engaged or employed as an engine man, operator or driver of  any
   47  engine  or  of  any  mechanical, electrical, chemical or other device or
   48  machine;
   49    e. Making of surveys by professional engineers, except that the deter-
   50  mination of real property boundaries may be done only by a licensed land
   51  surveyor;
   52    f. Employment or supervision of interns or other persons qualified  by
   53  education  or  experience by professional engineers or land surveyors as
   54  assistants in the performance of engineering or land  surveying,  or  as
   55  consultants  or  employees in special fields related to but not uniquely
   56  engineering or land surveying,  provided  that  the  engineers  or  land
       S. 1407                            257                           A. 2107
 
    1  surveyors employing or supervising such persons shall not be relieved of
    2  any  responsibility  whatsoever  by  delegation  to  such  persons,  and
    3  provided further that such persons  who  have  attained  the  bachelor's
    4  level  of studies in accordance with the requirements of section sixteen
    5  hundred fifty-six or sixteen hundred fifty-seven of this  subarticle  of
    6  this title may be employed as junior or assistant engineers or junior or
    7  assistant  land  surveyors,  or similar titles, to act under the general
    8  direction of a professional engineer or land surveyor, or  in  work  not
    9  covered by this subarticle;
   10    g.  Employment  of  any  person  as  a junior or assistant engineer or
   11  junior or assistant land surveyor in the civil service of the  state  or
   12  its political subdivisions in a position the title of which was approved
   13  and in use as of July first, nineteen hundred seventy-one, provided such
   14  person acts under the general direction of a licensed professional engi-
   15  neer or land surveyor;
   16    h.  Execution  by  a  contractor  or  by  others of work designed by a
   17  professional engineer, or land surveyor, or the superintendence of  such
   18  work as a superintendent, foreman, or inspector;
   19    i.  The  practice  of  architecture  by  an architect licensed in this
   20  state, or the practice of landscape architecture by a  landscape  archi-
   21  tect  licensed  in  this state, provided that no such architect or land-
   22  scape architect shall use the designation  "engineer"  or  "engineering"
   23  unless licensed as a professional engineer in this state;
   24    j.  The  practice of engineering or land surveying or having the title
   25  "engineer" or "surveyor" solely as an officer or an employee of a corpo-
   26  ration engaged in interstate commerce;
   27    k. The practice of engineering by a manufacturing  corporation  or  by
   28  employees  of  such  corporation, or use of the title "engineer" by such
   29  employees, in connection with or incidental to  goods  produced  by,  or
   30  sold by, or nonengineering services rendered by, such corporation or its
   31  manufacturing affiliates;
   32    l.  The  practice of engineering or land surveying, or using the title
   33  "engineer" or "surveyor" exclusively as an  officer  or  employee  of  a
   34  public  service  corporation  by  rendering  to  such  corporation  such
   35  services in connection with its lines and property which are subject  to
   36  supervision  with  respect  to  the  safety  and security thereof by the
   37  public service commission of this state, the interstate commerce commis-
   38  sion or other federal regulatory body and so long as such person is thus
   39  actually and exclusively employed and no longer;
   40    m. The making of land surveys by a professional  engineer  where  such
   41  land surveys are essential to engineering projects;
   42    n.  The  design by a land surveyor of roads, drainage, water supply or
   43  sanitary sewerage facilities of a minor nature in connection with subdi-
   44  visions and the extension and  inspection  thereof,  but  not  including
   45  sewage  disposal  or  treatment plants, lift stations, pumping stations,
   46  commercial buildings or bridges; or
   47    o. Using the title "marine operating engineer", "stationary engineer",
   48  "port of customs surveyor", or "ship surveyor".
   49    p. Contractors or builders from engaging  in  construction  management
   50  and administration of construction contracts.
   51    § 1660. Special  provisions.  1. Every professional engineer and every
   52  land surveyor shall have a seal, approved  by  the  board,  which  shall
   53  contain  the  name  of the professional engineer and the words "Licensed
   54  Professional Engineer" or the name of the land surveyor  and  the  words
   55  "Licensed  Land  Surveyor"  and such other words or figures as the board
   56  may deem necessary.  All plans, specifications, plats and reports relat-
       S. 1407                            258                           A. 2107
 
    1  ing to  the  construction  or  alteration  of  buildings  or  structures
    2  prepared  by  such  professional engineer and all plans, specifications,
    3  plats and reports prepared by such land surveyor or by  a  full-time  or
    4  part-time  subordinate under his supervision, shall be stamped with such
    5  seal and shall also be signed, on the original with the personal  signa-
    6  ture  of  such  professional  engineer  or land surveyor when filed with
    7  public officials. No official of this state, or  of  any  city,  county,
    8  town  or  village  therein,  charged with the enforcement of laws, ordi-
    9  nances or regulations shall accept or approve any  plans  or  specifica-
   10  tions that are not stamped:
   11    a.  With  the  seal  of  an architect or professional engineer or land
   12  surveyor licensed in this state and bearing the authorized facsimile  of
   13  the  signature  of  such  architect  or  professional  engineer  or land
   14  surveyor, or
   15    b. With the official seal and authorized facsimile of the signature of
   16  a professional engineer or land surveyor not a resident  of  this  state
   17  and  having  no  established  business in this state, but who is legally
   18  qualified to practice as such in  his  or  her  own  state  or  country,
   19  provided  that  such person may lawfully practice as such in this state,
   20  and provided further that the plans or specifications are accompanied by
   21  and have attached thereto written authorization issued by the department
   22  of state certifying to such right to practice at such time.
   23    2. To all plans, specifications, plats and reports to which  the  seal
   24  of  a  professional  engineer  or  land surveyor has been applied, there
   25  shall also be applied a stamp with appropriate wording warning  that  it
   26  is  a  violation  of this law for any person, unless he or she is acting
   27  under  the  direction  of  a  licensed  professional  engineer  or  land
   28  surveyor, to alter an item in any way. If an item bearing the seal of an
   29  engineer  or  land  surveyor  is  altered, the altering engineer or land
   30  surveyor shall affix to the item  his  or  her  seal  and  the  notation
   31  "altered  by"  followed  by  his  or  her signature and the date of such
   32  alteration, and a specific description of the alteration.
   33    3. No county, city, town or village or other political subdivision  of
   34  this state shall engage in the construction or maintenance of any public
   35  work involving engineering or land surveying for which plans, specifica-
   36  tions  and  estimates  have  not  been made by, and the construction and
   37  maintenance supervised by, a professional  engineer  or  land  surveyor;
   38  provided that this section shall not apply to the construction, improve-
   39  ment  or  maintenance of county roads or town highways, nor to any other
   40  public works wherein the  contemplated  expenditure  for  the  completed
   41  project does not exceed five thousand dollars. This section shall not be
   42  construed  as  affecting or preventing any county, city, town or village
   43  or other political subdivision of this state from engaging an  architect
   44  licensed  in this state for the preparation of plans, specifications and
   45  estimates for and the supervision  of  construction  or  maintenance  of
   46  public works.
   47    4. Engineers, land surveyors, architects, and landscape architects may
   48  join  in  the  formation  of  a  joint enterprise, or a partnership or a
   49  professional service corporation or may form any desired combination  of
   50  such  professions  and may use in the name of such corporation the title
   51  of any of the professions which will be practiced.  After  the  name  of
   52  each member his or her profession shall be indicated.
   53    5.  A  firm name may be continued by employees having at least fifteen
   54  years of continuous service if the retired members and  legal  represen-
   55  tatives of deceased members consent to such continuance.
       S. 1407                            259                           A. 2107
 
    1    6.   It shall be lawful for a corporation organized and existing under
    2  the laws of the state of New York which on the fifteenth day  of  April,
    3  nineteen  hundred  thirty-five and continuously thereafter, was lawfully
    4  practicing engineering or land surveying in New York state, to  continue
    5  such  practice  provided  that  the  chief  executive officer shall be a
    6  professional engineer licensed under this article, if  practicing  engi-
    7  neering,  or a land surveyor licensed under this subarticle, if practic-
    8  ing land surveying, and provided further  that  the  person  or  persons
    9  carrying  on  the  actual practice of engineering or surveying on behalf
   10  of, or designated as "engineer" or "surveyor", with or without  qualify-
   11  ing  or  characterizing word, by such corporation shall be authorized to
   12  practice engineering or land surveying as provided in  this  subarticle.
   13  It shall be lawful for a corporation which, on account of or as a result
   14  of  requirements,  restrictions or provisions of federal law, was organ-
   15  ized subsequent to April fifteenth, nineteen hundred thirty-five for the
   16  purpose of taking over an existing engineering organization  established
   17  prior  to  such  time  and  which  has  taken over such organization and
   18  continued its engineering activities, provided that the chief  executive
   19  officer  of  such  corporation shall be a professional engineer licensed
   20  under this subarticle and provided further, that the person  or  persons
   21  carrying  on  the actual practice of engineering on behalf of, or desig-
   22  nated as "engineer", with or without qualifying or characterizing  word,
   23  by  such  corporation,  shall  be  authorized to practice engineering as
   24  provided in this subarticle.  No such corporation shall change its  name
   25  or  sell  its  franchise  or  transfer its corporate rights, directly or
   26  indirectly to any person, firm or corporation without the consent of the
   27  department of state.   Each such corporation shall  obtain  a  triennial
   28  registration on payment of a fee of fifty dollars.
   29    7. Nothing in this subarticle shall be construed to apply:
   30    a.  To  the  preparation  or  execution of designs, drawings, plans or
   31  specifications for the construction or  installation  of  machinery,  or
   32  apparatus  constructed  or  installed  by the corporation preparing such
   33  designs, drawings, plans or specifications if  the  supervision  of  the
   34  preparation  of  any  such  designs,  drawings, plans or specifications,
   35  construction or installation is done under the general  direction  of  a
   36  professional  engineer  or land surveyor licensed under this subarticle;
   37  or
   38    b. To alterations to any building or structure  costing  ten  thousand
   39  dollars  or  less  which do not involve changes affecting the structural
   40  safety or public safety thereof nor to farm buildings, including  barns,
   41  sheds,  poultry  houses and other buildings used directly and solely for
   42  agricultural purposes; nor to residence buildings of gross floor area of
   43  fifteen hundred square feet or less, not  including  garages,  carports,
   44  porches, cellars, or uninhabitable basements or attics.
   45    8.  Nothing  in this subarticle shall prohibit a corporation organized
   46  and existing prior to the fifteenth day of April, nineteen hundred thir-
   47  ty-five under the laws of any state other than the state  of  New  York,
   48  the  name  of  which  includes  the  word  "engineers", from obtaining a
   49  certificate of authority to do  business  in  the  state  of  New  York,
   50  provided that the business proposed to be done by such corporation with-
   51  in  this  state,  as set forth in the statement and designation provided
   52  for by section thirteen hundred four of the  business  corporation  law,
   53  shall  not include the practice within this state of engineering or land
   54  surveying.
   55    § 1661. Certificates of authorization.  1. Domestic or foreign profes-
   56  sional service  corporations,  professional  service  limited  liability
       S. 1407                            260                           A. 2107
 
    1  companies,  foreign  professional  service  limited liability companies,
    2  registered limited liability partnerships, New York  registered  foreign
    3  limited liability partnerships, partnerships and joint enterprises spec-
    4  ified  in  subdivision  four  of  section  sixteen hundred sixty of this
    5  subarticle, provided each of the foregoing  entities  is  authorized  to
    6  provide  professional engineering or land surveying services and general
    7  business corporations authorized to provide professional engineering  or
    8  land  surveying  services pursuant to subdivision six of section sixteen
    9  hundred sixty of this subarticle may offer to provide or provide profes-
   10  sional engineering or land surveying services  only  after  obtaining  a
   11  certificate  of  authorization  from the department of state.  Except as
   12  otherwise authorized by statute,  rule  or  regulation,  other  business
   13  entities are not authorized to offer or provide professional engineering
   14  or  land  surveying services and may not obtain certificates of authori-
   15  zation provided that nothing contained herein shall prohibit an individ-
   16  ual who is licensed to practice professional engineering or land survey-
   17  ing under this subarticle from obtaining a certificate of  authorization
   18  upon  application and payment of the appropriate fees provided for under
   19  this section.
   20    2. Upon application a certificate of authorization shall be issued  by
   21  the  department  of  state  to  all  individuals,  corporations, limited
   22  liability companies, limited liability  partnerships,  partnerships  and
   23  joint enterprises specified in subdivision one of this section and which
   24  are  authorized  to  provide  professional engineering or land surveying
   25  services and pay the appropriate fee.
   26    3. A "certificate of authorization" shall authorize  such  individual,
   27  corporation,  limited  liability company, limited liability partnership,
   28  partnership or joint enterprise to provide professional  engineering  or
   29  land  surveying  services  for  three  years  from  the date of issuance
   30  subject to, as otherwise prescribed  by  law,  the  supervision  of  the
   31  regents  of  the university of the state of New York including the power
   32  to discipline and impose penalties in the same manner and  to  the  same
   33  extent as is provided with respect to individuals and their licenses and
   34  registration pursuant to this article.
   35    4.  An  application,  triennial  renewal,  delinquent  or  replacement
   36  certificate  fee  must  accompany  the  "certificate  of  authorization"
   37  request in the amount shown below. A business entity that fails to renew
   38  its  certificate  of  authorization  before the expiration date shall be
   39  required to pay the additional delinquent fee for  late  filing  of  ten
   40  dollars for each full month it has practiced after the expiration of its
   41  certificate of authorization.
   42    Application fee and first triennial certificate of authorization  -
   43    $125.00;
   44    Triennial renewal fee - $75.00;
   45    Delinquent fee - $10.00 per month of practice without a certificate of
   46    authorization;
   47    Replacement certificate fee - $10.00.
   48    All  checks shall be made payable to the department of state, state of
   49  New York and submitted to the department of state.  If a business enter-
   50  prise is not eligible to receive a "certificate of  authorization",  the
   51  fee will be retained to cover the costs of processing. Triennial renewal
   52  fees  for  all "certificates of authorization" are due and payable on or
   53  before the filing date of each triennial registration period.
   54    5. The department of state shall compile a registry of the holders  of
   55  all  certificates of authorization. Such registry shall include the name
   56  and address of all registrants, state whether a certificate of  authori-
       S. 1407                            261                           A. 2107
 
    1  zation  has  been  issued,  denied,  suspended, or revoked, and disclose
    2  whether the certificate is current or expired. Access  to  the  registry
    3  shall  be made available electronically without cost. A record search of
    4  the registry may be obtained in person or by mail provided that a fee of
    5  ten dollars shall be paid for each putative registrant.
    6     §  1662.  Mandatory  continuing  education for land surveyors. 1. (a)
    7  Each licensed land surveyor required under this subarticle  to  register
    8  triennially  with the department of state to practice in the state shall
    9  comply  with  the  provisions  of  the  mandatory  continuing  education
   10  requirements prescribed in subdivision two of this section except as set
   11  forth  in paragraphs (b) and (c) of this subdivision. Land surveyors who
   12  do not satisfy the mandatory continuing education requirements shall not
   13  practice until they have met such requirements, and have been  issued  a
   14  registration certificate, except that a land surveyor may practice with-
   15  out  having  met  such requirements if he or she is issued a conditional
   16  registration certificate pursuant to subdivision three of this section.
   17    (b) In accord with the intent  of  this  section,  adjustment  to  the
   18  mandatory continuing education requirement may be granted by the depart-
   19  ment  for  reasons  of  health  certified  by an appropriate health care
   20  professional, for extended active duty with  the  armed  forces  of  the
   21  United  States,  or for other good cause acceptable to the department of
   22  state which may prevent compliance.
   23    (c) A licensed land surveyor not engaged in practice as determined  by
   24  the  department  of state, shall be exempt from the mandatory continuing
   25  education requirement upon the filing of a statement with the department
   26  declaring such status. Any licensee who returns to the practice of  land
   27  surveying  during  the  triennial  registration  period shall notify the
   28  department prior to reentering the profession and shall meet such manda-
   29  tory education requirements as shall be prescribed by regulations of the
   30  secretary of state.
   31    2. During each triennial registration period an applicant  for  regis-
   32  tration  shall  complete  a  minimum  of twenty-four hours of acceptable
   33  continuing education, as specified in subdivision four of this  section,
   34  provided,  however,  that  a minimum of sixteen hours of such continuing
   35  education shall  consist  of  courses  in  land  surveying  and  related
   36  subjects,  provided  that  no  more than eight of said twenty-four hours
   37  shall consist of self-study  courses.  Any  land  surveyor  whose  first
   38  registration  date  following  the effective date of this section occurs
   39  less than three years from such effective date, but on or after  January
   40  first, two thousand five, shall complete continuing education hours on a
   41  prorated  basis  at the rate of one hour per month for the period begin-
   42  ning January first, two thousand four up to the first registration  date
   43  thereafter.  A  licensee  who has not satisfied the mandatory continuing
   44  education requirements shall not  be  issued  a  triennial  registration
   45  certificate by the department of state and shall not practice unless and
   46  until  a  conditional registration certificate is issued as provided for
   47  in subdivision three of this section. Continuing education  hours  taken
   48  during one triennium may not be transferred to a subsequent triennium.
   49    3. The department of state, in its discretion, may issue a conditional
   50  registration  to  a  licensee who fails to meet the continuing education
   51  requirements established in subdivision two  of  this  section  but  who
   52  agrees to make up any deficiencies and complete any additional education
   53  which  the department may require. The fee for such a conditional regis-
   54  tration shall be the same as, and in addition to, the fee for the trien-
   55  nial registration. The duration of such conditional  registration  shall
   56  be  determined by the department of state but shall not exceed one year.
       S. 1407                            262                           A. 2107
 
    1  Any licensee who is notified of the denial of registration  for  failure
    2  to submit evidence, satisfactory to the department of state, of required
    3  continuing  education  and  who  practices  land  surveying without such
    4  registration,  shall  be subject to disciplinary proceedings pursuant to
    5  section nine hundred forty-four of this article.
    6    4. As used in subdivision two of this section, "acceptable  continuing
    7  education"  shall  mean  courses  of learning and other activities which
    8  contribute to the profession or practice of  land  surveying  and  which
    9  meet the regulations of the secretary of state.  The department of state
   10  may,  in  its  discretion  and as needed to contribute to the health and
   11  welfare of the public, require the completion  of  continuing  education
   12  courses  in  specific  subjects.  Such courses of learning must be taken
   13  from a sponsor approved by the department, pursuant  to  regulations  of
   14  the secretary of state.
   15    5.  Land surveyors shall maintain adequate documentation of completion
   16  of acceptable continuing education and shall provide such  documentation
   17  at the request of the department of state.
   18    6.  The mandatory continuing education fee shall be forty-five dollars
   19  and shall be payable on or before the first day of each triennial regis-
   20  tration period, and shall be paid in addition to the triennial registra-
   21  tion fee required by paragraph  eight  of  subdivision  one  of  section
   22  sixteen hundred fifty-seven of this subarticle.
   23     § 1663. Mandatory continuing education for professional engineers. 1.
   24  (a)  Each  licensed professional engineer required under this subarticle
   25  to register triennially with the department of state to practice in this
   26  state shall comply with provisions of the mandatory continuing education
   27  requirements prescribed in subdivision two of this section except as set
   28  forth in paragraphs (b) and (c) of this subdivision. Professional  engi-
   29  neers who do not satisfy the mandatory continuing education requirements
   30  shall  not practice until they have met such requirements, and have been
   31  issued a registration certificate, except that a  professional  engineer
   32  may practice without having met such requirements if he or she is issued
   33  a  conditional registration certificate pursuant to subdivision three of
   34  this section.
   35    (b) Professional engineers shall be exempt from the mandatory continu-
   36  ing education requirement for the triennial registration  period  during
   37  which  they  are  first  licensed. In accordance with the intent of this
   38  section, adjustment to the mandatory  continuing  education  requirement
   39  may  be  granted by the department of state for reasons of health certi-
   40  fied by an appropriate health care  professional,  for  extended  active
   41  duty with the armed forces of the United States, or for other good cause
   42  acceptable to the department of state which may prevent compliance.
   43    (c) A licensed professional engineer not engaged in practice as deter-
   44  mined  by  the  department  of state, shall be exempt from the mandatory
   45  continuing education requirement upon the filing of a statement with the
   46  department of state declaring such status. Any licensee who  returns  to
   47  the  practice of professional engineering during the triennial registra-
   48  tion period shall notify the department of state prior to reentering the
   49  profession and shall meet such mandatory education requirements as shall
   50  be prescribed by regulations of the secretary of state.
   51    (d) Professional engineers directly employed on a full time  basis  by
   52  the  state of New York, its agencies, public authorities, public benefit
   53  corporations or local governmental units prior  to  January  first,  two
   54  thousand  four  and who are represented by a collective bargaining unit,
   55  at all times when so employed shall be  deemed  to  have  satisfied  the
   56  continuing education requirements of this section, provided however that
       S. 1407                            263                           A. 2107
 
    1  any  such  licensees  who thereafter leave such employment and enter the
    2  practice of professional engineering in other capacities in New York, or
    3  otherwise engage in such practice, shall  satisfy  the  requirements  of
    4  this section in such manner as shall be prescribed by regulations of the
    5  secretary of state.
    6    2.  During  each triennial registration period an applicant for regis-
    7  tration shall complete a  minimum  of  thirty-six  hours  of  acceptable
    8  continuing  education, as specified in subdivision four of this section,
    9  provided that no more than eighteen hours of such  continuing  education
   10  may  consist  of  non-course activities. Any professional engineer whose
   11  first registration date following the effective  date  of  this  section
   12  occurs  less  than three years from such effective date, but on or after
   13  January first, two thousand five, shall  complete  continuing  education
   14  hours  on  a  prorated  basis  at the rate of one hour per month for the
   15  period beginning January first, two thousand four up to the first regis-
   16  tration date thereafter. A licensee who has not satisfied the  mandatory
   17  continuing education requirements shall not be issued a triennial regis-
   18  tration  certificate  by  the department of state and shall not practice
   19  unless and until a conditional registration  certificate  is  issued  as
   20  provided for in subdivision three of this section. With the exception of
   21  continuing  education  hours  taken during the registration period imme-
   22  diately preceding the effective date of this section, continuing  educa-
   23  tion hours taken during one triennium may not be transferred to a subse-
   24  quent triennium.
   25    3. The department of state, in its discretion, may issue a conditional
   26  registration  to  a  licensee who fails to meet the continuing education
   27  requirements established in subdivision two  of  this  section  but  who
   28  agrees to make up any deficiencies and complete any additional education
   29  which  the department may require. The fee for such a conditional regis-
   30  tration shall be the same as, and in addition to, the fee for the trien-
   31  nial registration. The duration of such conditional  registration  shall
   32  be  determined by the department of state but shall not exceed one year.
   33  Any licensee who is notified of the denial of registration  for  failure
   34  to submit evidence, satisfactory to the department, of required continu-
   35  ing  education  and  who practices professional engineering without such
   36  registration, may be subject to  disciplinary  proceedings  pursuant  to
   37  section nine hundred forty-four of this article.
   38    4.  As used in subdivision two of this section, "acceptable continuing
   39  education" shall mean courses of  learning  and  educational  activities
   40  which  contribute  to  professional practice in professional engineering
   41  and which meet the standards prescribed by regulations of the  secretary
   42  of  state.  The department of state may, in its discretion and as needed
   43  to contribute to the health and  welfare  of  the  public,  require  the
   44  completion of continuing education courses in specific subjects.
   45    5.  Professional  engineers  shall  maintain adequate documentation of
   46  completion of acceptable continuing education and educational activities
   47  and shall provide such documentation at the request of the department of
   48  state.
   49    6. The mandatory continuing education fee shall be forty-five dollars,
   50  shall be payable on or before the first day of each triennial  registra-
   51  tion period, and shall be paid in addition to the triennial registration
   52  fee required by section sixteen hundred fifty-six of this subarticle.
   53                                 SUBARTICLE 14
 
   54                                ARCHITECTURE
       S. 1407                            264                           A. 2107
 
    1  Section  1700. Introduction.
    2           1701. Definition of the practice of architecture.
    3           1702. Practice of architecture and use of title "architect".
    4           1703. State board for architecture.
    5           1704. Requirements for a professional license.
    6           1705. Limited permits.
    7           1706. Exempt persons.
    8           1707. Special provisions.
    9           1708. Mandatory continuing education for architects.
   10    § 1700. Introduction.    This  subarticle applies to the profession of
   11  architecture. The general provisions for all  professions  contained  in
   12  subarticle one of this article apply to this subarticle.
   13    § 1701.   Definition of the practice of architecture.  The practice of
   14  the profession of architecture is defined as rendering  or  offering  to
   15  render  services  which require the application of the art, science, and
   16  aesthetics of design and construction of buildings, groups of buildings,
   17  including their components and appurtenances and the spaces around  them
   18  wherein  the  safeguarding of life, health, property, and public welfare
   19  is concerned.  Such services include, but are not limited  to  consulta-
   20  tion,  evaluation,  planning,  the  provision  of  preliminary  studies,
   21  designs, construction documents, construction management, and the admin-
   22  istration of construction contracts.
   23    § 1702. Practice of architecture and use of title "architect".  Only a
   24  person licensed or otherwise authorized to practice under this  subarti-
   25  cle shall practice architecture or use the title "architect".
   26    § 1703. State  board for architecture.  1. A state board for architec-
   27  ture shall be appointed by the secretary of state  for  the  purpose  of
   28  assisting  the secretary of state and the department of state on matters
   29  of professional licensing and professional conduct  in  accordance  with
   30  section  nine  hundred  twenty-two of this article.   The board shall be
   31  composed of not less than seven architects licensed in this state.    An
   32  executive  secretary to the board shall be appointed by the secretary of
   33  state and shall be an architect licensed in this state.
   34    2. For purposes of this subarticle, "board" means the state board  for
   35  architecture.
   36    § 1704. Requirements for a professional license.  1.  To qualify for a
   37  license  as  an  architect,  an  applicant  shall  fulfill the following
   38  requirements:
   39    (1) Application: file an application with the department of state;
   40    (2) Education: have received an education, including a  bachelor's  or
   41  higher degree in architecture, in accordance with the regulations of the
   42  secretary of state;
   43    (3) Experience: have experience satisfactory to the board in appropri-
   44  ate  architectural  work  and  of sufficient amount so that the combined
   45  college study and experience total eight years;
   46    (4) Examination: pass an examination satisfactory to the board and  in
   47  accordance with the regulations of the secretary of state;
   48    (5) Age: be at least twenty-one years of age;
   49    (6) Citizenship: meet no requirement as to United States citizenship;
   50    (7) Character: be of good moral character as determined by the depart-
   51  ment of state; and
   52    (8) Fees: pay a fee of three hundred forty-five dollars to the depart-
   53  ment  of  state  for admission to a department conducted examination and
   54  for an initial license, a fee of one hundred seventy  dollars  for  each
   55  reexamination,  a  fee of one hundred thirty-five dollars for an initial
   56  license for persons not requiring admission to  a  department  conducted
       S. 1407                            265                           A. 2107
 
    1  examination,  and  a  fee  of two hundred ten dollars for each triennial
    2  registration period.  The fee for a department of state conducted  exam-
    3  ination may be prorated for candidates taking parts of the examination.
    4    2.  In  lieu  of degree and experience requirements specified in para-
    5  graphs two and three of subdivision one of this section, twelve years of
    6  practical experience in architectural work  of  a  grade  and  character
    7  satisfactory  to  the  board  may be accepted by the department of state
    8  provided that each complete year of college study  satisfactory  to  the
    9  department  of  state  may at the discretion of the board be accepted in
   10  lieu of two years of experience but not to exceed nine years toward  the
   11  required total of twelve years.
   12    3.  In  lieu of degree, experience and examination requirements speci-
   13  fied in paragraphs two, three  and  four  of  subdivision  one  of  this
   14  section,  ten years of lawful practice of architecture outside the state
   15  satisfactory to the board may be accepted by  the  department  of  state
   16  upon the passing of a practical examination satisfactory to the board.
   17    4.  In  lieu of degree, experience and examination requirements speci-
   18  fied in paragraphs two, three  and  four  of  subdivision  one  of  this
   19  section,  a  certificate of qualification issued by the national council
   20  of architectural registration boards on the basis of the fulfillment  of
   21  requirements satisfactory to the board may be accepted by the department
   22  of state, provided further that the board shall be authorized to prepare
   23  and  conduct  examinations leading to certification of applicants by the
   24  national council of architectural registration boards.
   25    § 1705. Limited permits.   1. On  recommendation  of  the  board,  the
   26  department  of state may issue a limited permit to practice architecture
   27  to an architect not a resident of this state and having  no  established
   28  business  in  this state who is legally qualified to practice as such in
   29  his own country or state and who submits evidence  satisfactory  to  the
   30  board  of  established  and  recognized professional standing in his own
   31  country or state and who submits satisfactory certifications as to char-
   32  acter and qualifications. Such limited permit shall entitle  the  holder
   33  to  practice  architecture in this state but only in connection with the
   34  specific project for which it is granted.
   35    2. Fees. The fee for each limited permit shall  be  one  hundred  five
   36  dollars.
   37    § 1706. Exempt  persons.    This  subarticle shall not be construed to
   38  affect or prevent:
   39    1. The preparation of details and shop drawings by persons, other than
   40  architects, for use in connection with the execution of their work;
   41    2. Employees of those lawfully  practicing  as  architects  under  the
   42  provisions of this subarticle from acting under the instruction, control
   43  or supervision of their employers;
   44    3. Builders, or superintendents employed by such builders, from super-
   45  vising  the construction or structural alteration of buildings or struc-
   46  tures; or
   47    4. A holder of a valid certificate of the national council  of  archi-
   48  tectural  registration  boards,  not licensed in this state, from coming
   49  into the state for interview,  but  not  to  perform  any  architectural
   50  services or enter into any contract until such time as he is licensed as
   51  an architect in this state.
   52    5.  The  practice  of  engineering or land surveying by an engineer or
   53  land surveyor licensed in this  state,  or  the  practice  of  landscape
   54  architecture  by  a landscape architect licensed in this state, provided
   55  that no such engineer, land surveyor or landscape  architect  shall  use
       S. 1407                            266                           A. 2107
 
    1  the designation "architect," or "architectural" or "architecture" unless
    2  licensed as an architect in this state.
    3    6.  Employment of any person as a junior or assistant architect by the
    4  City of New York in a position the title of which was  approved  and  in
    5  use as of July first, nineteen hundred seventy-one, provided such person
    6  acts under the general direction of a licensed architect.
    7    7.  Contractors  or  builders from engaging in construction management
    8  and administration of construction contracts.
    9    § 1707. Special provisions.   1. Every architect shall  have  a  seal,
   10  approved by the board, which shall contain the name of the architect and
   11  either  the words "Registered Architect" and such other words or figures
   12  as the board may deem necessary. All  working  drawings  and  specifica-
   13  tions,  prepared by such architect or by a full-time or part-time subor-
   14  dinate employed under his or her supervision, shall be stamped with such
   15  seal and shall also be signed on the original with the  personal  signa-
   16  ture  of  such  architect  when  filed with public officials. Except for
   17  plans and specifications excluded from the provisions of this subarticle
   18  by section seventeen hundred six of this subarticle, no official of this
   19  state, or of any county, city, town or village therein, charged with the
   20  enforcement  of  laws,  ordinances  or  regulations  relating   to   the
   21  construction  or  alteration of buildings or structures, shall accept or
   22  approve any plans or specifications that are not stamped:
   23    a. With the seal of an architect or professional  engineer  registered
   24  in  this  state and bearing the authorized facsimile of the signature of
   25  such architect or professional engineer; or
   26    b. With the official seal and authorized facsimile of the signature of
   27  an architect or professional engineer not a resident of this  state  and
   28  having  no established business in this state, but who is legally quali-
   29  fied to practice as such in his or her own state  or  country,  provided
   30  that  such  person  holds  a  limited permit issued by the department of
   31  state, and provided further that the plans or specifications are  accom-
   32  panied  by and have attached thereto written authorization issued by the
   33  department of state for the specific project.
   34    2. Engineers, land surveyors, architects and landscape architects  may
   35  join  in  the  formation  of  a  joint enterprise, or a partnership or a
   36  professional service corporation or may form any desired combination  of
   37  such  professions  and may use in the name of such corporation the title
   38  of any of the professions which will be practiced.  After  the  name  of
   39  each member his or her profession shall be indicated.
   40    3.  A  firm name may be continued by employees having at least fifteen
   41  years of continuous service if the retired members and  legal  represen-
   42  tatives of deceased members consent to such continuance.
   43    4.  It  shall be lawful for a corporation organized and existing under
   44  the laws of the state of New York, and which on or  before  the  twelfth
   45  day  of  April  nineteen hundred twenty-nine and continuously thereafter
   46  was lawfully practicing in New York state  to  continue  such  practice,
   47  provided  that  the  chief  executive officer of such corporation in the
   48  state of New York shall be an architect licensed under this  subarticle,
   49  and  provided  further that the construction of buildings and structures
   50  shall be under the personal supervision of such architect and that draw-
   51  ings, plans, and specifications shall be  prepared  under  the  personal
   52  direction and supervision of such architect and bear the stamp of his or
   53  her  official  seal,  and  the  drawings or specifications shall also be
   54  signed on the original, with the personal signature of  such  architect.
   55  No  such  corporation shall be permitted to change its name and continue
       S. 1407                            267                           A. 2107
 
    1  to practice architecture,  except  upon  the  written  approval  of  the
    2  department of state.
    3    5.  This  subarticle  shall not apply to: 1. Farm buildings, including
    4  barns, sheds, poultry houses and other buildings used directly and sole-
    5  ly for agricultural purposes; nor to residence buildings of  gross  area
    6  of fifteen hundred square feet or less, not including garages, carports,
    7  porches, cellars, or uninhabitable basements or attics; or
    8    2.  Alterations, costing ten thousand dollars or less, to any building
    9  or structure within the city of New York and twenty thousand dollars  or
   10  less, to any building or structure outside the city of New York which do
   11  not  involve  changes  affecting  the structural safety or public safety
   12  thereof.
   13     § 1708. Mandatory continuing education for architects.  1.  (a)  Each
   14  licensed architect required under this subarticle to register triennial-
   15  ly  with  the  department of state to practice in the state shall comply
   16  with provisions  of  the  mandatory  continuing  education  requirements
   17  prescribed  in  subdivision  two  of this section except as set forth in
   18  paragraphs (b) and (c) of this subdivision. Architects who do not satis-
   19  fy the mandatory continuing education requirements  shall  not  practice
   20  until  they have met such requirements, and have been issued a registra-
   21  tion certificate, except that an architect may practice  without  having
   22  met  such requirements if he or she is issued a conditional registration
   23  certificate pursuant to subdivision three of this section.
   24    (b) Architects shall be exempt from the mandatory continuing education
   25  requirement for the triennial registration period during which they  are
   26  first licensed. In accord with the intent of this section, adjustment to
   27  the  mandatory  continuing  education  requirement may be granted by the
   28  department of state for reasons of health certified  by  an  appropriate
   29  health care professional, for extended active duty with the armed forces
   30  of  the United States, or for other good cause acceptable to the depart-
   31  ment of state which may prevent compliance.
   32    (c) A licensed architect not engaged in practice as determined by  the
   33  department  of  state,  shall  be  exempt  from the mandatory continuing
   34  education requirement upon the filing of a statement with the department
   35  of state declaring such status. Any licensee who returns to the practice
   36  of architecture during the triennial registration  period  shall  notify
   37  the  department  of  state  prior to reentering the profession and shall
   38  meet such mandatory education requirements as  shall  be  prescribed  by
   39  regulations of the secretary of state.
   40    2.  During  each triennial registration period an applicant for regis-
   41  tration shall complete a  minimum  of  thirty-six  hours  of  acceptable
   42  formal  continuing  education,  as specified in subdivision four of this
   43  section, provided that no more than  twelve  hours  of  such  continuing
   44  education  shall  consist of self-study courses, and, a minimum of twen-
   45  ty-four hours of such continuing education shall consist of  courses  in
   46  the  areas of health, safety and welfare.  A licensee who has not satis-
   47  fied the mandatory continuing education requirements shall not be issued
   48  a triennial registration certificate by  the  department  of  state  and
   49  shall  not  practice unless and until a conditional registration certif-
   50  icate is issued as provided for in subdivision three  of  this  section.
   51  With the exception of continuing education hours taken during the regis-
   52  tration period immediately preceding the effective date of this section,
   53  continuing  education hours taken during one triennium may not be trans-
   54  ferred to a subsequent triennium.
   55    3. The department of state, in its discretion, may issue a conditional
   56  registration to a licensee who fails to meet  the  continuing  education
       S. 1407                            268                           A. 2107
 
    1  requirements  established  in  subdivision  two  of this section but who
    2  agrees to make up any deficiencies and complete any additional education
    3  which the department of state may require. The fee  for  such  a  condi-
    4  tional  registration  shall  be the same as, and in addition to, the fee
    5  for the triennial registration. The duration of such conditional  regis-
    6  tration  shall  be  determined  by the department of state but shall not
    7  exceed one year. Any licensee who is notified of the denial of registra-
    8  tion for failure to submit evidence, satisfactory to the  department  of
    9  state,  of  required continuing education and who practices architecture
   10  without such registration, may be subject  to  disciplinary  proceedings
   11  pursuant to section nine hundred forty-four of this article.
   12    4.  As  used  in  subdivision  two of this section, "acceptable formal
   13  continuing education"  shall  mean  formal  courses  of  learning  which
   14  contribute  to  professional practice in architecture and which meet the
   15  standards prescribed by regulations of the  secretary  of  state.    The
   16  department  of  state may, in its discretion and as needed to contribute
   17  to the health and welfare of  the  public,  require  the  completion  of
   18  continuing education courses in specific subjects.
   19    5.  Architects  shall maintain adequate documentation of completion of
   20  acceptable formal continuing education and shall provide such documenta-
   21  tion at the request of the department of state.
   22    6. The mandatory continuing education fee shall be forty-five dollars,
   23  shall be payable on or before the first day of each triennial  registra-
   24  tion period, and shall be paid in addition to the triennial registration
   25  fee required by section seventeen hundred four of this subarticle.
 
   26                                SUBARTICLE 15
 
   27                           LANDSCAPE ARCHITECTURE
 
   28  Section 1750. Introduction.
   29          1751. Definition of practice of landscape architecture.
   30          1752. Practice of landscape architecture and use of title "land-
   31                  scape architect".
   32          1753. State board for landscape architecture.
   33          1754. Requirements for a professional license.
   34          1755. Limited permits.
   35          1756. Exempt persons.
   36          1757. Special provisions.
   37    § 1750. Introduction.    This  subarticle applies to the profession of
   38  landscape architecture.   The general  provisions  for  all  professions
   39  contained in subarticle one of this article apply to this subarticle.
   40    § 1751. Definition  of  practice of landscape architecture.  The prac-
   41  tice of the profession of landscape architecture is defined as  perform-
   42  ing services in connection with the development of land areas where, and
   43  to  the extent that the dominant purpose of such services is the preser-
   44  vation, enhancement or determination of proper land uses,  natural  land
   45  features,  ground cover and planting, naturalistic and aesthetic values,
   46  the settings, approaches or environment for structures or other improve-
   47  ments, natural drainage  and  the  consideration  and  determination  of
   48  inherent  problems  of  the land relating to the erosion, wear and tear,
   49  blight or other hazards.  This practice shall include the  location  and
   50  arrangement  of such tangible objects and features as are incidental and
   51  necessary to the purposes outlined herein  but  shall  not  include  the
   52  design  of  structures  or  facilities  with separate and self-contained
   53  purposes such as are ordinarily included in the practice of  engineering
       S. 1407                            269                           A. 2107
 
    1  or  architecture;  and  shall  not include the making of land surveys or
    2  final land plats for official approval or recording.
    3    § 1752. Practice of landscape architecture and use of title "landscape
    4  architect".   Only a person licensed or otherwise authorized to practice
    5  under this subarticle shall practice landscape architecture or  use  the
    6  title "landscape architect".
    7    § 1753. State  board for landscape architecture.  1. A state board for
    8  landscape architecture shall be appointed by the secretary of state  for
    9  the  purpose  of  assisting the secretary of state and the department of
   10  state on matters of professional licensing and professional  conduct  in
   11  accordance  with  section  nine hundred twenty-two of this article.  The
   12  board shall be composed of not  less  than  seven  landscape  architects
   13  licensed  in  this state.   An executive secretary to the board shall be
   14  appointed by the secretary of state.
   15    2. For purposes of this subarticle, "board" means the state board  for
   16  landscape architecture.
   17    § 1754. Requirements  for a professional license.  1. To qualify for a
   18  license as a landscape architect, an applicant shall fulfill the follow-
   19  ing requirements:
   20    (1) Application: file an application with the department of state;
   21    (2) Education: have received an education, including a  bachelor's  or
   22  higher  degree  in  landscape architecture, in accordance with the regu-
   23  lations of the secretary of state;
   24    (3) Experience: have experience satisfactory to the board in appropri-
   25  ate landscape architectural work and of sufficient amount  so  that  the
   26  combined college study and experience total eight years;
   27    (4)  Examination: pass an examination satisfactory to the board and in
   28  accordance with the regulations of the secretary of state;
   29    (5) Age: be at least twenty-one years of age;
   30    (6) Citizenship or immigration status: be a United States  citizen  or
   31  an alien lawfully admitted for permanent residence in the United States;
   32    (7) Character: be of good moral character as determined by the depart-
   33  ment of state; and
   34    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   35  state  for  admission  to  a department conducted examination and for an
   36  initial license, a fee of one hundred fifteen dollars for  each  reexam-
   37  ination, a fee of one hundred fifteen dollars for an initial license for
   38  persons  not  requiring admission to a department conducted examination,
   39  and a fee of one hundred fifty-five dollars for each triennial registra-
   40  tion period.
   41    2. In lieu of degree and experience requirements  specified  in  para-
   42  graphs two and three of subdivision one of this section, twelve years of
   43  practical  experience in landscape architecture of a grade and character
   44  satisfactory to the board may be accepted by  the  department  of  state
   45  provided that each complete year of study satisfactory to the department
   46  of  state  may at the discretion of the board be accepted in lieu of two
   47  years of experience but not to exceed eight years  toward  the  required
   48  total  of  twelve years.  Eight years of such experience satisfactory to
   49  the board may be accepted by the department of state  for  admission  to
   50  that  portion of the examination related to fundamental landscape archi-
   51  tecture theory.
   52    3. In lieu of degree, experience and examination  requirements  speci-
   53  fied  in  paragraphs  two,  three  and  four  of subdivision one of this
   54  section, ten years of lawful practice of landscape architecture  outside
   55  the state satisfactory to the board may be accepted by the department of
       S. 1407                            270                           A. 2107
 
    1  state  upon  the  passing of a practical examination satisfactory to the
    2  board.
    3    4.  On recommendation of the board, the department of state may exempt
    4  from examination an applicant who holds  a  license  or  certificate  to
    5  practice landscape architecture issued to him or her upon examination by
    6  a legally constituted board of examiners in any other state or political
    7  subdivision  of  the  United States, provided the applicant's qualifica-
    8  tions met the requirements in this state at the time  such  license  was
    9  issued.
   10    § 1755. Limited  permits.    1.  On  recommendation  of the board, the
   11  department of state may issue a limited  permit  to  practice  landscape
   12  architecture  to  a landscape architect not a resident of this state and
   13  having no established business in this state who is legally qualified to
   14  practice as such in his or her own country  or  state  and  who  submits
   15  evidence satisfactory to the board of established and recognized profes-
   16  sional  standing  in  his  or  her own country or state and satisfactory
   17  certifications as to character and qualifications.  Such limited  permit
   18  shall be issued solely in connection with the specific project for which
   19  it is granted.
   20    2. Fees. The fee for each limited permit shall be seventy dollars.
   21    § 1756. Exempt  persons.    This  subarticle shall not be construed to
   22  affect or prevent:
   23    a. The preparation of details and shop drawings by persons, other than
   24  landscape architects, for use in connection with the execution of  their
   25  work;
   26    b.  Employees  of  those  lawfully  practicing as landscape architects
   27  under the provisions of this subarticle from acting under  the  instruc-
   28  tion, control or supervision of their employers;
   29    c. Supervision by builders, or superintendents employed by such build-
   30  ers, of the installation of landscape projects; or
   31    d.  Business conducted in this state by any agriculturist, horticultu-
   32  rist, tree expert, arborist, forester, nurseryman or landscape  nursery-
   33  man,  gardener, landscape gardener, landscape contractor, garden or lawn
   34  caretaker or grader or cultivator of land, as these terms are  generally
   35  used,  except  that  no  such person shall use the designation landscape
   36  architect, landscape  architectural  or  landscape  architecture  unless
   37  licensed under this subarticle.
   38    e.  Employment of any person as a junior or assistant landscape archi-
   39  tect by the city of New York in  a  position  the  title  of  which  was
   40  approved  and  in  use  as  of July first, nineteen hundred seventy-one,
   41  provided such person acts under the general supervision  of  a  licensed
   42  landscape architect.
   43    f.  The  practice  of  architecture  by  an architect licensed in this
   44  state, or the practice of engineering or land surveying by  an  engineer
   45  or  land  surveyor  licensed in this state, provided that no such archi-
   46  tect, engineer or land surveyor shall  use  the  designation  "landscape
   47  architect," "landscape architectural" or "landscape architecture" unless
   48  licensed as a landscape architect in this state.
   49    § 1757. Special provisions.  1. Every landscape architect shall have a
   50  seal,  approved  by the board, which shall contain the name of the land-
   51  scape architect and either the words  "Registered  Landscape  Architect"
   52  and  such  other  words  or figures as the board may deem necessary. All
   53  working drawings and specifications prepared by such landscape architect
   54  relating to the setting, approaches or  environment  for  structures  or
   55  other improvements or under the supervision of such landscape architect,
   56  shall  be  stamped  with  such seal and signed on the original, with the
       S. 1407                            271                           A. 2107
 
    1  personal signature of such landscape architect when  filed  with  public
    2  officials,  or  with the official seal and personal signature of a land-
    3  scape architect granted a limited permit under section seventeen hundred
    4  fifty-five  of this subarticle when such drawings and specifications are
    5  accompanied by a written authorization from the department of state  for
    6  the specific project concerned.
    7    2.  Engineers, land surveyors, architects and landscape architects may
    8  join in the formation of a joint  enterprise,  or  a  partnership  or  a
    9  professional  service corporation or may form any desired combination of
   10  such professions and may use in the name of such corporation  the  title
   11  of  any  of  the  professions which will be practiced. After the name of
   12  each member his or her profession shall be indicated.
   13    3. A firm name may be continued by employees having at  least  fifteen
   14  years  of  continuous service if the retired members and legal represen-
   15  tatives of deceased members consent to such continuance.
   16    4. It shall be lawful for a corporation organized and  existing  under
   17  the  laws of the state of New York, and which on or before the first day
   18  of April nineteen hundred sixty-one was legally incorporated to practice
   19  landscape architecture, while conforming to the provisions of this arti-
   20  cle, and which has been continuously engaged in such practice since such
   21  time to continue such practice provided that the chief executive officer
   22  of such corporation in the state of New York shall be a landscape archi-
   23  tect licensed under this  subarticle,  and  provided  further  that  the
   24  supervision  of such projects shall be under the personal supervision of
   25  such landscape architect and  that  such  plans  and  designs  shall  be
   26  prepared  under the personal direction and supervision of such landscape
   27  architect and bear the stamp of his or her official seal, and such draw-
   28  ings or specifications shall also be signed on the  original,  with  the
   29  personal  signature  of  such  landscape  architect. No such corporation
   30  shall be permitted to change its name and continue to practice landscape
   31  architecture, except upon the written  approval  of  the  department  of
   32  state.
   33                                SUBARTICLE 16
 
   34                             PUBLIC ACCOUNTANCY
 
   35  Section 1800. Introduction.
   36          1801. Definition of practice of public accountancy.
   37          1802. Practice of public accountancy and use of title "certified
   38                  public accountant" or "public accountant".
   39          1803. State board for public accountancy.
   40          1804. Requirements  for a license as a certified public account-
   41                  ant.
   42          1805. Requirements for a license as a public accountant.
   43          1806. Limited permits.
   44          1807. Exempt persons.
   45          1808. Special provisions.
   46          1809. Mandatory continuing education.
   47    § 1800. Introduction.  This subarticle applies to  the  profession  of
   48  public accountancy. The general provisions for all professions contained
   49  in subarticle one of this article apply to this subarticle.
   50    § 1801. Definition of practice of public accountancy.  The practice of
   51  the  profession  of  public accountancy is defined as holding one's self
   52  out to the public, in consideration of compensation received  or  to  be
   53  received,  offering to perform or performing for other persons, services
   54  which involve signing, delivering or issuing or causing  to  be  signed,
       S. 1407                            272                           A. 2107
 
    1  delivered  or  issued  any financial, accounting or related statement or
    2  any opinion on, report on, or  certificate  to  such  statement  if,  by
    3  reason  of  the  signature,  or  the  stationery or wording employed, or
    4  otherwise, it is indicated or implied that the practitioner has acted or
    5  is  acting,  in relation to said financial, accounting or related state-
    6  ment, or reporting as an independent accountant  or  auditor  or  as  an
    7  individual  having  or purporting to have expert knowledge in accounting
    8  or auditing.
    9    § 1802. Practice of public accountancy and  use  of  title  "certified
   10  public  accountant"  or "public accountant".   Only a person licensed or
   11  otherwise authorized to practice under this  subarticle  shall  practice
   12  public  accountancy  and  use the title "certified public accountant" or
   13  the designation "C.P.A." or "public accountant" or any other  derivative
   14  or designation provided in section eighteen hundred eight of this subar-
   15  ticle.
   16    § 1803. State  board  for public accountancy.   1.   A state board for
   17  public accountancy shall be appointed by the secretary of state for  the
   18  purpose  of assisting the secretary of state and the department of state
   19  on matters of professional licensing and professional conduct in accord-
   20  ance with section nine hundred twenty-two of this article.    The  board
   21  shall be composed of not less than twenty licensed accountants, not less
   22  than  fifteen  of whom shall be licensed as certified public accountants
   23  in this state, and the board should be kept in such proportion if it  is
   24  ever  increased.  An executive secretary to the board shall be appointed
   25  by the secretary of state and shall be  a  certified  public  accountant
   26  licensed in this state.
   27    2.  For purposes of this subarticle, "board" means the state board for
   28  public accounting.
   29    § 1804. Requirements for a license as a certified  public  accountant.
   30  1.  To qualify for a license as a certified public accountant, an appli-
   31  cant shall fulfill the following requirements:
   32    (1) Application: file an application with the department of state;
   33    (2) Education: have received an education, including a  bachelor's  or
   34  higher  degree based on a program in accountancy, in accordance with the
   35  regulations of the secretary of state;
   36    (3) Experience: have experience  satisfactory  to  the  board  and  in
   37  accordance with the regulations of the secretary of state;
   38    (4)  Examination: pass a written examination satisfactory to the board
   39  and in accordance with the regulations of the secretary of state and the
   40  requirement with respect to such examination may not be waived;
   41    (5) Age: be at least twenty-one years of age;
   42    (6) Citizenship: meet no requirements as to United States citizenship;
   43    (7) Character: be of good moral character as determined by the depart-
   44  ment of state; and
   45    (8) Fees: pay a fee of two hundred twenty dollars to the department of
   46  state for admission to a department conducted  examination  and  for  an
   47  initial  license,  a fee of one hundred fifteen dollars for each reexam-
   48  ination, a fee of one hundred thirty-five dollars for an initial license
   49  for persons not requiring admission to a department  conducted  examina-
   50  tion,  and a fee of two hundred ten dollars for each triennial registra-
   51  tion period.
   52    2. In lieu of professional requirements specified  in  paragraphs  two
   53  and three of subdivision one of this section, fifteen years in the prac-
   54  tice  of public accountancy satisfactory to the board may be accepted by
   55  the department of state.
       S. 1407                            273                           A. 2107
 
    1    § 1805. Requirements for a license as a public accountant.  To qualify
    2  for a license as a public accountant, an  applicant  shall  fulfill  the
    3  following requirements:
    4    (1) Application: file an application with the department of state;
    5    (2) Declaration of intention: a. Have filed a declaration of intention
    6  to  practice  as  a public accountant with the department of state on or
    7  before October first, nineteen  hundred  fifty-nine,  on  the  basis  of
    8  evidence  that the applicant was engaged for a total of six years during
    9  the ten years immediately preceding April twenty-third, nineteen hundred
   10  fifty-nine, in the practice of public accountancy as an individual prac-
   11  titioner or as a partner of a partnership or as an employee of  such  an
   12  individual practitioner or partnership engaged in the practice of public
   13  accountancy or as an employee of a department, agency or instrumentality
   14  of the United States, the state, or a political subdivision of the state
   15  in  which  employment his duties entailed the performance of all or some
   16  of the services which would constitute the practice of public accountan-
   17  cy, or a combination of the foregoing duties, or in the opinion  of  the
   18  board the equivalent thereof;
   19    b. Establish by evidence satisfactory to the board that at the date of
   20  the  filing of said declaration of intention, the applicant had complied
   21  with the conditions established by law on April  twenty-third,  nineteen
   22  hundred fifty-nine, has not violated the provisions relating to practice
   23  in  public accountancy, and is about to engage in the practice of public
   24  accountancy as his principal occupation as an individual practitioner or
   25  as a partner of a partnership;
   26    (3) Character: be of good moral character as determined by the depart-
   27  ment of state; and
   28    (4) Fees: pay a fee to the department of state for an initial  license
   29  of  two hundred twenty dollars, and a fee of two hundred ten dollars for
   30  each triennial registration period.
   31    § 1806. Limited permits.   1. On  recommendation  of  the  board,  the
   32  department  of  state may issue a limited permit to an applicant of good
   33  moral character who is the holder of a certificate, license or degree in
   34  a foreign  country  constituting  a  recognized  qualification  for  the
   35  performance  in  such  country of the acts set forth in section eighteen
   36  hundred one of this subarticle, provided the applicant has  professional
   37  qualifications satisfactory to the board, the applicant resides or has a
   38  place  for  the  regular  transaction  of business within the state, and
   39  equal recognition is granted by the foreign country concerned to  certi-
   40  fied  public  accountants and public accountants licensed in this state.
   41  Such limited permit shall be valid for a period of two years and may  be
   42  renewed  on recommendation of the board. Such permit shall authorize the
   43  applicant to use only the title or designation under which he or she  is
   44  generally  known  in his or her own country, followed by the name of the
   45  country from which he or she received his or her certificate, license or
   46  degree, notwithstanding the provisions of  subdivision  two  of  section
   47  eighteen hundred eight of this subarticle.
   48    2. Fees. The fee for each limited permit and each renewal shall be one
   49  hundred five dollars.
   50    § 1807. Exempt persons.  Nothing contained in this subarticle shall be
   51  construed to prohibit:
   52    a. Any person who is an officer of a corporation or partner of a part-
   53  nership  or  sole  proprietor  of a business enterprise or a member of a
   54  joint venture or member of a committee appointed by stockholders, credi-
   55  tors, courts, trustees, executors or administrators, or an  employee  of
   56  any  of  the  foregoing,  in  his or her capacity as such, from signing,
       S. 1407                            274                           A. 2107
 
