Section 207 of the State Administrative Procedure Act (SAPA) requires that each State agency review each of its rules that is adopted on or after January 1, 1997 in the calendar year specified in the notice of adoption for the rule, provided that at a minimum every rule shall be initially reviewed no later than in the fifth calendar year after the year in which the rule is adopted, and, thereafter, every rule shall be re-reviewed at five-year intervals, in order to determine whether such rules should be modified or continued without modification.

Pursuant to SAPA section 207, the State Education Department submits the following list of its rules that were adopted during calendar years 2017, 2016, 2015 2010, 2005 and 2000 and invites public comment on the continuation or modification of such rules. All section and part references are to Title 8 of the New York Code of Rules and Regulations. Comments should be sent to the respective agency representative listed below for each particular rule and must be received within 45 days of the date of publication of this Notice.

A. CALENDAR YEAR 2017 (3 YEAR REVIEW)

2017

OFFICE OF P-12 EDUCATION

Section 100.2(x) McKinney Vento

Description of Rule: Implements the provisions of the McKinney-Vento Homeless Assistance Act for the education of homeless children and youths, as reauthorized by the Every Student Succeeds Act.

Need for Rule: Required by the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. section 11431 et seq.), as amended by Title IX of the Every Student Succeeds Act of 2015 (Public Law 1114-95) and Part C of Chapter 56 of the Laws of 2017.

Legal Basis for Rule: Education Law sections 101, 207, 215, 305, 3202, 3209 and 3713 and Title VII-B of the McKinney-Vento Homeless Assistance Act.

Section 100.4(c)(1) Middle Level CTE

Description of Rule: Revises the distribution of the unit of study requirements for Career and Technical Education (CTE) in grades 7 and 8.

Need for Rule: To implement Board of Regents policy relating to career and technical education units of study.

Legal Basis for Rule: Education Law 101(not subdivided), 207(not subdivided), 208 (not subdivided), 209(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided) and 3204(3).

Sections 100.5 and 100.20 Military Compact and Physical Education

Description of Rule: Implements the Interstate Compact on Educational Opportunity for Military Children and other provisions relating to exemptions from the assessment requirements for transfer students and diploma requirements for physical education.

Need for Rule: Necessary to implement Chapter 328 of the Laws of 2014 and to provide flexibility in the physical education diploma requirements.

Legal Basis for Rule: Education Law sections101(not subdivided), 207(not subdivided), 305(1) and 3308-3318, to implement Chapter 328 of the Laws of 2014.

Section 100.18(g)

Description of Rule: Removes the requirement that Local Assistance Plans (LAPs) and Focus Schools be identified using assessment results from 2015-2016 and thereafter.

Need for Rule: Necessary to implement Regents policy relating to public school and district accountability and Federal requirements relating to the provisions of the Every Student Succeeds Act of 2015(ESSA).

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 210(not subdivided), 215(not subdivided), 305(1) and (2) and (20), 308(not subdivided), 309(not subdivided), 3713(1) and (2)

100.2(ee) Academic Intervention Services

Description of Rule: Revises the methodology by which school districts identify students in grades 3-8 who receive Academic Intervention Services (AIS).

Need for Rule: Necessary to continue the two-step identification process for students eligible for AIS, which includes identification of students who perform at or below a median cut point score between a Level 2/partially proficient and a Level 3/proficient, as determined by the Commissioner for the 2017-2018 and 2018-2019 school years, and delays the standard setting process until the 2019-2020 school year to ensure accuracy and consistency among the assessments and the learning standards.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided) and 3204(3).

Part 136 School Health Services

Description of Rule: Amends Part 136 of the Commissioner’s Regulations relating to school health services.

Need for Rule: Necessary to implement policy enacted by the Board of Regents relating to school health services and is further necessary to implement and otherwise conform the Commissioner’s Regulations to Chapter 58 of the Laws of 2006, Chapter 57 of the Laws of 2013, and Chapter 373 of the Laws of 2016.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 901(1) and (2), 902(1) and (2), 903(1), (2) and (3), 904(1), 906(1), (2) and (3), 921(1) and (2), 3208(1), (2), (3), (4) and (5). Public Health Law section 2164(7).

Section 135.4(c)(7)(ii) Athletic Eligibility

Description of Rule: Provides a protocol for districts that choose to allow students in grades 7 and 8 to play at the high school level, or for students in grades 9-12 to participate at the middle school level.

Need for Rule: Necessary to implement policy enacted by the Board of Regents relating to the age and four-year duration of competition limitations for athletic competition and the athletic placement process.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) & (2), 803(not subdivided), and 3204(2) & (3).

Sections 30-3.4 and 30-3.5 APPRP NYC Student Growth Score

Description of Rule: Relates to the calculation of scores for student learning objectives in the required subcomponent of the student performance category of annual professional performance reviews (APPR) for teachers and principals in the City School District of the City of New York.

Need for Rule: To provide further flexibility to allow the City School District of the City of New York to calculate scores and ratings for student learning objectives (SLOs) pursuant to a methodology approved by the Commissioner in the district’s APPR plan.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), 3009(1), 3012-c and section 3012-d; section 3 of Subpart C of Chapter 20 of the Laws of 2015; and sections 1 and 2 of Subpart E of Part EE of Chapter 56 of the Laws of 2015.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

John D’Agati

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 2M, Education Building

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF HIGHER EDUCATION

Section 80-1.5 edTPA Safety Net

Description of Rule: Extends the existing edTPA Safety Net until June 30, 2018 and revises the eligibility criteria for the Multiple Measures Review Process to be aligned with the recommendations of the edTPA standard setting panel.

Need for Rule: To Extend the existing edTPA Safety Net until June 30, 2018 to help candidates transition to the Multiple Measures Review Process.

Legal Basis for Rule: Education law sections 207, 215, 3001, 3003 and 3009.

Section 145-2.1 TAP Eligibility

Description of Rule: Allows students to meet the full-time study requirement for purposes of the Tuition Assistance Program (TAP) in their second to last semester of eligibility if the student takes at least 6 semester hours needed to meet their graduation requirements (formerly 12) and the student enrolls in at least 12 semester hours or its equivalent.

Need for Rule: To provide additional flexibility to students who have difficulty meeting the “full-time” status for purposes of TAP in their program of study during their final year of college.

Legal Basis for Rule: Education Law sections 101, 207, 305, 602 and 661.

Sections 30-3.2, 30-3.5, 52.21, and 80-3.10 Professional Standards for Educational Leaders (PSELs)

Description of Rule: Adopts the 2015 Professional Standards for Educational Leaders (PSELs) with certain New York specific modifications for the purpose of registration of school building leader programs and school building leader evaluation.

Need for Rule: To establish new professional practice guidelines and expectations for principles.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2) and 3012-d(4).

Sections 80-3.3, 80-3.4, 80-3.5 & 80-3.7 CTE Certification Pathways

Description of Rule: Provides additional flexibility for candidates seeking a certification in a career and technical educational (CTE) subject. First, it provides for a new Option J pathway to obtain a Transitional A certificate and it also provides additional gateways to obtaining Initial and/or Professional certification through either individual evaluation or program completion. The amendments also eliminate the 30 semester hour coursework requirement for the Initial certificate in CTE and replaces it with nine hours of pedagogy coursework for an Initial certificate in CTE and replaces it with nine hours of pedagogy coursework for an Initial certificate and an additional nine hours of pedagogy coursework for the Professional CTE certificate.

Need for Rule: To provide additional flexibility for candidates seeking a certification in a career and technical educational (CTE) subject to address teacher shortages.

Legal Basis for Rule: Education Law 207(not subdivided), 305(1) and (2), 3004(1) and 3009(1).

Subpart 152-1 HEOP

Description of Rule: Clarifies for institutions what types of expenses fall within the newly enumerated categories eligible for the Arthur O. Eve Higher Education Opportunity Program (HEOP) grant funding and makes technical amendments to conform to current practice and to update current regulatory language.

Need for Rule: Necessary to implement Chapter 494 of the Laws of 2016 and to make technical clarifying amendments.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1), 6451(1-6), 6452(1-5) and Chapter 494 of the Laws of 2016.

Section 80-5.17 Conditional Initial Certificate

Description of Rule: Permanently extends the option out-of-state candidates who have met all other requirements for an initial certificate other than completion of the edTPA, to obtain a conditional initial certificate and be employed in New York State schools.

Need for Rule: It is essential for those individuals who want to come to New York but do not have access to a classroom, and therefore find difficulty in completing the edTPA.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), 3001(2), 3004(1), 3006(1) and 3009(1).

Part 48 Enough is Enough Reporting

Description of Rule: Provides for annual aggregate data reporting by New York State institutions of higher education related to reports of domestic violence, dating violence, stalking and sexual assault.

Need for Rule: Necessary to implement Chapter 76 of the laws of 2015.

Legal Basis for Rule: Education Law §§ 101, 207, 305 and 6439 through 6449, as added by Chapter 76 of the Laws of 2015.

Section 80-5.23 Residency Certificates

Description of Rule: Establishes the requirements for a residency certificate for students enrolled in a Classroom Academy Residency Pilot Program. Allows such students to apply for a time-limited certificate so that candidates enrolled in the program may be certified and receive payment by the school district/BOCES for their services.

Need for Rule: Allow candidates enrolled in the Classroom Academy Residency Pilot Program to be certified and receive payment by the school district/BOCES for their services.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(not subdivided), 3001(2), 3004(1) and 3009(1).

Section 80-1.5 EdTPA Multiple Measure Review

Description of Rule: Establishes a multiple measures review process for the edTPA.

Need for Rule: Necessary to implement recommendations from the edTPA Task Force to establish a multiple measures review process for the edTPA for certain candidates to seek a waiver from the edTPA examination requirement for initial certification as a teacher in this State.

Legal Basis for Rule: Education Law sections 207(not subdivided), 215(not subdivided), 3001(2), 3004(1) and 3009(1).

Part 80 ALST Elimination

Description of Rule: Eliminates the Academic Literacy Skills Test (ALST) for Teacher Certification and removes unnecessary references to the Liberal Arts and Sciences Test (LAST).

Need for Rule: Necessary to implement recommendations from the edTPA Task Force, which was reconvened at the request of the Board of Regents.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), 3001(2), 3004(1) and 3009(1).

Sections 52.21, 100.2(j) and Part 80 School Counseling

Description of Rule: Enhances existing public school district guidance programs to require comprehensive developmental counseling programs for all students in grades prekindergarten through twelve provided by certified school counselors. The amendment also makes changes to the certification requirements for school counselors and the requirements for school counselor preparation programs in order to support comprehensive developmental school counseling programs.

Need for Rule: Necessary to implement policy of the Board of Regents relating to enhancing existing public school district guidance programs to require comprehensive developmental counseling programs for all students in grates prekindergarten through twelve provided by certified school counselors.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 210(not subdivided), 214(not subdivided), 215(not subdivided), 305(1) and (2) , 308, 3001(2), 3004(1), 3006(1)(b) and 3009(1).

Sections 80-1.8 and 80-5.18 Reissuance of certificates and supplementary certificates

Description of Rule: Allows candidates to complete the required professional development within one year prior to the Department’s receipt of a completed application or within one year after the Department’s receipt of such completed application for the reissuance. The proposed amendment also makes supplementary certificates valid for five years rather than three years.

Need for Rule: To provide increased flexibility to candidates who may otherwise quality for a reissuance of their expired certificate, but who have not completed the required 75 hours of professional development before applying for the reissuance. Also to provide increased flexibility to districts and candidates seeking a certificate in a new certificate title, to have a supplementary certificate valid for five years rather than the current three years. This allows teachers with a supplementary certificate to have more time to complete the requirements for their initial or professional certificate in the new certificate title.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), 3001(1)-(3), 3004(1) and 3009(1).

Section 3.56 Permission to Operate

Description of Rule: Establishes fees and procedures for out-of-state institutions seeking to operate with a physical presence in New York State.

Need for Rule: To provide resources to support evaluation and administration of out-of-state institutions seeking to operate in New York State in a manner that does not diminish resources otherwise available to support New York State’s degree-granting institutions.

Legal Basis for Rule: Education Law 101(not subdivided), 207(not subdivided), 210(not subdivided), 210-c(not subdivided), 212(3), 97-lll of the State Finance Law and Chapter 220 of the Laws of 2015.

Section 801.6 Time Extension

Description of Rule: Automatically extends the time validity of certain expired provisional, initial or transitional certificates for three years if a candidate meets certain criteria and is unable to complete the requirements for the initial, permanent or professional certificate in a timely manner.

Need for Rule: Addresses concerns from the field related to teacher shortages raised by school districts and Board of Cooperative Educational Services (BOCES).

Legal Basis for Rule: Education Law 207, 207, 215, 3001, 3003 and 3009.

Section 80-3.5 Three Pathway Career and Technical Education (CTE)

Description of Rule: Establishes new pathway options for the Transitional A certificate in a career and technical education subject for candidates who do not meet the current requirements but who possess industry experience, credentials, or are in the process of completing certification.

Need for Rule: To provide additional opportunities and flexibility for individuals with specific technical and career experience to obtain a Transitional A teaching certificate in their area of expertise, or related are, thus allowing them to teach CTE subjects at the secondary school level. This helps to increase the supply of qualified, certified teachers in the career and technical education field in order to satisfy the increasing demand for those teachers.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1) and (2), 3001(2), 3004(1), 3006(1)and 3009.

Section 80-1.5 Safety Nets for the Revised Content Specialty Tests

Description of Rule: Creates a new safety net that will allow candidates to take and pass either the revised content specialty test (CST) or the predecessor CST for certification, for both the currently operational redeveloped CSTs and the newly operational CSTs. The safety net for the newly operational CSTs expired on June 30, 2019, and the safety net for the currently operational CSTs expired on June 30, 2017. The proposed amendment also extends the current safety net for the Multi-Subject 7-12 Part Two: mathematics CST until June 30, 2018.

Need for Rule: To provide programs additional time to prepare their students for the content specialty tests.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1) and (2), 3001(2), 3004(1), 3006(1) and 3009.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

William Murphy

Deputy Commissioner of Higher Education

New York State Education Department

Office of Higher Education

Room 975, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 402-3620

OFFICE OF ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCESS)

Part 126 Online Educational Marketplaces

Description of Rule: Provides a procedure whereby online education marketplaces, and the schools that contract with them, may lawfully conduct marketing and advertising activities without obtaining a private agent certificate pursuant to Education Law § 5004, subject to certain conditions.

Need for Rule: To implement Chapter 475 of the laws of 2016 which exempts an “online education marketplace” from the requirements for a private school agent certificate.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 305(1), Education Law 5001 through 5010 and Chapter 475 of the Laws of 2016.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

Kevin Smith

Deputy Commissioner

Office of Adult Career and Continuing Education Services

Room 575EBA

89 Washington Avenue

Albany, New York 12234

(518) 474-2714

OFFICE OF CULTURAL EDUCATION

Section 3.12 Members of the Museum and Library Council

Description of Rule: Increases the Museum Advisory Council and Library Council membership from 9 members to 15 members.

Need for Rule: By increasing the membership of both the Museum and Library Councils to 15 members each, all Office of Cultural Education Councils will have an equal number of members.

Legal Basis for Rule: Education Law §§ 101(not subdivided) 206(not subdivided), 207(not subdivided), 214 (not subdivided) 232(not subdivided) 305(1) and (2).

Sections 90.12 and 90.18 State Aid for Library Construction and School Library Systems

Description of Rule: Updates and clarifies certain terminology relating to the functions of school library systems.

Need for Rule: To implement Education Law section 273-a and to update terminology related to the functions of school library systems.

Legal Basis for Rule: Education Law sections 207(not subdivided), 215(not subdivided), 273-a(1) through (7), 282(not subdivided), 283(not subdivided) and 284(not subdivided).

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

Mark Schaming

Deputy Commissioner for Cultural Education

New York State Education Department

New York State Library

Room 10C34

Albany, New York 12230

(518) 474-5930

B. CALENDAR YEAR 2016 (4 YEAR REVIEW)

2016

OFFICE OF P-12 Education

Section 100.5(g)(1)(i) Regents Exam in English Language Arts

Description of Rule: Transition to the Regents Examination in English Language Arts by allowing, for a limited time and at the discretion of the local school district, students who began grade 9 prior to 2013, and who receive ELA (Common Core) instruction, to take the Regents Comprehensive Examination in English Language Arts aligned to the 2005 Learning Standards in addition to the Regents Examination in English Language Arts (Common Core) and meet the requirement for graduation by passing either examination.

Need for Rule: To provide additional flexibility in the transition to the Common Core-aligned Regents Examination in English Language Arts.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 209(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided) and 3204(3).

Section 100.2(c)(11) Students with Disabilities CPR Exemption

Description of Rule: Allows for an exemption of a student with a disability from the requirement for instruction in hands-only cardiopulmonary resuscitation and the use of automated external defibrillators.

Need for Rule: Necessary to implement Regents policy to allow an exemption of a student identified as having a disability that precludes his or her ability to participate in hands-only instruction in CPR and instruction in the use of AEDs from the instruction requirement in section 100.2(c)(11) of the Commissioner’s regulations.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2), (20) and (52), 308(not subdivided), 804-c(2), 804-d(not subdivided) and Chapter 417 of the Laws of 2014.

Section 100.19 School Receivership

Description of Rule: Establishes criteria for appointment of receivers to assist low-performing schools.

Need for Rule: Necessary to implement Education Law section 211-f by establishing criteria for appointment of receivers to assist low-performing schools.

Legal Basis for Rule: Education Law sections 207(not subdivided), 211-f(15), 215(not subdivided), 305(1), (2) and (20), 308(not subdivided), 309(not subdivided) and Part EE, Subpart H of Ch.56 of the Laws of 2015.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

John D’Agati

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 2M, Education Building

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

C. CALENDAR YEAR 2015

OFFICE OF P-12 Education

Section 100.5(g)(1)(ii)(a) Math Exam Flexibility

Description of Rule: The purpose of the rule is to adopt a technical clarification to the Commissioner’s Regulations, providing additional flexibility in the transition to the Common Core Regents Examination in Algebra I.

Need for Rule: The rule is necessary to clarify that for the June 2015 administration only, students receiving Algebra I (Common Core) instruction that began prior to September 2014, may, at the discretion of the applicable school district, take the Regents Examination in Integrated Algebra in addition to the Regents Examination in Algebra I (Common Core) and may meet the mathematics requirement for graduation by passing either examination.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 208 (not subdivided), 209 (not subdivided), 305(1) and (2), 308 (not subdivided) and 3204(3).

Sections 80-3.6, 100.2, 154-2.3 ELL Professional Development

Description of Rule: The rule amends sections 80-3.6, 100.2(dd), and 154-2.3(k) of the Regulations of the Commissioner of Education relating to professional development in language acquisition addressing the needs of English Language Learners (ELLs).

Need for Rule: The rule is necessary to establish professional development requirements for teachers, holders of a level III teaching assistant certificate, and administrators, in language acquisition that specifically addresses the needs of students who are ELLs and to integrate language and content instruction for such ELL students.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 215 (not subdivided), 305(1) and (2), 2117(1), 2001(2), 3003(1), 3004(1), 3006(1)(b), and 3009(1).

Section 136.6 Epinephrine Auto-injectors

Description of Rule: Prescribes standards for the provision, maintenance and use of epinephrine auto-injectors pursuant to Education Law section 921, to ensure ready and appropriate access for use during emergencies to any student or staff having anaphylactic symptoms.

Need for Rule: To implement Chapter 424 of the Laws of 2014 which added a new section 921 to the Education Law, permitting schools and any person employed by them, to administer epinephrine auto-injectors in the event of an emergency.

Legal Basis for Rule: Education Law sections 207, 305, and 921 and Chapter 424 of the Laws of 2014.

Section 100.5(d)(7) ELL Graduation Requirements

Description of Rule: Extends the ability to graduate with a Local Diploma via appeal to English Language Learners (ELLs) who meet all other conditions for appeal and are otherwise eligible to graduate on and after January 2015, and clarifies that the appeal process applies to ELLs who meet one or more graduation assessment requirements via an available alternative pathway and meet all other conditions for appeal.

Need for Rule: Necessary to implement Regents policy relating to criteria for bilingual education and English as a New Language programs for students who are ELLs, including determining graduation requirements, in order to ensure compliance with Education Law sections 3204 and 4403, and Title I and III of the Elementary and Secondary Education Act (ESEA), Title IV of the Civil Rights Act of 1964, Equal Educational Opportunities Act of 1974 (EEOA).

Legal Basis for Rule: Education Law sections 101, 207, 208, 209, 305, 308, 309 and 3204.

Section 100.5 Regents Diploma Pathways

Description of Rule: Clarifies the requirements for earning a Regents Diploma with advanced designation by students who elect to meet the requirements through the mathematics or science pathway options and allows students to earn a Regents Diploma through the humanities pathway by passing either an additional Regents assessment, or a Department approved alternative, in a different course in Social Studies or in English.

Need for Rule: Necessary to implement policy enacted by the Regents relating to State learning standards, State assessments, graduation and diploma requirements, and higher levels of student achievement.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivide), 209(not subdivided), 305(1)-(2), 308(not subdivided), and 3204(3).

Section 100.2(y) Student Enrollment

Description of Rule: Provides clear requirements for school districts regarding student enrollment, particularly as it pertains to procedures for unaccompanied minors and other undocumented youths.

Need for Rule: To codify applicable Federal and State laws, as well as existing Department guidance to school districts, in order to ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), (2), and (20), 3202(1), and 3713(1)-(2).

Section 154-2.3(h) Units of Study and Provision of Credits for ELLs

Description of Rule: Makes technical amendments relating to units of study for English as a New Language and Native Language Arts.

Need for Rule: Necessary to clarify units of study mandates for and credits given to English Language Learners (ELLs) for Integrated English as a New Language (ENL) instruction, and clarify the units of study mandated for and credits given to ELLs in Bilingual Education Programs for ENL and bilingual core content area instruction.

Legal Basis for Rule: Education Law sections 207(not subdivided), 208(not subdivided), 215(not subdivided), 305(1)-(2), 2117(1), 2854(1)(b), and 3204(2), (2-a), (3), and (6).

Section 100.18 New York State’s School and District Accountability System

Description of Rule: Makes technical changes to the definition of how schools and districts are credited with making Adequate Yearly Progress for the “all students” group to align with New York’s approved ESEA flexibility waiver and to clarify the methodology for identification of Local Assistance Plan (LAP) schools.

Need for Rule: Necessary to implement the Regents policy relating to public school and district accountability and federal requirements relating to New York State’s approved ESEA flexibility waiver.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 210(not subdivided), 215,(not subdivided), 305(1), (2), and (20), 308(not subdivided), 309(not subdivided), 3204(3), and 3713(1) and (2).

Section 136.7 Self-administration of Certain Medications

Description of Rule: Permits the carrying and self-administration of certain medications by students and permits schools to authorize a licensed registered professional nurse, nurse practitioner, physician assistant, or physician to train unlicensed school personnel to inject certain medication in certain emergency situations, to students who have a written parent/guardian consent.

Need for Rule: To implement Chapter 423 of 2014 which requires school districts and BOCES to permit students diagnosed with asthma or other respiratory conditions, allergies, and diabetes to carry and self-administer certain medications at school.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1) and (2), 902-a (1) and (2), 902-b (1) and (2), 916-a (1) and (2), 916-b(1) and (2) and 921 (1) and (2) and Chapter 423 of the Laws of 2014.

Section 136.8 Opioid Overdose Prevention

Description of Rule: Prescribes standards for the provision, maintenance and use of opioid antagonists pursuant to Education Law section 922.

Need for Rule: To ensure ready and appropriate access for use of opioid antagonists during emergencies to any student or staff having opioid overdose symptoms.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 305(1) and (2), and 922(1) and (2) and Part 5 of Chapter 57 of the Laws of 2015.

Section 100.18 ESEA Waiver Renewal

Description of Rule: Makes revisions pertaining to school and district accountability in order to conform the regulations with the State’s approved Elementary and Secondary Education Act (ESEA) Renewal Waiver and align the regulations with Commissioner’s Regulation section 100.19 related to receivership.

