Frequently Asked Questions
1. What is the "consent of the Commissioner?"
The consent of the Commissioner is a document signed by the Commissioner or the Commissioner’s authorized designee that indicates the Commissioner’s consent to the filing of a corporate or organizational document with the Department of State. The consent is issued for the sole purpose of filing a corporate or organizational document with the Department of State, and must be included with the corporate or organizational document to be filed by the applicant with the Department of State. If Regents authorization is required, it will be indicated on the consent by the Commissioner or his authorized designee signing “on behalf of the Board of Regents.”
2. What types of corporate or organizational documents require the consent of the Commissioner of Education?
Commissioner’s consent is required for the filing with the Department of State of:
- certificates of incorporation
- certificates of amendment
- certificates of merger or consolidation
- certificates of dissolution
- applications for authority to do business
by entities having educational purposes that involve the operation of a:
- college, university or other entity providing postsecondary education
- historical society
In addition, consent is required where the name, or assumed name, of a Business Corporation, a Limited Liability Company, or a Partnership includes a education-related term the use of which is restricted under Business Corporation Law §301(a), Limited Liability Company Law §204(i); Partnership Law §121-102(a)(3).
Finally, Regents authorization is required to confer any degree or use, advertise or transact business under the name “university” or “college” or any name or descriptive material indicating or tending to imply operation of a school of law, medicine, dentistry, pharmacy, veterinary medicine, nursing, optometry, podiatry, architecture or engineering.
3. How do I apply for consent?
- Submit two copies of the original executed corporate or organizational document, prior to filing with the Department of State.
- Include a completed consent form which may be found on our website at www.counsel.nysed.gov . Please include a self-addressed, stamped, return envelope.
- A fee is charged for each consent. The fee for non-profit entities is $10. The fee for all other entities is $20.
- The mailing address is: NYS Education Department, Office of Counsel, State Education Building, 89 Washington Avenue, Room 148, Albany, NY 12234.
- Overnight services may also be used if a prepaid return label is included.
4. Do I need to include a specific statement of purposes in my certificate of incorporation submitted for consent?
Yes. The same rule applies to articles of organization of limited liability companies, certificates of limited partnerships and applications for authority by a foreign corporation to do business in New York.
5. Do I need to include any specific disclaimers in my Business or LLC organizational documents?
When the name or purposes of your corporate or organizational document imply that you might be engaged in the practice of a licensed profession or in activities which may be “chartered” or incorporated under Education Law, e.g., the operation of a museum or historical society, the document will require specific disclaimers in the statement of corporate purposes. If the name or purposes imply activities that fall within the activities described in the following disclaimers, it is highly recommended that you include the following disclaimers in your proposed document.
- Nothing herein shall authorize the corporation to operate, maintain or manage a charter school, a nursery school, a kindergarten, an elementary school, a secondary school, a college, university or to advertise or offer credit-bearing courses or degrees in New York State.
- Nothing herein shall authorize the corporation to operate or maintain a library, museum, archive or historical society or to own or hold collections.
- Except as authorized by Title VIII of the Education Law or other applicable statute, nothing herein shall authorize the corporation to engage in the practice of any profession in New York, engage in the training of any profession in New York or to use a professional title or term of any profession in New York in violation of Title VIII.
Note: If your corporate papers indicate that you will be providing counseling, but you will not be engaging in professional practice as defined in Education Law, include the following disclaimer in your corporate document:
- The corporation will restrict the provision of counseling services to instruction, advice, support, encouragement or information to individuals, families, and relational groups, provided that this shall not include the diagnosis or treatment of mental, emotional, nervous, or behavioral disorders.
Note: If your corporate papers indicate that you will be operating a radio or television station or producing radio or television programs, include the following disclaimer in your corporate document:
- Nothing herein shall authorize the corporation, directly or indirectly, to own, operate, or maintain a public television and/or public radio station pursuant to Section 236 of the Education Law nor to request funding as such.
6. Are there any additional forms that I need to submit with my corporate or organizational document for consent?
Yes. Please include the completed consent form which is available on our website at www.counsel.nysed.gov and a self-addressed stamped return envelope.
7. Do I need to send my original corporate or organizational document?
No. Please submit two copies of the original executed corporate or organizational document.
8. Is there a fee?
A fee is charged for each consent. The fee for a non-profit entity is $10. The fee for all other entities is $20.
9. What form of payment do you accept?
Payment should be made by personal check or money order made payable to NYS Education Department. Credit cards are not accepted.
10. Where do I send my documents?
Consent applications, and any corporate document required to be provided to the Commissioner within a specified amount of days after receipt of notification of its filing with the Department of State, shall be sent to: New York State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Avenue, Albany, NY 12234.
11. How long before I receive a response to my consent application?
Please allow approximately 20 business days, plus mailing time, for processing.