    1  delivering, or issuing any financial, accounting or related statement or
    2  report thereon, relating  to  said  corporation,  partnership,  business
    3  venture,  joint  venture, committee, trust or estate, provided, however,
    4  that  in so doing such person does not hold himself or herself out to be
    5  a certified public accountant or public accountant;
    6    b. An attorney-at-law or partnership of attorneys-at-law from  signing
    7  a financial, accounting or related statement or report thereon, prepared
    8  by him or her or them as incidental to the practice of law;
    9    c.  Any  individual  from serving as an employee of a certified public
   10  accountant, public accountant or partnership licensed under this  subar-
   11  ticle;
   12    d.  Any  individual,  not  engaged  in  practice as a certified public
   13  accountant or  public  accountant  within  the  state,  from  performing
   14  services within the state which are incidental to the practice conducted
   15  by him or her outside the state;
   16    e.  Any official or employee of a governmental unit, agency or instru-
   17  mentality in the performance of his or her official duties from signing,
   18  delivering or issuing any financial, accounting, or related statement or
   19  report thereon relating to said unit, agency or instrumentality; or
   20    f. A corporation chartered in the state of New York to engage  in  the
   21  practice  of public accountancy and so engaged as its principal activity
   22  on and before the first day of July, nineteen hundred  fifty-nine,  from
   23  continuing  in  such  practice as long as its corporate acts comply with
   24  the board rules, provided all employees of such  corporation  performing
   25  any  acts  constituting  the  practice  of public accountancy as defined
   26  herein and who are not certified public accountants or  public  account-
   27  ants  licensed  under  this  subarticle shall in the performance of such
   28  acts be under the supervision of certified public accountants or  public
   29  accountants licensed in this state.
   30    § 1808. Special  provisions.   1. Nothing contained in this subarticle
   31  shall be deemed to prohibit two or more certified public accountants  or
   32  two or more public accountants, or any combination thereof, from forming
   33  a  partnership;  provided,  however,  that  no partnership shall use the
   34  words "certified  public  accountants"  or  the  letters  "C.P.A.'s"  in
   35  connection  with its name unless each partner of such partnership, resi-
   36  dent or engaged within the United States in practice is in good standing
   37  as a certified public accountant of one or more of the states  or  poli-
   38  tical  subdivisions of the United States, and each partner thereof resi-
   39  dent or engaged in practice within the  state  is  licensed  under  this
   40  subarticle.
   41    a. A registration shall be issued to a partnership upon payment of the
   42  fee prescribed by the secretary of state upon application showing that:
   43    (1)  At  least  one partner of such partnership is licensed under this
   44  subarticle  and  his  or  her  license  to  practice  is  not  currently
   45  suspended,  annulled  or  revoked  in  any jurisdiction and he or she is
   46  regularly engaged in practice on behalf of the  partnership  within  the
   47  state;
   48    (2) The partnership consists of at least two present members; and
   49    (3)  The partnership contains at least as many present partners as the
   50  total number of names in the firm name, or, where the word "company"  or
   51  abbreviation  "co."  is  used,  the  number of present partners shall be
   52  greater than the number of names in the firm name.
   53    b. Such registration may be  revoked  after  a  hearing  conducted  in
   54  accordance  with  the  provisions  of section nine hundred forty-four of
   55  this article upon proof:
       S. 1407                            275                           A. 2107
 
    1    (1) That the registration was obtained by either misrepresentation  or
    2  suppression of any material fact;
    3    (2)  That  the  license or authorization to practice of any partner is
    4  suspended, annulled or revoked in any jurisdiction;
    5    (3) That any partner in such a partnership is or has been  engaged  in
    6  the  practice of public accountancy in this state who is not licensed in
    7  this state; or
    8    (4) That the partnership  failed  to  file  the  written  notification
    9  required pursuant to paragraph d of this subdivision of this section.
   10    c.  Personal  service on any general partner of a notice of hearing to
   11  revoke a partnership registered hereunder shall be deemed service on the
   12  partnership.
   13    d. A partnership registered to practice pursuant to this section shall
   14  file with the department of state on or before July first of  each  year
   15  written notification of:
   16    (1) Any admission of a partner,
   17    (2) Any retirement or death of a partner,
   18    (3) Any termination of partnership, or
   19    (4)  Any occurrence of any event or events which would eliminate as to
   20  such partnership conformity with the  applicable  requirements  of  this
   21  section.
   22    e.  Partnerships  shall  register  triennially  and pay a fee of fifty
   23  dollars.
   24    2. Any person shall be guilty of a class A misdemeanor who shall  use,
   25  in  connection with the practice of public accountancy, or in any manner
   26  tending to imply that he is an independent accountant  or  auditor,  the
   27  designations  "chartered  accountant",  "certified  accountant", "expert
   28  accountant", "certified tax  accountant",  "tax  accountant",  "enrolled
   29  accountant",  "enrolled  public  accountant",  "registered  accountant",
   30  "licensed accountant",  "incorporated  accountant",  "registered  public
   31  accountant",  "licensed public accountant", or any abbreviation thereof,
   32  or the letters  "C.A.",  "E.A.",  "C.T.A.",  "T.A.",  "E.P.A.",  "R.A.",
   33  "L.A.", "I.A.", "P.A.", "R.P.A.", or, "L.P.A.", except as provided else-
   34  where in this subarticle, or any other designation tending to imply that
   35  he or she has expert knowledge in accounting or auditing.
   36    § 1809. Mandatory continuing education. 1. (a) Each licensed certified
   37  public accountant and public accountant required under subarticle one of
   38  this  article  to  register  triennially with the department of state to
   39  practice in the state shall comply with the provisions of the  mandatory
   40  continuing  education requirements except as set forth in paragraphs (b)
   41  and (c) of this subdivision. Certified  public  accountants  and  public
   42  accountants  who  do  not  satisfy  the  mandatory  continuing education
   43  requirements shall not practice until they have met  such  requirements,
   44  they  have  paid all applicable fees, and they have been issued a regis-
   45  tration or conditional registration certificate.
   46    (b) Certified public  accountants  and  public  accountants  shall  be
   47  exempt  from  the  mandatory  continuing  education  requirement for the
   48  triennial registration period during which they are first  licensed.  In
   49  accordance with the intent of this section, adjustments to the mandatory
   50  continuing  education  requirement  may  be granted by the department of
   51  state for reasons of health  certified  by  a  physician,  for  extended
   52  active  duty  with  armed forces of the United States, or for other good
   53  cause acceptable to the department of state which  may  prevent  compli-
   54  ance.
   55    (c) A licensed certified public accountant and a public accountant not
   56  engaged in public practice as an individual practitioner, a partner of a
       S. 1407                            276                           A. 2107
 
    1  partnership,  a shareholder of a professional service corporation, or an
    2  employee of such practice units, shall  be  exempt  from  the  mandatory
    3  continuing education requirement and payment of the mandatory continuing
    4  education  fee  upon  the  filing  of a statement with the department of
    5  state declaring such status. Any licensee  who  returns  to  the  public
    6  practice  of  certified  public accountancy or public accountancy during
    7  the triennial registration period shall notify the department  prior  to
    8  reentering the profession and shall pay the current mandatory continuing
    9  education  fee  and  shall  meet  such  mandatory  continuing  education
   10  requirements as shall be prescribed by regulations of the  secretary  of
   11  state.
   12    2.  During  each  registration  period,  an applicant for registration
   13  shall have the option of (a) completing a minimum of forty contact hours
   14  of acceptable formal continuing education in recognized areas of  study,
   15  or  (b)  completing a minimum of twenty-four contact hours of acceptable
   16  formal continuing education concentrated in any  one  of  the  following
   17  three  subject  areas: auditing, accounting, or taxation. A licensee who
   18  has not satisfied the mandatory continuing education requirements  shall
   19  not  be issued a triennial registration certificate by the department of
   20  state and shall not practice unless and until a conditional registration
   21  certificate is issued as provided in subdivision three of this  section.
   22  No hourly credits may be transferred from one year to a subsequent year.
   23  The  individual  licensee  shall  determine  the selection of courses or
   24  programs of study pursuant to subdivision four of this section.
   25    3. The department of state, in its discretion, may issue a conditional
   26  registration to a licensee who fails to meet  the  continuing  education
   27  requirements  established  in  subdivision  two  of this section but who
   28  agrees to make up any deficiencies and  take  any  additional  education
   29  which  the department may require. The fee for such a conditional regis-
   30  tration shall be the same as, and in addition to, the fee for the trien-
   31  nial registration. The duration of such conditional  registration  shall
   32  be  determined  by the department of state. Any licensee who is notified
   33  of the denial of registration for failure to submit evidence,  satisfac-
   34  tory  to  the  department of state, of required continuing education and
   35  who practices public  accountancy  without  such  registration,  may  be
   36  subject  to  disciplinary  proceedings  pursuant to section nine hundred
   37  forty-four of this article.
   38    4. As used in subdivision two  of  this  section,  "acceptable  formal
   39  continuing  education"  shall  mean  formal  programs  of learning which
   40  contribute  to  professional  practice  and  which  meet  the  standards
   41  prescribed by regulations of the secretary of state. Recognized areas of
   42  study  shall  include but not be limited to: accounting, auditing, taxa-
   43  tion, advisory services, specialized knowledge and applications  related
   44  to  specialized industries, and such other technical areas appropriately
   45  related to the practice of  accounting  as  may  be  acceptable  to  the
   46  department  of  state.    To  fulfill the mandatory continuing education
   47  requirement, programs must  be  taken  from  sponsors  approved  by  the
   48  department  of  state,  pursuant  to the regulations of the secretary of
   49  state.
   50    5. The mandatory continuing education fee shall be determined  by  the
   51  secretary  of state, shall be payable on or before the first day of each
   52  triennial registration period, and shall be  paid  in  addition  to  the
   53  triennial  registration fee required by section eighteen hundred four of
   54  this subarticle.
   55                                SUBARTICLE 17
       S. 1407                            277                           A. 2107
 
    1                             SHORTHAND REPORTING
 
    2  Section 1850. Introduction.
    3          1851. Definition of practice as a certified shorthand reporter.
    4          1852. Use of title "certified shorthand reporter".
    5          1853. State board for certified shorthand reporting.
    6          1854. Requirements for a professional license.
    7    § 1850. Introduction.  This subarticle applies to the use of the title
    8  "certified   shorthand  reporter".    The  general  provisions  for  all
    9  professions contained in subarticle one of this article  apply  to  this
   10  subarticle.
   11    § 1851. Definition of practice as a certified shorthand reporter.  The
   12  practice as a certified shorthand reporter is defined as engaging, under
   13  such  title, in making by a written system of either manual shorthand or
   14  machine shorthand, a verbatim  record  of  any  oral  court  proceeding,
   15  disposition,  hearing  or  proceeding  before  any  grand jury, referee,
   16  commissioner, or arbitrator, or of any convention,  deliberative  assem-
   17  bly, or meeting of like character.
   18    § 1852. Use  of  title  "certified  shorthand reporter". Only a person
   19  licensed under this subarticle shall be  authorized  to  use  the  title
   20  "certified shorthand reporter".
   21    § 1853. State  board  for  certified  shorthand  reporting. 1. A state
   22  board for certified shorthand reporting shall be appointed by the secre-
   23  tary of state for the purpose of assisting the secretary  of  state  and
   24  the department of state on matters of professional licensing and profes-
   25  sional  conduct  in  accordance  with section nine hundred twenty-two of
   26  this article.  The board shall be composed of not less than five  short-
   27  hand  reporters  licensed  in this state.  An executive secretary to the
   28  board shall be appointed by the secretary of state.
   29    2. For purposes of this subarticle "board" means the state  board  for
   30  certified shorthand reporting.
   31    § 1854. Requirements  for a professional license.  1. To qualify for a
   32  license as a certified shorthand reporter, an  applicant  shall  fulfill
   33  the following requirements:
   34    (1) Application: file an application with the department of state;
   35    (2) Education: have received an education, including high school grad-
   36  uation and completion of a program in shorthand reporting, in accordance
   37  with the regulations of the secretary of state;
   38    (3)  Experience:  have  experience  satisfactory  to  the board and in
   39  accordance with the regulations of the secretary of state;
   40    (4) Examination: pass an examination satisfactory to the board and  in
   41  accordance with the regulations of the secretary of state;
   42    (5) Age: be at least twenty-one years of age;
   43    (6)  Citizenship  or immigration status: be a United States citizen or
   44  an alien lawfully admitted for permanent residence in the United States;
   45    (7) Character: be of good moral character as determined by the depart-
   46  ment of state; and
   47    (8) Fees: pay a fee of one hundred fifteen dollars to  the  department
   48  of  state for admission to a department conducted examination and for an
   49  initial license, a fee of forty-five dollars for each  reexamination,  a
   50  fee  of  fifty  dollars for an initial license for persons not requiring
   51  admission to a department conducted examination,  and  a  fee  of  fifty
   52  dollars for each triennial registration period.
   53    2.  In lieu of professional qualifications specified in paragraphs two
   54  and three of subdivision one of this section, five years  of  experience
       S. 1407                            278                           A. 2107
 
    1  in  shorthand reporting satisfactory to the board may be accepted by the
    2  department of state.
    3                                 SUBARTICLE 18
    4                                 PSYCHOLOGY
    5  Section 1900. Introduction.
    6          1901. Practice  of  psychology  and  use  of the title "psychol-
    7                  ogist".
    8          1902. Definition of the practice of psychology.
    9          1903. State board for psychology.
   10          1904. Requirements for a professional license.
   11          1905. Limited permits.
   12          1906. Exempt persons.
   13          1907. Prohibitions.
   14    § 1900. Introduction. This subarticle applies to  the  profession  and
   15  practice  of  psychology and to the use of the title "psychologist". The
   16  general provisions for all professions contained in  subarticle  one  of
   17  this article apply to this subarticle.
   18    §  1901.  Practice  of psychology and use of the title "psychologist".
   19  Only a person licensed or otherwise  authorized  under  this  subarticle
   20  shall be authorized to practice psychology or to use the title "psychol-
   21  ogist"  or to describe his or her services by use of the words "psychol-
   22  ogist", "psychology" or "psychological" in connection with  his  or  her
   23  practice.
   24    §  1902.  Definition of the practice of psychology. 1. The practice of
   25  psychology is the observation, description, evaluation,  interpretation,
   26  and  modification of behavior for the purpose of preventing or eliminat-
   27  ing symptomatic, maladaptive or undesired behavior; enhancing  interper-
   28  sonal relationships, personal, group or organizational effectiveness and
   29  work  and/or  life  adjustment;  and  improving behavioral health and/or
   30  mental health. The practice includes, but is not limited  to  psycholog-
   31  ical  (including neuropsychological) testing and counseling; psychoanal-
   32  ysis; psychotherapy; the diagnosis and  treatment  of  mental,  nervous,
   33  emotional,  cognitive or behavioral disorders, disabilities, ailments or
   34  illnesses, alcoholism, substance abuse, disorders of habit  or  conduct,
   35  the psychological aspects of physical illness, accident, injury or disa-
   36  bility,  psychological  aspects  of  learning (including learning disor-
   37  ders); and the use of accepted classification systems.
   38    2. The term "diagnosis and treatment" means the appropriate psycholog-
   39  ical diagnosis and the ordering or providing of treatment  according  to
   40  need. Treatment includes, but is not limited to counseling, psychothera-
   41  py,  marital  or family therapy, psychoanalysis, and other psychological
   42  interventions, including verbal, behavioral, or other appropriate  means
   43  as defined in regulations promulgated by the secretary of state.
   44    § 1903. State  board  for  psychology. 1. A state board for psychology
   45  shall be appointed by the secretary of state for the purpose of  assist-
   46  ing  the  secretary  of  state and the department of state on matters of
   47  professional licensing  and  professional  conduct  in  accordance  with
   48  section  nine  hundred  twenty-two of this article.   The board shall be
   49  composed of not less than eleven psychologists licensed in  this  state.
   50  An  executive secretary to the board shall be appointed by the secretary
   51  of state and shall be a psychologist, licensed in this state.
   52    2. For purposes of this subarticle, "board" means the state board  for
   53  psychology.
   54    § 1904. Requirements  for  a  professional  license.  To qualify for a
   55  license as a psychologist, an  applicant  shall  fulfill  the  following
   56  requirements:
       S. 1407                            279                           A. 2107
 
    1    (1) Application: file an application with the department of state;
    2    (2) Education: have received an education, including a doctoral degree
    3  in  psychology,  granted  on  the  basis  of  completion of a program of
    4  psychology registered with the department of state  or  the  substantial
    5  equivalent  thereof, in accordance with the regulations of the secretary
    6  of state;
    7    (3) Experience: have two years of supervised employment or  engagement
    8  in  appropriate  psychology  activities satisfactory to the board and in
    9  accordance with the regulations of the secretary of state;
   10    (4) Examination: pass an examination satisfactory to the board and  in
   11  accordance with the regulations of the secretary of state;
   12    (5) Age: be at least twenty-one years of age;
   13    (6) Citizenship: meet no requirement as to United States citizenship;
   14    (7) Character: be of good moral character as determined by the depart-
   15  ment of state; and
   16    (8)  Fees:  pay a fee of one hundred seventy dollars to the department
   17  of state for admission to a department conducted examination and for  an
   18  initial  license, a fee of eighty-five dollars for each reexamination, a
   19  fee of one hundred fifteen dollars for an initial  license  for  persons
   20  not requiring admission to a department conducted examination, and a fee
   21  of  one hundred fifty-five dollars for each triennial registration peri-
   22  od.
   23    § 1905. Limited permits.  1.  On  recommendation  of  the  board,  the
   24  department  of  state may issue a limited permit to practice as psychol-
   25  ogist to an applicant holding  a  certificate  or  license  to  practice
   26  psychology  issued by another state or country, and whose qualifications
   27  have been approved for admission to the examination  for  a  license  as
   28  psychologist  and who has resided in this state for a period of not more
   29  than six months prior to the filing of  such  application.  The  limited
   30  permit  shall  be  valid for a period of not more than twelve months, or
   31  until ten days after notification to the applicant  of  failure  of  the
   32  professional  licensing  examination or until the results of a licensing
   33  examination for which the applicant is eligible are officially released,
   34  whichever comes first.
   35    1-a. On the recommendation of the board, the department of  state  may
   36  issue a limited permit valid for an aggregate of three years to a person
   37  who  has  completed  the doctoral dissertation and other doctoral degree
   38  requirements and is gaining supervised experience to meet the experience
   39  requirements for licensure. This permit may be re-issued for  a  maximum
   40  period of one year for good cause, as determined by the department.
   41    2. Fees. The fee for each limited permit shall be seventy dollars.
   42    § 1906. Exempt  persons. Nothing in this subarticle shall be construed
   43  to affect or prevent:
   44    1. The activities, services, and use of the title of psychologist,  or
   45  any  derivation  thereof,  on  the  part  of a person in the employ of a
   46  federal, state, county or municipal agency, or other political  subdivi-
   47  sion,  or  a chartered elementary or secondary school or degree-granting
   48  educational institution insofar as such activities and  services  are  a
   49  part of the duties of his salaried position.
   50    2. The activities and services required of a student, intern, or resi-
   51  dent  in  psychology,  pursuing  a course of study leading to a doctoral
   52  degree in psychology in an institution approved  by  the  department  of
   53  state,  provided  that such activities and services constitute a part of
   54  his supervised course of study in  psychology.  Such  persons  shall  be
   55  designated  by  title as "psychological intern", "psychological trainee"
   56  or other such title which clearly indicates his training status.
       S. 1407                            280                           A. 2107
 
    1    3. The  practice,  conduct,  activities  or  services  by  any  person
    2  licensed  or  otherwise authorized to practice medicine within the state
    3  pursuant to subarticle two of this article or by any  person  registered
    4  to  perform  services as a physician assistant within the state pursuant
    5  to subarticle two-b of this article.
    6    4.  The  practice,  conduct,  activities,  or  services  by any person
    7  licensed or otherwise authorized to practice  nursing  as  a  registered
    8  professional nurse within the state pursuant to subarticle eight of this
    9  article or by any person licensed or otherwise authorized to practice as
   10  a  certified social worker within the state pursuant to subarticle nine-
   11  teen of this article, or by any person licensed or otherwise  authorized
   12  to practice mental health counseling, marriage and family therapy, crea-
   13  tive arts therapy, or psychoanalysis within the state pursuant to subar-
   14  ticle  twenty-seven  of  this  article, or any individual who is creden-
   15  tialed under any  law,  including  attorneys,  rape  crisis  counselors,
   16  certified  alcoholism  counselors, and certified substance abuse counse-
   17  lors from providing  mental  health  services  within  their  respective
   18  established authorities.
   19    5. The conduct, activities, or services of any member of the clergy or
   20  Christian  Science practitioner, in the provision of pastoral counseling
   21  services within the context of his or her ministerial  charge  or  obli-
   22  gation.
   23    6.  The  conduct,  activities,  or  services of individuals, churches,
   24  schools,  teachers,  organizations,  or  not-for-profit  businesses   in
   25  providing instruction, advice, support, encouragement, or information to
   26  individuals, families, and relational groups.
   27    7.  The  practice, conduct, activities, or services of an occupational
   28  therapist from performing work consistent with subarticle twenty-one  of
   29  this article.
   30    8.  The representation as a psychologist and the rendering of services
   31  as such in this state for a temporary period of  a  person  who  resides
   32  outside  the state of New York and who engages in practice as a psychol-
   33  ogist and conducts the major part of his or her practice as such outside
   34  this state, provided such person has filed with the department of  state
   35  evidence  that he or she has been licensed or certified in another state
   36  or has been admitted to  the  examination  in  this  state  pursuant  to
   37  section  nineteen hundred four of this subarticle. Such temporary period
   38  shall not exceed ten consecutive business days in any period  of  ninety
   39  consecutive  days  or in the aggregate exceed more than fifteen business
   40  days in any such ninety-day period.
   41    § 1907. Prohibitions. Any individual whose  license  or  authority  to
   42  practice derives from the provisions of this subarticle shall be prohib-
   43  ited from:
   44    1.  prescribing or administering drugs as defined in this chapter as a
   45  treatment, therapy, or professional service in the practice  of  his  or
   46  her profession; or
   47    2.  using invasive procedures as a treatment, therapy, or professional
   48  service in the practice of his or her profession. For purposes  of  this
   49  subdivision,  "invasive  procedure"  means  any procedure in which human
   50  tissue is cut, altered, or otherwise infiltrated by mechanical or  other
   51  means.  Invasive procedure includes surgery, lasers, ionizing radiation,
   52  therapeutic ultrasound, or electroconvulsive therapy.
   53                                 SUBARTICLE 19
   54                                 SOCIAL WORK
 
   55  Section 1950. Introduction.
       S. 1407                            281                           A. 2107
 
    1          1951. Definition of practice as a "certified social worker".
    2          1952. Use of the title "certified social worker".
    3          1953. State board for social work.
    4          1954. Requirements for a professional license.
    5          1955. Limited permits.
    6    § 1950. Introduction.  This subarticle applies to the use of the title
    7  "certified social worker". The general provisions  for  all  professions
    8  contained in subarticle one of this article apply to this subarticle.
    9    § 1951. Definition  of  practice  as  a "certified social worker". The
   10  practice of social work as a "certified social  worker"  is  defined  as
   11  engaging, under such title, in social casework, social groupwork, commu-
   12  nity  organization, administration of a social work program, social work
   13  education, social work research, or any combination of these in  accord-
   14  ance  with  social  work  principles and methods. The practice of social
   15  work is for the purpose of helping  individuals,  families,  groups  and
   16  communities  to  prevent  or  to  resolve  problems  caused by social or
   17  emotional stress.
   18    § 1952. Use of the title "certified  social  worker".  Only  a  person
   19  licensed  under  this  subarticle  shall  be authorized to use the title
   20  "certified social worker".
   21    § 1953. State board for social work. 1. A state board for social  work
   22  shall  be appointed by the secretary of state for the purpose of assist-
   23  ing the secretary of state and the department of  state  on  matters  of
   24  professional  licensing  and  professional  conduct  in  accordance with
   25  section nine hundred twenty-two of this  article.  The  board  shall  be
   26  composed  of  not  less  than seven certified social workers licensed in
   27  this state. An executive secretary to the board shall  be  appointed  by
   28  the  secretary  of state and shall be a certified social worker licensed
   29  in this state.
   30    2. For purposes of this subarticle, "board" means the state board  for
   31  social work.
   32    § 1954. Requirements  for  a  professional  license.  To qualify for a
   33  license as a "certified social worker" an applicant  shall  fulfill  the
   34  following requirements:
   35    (1) Application: file an application with the department of state;
   36    (2)  Education:  have  received  an education, including a master's or
   37  equivalent degree in social work, in accordance with the regulations  of
   38  the secretary of state;
   39    (3) Experience: meet no requirement as to experience;
   40    (4)  Examination: pass an examination satisfactory to the board and in
   41  accordance with the regulations of the secretary of state;
   42    (5) Age: be at least twenty-one years of age;
   43    (6) Citizenship: meet no requirement as to United States citizenship;
   44    (7) Character: be of good moral character as determined by the depart-
   45  ment of state; and
   46    (8) Fees: pay a fee of one hundred seventy dollars to  the  department
   47  of  state for admission to a department conducted examination and for an
   48  initial license, a fee of eighty-five dollars for each reexamination,  a
   49  fee  of  one  hundred fifteen dollars for an initial license for persons
   50  not requiring admission to a department conducted examination, a fee  of
   51  one  hundred  fifty-five dollars for each triennial registration period,
   52  and for additional authorization for the purposes of paragraphs four and
   53  five of subsection (l) of section three thousand two hundred  twenty-one
   54  and  subsection  (i) of section four thousand three hundred three of the
   55  insurance law, eighty-five dollars.
       S. 1407                            282                           A. 2107
 
    1    § 1955. Limited permits.  1.  On  recommendation  of  the  board,  the
    2  department  of  state may issue a limited permit to practice social work
    3  as a certified social worker to an applicant whose  qualifications  have
    4  been  approved  for  admission  to  the examination. This limited permit
    5  shall  be  valid  for a period of not more than eighteen months or until
    6  the results of the next licensing examination for which  the  person  is
    7  eligible are officially available, whichever comes first.
    8    2. Fees. The fee for each limited permit shall be seventy dollars.
    9                                 SUBARTICLE 20
 
   10                               MASSAGE THERAPY
 
   11  Section 2000. Introduction.
   12          2001. Definition of practice of massage therapy.
   13          2002. Practice  of  massage  therapy and use of title "masseur",
   14                  "masseuse" or "massage therapist" or the term  "massage"
   15                  or "massage therapy".
   16          2003. State board for massage therapy.
   17          2004. Requirements for a professional license.
   18          2005. Exempt persons.
   19          2006. Limited permits.
   20    §  2000.  Introduction.  This  subarticle applies to the profession of
   21  massage therapy. The general provisions for all professions contained in
   22  subarticle one of this article apply to this subarticle.
   23    § 2001. Definition of practice of massage therapy. The practice of the
   24  profession of massage therapy is  defined  as  engaging  in  applying  a
   25  scientific  system  of  activity  to the muscular structure of the human
   26  body by means of stroking, kneading,  tapping  and  vibrating  with  the
   27  hands  or  vibrators for the purpose of improving muscle tone and circu-
   28  lation.
   29    § 2002. Practice of  massage  therapy  and  use  of  title  "masseur",
   30  "masseuse"  or  "massage  therapist"  or  the term "massage" or "massage
   31  therapy". Only a person licensed or authorized pursuant to this  article
   32  shall  practice  massage  therapy  and only a person licensed under this
   33  subarticle shall use the title "masseur", "masseuse" or "massage  thera-
   34  pist".  No  person,  firm,  partnership  or  corporation  claiming to be
   35  engaged in the practice of massage  or  massage  therapy  shall  in  any
   36  manner  describe,  advertise, or place any advertisement for services as
   37  defined in section two thousand  one  of  this  subarticle  unless  such
   38  services  are  performed  by a person licensed or authorized pursuant to
   39  this subarticle.
   40    § 2003. State board for massage therapy. 1. A state board for  massage
   41  therapy  shall be appointed by the secretary of state for the purpose of
   42  assisting the secretary of state and the department of state on  matters
   43  of  professional  licensing  and professional conduct in accordance with
   44  section nine hundred twenty-two of this  article.  The  board  shall  be
   45  composed  of  not  less than seven persons, four of whom shall have been
   46  engaged in the teaching, research, or practice of massage therapy for at
   47  least three years.  The remaining three members of the  board  shall  be
   48  physicians  licensed  in this state. An executive secretary to the board
   49  shall be appointed by the secretary of state.
   50    2. For purposes of this subarticle, "board" means the state board  for
   51  massage therapy.
   52    §  2004.  Requirements  for  a  professional license. To qualify for a
   53  license as a massage therapist, masseur or masseuse, an applicant  shall
   54  fulfill the following requirements:
       S. 1407                            283                           A. 2107
 
    1    (1) Application: file an application with the department of state;
    2    (2) Education: have received an education, including high school grad-
    3  uation and graduation from a school or institute of massage therapy with
    4  a  program  registered  by  the  department of state, or its substantial
    5  equivalent in both subject matter and extent of training, provided  that
    6  the  program  in  such  school  or  institute shall consist of classroom
    7  instruction of a total of not less than five hundred hours  in  subjects
    8  satisfactory to the department of state;
    9    (3)  Examination: pass an examination satisfactory to the board and in
   10  accordance with the regulations of the secretary of state;
   11    (4) Age: be at least eighteen years of age;
   12    (5) Citizenship or immigration status: be a United States  citizen  or
   13  an alien lawfully admitted for permanent residence in the United States;
   14    (6) Character: be of good moral character as determined by the depart-
   15  ment of state; and
   16    (7)  Fees:  pay a fee of one hundred fifteen dollars to the department
   17  of state for admission to a department conducted examination and for  an
   18  initial  license,  a fee of forty-five dollars for each reexamination, a
   19  fee of fifty dollars for an initial license for  persons  not  requiring
   20  admission  to  a  department  conducted  examination, and a fee of fifty
   21  dollars for each triennial registration period.
   22    § 2005. Exempt persons. Nothing contained in this subarticle shall  be
   23  construed to prohibit:
   24    1.  The practice of massage therapy by any person who is authorized to
   25  practice medicine, nursing, osteopathy, physiotherapy, chiropractic,  or
   26  podiatry in accordance with the provisions of this article.
   27    2.  The  practice of that massage which is customarily given in barber
   28  shops or beauty  parlors  for  the  purpose  of  beautification  by  any
   29  licensed barber or beauty culturist.
   30    3. The practice of massage therapy by any person employed in a medical
   31  institution  licensed  or  chartered  by the state of New York, provided
   32  that such person is under the on-site supervision of a  person  licensed
   33  to practice massage therapy or authorized to practice massage therapy by
   34  subdivision  one of this section, or by any person enrolled in a program
   35  of a school or institute of massage therapy registered by the state,  or
   36  enrolled  in  a  program which satisfies the requirements of section two
   37  thousand four of this subarticle, provided that such person is under the
   38  on-site supervision of a person licensed to practice massage therapy  or
   39  authorized  to  practice  massage  therapy  by  subdivision  one of this
   40  section.
   41    4. The practice of massage therapy by any person duly  employed  as  a
   42  trainer  by  a  professional athletic association, club or team, or as a
   43  member of the physical education department of an accredited university,
   44  college or high school.
   45    5. The practice of massage therapy by any person employed by a  corpo-
   46  ration  or  association  organized  exclusively  for the moral or mental
   47  improvement of men, women or children.
   48    § 2006. Limited permits. 1. The department of state may issue a limit-
   49  ed permit to practice massage therapy as a licensed  massage  therapist,
   50  masseur  or  masseuse  to  a  person  who has not previously held such a
   51  permit and who fulfills  all  except  the  examination  and  citizenship
   52  requirements  for a license, provided however that a permit shall not be
   53  issued to a person who has failed the state licensing examination.
   54    2. The limited permit shall be valid for a period  of  not  more  than
   55  twelve months or until the results of the next licensing examination for
       S. 1407                            284                           A. 2107
 
    1  which  the  person is eligible are officially available, whichever comes
    2  first.
    3    3. A limited permit shall entitle the holder to practice massage ther-
    4  apy  only  under the personal supervision of a person currently licensed
    5  and registered to practice massage therapy in this state.
    6    4. The fee for a limited permit shall be thirty-five dollars.
    7                                SUBARTICLE 21
 
    8                            OCCUPATIONAL THERAPY
 
    9  Section 2050. Introduction.
   10          2051. Definition.
   11          2052. Practice of occupational therapy and use of title "occupa-
   12                  tional therapist".
   13          2053. State board for occupational therapy.
   14          2054. Requirements for a professional license.
   15          2055. Limited permits.
   16          2056. Exempt persons.
   17          2057. Special conditions.
   18    § 2050. Introduction.  This subarticle applies to  the  profession  of
   19  occupational  therapy.    The  general  provisions  for  all professions
   20  contained in subarticle one of this article apply to this subarticle.
   21    § 2051. Definition.  The practice of the  profession  of  occupational
   22  therapy  is  defined  as the functional evaluation of the client and the
   23  planning and utilization of a program of purposeful activities to devel-
   24  op or maintain adaptive skills, designed to achieve maximal physical and
   25  mental functioning of the patient in his or her daily life  tasks.  Such
   26  treatment program shall be rendered on the prescription or referral of a
   27  physician  or  nurse  practitioner.  However,  nothing contained in this
   28  subarticle shall be construed to permit any licensee hereunder to  prac-
   29  tice medicine or psychology, including psychotherapy.
   30    § 2052. Practice  of  occupational  therapy  and use of title "occupa-
   31  tional therapist".  Only a person licensed or  otherwise  authorized  to
   32  practice  under  this  subarticle shall practice occupational therapy or
   33  use the title "occupational therapist".
   34    § 2053. State board for occupational therapy.   1. A state  board  for
   35  occupational  therapy  shall  be appointed by the secretary of state for
   36  the purpose of assisting the secretary of state and  the  department  of
   37  state  on  matters of professional licensing and professional conduct in
   38  accordance with section nine hundred twenty-two of this  article.    The
   39  board  shall  be  composed  of not less than seven licensed occupational
   40  therapists, and two additional members who shall include  one  physician
   41  and  one member who is primarily and actively engaged in hospital admin-
   42  istration.  Members of the first board, who are occupational therapists,
   43  need not be licensed prior to their appointment to the board.  An execu-
   44  tive secretary to the board shall  be  appointed  by  the  secretary  of
   45  state.
   46    2.  For purposes of this subarticle, "board" means the state board for
   47  occupational therapy.
   48    § 2054. Requirements for a professional license.   To  qualify  for  a
   49  license  as  an  occupational  therapist, an applicant shall fulfill the
   50  following requirements:
   51    (1) File an application with the department of state.
   52    (2) Have satisfactorily completed  an  approved  occupational  therapy
   53  curriculum  in  a  baccalaureate  or  masters  program, or a certificate
   54  program satisfactory to the department of state which  is  substantially
       S. 1407                            285                           A. 2107
 
    1  equivalent  to  a  baccalaureate  degree program, in accordance with the
    2  regulations of the secretary of state.
    3    (3)  Have  a  minimum of six months of supervised occupational therapy
    4  experience which supervision and experience shall be satisfactory to the
    5  board of occupational therapy and in accordance with the regulations  of
    6  the secretary of state.
    7    (4)  Pass  an  examination  satisfactory  to the board of occupational
    8  therapy and in accordance with  the  regulations  of  the  secretary  of
    9  state.
   10    (5) Be at least twenty-one years of age.
   11    (6) Meet no requirements as to United States citizenship.
   12    (7)  Be  of  good  moral  character as determined by the department of
   13  state.
   14    (8) Fees: pay a fee of one hundred forty dollars to the department  of
   15  state  for  admission  to  a department conducted examination and for an
   16  initial license, a fee of seventy dollars for each re-examination, a fee
   17  of one hundred fifteen dollars for an initial license  for  persons  not
   18  requiring  admission to a department conducted examination, and a fee of
   19  one hundred fifty-five dollars for each triennial registration period.
   20    § 2055. Limited permits.  Permits limited as to eligibility, practice,
   21  and duration, shall be issued by the department  of  state  to  eligible
   22  applicants, as follows:
   23    (1) The following persons shall be eligible for a limited permit:
   24    (a)  An  occupational therapist who has graduated from an occupational
   25  therapy curriculum with a baccalaureate degree or certificate in occupa-
   26  tional therapy which is  substantially  equivalent  to  a  baccalaureate
   27  degree  satisfactory to the board of occupational therapy and in accord-
   28  ance with the regulations of the secretary of state; or
   29    (b) A foreign occupational therapist who is in this country on a  non-
   30  immigration  visa  for  the  continuation of occupational therapy study,
   31  pursuant to the exchange student program of the United States Department
   32  of State.
   33    (2) A permittee shall be authorized to practice  occupational  therapy
   34  only  under  the  supervision  of a licensed occupational therapist or a
   35  licensed physician and shall practice only in a  public,  voluntary,  or
   36  proprietary hospital, health care agency or in a preschool or an elemen-
   37  tary or secondary school for the purpose of providing occupational ther-
   38  apy as a related service for a handicapped child.
   39    (3)  A  limited  permit shall be valid for one year. It may be renewed
   40  once for a period not to exceed one additional year, at  the  discretion
   41  of the department of state, upon the submission of an explanation satis-
   42  factory  to the department for an applicant's failure to become licensed
   43  within the original one-year period.  A limited permit shall become null
   44  and void if and when the holder thereof fails to pass a licensing  exam-
   45  ination.
   46    (4) The fee for a limited permit shall be seventy dollars.
   47    § 2056. Exempt  persons.    This  subarticle shall not be construed to
   48  affect or prevent the following, provided that no title, sign,  card  or
   49  device  shall be used in such manner as to tend to convey the impression
   50  that the person rendering such service is a licensed occupational thera-
   51  pist:
   52    (1) A licensed physician from practicing  his  or  her  profession  as
   53  defined under subarticles two and two-A of this article.
   54    (2)   Qualified  members  of  other  licensed  or  legally  recognized
   55  professions from performing work incidental to  the  practice  of  their
       S. 1407                            286                           A. 2107
 
    1  profession,  except  that such persons may not hold themselves out under
    2  the title occupational therapist or as performing occupational therapy.
    3    (3) A student from engaging in clinical practice as part of an accred-
    4  ited  program  in occupational therapy, pursuant to subdivision three of
    5  section two thousand fifty-four of this subarticle.
    6    (4) The care of the sick  by  any  person,  provided  such  person  is
    7  employed  primarily in a domestic capacity. This shall not authorize the
    8  treatment of patients in a home care service of  any  hospital,  clinic,
    9  institution or agency.
   10    (5) An employee of a federal agency from using the title of practicing
   11  as  an occupational therapist insofar as such activities are required by
   12  his salaried position and the use of such title shall be limited to such
   13  employment.
   14    (6) The following people from working under the direct supervision  of
   15  a licensed occupational therapist or a licensed physician:
   16    Occupational therapy assistants certified by the secretary of state as
   17  having successfully completed a program for occupational therapy assist-
   18  ants in accordance with regulations of the secretary of state.  However,
   19  in  the  case of those working under a licensed physician such exemption
   20  shall apply only in a  public,  voluntary  or  proprietary  hospital  or
   21  health  or  home  care  agency.  All such certified occupational therapy
   22  assistants shall register with the department  of  state  in  accordance
   23  with  regulations  of  the secretary of state.  The fee for such certif-
   24  ication shall be forty-five dollars. The registration fee shall be fifty
   25  dollars for each triennial registration period.
   26    (7) The following people from working under the direct supervision  of
   27  a licensed occupational therapist:
   28    An  individual  employed  by  the  state or municipal government as of
   29  October first, two thousand three who performs  supportive  services  in
   30  occupational  therapy  solely for the time such person continues in that
   31  employment.
   32    (8) Any occupational therapist  who  is  licensed  in  another  state,
   33  United  States  possession  or  country  or  who has received at least a
   34  baccalaureate degree or its equivalent in occupational therapy  and  who
   35  is  either  in this state for the purposes of (a) consultation, provided
   36  such practice is limited to such consultation; or  (b)  an  occupational
   37  therapist  authorized  to  practice  in  another  state  or country from
   38  conducting a  teaching  clinical  demonstration  in  connection  with  a
   39  program of basic clinical education, graduate education or post graduate
   40  education  in  an  approved school of occupational therapy or its affil-
   41  iated clinical facility or health care  agency  or  before  a  group  of
   42  licensed  occupational therapists; or (c) because he or she resides near
   43  a border of this state, provided such practice is limited in this  state
   44  to  the vicinity of such border and said occupational therapist does not
   45  maintain an office or place to meet patients or receive  calls  in  this
   46  state.
   47    § 2057. Special  conditions.    A  person who as of October first, two
   48  thousand three:
   49    (1) submits evidence of a  minimum  of  three  years  experience  with
   50  training  satisfactory  to  the  board  in  occupational  therapy and in
   51  accordance with the regulations of the secretary of state; or
   52    (2) a baccalaureate degree or its equivalent in occupational  therapy,
   53  shall  be licensed upon the filing of an application with the department
   54  of state on or before April first, two thousand four.
   55                                SUBARTICLE 22
       S. 1407                            287                           A. 2107
 
    1                           DIETETICS AND NUTRITION
 
    2  Section 2100. Introduction.
    3          2101. Definitions.
    4          2102. Use of titles.
    5          2103. State board for dietetics and nutrition.
    6          2104. Requirements for certification.
    7          2105. Special provisions.
    8          2106. Special conditions.
 
    9    § 2100. Introduction.    This  subarticle  applies  to  the use of the
   10  titles "certified dietitian" and "certified nutritionist".  The  general
   11  provision  for all professions contained in subarticle one of this arti-
   12  cle shall apply to this subarticle.
   13    § 2101. Definitions.   1. Dietetics  and  nutrition  are  herein  each
   14  defined  as   the integration and application of principles derived from
   15  the sciences of nutrition, biochemistry, physiology, food management and
   16  behavioral and social sciences to achieve and maintain people's health.
   17    2. Where the title "certified dietitian" or  "certified  nutritionist"
   18  is  used in this article it shall mean "certified dietitian", "certified
   19  dietician", or "certified nutritionist".
   20    3. A certified dietitian or certified nutritionist is one who  engages
   21  in  the  integration  and  application  of  principles  derived from the
   22  sciences of nutrition, biochemistry,  physiology,  food  management  and
   23  behavioral  and social sciences to achieve and maintain people's health,
   24  and who is certified as such by the  department  of  state  pursuant  to
   25  section  twenty-one  hundred four of this subarticle.  The primary func-
   26  tion of a certified dietitian or certified nutritionist is the provision
   27  of nutrition care services that shall include:
   28    (a) Assessing nutrition needs and food patterns;
   29    (b) Planning for and directing the provision of food  appropriate  for
   30  physical and nutrition needs; and
   31    (c) Providing nutrition counseling.
   32    § 2102. Use of titles.  Only a person certified  under this subarticle
   33  shall  be  authorized to use the title "certified dietitian", "certified
   34  dietician", or "certified nutritionist".
   35    § 2103. State board for dietetics and nutrition.  1. A state board for
   36  dietetics and nutrition shall be appointed by the  secretary  of  state,
   37  for  the  purpose of assisting the secretary of state and the department
   38  of state on matters of certification and professional conduct in accord-
   39  ance with section nine hundred twenty-two of this article.
   40    2. The board shall consist of not less than thirteen members,  ten  of
   41  whom  shall  be  certified dietitians or certified nutritionists, except
   42  that the members of the first board need not be certified  but shall  be
   43  persons  who are eligible for certification under the provisions of this
   44  article prior to their appointment to the board.  The first board,  with
   45  respect  to  members  representing the profession, shall consist of five
   46  members registered by a national dietetic association  having  registra-
   47  tion  standards  acceptable  to the department of state and five members
   48  who are members of or registered by a national  nutritional  association
   49  having  membership  and/or  registration  standards  acceptable  to  the
   50  department of state. Thereafter, members of the profession appointed  to
   51  such  board  shall be certified pursuant to this article.  To the extent
   52  reasonable, the secretary of state should  insure  the  state  board  is
   53  broadly  representative  of  various  professional  interests within the
   54  dietetic and nutritional community.   Three members shall  be  represen-
       S. 1407                            288                           A. 2107
 
    1  tatives of the general public. An executive secretary to the board shall
    2  be appointed by the secretary of state.
    3    3.  For purposes of this subarticle, "board" means the state board for
    4  dietetics and nutrition.
    5    § 2104. Requirements for certification.  To qualify for certification,
    6  an applicant shall fulfill the following requirements:
    7    1. File an application with the department of state;
    8    2. (a)(1) Have received an education including a bachelor's degree, or
    9  its  equivalent  as  determined  by  the   department   of   state,   in
   10  dietetics/nutrition  or  an equivalent major course of study which shall
   11  include appropriate core curriculum courses in dietetics/nutrition  from
   12  an  accredited  college  or  university as approved by the department of
   13  state, in accordance with the regulations of the secretary of state; and
   14    (2) Have completed a planned,  continuous,  experience  component,  in
   15  accordance  with  the regulations of the secretary of state, in dietetic
   16  or nutrition practice under the supervision of a certified dietitian  or
   17  certified  nutritionist or a dietitian or nutritionist who is registered
   18  by or is a member of a national dietetic association or national  nutri-
   19  tion  association having registration or membership standards acceptable
   20  to the department of state; such experience shall be satisfactory to the
   21  board and in accordance with the regulations of the secretary of  state;
   22  or
   23    (b)(1)  Have  received  an education including an associates degree in
   24  dietetics or nutrition acceptable to the department of state,
   25    (2) In the last fifteen years have completed ten years  of  experience
   26  and education in the field of dietetics or nutrition satisfactory to the
   27  board  in  accordance  with  the  regulations of the secretary of state.
   28  These ten years must be the full time equivalent of any  combination  of
   29  post secondary dietetic or nutrition education and dietetic or nutrition
   30  work  experience  satisfactory to the board in accordance with the regu-
   31  lations of the secretary of state, and
   32    (3) Have obtained the endorsement of three dietitians or nutritionists
   33  acceptable to the department of state;
   34    3. Pass an examination satisfactory to the  board  and  in  accordance
   35  with the regulations the secretary of state; provided that such examina-
   36  tion  shall  test a level of knowledge and experience equivalent to that
   37  obtained by an individual satisfactorily  meeting  the  requirements  of
   38  paragraph (a) of subdivision two of this section;
   39    4.  Pay a fee of one hundred seventy-five dollars to the department of
   40  state for admission  to  a  department  conducted  examination  and  for
   41  initial  certification, a fee of eighty-five dollars for each reexamina-
   42  tion, a fee of one hundred fifteen dollars for an initial  certification
   43  for  persons  not requiring admission to a department conducted examina-
   44  tion, a fee of one hundred fifty-five dollars for each triennial  regis-
   45  tration period;
   46    5. Be at least eighteen years of age.
   47    § 2105. Special  provisions.    Nothing  contained  in this subarticle
   48  shall be deemed to alter, modify or impair any conditions of  employment
   49  relating  to  service  in the federal government, the state of New York,
   50  its political  subdivisions,  including  school  districts,  or  special
   51  districts  and  authorities  or any facilities or institutions under the
   52  jurisdiction of or subject to the certification of  any  agency  of  the
   53  state of New York or its political subdivisions.
   54    § 2106. Special conditions.  A person shall be certified without exam-
   55  ination  provided that, within three years of the effective date of this
   56  subarticle, the individual:
       S. 1407                            289                           A. 2107
 
    1    1. files an application and pays the appropriate fees to  the  depart-
    2  ment of state; and
    3    2.    (a)  is  registered as a dietitian or nutritionist by a national
    4  dietetic or national nutrition association having registration standards
    5  acceptable to the department of state;
    6    (b) meets the requirements of subparagraph one  of  paragraph  (a)  of
    7  subdivision  two and subdivision five of section twenty-one hundred four
    8  of this subarticle and has been actively engaged  in  the  provision  of
    9  nutrition  care  services  for  a minimum of three years during the five
   10  years immediately preceding the effective date of this subarticle; or
   11    (c) meets all the requirements of paragraph (b) of subdivision two and
   12  subdivision five of section twenty-one hundred four of this subarticle.
   13                                SUBARTICLE 23
 
   14                SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS
 
   15  Section  2150. Introduction.
   16           2151. Definition of practice of speech-language pathology.
   17           2152. Practice of speech-language pathology.
   18           2153. Definition of practice of audiology.
   19           2154. Practice of audiology.
   20           2155. State board for speech-language pathology and audiology.
   21           2156. Requirements for a professional license.
   22           2157. Exempt persons.
   23           2158. Special provisions.
   24           2159. Mandatory continuing competency.
   25    § 2150. Introduction.  This subarticle applies to the  professions  of
   26  speech-language  pathology and audiology. The general provisions for all
   27  professions contained in subarticle one of this article  apply  to  this
   28  subarticle.
   29    § 2151. Definition  of  practice  of  speech-language pathology.   The
   30  practice of the profession of speech-language pathology shall  mean  the
   31  application  of  principles,  methods  and  procedures  of  measurement,
   32  prediction, non-medical diagnosis, testing,  counselling,  consultation,
   33  rehabilitation  and instruction related to the development and disorders
   34  of speech,  voice,  swallowing,  and/or  language  for  the  purpose  of
   35  preventing,  ameliorating or modifying such disorder conditions in indi-
   36  viduals and/or groups of individuals.
   37    § 2152. Practice of speech-language pathology.  Only a person licensed
   38  or otherwise authorized under this subarticle shall practice speech-lan-
   39  guage pathology or use the title of speech-language pathologist.
   40    § 2153. Definition of practice  of  audiology.  The  practice  of  the
   41  profession  of audiology shall mean the application of principles, meth-
   42  ods and procedures of measurement,  testing,  evaluation,  consultation,
   43  counselling,  instruction  and habilitation or rehabilitation related to
   44  hearing and its disorders, related communication impairments and  vesti-
   45  bular  disorders  for  the purpose of non-medical diagnosis, prevention,
   46  identification, amelioration  or  modification  of  such  disorders  and
   47  conditions in individuals and/or groups of individuals.
   48    § 2154. Practice  of  audiology.   Only a person licensed or otherwise
   49  authorized under this subarticle shall practice  audiology  or  use  the
   50  title audiologist.
   51    § 2155. State board for speech-language pathology and audiology.  1. A
   52  state  board  for  speech-language  pathology  and  audiology  shall  be
   53  appointed by the secretary of state for the  purpose  of  assisting  the
   54  secretary  of  state  and  the department of state on matters of profes-
       S. 1407                            290                           A. 2107
 
    1  sional licensing and professional conduct  in  accordance  with  section
    2  nine  hundred twenty-two of this article. The board shall consist of not
    3  less than seven members, three of whom shall be audiologists and four of
    4  whom shall be speech-language pathologists. Each speech-language pathol-
    5  ogist  and audiologist on the board shall be licensed and have practiced
    6  in this state for at least five years, as provided  under  this  article
    7  except that the members of the first board need not be licensed prior to
    8  their  appointment  to  the  board.  An executive secretary to the board
    9  shall be appointed by the secretary of state.
   10    2. For purposes of this subarticle, "board" means the state board  for
   11  speech-language pathology and audiology.
   12    § 2156. Requirements  for  a  professional license.   To qualify for a
   13  license as a speech-language pathologist or  audiologist,  an  applicant
   14  shall fulfill the following requirements.
   15    (1) Application: file an application with the department of state;
   16    (2)  Education: have obtained at least a Masters degree in speech-lan-
   17  guage pathology and/or audiology or its equivalent, as determined by the
   18  department of state, in accordance with the regulations of the secretary
   19  of state;
   20    (3) Experience: have experience  satisfactory  to  the  board  and  in
   21  accordance with the regulations of the secretary of state;
   22    (4)  Examination: pass an examination satisfactory to the board and in
   23  accordance with the regulations of the secretary of state;
   24    (5) Age: be at least twenty-one years of age;
   25    (6) Character: be of good moral character as determined by the depart-
   26  ment of state; and
   27    (7) Fees: pay a fee of one hundred forty dollars to the department  of
   28  state  for  admission  to  a department conducted examination and for an
   29  initial license, a fee of seventy dollars for each reexamination, a  fee
   30  of  one  hundred  fifteen dollars for an initial license for persons not
   31  requiring admission to a department conducted examination, and a fee  of
   32  one hundred fifty-five dollars for each triennial registration period.
   33    § 2157. Exempt  persons.    This  subarticle shall not be construed as
   34  prohibiting:
   35    (1) The practice of any other professions licensed or registered under
   36  this article.
   37    (2) Any person employed by the federal, state or a local government or
   38  by a public or non-public elementary or secondary school or an  institu-
   39  tion  of higher learning from performing the duties of a speech-language
   40  pathologist, an audiologist, a teacher of the speech and  hearing  hand-
   41  icapped, or a teacher of the deaf in the course of such employment.
   42    (3)  Any  person  from engaging in clinical or academic practice under
   43  the supervision of a licensed speech-language pathologist or audiologist
   44  for such period of time as may be necessary to  complete  an  experience
   45  requirement  for  a professional license, as provided in this subarticle
   46  and in rules or regulations approved by the secretary of state with  the
   47  advice of the state board for speech-language pathology and audiology.
   48    (4)  A  person  from  another  state  from  performing speech-language
   49  pathology or audiology services in this state provided such services are
   50  performed for no more than thirty days in any calendar year and provided
   51  that such services are performed in conjunction with  and/or  under  the
   52  supervision  of  a  speech-language  pathologist or audiologist licensed
   53  under this subarticle.
   54    (5) Any hearing aid dealer from  performing  hearing  measurements  by
   55  means  of  an audiometer or other testing equipment when used solely for
   56  the purpose of selecting, fitting, selling or dispensing  an  instrument
       S. 1407                            291                           A. 2107
 
    1  designed  to  aid  or  improve  human  hearing,  including the taking of
    2  impressions for the making and fitting  of  ear  molds  and  the  demon-
    3  stration  of  use and instructions of persons in the use of such hearing
    4  aids and accessories thereto.
    5    (6)  A  student  from  engaging in clinical practice, under the super-
    6  vision of a licensed audiologist or a licensed speech-language  patholo-
    7  gist  as  part  of  a nationally accredited program or a state licensure
    8  qualifying program in speech-language pathology or  audiology,  pursuant
    9  to  subdivision  three  of  section twenty-one hundred fifty-six of this
   10  subarticle.
   11    § 2158. Special provisions.  (1) Every person  regularly  employed  in
   12  teaching  or working as a speech-language pathologist or audiologist for
   13  not less than two years prior to the effective date of  this  subarticle
   14  shall  be issued a license by the department of state, if he or she is a
   15  person of good moral character; twenty-one  years  or  older,  has  been
   16  engaged  in such practice in the state for at least two years in accord-
   17  ance with regulations of the secretary of state, and possesses
   18    (a) the American Speech-Language-Hearing  Association  certificate  of
   19  clinical  competence  in  speech-language pathology and/or audiology, or
   20  the equivalent thereof as determined by the board in accordance with the
   21  regulations of the secretary of state; or
   22    (b) a masters degree in speech-language pathology, audiology or commu-
   23  nication disorders appropriate to the license being sought and  a  total
   24  of five years experience; or
   25    (c)  a  bachelors  degree  in  speech-language pathology, audiology or
   26  communication disorders appropriate to  the  license  being  sought  and
   27  thirty postgraduate semester hours in subjects satisfactory to the board
   28  and a total of five years experience; or
   29    (d)  a  bachelors  degree  and sufficient postgraduate study to be the
   30  equivalent of a masters degree in speech-language  pathology,  audiology
   31  or communication disorders as determined by the board in accordance with
   32  the  regulations  of  the  secretary  of state and a total of five years
   33  experience.
   34    (2) This subarticle shall not prohibit the practice of speech-language
   35  pathology or audiology by a corporation provided that such  practice  is
   36  carried  on  by a licensed speech-language pathologist or audiologist or
   37  persons exempt under this subarticle and a violation of  this  provision
   38  shall be a class A misdemeanor.
   39    (3)  Any  person  or  firm  offering the services of a speech-language
   40  pathologist or audiologist shall employ only persons licensed or  exempt
   41  under this subarticle and a violation of this provision shall be a class
   42  A misdemeanor.
   43    (4)  (a) The secretary of state, pursuant to the recommendation of the
   44  board shall promulgate regulations  defining  appropriate  standards  of
   45  conduct  for  the  dispensing  of hearing aids by licensed audiologists.
   46  Such regulations shall also  define  continuing  education  requirements
   47  which such dispensing audiologist shall meet as a condition of maintain-
   48  ing registration pursuant to this subarticle.
   49    (b)  Audiologists  engaged  in the practice of dispensing hearing aids
   50  shall comply with the applicable provisions of article thirty-seven-a of
   51  this chapter.
   52    § 2159. Mandatory continuing competency. (1)(a) Each licensed  speech-
   53  language  pathologist  and audiologist required under this subarticle to
   54  register triennially with the department of state  to  practice  in  the
   55  state  shall  comply  with  the  provisions  of the mandatory continuing
   56  competency requirements prescribed in subdivision two of  this  section,
       S. 1407                            292                           A. 2107
 
