Current through Register Vol. 46, No. 12, March 20, 2024
(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 set forth in section
5003(1)(d) of the
Education Law.
(b) Disciplinary
actions against private school agents.
(1)
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.
(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.
(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.
(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.
(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.
(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 an
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:
(1) For each due date, payments made within
30 days following such due date shall be subject to an interest penalty of one
percent above the prevailing prime rate.
(2) Interest
penalties not paid within 15 days of notification of the amount of the penalty
may be increased in accordance with the method used by the commissioner to
compute the interest penalty in the first instance.