AMENDMENT TO THE RULES OF THE BOARD OF
REGENTS
Pursuant to sections 207, 6501,
6504, 6506, and 6507 of the Education Law.
1. Section 24.6 of the Rules of the Board
of Regents is amended, effective November 24, 2005, as
follows:
24.6 Review of questions of
moral character and evaluation of prior disciplinary
history.
The Committee on the Professions
shall review and determine questions of moral character, and evaluate and
determine an applicant's qualifications to practice the licensed professions
based upon a prior disciplinary history, in accordance with the provisions
of Part 28 of this Title.
2. Part 28 of the Rules of the Board of
Regents is amended, effective November 24, 2005, as
follows:
PART 28
[DETERMINATION OF GOOD MORAL CHARACTER IN THE
PROFESSIONS]
PROCEEDINGS TO DETERMINE GOOD MORAL CHARACTER
AND TO EVALUATE PRIOR DISICPLINARY HISTORY FOR AUTHORIZATION TO PRACTICE THE
LICENSED PROFESSIONS
SUBPART
28-1
DETERMINATION OF GOOD MORAL CHARACTER FOR
AUTHORIZATION TO PRACTICE THE LICENSED
PROFESSIONS
[28.1] 28-1.1 . . .
[28.2] 28-1.2 . .
.
[28.3] 28-1.3 . .
.
[28.4] 28-1.4 . .
.
[28.5] 28-1.5 . .
.
[28.6] 28-1.6 . . .
[28.7] 28-1.7 . .
.
[28.8] 28-1.8 . .
.
SUBPART
28-2
EVALUATION OF PRIOR DISCIPLINARY HISTORY FOR
AUTHORIZATION TO PRACTICE THE LICENSED
PROFESSIONS
28-2.1 Prior Disciplinary History. For purpose of this Subpart, prior
disciplinary history means:
(a) While engaged in practice in another
jurisdiction, the applicant has been subject to disciplinary action by a duly
authorized professional disciplinary agency of such other jurisdiction, where
the conduct upon which the disciplinary action was based would, if committed in
New York State, constitute practicing the profession beyond its authorized
scope, with gross incompetence, with gross negligence on a particular occasion,
or with negligence or incompetence on more than one occasion under the laws of
New York State; or
(b) While engaged in practice in another
jurisdiction, the applicant has voluntarily or otherwise surrendered his or her
professional license in another jurisdiction after a disciplinary action was
instituted by a duly authorized professional disciplinary agency of such other
jurisdiction, based on conduct that would, if committed in New York State,
constitute practicing the profession beyond its authorized scope, with gross
incompetence, with gross negligence on a particular occasion, or with negligence
or incompetence on more than one occasion under the laws of New York State.
28-2.2 Purpose.
The purpose of this Subpart is to establish
procedures by which the department shall evaluate the prior disciplinary
history, as defined in section 28-2.1 of this Subpart, of an applicant in order
to determine whether the applicant is qualified to practice a licensed
profession under Title VIII of the Education Law.
28-2.3 Information.
All information indicating that an applicant
has a prior disciplinary history shall be referred to the director of the Office
of Professional Discipline or his or her
designee.
28-2.4 Investigation.
The director of the Office of Professional
Discipline, or his or her designee, shall arrange for a full and complete
investigation of the circumstances surrounding a prior disciplinary
history. If it is determined that a
reasonable question exists as to the applicant's qualifications to practice a
licensed profession based upon the applicant's prior disciplinary history, then
the director, or his or her designee, shall submit the results of the
investigation, including any letters of reference from peers or others which may
have been submitted by the applicant, to a panel of the appropriate professional
State Board for its review. The panel shall consist of three or more members of
the State Board.
28-2.5 Review.