Need for Rule: Required in order to implement New York State’s approved ESEA Renewal Waiver.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 210(not subdivided), 211-e(1-5), 211-f(15), 215(not subdivided), 305(1) and (2), 309(not subdivided) and 3713(1) and (2).

Section 100.5(g)(1)(ii) Algebra II

Description of Rule: Allows, at the discretion of the applicable school district, students receiving Algebra II (Common Core) instruction to take the Regents Examination in Algebra 2/Trigonometry aligned to the 2005 Learning Standards in addition to the Regents Examination in Algebra II (Common Core), and meet the mathematics requirement for graduation by passing either examination.

Need for Rule: To provide additional flexibility in the transition to Common Core-aligned Regents Examination in mathematics.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 209(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided) and 3204(3).

Section 100.5(d)(7)(i) Special Education Safety Net

Description of Rule: Extends the ability to graduate with a Local Diploma via appeal of a score of 55 to students with disabilities who meet all other conditions for appeal and are otherwise eligible to graduate.

Need for Rule: Necessary to implement Regents policy to provide an option to students with disabilities who meet certain specified criteria to graduate with a Local Diploma via an appeals process.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 209(not subdivided), 215(not subdivided), 305(1) and (2), 308(not subdivided) and 309(not subdivided).

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

John D’Agati

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 2M, Education Building

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF HIGHER EDUCATION

Sections 80-1.1 & 80-5.6 Teaching Assistant Certificates

Descriptions of Rule: Provides time extensions for Level II teaching assistant certificates, amends the definition of school year for purposes of experience for certification as a teaching assistant, and makes a technical amendment relating to fees for internship certificates.

Need for Rule: To clarify existing certification requirements for teaching assistants and to provide a time extension on the validity of Level II teach assistant certificate while a candidate is pursuing citizenships, which is required for a Level III teaching assistant certificate.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 305(1)-(2), 3001(2), 3004(1), 3006(1)(b) and 3009(1).

Subpart 152-3 Foster Youth College Success Program

Description of Rule: Provides support services to assist youth in foster care to apply for, enroll in, and succeed in college through the Foster Youth College Success Initiative.

Need for Rule: To implement Part X of Chapter 56 of the Laws of 215 which established the Foster Youth College Success Initiative.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1) and (2), 6451(1-6) and 6456(1-7), as added by Chapter 56 of Laws of 2015.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning any of the above proposed amendments by contacting:

William Murphy

Deputy Commissioner of Higher Education

New York State Education Department

Office of Higher Education

Room 975, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 402-3620

OFFICE OF THE PROFESSIONS

Sections 29.2, 52-44, 52.45, 59.14, 79-17, 79-18 Applied Behavior Analysis (ABA)

Description of Rule: Licensure of behavior analysts and certification of behavior analyst assistants.

Need for Rule: To implement Chapter 554 of the Laws of 2013 which established the profession of applied behavior analysis (ABA).

Legal Basis for Rule: Education Law sections 207 (not subdivided), 6503-a, 6504(not subdivided), 6507(2)(a), 6509(9), 8800, 8801, 8802, 8803, 8804, 8805, 8806, 8807 and 8808, Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014.

Section 66.6 Therapeutic Pharmaceutical Agents Description of Rule: Expands the list of methods of study that the Department will consider acceptable for continuing education requirements for optometrists certified to use therapeutic pharmaceutical agents.

Need for Rule: To provide optometrists, who are certified to use therapeutic pharmaceutical agents, with more flexibility in satisfying their continuing education requirements.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 7101, and 7101-a(7).

Sections 52.31, 79-8.5, 79-8.6 Safety Net

Description of Rule: Amends the requirements for medical physics education programs and eligibility requirements for a limited permit in a specialty area of medical physics, and removes obsolete regulatory provisions relating to the licensure of medical physicists.

Need for Rule: To reflect changes in the national accreditation requirements for medical physics education programs.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 8701, 8705 and 8706.

Sections 60.8 and 60.11 Physicians Assistants and Specialist Assistants

Description of Rule: Licensure of Physician Assistants and Registration of Specialist Assistants.

Need for Rule: To conform the Regulations of the Commissioner of Education to Chapter 48 of 2012, which became effective January 1, 2013, by separating the licensure requirements for physician assistants from the registration requirements for specialist assistants.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6501(not subdivided), 6504(not subdivided), 6507(2)(a), 6540, 6541, 6544(not subdivided), 6546, 6547, 6548, and 6549-b(not subdivided), and Chapter 48 of the Laws of 2012.

Section 64.7 Opioid Overdose Treatment/Hepatitis C

Description of Rule: Execution by registered professional nurses of non-patient specific orders to administer opioid related overdose treatment and hepatitis C tests.

Need for Rule: To establish uniform requirements for registered professional nurses to meet when executing non-patient specific orders to administer hepatitis C test and opioid related overdose treatment.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504 (not subdivided), 6507(2)(a), 6527(6)(e), 6527(6)(f), 6902(1), 6909(4)(e), 6909(4)(f), and Chapter 352 of the Laws of 2014 and Part V of Chapter 57 of the Laws of 2015.

Section 63.9 Pharmacist Vaccinations

Description of Rule: Administration of vaccinations by pharmacists.

Need for Rule: Necessary to conform the Regulations of the Commissioner of Education to Chapter 46 of 2015, which includes authorizing certain qualified pharmacists to administer vaccinations.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6527(7), 6801(2) and (4), 6802(22), and 6909(7) of the Education Law, and Chapter 46 of the Laws of 2015.

Agency representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Douglas E. Lentivech

Deputy Commissioner for the Professions

New York State Education Department

Office of the Professions

89 Washington Avenue

West Wing, Second Floor - Education Building

Albany, NY 12234

(518) 486-1765

[email protected]

D. CALENDAR YEAR 2010

OFFICE OF P-12 EDUCATION

Section 3.16 Charter School Delegation

Description of Rule: The purpose of the rule is to delegate to the Commissioner of Education the authority of the Board of Regents pursuant to Education Law section 2852(7) to approve revisions to the charters of charter schools, with certain specified exceptions.

Need for Rule: The rule is necessary to delegate to the Commissioner of Education the authority of the Board of Regents to approve revisions, with certain specified exceptions, to the charter of public charter schools. Having the Board of Regents approve all revisions, including revisions that do not fundamentally affect the school's missions, organizational structure or educational program, and other such changes, is not deemed to be the most appropriate and efficacious means to address these matters, considering the scope of duties of the Board, the limited number of times that the Board meets during the year, and the time demands placed on individual Board members. It has been determined that delegation to the Commissioner of the Board's authority to approve charter revisions, with certain specified exceptions, will provide for the most efficient and expeditious means to approve and issue charter revisions.

Authority to approve revisions concerning the following is retained by the Board of Regents and not delegated to the Commissioner: (1) educational philosophy, mission or vision; (2) governance or leadership structure; (3) the curriculum model or school design changes that are inconsistent with that approved in the current charter; (4) hiring or termination of a management company; (5) school name; (6) location, if such revision results in relocation to another school district; (7) maximum enrollment, as set forth in the current charter; and/or (8) grades served, as set forth in the current charter. The rule authorizes the Commissioner to approve revisions concerning items (1) through (3) above, provided that the revisions are determined by the Commissioner not to be significant.

Legal Basis for Rule: Education Law sections 101(not subdivided), 206(not subdivided), 207(not subdivided), 305(1), (2) and (20) and 2852(7).

Sections 100.1, 100.2, 100.4 & 100.5 LOTE and State Assessments

Description of Rule: The rule amends sections 100.1, 100.2, 100.4 and 100.5 of the Commissioner's Regulations to eliminate certain State examinations beginning in the 2010-2011 school year as a cost-saving measure associated with the administration of State assessments.

Need for Rule: In response to current fiscal constraints, this rule implements cost-saving measures associated in administering State examinations and assessments by eliminating certain State examinations beginning in the 2010-2011 school year, specifically second language proficiency (SLP) examinations, Regents comprehensive examinations in German, Hebrew and Latin, and State assessments in social studies for grades five and eight. Despite the elimination of these assessments, this rule will ensure that students continue to meet State learning standards and earn diploma credit.

Given the elimination of SLP examinations, students will be required to pass a locally developed examination, in addition to completing two units of study, which will be aligned with Checkpoint A learning standards for languages other than English and approved for high school credit by the superintendent or chief administrative officer of a charter or public school, as applicable. Further, despite the elimination of State assessments in social studies, schools will remain required to provide academic intervention services to students when such students have been determined through a district-developed or district-adopted procedure to be at risk of not achieving State learning standards in social studies. Lastly, despite the elimination of Regents comprehensive examinations in Hebrew, German and Latin, students may pass a locally developed test aligned with Checkpoint B learning standards for languages other than English to earn Regents diploma credit.

Legal Basis for Rule: Education Law §§ 101,207, 208, 209, 305, 308, 309, and 3204.

Section 100.2(ee) Academic Intervention Services

Description of Rule: The rule establishes modified requirements for the provision of academic intervention services (AIS) during the 2010-2011 school year to provide flexibility to school districts and hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics.

Need for Rule: The rule establishes modified requirements for the provision of AIS during the 2010-2011 school year based on several factors, including: (1) the change in cut scores for the grades 3-8 assessments in English language arts and mathematics which determine student proficiency; (2) the fact that such changes will not be announced to the field until late July or early August; and (3) the fiscal impact that school districts may experience because of the increase in the number of students required to receive AIS. The purpose of the rule is to provide flexibility to school districts in providing AIS during the 2010-2011 school year in order to hold districts harmless from the expected fiscal impact of an increase in the number of students required to received AIS as a result of a change in cut scores for the grades 3-8 assessments in English language arts and mathematics. School districts will continue to have the option to offer services to those children who they feel are in need of the additional support.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided) and 3204(3).

Section 100.2(ee)(7) AIS/RTI

Description of Rule: The rule adds a new paragraph (7) to section 100.2(ee) of the Commissioner's Regulations. The rule affords flexibility to school districts in providing academic intervention services (AIS) by allowing districts to offer a Response to Intervention program in lieu of providing AIS to eligible students, provided specified conditions are met.

Need for Rule: The rule affords flexibility to school districts in providing AIS by allowing districts to offer a Response to Intervention (RTI) program in lieu of providing AIS to eligible students, provided specified conditions are met. Specifically, the rule would allow for a school district to: (1) continue with a current AIS model, or (2) move to or expand on an RTI model, or (3) use a blended approach of AIS and RTI (ex: RTI in lower grades, AIS in upper grades).

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided) and 3204(3).

Section 100.2(p) SURR & PLA Schools

Description of Rule: The rule would amend section 100.2(p) of the Commissioner's Regulations, effective July 14, 2010, to conform provisions regarding the identification of schools for registration review (SURR) with United States Department of Education (USED) requirements to identify schools as Persistently Lowest-Achieving in order for states to access State Fiscal Stabilization Funds (Phase II), School Improvement Grants and other Federal funding opportunities, and to require SURRs to implement intervention strategies based upon School Improvement Grant guidelines issued by USED in January 2010.

Need for Rule: Section 100.2(p) is amended to comply with USDE requirements to identify schools as PLA in order for states to access State Fiscal Stabilization Funds (Phase II), School Improvement Grants and other Federal funding opportunities and to require schools identified as SURRs to implement intervention strategies based upon School Improvement Grant guidelines issued by USDE in January 2010.

The purpose of the rule is to strengthen the SURR process by merging it with the process to identify PLA schools in order to increase the percentage of schools that successfully implement an intervention strategy that results in the school being removed from PLA status or that results in the school being replaced by a new school in Good Standing.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1), (2) and (20), 309(not subdivided) and 3713(1) and (2).

Section 100.2(p)(1) Accountability Declassified SWD

Description of Rule: The rule amends section 100.2(p)(1) of the Commissioner's Regulations to conform the Commissioner's Regulations with New York State’s approved amended No Child Left Behind (NCLB) accountability plan that includes in the students with disabilities subgroup, students previously identified as students with disabilities during the preceding one or two school years. The amended plan was approved by the United State Department of Education (USDE) on June 9, 2010.

Need for Rule: Section 100.2(p)(1)(i) has been amended to establish criteria and procedures to ensure State and local educational agency compliance with the provisions of the NCLB relating to academic standards and school and school district accountability. The State and local educational agencies (LEAs) are required to comply with the NCLB as a condition to their receipt of federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA).

NCLB section 1111(b)(2) requires each state that receives funds to demonstrate, as part of its State Plan, that the state has developed and is implementing a single, statewide accountability system to ensure that all LEAs, public elementary schools and public high schools make adequate yearly progress (AYP). Each state must implement a set of yearly student academic assessments in specified subject areas that will be used as the primary means of determining the yearly performance of the state and each LEA and school in the state in enabling all children to meet the State's academic achievement standards.

The rule conforms the Commissioner's Regulations to New York State's amended accountability plan, as approved by the USDE. Adoption of the rule provides a more accurate account of the academic progress that schools and districts are making with students with disabilities commencing with the 2009-2010 school year, and will make the accountability rules for former students with disabilties consistent with rules currently applied to former limited English proficient students.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1), (2) and (20), 309(not subdivided) and 3713(1) and (2).

Section 105.3 Special Act School Districts

Description of Rule: The rule amends section 105.3 of the Commissioner's Regulations to provide the Commissioner with more flexibility to appoint prospective public members to Special Act school district board of educations, based upon their availability to serve. The current regulation generally provides for uniform, consecutive 4-year terms for all public members that commence on the first day of a school year (July 1st) and end on the last day of the fourth school year thereafter (June 30th). However, because of the unavailability of persons willing to serve at the prescribed times, it was not possible for the Commissioner to appoint public members in accordance with the current regulation.

Need for Rule: Commissioner's Regulations § 105.3(b) generally provides for uniform, consecutive 4-year terms for all public members that commence on the first day of a school year (July 1st) and end on the last day of the fourth school year thereafter (June 30th). However, because of the unavailability of persons willing to serve at the prescribed times, it was not possible for the Commissioner to appoint public members in accordance with the current language in the regulation. The rule provides more flexibility for the appointment of public members based upon their availability to serve.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (20), 308(not subdivided), 309(not subdivided) and Chapters 628 and 629 of the Laws of 2004.

Section 100.5(d)(8) Make-up Credit

Description of Rule: To establish requirements for award of make-up credit to high school students.

Need for Rule: In April 2009, the EMSC Committee of the Board of Regents reviewed a “Draft Proposed Policy on Making Up Course Credit and Receiving Course Credit for Independent Study.” After review and discussion, the Regents directed staff to seek public input on the draft policy on making up course credit. A field survey was posted on the Department’s Web site in June and concluded in September. A summary and analysis of the survey responses was compiled and submitted for review and consideration in October.

At the October 13, 2009 Board of Regents meeting, members reviewed and approved policy relating to making up course credit. Staff was directed to draft regulatory changes to the Commissioner's Regulations to implement the make up course credit policy.

The rule establishes standards for make-up credit programs for school districts, registered nonpublic schools, and charter schools that choose to offer such programs. The rule is intended to insure appropriate levels of rigor and quality for make-up (credit recovery) programs implemented by local schools.

The make-up program must be aligned with the New York State learning standards for that subject, satisfactorily address the student's course completion deficiencies and individual needs, and ensure that the student receives equivalent, intensive instruction in the subject matter area provided under the direction and/or supervision of a teacher. For programs offered by school districts and boards of cooperative educational services, the direction and supervision must be provided by a teacher certified in the subject matter area.

In the case of a school district or registered nonpublic school, a student's participation in the make-up credit program must be approved by a school-based panel consisting of, at a minimum, the principal, a teacher in the subject area for which the student must make up credit, and a guidance director or other administrator.

To receive credit, the student must successfully complete the make-up credit program and demonstrate mastery of the learning outcomes for the subject, including passing the Regents examination in the subject or other assessment required for graduation, if applicable.

Legal Basis for Rule: Education Law sections 101, 207, 208, 209, 305(1) and (2), 308, 309 and 3204(3)

Section 100.5(d)(9) Independent Study

Description of Rule: To establish requirements for independent study offered by school districts, registered nonpublic schools and charter schools.

Need for Rule: In April 2009, the EMSC Committee of the Board of Regents reviewed a “Draft Proposed Policy on Making Up Course Credit and Receiving Course Credit for Independent Study.”

In March 2010, the Regents approved a conceptual policy on receiving course credit for independent study. At the April 2010 Board of Regents meeting, the EMSC Committee reviewed and discussed policy relating to independent study credit. Staff was directed to draft regulatory changes to the Commissioner's Regulations to implement the independent study credit policy.

The rule establishes standards for a school district, a charter school or a registered nonpublic school to award up to three units of elective credit towards a Regents diploma for independent study. The independent study must be academically rigorous and aligned to the New York State commencement level learning standards for the subject in which credit is sought; overseen by a teacher knowledgeable and experienced in the subject area of the independent study; based on a syllabus on file for each independent study; and of comparable scope and quality to classroom work that would have been done at the school district, charter school or registered nonpublic school awarding the credit.

In the case of a school district or registered nonpublic school, a student's participation in independent study shall be approved by a school-based panel consisting of, at a minimum, the principal, a teacher in the subject area for which independent study is sought, and a guidance director or other administrator.

The rule is intended to insure appropriate levels of rigor and quality for providing students with the opportunity to earn independent study credit and for awarding independent study credit for successful program completion. To receive credit, the student must successfully complete the independent study and demonstrate mastery of the learning outcomes for that subject.

Legal Basis for Rule: Education Law sections 101, 207, 208, 209, 305(1) and (2), 308, 309 and 3204(3)

Section 135.4 Duration of Competition

Description of Rule: The rule provides a waiver for a student with a disability, defined under § 4401 of the Education Law, to participate in a non-contact sport for a fifth additional season in high school if such student has not graduated from high school as a result of his or her disability delaying his or her education. Such student would have to meet other criteria in order to qualify for such a waiver.

Need for Rule: The rule provides a waiver for a student with a disability to participate in senior high school athletic competition for an additional season despite the age and four-year limitations prescribed in section 135.4 of the Commissioner’s regulations. The rule advances initiatives of inclusion by allowing students with disabilities who would otherwise not be able to participate in interscholastic athletic competition due to their age or years in school to participate in a sport for an additional season if they have not graduated as a result of their disability delaying their education. This rule offers these students continued socialization with teammates and continued opportunity to develop the skills and abilities associated with his or her participation in such sport.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 308(not subdivided),803 (not subdivided) and 3204(2) and (3).

Section 155.22 Qualified School Construction Bonds

Description of Rule: The rule establishes procedures for allocation of the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2).

In addition, the rule revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

Need for Rule: Internal Revenue Code section 54F (26 USC section 54F), as added by section 1521(a) of Title 1 of Part III of Subtitle F of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub.L. 111-5, provides for the issuance of Qualified School Construction Bonds for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such issue, by a State or local government within the jurisdiction of which such school is located. The statute establishes a national qualified school construction bond limitation for each of the 2009 and 2010 calendar years. Within such national bond limitation amount, the Secretary of the U.S. Treasury will allocate state limitation amounts to each state for the state's allocation to bond issuers within the state.

New York State is home to three city school districts, New York City, Buffalo and Rochester, that are large enough to qualify as part of the 100 largest nationwide school districts, and as such, these districts will receive direct federal Qualified School Construction Bond Allocations from the U.S. Treasury Secretary. Additionally, New York State received $192 Million in the 2009 and $178 Million in the 2010 calendar years to allocate to other districts in the State that did not receive a direct federal allocation.

The 2009 allocation was retained by the State to fund State expenditures for local district capital projects. The purpose of the rule to amend section 155.22 of the Commissioner's Regulations is to prescribe the procedures for New York State to allocate its $174,782,000 2010 state limitation amount to those school district bond issuers not receiving a direct federal allocation.

In addition, the rule revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E.

Legal Basis for Rule: Education Law sections101, 207, 305(1) and (2) and 26 USC sections 54E and 54F.

Part 200 Special Education Mandate Relief

Description of Rule: Mandate relief to schools in certain areas of special education that exceed federal requirements, and to make technical changes. The purpose of the rule is to amend sections 200.2, 200.4, 200.5, 200.6, 200.9, 200.10, 200.11, 200.13, 200.20, 201.2 and 201.11 of the Regulations of the Commissioner of Education to provide relief from certain special education service requirements, specifically by: repealing the minimum service delivery requirements for speech and language; authorizing school districts to add up to two additional students to integrated co-teaching classes; and repealing the requirement that each student with autism receive instructional services to meet his/her individual language needs at a minimum of 30 minutes daily in groups not to exceed two, or 60 minutes daily in groups not to exceed six.

The rule would also conform State regulations to federal requirements relating to meeting notice and parent participation in CSE meetings and to State statutory language relating to district plans of service for special education, and correct certain citations.

Need for Rule: The rule provides mandate relief to schools in certain areas of special education that exceed federal requirements; conforms the Commissioner's Regulations to the federal regulations (34 CFR Part 300) that implement the Individuals with Disabilities Education Act (IDEA) and State law; and makes certain technical amendments, including correction of cross citations.

The rule provides mandate relief and appropriate flexibility for committees on special education (CSE) to make special education recommendations based on students' individual needs by repealing minimum level of service requirements for speech and language related services and for instruction to address the individual language needs of students with autism, and by authorizing the addition of up to two additional students in an integrated co-teaching class when it is necessary to do so to address the unique needs of students in that class. To conform to federal and state requirements, the rule will also ensure that the State regulations use language consistent with federal regulations for CSE meeting notices and State statute for district plans of service for special education; and will make other technical amendments.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), (2) and (20), 3214(3), 4402(not subdivided) and 4403(3), 4410(13) and Chapter 410 of the Laws of 1978.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the continuation or modification of any of the above rules by contacting:

John D’Agati

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 2M, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF HIGHER EDUCATION

Sections 52.1, 52.21 & 80-5.13 Clinically Rich Teacher Pilot Program for High Needs Schools

Description of Rule: The purpose of the rule is to establish program registration standards for the clinically rich graduate level pilot program and to authorize institutions, other than institutions of higher education, and that are selected by the Board of Regents to offer teacher preparation programs under this pilot program.

Need for Rule: At its November 2009 and December 2009 meetings, the Board of Regents approved the conceptual framework for graduate level clinically rich teacher preparation pilot programs. At its April 2010 meeting, the Board approved an amendment to the Commissioner’s regulations to establish a graduate level clinically rich teacher preparation pilot program, effective May 1, 2010.

The rule establishes two tracks for the graduate level clinically rich program: 1) the Model A track is the residency program for candidates working with a teacher of record in a high need school; and 2) the Model B track is the residency program for candidates employed as teachers of record in a high need school who will be eligible to receive a Transitional B certificate upon completion of required introductory preparation, tests, and workshops. To ensure program quality, the rule requires that the pilot program meet the general registration standards established by the Board of Regents for graduate curricula in terms of instructional time, faculty qualifications, and the rigor of curriculum.

Legal Basis for Rule: Education Law §§ 207, 208, 210, 214, 216, 224, 305(1), (2) and (7), 3004(1) and 3006(1).

Parts 52 & 80 Special Education Certification Restructuring

Description of Rule: The rule amends sections 52.21, 80-1.1, 80-3.3, 80-3.7 and 80-5.22 of the Regulations of the Commissioner of Education relating to program registration requirements for teacher education programs and certification requirements an expedited pathway to teach science and mathematics in grades 5 through 9 and 7 through 12. The purpose of the rule is to establish program registration requirements and certification requirements for an expedited pathway for individuals with advanced degrees in science, technology, engineering and mathematics and at least two years of postsecondary teaching experience to become certified in science and mathematics in grades 5-9 and 7-12.

