The Education Law provides that a licensed engineer or architect commits professional misconduct if he engages in "permitting, aiding or abetting an unlicensed person to perform activities requiring a license" or if he or she commits "unprofessional conduct" as defined by the Board of Regents in its rules or by the Commissioner in regulations approved by the Board of Regents.30 The rules issued by the Board of Regents, among other things, prohibit fee splitting.31 These rules are described in more detail below.
Fee Splitting Prohibition:
The Rules of the Board of Regents, which apply to all licensed professions including licensed engineers and architects, provide that it is unprofessional conduct to directly or indirectly offer, give, solicit, or receive or agree to receive any fee or other consideration to or from a third party for the referral of a client or in connection with the performance of professional services.44 This rule prevents any arrangement between a business entity and a professional entity that would permit the professional entity to pay the business entity an origination fee for engineering or architecture contracts. For engineers and architects in particular, unprofessional conduct also includes: "permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, subcontractor or consultant. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment, or personnel services used by a professional licensee constitutes a percentage of or is otherwise dependent upon the income or receipts of the licensee from such practice."
This obviously affects any interior designer or unlicensed person/entity who offers architecture or engineering services provided that they get a stamp from a licensed professional.
Wait for RWCB, esquire to consult on this matter. He's the authority on licensing law here.
kjdt
Oct 13, 15 5:45 pm
It doesn't prohibit an architect-as-consultant arrangement. It just prohibits a kick-back or percentage arrangement for referrals. New York explicitly allows an architect to stamp drawings that he thoroughly reviews, even if he was not involved in preparing them. So when an interior designer or unlicensed person takes on a client, and sub-contracts with an architect to review and stamp the drawings, that's perfectly legal in New York.
The law you quoted is trying to prevent situations where companies (typically contractors, realtors, etc.) collect fees or percentages of revenues from architects or other professionals in exchange for referring clients to them.
kjdt
Oct 13, 15 5:54 pm
It would be illegal for the architect to pay the interior designer or unlicensed person an origination fee, to send the review/stamping projects his way, or to pay them a kickback of his fees for those projects. But it's not illegal for the architect to be a consultant of the interior designer or unlicensed person, or for the client to directly contract the architect to review/stamp the interior designer or unlicensed person's drawings.
null pointer
Oct 13, 15 6:05 pm
good luck proving anything.
I have a dozen drafters that that come to me for stamps. I charge extremely high fees (opportunity cost?) and redraw the whole thing before giving it out. No different than an architect of record + designer relationship.
awaiting_deletion
Oct 13, 15 6:24 pm
good luck. bad business move.
kjdt
Oct 13, 15 6:38 pm
null pointer: yep, what you're doing is fine - completely legal in NY. An "opportunity fee" is the other way around - it's when the professional pays the business for the opportunity - i.e. if you were paying the drafters a fee or percentage in order to bring their projects to you. That would be illegal.
What you're charging them to review and stamp is a professional fee, not a kickback. You can charge whatever the market will bear for that - there's no legal problem there, either for you or for the drafters.
Oct 13, 15 6:40 pm
rob_c,
I'm staying out of this one.
BulgarBlogger
Oct 13, 15 6:57 pm
There's something that really smells/stinks here... this loophole that everyone keeps talking about - the architect as a consultant... that would only work if there were a formal contract between the architect and interior designer/non-licensed person. There are so many examples of interior designers just hiring architects so they can pretend to their clients that they themselves are architects... They operate like real architectural firms without licenses and THAT is what is illegal.
tduds
Oct 13, 15 7:38 pm
I'm not sure I understand what's illegal about a non-architect hiring an architect to do architecture in a non-architecture company.
Seems like a nice way to expand your range of services without relying on the whims of outside consultants, as well as a comfortable job for the Architect who gets hired.
I'd say you're barking up the wrong tree but I'm not sure I even see a tree at all.
Everyday Intern
Oct 13, 15 7:58 pm
tduds, what you describe as a nice way of expanding your range of services might be at odds with NYS practice laws.
awaiting_deletion
Oct 13, 15 8:04 pm
Bulgar you are missing the point. For example, I can do a lot of my own engineering and often at the start do or even stamp it with an engineer on board as a peer review consultant.Does that make me an Engineer? no. is that illegal, No.......now here is why its a bad business move Most Engineers have it easy getting work if they have a handful architects that always hire them. they aren't out bending over backwards to get someone to bite because their architect clients already throw then consistent work. No different if you are a AOR (which I am a lot) other 'designers' are out bending over backwards to get the clients.......
