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THE STATE
EDUCATION DEPARTMENT / THE UNIVERSITY
OF THE STATE OF NEW YORK / ALBANY, NY 12234 |
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TO: |
The Honorable the Members of the Board of Regents |
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FROM: |
Johanna Duncan-Poitier |
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COMMITTEE: |
Higher Education and Professional Practice |
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TITLE OF
ITEM: |
Update: Implementation of the New Illegal Practice Law |
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DATE OF
SUBMISSION: |
February 27, 2004 |
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PROPOSED
HANDLING: |
Discussion |
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RATIONALE FOR
ITEM: |
To inform the Board of Regents |
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STRATEGIC
GOAL: |
Goal 3 |
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AUTHORIZATION(S): |
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SUMMARY:
Chapter 615 of the Laws of 2003 gives the
State Education Department (SED) new authority to civilly prosecute cases of
illegal practice in the 44 health, business, and design professions licensed by
the Board of Regents and SED. An
overview of the new law was presented to the Regents in December 2003. This report provides an update on work
under way to implement the new law and describes the potential impact of the law
on professional practice in New York State and on the work of the Office of the
Professions (OP).
The Board of
Regents and the State Education Department have been historically committed to
addressing illegal practice of the professions. Illegal practice was identified as an OP
“Horizon Issue” in 1999. Since
then, we have implemented creative strategies to stop unauthorized practice and
educate the public about the importance of obtaining
professional services from practitioners who have met the qualifications for a
New York State license. In
2000, we strengthened our long-standing partnership with the Attorney General’s
Office, and have subsequently encouraged reforms necessary to ensure public
protection and preserve the integrity of the licensed professions. This
new law is an important tool to complete the circle of the Regents regulation of
the professions, which begins with the assurance of competence of licensed
professionals via oversight of professional education and licensure, maintains
safe practice through practice oversight and professional discipline, and now
protects the public from the dangers of unlicensed, untrained individuals
performing services that should only be performed by licensed
professionals.
As with all new developments and changes in professional regulation, it is critical that this law be implemented thoughtfully and effectively. This can only be accomplished with the necessary resources to implement the law, continued support from our partners, and a commitment to resolving open implementation issues (e.g., how egregious behavior is defined, etc.). Department staff and the Board of Regents are working with key legislators, Governor’s office staff, leaders in the professional community, and other stakeholders to secure necessary resources to implement the law. The professional community is discussing its support of a $10 surcharge on licensees’ registration fees to cover the costs of OP’s responsibility, with the understanding that the surcharge be dedicated solely to combating illegal practice of the professions. Staff are also discussing draft regulatory concepts and proposed next steps with our partners to identify how the Department can effectively address the illegal practice of the professions to ensure public protection and professional integrity.
Attachment
UPDATE: Illegal Practice
The New Law
The new illegal practice law differs substantially from the pre-2003 law. Chapter 615 of the Laws of 2003 gives the State Education Department (SED) the authority to civilly prosecute cases of illegal practice in the 44 health, business, and design professions licensed by the Regents and the Department, including medicine. Any person who practices one of the licensed professions without a license, and/or who falsely represents him/herself as authorized to practice a profession, is practicing illegally.
Illegal practice can happen anywhere. Unauthorized practitioners are all over the State, from high-end neighborhoods to garages or basements in poor communities. They are highly mobile, particularly when under suspicion, and many are non-English speaking. Investigating and prosecuting complaints is a quasi-police responsibility that will require a new operation within the Office of the Professions with resources to appropriately protect the public.
Prior to September 2003, the Department only had the authority to
receive and investigate complaints of unlawful practice. The results of
the investigation were referred to the Attorney General’s Office for
enforcement. The Attorney General’s
Office was unable to address all instances of illegal practice that were
referred. Having the ability to civilly prosecute
these cases provides us with a new opportunity to act on serious complaints that
put the public at risk and cause significant concern within the professional
community.
Number of Complaints
Expected
New Process to Address Illegal Practice
As described in greater detail in the December 2003 report to the Board
of Regents Committee on Higher Education and Professional Practice, the new law
establishes a lengthy multistage process to address cases of illegal practice
(Attachment: Flowchart).
While we retain the option of referring cases to the Attorney General,
the law significantly changes our current approach to addressing illegal
practice. For example:
·
Because the law
provides a legal, statutory alternative to criminal prosecution by the Attorney
General, the Department is no longer expected to use informal compliance
agreements to stop unlicensed individuals from engaging in professional
practice. Instead, formal cease and desist orders will be pursued in all
substantiated cases.
· The law prescribes a detailed process for issuing and enforcing cease and desist orders. As part of the process, the cease and desist orders must be served upon the alleged violator together with an opportunity for a hearing before a hearing officer designated by the Department.
· The Department may seek restitution and a civil penalty when the unlawful activity is egregious.
· Since all alleged violators served with cease and desist orders have a right to a hearing and two opportunities to appeal, a hearing process for contested cases is now required.
· All contested cease and desist orders will be decided at a hearing before a hearing officer.
· The hearing officer’s decision is final unless appealed to a Regents Review Committee (RRC) in a manner similar to that used in professional discipline cases.
· The RRC’s recommendation is reviewed and acted upon by the Board of Regents after a discussion at the Higher Education and Professional Practice Committee.
