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Part 28, Determination of Good Moral Character in the Profession

Disclaimer: Sections from the Education Law, Rules of the Board of Regents or Regulations of the Commissioner of Education are presented below for general informational purposes as a public service. Although reasonable efforts have been made to ensure that these sections are current, complete, and accurate, the State Education Department does not warrant or represent that this information is current, complete, and accurate. The statutes, rules, and regulations are subject to change on a regular basis. Readers are advised to consult McKinney's Consolidated Laws of New York (West Publishing Corporation) and Title 8 of the Unofficial Version New York Codes, Rules and Regulations - Title 8 (8 NYCRR), published by the Department of State, and the State Register for the official exposition of the text of these statutes, rules and regulations, as well as for amendments and any subsequent changes or revisions thereto.

Part 28, Proceedings to Determine Good Moral Character and to Evaluate Prior Disciplinary History for Authorization to Practice the Licensed Professions

Subpart 28-1, Determination of Good Moral Character for Authorization to Practice the Licensed Profession

The determination of whether an applicant for authorization to practice a profession, under title VIII of the Education Law, is of good moral character shall be made in accordance with the procedures specified in this Part.

All information indicating that an applicant has been convicted of a crime, or has committed an act which raises a reasonable question as to the applicant's moral character, shall be referred to the director of the Office of Professional Discipline or his or her designee.

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 such conviction or act. If it is determined that a reasonable question exists as to the applicant's moral character, 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.

Upon such review, the panel, by majority vote, may conclude in favor of the applicant to the effect that the moral character of the applicant is adequate for licensure, thereby fulfilling that licensure 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 moral character of the applicant, 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.

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 moral character. The applicant may be represented at the hearing by an attorney, may cross-examine witnesses, may produce witnesses, and may present evidence in support of the applicant's good moral character. 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. 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.

The applicant or the director of the Office or Professional Discipline may appeal the determination of the panel concerning the licensure requirement of good moral character 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.

Whether or not the applicant appeals from the determination of the panel, the applicant may reapply for licensure 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.

If the Committee on the Professions determines that the applicant otherwise meets the moral character requirements, 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 or limited permit.

Subpart 28-2 Evaluation of Prior Disciplinary History for Authorization to Practice the Licensed Professions

For purpose of this Subpart, prior disciplinary history means:

  1. 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
  2. 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.

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.

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.

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.

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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.

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.

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.