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5004. Private school agent's certificate. |
| 1. |
a. |
No party may, for a
consideration or remuneration procure, solicit or enroll any student for
instruction in or given by any school within or without the state of New
York, unless |
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(i) |
the party is a salaried
employee of the school and |
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(ii) |
the party shall have secured a
private school agent's certificate from the department pursuant to
regulations of the commissioner. |
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b. |
Upon submission of
a complete new application for licensure, an applicant may procure, solicit
or enroll any student for instruction; provided, however, that such
applicant be in possession at all times during the procurement, solicitation
or enrollment processes of a temporary approval certificate which the
commissioner shall issue within five days of receipt by mail or on the same
day at designated offices. A school shall submit such application for
licensure on or before the first day of employment of such individual.
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c. |
No consideration or
remuneration shall be paid in the form of a fee per student enrolled by a
private school agent except pursuant to the following limitations: |
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(1) |
a school may pay twenty-five
percent of the consideration or remuneration after the student has completed
three weeks of the program; |
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(2) |
a school may pay the remainder
of the consideration or remuneration after the student has completed eight
weeks of the program; |
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(3) |
the total amount of the
consideration or remuneration paid per student may not exceed one percent of
the annual salary paid to the agent. |
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d. |
In promulgating
regulations in relation to the issuance of such certificates and the conduct
of the holders of such certificates, the commissioner shall give
consideration to: |
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(1) |
good moral character of the
candidate for such certificate; |
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(2) |
the use of ethical and fair
practices in the presentation of the school's offerings; and |
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(3) |
whether the prospective agent
has within five years of the date of the application violated any provision
of this article or the regulations of the commissioner adopted pursuant to
this article. |
| 2. |
Instruction, as
contemplated by this section, shall be any plan or method for teaching any
subject or subjects in any form or manner, including correspondence or home
study. |
| 3. |
Exempted from the
requirements of this section are persons acting solely for schools which are
not required to be licensed or are specifically exempted from the licensing
or registration requirements of this article. Persons who are paid to
procure, solicit or enroll students on the premises of schools required to
be licensed or registered shall not be exempt from the provisions of this
section. The certification requirements of this section shall not apply to
persons receiving gifts or other non-monetary considerations valued at not
more than twenty-five dollars from a school from which they have graduated
or are currently enrolled for each student referred for enrollment at the
school. |
| 4. |
Application and
renewal application for a private school agent's certificate shall be filed
on forms to be prescribed and provided by the commissioner. Said certificate
shall be valid for two years from the date of issuance. Certificates which
have been renewed shall be valid for a period of two years from the
expiration date of the certificate which has been renewed. Every applicant
and renewal applicant shall pay to the department a fee of one hundred
dollars. |
| 5. |
No recovery shall
be had against any student or enrollee and full recovery shall be made on
any contract for or in connection with any instruction if the student or
enrollee was procured, solicited or enrolled outside or on th~ school
premises by a person paid to procure, solicit or enroll students but not
having a valid private school agent's certificate pursuant to the provisions
of this section at the time that the contract was negotiated or executed or
the sale of the instruction was made, or by a person who holds such a
certificate but has made fraudulent or improper claims. Each enrollment
agreement shall include, where applicable the name of the agent responsible
for procuring, soliciting or enrolling the student or enrollee. |
| 6. |
The issuance of
such a private school agent's certificate shall not be deemed to constitute
approval of any course or of the person or institution offering, conducting
or administering the same. |
| 7. |
The
commissioner, after giving to the certificate holder due notice and
opportunity to be heard, may fine a private school agent, suspend or revoke
a private school agent's certificate at any time for failure to comply with
the provisions of the law or the regulations of the commissioner or for any
other good cause. |
| 8. |
No employer of a
private school agent other than a school may indemnify, save harmless or
otherwise reimburse any agent for the amount of any fines imposed pursuant
to this section. If a person fined pursuant to this section can demonstrate
to the satisfaction of the commissioner that the action for which the fine
was imposed was undertaken pursuant to explicit instructions from the
employer, the employer shall indemnify, Save harmless, and reimburse that
person for the fine and shall pay to the commissioner an additional fine of
an equal amount. |
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| §
5005. Disclosure to students. |
| The school shall
disseminate to all prospective and enrolled students through an enrollment