...what is illegal is advertising yourself as an architect, but nothing wrong with stating we work with Architect Olaf on our projects,he is our guy, does his own expediting, gets it through the building review engineer and architect no problem,etc....
Bloopox
Oct 13, 15 8:17 pm
Bulgar, if an interior designer or anyone else is misrepresenting themselves as an architect, then that's illegal. You can report them for that, though it has nothing to do with the statute you quoted.
The quote is indeed about the illegality of receiving kickbacks. It clearly pertains to situations in which a professional (architect or engineer) is paying a fee to a business in order for that business to feed work to the professional.
Most states have less liberal "plan stamping" rules than New York. In many of them an architect can't legally stamp drawings unless he supervised their production. You could report an architect in those states if you could establish that the architect stamped drawings without directly supervising their production. Different states have different definitions of direct supervision - some specifically state that the architect must physically be on the premises where the drawings are created, while others allow remote supervision, periodic meetings, or other arrangements.
New York allows an architect to stamp any set he reviews, whether or not he was involved in the production. The architect is supposed to keep a written record of his review process, findings, and any changes or corrections that he makes or requires in order to stamp them. There is no particular requirement that there be a formal pre-existing contract between an interior designer and an architect. It's fine for the interior designer to tell the client that the drawings will require an architect's stamp, and then for the interior designer or the client to procure the services of the architect when the time comes for the drawing review and stamp.
BulgarBlogger
Oct 13, 15 8:22 pm
^Bloopox-
Your post was the most informative. Thank you for clarifying... Also noted about the kickbacks. I must have misunderstood.
In any case, I'm dead against any architect stamping drawings he was not involved producing... that's nonsense...
awaiting_deletion
Oct 13, 15 8:23 pm
in a funny reading of the last phrase on flee splitting - managements and developers shouldn't reallt have in-house professionals. the NYS law has been at odds with the market. pretty sure this why NYS like other states quit asking every partner to be licensed in a PC or PLLC. why should the marketing person be licensed? are all members at Gensler who do marketing licensed? i doubt it.
Carrera
Oct 13, 15 8:24 pm
Agree with chigurh & Olaf’s first post; further don’t see what these regs have to do with HSW, sounds more like restriction of trade, get real.
kjdt
Oct 13, 15 8:29 pm
If you do choose to report someone: I can tell you from personal experience that that form is only for reporting licensed professionals. So if you're trying to report an architect then use that form, but if you're trying to report an interior designer or other unlicensed person don't try to do it using that form, because you'll just get a letter several months later stating that their office only investigates complaints against licensed professionals, and doesn't investigate unlicensed practice.
According to NY Law:
The Education Law provides that a licensed engineer or architect commits professional misconduct if he engages in "permitting, aiding or abetting an unlicensed person to perform activities requiring a license" or if he or she commits "unprofessional conduct" as defined by the Board of Regents in its rules or by the Commissioner in regulations approved by the Board of Regents.30 The rules issued by the Board of Regents, among other things, prohibit fee splitting.31 These rules are described in more detail below.
Fee Splitting Prohibition:
The Rules of the Board of Regents, which apply to all licensed professions including licensed engineers and architects, provide that it is unprofessional conduct to directly or indirectly offer, give, solicit, or receive or agree to receive any fee or other consideration to or from a third party for the referral of a client or in connection with the performance of professional services.44 This rule prevents any arrangement between a business entity and a professional entity that would permit the professional entity to pay the business entity an origination fee for engineering or architecture contracts. For engineers and architects in particular, unprofessional conduct also includes: "permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, subcontractor or consultant. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment, or personnel services used by a professional licensee constitutes a percentage of or is otherwise dependent upon the income or receipts of the licensee from such practice."
This obviously affects any interior designer or unlicensed person/entity who offers architecture or engineering services provided that they get a stamp from a licensed professional.
I'm thinking of filling this form out: http://www.op.nysed.gov/documents/opd-complaint.pdf
Has anyone done it?
what goes around comes around...
Wait for RWCB, esquire to consult on this matter. He's the authority on licensing law here.
It doesn't prohibit an architect-as-consultant arrangement. It just prohibits a kick-back or percentage arrangement for referrals. New York explicitly allows an architect to stamp drawings that he thoroughly reviews, even if he was not involved in preparing them. So when an interior designer or unlicensed person takes on a client, and sub-contracts with an architect to review and stamp the drawings, that's perfectly legal in New York.
The law you quoted is trying to prevent situations where companies (typically contractors, realtors, etc.) collect fees or percentages of revenues from architects or other professionals in exchange for referring clients to them.
