Domiciliary State Approval
I was recently asked about handling domiciliary state approval for NY domiciled companies doing business in 50 states.
In my experience, this was a bigger problem prior to the development of the certified (or "CL6") process in NY. In those days, NY approval could take many months and NY-domiciled companies who needed approval in NY for those domiciliary states could be in a very difficult situation. Back then, my recommendation was to develop a version to file under NY's out-of-state use statute - those were filed for informational purposes and were subject to a much less stringent set of review standards. Those were typically processed within a couple of weeks and then that date could be used for domiciliary state approval.
However, NY law has changed so that NY-domiciled companies no longer file most of their forms for out-of-state use. Now the statute has an annual filing requirement for those forms. They can be used immediately outside NY so long as they are reported on an annual basis, in a format not yet fully developed. In addition, forms intended for use in NY are now often submitted under the expedited "CL6" process.
In today's environment, a CL6 approval takes approximately 60 days. While this is obviously a tremendous improvement over the old full prior approval timelines, it is still a long time to wait to file in domiciliary state approval states. An alternative for most types of products would seem to be a variation on the previous "filed for out of state use" approach. If a form is developed for use solely outside NY, there are no additional regulatory requirements until the annual filing. Therefore most, if not all of the domiciliary approval states would consider it "approved" by NY for use outside NY.