contract or agreement or other appropriate publications or documents, and in
appropriate languages as required by the commissioner in regulation:
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a. |
information
concerning the school, including but not limited to: |
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(1) |
a description of the courses
offered; |
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(2) |
program objectives and the
length of the program; |
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(2) |
a schedule of tuition payments,
fees and all other charges and expenses necessary for completion of the
course or program; |
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(4) |
the tuition refund and contract
cancellation policies; |
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(5) |
a description of the faculty
and other instructional personnel and their qualifications; |
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(6) |
the names of associates,
agencies or governmental bodies which accredit, approve or license the
school; |
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(7) |
a description of any special
facilities and services available to handicapped students; and |
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(8) |
any other items identified by
the commissioner in regulation following consultation with the advisory
council; |
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b. |
if the school
advertises job placement rates as means of attracting students to enroll in
the school, the most recent available data on employment and graduation
statistics for students who have attended that school; |
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c. |
information
concerning any student financial assistance, including a description of the
procedures and forms, student eligibility requirements and the rights and
responsibilities of students receiving financial aid; |
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d. |
the pass rate of
graduates of the program for the most recent calendar year on any licensure
or certification examination required by the state for employment in the
particular vocational, trade, or career field; |
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e. |
the process for
obtaining a tuition refund from the tuition reimbursement fund and the
availability of loan forgiveness in the event the school closes while the
student is in attendance; |
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f. |
a sample enrollment
contract, a sample cancellation form developed by the department in
consultation with the advisory council and a tuition reimbursement fund
claim form; and |
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g. |
a description of
the complaint procedures established pursuant to this article. |
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126.12 Private school agent's certificate. |
| (a) |
No person shall
receive any form of compensation or remuneration from any representative,
agent, employee or officer of a licensed private school or registered
business school/computer training facility for the purpose of soliciting,
procuring, or enrolling students, unless such person is a salaried employee
of the school and holds a valid private school agent's certificate. Each
agent shall produce his or her agent certificate upon the request of the
commissioner, the commissioner's designee, or any prospective student. A
school shall submit an application for licensure for an agent on or before
the first day of employment of such individual. Upon submission of a
complete initial agent application for licensure, the commissioner shall
issue a temporary approval certificate within five days of receipt of the
application by mail, or on the same day at offices and times designated by
the commissioner. Upon receipt of a temporary approval certificate, an
applicant may procure, solicit or enroll any student. A temporary approval
certificate shall be effective for up to 60 days, as determined by the
commissioner, and shall be destroyed by the school upon the issuance or
denial of the applicant's two-year certificate in initial agent application
shall mean an application submitted on behalf of an individual having never
held an agent's certificate for the submitting school. |
| (b) |
Application for a
certificate shall be made on forms furnished by the commissioner. It may be
made only by the school or schools which the agent is to represent. If an
agent represents more than one school, each school must apply for a
certificate. If the school employs more than one agent, a separate
application must be filed for each agent. The application shall request such
information as the commissioner may require, including information about
whether the applicant has ever been convicted of a crime or whether criminal
charges are now pending. The application must be accompanied by: two
full-face photographs which are a good likeness of the applicant and are one
inch by one inch in dimension; certification by two persons other than
employers or coworkers attesting to the good moral character of the
applicant; and a nonrefundable $100 check or money order payable to the
Education Department. In making application for an agent's certificate, the
school shall certify that through the medium of sales manuals, bulletins or
other similar means, the agent is fully informed as to its courses,
services, charges, enrollment conditions and operating policies, including
the refund policy. The school must further certify that it assumes full
responsibility for the actions, statements and conduct of its agent, acting
in its behalf, and that it uses an acceptable plan for the selection,
training and supervision of the agent. |
| (c) |
Application for the
renewal of an agent's certificate shall be filed by mail no later than 30
days before the expiration of the current certificate at an office
designated by the commissioner. A renewal application shall mean an
application' submitted prior to the expiration date of the current
certificate. All other applications shall be filed as new applications.
