§ 5004 — Private school agent's certificate

§ 5004. Private school agent's certificate. 1. a. No party may, for a\nconsideration or remuneration procure, solicit or enroll any student for\ninstruction in or given by any school within or without the state of New\nYork, unless (i) the party is a salaried employee of the school and (ii)\nthe party shall have secured a private school agent's certificate from\nthe department pursuant to regulations of the commissioner.\n b. Upon submission of a complete new application for licensure, an\napplicant may procure, solicit or enroll any student for instruction;\nprovided, however, that such applicant be in possession at all times\nduring the procurement, solicitation or enrollment processes of a\ntemporary approval certificate which the commissioner shall issue within\nfive days of receipt by mail or on the same day at designated offices. A\nschool shall submit such application for licensure on or before the\nfirst day of employment of such individual.\n c. No consideration or remuneration shall be paid in the form of a fee\nper student enrolled by a private school agent except pursuant to the\nfollowing limitations:\n (1) a school may pay twenty-five percent of the consideration or\nremuneration after the student has completed three weeks of the program;\n (2) a school may pay the remainder of the consideration or\nremuneration after the student has completed eight weeks of the program;\n (3) the total amount of the consideration or remuneration paid per\nstudent may not exceed one percent of the annual salary paid to the\nagent.\n d. In promulgating regulations in relation to the issuance of such\ncertificates and the conduct of the holders of such certificates, the\ncommissioner shall give consideration to:\n (1) good moral character of the candidate for such certificate;\n (2) the use of ethical and fair practices in the presentation of the\nschool's offerings; and\n (3) whether the prospective agent has within five years of the date of\nthe application violated any provision of this article or the\nregulations of the commissioner adopted pursuant to this article.\n 2. Instruction, as contemplated by this section, shall be any plan or\nmethod for teaching any subject or subjects in any form or manner,\nincluding correspondence or home study.\n 3. a. Exempted from the requirements of this section are persons\nacting solely for schools which are not required to be licensed or are\nspecifically exempted from the licensing requirements of this article.\n b. (i) Also exempted from the requirements of this section is an\nonline education marketplace as defined in paragraph c of subdivision\none of section five thousand one of this article, provided that the\nonline education marketplace complies with each of the following:\n (1) An online education marketplace shall not solicit, procure, or\nenroll any student for instruction in a licensed private career school\nor certified ESL school, as defined by the commissioner in regulations.\n (2) Upon receipt of any monies collected by an online education\nmarketplace from a prospective student for payment of tuition and/or\nfees, the prospective student and the licensed private career school or\ncertified ESL school shall execute an enrollment agreement in accordance\nwith regulations of the commissioner. If an enrollment agreement is not\nexecuted, the monies shall be promptly returned to the prospective\nstudent in a timeframe and manner prescribed by the commissioner in\nregulations.\n (3) If an enrollment agreement is executed, the online education\nmarketplace shall forward the monies received from the prospective\nstudent to the licensed private career school or certified ESL school in\na timeframe and manner prescribed by the commissioner in regulations.\n (4) An online education marketplace shall not receive from a student\nan amount greater than the tuition or fees to be charged by the licensed\nprivate career school or certified ESL school to the student, and shall\nseparately account for monies received from the prospective student to\nbe thereafter transferred to a licensed private career school or\ncertified ESL school in payment of tuition or fees, and any remuneration\nand/or compensation received by the online education marketplace from a\nlicensed private career school or certified ESL school in payment for\nservices rendered to such school by the online education marketplace.\nThe licensed private career school or certified ESL school shall also\nseparately account for tuition or fees transferred to the school by an\nonline education marketplace on behalf of a student in payment of\ntuition or fees, and payments made by the school to an online education\nmarketplace for services rendered to the school by the online education\nmarketplace.\n (5) The commissioner may take disciplinary action against an online\neducation marketplace pursuant to section five thousand three of this\narticle, to the extent such provisions are deemed applicable by the\ncommissioner in regulations.\n (6) An online education marketplace is prohibited from offering\nadvertising/marketing services to an unlicensed private career school or\nuncertified ESL school.\n (ii) Any licensed private career school or certified ESL school that\ncontracts with an online education marketplace shall comply with the\nprovisions of this subdivision and the regulations of the commissioner\nor they may be subject to disciplinary action pursuant to section five\nthousand three of this article.\n c. Persons who are paid to procure, solicit or enroll students on the\npremises of schools required to be licensed shall not be exempt from the\nprovisions of this section.\n 4. Application and renewal application for a private school agent's\ncertificate shall be filed on forms to be prescribed and provided by the\ncommissioner. Said certificate shall be valid for three years from the\ndate of issuance. Certificates which have been renewed shall be valid\nfor a period of three years from the expiration date of the certificate\nwhich has been renewed. Every applicant and renewal applicant shall pay\nto the department a fee of two hundred dollars.\n 4-a. Notwithstanding the provisions of subdivision four of this\nsection, the school director may apply for a private school agent's\ncertificate on forms to be prescribed and provided by the commissioner\nwithout incurring the agent application fee.\n 5. No recovery shall be had against any student or enrollee and full\nrecovery shall be made on any contract for or in connection with any\ninstruction if the student or enrollee was procured, solicited or\nenrolled outside or on the school premises by a person paid to procure,\nsolicit or enroll students but not having a valid private school agent's\ncertificate pursuant to the provisions of this section at the time that\nthe contract was negotiated or executed or the sale of the instruction\nwas made, or by a person who holds such a certificate but has made\nfraudulent or improper claims. Each enrollment agreement shall include,\nwhere applicable the name of the agent responsible for procuring,\nsoliciting or enrolling the student or enrollee.\n 6. The issuance of such a private school agent's certificate shall not\nbe deemed to constitute approval of any course or of the person or\ninstitution offering, conducting or administering the same.\n 7. The commissioner, after giving to the certificate holder due notice\nand opportunity to be heard, may fine a private school agent, suspend or\nrevoke a private school agent's certificate at any time for failure to\ncomply with the provisions of the law or the regulations of the\ncommissioner or for any other good cause.\n 8. No employer of a private school agent other than a school may\nindemnify, save harmless or otherwise reimburse any agent for the amount\nof any fines imposed pursuant to this section. If a person fined\npursuant to this section can demonstrate to the satisfaction of the\ncommissioner that the action for which the fine was imposed was\nundertaken pursuant to explicit instructions from the employer, the\nemployer shall idemnify, save harmless, and reimburse that person for\nthe fine and shall pay to the commissioner an additional fine of an\nequal amount.\n