    1  except  as  provided  in  paragraphs  (b)  and  (c) of this subdivision.
    2  Speech-language pathologists and audiologists who  do  not  satisfy  the
    3  mandatory  continuing competency requirements shall not be authorized to
    4  practice  until  they  have  met  such  requirements, and they have been
    5  issued a registration certificate, except that a speech-language pathol-
    6  ogist or audiologist may practice without having met  such  requirements
    7  if  he  or she is issued a conditional registration pursuant to subdivi-
    8  sion three of this section.
    9    (b) Speech-language pathologists and audiologists shall be exempt from
   10  the mandatory continuing competency requirement for the triennial regis-
   11  tration period during which they are first licensed. Adjustment  to  the
   12  mandatory  continuing  competency  requirements  may  be  granted by the
   13  department of state for reasons of health of the licensee  where  certi-
   14  fied  by  an  appropriate  health care professional, for extended active
   15  duty with the armed forces of the United States, or for other good cause
   16  acceptable to the department of state which may prevent compliance.
   17    (c) A licensed speech-language pathologist or audiologist not  engaged
   18  in  practice,  as determined by the department of state, shall be exempt
   19  from the mandatory continuing competency requirement upon the filing  of
   20  a  statement with the department declaring such status. Any licensee who
   21  returns to the practice of speech-language pathology or audiology during
   22  the triennial registration period shall notify the department  of  state
   23  prior to reentering the profession and shall meet such mandatory contin-
   24  uing  competency  requirements  as shall be prescribed by regulations of
   25  the secretary of state.
   26    (2) During each triennial registration period an applicant for  regis-
   27  tration  as  either  a  speech-language pathologist or audiologist shall
   28  complete a minimum of thirty hours of learning activities which contrib-
   29  ute to continuing competence, as specified in subdivision four  of  this
   30  section,  provided further that at least twenty hours shall be in recog-
   31  nized areas of study pertinent to the licensee's professional  scope  of
   32  practice  of speech language pathology and/or audiology.  A licensee who
   33  has not satisfied the mandatory continuing competency requirements shall
   34  not be issued a triennial registration certificate by the department  of
   35  state and shall not practice unless and until a conditional registration
   36  certificate  is  issued  as  provided  for  in subdivision three of this
   37  section. Continuing competency hours taken during one triennium may  not
   38  be transferred to a subsequent triennium.
   39    (3)  The  department  of  state, in its discretion, may issue a condi-
   40  tional registration to a licensee  who  fails  to  meet  the  continuing
   41  competency  requirements established in subdivision two of this section,
   42  but who agrees to make up any deficiencies and complete  any  additional
   43  learning  activities  which the department of state may require. The fee
   44  for such a conditional registration shall be the same as, and  in  addi-
   45  tion  to,  the  fee for the triennial registration. The duration of such
   46  conditional registration shall be determined by the department of  state
   47  but  shall  not  exceed  one  year.  Any licensee who is notified of the
   48  denial of registration for failure to submit evidence,  satisfactory  to
   49  the  department  of  state,  of  required continuing competency learning
   50  activities and who practices without such registration, may  be  subject
   51  to  disciplinary proceedings pursuant to section nine hundred forty-four
   52  of this article.
   53    (4) As used in subdivision two of this section,  "acceptable  learning
   54  activities" shall mean activities which contribute to professional prac-
   55  tice  in  speech-language pathology and/or audiology, and which meet the
   56  standards prescribed in the regulations of the secretary of state.  Such
       S. 1407                            293                           A. 2107
 
    1  learning activities shall include, but not  be  limited  to,  collegiate
    2  level  credit and non-credit courses, self-study activities, independent
    3  study, formal mentoring activities, publications in  professional  jour-
    4  nals,  professional  development  programs  and technical sessions; such
    5  learning activities may be offered and sponsored by national, state  and
    6  local  professional  associations  and  other  organizations  or parties
    7  acceptable to the department of state, and any  other  organized  educa-
    8  tional and technical learning activities acceptable to the department of
    9  state.   The department of state may, in its discretion and as needed to
   10  contribute to  the  health  and  welfare  of  the  public,  require  the
   11  completion  of  continuing  competency  learning  activities in specific
   12  subjects to fulfill this mandatory  continuing  competency  requirement.
   13  For  speech-language pathologists who are employed in school settings as
   14  teachers of the  speech  and  hearing  handicapped  or  as  teachers  of
   15  students  with  speech  and  language  disabilities, acceptable learning
   16  activities shall also  include  professional  development  programs  and
   17  technical  sessions  specific  to  teaching  students  with  speech  and
   18  language disabilities including those designed to  improve  methods  for
   19  teaching  such  students, aligned with professional development plans in
   20  accordance with regulations of the secretary of state and promoting  the
   21  attainment  of  standards for such students. Learning activities must be
   22  taken from a sponsor approved by the department of  state,  pursuant  to
   23  the regulations of the secretary of state.
   24    (5)  Speech-language  pathologists  and  audiologists  shall  maintain
   25  adequate documentation of completion of acceptable continuing competency
   26  learning activities and shall provide such documentation at the  request
   27  of  the department of state.  Failure to provide such documentation upon
   28  the request of the department of state shall be  an  act  of  misconduct
   29  subject  to  disciplinary  proceedings  pursuant to section nine hundred
   30  forty-four of this article.
   31    (6) The mandatory continuing competency fee shall  be  fifty  dollars,
   32  shall  be payable on or before the first day of each triennial registra-
   33  tion period, and shall be paid in addition to the triennial registration
   34  fee required by section twenty-one hundred fifty-six of this subarticle.
   35                                 SUBARTICLE 24
   36                                 ACUPUNCTURE
 
   37  Section 2200. Introduction.
   38          2201. Definitions.
   39          2202. Practice  of  acupuncture  and  use  of  title   "licensed
   40                  acupuncturist" or "certified acupuncturist".
   41          2203. State board for acupuncture.
   42          2204. Requirements for a professional license.
   43          2205. Limited permits.
   44          2206. Exemptions; waiver.
   45    § 2200. Introduction.    This  subarticle applies to the profession of
   46  acupuncture. The general provisions for  all  professions  contained  in
   47  subarticle one of this article apply to this subarticle.
   48    § 2201. Definitions.  As  used  in this subarticle the following terms
   49  shall have the following meanings:
   50    (1) (a) "Profession of acupuncture"  is  the  treating,  by  means  of
   51  mechanical,  thermal or electrical stimulation effected by the insertion
   52  of needles or by the application of heat, pressure or electrical  stimu-
   53  lation  at  a  point or combination of points on the surface of the body
   54  predetermined on the basis of the theory of the  physiological  interre-
   55  lationship  of  body  organs  with an associated point or combination of
       S. 1407                            294                           A. 2107
 
    1  points for diseases, disorders and dysfunctions  of  the  body  for  the
    2  purpose of achieving a therapeutic or prophylactic effect.
    3    (b)  Each  acupuncturist  licensed  pursuant to this subarticle, shall
    4  advise each patient as to the importance of consulting with  a  licensed
    5  physician  regarding the patient's condition and shall keep on file with
    6  the patient's records, a form attesting to the patient's notice of  such
    7  advice.  Such form shall be in duplicate, one copy to be retained by the
    8  patient, signed and dated by both the acupuncturist and the patient  and
    9  shall be prescribed in the following manner:
 
   10    WE,  THE  UNDERSIGNED,  DO AFFIRM THAT               (THE PATIENT) HAS
   11  BEEN ADVISED BY                , (A LICENSED ACUPUNCTURIST), TO  CONSULT
   12  A PHYSICIAN REGARDING THE CONDITION OR CONDITIONS FOR WHICH SUCH PATIENT
   13  SEEKS ACUPUNCTURE TREATMENT.
 
   14  ___________________________          ________________________
   15          (Signature)                            Date
 
   16  ___________________________          ________________________
   17          (Signature)                            Date
 
   18    (2)  "Board"  is the state board for acupuncture as created by section
   19  twenty-two hundred three of this subarticle.
   20    § 2202. Practice of acupuncture and use of title "licensed  acupunctu-
   21  rist"  or  "certified acupuncturist".  Only a person licensed or author-
   22  ized pursuant to section twenty-two hundred four of this  subarticle  or
   23  certified  pursuant to section twenty-two hundred six of this subarticle
   24  shall practice acupuncture.  Only a person licensed pursuant to  section
   25  twenty-two hundred four of this subarticle shall use the title "licensed
   26  acupuncturist"  and  only a person certified pursuant to section twenty-
   27  two hundred six of  this  subarticle  shall  use  the  title  "certified
   28  acupuncturist".
   29    § 2203. State  board  for acupuncture.  1. There is hereby established
   30  within the department of state a state board for acupuncture. The  board
   31  shall  consist  of  not  less than eleven members to be appointed by the
   32  secretary of state for the purpose of assisting the secretary  of  state
   33  and  the  department  of  state on matters of professional licensing and
   34  professional conduct in accordance with section nine hundred  twenty-two
   35  of  this article, four of whom shall be licensed acupuncturists, four of
   36  whom shall be licensed physicians certified to use acupuncture and three
   37  of whom shall be public members representing the consumer and community.
   38  Of the acupuncturists first appointed to the board, one may be a  regis-
   39  tered  specialist's assistant-acupuncture provided that the term of such
   40  registered specialist's assistant-acupuncture shall  not  be  more  than
   41  four years. Of the members first appointed, three shall be appointed for
   42  a  one year term, three shall be appointed for a two year term and three
   43  shall be appointed for a three year term, and two shall be appointed for
   44  a four year term. Thereafter all  members  shall  serve  for  five  year
   45  terms.  In  the  event  that  more  than eleven members are appointed, a
   46  majority of the additional members shall be licensed acupuncturists. The
   47  members of the board shall select one of themselves as chairman to serve
   48  for a one year term.
   49    2. An executive secretary to the  board  shall  be  appointed  by  the
   50  secretary of state.
       S. 1407                            295                           A. 2107
 
    1    3.  The secretary of state shall promulgate such rules and regulations
    2  as he or she deem necessary and appropriate to effectuate the provisions
    3  of this subarticle.
    4    § 2204. Requirements  for  a  professional license.   To qualify for a
    5  license as a licensed  acupuncturist  an  applicant  shall  fulfill  the
    6  following requirements.
    7    (1) Application: file an application with the department of state;
    8    (2) Education: provide evidence of satisfactory completion of a course
    9  of  formal  study  or  its substantial equivalent in accordance with the
   10  regulations of the secretary of state;
   11    (3) Experience: have experience in accordance with the regulations  of
   12  the secretary of state;
   13    (4)  Examination: pass an examination satisfactory to the board and in
   14  accordance with the regulations of the secretary of state.   Such  exam-
   15  ination  shall be given at least once within twelve months of the effec-
   16  tive date of this subarticle, and at least once annually thereafter, and
   17  shall consist of both written and practical parts. Either  part  may  be
   18  given  at  the  discretion  of the department of state in English and/or
   19  Chinese or  other  language.  Nothing  in  this  subdivision  is  to  be
   20  construed  to  require  the  department  of  state to issue an exam in a
   21  language other than English. The practical part  of  the  exam  must  be
   22  directly  administered  by an acupuncturist acceptable to the department
   23  of state, who may also be a member of the board. The cost of the initial
   24  examination or reexamination shall be borne by the applicant in  accord-
   25  ance with a schedule established by the department of state and approved
   26  by the director of the budget;
   27    (5) Age: be at least twenty-one years of age;
   28    (6) Character: be of good moral character as determined by the depart-
   29  ment of state;
   30    (7) Fees: pay a fee of five hundred dollars to the department of state
   31  for  initial  licensure, and a fee of two hundred fifty dollars for each
   32  triennial registration;
   33    (8) Registration: if a license is granted, register  triennially  with
   34  the department of state, including present home and business address and
   35  such other pertinent information as the department of state requires.
   36    § 2205. Limited  permits.    (1) The department of state shall issue a
   37  limited permit to an applicant who meets all requirements for  admission
   38  to the licensing examination;
   39    (2) All practice under a limited permit shall be under the supervision
   40  of a licensed or certified acupuncturist in a public hospital, an incor-
   41  porated  hospital or clinic, a licensed proprietary hospital, a licensed
   42  nursing home, a public health agency, the office of a licensed or certi-
   43  fied acupuncturist or in the civil  service  of  the  federal  or  state
   44  government;
   45    (3)  Limited  permits  shall be for one year and may be renewed at the
   46  discretion of the department of state for one additional year;
   47    (4) Supervision of a permittee by a licensed or  certified  acupunctu-
   48  rist  shall  be  on-site supervision and not necessarily direct personal
   49  supervision;
   50    (5) No practitioner shall supervise more than one permittee;
   51    (6) The fee for each limited permit and  for  each  renewal  shall  be
   52  determined by the department of state.
   53    § 2206. Exemptions; waiver.  (1) A person who is validly registered as
   54  a "specialist's assistant-acupuncture" in accordance with section eleven
   55  hundred  one  of  this  article  and the regulations of the secretary of
   56  state shall not be subject to the provisions of this subarticle;
       S. 1407                            296                           A. 2107
 
    1    (2) Any person who is validly licensed under  the  provisions  of  the
    2  former  chapter  nine hundred fifty-nine of the laws of nineteen hundred
    3  seventy-four is deemed to be licensed pursuant to this article;
    4    (3)  Any  person  who is validly certified under the provisions of the
    5  former chapter nine hundred fifty-nine of the laws of  nineteen  hundred
    6  seventy-four  shall continue to be certified to practice acupuncture and
    7  may continue to use the title certified acupuncturist. The department of
    8  state may establish rules and  regulations  providing  for  the  certif-
    9  ication of physicians and dentists as acupuncturists, provided that such
   10  certified   acupuncturists  do  not  represent  themselves  as  licensed
   11  acupuncturists. Certified  acupuncturists  seeking  to  become  licensed
   12  acupuncturists shall be subject to all provisions of this subarticle;
   13    (4)  A person who does not otherwise possess the credentials or quali-
   14  fications required for the practice of acupuncture  prescribed  by  this
   15  subarticle or the regulations promulgated hereunder or any other law but
   16  who  is  authorized by the division of alcoholism and alcohol abuse, the
   17  division of substance abuse services, or the  department  of  health  to
   18  provide  treatment  for  alcoholism,  substance  dependence, or chemical
   19  dependency in a hospital or clinical program which has been approved for
   20  such treatment by the division of  alcoholism  and  alcohol  abuse,  the
   21  division  of  substance  abuse services, or the department of health and
   22  who has been trained to practice acupuncture for the treatment of  alco-
   23  holism,  substance  dependence, or chemical dependency through an educa-
   24  tional program acceptable to the department of  state  may  nevertheless
   25  practice  acupuncture provided such practice is limited to the treatment
   26  of alcoholism, substance dependence,  or  chemical  dependency  in  such
   27  clinical  or  hospital  programs,  or  in  a program that if statutorily
   28  exempt from such approval meets standards approved by  the  division  of
   29  alcoholism  and alcohol abuse, the division of substance abuse services,
   30  or the department of health, and further provided that such practice  is
   31  done in accordance with regulations promulgated by the division of alco-
   32  holism  and  alcohol abuse, the division of substance abuse services, or
   33  the department of health. Such person shall work only under the  general
   34  supervision  of a physician or dentist certified to practice acupuncture
   35  or an individual licensed to practice acupuncture in the  state  of  New
   36  York  pursuant  to  this article. Notwithstanding any other law, rule or
   37  regulation to the contrary, persons  authorized  on  or  before  October
   38  first,  two  thousand three to practice acupuncture for the treatment of
   39  alcoholism, substance dependence, or chemical dependency within a hospi-
   40  tal or clinical program which has been approved for  such  treatment  by
   41  the  division of alcoholism and alcohol abuse, the division of substance
   42  abuse services, or the department of health may nevertheless continue to
   43  practice acupuncture under the provisions of this subdivision;
   44    (5) Any person who is pursuing qualification for licensure  through  a
   45  course of formal study pursuant to this subarticle may practice acupunc-
   46  ture without a license, provided such practice is limited to such study;
   47    (6) Any person who has completed a formal course of study or a tutori-
   48  al  apprenticeship  acceptable to the department of state and in accord-
   49  ance with the regulations of the secretary of state, prior to the effec-
   50  tive date of this subarticle, and presents satisfactory  proof  of  such
   51  completion, shall be exempt from the education requirements set forth in
   52  subdivision  two  of  section twenty-two hundred four of this subarticle
   53  provided an application pursuant to subdivision one of  section  twenty-
   54  two  hundred  four  of  this  subarticle is filed with the department of
   55  state not later than one year from the effective date of  this  subarti-
       S. 1407                            297                           A. 2107
 
    1  cle, and in no event shall participation in such tutorial apprenticeship
    2  or formal course of study constitute a violation of this article.
    3    (7) Any person who is pursuing qualification for certification through
    4  a  formal  course  of  study  in  a  registered  program  and any person
    5  appointed to the faculty of such program may practice acupuncture  with-
    6  out  a license, provided that such practice is limited to such research,
    7  study and training.
 
    8                                SUBARTICLE 25
 
    9                               INTERIOR DESIGN
 
   10  Section 2250. Application.
   11          2251. Use of the title "certified interior designer".
   12          2252. Signature of a certified interior designer.
   13          2253. Definition of practice of interior design.
   14          2254. State board for interior design.
   15          2255. Requirements for certification.
   16          2256. Limited permits.
   17          2257. Separability.
 
   18    § 2250. Application.  This subarticle applies to the use of a title by
   19  a  certified  interior  designer.  The  general   provisions   for   all
   20  professions  contained  in  subarticle one of this article apply to this
   21  subarticle.
   22    § 2251. Use of the title "certified interior designer".  Only a person
   23  certified pursuant to this subarticle may use the title "certified inte-
   24  rior designer".  Authorization contained within this subarticle  to  use
   25  the title "certified interior designer" shall not be construed to permit
   26  the practice of engineering, as described in subarticle thirteen of this
   27  article,  or  the  practice  of architecture, as described in subarticle
   28  fourteen of this article, by persons not otherwise authorized to  engage
   29  in such practices.
   30    § 2252. Signature of  a  certified  interior  designer.   All original
   31  final interior design documents, plans and specifications, prepared by a
   32  certified interior designer or by a full-time or  part-time  subordinate
   33  employed  under his or her supervision, shall be manually  signed by the
   34  certified interior designer.
   35    § 2253. Definition of practice of interior design.   For the  purposes
   36  of  this  subarticle,  the  practice  of  interior  design is defined as
   37  rendering or offering to render services for a  fee  or  other  valuable
   38  consideration,  in the preparation and administration of interior design
   39  documents  (including  drawings,  schedules  and  specifications)  which
   40  pertain  to  the  planning  and  design  of  interior  spaces  including
   41  furnishings, layouts, fixtures, cabinetry, lighting,  finishes,  materi-
   42  als,  and  interior construction not materially related to or materially
   43  affecting the building systems, all of which shall comply with  applica-
   44  ble laws, codes, regulations, and standards. The scope of work described
   45  herein  shall not be construed as authorizing the planning and design of
   46  engineering and architectural interior construction as  related  to  the
   47  building  systems,  including structural, electrical, plumbing, heating,
   48  ventilating, air conditioning or mechanical systems  and  shall  not  be
   49  construed  as authorizing the practice of engineering or architecture as
   50  described in subarticle thirteen or fourteen of this article. The  inte-
   51  rior  design  plans  as described above are not to be construed as those
   52  required to be filed with local municipalities or  building  departments
       S. 1407                            298                           A. 2107
 
    1  as  required by this article regulating the practices of architecture or
    2  engineering.
    3    § 2254. State board for interior design.  1. A state board for interi-
    4  or  design  shall be appointed by the secretary of state for the purpose
    5  of assisting the secretary of state  and  the  department  of  state  on
    6  matters  of  certification  and  professional conduct in accordance with
    7  section nine hundred twenty-two of this  article.  The  board  shall  be
    8  composed  of  nine  members,  four  of  whom shall be interior designers
    9  certified in this state, two of whom shall be  licensed  architects  who
   10  practice  primarily  interior  design  in this state, one who shall be a
   11  professional engineer in  this  state  with  an  expertise  in  interior
   12  design,  one  who  shall be a full-time interior design educator in this
   13  state and one who shall be the public representative.
   14    2. Two interior designers  and  a  licensed  architect  who  practices
   15  primarily interior design shall serve initial five year terms. Two inte-
   16  rior designers and a professional engineer with an expertise in interior
   17  design  shall  serve initial four year terms. One licensed architect who
   18  practices primarily interior design, the interior design  educator,  and
   19  the  public representative shall serve initial two year terms. Following
   20  the establishment of the initial membership of the board, all succeeding
   21  appointments shall be for five year terms.  Any  vacancy  on  the  board
   22  shall  be filled by appointment for the remainder of such member's terms
   23  in accordance with the provisions of this section.
   24    3. For purposes of this subarticle, "board" means the state board  for
   25  interior design.
   26    § 2255. Requirements  for  certification.    1. To qualify for certif-
   27  ication to use the title "certified  interior  designer",  an  applicant
   28  shall fulfill all the following requirements:
   29    (a) Application: file an application with the department of state;
   30    (b)  Education:  have  received  at  least seven years of professional
   31  training consisting of academic study and work  experience  relating  to
   32  interior  design and in accordance with the regulations of the secretary
   33  of state. These seven years shall contain at least two but not more than
   34  five years of post secondary education, including an associate degree or
   35  the equivalent, in an approved program of interior design;
   36    (c) Experience: have experience  satisfactory  to  the  board  and  in
   37  accordance with the regulations of the secretary of state;
   38    (d)  Examination: (1) pass an examination satisfactory to the board in
   39  accordance with the regulations of the secretary of state, and (2)  pass
   40  a  separate  examination satisfactory to the board relative to the fire,
   41  safety and building codes of the state;
   42    (e) Age: be at least twenty-one years of age;
   43    (f) Citizenship: meet no requirements as to United States citizenship;
   44    (g) Character: be of good moral character as determined by the depart-
   45  ment of state; and
   46    (h) Fees: pay a fee of three hundred  dollars  to  the  department  of
   47  state for admission to the two department conducted examinations and for
   48  an  initial license, a fee of one hundred fifty dollars for each reexam-
   49  ination, a fee of one hundred thirty-five dollars for an initial license
   50  for persons not requiring admission to a department  conducted  examina-
   51  tion,  and a fee of two hundred ten dollars for each triennial registra-
   52  tion period.
   53    2. On recommendation of the board, the department of state may  exempt
   54  from the requirement of subparagraph one of paragraph (d) of subdivision
   55  one  of  this section, an applicant who holds a license of certification
   56  to practice as an interior designer issued to him or her  upon  examina-
       S. 1407                            299                           A. 2107
 
    1  tion  by  a legally constituted board of examiners in any other state or
    2  political subdivision of the United States, provided that  at  the  time
    3  the  license or certificate was issued by such state or political subdi-
    4  vision  the  applicant met the requirements of paragraph (b) of subdivi-
    5  sion one of this section for certification to use the  title  "certified
    6  interior designer" established by this subarticle.
    7    § 2256. Limited  permits.    1.  On  recommendation  of the board, the
    8  department of state may issue a limited permit, valid for  a  period  of
    9  two years and renewable once on the recommendation of the board, for use
   10  of  the  title  "certified  interior  designer"  in accordance with this
   11  subarticle by one who is not a resident of this state and has no  estab-
   12  lished business in this state. This individual shall (a) be qualified to
   13  practice or engage, under such title, in the practice of interior design
   14  in  his or her own country or state, (b) submit evidence satisfactory to
   15  the board of established and recognized professional standing in his  or
   16  her  own country or state, and (c) submit satisfactory certifications as
   17  to his or her qualifications.
   18    2. The limited permit shall authorize the  holder  to  use  the  title
   19  "certified interior designer".
   20    3.  A  limited  permit  of a certified interior designer shall be used
   21  only in connection with the  specific  project  for  which  the  limited
   22  permit is issued and authorized in writing by the department of state.
   23    4. The fee for each limited permit shall be one hundred five dollars.
   24    § 2257. Separability. If any section of this subarticle, or part ther-
   25  eof, shall be adjudged by a court of competent jurisdiction to be inval-
   26  id,  such judgement shall not affect, impair or invalidate the remainder
   27  or any other section or part thereof.
 
   28                                SUBARTICLE 26
 
   29                              ATHLETIC TRAINERS
   30  Section 2300. Introduction.
   31          2301. Definition.
   32          2302. Definition of practice of athletic training.
   33          2303. Use of the title "certified athletic trainer".
   34          2304. State committee for athletic trainers.
   35          2305. Requirements and procedure for professional certification.
   36          2306. Special provisions.
   37          2307. Non-liability of certified athletic trainers for first aid
   38                  or emergency treatment.
   39          2308. Separability.
   40    § 2300. Introduction.  This subarticle applies to  the  profession  of
   41  athletic  training.  The general provisions of all professions contained
   42  in subarticle one of this article shall apply to this subarticle.
   43    § 2301. Definition. As used  in  this  subarticle  "athletic  trainer"
   44  means  any person who is duly certified in accordance with this subarti-
   45  cle to perform athletic training under the supervision  of  a  physician
   46  and  limits  his  or  her practice to secondary schools, institutions of
   47  postsecondary  education,  professional  athletic  organizations,  or  a
   48  person who, under the supervision of a physician, carries out comparable
   49  functions  on  orthopedic athletic injuries, excluding spinal cord inju-
   50  ries, in a health care organization. Supervision of an athletic  trainer
   51  by a physician shall be continuous but shall not be construed as requir-
   52  ing  the  physical presence of the supervising physician at the time and
   53  place where such services are performed.
       S. 1407                            300                           A. 2107
 
    1    The scope of work described herein shall not be construed as authoriz-
    2  ing the reconditioning of neurologic injuries, conditions or disease.
    3    § 2302. Definition  of practice of athletic training.  The practice of
    4  the profession of athletic training is defined  as  the  application  of
    5  principles, methods and procedures for managing athletic injuries, which
    6  shall include the preconditioning, conditioning and reconditioning of an
    7  individual who has suffered an athletic injury through the use of appro-
    8  priate  preventative  and supportive devices, under the supervision of a
    9  physician and recognizing  illness  and  referring  to  the  appropriate
   10  medical professional with implementation of treatment pursuant to physi-
   11  cian's  orders.  Athletic  training  includes  instruction  to  coaches,
   12  athletes, parents, medical personnel and communities in the area of care
   13  and prevention of athletic injuries.
   14    The scope of work described herein shall not be construed as authoriz-
   15  ing the reconditioning of neurologic injuries, conditions or disease.
   16    § 2303. Use of the title "certified athletic trainer".  Only a  person
   17  certified  or  otherwise  authorized under this subarticle shall use the
   18  title "certified athletic trainer".
   19    § 2304. State committee for athletic trainers.  1. A  state  committee
   20  for  athletic  trainers shall be appointed by the secretary of state and
   21  shall assist on matters of certification  and  professional  conduct  in
   22  accordance  with  section  nine  hundred twenty-two of this article. The
   23  committee shall consist of five members who are athletic trainers certi-
   24  fied in this state. The committee shall assist the state board for medi-
   25  cine in athletic training matters. Nominations and terms  of  office  of
   26  the  members  of the state committee for athletic trainers shall conform
   27  to the corresponding provisions relating thereto for state boards  under
   28  subarticle one of this article.
   29    § 2305. Requirements  and  procedure  for  professional certification.
   30  For certification as a certified athletic trainer under this subarticle,
   31  an applicant shall fulfill the following requirements:
   32    1. Application: file an application with the department of state;
   33    2. Education: have received an education including a  bachelor's,  its
   34  equivalent  or  higher  degree in accordance with the regulations of the
   35  secretary of state;
   36    3. Experience: have experience in accordance with the  regulations  of
   37  the secretary of state;
   38    4. Examination: pass an examination in accordance with the regulations
   39  of the secretary of state;
   40    5. Age: be at least twenty-one years of age; and
   41    6. Fees:  pay  a fee for an initial certificate of one hundred dollars
   42  to the department of state; and a fee of fifty dollars for each trienni-
   43  al registration period.
   44    § 2306. Special provisions.  A person shall be certified without exam-
   45  ination provided that, within three years from  the  effective  date  of
   46  regulations implementing the provisions of this subarticle, the individ-
   47  ual:
   48    1.  files  an application and pays the appropriate fees to the depart-
   49  ment of state; and
   50    2. meets the requirements of subdivisions  two  and  five  of  section
   51  twenty-three hundred five of this subarticle and who in addition:
   52    (a)  has  been actively engaged in the profession of athletic training
   53  for a minimum of four years during the seven years immediately preceding
   54  the effective date of this subarticle; or
   55    (b) is certified by a United States certifying body acceptable to  the
   56  department of state.
       S. 1407                            301                           A. 2107
 
    1    § 2307. Non-liability  of certified athletic trainers for first aid or
    2  emergency treatment.  Notwithstanding any inconsistent provision of  any
    3  general, special or local law, any certified athletic trainer who volun-
    4  tarily  and  without  the  expectation  of monetary compensation renders
    5  first  aid  or  emergency treatment at the scene of an accident or other
    6  emergency, outside a hospital, doctor's office or any other place having
    7  proper and necessary athletic training equipment, to  a  person  who  is
    8  unconscious,  ill  or injured, shall not be liable for damages for inju-
    9  ries alleged to have been sustained by such person or  for  damages  for
   10  the death of such person alleged to have occurred by reason of an act or
   11  omission  in  the  rendering  of  such  first aid or emergency treatment
   12  unless it is established that such  injuries  were  or  such  death  was
   13  caused  by gross negligence on the part of such athletic trainer.  Noth-
   14  ing in this section shall be deemed or construed to relieve a  certified
   15  athletic trainer from liability for damages for injuries or death caused
   16  by an act or omission on the part of an athletic trainer while rendering
   17  professional  services  in  the normal and ordinary course of his or her
   18  practice.
   19    § 2308. Separability.   If any section of  this  subarticle,  or  part
   20  thereof,  shall be adjudged by any court of competent jurisdiction to be
   21  invalid, such judgment  shall  not  affect,  impair  or  invalidate  the
   22  remainder of any other section or part thereof.
   23                                 SUBARTICLE 28
 
   24         RESPIRATORY THERAPISTS AND RESPIRATORY THERAPY TECHNICIANS
 
   25  Section  2400.   Introduction.
   26           2401.   Definition of the practice of respiratory therapy.
   27           2402.   Practice  of  respiratory  therapy and use of the title
   28                     "respiratory therapist".
   29           2403.   State board for respiratory therapy.
   30           2404.   Requirements for licensure as a respiratory therapist.
   31           2405.   Mandatory continuing education for  respiratory  thera-
   32                     pists.
   33           2406.   Exempt persons.
   34           2407.   Limited permits.
   35           2408.   Special provisions.
   36           2409.   Definition of the practice of respiratory therapy tech-
   37                     nician.
   38           2410.   Duties  of  respiratory  therapy technicians and use of
   39                     the title "respiratory therapy technician".
   40           2411.   Requirements for licensure  as  a  respiratory  therapy
   41                     technician.
   42           2412.   Mandatory  continuing education for respiratory therapy
   43                     technicians.
   44           2413.   Limited permits.
   45           2414.   Exempt persons.
   46           2415.   Special provisions.
   47    § 2400. Introduction.   This subarticle applies  to  the  practice  of
   48  respiratory therapy and provides for the licensing of respiratory thera-
   49  pists  and  respiratory  therapy technicians. The general provisions for
   50  all professions contained in subarticle one of this article shall  apply
   51  to this subarticle.
   52    § 2401. Definition  of the practice of respiratory therapy.  The prac-
   53  tice of the profession of respiratory therapy, which shall be undertaken
   54  pursuant to the direction of a duly licensed physician,  is  defined  as
       S. 1407                            302                           A. 2107
 
    1  the  performance  of  cardiopulmonary  evaluation,  respiratory  therapy
    2  treatment techniques, and education of the patient, family and public.
    3    Evaluation  shall include the acquisition, analysis and interpretation
    4  of data obtained from  physiological  specimens,  performing  diagnostic
    5  tests,  studies and research of the cardiopulmonary system and neurophy-
    6  siological studies related to respiratory care.
    7    Therapy shall include the application and monitoring of medical  gases
    8  (excluding  anesthetic gases) and environmental control systems, mechan-
    9  ical  ventilatory  support,  artificial  airway  care,  bronchopulmonary
   10  hygiene,  pharmacologic  agents  related to respiratory care procedures,
   11  and cardiopulmonary rehabilitation related and  limited  to  respiratory
   12  care.
   13    § 2402. Practice  of respiratory therapy and use of the title "respir-
   14  atory therapist".  1. Only a person licensed or exempt under this subar-
   15  ticle shall practice respiratory therapy or use the  title  "respiratory
   16  therapist".
   17    2.  A licensed respiratory therapist may supervise respiratory therapy
   18  technicians in the practice of their profession in  such  capacities  as
   19  are  prescribed by law and as from time to time may be set by the secre-
   20  tary of state.
   21    § 2403. State board for respiratory therapy.  1.   A state  board  for
   22  respiratory therapy shall be appointed by the secretary of state for the
   23  purpose  of assisting the secretary of state and the department of state
   24  on matters of professional licensing  and  conduct  in  accordance  with
   25  section  nine  hundred  twenty-two  of  this article. The board shall be
   26  composed of not less than  five  licensed  respiratory  therapists,  two
   27  licensed  respiratory  therapy  technicians, and four additional members
   28  who shall include at least one  licensed  physician  and  at  least  one
   29  public member.
   30    2.  For purposes of this subarticle, "board" means the state board for
   31  respiratory therapy.
   32    § 2404. Requirements for licensure as a  respiratory  therapist.    To
   33  qualify  for  a  license  as a respiratory therapist, an applicant shall
   34  fulfill the following requirements:
   35    1. Application: file an application with the department of state;
   36    2. Education: have received an education, including completion  of  an
   37  approved associate degree program in respiratory therapy or in a program
   38  determined by the department of state to be the equivalent;
   39    3.  Experience:  have  experience  satisfactory  to  the  board and in
   40  accordance with the regulations of the secretary of state;
   41    4. Examination: pass an examination satisfactory to the board  and  in
   42  accordance with the regulations of the secretary of state;
   43    5. Age: be at least eighteen years of age;
   44    6.  Character: be of good moral character as determined by the depart-
   45  ment of state; and
   46    7. Fees: pay a fee of one hundred seventy-five dollars to the  depart-
   47  ment  of  state  for admission to a department conducted examination and
   48  for an initial license; a fee of eighty-five dollars for each  re-exami-
   49  nation;  a fee of one hundred fifteen dollars for an initial license for
   50  persons not requiring admission to a  department  conducted  examination
   51  and a fee of one hundred fifty-five dollars for each triennial registra-
   52  tion  period  commencing on and after June first, nineteen hundred nine-
   53  ty-three.
   54    § 2405. Mandatory continuing education for respiratory therapists.  1.
   55  (a)  Each  licensed respiratory therapist required under this subarticle
   56  to register triennially with the department of state to practice in  the
       S. 1407                            303                           A. 2107
 
    1  state shall comply with provisions of the mandatory continuing education
    2  requirements prescribed in subdivision two of this section except as set
    3  forth  in paragraphs (b) and (c) of this subdivision. Respiratory thera-
    4  pists  who do not satisfy the mandatory continuing education requirement
    5  shall not practice until they have met such requirements, and have  been
    6  issued  a  registration certificate, except that a respiratory therapist
    7  may practice without having met such requirements if he or she is issued
    8  a conditional registration certificate pursuant to subdivision three  of
    9  this section.
   10    (b) Respiratory therapists shall be exempt from the mandatory continu-
   11  ing  education  requirement for the triennial registration period during
   12  which they are first  licensed.  In  accord  with  the  intent  of  this
   13  section,  adjustment  to  the mandatory continuing education requirement
   14  may be granted by the department of state for reasons of health,  certi-
   15  fied  by  an  appropriate  health care professional, for extended active
   16  duty with the armed forces of the United States, or for other good cause
   17  acceptable to the department which may prevent compliance.
   18    (c) A licensed respiratory therapist not engaged in practice as deter-
   19  mined by the department of state, shall be  exempt  from  the  mandatory
   20  continuing education requirement upon the filing of a statement with the
   21  department  declaring  such  status.  Any  licensee who returns to their
   22  respective practice as a  respiratory  therapist  during  the  triennial
   23  registration  period shall notify the department prior to reentering the
   24  profession and shall meet such mandatory education requirements as shall
   25  be prescribed by regulations of the secretary of state.
   26    2. During each triennial registration period an applicant  for  regis-
   27  tration  as  a  respiratory therapist shall complete a minimum of thirty
   28  hours of acceptable formal continuing education, as specified in  subdi-
   29  vision four of this section, provided that no more than fifteen hours of
   30  such continuing education shall consist of self-study courses.  A licen-
   31  see  who  has  not satisfied the mandatory continuing education require-
   32  ments shall not be issued a triennial registration  certificate  by  the
   33  department  of  state  and  shall not practice unless and until a condi-
   34  tional registration certificate is issued as provided for in subdivision
   35  three of this section.
   36    3. The department of state, in its discretion, may issue a conditional
   37  registration to a licensee who fails to meet  the  continuing  education
   38  requirements  established  in  subdivision  two  of this section but who
   39  agrees to make up any deficiencies and complete any additional education
   40  which the department of state may require. The fee  for  such  a  condi-
   41  tional  registration  shall  be the same as, and in addition to, the fee
   42  for the triennial registration. The duration of such conditional  regis-
   43  tration  shall  be  determined  by the department of state but shall not
   44  exceed one year. Any licensee who is notified of the denial of registra-
   45  tion for failure to submit evidence, satisfactory to the department,  of
   46  required  continuing education and who practices as a respiratory thera-
   47  pist  without  such  registration,  may  be  subject   to   disciplinary
   48  proceedings pursuant to section nine hundred forty-four of this article.
   49    4.  As  used  in  subdivision  two of this section, "acceptable formal
   50  continuing education" for respiratory therapy shall mean formal  courses
   51  of  learning  which  contribute  to professional practice in respiratory
   52  therapy and which meet the standards prescribed by  regulations  of  the
   53  secretary  of state.  The department of state may, in its discretion and
   54  as needed to contribute to the health and welfare of the public, require
   55  the completion of continuing education courses in specific subjects.
       S. 1407                            304                           A. 2107
 
    1    5. Respiratory therapists shall  maintain  adequate  documentation  of
    2  completion  of  acceptable formal continuing education and shall provide
    3  such documentation at the request of the department of state.
    4    6.  The  mandatory continuing education fee for respiratory therapists
    5  shall be thirty dollars, shall be payable on or before the first day  of
    6  each triennial registration period, and shall be paid in addition to the
    7  triennial  registration fee required by section twenty-four hundred four
    8  of this subarticle.
    9    § 2406. Exempt persons. This article shall not prohibit:  1. the prac-
   10  tice of respiratory therapy as an integral part of a program of study by
   11  students enrolled in approved respiratory therapy education programs;
   12    2. the performance of any of the modalities included in the definition
   13  of respiratory therapy by any other duly licensed, certified  or  regis-
   14  tered health care provider, provided that such modalities are within the
   15  scope of his or her practice;
   16    3. unlicensed assistants from being employed in a hospital, as defined
   17  in  article  twenty-eight  of  the public health law, for purposes other
   18  than the practice of respiratory therapy; or
   19    4. the practice  of  respiratory  therapy  by  any  legally  qualified
   20  respiratory  therapy practitioner of any other state or territory who is
   21  serving in the armed forces or the public health service of  the  United
   22  States  or who is employed by the veterans administration, while engaged
   23  in the performance of his or her duties.
   24    § 2407. Limited permits. Permits limited as to  eligibility,  practice
   25  and  duration  shall  be  issued  by the department of state to eligible
   26  applicants as follows:   1.  Eligibility.  A  person  who  fulfills  all
   27  requirements  for  registration  as  a respiratory therapist except that
   28  relating to the examination shall be eligible for a limited permit.
   29    2. Limit of practice. All practice under a  limited  permit  shall  be
   30  under  the direct supervision of a licensed respiratory therapist physi-
   31  cian specializing in  pulmonary  medicine,  an  anesthesiologist  or  an
   32  otherwise legally authorized physician.
   33    3.  Duration.  A limited permit shall expire one year from the date of
   34  issuance or upon notice to the permittee by the department of state that
   35  the application for licensure has been denied, or ten days after notifi-
   36  cation to the permittee of failure on the professional  licensing  exam-
   37  ination,  whichever first occurs; provided, however, that if the permit-
   38  tee is awaiting the results of a licensing examination at the time  such
   39  limited permit expires, such permit shall continue to be valid until ten
   40  days  after notification to the permittee of the result of such examina-
   41  tion.
   42    4. Fees. The fee for each limited permit shall be seventy dollars.
   43    § 2408. Special provisions.  A person shall be licensed without  exam-
   44  ination  provided  that,  within  one year of the effective date of this
   45  subarticle, the individuals:
   46    1. files an application and pays the appropriate fees to  the  depart-
   47  ment of state; and
   48    2. (a) is registered by a national certifying or accrediting board for
   49  respiratory therapy acceptable to the department of state, or
   50    (b)  has  practiced  respiratory  therapy in a hospital, as defined in
   51  article twenty-eight of the public health law, in the state for not less
   52  than three years within the last five years prior to the effective  date
   53  of this subarticle, or
   54    (c)  has  met  the  educational standards of a hospital, as defined in
   55  article twenty-eight of the public health law, or,  in  the  case  of  a
   56  hospital  operated  by  a public benefit corporation, has met the educa-
       S. 1407                            305                           A. 2107
 
    1  tional standards of such corporation, and has practiced as a respiratory
    2  therapist for at least one year in such hospital.
    3    § 2409. Definition  of the practice of respiratory therapy technician.
    4  A respiratory therapy technician means a person licensed  in  accordance
    5  with  this  subarticle  who  works  under  the supervision of a licensed
    6  respiratory therapist or a  licensed  or  otherwise  legally  authorized
    7  physician  performing tasks and responsibilities within the framework of
    8  the practice of respiratory therapy.
    9    § 2410. Duties of respiratory therapy technicians and use of the title
   10  "respiratory therapy technician".  Only a person licensed  or  otherwise
   11  authorized  under  this  subarticle shall participate in the practice of
   12  respiratory therapy as a  respiratory  therapy  technician  and  only  a
   13  person  licensed  under this subarticle shall use the title "respiratory
   14  therapy technician".
   15    § 2411. Requirements for licensure as a  respiratory  therapy  techni-
   16  cian.    To qualify for a license as a respiratory therapy technician an
   17  applicant shall fulfill the following requirements:
   18    1. Application: file an application with the department of state;
   19    2. Education: have received an education including completion of  high
   20  school or its equivalent and have completed an approved one-year certif-
   21  icate    respiratory  therapy education program, or a program determined
   22  equivalent, in accordance with  the  regulations  of  the  secretary  of
   23  state;
   24    3.  Experience:  have  experience  satisfactory  to  the  board and in
   25  accordance with the regulations of the secretary of state;
   26    4. Examination: pass an examination satisfactory to the board  and  in
   27  accordance with the regulations of the secretary of state;
   28    5. Age: be at least eighteen years of age;
   29    6.  Character: be of good moral character as determined by the depart-
   30  ment of state; and
   31    7. Fees: pay a fee of ninety dollars to the department  of  state  for
   32  admission  to  a  department  conducted  examination  and for an initial
   33  license; a fee of sixty dollars for each re-examination; a fee of  fifty
   34  dollars  for an initial license for persons not requiring admission to a
   35  department conducted examination and a fee of ninety  dollars  for  each
   36  triennial  registration period commencing on and after June first, nine-
   37  teen hundred ninety-three.
   38    § 2412. Mandatory continuing education for respiratory therapy techni-
   39  cians. 1. (a) Each  licensed  respiratory  therapy  technician  required
   40  under  this  subarticle  to  register triennially with the department of
   41  state to practice in the state  shall  comply  with  provisions  of  the
   42  mandatory  continuing  education  requirements prescribed in subdivision
   43  two of this section except as set forth in paragraphs  (b)  and  (c)  of
   44  this subdivision. Respiratory therapy technicians who do not satisfy the
   45  mandatory continuing education requirement shall not practice until they
   46  have  met such requirements, and have been issued a registration certif-
   47  icate, except that a respiratory therapy technician may practice without
   48  having met such requirements if he or she is issued a conditional regis-
   49  tration certificate pursuant to subdivision three of this section.
   50    (b) Respiratory therapy technicians shall be exempt from the mandatory
   51  continuing education requirement for the triennial  registration  period
   52  during  which they are first licensed. In accord with the intent of this
   53  section, adjustment to the mandatory  continuing  education  requirement
   54  may  be granted by the department of state for reasons of health, certi-
   55  fied by an appropriate health care  professional,  for  extended  active
       S. 1407                            306                           A. 2107
 
    1  duty with the armed forces of the United States, or for other good cause
    2  acceptable to the department of state which may prevent compliance.
    3    (c)  A licensed respiratory therapy technician not engaged in practice
    4  as determined by the department of  state,  shall  be  exempt  from  the
    5  mandatory  continuing  education requirement upon the filing of a state-
    6  ment with the department declaring such status. Any licensee who returns
    7  to their respective practice as a respiratory therapy technician  during
    8  the  triennial  registration period shall notify the department prior to
    9  reentering the  profession  and  shall  meet  such  mandatory  education
   10  requirements  as  shall be prescribed by regulations of the secretary of
   11  state.
   12    2. During each triennial registration period an applicant  for  regis-
   13  tration  as a respiratory therapy technician shall complete a minimum of
   14  twenty-four hours of acceptable formal continuing education,  as  speci-
   15  fied  in  subdivision  four  of this section, provided that no more than
   16  twelve hours of such continuing education shall  consist  of  self-study
   17  courses.    A  licensee  who  has not satisfied the mandatory continuing
   18  education requirements shall not  be  issued  a  triennial  registration
   19  certificate by the department of state and shall not practice unless and
   20  until  a  conditional registration certificate is issued as provided for
   21  in subdivision three of this section.
   22    3. The department of state, in its discretion, may issue a conditional
   23  registration to a licensee who fails to meet  the  continuing  education
   24  requirements  established  in  subdivision  two  of this section but who
   25  agrees to make up any deficiencies and complete any additional education
   26  which the department may require. The fee for such a conditional  regis-
   27  tration shall be the same as, and in addition to, the fee for the trien-
   28  nial  registration.  The duration of such conditional registration shall
   29  be determined by the department but  shall  not  exceed  one  year.  Any
   30  licensee  who  is  notified of the denial of registration for failure to
   31  submit evidence, satisfactory to the department, of required  continuing
   32  education  and who practices as a respiratory therapy technician without
   33  such registration, may be subject to the disciplinary proceedings pursu-
   34  ant to section nine hundred forty-four of this article.
   35    4. As used in subdivision two  of  this  section,  "acceptable  formal
   36  continuing  education"  for  respiratory  therapy technicians shall mean
   37  formal courses of learning which contribute to professional practice  as
   38  a respiratory therapy technician and which meet the standards prescribed
   39  by  regulations  of the secretary of state. The department of state may,
   40  in its discretion and as needed to contribute to the health and  welfare
   41  of the public, require the completion of continuing education courses in
   42  specific subjects.
   43    5.  Respiratory therapy technicians shall maintain adequate documenta-
   44  tion of completion of acceptable formal continuing education  and  shall
   45  provide such documentation at the request of the department of state.
   46    6.  The  mandatory  continuing  education  fee for respiratory therapy
   47  technicians shall be twenty-five dollars, shall be payable on or  before
   48  the  first  day of each triennial registration period, and shall be paid
   49  in addition to the triennial registration fee required by section  twen-
   50  ty-four hundred eleven of this subarticle.
   51    § 2413. Limited  permits.  1. Eligibility. The department of state may
   52  issue a limited permit to an applicant who meets  all  requirements  for
   53  admission to the licensing examination.
   54    2.  Limit  of  practice.  All practice under a limited permit shall be
   55  under the direct supervision of a licensed respiratory  therapist  or  a
   56  licensed or otherwise legally authorized physician.
       S. 1407                            307                           A. 2107
 
    1    3.  Duration.  A limited permit shall expire one year from the date of
    2  issuance or upon notice to the permittee by the department of state that
    3  the application for registration has been  denied,  or  ten  days  after
    4  notification  to  the permittee of failure on the professional licensing
    5  examination,  whichever  first  occurs;  provided,  however, that if the
    6  permittee is awaiting the results of a licensing examination at the time
    7  such limited permit expires, such permit  shall  continue  to  be  valid
    8  until ten days after notification to the permittee of the result of such
    9  examination.
   10    4. Fees. The fee for each limited permit shall be fifty dollars.
   11    § 2414. Exempt  persons.  This  subarticle  shall not prohibit:   1. a
   12  respiratory therapy student or a respiratory therapy technician  student
   13  from engaging in clinical assistance under the supervision of a licensed
   14  respiratory  therapist  or  a  licensed  or otherwise legally authorized
   15  physician as an integral part of a program of study by students enrolled
   16  in an approved respiratory therapy technician program or in  a  clinical
   17  facility  or  health care agency affiliated with the program for respir-
   18  atory therapy technicians; or
   19    2. the performance of any of the tasks or responsibilities included in
   20  the definition of respiratory  therapy  technician  by  any  other  duly
   21  licensed,  certified  or  registered health care provider, provided that
   22  such tasks or responsibilities are within the scope of his or her  prac-
   23  tice; or
   24    3. unlicensed assistants from being employed in a hospital, as defined
   25  in  article  twenty-eight  of  the public health law, for purposes other
   26  than the practice of respiratory therapy technician; or
   27    4. the practice  of  respiratory  therapy  by  any  legally  qualified
   28  respiratory  therapy practitioner of any other state or territory who is
   29  serving in the armed forces or the public health service of  the  United
   30  States  or who is employed by the veterans administration, while engaged
   31  in the performance of his or her duties.
   32    § 2415. Special provisions. A person shall be licensed  without  exam-
   33  ination  provided  that,  within  one year of the effective date of this
   34  subarticle, the individual:
   35    1. files an application and pays the appropriate fees to  the  depart-
   36  ment of state; and
   37    2.  (a) is certified by a national certifying or accrediting board for
   38  respiratory therapy technicians acceptable to the department  of  state,
   39  or
   40    (b)  has  practiced as a respiratory therapy technician in a hospital,
   41  as defined in article twenty-eight of the  public  health  law,  in  the
   42  state for not less than two years within the last five years, or
   43    (c)  has  met  the  educational standards of a hospital, as defined in
   44  article twenty-eight of the public health law, or,  in  the  case  of  a
   45  hospital  operated  by  a public benefit corporation, has met the educa-
   46  tional standards of such corporation, and has practiced as a respiratory
   47  therapy technician for at least one year in such hospital.
   48                                 SUBARTICLE 29
   49                          MEDICAL PHYSICS PRACTICE
   50  Section 2450. Introduction.
   51          2451. Definitions.
   52          2452. Definition of "practice of medical physics".
   53          2453. Use of the title "professional medical physicist".
   54          2454. State committee for medical physics.
   55          2455. Requirements and procedures for professional licensure.
   56          2456. Limited permits.
       S. 1407                            308                           A. 2107
 
    1          2457. Exemptions.
    2          2458. Licensure without examination.
    3          2459. Separability.
    4     §  2450.  Introduction.  This subarticle applies to the profession of
    5  medical physics. The general provisions for all professions contained in
    6  subarticle one of this article apply to this subarticle.
    7     § 2451. Definitions. As used in this subarticle:
    8    1. "Clinical" shall mean activities directly relating to the treatment
    9  or diagnosis of human ailments.
   10    2. "Specialty" or "specialty area" shall mean the following branch  or
   11  branches of special competence within medical physics:
   12    (a) "Diagnostic radiological physics" shall mean the branch of medical
   13  physics  relating to the diagnostic application of radiation, the analy-
   14  sis and interpretation of image quality,  performance  measurements  and
   15  the  calibration  of equipment associated with the production and use of
   16  such radiation, the analysis and interpretation of measurements  associ-
   17  ated  with patient doses and exposures, and the radiation safety aspects
   18  associated with the production and use of such radiation;
   19    (b) "Medical health physics" shall mean the branch of medical  physics
   20  pertaining  to  the radiation safety aspects of the use of radiation for
   21  both diagnostic and therapeutic purposes, and the use  of  equipment  to
   22  perform appropriate radiation measurements;
   23    (c) "Medical nuclear physics" shall mean the branch of medical physics
   24  pertaining  to  the  therapeutic  and diagnostic application of radionu-
   25  clides, excluding those used in sealed sources for therapeutic purposes,
   26  the analysis and interpretation of performance  measurements  associated
   27  with  radiation  imaging equipment and performance oversight of radionu-
   28  clide calibration equipment associated with the use  and  production  of
   29  radionuclides,  the  analysis  and  interpretation  of  measurements and
   30  calculations associated with patient  organ  doses,  and  the  radiation
   31  safety  aspects  associated with the production and use of such radionu-
   32  clides; and
   33    (d) "Therapeutic radiological physics" or "radiation oncology physics"
   34  shall mean the branch of medical physics  relating  to  the  therapeutic
   35  application  of  radiation, the analysis and interpretation of radiation
   36  equipment performance measurements  and  the  calibration  of  equipment
   37  associated  with  the production and use of such radiation, the analysis
   38  and interpretation of measurements associated with  patient  doses,  and
   39  the  radiation  safety aspects associated with the production and use of
   40  such radiation.
   41    3. "Medical physics" shall mean the branch of physics limited  to  the
   42  field of radiological physics.
   43    4.  "Radiation"  shall  mean  all  ionizing radiation above background
   44  levels or any non-ionizing radiation used in diagnostic  imaging  or  in
   45  radiation oncology.
   46    5.  "Radiological physics" shall mean diagnostic radiological physics,
   47  therapeutic radiological physics or radiation oncology physics,  medical
   48  nuclear physics and medical health physics.
   49    6.  "Radiological  procedure" shall mean any test, measurement, calcu-
   50  lation or radiation exposure for the purpose of diagnosis  or  treatment
   51  of  any  medical  condition of a human, including therapeutic radiation,
   52  diagnostic imaging and measurements, and nuclear medicine procedures.
   53     § 2452. Definition of "practice of medical physics". 1. The "practice
   54  of the profession of medical physics" shall mean the use and application
   55  of accepted principles and protocols of physics in a clinical setting to
   56  assure the correct quality, quantity and placement of  radiation  during
       S. 1407                            309                           A. 2107
 
