2022 NYS Legislative Session
by Mark Kriss Esq., Legislative Counsel

Preliminarily, the Society’s leadership wants to again thank all of our members who helped advocate for legislation to require that an applicant seeking licensure as a professional engineer in New York State have a Bachelor’s Degree in Engineering (BDE).  After a prolonged effort, over multiple legislative sessions, the bill has been signed into law, and the state has joined the majority of other states with similar licensure requirements.  (The law does have a transition provision allowing those currently seeking licensure via the 12-year experience ladder to continue on their career path, provided a timely application is pursued with the State Education Department.  In addition, the Commissioner of Education is authorized to permit exceptions to the BDE requirement including, for example, an applicant holding a bachelor’s degree in physics or mathematics and a master’s degree in engineering.)

1. Indemnification –   To be introduced early 2022

This legislation, which was previously vetoed by ex-Governor Cuomo, addresses the issue of design professional contractual indemnification on public sector projects (state and local), and is strongly supported by NYSSPE.  The legislation addresses public sector contracts wherein municipalities, state agencies and other governmental entities have inordinate leverage over the terms of indemnification.  Presently, governmental entities can and do unfairly shift the burden to design consulting firms for the cost of future contingent events such as property damage, personal injury and attendant attorneys’ fees.

Broad form defense and indemnification provisions subject design professionals to liability arising out of the circumstances that are well beyond the design professional’s scope of work, and for matters over which the design professional has no control.  Design professionals in many instances are unable to secure insurance to cover the scope of claims these provisions can generate.  Many of the most highly qualified engineering firms simply refuse to participate in RFQs when confronted with adhesion contracts of this nature.  As a result both public owners and taxpayers are deprived of the opportunity to benefit from their participation.

This bill addresses indemnification inequity by voiding contractual provisions requiring defense and indemnification involving a public work to the extent that a design professional is required to defend and indemnify a municipality, state agency, or other governmental entity or other parties for damages that are not the result of the negligence, recklessness, or willful misconduct of the design professional.  Responsibility for losses related to the actions or failures of other parties that are unrelated to the design professional services rightfully rest with the at-fault party or parties.  Design professions simply should not be compelled to provide indemnification for such conduct.

2. Emergency Responder – Support

(A5769/Englebright and S6377/Savino)     Combines Emergency Responder  / Good Samaritan

As previously reported NYSSPE has joined a broad-based coalition, including other design professional organizations and the construction community, in support of this measure which combines enhanced good Samaritan protection with a proposal offering liability protection for emergency responders hired in the wake of a natural or man-made disaster. (The coalition includes the New York Building Congress, Associated General Contractors of New York, ACEC New York, AIA New York, and a number of other organizations representing the construction and design communities.)

In essence, this bill is designed to ensure that the liability for services rendered under emergency conditions (whether voluntary or based on contract) rests with the governmental bodies which are principally charged with restoring normalcy following a disaster.  Under the proposal, service providers are held harmless in the absence of gross negligence or intentional wrongdoing for services rendered in the wake of a disaster. The governmental entity securing services will stand in the shoes of the design professional or contractor in instances of ordinary negligence, thereby affording the injured party a source of recovery. The measure does not apply to businesses whose primary business is responding to disasters fully cognizant of the risks such as a company routinely advertising its emergency response services.

3. QBS – Support

(A8504 –Comptroller’s Program Bill)

This legislation requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies.   Expanded utilization of QBS has been a long sought-after goal of NYSSPE. In fact, due in substantial part to the Society’s efforts, similar legislation passed the Assembly in 2010. QBS assures that price is not the sole criteria in the selection of professional engineering services by affording due consideration to the respective qualifications of consulting firms participating in the procurement process.  Adoption of QBS also helps to avoid steering of service contract to politically favored firms.  Since former Governor Cuomo opposed expanding QBS, his departure from office has enhanced our assessment of the prospects for this bill. In fact, NYS Comptroller Thomas DiNapoli has advanced the legislation with the goal of to preventing some of the abuses identified under one or more prior administrations.

4. Statute of Repose – Support

(A1706/S4127 – Assemblyman Pretlow/Senator Griffo)

This legislation creates a 10-year Statute of Repose requiring that actions for personal injury and wrongful death against a design professional and construction contractors be commenced not more than 10 years after a project is completed.  The bill continues to face strong opposition from the New York State Trial Lawyers Association.  NYSSPE has been assisted in its fight by other organizations including associations representing general contractors and AIA. [Read more…]

See below for the recent letter from NYSSPE President, Joe Pasaturo, PE to the Mayor-Elect of NYC.  This was recently sent out to continue the communication around the threat and danger of illegal practices throughout the city.