12. Are there any specific requirements for a certificate of amendment submitted for consent?
In addition to the requirements specified in question 2, please include a copy of the certificate of incorporation and copies of any other corporate or organizational documents filed with the Department of State to date. Also, if the original documents do not include a specific statement of corporate purposes, the proposed certificate of amendment must also provide for an amendment of the purposes to include such specific statement.
13. Are there any specific requirements for a certificate of assumed name submitted for consent?
In addition to the requirements specified in question 2, please include a copy of the certificate of incorporation and copies of any other corporate or organizational documents filed with the Department of State to date. If the certificate of incorporation or any subsequent amendments do not include a specific statement of the corporate purposes, or, if those purposes do not reflect the activities suggested by the assumed name, a written description of the purposes and activities of the corporation must be submitted simultaneously with the proposed certificate of assumed name. An additional fee must be included with the proposed certificate of amendment.
14. I am forming a corporation or other entity that will operate a nonpublic nursery school, nonpublic elementary school or nonpublic secondary school. What steps do I need to take?
- If the school seeking incorporation will be operated on a non-profit basis, it must incorporate as an education corporation under the provisions of Education Law §216 by petitioning the Board of Regents for a provisional charter. For further information concerning the procedure to petition the Board of Regents for a provisional charter, please see http://www.counsel.nysed.gov/pamphlet9/
- If the school seeking incorporation will be operated on a for-profit basis, under the Business Corporation Law the proposed certificate of incorporation must be submitted for the consent of the Commissioner of Education, prior to filing with the Department of State. The certificate of incorporation must include:
- The corporate purposes which specifically provide for the operation of the school, indicating the children’s ages and/or grade levels (e.g. a nursery school for children ages 3-5 or an elementary school grades 1-3)
- The street address of the school
- The following language:
"The corporation and any school or educational program which it may conduct shall be subject to and comply with all of the statutory provisions, rules of the Regents and regulations of the Commissioner which would be applicable to a corporation created by the Regents pursuant to section 216 of the Education Law for the same purpose or purposes. Within 30 days after receipt by the corporation of an order of the Board of Regents directing such action, the holders of a majority of all the outstanding shares of the corporation entitled to vote upon an amendment of the certificate of incorporation will cause to be filed with the Secretary of State a certificate of amendment to application for authority deleting therefrom all provisions authorizing the corporation to operate such a school or schools, and changing the corporate name, if necessary, to delete therefrom any word or words which indicate that the corporation operates such a school or schools. Such an order of the Board of Regents shall be made only upon the same grounds and after the same procedures as are applicable to the revocation of a charter granted by the Regents pursuant to section 216 of the Education Law for the purpose of authorizing the corporation thereby created to operate a school or schools."
- The document should be completed in accordance with the procedure outlined in question 3.
- Additional information may be required by the Office of Nonpublic School Services (518-474-6541).
15. What is the difference between a day care center and a nursery school?
A nursery school is a place outside the home where children from three to five years of age go to be instructed. Private nursery schools may be, but are not required to be, registered by the State Education Department. Please see http://www.p12.nysed.gov/nurseryschool/. Day care centers provide care for more than three hours a day per child and must be licensed by the Office of Children and Family Services under Social Services Law §390. For more information regarding day care, please see http://www.ocfs.state.ny.us/main/becs/ . Many traditional nursery schools have added day care components. This type of center would be considered a day care center and nursery school.
16. How do I form a charter school?
Please note that to form a charter school, an application must be made to a chartering entity (the Board of Regents, the Trustees of the State University of New York or the Board of Education of a school district) in accordance with the provisions of Article 56 of the Education Law (Education Law §§2850-2857). For further information, please contact the Office of Public School Choice Programs at 518-474-1762.
17. I am already incorporated. I want to add authority to operate a nonpublic school. What should I do?
If the corporation wishes to add the operation of a nursery, elementary or secondary school, or wishes to amend an existing school program (e.g. add grades 4-6 to an existing 1-3 elementary school), please submit a certificate of amendment, in accordance with the requirements set forth under question 11 above.
18. What if I am forming, or have formed, a limited liability company to operate a school?
If the school will be operated by either a newly proposed limited liability company, or an existing limited liability company, please submit either the proposed articles of organization or certificate of amendment of the articles of organization, under the Limited Liability Company Law. Such articles or certificate must be submitted in accordance with the requirements set forth above.
19. Who should I contact for a professional corporation (PC) or a professional limited liability company (PLLC)?
For those professions set forth in Education Law Title VIII, the State Education Department is the licensing authority. For a list of such professions, see http://www.op.nysed.gov/prof/. For further information concerning the required certificate, contact the Department’s Office of the Professions, Division of Professional Licensing at (518) 474-3817 ext. 400 or at http://www.op.nysed.gov/corp/pcorpcontact.htm. The proposed corporation document should not be submitted to the State Education Department’s Office of Counsel for consent.
20. How do I contact the Department of State for questions regarding corporations and other business entities?
The website for the Division of Corporations is http://www.dos.ny.gov/corps/index.html or you may call 518-473-2492.