    1  the  performance  of  a  radiological  procedure,  so  as to protect the
    2  patient and other persons from harmful, excessive  or  misapplied  radi-
    3  ation.  Such  practice shall include, but not necessarily be limited to:
    4  radiation beam calibration and characterization; oversight and responsi-
    5  bility  for  patient radiation dose measurement, calculation and report-
    6  ing; oversight and responsibility for quality control; instrument  spec-
    7  ification;  optimization of image quality; acceptance testing; shielding
    8  design; protection analysis on radiation emitting equipment  and  radio-
    9  pharmaceuticals;  and  consultation  with a physician to assure accurate
   10  radiation dosage and application to a specific patient.
   11    2. A license to practice medical physics shall be issued with  special
   12  competency  in  one  or  more  specialty areas in which the licensee has
   13  satisfied the requirements of section twenty-four hundred fifty-five  of
   14  this subarticle.
   15    3.  The  practice  in  any  specialty by a person whose license is not
   16  issued with special competency for such specialty shall  be  deemed  the
   17  unauthorized practice of the profession of medical physics.
   18    4.  Only  a  person  licensed under this subarticle shall practice the
   19  profession of medical physics.
   20     § 2453. Use of the title "professional  medical  physicist".  Only  a
   21  person  licensed under this subarticle shall use the title "professional
   22  medical physicist".
   23     § 2454. State committee for medical physics. 1. A state committee for
   24  medical physics shall be appointed by the secretary of state  and  shall
   25  assist  secretary  of  state  on  matters  of licensure and professional
   26  conduct in accordance with section nine hundred twenty-two of this arti-
   27  cle. Notwithstanding the provisions of section nine  hundred  twenty-two
   28  of this article, the committee shall assist the board for medicine sole-
   29  ly  in  medical  physics matters, which board shall also function as the
   30  state board for medical physics. The licensure requirements for  profes-
   31  sional  medical  physicists  shall  be  waived for the initial committee
   32  appointees, provided that such appointees shall have  received  national
   33  certification in their specialty.
   34    2. The committee shall consist of eight individuals, to be composed of
   35  the following:
   36    (a)  Four  licensed  medical  physicists  represented  by  each of the
   37  following specialties:
   38    (i) diagnostic radiological physics,
   39    (ii) therapeutic radiological or radiation oncology physics,
   40    (iii) medical nuclear physics, and
   41    (iv) medical health physics;
   42    (b) Three licensed physicians represented by  each  of  the  following
   43  specialties:
   44    (i) diagnostic radiology,
   45    (ii) radiation therapy or radiation oncology, and
   46    (iii) nuclear medicine; and
   47    (c) A representative of the public at large.
   48     §  2455.  Requirements  and procedures for professional licensure. To
   49  qualify for a license as a professional medical physicist, an  applicant
   50  shall fulfill the following requirements:
   51    1. Application: file an application with the department of state;
   52    2.  Education:  have  received  an  education  including a master's or
   53  doctoral degree from an accredited college or university  in  accordance
   54  with  the regulations of the secretary of state.  Such person shall have
   55  completed such courses of instruction as are  deemed  necessary  by  the
       S. 1407                            310                           A. 2107
 
    1  secretary of state to practice in the medical physics specialty in which
    2  the applicant has applied for a license;
    3    3. Experience: have experience in his or her medical physics specialty
    4  satisfactory  to  the board of medicine and in accordance with the regu-
    5  lations of the secretary of state;
    6    4. Examination: pass an examination in his or  her  medical  specialty
    7  satisfactory  to  the board of medicine and in accordance with the regu-
    8  lations of the secretary of state.  The examination requirement  may  be
    9  waived  by  the  board of medicine on recommendation of the secretary of
   10  state for certain applicants with  extensive  experience  as  a  medical
   11  physicist;
   12    5. Age: be at least twenty-one years of age;
   13    6.  Fee: pay a fee of three hundred dollars to the department of state
   14  for admission to a department conducted examination for licensure, a fee
   15  of one hundred fifty dollars for licensure with  special  competency  in
   16  the first specialty and twenty-five dollars for each additional special-
   17  ty,  and  a  fee of three hundred dollars for each biennial registration
   18  period.
   19     § 2456. Limited permits. Permits limited as to eligibility,  practice
   20  and  duration  shall  be  issued  by the department of state to eligible
   21  applicants, as follows:
   22    1. Eligibility. The following persons shall be eligible for a  limited
   23  permit:
   24    (a)  a person who fulfills all requirements for a license as a profes-
   25  sional medical physicist except those relating to examination or experi-
   26  ence; or
   27    (b) a medical physics student enrolled in a graduate or  post-graduate
   28  curriculum approved by the department of state;
   29    2.  Limit  of  practice.  A  permittee shall be authorized to practice
   30  medical physics only under the direct and  immediate  supervision  of  a
   31  professional medical physicist and only in the specialty of such profes-
   32  sional medical physicist;
   33    3.  Duration. A limited permit shall be valid for two years. It may be
   34  renewed biennially at the discretion of the department of state;
   35    4. Fee. The fee for each limited permit and for each renewal shall  be
   36  sixty dollars.
   37     §  2457. Exemptions. Nothing in this subarticle shall be construed to
   38  affect, prevent or in any manner expand or limit the  authority  of  any
   39  person  otherwise  authorized by law or regulation to practice any func-
   40  tion of a medical physicist, or any department or agency  authorized  by
   41  law  or  regulation  to  regulate the use of radiation, nor prohibit the
   42  repair or calibration of any test equipment used by professional medical
   43  physicists by any person otherwise allowed  to  do  so  under  state  or
   44  federal law, nor serve to limit radiologic and/or imaging technicians or
   45  any individual otherwise authorized by law or regulation from performing
   46  quality  control  measurements  or  obtaining  quality control data, nor
   47  serve to limit a service engineer in the repair of  radiation  producing
   48  equipment  nor an installation engineer in the installation of radiation
   49  producing equipment.
   50     § 2458. Licensure without examination. 1. Within eighteen  months  of
   51  the  effective  date  of regulations implementing the provisions of this
   52  subarticle, the department of state may  issue  a  license  to  practice
   53  medical  physics  with  special competency in one or more specialties in
   54  this state, without an examination, to a person who meets  the  require-
   55  ments  of  subdivisions one, five and six of section twenty-four hundred
   56  fifty-five of this subarticle and who in addition has  an  earned  bach-
       S. 1407                            311                           A. 2107
 
    1  elor's,  master's  or  doctoral  degree  from  an  accredited college or
    2  university that signifies the completion of a course of study acceptable
    3  to the department of state, and has  demonstrated  to  the  department's
    4  satisfaction, in the case of an earned bachelor's degree, the completion
    5  of  at  least  fifteen years of full-time work experience in the medical
    6  physics specialty for which application is made, or, in the case  of  an
    7  earned master's or doctoral degree, the completion of at least two years
    8  of  full-time  work  experience  in the five years preceding the date of
    9  application in the medical physics specialty for  which  application  is
   10  made and the equivalent of one year or more of full-time work experience
   11  in  the  ten years preceding the date of application for each additional
   12  specialty for which application is made.
   13    2. On receipt of an application and fee pursuant  to  section  twenty-
   14  four  hundred fifty-five of this subarticle, the department of state may
   15  issue a license to practice medical physics with special  competency  in
   16  one or more specialties in this state to a person who holds a license to
   17  practice  medical  physics  in  another state, territory or jurisdiction
   18  that has requirements for licensing  of  medical  physicists  which  the
   19  department  of  state  determines  to  be  substantially the same as the
   20  requirements of this subarticle.
   21     § 2459. Separability. If any section  of  this  subarticle,  or  part
   22  thereof,  shall be adjudged by any court of competent jurisdiction to be
   23  invalid, such judgment  shall  not  affect,  impair  or  invalidate  the
   24  remainder of any other section or part thereof.
   25    §  4.  Subdivision  3  of  section 921 of the general business law, as
   26  added by section three of this act, is amended by adding a new paragraph
   27  a to read as follows:
   28    a. Establish standards for preprofessional and professional education,
   29  experience and licensing  examinations  as  required  to  implement  the
   30  subarticle  for  each profession. Notwithstanding any other provision of
   31  law, the secretary of state shall establish standards requiring that all
   32  persons applying, on or after January first, two thousand five, initial-
   33  ly, or for the renewal of, a license, registration or limited permit  to
   34  be  a  physician,  chiropractor,  dentist, registered nurse, podiatrist,
   35  optometrist, psychiatrist, psychologist, licensed creative  arts  thera-
   36  pist,  licensed  marriage  and  family therapist, licensed mental health
   37  counselor, licensed psychoanalyst, or dental hygienist shall,  in  addi-
   38  tion  to  all the other licensure, certification or permit requirements,
   39  have completed two hours of coursework or training regarding  the  iden-
   40  tification and reporting of child abuse and maltreatment. The coursework
   41  or  training shall be obtained from an institution or provider which has
   42  been approved by the department of state to provide such  coursework  or
   43  training. The coursework or training shall include information regarding
   44  the  physical  and behavioral indicators of child abuse and maltreatment
   45  and the statutory  reporting  requirements  set  out  in  sections  four
   46  hundred thirteen through four hundred twenty of the social services law,
   47  including  but  not limited to, when and how a report must be made, what
   48  other actions the reporter is mandated or authorized to take, the  legal
   49  protections  afforded  reporters,  and  the  consequences for failing to
   50  report. Each applicant  shall  provide  the  department  of  state  with
   51  documentation  showing  that he or she has completed the required train-
   52  ing. The department of state shall provide an exemption from  the  child
   53  abuse  and  maltreatment  training  requirements  to  any  applicant who
   54  requests such an exemption and who shows, to such department's satisfac-
   55  tion, that there would be no need because of the nature of  his  or  her
   56  practice for him or her to complete such training;
       S. 1407                            312                           A. 2107
 
    1    §  5.  Section  1204  of the general business law, as added by section
    2  three of this act, is amended by adding two new subdivisions 3 and 4  to
    3  read as follows:
    4    (3)  Experience:  have  experience satisfactory to the state board for
    5  dentistry and in accordance with the regulations  of  the  secretary  of
    6  state;
    7    (4)  Examination:  pass an examination satisfactory to the state board
    8  for dentistry and in accordance with the regulations of the secretary of
    9  state;
   10    § 6. Section 1254 of the general business law,  as  added  by  section
   11  three  of  this act, is amended by adding a new subdivision 6 to read as
   12  follows:
   13    (6) Citizenship or immigration status: be a United States  citizen  or
   14  an alien lawfully admitted for permanent residence in the United States;
   15    §  7.  Section  1261  of the general business law, as added by section
   16  three of this act, is amended by adding a new subdivision 5 to  read  as
   17  follows:
   18    (5)  Citizenship  or immigration status: be a United States citizen or
   19  an alien lawfully admitted for permanent residence in the United States;
   20    § 8. Section 1409 of the general business law,  as  added  by  section
   21  three  of  this act, is amended by adding a new subdivision 5 to read as
   22  follows:
   23    5. A registered professional nurse defined under  subdivision  one  of
   24  section fourteen hundred two of this subarticle may use accepted classi-
   25  fications of signs, symptoms, dysfunctions and disorders, including, but
   26  not  limited  to,  classifications  used in the practice setting for the
   27  purpose of providing mental health services.
   28    § 9. The general business law is amended by adding a new section  1662
   29  to read as follows:
   30    § 1662. Mandatory continuing education for land surveyors. 1. (a) Each
   31  licensed land surveyor required under this subarticle to register trien-
   32  nially  with  the  department  of  state  to practice in the state shall
   33  comply  with  the  provisions  of  the  mandatory  continuing  education
   34  requirements prescribed in subdivision two of this section except as set
   35  forth  in paragraphs (b) and (c) of this subdivision. Land surveyors who
   36  do not satisfy the mandatory continuing education requirements shall not
   37  practice until they have met such requirements, and have been  issued  a
   38  registration certificate, except that a land surveyor may practice with-
   39  out  having  met  such requirements if he or she is issued a conditional
   40  registration certificate pursuant to subdivision three of this section.
   41    (b) In accord with the intent  of  this  section,  adjustment  to  the
   42  mandatory continuing education requirement may be granted by the depart-
   43  ment  for  reasons  of  health  certified  by an appropriate health care
   44  professional, for extended active duty with  the  armed  forces  of  the
   45  United  States,  or for other good cause acceptable to the department of
   46  state which may prevent compliance.
   47    (c) A licensed land surveyor not engaged in practice as determined  by
   48  the  department  of  state shall be exempt from the mandatory continuing
   49  education requirement upon the filing of a statement with the department
   50  declaring such status. Any licensee who returns to the practice of  land
   51  surveying  during  the  triennial  registration  period shall notify the
   52  department prior to reentering the profession and shall meet such manda-
   53  tory education requirements as shall be prescribed by regulations of the
   54  secretary of state.
   55    2. During each triennial registration period an applicant  for  regis-
   56  tration  shall  complete  a  minimum  of twenty-four hours of acceptable
       S. 1407                            313                           A. 2107
 
    1  continuing education, as specified in subdivision four of this  section,
    2  provided,  however,  that  a minimum of sixteen hours of such continuing
    3  education shall  consist  of  courses  in  land  surveying  and  related
    4  subjects,  provided  that  no  more than eight of said twenty-four hours
    5  shall consist of self-study  courses.  Any  land  surveyor  whose  first
    6  registration  date  following  the effective date of this section occurs
    7  less than three years from such effective date, but on or after  January
    8  first, two thousand five, shall complete continuing education hours on a
    9  prorated  basis  at the rate of one hour per month for the period begin-
   10  ning January first, two thousand four up to the first registration  date
   11  thereafter.  A  licensee  who has not satisfied the mandatory continuing
   12  education requirements shall not  be  issued  a  triennial  registration
   13  certificate by the department of state and shall not practice unless and
   14  until  a  conditional registration certificate is issued as provided for
   15  in subdivision three of this section. Continuing education  hours  taken
   16  during one triennium may not be transferred to a subsequent triennium.
   17    3. The department of state, in its discretion, may issue a conditional
   18  registration  to  a  licensee who fails to meet the continuing education
   19  requirements established in subdivision two  of  this  section  but  who
   20  agrees to make up any deficiencies and complete any additional education
   21  which  the department may require. The fee for such a conditional regis-
   22  tration shall be the same as, and in addition to, the fee for the trien-
   23  nial registration. The duration of such conditional  registration  shall
   24  be  determined by the department of state but shall not exceed one year.
   25  Any licensee who is notified of the denial of registration  for  failure
   26  to submit evidence, satisfactory to the department of state, of required
   27  continuing  education  and  who  practices  land  surveying without such
   28  registration, shall be subject to disciplinary proceedings  pursuant  to
   29  section nine hundred forty-four of this article.
   30    4.  As used in subdivision two of this section, "acceptable continuing
   31  education" shall mean courses of learning  and  other  activities  which
   32  contribute  to  the  profession  or practice of land surveying and which
   33  meet the regulations of the secretary of state. The department of  state
   34  may,  in  its  discretion  and as needed to contribute to the health and
   35  welfare of the public, require the completion  of  continuing  education
   36  courses  in  specific  subjects.  Such courses of learning must be taken
   37  from a sponsor approved by the department, pursuant  to  regulations  of
   38  the secretary of state.
   39    5.  Land surveyors shall maintain adequate documentation of completion
   40  of acceptable continuing education and shall provide such  documentation
   41  at the request of the department of state.
   42    6.  The mandatory continuing education fee shall be forty-five dollars
   43  and shall be payable on or before the first day of each triennial regis-
   44  tration period, and shall be paid  in addition to the  triennial  regis-
   45  tration  fee  required  by paragraph eight of subdivision one of section
   46  sixteen hundred fifty-seven of this subarticle.
   47    § 10. The general business law is amended by adding a new section 1663
   48  to read as follows:
   49    § 1663. Mandatory continuing education for professional engineers.  1.
   50  (a)  Each  licensed professional engineer required under this subarticle
   51  to register triennially with the department of state to practice in this
   52  state shall comply with provisions of the mandatory continuing education
   53  requirements prescribed in subdivision two of this section except as set
   54  forth in paragraphs (b) and (c) of this subdivision. Professional  engi-
   55  neers who do not satisfy the mandatory continuing education requirements
   56  shall  not practice until they have met such requirements, and have been
       S. 1407                            314                           A. 2107
 
    1  issued a registration certificate, except that a  professional  engineer
    2  may practice without having met such requirements if he or she is issued
    3  a  conditional registration certificate pursuant to subdivision three of
    4  this section.
    5    (b) Professional engineers shall be exempt from the mandatory continu-
    6  ing  education  requirement for the triennial registration period during
    7  which they are first licensed. In accordance with  the  intent  of  this
    8  section,  adjustment  to  the mandatory continuing education requirement
    9  may be granted by the department of state for reasons of  health  certi-
   10  fied  by  an  appropriate  health care professional, for extended active
   11  duty with the armed forces of the United States, or for other good cause
   12  acceptable to the department of state which may prevent compliance.
   13    (c) A licensed professional engineer not engaged in practice as deter-
   14  mined by the department of state shall  be  exempt  from  the  mandatory
   15  continuing education requirement upon the filing of a statement with the
   16  department  of  state declaring such status. Any licensee who returns to
   17  the practice of professional engineering during the triennial  registra-
   18  tion period shall notify the department of state prior to reentering the
   19  profession and shall meet such mandatory education requirements as shall
   20  be prescribed by regulations of the secretary of state.
   21    (d)  Professional  engineers directly employed on a full-time basis by
   22  the state of New York, its agencies, public authorities, public  benefit
   23  corporations  or  local  governmental  units prior to January first, two
   24  thousand four and who are represented by a collective  bargaining  unit,
   25  at  all  times  when  so  employed shall be deemed to have satisfied the
   26  continuing education requirements of this section, provided however that
   27  any such licensees who thereafter leave such employment  and  enter  the
   28  practice of professional engineering in other capacities in New York, or
   29  otherwise  engage  in  such  practice, shall satisfy the requirements of
   30  this section in such manner as shall be prescribed by regulations of the
   31  secretary of state.
   32    2. During each triennial registration period an applicant  for  regis-
   33  tration  shall  complete  a  minimum  of  thirty-six hours of acceptable
   34  continuing education, as specified in subdivision four of this  section,
   35  provided  that  no more than eighteen hours of such continuing education
   36  may consist of non-course activities. Any  professional  engineer  whose
   37  first  registration  date  following  the effective date of this section
   38  occurs less than three years from such effective date, but on  or  after
   39  January  first,  two  thousand five, shall complete continuing education
   40  hours on a prorated basis at the rate of one  hour  per  month  for  the
   41  period beginning January first, two thousand four up to the first regis-
   42  tration  date thereafter. A licensee who has not satisfied the mandatory
   43  continuing education requirements shall not be issued a triennial regis-
   44  tration certificate by the department of state and  shall  not  practice
   45  unless  and  until  a  conditional registration certificate is issued as
   46  provided for in subdivision three of this section. With the exception of
   47  continuing education hours taken during the  registration  period  imme-
   48  diately  preceding the effective date of this section, continuing educa-
   49  tion hours taken during one triennium may not be transferred to a subse-
   50  quent triennium.
   51    3. The department of state, in its discretion, may issue a conditional
   52  registration to a licensee who fails to meet  the  continuing  education
   53  requirements  established  in  subdivision  two  of this section but who
   54  agrees to make up any deficiencies and complete any additional education
   55  which the department may require. The fee for such a conditional  regis-
   56  tration shall be the same as, and in addition to, the fee for the trien-
       S. 1407                            315                           A. 2107
 
    1  nial  registration.  The duration of such conditional registration shall
    2  be determined by the department of state but shall not exceed one  year.
    3  Any  licensee  who is notified of the denial of registration for failure
    4  to submit evidence, satisfactory to the department, of required continu-
    5  ing  education  and  who practices professional engineering without such
    6  registration, may be subject to  disciplinary  proceedings  pursuant  to
    7  section nine hundred forty-four of this article.
    8    4.  As used in subdivision two of this section, "acceptable continuing
    9  education" shall mean courses of  learning  and  educational  activities
   10  which  contribute  to  professional practice in professional engineering
   11  and which meet the standards prescribed by regulations of the  secretary
   12  of  state.  The department of state may, in its discretion and as needed
   13  to contribute to the health and  welfare  of  the  public,  require  the
   14  completion of continuing education courses in specific subjects.
   15    5.  Professional  engineers  shall  maintain adequate documentation of
   16  completion of acceptable continuing education and educational activities
   17  and shall provide such documentation at the request of the department of
   18  state.
   19    6. The mandatory continuing education fee shall be forty-five dollars,
   20  shall be payable on or before the first day of each triennial  registra-
   21  tion period, and shall be paid in addition to the triennial registration
   22  fee required by section sixteen hundred fifty-six of this subarticle.
   23    §  11.  Article  40  of  the general business law, as added by section
   24  three of this act, is amended by adding a new subarticle 19 to  read  as
   25  follows:
   26                                SUBARTICLE 19
   27                                 SOCIAL WORK
 
   28  Section 1950. Introduction.
   29          1951. Definitions.
   30          1952. Authorized  practice  and  the use of the titles "licensed
   31                  master social  worker"  and  "licensed  clinical  social
   32                  worker".
   33          1953. State board for social work.
   34          1954. Requirements for a license.
   35          1955. Limited permits.
   36          1956. Exempt persons.
   37          1957. Special provisions.
   38          1958. Boundaries of professional practice.
   39          1959. Hospital privileges.
   40    §  1950. Introduction.  This  subarticle applies to the profession and
   41  practice of social work, the practice of licensed master social work and
   42  the practice of clinical social work, and  to  the  use  of  the  titles
   43  "licensed  master social worker", and "licensed clinical social worker".
   44  The general provisions for all professions contained in  subarticle  one
   45  of this article apply to this subarticle.
   46    § 1951. Definitions. 1. Practice of licensed master social work.
   47    (a) The practice of licensed master social work shall mean the profes-
   48  sional application of social work theory, principles, and the methods to
   49  prevent,  assess,  evaluate,  formulate  and  implement a plan of action
   50  based on client needs and strengths, and intervene  to  address  mental,
   51  social,  emotional,  behavioral, developmental, and addictive disorders,
   52  conditions and disabilities, and of the psychosocial aspects of  illness
   53  and injury experienced by individuals, couples, families, groups, commu-
   54  nities, organizations, and society.
       S. 1407                            316                           A. 2107
 
    1    (b)  Licensed  master  social  workers engage in the administration of
    2  tests and measures of psychosocial functioning,  social  work  advocacy,
    3  case  management, counseling, consultation, research, administration and
    4  management, and teaching.
    5    (c)  Licensed  master  social workers provide all forms of supervision
    6  other than supervision of the practice of licensed clinical social  work
    7  as defined in subdivision two of this section.
    8    (d)  Licensed  master social workers practice licensed clinical social
    9  work in facility settings under supervision in accordance with the regu-
   10  lations of the secretary of state.
   11    2. Practice of clinical social work. The scope of practice of clinical
   12  social work encompasses the scope of practice of licensed master  social
   13  work  and,  in  addition,  includes the diagnostic assessment of mental,
   14  emotional, behavioral, addictive and developmental disorders  and  disa-
   15  bilities  and of the psychosocial aspects of illness, injury, disability
   16  and impairment undertaken  within  a  psychosocial  framework;  adminis-
   17  tration  and  interpretation of tests and measures of psychosocial func-
   18  tioning; development and implementation of appropriate  assessment-based
   19  treatment  plans; and the provision of crisis oriented psychotherapy and
   20  brief, short-term  and  long-term  psychotherapy  and  psychotherapeutic
   21  treatment  to  individuals,  couples, families and groups, habilitation,
   22  psychoanalysis and behavior therapy; all undertaken for the  purpose  of
   23  preventing, assessing, treating, ameliorating and resolving psychosocial
   24  dysfunction with the goal of maintaining and enhancing the psychological
   25  and social functioning and well-being of individuals, couples, families,
   26  small groups, organizations, communities and society.
   27    3.  Diagnosis.  Diagnosis  in  the context of licensed clinical social
   28  work practice is the process of distinguishing,  beyond  general  social
   29  work assessment, between similar mental, emotional, behavioral, develop-
   30  mental  and  addictive  disorders, impairments and disabilities within a
   31  psychosocial framework on the basis of their similar and unique  charac-
   32  teristics consistent with accepted classification systems.
   33    4. Psychotherapy. Psychotherapy is the use of verbal methods in inter-
   34  personal  relationships with the intent of assisting a person or persons
   35  to modify attitudes and behavior which are intellectually, socially,  or
   36  emotionally maladaptive.
   37    5.  Assessment-based  treatment plans. Development of assessment-based
   38  treatment plans in the context of clinical social work  practice  refers
   39  to  the  development of an integrated plan of prioritized interventions,
   40  that is based on  the  diagnosis  and  psychosocial  assessment  of  the
   41  client,  to  address  mental,  emotional,  behavioral, developmental and
   42  addictive  disorders,  impairments  and   disabilities,   reactions   to
   43  illnesses, injuries, disabilities and impairments, and social problems.
   44    § 1952. Authorized practice and the use of the titles "licensed master
   45  social  worker" and "licensed clinical social worker". 1. In addition to
   46  the licensed social work services included in subdivisions one  and  two
   47  of  section  nineteen  hundred  fifty-one  of  this subarticle, licensed
   48  master social workers and licensed clinical social workers  may  perform
   49  the  following social work functions that do not require a license under
   50  this subarticle, including but not limited to:
   51    (a) Serve as a community  organizer,  planner,  or  administrator  for
   52  social service programs in any setting.
   53    (b)  Provide  supervision  and/or consultation to individuals, groups,
   54  other disciplines, institutions and agencies.
   55    (c) Serve as a faculty member or instructor in an educational setting.
       S. 1407                            317                           A. 2107
 
    1    (d) Plan and/or  conduct  research  projects  and  program  evaluation
    2  studies.
    3    (e)  Maintain familiarity with both professional and self-help systems
    4  in the community in order to assist the client in  those  services  when
    5  necessary.
    6    (f)  Assist  individuals  or groups with difficult day to day problems
    7  such as finding employment, locating sources of assistance, and organiz-
    8  ing community groups to work on a specific problem.
    9    (g) Consult with other agencies on problems and cases served in common
   10  and coordinating services among agencies or providing case management.
   11    (h) Conduct data gathering on social problems.
   12    (i) Serve as an advocate for those clients or groups of clients  whose
   13  needs are not being met by available programs or by a specific agency.
   14    (j)  Assess,  evaluate  and formulate a plan of action based on client
   15  need.
   16    (k) Provide training to community groups, agencies, and other  profes-
   17  sionals.
   18    (l) Provide administrative supervision.
   19    2.  The  following provisions shall apply to the practice of "licensed
   20  master social work" and use of the title "licensed master social worker"
   21  and designation "LMSW". (a) Only a person licensed or exempt under  this
   22  subarticle  shall  practice  licensed  master  social work as defined in
   23  subdivision one of section nineteen hundred fifty-one of  this  subarti-
   24  cle.
   25    (b)  Only  a  person  licensed  pursuant to subdivision one of section
   26  nineteen hundred fifty-four of  this  subarticle  shall  use  the  title
   27  "licensed master social worker" or the designation "LMSW".
   28    3.  Practice  of  "licensed clinical social work" and use of the title
   29  "licensed clinical social worker". (a) Only a person licensed or  exempt
   30  under  this subarticle shall practice "licensed clinical social work" as
   31  defined in subdivision two of section nineteen hundred fifty-one of this
   32  subarticle.
   33    (b) Only a person licensed pursuant  to  subdivision  two  of  section
   34  nineteen  hundred  fifty-four  of  this  subarticle  shall use the title
   35  "licensed clinical social worker" or the designation "LCSW".
   36    § 1953. State board for social work. 1.  A state board for social work
   37  shall be appointed by the secretary of state for the purpose of  assist-
   38  ing  the  secretary  of  state and the department of state on matters of
   39  professional licensing  and  professional  conduct  in  accordance  with
   40  section  nine  hundred  twenty-two  of  this article. The board shall be
   41  composed of not less  than  twelve  members,  of  which  five  shall  be
   42  licensed  clinical  social workers, five shall be licensed master social
   43  workers and two members of the public.   An executive secretary  to  the
   44  board shall be appointed by the secretary of state and shall be licensed
   45  pursuant to this article.
   46    2.  For purposes of this subarticle, "board" means the state board for
   47  social work.
   48    § 1954. Requirements for a license. 1. To qualify for a license  as  a
   49  "licensed master social worker" an applicant shall fulfill the following
   50  requirements:
   51    (a) Application: file an application with the department of state;
   52    (b)  Education:  have  received  an education, including a master's of
   53  social work degree from a program registered by the department of state,
   54  or determined by the department to be  the  substantial  equivalent,  in
   55  accordance with the regulations of the secretary of state;
   56    (c) Experience: meet no requirement as to experience;
       S. 1407                            318                           A. 2107
 
    1    (d)  Examination: pass an examination satisfactory to the board and in
    2  accordance with the regulations of the secretary of state;
    3    (e) Age: be at least twenty-one years of age;
    4    (f) Character: be of good moral character as determined by the depart-
    5  ment of state; and
    6    (g)  Fees:  pay a fee of one hundred fifteen dollars to the department
    7  of state for admission to a department conducted examination and for  an
    8  initial  license,  and  a fee of one hundred fifty-five dollars for each
    9  triennial registration period.
   10    2. To qualify for a license as a "licensed clinical social worker", an
   11  applicant shall fulfill the following requirements:
   12    (a) Application: file an application with the department of state;
   13    (b) Education: have received an education,  including  a  master's  of
   14  social work degree from a program registered by the department of state,
   15  or  determined  by  the department of state to be the substantial equiv-
   16  alent, that includes completion of  a  core  curriculum  which  includes
   17  clinical content, in accordance with the regulations of the secretary of
   18  state;  a  person  who  has received a master's, or equivalent degree in
   19  social work, during which they did not complete a core curriculum  which
   20  includes  clinical  content,  may satisfy this requirement by completing
   21  equivalent post-graduate clinical coursework,  in  accordance  with  the
   22  regulations of the secretary of state;
   23    (c) Experience: have at least three years full-time supervised facili-
   24  ty  post-graduate  clinical  social  work  experience,  or its part-time
   25  equivalent, obtained over a continuous period not to exceed  six  years,
   26  providing  clinical social work services within the scope of practice of
   27  licensed clinical social work as defined in subdivision two  of  section
   28  nineteen  hundred  fifty-one  of this subarticle, in accordance with the
   29  regulations of the secretary of state; a person who does not  meet  such
   30  experience  requirements  for  a  license  may meet alternative criteria
   31  determined by the department of state to be the  substantial  equivalent
   32  of such criteria.  Facility experience for this purpose shall mean expe-
   33  rience  obtained  as  a salaried employee of a federal, state, county or
   34  municipal agency, or other political subdivision, or a chartered elemen-
   35  tary or secondary school or degree-granting educational institution,  or
   36  a  not-for-profit  or  proprietary incorporated entity, which government
   37  agency, educational institution, or not-for-profit or proprietary entity
   38  is licensed or otherwise authorized to provide services that fall within
   39  the scope of practice of clinical social work. The  experience  require-
   40  ment  may also be satisfied by obtaining three years post-graduate expe-
   41  rience  in  psychotherapy  under  the  supervision  of  a  psychiatrist,
   42  psychologist  or  a  clinical  social worker qualified for reimbursement
   43  pursuant to sections three thousand  two  hundred  twenty-one  and  four
   44  thousand  three  hundred three of the insurance law. For the purposes of
   45  this paragraph supervision  shall  be  provided  in  a  manner  that  is
   46  consistent  with  professional standards for clinical social work super-
   47  vision as determined by the secretary of state in regulation;
   48    (d) Examination: pass an examination satisfactory to the board and  in
   49  accordance with the regulations of the secretary of state;
   50    (e) Age: be at least twenty-one years of age;
   51    (f) Character: be of good moral character as determined by the depart-
   52  ment of state; and
   53    (g)  Fees:  pay a fee of one hundred fifteen dollars to the department
   54  of state for admission to a department conducted examination and for  an
   55  initial license and a fee of one hundred fifty-five dollars.
       S. 1407                            319                           A. 2107
 
    1    § 1955. Limited  permits.  1.  On  recommendation  of  the  board, the
    2  department of state may issue a  limited  permit  to  practice  licensed
    3  clinical  social work and use the title licensed clinical social worker,
    4  or to practice licensed master social work and use  the  title  licensed
    5  master  social  worker  to  an  applicant whose qualifications have been
    6  approved for admission to the examination therefor.  This limited permit
    7  shall be valid for a period of not  more  than  twelve  months,  and  be
    8  renewed, at the discretion of the department, for one additional year.
    9    2. The fee for each limited permit shall be seventy dollars.
   10    §  1956. Exempt persons. Nothing contained in this subarticle shall be
   11  construed to:
   12    1. Apply to the practice, conduct, activities, services or use of  any
   13  title  by  any person licensed or otherwise authorized to practice medi-
   14  cine within the state pursuant to subarticle two of this article  or  by
   15  any person registered to perform services as a physician assistant with-
   16  in  the  state  pursuant  to  subarticle two-B of this article or by any
   17  person licensed or otherwise authorized to  practice  psychology  within
   18  this  state  pursuant  to  subarticle eighteen of this article or by any
   19  person licensed or otherwise authorized to practice nursing as a  regis-
   20  tered  professional nurse within this state pursuant to subarticle eight
   21  of this article or by any person licensed  or  otherwise  authorized  to
   22  practice  occupational  therapy within this state pursuant to subarticle
   23  twenty-one of this article; provided, however, that no physician, physi-
   24  cian assistant, registered professional nurse, psychologist  or  occupa-
   25  tional therapist may use the titles "licensed clinical social worker" or
   26  "licensed master social worker", unless licensed under this subarticle.
   27    2.  Prevent  or  prohibit  an individual possessing a baccalaureate of
   28  social work degree or its equivalent from the performance of  activities
   29  and services within the scope of practice of licensed master social work
   30  as defined in paragraphs (a) and (b) of subdivision one of section nine-
   31  teen  hundred  fifty-one  of  this  subarticle  under  supervision  by a
   32  licensed master social worker, a licensed clinical social worker  or  in
   33  accordance with the regulations of the secretary of state.
   34    3.  Prevent  or  prohibit  a  licensed  master  social worker from the
   35  performance of activities and services within the scope of  practice  of
   36  licensed  clinical  social work as defined in subdivision two of section
   37  nineteen hundred fifty-one of this subarticle in a facility setting  and
   38  under supervision in accordance with the regulations of the secretary of
   39  state.
   40    4.  Prevent  or  prohibit  the  performance of activities and services
   41  within the scope of practice of licensed master social work  as  defined
   42  in  subdivision one of section nineteen hundred fifty-one of this subar-
   43  ticle by individuals, churches,  schools,  teachers,  organizations,  or
   44  not-for-profit  businesses  which  are  providing  instruction,  advice,
   45  support, encouragement or information to individuals, families and rela-
   46  tional groups.
   47    5. Prevent or prohibit the  performance  of  activities  and  services
   48  within  the scope of practice of licensed master social work or licensed
   49  clinical social work as defined in section nineteen hundred fifty-one of
   50  this subarticle by the following:
   51    (a) any individual who is credentialed under any law, including attor-
   52  neys, rape crisis  counselors,  credentialed  alcoholism  and  substance
   53  abuse  counselors whose scope of practice includes the practices defined
   54  in section nineteen hundred fifty-one of this subarticle from performing
   55  or claiming to perform work authorized by applicable provisions of  this
   56  article and the mental hygiene law;
       S. 1407                            320                           A. 2107
 
    1    (b)  provision  of  pastoral  counseling services by any member of the
    2  clergy or christian science practitioner, from providing pastoral  coun-
    3  selling  services within the context of his or her ministerial charge or
    4  obligation;
    5    (c)  students  who  are  enrolled in a baccalaureate of social work or
    6  professional graduate level social work program of study, and which  are
    7  required to perform as part of the field work component of that program,
    8  services  provided  under  the  supervision  of  a field work supervisor
    9  approved by the program;
   10    (d) on the part of a student or trainee who is enrolled in an institu-
   11  tion or program registered by the education department or accredited  by
   12  an  accrediting  organization  acceptable to the education department to
   13  provide training in a discipline or profession, other than  social  work
   14  or  clinical  social  work,  that  is licensed pursuant to this article,
   15  where such activities and services are authorized within the  definition
   16  of the scope of practice of the profession, or discipline in which he or
   17  she  is  being  trained as set forth in this article or the secretary of
   18  state's regulations, provided that such services are performed under the
   19  regular and ongoing supervision of  a  licensee  in  the  profession  or
   20  discipline  in which he or she is being trained who assumes professional
   21  responsibility for the services performed under his or  her  supervision
   22  and that such activities and the provision of such services are a formal
   23  part  of  the  professional  training  program  in  which  he  or she is
   24  enrolled;
   25    (e) any federal, state, county or municipal employee performing  clin-
   26  ical  social  work  services upon the effective date of this section for
   27  the period during which they maintain such employment with such  govern-
   28  mental  unit  within the context of such employment and shall be limited
   29  to the services provided upon such effective date; and
   30    (f) any employee performing  clinical  social  work  services  on  the
   31  effective date of this section for the period during which they maintain
   32  such  employment with such entity within the context of such employment,
   33  and shall be limited to the services provided prior  to  such  effective
   34  date.
   35    §  1957. Special provisions. 1. Any person who is licensed as a certi-
   36  fied social worker on the effective date of  this  subarticle  shall  be
   37  licensed  as  a  licensed master social worker without meeting any addi-
   38  tional requirements.
   39    2. Any person who possesses a master's of social work  degree  on  the
   40  effective  date  of this section and who has five years of post-graduate
   41  social work employment and meets the requirements for a license pursuant
   42  to this subarticle, except for  examination,  shall  be  licensed  as  a
   43  licensed master social worker.
   44    3.  Any  person  who  is  licensed as a certified social worker on the
   45  effective date of this section and who has been authorized  pursuant  to
   46  section  three  thousand two hundred twenty-one or section four thousand
   47  three hundred three of the insurance law shall be licensed as a licensed
   48  clinical social worker without meeting any additional requirements.
   49    4. Any person who is licensed as a  certified  social  worker  on  the
   50  effective  date  of this section, but who has not received authorization
   51  pursuant to section three thousand two hundred twenty-one or four  thou-
   52  sand  three  hundred  three  of  the  insurance  law, who files with the
   53  department of state within one  year  of  the  effective  date  of  this
   54  section  an  application pursuant to subdivision two of section nineteen
   55  hundred fifty-four of this subarticle, who demonstrates to the satisfac-
   56  tion of the department of state that they meet the  experience  require-
       S. 1407                            321                           A. 2107
 
    1  ments  for  authorization pursuant to section three thousand two hundred
    2  twenty-one or four thousand three hundred three of  the  insurance  law,
    3  shall  be  licensed as a licensed clinical social worker without meeting
    4  any further requirements.
    5    5. Licensed master social workers and licensed clinical social workers
    6  may  use  accepted  classifications of signs, symptoms, dysfunctions and
    7  disorders, including, but not limited to, classifications  used  in  the
    8  practice setting for the purpose of providing mental health services.
    9    §  1958.  Boundaries  of  professional  practice. Any individual whose
   10  license or authority to practice derives from  the  provisions  of  this
   11  subarticle shall be prohibited from:
   12    1. Prescribing or administering drugs as defined in this article or as
   13  a  treatment, therapy, or professional service in the practice of his or
   14  her profession; or
   15    2. Using invasive procedures as a treatment, therapy, or  professional
   16  service  in  the practice of his or her profession. For purposes of this
   17  subdivision, "invasive procedure" means any  procedure  in  which  human
   18  tissue  is cut, altered, or otherwise infiltrated by mechanical or other
   19  means. Invasive procedure includes surgery, lasers, ionizing  radiation,
   20  therapeutic ultrasound, or electroconvulsive therapy.
   21    §  1959. Hospital privileges. Nothing herein contained shall be deemed
   22  to authorize,  grant,  or  extend  hospital  privileges  to  individuals
   23  licensed under this subarticle.
   24    §  12.    Article  40 of the general business law, as added by section
   25  three of this act, is amended by adding a new subarticle 27 to  read  as
   26  follows:
   27                                SUBARTICLE 27
   28                         MENTAL HEALTH PRACTITIONERS
   29  Section 2350.  Introduction.
   30          2351.  Definitions.
   31          2352.  Mental health counseling.
   32          2353.  Marriage and family therapy.
   33          2354.  Creative arts therapy.
   34          2355.  Psychoanalysis.
   35          2356.  State board for mental health practitioners.
   36          2357.  Boundaries of professional competency.
   37          2358.  Hospital privileges.
   38          2359.  Limited permits.
   39          2360.  Exemptions.
   40          2361.  Special provisions.
   41    §  2350.  Introduction.  This subarticle applies to the professions of
   42  mental health counseling, marriage and  family  therapy,  creative  arts
   43  therapy and psychoanalysis, and provides for the licensing of such prac-
   44  titioners.  The  general  provisions  for  all  professions contained in
   45  subarticle one of this article apply to this subarticle.
   46    § 2351. Definitions. For purposes of this article, the following terms
   47  shall have the following meanings:
   48    1. "Board" means the  state  board  for  mental  health  practitioners
   49  authorized by section twenty-three hundred fifty-six of this subarticle.
   50    2.  "Psychotherapy" means the treatment of mental, nervous, emotional,
   51  behavioral and addictive disorders, and ailments  by  the  use  of  both
   52  verbal and behavioral methods of intervention in interpersonal relation-
   53  ships  with  the  intent  of  assisting the persons to modify attitudes,
   54  thinking, affect, and behavior which are  intellectually,  socially  and
   55  emotionally maladaptive.
       S. 1407                            322                           A. 2107
 
    1    §  2352.  Mental  health  counseling. 1. Definition of the practice of
    2  mental health counseling. The  practice  of  the  profession  of  mental
    3  health counseling is defined as:
    4    (a) the evaluation, assessment, amelioration, treatment, modification,
    5  or adjustment to a disability, problem, or disorder of behavior, charac-
    6  ter,  development,  emotion,  personality or relationships by the use of
    7  verbal or behavioral methods  with  individuals,  couples,  families  or
    8  groups in private practice, group, or organized settings; and
    9    (b) the use of assessment instruments and mental health counseling and
   10  psychotherapy to identify, evaluate and treat dysfunctions and disorders
   11  for purposes of providing appropriate mental health counseling services.
   12    2.  Practice of mental health counseling and use of the titles "mental
   13  health counselor" and "licensed mental health counselor". Only a  person
   14  licensed  or  exempt  under this subarticle shall practice mental health
   15  counseling or use the title "mental health  counselor".  Only  a  person
   16  licensed  under  this  subarticle  shall  use the title "licensed mental
   17  health counselor" or any other designation tending  to  imply  that  the
   18  person is licensed to practice mental health counseling.
   19    3.  Requirements  for a professional license. To qualify for a license
   20  as a "licensed mental health counselor", an applicant shall fulfill  the
   21  following requirements:
   22    (a) Application: File an application with the department of state;
   23    (b)  Education:  Have  received  an education, including a master's or
   24  higher degree in counseling from a program registered by the  department
   25  of  state  or  determined by the department to be the substantial equiv-
   26  alent thereof, in accordance with the regulations of  the  secretary  of
   27  state. The graduate coursework shall include, but not be limited to, the
   28  following areas:
   29    (i) human growth and development;
   30    (ii) social and cultural foundations of counseling;
   31    (iii) counseling theory and practice and psychopathology;
   32    (iv) group dynamics;
   33    (v) lifestyle and career development;
   34    (vi) assessment and appraisal of individuals, couples and families and
   35  groups;
   36    (vii) research and program evaluation;
   37    (viii) professional orientation and ethics;
   38    (ix) foundations of mental health counseling and consultation;
   39    (x) clinical instruction; and
   40    (xi) completion of a minimum one year supervised internship or practi-
   41  cum in mental health counseling;
   42    (c)  Experience:  An applicant shall complete a minimum of three thou-
   43  sand hours of post-master's supervised experience relevant to the  prac-
   44  tice  of  mental  health  counseling  satisfactory  to  the board and in
   45  accordance with the regulations of the secretary of state;
   46    (d) Examination: Pass an examination satisfactory to the board and  in
   47  accordance with the regulations of the secretary of state;
   48    (e) Age: Be at least twenty-one years of age;
   49    (f) Character: Be of good moral character as determined by the depart-
   50  ment of state; and
   51    (g)  Fees: Pay a fee of two hundred forty dollars to the department of
   52  state for admission to a department conducted  examination  and  for  an
   53  initial  license; a fee of eighty-five dollars for each reexamination; a
   54  fee of one hundred seventy-five  dollars  for  an  initial  license  for
   55  persons  not  requiring  admission to a department conducted examination
       S. 1407                            323                           A. 2107
 
    1  and a fee of one hundred seventy dollars for each triennial registration
    2  period.
    3    §  2353. Marriage and family therapy. 1. Definition of the practice of
    4  marriage and family therapy. The practice of the profession of  marriage
    5  and family therapy is defined as:
    6    (a)  the  assessment  and  treatment  of nervous and mental disorders,
    7  whether affective, cognitive or behavioral, which  results  in  dysfunc-
    8  tional  interpersonal family relationships including, but not limited to
    9  familial  relationships,  marital/couple   relationships,   parent-child
   10  relationships, pre-marital and other personal relationships;
   11    (b) the use of mental health counseling, psychotherapy and therapeutic
   12  techniques  to  evaluate  and  treat  marital,  relational,  and  family
   13  systems, and individuals in relationship to these systems;
   14    (c) the use of mental health counseling  and  psychotherapeutic  tech-
   15  niques  to treat mental, emotional and behavioral disorders and ailments
   16  within the context of marital, relational and family systems to  prevent
   17  and ameliorate dysfunction; and
   18    (d) the use of assessment instruments and mental health counseling and
   19  psychotherapy  to  identify  and evaluate dysfunctions and disorders for
   20  purposes of providing appropriate marriage and family therapy services.
   21    2. Practice of marriage and family  therapy  and  use  of  the  titles
   22  "marriage and family therapist" and "licensed marriage and family thera-
   23  pist".  Only  a  person  licensed  or exempt under this subarticle shall
   24  practice marriage and family therapy or  use  the  title  "marriage  and
   25  family  therapist".  Only  a person licensed under this subarticle shall
   26  use the titles  "licensed  marriage  and  family  therapist",  "licensed
   27  marriage  therapist",  "licensed  family  therapist" or any other desig-
   28  nation tending to imply that the person is licensed to practice marriage
   29  and family therapy.
   30    3. Requirements for a professional license. To qualify for  a  license
   31  as  a  "licensed  marriage  and  family  therapist",  an applicant shall
   32  fulfill the following requirements:
   33    (a) Application: File an application with the department of state;
   34    (b) Education: Have received a master's or doctoral degree in marriage
   35  and family therapy from a program registered by the department of state,
   36  or determined by the department to be  the  substantial  equivalent,  in
   37  accordance with the regulations of the department of state or a graduate
   38  degree  in  an  allied field from a program registered by the department
   39  and graduate level  coursework  determined  to  be  equivalent  to  that
   40  required  in  a  program  registered  by the department. This coursework
   41  shall include, but not be limited to:
   42    (i) the study of human development, including  individual,  child  and
   43  family development;
   44    (ii) psychopathology;
   45    (iii) marital and family therapy;
   46    (iv) family law;
   47    (v) research;
   48    (vi) professional ethics; and
   49    (vii) a practicum of at least three hundred client contact hours;
   50    (c)  Experience:  The completion of at least one thousand five hundred
   51  client contact hours of supervised clinical experience, by persons hold-
   52  ing a degree from a master's or doctoral  program,  or  the  substantial
   53  equivalent, in accordance with the regulations of the secretary of state
   54  or  the completion of at least one thousand five hundred client hours of
   55  supervised post-master's clinical  experience  in  marriage  and  family
       S. 1407                            324                           A. 2107
 
    1  therapy  satisfactory  to the department of state in accordance with the
    2  regulations of the secretary of state;
    3    (d)  Examination: Pass an examination satisfactory to the board and in
    4  accordance with the regulations of the secretary of state;
    5    (e) Age: Be at least twenty-one years of age;
    6    (f) Character: Be of good moral character as determined by the depart-
    7  ment of state; and
    8    (g) Fees: Pay a fee of two hundred forty dollars to the department  of
    9  state  for  admission  to  a department conducted examination and for an
   10  initial license; a fee of eighty-five dollars for each reexamination;  a
   11  fee  of  one  hundred  seventy-five  dollars  for an initial license for
   12  persons not requiring admission to a  department  conducted  examination
   13  and a fee of one hundred seventy dollars for each triennial registration
   14  period.
   15    §  2354. Creative arts therapy. 1. Definition of the practice of crea-
   16  tive arts therapy. The practice of the profession of creative arts ther-
   17  apy is defined as:
   18    (a) the assessment, evaluation, and the therapeutic  intervention  and
   19  treatment,  which  may  be  either  primary,  parallel or adjunctive, of
   20  mental, emotional, developmental and behavioral  disorders  through  the
   21  use of the arts as approved by the department of state; and
   22    (b) the use of assessment instruments and mental health counseling and
   23  psychotherapy to identify, evaluate and treat dysfunctions and disorders
   24  for purposes of providing appropriate creative arts therapy services.
   25    2.  Practice  of creative arts therapy and use of the titles "creative
   26  arts therapist" and "licensed creative arts therapist".  Only  a  person
   27  licensed  or  exempt  under this subarticle shall practice creative arts
   28  therapy or use the  title  "creative  arts  therapist".  Only  a  person
   29  licensed  under  this  subarticle shall use the title "licensed creative
   30  arts therapist" or any other  designation  tending  to  imply  that  the
   31  person is licensed to practice creative arts therapy.
   32    3.  Requirements  for a professional license. To qualify for a license
   33  as a "licensed creative arts therapist", an applicant shall fulfill  the
   34  following requirements:
   35    (a) Application: File an application with the department of state;
   36    (b)  Education:  Have  received  an education, including a master's or
   37  higher degree in creative arts therapy from a program registered by  the
   38  department  of  state or determined by the department to be the substan-
   39  tial equivalent thereof, in  accordance  with  the  regulations  of  the
   40  secretary  of state.   The graduate coursework shall include, but not be
   41  limited to, the following areas:
   42    (i) human growth and development;
   43    (ii) theories in therapy;
   44    (iii) group dynamics;
   45    (iv) assessment and appraisal of individuals and groups;
   46    (v) research and program evaluation;
   47    (vi) professional orientation and ethics;
   48    (vii) foundations of creative arts therapy and psychopathology; and
   49    (viii) clinical instruction;
   50    (c) Experience: Have completed at least fifteen hundred hours of post-
   51  master's supervised experience in one or more  creative  arts  therapies
   52  satisfactory to the department of state and in accordance with the regu-
   53  lations of the secretary of state;
   54    (d)  Examination:  Pass an examination in creative arts therapy satis-
   55  factory to the department of state and  in  accordance  with  the  regu-
   56  lations of the secretary of state;
       S. 1407                            325                           A. 2107
 
    1    (e) Age: Be at least twenty-one years of age;
    2    (f) Character: Be of good moral character as determined by the depart-
    3  ment of state; and
    4    (g)  Fees: Pay a fee of two hundred forty dollars to the department of
    5  state for admission to a department conducted  examination  and  for  an
    6  initial  license; a fee of eighty-five dollars for each reexamination; a
    7  fee of one hundred seventy-five  dollars  for  an  initial  license  for
    8  persons  not  requiring  admission to a department conducted examination
    9  and a fee of one hundred seventy dollars for each triennial registration
   10  period.
   11    § 2355. Psychoanalysis. 1. Definition of the practice  of  psychoanal-
   12  ysis. The practice of the profession of psychoanalysis is defined as:
   13    (a)  the  observation,  description, evaluation, and interpretation of
   14  dynamic unconscious mental processes that contribute to the formation of
   15  personality and behavior in order to identify  and  resolve  unconscious
   16  psychic  problems which affect interpersonal relationships and emotional
   17  development, to facilitate changes in personality and  behavior  through
   18  the  use  of verbal and nonverbal cognitive and emotional communication,
   19  and to develop adaptive functioning; and
   20    (b) the use of assessment instruments and mental health counseling and
   21  psychotherapy to identify, evaluate and treat dysfunctions and disorders
   22  for purposes of providing appropriate psychoanalytic services.
   23    2. Practice of psychoanalysis and use of  the  titles  "psychoanalyst"
   24  and  "licensed  psychoanalyst".  Only  a person licensed or exempt under
   25  this subarticle shall practice psychoanalysis or use the title  "psycho-
   26  analyst".    Only  a person licensed under this subarticle shall use the
   27  title "licensed psychoanalyst" or any other designation tending to imply
   28  that the person is licensed to practice psychoanalysis.
   29    3. Requirements for a professional license. To qualify for  a  license
   30  as  a "licensed psychoanalyst", an applicant shall fulfill the following
   31  requirements:
   32    (a) Application: File an application with the department of state;
   33    (b) Education: Have received  a  master's  degree  or  higher  from  a
   34  degree-granting  program  registered  by  the department of state or the
   35  substantial equivalent and have completed a program of study  registered
   36  by  the  department  of state in a psychoanalytic institute chartered by
   37  the secretary of state or the substantial equivalent  as  determined  by
   38  the  department  of  state.    The  program of study in a psychoanalytic
   39  institute shall include coursework substantially equivalent  to  course-
   40  work  required  for a master's degree in a health or mental health field
   41  of study. The coursework shall include,  but  not  be  limited  to,  the
   42  following areas:
   43    (i) personality development;
   44    (ii) psychoanalytic theory of psychopathology;
   45    (iii) psychoanalytic theory of psychodiagnosis;
   46    (iv) sociocultural influence on growth and psychopathology;
   47    (v) practice technique (including dreams and symbolic processes);
   48    (vi) analysis of resistance, transference, and countertransference;
   49    (vii) case seminars on clinical practice;
   50    (viii) practice in psychopathology and psychodiagnosis;
   51    (ix) professional ethics and psychoanalytic research methodology; and
   52    (x)  a  minimum  of  three  hundred hours of personal analysis and one
   53  hundred fifty hours of supervised analysis;
   54    (c) Experience: Have completed a minimum of fifteen hundred  hours  of
   55  supervised clinical practice satisfactory to the department of state and
   56  in accordance with the regulations of the secretary of state;
       S. 1407                            326                           A. 2107
 