Need for Rule: The purpose of the rule is to ensure an adequate supply of effective adolescence level students with disabilities teachers and to better prepare all teachers to instruct students with disabilities and skillfully collaborate with their colleagues. In 1999, the Board of Regents endorsed a new structure of certificate titles in general and special education. In 2000, teacher preparation programs began offering programs aligned with the new titles. Prior to February 2004, there had been only one special education certificate for teaching students with disabilities Pre-K through Grade 12, in all instructional settings. The 1999 changes to the special education certificate structure focused on student developmental levels and academic content knowledge, to ensure that special educators had sufficient content knowledge in at least one academic subject. This special education redesign resulted in a four-tiered certification structure. Since the changes to the State certification requirements went into effect, the Department has analyzed data related to the supply and demand of special education teachers and found that there is a shortage of these teachers with the appropriate certification to teach students with disabilities in grades 7-12. Approximately 50 percent of students with disabilities are in the birth to grade six, yet, for those students selecting special education as a teaching profession, 80 percent are being prepared at the early childhood or childhood level and only 20 percent at the middle or secondary level. This issue is further exacerbated since the 20 percent are divided between the middle childhood level (5-9) and the secondary level (7-12) and further subdivided by academic disciplines.

Establishment of a students with disabilities generalist certificate at the adolescence level and the phasing out of the students with disabilities 5-9 generalist and content specialist and 7-12 content specialist will entice more candidates into the adolescence level as generalists who can act in supportive roles such as consultant teacher and provide resource room services. These teachers can further develop content expertise through a subject area extension and teach the subject to a special class with required weekly collaboration and monthly co-teaching with a certified general education content specialist.

As more and more students with disabilities are included in regular classes, all teachers must be better prepared to teach students with disabilities. The rule also requires all teacher preparation programs to include a minimum of three semester hours in educating students with disabilities and defining the elements of those semester hours coupled with a focusing a specific number of hours of required field experience that must focus on the needs of students with disabilities to ensure that all teachers are prepared to instruct such students to their highest level of achievement.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 305(1) and (2), 3001, 3004(1) and (6) and 3006.

Section 52.1(a)(6), 52.21(c)(7) & 80-3.10(a)(1)(ii)(a)(3) Clinically Rich Pilot Program for School Building Leaders

Description of Rule: The rule amends Sections 52.1, 52.21 and 80-3.10 of the Regulations of the Commissioner of Education, effective May 25, 2010, relating to the establishment of a clinically rich principal preparation program. The purpose of the rule is to establish program registration standards for the clinically rich principal preparation pilot program and to authorize institutions, other than institutions of higher education, and that are selected by the Board of Regents to offer principal preparation programs under this pilot program.

Need for Rule: The purpose of creating the clinically rich pilot program is to address the retention issue in high need schools and improve student growth and achievement in high need schools. Research studies show that school leaders are critical to helping improve student performance and preparation programs that are grounded in intensive clinical experiences prepare effective school leaders. To maximize student growth and achievement in high need schools, the Department will select program providers for the clinically rich principal preparation pilot program through a Request for Proposal (RFP) process.

In order to ensure that any program selected to offer a clinically rich principal preparation program is of high quality, the Board of Regents will establish a Blue Ribbon Commission to evaluate all applications. This Blue Ribbon Commission will be comprised of highly renowned teacher educators. The Blue Ribbon Commission will make recommendations to the Board of Regents for those programs that should be authorized to establish clinically rich principal preparation programs, from collegiate and non-collegiate providers or in partnerships. The goal is to create a process that will ensure a rigorous programmatic review and to select only the highest quality providers to assist in the preparation of principals for our high need schools. In addition, non-collegiate programs will be required to seek accreditation from an education preparation program accrediting body approved by the Board of Regents.

The rule authorizes institutions, other than institutions of higher of education, to offer the graduate level clinically rich pilot program. Such institutions shall include, but not be limited to, cultural institutions, libraries, research centers, and other organizations with an educational mission that are selected by the Commissioner for participation through the RFP process.

To prepare effective principals for high need schools, the graduate level clinically rich pilot program shall include at least one continuous school year of mentored clinical experience, centered on practicing research-based educational leadership skills. Pedagogical study linking theory and practice will be embedded in the clinical experience.

Legal Basis for Rule: Statutory Authority: Education Law §§ 207, 210, 305(1) and (2), 3001(2) and 3007(2).

Section 52.21 Clinically Rich Teacher Preparation Program

Description of Rule: The rule amends section 52.21 of the Regulations of the Commissioner of Education, effective November 19, 2010, relating to the clinically rich graduate level teacher preparation program. The purpose of the rule is to amend the clinical experience component of the pilot programs to allow program providers to offer less than a year of mentored clinical experience to provide program providers with the flexibility they need to be as innovative as possible.

Need for Rule: At its November 2009 and December 2009 meetings, the Board of Regents approved the conceptual framework for graduate level clinically rich teacher preparation pilot programs. At its April 2010 meeting, the Board approved an amendment to the Commissioner’s regulations to establish a graduate level clinically rich teacher preparation pilot program, effective May 1, 2010.

The regulatory amendments adopted in April 2010 also required that the pilot programs include at least one continuous school year of mentored clinical experience, grounded in the teaching standards currently being developed, and centered on practicing research-based teaching skills that make a difference in the classroom.

A competitive bidding process will be implemented to select program providers for the graduate level clinically rich teacher preparation pilot program. In order to provide program providers with the flexibility they need to be as innovative as possible, the Department believes that the one school year requirement for clinical experience is too restrictive. Therefore, the rule changes the required clinical experience component of the pilot program to require up to one continuous school year of mentored experience.

Legal Basis for Rule: Education Law §§ 207, 208, 210, 214, 216, 224, 305(1), (2) and (7), 3004(1) and 3006(1).

Section 80-4.3 Flexibility in Teacher Certification to Avoid or Mitigate a Reduction in Force

Description of Rule: The rule amends Section 80-4.3 of the Regulations of the Commissioner of Education, effective April 27, 2010, relating to teacher certification flexibility to avoid or mitigate reductions in force. The purpose of the rule is to provide teacher certification flexibility during a demonstrated fiscal crisis to allow school districts and BOCES to reassign effective classroom teachers to another grade level to avoid reductions in force.

Need for Rule: In 2010, the Board of Regents adopted an amendment to section 80-4.3 of the Commissioner’s regulations to provide school districts and BOCES with flexibility in certification when there was a demonstrated immediate fiscal crisis and the certification flexibility would avoid a reduction in force. In 2010, the Regents created certification flexibility in the following areas:

Grades 7-12 Academic Area Certification Extended to Grades 5 and 6

The 2010 amendment allows a district or BOCES to reassign a teacher who is employed by a school district and BOCES and certified in the classroom teaching service in a subject area in grades 7-12 to teach that same subject area in grades 5 or 6 through a limited extension to the teacher’s existing certificate. The limited extension will be valid for two years and shall be valid with that employing entity only. A full extension may be issued to the candidate if the candidate meets the requirements within those two years.

Childhood Education Extended to Grades 7 and 8

The 2010 amendment also authorizes a certified and qualified elementary school teacher (grades 1-6) to be reassigned to a position teaching an academic subject in grades 7 and 8. The teacher would need to have appropriate education and experience for such teaching assignment as demonstrated by earning Highly Qualified status under NCLB in order to be granted a limited extension to their existing certificate title. Also, the teacher must agree to: 1) successfully complete the Content Specialty Test in that subject area, and 2) complete 6 semester hours of course work in Middle Childhood Education, within the next two years to qualify for the full certificate extension when their limited extension expires.

The Limited extensions certificates for teacher certification flexibility would not be renewable and would expire at the end of the two-year period. It is intended that these Limited Extensions would provide a two-year bridge to authorize teaching for an already experienced teacher who is seeking to complete any remaining requirements to qualify for the full certificate extension in the new teaching assignment.

Currently, school districts and BOCES may only use this certification flexibility if they can demonstrate an immediate fiscal crisis and that such certification flexibility would avoid a reduction in force. The current regulation also sunsets in June 2013. The rule would create additional flexibility in the assignment of teachers to these grade levels. The rule eliminates the requirement that districts or BOCES demonstrate an immediate fiscal crisis or a reduction in force. The employing entity would only need to demonstrate that the certification flexibility would provide for a more efficient operation of the school district or BOCES. The rule also eliminates the sunset provision.

The rule addresses certification issues only. Hiring decisions or appointments to tenure areas continue to be governed by existing law and rules. For example, if, due to a previous reduction in force, a preferred eligibility list exists that covers the tenure area where the district seeks to fill a position, the school district must use the preferred eligibility list first before making any new appointments to that tenure area. Also, any reassignments to a new tenure area require the consent of the teacher and result in the teacher serving a probationary period in the new tenure area.

Legal Basis for Rule: Statutory Authority: Education Law §§ 207(not subdivided), 3001 and 3004(1).

Section 100.2(o) Annual Evaluations for Teachers

Description of Rule: The rule amends Section 100.2(o) of the Regulations of the Commissioner of Education, effective May 1, 2010, relating to the annual professional performance reviews for teachers in the classroom teaching service. The purpose of the rule is to require school districts and BOCES to provide timely and constructive feedback to teachers as part of their annual evaluations, implement uniform designated rating categories for the evaluation of teachers, and mandate that a ninth evaluation criteria, i.e., student growth be utilized in the evaluation of teachers.

Need for Rule: As part of the current Annual Professional Performance Review (“APPR”) set forth in section 100.2 of the Commissioner’s regulations, school districts and BOCES are required to perform annual evaluations of their teachers and the evaluation must be based on at least eight evaluation criteria prescribed in regulation. As part of its reform agenda for strengthening teaching, the Board of Regents have made a policy determination to make four major changes to the current requirements for the annual professional performance reviews of teachers.

First, the rule requires school districts and BOCES to include student growth as a mandatory criteria to be used in the evaluation of teachers. The rule defines student growth as a positive change in student achievement between at least two points in time as determined by the school district or BOCES, taking into consideration the unique abilities or disabilities of each student, including English language learners.

Secondly, the rule requires school districts and BOCES to implement the following uniform qualitative rating categories/criteria in the evaluation of its teachers: Highly Effective, Effective, Developing and Ineffective. The rule also defines each of these quality rating categories/criteria.

The rule also requires that school districts and BOCES to provide timely and constructive feedback to the teacher. The rule requires school districts and BOCES to include in their professional performance review plan a description of how it will provide timely and constructive feedback to its teachers on all criteria evaluated, including data on student growth for each of their students, the class and the school as a whole and feedback and training on how the teacher can use such data to improve instruction as part of the teacher’s APPR.

Where the Commissioner finds that a collective bargaining agreement was executed by a school district or BOCES pursuant to Article 14 of the Civil Service Law prior to the effective date of this regulation and whose terms are inconsistent with the new provisions of this regulation the Commissioner will grant a variance from that portion of the regulation for the duration of the existing collective bargaining agreement.

Lastly, the rule eliminates the reporting requirements which previously required school districts and BOCES to annually report information related to the school district’s efforts to address the performance of teachers whose performance is rated as unsatisfactory.

Legal Basis for Rule: Education Law §§ 207(not subdivided).

Section 145-2.2 TAP

Description of Rule: The rule amends section 145-2.2 of the Regulations of the Commissioner of Education relating to the new standards for academic progress for the tuition assistance program for the 2010-2011 academic year. The purpose of the rule is to implement Chapter 53 of the Laws of 2010 and provide clarity as to what constitutes a program of remedial study to determine whether the 2006 or 2010 standards of academic progress apply for the 2010-2011 academic year.

Need for Rule: The enacted 2010-11 New York State budget included new provisions for TAP which are set forth in Chapter 53 of the Laws of 2010. In particular, Chapter 53 establishes new standards of academic progress (SAP) for non-remedial students first receiving State aid in 2007-08 and thereafter. These standards take effect for students enrolled in the 2010-11 academic year. These standards, however, do not apply to “students enrolled in a program of remedial study approved by the Commissioner.”

The intent of the new law is to ensure that students receiving TAP funds and not needing remedial instruction or needing only a small amount of such remedial instruction demonstrate sufficient academic progress to complete their academic program in a timely manner. The intent is not to deny TAP to students who need remedial instruction.

However, a problem arises for some students who entered college on or after 2007-08 and were meeting the standards of academic progress established in 2006-07. Now they are faced with new standards which may preclude them from being eligible for TAP for the 2010 fall term. For example, for students in a baccalaureate program based on semesters, under the 2006 SAP requirements, students must have completed at least 21 credits by the end of the fourth term in order to be eligible for TAP in the fifth term. However, under the new 2010 SAP students now must have completed 30 credits by the end of the fourth term to be eligible for TAP in the fifth term. Some students are therefore put into a situation where they were not aware of the new requirements and could not possibly have time to take additional credit hours to meet the new standards in the 2010 SAP. A similar situation is also true for students pursuing an associate degree.

To remedy this situation, in the rule, these returning students that “fall in the gap” between the 2006 and 2010 SAP, will be deemed to be remedial students for the 2010-11 academic year only and therefore can continue to be eligible for TAP under the 2006 SAP. The rationale is that these “gap” students are not progressing along their academic programs at a rate of success that the State finds acceptable for participation in the TAP program. They therefore are being given an academic year to achieve the level of academic performance necessary for participation in TAP.

For purposes of the new standards of academic progress established in Chapter 53 of the Laws of 2010, a student shall be deemed to be in a program approved by the Commissioner for remedial study if he/she: (1) is enrolled in the Higher Education Opportunity Program (HEOP), the Education Opportunity Program (EOP), The Search for Education, Elevation and Knowledge (SEEK) program or the College Discovery (CD) program; (2) takes six credit hours of remedial instruction the first semester and at least nine credit hours of remedial instruction in the first year; or (3) takes three credit hours of remedial instruction in the first semester and six credit hours of remedial instruction in the second semester. Remedial courses taken in the summer session preceding the first academic year may count towards the required nine or more credits of remedial instruction for the purpose of program approval by the Commissioner for remedial study. In addition, for students first becoming eligible for TAP in the 2010-2011 academic year due to a change in their financial circumstances, remedial courses taken in a previous academic year may also be counted. For the 2010-11 academic year only, a student who first received an award prior to the 2010-2011 academic year and does not meet the eligibility requirements to be certified for TAP under the 2010-2011 SAP shall be deemed to be in an approved program of remedial study for the 2010-11 academic year solely for the purpose of defining which standards of academic progress apply for the 2010-11 academic year. This includes students who become ineligible for TAP in the Spring 2010 term because they have insufficient time to adjust their schedule in the Fall term to carry the required number of credits under the new standards of academic progress due to courses becoming unavailable, full or because the add/drop period has ended. The Department will issue guidance on this issue to the colleges.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 602(1), 661(2) and 665(6) and Chapter 53 of the Laws of 2010.

Part 162 VTA Tuition Awards

Description of Rule: The rule amends Subparts 79-9, 79-10, 79-11 and 79-12 of the Regulations of the Commissioner of Education, effective July 14, 2010, relating to licensure requirements for mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts. The purpose of the rules is to change the current requirements relating to experience and limited permits in each of these professions to conform to current practice. The rule also adds a new section to the existing regulations in each of these professions to allow the Department to endorse a license issued in another jurisdiction if the applicant meets certain education, experience and examination requirements.

Need for Rule: The purpose of the rule is to conform Part 162 of the Regulations of the Commissioner of Education to Chapter 57 of the Laws of 2008 to allow Persian Gulf, Afghanistan and other Eligible Combat veterans to receive veterans tuition awards (VTA) for veterans enrolled in approved undergraduate or graduate programs at degree granting institutions or enrolled in approved vocational training programs and who apply for a tuition assistance program award. The rule also conforms the current regulations to current practice by authorizing the Commissioner to approve for VTA funding vocational training programs whose curricula is approved or developed by another state agency acceptable to the Department.

Legal Basis for Rule: Education Law §§ 207, 6506, 8402, 8403, 8404, 8405, and 8409 of the Education Law.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the continuation or modification of any of the above rules by contacting:

William Murphy

Deputy Commissioner of Higher Education

New York State Education Department

Office of Higher Education

Room 975, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 402-3620

OFFICE OF THE PROFESSIONS

Sections 59.14 & 29.18 Mental Health Corporate Practice Waiver

Description of Rule: The rule adds a new section 29.18 to the Rules of the Regents and a new section 59.14 to the Regulations of the Commissioner relating to waivers from corporate practice restrictions for certain entities to provide services under Articles 154 or 163 of the Education Law or psychotherapy services as defined in section 8401(2) of the Education Law and services authorized and provided under Articles 131, 139 or 153 of the Education Law. The purpose of the rule is to allow the Department to issue waivers to qualified not-for-profit or educational corporations, so that these entities may employ licensed professionals or authorized individuals to provide services that are restricted under Title VIII of the Education Law.

Need for Rule: Chapters 130 and 132 of the Laws of 2010 amend the Education Law to address critical issues relating to the authority of certain entities to employ licensed master social workers (LMSW), licensed clinical social workers (LCSW), licensed mental health counselors (LMHC), licensed marriage and family therapists (LMFT), licensed creative arts therapists (LCAT), licensed psychoanalysts (LP), and licensed psychologists and to provide services within the scopes of practice of those professions. Prior to the restrictions on practice of those professions established by laws enacted in 2002, any individual or entity could provide psychotherapy and other services that are now restricted. While the new licensing laws provided exemptions for individuals in certain programs, these exemptions did not extend to thousands of not-for-profit and educational corporations throughout New York that provide essential services. This affected not only access to services for vulnerable persons, but also the ability of new graduates to meet the experience requirements for licensure in authorized settings, thereby restricting access to the licensed professions.

On June 18, 2010, Governor Paterson signed into law Chapters 130 and 132 of the Laws of 2010 to authorize the Department to issue waivers authorizing qualified entities to provide certain professional services; to accept supervised experience for licensure completed in settings that are eligible for waivers; to extend the exemption from licensure requirements for individuals in certain programs; and to mandate the Department to recommend, by July 1, 2012, with input from exempt agencies and key stakeholders, any amendments in laws or regulations needed to fully implement licensure by July 1, 2013.

The new section 6503-a of the Education Law authorizes the Department to issue a waiver to certain not-for-profit or educational corporations that were in existence on the effective date of the law, June 18, 2010. An entity must submit a waiver application within 120 days of the applications being posted on the Department’s website and may continue to provide services until the application is approved or denied. The law allows entities to continue providing services until July 1, 2012, but if an application is denied by the Department, the entity must cease providing professional services in New York.

The law is very clear that the waiver is not intended to supplant the authority of other State agencies, such as the Department of Health or Office of Mental Health, that have oversight of health and mental health services. In reviewing applications for a waiver, the law requires the Education Department to collaborate with other State agencies to ensure public protection by minimizing the risk of an unqualified entity receiving a waiver to provide professional services. There are also provisions in the law in regard to eligible entities, professional services that may be offered by entities, oversight by the Board of Regents, and attestations by each officer or director of the entity that he or she is of good moral character. An entity that receives a waiver under the law must apply for a renewal every three years and must request a waiver certificate for each site in New York at which professional services are provided.

Section 6503-a identifies a number of entities that do not require a waiver from the corporate practice prohibitions, including any entity with an operating certificate issued under the Public Health Law, Mental Hygiene Law or in accordance with comparable procedures by a State, federal or local government agency; an institution of higher education that provides a program leading to licensure in medicine, nursing, psychology, social work or the mental health professions; an institution of higher education that provides counseling to students, staff and family members of students and staff; and a university faculty practice corporation. The law allows the Regents to identify in regulation other entities that do not require a waiver, provided that such entity is otherwise authorized by law to provide such services.

The rule implements the provisions of law by setting forth the requirements to be met by a qualified entity in order to receive a waiver. These include, but are not limited to, the submission of the certificate of incorporation or other documentation that authorizes the entity to provide services described in the law and a description of the services that will be offered to the public. The entity must attest to adequate financial resources and that it will comply with section 18 of the Public Health Law in regard to access to patient information and records. Although the granting of a waiver resolves the issue of the authority of the entity to provide professional services, only licensed or authorized persons may provide services, and the entity is responsible for verifying the licensure of providers and the appropriate supervision of interns or permit holders who are only authorized to practice under supervision.

The addition of section 29.18 of the Rules of the Board of Regents implements the Board of Regents disciplinary authority over entities receiving waivers under Education Law section 6503-a. The rule clarifies that the entity is subject to the same professional misconduct provisions of the Regents Rules as a licensed professional or professional entity, and that the entity has the same due process rights as a licensed professional or professional entity.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 6501(not subdivided), 6503-a, 6504(not subdivided), 6506(6), 6507(2)(a), 6508(1), 6509 (not subdivided), 6510 (not subdivided) and 6511 (not subdivided) of the Education Law.

Section 61.15& 61.18 Continuing Education for Dentists

Description of Rule: The amends Sections 61.15 and 61.18 of the Regulations of the Commissioner of Education, effective January 27, 2010, relating to continuing education and limited permits for dentists. The purpose of the rule is to implement the provisions of Chapter 436 of the Laws of 2009.

Need for Rule: Existing regulations governing the ethics and jurisprudence component of mandatory continuing education for licensed dentists requires that this course be taken during the first registration period in which completion of formal education is required, which occurs after a dentist is licensed. The rule implements section 6604-a, as amended by Chapter 436 of the Laws of 2009, by permitting a postgraduate dental student enrolled in an approved residency program to take the dental jurisprudence and ethics course during their residency program, prior to licensure.

Existing regulations that describe the residency requirement for dental licensure make no provision for the registration of residents, or the payment of a residency fee. The rule implements section 6605(5) of the Education Law, as amended by Chapter 436 of the Laws of 2009, by requiring dental residents in an approved residency program to register with the Department and pay a registration fee equal to the amount now charged for a limited permit.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 6504(not subdivided) 6507(2)(a), 6604-a(6) and 6605(5) of the Education Law.

Section 69.2(b)(2) Architectural Licensing Examination

Description of Rule: The rule amends section 69.2 of the Regulations of the Commissioner of Education relating to the examination requirements for licensure as an architect. The purpose of the rule is to align the New York State requirements for licensure with current national standards set by the National Council of Architectural Registration Boards (NCARB) regarding the retention of credit for Architect Registration Examination (ARE) divisions passed prior to January 1, 2006 and extensions to the existing five year rolling clock.

Need for Rule: The purpose of the rule is to align the New York State requirements for licensure with current national standards set by the National Council of Architectural Registration Boards (NCARB) regarding the retention of credit for Architect Registration Examination (ARE) divisions passed prior to January 1, 2006.

In 2005, the Board of Regents enacted a five year rolling clock for Architecture Registration Examination (ARE) divisions passed on or after January 1, 2006. This rolling clock gave such applicants for licensure five years to pass all divisions of what was, at the time, a nine division exam. Under prior regulations, an applicant may retain credit for ARE divisions passed prior to January 1, 2006 without time limitation. The rule provides that applicants who have passed a division of the ARE prior to January 1, 2006 will lose credit for those divisions if they have not successfully completed the ARE on or before June 30, 2014. This change would be consistent with a recent policy change by NCARB, which, at its Annual Meeting in 2009, voted to extend the five-year rolling clock provision to ARE divisions passed prior to January 1, 2006.

Since 1983, the ARE has transitioned four times. In June 1987, the ARE had a total of nine divisions, consisting of seven multiple choice and two graphic divisions, and was given in a paper and pencil format. By July 2008, the ARE had a total of 7 divisions, with the graphic divisions fully incorporated into the multiple choice divisions, and the exam is now taken and scored by computer. In between, there were transitions in 1988 and 1997 that both combined and split divisions, changing the configuration of the exam.

One of the critical components of licensure is an exam that ensures a minimum threshold of competency within the profession. Given the numerous division transitions within the ARE, enactment of a five-year rolling clock on divisions passed prior to January 1, 2006 will ensure that a candidate has passed the exam as a whole, and not numerous parts of different exams over many years.

The rule also contains extension provisions to the existing five year rolling clock requirement. The State Education Department may allow extensions to this rolling clock for the birth or adoption of an applicant’s child, an applicant’s serious medical condition, active service in the Armed Forces, or for extreme hardships or other circumstances beyond the applicant’s control. If the Department finds that the conditions for an extension are met, the Department may grant an applicant an appropriate extension.