It would be illegal for the architect to pay the interior designer or unlicensed person an origination fee, to send the review/stamping projects his way, or to pay them a kickback of his fees for those projects. But it's not illegal for the architect to be a consultant of the interior designer or unlicensed person, or for the client to directly contract the architect to review/stamp the interior designer or unlicensed person's drawings.
good luck proving anything.
I have a dozen drafters that that come to me for stamps. I charge extremely high fees (opportunity cost?) and redraw the whole thing before giving it out. No different than an architect of record + designer relationship.
good luck. bad business move.
null pointer: yep, what you're doing is fine - completely legal in NY. An "opportunity fee" is the other way around - it's when the professional pays the business for the opportunity - i.e. if you were paying the drafters a fee or percentage in order to bring their projects to you. That would be illegal.
What you're charging them to review and stamp is a professional fee, not a kickback. You can charge whatever the market will bear for that - there's no legal problem there, either for you or for the drafters.
rob_c,
I'm staying out of this one.
There's something that really smells/stinks here... this loophole that everyone keeps talking about - the architect as a consultant... that would only work if there were a formal contract between the architect and interior designer/non-licensed person. There are so many examples of interior designers just hiring architects so they can pretend to their clients that they themselves are architects... They operate like real architectural firms without licenses and THAT is what is illegal.
I'm not sure I understand what's illegal about a non-architect hiring an architect to do architecture in a non-architecture company.
Seems like a nice way to expand your range of services without relying on the whims of outside consultants, as well as a comfortable job for the Architect who gets hired.
I'd say you're barking up the wrong tree but I'm not sure I even see a tree at all.
tduds, what you describe as a nice way of expanding your range of services might be at odds with NYS practice laws.
Bulgar you are missing the point. For example, I can do a lot of my own engineering and often at the start do or even stamp it with an engineer on board as a peer review consultant.Does that make me an Engineer? no. is that illegal, No.......now here is why its a bad business move Most Engineers have it easy getting work if they have a handful architects that always hire them. they aren't out bending over backwards to get someone to bite because their architect clients already throw then consistent work. No different if you are a AOR (which I am a lot) other 'designers' are out bending over backwards to get the clients....... ...what is illegal is advertising yourself as an architect, but nothing wrong with stating we work with Architect Olaf on our projects,he is our guy, does his own expediting, gets it through the building review engineer and architect no problem,etc....
Bulgar, if an interior designer or anyone else is misrepresenting themselves as an architect, then that's illegal. You can report them for that, though it has nothing to do with the statute you quoted.
The quote is indeed about the illegality of receiving kickbacks. It clearly pertains to situations in which a professional (architect or engineer) is paying a fee to a business in order for that business to feed work to the professional.
Most states have less liberal "plan stamping" rules than New York. In many of them an architect can't legally stamp drawings unless he supervised their production. You could report an architect in those states if you could establish that the architect stamped drawings without directly supervising their production. Different states have different definitions of direct supervision - some specifically state that the architect must physically be on the premises where the drawings are created, while others allow remote supervision, periodic meetings, or other arrangements.
New York allows an architect to stamp any set he reviews, whether or not he was involved in the production. The architect is supposed to keep a written record of his review process, findings, and any changes or corrections that he makes or requires in order to stamp them. There is no particular requirement that there be a formal pre-existing contract between an interior designer and an architect. It's fine for the interior designer to tell the client that the drawings will require an architect's stamp, and then for the interior designer or the client to procure the services of the architect when the time comes for the drawing review and stamp.
^Bloopox-
Your post was the most informative. Thank you for clarifying... Also noted about the kickbacks. I must have misunderstood.
In any case, I'm dead against any architect stamping drawings he was not involved producing... that's nonsense...
in a funny reading of the last phrase on flee splitting - managements and developers shouldn't reallt have in-house professionals. the NYS law has been at odds with the market. pretty sure this why NYS like other states quit asking every partner to be licensed in a PC or PLLC. why should the marketing person be licensed? are all members at Gensler who do marketing licensed? i doubt it.
Agree with chigurh & Olaf’s first post; further don’t see what these regs have to do with HSW, sounds more like restriction of trade, get real.
If you do choose to report someone: I can tell you from personal experience that that form is only for reporting licensed professionals. So if you're trying to report an architect then use that form, but if you're trying to report an interior designer or other unlicensed person don't try to do it using that form, because you'll just get a letter several months later stating that their office only investigates complaints against licensed professionals, and doesn't investigate unlicensed practice.