    1    (d) Examination: Pass an examination in psychoanalysis satisfactory to
    2  the  department  of  state and in accordance with the regulations of the
    3  secretary of state;
    4    (e) Age: Be at least twenty-one years of age;
    5    (f) Character: Be of good moral character as determined by the depart-
    6  ment of state; and
    7    (g)  Fees: Pay a fee of two hundred forty dollars to the department of
    8  state for admission to a department conducted  examination  and  for  an
    9  initial  license; a fee of eighty-five dollars for each reexamination; a
   10  fee of one hundred seventy-five  dollars  for  an  initial  license  for
   11  persons  not  requiring  admission to a department conducted examination
   12  and a fee of one hundred seventy dollars for each triennial registration
   13  period.
   14    § 2356. State board for mental health practitioners.  1. A state board
   15  for mental health practitioners shall be appointed by the  secretary  of
   16  state  for  the  purpose  of  assisting  the  secretary of state and the
   17  department of state on matters of licensing and  regulation.  The  board
   18  shall  be  composed of at least three licensed members from each profes-
   19  sion licensed pursuant to this subarticle  and  at  least  three  public
   20  representatives  who  do not hold interests in the organization, financ-
   21  ing, or delivery of mental health services.    Additionally,  the  board
   22  shall  contain one physician who shall be a psychiatrist. Members of the
   23  first board need not be licensed  prior  to  their  appointment  to  the
   24  board.  The  terms  of the first appointed members shall be staggered so
   25  that five are appointed for three years, five  are  appointed  for  four
   26  years,  and  six are appointed for five years. An executive secretary to
   27  the board shall be appointed by the secretary of state.
   28    2. For the purposes of this subarticle, "board" shall mean  the  state
   29  board for mental health practitioners.
   30    §  2357.  Boundaries of professional competency. 1. It shall be deemed
   31  practicing outside the boundaries of his or her professional  competence
   32  for a person licensed pursuant to this article, in the case of treatment
   33  of  any serious mental illness, to provide any mental health service for
   34  such illness on a continuous and sustained basis without a medical eval-
   35  uation of the illness by, and consultation with, a  physician  regarding
   36  such  illness.  Such  medical  evaluation  and  consultation shall be to
   37  determine and advise whether any medical  care  is  indicated  for  such
   38  illness.  For  purposes  of this section, "serious mental illness" means
   39  schizophrenia, schizoaffective disorder, bipolar disorder, major depres-
   40  sive disorder, panic  disorder,  obsessive-compulsive  disorder,  atten-
   41  tion-deficit hyperactivity disorder and autism.
   42    2.  Any individual whose license or authority to practice derives from
   43  the provisions of this article shall be prohibited from:
   44    (a) prescribing or administering drugs as defined in this article as a
   45  treatment, therapy, or professional service in the practice  of  his  or
   46  her profession; or
   47    (b) using invasive procedures as a treatment, therapy, or professional
   48  service  in  the practice of his or her profession. For purposes of this
   49  subdivision, "invasive procedure" means any  procedure  in  which  human
   50  tissue  is cut, altered, or otherwise infiltrated by mechanical or other
   51  means. Invasive procedure includes surgery, lasers, ionizing  radiation,
   52  therapeutic ultrasound, or electroconvulsive therapy.
   53    §  2358. Hospital privileges. Nothing herein contained shall be deemed
   54  to authorize,  grant,  or  extend  hospital  privileges  to  individuals
   55  licensed under this article.
       S. 1407                            327                           A. 2107
 
    1    §  2359.  Limited  permits.  The  following requirements for a limited
    2  permit shall apply to all professions licensed pursuant to this subarti-
    3  cle:
    4    1.  The department of state may issue a limited permit to an applicant
    5  whose qualifications have been approved for admission to the examination
    6  in accordance with regulations promulgated therefor.
    7    2. Limited permits shall be for  one  year  and  be  renewed,  at  the
    8  discretion of the department of state, for one additional year.
    9    3.  The  fee  for  each  limited  permit and for each renewal shall be
   10  seventy dollars.
   11    § 2360. Exemptions. Nothing contained  in  this  subarticle  shall  be
   12  construed to:
   13    1.  apply to the practice, conduct, activities, services or use of any
   14  title by any person licensed or otherwise authorized to  practice  medi-
   15  cine  within  the state pursuant to subarticle two of this article or by
   16  any person registered to perform services as a physician assistant with-
   17  in the state pursuant to subarticle two-B of  this  article  or  by  any
   18  person  licensed  or  otherwise authorized to practice psychology within
   19  this state pursuant to subarticle eighteen of this  article  or  by  any
   20  person  licensed  or  otherwise  authorized  to  practice as a certified
   21  social worker within this state pursuant to subarticle nineteen of  this
   22  article,  or  by any person licensed or otherwise authorized to practice
   23  nursing as a registered professional nurse within this state pursuant to
   24  subarticle eight of this article; provided, however, that no  physician,
   25  physician's  assistant,  registered professional nurse, psychologist, or
   26  certified social worker may use the titles "licensed mental health coun-
   27  selor", "licensed marriage and  family  therapist",  "licensed  creative
   28  arts therapist", or "licensed psychoanalyst", unless licensed under this
   29  subarticle;
   30    2. prohibit or limit any individual who is credentialed under any law,
   31  including  attorneys, rape crisis counselors, certified alcoholism coun-
   32  selors and certified substance abuse counselors  from  providing  mental
   33  health services within their respective established authorities;
   34    3. prohibit or limit the practice of a profession licensed pursuant to
   35  this  subarticle  by a student, intern or resident in, and as part of, a
   36  supervised educational program in an institution approved by the  educa-
   37  tion department;
   38    4.  prohibit or limit the provision of pastoral counseling services by
   39  any member of the clergy or Christian Science practitioner,  within  the
   40  context of his or her ministerial charge or obligation;
   41    5.  prohibit or limit individuals, churches, schools, teachers, organ-
   42  izations, or  not-for-profit  businesses,  from  providing  instruction,
   43  advice, support, encouragement, or information to individuals, families,
   44  and relational groups; or
   45    6.  prohibit  or  limit an occupational therapist from performing work
   46  consistent with subarticle twenty-one of this article.
   47    § 2361. Special  provisions.  1.  This  section  shall  apply  to  all
   48  professions  licensed  pursuant  to  this  subarticle,  unless otherwise
   49  provided.
   50    2. Any nonexempt person practicing a profession to be licensed  pursu-
   51  ant  to  this  subarticle  shall  apply for a license of said profession
   52  within one year of the effective date of the specified profession.
   53    (a) If such person does not meet the requirements for a license estab-
   54  lished within this subarticle, such person may meet alternative criteria
   55  determined by the department of state to be the  substantial  equivalent
   56  of such criteria.
       S. 1407                            328                           A. 2107
 
    1    (b)  If  such  person meets the requirements for a license established
    2  within this subarticle, except for examination, and has  been  certified
    3  or  registered  by  a  national  certifying  or  registering body having
    4  certification or registration standards acceptable to the  secretary  of
    5  state, the department of state shall license without examination.
    6    (c)  If  such  person meets the requirements for a license established
    7  within this subarticle, except for  examination,  and  there  exists  no
    8  national  certifying  or registering body having certification or regis-
    9  tration standards acceptable to the secretary of state,  the  department
   10  of  state  shall  license  without  examination if the applicant submits
   11  evidence satisfactory to the department of having been  engaged  in  the
   12  practice of the specified profession for at least five of the immediate-
   13  ly preceding eight years.
   14    3.  Any  person  licensed pursuant to this subarticle may use accepted
   15  classifications of  signs,  symptoms,  dysfunctions  and  disorders,  as
   16  approved in accordance with regulations promulgated by the department of
   17  state, in the practice of such licensed profession.
   18    §  13.  The  opening  paragraph  of  paragraph (e) of subdivision 1 of
   19  section 18 of the public health law, as amended by chapter 2 of the laws
   20  of 1990, is amended to read as follows:
   21    "Patient information" or "information" means any information  concern-
   22  ing or relating to the examination, health assessment including, but not
   23  limited to, a health assessment for insurance and employment purposes or
   24  treatment of an identifiable subject maintained or possessed by a health
   25  care facility or health care practitioner who has provided or is provid-
   26  ing  services  for  assessment  of a health condition including, but not
   27  limited to, a health assessment for insurance and employment purposes or
   28  has treated or is treating such  subject,  except  (i)  information  and
   29  clinical  records  subject to the provisions of section [23.05 or] 33.13
   30  of the mental hygiene law, (ii) personal notes  and  observations  of  a
   31  health care practitioner, provided that such personal notes and observa-
   32  tions  are maintained by the practitioner and not disclosed by the prac-
   33  titioner to any other  person  after  January  first,  nineteen  hundred
   34  eighty-seven, (iii) information maintained by a practitioner, concerning
   35  or  relating to the prior examination or treatment of a subject received
   36  from another practitioner, provided however, that such  information  may
   37  be  requested  by  the  subject directly from such other practitioner in
   38  accordance with the provisions of this section, and (iv) data  disclosed
   39  to  a  practitioner  in  confidence  by other persons on the basis of an
   40  express condition that such data would never be disclosed to the subject
   41  or other persons, provided that such data has never  been  disclosed  to
   42  any other person. If at any time such personal notes and observations or
   43  such  data  is disclosed, it shall be considered patient information for
   44  purposes of this section. For purposes of this subdivision,  "disclosure
   45  to any other person" shall not include disclosures made to practitioners
   46  as  part  of  a  consultation  or  referral  during the treatment of the
   47  subject, to persons reviewing information or  records  in  the  ordinary
   48  course  of  ensuring  that  a  provider is in compliance with applicable
   49  quality of care, licensure or accreditation standards, to an employee or
   50  official of a federal, state or local agency for  the  sole  purpose  of
   51  conducting  an audit in the course of his or her official duties, to the
   52  statewide planning and research cooperative  system,  to  other  persons
   53  pursuant to a court order, to governmental agencies, insurance companies
   54  licensed pursuant to the insurance law and other third parties requiring
   55  information  necessary  for  payments  to  be  made  to  or on behalf of
   56  patients, to qualified researchers, to the state board for  professional
       S. 1407                            329                           A. 2107
 
    1  medical  conduct  and  to the department of state when such board or the
    2  department of state requests such information in  the  exercise  of  its
    3  statutory  function,  to  an  insurance carrier insuring, or an attorney
    4  consulted  by, a health care provider, or to a health maintenance organ-
    5  ization certified pursuant to article  forty-four  of  this  chapter  or
    6  licensed  pursuant  to the insurance law, or to the committee or a court
    7  pursuant to the provisions of this section.
    8    § 14. Subdivisions 1 and 2 of section 230 of the  public  health  law,
    9  subdivision 1 as amended by chapter 537 of the laws of 1998 and subdivi-
   10  sion 2 as amended by chapter 37 of the laws of 1992, are amended to read
   11  as follows:
   12    1. A state board for professional medical conduct is hereby created in
   13  the  department  in  matters  of  professional  misconduct as defined in
   14  sections [sixty-five hundred thirty and sixty-five hundred thirty-one of
   15  the education] one thousand fifty and  one  thousand  fifty-one  of  the
   16  general  business  law.  Its physician members shall be appointed by the
   17  commissioner at least eighty-five percent of whom shall  be  from  among
   18  nominations  submitted  by the medical society of the state of New York,
   19  the New York state osteopathic society, the New York  academy  of  medi-
   20  cine, county medical societies, statewide specialty societies recognized
   21  by  the council of medical specialty societies, and the hospital associ-
   22  ation of New York state. Its lay  members  shall  be  appointed  by  the
   23  commissioner  with  the approval of the governor. The [board of regents]
   24  secretary of state shall also appoint twenty percent of the  members  of
   25  the board. Not less than sixty-seven percent of the members appointed by
   26  the  [board of regents] secretary of state shall be physicians. Not less
   27  than eighty-five percent of  the  physician  members  appointed  by  the
   28  [board  of  regents]  secretary of state shall be from among nominations
   29  submitted by the medical society of the state of New York, the New  York
   30  state  osteopathic  society,  the  New  York academy of medicine, county
   31  medical societies, statewide medical societies recognized by the council
   32  of medical specialty societies, and the hospital association of New York
   33  state. Any failure to meet the  percentage  thresholds  stated  in  this
   34  subdivision  shall  not  be grounds for invalidating any action by or on
   35  authority of the board for professional medical conduct or  a  committee
   36  or  a  member  thereof. The board for professional medical conduct shall
   37  consist of not fewer than eighteen physicians licensed in the state  for
   38  at  least  five  years,  two of whom shall be doctors of osteopathy, not
   39  fewer than two of whom shall be physicians who  dedicate  a  significant
   40  portion  of their practice to the use of non-conventional medical treat-
   41  ments who may be nominated by New York state medical associations  dedi-
   42  cated  to the advancement of such treatments, at least one of whom shall
   43  have expertise in palliative care, and not fewer than seven lay members.
   44  An executive secretary shall be appointed by the chairperson  and  shall
   45  be  a licensed physician. Such executive secretary shall not be a member
   46  of the board, shall hold office at the pleasure of, and shall  have  the
   47  powers  and  duties  assigned and the annual salary fixed by, the chair-
   48  person. The chairperson shall also  assign  such  secretaries  or  other
   49  persons to the board as are necessary.
   50    2. Members of such board shall be appointed by the commissioner or the
   51  [board  of  regents] secretary of state for three year terms except that
   52  the terms of those first appointed shall be arranged so that  as  nearly
   53  as  possible  an equal number shall terminate annually. A vacancy occur-
   54  ring during a term shall be filled by an appointment by the commissioner
   55  or the [board of regents] secretary of state for the unexpired term.
       S. 1407                            330                           A. 2107
 
    1    § 15. Subdivision 6 of section 390.50 of the criminal  procedure  law,
    2  as added by chapter 866 of the laws of 1980 and the closing paragraph as
    3  added by chapter 157 of the laws of 1982, is amended to read as follows:
    4    6.   Professional  licensing  agencies.  Probation  departments  shall
    5  provide a copy of presentence reports prepared in the case  of  individ-
    6  uals  who  are known to be licensed, certified, or registered, or other-
    7  wise authorized to practice pursuant to [title eight  of  the  education
    8  law]  article  forty of the general business law to the state department
    9  of health if the [licensee] individual is a  physician,  a  specialist's
   10  assistant  or  a  physician's  assistant,  and  to  the [state education
   11  department] department of state with respect to all other  such  [licen-
   12  sees]  individuals.    Such  reports  shall be accumulated and forwarded
   13  every three months, shall be in writing, and shall contain the following
   14  information:
   15    (a) the name of the [licensee] individual and the profession in  which
   16  licensure is held,
   17    (b) the date of the conviction and the nature thereof,
   18    (c) the index or other identifying file number.
   19    In any such case, the [state] department of state receiving such mate-
   20  rial  must  retain  it  under  the same conditions of confidentiality as
   21  apply to the probation department that made it available.
   22    § 16. Paragraph 8 of subdivision (c) of section 33.13  of  the  mental
   23  hygiene  law,  as amended by chapter 229 of the laws of 1990, is amended
   24  to read as follows:
   25    8. to the state board for professional medical conduct or  the  office
   26  of  professional  discipline in the department of state or their respec-
   27  tive representatives when such persons or entities request such informa-
   28  tion in the exercise of  their  statutory  function,  power  and  duties
   29  provided,  however,  that  no such information shall be released when it
   30  concerns the subject of an inquiry who is  also  a  patient  or  client,
   31  except pursuant to paragraph one of this subdivision.
   32    § 17. Subdivisions 2 and 3 of section 97-nnn of the state finance law,
   33  as added by section 90 of part A of chapter 436 of the laws of 1997, are
   34  amended to read as follows:
   35    2.  Notwithstanding any other law, rule or regulation to the contrary,
   36  the state comptroller is hereby authorized and directed to  receive  for
   37  deposit to the credit of the office of the professions account, payments
   38  relating  to the responsibilities of the [education] department of state
   39  pursuant to [title VIII] article forty of the [education] general  busi-
   40  ness  law,  including  fees  for professional licenses and registration,
   41  penalties for professional misconduct, charges for test  administration,
   42  verification  and  certification  of  credentials,  and  restoration  of
   43  revoked and annulled licenses and fees related to  foreign  and  out-of-
   44  state  medical school evaluations and any other related fees and charges
   45  as established by [commissioner's] regulations of the secretary of state
   46  pursuant to such [title] article.
   47    3.  Moneys of this account, following appropriation  by  the  legisla-
   48  ture,  shall  be  available to the [state education] department of state
   49  for services and expenses [of the office of the professions] relating to
   50  licensure and disciplining programs pursuant to  article  forty  of  the
   51  general business law.
   52    §  18. Notwithstanding any provision of law to the contrary, effective
   53  October 1, 2003, the office of the professions  program  established  by
   54  former  title  VIII  of  the education law shall be transferred from the
   55  state education department to the department of  state,  and  all  func-
       S. 1407                            331                           A. 2107
 
    1  tions,  powers,  duties, obligations and assets relating to such program
    2  shall be transferred subject to the provisions of this act.
    3    §  19.  Transfer  of authority, administration and appropriations.  1.
    4  The commissioner of education shall provide for the orderly transfer  of
    5  all matters, records and other items relating to the programs identified
    6  in  section  eighteen  of  this  act. Program and administrative matters
    7  relating to such transfer shall be included in a transition plan  devel-
    8  oped  and  agreed  to by the department of state and the state education
    9  department no later than 120 days after the effective date of this  act,
   10  and  approved  by the director of the budget.  Fiscal and administrative
   11  details may be included in a memorandum of understanding to be developed
   12  between the department of state and the state education  department  and
   13  subject  to the approval of the director of the budget. The commissioner
   14  of education and the board of regents are  authorized  and  directed  to
   15  continue their respective roles, responsibilities and functions until an
   16  orderly transition has been completed.
   17    2.  The director of the budget is hereby authorized to transfer to the
   18  department of state funds otherwise appropriated  or  reappropriated  to
   19  the education department consistent with the purposes of this act.
   20    § 20. Transfers of records. All books, papers, records and property of
   21  the  program transferred hereby are to be delivered to the department of
   22  state at such place and time, and in such manner as the commissioner  of
   23  the department of state requires.
   24    §  21.  Continuation of rules and regulations. All rules, regulations,
   25  acts, determinations and decisions of the board of regents, the  commis-
   26  sioner  of  education and the state education department with respect to
   27  the administration of the former title VIII  of  the  education  law  in
   28  force  at the time of the transfer shall continue in force and effect as
   29  rules, regulations, acts, determinations and decisions of the  secretary
   30  of  state  unless identified in the transition plan and agreed to by the
   31  department of state and the  state  education  department  as  remaining
   32  under  the  supervision  of  the state education department for a stated
   33  time.
   34    § 22. Completion of unfinished business. Any business or other  matter
   35  undertaken  or  commenced  by the state education department relating to
   36  the functions, powers, duties and  obligations  hereby  transferred  and
   37  assigned to the department of state and pending on the effective date of
   38  such  transfer  shall  be  conducted  and completed by the department of
   39  state in the same manner and under the same  terms  and  conditions  and
   40  with  the  same effect as if conducted and completed by the state educa-
   41  tion department.
   42    § 23. Terms occurring in laws, contracts and other documents. Upon the
   43  effective date of the transfer or such alternate dates as shall be iden-
   44  tified in the transition plan, whenever  the  functions,  powers,  obli-
   45  gations,  duties  and  officials  relating to the programs hereby trans-
   46  ferred and reassigned are referred to or designated in any law, contract
   47  or document, such reference or designation shall be deemed to  refer  to
   48  the  appropriate functions, powers, obligations, duties and officials in
   49  the department of state or of the secretary of state.
   50    § 24. Existing rights and remedies preserved.  No  existing  right  or
   51  remedy of any character shall be lost, impaired or affected by reason of
   52  section eighteen of this act.
   53    §  25.  Subdivision  b of section 17-357 of the administrative code of
   54  the city of New York, as added by local law 12 of the city of  New  York
   55  for the year 1997, is amended to read as follows:
       S. 1407                            332                           A. 2107
 
    1    b.  The  provisions  of this subchapter shall not apply to a physician
    2  licensed under [article one hundred thirty-one of  the  New  York  state
    3  education] subarticle two of article forty of the New York state general
    4  business law.
    5    §  26. Subdivision (d) of section 24-718 of the administrative code of
    6  the city of New York, as added by local law 92 of the city of  New  York
    7  for the year 1993, is amended to read as follows:
    8    (d)  Preparation  of  risk  management  plan. The risk management plan
    9  shall be prepared by one or more of the following persons: an industrial
   10  hygienist certified by the American Board of  Industrial  Hygienists,  a
   11  professional engineer licensed pursuant to section [7206 of the New York
   12  state  education]  1656  of  the  New York state general business law, a
   13  safety professional certified by the Board of Certified  Safety  Profes-
   14  sionals, or other qualified person authorized by rule of the commission-
   15  er. A plan submitted pursuant to this section shall contain proof satis-
   16  factory  to  the  commissioner  of  the qualifications of the person who
   17  prepared such plan.
   18    § 27. Paragraph (a) of subdivision 4 of section 117-a of the  agricul-
   19  ture  and markets law, as amended by chapter 205 of the laws of 2000, is
   20  amended to read as follows:
   21    (a) Any licensed veterinarian of this state including, but not limited
   22  to, licensed veterinarians working at municipal facilities which provide
   23  dog and cat spaying and neutering services, other than with  respect  to
   24  animals  who would not be eligible pursuant to subdivision two-a of this
   25  section may participate in the program upon filing with the commissioner
   26  an application therefor, on forms prescribed by the commissioner,  which
   27  application   shall  certify,  in  addition  to  any  other  information
   28  requested by the commissioner,  an  animal  sterilization  fee  schedule
   29  listing  the fees charged for spaying and neutering in the normal course
   30  of business and for the presurgical immunization of dogs against distem-
   31  per, hepatitis, leptospirosis,  parvovirus  and  rabies,  or  if  deemed
   32  necessary  for  the  presurgical  immunization  of  cats  against feline
   33  panleukopenia, calici, pneumonitis, rhinotracheitis and rabies,  as  the
   34  case  may  be on the first day of January two thousand one and the first
   35  day of January each third year thereafter and the number of  spay/neuter
   36  procedures done by such facility during such period.  Additionally, such
   37  licensed veterinarian shall certify that the fees charged for procedures
   38  and  vaccinations for which reimbursement is sought are equal to or less
   39  than the lowest fees charged to a private  client  for  such  procedures
   40  during  the  previous year. The veterinarian shall also provide the name
   41  of the veterinarian, animal hospital, veterinary clinic or other  entity
   42  to  which such reimbursement is to be made. These fees may vary with the
   43  animal's  weight,  sex  and  species.  The  commissioner  may,  however,
   44  disqualify from participation in the program any veterinarian whose fees
   45  are  deemed  unreasonable.  Nothing  contained in this subdivision shall
   46  limit the right of the department of  state  [education  department]  to
   47  undertake  such  actions  as  it  may  deem  necessary  to  enforce  the
   48  provisions of [article one hundred thirty-five  of  the  education  law]
   49  subarticle five of article forty of the general business law.
   50    §  28.  Paragraph (g) of section 1503 of the business corporation law,
   51  as added by chapter 676 of the laws of  2002,  is  amended  to  read  as
   52  follows:
   53    (g) The practices of creative arts therapy, marriage and family thera-
   54  py, mental health counseling, and psychoanalysis shall not be deemed the
   55  same  professional  service  for  the  purpose  of paragraph (a) of this
   56  section, notwithstanding that such  practices  are  all  licensed  under
       S. 1407                            333                           A. 2107
 
    1  [article  one hundred sixty-three of the education law] subarticle twen-
    2  ty-seven of article forty of the general business law.
    3    §  29.  Section  1513  of  the business corporation law, as amended by
    4  chapter 576 of the laws of 1994, is amended to read as follows:
    5  § 1513. Business corporation law applicable.
    6    This chapter, except article thirteen and article fifteen-A, shall  be
    7  applicable  to  a  professional service corporation except to the extent
    8  that the provisions thereof conflict with this article.  A  professional
    9  service  corporation  may  consolidate or merge only with another corpo-
   10  ration organized under this article or authorized to do business in this
   11  state under article fifteen-A of this chapter or authorized  and  regis-
   12  tered  to  practice  the  same  profession  pursuant  to  the applicable
   13  provisions of subdivision six of section [seventy-two  hundred  nine  of
   14  the  education law] sixteen hundred sixty of the general business law or
   15  subdivision four of section [seventy-three hundred seven of  the  educa-
   16  tion law] seventeen hundred seven of the general business law, or may be
   17  a  member of a professional service limited liability company, a foreign
   18  professional service limited liability  company,  a  registered  limited
   19  liability partnership or foreign limited liability partnership, and only
   20  if  all  of  the  professions  practiced  by  such corporations, limited
   21  liability companies or limited liability partnerships could be practiced
   22  by a single corporation organized under this article.
   23    § 30. Section 1516 of the business  corporation  law,  as  amended  by
   24  chapter 851 of the laws of 1992, is amended to read as follows:
   25  § 1516. Corporate mergers, consolidations and other reorganizations.
   26    Notwithstanding  any inconsistent provision of this article, a profes-
   27  sional service corporation, pursuant to the provisions of  article  nine
   28  of  this chapter, may be merged or consolidated with another corporation
   29  formed pursuant to the provisions of this chapter or with a  corporation
   30  authorized  and  registered  to practice the same profession pursuant to
   31  the applicable provisions of subdivision  six  of  section  [seventy-two
   32  hundred  nine of the education law] sixteen hundred sixty of the general
   33  business law (engineer or land surveyor) or subdivision four of  section
   34  [seventy-three  hundred  seven  of  the education law] seventeen hundred
   35  seven of the general business law (architect) [of  article  one  hundred
   36  forty-five  of the education law], or with a foreign corporation, or may
   37  be otherwise reorganized, provided that the corporation  which  survives
   38  or  which  is  formed  pursuant thereto is a professional service corpo-
   39  ration or a foreign professional service corporation practicing the same
   40  profession or professions in this state or the  state  of  incorporation
   41  or, if one of the original corporations is authorized to practice pursu-
   42  ant  to the provisions of either subdivision six of section [seven thou-
   43  sand two hundred nine] sixteen hundred sixty of the general business law
   44  or subdivision four of section  [seven  thousand  three  hundred  seven]
   45  seventeen  hundred  seven  of  the  general  business law, a corporation
   46  authorized and registered to practice the same  profession  pursuant  to
   47  the  applicable  provisions  of  subdivision six of section [seventy-two
   48  hundred nine of the education law] sixteen hundred sixty of the  general
   49  business  law (engineer or land surveyor) or subdivision four of section
   50  [seventy-three hundred seven of the  education  law]  seventeen  hundred
   51  seven  of  the  general business law (architect) [of article one hundred
   52  forty-five of the education law].  The  restrictions  on  the  issuance,
   53  transfer  or  sale of shares of a professional service corporation shall
   54  be suspended for a period not exceeding thirty days with respect to  any
   55  issuance,  transfer  or  sale  of  shares  made pursuant to such merger,
   56  consolidation or reorganization, provided that (i) no person  who  would
       S. 1407                            334                           A. 2107
 
    1  not be eligible to be a shareholder in the absence of this section shall
    2  vote  the  shares  of or receive any distribution from such corporation;
    3  (ii) after such merger, consolidation  or  reorganization,  any  profes-
    4  sional  service  corporation  which survives or which is created thereby
    5  shall be subject to all of the provisions of  this  article,  and  (iii)
    6  shares  thereafter  only  may  be  held  by  persons who are eligible to
    7  receive shares of such professional service corporation  or  such  other
    8  corporation  authorized  and  registered to practice the same profession
    9  pursuant to the applicable provisions  of  subdivision  six  of  section
   10  [seventy-two hundred nine of the education law] sixteen hundred sixty of
   11  the general business law (engineer or land surveyor) or subdivision four
   12  of  section [seventy-three hundred seven of the education law] seventeen
   13  hundred seven of the general business law (architect)  [of  article  one
   14  hundred forty-five of the education law], which survives. Nothing herein
   15  contained  shall be construed as permitting the practice of a profession
   16  in this state by a corporation which is not incorporated pursuant to the
   17  provisions of this article or authorized to do business  in  this  state
   18  pursuant  to  the  provisions  of  article  fifteen-A of this chapter or
   19  authorized and registered to  practice  a  profession  pursuant  to  the
   20  applicable  provisions  of article [one hundred forty-five of the educa-
   21  tion law] forty of the general business law.  For the purposes  of  this
   22  section, other reorganizations shall be limited to those reorganizations
   23  defined  in  paragraph  one  of  subsection (a) of section three hundred
   24  sixty-eight of the internal revenue code.
   25    § 31. Subdivision (d) of section 4504 of the civil  practice  law  and
   26  rules,  as  added by chapter 987 of the laws of 1971, is amended to read
   27  as follows:
   28    (d) Proof of negligence; unauthorized practice  of  medicine.  In  any
   29  action  for  damages for personal injuries or death against a person not
   30  authorized to practice medicine under [article 131 of the education law]
   31  subarticle two of article forty of the general business law for any  act
   32  or  acts  constituting  the  practice of medicine, when such act or acts
   33  were a competent producing proximate or contributing cause of such inju-
   34  ries or death, the fact that  such  person  practiced  medicine  without
   35  being so authorized shall be deemed prima facie evidence of negligence.
   36    §  32. The opening paragraph of section 4507 of the civil practice law
   37  and rules, as amended by chapter 913 of the laws of 1984, is amended  to
   38  read as follows:
   39    The  confidential  relations and communications between a psychologist
   40  registered under the provisions of [article one hundred  fifty-three  of
   41  the  education  law] subarticle eighteen of article forty of the general
   42  business law and his client are  placed  on  the  same  basis  as  those
   43  provided by law between attorney and client, and nothing in such article
   44  shall  be  construed to require any such privileged communications to be
   45  disclosed.
   46    § 33. The opening paragraph of paragraph (a) of section  4508  of  the
   47  civil  practice  law  and rules, as amended by chapter 96 of the laws of
   48  1985, is amended to read as follows:
   49    A person duly registered  as  a  certified  social  worker  under  the
   50  provisions  of  [article  one  hundred  fifty-four of the education law]
   51  subarticle nineteen of article forty of the general business  law  shall
   52  not  be  required to disclose a communication made by his client to him,
   53  or his advice given thereon, in the course of his  professional  employ-
   54  ment,  nor shall any clerk, stenographer or other person working for the
   55  same employer as the certified social worker or for the certified social
       S. 1407                            335                           A. 2107
 
    1  worker be allowed to disclose any such  communication  or  advice  given
    2  thereon; except
    3    § 34. Section 24-a of the correction law, as amended by chapter 481 of
    4  the laws of 1992, is amended to read as follows:
    5    §  24-a. Actions against persons rendering health care services at the
    6  request of the department; defense and indemnification.  The  provisions
    7  of  section  seventeen  of  the  public  officers law shall apply to any
    8  person holding a license to practice a profession pursuant  to  [article
    9  one  hundred  thirty-one,  one hundred thirty-one-B, one hundred thirty-
   10  two, one hundred thirty-three, one hundred thirty-six, one hundred thir-
   11  ty-seven, one hundred thirty-nine, one hundred  forty-one,  one  hundred
   12  forty-three,  one  hundred  fifty-six  or  one hundred fifty-nine of the
   13  education law] subarticle two-a, two-b, three, four, six, seven,  eight,
   14  ten, eleven, twenty-one, or twenty-three of article forty of the general
   15  business  law,  who  is  rendering or has rendered professional services
   16  authorized under such license while acting at the request of the depart-
   17  ment or a facility of the department in providing health care and treat-
   18  ment or professional  consultation  to  inmates  of  state  correctional
   19  facilities,  or to the infant children of inmates while such infants are
   20  cared for in facility nurseries pursuant to section six  hundred  eleven
   21  of  this  chapter, without regard to whether such health care and treat-
   22  ment or professional  consultation  is  provided  within  or  without  a
   23  correctional facility.
   24    §  35.  Subdivision 3 of section 250.10 of the criminal procedure law,
   25  as added by chapter 548 of the laws of  1980,  is  amended  to  read  as
   26  follows:
   27    3.  When  a  defendant,  pursuant  to subdivision two of this section,
   28  serves notice of intent to present psychiatric  evidence,  the  district
   29  attorney  may  apply  to the court, upon notice to the defendant, for an
   30  order directing that the defendant submit to an examination by a psychi-
   31  atrist or licensed psychologist  as  defined  in  [article  one  hundred
   32  fifty-three  of  the education law] subarticle eighteen of article forty
   33  of the general business law designated by the district attorney. If  the
   34  application  is  granted, the psychiatrist or psychologist designated to
   35  conduct the examination must notify the district  attorney  and  counsel
   36  for  the  defendant  of the time and place of the examination. Defendant
   37  has a right to  have  his  counsel  present  at  such  examination.  The
   38  district  attorney may also be present. The role of each counsel at such
   39  examination is that of an observer, and neither counsel shall be permit-
   40  ted to take an active role at the examination.
   41    § 36. Paragraph (r) of subdivision 1 of section 330.20 of the criminal
   42  procedure law, as added by chapter 548 of the laws of 1980,  is  amended
   43  to read as follows:
   44    (r)  "Licensed  psychologist"  means  a  person who is registered as a
   45  psychologist under [article one hundred  fifty-three  of  the  education
   46  law] subarticle eighteen of article forty of the general business law.
   47    §  37.  Subdivision 6 of section 730.10 of the criminal procedure law,
   48  as renumbered by chapter 629 of the laws of 1974, is amended to read  as
   49  follows:
   50    6.  "Certified  psychologist"  means  a  person who is registered as a
   51  certified psychologist under [article one  hundred  fifty-three  of  the
   52  education law] subarticle eighteen of article forty of the general busi-
   53  ness law.
   54    §  38.  Paragraph  a  of subdivision 1 of section 902 of the education
   55  law, as amended by chapter 600 of the laws of 2002, is amended  to  read
   56  as follows:
       S. 1407                            336                           A. 2107
 
    1    a.  The  board  of  education, and the trustee or board of trustees of
    2  each school district, shall employ, at a compensation to be agreed  upon
    3  by  the  parties,  a  competent  physician  or nurse practitioner to the
    4  extent authorized by law and consistent with the written practice agree-
    5  ment pursuant to subdivision three of section [six thousand nine hundred
    6  two  of  this chapter] fourteen hundred two of the general business law,
    7  to make inspections of pupils attending the public schools in  the  city
    8  or  district. The physicians or nurse practitioners so employed shall be
    9  duly licensed pursuant to applicable law.
   10    § 39. Section 910 of the education law, as amended by chapter  839  of
   11  the laws of 1947, is amended to read as follows:
   12    § 910. Choice  of  method  of  treatment.    Whenever  affected by the
   13  requirements of this article, the teacher, janitor or  other  person  so
   14  affected,  and  in  the  case of a child, the parent or guardian of such
   15  child, shall have the right to determine the form or manner of treatment
   16  or remedial care to be prescribed or applied, but the treatment or reme-
   17  dial care must be in accordance with and as allowed under the provisions
   18  of [article one hundred thirty-one of this chapter]  subarticle  two  of
   19  article forty of the general business law.
   20    §  40.  Subdivisions  1  and  2 of section 547-a of the executive law,
   21  subdivision 1 as amended by chapter 474 of the laws of 1996, subdivision
   22  2 as amended by chapter 583 of the laws of 1990, are amended to read  as
   23  follows:
   24    1.  "Covered  drug"  shall  mean a drug dispensed subject to a legally
   25  authorized prescription pursuant to section [sixty-eight hundred ten  of
   26  the  education  law] thirteen hundred sixty of the general business law,
   27  and insulin, an insulin syringe, or an insulin needle. Such  term  shall
   28  not  include: (a) any drug determined by the commissioner of the federal
   29  food and drug administration to be ineffective or unsafe; (b)  any  drug
   30  dispensed in a package, or form of dosage or administration, as to which
   31  the  state  commissioner of health finally determines in accordance with
   32  the provisions of section five hundred  forty-seven-l  of  this  article
   33  that  a  less expensive package, or form of dosage or administration, is
   34  available that is pharmaceutically  equivalent  and  equivalent  in  its
   35  therapeutic  effect for the general health characteristics of the eligi-
   36  ble program participant population; and (c) any device for  the  aid  or
   37  correction of vision, or any drug, including vitamins, which is general-
   38  ly available without a physician's prescription. For the purpose of this
   39  article,  except  as  otherwise provided herein, a covered drug shall be
   40  dispensed in quantities no greater than  a  thirty  day  supply  or  one
   41  hundred  units, whichever is greater. In the case of a drug dispensed in
   42  a form of administration other than a tablet  or  capsule,  the  maximum
   43  allowed  quantity  shall be a thirty day supply; the panel is authorized
   44  to approve exceptions to these limits for  specific  products  following
   45  consideration  of recommendations from pharmaceutical or medical experts
   46  regarding commonly packaged quantities, unusual forms of administration,
   47  length of treatment or cost effectiveness.    In  the  case  of  a  drug
   48  prescribed  pursuant  to  section thirty-three hundred thirty-two of the
   49  public health law to treat one of the conditions that have been  enumer-
   50  ated  by the commissioner of health pursuant to regulation as warranting
   51  the prescribing of greater than a thirty day supply, such drug shall  be
   52  dispensed in quantities not to exceed a three month supply.
   53    2.  "Provider  pharmacy" shall mean a pharmacy registered in the state
   54  of New York pursuant to section [sixty-eight hundred eight of the educa-
   55  tion law] thirteen hundred thirty-eight of the general business law  law
   56  or a pharmacy registered in a state bordering the state of New York when
       S. 1407                            337                           A. 2107
 
    1  certified  as  necessary  by  the executive director pursuant to section
    2  five hundred forty-seven-m of this article, for which  an  agreement  to
    3  provide  pharmacy  services  for  purposes  of  this program pursuant to
    4  section five hundred forty-seven-i of this article is in effect.
    5    § 41. Section 522 of the executive law, as added by chapter 552 of the
    6  laws of 1993, is amended to read as follows:
    7    § 522. Actions  against  persons rendering health care services at the
    8  request of the division; defense and indemnification. The provisions  of
    9  section  seventeen  of the public officers law shall apply to any person
   10  holding a license to practice a  profession  pursuant  to  [article  one
   11  hundred  thirty-one,  one  hundred thirty-one-B, one hundred thirty-two,
   12  one hundred thirty-three, one hundred thirty-six,  one  hundred  thirty-
   13  seven,  one  hundred  thirty-nine,  one  hundred  forty-one, one hundred
   14  forty-three, one hundred fifty-six or  one  hundred  fifty-nine  of  the
   15  education  law]  subarticles two, two-b, three, four, six, seven, eight,
   16  ten, eleven, twenty-one, and twenty-three of article forty of the gener-
   17  al business law, who is rendering or has rendered professional  services
   18  authorized  under  such license while acting at the request of the divi-
   19  sion or a facility of the division in providing health care  and  treat-
   20  ment  or  professional consultation to residents of division facilities,
   21  or to infants of residents while such infants are cared for in  division
   22  facilities  pursuant  to  section  five hundred sixteen of this article,
   23  without regard to whether such health care and treatment or professional
   24  consultation is provided within or without a division facility.
   25    § 42. Subdivision 3 of section 838 of the executive law, as amended by
   26  chapter 708 of the laws of 1983, is amended to read as follows:
   27    3. In addition to the foregoing provisions of this section, the county
   28  medical examiner or coroner shall cause a dentist authorized to practice
   29  pursuant to [article one hundred  thirty-three  of  the  education  law]
   30  subarticle four of article forty of the general business law or a dental
   31  student in a registered school of dentistry in this state to carry out a
   32  dental  examination  of  the  deceased.  The medical examiner or coroner
   33  shall forward the dental examination records to the division on  a  form
   34  supplied by the division for that purpose.
   35    §  43.    The opening paragraph of section 182 of the general business
   36  law, as added by chapter 731 of the laws of 1952, and  such  section  as
   37  renumbered  by  chapter  893  of the laws of 1958, is amended to read as
   38  follows:
   39    A nurses' registry shall send out to  practice  nursing  only  persons
   40  duly licensed pursuant to [article one hundred thirty-nine of the educa-
   41  tion  law] subarticle eight of article forty of this chapter as a regis-
   42  tered professional nurse or  licensed  practical  nurse.  Every  nurses'
   43  registry,  before sending a person out to practice nursing, shall inves-
   44  tigate such person's educational qualifications and verify such person's
   45  licensure and current registration. At least two current written  refer-
   46  ences  shall  be  required of such person.   The record of such investi-
   47  gation and verification shall be kept on file in the registry.
   48    § 44. Subdivision 4 of section 185 of the  general  business  law,  as
   49  amended  by  chapter  998  of  the  laws  of 1960, is amended to read as
   50  follows:
   51    4. Types of employment. For the purpose of placing a ceiling over  the
   52  fees charged by persons conducting employment agencies, types of employ-
   53  ment shall be classified as follows:
   54    Class  "A"--domestics,  household  employees,  unskilled  or untrained
   55  manual workers and laborers, including agricultural workers;
       S. 1407                            338                           A. 2107
 
    1    Class "A1"--non-professional trained or skilled industrial workers  or
    2  mechanics;
    3    Class "B"--commercial, clerical, executive, administrative and profes-
    4  sional employment, all employment outside the continental United States,
    5  and all other employment not included in classes "A", "A1", "C" and "D";
    6    Class "C"--theatrical engagements;
    7    Class  "D"--nursing  engagements  as  defined  in [article one hundred
    8  thirty-nine of the education law] subarticle eight of article  forty  of
    9  this chapter.
   10    §  45.  Subdivision 1 of section 350-b of the general business law, as
   11  amended by chapter 159 of the laws  of  1991,  is  amended  to  read  as
   12  follows:
   13    1.  Any  person  who uses the title "doctor" in making representations
   14  for the purpose of inducing, or which are likely to induce, directly  or
   15  indirectly,  the purchase of (a) drugs, devices or cosmetics, as defined
   16  in section [sixty-eight hundred  two  of  the  education  law]  thirteen
   17  hundred  fifty-two  of  this  chapter,  or  (b)  other goods or services
   18  intended to  diagnose,  treat,  mitigate,  prevent  or  cure  any  human
   19  disease,  pain,  injury,  deformity,  nutritional deficiency or physical
   20  condition, or which are intended to appear  to  the  purchaser  of  such
   21  goods  or  services  to  have  done so, shall conspicuously disclose the
   22  profession in which he or she is licensed, except that, where no license
   23  is required by the department of education, such person shall  conspicu-
   24  ously  disclose the major subject in which the degree was earned and the
   25  name of the institution that issued the degree provided,  however,  that
   26  such person shall be prohibited from using the title "doctor" unless the
   27  degree was conferred by an institution of higher education authorized by
   28  law to confer doctoral degrees in the state where it is located. For the
   29  purposes  of  this  section, "conspicuously" shall mean equally in size,
   30  type or prominence and positioned adjacent to the  title  "doctor".  The
   31  requirements  of this subdivision supplement, and shall not be construed
   32  to limit, the obligations of health professionals pursuant to the educa-
   33  tion law and regulations thereunder, nor  shall  they  be  construed  to
   34  authorize  the  practice  of  any  licensed  profession nor the offer of
   35  professional services by any unlicensed person.
   36    § 46. Paragraph e of subdivision 1 of section 406 of the general busi-
   37  ness law, as amended by chapter 600 of the laws of 2002, is  amended  to
   38  read as follows:
   39    e.  Each  application  shall be accompanied by a certificate of a duly
   40  licensed physician, or nurse practitioner to the  extent  authorized  by
   41  law  and  consistent  with  the  written  practice agreement pursuant to
   42  subdivision three of section [six  thousand  nine  hundred  two  of  the
   43  education law] fourteen hundred two of this chapter on a form prescribed
   44  by  the  secretary,  showing freedom from any infectious or communicable
   45  disease which certificate shall have  been  issued  within  thirty  days
   46  prior to the date of the filing of the application.
   47    §  47. Subdivision 13 of section 750-a of the general business law, as
   48  added by chapter 526 of the laws of 1992, is amended to read as follows:
   49    13. "Veterinarian" means a person licensed to practice the  profession
   50  of veterinary medicine as defined by section [sixty-seven hundred one of
   51  the education law] twelve hundred fifty-one of this chapter.
   52    §  48.  Subdivisions 2, 6 and 8 of section 789 of the general business
   53  law, subdivision 2 as amended by chapter 301 of the laws of 2000, subdi-
   54  vision 6 as amended by chapter 133 of the laws of 1999, and  subdivision
   55  8  as  added  by chapter 599 of the laws of 1998, are amended to read as
   56  follows:
       S. 1407                            339                           A. 2107
 
    1    2. "Audiologist" means an individual who is  licensed  under  [article
    2  one  hundred fifty-nine of the education law] subarticle twenty-three of
    3  article forty of this chapter  to  evaluate  hearing,  and  hearing  and
    4  communication  disorders  and  to  engage  in those practices defined in
    5  section  [eighty-two  hundred  three  of  the  education law] twenty-one
    6  hundred fifty-three of this chapter.
    7    6. "Dispensing of hearing aids" means the act of  fitting,  selecting,
    8  selling,  renting,  adapting  or  servicing of hearing aids or any other
    9  instrument to compensate for impaired hearing; provided that  such  term
   10  shall  include  testing  of  hearing, solely for the purpose of fitting,
   11  selecting, selling, distribution, renting, adapting or servicing hearing
   12  aids or any instrument to compensate for impaired hearing, the making of
   13  impressions,  castings  and  shells  and  appropriate   counseling   and
   14  instructions  pertaining to the selection, adaptation and sale or rental
   15  of hearing aids and further provided that such term  shall  include  any
   16  tasks,  procedures,  acts,  or  practices that are necessary (a) for the
   17  non-diagnostic testing of hearing solely for the purpose  of  fitting  a
   18  hearing  aid;  (b)  for  training  in the use of amplification including
   19  hearing aids; (c) for the making of ear molds for hearing aids; (d)  for
   20  the  fitting, dispensing, and sale of hearing aids; or (e) for otoscopic
   21  observation of solely  the  ear  canal  for  the  purposes  of  fitting,
   22  dispensing  or  sale  of  hearing  aids; provided, however, that nothing
   23  contained in this subdivision shall be deemed to permit the  performance
   24  of  or  reference  to an otoscopic evaluation for medical diagnosis; and
   25  (f) for those other procedures necessary to  determine  proper  amplifi-
   26  cation needs and the specific hearing aid which will be of maximum bene-
   27  fit  to  aid  or  to  compensate  for  the impaired ear. Testing for the
   28  purpose of fitting a hearing aid shall include only such  tests  meeting
   29  standards  acceptable  to  the secretary as needed to verify the optimum
   30  fitting characteristics and circuitry of any hearing  aids  or  amplifi-
   31  cation  devices  needed  and  shall not be for the purposes of, make any
   32  reference to, or include any medical diagnosis  whatsoever.  No  hearing
   33  aid dispenser shall verbally or in writing make a statement or reference
   34  to  a  prospective  hearing  aid user regarding any medical condition or
   35  diagnosis except such communications required pursuant to paragraph  (c)
   36  of subdivision eight of section seven hundred ninety-eight of this arti-
   37  cle.  Nothing  in  this  subdivision  shall restrict or limit any person
   38  licensed under [article one hundred fifty-nine  of  the  education  law]
   39  subarticle twenty-three of article forty of this chapter from performing
   40  any  activity  authorized thereunder; provided, however, that every such
   41  person shall be registered as a hearing aid dispenser  pursuant  to  the
   42  requirements of this article in order to dispense hearing aids.
   43    8. "Hearing aid dispenser" means any person twenty-one years of age or
   44  older  or  an audiologist licensed under [article one hundred fifty-nine
   45  of the education law] subarticle twenty-three of article forty  of  this
   46  chapter  who  is engaged in the dispensing of hearing aids who is regis-
   47  tered and dispensing hearing aids in accordance with this article.
   48    § 49. The opening paragraph and paragraph  (c)  of  subdivision  4  of
   49  section  790  of  the  general  business  law,  the opening paragraph as
   50  amended and paragraph (c) as added by chapter 301 of the laws  of  2000,
   51  are amended to read as follows:
   52    Upon  application  to the secretary, a temporary certificate of regis-
   53  tration authorized under section seven hundred ninety-five of this arti-
   54  cle shall be issued to: (i) individuals who prove to the satisfaction of
   55  the secretary that he or she will be supervised and trained  by  one  or
   56  more  registered hearing aid dispensers for a period of twelve months or
       S. 1407                            340                           A. 2107
 
    1  (ii) individuals who are candidates for  licensure  under  [article  one
    2  hundred  fifty-nine  of  the  education  law] subarticle twenty-three of
    3  article forty of this chapter, have satisfied the  educational  require-
    4  ment in subdivision two of section [eighty-two hundred six of the educa-
    5  tion law] twenty-one hundred fifty-six of this chapter, and are actively
    6  engaged in completing the experience requirement in subdivision three of
    7  section [eighty-two hundred six of the education law] twenty-one hundred
    8  fifty-six  of  this chapter. A temporary certificate of registration may
    9  be renewed only once.
   10    (c) A person holding a temporary certificate of registration who is  a
   11  candidate  for  licensure  under  [article one hundred fifty-nine of the
   12  education law] subarticle twenty-three of article forty of this  chapter
   13  shall  be exempt from the requirement to complete the course of instruc-
   14  tion prescribed by section seven hundred ninety-six of this article.
   15    § 50. Subdivisions 1 and 2 of section 794 of the general business law,
   16  as amended by chapter 301 of the laws of 2000, are amended  to  read  as
   17  follows:
   18    1.  Prior  to the expiration of a certificate of registration and as a
   19  condition of renewal, each hearing aid dispenser registered pursuant  to
   20  subdivision  one  of  section seven hundred ninety of this article shall
   21  submit documentation showing successful completion of twenty  continuing
   22  education  credits through a course or courses approved by the secretary
   23  in consultation with the advisory board, or, in relation to audiologists
   24  licensed pursuant to [article one hundred fifty-nine  of  the  education
   25  law]  subarticle  twenty-three  of  article  forty  of this chapter, the
   26  office of the professions  in  the  education  department.  Such  formal
   27  courses  of  learning  shall  include, but not be limited to, collegiate
   28  level of credit in non-credit courses, professional development programs
   29  and technical sessions offered by national, state and local professional
   30  associations and other organizations acceptable to the secretary and any
   31  other organized educational and technical  programs  acceptable  to  the
   32  secretary. The secretary may, in his or her discretion, and as needed to
   33  contribute  to  the  health  and  welfare  of  the  public,  require the
   34  completion of continuing  education  courses  in  specific  subjects  to
   35  fulfill  this  mandatory continuing education requirement. Courses shall
   36  be taken from a sponsor approved by  the  secretary  pursuant  to  regu-
   37  lations promulgated pursuant to this section.
   38    2.  A hearing aid dispenser registered under paragraph (b) of subdivi-
   39  sion one of section seven hundred ninety of this article may satisfy the
   40  requirements of subdivision one of this section by demonstrating to  the
   41  secretary compliance with such continuing competency requirements as are
   42  prescribed  by  [article  one  hundred  fifty-nine of the education law]
   43  subarticle twenty-three of article  forty  of  this  chapter,  provided,
   44  however,  that,  such  persons  shall  submit  documentation showing the
   45  successful completion of four continuing education credits  relating  to
   46  the dispensing of hearing aids.
   47    § 51. Paragraph (a) of subdivision 10 and paragraph (c) of subdivision
   48  15 of section 798 of the general business law, paragraph (a) of subdivi-
   49  sion  10 as amended by chapter 301 of the laws of 2000, paragraph (c) of
   50  subdivision 15 as added by chapter 599 of the laws of 1998, are  amended
   51  to read as follows:
   52    (a) A hearing aid dispenser, not otherwise licensed pursuant to [arti-
   53  cle one hundred fifty-nine of the education law] subarticle twenty-three
   54  of  article forty of this chapter, shall provide any prospective hearing
   55  aid users with a copy of their audiogram which  shall  include  puretone
   56  (air  and  bone  conduction)  and  speech  audiometry test results, upon
       S. 1407                            341                           A. 2107
 
    1  completion of such audiometric tests. Such audiogram shall  clearly  and
    2  conspicuously  contain  the  following  statement:  "This information is
    3  intended for the sole purpose of fitting or selecting a hearing aid  and
    4  is not a medical examination or audiological evaluation".
    5    (c)  except  for those hearing aid dispensers licensed as audiologists
    6  under [article one hundred fifty-nine of the education  law]  subarticle
    7  twenty-three  of article forty of this chapter, no hearing aid dispenser
    8  shall, through advertisement, indicate or  imply  that  he  or  she  may
    9  perform  a  hearing test, examination, evaluation or consultation unless
   10  he or she includes the statement, "unless administered by an audiologist
   11  or physician, this test is for the purpose of amplification only. It  is
   12  not a medical test."
   13    §  52.  Paragraph  (c)  of subdivision 4 of section 130 of the general
   14  municipal law, as added by chapter 1208 of the laws of 1971, is  amended
   15  to read as follows:
   16    (c)  Teaching hospital shall, for the purposes of this chapter, mean a
   17  hospital having a contractual agreement with a medical school,  as  such
   18  medical  school  is  defined  [in  section sixty-five hundred one of the
   19  education law] for the purposes of section one  thousand  eight  of  the
   20  general business law, for the training of medical students.
   21    §  53.  Item (i) of subparagraph (B) of paragraph 17 of subsection (i)
   22  of section 3216 of the insurance law, as added by  chapter  728  of  the
   23  laws of 1993, is amended to read as follows:
   24    (i)  an  initial  hospital check-up and well-child visits scheduled in
   25  accordance with the prevailing clinical standards of a national  associ-
   26  ation  of  pediatric physicians designated by the commissioner of health
   27  (except for any standard that would limit  the  specialty  or  forum  of
   28  licensure  of  the  practitioner  providing  the  service other than the
   29  limits under state law). Coverage for such services  rendered  shall  be
   30  provided  only to the extent that such services are provided by or under
   31  the supervision of a physician, or  other  professional  licensed  under
   32  [article  one hundred thirty-nine of the education law] subarticle eight
   33  of article forty of the general business law  whose  scope  of  practice
   34  pursuant  to  such  law  includes the authority to provide the specified
   35  services. Coverage shall be provided for such  services  rendered  in  a
   36  hospital,  as  defined in section twenty-eight hundred one of the public
   37  health law, or in  an  office  of  a  physician  or  other  professional
   38  licensed  under  [article  one hundred thirty-nine of the education law]
   39  subarticle eight of article forty of  the  general  business  law  whose
   40  scope of practice pursuant to such law includes the authority to provide
   41  the specified services;
   42    §  54.  Subparagraphs (A) and (C) of paragraph 21 of subsection (i) of
   43  section 3216 of the insurance law, as added by chapter 426 of  the  laws
   44  of 1997, are amended to read as follows:
   45    (A)    Every  policy  which  is a "managed care product" as defined in
   46  subparagraph (D) of this paragraph that provides coverage for  physician
   47  services  in  a physician's office, and every policy which is a "managed
   48  care product" that provides major medical or similar  comprehensive-type
   49  coverage,  shall  include  coverage for chiropractic care, as defined in
   50  section [six thousand five hundred fifty-one of the education  law]  one
   51  thousand  one hundred fifty-one of the general business law, provided by
   52  a doctor of chiropractic licensed pursuant to [article one hundred thir-
   53  ty-two of the education law] subarticle three of article  forty  of  the
   54  general  business law, in connection with the detection or correction by
   55  manual or mechanical means of structural imbalance, distortion or sublu-
   56  xation in the human body for the purpose of removing nerve interference,
       S. 1407                            342                           A. 2107
 