Legal Basis for Rule: Education Law §§ 207, 6504, 6507, and 7304.

Section 70.10 CPA Mandatory Quality Review

Description of Rule: The rule adds a new section 70.10 to the Regulations of the Commissioner of Education relating to the mandatory quality review program in public accountancy. The purpose of the rule is to establish the requirements for the mandatory quality review program for public accountancy to implement section 7410 of the Education Law, as added by Chapter 651 of the Laws of 2008.

Need for Rule: Section 7410 of the Education Law requires all firms, as a condition of renewal of their registrations, to undergo a quality review of the firms’ attest services as a condition to renewal of their registration, in a manner specified in the Regulations of the Commissioner. Sole proprietorships and firms with two or fewer accounting professionals are exempt from quality review; however, such firms may voluntarily participate in the quality review program.

The quality review process must include a verification that individuals in the firm who are responsible for supervising attest services or who sign or authorize someone to sign the accountant’s report on the financial statements meet competency requirements set out in professional standards for such services and in the Regulations of the Commissioner of Education.

In addition, the new law requires the Commissioner’s regulation to include reasonable provisions for compliance by an applicant for firm registration showing that the firm has undergone a quality review in the last three years or a peer review in another state that is the satisfactory equivalent; require that organizations that administer quality review programs be subject to evaluations by the Department or its designee to periodically assess the effectiveness of the quality review program; and require that quality reviews be conducted by reviewers acceptable to the Department in accordance with Commissioner’s regulations. In addition, the Commissioner of Education is authorized to require firms undergoing quality review and organizations administering quality review programs to timely submit quality review reports to the State Board for Public Accountancy. Reports submitted must be maintained as confidential in accordance with state law, unless the report is admitted into evidence in a hearing held by the Department.

Any firm, including a sole proprietorship or a firm with two or fewer accounting professionals, that performs attest services for any New York state or municipal entity performing a governmental or proprietary function for New York State or performs attest services specifically required pursuant to New York State law must undergo an external peer review in accordance with Government Auditing Standards issued by the Comptroller General of the United States.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 6501(not subdivided), 6504(not subdivided), 6506(6) and 7410 of the Education Law.

Subpart 74 Social Work Regulations

Description of Rule: The rule amends sections 74.3, 74.4, 74.5, 74.6 and 74.7 and adds a new section 74.9 to the Regulations of the Commissioner of Education relating to limited permits for licensed master social workers (LMSW) and licensed clinical social workers (LCSW) and experience, supervision, and endorsement requirements for licensure as a LCSW in New York. The purpose of the rule is to expedite the processing of applications for licensure as a LCSW in New York State and to provide clarity regarding acceptable supervised experience for licensure as a LCSW to ensure public protection and to establish requirements for the endorsement of certain out-of-state licensed clinical social workers.

Need for Rule: Section 7704(2) of the Education Law requires an applicant seeking licensure as a LCSW to complete three years of full-time supervised post-graduate clinical social work experience in diagnosis, psychotherapy and assessment-based treatment planning, or its part-time equivalent obtained over a period of not more than six years. The law does not require the applicant to complete any other social work experience, although the practice of licensed clinical social work includes other activities, including case management, advocacy, and testing. Such activities are not acceptable toward completion of the experience requirement under the current law. The rule requires an applicant to complete 2,000 client contact hours in diagnosis, psychotherapy, and assessment-based treatment planning over a period of not less than 36 months and not more than 72 months under a qualified supervisor. While this is a 30 percent reduction from the current requirement of 2,880 client contact hours over the same period of time, it is still among the highest requirements for clinical hours in the U.S., and the Department believes 2,000 client contact hours provides sufficient experience to ensure client protection once the applicant is licensed.

The rule amends section 74.3 of the Commissioner’s regulations to clarify the experience requirements for licensure as a LCSW in New York. The rule requires an applicant for licensure to complete the required experience as a LMSW or permit holder in New York, except in certain limited circumstances. For experience completed in another jurisdiction, the experience must be obtained after the applicant completes his or her master’s degree. The rule requires the applicant to complete the experience in an acceptable setting under a qualified supervisor, as defined in section 74.6 of the Commissioner’s regulations. The rule requires the supervisor to maintain records of the applicant’s client contact hours and supervision and to submit verification of the client contact hours and supervision on forms prescribed by the Commissioner.

The rule also amends section 74.4 of the Commissioner’s regulations to clarify that limited permit applicants must be of good moral character and that the permit may only be issued for work in an authorized setting under a qualified supervisor. In addition, the rule strengthens the requirement that the supervisor is responsible for the services provided by the permit holder and limits a licensee to supervising no more than five permit holders at any one time. Since the permit holder is only authorized to practice under supervision, this restriction is appropriate for public protection and consistent with the requirements in other professions. A LMSW or LCSW permit holder who is practicing clinical social work under supervision must be under general supervision as defined in the rule.

Currently, section 74.5 of the Commissioner’s regulations establishes the fee and experience requirements for a LCSW to qualify for the insurance privilege established in section 3221(l)(4)(D) or 4303(n) of the Insurance Law. The rule increases the application fee from $85 to $100 and continue the requirement that the applicant complete 2,400 client contact hours of psychotherapy. However, prior regulations allow experience completed before licensure to be submitted and the rule clarifies the intent of the law that experience must be after licensure as an LCSW over a period of not less than three years. Under the rule, the applicant would have to have no less than 400 client contact hours in any one year in order to qualify for the privilege. In order to clarify the process of meeting the requirements in Insurance Law, the rule also defines an acceptable setting for the practice of licensed clinical social work and requires a LCSW to submit for approval by the State Board for Social Work a plan for appropriate supervision. The rule also defines acceptable supervision for the privilege as two or more hours per month of individual or group consultation or enrollment in a program in psychotherapy offered by an institution of higher education or by a psychotherapy institute chartered by the Board of Regents. This rule eliminates peer supervision, which is not authorized by the Insurance Law, and clarifies the pathway to the insurance privilege.

The rule amends section 74.6 of the Commissioner’s regulations to establish the supervision requirements for a licensed master social worker providing clinical social work services. A LMSW who has submitted an application for licensure as a LCSW must maintain registration as a LMSW in New York and may only practice under supervision until licensed as a LCSW. The amendments clarify what constitutes an acceptable setting for the practice of clinical social work and require the supervisor to provide at least 100 hours of individual or group supervision to the LMSW, distributed appropriately over a period of at least 36 months. The LMSW would also be able to submit a plan for supervised experience toward licensure as a LCSW, for review and approval by the State Board for Social Work. By obtaining such approval prior to starting a position, an applicant would be able to avoid working for three years in a position which cannot be accepted toward meeting the experience requirements for licensure as a LCSW because the setting or supervisor was not authorized by law and/or regulation. The State Board’s review and approval of the voluntary plan would both protect the public and provide assurances to the LMSW that the setting and supervisor are authorized to engage in the practice of clinical social work in New York. Since a LMSW may provide diagnosis, psychotherapy and assessment-based treatment planning under supervision without seeking licensure as an LCSW, the amendment requires such a LMSW to receive at least two hours per month of in-person individual or group clinical supervision.

Section 7706(2) of the Education Law provides an exemption from licensure for an individual with a bachelor’s degree in social work, if the person is under the general supervision of a LMSW or LCSW and engages in non-supervisory and non-clinical activities only. The rule amends section 74.7 of the Commissioner’s regulations to provide standards for an individual with a BSW or MSW degree to provide licensed master social work services, under supervision. In order to clarify the boundaries of practice, the rule clearly states that the individual may not provide administrative supervision or engage in the practice of licensed clinical social work or use the title “LMSW” or “LCSW.”

The rule adds a new section 74.9 to allow the Department to endorse for practice in New York the license of an LCSW licensed in another jurisdiction. The applicant would have to have at least 10 years of licensed practice during the 15 years immediately preceding the application for licensure in New York. In addition, the applicant must demonstrate: licensure as a LCSW on the basis of an a master’s degree in social work from an acceptable school, post-degree supervised clinical experience, and the passage of a clinical examination in social work acceptable to the department. The applicant must also be of good character, complete coursework in the identification and reporting of suspected child abuse, and submit the application for licensure and fee established in law and regulation.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 212(3), 6501(not subdivided), 6504(not subdivided), 6506(6), 6507(2)(a), 6508(1), 7704(2)(c), 7705(1), and 7706(1) through (5) of the Education Law.

Subparts 79-9, 79-10, 79-11, 79-12 Mental Health Regulations

Description of Rule: The rule implements requirements of Article 163 of the Education Law and establishes endorsement provisions relating to licensure as mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts in New York State.

Need for Rule: In 2002, Article 163 was added to the Education Law to authorize the licensure and practice of mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts. The Board of Regents adopted regulations in 2005 to implement the provisions of Article 163 of the Education Law.

The rule changes current regulations in each of these professions in three major areas. First, the rule amends the experience requirements for licensure in each of these professions by requiring applicants to obtain experience under the general supervision of a qualified supervisor. The rule defines general supervision, requires a certain amount of clock hours of the supervised experience to consist of direct contact with clients, and requires that any supervised experience be performed by an applicant under a limited permit issued by the department. This ensures that the applicant is receiving appropriate supervision from a qualified supervisor in a setting that is authorized to provide services that are restricted under Title VIII of the Education.

The rule also eliminates the requirement that the individual supervising an applicant’s experience have three years of licensed experience in the practice of the profession and defines what is considered an appropriate setting to receive licensure-qualifying experience in each of these professions. Due to the recent creation of these four mental health professions, the State Board has notified the Department of shortages in qualified supervisors because of the three-year experience requirement for supervisors. Eliminating the three-year requirement will decrease the shortages in qualified supervisors and be consistent with other professions.

Secondly, the rule clarifies that the Department will issue a limited permit to an applicant to practice under supervision while meeting the experience and/or examination requirements for licensure in these professions and that the limited permit shall identify a qualified supervisor. The rule requires that the permit identify a qualified supervisor acceptable to the department, and prohibits a supervisor from supervising more than five permit holders at a time, which reflects the significant role of the supervisor in overseeing the practice of permit holders.

Finally, a new section is added to the existing regulations in each of these professions to allow the Department to endorse a license issued in another jurisdiction if the applicant meets certain education, experience and examination requirements and the applicant has at least 5 years of experience in that profession, satisfactory to the State Board of Mental Health Practitioners, within the 10 years immediately preceding their application for licensure by endorsement.

Legal Basis for Rule: Education Law Sections 207 (not subdivided), 6501 (not subdivided), 6504 (not subdivided), 6506(6), 6507(2)(a), 6508(1), 8402(3)(c), 8403(3)(c), 8404(3)(c), 8405(3)(c) and 8409(1) of the Education Law.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the continuation or modification of any of the above rules by contacting:

Douglas E. Lentivech

Deputy Commissioner for the Professions

New York State Education Department

Office of the Professions

89 Washington Avenue

West Wing, Second Floor - Education Building

Albany, NY 12234

(518) 486-1765

[email protected]

OFFICE OF CULTURAL EDUCATION

Section 90.5 Reference & Research Library Resources Systems

Description of Rule: The rule amends section 90.5 of the Regulations of the Commissioner of Education to update certain terminology and to clarify procedural requirements in the Commissioner’s Regulations relating to reference and research library resources systems. Specifically, the rule expands the definition of plan of service and more accurately reflects the information to be included in a plan of service in order to be consistent with the description in other library system regulations. The rule also clarifies the requirements for a full-time director and eliminates references to obsolete practices and terms.

Need for Rule: The rule is needed to update certain terminology and to clarify procedural requirements in the Commissioner’s Regulations relating to reference and research library resources systems. Specifically, the rule expands the definition of plan of service and more accurately reflects the information to be included in a plan of service in order to be consistent with the description in other library system regulations; the requirements for a full-time director are clarified; and references to obsolete practices and terms are omitted; in order to conform to Education Law section 272, as amended by Chapter 57 of the Laws of 2005, Part O, and to accurately reflect the current implementation of the statute.

Legal Basis for Rule: Education Law §§ 207, 215, 254, 255, 272(2), and 273.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Mark Schaming

Deputy Commissioner for Cultural Education

State Education Department

Cultural Education Center

Room 10C34

Albany, NY 12230

(518) 474-5930

OFFICE OF OPERATIONS AND MANAGEMENT SERVICES

Section 3.2 Establish Audit Committee

Description of Rule: The rule amends section 3.2 of the Rules of the Board of Regents to establish a Regents standing committee on Audits/Budget and Finance that will assist the Board of Regents in carrying out its financial oversight responsibilities by ensuring accountability through centralizing review and discussion of fiscal and audit issues related to the State Education Department.

Need for Rule: The rule is necessary to establish the Committee on Audits/ Budget and Finance as a standing committee of the Board of Regents to assist the Board of Regents in carrying out its financial oversight responsibilities by ensuring accountability through centralizing review and discussion of fiscal and audit issues related to the State Education Department. The Committee will: review State and federal budget actions; review financial reports and all audits of the Department; recommend budget priorities for the upcoming State fiscal year and actions needed to achieve budget reductions and close structural deficits; review select audits of other institutions in the University of the State of New York which may require Department action and submit recommendations and reports to the Full Board, as appropriate; and provide oversight of the Department's Office of Audit Services.

Legal Basis for Rule: Education Law section 207(not subdivided).

Section 3.2 AEWD Committee Name Change

Description of Rule: The rule amends section 3.2 of the Rules of the Board of Regents and is needed to change the name of a Regents standing committee from Committee on Adult Education and Workforce Development to "Committee on Adult Career and Continuing Education Services (ACCES)," in order to conform to a change of name of the Department's Office of Adult Education and Workforce Development to "Office for Adult Career and Continuing Education Services (ACCES)."

Need for Rule: The Office of Adult Education and Workforce Development was established under a recent reorganization of the State Education Department that abolished the Office of Vocational Educational Services for Individuals with Disabilities (VESID), and transferred responsibility for adult education, workforce development, vocational rehabilitation and proprietary school supervision to the new Adult Education and Workforce Development committee, and transferred responsibility for special education to a new Office of P-12 Education.

The Office of Adult Education and Workforce Development intends to change its name to Office for Adult Career and Continuing Education Services (ACCES). The rule is needed to make a conforming change in the name of the Regents standing committee from Committee on Adult Education and Workforce Development to "Committee on Adult Career and Continuing Education Services (ACCES)."

Legal Basis for Rule: Education Law section 207(not subdivided).

Section 3.2 Regents Standing Committees

Description of Rule: The rule is necessary to conform the Regents Rules to recent changes in the internal organization of the State Education Department, relating to the standing committees of the Board of Regents.

Need for Rule: The rule is necessary to conform the Regents Rules to a recent reorganization of the committee structure of the Board of Regents so that the Board may more effectively meet its statutory responsibilities. The rule conforms the Rules of the Board of Regents to the recent reconfiguration of the standing committees of the Board of Regents, as follows:

(1) The Committee on Elementary, Middle, Secondary and Continuing Education will be renamed the "Committee on P-12 Education."

(2) A new Committee on Adult Education and Workforce Development will be created.

(3) The Committee on Vocational and Education Services for Individuals with Disabilities is abolished, and its functions regarding vocational rehabilitation will be transferred to the Committee on Adult Education and Workforce Development, and its functions regarding special education programs and services for students with disabilities will be transferred to the Committee on P-12 Education.

(4) The adult education and workforce development functions of the Committee on P-12 Education will be transferred to the Committee on Adult Education and Workforce Development.

(5) The functions of the Committee on Adult Education and Workforce Development regarding proprietary school supervision are specified.

(6) The former Committee on Policy Integration and Innovation is abolished.

(7) Clarification is provided regarding the ex officio membership of the chancellor, vice chancellor, and chancellor emeritus on each subcommittee, task force and work group.

(8) Several minor technical changes are made to the Rules to add a reference to Regents work groups and to provide for reasonable notice of meetings to committee members.

The Board of Regents has determined that the reorganization of the committee structure is necessary to assist the Board of Regents to effectively meet its responsibilities to govern the University of the State of New York, determine the educational policies of the State and oversee the State Education Department. The committee reorganization is also consistent with a current restructuring of the Department’s internal organization. The rule conforms the Regents Rules to recent changes to the names and functions of certain Regents standing committees so that they may efficiently and effectively carry out the Board’s work. The minor technical changes with conform the Rules to the current nomenclature and practice used by the Board.

Legal Basis for Rule: Education Law section 207(not subdivided).

Section 3.8 Senior Deputy Commissioner

Description of Rule: The rule is necessary to conform the Regents Rules to changes in the internal organization of the State Education Department, relating to the designation of the Senior Deputy Commissioner for P-12 Education as the Deputy Commissioner of Education as specified in Education Law section 101, who shall exercise the duties of the Commissioner of Education in his absence or disability, or when a vacancy exists in the office of Commissioner.

Need for Rule: The rule is necessary to conform the Rules of the Board of Regents to changes made in the internal organization of the State Education Department, relating to the designation of the Senior Deputy Commissioner for P-12 Education as the deputy commissioner of education as specified in Education Law section 101, who shall exercise the duties of the Commissioner of Education in his absence or disability, or when a vacancy exists in the office of Commissioner.

Legal Basis for Rule: Education Law section 101(not subdivided).

Parts 275 & 276 Charter School Co-location Appeals

Description of Rule: The rule amends Parts 275 and 276 of the Regulations of the Commissioner of Education. The rule is necessary to implement Chapter 101 of the Laws of 2010 by establishing procedures for expedited appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The rule modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for such expedited appeals consistent with statutory requirements.

Need for Rule: The rule is necessary to implement Chapter 101 of the Laws of 2010 by establishing procedures for expedited appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law §§ 310 and 2853(3)(a-5). Education Law § 2853(3)(a-5) requires that petitions in such appeals must be dismissed, adjudicated or disposed of by the Commissioner within ten days of the receipt of the New York City School District's response. The rule modifies existing notice, service and filing requirements in Parts 275 and 276 of the Commissioner's Regulations, relating to appeals to the Commissioner pursuant to Education Law § 310, to provide for such expedited appeals consistent with statutory requirements. The rule establishes procedures that accommodate the extremely short time frames imposed by the statute, while assuring that due process is provided through procedures which are workable and fair to both parties.

Legal Basis for Rule: Education Law §§ 101, 207, 305(1) and (2), 310, 311 and 2853(3)(a-5) and § 15 of Chapter 101 of the Laws of 2010.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Julia Patane

Assistant Counsel

State Education Building Room 148

89 Washington Ave., Albany, NY 12234

(518) 474-6400

E. CALENDAR YEAR 2005

OFFICE OF P-12 EDUCATION

100.1(t) State Learning Standards for Mathematics

Description of Rule: The rule revised the definition of State learning standards for mathematics.

Need for Rule: The rule is necessary to modify the definition of the State learning standards for mathematics, consistent with policy enacted by the Board of Regents. The rule added the following provision: "Students will, through the integrated study of number sense and operations, algebra, geometry, measurement, and statistics and probability, understand the concepts of and become proficient with the skills of mathematics, communicate and reason mathematically and become problem solvers by using appropriate tools and strategies."

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2), 308, 309(not subdivided) and 3204(3).

125.1 Voluntary Registration of Nonpublic nursery schools and kindergartens

Description of Rule: The rule replaced the existing requirement in section 125.1(c) for annual visits of each registered nonpublic nursery school and kindergarten with a requirement that Department staff conduct annual visits of only those schools in the following categories: (i) schools with registration certificates that will expire during the year; (ii) schools operated by new applicants, including schools operated by new owners; schools located in newly constructed or renovated sites; and (iii) schools that require onsite technical assistance to alleviate regulatory non-compliance issues.

Need for Rule: The rule removed the requirement for annual visits by Department consultants to each of the registered schools, and replaced it with a visitation plan that is consistent with the current resources of the Department and the needs of the schools. The rule focuses on schools whose registration status may be in jeopardy for various reasons, by requiring annual site visits to the approximately twenty percent (30-40) of the schools that are in one or more of the following categories: (i) schools with registration certificates that will expire during the year; (ii) schools operated by new applicants, including schools operated by new owners; (iii) schools located in newly constructed or renovated sites; and (iv) schools that require onsite technical assistance to alleviate regulatory non-compliance issues.

The rule provides flexibility concerning the visits by Department staff to registered schools to determine compliance with regulatory requirements and will allow the Department to provide more focused technical assistance and support to schools targeted for annual visits to ensure compliance with the Commissioner's Regulations.

Legal Basis for Rule: Education Law sections 207 and 210.

100.3, 100.4 & 80-5.12 Middle-level education

Description of Rule: The rule implements a Regents Policy Statement on Middle-level Education. Districts with low-performing schools are authorized to propose a program that strengthens core academic subjects and effective academic intervention services, and provides all students with exploratory subjects that address the learning standards, are of high interest to students, and further reinforce core academic learning (Model B). Low-performing schools receive regulatory relief from the prescribed time requirements for units of study in the exploratory courses in order to implement their proposed program. Districts with new or high-performing schools are authorized to submit proposals for restructuring the full educational program (Model C#1) or specific program refinements (Model C#2) and be granted relief from programmatic regulatory requirements. In addition, the rule authorizes districts under certain circumstances to apply for approval to implement an “Experiment in Organization” that provides for the flexible assign of certified teaching staff. The rule also made technical changes to align the Commissioner’s regulations with the State learning standards and clarifies testing requirements related to students with disabilities.

Need for Rule: The rule is necessary to implement Regents policy, and ensures that school districts have the flexibility they need to ensure that all students in State public schools are provided instruction in the State learning standards areas and have the skills, knowledge, and understanding necessary for success. The rule provides school districts additional flexibility in meeting State intermediate learning standards and increasing student proficiency in English language arts and mathematics consistent with the federal No Child Left Behind Act.

Legal Basis for Rule: Education Law sections 101, 207, 208, 215, 305(1) and (2), 308(not subdivided), 309(not subdivided), 4403(3) and 3713(1) and (2).

100.2(p) school and school district accountability

Description of Rule: The rule establishes criteria and procedures to ensure State and local educational agency compliance with the provisions of the federal No Child Left Behind Act of 2001 relating to academic standards and school/district accountability.

Need for Rule: The rule is in response to guidance provided by the U.S. Department of Education and is necessary to ensure consistency with NCLB accountability requirements and the Individuals with Disabilities Education Improvement Act of 2004 (Pub. L. 108-446). NCLB section 1111(b)(2) requires each state that receives funds to demonstrate, as part of its State Plan, that the state has developed and is implementing a single, statewide accountability system to ensure that all LEAs, public elementary schools and public high schools make adequate yearly progress (AYP). Each state must implement a set of yearly student academic assessments in specified subject areas that will be used as the primary means of determining the yearly performance of the state and each LEA and school in the state in enabling all children to meet the State's academic achievement standards.

Legal Basis for Rule: Education Law sections 101, 207, 210, 215, 305(1), (2) and (20), 309(not subdivided) and 3713(1) and (2)

100.5 State assessments, graduation and diploma requirements

Description of Rule: The rule revised requirements for obtaining a Regents high school diploma, a Regents diploma with advanced designation, and a local high school diploma. The rule phased-in the 65 passing score on the five required Regents examinations to meet graduation requirements by requiring students who enter grade 9 in the 2005-06 school year to achieve 65 or above on two required Regents examinations and a score of 55 or above on the remaining three required Regents examinations, by requiring students who enter grade 9 in the 2006-07 school year to achieve 65 or above on three required Regents examinations and a score of 55 or above on the remaining two required Regents examinations, by requiring students who enter grade 9 in the 2007-08 school year to achieve 65 or higher on four required Regents examinations and a score of 55 on the one remaining required Regents examination, and by requiring students who enter grade 9 in the 2008-09 school year to achieve 65 on all five required Regents examinations.

The rule also establishes an appeal process for students who first enter grade 9 in September 2005 or thereafter and who fail, after at least two attempts, to attain a score of 65 or above on a required Regents examination for graduation. A standing committee chaired by the school principal would review all appeals within 10 days of submission and make a recommendation to the superintendent of the school district or, in the case of New York City, the Chancellor or his/her designee.