Certificates which have been renewed shall be valid for a period of two
years from the expiration date of the certificate which has been renewed. It
shall be accompanied by a nonrefundable $100 check or money order payable to
the Education Department. |
| (d) |
In the event of the
dismissal or resignation of an agent, the school shall notify the
commissioner in writing within 10 days thereof. The agent's certificate
shall be returned with such notification. |
| (e) |
Agents shall not
identify themselves or be identified as counselors or by other titles which
mislead or tend to mislead the prospective student. |
| (f) |
No school may
procure, solicit: or enroll students unless at least one salaried employee
of the school is in receipt of an agent's certificate pursuant to this
section. |
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126.14 Disciplinary actions and penalties. |
| (a) |
Disciplinary action
against schools. In determining the penalty to be imposed upon a finding
that disciplinary action against a school is warranted, in accordance with
the provisions of Education Law, section 5003, the commissioner shall take
into account the effect of the conduct which formed the basis for the
disciplinary proceeding upon the students attending the school, the general
public and any other affected individual or group. Prior to initiating
action against schools during the initial two year licensing period, the
commissioner shall take into consideration the factors as set forth under
section 5003(l)(d) of the Education Law. |
| (b) |
Disciplinary
actions against private school agents. |
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(i) |
The commissioner,
after affording a certified private school agent notice and an opportunity
to be heard, may fine such agent, or suspend or revoke such agent's
certificate at any time for failure to comply with the requirements of the
Education Law or of this Part or for any other good cause. |
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(2) |
Revocation or
suspension of a private school agent's certificate. Where the commissioner
seeks to revoke or suspend a private school agent's certificate, the
certificate holder shall be given reasonable notice of the nature of the
proceeding and a statement sufficiently particular to give notice of the
transactions and occurrences involved and the material elements of each
cause of action against the certificate holder. The certificate holder shall
also be given notice of an opportunity for a hearing in accordance with
subparagraph (i) of this paragraph. |
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(i) |
If a hearing is requested, the
certificate holder shall be given reasonable notice of the time, place and
nature of the hearing. The certificate holder may appear in person or may be
represented at the hearing by an attorney, may respond and present evidence
and argument on the issues involved, and may cross-examine witnesses. The
hearing, at which a verbatim record shall be taken, shall be held before a
hearing officer designated by the commissioner, who shall have the powers of
a presiding officer in accordance with section 304 of the State
Administrative Procedure Act. The strict rules of evidence shall not apply
to such hearings, but the decision of the hearing officer shall be supported
by substantial evidence in the record. Disposition may be made in any
hearing by stipulation, agreed settlement, consent order, default or other
informal method. The decision of the hearing officer shall be delivered or
mailed forthwith to the certificate holder and to his or her attorney of
record. |
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(ii) |
If a hearing is not requested,
the commissioner shall issue a determination based upon the evidence
submitted in support of the charges and any additional evidence submitted by
the certificate holder. |
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(3) |
Fines. Where the
commissioner seeks to impose a fine on a certified private school agent for
misconduct not warranting a more severe disciplinary penalty, the department
shall serve notice of the charges upon the certificate holder either by
personal service or certified mail. Such notice shall specify the basis for
the charges with sufficient particularity to apprise the certificate holder:
of the nature of the incidents or transactions leading to the charges, and
shall contain a statement that unless an answer to the charges is received
by the department within 20 days after personal service of the notice or
within 25 days after service by certified mail, the charges will be deemed
to be true and a fine will be imposed. The certificate holder may answer the
charges and may submit evidence in written form, including affidavits, in
support of such answer, if the commissioner finds that the charges of
misconduct are supported by substantial evidence, the commissioner shall
impose an appropriate fine and shall notify the certificate holder of such
determination by mail. Failure to pay such a fine within four months after
receipt of such notice shall constitute good cause for suspension or
revocation of a private school agent's certificate. |
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(4) |
Indemnification. No
employer of a private school agent other than a school may indemnify or
otherwise reimburse an agent for fines imposed on the agent pursuant to this
subdivision and Education Law, section 5004(7). If the agent demonstrates,
to the satisfaction of the commissioner, that the action for which the agent
was fined was undertaken because of explicit instructions from the school
owner, director, or other school administrator, the commissioner shall take
appropriate disciplinary action against the school in accordance with
Education Law, section 5003, to require the school to indemnify or reimburse
the agent the amount of the fine and pay to the commissioner 5111 additional
fine of an equal amount. |
| (c) |
Pursuant to section
5001(9) of the Education Law, any annual assessment fees submitted by the
schools to the department after the due date shall be subject to an interest
penalty. The commissioner shall calculate the amount of the interest penalty
as follows: |
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(1) |
For payments
received within the first 30 days after the due date the interest penalty
shall be the product of the amount due multiplied by one twelfth of the sum
of one plus the prevailing prime rate of interest on the due date as
determined by the commissioner. |
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(2) |
For payments
received more than 30 days after the due date the interest penalty shall be
compounded daily for each day the payment is late at a rate of interest
equal to the sum of one plus the prevailing prime rate of interest on the
due date as determined by the commissioner. |
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(3) |
Interest penalties
not paid within 5 days of notification of the amount of the penalty shall be
increased in accordance with the method used by the commissioner to compute
the interest penalty in the first instance. |
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126.15 Disclosure to students. |
| For all prospective
or enrolled students, schools shall provide the following information:
|
| (1) |
all items required
pursuant to section 5005 of the Education Law; |
| (2) |
pursuant to section
5005 of the Education Law, the materials required to be disseminated to all
prospective or enrolled students shall be written in the language
principally used in the sales presentation, the language of instruction as
approved by the commissioner and English; and |
| (3) |
a statement,
approved by the commissioner, which indicates that a student should review
the approved school catalog to determine factual information about the
school. |