    1  and the effects thereof, where such interference is  the  result  of  or
    2  related  to  distortion, misalignment or subluxation of or in the verte-
    3  bral column.  However, chiropractic care and services may be subject  to
    4  reasonable  deductible,  co-payment and co-insurance amounts, reasonable
    5  fee or benefit limits, and reasonable utilization review, provided  that
    6  any  such amounts, limits and review:  (a)  shall not function to direct
    7  treatment in a manner discriminative against chiropractic care, and  (b)
    8  individually  and  collectively  shall be no more restrictive than those
    9  applicable under the same policy to care or services provided  by  other
   10  health  professionals  in the diagnosis, treatment and management of the
   11  same or similar conditions, injuries, complaints, disorders or ailments,
   12  even if differing nomenclature is used to describe the condition,  inju-
   13  ry,  complaint,  disorder  or ailment. Nothing herein contained shall be
   14  construed as impeding or preventing either the provision or coverage  of
   15  chiropractic care and services by duly licensed doctors of chiropractic,
   16  within the lawful scope of chiropractic practice, in hospital facilities
   17  on a staff or employee basis.
   18    (C)  Every  policy which includes coverage for physician services in a
   19  physician's office, and every policy which  provides  major  medical  or
   20  similar comprehensive-type coverage, other than a "managed care product"
   21  as defined in subparagraph (D) of this paragraph, shall provide coverage
   22  for  chiropractic care, as defined in section [six thousand five hundred
   23  fifty-one of the education law] one thousand one  hundred  fifty-one  of
   24  the  general business law, provided by a doctor of chiropractic licensed
   25  pursuant to [article one hundred thirty-two of the education law] subar-
   26  ticle three of article forty of the general business law, in  connection
   27  with the detection or correction by manual or mechanical means of struc-
   28  tural  imbalance,  distortion  or  subluxation in the human body for the
   29  purpose of removing nerve interference, and the effects  thereof,  where
   30  such  interference  is the result of or related to distortion, misalign-
   31  ment or subluxation of or in the vertebral column.  However,  chiroprac-
   32  tic  care  and services may be subject to reasonable deductible, co-pay-
   33  ment and co-insurance amounts, reasonable fee  or  benefit  limits,  and
   34  reasonable  utilization  review,  provided that any such amounts, limits
   35  and review: (a) shall not function  to  direct  treatment  in  a  manner
   36  discriminative  against  chiropractic  care,  and  (b)  individually and
   37  collectively shall be no more restrictive than  those  applicable  under
   38  the  same  policy  to  care or services provided by other health profes-
   39  sionals in the diagnosis, treatment and management of the same or  simi-
   40  lar  conditions,  injuries,  complaints,  disorders or ailments, even if
   41  differing nomenclature  is  used  to  describe  the  condition,  injury,
   42  complaint,  disorder  or  ailment.  Nothing  herein  contained  shall be
   43  construed as impeding or preventing either the provision or coverage  of
   44  chiropractic care and services by duly licensed doctors of chiropractic,
   45  within the lawful scope of chiropractic practice, in hospital facilities
   46  on a staff or employee basis.
   47    § 55. Item (i) of subparagraph (A) of paragraph 5 of subsection (k) of
   48  section 3221 of the insurance law, as amended by chapter 495 of the laws
   49  of 1998, is amended to read as follows:
   50    (i)  Every group or blanket policy delivered or issued for delivery in
   51  this state which provides hospital, surgical or medical  coverage  shall
   52  include  coverage  for  maternity  care, including hospital, surgical or
   53  medical care to the same extent that coverage is provided for illness or
   54  disease under the policy.  Such  maternity  care  coverage,  other  than
   55  coverage  for  perinatal complications, shall include inpatient hospital
   56  coverage for mother and newborn for at  least  forty-eight  hours  after
       S. 1407                            343                           A. 2107
 
    1  childbirth  for  any delivery other than a caesarean section, and for at
    2  least ninety-six hours after a  caesarean  section.  Such  coverage  for
    3  maternity care shall include the services of a midwife licensed pursuant
    4  to  [article  one hundred forty of the education law] subarticle nine of
    5  article forty of the general business law, practicing consistent with  a
    6  written  agreement  pursuant to section [sixty-nine hundred fifty-one of
    7  the education law] fourteen hundred fifty-one of  the  general  business
    8  law and affiliated or practicing in conjunction with a facility licensed
    9  pursuant to article twenty-eight of the public health law, but no insur-
   10  er  shall  be  required to pay for duplicative routine services actually
   11  provided by both a licensed midwife and a physician.
   12    § 56. Subparagraphs (A) and (C) of paragraph 11 of subsection  (k)  of
   13  section  3221  of the insurance law, as added by chapter 426 of the laws
   14  of 1997, is amended to read as follows:
   15    (A) Every policy which is a  "managed  care  product"  as  defined  in
   16  subparagraph  (D) of this paragraph that includes coverage for physician
   17  services in a physician's office, and every policy which is  a  "managed
   18  care  product" that provides major medical or similar comprehensive-type
   19  coverage shall include coverage for chiropractic  care,  as  defined  in
   20  section [six thousand five hundred fifty-one of the education law] elev-
   21  en  hundred  fifty-one of the general business law, provided by a doctor
   22  of chiropractic licensed pursuant to [article one hundred thirty-two  of
   23  the  education  law]  subarticle  three  of article forty of the general
   24  business law, in connection with the detection or correction  by  manual
   25  or  mechanical  means of structural imbalance, distortion or subluxation
   26  in the human body for the purpose of removing  nerve  interference,  and
   27  the effects thereof, where such interference is the result of or related
   28  to  distortion,  misalignment  or  subluxation  of  or  in the vertebral
   29  column. However, chiropractic  care  and  services  may  be  subject  to
   30  reasonable  deductible,  co-payment and co-insurance amounts, reasonable
   31  fee or benefit limits, and reasonable utilization review, provided  that
   32  any  such  amounts, limits and review:  (a) shall not function to direct
   33  treatment in a manner discriminative against chiropractic care, and  (b)
   34  individually  and  collectively  shall be no more restrictive than those
   35  applicable under the same policy to care or services provided  by  other
   36  health  professionals  in the diagnosis, treatment and management of the
   37  same or similar conditions, injuries, complaints, disorders or ailments,
   38  even if differing nomenclature is used to describe the condition,  inju-
   39  ry,  complaint,  disorder  or ailment. Nothing herein contained shall be
   40  construed as impeding or preventing either the provision or coverage  of
   41  chiropractic care and services by duly licensed doctors of chiropractic,
   42  within the lawful scope of chiropractic practice, in hospital facilities
   43  on a staff or employee basis.
   44    (C)  Every  policy which includes coverage for physician services in a
   45  physician's office, and every policy which  provides  major  medical  or
   46  similar comprehensive-type coverage, other than a "managed care product"
   47  as defined in subparagraph (D) of this paragraph, shall provide coverage
   48  for  chiropractic care, as defined in section [six thousand five hundred
   49  fifty-one of the education law] eleven hundred fifty-one of the  general
   50  business  law, provided by a doctor of chiropractic licensed pursuant to
   51  article [one hundred thirty-two of the education law]  subarticle  three
   52  of  article  forty  of  the general business law, in connection with the
   53  detection or correction by manual  or  mechanical  means  of  structural
   54  imbalance,  distortion  or subluxation in the human body for the purpose
   55  of removing nerve interference, and  the  effects  thereof,  where  such
   56  interference  is the result of or related to distortion, misalignment or
       S. 1407                            344                           A. 2107
 
    1  subluxation of or in the vertebral column.   However, chiropractic  care
    2  and  services  may  be  subject to reasonable deductible, co-payment and
    3  co-insurance amounts, reasonable fee or benefit limits,  and  reasonable
    4  utilization  review,  provided that any such amounts, limits and review:
    5  (a) shall not function to direct treatment in  a  manner  discriminative
    6  against  chiropractic  care, and (b) individually and collectively shall
    7  be no more restrictive [that] than those applicable under the same poli-
    8  cy to care or services provided by other  health  professionals  in  the
    9  diagnosis,  treatment  and management of the same or similar conditions,
   10  injuries, complaints, disorders or ailments, even if differing nomencla-
   11  ture is used to describe the condition, injury, complaint,  disorder  or
   12  ailment.  Nothing  herein  contained  shall  be construed as impeding or
   13  preventing either the provision or coverage  of  chiropractic  care  and
   14  services  by  duly  licensed  doctors of chiropractic, within the lawful
   15  scope of chiropractic practice, in hospital facilities  on  a  staff  or
   16  employee basis.
   17    §  57.  Subparagraph  (A)  of paragraph 4 of subsection (1) of section
   18  3221 of the insurance law, as amended by chapter 21 of the laws of 1990,
   19  is amended to read as follows:
   20    (A) Every insurer delivering a group policy or issuing a group  policy
   21  for  delivery, in this state, which provides reimbursement for psychiat-
   22  ric or psychological services or for  the  diagnosis  and  treatment  of
   23  mental,  nervous or emotional disorders and ailments, however defined in
   24  such policy, by physicians, psychiatrists or  psychologists,  must  make
   25  available and if requested by the policyholder provide the same coverage
   26  to  insureds for such services when performed by a social worker, within
   27  the lawful scope of his practice, who is certified pursuant to  [article
   28  one  hundred  fifty-four  of  the  education law] subarticle nineteen of
   29  article forty of the general business law and  in  addition  shall  have
   30  either:  three  years post degree experience in psychotherapy, which for
   31  the purposes of this paragraph shall mean the use of verbal  methods  in
   32  interpersonal  relationships  with  the  intent of assisting a person or
   33  persons to modify  attitudes  and  behavior  which  are  intellectually,
   34  socially  or emotionally maladaptive, under supervision, satisfactory to
   35  the state board for social work, in a facility, licensed or incorporated
   36  by an appropriate governmental department, providing services for  diag-
   37  nosis  or  treatment  of  mental,  nervous  or  emotional  disorders  or
   38  ailments; or three years post degree experience in  psychotherapy  under
   39  the  supervision,  satisfactory to the state board for social work, of a
   40  psychiatrist, a certified and registered psychologist or a social worker
   41  qualified for reimbursement. Written notice of the availability of  such
   42  coverage  shall  be  delivered to the policyholder prior to inception of
   43  such group policy and annually thereafter, except that this notice shall
   44  not be required where a policy covers two hundred or more  employees  or
   45  where  the  benefit  structure  was the subject of collective bargaining
   46  affecting persons who are employed in more than one state.
   47    § 58. Subparagraph (A) of paragraph 4 of  subsection  (l)  of  section
   48  3221  of  the  insurance  law,  as amended by chapter 420 of the laws of
   49  2002, is amended to read as follows:
   50    (A) Every insurer delivering a group policy or issuing a group  policy
   51  for  delivery, in this state, which provides reimbursement for psychiat-
   52  ric or psychological services or for  the  diagnosis  and  treatment  of
   53  mental,  nervous or emotional disorders and ailments, however defined in
   54  such policy, by physicians, psychiatrists or  psychologists,  must  make
   55  available and if requested by the policyholder provide the same coverage
   56  to  insureds  for  such  services  when performed by a licensed clinical
       S. 1407                            345                           A. 2107
 
    1  social worker, within the lawful scope of his or her  practice,  who  is
    2  licensed  pursuant  to  [article one hundred fifty-four of the education
    3  law] subarticle nineteen of article forty of the  general  business  law
    4  and in addition shall have either: three years post degree experience in
    5  psychotherapy,  which  for the purposes of this paragraph shall mean the
    6  use of verbal methods in interpersonal relationships with the intent  of
    7  assisting a person or persons to modify attitudes and behavior which are
    8  intellectually,  socially or emotionally maladaptive, under supervision,
    9  satisfactory to the state board for social work, in a facility, licensed
   10  or incorporated by an  appropriate  governmental  department,  providing
   11  services  for  diagnosis  or  treatment  of mental, nervous or emotional
   12  disorders  or  ailments;  or  three  years  post  degree  experience  in
   13  psychotherapy under the supervision, satisfactory to the state board for
   14  social  work,  of a psychiatrist, a licensed and registered psychologist
   15  or a licensed clinical social worker qualified for reimbursement.  Writ-
   16  ten notice of the availability of such coverage shall  be  delivered  to
   17  the  policyholder  prior  to inception of such group policy and annually
   18  thereafter, except that this notice shall not be required where a policy
   19  covers two hundred or more employees or where the benefit structure  was
   20  the  subject of collective bargaining affecting persons who are employed
   21  in more than one state.
   22    § 59. Subparagraph (D) of paragraph 4 of  subsection  (l)  of  section
   23  3221  of the insurance law, as added by chapter 990 of the laws of 1984,
   24  is amended to read as follows:
   25    (D) In addition to the requirements of subparagraph (A) of this  para-
   26  graph,  every  insurer issuing a group policy for delivery in this state
   27  which policy provides  reimbursement  to  insureds  for  psychiatric  or
   28  psychological  services  or  for  the diagnosis and treatment of mental,
   29  nervous or emotional disorders and ailments,  however  defined  in  such
   30  policy,  by physicians, psychiatrists or psychologists, must provide the
   31  same coverage to insureds for such services when performed by  a  social
   32  worker, within the lawful scope of his or her practice, who is certified
   33  pursuant to [article one hundred fifty-four of the education law] subar-
   34  ticle nineteen of article forty of the general business law and in addi-
   35  tion  shall  have either (i) six or more years post degree experience in
   36  psychotherapy, which for the purposes of this  subparagraph  shall  mean
   37  the use of verbal methods in interpersonal relationships with the intent
   38  of  assisting a person or persons to modify attitudes and behavior which
   39  are intellectually, socially or emotionally  maladaptive,  under  super-
   40  vision,  satisfactory to the state board for social work, in a facility,
   41  licensed or incorporated  by  an  appropriate  governmental  department,
   42  providing  services  for  diagnosis  or  treatment of mental, nervous or
   43  emotional disorders or ailments, or (ii) six or more years  post  degree
   44  experience  in  psychotherapy under the supervision, satisfactory to the
   45  state board for social work, of a psychiatrist, a certified  and  regis-
   46  tered psychologist or a social worker qualified for reimbursement pursu-
   47  ant  to  subsection  (h)  of this section, or (iii) a combination of the
   48  experience specified in items (i) and (ii) totaling six years, satisfac-
   49  tory to the state board for social work. The state board for social work
   50  shall maintain a list of all  certified  social  workers  qualified  for
   51  reimbursement under this subparagraph.
   52    §  60.  Subparagraph  (D)  of paragraph 4 of subsection (l) of section
   53  3221 of the insurance law, as amended by chapter  420  of  the  laws  of
   54  2002, is amended to read as follows:
   55    (D)  In addition to the requirements of subparagraph (A) of this para-
   56  graph, every insurer issuing a group policy for delivery in  this  state
       S. 1407                            346                           A. 2107
 
    1  which  policy  provides  reimbursement  to  insureds  for psychiatric or
    2  psychological services or for the diagnosis  and  treatment  of  mental,
    3  nervous  or  emotional  disorders  and ailments, however defined in such
    4  policy,  by physicians, psychiatrists or psychologists, must provide the
    5  same coverage to insureds for such services when performed by a licensed
    6  clinical social worker, within the lawful scope of his or her  practice,
    7  who  is  licensed  pursuant  to  [article  one hundred fifty-four of the
    8  education law] subarticle nineteen of article forty of the general busi-
    9  ness law and in addition shall have either (i) six or  more  years  post
   10  degree  experience  in  psychotherapy,  which  for  the purposes of this
   11  subparagraph shall mean the  use  of  verbal  methods  in  interpersonal
   12  relationships with the intent of assisting a person or persons to modify
   13  attitudes and behavior which are intellectually, socially or emotionally
   14  maladaptive,  under  supervision,  satisfactory  to  the state board for
   15  social work, in a facility, licensed or incorporated by  an  appropriate
   16  governmental  department,  providing services for diagnosis or treatment
   17  of mental, nervous or emotional disorders or ailments, or  (ii)  six  or
   18  more  years  post  degree  experience  in psychotherapy under the super-
   19  vision, satisfactory to the state board for social work, of  a  psychia-
   20  trist,  a  licensed  and  registered psychologist or a licensed clinical
   21  social worker qualified for reimbursement pursuant to subsection (h)  of
   22  this  section,  or  (iii)  a  combination of the experience specified in
   23  items (i) and (ii) totaling six years, satisfactory to the  state  board
   24  for  social  work. The state board for social work shall maintain a list
   25  of all licensed clinical  social  workers  qualified  for  reimbursement
   26  under this subparagraph.
   27    § 61. Item (i) of subparagraph (B) of paragraph 8 of subsection (l) of
   28  section 3221 of the insurance law, as amended by chapter 728 of the laws
   29  of 1993, is amended to read as follows:
   30    (i)  an  initial  hospital check-up and well-child visits scheduled in
   31  accordance with the prevailing clinical standards of a national  associ-
   32  ation  of  pediatric physicians designated by the commissioner of health
   33  (except for any standard that would limit  the  specialty  or  forum  of
   34  licensure  of  the  practitioner  providing  the  service other than the
   35  limits under state law). Coverage for such services  rendered  shall  be
   36  provided  only to the extent that such services are provided by or under
   37  the supervision of a physician, or  other  professional  licensed  under
   38  [article  one hundred thirty-nine of the education law] subarticle eight
   39  of article forty of the general business law  whose  scope  of  practice
   40  pursuant  to  such  law  includes the authority to provide the specified
   41  services. Coverage shall be provided for such  services  rendered  in  a
   42  hospital,  as  defined in section twenty-eight hundred one of the public
   43  health law, or in  an  office  of  a  physician  or  other  professional
   44  licensed  under  [article  one hundred thirty-nine of the education law]
   45  subarticle eight of article forty of  the  general  business  law  whose
   46  scope of practice pursuant to such law includes the authority to provide
   47  the specified services;
   48    §  62. Subsection (i) of section 4303 of the insurance law, as amended
   49  by chapter 21 of the laws of 1990, is amended to read as follows:
   50    (i) A medical expense indemnity corporation or health  service  corpo-
   51  ration which provides coverage for physicians, psychiatrists or psychol-
   52  ogists  for  psychiatric  or psychological services or for the diagnosis
   53  and treatment of mental, nervous or emotional  disorders  and  ailments,
   54  however  defined  in such contract, must make available and if requested
   55  by all persons holding individual contracts in a  group  whose  premiums
   56  are paid by a remitting agent or by the contract holder in the case of a
       S. 1407                            347                           A. 2107
 
    1  group  contract  issued  pursuant to section four thousand three hundred
    2  five of this article, provide the same coverage for such  services  when
    3  performed  by  a social worker, within the lawful scope of his practice,
    4  who  is  certified  pursuant  to  [article one hundred fifty-four of the
    5  education law] subarticle nineteen of article forty of the general busi-
    6  ness law and in addition shall have either (1) three years  post  degree
    7  experience  in  psychotherapy, which for the purposes of this subsection
    8  means the use of verbal methods in interpersonal relationships with  the
    9  intent of assisting a person or persons to modify attitudes and behavior
   10  which  are  intellectually,  socially  or emotionally maladaptive, under
   11  supervision, satisfactory to the state  board  for  social  work,  in  a
   12  facility licensed or incorporated by an appropriate governmental depart-
   13  ment providing services for diagnosis or treatment of mental, nervous or
   14  emotional  disorders or ailments, or (2) three years post degree experi-
   15  ence in psychotherapy under the supervision, satisfactory to  the  state
   16  board  for  social  work,  of a psychiatrist, a certified and registered
   17  psychologist or a social worker qualified for reimbursement.  The  state
   18  board  for  social  work  shall  maintain a list of all certified social
   19  workers qualified for reimbursement under this subsection. Such coverage
   20  shall be made available at the inception of all new contracts and,  with
   21  respect  to  all  other  contracts,  at  any anniversary date subject to
   22  evidence of insurability. Written notice of  the  availability  of  such
   23  coverage  shall  be  delivered  to  the  group  remitting agent or group
   24  contract holder prior to inception of such contract and annually  there-
   25  after,  except  that  this  notice  shall not be required where a policy
   26  covers two hundred or more employees or where the benefit structure  was
   27  the  subject of collective bargaining affecting persons who are employed
   28  in more than one state.
   29    § 63. Subsection (i) of section 4303 of the insurance law, as  amended
   30  by chapter 420 of the laws of 2002, is amended to read as follows:
   31    (i)  A  medical expense indemnity corporation or health service corpo-
   32  ration which provides coverage for physicians, psychiatrists or psychol-
   33  ogists for psychiatric or psychological services or  for  the  diagnosis
   34  and  treatment  of  mental, nervous or emotional disorders and ailments,
   35  however defined in such contract, must make available and  if  requested
   36  by  all  persons  holding individual contracts in a group whose premiums
   37  are paid by a remitting agent or by the contract holder in the case of a
   38  group contract issued pursuant to section four  thousand  three  hundred
   39  five  of  this article, provide the same coverage for such services when
   40  performed by a licensed clinical social worker, within the lawful  scope
   41  of his or her practice, who is licensed pursuant to [article one hundred
   42  fifty-four of the education law] subarticle nineteen of article forty of
   43  the  general  business  law  and in addition shall have either (1) three
   44  years post degree experience in psychotherapy, which for the purposes of
   45  this subsection  means  the  use  of  verbal  methods  in  interpersonal
   46  relationships with the intent of assisting a person or persons to modify
   47  attitudes and behavior which are intellectually, socially or emotionally
   48  maladaptive,  under  supervision,  satisfactory  to  the state board for
   49  social work, in a facility licensed or incorporated  by  an  appropriate
   50  governmental department providing services for diagnosis or treatment of
   51  mental,  nervous  or emotional disorders or ailments, or (2) three years
   52  post degree experience in psychotherapy under the supervision, satisfac-
   53  tory to the state board for social work, of a psychiatrist,  a  licensed
   54  and  registered psychologist or a licensed clinical social worker quali-
   55  fied for reimbursement. The state board for social work shall maintain a
   56  list of all licensed clinical social workers qualified for reimbursement
       S. 1407                            348                           A. 2107
 
    1  under this subsection. Such coverage shall  be  made  available  at  the
    2  inception of all new contracts and, with respect to all other contracts,
    3  at  any  anniversary  date  subject to evidence of insurability. Written
    4  notice  of  the  availability of such coverage shall be delivered to the
    5  group remitting agent or group contract holder  prior  to  inception  of
    6  such contract and annually thereafter, except that this notice shall not
    7  be required where a policy covers two hundred or more employees or where
    8  the benefit structure was the subject of collective bargaining affecting
    9  persons who are employed in more than one state.
   10    §  64.  Paragraph 2 of subsection (j) of section 4303 of the insurance
   11  law, as amended by chapter 728 of the laws of 1993, is amended  to  read
   12  as follows:
   13    (2)  For  purposes  of  this  subsection,  preventive and primary care
   14  services shall mean the following services rendered to a dependent child
   15  of a subscriber from the date of birth through the attainment  of  nine-
   16  teen  years  of  age:  (i)  an  initial hospital check-up and well-child
   17  visits scheduled in accordance with the prevailing clinical standards of
   18  a national association of pediatric physicians designated by the commis-
   19  sioner of health (except for any standard that would limit the specialty
   20  or forum of licensure of the practitioner providing  the  service  other
   21  than  the  limits  under state law). Coverage for such services rendered
   22  shall be provided only to the extent that such services are provided  by
   23  or  under the supervision of a physician, or other professional licensed
   24  under [article one hundred thirty-nine of the education law]  subarticle
   25  eight  of article forty of the general business law whose scope of prac-
   26  tice pursuant to such law includes the authority to provide  the  speci-
   27  fied  services. Coverage shall be provided for such services rendered in
   28  a hospital, as defined in section twenty-eight hundred one of the public
   29  health law, or in  an  office  of  a  physician  or  other  professional
   30  licensed  under  [article  one hundred thirty-nine of the education law]
   31  subarticle eight of article forty of  the  general  business  law  whose
   32  scope of practice pursuant to such law includes the authority to provide
   33  the  specified services, (ii) at each visit, services in accordance with
   34  the  prevailing  clinical  standards  of  such  designated  association,
   35  including  a  medical history, a complete physical examination, develop-
   36  mental assessment, anticipatory guidance, appropriate immunizations  and
   37  laboratory  tests  which  tests are ordered at the time of the visit and
   38  performed in the practitioner's office, as authorized by law,  or  in  a
   39  clinical  laboratory, and (iii) necessary immunizations as determined by
   40  the superintendent in  consultation  with  the  commissioner  of  health
   41  consisting  of  at least adequate dosages of vaccine against diphtheria,
   42  pertussis, tetanus, polio, measles, rubella, mumps, haemophilus influen-
   43  zae type b and hepatitis b which meet  the  standards  approved  by  the
   44  United  States  public health service for such biological products. Such
   45  coverage shall not be subject to annual deductibles and/or  coinsurance.
   46  Such coverage shall not restrict or eliminate existing coverage provided
   47  by the contract.
   48    § 65. Subsection (n) of section 4303 of the insurance law, as added by
   49  chapter 990 of the laws of 1984, is amended to read as follows:
   50    (n) In addition to the requirements of subsection (i) of this section,
   51  every  health service or medical expense indemnity corporation issuing a
   52  group contract pursuant to this section or a group  remittance  contract
   53  for  delivery  in  this  state  which contract provides reimbursement to
   54  subscribers or physicians, psychiatrists or psychologists for  psychiat-
   55  ric  or  psychological  services  or  for the diagnosis and treatment of
   56  mental, nervous or emotional disorders and ailments, however defined  in
       S. 1407                            349                           A. 2107
 
    1  such  contract,  must provide the same coverage to persons covered under
    2  the group contract for such services when performed by a social  worker,
    3  within  the lawful scope of his or her practice, who is certified pursu-
    4  ant  to [article one hundred fifty-four of the education law] subarticle
    5  nineteen of article forty of the general business law  and  in  addition
    6  shall  have  either  (i)  six  or  more  years post degree experience in
    7  psychotherapy, which for the purposes of this subsection shall mean  the
    8  use  of verbal methods in interpersonal relationships with the intent of
    9  assisting a person or persons to modify attitudes and behavior which are
   10  intellectually, socially or emotionally maladaptive, under  supervision,
   11  satisfactory to the state board for social work, in a facility, licensed
   12  or  incorporated  by  an  appropriate governmental department, providing
   13  services for diagnosis or treatment  of  mental,  nervous  or  emotional
   14  disorders  or ailments, or (ii) six or more years post degree experience
   15  in psychotherapy under the supervision, satisfactory to the state  board
   16  for  social work, of a psychiatrist, a certified and registered psychol-
   17  ogist or  a  social  worker  qualified  for  reimbursement  pursuant  to
   18  subsection (i) of this section, or (iii) a combination of the experience
   19  specified in paragraphs (i) and (ii) totaling six years, satisfactory to
   20  the  state  board for social work. The state board for social work shall
   21  maintain a list of all certified social workers qualified for reimburse-
   22  ment under this subsection.
   23    § 66. Subsection (n) of section 4303 of the insurance law, as  amended
   24  by chapter 420 of the laws of 2002, is amended to read as follows:
   25    (n) In addition to the requirements of subsection (i) of this section,
   26  every  health service or medical expense indemnity corporation issuing a
   27  group contract pursuant to this section or a group  remittance  contract
   28  for  delivery  in  this  state  which contract provides reimbursement to
   29  subscribers or physicians, psychiatrists or psychologists for  psychiat-
   30  ric  or  psychological  services  or  for the diagnosis and treatment of
   31  mental, nervous or emotional disorders and ailments, however defined  in
   32  such  contract,  must provide the same coverage to persons covered under
   33  the group contract for such services when performed by a licensed  clin-
   34  ical  social worker, within the lawful scope of his or her practice, who
   35  is licensed pursuant to [article one hundred fifty-four of the education
   36  law] subarticle nineteen of article forty of the  general  business  law
   37  and  in  addition  shall  have  either (i) six or more years post degree
   38  experience in psychotherapy, which for the purposes of  this  subsection
   39  shall mean the use of verbal methods in interpersonal relationships with
   40  the  intent  of  assisting  a  person or persons to modify attitudes and
   41  behavior which are intellectually, socially or emotionally  maladaptive,
   42  under supervision, satisfactory to the state board for social work, in a
   43  facility,  licensed  or  incorporated  by  an  appropriate  governmental
   44  department, providing services for diagnosis  or  treatment  of  mental,
   45  nervous  or  emotional  disorders or ailments, or (ii) six or more years
   46  post degree experience in psychotherapy under the supervision, satisfac-
   47  tory to the state board for social work, of a psychiatrist,  a  licensed
   48  and  registered psychologist or a licensed clinical social worker quali-
   49  fied for reimbursement pursuant to subsection (i) of  this  section,  or
   50  (iii)  a  combination  of the experience specified in paragraphs (i) and
   51  (ii) totaling six years, satisfactory to  the  state  board  for  social
   52  work.  The  state  board  for  social  work shall maintain a list of all
   53  licensed clinical social workers qualified for reimbursement under  this
   54  subsection.
       S. 1407                            350                           A. 2107
 
    1    §  67.  Paragraphs  1  and  3 of subsection (y) of section 4303 of the
    2  insurance law, as added by chapter 426 of the laws of 1997, are  amended
    3  to read as follows:
    4    (1) Every contract issued by a health service corporation or a medical
    5  expense  indemnity  corporation  which  is  a  "managed care product" as
    6  defined in paragraph four of this subsection that includes coverage  for
    7  physician  services  in  a  physician's  office, and every "managed care
    8  product" that  provides  major  medical  or  similar  comprehensive-type
    9  coverage,  shall  include  coverage for chiropractic care, as defined in
   10  section [six thousand five hundred fifty-one of the education  law]  one
   11  thousand  one hundred fifty-one of the general business law, provided by
   12  a doctor of chiropractic licensed pursuant to [article one hundred thir-
   13  ty-two of the education law] subarticle three of article  forty  of  the
   14  general  business law, in connection with the detection or correction by
   15  manual or mechanical means of structural imbalance, distortion or sublu-
   16  xation in the human body for the purpose of removing nerve interference,
   17  and the effects thereof, where such interference is  the  result  of  or
   18  related  to  distortion, misalignment or subluxation of or in the verte-
   19  bral column. However, chiropractic care and services may be  subject  to
   20  reasonable  deductible,  co-payment and co-insurance amounts, reasonable
   21  fee or benefit limits, and reasonable utilization review, provided  that
   22  any  such  amounts, limits and review:  (a) shall not function to direct
   23  treatment in a manner discriminative against chiropractic care, and  (b)
   24  individually  and  collectively  shall be no more restrictive than those
   25  applicable under the same policy to care or services provided  by  other
   26  health  professionals  in the diagnosis, treatment and management of the
   27  same or similar conditions, injuries, complaints, disorders or ailments,
   28  even if differing nomenclature is used to describe the condition,  inju-
   29  ry,  complaint,  disorder  or ailment. Nothing herein contained shall be
   30  construed as impeding or preventing either the provision or coverage  of
   31  chiropractic care and services by duly licensed doctors of chiropractic,
   32  within the lawful scope of chiropractic practice, in hospital facilities
   33  on a staff or employee basis.
   34    (3) Every contract issued by a health service corporation or a medical
   35  expense  indemnity  corporation  which  includes  coverage for physician
   36  services in a physician's office,  and  every  contract  which  provides
   37  major  medical  or  similar  comprehensive-type  coverage,  other than a
   38  "managed care product" as defined in paragraph four of this  subsection,
   39  shall provide coverage for chiropractic care, as defined in section [six
   40  thousand  five  hundred fifty-one of the education law] one thousand one
   41  hundred fifty-one of the general business law, provided by a  doctor  of
   42  chiropractic licensed pursuant to [article one hundred thirty-two of the
   43  education law] subarticle three of article forty of the general business
   44  law, in connection with the detection or correction by manual or mechan-
   45  ical  means  of  structural  imbalance, distortion or subluxation in the
   46  human body for the purpose  of  removing  nerve  interference,  and  the
   47  effects  thereof, where such interference is the result of or related to
   48  distortion, misalignment or subluxation of or in the  vertebral  column.
   49  However,  chiropractic  care  and  services may be subject to reasonable
   50  deductible, co-payment and co-insurance amounts, reasonable fee or bene-
   51  fit limits, and reasonable utilization review, provided  that  any  such
   52  amounts,  limits and review:  (a) shall not function to direct treatment
   53  in a manner discriminative against chiropractic care, and  (b)  individ-
   54  ually  and collectively shall be no more restrictive than those applica-
   55  ble under the same contract to care or services provided by other health
   56  professionals in the diagnosis, treatment and management of the same  or
       S. 1407                            351                           A. 2107
 
    1  similar  conditions, injuries, complaints, disorders or ailments even if
    2  differing nomenclature  is  used  to  describe  the  condition,  injury,
    3  complaint,  disorder  or  ailment.  Nothing  herein  contained  shall be
    4  construed  as impeding or preventing either the provision or coverage of
    5  chiropractic care and services by duly licensed doctors of chiropractic,
    6  within the lawful scope of chiropractic practice, in hospital facilities
    7  on a staff or employee basis.
    8    § 68. The closing paragraph of subdivision 1 of  section  240  of  the
    9  labor  law, as amended by chapter 241 of the laws of 1981, is amended to
   10  read as follows:
   11    No liability pursuant to this subdivision for the failure  to  provide
   12  protection  to  a  person  so  employed shall be imposed on professional
   13  engineers as provided for in [article  one  hundred  forty-five  of  the
   14  education]  subarticle thirteen of article forty of the general business
   15  law, architects as provided for in  [article  one  hundred  forty-seven]
   16  subarticle fourteen of article forty of such law or landscape architects
   17  as  provided for in [article one hundred forty-eight] subarticle fifteen
   18  of article forty of such law who do not direct or control the  work  for
   19  activities  other  than  planning  and  design. This exception shall not
   20  diminish or extinguish any liability of professional engineers or archi-
   21  tects or landscape architects arising under the common law or any  other
   22  provision of law.
   23    § 69. Subdivision 9 of section 241 of the labor law, as added by chap-
   24  ter 241 of the laws of 1981, is amended to read as follows:
   25    9.  No  liability for the non-compliance with any of the provisions of
   26  this section shall be imposed on professional engineers as provided  for
   27  in [article one hundred forty-five of the education] subarticle thirteen
   28  of article forty of the general business law, architects as provided for
   29  in  [article  one  hundred  forty-seven]  subarticle fourteen of article
   30  forty of such law or landscape architects as provided  for  in  [article
   31  one hundred forty-eight] subarticle fifteen of article forty of such law
   32  who do not direct or control the work for activities other than planning
   33  and  design. This exception shall not diminish or extinguish any liabil-
   34  ity of professional engineers, architects or landscape architects  aris-
   35  ing under the common law or any other provision of law.
   36    § 70. Subdivision (a) of section 1203 of the limited liability company
   37  law,  as  amended by chapter 643 of the laws of 1995, is amended to read
   38  as follows:
   39    (a) Notwithstanding the [education] general business law or any  other
   40  provision  of  law, one or more professionals each of whom is authorized
   41  by law to render a professional service within the state, or one or more
   42  professionals, at least one of whom is authorized by  law  to  render  a
   43  professional  service within the state, may form, or cause to be formed,
   44  a professional service limited liability company  for  pecuniary  profit
   45  under this article for the purpose of rendering the professional service
   46  or  services  as  such  professionals  are  authorized to practice. With
   47  respect to a professional service limited liability  company  formed  to
   48  provide medical services as such services are defined in [article 131 of
   49  the  education] subarticle 2 of article 40 of the general municipal law,
   50  each member of such limited liability company must be licensed  pursuant
   51  to  [article  131  of  the  education] subarticle 2 of article 40 of the
   52  general municipal law to practice medicine in this state.  With  respect
   53  to  a  professional  service limited liability company formed to provide
   54  dental services as such services are defined  in  [article  133  of  the
   55  education]  subarticle 4 of article 40 of the general business law, each
   56  member of such limited liability company must be  licensed  pursuant  to
       S. 1407                            352                           A. 2107
 
    1  [article 133 of the education] subarticle 4 of article 40 of the general
    2  business  law  to  practice  dentistry  in this state. With respect to a
    3  professional service limited liability company formed to provide veteri-
    4  nary services as such services are defined in [article 135 of the educa-
    5  tion]  subarticle  5  of  article  40  of the general business law, each
    6  member of such limited liability company shall be licensed  pursuant  to
    7  [article 135 of the education] subarticle 5 of article 40 of the general
    8  business  law to practice veterinary medicine. With respect to a profes-
    9  sional service limited liability company formed to provide  professional
   10  engineering,  land  surveying,  architectural and/or landscape architec-
   11  tural services as such services are defined in [article 145, article 147
   12  and article 148 of the education] subarticles 13, 14 and 15  of  article
   13  40  of  the  general business law, each member of such limited liability
   14  company must be licensed pursuant to [article 145,  article  147  and/or
   15  article 148 of the education] subarticles 13, 14 and 15 of article 40 of
   16  the  general business law to practice one or more of such professions in
   17  this state.  In addition to engaging in such profession or  professions,
   18  a professional service limited liability company may engage in any other
   19  business  or  activities  as to which a limited liability company may be
   20  formed under section two hundred one of  this  chapter.  Notwithstanding
   21  any  other  provision  of  this  section, a professional service limited
   22  liability company (i) authorized to practice  law  may  only  engage  in
   23  another profession or business or activities or (ii) which is engaged in
   24  a  profession  or  other  business or activities other than law may only
   25  engage in the practice of law, to the extent not prohibited by any other
   26  law of this state or any rule adopted by the appropriate appellate divi-
   27  sion of the supreme court or the court of appeals.
   28    § 71. Subdivision (a) of section 1203 of the limited liability company
   29  law, as amended by chapter 420 of the laws of 2002, is amended  to  read
   30  as follows:
   31    (a)  notwithstanding the [education] general business law or any other
   32  provision of law, one or more professionals each of whom  is  authorized
   33  by law to render a professional service within the state, or one or more
   34  professionals,  at  least  one  of whom is authorized by law to render a
   35  professional service within the state, may form, or cause to be  formed,
   36  a  professional  service  limited liability company for pecuniary profit
   37  under this article for the purpose of rendering the professional service
   38  or services as such  professionals  are  authorized  to  practice.  With
   39  respect  to  a  professional service limited liability company formed to
   40  provide medical services as such services are defined in [article 131 of
   41  the education] subarticle 2 of article 40 of the general  business  law,
   42  each  member of such limited liability company must be licensed pursuant
   43  to [article 131 of the education] subarticle 2  of  article  40  of  the
   44  general business law to practice medicine in this state. With respect to
   45  a  professional  service  limited  liability  company  formed to provide
   46  dental services as such services are defined  in  [article  133  of  the
   47  education]  subarticle 4 of article 40 of the general business law, each
   48  member of such limited liability company must be  licensed  pursuant  to
   49  [article 133 of the education] subarticle 4 of article 40 of the general
   50  business  law  to  practice  dentistry  in this state. With respect to a
   51  professional service limited liability company formed to provide veteri-
   52  nary services as such services are defined in [article 135 of the educa-
   53  tion] subarticle 5 of article 40  of  the  general  business  law,  each
   54  member  of  such  limited liability company must be licensed pursuant to
   55  [article 135 of the education] subarticle 5 of article 40 of the general
   56  business law to practice veterinary medicine in this state. With respect
       S. 1407                            353                           A. 2107
 
    1  to a professional service limited liability company  formed  to  provide
    2  professional engineering, land surveying, architectural and/or landscape
    3  architectural  services  as  such  services are defined in [article 145,
    4  article  147 and article 148 of the education] subarticles 13, 14 and 15
    5  of article 40 of the general business law, each member of  such  limited
    6  liability company must be licensed pursuant to [article 145, article 147
    7  and/or  article 148 of the education] subarticles 13, 14 and 15 of arti-
    8  cle 40 of the general business law to  practice  one  or  more  of  such
    9  professions in this state. With respect to a professional service limit-
   10  ed  liability  company  formed  to provide licensed clinical social work
   11  services as such services are defined in [article 154 of the  education]
   12  subarticle  19 of article 40 of the general business law, each member of
   13  such limited liability company shall be licensed  pursuant  to  [article
   14  154  of  the education] subarticle 19 of article 40 of the general busi-
   15  ness law to practice licensed clinical social work  in  this  state.  In
   16  addition  to  engaging in such profession or professions, a professional
   17  service limited liability company may engage in any  other  business  or
   18  activities  as  to which a limited liability company may be formed under
   19  section two hundred one  of  this  chapter.  Notwithstanding  any  other
   20  provision  of  this  section,  a  professional service limited liability
   21  company (i) authorized to  practice  law  may  only  engage  in  another
   22  profession  or  business  or  activities  or  (ii) which is engaged in a
   23  profession or other business or  activities  other  than  law  may  only
   24  engage in the practice of law, to the extent not prohibited by any other
   25  law of this state or any rule adopted by the appropriate appellate divi-
   26  sion of the supreme court or the court of appeals.
   27    § 72.  Subdivision (a) of section 1203 of the limited liability compa-
   28  ny  law,  as  amended  by chapter 676 of the laws of 2002, is amended to
   29  read as follows:
   30    (a) Notwithstanding the [education] general business law or any  other
   31  provision  of  law, one or more professionals each of whom is authorized
   32  by law to render a professional service within the state, or one or more
   33  professionals, at least one of whom is authorized by  law  to  render  a
   34  professional  service within the state, may form, or cause to be formed,
   35  a professional service limited liability company  for  pecuniary  profit
   36  under this article for the purpose of rendering the professional service
   37  or  services  as  such  professionals  are  authorized to practice. With
   38  respect to a professional service limited liability  company  formed  to
   39  provide medical services as such services are defined in [article 131 of
   40  the  education]  subarticle 2 of article 40 of the general business law,
   41  each member of such limited liability company must be licensed  pursuant
   42  to  [article  131  of  the  education] subarticle 2 of article 40 of the
   43  general business law to practice medicine in this state. With respect to
   44  a professional service  limited  liability  company  formed  to  provide
   45  dental  services  as  such  services  are defined in [article 133 of the
   46  education] subarticle 4 of article 40 of the general business law,  each
   47  member  of  such  limited liability company must be licensed pursuant to
   48  [article 133 of the education] subarticle 4 of article 40 of the general
   49  business law to practice dentistry in this state.   With  respect  to  a
   50  professional service limited liability company formed to provide veteri-
   51  nary services as such services are defined in [article 135 of the educa-
   52  tion]  subarticle  5  of  article  40  of the general business law, each
   53  member of such limited liability company shall be licensed  pursuant  to
   54  [article 135 of the education] subarticle 5 of article 40 of the general
   55  business law to practice veterinary medicine.  With respect to a profes-
   56  sional  service limited liability company formed to provide professional
       S. 1407                            354                           A. 2107
 
    1  engineering, land surveying, architectural  and/or  landscape  architec-
    2  tural services as such services are defined in [article 145, article 147
    3  and  article  148 of the education] subarticles 13, 14 and 15 of article
    4  40  of  the  general business law, each member of such limited liability
    5  company must be licensed pursuant to [article 145,  article  147  and/or
    6  article 148 of the education] subarticles 13, 14 and 15 of article 40 of
    7  the  general business law to practice one or more of such professions in
    8  this state.  With respect to a professional  service  limited  liability
    9  company  formed  to  provide  creative  arts  therapy  services  as such
   10  services are defined in [article 163 of the education] subarticle 27  of
   11  article  40  of  the  general  business law, each member of such limited
   12  liability company must be licensed  pursuant  to  [article  163  of  the
   13  education]  subarticle  27  of article 40 of the general business law to
   14  practice creative arts therapy in this state. With respect to a  profes-
   15  sional  service limited liability company formed to provide marriage and
   16  family therapy services as such services are defined in [article 163  of
   17  the  education] subarticle 27 of article 40 of the general business law,
   18  each member of such limited liability company must be licensed  pursuant
   19  to  [article  163  of  the education] subarticle 27 of article 40 of the
   20  general business law to practice marriage and  family  therapy  in  this
   21  state.  With respect to a professional service limited liability company
   22  formed to provide mental health counseling services as such services are
   23  defined in [article 163 of the education] subarticle 27 of article 40 of
   24  the  general business law, each member of such limited liability company
   25  must be licensed pursuant to [article 163 of the  education]  subarticle
   26  27  of  article 40 of the general business law to practice mental health
   27  counseling in this state. With respect to a professional service limited
   28  liability company formed to  provide  psychoanalysis  services  as  such
   29  services  are defined in [article 163 of the education] subarticle 27 of
   30  article 40 of the general business law,  each  member  of  such  limited
   31  liability  company  must  be  licensed  pursuant  to [article 163 of the
   32  education] subarticle 27 of article 40 of the general  business  law  to
   33  practice  psychoanalysis  in this state. In addition to engaging in such
   34  profession or professions,  a  professional  service  limited  liability
   35  company  may  engage  in  any other business or activities as to which a
   36  limited liability company may be formed under section two hundred one of
   37  this chapter. Notwithstanding any other provision  of  this  section,  a
   38  professional  service  limited liability company (i) authorized to prac-
   39  tice law may only engage in another profession or business or activities
   40  or (ii) which is engaged in a profession or other business or activities
   41  other than law may only engage in the practice of law, to the extent not
   42  prohibited by any other law of this state or any  rule  adopted  by  the
   43  appropriate  appellate  division  of  the  supreme court or the court of
   44  appeals.
   45    § 73. Subdivision (a) of section 1203 of the limited liability company
   46  law, as separately amended by chapters 420 and 676 of the laws of  2002,
   47  is amended to read as follows:
   48    (a)  notwithstanding the [education] general business law or any other
   49  provision of law, one or more professionals each of whom  is  authorized
   50  by law to render a professional service within the state, or one or more
   51  professionals,  at  least  one  of whom is authorized by law to render a
   52  professional service within the state, may form, or cause to be  formed,
   53  a  professional  service  limited liability company for pecuniary profit
   54  under this article for the purpose of rendering the professional service
   55  or services as such  professionals  are  authorized  to  practice.  With
   56  respect  to  a  professional service limited liability company formed to
       S. 1407                            355                           A. 2107
 
    1  provide medical services as such services are defined in [article 131 of
    2  the education] subarticle 2 of article 40 of the general  business  law,
    3  each  member of such limited liability company must be licensed pursuant
    4  to  [article  131  of  the  education] subarticle 2 of article 40 of the
    5  general business law to practice medicine in this state. With respect to
    6  a professional service  limited  liability  company  formed  to  provide
    7  dental  services  as  such  services  are defined in [article 133 of the
    8  education] subarticle 4 of article 40 of the general business law,  each
    9  member  of  such  limited liability company must be licensed pursuant to
   10  [article 133 of the education] subarticle 4 of article 40 of the general
   11  business law to practice dentistry in this  state.  With  respect  to  a
   12  professional service limited liability company formed to provide veteri-
   13  nary services as such services are defined in [article 135 of the educa-
   14  tion]  subarticle  5  of  article  40  of the general business law, each
   15  member of such limited liability company must be  licensed  pursuant  to
   16  [article 135 of the education] subarticle 5 of article 40 of the general
   17  business law to practice veterinary medicine in this state. With respect
   18  to  a  professional  service limited liability company formed to provide
   19  professional engineering, land surveying, architectural and/or landscape
   20  architectural services as such services are  defined  in  [article  145,
   21  article  147 and article 148 of the education] subarticles 13, 14 and 15
   22  of article 40 of the general business law, each member of  such  limited
   23  liability company must be licensed pursuant to [article 145, article 147
   24  and/or  article 148 of the education] subarticles 13, 14 and 15 of arti-
   25  cle 40 of the general business law to  practice  one  or  more  of  such
   26  professions in this state. With respect to a professional service limit-
   27  ed  liability  company  formed  to provide licensed clinical social work
   28  services as such services are defined in [article 154 of the  education]
   29  subarticle  19 of article 40 of the general business law, each member of
   30  such limited liability company shall be licensed  pursuant  to  [article
   31  154  of  the education] subarticle 19 of article 40 of the general busi-
   32  ness law to practice licensed clinical social work in this state.   With
   33  respect  to  a  professional service limited liability company formed to
   34  provide creative arts therapy services as such services are  defined  in
   35  [article 163 of the education] subarticle 27 of article 40 of the gener-
   36  al  business  law, each member of such limited liability company must be
   37  licensed pursuant to [article 163 of the  education]  subarticle  27  of
   38  article 40 of the general business law to practice creative arts therapy
   39  in  this state. With respect to a professional service limited liability
   40  company formed to provide marriage and family therapy services  as  such
   41  services  are defined in [article 163 of the education] subarticle 27 of
   42  article 40 of the general business law,  each  member  of  such  limited
   43  liability  company  must  be  licensed  pursuant  to [article 163 of the
   44  education] subarticle 27 of article 40 of the general  business  law  to
   45  practice  marriage  and family therapy in this state.  With respect to a
   46  professional service limited liability company formed to provide  mental
   47  health  counseling services as such services are defined in [article 163
   48  of the education] subarticle 27 of article 40 of  the  general  business
   49  law,  each  member  of  such  limited liability company must be licensed
   50  pursuant to [article 163 of the education] subarticle 27 of  article  40
   51  of the general business law to practice mental health counseling in this
   52  state.  With respect to a professional service limited liability company
   53  formed to provide psychoanalysis services as such services  are  defined
   54  in  [article  163  of  the education] subarticle 27 of article 40 of the
   55  general business law, each member of such limited liability company must
   56  be licensed pursuant to [article 163 of the education] subarticle 27  of
       S. 1407                            356                           A. 2107
 
    1  article  40  of  the  general business law to practice psychoanalysis in
    2  this state.  In addition to engaging in such profession or  professions,
    3  a professional service limited liability company may engage in any other
    4  business  or  activities  as to which a limited liability company may be
    5  formed under section two hundred one of  this  chapter.  Notwithstanding
    6  any  other  provision  of  this  section, a professional service limited
    7  liability company (i) authorized to practice  law  may  only  engage  in
    8  another profession or business or activities or (ii) which is engaged in
    9  a  profession  or  other  business or activities other than law may only
   10  engage in the practice of law, to the extent not prohibited by any other
   11  law of this state or any rule adopted by the appropriate appellate divi-
   12  sion of the supreme court or the court of appeals.
   13    § 74. Subdivision (b) of section 1207 of the limited liability company
   14  law, as amended by chapter 170 of the laws of 1996, is amended  to  read
   15  as follows:
   16    (b)  With  respect to a professional service limited liability company
   17  formed to provide medical services  as  such  services  are  defined  in
   18  [article 131 of the education] subarticle 2 of article 40 of the general
   19  business  law,  each  member  of  such limited liability company must be
   20  licensed pursuant to [article 131 of  the  education]  subarticle  2  of
   21  article  40  of  the  general  business law to practice medicine in this
   22  state. With respect to a professional service limited liability  company
   23  formed to provide dental services as such services are defined in [arti-
   24  cle  133  of  the  education]  subarticle 4 of article 40 of the general
   25  business law, each member of such  limited  liability  company  must  be
   26  licensed  pursuant  to  [article  133  of the education] subarticle 4 of
   27  article 40 of the general business law to  practice  dentistry  in  this
   28  state.  With respect to a professional service limited liability company
   29  formed to provide veterinary services as such services  are  defined  in
   30  [article 135 of the education] subarticle 5 of article 40 of the general
   31  business  law,  each  member  of  such limited liability company must be
   32  licensed pursuant to [article 135 of  the  education]  subarticle  5  of
   33  article  40  of the general business law to practice veterinary medicine
   34  in this state. With respect to a professional service limited  liability
   35  company  formed  to  provide  professional  engineering, land surveying,
   36  architectural and/or landscape architectural services as  such  services
   37  are  defined  in [article 145, article 147 and article 148 of the educa-
   38  tion] subarticles 13, 14 and 15 of article 40 of  the  general  business
   39  law,  each  member  of  such  limited liability company must be licensed
   40  pursuant to [article 145, article 147 and/or article 148 of  the  educa-
   41  tion]  subarticles  13,  14 and 15 of article 40 of the general business
   42  law to practice one or more of such professions in this state.
   43    § 75. Subdivision (b) of section 1207 of the limited liability company
   44  law, as amended by chapter 420 of the laws of 2002, is amended  to  read
   45  as follows:
   46    (b)  with  respect to a professional service limited liability company
   47  formed to provide medical services  as  such  services  are  defined  in
   48  [article 131 of the education] subarticle 2 of article 40 of the general
   49  business  law,  each  member  of  such limited liability company must be
   50  licensed pursuant to [article 131 of  the  education]  subarticle  2  of
   51  article  40  of  the  general  business law to practice medicine in this
   52  state. With respect to a professional service limited liability  company
   53  formed to provide dental services as such services are defined in [arti-
   54  cle  133  of  the  education]  subarticle 4 of article 40 of the general
   55  business law, each member of such  limited  liability  company  must  be
   56  licensed  pursuant  to  [article  133  of the education] subarticle 4 of
       S. 1407                            357                           A. 2107
 
    1  article 40 of the general business law to  practice  dentistry  in  this
    2  state.  With respect to a professional service limited liability company
    3  formed to provide veterinary services as such services  are  defined  in
    4  [article 135 of the education] subarticle 5 of article 40 of the general
    5  business  law,  each  member  of  such limited liability company must be
    6  licensed pursuant to [article 135 of  the  education]  subarticle  5  of
    7  article  40  of the general business law to practice veterinary medicine
    8  in this state. With respect to a professional service limited  liability
    9  company  formed  to  provide  professional  engineering, land surveying,
   10  architectural and/or landscape architectural services as  such  services
   11  are  defined  in [article 145, article 147 and article 148 of the educa-
   12  tion] subarticles 13, 14 and 15 of article 40 of  the  general  business
   13  law,  each  member  of  such  limited liability company must be licensed
   14  pursuant to [article 145, article 147 and/or article 148 of  the  educa-
   15  tion]  subarticles  13,  14 and 15 of article 40 of the general business
   16  law to practice one or more of such  professions  in  this  state.  With
   17  respect  to  a  professional service limited liability company formed to
   18  provide licensed clinical social work  services  as  such  services  are
   19  defined in [article 154 of the education] subarticle 19 of article 40 of
   20  the  general business law, each member of such limited liability company
   21  shall be licensed pursuant to [article 154 of the education]  subarticle
   22  19  of article 40 of the general business law to practice licensed clin-
   23  ical social work in this state.
   24    § 76. Subdivision (b) of section 1207 of the limited liability company
   25  law, as amended by chapter 676 of the laws of 2002, is amended  to  read
   26  as follows:
   27    (b)  With  respect to a professional service limited liability company
   28  formed to provide medical services  as  such  services  are  defined  in
   29  [article 131 of the education] subarticle 2 of article 40 of the general
   30  business  law,  each  member  of  such limited liability company must be
   31  licensed pursuant to [article 131 of  the  education]  subarticle  2  of
   32  article  40  of  the  general  business law to practice medicine in this
   33  state.  With respect to a professional service limited liability company
   34  formed to provide dental services as such services are defined in [arti-
   35  cle 133 of the education] subarticle 4 of  article  40  of  the  general
   36  business  law,  each  member  of  such limited liability company must be
   37  licensed pursuant to [article 133 of  the  education]  subarticle  4  of
   38  article  40  of  the  general business law to practice dentistry in this
   39  state.  With respect to a professional service limited liability company
   40  formed to provide veterinary services as such services  are  defined  in
   41  [article 135 of the education] subarticle 5 of article 40 of the general
   42  business  law,  each  member  of  such limited liability company must be
   43  licensed pursuant to [article 135 of  the  education]  subarticle  5  of
   44  article  40  of the general business law to practice veterinary medicine
   45  in this state.  With respect to a professional service limited liability
   46  company formed to  provide  professional  engineering,  land  surveying,
   47  architectural  and/or  landscape architectural services as such services
   48  are defined in [article 145, article 147 and article 148 of  the  educa-
   49  tion]  subarticles  13,  14 and 15 of article 40 of the general business
   50  law, each member of such limited  liability  company  must  be  licensed
   51  pursuant  to  [article 145, article 147 and/or article 148 of the educa-
   52  tion] subarticles 13, 14 and 15 of article 40 of  the  general  business
   53  law  to  practice  one  or more of such professions in this state.  With
   54  respect to a professional service limited liability  company  formed  to
   55  provide  creative  arts therapy services as such services are defined in
   56  [article 163 of the education] subarticle 27 of article 40 of the gener-
       S. 1407                            358                           A. 2107
 