Need for Rule: The rule is necessary to implement revisions to policy adopted by the Board of Regents in June 2005. The rule revised the graduation and diploma requirements first adopted by the Board of Regents in July 1999, and subsequently revised in November 2003, to help ensure that all students in the State’s public schools have the skills, knowledge and understandings they need to succeed in the next century.

Despite the significant increase in the number of students with disabilities taking Regents level courses and passing Regents examinations, there still is a significant gap between the performance of special education and general education students. Therefore, the rule provides an additional safety net for all students with disabilities entering grade 9 in the 2005-06 school year. Under this safety net, students with disabilities may achieve a passing score of 55-64 on the five required Regents examinations to meet local diploma requirements.

Legal Basis for Rule: Education Law sections 101, 207, 208, 209, 305(1) and (2), 308, 309 and 3204(3).

Part 105 Special act school districts

Description of Rule: The rule implements Chapters 628 and 629 of the Laws of 2004 by establishing procedures for the appointment by the Commissioner of Education of public members to the board of education of each Special Act school district, to ensure public accountability for educational services and use of public funds.

Need for Rule: The rule is necessary to implement Chapters 628 and 629 of the Laws of 2004 by adding a new Part 105 that establishes requirements for the appointment by the Commissioner of two public members to the board of education of each special act school district. Section 105.1 provides for definitions of terms used in the new Part. Section 105.2 establishes eligibility requirements for appointment as a public member. Section 105.3 establishes appointment procedures, term lengths, procedures to fill vacancies, and provides that public members, upon appointment, shall have all the rights, privileges, powers, duties and responsibilities of members of the board of education of a union free school district.

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2), 308 and 309(not subdivided) and Chapters 628 and 629 of the Laws of 2004.

175.5 Superintendent's conference days

Description of Rule: The rule permits a school district to use up to two of the allowed four superintendents' conference days provided for in Education Law section 3604(8) for teacher rating of State assessments, including assessments required under the federal No Child Left Behind Act of 2001.

Need for Rule: The rating of students' performance on the State assessments is an effective way for teachers to learn the new learning standards and therefore constitutes permissible staff development activities relating to implementation of the new high learning standards and assessments, as authorized by Education Law section 3604(8). The rule provides school districts with additional flexibility and discretion to use this staff development function to fulfill their State test scoring requirements while minimizing impact on student instructional time.

Legal Basis for Rule: Education Law sections 101, 207 and 3604(8).

136.1, 136.2 & 136.3 School health services

Description of Rule: The rule implements and otherwise conforms the Commissioner's Regulations to Chapter 477 of the Laws of 2004.

Need for Rule: The rule is necessary to implement and otherwise conform the Commissioner's Regulations to Chapter 477 of the Laws of 2004. School health services staff in New York State public schools will be able to provide services that are consistent with current standards in medical and health care practice and State law.

Legal Basis for Rule: Education Law sections 207; 901(1) and (2); 902(1), (2) and (3); 903(1) and (2); 904(1) and (2); 905(1), (2), (3) and (4); 906(1) and (2); 911(1); 913; 914(1) and Chapter 477 of the Laws of 2004.

136.3 School health services

Description of Rule: The rule clarifies the accommodation for religious beliefs provision in the Commissioner's Regulations to ensure consistency with Public Health Law section 2164 and the Regulations of the Commissioner of Health and Chapter 477 of the Laws of 2004.

Need for Rule: The rule is necessary to conform the Commissioner's Regulations to the Regulations of the Department of Health and thereby ensure consistency with the legislative intent of Chapter 477 of the Laws of 2004. Section 136.3(a)(2) was also amended to ensure conformance to applicable legal requirements regarding disclosure of confidential information by adding the phrase "except where otherwise prohibited by law." In addition, section 136.3(a)(2) was amended to conform its provisions to Education Law section 904(1), as amended by Chapter 477 of the Laws of 2004, which provides for notification of "persons in parental relation" instead of "guardian" and provides for notification of "defective sight or hearing, or other physical disability."

Legal Basis for Rule: Education Law sections 207; 901(1) and (2); 902(1), (2) and (3); 903(1) and (2); 904(1) and (2); 905(1), (2), (3) and (4); 906(1) and (2); 911(1); 913; 914(1) and Chapter 477 of the Laws of 2004.

Section 100.2(x)(4)(i),(iii) and (iv) and 100.2(x)(7)(xii) Education of homeless children

Description of Rule: The rule was amended to require a school district to: coordinate the transmittal of records for a student with a disability who is a homeless youth; provide comparable special education services to a homeless youth with a disability who enrolls in a school district; ensure the local educational agency liaison assists in the enrollment and educational placement through coordination with the Committee on Special Education (CSE) for a student with a disability who is a homeless youth; and coordinate the implementation of the homeless provisions with IDEA.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to the federal Individuals with Disabilities Education Act (IDEA), as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 100.2(dd)(1)(iii) Professional Development Plan

Description of Rule: The rule was amended to require a school district to include in its professional development plans a description of professional development activities provided to school personnel who work with students with disabilities.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Part 101 Exemptions from attendance

Description of Rule: The rule repealed Part 101 relating to exemption from attendance.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.1 Definitions

Description of Rule: The rule conformed the definitions of assistive technology service, impartial hearing officer, mediator, parent, related services, school health services, special education, learning disability, surrogate parent and transition services; adds definitions of homeless youth, limited English proficiency, universal design and ward of the State, consistent with the federal definitions of these terms; and made technical amendments to the definitions of guardian ad litem, general curriculum and prior written notice.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to correct cross citations in the definition of a student with a learning disability and guardian ad litem and to revise the definitions of parent, related services, school health services and transition services consistent with IDEA and the October 2006 amendments to Part 300 of the Code of Federal Regulations (34 CFR), which implement IDEA. The rule was further amended in 2008 to revise the definitions of related services, school health services and transition services consistent with Chapter 378 of the New York State (NYS) Laws of 2007 and the IDEA 2004 statutes and regulations.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.2(a), (b), (d), (e), (h) and (i) Board of Education Responsibilities

Description of Rule: The rule added child find requirements for students with disabilities who are homeless or wards of the State; added data requirements consistent with federal law; added new responsibilities relating to child find, evaluation, data collection and data reporting for students with disabilities placed in private elementary and secondary schools by their parents; required instructional materials to be in a format that meets the National Instructional Materials Accessibility Standard (NIMAS) as published in the federal Register; ensured that amendments to individualized education programs (IEPs) are disseminated consistent with Chapter 408 of the Laws of 2002 and recommendations made to IEPs without convening a meeting or by amending the IEP are provided to the board of education; repealed requirements for a comprehensive system of personnel development and required schools to include personnel development activities for staff working with students with disabilities in the professional development plan pursuant to section 100.2 of the Commissioner’s Regulations; required boards of education and boards of cooperative educational services (BOCES) to establish written policies that identify the measurable steps it will take to recruit, hire, train and retain highly qualified personnel; required school districts to develop policies and procedures that describe the guidelines for the provision of appropriate accommodations necessary to measure the academic and functional performance of the student in the administration of district-wide assessments; and required a school district to identify how, to the extent feasible, it will use universal design principles in developing and administering any district-wide assessments.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to correct the federal cross citation relating to NIMAS consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.3 Committee on special education (CSE) and committee on preschool special education (CPSE)

Description of Rule: The rule required that not less than one regular education teacher and not less than one special education teacher or provider be members of the CSE, a subcommittee thereof, and the CPSE; and added, consistent with amendments made to section 4402 of the Education Law by Chapter 194 of the Laws of 2004, that the additional parent member on the CSE may be a parent of a student who has been declassified or who has graduated within the past five years.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446 and to NYS Education Law.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7), 4410(13) and Chapter 194 of the NYS Laws of 2004.

Section 200.4 Procedures for referral, evaluation, IEP development, placement and review.

Description of Rule: The rule conformed State regulations to federal law requirements relating to parental consent, individual evaluations and reevaluations, evaluation procedures, eligibility determinations including determinations of learning disabilities, IEP contents including transition services to be in effect beginning with the school year when the student turns age 15, the right of the parent to agree to alternative means of participation for CSE, subcommittee or CPSE meetings, annual review requirements, changes to the IEP after the annual review, and provision of services and transfer of records for students who transfer school districts.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to correct a cross citation and to conform State regulations relating to eligibility determinations including determinations of learning disabilities, IEP contents and provision of services and transfer of records for students who transfer school districts consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA. The rule was further amended in 2008 to conform State regulations relating to reevaluations and changes to an IEP after the annual review consistent with Chapter 378 of the NYS Laws of 2007 and IDEA statutes and regulations.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.5 Due process procedures

Description of rule: The rule conformed State due process requirements to federal law relating to prior written notice, consent, notice of meetings, parent participation in CSE meetings, procedural safeguards notice, mediation, due process hearing request notification requirements, resolution sessions, impartial hearings, appeals of the decision of the State review officer and surrogate parents.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to correct a cross citation and to conform State Regulations relating to prior written notice, consent, procedural safeguards notice, mediation, due process hearing request notification requirements, impartial hearings and resolution process consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA. The rule was further amended in 2009 to conform State regulations relating to consent to the December 2008 amendments to 34 CFR Part 300.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.6(m) Interim alternative educational setting (IAES)

Description of Rule: The rule added IAES to the required continuum of services for students with disabilities.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to re-letter section 200.6(m) to section 200.6(n).)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

200.7(c)(4) and 200.7(d) Additional operational and administrative provisions related solely to private schools and Appointment of blind, deaf and severely physically disabled students to certain State-operated and State-supported schools

Description of Rule: The rule conformed State requirements to federal law relating to CSE members and due process for student placements in State-operated and State-supported schools.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.14(d) and (e) Day treatment programs certified by the Office of Mental Health

Description of Rule: The rule conformed the requirements for IEP development for students in day treatment programs to the amended requirements in section 200.4.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 200.16 Educational programs for preschool students with disabilities

Description of Rule: The rule conformed State requirements to federal law relating to CPSE membership, individual evaluation, eligibility determinations, reevaluations, IEP development, annual reviews, changes to the IEP, procedural safeguards and due process procedures.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13). (The rule was amended in 2007 to conform State regulations relating to procedural safeguards consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Section 201.2 Definitions relating to procedural safeguards for students with disabilities subject to discipline

Description of Rule: The rule conformed the definition of IAES to federal law and added a definition of serious bodily injury.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to conform the definition of IAES consistent with the federal definition of this term.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.3 CSE responsibilities for functional behavioral assessments and behavioral intervention plans

Description of Rule: The rule conformed the CSE responsibilities for functional behavioral assessments and behavioral intervention plans to Federal law.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to repeal section 201.3 and add a new section 201.3 to conform State Regulations consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.4 Manifestation determinations

Description of Rule: The rule conformed State requirements to federal law relating to the establishment of a manifestation team and factors to determine if the behavior of a student was or was not a manifestation of the student's disability.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to conform State Regulations relating to manifestation determinations consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.5 Students presumed to have a disability for discipline purposes

Description of Rule: The rule revised the basis of knowledge as to whether a student is presumed to have a disability for discipline purposes to be consistent with Federal law.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.7(d) and (e) General procedures for suspensions and removals of students with disabilities

Description of Rule: The rule made technical changes relating to the manifestation team; added serious bodily injury as a reason school personnel may change a student's placement to an IAES; and provided that school personnel may consider unique circumstances for students with disabilities relating to discipline decisions.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to correct a cross citation and to conform State regulations relating to the consideration of unique circumstances for students with disabilities relating to discipline decisions consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.8 Authority of impartial hearing officer (IHO) to order a change in placement to an IAES in a dangerous situation

Description of Rule: The rule established the authority of an IHO to order a change of placement to an IAES, consistent with federal law.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to conform State regulations relating to the authority of an IHO to order a change in placement to an IAES in a dangerous situation consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.9(b) and (c) Coordination with superintendent’s hearing and other due process procedures applicable to all students

Description of Rule: The rule changed the coordination with a superintendent's hearing and other due process procedures applicable to all students to federal requirements.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

201.10(c), (d) and (e) Provision of services during suspensions

Description of Rule: The rule defined services a student with a disability must receive during suspensions of 10 school days or more and that the IAES setting shall be determined by the CSE.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to conform State regulations relating to the provision of services during suspensions consistent with IDEA and the October 2006 amendments to 34 CFR Part 300, which implement IDEA.)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Section 201.11(b) and (d) Expedited due process hearings

Description of Rule: The rule required the pendency setting for students with disabilities during expedited impartial hearings to be the IAES or other disciplinary setting.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to IDEA, as amended by Pub L. 108-446. (The rule was amended in 2007 to make a technical correction and to re-letter section 201.11(d) to section 201.11(c).)

Legal Basis for Rule: Education Law sections 207(not subdivided), 3208(1-5), 3209(7), 3602-c(2), 4002(1-3), 4308(3), 4355(3), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13).

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the continuation or modification of any of the above rules by contacting:

John D’Agati

Senior Deputy Commissioner for Educaiton Policy

New York State Education Department

Room 2M, Education Building

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF HIGHER EDUCATION

Sections 80-3.3(a)(1) and 52.21(b)(2)(i)(h) – Duration of Initial Teaching Certificate and Flexibility in Staffing of Teacher Preparation Programs.

Description of Rule: The rule increases the duration of the initial certificate for classroom teaching from three, or four years with extension, to five years.

Need for Rule: The rule is needed to extend the previous duration of the initial certificate, which was considered too short to provide new teachers with sufficient time to complete the master's degree program required for the professional certificate. The rule also provides teacher preparation programs that meet articulated standards of institutional accountability greater flexibility in the staffing of those programs

Legal Basis for Rule: Education Law §§ 207; 210; 215; 305(1), (2), and (7); 3001(2); 3004(1); and 3006(1)(b).

Sections 3.47(d)(2) and 3.50(b)(17)– Authorization of Degrees.

Description of Rule: The rule authorizes the conferral in New York State of the graduate professional degree of Doctor of Nursing Practice (D.N.P.) for completion of a practice oriented doctoral program in nursing.

Need for Rule: The rule arose from a request by Columbia University to offer a program in nursing leading to the Doctor of Nursing Practice degree. This degree provides an alternative to the existing doctoral programs in nursing (Ph.D. and D.N.S. degree programs) that are research oriented. The new degree benefits nurses who are interested in achieving a terminal degree that focuses on expert clinical practice. The Department expects the degree to be used primarily by, but not limited to, those programs that educate nurse practitioners and nurse-midwives.

Legal Basis for Rule: Education Law §§ 207; 210; 218(1) and 224(4).

Section 80-2.3(f) Certification and scope of practice in school social work

Description of Rule: The rule updates references to the titles of the new licensed professions in social work and the requirements for permanent certification in school social work and clarifies the scope of practice of certified school social workers in light of the new practice protected licensed professions in social work.

Need for Rule: The rule is needed to implement the statutory requirements of Chapter 2004 of the Laws of 2004. Effective September 1, 2004, social work became a practice protected profession under Article 154 of the Education Law, and the titles changed for individuals licensed in social work under Article 154 of the Education Law. The rule clarifies the scope of practice for holders of provisional or permanent certificates in school social work. The rule also updates these titles and requires the candidate for permanent certification to be licensed and registered by the State Education Department as a licensed master social worker or licensed clinical social worker.

Legal Basis for Rule: Education Law §§ 207; 305(1), (2), and (7); 3001(2); 3004(1); 3006(1)(b); 3009(1); 3010; 7702(2)(a) and (3)(a); and 7706(5)(a).

Sections 52.21(b)(4), 80-4.1(a)(2) and 80-4.3(d) Teacher certification in gifted education.

Description of Rule: The rule requires candidates seeking to meet the education requirement for the extension in gifted education through equivalent coursework to complete 12 semester hours of coursework in specified subjects, rather than six. The rule clarifies the content of the education requirement for the extension, ensuring that coursework is focused specifically on preparing teachers for providing instruction and support to gifted students and adequately preparing candidates for the New York State certification examination.

Need for Rule: The rule clarifies and strengthens the education requirements for the extension of a teaching certificate in gifted education to better align with the competencies tested in the teacher certification examination for this extension as articulated in the examination's framework.

The rule also clarifies the content requirements for meeting the education requirement, either through a registered program or through equivalent course completion and clarifies that the coursework must be specifically focused on training teachers for providing instruction and support to gifted students.

Legal Basis for Rule: Education Law sections 207; 210; 305(1), (2), and (7); 3001(2); 3004(1); 3006(1)(b); 3009(1); and 3010.

Sections 80-2.3(e)(1), 80-2.9(a)(5), and 80-4.3(a)(3) Bilingual school psychologists

Description of Rule: The rule establishes an expedited pathway for licensed psychologists who have demonstrated proficiency in a language other than English to obtain the first level certificate necessary to work as a school psychologist without first completing a college supervised internship in school psychology. In addition, the rule establishes an expedited pathway for holders of certificates in school psychology, speech and language disabilities, and for teaching the speech- and hearing-handicapped to be issued an extension to their certificate authorizing them to provide bilingual education services.

Need for Rule: The rule's purpose is to increase the number of bilingual certified school psychologists and teachers of students with speech and language disabilities to meet the needs of limited English speaking students with disabilities, so as to alleviate serious shortages of bilingual certified school psychologists and teachers of students with speech and language disabilities.

Legal Basis for Rule: Education Law sections 207; 210; 305(1),(2), and (7); 3001(2); 3004(1); 3006(1)(b); 3009(1); and 3010.

126.10(j) & 126.17(c) Monetary assessment of Proprietary Schools

Description of Rule: The rule specifies the existing method that the State Education Department uses for assessing new schools for the tuition reimbursement account and the proprietary vocational school supervision account.

Need for Rule: The rule clarifies requirements for the monetary assessment of new schools and for-profit English as a Second Language (ESL) Schools for the tuition reimbursement account and the proprietary vocational school supervision account.

Legal Basis for Rule: Education Law sections 207; 5001(1), (4)(e) and (f), and (9); and 5007(10) and (12) of the Education Law.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

William Murphy

Deputy Commissioner of Higher Education

New York State Education Department

Office of Higher Education

Room 975, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 402-3620

OFFICE OF THE PROFESSIONS

Section 52.32 and Subpart 79-9 of the Commissioner's Regulations – mental health counseling.

Description of Rule: the rule establishes professional education program registration standards; professional study, examination, experience, and limited permit requirements; provisions for the use of classification systems; and special provisions for the profession of mental health counseling.

Need for Rule: the rule is needed to implement the requirements of Article 163 of the Education Law, as added by Chapter 676 of the Laws of 2002.

Legal Basis for Rule: Education Law sections 207; 210; 6501; 6504; 6507(2)(a), (3)(a), and (4)(a); 6508(1); 8402(3)(b), (c), and (d); 8409; 8411(2)(a) and (b) and (3).

Section 52.33 and Subpart 79-10 of the Commissioner's Regulations – marriage and family therapy.

Description of Rule: the rule establishes professional education program registration standards; professional study, examination, experience, and limited permit requirements; provisions for the use of classification systems; and special provisions for the profession of marriage and family therapy.

Need for Rule: the rule implements the requirements of Article 163 of the Education Law, as added by Chapter 676 of the Laws of 2002.

Legal Basis for Rule: Education Law sections 207; 210; 6501; 6504; 6507(2)(a), (3)(a), and (4)(a); 6508(1); 8403(3)(b), (c), and (d); 8409; 8411(2)(a) and (b) and (3).

Section 52.34 and Subpart 79-11 of the Commissioner's Regulations – creative arts therapy.

Description of Rule: the rule establishes professional education program registration standards; professional study, examination, experience, and limited permit requirements; provisions for the use of classification systems; and special provisions for the profession of creative arts therapy.

Need for Rule: the rule implements the requirements of Article 163 of the Education Law, as added by Chapter 676 of the Laws of 2002.

Legal Basis for Rule: Education Law sections 207; 210; 6501; 6504; 6507(2)(a), (3)(a), and (4)(a); 6508(1); 8404(3)(b), (c), and (d); 8409; 8411(2)(a) and (b) and (3).

Section 52.35 and Subpart 79-12 of the Commissioner's Regulations – psychoanalysis.

Description of Rule: the rule establishes professional education program registration standards; professional study, examination, experience, and limited permit requirements; provisions for the use of classification systems; and special provisions for the profession of psychoanalysis.

Need for Rule: the rule implements the requirements of Article 163 of the Education Law, as added by Chapter 676 of the Laws of 2002.

Legal Basis for Rule: Education Law sections 207; 210; 6501; 6504; 6507(2)(a), (3)(a), and (4)(a); 6508(1); 8405(3)(b), (c), and (d); 8409; 8411(2)(a) and (b) and (3).

Sections 74.3, 74.4. 74.5, 74.6 and 74.8 of the Commissioner's Regulations – social work.

Description of Rule: the rule establishes regulatory requirements for licensure in licensed master social work and licensed clinical social work and for authorization qualifying licensed clinical social workers for certain insurance reimbursements.

Need for Rule: the rule establishes standards for licensure as a licensed master social worker or as a licensed clinical social worker, in accordance with changes in these requirements established by Chapter 230 of the Laws of 2004.

Legal Basis for Rule: Education Law sections 207; 6501; 6507(2)(a) and (3)(a); 7701(1); 7704(2)(b) and (c); 7705(1) and (2); 7706(3); and 7707(2) and (4); and Insurance Law sections 3221(l)(4)(A) and (D) and 4303(i) and (n).

Sections 29.2, 29.15 & 29.16 of Regents’ Rules - unprofessional conduct in the social work and mental health professions.

Description of Rule: the rule establishes definitions of unprofessional conduct in the practice of the licensed professions of licensed master social work, licensed clinical social, creative arts therapy, marriage and family therapy, mental health counseling, and psychoanalysis.

Need for Rule: the rule defines unprofessional conduct in accordance with the new statutory requirements in Article 163 of the Education Law relating to the social work professions and mental health practitioners.

Legal Basis for Rule: Education Law sections 207; 6504; 6506(1); 6509(9); 7701(1) and (2); 7702(1); 7708(1) and (2); 8402(1); 8403(1); 8404(1); 8405(1); and 8407(1) and (2).

Sections 50.2 and 59.9 of the Commissioner's Regulations – fees for licensee photo IDs.

Description of Rule: the rule establishes a fee for a photo identification card to be issued to those professionals licensed and registered pursuant to Title VIII of the Education Law who elect to receive one, and repeals an outdated fee provision.

Need for Rule: the rule establishes a fee to defray the costs of photo identification cards for licensed professionals who choose to obtain one.

Legal Basis for Rule: Education Law sections 207, 212, 6502(1), 6507(2)(a) and (4)(f).

Section 24.6 and Part 28 of Regents’ Rules – prior disciplinary history.

Description of Rule: the rule establishes procedures for the State Education Department's evaluation of an applicant's prior disciplinary history in another jurisdiction to determine whether the applicant is qualified to practice a licensed profession in New York State under Title VIII of the Education Law.

Need for Rule: the rule is needed to implement sections 6506(6)(g) and 6507(5), as added by Chapter 239 of the Laws of 2004, that require the State Education Department to evaluate such prior disciplinary history and authorizes the Department to deny authorization to practice a licensed profession based upon such review.

Legal Basis for Rule: Education Law sections 207; 6504; 6506(1), (6)(h), and (10); and 6507(5).

Section 29.3 of Regents’ Rules and sections 29.3, 68.3, 68.6, 68.11 & 68.12 – land surveying and engineering.

Description of Rule: the rule establishes a definition of unprofessional conduct in the profession of land surveying and licensing examination and continuing education requirements in land surveying and engineering.

Need for Rule: the rule implements the Board of Regents’ authority to define unprofessional conduct in the licensed professions and the State Education Department’s responsibility to establish requirements relating to professional examinations and continuing education requirements.

Legal Basis for Rule: Education Law sections 207; 6504; 6506(1); 6507(2)(a); 6509(9); 7206(1)(4); 7206-a(1)(4); 7211(1)(d) and (4); and 7212(4).

