Calendar Date: April 27, 2018Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.__________Carmel, Milazzo & DiChiara LLP, New York City (Ross D.Carmel of counsel), for appellant.Thomas F. Garner, Middleburgh, for Toniann M. Giordano,respondent.Barbara D. Underwood, Acting Attorney General, New YorkCity (Mary Hughes of counsel), for Commissioner of Labor,respondent.__________McCarthy, J.P.Appeal from three decisions of the Unemployment InsuranceAppeal Board, filed April 22, 2015, which ruled, among otherthings, that Tender Age PT Inc. was liable for unemploymentinsurance contributions on remuneration paid to claimant andothers similarly situated.The Department of Education administers supplementaleducation services to children with disabilities and specialneeds who are eligible for such services under federal law (seeEducation Law § 4401 et seq.; 20 USC § 1400 et seq.; 20 USC§ 6301 et seq.; Matter of Clarke [Select Medical Corp. Inc.-Commissioner of Labor], 139 AD3d 1285, 1286 [2016]). Tender AgePT Inc. (hereinafter TAPT) is an approved provider of suchservices and makes available to its clients — state and localgovernment entities consisting primarily of counties and schooldistricts — occupational therapy, physical therapy, speechtherapy, special education and related services. TAPT contractswith service professionals possessing the requisite skills neededby its clients to perform the actual services. When TAPT iscontacted by either a client or a parent regarding a child with aparticular need, it consults its registry of approved serviceprofessionals within the specialty needed and, after finding anappropriate match, refers the case to the service professional towork directly with the child.Claimant, an applied behavioral analyst therapist, filed aclaim for unemployment insurance benefits after she stoppedreceiving assignments from TAPT. The Department of Labor, inturn, conducted an audit of TAPT’s operations covering the years2008 and 2009. At the conclusion of the audit, it renderedinitial determinations finding, among other things, that TAPT wasliable for additional unemployment insurance contributions onremuneration paid to claimant and other similarly situatedservice professionals.1 Following combined hearings on casesrelated to the audit, an Administrative Law Judge sustained thesedeterminations. Thereafter, the Unemployment Insurance AppealBoard upheld the assessment of additional contributions uponfinding that an employment relationship existed between TAPT andclaimant, as well as other similarly situated serviceprofessionals.2 TAPT appeals.Initially, the existence of an employer-employeerelationship is a factual issue for the Board to resolve and itsdecision will not be disturbed if it is supported by substantialevidence (see Matter of Empire Towing & Recovery Assn., Inc.[Commissioner of Labor], 15 NY3d 433, 437 [2010]; Matter ofDesravines [Logic Corp.-Commissioner of Labor], 146 AD3d 1205,1205 [2017]). Significantly, in situations like the one here,where “the details of the work performed are difficult to controlbecause of considerations such as professional responsibilities,courts have applied the overall control test, which requires thatthe employer exercise control over important aspects of theservices performed” (Matter of Wright [Mid Is. Therapy Assoc.LLC-Commissioner of Labor], 134 AD3d 1216, 1217 [2015] [internalquotation marks and citation omitted]; see Matter of EmpireTowing & Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d at437-438; Matter of Corrente [Select Medical Corp., Inc.-Commissioner of Labor], 139 AD3d 1283, 1284 [2016]).In view of this Court’s recent decisions in Matter ofClarke (Select Medical Corp., Inc.-Commissioner of Labor)(supra), Matter of Corrente (Select Medical Corp., Inc.-Commissioner of Labor) (supra) and Matter of Wright (Mid Is.Therapy Assoc. LLC-Commissioner of Labor) (supra), all of whichinvolved approved agencies providing supplemental educationalservices under arrangements similar to the one here, we cannotconclude that substantial evidence supports the Board’s findingof an employment relationship. As in those cases, TAPT’s overallcontrol over important aspects of the service professionals’ workis lacking largely because the policies and procedures relatedthereto are “dictated by statutes and regulations governing theprovision of supplemental educational and related services”(Matter of Corrente [Select Medical Corp., Inc.-Commissioner ofLabor], 139 AD3d at 1284). Indeed, although TAPT collectedresumes and interviewed candidates wishing to be placed on itsregistry, this was primarily for the purpose of insuring thatthey met the requirements imposed by the Department of Healthwith regard to certification and licensing. Once candidatesbecame approved service professionals, TAPT offered assignmentsbased upon availability and other criteria, but the serviceprofessionals were free to reject an assignment or work for otheragencies. If an assignment was accepted, TAPT supplied theservice professionals with documentation furnished by the client,including the child’s treatment plan and a prescription for theservice, as well as other legally mandated documents. Theservice professionals then worked directly with the child and hisor her parent, providing all necessary equipment and materials,and scheduling appointments without any involvement or oversightby TAPT, usually at the child’s home, school or day care center.The compensation paid to the service professionals wasnegotiable, but was limited by the amount that TAPT received fromits clients. Although the service professionals prepared dailywork logs, as well as periodic status reports, on preprintedforms that they submitted to TAPT, this was done in order tocomply with the requirements of TAPT’s clients. In accordancewith such requirements, they also submitted monthly invoicescontaining treatment information that TAPT compared with thedaily logs. They would not, however, get paid until TAPTreceived payment from its clients.In view of the foregoing, it is apparent that any controlthat TAPT exercised over the work performed by claimant orsimilarly situated service professionals was merely incidentaland a product of the highly regulated environment governing thenature of the services provided (see Matter of Clarke [SelectMedical Corp. Inc.-Commissioner of Labor], 139 AD3d at 1287-1288;Matter of Corrente [Select Medical Corp. Inc.-Commissioner ofLabor], 139 AD3d at 1285; Matter of Wright [Mid Is. TherapyAssoc. LLC-Commissioner of Labor], 134 AD3d at 1217-1218).Consequently, we conclude that substantial evidence does notsupport the Board’s finding of an employment relationship and itsdecisions must be modified accordingly.Egan Jr., Devine, Mulvey and Rumsey, JJ., concur.ORDERED that the decisions are modified, without costs, byreversing so much thereof as assessed Tender Age PT Inc. foradditional unemployment insurance contributions based onremuneration paid to claimant and other similarly situatedapplied behavioral analyst therapists and special educationservice providers, and, as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