    1  al business law, each member of such limited liability company  must  be
    2  licensed  pursuant  to  [article  163 of the education] subarticle 27 of
    3  article 40 of the general business law to practice creative arts therapy
    4  in  this state. With respect to a professional service limited liability
    5  company formed to provide marriage and family therapy services  as  such
    6  services  are defined in [article 163 of the education] subarticle 27 of
    7  article 40 of the general business law,  each  member  of  such  limited
    8  liability  company  must  be  licensed  pursuant  to [article 163 of the
    9  education] subarticle twenty-seven of the general business law to  prac-
   10  tice  marriage  and  family  therapy  in this state.   With respect to a
   11  professional service limited liability company formed to provide  mental
   12  health  counseling services as such services are defined in [article 163
   13  of the education] subarticle 27 of article 40 of  the  general  business
   14  law,  each  member  of  such  limited liability company must be licensed
   15  pursuant to [article 163 of the education] subarticle 27 of  article  40
   16  of the general business law to practice mental health counseling in this
   17  state.  With respect to a professional service limited liability company
   18  formed to provide psychoanalysis services as such services  are  defined
   19  in  [article  163  of  the education] subarticle 27 of article 40 of the
   20  general business law, each member of such limited liability company must
   21  be licensed pursuant to [article 163 of the education] subarticle 27  of
   22  article  40  of  the  general business law to practice psychoanalysis in
   23  this state.
   24    § 77. Subdivision (b) of section 1207 of the limited liability company
   25  law, as separately amended by chapters 420 and 676 of the laws of  2002,
   26  is amended to read as follows:
   27    (b)  with  respect to a professional service limited liability company
   28  formed to provide medical services  as  such  services  are  defined  in
   29  [article 131 of the education] subarticle 2 of article 40 of the general
   30  business  law,  each  member  of  such limited liability company must be
   31  licensed pursuant to [article 131 of  the  education]  subarticle  2  of
   32  article  40  of  the  general  business law to practice medicine in this
   33  state. With respect to a professional service limited liability  company
   34  formed to provide dental services as such services are defined in [arti-
   35  cle  133  of  the  education]  subarticle 4 of article 40 of the general
   36  business law, each member of such  limited  liability  company  must  be
   37  licensed  pursuant  to  [article  133  of the education] subarticle 4 of
   38  article 40 of the general business law to  practice  dentistry  in  this
   39  state.  With respect to a professional service limited liability company
   40  formed to provide veterinary services as such services  are  defined  in
   41  [article 135 of the education] subarticle 5 of article 40 of the general
   42  business  law,  each  member  of  such limited liability company must be
   43  licensed pursuant to [article 135 of  the  education]  subarticle  5  of
   44  article  40  of the general business law to practice veterinary medicine
   45  in this state. With respect to a professional service limited  liability
   46  company  formed  to  provide  professional  engineering, land surveying,
   47  architectural and/or landscape architectural services as  such  services
   48  are  defined  in [article 145, article 147 and article 148 of the educa-
   49  tion] subarticles 13, 14 and 15 of article 40 of  the  general  business
   50  law,  each  member  of  such  limited liability company must be licensed
   51  pursuant to [article 145, article 147 and/or article 148 of  the  educa-
   52  tion]  subarticles  13,  14 and 15 of article 40 of the general business
   53  law to practice one or more of such  professions  in  this  state.  With
   54  respect  to  a  professional service limited liability company formed to
   55  provide licensed clinical social work  services  as  such  services  are
   56  defined in [article 154 of the education] subarticle 19 of article 40 of
       S. 1407                            359                           A. 2107
 
    1  the  general business law, each member of such limited liability company
    2  shall be licensed pursuant to [article 154 of the education]  subarticle
    3  19  of article 40 of the general business law to practice licensed clin-
    4  ical  social work in this state.  With respect to a professional service
    5  limited liability  company  formed  to  provide  creative  arts  therapy
    6  services  as such services are defined in [article 163 of the education]
    7  subarticle 27 of article 40 of the general business law, each member  of
    8  such limited liability company must be licensed pursuant to [article 163
    9  of  the  education]  subarticle 27 of article 40 of the general business
   10  law to practice creative arts therapy in this state. With respect  to  a
   11  professional   service  limited  liability  company  formed  to  provide
   12  marriage and family therapy services as such  services  are  defined  in
   13  [article 163 of the education] subarticle 27 of article 40 of the gener-
   14  al  business  law, each member of such limited liability company must be
   15  licensed pursuant to [article 163 of the  education]  subarticle  27  of
   16  article  40  of the general business law to practice marriage and family
   17  therapy in this state.  With respect to a professional  service  limited
   18  liability company formed to provide mental health counseling services as
   19  such  services  are defined in [article 163 of the education] subarticle
   20  27 of article 40 of the general business law, each member of such limit-
   21  ed liability company must be licensed pursuant to [article  163  of  the
   22  education]  subarticle  27  of article 40 of the general business law to
   23  practice mental health counseling in  this  state.  With  respect  to  a
   24  professional service limited liability company formed to provide psycho-
   25  analysis  services  as  such services are defined in [article 163 of the
   26  education] subarticle 27 of article 40 of the general business law, each
   27  member of such limited liability company must be  licensed  pursuant  to
   28  [article 163 of the education] subarticle 27 of article 40 of the gener-
   29  al business law to practice psychoanalysis in this state.
   30    § 78. Subdivision (a) of section 1301 of the limited liability company
   31  law,  as  amended by chapter 643 of the laws of 1995, is amended to read
   32  as follows:
   33    (a) "Foreign professional service limited liability company"  means  a
   34  professional  service  limited liability company, whether or not denomi-
   35  nated as such, organized under the laws of  a  jurisdiction  other  than
   36  this state, (i) each of whose members and managers, if any, is a profes-
   37  sional  authorized  by  law to render a professional service within this
   38  state and who is or has been engaged in the practice of such  profession
   39  in  such professional service limited liability company or a predecessor
   40  entity, or will engage in the practice of such profession in the profes-
   41  sional service limited liability company within thirty days of the  date
   42  such  professional becomes a member, or each of whose members and manag-
   43  ers, if any, is a professional at least one of such members  is  author-
   44  ized  by  law to render a professional service within this state and who
   45  is or has been engaged in  the  practice  of  such  profession  in  such
   46  professional  service limited liability company or a predecessor entity,
   47  or will engage in the practice of such profession  in  the  professional
   48  service  limited  liability  company within thirty days of the date such
   49  professional becomes a member, or  (ii)  authorized  by,  or  holding  a
   50  license,  certificate,  registration  or  permit issued by the licensing
   51  authority pursuant to, the [education] general business law to render  a
   52  professional  service  within  this  state;  except that all members and
   53  managers, if any, of a foreign professional  service  limited  liability
   54  company that provides health services in this state shall be licensed in
   55  this  state.    With  respect  to a foreign professional service limited
   56  liability company which provides veterinary services  as  such  services
       S. 1407                            360                           A. 2107
 
    1  are defined in [article 135 of the education] subarticle 5 of article 40
    2  of  the  general  business law, each member of such foreign professional
    3  service limited liability company shall be licensed pursuant to [article
    4  135 of the education] subarticle 5 of article 40 of the general business
    5  law  to  practice veterinary medicine. With respect to a foreign profes-
    6  sional service limited liability company which provides medical services
    7  as such services are defined in [article 131 of the education]  subarti-
    8  cle  2  of  article  40 of the general business law, each member of such
    9  foreign professional service limited liability company must be  licensed
   10  pursuant to [article 131 of the education] subarticle 2 of article 40 of
   11  the  general  business  law  to  practice medicine in this state.   With
   12  respect to a foreign  professional  service  limited  liability  company
   13  which  provides dental services as such services are defined in [article
   14  133 of the education] subarticle 4 of article 40 of the general business
   15  law, each member of such foreign professional service limited  liability
   16  company  must  be  licensed  pursuant  to [article 133 of the education]
   17  subarticle 4 of article 40 of  the  general  business  law  to  practice
   18  dentistry  in this state. With respect to a foreign professional service
   19  limited liability company which provides professional engineering,  land
   20  surveying, architectural and/or landscape architectural services as such
   21  services are defined in [article 145, article 147 and article 148 of the
   22  education]  subarticles 13, 14 and 15 of article 40 of the general busi-
   23  ness law, each member  of  such  foreign  professional  service  limited
   24  liability company must be licensed pursuant to [article 145, article 147
   25  and/or  article 148 of the education] subarticles 13, 14 and 15 of arti-
   26  cle 40 of the general business law to  practice  one  or  more  of  such
   27  professions in this state.
   28    § 79. Subdivision (a) of section 1301 of the limited liability company
   29  law,  as  amended by chapter 420 of the laws of 2002, is amended to read
   30  as follows:
   31    (a) "Foreign professional service limited liability company"  means  a
   32  professional  service  limited liability company, whether or not denomi-
   33  nated as such, organized under the laws of  a  jurisdiction  other  than
   34  this state, (i) each of whose members and managers, if any, is a profes-
   35  sional  authorized  by  law to render a professional service within this
   36  state and who is or has been engaged in the practice of such  profession
   37  in  such professional service limited liability company or a predecessor
   38  entity, or will engage in the practice of such profession in the profes-
   39  sional service limited liability company within thirty days of the  date
   40  such  professional becomes a member, or each of whose members and manag-
   41  ers, if any, is a professional at least one of such members  is  author-
   42  ized  by  law to render a professional service within this state and who
   43  is or has been engaged in  the  practice  of  such  profession  in  such
   44  professional  service limited liability company or a predecessor entity,
   45  or will engage in the practice of such profession  in  the  professional
   46  service  limited  liability  company within thirty days of the date such
   47  professional becomes a member, or  (ii)  authorized  by,  or  holding  a
   48  license,  certificate,  registration  or  permit issued by the licensing
   49  authority pursuant to, the [education] general business law to render  a
   50  professional  service  within  this  state;  except that all members and
   51  managers, if any, of a foreign professional  service  limited  liability
   52  company that provides health services in this state shall be licensed in
   53  this  state.    With  respect  to a foreign professional service limited
   54  liability company which provides veterinary services  as  such  services
   55  are defined in [article 135 of the education] subarticle 5 of article 40
   56  of  the  general  business law, each member of such foreign professional
       S. 1407                            361                           A. 2107
 
    1  service limited liability company shall be licensed pursuant to [article
    2  135 of the education] subarticle 5 of article 40 of the general business
    3  law to practice veterinary medicine. With respect to a  foreign  profes-
    4  sional service limited liability company which provides medical services
    5  as  such services are defined in [article 131 of the education] subarti-
    6  cle 2 of article 40 of the general business law,  each  member  of  such
    7  foreign  professional service limited liability company must be licensed
    8  pursuant to [article 131 of the education] subarticle 2 of article 40 of
    9  the general business law to practice  medicine  in  this  state.    With
   10  respect  to  a  foreign  professional  service limited liability company
   11  which provides dental services as such services are defined in  [article
   12  133 of the education] subarticle 4 of article 40 of the general business
   13  law,  each member of such foreign professional service limited liability
   14  company must be licensed pursuant to  [article  133  of  the  education]
   15  subarticle  4  of  article  40  of  the general business law to practice
   16  dentistry in this state. With respect to a foreign professional  service
   17  limited  liability company which provides professional engineering, land
   18  surveying, architectural and/or landscape architectural services as such
   19  services are defined in [article 145, article 147 and article 148 of the
   20  education] subarticles 13, 14 and 15 of article 40 of the general  busi-
   21  ness  law,  each  member  of  such  foreign professional service limited
   22  liability company must be licensed pursuant to [article 145, article 147
   23  and/or article 148 of the education] subarticles 13, 14 and 15 of  arti-
   24  cle  40  of  the  general  business  law to practice one or more of such
   25  professions in this  state.  With  respect  to  a  foreign  professional
   26  service  limited  liability  company  which  provides  licensed clinical
   27  social work services as such services are defined in [article 154 of the
   28  education] subarticle 19 of article 40 of the general business law, each
   29  member of such foreign professional service  limited  liability  company
   30  shall  be licensed pursuant to [article 154 of the education] subarticle
   31  19 of article 40 of the general business law to practice clinical social
   32  work in this state.
   33    § 80. Subdivision (a) of section 1301 of the limited liability company
   34  law, as amended by chapter 676 of the laws of 2002, is amended  to  read
   35  as follows:
   36    (a)  "Foreign  professional service limited liability company" means a
   37  professional service limited liability company, whether or  not  denomi-
   38  nated  as  such,  organized  under the laws of a jurisdiction other than
   39  this state, (i) each of whose members and managers, if any, is a profes-
   40  sional authorized by law to render a professional  service  within  this
   41  state  and who is or has been engaged in the practice of such profession
   42  in such professional service limited liability company or a  predecessor
   43  entity, or will engage in the practice of such profession in the profes-
   44  sional  service limited liability company within thirty days of the date
   45  such professional becomes a member, or each of whose members and  manag-
   46  ers,  if  any, is a professional at least one of such members is author-
   47  ized by law to render a professional service within this state  and  who
   48  is  or  has  been  engaged  in  the  practice of such profession in such
   49  professional service limited liability company or a predecessor  entity,
   50  or  will  engage  in the practice of such profession in the professional
   51  service limited liability company within thirty days of  the  date  such
   52  professional  becomes  a  member,  or  (ii)  authorized by, or holding a
   53  license, certificate, registration or permit  issued  by  the  licensing
   54  authority  pursuant to, the [education] general business law to render a
   55  professional service within this state;  except  that  all  members  and
   56  managers,  if  any,  of a foreign professional service limited liability
       S. 1407                            362                           A. 2107
 
    1  company that provides health services in this state shall be licensed in
    2  this state.   With respect to a  foreign  professional  service  limited
    3  liability  company  which  provides veterinary services as such services
    4  are defined in [article 135 of the education] subarticle 5 of article 40
    5  of  the  general  business law, each member of such foreign professional
    6  service limited liability company shall be licensed pursuant to [article
    7  135 of the education] subarticle 5 of article 40 of the general business
    8  law to practice veterinary medicine.  With respect to a foreign  profes-
    9  sional service limited liability company which provides medical services
   10  as  such services are defined in [article 131 of the education] subarti-
   11  cle 2 of article 40 of the general business law,  each  member  of  such
   12  foreign  professional service limited liability company must be licensed
   13  pursuant to [article 131 of the education] subarticle 2 of article 40 of
   14  the general business law  to  practice  medicine  in  this  state.  With
   15  respect  to  a  foreign  professional  service limited liability company
   16  which provides dental services as such services are defined in  [article
   17  133 of the education] subarticle 4 of article 40 of the general business
   18  law,  each member of such foreign professional service limited liability
   19  company must be licensed pursuant to  [article  133  of  the  education]
   20  subarticle  4  of  article  40  of  the general business law to practice
   21  dentistry in this state. With respect to a foreign professional  service
   22  limited  liability company which provides professional engineering, land
   23  surveying, architectural and/or landscape architectural services as such
   24  services are defined in [article 145, article 147 and article 148 of the
   25  education] subarticles 13, 14 and 15 of article 40 of the general  busi-
   26  ness  law,  each  member  of  such  foreign professional service limited
   27  liability company must be licensed pursuant to [article 145, article 147
   28  and/or article 148 of the education] subarticles 13, 14 and 15 of  arti-
   29  cle  40  of  the  general  business  law to practice one or more of such
   30  professions in this state.   With  respect  to  a  foreign  professional
   31  service  limited  liability company which provides creative arts therapy
   32  services as such services are defined in [article 163 of the  education]
   33  subarticle  27 of article 40 of the general business law, each member of
   34  such foreign professional service  limited  liability  company  must  be
   35  licensed  pursuant  to  [article  163 of the education] subarticle 27 of
   36  article 40 of the general business law to practice creative arts therapy
   37  in this state. With respect to a foreign  professional  service  limited
   38  liability company which provides marriage and family therapy services as
   39  such  services  are defined in [article 163 of the education] subarticle
   40  27 of article 40 of the  general  business  law,  each  member  of  such
   41  foreign  professional service limited liability company must be licensed
   42  pursuant to [article 163 of the education] subarticle 27 of  article  40
   43  of  the  general business law to practice marriage and family therapy in
   44  this state. With respect  to  a  foreign  professional  service  limited
   45  liability  company  which  provides mental health counseling services as
   46  such services are defined in [article 163 of the  education]  subarticle
   47  27  of  article  40  of  the  general  business law, each member of such
   48  foreign professional service limited liability company must be  licensed
   49  pursuant  to  [article 163 of the education] subarticle 27 of article 40
   50  of the general business law to practice mental health counseling in this
   51  state. With respect to a foreign professional service limited  liability
   52  company  which  provides  psychoanalysis  services  as such services are
   53  defined in [article 163 of the education] subarticle 27 of article 40 of
   54  the general business law,  each  member  of  such  foreign  professional
   55  service  limited liability company must be licensed pursuant to [article
       S. 1407                            363                           A. 2107
 
    1  163 of the education] subarticle 27 of article 40 of the  general  busi-
    2  ness law to practice psychoanalysis in this state.
    3    § 81. Subdivision (a) of section 1301 of the limited liability company
    4  law,  as separately amended by chapters 420 and 676 of the laws of 2002,
    5  is amended to read as follows:
    6    (a) "Foreign professional service limited liability company"  means  a
    7  professional  service  limited liability company, whether or not denomi-
    8  nated as such, organized under the laws of  a  jurisdiction  other  than
    9  this state, (i) each of whose members and managers, if any, is a profes-
   10  sional  authorized  by  law to render a professional service within this
   11  state and who is or has been engaged in the practice of such  profession
   12  in  such professional service limited liability company or a predecessor
   13  entity, or will engage in the practice of such profession in the profes-
   14  sional service limited liability company within thirty days of the  date
   15  such  professional becomes a member, or each of whose members and manag-
   16  ers, if any, is a professional at least one of such members  is  author-
   17  ized  by  law to render a professional service within this state and who
   18  is or has been engaged in  the  practice  of  such  profession  in  such
   19  professional  service limited liability company or a predecessor entity,
   20  or will engage in the practice of such profession  in  the  professional
   21  service  limited  liability  company within thirty days of the date such
   22  professional becomes a member, or  (ii)  authorized  by,  or  holding  a
   23  license,  certificate,  registration  or  permit issued by the licensing
   24  authority pursuant to, the [education] general business law to render  a
   25  professional  service  within  this  state;  except that all members and
   26  managers, if any, of a foreign professional  service  limited  liability
   27  company that provides health services in this state shall be licensed in
   28  this  state.    With  respect  to a foreign professional service limited
   29  liability company which provides veterinary services  as  such  services
   30  are defined in [article 135 of the education] subarticle 5 of article 40
   31  of  the  general  business law, each member of such foreign professional
   32  service limited liability company shall be licensed pursuant to [article
   33  135 of the education] subarticle 5 of article 40 of the general business
   34  law to practice veterinary medicine. With respect to a  foreign  profes-
   35  sional service limited liability company which provides medical services
   36  as  such services are defined in [article 131 of the education] subarti-
   37  cle 2 of article 40 of the general business law,  each  member  of  such
   38  foreign  professional service limited liability company must be licensed
   39  pursuant to [article 131 of the education] subarticle 2 of article 40 of
   40  the general business law to practice  medicine  in  this  state.    With
   41  respect  to  a  foreign  professional  service limited liability company
   42  which provides dental services as such services are defined in  [article
   43  133 of the education] subarticle 4 of article 40 of the general business
   44  law,  each member of such foreign professional service limited liability
   45  company must be licensed pursuant to  [article  133  of  the  education]
   46  subarticle  4  of  article  40  of  the general business law to practice
   47  dentistry in this state. With respect to a foreign professional  service
   48  limited  liability company which provides professional engineering, land
   49  surveying, architectural and/or landscape architectural services as such
   50  services are defined in [article 145, article 147 and article 148 of the
   51  education] subarticles 13, 14 and 15 of article 40 of the general  busi-
   52  ness  law,  each  member  of  such  foreign professional service limited
   53  liability company must be licensed pursuant to [article 145, article 147
   54  and/or article 148 of the education] subarticles 13, 14 and 15 of  arti-
   55  cle  40  of  the  general  business  law to practice one or more of such
   56  professions in this  state.  With  respect  to  a  foreign  professional
       S. 1407                            364                           A. 2107
 
    1  service  limited  liability  company  which  provides  licensed clinical
    2  social work services as such services are defined in [article 154 of the
    3  education] subarticle 19 of article 40 of the general business law, each
    4  member  of  such  foreign professional service limited liability company
    5  shall be licensed pursuant to [article 154 of the education]  subarticle
    6  19 of article 40 of the general business law to practice clinical social
    7  work  in  this  state.    With respect to a foreign professional service
    8  limited liability company which provides creative arts therapy  services
    9  as  such services are defined in [article 163 of the education] subarti-
   10  cle 27 of article 40 of the general business law, each  member  of  such
   11  foreign  professional service limited liability company must be licensed
   12  pursuant to [article 163 of the education] subarticle 27 of  article  40
   13  of  the  general  business law to practice creative arts therapy in this
   14  state. With respect to a foreign professional service limited  liability
   15  company  which  provides  marriage  and  family therapy services as such
   16  services are defined in [article 163 of the education] subarticle 27  of
   17  article  40  of  the  general  business law, each member of such foreign
   18  professional service limited liability company must be licensed pursuant
   19  to [article 163 of the education] subarticle 27 of  article  40  of  the
   20  general  business  law  to  practice marriage and family therapy in this
   21  state. With respect to a foreign professional service limited  liability
   22  company  which  provides  mental  health  counseling  services  as  such
   23  services are defined in [article 163 of the education] subarticle 27  of
   24  article  40  of  the  general  business law, each member of such foreign
   25  professional service limited liability company must be licensed pursuant
   26  to [article 163 of the education] subarticle 27 of  article  40  of  the
   27  general business law to practice mental health counseling in this state.
   28  With respect to a foreign professional service limited liability company
   29  which  provides  psychoanalysis services as such services are defined in
   30  [article 163 of the education] subarticle 27 of article 40 of the gener-
   31  al business law, each member of such foreign professional service limit-
   32  ed liability company must be licensed pursuant to [article  163  of  the
   33  education]  subarticle  27  of article 40 of the general business law to
   34  practice psychoanalysis in this state.
   35    § 82. Subdivisions (b), (c) and (f) of section  1301  of  the  limited
   36  liability  company law, subdivision (f) as amended by chapter 170 of the
   37  laws of 1996, are amended to read as follows:
   38    (b) "Licensing authority" means the [regents of the university] secre-
   39  tary of state of the state of New York or the [state education]  depart-
   40  ment  of  state,  as  the  case  may  be, in the case of all professions
   41  licensed under [title eight of the education] article 40 of the  general
   42  business  law,  and  the  appropriate  appellate division of the supreme
   43  court in the case of the profession of law.
   44    (c) "Profession" includes any practice as an attorney  and  counselor-
   45  at-law,  or as a licensed physician, and those professions designated in
   46  [title eight of the education] article 40 of the general business law.
   47    (f) "Professional partnership" means (1) a partnership without limited
   48  partners each of whose partners is a professional authorized by  law  to
   49  render a professional service within this state, (2) a partnership with-
   50  out  limited partners each of whose partners is a professional, at least
   51  one of whom is authorized by law to render a professional service within
   52  this state or (3) a partnership without limited partners authorized  by,
   53  or  holding a license, certificate, registration or permit issued by the
   54  licensing authority pursuant to the [education] general business law  to
   55  render  a  professional service within this state; except that all part-
   56  ners of a professional partnership that  provides  medical  services  in
       S. 1407                            365                           A. 2107
 
    1  this  state  must be licensed pursuant to [article 131 of the education]
    2  subarticle 2 of article 40 of the general business law to practice medi-
    3  cine in this state and all partners of a professional  partnership  that
    4  provides  dental  services  in  this  state must be licensed pursuant to
    5  [article 133 of the education] subarticle 4 of article 40 of the general
    6  business law to practice dentistry in this state; except that all  part-
    7  ners  of a professional partnership that provides veterinary services in
    8  this state must be licensed pursuant to [article 135 of  the  education]
    9  subarticle  5  of  article  40  of  the general business law to practice
   10  veterinary medicine in this state; and further except that all  partners
   11  of  a  professional  partnership that provides professional engineering,
   12  land surveying, architectural, and/or landscape  architectural  services
   13  in  this  state  must  be licensed pursuant to [article 145, article 147
   14  and/or article 148 of the education] subarticles 13, 14 and 15 of  arti-
   15  cle  40  of  the  general  business  law to practice one or more of such
   16  professions.
   17    § 83. Subdivision (c) of section 9.37 of the mental  hygiene  law,  as
   18  added  by  chapter  857 of the laws of 1981 and as relettered by chapter
   19  343 of the laws of 1996, is amended to read as follows:
   20    (c) Notwithstanding the provisions of subdivision (b) of this section,
   21  in counties with a population of  less  than  two  hundred  thousand,  a
   22  director  of  community services who is a licensed psychologist pursuant
   23  to [article one hundred fifty-three of the education]  subarticle  eigh-
   24  teen  of  article  40  of the general business law or a certified social
   25  worker pursuant to [article one hundred  fifty-four  of  the  education]
   26  subarticle nineteen of article forty of the general business law but who
   27  is  not a physician may apply for the admission of a patient pursuant to
   28  this section without a medical examination by a designated physician, if
   29  a hospital approved by the commissioner pursuant to section 9.39 of this
   30  [chapter] article is not located within thirty miles of the patient, and
   31  the director of community services  has  made  a  reasonable  effort  to
   32  locate a designated examining physician but such a designee is not imme-
   33  diately available and the director of community services, after personal
   34  observation of the person, reasonably believes that he may have a mental
   35  illness  which  is likely to result in serious harm to himself or others
   36  and inpatient care and treatment of such person in  a  hospital  may  be
   37  appropriate.  In  the  event of an application pursuant to this subdivi-
   38  sion, a physician of the receiving hospital shall  examine  the  patient
   39  and  shall  not  admit  the patient unless he or she determines that the
   40  patient has a mental illness for  which  immediate  inpatient  care  and
   41  treatment  in a hospital is appropriate and which is likely to result in
   42  serious harm to himself or others. If the patient is admitted, the  need
   43  for hospitalization shall be confirmed by another staff physician within
   44  twenty-four  hours. An application pursuant to this subdivision shall be
   45  in writing and shall be filed with the director of such hospital at  the
   46  time  of  the  patient's  reception, together with a statement in a form
   47  prescribed by the commissioner giving such information as  he  may  deem
   48  appropriate,  including  a statement of the efforts made by the director
   49  of community services to locate a designated examining  physician  prior
   50  to making an application pursuant to this subdivision.
   51    §  84.  Paragraph  4 of subdivision (a) of section 33.16 of the mental
   52  hygiene law, as amended by chapter 226 of the laws of 1991,  is  amended
   53  to read as follows:
   54    4. "Mental  health  practitioner"  or  "practitioner"  means  a person
   55  employed by or rendering a service at a facility maintaining  the  clin-
   56  ical record licensed under [article one hundred thirty-one of the educa-
       S. 1407                            366                           A. 2107
 
    1  tion]  subarticle  two  of article forty of the general business law who
    2  practices psychiatry or a person licensed  under  [article  one  hundred
    3  thirty-nine,  one  hundred  fifty-three or one hundred fifty-four of the
    4  education]  subarticles  eight, eighteen or nineteen of article forty of
    5  the general business law or any other person not prohibited by law  from
    6  providing mental health or developmental disabilities services.
    7    §  85. The fourteenth and sixteenth undesignated paragraphs of section
    8  2 of the partnership law, as added by chapter 576 of the laws  of  1994,
    9  are amended to read as follows:
   10    "Professional  partnership"  means  (1)  a partnership without limited
   11  partners each of whose partners is a professional authorized by  law  to
   12  render a professional service within this state, (2) a partnership with-
   13  out  limited partners each of whose partners is a professional, at least
   14  one of whom is authorized by law to render a professional service within
   15  this state or (3) a partnership without limited partners authorized  by,
   16  or  holding a license, certificate, registration or permit issued by the
   17  licensing authority pursuant to the [education] general business law  to
   18  render  a  professional service within this state; except that all part-
   19  ners of a professional partnership that  provides  medical  services  in
   20  this  state  must  be licensed pursuant to [article 131 of the education
   21  law] subarticle two of article forty of  the  general  business  law  to
   22  practice medicine in this state and all partners of a professional part-
   23  nership  that  provides  dental  services in this state must be licensed
   24  pursuant to [article 133 of the education law] subarticle four of  arti-
   25  cle  forty  of  the  general  business law to practice dentistry in this
   26  state; and further except that all partners of a  professional  partner-
   27  ship  that  provides professional engineering, land surveying, architec-
   28  tural and/or landscape architectural services  in  this  state  must  be
   29  licensed pursuant to [article 145, article 147 and/or article 148 of the
   30  education  law]  subarticles  thirteen,  fourteen, or fifteen of article
   31  forty of the general business law  to  practice  one  or  more  of  such
   32  professions in this state.
   33    "Professional  service  corporation" means (i) a corporation organized
   34  under article fifteen of the business corporation law and (ii) any other
   35  corporation organized under the business corporation law or  any  prede-
   36  cessor statute, which is authorized by, or holds a license, certificate,
   37  registration  or  permit  issued by, the licensing authority pursuant to
   38  the [education] general business law  to  render  professional  services
   39  within this state.
   40    §  86.  Subdivision (q) of section 121-1500 of the partnership law, as
   41  amended by chapter 643 of the laws  of  1995,  is  amended  to  read  as
   42  follows:
   43    (q)  Each partner of a registered limited liability partnership formed
   44  to provide medical services in this state must be licensed  pursuant  to
   45  [article  131  of  the education law] subarticle two of article forty of
   46  the general business law to practice medicine in  this  state  and  each
   47  partner  of a registered limited liability partnership formed to provide
   48  dental services in this state must be licensed pursuant to [article  133
   49  of  the  education  law] subarticle four of article forty of the general
   50  business law to practice dentistry in this state.   Each  partner  of  a
   51  registered  limited  liability  partnership formed to provide veterinary
   52  services in this state shall be licensed pursuant to [article 135 of the
   53  education law] subarticle five of article forty of the general  business
   54  law  to  practice  veterinary  medicine in this state. Each partner of a
   55  registered limited liability partnership formed to provide  professional
   56  engineering,  land  surveying,  architectural and/or landscape architec-
       S. 1407                            367                           A. 2107
 
    1  tural services in this state must be licensed pursuant to [article  145,
    2  article  147  and/or article 148 of the education law] subarticles thir-
    3  teen, fourteen, and/or fifteen of article forty of the general  business
    4  law to practice one or more of such professions in this state.
    5    §  87.  Subdivision (q) of section 121-1500 of the partnership law, as
    6  amended by chapter 420 of the laws  of  2002,  is  amended  to  read  as
    7  follows:
    8    (q)  Each partner of a registered limited liability partnership formed
    9  to provide medical services in this state must be licensed  pursuant  to
   10  [article  131  of  the education law] subarticle two of article forty of
   11  the general business law to practice medicine in  this  state  and  each
   12  partner  of a registered limited liability partnership formed to provide
   13  dental services in this state must be licensed pursuant to [article  133
   14  of  the  education  law] subarticle four of article forty of the general
   15  business law to practice dentistry in this state.   Each  partner  of  a
   16  registered  limited  liability  partnership formed to provide veterinary
   17  services in this state must be licensed pursuant to [article 135 of  the
   18  education  law] subarticle five of article forty of the general business
   19  law to practice veterinary medicine in this state.  Each  partner  of  a
   20  registered  limited liability partnership formed to provide professional
   21  engineering, land surveying, architectural  and/or  landscape  architec-
   22  tural  services in this state must be licensed pursuant to [article 145,
   23  article 147 and/or article 148 of the education law]  subarticles  thir-
   24  teen,  fourteen  and/or fifteen of article forty of the general business
   25  law to practice one or more of such  professions  in  this  state.  Each
   26  partner  of a registered limited liability partnership formed to provide
   27  licensed clinical social work services in this state  must  be  licensed
   28  pursuant  to  [article  154 of the education law] subarticle nineteen of
   29  article forty of the general business law to  practice  clinical  social
   30  work in this state.
   31    §  88.  Subdivision (q) of section 121-1500 of the partnership law, as
   32  amended by chapter 676 of the laws  of  2002,  is  amended  to  read  as
   33  follows:
   34    (q)  Each partner of a registered limited liability partnership formed
   35  to provide medical services in this state must be licensed  pursuant  to
   36  [article  131  of  the education law] subarticle two of article forty of
   37  the general business law to practice medicine in  this  state  and  each
   38  partner  of a registered limited liability partnership formed to provide
   39  dental services in this state must be licensed pursuant to [article  133
   40  of  the  education  law] subarticle four of article forty of the general
   41  business law to practice dentistry in this state.   Each  partner  of  a
   42  registered  limited  liability  partnership formed to provide veterinary
   43  services in this state shall be licensed pursuant to [article 135 of the
   44  education law] subarticle five of article forty of the general  business
   45  law  to  practice  veterinary  medicine in this state. Each partner of a
   46  registered limited liability partnership formed to provide  professional
   47  engineering,  land  surveying,  architectural and/or landscape architec-
   48  tural services in this state must be licensed pursuant to [article  145,
   49  article  147  and/or article 148 of the education law] subarticles thir-
   50  teen, fourteen and/or fifteen of article forty of the  general  business
   51  law  to  practice  one  or more of such professions in this state.  Each
   52  partner of a registered limited liability partnership formed to  provide
   53  creative  arts  therapy services in this state must be licensed pursuant
   54  to [article 163 of the education law] subarticles twenty-seven of  arti-
   55  cle  forty of the general business law to practice creative arts therapy
   56  in this state. Each partner of a registered limited  liability  partner-
       S. 1407                            368                           A. 2107
 
    1  ship  formed  to  provide  marriage  and family therapy services in this
    2  state must be licensed pursuant to [article 163 of  the  education  law]
    3  subarticle  twenty-seven of article forty of the general business law to
    4  practice  marriage  and  family therapy in this state. Each partner of a
    5  registered limited liability partnership formed to provide mental health
    6  counseling services in this state must be licensed pursuant to  [article
    7  163  of  the  education law] subarticle twenty-seven of article forty of
    8  the general business law to practice mental health  counseling  in  this
    9  state. Each partner of a registered limited liability partnership formed
   10  to provide psychoanalysis services in this state must be licensed pursu-
   11  ant  to  [article  163  of the education law] subarticle twenty-seven of
   12  article forty of the general business law to practice psychoanalysis  in
   13  this state.
   14    §  89.  Subdivision (q) of section 121-1500 of the partnership law, as
   15  separately amended by chapters 420 and 676  of  the  laws  of  2002,  is
   16  amended to read as follows:
   17    (q)  Each partner of a registered limited liability partnership formed
   18  to provide medical services in this state must be licensed  pursuant  to
   19  [article  131  of  the education law] subarticle two of article forty of
   20  the general business law to practice medicine in  this  state  and  each
   21  partner  of a registered limited liability partnership formed to provide
   22  dental services in this state must be licensed pursuant to [article  133
   23  of  the  education  law] subarticle four of article forty of the general
   24  business law to practice dentistry in this state.   Each  partner  of  a
   25  registered  limited  liability  partnership formed to provide veterinary
   26  services in this state must be licensed pursuant to [article 135 of  the
   27  education  law] subarticle five of article forty of the general business
   28  law to practice veterinary medicine in this state.  Each  partner  of  a
   29  registered  limited liability partnership formed to provide professional
   30  engineering, land surveying, architectural  and/or  landscape  architec-
   31  tural  services in this state must be licensed pursuant to [article 145,
   32  article 147 and/or article 148 of the education law]  subarticles  thir-
   33  teen,  fourteen  and/or fifteen of article forty of the general business
   34  law to practice one or more of such  professions  in  this  state.  Each
   35  partner  of a registered limited liability partnership formed to provide
   36  licensed clinical social work services in this state  must  be  licensed
   37  pursuant  to  [article  154 of the education law] subarticle nineteen of
   38  article forty of the general business law to  practice  clinical  social
   39  work  in  this  state.    Each partner of a registered limited liability
   40  partnership formed to provide creative arts  therapy  services  in  this
   41  state  must  be  licensed pursuant to [article 163 of the education law]
   42  subarticle twenty-seven of article forty of the general business law  to
   43  practice  creative  arts therapy in this state. Each partner of a regis-
   44  tered limited liability partnership formed to provide marriage and fami-
   45  ly therapy services in this state must be licensed pursuant to  [article
   46  163  of  the  education law] subarticle twenty-seven of article forty of
   47  the general business law to practice marriage and family therapy in this
   48  state. Each partner of a registered limited liability partnership formed
   49  to provide mental health counseling  services  in  this  state  must  be
   50  licensed pursuant to [article 163 of the education law] subarticle twen-
   51  ty-seven of article forty of the general business law to practice mental
   52  health  counseling  in  this state. Each partner of a registered limited
   53  liability partnership formed to provide psychoanalysis services in  this
   54  state  must  be  licensed pursuant to [article 163 of the education law]
   55  subarticle twenty-seven of article forty of the general business law  to
   56  practice psychoanalysis in this state.
       S. 1407                            369                           A. 2107
 
    1    §  90.  Subdivision (q) of section 121-1502 of the partnership law, as
    2  amended by chapter 643 of the laws  of  1995,  is  amended  to  read  as
    3  follows:
    4    (q)  Each  partner  of  a  foreign limited liability partnership which
    5  provides medical services in this state must  be  licensed  pursuant  to
    6  [article  131  of  the education law] subarticle two of article forty of
    7  the general business law to practice medicine  in  the  state  and  each
    8  partner of a foreign limited liability partnership which provides dental
    9  services  in  the state must be licensed pursuant to [article 133 of the
   10  education law] subarticle four of article forty of the general  business
   11  law  to  practice  dentistry  in  this  state. Each partner of a foreign
   12  limited liability partnership which provides veterinary service  in  the
   13  state  shall  be licensed pursuant to [article 135 of the education law]
   14  subarticle five of article forty of the general business law to practice
   15  veterinary medicine in this state. Each partner  of  a  foreign  limited
   16  liability  partnership  which  provides  professional  engineering, land
   17  surveying, architectural and/or landscape architectural services in this
   18  state must be licensed pursuant to  [article  145,  article  147  and/or
   19  article  148 of the education law] subarticles thirteen, fourteen and/or
   20  fifteen of article forty of the general business law to practice one  or
   21  more of such professions.
   22    §  91.  Subdivision (q) of section 121-1502 of the partnership law, as
   23  amended by chapter 676 of the laws  of  2002,  is  amended  to  read  as
   24  follows:
   25    (q)  Each  partner  of  a  foreign limited liability partnership which
   26  provides medical services in this state must  be  licensed  pursuant  to
   27  [article  131  of  the education law] subarticle two of article forty of
   28  the general business law to practice medicine  in  the  state  and  each
   29  partner of a foreign limited liability partnership which provides dental
   30  services  in  the state must be licensed pursuant to [article 133 of the
   31  education law] subarticle four of article forty of the general  business
   32  law  to  practice  dentistry  in  this  state. Each partner of a foreign
   33  limited liability partnership which provides veterinary service  in  the
   34  state  shall  be  licensed pursuant to [article 135 of the education law
   35  subarticle five of article forty of the general business law to practice
   36  veterinary medicine in this state. Each partner  of  a  foreign  limited
   37  liability  partnership  which  provides  professional  engineering, land
   38  surveying, architectural and/or landscape architectural services in this
   39  state must be licensed pursuant to  [article  145,  article  147  and/or
   40  article  148 of the education law] subarticles thirteen, fourteen and/or
   41  fifteen of article forty of the general business law to practice one  or
   42  more  of  such  professions. Each partner of a foreign limited liability
   43  partnership which provides creative arts therapy services in this  state
   44  must be licensed pursuant to [article 163 of the education law] subarti-
   45  cle  twenty-seven  of article forty of the general business law to prac-
   46  tice creative arts therapy in this state.  Each  partner  of  a  foreign
   47  limited liability partnership which provides marriage and family therapy
   48  services  in this state must be licensed pursuant to [article 163 of the
   49  education law] subarticle twenty-seven of article forty of  the  general
   50  business law to practice marriage and family therapy in this state. Each
   51  partner of a foreign limited liability partnership which provides mental
   52  health  counseling  services  in this state must be licensed pursuant to
   53  [article 163 of the education law] subarticle  twenty-seven  of  article
   54  forty  of  the general business law to practice mental health counseling
   55  in this state. Each partner of a foreign limited  liability  partnership
   56  which  provides  psychoanalysis  services in this state must be licensed
       S. 1407                            370                           A. 2107
 
    1  pursuant to [article 163 of the education law]  subarticle  twenty-seven
    2  of  article forty of the general business law to practice psychoanalysis
    3  in this state.
    4    §  92.  Subdivisions  12 and 13 of section 130.00 of the penal law, as
    5  added by chapter 1 of the laws of 2000, are amended to read as follows:
    6    12. "Health care provider" means any person who is, or is required  to
    7  be,  licensed  or  registered  or  holds  himself  or  herself out to be
    8  licensed or registered, or provides  services  as  if  he  or  she  were
    9  licensed  or  registered  in  the  profession of medicine, chiropractic,
   10  dentistry or podiatry under any of the following: [article  one  hundred
   11  thirty-one,  one  hundred  thirty-two,  one hundred thirty-three, or one
   12  hundred forty-one of the education] subarticle two, three, four, or  ten
   13  of article forty of the general business law.
   14    13.  "Mental  health  care  provider"  means  any person who is, or is
   15  required to be, licensed or registered, or holds himself or herself  out
   16  to  be  licensed or registered, or provides mental health services as if
   17  he or she were licensed or registered in  the  profession  of  medicine,
   18  psychology  or  social  work  under  any  of the following: [article one
   19  hundred thirty-one, one hundred fifty-three, or one  hundred  fifty-four
   20  of  the education] subarticle two, eighteen or nineteen of article forty
   21  of the general business law.
   22    § 93. The opening paragraph  of  paragraph  15  of  subdivision  a  of
   23  section  265.20 of the penal law, as added by chapter 354 of the laws of
   24  1996, is amended to read as follows:
   25    Possession and sale of a self-defense spray device as defined in para-
   26  graph fourteen of this subdivision by  a  dealer  in  firearms  licensed
   27  pursuant to section 400.00 of this chapter, a pharmacist licensed pursu-
   28  ant  to  [article  one hundred thirty-seven of the education] subarticle
   29  seven of article forty of the general business  law  or  by  such  other
   30  vendor  as may be authorized and approved by the superintendent of state
   31  police.
   32    § 94.  Subdivision 10 of section 3 of the  public  buildings  law,  as
   33  added by chapter 385 of the laws of 1990, is amended to read as follows:
   34    10. Notwithstanding any provision of this article or of any general or
   35  special  law,  upon  written  certification  by the department or agency
   36  having jurisdiction that efficiency or economy  will  result  therefrom,
   37  the  commissioner  of  general  services  may adopt and use standardized
   38  specifications for a particular type, class or item of equipment,  mate-
   39  rial  or  system to be included in the plans and specifications prepared
   40  pursuant to this article. Such plans and  specifications  shall  conform
   41  with  sections [seven thousand two hundred nine and seven thousand three
   42  hundred seven of the education]  sixteen  hundred  sixty  and  seventeen
   43  hundred seven of the general business law.
   44    §  95. Section 14 of the public health law, as amended by chapter 2 of
   45  the laws of 1998, is amended to read as follows:
   46    § 14. Actions against persons rendering professional services  at  the
   47  request  of  the department; defense and indemnification. The provisions
   48  of section seventeen of the public  officers  law  shall  apply  to  any
   49  physician,  dentist, nurse or other health care professional who: (i) is
   50  licensed to practice pursuant to [article one  hundred  thirty-one,  one
   51  hundred  thirty-one-B, one hundred thirty-three, one hundred thirty-six,
   52  one hundred thirty-seven, one hundred thirty-nine,  one  hundred  forty-
   53  three,  one  hundred  fifty-six,  one  hundred  fifty-seven, one hundred
   54  fifty-nine or one hundred sixty-four of the education]  subarticle  two,
   55  two-B,  four, six, seven, eight, eleven, twenty-one, twenty-two, twenty-
   56  three or twenty-eight of article forty of the general business  law  and
       S. 1407                            371                           A. 2107
 
    1  who  is  rendering  professional treatment or consultation in connection
    2  with professional treatment authorized under such license at the request
    3  of the department, or at a  departmental  facility,  including  clinical
    4  practice  provided  pursuant  to  a  clinical  practice plan established
    5  pursuant to subdivision fourteen of section  two  hundred  six  of  this
    6  chapter,  to  patients  receiving care or professional consultation from
    7  the department while rendering such professional treatment or  consulta-
    8  tion;  (ii)  is  rendering  consultation  in connection with an audit or
    9  prepayment review of claims or  treatment  requests  under  the  medical
   10  assistance  program;  or  (iii) assists the department as consultants or
   11  expert  witnesses  in  the  investigation  or  prosecution  of   alleged
   12  violations of article twenty-eight, thirty-six, forty-four or forty-sev-
   13  en of this chapter or rules and regulations adopted pursuant thereto.
   14    §  96.    Paragraph  (d)  of subdivision 1 of section 18 of the public
   15  health law, as added by chapter 497 of the laws of 1986, is  amended  to
   16  read as follows:
   17    (d)  "Health  care  practitioner"  or  "practitioner"  means  a person
   18  licensed  under   [article   one   hundred   thirty-one,   one   hundred
   19  thirty-one-B,  one  hundred  thirty-two,  one  hundred thirty-three, one
   20  hundred thirty-six, one hundred thirty-nine, one hundred forty-one,  one
   21  hundred  forty-three,  one  hundred forty-four, one hundred fifty-three,
   22  one hundred fifty-four, one hundred fifty-six or one hundred  fifty-nine
   23  of  the  education]  subarticle two, two-B, three, four, six, eight, ten
   24  eleven, twelve, eighteen, nineteen, twenty-one or twenty-three of  arti-
   25  cle  forty  of  the  general  business  law  or a person certified under
   26  section twenty-five hundred sixty of this chapter.
   27    § 97. The opening paragraph of subdivision 1  of  section  19  of  the
   28  public  health  law,  as  added  by  chapter 572 of the laws of 1990, is
   29  amended to read as follows:
   30    No physician licensed under [article one  hundred  thirty-one  of  the
   31  education]  subarticle  two of article forty of the general business law
   32  shall charge from a beneficiary of health insurance under title XVIII of
   33  the federal social security act (medicare) any amount in excess  of  the
   34  following limitations:
   35    § 98. Subdivision 1, paragraph (p) of subdivision 10, paragraph (a) of
   36  subdivision  11,  subdivision  13 and paragraph (c) of subdivision 17 of
   37  section 230 of the public health law, subdivision 1 as amended by  chap-
   38  ter  537 of the laws of 1998, paragraph (p) of subdivision 10 as amended
   39  by chapter 599 of the laws of 1996, paragraph (a) of subdivision  11  as
   40  amended  by chapter 627 of the laws of 1996, and subdivision 13 as added
   41  and paragraph (c) of subdivision 17 as amended by  chapter  606  of  the
   42  laws of 1991, are amended to read as follows:
   43    1. A state board for professional medical conduct is hereby created in
   44  the  department  in  matters  of  professional  misconduct as defined in
   45  sections [sixty-five hundred thirty and sixty-five hundred thirty-one of
   46  the education] one thousand fifty and  one  thousand  fifty-one  of  the
   47  general  business  law.  Its physician members shall be appointed by the
   48  commissioner at least eighty-five percent of whom shall  be  from  among
   49  nominations  submitted  by the medical society of the state of New York,
   50  the New York state osteopathic society, the New York  academy  of  medi-
   51  cine, county medical societies, statewide specialty societies recognized
   52  by  the council of medical specialty societies, and the hospital associ-
   53  ation of New York state. Its lay  members  shall  be  appointed  by  the
   54  commissioner  with  the approval of the governor. The [board of regents]
   55  secretary of state shall also appoint twenty percent of the  members  of
   56  the board. Not less than sixty-seven percent of the members appointed by
       S. 1407                            372                           A. 2107
 
    1  the  [board of regents] secretary of state shall be physicians. Not less
    2  than eighty-five percent of  the  physician  members  appointed  by  the
    3  [board  of  regents]  secretary of state shall be from among nominations
    4  submitted  by the medical society of the state of New York, the New York
    5  state osteopathic society, the New  York  academy  of  medicine,  county
    6  medical societies, statewide medical societies recognized by the council
    7  of medical specialty societies, and the hospital association of New York
    8  state.  Any  failure  to  meet  the percentage thresholds stated in this
    9  subdivision shall not be grounds for invalidating any action  by  or  on
   10  authority  of  the board for professional medical conduct or a committee
   11  or a member thereof. The board for professional  medical  conduct  shall
   12  consist  of not fewer than eighteen physicians licensed in the state for
   13  at least five years, two of whom shall be  doctors  of  osteopathy,  not
   14  fewer  than  two  of whom shall be physicians who dedicate a significant
   15  portion of their practice to the use of non-conventional medical  treat-
   16  ments  who may be nominated by New York state medical associations dedi-
   17  cated to the advancement of such treatments, at least one of whom  shall
   18  have expertise in palliative care, and not fewer than seven lay members.
   19  An  executive  secretary shall be appointed by the chairperson and shall
   20  be a licensed physician. Such executive secretary shall not be a  member
   21  of  the  board, shall hold office at the pleasure of, and shall have the
   22  powers and duties assigned and the annual salary fixed  by,  the  chair-
   23  person.  The  chairperson  shall  also  assign such secretaries or other
   24  persons to the board as are necessary.
   25    (p) Convictions of crimes or administrative violations.  In  cases  of
   26  professional  misconduct  based  solely  upon a violation of subdivision
   27  nine of section [sixty-five hundred thirty of the education]  one  thou-
   28  sand  fifty  of  the  general business law, the director may direct that
   29  charges be prepared and served and may refer the matter to  a  committee
   30  on  professional  conduct for its review and report of findings, conclu-
   31  sions as to guilt, and determination. In such cases, the notice of hear-
   32  ing shall state that the licensee shall file a written answer to each of
   33  the charges and allegations in the statement of charges  no  later  than
   34  ten  days prior to the hearing, and that any charge or allegation not so
   35  answered shall be deemed admitted, that the licensee may  wish  to  seek
   36  the  advice of counsel prior to filing such answer that the licensee may
   37  file a brief and affidavits with the committee on professional  conduct,
   38  that  the licensee may appear personally before the committee on profes-
   39  sional conduct, may be represented by counsel and may  present  evidence
   40  or sworn testimony in his or her behalf, and the notice may contain such
   41  other  information as may be considered appropriate by the director. The
   42  department may also present evidence or sworn testimony and file a brief
   43  at the hearing. A stenographic record of the hearing shall be made. Such
   44  evidence or sworn testimony offered to  the  committee  on  professional
   45  conduct  shall be strictly limited to evidence and testimony relating to
   46  the nature and severity of the penalty to be imposed upon the  licensee.
   47  Where  the  charges  are  based on the conviction of state law crimes in
   48  other jurisdictions, evidence may be  offered  to  the  committee  which
   49  would  show  that the conviction would not be a crime in New York state.
   50  The committee on professional conduct may reasonably limit the number of
   51  witnesses whose testimony will be received and the length  of  time  any
   52  witness will be permitted to testify. The determination of the committee
   53  shall  be served upon the licensee and the department in accordance with
   54  the provisions of paragraph (h) of  this  subdivision.  A  determination
   55  pursuant  to  this  subdivision  may  be  reviewed by the administrative
   56  review board for professional medical conduct.
       S. 1407                            373                           A. 2107
 
    1    (a) The medical society of the state of New York, the New  York  state
    2  osteopathic  society  or any district osteopathic society, any statewide
    3  medical specialty society or  organization,  and  every  county  medical
    4  society,  every  person licensed pursuant to [articles one hundred thir-
    5  ty-one,  one hundred thirty-one-B, one hundred thirty-three, one hundred
    6  thirty-seven and one hundred thirty-nine of the  education]  subarticles
    7  two,  two-B, four, seven and eight of article forty of the general busi-
    8  ness law, and the chief executive officer,  the  chief  of  the  medical
    9  staff  and the chairperson of each department of every institution which
   10  is established pursuant to article twenty-eight of this  chapter  and  a
   11  comprehensive  health  services  plan  pursuant to article forty-four of
   12  this chapter or article forty-three of the insurance law, shall, and any
   13  other person may, report to the board any information which such person,
   14  medical society, organization, institution or plan has which  reasonably
   15  appears  to show that a licensee is guilty of professional misconduct as
   16  defined in sections [sixty-five hundred thirty  and  sixty-five  hundred
   17  thirty-one  of the education] one thousand fifty and one thousand fifty-
   18  one of the general business law. Such reports shall remain  confidential
   19  and  shall  not be admitted into evidence in any administrative or judi-
   20  cial proceeding except that the board, its staff, or the members of  its
   21  committees may begin investigations on the basis of such reports and may
   22  use them to develop further information.
   23    13.  (a) Temporary surrender. The license and registration of a licen-
   24  see who may be temporarily incapacitated  for  the  active  practice  of
   25  medicine  and  whose  alleged  incapacity  has not resulted in harm to a
   26  patient may be voluntarily surrendered to  the  board  for  professional
   27  medical conduct, which may accept and hold such license during the peri-
   28  od  of  such  alleged  incapacity  or the board for professional medical
   29  conduct may accept the surrender of  such  license  after  agreement  to
   30  conditions  to be met prior to the restoration of the license. The board
   31  shall give prompt written notification of such surrender to the division
   32  of professional licensing services of the department of state [education
   33  department], and to each hospital at which the licensee has  privileges.
   34  The  licensee  whose license is so surrendered shall notify all patients
   35  and all persons who request  medical  services  that  the  licensee  has
   36  temporarily  withdrawn  from  the  practice  of  medicine. The licensure
   37  status of each such licensee shall be "inactive" and the licensee  shall
   38  not  be  authorized  to practice medicine. The temporary surrender shall
   39  not be deemed to be  an  admission  of  disability  or  of  professional
   40  misconduct, and shall not be used as evidence of a violation of subdivi-
   41  sion  seven or eight of section [sixty-five hundred thirty of the educa-
   42  tion] one thousand fifty of the general business law unless the licensee
   43  practices while the license  is  "inactive".  Any  such  practice  shall
   44  constitute  a  violation  of  subdivision  twelve of section [sixty-five
   45  hundred thirty of the education] one thousand fifty of the general busi-
   46  ness law. The surrender of a license under this  subdivision  shall  not
   47  bar  any  disciplinary  action  except  action  based  solely  upon  the
   48  provisions of subdivision seven or eight of section [sixty-five  hundred
   49  thirty  of the education] one thousand fifty of the general business law
   50  and where no harm to a patient has resulted, and shall not bar any civil
   51  or criminal action or proceeding which might be brought  without  regard
   52  to  such surrender. A surrendered license shall be restored upon a show-
   53  ing to the satisfaction of a committee of professional  conduct  of  the
   54  state  board  for  professional medical conduct that the licensee is not
   55  incapacitated for the active practice  of  medicine  provided,  however,
   56  that  the committee may impose reasonable conditions on the licensee, if
       S. 1407                            374                           A. 2107
 