Sections 69.1, 69.2, and 69.6 of the Commissioner's Regulations – exam and continuing education for architects.

Description of Rule: the rule establishes requirements for the licensing examination in architecture and for continuing education that licensed architects must complete to be registered to practice this profession in New York State.

Need for Rule: the rule discontinues an unnecessary conditional admission requirement for the licensing examination. It also conforms licensing examination requirements to policy changes of the National Council of Architectural Registration Boards, the national organization that gives the licensing examination. Finally, the rule establishes standards for acceptable continuing education for architects, consistent with recent statutory changes.

Legal Basis for Rule: Education Law sections 207; 6506(1); 6507(2)(a); 7304(4); 7308(2) and (4).

Agency representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Douglas E. Lentivech

Deputy Commissioner for the Professions

New York State Education Department

Office of the Professions

89 Washington Avenue

West Wing, Second Floor - Education Building

Albany, NY 12234

(518) 486-1765

[email protected]

OFFICE OF MANAGEMENT SERVICES

100.2(x) & Parts 275 & 276 310 Appeals for Homeless

Description of Rule: The rule modifies the procedures concerning appeals involving homeless children that are brought pursuant to Education Law section 310 to ensure the rights of homeless individuals consistent with Federal statutes.

Need for Rule: The rule is necessary to conform the Commissioner's Regulations to the Federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended by the Federal No Child Left Behind Act of 2001 (NCLB) [Pub.L. 107-110]. The State is required to comply with the requirements of the McKinney-Vento Act and the NCLB as a condition to its receipt of Federal funds. The rule modifies the procedures concerning appeals involving homeless children that are brought pursuant to Education Law section 310 to ensure the rights of homeless individuals consistent with Federal statutes.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), 310(not subdivided), 311(not subdivided), 3202(1) and (8), 3209(7), and 3713(1) and (2).

3.8 & 3.9 Chief of Staff and Counsel

Description of Rule: The rule provides for the position of Chief of Staff, to be appointed by the Board of Regents, and designates the Chief of Staff as the deputy commissioner of education as specified in Education Law section 101, who, in the absence or disability of the Commissioner or when a vacancy exists in the office of Commissioner, shall exercise and perform the functions, powers and duties of the Commissioner.

Need for Rule: The rule is necessary to conform the Rules of the Board of Regents to changes made in the internal organization of the State Education Department, resulting in the elimination of the position of Chief of Staff.

Legal Basis for Rule: Education Law section 101(not subdivided).

3.8, 3.9 & 3.15 Chief Operating Officer

Description of Rule: The rule repealed provisions relating to the duties and responsibilities of the Chief Operating Officer of the State Education Department

Need for Rule: The rule is necessary to conform the Rules of the Board of Regents to changes made in the internal organization of the State Education Department, resulting in the elimination of the position of Chief Operating Officer.

Legal Basis for Rule: Education Law section 101(not subdivided) and 305(1) and (6).

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Julia Patane

Assistant Counsel

State Education Building Room 148

89 Washington Ave., Albany, NY 12234

(518) 474-6400

F. CALENDAR YEAR 2000

OFFICE OF P-12 EDUCATION

Section 21.2(a) of the Regents Rules - definition of "textbook"

Description of Rule: the rule provides a definition of Textbook for purposes of the New York State Textbook Loan Program and Textbook Aid and clarifies that certain materials in electronic format qualify for this program and aid.

Need for Rule: the rule is necessary to implement Chapter 405 of the Laws of 1999, and ensures that that there is a definition of qualifying courseware and other content-based instructional materials in an electronic format for purposes of Textbook aid.

Legal Basis for Rule: Education Law sections 207 and 701(2) and section 8 of Chapter 405 of the Laws of 1999.

Section 100.2(ff) of the Commissioner's Regulations - education and employment discharge planning for youth released from residential care of other State agencies

Description of Rule: the rule requires that boards of education ensure the prompt enrollment and admittance to attendance of youths released or conditionally released from residential facilities operated by or under contract with the Office of Children and Family Services, the Office of Mental Health, the Office of Mental Retardation and Developmental Disabilities or a local department of social services, and that school district personnel cooperate with such facilities and agencies in facilitating such prompt enrollment.

Need for Rule: the rule is necessary to implement the requirements of section 21 of Chapter 181 of the Laws of 2000, Safe Schools Against Violence Act (SAVE).

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2), 112(1).

Section 100.2(c) of the Commissioner's Regulations - instruction in false reporting of crimes

Description of Rule: the rule requires that instruction in fire and arson prevention include materials to educate children on the dangers of falsely reporting a criminal incident or impending explosion or fire emergency involving danger to life or property or impending catastrophe.

Need for Rule: the rule is necessary to implement Chapter 207 of the Laws of 1999.

Legal Basis for Rule: Education Law sections 207 and 808(1) and Chapter 207 of the Laws of 1999.

Section 100.2(l) of the Commissioner's Regulations - school district code of conduct relating to Safe Schools Against Violence in Education Act

Description of Rule: the rule requires school districts and BOCES to adopt codes of conduct for the maintenance of order on school property and at school functions, which govern the conduct of students, teachers and other school personnel as well as visitors.

Need for Rule: the rule is necessary to implement sections 2 and 3 of Chapter 181 of the Laws of 2000, the Safe Schools Against Violence in Education Act (SAVE).

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2), 2801(1) through (5) and 3214(3) and (3-a).

Sections 100.2, 100.3, 100.4 and 100.5 of the Commissioner's Regulations - technical changes to State Learning Standards, State Assessments and New Graduation and Diploma Requirements

Description of Rule: State learning standards, State assessments and graduation and diploma requirements.

Need for Rule: the rule is necessary in that it corrected technical errors in citation of certain sections of the regulations and reinstated certain original language that was incorrectly stated or inadvertently revised in the amendments adopted by the Board of Regents in July 1999.

Legal Basis for Rule: Education Law sections 101, 207, 208, 209, 305(1) and (2), 308 and 309

Sections 100.2(m) and (p) and 100.7(h) and (i) of the Commissioner's Regulations - registration of public schools and school accountability performance criteria

Description of Rule: sections 100.2(m) and (p) and 100.7(h) and (i) of the Commissioner's Regulations establish criteria for school accountability; enable the Commissioner to designate school performance on State assessments on three levels; establish adequate yearly progress targets for schools and require improvement plans for schools that fail to make adequate programs; and use a cohort measure for high school accountability.

Need for Rule: the rule is necessary to implement Regents policy and establishes school accountability criteria, designating schools as farthest from, below, or meeting school accountability performance criteria, consistent with policy adopted by the Board of Regents to ensure that all students in public schools have the skills, knowledge and understanding they need to succeed in the next century. The rule was amended in July 2003 to align the State's System of Accountability for Student Success with the federal No Child Left Behind accountability requirements.

Legal Basis for Rule: Education Law sections 101, 207, 210, 215, 305(1), (2) and (20), 308, 309, 3204(2) and (2-9) and 4403(3)

Section 100.3(b)(2) of the Commissioner's Regulations - State Assessment requirements for students in grades pre-kindergarten through sixth

Description of Rule: section 100.3(b)(2) of the Commissioner's Regulations changes the date from November 2000 to November 2001 for administration in grade 5 of the new State elementary assessment in social studies and requires school districts to retest fifth grade students who scored at Level 1 of the State designated performance level on the English language arts and/or mathematics elementary level assessments administered in grade 4. Such students must receive at least one semester of academic intervention services and be retested using multiple sources of evidence, including, but not limited to, a commercial test or other external test determined by the school district to be a valid and reliable means of evaluating a student's progress in achieving the elementary level State learning standards in these subjects.

Need for Rule: the rule is necessary to implement Regents policy to change the date for administration of the new State elementary assessment in social studies and to require school districts to retest fifth grade students who scored at Level 1 of the State designated performance level on the English language arts and/or mathematics elementary assessments administered in grade 4.

Legal Basis for Rule: Education Law sections 207, 208, 209, 305(1) and (2), 308, 309 and 3204(3)

Section 100.11 of the Commissioner's Regulations - school-based planning and shared decision-making in the NYC School District

Description of Rule: the rule establishes standards for school-based planning and shared decision-making in the City School District of the City of New York.

Need for Rule: the rule is necessary to align section 100.11 of the Commissioner's Regulations with the New York City governance system, as provided in Chapter 720 of the Laws of 1997, by providing for the exercise by community school district superintendents of certain functions relating to school-based planning and shared decision-making. The rule insures that each community school district in the New York City school district will operate with a single, consistent school-based planning and shared decision-making plan.

Legal Basis for Rule: Education Law sections 101, 207, 215, 305(1) and (2), 308, 309, 2590-e(1) and (3), 2590-f(1) and (2) and 2590-h(15).

Section 119.3 of the Commissioner's Regulations - charter school report card

Description of Rule: the rule specifies the academic and performance data items for charter school report cards. The regulation requires each charter school to submit an annual report by August 1 of each year for the preceding school year, one component of which is a charter school report card that includes measures of the school's comparative academic and fiscal performance.

Need for Rule: the rule is necessary to implement Chapter 4 of the Laws of 1998.

Legal Basis for Rule: Education Law sections 207 and 2857(2) and Chapter 4 of the Laws of 1998.

Sections 151-1.4 and 151-1.8 of the Commissioner's Regulations - Universal Pre-Kindergarten Program.

Description of Rule: the rule establishes standards for the implementation of summer programs as part of the Universal Prekindergarten Program.

Need for Rule: the rule is necessary to comply with Chapter 405 of the Laws of 1999 to provide the option of a summer program when a school district is unable to operate a Universal Prekindergarten program during the regular school session.

Legal Basis for Rule: Education Law sections 101, 207, 3602-e(12) and section 39 of Part L of Chapter 405 of the Laws of 1999.

Section 155.2 of the Commissioner's Regulations - school district construction plans and specifications

Description of Rule: the rule requires the submittal of only one set of plans and specifications to the Office of Facilities Planning for review and approval pursuant to Education Law section 408.

Need for Rule: the rule reduces duplicative documentation requirements and thereby streamlines the review process in the Office of Facilities Planning and provides mandate relief to school districts.

Legal Basis for Rule: Education Law sections 101, 207, 305(1), (2) and (19) and 408(1), (2) and (3).

Section 155.9 of the Commissioner's Regulations - State Environmental Quality Review and school district capital construction projects

Description of Rule: the rule removed the State Education Department as the lead agency for purposes of the State Environmental Quality Review (SEQR) process.

Need for Rule: the responsibility for thorough environmental investigations and review more appropriately lies with the local governmental authority proposing a specific project, since that authority is directly familiar with the proposed site and its surroundings and has a greater knowledge for the potential impact that may result from the project.

Legal Basis for Rule: Education Law sections 101, 207, 305(1), (2) and (19), 408(3) and 1950(4)(t) and Environmental Conservation Law sections 8-0113(3) and 8-0117(5).

Section 155.17 of the Commissioner's Regulations - school safety plans

Description of Rule: the rule requires school districts to adopt district-wide school safety plans and building-level school safety plans.

Need for Rule: the rule is necessary to implement Chapter 181 of the Laws of 2000 to improve school safety.

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2) and 2801-a.

Section 155.22 of the Commissioner's Regulations - Qualified Zone Academy Bonds

Description of Rule: the rule establishes the process by which local educational agencies gain access to a federal tax credit program concerning Qualified Zone Academy Bonds.

Need for Rule: the rule is needed to establish the process for allocation of the State's qualified zone academy bond limitation amount pursuant to 26 USC section 1397E.

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2) and 26 USC section 1397E.

Section 170.11 of the Commissioner's Regulations - school property tax report cards

Description of Rule: the rule establishes procedures for the preparation of school property tax report cards. It requires school districts to prepare an annual school tax report card and specified the format for the content, describes how it must be made available to the public and specifies when school districts must submit their school property tax report cards to the State Education Department.

Need for Rule: the rule is necessary implement Chapter 405 of the Laws of 1999 and to make the calculation used for purposes of the display of the difference of Consumer Price Indexes consistent with the calculation used for the six-day budget notice and the calculation of the contingency budget cap.

Legal Basis for Rule: Education Law sections 207, 1608(7) and 1716(7) and sections 10-a and 10-b of Part L of Chapter 405 of the Laws of 1999.

Section 175.5 of the Commissioner's Regulations - use of Superintendent's conference days

Description of Rule: the rule specifies the use of superintendent's conference days by public school districts and boards of cooperative educational services to satisfy a deficiency in the length of public school sessions for the instruction of pupils and to advance the implementation of standards and assessments.

Need for Rule: the rule is necessary to implement section 44 of Chapter 405 of the Laws of 1999. It ensures that a definition of qualifying staff development activities and the acceptable scheduling of such activities is available to determine the number of regularly scheduled days of session and days of authorized superintendents' conferences for purposes of State aid.

Legal Basis for Rule: Education Law sections 207 and 3604(8) and section 44 of Chapter 405 of the Laws of 1999.

Section 175.42 of the Commissioner's Regulations - aid to partitioned school districts

Description of Rule: the rule provides a method of apportioning aid to school districts in the first year of reorganization, where a school district was partitioned pursuant to Education Law section 2818 after July 1st of the school year.

Need for Rule: the rule is necessary to implement Chapter 405 of the Laws of 1999.

Legal Basis for Rule: Education Law sections 207 and 3602-f(5) and section 83-a of Part L of Chapter 405 of the Laws of 1999.

Section 175.44 of the Commissioner's Regulations - partial full day kindergarten conversion aid

Description of Rule: the rule establishes standards for the receipt of full day kindergarten conversion aid by school districts that are converting to full day kindergarten, but which are unable, due to limiting and extenuating circumstances, to serve all children who wish to attend a full day program.

Need for Rule: the rule implements Education Law section 3602(12-a), as amended by section 12 of Part A of Chapter 60 of the Laws of 2000.

Legal Basis for Rule: Education Law sections 101, 207 and 3602(12-a) and section 12 of Part A of Chapter 60 of the Laws of 2000.

Part 57 and section 100.2(dd) of the Commissioner's Regulations - approval of providers of coursework and training in school violence prevention and intervention

Description of Rule: the rule establishes standards for approval of providers of course work or training in school violence prevention and intervention that is offered to candidates for a teachers' certificate of license in classroom teaching service, school service or administrative and supervisory service.

Need for Rule: the rule is necessary to implement section 9 of Chapter 181 of the Laws of 2000, Safe Schools Against Violence in Education Act (SAVE).

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2) and 3004(3).

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the continuation or modification of any of the above rules by contacting:

John D’Agati

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 2M, Education Building

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF HIGHER EDUCATION

Section 52.21 of the Commissioner's Regulations - teacher education programs

Description of Rule: the rule made technical corrections to requirements for teacher education programs.

Need for Rule: the rule clarifies, corrects omissions in, and makes technical corrections to the requirements for teacher education programs adopted by the Board of Regents in September 1999 and makes the requirements more responsive to school staffing needs, while preserving the standards for preparing effective classroom teachers.

Legal Basis for Rule: Education Law sections 207, 210, 215, 305(1) and 3004(1).

Sections 52.21, 80-1.1, 80-3.4, 80-3.5, 80-5.13 and 80-5.14 - alternative teacher certification program

Description of Rule: the rule defines alternative teacher certification requirements leading to the transitional B certificate and the provisional or initial certificate for all titles in the classroom teaching service; specifies the requirements for registration of such alternative teacher certification programs, and renames the transitional certificate for career changes and others holding a graduate academic or graduate academic or professional degree as the transitional C certificate and the transitional certificate for teaching a specific career and technical subject as the transitional A certificate.

Need for Rule: the rule provides an alternative method for teacher candidates to obtain a provisional or initial teaching certificate and provides a means to alleviate teacher shortages in the public schools.

Legal Basis for Rule: Education Law sections 207, 210, 215, 305(1), (2) and (7), 3004(1) and 3006(1).

Sections 52.21, 80-1.4, 80-3.5 and 80-5.14 of the Commissioner's Regulations - requirements for teacher certification and teacher education programs concerning school violence prevention and intervention

Description of Rule: the rule requires applicants for teaching certificates and licenses to have obtained at least two clock hours of course work or training in school violence prevention and intervention and to require registered teacher education programs to include such course work or training.

Need for Rule: the rule is needed to implement the requirements of Education Law section 3004(3), as amended by Chapter 181 of the Laws of 2000, part of the Safe Schools Against Violence in Education Act (SAVE).

Legal Basis for Rule: Education Law sections 207, 210, 305(1), 3004(1) and (3).

Sections 80.2, 80.6, 80.7, 80.8, 80.10, 80.15 and 80.16 of the Commissioner's Regulations - requirements for provisional teacher certification

Description of Rule: the rule permits an out-of-state certified teacher to obtain a conditional provisional certificate to teach in New York State for two years.

Need for Rule: the rule alleviates personnel shortages in New York State public schools by removing barriers for teachers who are certified to teach in other states to become provisionally certified to teach in New York State public schools.

Legal Basis for Rule: Education Law sections 305(1), (2) and (7), 3004(1), 3006(1), 3007(1) and 3030(1).

Part 80 and 100.2(dd) - requirements for teachers' certificates, teaching practice and professional development for teachers.

Description of Rule: the rule revised the certification requirements for the classroom teaching services and for teaching assistants, revamped certification titles, established professional development requirements for teachers and teaching assistants, and required school districts and BOCES to report and maintain records on professional development.

Need for Rule: the rule implemented Regents teaching policy embodied in the report "New York's Commitment: Teaching to Higher Standards. It strengthens teacher certification requirements and conform to Regents teacher education program standards and ensure that all teachers are prepared to teach to the State learning standards.

Legal Basis for Rule: Education Law sections 101, 207, 215, 305(1), 3003(1), 3004(1), 3006(1)(b) and 3604(8)

Sections 83.4, 83.5 and 83.6 of the Commissioner's Regulations - penalties in moral character proceedings for certified teachers

Description of Rule: the rule conforms the penalties available in moral character proceedings against an individual holding a teaching certificate with penalties established in statute.

Need for Rule: the rule is necessary to implement section 12 of Chapter 181 of the Laws of 2000, the Safe Schools Against Violence in Education Act (SAVE).

Legal Basis for Rule: Education Law sections 207 and 305(7) and section 12 of Chapter 181 of the Laws of 2000.

Section 85.2 of the Commissioner's Regulations - Mentor Teacher-Internship Programs

Description of Rule: the rule permits a school district or board of cooperative educational services seeking a variance allowing an evaluative role for mentors to be eligible for funding of a Mentor Teacher-Internship program, provided that the terms of the applicable collective bargaining agreement prescribe such activity.

Need for Rule: the rule ensures that all qualified school districts and BOCES are given the opportunity to obtain funding for a mentoring program.

Legal Basis for Rule: Education Law sections 207 and 3033(1) and (2).

Part 126 of the Commissioner's Regulations - requirements for licensed private schools and registered business schools/computer training facilities

Description of Rule: the rule established requirements for licensed private schools and registered business schools/computer training facilities.

Need for Rule: the rule is necessary to implement Chapter 434 of the Laws of 1999.

Legal Basis for Rule: Education Law sections 207, 5001(1), (2) and (4)(b), 5002(2)(c), (3)(c), (4)(c) and (e), (6)(a) and (c), and (7), 5003(1)(d) and 5007(10) and Chapter 434 of the Laws of 1999.

Section 59.2 of the Commissioner's Regulations - education requirements for professional licensure

Description of Rule: the rule requires applicants for professional licensure who seek to meet the education requirement for licensure through programs that are not registered or accredited to submit adequate evidence of verification of their educational credentials by an acceptable independent credentials verification organization.

Need for Rule: the rule is needed to ensure that only individuals who meet the educational requirements for licensure are licensed and to protect the public from attempts by individuals to submit fraudulent licensure credentials.

Legal Basis for Rule: Education Law sections 207, 6504 and 6507(1), (2)(a) and (3)(a).

Section 61.10 of the Commissioner's Regulations - certification of licensed dentists in the use of conscious sedation, deep sedation or general anesthesia

Description of Rule: the rule establishes educational and training requirements for licensed dentists to be certified to employ conscious sedation, deep sedation, or general anesthesia in the practice of dentistry at any location other than a general hospital, and to establish practice requirements for the use of conscious sedation, deep sedation, or general anesthesia by such licensed dentists.

Need for Rule: Education Law section 6605-a, as amended by Chapter 615 of the Laws of 1999, directs the Commissioner of Education to establish requirements in regulation.

Legal Basis for Rule: Education Law sections 207, 6506(1), 6507(2)(a), 6601 and 6605-a(2).

Section 64.7 of the Commissioner's Regulations and section 29.14 of the Regents Rules - administration of immunization and anaphylaxis treatment agents b registered professional nurses.

Description of Rule: the rule establishes requirements that registered professional nurses must meet to administer immunization and anaphylaxis treatment agents through non-patient specific orders and protocols, the immunization and anaphylaxis treatment agents that may be administered, the requirements for orders and the protocols, and special requirements which define unprofessional conduct for the profession of nursing.

Need for Rule: Chapter 573 of the Laws of 1999 directs the Commissioner of Education to promulgate regulations concerning the administration of immunization and anaphylaxis treatment agents by registered professional nurses pursuant to non-patient specific orders of licensed physicians or certified nurse practitioners.

Legal Basis for Rule: Education Law sections 207, 6503(3), 6506(1) and (9), 6507(2)(a), 6509(9), 6527(6), 6807(3), 6902(1) and 6909(4) and (5).

Section 69.6 of the Commissioner's Regulations - mandatory continuing education for architects

Description of Rule: the rule establishes continuing education requirements and standards for the registration of licensed architects.

Need for Rule: the rule implements Education Law section 7308, as added by Chapter 521 of the Laws of 1999.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1) and 7308(1)(a), (b) and (c).

Section 70.6 of the Commissioner's Regulations - mandatory continuing education for public accountancy

Description of Rule: the rule requires individuals licensed in public accountancy to participate in at least four contact hours of continuing education study in professional ethics during each triennial registration period and to prescribe that full contact hour credit would be given for interactive self-study programs used to fulfill the continuing education requirement.

Need for Rule: the rule conforms the public accountancy continuing education requirements for self-study programs to the national authority's recommended guidelines and to ensure that licensees focus a portion of their continuing education on the subject of professional ethics. A recent amendment to the public accountancy regulations renumbered the sections and eliminated the distinction between interactive and non-interactive continuing education.

Legal Basis for Rule: Education Law sections 207, 6502(1), 6504, 6507(2)(a) and 7409(1)(a)(2) and (4).

Sections 79-4.6 and 79-4.7 of the Commissioner's Regulations - mandatory continuing education for respiratory therapists and respiratory therapy technicians.

Description of Rule: the rule establishes continuing education requirements and standards that licensed respiratory therapists and licensed respiratory therapy technicians must meet to be registered to practice in New York State and requirements for approval of sponsors of continuing education.

Need for Rule: the rule clarifies and implements the requirements of Education Law sections 8504-a and 8510-a, as added by Chapter 505 of the Laws of 1999, by establishing standards for what constitutes acceptable formal continuing education, educational requirements when there is a lapse in practice, requirements for licensees under conditional registration, standards for the approval of sponsors of continuing education to licensed respiratory therapists and licensed respiratory therapy technicians, and the fee for the review of sponsors of continuing education to defray the cost of such review by the State Education Department.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1), 8504-a(1)(a), (b) and (c), (2) through (6), and 8510-a(1)(a)(b) and (c), (2) through (6).

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

William Murphy

Deputy Commissioner of Higher Education

New York State Education Department

Office of Higher Education

Room 975, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 402-3620

OFFICE OF THE PROFESSIONS

Section 59.2 of the Commissioner's Regulations - education requirements for professional licensure

Description of Rule: the regulation requires applicants for professional licensure who seek to meet the education requirement for licensure through programs that are not registered or accredited to submit adequate evidence of verification of their educational credentials by an acceptable independent credentials verification organization.