Dear Mayor Adams,
Congratulations on your election as the next Mayor of New York City. It was a pleasure meeting you at Casa Belvedere earlier this year with my cousin Roy Ranieri. I am particularly happy that someone with your experience, qualifications, integrity and clear sense of purpose is in a position to provide the steady and inspiring leadership New York City needs and deserves.

I was born and raised in the South Bronx and well as the Pomonok houses in Queens. I am a lifelong New Yorker. I am the President of the New York State Society of Professional Engineers (NYSSPE). The society is a professional association representing the interest of its members, and more generally, the interest of all professional engineers totaling more than 25,000 licensees in New York State, practicing in all disciplines (civil, structural, mechanical, electrical, chemical, geological environmental, etc.) and practicing in all practice settings (private sector consulting, industry, government and education).

Professional Engineers, individually and communally, are keenly concerned with the promotion of public health, safety and welfare. Our members do not take lightly their responsibility to the greater community. It is our hope that in the years ahead we can work constructively with you to help move New York City to a brighter and safer future. [Read more…]

UPDATE CONTINUING EDUCATION
By Mark Kriss, Esq., NYSSPE Legislative Counsel

Chapter 260 Laws 2020
Assembly Bill 10021A Senate Bill 7986A 2020
Earlier this week we distributed information  (click here) regarding liberalized continuing education requirements for Professional Engineers due to COVID-19, as well as prospective statutory changes allowing all continuing education courses to be secured via self-study eliminating the requirement that 18 credits per registration period required live study. The notice from earlier this week failed to include more recent developments. Following is a short summary of where matters stand.

In response to the evolving situation with the Novel Coronavirus (COVID-19), and for those licensees whose registrations renew March 1, 2020 – July 1, 2022, the NYS Education Department will grant (via emergency action) an adjustment to all licensees to complete up to 100% of the continuing education as self-study, provided that it is taken from a Department-approved provider and is in an acceptable subject area for professional engineering. Additionally, the Department will grant an adjustment to all licensees, regardless of registration renewal date, to utilize self-study for any coursework taken during the period from March 1, 2020 – July 1, 2022, provided that it is taken from a Department-approved provider and is in an acceptable subject area.

Prior to January 1, 2022, in the absence of the emergency action, professional engineers were required to demonstrate that 18 of the 36 professional development hours secured during each triennium registration period be obtained via live lecture, in person classes, or live webinar. Chapter 260 of the Laws of 2020 eliminates this requirement for PEs effective January 1, 2022. In short, online courses of all types will qualify prospectively for all 36 development hours. Of course, live venues will also continue to be an option. All courses must continue to be specifically approved for New York State. [Read more…]

Assembly Bill 10021A (Assemblyman Englebright)
same as Senate Bill 7986A (Senator Stavisky)

This bill establishes a continuing education requirement for professional geologists in NYS. At the same time the bill modernizes the continuing education requirement for professional engineers and other design professionals. The bill has passed both houses of the NYS Legislature and is expected to be approved by Governor Cuomo.

Under current law professional engineers must demonstrate that they have completed 36 professional development hours during each triennium registration period. 18 of the 36 professional development hours secured during each such triennium must be obtained via live lecture, in person classes, or live webinar. This legislation eliminates this requirement for PEs and other design professionals. In short, online courses of all types will qualify for all 36 development hours. Of course, live venues will also continue to be an option. All courses must continue to be specifically approved for New York State.

It is important to note that currently due to the pandemic the Education Department has on an emergency basis waived the live lecture, in person or live webinar requirement for licensees whose registrations renew before January 1, 2021 (see posting from NYS Education Department Office of Professions below.) The effective date of the legislation is January 1, 2022 so the status of renewals on or after January 1, 2021 must await further clarification from the Education Department. It is likely that the broad use of on line courses will be extended due to the pandemic.

The legislation also permits a professional engineer to take courses in other design fields such as architecture or land surveying. Credits earned in related fields will count towards the triennium 36PDH requirement. (However, under no circumstances will the attendance at such courses be a ground for practicing in an allied design field without appropriate licensure.) The new law will permit up to 6 PDHs to be carried over to a new registration period from a prior period. Present law does not permit such carry-overs.

Finally, NYSSPE has and will continue to advocate for broad recognition of courses across the country due to the significant number of our members who practice in more than one jurisdiction. While continuing education is an important measure, we believe states should have uniform requirements to the greatest extent possible. [Read more…]