    1  it determined that due to the nature and extent of the licensee's former
    2  incapacity such conditions are necessary to protect the  health  of  the
    3  people. The chairperson of the committee shall issue a restoration order
    4  adopting  the  decision of the committee. Prompt written notification of
    5  such restoration shall be given to the division of professional  licens-
    6  ing  services  of  the  [state education] department of state and to all
    7  hospitals which were notified of the surrender of the license.
    8    (b) Permanent surrender. The license and registration  of  a  licensee
    9  who  may  be  permanently incapacitated for the active practice of medi-
   10  cine, and whose alleged  incapacity  has  not  resulted  in  harm  to  a
   11  patient,  may  be  voluntarily surrendered to the board for professional
   12  medical conduct. The board shall give  prompt  written  notification  of
   13  such surrender to the division of professional licensing services of the
   14  [state education] department of state, and to each hospital at which the
   15  licensee  has  privileges.  The licensee whose license is so surrendered
   16  shall notify all patients and all persons who request  medical  services
   17  that  the  licensee has permanently withdrawn from the practice of medi-
   18  cine.  The permanent surrender shall not be deemed to be an admission of
   19  disability of or professional misconduct,  and  shall  not  be  used  as
   20  evidence  of  a  violation  of  subdivision  seven  or  eight of section
   21  [sixty-five hundred thirty of the education] one thousand fifty  of  the
   22  general  business law. The surrender shall not bar any civil or criminal
   23  action or proceeding which might  be  brought  without  regard  to  such
   24  surrender.  There  shall  be  no  restoration of a license that has been
   25  surrendered pursuant to this subdivision.
   26    (c) If the committee determines that reasonable cause exists as speci-
   27  fied in paragraph (a) of this subdivision and that there is insufficient
   28  evidence for the matter to constitute misconduct as defined in  sections
   29  [sixty-five  hundred thirty and section sixty-five hundred thirty-one of
   30  the education] one thousand fifty and  one  thousand  fifty-one  of  the
   31  general  business  law,  the committee may issue an order directing that
   32  the licensee's practice of medicine be monitored for a period  specified
   33  in  the  order,  which  shall in no event exceed one year, by a licensee
   34  approved by the director, which may include members  of  county  medical
   35  societies  or  district  osteopathic societies designated by the commis-
   36  sioner. The licensee  responsible  for  monitoring  the  licensee  shall
   37  submit regular reports to the director. If the licensee refuses to coop-
   38  erate  with the licensee responsible for monitoring or if the monitoring
   39  licensee submits a report that the licensee is not  practicing  medicine
   40  with  reasonable  skill and safety to his or her patients, the committee
   41  may refer the matter to the director for further proceedings pursuant to
   42  subdivision ten of this section. An order  pursuant  to  this  paragraph
   43  shall  be  kept  confidential  and  shall not be subject to discovery or
   44  subpoena, unless the licensee refuses to comply with the order.
   45    § 99. The opening paragraph of section 230-a of the public health law,
   46  as added by chapter 606 of the laws of  1991,  is  amended  to  read  as
   47  follows:
   48    The penalties which may be imposed by the state board for professional
   49  medical  conduct on a present or former licensee found guilty of profes-
   50  sional misconduct under the definitions and  proceedings  prescribed  in
   51  section  two  hundred  thirty  of  this  title  and sections [sixty-five
   52  hundred thirty and sixty-five hundred thirty-one of the  education]  one
   53  thousand  fifty  and  one thousand fifty-one of the general business law
   54  are:
   55    § 100. Section 230-a of the public health law, as added by chapter 786
   56  of the laws of 1992, is amended to read as follows:
       S. 1407                            375                           A. 2107
 
    1    § 230-a. Infection control standards.  Notwithstanding any law to  the
    2  contrary, including section [sixty-five hundred thirty-two of the educa-
    3  tion] one thousand fifty-two of the general business law, the department
    4  shall promulgate rules or regulations describing scientifically accepted
    5  barrier  precautions  and  infection  control  practices as standards of
    6  professional medical conduct for persons licensed  under  [articles  one
    7  hundred thirty-one and one hundred thirty-one-B of the education] subar-
    8  ticles  two  and two-B of article forty of the general business law. The
    9  department shall consult with the education department  to  ensure  that
   10  regulatory  standards  for scientifically acceptable barrier precautions
   11  and infection prevention techniques promulgated pursuant to this section
   12  are consistent, as far as appropriate with such standards adopted by the
   13  [education] department of state applicable to persons licensed under the
   14  [education] general business law other than [articles one hundred  thir-
   15  ty-one  and one hundred thirty-one-B] subarticles two and two-B of arti-
   16  cle forty of such law.
   17    § 101. Subdivision 16 of section 238 of  the  public  health  law,  as
   18  added by chapter 591 of the laws of 2000, is amended to read as follows:
   19    16.  "Physical  therapy services" means physical therapy as defined by
   20  section [sixty-seven  hundred  thirty-one  of  the  education]  thirteen
   21  hundred one of the general business law.
   22    §  102.  Paragraph  (a)  of subdivision 3 of section 260 of the public
   23  health law, as added by chapter 337 of the laws of 2002, is  amended  to
   24  read as follows:
   25    (a)  is  licensed, or exempt from licensure, pursuant to [articles one
   26  hundred thirty-one, one hundred thirty-one-B,  one  hundred  thirty-two,
   27  one  hundred  thirty-three,  one hundred thirty-six, one hundred thirty-
   28  seven, one hundred thirty-nine, one hundred forty,  one  hundred  forty-
   29  one,  one  hundred  forty-three,  one  hundred  forty-four,  one hundred
   30  fifty-three, one hundred fifty-four, one hundred fifty-five, one hundred
   31  fifty-six, one hundred fifty-seven, one hundred fifty-nine, one  hundred
   32  sixty,  one  hundred  sixty-two, or one hundred sixty-four of the educa-
   33  tion] subarticle two, two-B, three, four, six, seven, eight, nine,  ten,
   34  eleven,  twelve,  eighteen,  nineteen,  twenty,  twenty-one, twenty-two,
   35  twenty-three, twenty-four, twenty-six or twenty-eight of  article  forty
   36  of the general business law;
   37    § 103. Subdivision 1 of section 462 of the public health law, as added
   38  by chapter 562 of the laws of 2001, is amended to read as follows:
   39    1. This article shall not apply to or affect a physician duly licensed
   40  under  [article  one hundred thirty-one of the education] subarticle two
   41  of article forty of the general business law or x-ray technicians.
   42    § 104. Subdivision 17 of section 2511 of the  public  health  law,  as
   43  added by chapter 2 of the laws of 1998, is amended to read as follows:
   44    17.  The  commissioner,  in  consultation  with the superintendent, is
   45  authorized to establish and operate a child health  information  service
   46  which shall utilize advanced telecommunications technologies to meet the
   47  health  information  and  support needs of children, parents and medical
   48  professionals, which shall include, but not  be  limited  to,  treatment
   49  guidelines  for  children,  treatment  protocols,  research articles and
   50  standards for the care of children from birth through eighteen years  of
   51  age.  Such information shall not constitute the practice of medicine, as
   52  defined in [article one hundred thirty-one of the education]  subarticle
   53  two of article forty of the general business law.
   54    §  105. Paragraph (f) of subdivision 1 of section 2805-k of the public
   55  health law, as added by chapter 786 of the laws of 1992, is  amended  to
   56  read as follows:
       S. 1407                            376                           A. 2107
 
    1    (f)  Documentation  that  the  physician,  dentist  or  podiatrist has
    2  completed the course work or training as mandated by section two hundred
    3  thirty-eight of this chapter  or  section  [six  thousand  five  hundred
    4  five-b of the education] nine hundred eight of the general business law.
    5  A  hospital or facility shall not grant or renew professional privileges
    6  or association to a  physician,  dentist,  or  podiatrist  who  has  not
    7  completed such course work or training.
    8    §  106.  Subdivision  16  of section 2807 of the public health law, as
    9  added by chapter 523 of the laws of 2001, is amended to read as follows:
   10    16. Notwithstanding any inconsistent provision  of  law,  payment  for
   11  drugs  which  may not be dispensed without a prescription as required by
   12  section [sixty-eight hundred ten  of  the  education]  thirteen  hundred
   13  sixty  of the general business law provided to persons receiving medical
   14  assistance pursuant to title  eleven  of  article  five  of  the  social
   15  services  law  by any non-hospital based diagnostic and treatment center
   16  licensed under this article in existence on the effective date  of  this
   17  subdivision  providing  comprehensive  primary medical care services and
   18  registered by the state board of pharmacy pursuant  to  section  [sixty-
   19  eight  hundred  eight  of the education] thirteen hundred fifty-eight of
   20  the general business law shall be on a fee-for-service basis  and  shall
   21  not  be  included in any comprehensive clinic rate paid to such facility
   22  by governmental agencies established in accordance with paragraph (b) of
   23  subdivision two of this section.
   24    § 107. Subdivision 7 of section 2995-a of the public  health  law,  as
   25  added by chapter 542 of the laws of 2000, is amended to read as follows:
   26    7.  A  physician who knowingly provides materially inaccurate informa-
   27  tion under this section  shall  be  guilty  of  professional  misconduct
   28  pursuant  to  section  [sixty-five  hundred thirty of the education] one
   29  thousand fifty of the general business law.
   30    § 108. Subdivision 1 of section 3000-a of the public  health  law,  as
   31  amended  by  chapter  69  of  the  laws  of  1994, is amended to read as
   32  follows:
   33    1. Except as provided in subdivision six of section [six thousand  six
   34  hundred eleven] twelve hundred nineteen, subdivision two of section [six
   35  thousand  five hundred twenty-seven] one thousand seven, subdivision one
   36  of section [six thousand nine hundred nine] fourteen  hundred  nine  and
   37  sections [six thousand five hundred forty-seven] eleven hundred five and
   38  [six  thousand seven hundred thirty-seven] thirteen hundred seven of the
   39  [education] general business law, any person who voluntarily and without
   40  expectation of monetary compensation  renders  first  aid  or  emergency
   41  treatment  at  the  scene  of  an  accident or other emergency outside a
   42  hospital, doctor's office or any other place having proper and necessary
   43  medical equipment, to a person who  is  unconscious,  ill,  or  injured,
   44  shall  not  be  liable  for  damages  for  injuries alleged to have been
   45  sustained by such person or for damages for the  death  of  such  person
   46  alleged  to have occurred by reason of an act or omission in the render-
   47  ing of such emergency treatment unless it is established that such inju-
   48  ries were or such death was caused by gross negligence on  the  part  of
   49  such  person.  Nothing  in  this section shall be deemed or construed to
   50  relieve a licensed physician,  dentist,  nurse,  physical  therapist  or
   51  registered physician's assistant from liability for damages for injuries
   52  or  death  caused by an act or omission on the part of such person while
   53  rendering professional services in the normal and ordinary course of his
   54  or her practice.
   55    § 109. Subdivision 11 of section 3011 of the  public  health  law,  as
   56  added chapter 542 of the laws of 1995, is amended to read as follows:
       S. 1407                            377                           A. 2107
 
    1    11.  The  commissioner, with the advice and consent of the state coun-
    2  cil, shall promulgate rules and regulations necessary to ensure  compli-
    3  ance  with  the  provisions  of  subdivision two of section [sixty-seven
    4  hundred thirteen of the education law] twelve hundred sixty-four of  the
    5  general business law.
    6    §  110. Paragraph c of subdivision 1 and subdivision 4 of section 3383
    7  of the public health law, as added by chapter 494 of the laws  of  1982,
    8  are amended to read as follows:
    9    c.  "Imitation  controlled  substance" means a substance, other than a
   10  drug for which a prescription  is  required  pursuant  to  [article  one
   11  hundred thirty-seven of the education] subarticle seven of article forty
   12  of  the  general business law, that is not a controlled substance, which
   13  by dosage unit appearance, including color, shape  and  size  and  by  a
   14  representation  is  represented to be a controlled substance, as defined
   15  in the penal law. Evidence of representations that the  substance  is  a
   16  controlled  substance  may include but is not limited to oral or written
   17  representations by the manufacturer or seller, as the case may be, about
   18  the substance with regard to:
   19    4. No liability shall be imposed by virtue  of  this  section  on  any
   20  person  licensed  pursuant  to  [article  one  hundred thirty-one of the
   21  education] subarticle two of article forty of the general  business  law
   22  or  licensed under this article who manufactures, [distributed] distrib-
   23  utes, sells, prescribes, dispenses or possesses an imitation  controlled
   24  substance for use as a placebo or for use in clinical research conducted
   25  pursuant to the federal food, drug and cosmetic act.
   26    §  111. Subdivisions 4 and 5 of section 3602 of the public health law,
   27  as amended by chapter 600 of the laws of 2002, are amended  to  read  as
   28  follows:
   29    4.  "Home  health  aide  services"  means  simple  health  care tasks,
   30  personal hygiene services, housekeeping tasks essential to the patient's
   31  health and other related supportive services.  Such  services  shall  be
   32  prescribed by a physician in accordance with a plan of treatment for the
   33  patient  and shall be under the supervision of a registered professional
   34  nurse from a certified home health agency or, when appropriate,  from  a
   35  provider  of a long term home health care program and of the appropriate
   36  professional therapist from  such  agency  or  provider  when  the  aide
   37  carries  out  simple  procedures  as an extension of physical, speech or
   38  occupational therapy. Such services may also be prescribed or ordered by
   39  a nurse practitioner to the extent authorized by law and consistent with
   40  the written practice agreement pursuant to subdivision three of  section
   41  [six thousand nine hundred two of the education] fourteen hundred two of
   42  the  general  business  law  and  not prohibited by federal law or regu-
   43  lation.
   44    5. "Personal care services" means services  to  assist  with  personal
   45  hygiene,   dressing,  feeding  and  household  tasks  essential  to  the
   46  patient's health. Such services shall be prescribed by  a  physician  in
   47  accordance  with  a plan of home care supervised by a registered profes-
   48  sional nurse. Such services may also be prescribed or ordered by a nurse
   49  practitioner to the extent authorized by law  and  consistent  with  the
   50  written practice agreement pursuant to subdivision three of section [six
   51  thousand  nine hundred two of the education] fourteen hundred two of the
   52  general business law and not prohibited by federal law or regulations.
   53    § 112. Subdivision 1 of section 3605 of  the  public  health  law,  as
   54  added by chapter 959 of the laws of 1984, is amended to read as follows:
   55    1.  After  April  first,  nineteen  hundred  eighty-six,  no home care
   56  services agency which is  engaged  in  providing,  directly  or  through
       S. 1407                            378                           A. 2107
 
    1  contract  arrangement,  nursing  services, home health aide services, or
    2  personal care services shall be operated without a license issued by the
    3  commissioner in accordance with the standards set forth in this section;
    4  provided  however,  an  agency which provides personal care or home care
    5  services exclusively to individuals pursuant to a program  administered,
    6  operated  or  regulated  by  another  state  agency  or  an organization
    7  licensed and operating exclusively as a  nurses'  registry  pursuant  to
    8  article  eleven  of  the  general  business law shall be exempt from the
    9  licensure requirements of this chapter. The  licensure  requirements  of
   10  this  chapter shall not apply to sole practitioners licensed pursuant to
   11  sections [six thousand nine hundred five and six thousand  nine  hundred
   12  six  of the education] fourteen hundred five and fourteen hundred six of
   13  the general business law.
   14    § 113. Subdivisions 1, 2 and 3 of section 3700 of  the  public  health
   15  law,  as amended by chapter 210 of the laws of 1975, are amended to read
   16  as follows:
   17    1. Physician's assistant. The term  "physician's  assistant"  means  a
   18  person  who is registered as a physician's assistant pursuant to section
   19  [sixty-five hundred thirty-one of the education] eleven hundred  one  of
   20  the general business law.
   21    2.  Specialist's  assistant. The term "specialist's assistant" means a
   22  person who is registered pursuant to section [sixty-five  hundred  thir-
   23  ty-one  of the education] eleven hundred one of the general business law
   24  as a specialist's  assistant  for  a  particular  medical  specialty  as
   25  defined  by  regulations  promulgated  by  the  commissioner pursuant to
   26  section thirty-seven hundred one of this article.
   27    3. Physician. The term "physician" means a  practitioner  of  medicine
   28  licensed  to  practice medicine pursuant to [article one hundred thirty-
   29  one of the education] subarticle two of article  forty  of  the  general
   30  business law.
   31    §  114. Subdivisions 2 and 5 of section 3701 of the public health law,
   32  as amended by chapter 210 of the laws of 1975, are amended  to  read  as
   33  follows:
   34    2.  to  promulgate  regulations  establishing  such  different medical
   35  specialties for  which  specialist's  [assistant's]  assistants  may  be
   36  registered  by  the  [education] department of state pursuant to section
   37  [sixty-five hundred thirty-one of the education] eleven hundred  one  of
   38  the  general  business law as will most effectively increase the quality
   39  of medical care available in this state provided, however, that no cate-
   40  gory of specialist's assistant shall be established for areas  in  which
   41  allied  health  professions  are presently licensed under the [education
   42  law or the public health law] general business law or this chapter.
   43    5. to furnish the  [education]  department  of  state  with  suggested
   44  criteria  which may be used [by the education department] to help deter-
   45  mine whether an applicant for registration as a physician's assistant or
   46  specialist's assistant possesses equivalent education and training, such
   47  as experience as a nurse or military corpsman, which may be accepted  in
   48  lieu of all or part of an approved program;
   49    §  115. Paragraph (b) of subdivision 1 of section 4405-b of the public
   50  health law, as amended by chapter 542 of the laws of 2000, is amended to
   51  read as follows:
   52    (b) An organization shall make a report to be made to the  appropriate
   53  professional  disciplinary  agency within thirty days of obtaining know-
   54  ledge of any information that reasonably appears to show that  a  health
   55  professional is guilty of professional misconduct as defined in [article
   56  one  hundred thirty or one hundred thirty-one-A of the education] subar-
       S. 1407                            379                           A. 2107
 
    1  ticle one or two-A of the general business  law.  A  violation  of  this
    2  subdivision  shall  not be subject to the provisions of section twelve-b
    3  of this chapter.
    4    §  116.  Subdivision  2  of  section 4702 of the public health law, as
    5  amended by chapter 805 of the laws  of  1984,  is  amended  to  read  as
    6  follows:
    7    2. "Shared health facility" or "facility" means any arrangement where-
    8  in  four or more practitioners licensed under the provisions of [article
    9  one hundred thirty-one, one hundred thirty-one-a,  one  hundred  thirty-
   10  two,  one  hundred  thirty-three,  one hundred thirty-seven, one hundred
   11  thirty-nine, one hundred forty-one, one hundred forty-three, one hundred
   12  forty-four, one hundred fifty-six  or  one  hundred  fifty-nine  of  the
   13  education]  subarticle two, two-B, three, four, seven, eight, ten, elev-
   14  en, twelve, twenty-one or twenty-three of article forty of  the  general
   15  business law, one or more of whom receives payment under the program and
   16  whose  total  aggregate  monthly  remuneration  from  such program is in
   17  excess of five thousand dollars for any one month during  the  preceding
   18  twelve  months,  (a)  practice  their  professions  at a common physical
   19  location; and (b) share  (i)  common  waiting  areas,  examining  rooms,
   20  treatment  rooms  or  other  space,  or  (ii) the services of supporting
   21  staff, or (iii) equipment; and (c) a person, whether such  person  is  a
   22  practitioner  or  not,  is in charge of, controls, manages or supervises
   23  substantial aspects of the arrangement or operation for the delivery  of
   24  health  or medical services at said common physical location, other than
   25  the direct furnishing of professional services by the  practitioners  to
   26  their  patients,  or  a  person makes available to the practitioners the
   27  services of supporting staff who are not employees of the practitioners.
   28  "Shared health facility" does not mean or include practitioners practic-
   29  ing their profession as a  partnership  provided  that  members  of  the
   30  supporting  staff  are employees of such legal entity and if there is an
   31  office manager, or person with similar title, he is an employee  of  the
   32  legal  entity whose compensation is customary and not excessive for such
   33  services and there is no person  described  in  paragraph  (c)  of  this
   34  subdivision. "Shared health facility" does not mean or include any enti-
   35  ty  organized pursuant to the provisions of article twenty-eight of this
   36  chapter  or  operating  under  a  certificate  issued  pursuant  to  the
   37  provisions  of  article thirteen of the mental hygiene law; nor shall it
   38  mean or include a  facility  wherein  ambulatory  medical  services  are
   39  provided  by an organized group of physicians pursuant to an arrangement
   40  between such group and a health  services  corporation  operating  under
   41  article  forty-three of the insurance law or a health maintenance organ-
   42  ization operating under article forty-four of the public health law, and
   43  where the health services corporation or the health  maintenance  organ-
   44  ization is reimbursed on a prepaid capitation basis for the provision of
   45  health care services under New York state's medical assistance program.
   46    §  117.  Subdivision 5 of section 503 of the real property tax law, as
   47  added by chapter 472 of the laws of 1984, is amended to read as follows:
   48    5. The preparation of tax maps in accordance with  the  provisions  of
   49  this  section  shall  not be deemed to be the practice of land surveying
   50  within the meaning and intent of [article one hundred forty-five of  the
   51  education]  subarticle thirteen of article forty of the general business
   52  law. Nothing contained in this section shall be construed as prohibiting
   53  a licensed land surveyor from performing such service. The determination
   54  and furnishing of vertical and horizontal  control  when  necessary  for
   55  photogrammetric  purposes to be used in the preparation of a tax map, or
   56  any measurement function necessitating ground surveys shall be performed
       S. 1407                            380                           A. 2107
 
    1  by or under the supervision  of  a  person  licensed  to  practice  land
    2  surveying under [article one hundred forty-five of the education] subar-
    3  ticle thirteen of article forty of the general business law.
    4    § 118. Paragraph (g) of subdivision 2 and paragraph (a) of subdivision
    5  4 of section 365-a of the social services law, paragraph (g) of subdivi-
    6  sion  2  as amended by chapter 710 of the laws of 1988 and paragraph (a)
    7  of subdivision 4 as amended by chapter 77  of  the  laws  of  1977,  are
    8  amended to read as follows:
    9    (g)  sickroom  supplies,  eyeglasses, prosthetic appliances and dental
   10  prosthetic appliances furnished in accordance with  the  regulations  of
   11  the  department  of  health drugs provided on an in-patient basis, those
   12  drugs contained on the list established by regulation of the commission-
   13  er of health pursuant to subdivision four of  this  section,  and  those
   14  drugs  which  may not be dispensed without a prescription as required by
   15  section [sixty-eight hundred ten  of  the  education]  thirteen  hundred
   16  sixty  of  the general business law and which the commissioner of health
   17  shall determine to be reimbursable based upon such factors as the avail-
   18  ability of such drugs or alternatives at low  cost  if  purchased  by  a
   19  medicaid  recipient,  or the essential nature of such drugs as described
   20  by such commissioner in regulations, provided, however, that such drugs,
   21  exclusive of long-term maintenance drugs, shall be dispensed in  quanti-
   22  ties no greater than a thirty day supply or one hundred doses, whichever
   23  is  greater;  medical  assistance shall not include any drug provided on
   24  other than an in-patient basis for which a recipient  is  charged  or  a
   25  claim is made in the case of a prescription drug, in excess of the maxi-
   26  mum reimbursable amounts to be established by department of health regu-
   27  lations in accordance with standards established by the secretary of the
   28  United  States  department of health and human services, or, in the case
   29  of a drug not requiring a prescription, in excess of the  maximum  reim-
   30  bursable  amount  established  by the commissioner of health pursuant to
   31  paragraph (a) of subdivision four of this section;
   32    (a) drugs which may be dispensed without a prescription as required by
   33  section [sixty-eight hundred ten  of  the  education]  thirteen  hundred
   34  sixty  of  the  general  business law; provided, however, that the state
   35  commissioner of health may by regulation specify certain of  such  drugs
   36  which  may  be reimbursed as an item of medical assistance in accordance
   37  with the price schedule established by such commissioner;
   38    § 119. Subdivision 3 of section 365-b of the social services  law,  as
   39  added by chapter 770 of the laws of 1977, is amended to read as follows:
   40    3.  In  addition  to  any  other  duty  or responsibility which may be
   41  assigned or delegated pursuant to law or regulation,  each  professional
   42  director  shall  be  responsible  for monitoring the professional activ-
   43  ities, directly related to the program, of providers practicing  in  his
   44  social  services  district, and shall take all steps required or author-
   45  ized by law or regulation to ensure that such activities are in  compli-
   46  ance  with  the  provisions  of  this chapter, the public health law and
   47  regulations promulgated thereunder, and do not violate the provisions of
   48  section [sixty-five hundred nine of the education] nine hundred forty of
   49  the general business law or regulations promulgated pursuant thereto.
   50    § 120. Paragraph (a) of subdivision 7 and  subdivision  9  of  section
   51  367-a  of  the  social  services  law, paragraph (a) of subdivision 7 as
   52  added by chapter 554 of the laws of 1978 and subdivision 9 as amended by
   53  chapter 19 of the laws of 1998, are amended to read as follows:
   54    (a) Every  manufacturer  or  wholesaler  of  drugs,  prescriptions  or
   55  poisons  registered under the provisions of section [sixty-eight hundred
   56  eight of the education] thirteen  hundred  fifty-eight  of  the  general
       S. 1407                            381                           A. 2107
 
    1  business  law,  shall,  upon request of the department of health for any
    2  information pertaining to wholesale prices charged  to  pharmacists  for
    3  any  drugs  available  under  the  medical  assistance program, make the
    4  requested information available to the department on a monthly basis, or
    5  such other periodic basis as the department of health shall request.
    6    9.  Notwithstanding any inconsistent provision of law or regulation to
    7  the contrary, for those drugs which  may  not  be  dispensed  without  a
    8  prescription  as  required  by  section  [sixty-eight hundred ten of the
    9  education] thirteen hundred sixty of the general business  law  and  for
   10  which payment is authorized pursuant to paragraph (g) of subdivision two
   11  of section three hundred sixty-five-a of this title, payments under this
   12  title shall be made at the following amounts:
   13    (a) for drugs provided by medical practitioners and claimed separately
   14  by the practitioners, the actual cost of the drugs to the practitioners;
   15  and
   16    (b) for drugs dispensed by pharmacies:
   17    (i)  if  the drug dispensed is a multiple source prescription drug for
   18  which an upper limit has been set by the federal health  care  financing
   19  administration,  an amount equal to the specific upper limit set by such
   20  federal agency for the multiple source prescription drug, and
   21    (ii) if the drug dispensed is a multiple source prescription drug or a
   22  brand-name prescription drug for which no specific upper limit has  been
   23  set  by such federal agency, the lower of the estimated acquisition cost
   24  of such drug to pharmacies,  or  the  dispensing  pharmacy's  usual  and
   25  customary  price  charged  to  the general public. Estimated acquisition
   26  cost means the average wholesale price of a prescription drug based upon
   27  the package size dispensed from, as reported by  the  prescription  drug
   28  pricing  service  used  by the department, less ten percent thereof, and
   29  updated monthly by the department.
   30    (c) Notwithstanding subparagraph (i) of paragraph (b) of this subdivi-
   31  sion, if a qualified prescriber certifies "brand medically necessary" or
   32  "brand necessary" in his or her own handwriting directly on the face  of
   33  a  prescription  for  a  multiple source drug for which a specific upper
   34  limit of reimbursement has been established by the  federal  agency,  in
   35  addition  to writing "d a w" in the box provided for such purpose on the
   36  prescription form, payment under this title for such drug must  be  made
   37  under the provisions of subparagraph (ii) of such paragraph.
   38    (d)  In addition to the amounts paid pursuant to paragraph (b) of this
   39  subdivision to pharmacies for those drugs which  may  not  be  dispensed
   40  without  a prescription, as required by section [sixty-eight hundred ten
   41  of the education] thirteen hundred sixty of the general business law and
   42  for which payment is authorized pursuant to paragraph (g) of subdivision
   43  two of section three hundred sixty-five-a of this title, the  department
   44  shall  pay  a  pharmacy  dispensing  fee for each such prescription drug
   45  dispensed, which dispensing fee shall not be  less  than  the  following
   46  amounts:
   47    (i)  for prescription drugs categorized as generic by the prescription
   48  drug pricing service used by the  department,  four  dollars  and  fifty
   49  cents per prescription; and
   50    (ii)  for  prescription  drugs  categorized as brand-name prescription
   51  drug by the prescription drug pricing service used  by  the  department,
   52  three dollars and fifty cents per prescription.
   53    §  121.  Subdivision 9 of section 367-a of the social services law, as
   54  added by chapter 170 of the laws of 1994, is amended to read as follows:
   55    9. Notwithstanding any inconsistent provision of law or regulation  to
   56  the  contrary,  for  those  drugs  which  may not be dispensed without a
       S. 1407                            382                           A. 2107
 
    1  prescription as required by section  [sixty-eight  hundred  ten  of  the
    2  education]  thirteen  hundred  sixty of the general business law and for
    3  which payment is authorized pursuant to paragraph (g) of subdivision two
    4  of section three hundred sixty-five-a of this title, payments under this
    5  title shall be made at the following amounts:  (a) for drugs provided by
    6  medical  practitioners  and claimed separately by the practitioners, the
    7  actual cost of the drugs to the practitioners; and
    8    (b) for drugs dispensed by pharmacies:
    9    (i) if the drug dispensed is a multiple source prescription  drug  for
   10  which  an  upper limit has been set by the federal health care financing
   11  administration, an amount equal to the specific upper limit set by  such
   12  federal agency for the multiple source prescription drug, and
   13    (ii) if the drug dispensed is a multiple source prescription drug or a
   14  brand-name  prescription drug for which no specific upper limit has been
   15  set by such federal agency, the lower of the estimated acquisition  cost
   16  of  such  drug  to  pharmacies,  or  the dispensing pharmacy's usual and
   17  customary price charged to the  general  public.  Estimated  acquisition
   18  cost means the average wholesale price of a prescription drug based upon
   19  the  package  size  dispensed from, as reported by the prescription drug
   20  pricing service used by the department, less ten  percent  thereof,  and
   21  updated monthly by the department.
   22    (c) Notwithstanding subparagraph (i) of paragraph (b) of this subdivi-
   23  sion, if a qualified prescriber certifies "brand medically necessary" or
   24  "brand  necessary" in his or her own handwriting directly on the face of
   25  a prescription for a multiple source drug for  which  a  specific  upper
   26  limit  of  reimbursement  has been established by the federal agency, in
   27  addition to writing "d a w" in the box provided for such purpose on  the
   28  prescription  form,  payment under this title for such drug must be made
   29  under the provisions of subparagraph (ii) of such paragraph.
   30    (d) In addition to the amounts paid pursuant to paragraph (b) of  this
   31  subdivision  to  pharmacies  for  those drugs which may not be dispensed
   32  without a prescription, as required by section [sixty-eight hundred  ten
   33  of the education] thirteen hundred sixty of the general business law and
   34  for which payment is authorized pursuant to paragraph (g) of subdivision
   35  two  of section three hundred sixty-five-a of this title, the department
   36  shall pay a pharmacy dispensing fee  for  each  such  prescription  drug
   37  dispensed,  which  dispensing  fee  shall not be less than the following
   38  amounts:
   39    (i) for prescription drugs categorized as generic by the  prescription
   40  drug  pricing  service  used  by  the department, five dollars and fifty
   41  cents per prescription; and
   42    (ii) for prescription drugs  categorized  as  brand-name  prescription
   43  drug  by  the  prescription drug pricing service used by the department,
   44  four dollars and fifty cents per prescription.
   45    § 122. Paragraph (e) of subdivision 6 of section 384-b of  the  social
   46  services  law, as amended by chapter 691 of the laws of 1991, is amended
   47  to read as follows:
   48    (e) In every proceeding upon a ground set forth in  paragraph  (c)  of
   49  subdivision  four of this section the judge shall order the parent to be
   50  examined by, and shall take the testimony of, a  qualified  psychiatrist
   51  or  a psychologist licensed pursuant to [article one hundred fifty-three
   52  of the education] subarticle eighteen of article forty  of  the  general
   53  business  law as defined in section 730.10 of the criminal procedure law
   54  in the case of a parent alleged to be mentally  ill  or  retarded,  such
   55  psychologist  or  psychiatrist  to be appointed by the court pursuant to
   56  section thirty-five of the judiciary law. The parent and the  authorized
       S. 1407                            383                           A. 2107
 
    1  agency  shall  have the right to submit other psychiatric, psychological
    2  or medical evidence. If the parent refuses to submit to such  court-ord-
    3  ered  examination, or if the parent renders himself unavailable therefor
    4  whether  before  or  after  the  initiation  of  a proceeding under this
    5  section, by departing from the state or by concealing  himself  therein,
    6  the  appointed  psychologist  or  psychiatrist,  upon the basis of other
    7  available information, including, but not limited to,  agency,  hospital
    8  or  clinic  records,  may testify without an examination of such parent,
    9  provided that such other information affords a reasonable basis for  his
   10  opinion.
   11    §  123. Subparagraph (iv) of paragraph (a) of subdivision 5 of section
   12  1750-b of the surrogate's court procedure act, as added by  chapter  500
   13  of the laws of 2002, is amended to read as follows:
   14    (iv)  any  other  health  care  practitioner providing services to the
   15  mentally retarded person, who  is  licensed  pursuant  to  [article  one
   16  hundred  thirty-one,  one  hundred thirty-one-B, one hundred thirty-two,
   17  one hundred thirty-three, one hundred thirty-six,  one  hundred  thirty-
   18  nine,  one  hundred  forty-one,  one  hundred  forty-three,  one hundred
   19  forty-four, one hundred fifty-three, one hundred fifty-four, one hundred
   20  fifty-six, one hundred fifty-nine  or  one  hundred  sixty-four  of  the
   21  education]  subarticle two, two-B, three, four, six, eight, ten, eleven,
   22  twelve, eighteen, nineteen, twenty-one, twenty-three, or twenty-eight of
   23  article forty of the general business law; or
   24    § 124. Paragraph 7 of subdivision (c) of section 1105 of the tax  law,
   25  as  added  by  chapter  190  of  the laws of 1990, is amended to read as
   26  follows:
   27    (7) Interior decorating and designing services,  (whether  or  not  in
   28  conjunction  with the sale of tangible personal property), by whomsoever
   29  performed, including interior decorators and  designers,  architects  or
   30  engineers;  notwithstanding  the  foregoing,  such  services  shall  not
   31  include services which consist  of  the  practice  of  architecture,  as
   32  defined  in  section [seventy-three hundred one of the education] seven-
   33  teen hundred one of the general business law, or the practice  of  engi-
   34  neering,  as  defined  in section [seventy-two hundred one of the educa-
   35  tion] sixteen hundred fifty-one of the  general  business  law,  if  the
   36  services  are  performed by an architect or engineer having a license or
   37  permit under the [education] general business law.
   38    § 125. Subdivision 2 of section 202-b of the town law, as  amended  by
   39  chapter 511 of the laws of 1989, is amended to read as follows:
   40    2. The town board may, on behalf of a park, public parking, ambulance,
   41  lighting, snow removal, refuse and garbage, public dock or beach erosion
   42  control  district,  and  within  the  limitations of section one hundred
   43  ninety-eight of this chapter, acquire additional apparatus and equipment
   44  and replace obsolete, inadequate, damaged, destroyed or worn-out appara-
   45  tus and equipment,  and  it  may  construct  additional  facilities  and
   46  appurtenances  thereto  or  reconstruct or replace obsolete, inadequate,
   47  damaged, destroyed or worn-out  facilities  and  appurtenances  thereto.
   48  Such  expenditure shall be authorized in the manner provided in subdivi-
   49  sion one hereof, except that the map and plan described by said subdivi-
   50  sion one shall not be required. However, nothing herein contained  shall
   51  be  construed  to limit or supersede the provisions of section [seventy-
   52  two hundred three of the education] sixteen hundred fifty-three  of  the
   53  general business law.
   54    §  126. Subdivision 1 of section 509-g of the vehicle and traffic law,
   55  as amended by chapter 600 of the laws of 2002, is  amended  to  read  as
   56  follows:
       S. 1407                            384                           A. 2107
 
    1    1.  A  biennial examination pursuant to regulations established by the
    2  commissioner, by a physician or  a  nurse  practitioner  to  the  extent
    3  authorized  by  law  and  consistent with the written practice agreement
    4  pursuant to subdivision three of section [six thousand nine hundred  two
    5  of  the  education] fourteen hundred two of the general business law who
    6  is not the personal physician  or  nurse  practitioner  of  the  driver.
    7  Included  shall  be  a  requirement to conduct a vision test pursuant to
    8  regulations issued by the commissioner.
    9    § 127. Subparagraphs (iii) and (iv) of paragraph (d) of subdivision 3,
   10  and subparagraphs (iii) and (iv) of paragraph (d) of  subdivision  4  of
   11  section  13-c  of  the  workers' compensation law, subparagraph (iii) of
   12  paragraph (d) of subdivision 3 as added by chapter 803 of  the  laws  of
   13  1983,  subparagraph  (iv)  of paragraph (d) of subdivision 3 as added by
   14  chapter 649 of the laws of 1985, and subparagraphs  (iii)  and  (iv)  of
   15  paragraph  (d)  of  subdivision 4 as added by chapter 362 of the laws of
   16  1986, are amended to read as follows:
   17    (iii) When physical therapy care is required it shall be rendered by a
   18  duly licensed physical therapist upon the referral which may  be  direc-
   19  tive as to treatment of an authorized physician or podiatrist within the
   20  scope  of  such physical therapist's specialized training and qualifica-
   21  tions as defined in [article one hundred thirty-six  of  the  education]
   22  subarticle  six of article forty of the general business law. Reports of
   23  such treatment and records of instruction for treatment, if  any,  shall
   24  be  maintained  by the physical therapist and referring professional and
   25  submitted to the chairman on such forms and at such times as the  chair-
   26  man may require.
   27    (iv)  When  occupational therapy care is required it shall be rendered
   28  by a duly  licensed  and  registered  occupational  therapist  upon  the
   29  prescription  or referral of an authorized physician within the scope of
   30  such occupational therapist's specialized training and qualifications as
   31  defined in [article one hundred fifty-six of the  education]  subarticle
   32  twenty-one of article forty of the general business law. Reports of such
   33  treatment  and  records  of  instruction for treatment, if any, shall be
   34  maintained by the occupational therapist and referring professional  and
   35  submitted  to the chairman on such forms and at such times as the chair-
   36  man may require.
   37    (iii) When physical therapy care is required it shall be rendered by a
   38  duly licensed physical therapist upon the referral which may  be  direc-
   39  tive as to treatment of an authorized physician or podiatrist within the
   40  scope  of  such physical therapist's specialized training and qualifica-
   41  tions as defined in [article one hundred thirty-six  of  the  education]
   42  subarticle six of article forty of the general business law.  Reports of
   43  such  treatment  and records of instruction for treatment, if any, shall
   44  be maintained by the physical therapist and referring  professional  and
   45  submitted  to  the  chairman [of] on such forms and at such times as the
   46  chairman may require.
   47    (iv) When occupational therapy care is required it shall  be  rendered
   48  by  a  duly  licensed  and  registered  occupational  therapist upon the
   49  prescription or referral of an authorized physician within the scope  of
   50  such occupational therapist's specialized training and qualifications as
   51  defined  in  [article one hundred fifty-six of the education] subarticle
   52  twenty-one of article forty of the general business law. Reports of such
   53  treatment and records of instruction for treatment,  if  any,  shall  be
   54  maintained  by the occupational therapist and referring professional and
   55  submitted to the chairman on such forms and at such times as the  chair-
   56  man may require.
       S. 1407                            385                           A. 2107
 
    1    Reports of such treatment and supervision shall be made by such physi-
    2  cian to the chairman on such forms and at such times as the chairman may
    3  require.
    4    § 128. Subdivision 2 of section 13-l of the workers' compensation law,
    5  as  added  by  chapter  473  of  the laws of 2000, is amended to read as
    6  follows:
    7    2. An employee injured under  circumstances  which  make  such  injury
    8  compensable  under  this  article,  when  care is required for an injury
    9  which consists solely of a condition which may lawfully be treated by  a
   10  chiropractor  as defined in section [sixty-five hundred fifty-one of the
   11  education] eleven hundred fifty-one of  the  general  business  law  may
   12  select  to treat him or her, any duly registered and licensed chiroprac-
   13  tor of the state of New York, authorized by the chair to render  chirop-
   14  ractic  care  as hereinafter provided. If the injury or condition is one
   15  which is outside the limits prescribed by the [education] general  busi-
   16  ness law for chiropractic care and treatment, the said chiropractor must
   17  so advise the said injured employee and instruct him or her to consult a
   18  physician  of said employee's choice for appropriate care and treatment.
   19  Such physician shall thenceforth have supervision of  the  treatment  of
   20  said  condition including the future treatment to be administered to the
   21  patient by the chiropractor. A chiropractor licensed and  registered  to
   22  practice chiropractic in the state of New York, who is desirous of being
   23  authorized  to  render  chiropractic  care  under this section and/or to
   24  conduct independent medical examinations in  accordance  with  paragraph
   25  (b)  of  subdivision three of this section shall file an application for
   26  authorization under this section with the chiropractic practice  commit-
   27  tee.  In  such  application he or she shall agree to refrain from subse-
   28  quently treating for remuneration, as  a  private  patient,  any  person
   29  seeking  chiropractic treatment, or submitting to an independent medical
   30  examination, in connection with, or as a result of, any injury compensa-
   31  ble under this chapter, if he or she has been removed from the  list  of
   32  chiropractors authorized to render chiropractic care or to conduct inde-
   33  pendent  medical examinations under this chapter, or if the person seek-
   34  ing such treatment has been transferred from his or her care in  accord-
   35  ance  with  the  provisions of this section. This agreement shall run to
   36  the benefit of the injured person so treated, or examined, and shall  be
   37  available  to him or her as a defense in any action by such chiropractor
   38  for payment rendered by a chiropractor after he or she has been  removed
   39  from the list of chiropractors authorized to render chiropractic care or
   40  to conduct independent medical examinations under this section, or after
   41  the  injured  person  was transferred from his or her care in accordance
   42  with the provisions of this section. The chiropractic practice committee
   43  if it deems such licensed chiropractor duly qualified shall recommend to
   44  the chair that such be authorized to render chiropractic care and/or  to
   45  conduct independent medical examinations under this section. Such recom-
   46  mendations  shall be advisory to the chair only and shall not be binding
   47  or conclusive upon him or her. The chair shall prepare and  establish  a
   48  schedule  for  the  state, or schedules limited to defined localities of
   49  charges and fees for chiropractic treatment and care, to  be  determined
   50  in accordance with and to be subject to change pursuant to rules promul-
   51  gated  by  the  chair.   Before preparing such schedule for the state or
   52  schedules for limited localities the chair shall request the  chiroprac-
   53  tic practice committee to submit to him or her a report on the amount of
   54  remuneration  deemed  by  such committee to be fair and adequate for the
   55  types of chiropractic care  to  be  rendered  under  this  chapter,  but
   56  consideration  shall  be  given to the view of other interested parties,
       S. 1407                            386                           A. 2107
 
    1  the amounts payable by the employer  for  such  treatment  and  services
    2  shall be the fees and charges established by such schedule.
    3    §  129.  Paragraph  (a)  of subdivision 2, and subdivisions 5 and 8 of
    4  section 13-m of the workers' compensation law, as added by  chapter  589
    5  of the laws of 1989, are amended to read as follows:
    6    (a)  An  injured employee, injured under circumstances which make such
    7  injury compensable under this article, may lawfully be treated, upon the
    8  referral of an authorized physician, by a psychologist, duly  registered
    9  and  licensed  by  the  state of New York, authorized by the chairman to
   10  render psychological care pursuant to this section. Such services  shall
   11  be  within  the  scope  of  such psychologist's specialized training and
   12  qualifications as defined in [article one  hundred  fifty-three  of  the
   13  education]  subarticle eighteen of article forty of the general business
   14  law.
   15    5. Fees for psychological services shall be payable  only  to  a  duly
   16  authorized  psychologist as licensed in [article one hundred fifty-three
   17  of the education] subarticle eighteen of article forty  of  the  general
   18  business  law,  or to the agent, executor or administrator of the estate
   19  of such psychologist. No psychologist rendering treatment to  a  compen-
   20  sation claimant shall collect or receive a fee from such claimant within
   21  this  state,  but  shall  have recourse for payment of services rendered
   22  only to the employer under the provisions of this section.
   23    8. Within the limits prescribed by the  [education]  general  business
   24  law  for psychological care and treatment, the report or testimony of an
   25  authorized psychologist concerning the condition of an injured  employee
   26  and treatment thereof shall be deemed competent evidence and the profes-
   27  sional  opinion  of  the  psychologist  as  to causal relation and as to
   28  required treatment shall be deemed competent but shall not  be  control-
   29  ling. Nothing in this section shall be deemed to deprive any employer or
   30  insurance  carrier of any right to a medical examination or presentation
   31  of medical testimony now conferred by law.
   32    § 130. This act shall  take  effect  immediately;  provided,  however,
   33  that:
   34    (a)  sections  one  through three, thirteen through seventeen, twenty-
   35  five through twenty-seven, twenty-nine through fifty-seven,  fifty-nine,
   36  sixty-one, sixty-two, sixty-four, sixty-five, sixty-seven through seven-
   37  ty,  seventy-four,  seventy-eight, eighty-two through eighty-six, ninety
   38  through one hundred twenty,  and  one  hundred  twenty-two  through  one
   39  hundred thirty of this act shall take effect on October 1, 2003;
   40    (b)  sections  eighteen  through  twenty-four  of  this act shall take
   41  effect immediately and be deemed to have been in full force  and  effect
   42  on and after April 1, 2003;
   43    (c)  paragraph  a of subdivision 3 of section 921 of the general busi-
   44  ness law, as added by section three of this act,  shall  expire  and  be
   45  deemed repealed on January 1, 2005;
   46    (d)  paragraph  a of subdivision 3 of section 921 of the general busi-
   47  ness law, as added by section four of this act,  shall  take  effect  on
   48  January 1, 2005;
   49    (e)  subdivisions 3 and 4 of section 1204 of the general business law,
   50  as added by section three of  this  act,  shall  expire  and  be  deemed
   51  repealed on January 1, 2006;
   52    (f)  subdivisions 3 and 4 of section 1204 of the general business law,
   53  as added by section five of this act, shall take effect  on  January  1,
   54  2006;
       S. 1407                            387                           A. 2107
 
    1    (g)  subdivision  6  of  section  1254 of the general business law, as
    2  added by section three of this act, shall expire and be deemed  repealed
    3  on December 31, 2003;
    4    (h)  subdivision  6  of  section  1254 of the general business law, as
    5  added by section six of this act, shall  take  effect  on  December  31,
    6  2003;
    7    (i)  subdivision  5  of  section  1261 of the general business law, as
    8  added by section three of this act, shall expire and be deemed  repealed
    9  on December 31, 2003;
   10    (j)  subdivision  5  of  section  1261 of the general business law, as
   11  added by section seven of this act, shall take effect  on  December  31,
   12  2003;
   13    (k)  subdivision  c  of  section  1308 of the general business law, as
   14  added by section three of this act, shall expire and be deemed  repealed
   15  on June 30, 2006;
   16    (k-1)  subdivision  d  of section 1308 of the general business law, as
   17  added by section three of this act, shall expire and be deemed  repealed
   18  June 30, 2005;
   19    (l)  subdivision  5  of  section  1409 of the general business law, as
   20  added by section eight of this act, shall  take  effect  on  January  1,
   21  2005;
   22    (m) section 1662 of the general business law, as added by section nine
   23  of  this  act, shall take effect on January 1, 2004 and shall expire and
   24  be deemed repealed on June 30, 2014;
   25    (n) section 1663 of the general business law, as added by section  ten
   26  of this act, shall take effect on January 1, 2004;
   27    (o)  subarticle 19 of article 40 of the general business law, as added
   28  by section three of this act, shall expire and  be  deemed  repealed  on
   29  September 1, 2004;
   30    (p)  subarticle 19 of article 40 of the general business law, as added
   31  by section eleven of this act, shall take effect on September  1,  2004;
   32  and
   33    (q)  subarticle 27 of article 40 of the general business law, as added
   34  by section twelve of this act, shall take effect on January 1, 2005.
   35    (r) section twenty-eight of this act shall take  effect  on  the  same
   36  date as section 12 of chapter 676 of the laws of 2002, takes effect;
   37    (s)  sections  fifty-eight  and sixty of this act shall take effect on
   38  the same date as section 6 of chapter 420 of the  laws  of  2002,  takes
   39  effect,  when  upon such date the provisions of sections fifty-seven and
   40  fifty-nine of this act shall expire and be deemed repealed;
   41    (t) sections sixty-three and sixty-six of this act shall  take  effect
   42  on  the same date as section 7 of chapter 420 of the laws of 2002, takes
   43  effect, when upon such date the provisions  of  sections  sixty-two  and
   44  sixty-five of this act shall expire and be deemed repealed;
   45    (u) the amendments to paragraph (a) of subdivision 3 of section 260 of
   46  the  public health law made by section one hundred two of this act shall
   47  not affect the expiration of such section and shall expire and be deemed
   48  repealed therewith;
   49    (v) the amendments to subdivision 9 of section  367-a  of  the  social
   50  services  law,  made  by section one hundred twenty of this act shall be
   51  subject to the expiration and reversion of such subdivision pursuant  to
   52  chapter  18  of  the  laws  of 1998, as amended, when upon such date the
   53  provisions of section one hundred twenty-one  of  this  act  shall  take
   54  effect;
   55    (w)  in  the event chapter 420 of the laws of 2002 takes effect before
   56  chapter 676 of the laws of 2002, section seventy-one of this  act  shall
       S. 1407                            388                           A. 2107
 
    1  take  effect on the same date as section 3 of chapter 420 of the laws of
    2  2002 as amended, when upon such date sections seventy and seventy-two of
    3  this act shall expire and be deemed repealed, and provided further, that
    4  in the event chapter 676 of the laws of 2002 takes effect before chapter
    5  420 of the laws of 2002, then section seventy-two of this act shall take
    6  effect on the same date as section 14 of chapter 676 of the laws of 2002
    7  when  upon  such date sections seventy and seventy-one of this act shall
    8  expire and be deemed repealed, and provided further, that section seven-
    9  ty-three of this act shall take effect on the same date as section 3  of
   10  chapter  420  or  section  14  of chapter 676 of the laws of 2002, takes
   11  effect, whichever date is later when upon such  date  sections  seventy,
   12  seventy-one,  and  seventy-two  of  this  act shall expire and be deemed
   13  repealed;
   14    (x) in the event chapter 420 of the laws of 2002 takes  effect  before
   15  chapter  676 of the laws of 2002, section seventy-five of this act shall
   16  take effect on the same date as section 3 of chapter 420 of the laws  of
   17  2002,  as  amended, when upon such date sections seventy-four and seven-
   18  ty-six of this act shall expire and be  deemed  repealed,  and  provided
   19  further,  that in the event chapter 676 of the laws of 2002 takes effect
   20  before chapter 420 of the laws of 2002, then section seventy-six of this
   21  act shall take effect on the same date as section 14 of chapter  676  of
   22  the  laws of 2002 when upon such date sections seventy-four and seventy-
   23  five of this act shall expire  and  be  deemed  repealed,  and  provided
   24  further, that section seventy-seven of this act shall take effect on the
   25  same  date  as  section 3 of chapter 420 or section 14 of chapter 676 of
   26  the laws of 2002, takes effect, whichever date is later when  upon  such
   27  date  sections  seventy-four,  seventy-five, and seventy-six of this act
   28  shall expire and be deemed repealed;
   29    (y) in the event chapter 420 of the laws of 2002 takes  effect  before
   30  chapter  676 of the laws of 2002, section seventy-nine of this act shall
   31  take effect on the same date as section 3 of chapter 420 of the laws  of
   32  2002,  as  amended, when upon such date section seventy-eight and eighty
   33  of this act shall expire and be deemed repealed, and  provided  further,
   34  that  in  the  event chapter 676 of the laws of 2002 takes effect before
   35  chapter 420 of the laws of 2002, then section eighty of this  act  shall
   36  take effect on the same date as section 14 of chapter 676 of the laws of
   37  2002  when  upon such date section seventy-nine of this act shall expire
   38  and be deemed repealed, and provided further, that section eighty-one of
   39  this act shall take effect on the same date as section 3 of chapter  420
   40  or section 14 of chapter 676 of the laws of 2002, takes effect, whichev-
   41  er  date  is  later when upon such date sections seventy-eight, seventy-
   42  nine, and eighty of this act shall expire and be deemed repealed;
   43    (z) in the event chapter 420 of the laws of 2002 takes  effect  before
   44  chapter  676 of the laws of 2002, section eighty-seven of this act shall
   45  take effect on the same date as section 3 of chapter 420 of the laws  of
   46  2002,  as  amended,  when upon such date sections eighty-six and eighty-
   47  eight of this act shall expire and  be  deemed  repealed,  and  provided
   48  further,  that in the event chapter 676 of the laws of 2002 takes effect
   49  before chapter 420 of the laws of 2002,  then  section  eighty-eight  of
   50  this act shall take effect on the same date as section 14 of chapter 676
   51  of the laws of 2002 when upon such date section eighty-seven of this act
   52  shall  expire and be deemed repealed, and provided further, that section
   53  eighty-nine of this act shall take effect on the same date as section  3
   54  of  chapter  420 or section 14 of chapter 676 of the laws of 2002, takes
   55  effect, whichever date is later when upon such date sections eighty-six,
       S. 1407                            389                           A. 2107
 
    1  eighty-seven, and eighty-eight of this act shall expire  and  be  deemed
    2  repealed; and
    3    (aa) section ninety-one of this act shall take effect on the same date
    4  as  section  17  of  chapter 676 of the laws of 2002, takes effect, when
    5  upon such date the provisions of section ninety of this act shall expire
    6  and be deemed repealed.
    7    § 2. Severability clause. If any clause, sentence, paragraph, subdivi-
    8  sion, section or part of this act shall be  adjudged  by  any  court  of
    9  competent  jurisdiction  to  be invalid, such judgment shall not affect,
   10  impair, or invalidate the remainder thereof, but shall  be  confined  in
   11  its  operation  to the clause, sentence, paragraph, subdivision, section
   12  or part thereof directly involved in the controversy in which such judg-
   13  ment shall have been rendered. It is hereby declared to be the intent of
   14  the legislature that this act would  have  been  enacted  even  if  such
   15  invalid provisions had not been included herein.
   16    §  3.  This  act shall take effect immediately provided, however, that
   17  the applicable effective date of Parts A through T of this act shall  be
   18  as specifically set forth in the last section of such Parts.