Need for Rule: the regulation is needed to ensure that only individuals who meet the educational requirements for licensure are licensed and to protect the public from attempts by individuals to submit fraudulent licensure credentials.

Legal Basis for Rule: Education Law sections 207, 6504 and 6507(1), (2)(a) and (3)(a).

Section 61.10 of the Commissioner's Regulations - certification of licensed dentists in the use of conscious sedation, deep sedation or general anesthesia

Description of Rule: the regulation establishes educational and training requirements for licensed dentists to be certified to employ conscious sedation, deep sedation, or general anesthesia in the practice of dentistry at any location other than a general hospital, and to establish practice requirements for the use of conscious sedation, deep sedation, or general anesthesia by such licensed dentists.

Need for Rule: Education Law section 6605-a, as amended by Chapter 615 of the Laws of 1999, directs the Commissioner of Education to establish requirements in regulation.

Legal Basis for Rule: Education Law sections 207, 6506(1), 6507(2)(a), 6601 and 6605-a(2).

Section 64.7 of the Commissioner's Regulations and section 29.14 of the Regents Rules - administration of immunization and anaphylaxis treatment agents b registered professional nurses.

Description of Rule: the regulation establishes requirements that registered professional nurses must meet to administer immunization and anaphylaxis treatment agents through non-patient specific orders and protocols, the immunization and anaphylaxis treatment agents that may be administered, the requirements for orders and the protocols, and special requirements which define unprofessional conduct for the profession of nursing.

Need for Rule: Chapter 573 of the Laws of 1999 directs the Commissioner of Education to promulgate regulations concerning the administration of immunization and anaphylaxis treatment agents by registered professional nurses pursuant to non-patient specific orders of licensed physicians or certified nurse practitioners.

Legal Basis for Rule: Education Law sections 207, 6503(3), 6506(1) and (9), 6507(2)(a), 6509(9), 6527(6), 6807(3), 6902(1) and 6909(4) and (5).

Section 69.6 of the Commissioner's Regulations - mandatory continuing education for architects

Description of Rule: the regulation establishes continuing education requirements and standards for the registration of licensed architects.

Need for Rule: the regulation implements Education Law section 7308, as added by Chapter 521 of the Laws of 1999.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1) and 7308(1)(a), (b) and (c).

Section 70.6 of the Commissioner's Regulations - mandatory continuing education for public accountancy

Description of Rule: the regulation requires individuals licensed in public accountancy to participate in at least four contact hours of continuing education study in professional ethics during each triennial registration period and to prescribe that full contact hour credit would be given for interactive self-study programs used to fulfill the continuing education requirement.

Need for Rule: the regulation conforms the public accountancy continuing education requirements for self-study programs to the national authority's recommended guidelines and to ensure that licensees focus a portion of their continuing education on the subject of professional ethics. A recent amendment to the public accountancy regulations renumbered the sections and eliminated the distinction between interactive and non-interactive continuing education.

Legal Basis for Rule: Education Law sections 207, 6502(1), 6504, 6507(2)(a) and 7409(1)(a)(2) and (4).

Sections 79-4.6 and 79-4.7 of the Commissioner's Regulations - mandatory continuing education for respiratory therapists and respiratory therapy technicians.

Description of Rule: the regulation establishes continuing education requirements and standards that licensed respiratory therapists and licensed respiratory therapy technicians must meet to be registered to practice in New York State and requirements for approval of sponsors of continuing education.

Need for Rule: the regulation clarifies and implements the requirements of Education Law sections 8504-a and 8510-a, as added by Chapter 505 of the Laws of 1999, by establishing standards for what constitutes acceptable formal continuing education, educational requirements when there is a lapse in practice, requirements for licensees under conditional registration, standards for the approval of sponsors of continuing education to licensed respiratory therapists and licensed respiratory therapy technicians, and the fee for the review of sponsors of continuing education to defray the cost of such review by the State Education Department.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1), 8504-a(1)(a), (b) and (c), (2) through (6), and 8510-a(1)(a)(b) and (c), (2) through (6).

Agency representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Douglas E. Lentivech

Deputy Commissioner for the Professions

New York State Education Department

Office of the Professions

89 Washington Avenue

West Wing, Second Floor - Education Building

Albany, NY 12234

(518) 486-1765

[email protected]

OFFICE OF MANAGEMENT SERVICES

Part 281 of the Commissioner's Regulations - appeals to Commissioner of Education pursuant to Education Law section 3020(3) relating to employees or titles in the NYC School District

Description of Rule: the regulations establish procedures for appeals to the Commissioner of Education of certain disciplinary determinations for employees or titles in the City School District of the City of New York.

Need for Rule: the regulation is necessary to implement Chapter 3 of the Laws of 2000.

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (2), 308 and 3020(3) and Chapter 3 of the Laws of 2000.

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of any of the above rules by contacting:

Julia Patane

Assistant Counsel

State Education Building Room 148

89 Washington Ave., Albany, NY 12234

(518) 474-6400

INTRODUCTION

Pursuant to Section 207 of the State Administrative Procedure Act, Review of Existing Rules, the Department of Financial Services (the “Department”) must review, after five years and at five-year intervals thereafter, rulemakings adopted on or after January 1, 1998. In addition, effective January 1, 2013, for any rule that requires a regulatory flexibility analysis, rural area flexibility analysis, or job impact statement, the Department must initially review that rule in the third calendar year after the year the rule first was adopted. The purpose of the review is to analyze the need for and legal basis of the adopted rulemakings. Please note that all references to the “Department” and the “Superintendent” prior to October 3, 2011 mean, respectively, the former Insurance Department or Banking Department and the former Superintendent of Insurance or Superintendent of Banking, as appropriate to the context, and that the references to laws cited are as of the date of the amendment to the regulations. Thereafter, “Department” and “Superintendent” mean, respectively, the Department of Financial Services and the Superintendent of Financial Services.

PART 1. INSURANCE REGULATIONS

Notice is hereby given of the following rules relating to insurance that the Department will review this year to determine whether they should be continued or modified. These rules were adopted in 2017, 2015, 2010, 2005, and 2000. These rules as published in the State Register (“Register”) contain a regulatory flexibility analysis, a rural area flexibility analysis and/or a job impact statement. If no such analysis was filed, a statement setting forth why one or all those analyses was unnecessary was published in the Register. Public comment on the continuation or modification of the following rules is invited. Comments must be received within 60 days of the date of publication of this notice. Comments should be submitted to:

Camielle Barclay

Associate Attorney

New York State Department of Financial Services

One State Street

New York, NY 10004

Email: [email protected]

Unless otherwise noted, the Department intends to continue the rules discussed herein without modification, while continually monitoring the regulations to ensure that the provisions remain consistent with related statutory and regulatory requirements.

The following rulemakings were adopted in 2017:

• Amendment to Part 12 (Insurance Regulation 50) (Agent Training Allowance Subsidies for Certain Life Insurance and Annuity Business) of Title 11 NYCRR, effective January 25, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301 and 4228.

This amendment to Insurance Regulation 50 permits an increase in training allowance limits that were initially set by statute in 1998, to adjust for inflationary increases that have arisen since the regulation was first promulgated on September 28, 2007.

• Addition of new Part 363 (Insurance Regulation 211) (Minimum Standards for the Form and Rating of Family Leave Benefits coverage, Including the Establishment and Operation of a Risk Adjustment Mechanism) to Title 11 NYCRR, effective May 31, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 3201, 3217, 3221, and 4235, and Workers’ Compensation Law (“WCL”) Sections 204(2)(a), 208(2) and 209(3)(b).

This new Part implements the statutory mandates set forth in Insurance Law Section 4235(n) and WCL Sections 204(2)(a), 208(2), and 209(3)(b). This regulation establishes that family leave benefits coverage under WCL Article 9 must be community rated and may be subject to a risk adjustment mechanism, sets the procedures for publishing the maximum employee contribution, and requires issuers and self-funded employers to submit information electronically on claims.

• Amendment of Subpart 60-2 (Insurance Regulation 35-D) (Supplementary Uninsured/Underinsured Motorists Insurance) of Title 11 NYCRR, effective August 1, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301 and 3420.

This amendment interprets Insurance Law Section 3420(f)(2), in light of ensuing judicial rulings and experience, by establishing a standard form for supplementary uninsured/underinsured motorist (“SUM”) coverage, in order to eliminate ambiguity, minimize confusion and maximize its utility.

This amendment clarifies an inadvertent misinterpretation to ensure that the SUM coverage will not provide less benefits than the mandatory uninsured motorist coverage. In addition, this amendment amends the rules related to the manner in which the organization designated by the Superintendent to administer the SUM arbitration program assesses the cost of the program to the insurance industry, in accordance with the recommendation and authorization of the Supplementary Uninsured Motorist Optional Arbitration Advisory Committee, and amends all references in Sections 60-2.3 and 60-2.4 to “AAA/American Arbitration Association” to read “designated organization.” Furthermore, this amendment incorporates various editorial revisions to the prescribed endorsement and other portions of the regulation to clarify the intent and application of the coverage.

Insurance Regulation was amended effective November 25, 2018, to conform with new Insurance law Section 3420(f)(2-a), which was implemented by Chapter 490 of the Laws of 2017 and Chapter 15 of the Laws of 2018.

• Addition of new Part 111 (Insurance Regulation 207) (Statement of Actuarial Opinion and Actuarial Opinion Summary for Property/Casualty Insurers) to Title 11 NYCRR, effective August 2, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 307, 316, and 4117.

This new rule incorporates Section 2A of the National Association of Insurance Commissioners’ (“NAIC”) Property and Casualty Actuarial Opinion Model Law (the “Model Law”), which requires an authorized property/casualty insurer to submit an annual statement of actuarial opinion (“SAO”) unless otherwise exempted by the insurer’s domiciliary state, and Section 2B of the Model Law, which requires a domestic property/casualty insurer that must submit an SAO to submit an annual actuarial opinion summary (“AOS”) written by the insurer’s appointed actuary. This incorporation ensures that the Department meets NAIC accreditation standards and relieves the Department of the need to continue reissuing circular letters each year. The rule also requires an authorized property/casualty insurer to submit an AOS electronically, unless the Superintendent grants the insurer an exemption from filing electronically.

• Amendment to Part 52 (Insurance Regulation 62) (Minimum Standards for Form, Content, and Sale of Health Insurance, including Standards of Full and Fair Disclosure) of Title 11 NYCRR, effective August 20, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 3201, 3217, 3221, 4235, 4237, and 4303.

This amendment makes explicit that individual, group and blanket accident insurance policies and contracts that provide hospital, surgical, or medical expense coverage delivered or issued for delivery in New York State may not exclude coverage for medically necessary abortions and must provide such coverage at no cost sharing.

In addition, the amendment provides for an optional, limited exemption for religious employers. However, the amendment still ensures that medically necessary abortion coverage is maintained for any insured of a policy issued to a religious employer at no additional cost to the insured by requiring an insurer to issue a rider to each certificate holder of a policy issued to the religious employer that provides coverage for medically necessary abortions, at no premium to be charged to the certificate holder or religious employer.

• Amendment to Part 52 (Insurance Regulation 62) (Minimum Standards for Form, Content, and Sale of Health Insurance, including Standards of Full and Fair Disclosure) of Title 11 NYCRR, effective August 20, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 3216(i)(17) and (33), 3217, 3221(l), (8), (16), and (19), and 4303(j), (cc), and (qq).

This amendment requires an insurer to allow, where the prescription so provides, for the dispensing of an initial three-month supply of a contraceptive to an insured, and up to a 12-month prescribed supply for any subsequent dispensing of the same contraceptive prescribed by the same health care provider and covered under the same policy or contract or renewal thereof.

• Consolidated Amendment of Parts 20 (Insurance Regulations 9, 18 and 29) (Brokers, Agents and Certain other Licensees – General); 29 (Insurance Regulation 87) (Special Prohibitions); 30 (Insurance Regulation 194) (Producer Compensation Transparency); 34 (Insurance Regulation 125) (Requirements Pertaining to the Location of an Insurance Agent or Broker at Each Place of Insurance Business); and Addition of new Part 35 (Insurance Regulation 206) (Title Insurance: Title Insurance Agents, Affiliated Relationships, and Required Disclosures) of Title 11 NYCRR, effective October 18, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 107(a)(54), 301, 2101(k), 2109, 2112, 2113, 2119, 2120, 2122, 2128, 2129, 2132, 2139, 2314, and 6409.

These rules are necessary in order to include title insurance agents in a number of existing regulations governing insurance producers and to clarify those regulations. In addition, the rules address unique circumstances involving title insurance agents, including affiliated persons’ arrangements and required consumer disclosures.

• Consolidated Amendment of Part 27 (Insurance Regulation 41) (Excess Line Placements Governing Standards); Subpart 60-1 (Insurance Regulation 35-A) (Minimum Provisions for Auto Liability Insurance Policies); Subpart 60-2 (Insurance Regulation 35-D) (Supplementary Uninsured/Underinsured Motorists Insurance); Subpart 65-1 (Insurance Regulation 68-A) (Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act – Prescribed Policy Endorsements); Subpart 65-3 (Insurance Regulation 68-C) (Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act – Claims for Personal Injury Protection Benefits); Subpart 65-4 (Insurance Regulation 68-D) (Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act – Arbitration); Part 169 (Insurance Regulation 100) (Noncommercial Motor Vehicle Insurance Merit Rating Plans); Part 216 (Insurance Regulation 64) (Unfair Claims Settlement Practices and Claim Cost Control Measures); and Addition of new Subpart 60-3 (Insurance Regulation 35-E) (Transportation Network Companies: Minimum Provisions for Auto Liability Policies and other Requirements) of Title 11 NYCRR, effective October 25, 2017).

Statutory Authority: Financial Services Law Sections 202 and 302, Insurance Law Sections 301, 2115, 2118, 2305, 2307, 2334, 2335, 2601, 3420, 3455, 5102, 5105, and 5406 and Articles 23 and 51, Vehicle and Traffic Law (“VTL”) Sections 1693, 1694 and 311, and Chapter 59 of the Laws of 2017 Part AAA.

Part AAA of Chapter 59 of the Laws of 2017, established a new Article 44-B of the VTL (“Article 44-B”), which was signed into law on April 10, 2017, and which took effect on June 29, 2017, regarding transportation network companies (“TNCs”) and amended or added other laws to implement new Article 44-B. A TNC is a company that uses a digital network, such as an application on a phone, to connect people seeking rides with drivers who are interested in providing those rides. Although TNCs have several different models, the most typical model utilizes drivers that are not professional livery drivers and who use their own personal automobiles to provide those prearranged rides and it is that model that Chapter 59 recognizes. The new TNC laws necessitated a change to New York's motor vehicle financial responsibility requirements, including regulations promulgated by the Superintendent. In addition, the law provides that the Superintendent establish the provisions for policies satisfying the new financial responsibility requirements of Article 44-B.

The rules listed above have been adopted to implement the new TNC law, particularly to establish the minimum requirements for policies satisfying the financial responsibility requirements of Article 44-B, and to ensure that minimum insurance requirements are in place at all times with appropriate protections in order to protect the drivers and owners of the vehicles, and the general public.

• Amendment to part 101 (Insurance Regulation 164) (Standards for Financial Risk Transfer Between Insurers and Health Care Providers) of Title 11 NYCRR, effective November 3, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, Insurance Law Sections 301, 1102, 1109 and Articles 32, 41, 42, 43, and Public Health Law Section 4403(1)(c) and Article 29-E.

To advance the objectives of Public Health Law Article 29-E (which established a demonstration program to test the ability of accountable care organizations (“ACOs”) to assume a role in delivering an array of health care services, from primary and preventive care through acute inpatient hospital and post-hospital care), the Commissioner of the New York State Department of Health (“Commissioner”) adopted a new regulation (10 NYCRR 1003) (“ACO Regulation”) that establishes standards for the issuance of certificates of authority to ACOs by the Commissioner. The Commissioner also adopted an amendment to 10 NYCRR 98 to: (1) expand the definition of an independent practice association (“IPA”) to allow such entities to become certified as ACOs pursuant to Public Health Law Article 29-E and the ACO Regulation; and (2) upon certification, contract with third party health care payers.

This amendment to Insurance Regulation 164 expands the definition of “intermediary entity” to include ACOs as defined by the Commissioner’s ACO Regulation and thereby permit insurers to enter into financial risk transfer arrangements with ACOs that are certified pursuant to Article 29-E and the ACO Regulation.

• Addition of new Part 228 (Insurance Regulation 208) (Title Insurance Rates, Expenses, and Changes) of Title 11 NYCRR, effective December 18, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 2110, 2119, 2303, 2304, 2306, 2315, and 6409 and Articles 23 and 24.

This new rule is necessary in order to: (a) ensure that title insurance corporations and title insurance agents comply with the Insurance Law; (b) level the playing field so that a title insurance corporation or title insurance agent is not selected based on which entity can provide the most lavish inducements; (c) help ensure that title insurance rates are not excessive; and (d) eliminate unreasonable and excessive markups of ancillary charges. This rule provides consumers with additional protection against excessive rates and unreasonable closing costs.

• Amendment of Part 68 (Insurance Regulation 83) (Charges for Professional Health Services) of Title 11 NYCRR, effective January 23, 2018.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 2601, 5221, and Article 51.

This amendment to Insurance Regulation 83 limits insurers’ reimbursement of no-fault insurance health care services provided outside New York State at the election of a New York State eligible injured person to the lowest of: (1) the amount of the fee in the region in New York State that has the highest applicable amount in the fee schedule for that service; (2) the amount the provider charged; and (3) the prevailing fee in the geographic location of the provider. If the jurisdiction where the out-of-state provider renders treatment has established a fee schedule for services rendered in connection with motor vehicle-related injuries, the prevailing fee shall be the amount prescribed in that fee schedule for the respective service. This limit on reimbursement does not apply to services provided out-of-state which: (1) would constitute emergency care; (2) are provided to a non-resident of this State; or (3) are provided to a New York State resident who, at the time of treatment, is residing in the jurisdiction where the treatment is being rendered for reasons unrelated to the treatment.

• Amendment of Part 154 (Insurance Regulation 150) (Private Passenger Motor Vehicle Multi-Tier Programs) of Title 11 NYCRR, effective March 13, 2018.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 2301, 2303, and 2349, and Insurance Law Article 23.

This amendment to Insurance Regulation 150 makes clear that an insurer may not use a policyholder’s occupational status or educational level as a factor in either initial tier placement or tier movement unless the insurer demonstrates, to the Superintendent’s satisfaction, that the use of occupational status or educational level attained in initial tier placement or tier movement does not result in a rate that violates Insurance Law Article 23. This rule accords with the public policy objectives that the New York State Legislature sought to advance in Insurance Law Sections 2301, 2303, and 2349.

• Amendment to Part 48 (Insurance Regulation 210) (Life Insurance and Annuity Non-Guaranteed Elements) of Title 11 NYCRR, effective March 19, 2018.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 1106, 1113, 3201, 3203, 3209, 3219, 3220, 3223, 4216, 4221, 4223, 4224, 4231, 4232, 4238, 4239, 4240, 4511, 4513, 4518 and Article 24.

This rule addresses several issues that have been highlighted by company announcements, media commentary, and complaints received by the Department regarding the determination and readjustment of non-guaranteed elements in life insurance policies, particularly with respect to universal life, indeterminate premium term life, and whole life insurance, and annuity contracts. The rule assists consumers to better understand at the time of purchase and upon any adverse readjustment of non-guaranteed elements how life insurance policies and certain annuity certificates and contracts with non-guaranteed elements subject to change at the discretion of the insurer or fraternal benefit society operate, and thereby reduce consumer dissatisfaction and the number of lapsed policies. The rule accomplishes this by requiring additional disclosures at the time the policy, contract or certificate is issued and by requiring notice to be provided in advance of any adverse change in the current scale of non-guaranteed elements, in order to give the owner enough time to address any projected insufficiency.

The following rulemakings were adopted in 2015:

• Amendment to Subpart 65-4 (Insurance Regulation 68-D) (Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act - Arbitration) of Title 11 NYCRR, effective February 4, 2015.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301 and 5221 and Article 51 of the Insurance Law.

This amendment to Insurance Regulation 68-D: (1) eliminates the $60 minimum attorney’s fee; (2) eliminates the $60-or-$80 attorney-fee limit that applies during the conciliation phase of the arbitration process; and (3) increases the maximum fee to be awarded to an attorney who prevails in court or at arbitration to $1,360. These changes to the current fee structure should reduce the backlog of pending lawsuits and arbitrations by creating a more expeditious process to resolve disputes. The amendment should also reduce no-fault fraud and abuse by making billing practices more transparent, because when an action is consolidated, multiple services billed by a health service provider will be presented in a single legal action, allowing the finder of fact in arbitration or court to identify any questionable billing patterns, whereas with separate legal proceedings, billed services are spread out among multiple arbitrators or judges, making fraudulent and abusive billing more difficult to detect.

• Addition of new Part 227 (Insurance Regulation 202) (Regulation of Force-Placed Insurance) of Title 11 NYCRR, effective February 6, 2015.

Statutory Authority: Financial Services Law Sections 202, 301, and 302, and Insurance Law Sections 301, 308, 2110, 2303, and 2304 and Articles 21, 23, 24 and 34.

This new Part 227 ensures that force-placed insurance market participants comply with New York law. This rule is also necessary to protect homeowners and investors from the harm caused by the multiple law violations.

• Amendment to Part 67 (Insurance Regulation 79) (Mandatory Underwriting Inspection Requirements for Private Passenger Automobiles) of Title 11 NYCRR, effective April 1, 2015.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 301, 3411, 5303, and Article 53.

Inspections of automobiles have been mandatory since 1977 in order to combat insurance fraud, and only under limited circumstances has the current rule permitted insurers to waive or defer inspections. However, with advances in technology to combat automobile physical damage insurance fraud, certain provisions of the current rule have been rendered obsolete or unduly burdensome to insurers and insureds. This amendment to Insurance Regulation 79 has been updated to reduce unnecessary expenses to insurers and consumers, while maintaining necessary requirements to combat fraud. The amendment also clarifies various provisions of the regulation, including the types of automobiles subject to the inspection requirement, as well as expands the optional inspection waivers available to insurers.

The Department is considering adding a new subpart to Insurance Regulation 79 pertaining to automobile photo inspections.

• Consolidated Amendment to Parts 98 (Insurance Regulation 147) (Valuation of Life Insurance Reserves) and 100 (Insurance Regulation 179) (Recognition of the 2001 CSO Mortality Table for Use in Determining Minimum Reserve Liabilities and Nonforfeiture Benefits and Recognition and Application of Preferred Mortality Tables for Use in Determining Minimum Reserve Liabilities) of Title 11 NYCRR, effective April 1, 2015.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 1304, 1308, 4217, 4218, 4221, 4224, 4240, and 4517.

Insurance Regulation 147 is amended to recognize mortality improvement beyond the valuation date for universal life policies that guarantee that coverage remains in force as long as the accumulation of premiums paid satisfies the secondary guarantee requirement, issued on or after January 1, 2015. Additionally, a lapse rate of two percent may be used for the first five years, followed by a rate of no more than one percent for the remaining life of the policy.

Insurance Regulation 179 is amended consistent with mortality improvement. Because insureds are generally living longer, the amendment applies a 1.0 percent mortality improvement factor to the current mortality table (2001 CSO) for up to 40 years, and it applies a 0.5 percent mortality improvement factor thereafter through attained age 80. The mortality rates linearly grade from attained ages 81 through 90. These factors will apply only during the first segment.

• Amendment to Part 21 (Insurance Regulation 60) (Replacement of Life Insurance Policies and Annuity Contracts) of Title 11 NYCRR, April 21, 2015.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 2123, 2403 and 4226.