· The Board of Regents decision may be appealed to State Supreme Court. A Supreme Court order must also be sought to enforce the cease and desist order and/or the associated fines.
· No new resources were provided to implement the law. The new law not only dramatically changes the way the unauthorized practice of the professions is addressed, it also requires a new operation that will function in an entirely different way than the professional misconduct process. We estimate that $1.9 million will be needed to implement the law from the investigative stage to the ultimate motion to Supreme Court for a remedy once a confirmed cease and desist order has been violated.
New staff, dedicated exclusively to illegal practice cases, will need to be hired. For example, since all alleged violators served with cease and desist orders have a right to a hearing and two opportunities to appeal, a hearing process for contested cases is now required. This process requires hearing officers. The Department does not have hearing officers. Staff will have to be hired and trained for this new function.
Additionally, since the final, confirmed cease and desist order is not enforceable unless it can be proven that it has been violated, a new system to monitor compliance and track and collect fines and restitution is needed.
· The public will not be well served if our efforts to pursue illegal practice cases negatively impact our ability to investigate and prosecute professional misconduct. The number of professional misconduct complaints received by OP has increased 27 percent over the past five years. At the same time, we continue to face staff reductions. All professional discipline cases must be investigated and resolved as quickly as possible to protect the public from harm and to protect falsely accused licensees. Cycle time reductions, savings, and other achievements resulting from OP’s strategies to expedite the discipline process could be compromised if we do not receive the resources necessary to implement the new law.
Professions Leadership Forum: Engaging the Professional Community
The Office of the Professions held a Leadership Forum on December 10,
2003 with over 60 professional association leaders, legislative staff, and
lobbyists to build a mutual understanding of what the new illegal practice law
entails, the resources it will take, and the expectations for
enforcement.
OP staff detailed the steps for investigating and prosecuting
allegations, as described in the law.
We also estimated demand, offering our current staffing ratios and
performance data to lend perspective.
In quantifying OP's current capacity (both in terms of people and money),
we stressed that the new law will significantly impact Department resources,
even if our lowest case estimates hold—because all illegal practice allegations
must be investigated.
We encouraged Forum participants to ask questions and confirm our
understanding of demand and the processes of enforcement. Judging by the openness of the
discussions, the Forum succeeded in sharing a "big picture" view of the new
responsibilities and the challenges they present. Questions and comments focused on:
·
Possibilities
for recovering the $5 million "swept" from OP's account during the last State
budget process;
·
Specific
budget needs and the impact of new revenue sources (e.g., the new professions);
·
Implementation
timeline and outreach plans; and
·
The
source/nature of hearing officers, including concerns about their ability to
interpret Education Law and define scope of practice in the
professions.
To exemplify the kind of feedback received,
the front page feature article of the February 1, 2004 edition of The Trusted
Professional, a newsletter distributed by the New York State Society of
Certified Public Accountants stated, “It became readily apparent during the
forum that the SED lacks adequate funding to fully implement the new law and
that enforcement efforts will occur within strict parameters; complete
enforcement cannot be expected without additional funding.”
After the Leadership Forum: Recent Developments to Address Illegal
Practice
·
Develop Preliminary Draft Regulations:
Staff are now working to develop regulations to implement the law and to resolve
ambiguities related to the law. For
example, civil penalties and
restitution are available upon a showing of egregiousness. However, the law does not define
egregious. Further, while hearing
officers must conduct the hearings, the law does not specify whether they must
be Departmental employees, independent contractors or even accredited
arbitrators. Because the law
is complex and because it is essential that it be implemented successfully, we
will elicit feedback from the field on informal preliminary draft
regulations before they are formally presented to the Board of Regents
for discussion and review. We have already begun to meet with the largest
professions and those most impacted by illegal practice (i.e., architecture,
engineering, nursing, dentistry, accountancy, and massage therapy) to discuss
the open issues that can be resolved collaboratively through regulation, or
collaboratively through a chapter amendment for matters that can only be
resolved in legislation.
·
Continue to Partner with Legislators and Leaders
in the Professional Community:
We continue to discuss proposed next steps and strategies to address
illegal practice with key legislators, their staff, and leaders in the
professional community. Following a meeting with a
coalition of representatives from over 20 professions, we were asked to
facilitate a dialogue with key stakeholders regarding a triennial $10 surcharge (every two
years for medicine) on licensees’ registration fees. The surcharge would support our efforts
to address illegal practice.
To date, a number of professional associations and legislators have
officially expressed their support of the Department securing needed funding to
implement the law.
·
Education
and Advocacy:
It is also important that
key partners and stakeholders understand that illegal practice could result in
significant harm to the public, and in serious cases, even death. Last month, in his presentation
to the joint legislative fiscal
committees at the hearing on the State budget, Commissioner Mills articulated the need for
additional resources to address illegal practice and protect the public.
We will continue to keep the Board of Regents
informed and involved in this important issue. We will share preliminary draft
regulations with you for advice and consideration before they are formally
published in the State Register. In
addition, we will continue our discussions with the Legislature, professionals
and all stakeholders to develop the most effective strategies to successfully
combat the illegal practice of the professions and provide optimum protection of
the public.