Upon such review, the panel, by majority
vote, may conclude in favor of the applicant to the effect that the applicant's
qualifications to practice a licensed profession based upon a prior disciplinary
history are adequate, thereby fulfilling the licensure, endorsement, or permit
requirement, and the applicant and the director of the Division of Professional
Licensing Services shall be notified of such conclusion by the Office of
Professional Discipline. If, upon such review, the panel concludes, by a
majority vote, that a substantial question exists as to the applicant's
qualifications to practice a licensed profession based upon his or her prior
disciplinary history, the applicant shall be notified thereof. Upon the written
request of the applicant, within 30 days after receipt of such notice, the
department shall schedule a hearing on such question.
28-2.6
Hearing.
(a) The applicant shall be given 15 days
notice, by mail, of the time and place of the hearing and a statement of the
matters asserted which raised the question of the applicant's qualifications to
practice a licensed profession based upon his or her prior disciplinary history.
(b) The applicant may be represented at the
hearing by an attorney, may cross-examine witnesses, may produce witnesses, and
except as limited in this subdivision may present evidence on the conduct
underlying the applicant's prior disciplinary history. In cases in which the applicant in his
or her prior disciplinary history has been found guilty of professional
misconduct, or has admitted such guilt, and has had an opportunity for a hearing
in the other jurisdiction, the evidence in the hearing in this proceeding shall
be limited to a consideration of whether the conduct for which the applicant has
been found guilty or admitted guilt is sufficiently egregious to result in a
denial of authorization to practice the licensed profession in New York State,
and whether the prior disciplinary action constitutes a prior disciplinary
history as defined in section 28-2.1 of this Subpart.
(c) The hearing, at which a verbatim record
shall be taken, shall take place before a panel consisting of three or more
members of the appropriate professional State Board, and before an
administrative officer admitted to practice as an attorney in the State of New
York, designated by the department. Such administrative officer shall have
authority to rule on all motions, procedures and other legal objections, but
shall not be entitled to vote in the determination of the panel.
(d) The determination of the panel shall be
made by a majority vote of the panel and shall be rendered in a written report
which shall be drafted by the administrative officer, shall reflect the
determination and recommendations of the panel, and shall be subject to the
approval of and signature by the panel chairperson on behalf of the panel.
Copies of the report shall be forwarded to the director of the Division of
Professional Licensing Services and to the
applicant.
28-2.7 Appeal.
The applicant or the director of the Office
of Professional Discipline may appeal the determination of the panel relating to
the applicant's qualifications to practice a license profession based upon his
or her prior disciplinary history by filing a written notice of appeal therefrom
with the Committee on the Professions within 30 days after service of the report
of the panel upon the party taking the appeal. In the event no appeal is taken
from the determination of the panel, the determination of the panel shall be
final. In the event either party appeals from the determination of the panel,
the appellant may submit a brief to the Committee on the Professions and the
opposing party within 30 days after filing the notice of appeal. An answering
brief may be filed by the opposing party with the Committee on the Professions
within 20 days after the receipt by the opposing party of the brief submitted by
the appellant. The Committee on the Professions may affirm, reverse or modify
the determination of the panel and/or make such other determination as it may
deem just and proper under the circumstances. The determination of the Committee
on the Professions shall be final and copies thereof shall be forwarded to the
applicant and to the director of the Office of Professional Discipline.
28-2.8
Reapplication.
Whether or not the applicant appeals from the
determination of the panel, the applicant may reapply for licensure,
endorsement, or permit to the director of the Division of Professional Licensing
Services after the expiration of 18 months from the date of service of the
report of the panel.
28-2.9 Proficiency
examination.
If the Committee on the Professions
determines that the applicant is otherwise qualified to practice a licensed
profession based upon his or her prior disciplinary history, but has failed to
remain current with developments in the profession, and a substantial question
is presented as to the applicant's current fitness to enter into the active
practice of the profession, the Committee on the Professions may require that
the applicant take and obtain satisfactory grades on a proficiency examination
satisfactory to the department prior to the issuance of a license, endorsement,
or limited permit.