This amendment to Insurance Regulation 60 changes the time in which a completed Disclosure Statement must be presented or delivered to an applicant from “no later than at the time the applicant signs the application” to “prior to the delivery of the replacement policy,” achieving the stated goals of the National Association of Insurance and Financial Advisors – New York State and gaining the life insurance industry’s support while still retaining the current regulation’s significant consumer protections. In addition, this amendment will benefit insureds, insurance producers and insurers by:

• allowing an insurance producer to bind coverage for a consumer more quickly, subject to an insurer’s underwriting requirements, because the insurance producer will be able to accept the consumer’s application immediately without waiting for a completed Disclosure Statement;

• enabling the underwriting process to proceed immediately, thereby expediting the policy issuance process. Applicants who are determined to replace their existing coverage are, reportedly, often aggravated or upset that they must wait several weeks to apply for new coverage. Some applicants seek a quick exit from their current policies to avoid market losses (such as with variable annuities), but must wait several weeks before a new application can be completed;

• facilitating more insurance purchased over the internet. The current process of having to wait several weeks for a response from the replaced insurer effectively inhibits internet sales when replacements are involved;

• reducing the number of “revised” Disclosure Statements that are currently necessary to account for changes that occurred between the time the application was taken and the date that the policy is ultimately issued. The issuance of multiple Disclosure Statements can be confusing to policyholders, and this amendment is expected to dramatically reduce the number of instances where “revised” Disclosure Statements are necessary;

• preserving the Disclosure Statement as a valuable tool for consumers to compare policies at the time of policy issuance and to review later if they have questions about the new coverage; and

• making it easier for insurance producers and insurers to comply with the regulation. Moving the Disclosure Statement to the back-end of the process will streamline the process and eliminate many of the technical issues that insurers encountered in the past.

The following rulemakings were adopted in 2010:

• Repeal of Part 163 and Adoption of a new Part 163 (Insurance Regulation 153) (Flexible Rating for Nonbusiness Automobile Insurance Policies) of Title 11 NYCRR, effective January 6, 2010.

Statutory Authority: Insurance Law Sections 201, 301, 2350 and Article 23.

This new Part 163 adopted rule re-established flexible rating for nonbusiness automobile insurance policies as required by Insurance Law Section 2350, which was enacted by section 13 of Chapter 136 of the Laws of 2008. Section 2350 permits insurers to put into in effect nonbusiness automobile insurance rates without the Superintendent’s prior approval, provided that the overall average rate level does not result in an increase above five percent from the insurer’s prior rate level in effect during the preceding 12 months. Section 2350 also limits the overall average rate level decreases without prior approval up to five percent from the insurer’s current rate level regardless of when it went into effect. The former Insurance Regulation 153, implementing the former flex rating system, had been repealed when the former section 2350 had expired and a new Insurance Regulation 153 was adopted to establish rules and provide guidance to insurers to implement the requirements of the newly enacted Section 2350.

• Adoption of a new Part 30 (Insurance Regulation 194) (Producer Compensation Transparency) of Title 11 NYCRR, effective January 1, 2011.

Statutory Authority: Insurance Law Sections 201, 301 and Article 21.

Insurance Regulation 194 requires an insurance producer to disclose the following: its role in the transaction; that the producer will receive compensation from the insurer based upon the sale of the policy; that the compensation paid by insurers may vary; and that the purchaser may obtain from the producer, upon request, information about the compensation the producer expects to receive from the sale of the policy. The regulation also requires that upon the customer's request, the producer disclose the amount of compensation for the policy selected and any alternative quotes presented. The required disclosures should minimize the potential conflicts that arise from producer compensation because insurance customers can request information about the compensation for the insurance policy and alternative policies quoted.

• Repeal of Part 135 (Insurance Regulation 67) (Reporting of Reserve Liabilities by Public Retirement Systems) of Title 11 NYCRR, effective March 3, 2010.

Statutory Authority: Insurance Law Sections 201, 301, 307(a); Retirement and Social Security Law Sections 15, 315; Education Law Section 523; Administrative Code of the City of New York Sections 13-183, 13-266, 13-378, 13-562; and the Rules and Regulations of the Retirement Board of the Board of Education of the City of New York Section 25.

Insurance Regulation 67 required reporting of certain financial transactions and reserve liabilities by public retirement systems maintained by the City of New York and the State of New York. The regulation referred to items in an annual statement form that was made obsolete by the replacement of a new form in 2007, which included the reporting requirements and filing instructions that were formerly set forth in Insurance Regulation 67. Thus, Insurance Regulation 67 was repealed to eliminate requirements relating to a previous annual statement form that is no longer in use and eliminated regulatory provisions that are no longer applicable to any person.

• Addition of new Subpart 151-3 (Insurance Regulation 119) (Workplace Safety and Loss Prevention Incentive Program) of Title 11 NYCRR, effective April 21, 2010.

Statutory Authority: Insurance Law Sections 201, 301 and 308, and Chapter 6 of the Laws of 2007.

Subpart 151-3 was adopted to comply with WCL § 134(6)(c), which requires the Superintendent to promulgate regulations to establish workers compensation premium credits for employers insured by the State Insurance Fund or another workers compensation insurer that implement a safety incentive program, drug and alcohol prevention program, or a return to work program, and to require re-certification on an annual basis.

• Consolidated Amendment of Parts 52 (Insurance Regulation 62) (Minimum Standards for the Form, Content, and Sale of Health Insurance, Including Standards for Full and Fair Disclosure), 215 (Insurance Regulation 34) (Advertisements of Accident and Health Insurance), 360 (Insurance Regulation 145) (Rules to Assure an Orderly Implementation of Ongoing Operation of Open Enrollment and Community Rating of Individual and Small Group Health Insurance), 361 (Insurance Regulation 146) (Establishment and Operation of Market Stabilization Mechanisms for Individual and Small Group Health Insurance and Medicare Supplement Insurance), and Addition of Part 58 (Insurance Regulation 193) (Minimum Standards for the Form, Content and Sale of Medicare Supplement Insurance) to Title 11 NYCRR, effective May 3, 2010.

Statutory Authority: Federal Social Security Act (42 U.S.C. Section 1395ss); Insurance Law Sections 201, 301, 3201, 3216, 3217, 3218, 3221, 3231, 3232, 4235, and Article 43.

In 1992, Congress enacted the federal Omnibus Budget Reconciliation Act of 1990 which establishes uniform requirements to govern Medicare supplement insurance. In 1992, the Department amended regulatory provisions pertaining to the rules for the regulation of Medicare supplement insurance to ensure compliance with federal standards. In 2008, Congress amended federal law to revise the standards governing Medicare supplement insurance plans. These regulations were amended to conform to federal requirements, as set forth in the revised NAIC’s Medicare Supplement Insurance Minimum Standards Model Act.

• Amendment to Part 68 (Insurance Regulation 83) (Charges for Professional Health Services) of Title 11 NYCRR, effective September 22, 2010.

Statutory authority: Insurance Law Sections 201, 301, 2601, 5221, and Article 51.

This rule established, for the purposes of no-fault reimbursement, a fee schedule for dental services because at the time the Workers’ Compensation Board (“WCB”) had not established a fee schedule for such services. In 2009, the WCB adopted a dental fee schedule effective March 1, 2009. This amendment repealed Part A of Appendix 17-C to Part 68 that pertains to the fee schedule previously established by the then-Insurance Department for dental services. The charges for dental services are covered by the fee schedule established by the WCB.

• Amendment to Part 125 (Insurance Regulations 17, 20, and 20-A) (Credit for Reinsurance from Unauthorized Insurers) of Title 11 NYCRR, effective January 1, 2011.

Statutory Authority: Insurance Law Sections 110, 201, 301, 307(a), 308, 332, 1301(a)(9), 1301(c), and 1308.

This rule applies to insurers authorized to do business in New York State and addresses whether a ceding insurer may take credit on its balance sheet, as an asset or deduction from reserves, for reinsurance recoverable from an unauthorized assuming insurer. The amendment established certain requirements for ceding insurers and reinsurers and placed the onus on ceding insurers to prudently manage their risk.

Effective March 20, 2013, the Department adopted another amendment to Part 125 to establish rules governing when an authorized ceding insurer may take credit on its balance sheet for a reinsurance recoverable.

The following rulemakings were adopted in 2005:

• Amendment to Part 39 (Insurance Regulation 144) (Partnership for Long-Term Care Program) of Title 11 NYCRR, effective January 26, 2005.

Statutory Authority: Insurance Law Sections 201, 301, 3201, 3217, 3221, 3229, 4235, 4237 and article 43; Social Services Law 367-f.

By Chapter 454 of the Laws of 1989, as amended by Chapter 659 of the Laws of 1997, the Legislature enacted the Partnership for Long-Term Care Program (“the Program”) to provide that citizens of New York State who purchase a long-term care insurance policy/certificate under the Program, and who exhaust benefits under such policy/certificate, will become eligible for long-term care protection through the New York State Medicaid program. Insurance Regulation 144 establishes the standards and requirements relating to the Program. This amendment was necessary to expand the plan design options under the New York State Partnership for Long-Term Care Program. Prior to the amendment, there was only one plan design offered.

Effective June 1, 2012, The Department adopted another amendment to Insurance Regulation 144 to amend minimum standards for inflation protection, to add a new plan and add disclosure requirements relating to reciprocity.

Effective January 1, 2014, the Department adopted another amendment to Insurance Regulation 144 to amend the minimum daily benefit amounts for 2014 through 2023 for the New York State Partnership for Long-Term Care Program.

• Addition of new Part 217 (Insurance Regulation 178) (Prompt Payment of Health Insurance Claims) to Title 11 NYCRR, effective February 2, 2005.

Statutory Authority: Insurance Law Sections 201, 301, 1109, 2403, 3224 and 3224-a.

Chapters 637 and 666 of the Laws of 1997, which amended the Insurance Law relating to the settlement of claims for health care and payment for health care services, took effect January 22, 1998. The legislation was intended to set timeframes within which insurers and health maintenance organizations must pay undisputed claims for health care services submitted by subscribers and health care providers. One area of continuing concern had been determining when a claim was deemed to be "clean," and therefore ready for payment. This regulation created claims payment guidelines for determining when a health care insurance claim is considered complete and ready for payment. By its terms, the regulation is applicable only to claims submitted on paper.

Effective December 27, 2006, the Department adopted an amendment to Insurance Regulation 178 to update the claim payment guidelines for determining when a health care insurance claim is considered complete and ready for payment.

Effective July 15, 2009, the Department adopted another amendment to Insurance Regulation 178 to facilitate the timely processing and payment of health insurance claims in those circumstances where the patient is covered by more than one policy issued by different insurers.

• Amendment to Part 52 (Insurance Regulation 62) (Minimum Standards for Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure) of Title 11 NYCRR, effective September 7, 2005.

Statutory Authority: Federal Social Security Act (42 U.S.C. section 1395ss) and Insurance Law Sections 201, 301, 3201, 3216, 3217, 3218, 3221, 3231, 3232, 4235, 4237, and Article 43

The federal Medicare Prescription Drug, Improvement and Modernization Act of 2003 (“MMA”) included several changes to the standardized Medicare supplement insurance plans. The Act charged the NAIC’s Senior Issues Task Force, with the task of updating the standards for Medicare supplement insurance. This updating of standards was accomplished through adoption of a revised Model Regulation to Implement the NAIC Medicare Supplement Insurance Minimum Standards Model Act on September 8, 2004. This amendment conforms Regulation 62 to the requirements of the MMA.

• Amendment to Part 41 (Insurance Regulation 143) (Accelerated Payment of Death Benefits under a Life Insurance Policy) of Title 11 NYCRR, effective December 7, 2005.

Statutory Authority: Insurance Law Sections 201, 301, 1113, 1304, 3201, 3209, 4217 and 4517.

Chapter 537 of the Laws of 2000 added Sections 1113 (a)(1)(C) and (D) to the Insurance Law, allowing insurers to offer an insured the option of accelerating the death benefit under a life insurance policy when the insured is chronically ill and may need additional financial resources to assist with meeting long term needs and expenses. Access to the death benefit of a life insurance policy provides an alternate way for insureds to meet increasing long-term care needs and related expenses. The legislation also required that the accelerated death benefit payments for chronic illness be federally tax-qualified. The standards set forth by this regulation provide consumers with proper disclosure about this benefit, and they have helped to ensure the favorable federal tax treatment for the payment of the benefits.

The following rulemakings were adopted in 2000:

• Addition of Part 261 (Insurance Regulation 161) (Prepaid Legal Services Plans), Addition of Part 262 (Insurance Regulation 162) (Legal Services Insurance), Amendment to Part 26 (Insurance Regulation 25) (Independent Adjusters), Amendment to Part 161 (Insurance Regulation 129) (Flexible Rating System; Rating Plans; Tort Reform Re-filing Requirements), Amendment to Part 260 (Insurance Regulation 132) (Experimental Monoline Prepaid Legal Services Plans), Amendment to Part 73 (Insurance Regulation 121) (Claims-Made Policies; Scope of Application; Minimum Standards), Amendment to Part 71 (Insurance Regulation 107) (Legal Defense Costs in Liability Policies) (State Register of March 22, 2000) of Title 11 NYCRR, effective March 22, 2000.

Statutory Authority: Insurance Law Sections 201, 301, 1113(a)(29), and 1116, and Article 23; Chapter 65 of the Laws of 1998.

Prior to enactment of Chapter 65 of the Laws of 1998, Insurance Law Section 1116 of the authorized insurers to offer experimental plans of prepaid legal services insurance, and, except in connection with such plans, the Insurance Law did not authorize insurers to provide legal services insurance. Chapter 65 added a new paragraph 29 to Insurance Law Section 1111(a), effective April 1, 1999 setting forth a new kind of insurance entitled “legal services insurance.” Legal services insurance means insurance providing legal services or reimbursement of the cost of legal services. Chapter 65 also amended Insurance Law Section 1116 (retitled “Prepaid legal services plans and legal services insurance”).

These new regulations and amendments to existing regulations implemented the legislative purpose to make affordable legal services insurance and prepaid legal services plans available in New York, subject to appropriate safeguards and limitations.

Effective January 10, 2007, the Department adopted an amendment to Part 262. Prior to this amendment, legal services insurance that was written as part of a policy of liability insurance was subject to the filing and approval requirements of Insurance Law Article 23 and did not qualify as a special risk coverage pursuant to 11 NYCRR 16 (Insurance Regulation 86). Thus, a liability policy that might otherwise be exempt from Article 23 filing requirements, except for the fact that it includes legal services insurance coverage, was required to be submitted to the Department for approval before it could be used. This rule permits legal services insurance to qualify as a special risk only if the coverage of the policy of liability insurance of which it is a part also qualifies as special risk coverage pursuant to Insurance Law Article 63 and Insurance Regulation 86, and the policy is written on that basis.

• Amendment to Part 50 (Insurance Regulation 47) (Separate Accounts and Separate Account Annuities) of Title 11 NYCRR, effective April 26, 2000.

Statutory Authority: Insurance Law Sections 201, 301, 3201, 4240 and 4527.

New York Insurance Law section 4240 authorizes insurers to provide life insurance and annuity benefits that vary according to the investment experience of an insurer’s separate account. This amendment to Insurance Regulation 47 allows insurers to utilize additional methods in calculating variable annuity payments where the Superintendent has determined the methods to be fair, equitable, reasonable and not less favorable to participants or annuitants than the methods previously employed. The amendment is consistent with the legislative objective of permitting insurers to provide variable annuity income payments to consumers that equitably reflect the investment performance of the separate account.

• Amendment to Part 70 (Insurance Regulation 101) (Medical Malpractice Insurance Rate Modifications, Provisional Rates, Required Policy Provisions and Availability of Additional Coverages) of Title 11 NYCRR, effective June 23, 2000.

Statutory Authority: Insurance Law Sections 201, 301, 1113(a)(13) and (14), 3426, 3436, 5504, 5907, 6302, 6303 and Article 23 of the Insurance Law; and Chapter 147 of the Laws of 1999 as amended by Part JJ of Chapter 407 of the Laws of 1999.

This amendment establishes physicians and surgeons’ medical malpractice insurance rates and appropriate surcharges for the policy year July 1, 1999 through June 30, 2000 and establishes rules to collect and allocate surcharges to recover deficits based on past experience.

Effective June 20, 2001, the Department adopted an amendment to Insurance Regulation 101, which established the framework for the rates and forms of policies of physicians’ medical malpractice insurance. This amendment establishes the rates and surcharges for primary policies of physicians and surgeons’ medical malpractice insurance effective July 1, 2000.

Since 2001, the Superintendent has continued to establish physicians and surgeons’ medical malpractice insurance rates and appropriate surcharges pursuant to Section 40 of Chapter 266 of the laws of 1986 and amendments thereof. The Superintendent’s authority has been extended periodically by the Legislature.

• Amendment to Part 126 (Insurance Regulation 114) (Trust Agreements) of Title 11 NYCRR, effective August 21, 2000.

Statutory Authority: Insurance Law Sections 201, 301, and 1301(a)(14).

This amendment specifically permits a trust company to be the trustee under a trust agreement. Previously, the regulation required that the trustee be a bank that either was a member of the Federal Reserve or New York State charter.

• Amendment to Subpart 62-4 (Insurance Regulation 96) (Anti-Arson Application) of Title 11 NYCRR, effective September 27, 2000.

Statutory Authority: Insurance Law Sections 201, 301 and 340.

New York Insurance Law section 3403 specifies the circumstances under which an anti-arson application must be completed by an applicant for a new or renewal policy or binder covering the perils of fire or explosion. Insurance Regulation 96 creates the anti-arson application form that elicits the disclosure of certain types of information. The regulation also provides for cancellation of coverage if the application is not received within the statutorily mandated time frame.

Chapter 456 of the Laws of 1999 added a new subsection to Insurance Law section 3403, which allows the Superintendent to suspend or waive the requirement that the insurer use the anti-arson application upon renewal of policies if substantially equivalent information can be obtained by the insurer by other means. This amendment to Insurance Regulation 96 establishes a procedure whereby an insurer may request such suspension or waiver.

• Amendment to Part 360 (Insurance Regulation 145) (Open Enrollment and Community Rating of Individual and Small Group Health Insurance) of Title 11 NYCRR, effective January 3, 2001.

Statutory authority: Insurance Law Sections 201, 301, 1109, 3201, 3216, 3217, 3221, 3232, 3233, 4235, 4237, Articles 43 and 45; and Chapter 501 of the Laws of 1992

Chapter 501 of the Laws of 1992 was enacted to increase access to affordable health insurance coverage through mandatory community rating and open enrollment. Insurance Regulation 145 was first promulgated in 1993 to ensure that the objectives of the legislation were realized. This amendment prohibits premium discounts and per case charges – mechanisms that tended to result in coverage for smaller groups becoming more expensive and less accessible relative to larger groups. The amendment also prohibits insurers from establishing commission payment schedules that would make agents and brokers reluctant to spend time and resources selling and procuring coverage to smaller groups.

• Amendment to Part 361 (Insurance Regulation 146) (Pooling Mechanism for Individual and Small Group Health Insurance) of Title 11 NYCRR, effective December 13, 2000.

Statutory authority: Insurance Law Sections 201, 301, 1109, 3201, 3216, 3217, 3221, 3231, 3232, 3233, 4235, 4304, 4305, 4317, 4318, 4321, 4322, and Article 45; and Chapter 501 of the Laws of 1992, and Chapter 504 of the Laws of 1995.

Chapter 501 of the Laws of 1992 established requirements for open enrollment, community rating and portability of individual and small group health insurance coverage, and it also provided for a pooling mechanism for individual and small group health insurance to ensure the stabilization of health insurance markets and premium rates. Chapter 504 of the Laws of 1995 specifically required the phase-out of demographic based pooling mechanisms and the expansion of pooling processes designed to share the risk of or equalize high cost claims or the claims of high cost persons.

This amendment implements the legislative objective of Chapter 504, while also retains and enhances consumer protections, by assuring that coverage is made available to all segments of the population at reasonable rates.

Effective May 22, 2002, the Department adopted another amendment to Part 361 to implement and assure the ongoing operation of open enrollment and community rating, including mechanisms designed to ensure the stability of the individual and small group health insurance markets. Chapter 504 of the Laws of 1995 provided for modification of pooling processes designed to share the risk of insurers and HMOs providing individual and small group health insurance coverage.

This amendment exercises the statutory authority and responsibility placed upon the Superintendent to implement and assure the ongoing operation of open enrollment and community rating, including mechanisms designed to ensure the stability of the individual and small group health insurance markets. Chapter 504 permitted the Superintendent, after January 1, 2000, to establish more than one type of mechanism for insurers and HMOs to share risks or prevent undue variation in claims costs. This amendment phased out (as of January 1, 2000) pooling based on demographics for individual and small group coverage, other than Medicare supplement insurance, and replaces them with modified specified medical condition pools. The rule continues a demographic pooling mechanism for Medicare supplement insurance.

Effective June 25, 2008, the Department adopted another amendment to Part 361 to phase out the existing market stabilization pool. Payments, collections and data reports were not required in 2005, and the new pooling methodology established by the amendment was established in 2006 and became fully operational in 2008.

Effective May 5, 2010, Insurance Regulation 146 was amended as part of a consolidation of regulations that were amended to address Medicare Supplement Insurance as discussed supra.

Effective August 15, 2018, the Department amended Insurance Regulation 146 to authorize the Superintendent to implement a market stabilization pool for the small group health insurance market if, after reviewing the impact of the federal risk adjustment program on this market, the Superintendent determines that a market stabilization mechanism is a necessary amelioration. The rule: (1) ameliorates a possible disproportionate impact that federal risk adjustment may have on insurers and health maintenance organizations; (2) addresses the needs of the small group health insurance market in New York; and (3) prevents unnecessary instability in the health insurance market.

• Adoption of Part 310 (Regulation 167) (Product or System Group Policies) of Title 11 NYCRR, effective October 18, 2000.

Statutory Authority: Insurance Law Sections 201, 301, 3446 and article 23 and Chapter 187 of the Laws of 1999.

Chapter 187 of the Laws of 1999 added a new Section 3446 to the Insurance Law, which permits a group policy to be issued to a manufacturer, distributor, or installer of a product or system, or to a trustee on behalf of more than one manufacturer, distributor or installer. The regulation implements Insurance Law Section 3446 by establishing requirements for issuance of certificates to group members, payment of premium, and cancellation and renewal.

PART 2. BANKING REGULATIONS

Notice is hereby given of the following rules relating to banking that the Department will review this year to determine whether they should be continued or modified. These rules were adopted in 2017, 2015, 2010, 2005, and 2000. These rules as published in the Register contain a regulatory flexibility analysis, a rural area flexibility analysis, and/or a job impact statement. If no such analysis was filed, a statement setting forth why one or all of those analyses was unnecessary was published in the Register. Public comment on the continuation or modification of the above rules is invited. Comments must be received within 60 days of the date of publication of this notice. Comments should be submitted to:

Christine M. Tomczak

Assistant Counsel

New York State Department of Financial Services

One State Street

New York, NY 10004

Telephone: (212) 709-1642

Email: [email protected]

There were no new Banking regulation amendments or adoptions in 2017, 2015 or 2010.

The following rulemakings were adopted in 2005:

• Adoption of New Part 6.7 of the General Regulations of the Superintendent (Additional Authority of Banks, Trust Companies, Savings Banks and Savings and Loan Associations Pursuant to Banking Law §§ 14-g and 14-h; Additional Authority of Banks and Trust Companies to Underwrite and Deal in Certain Securities, including Municipal Bonds)

a. Description of rule: This rule gives New York state-chartered banks and trust companies the power to underwrite and deal in certain securities including municipal bonds.

b. Legal Basis for the rule: Banking Law §§ 13.4, 14, 14-g and 14-h.

c. Need for rule: This rule is necessary to give New York state-chartered banks and trust companies parity with national banks in underwriting and dealing in municipal revenue bonds and other government securities.

• Amendment to Part 70.2 of the General Regulations of the Superintendent (Interlocking Directors and Officers of Banking Organizations and Bank Holding Companies: Exceptions)

a. Description of rule: This rule allows for an executive officer of a bank, trust company, bank holding company, foreign banking corporation, national bank, savings bank, savings and loan association or federal savings and loan association to be the executive officer of any other such institution.

b. Legal Basis for the rule: Banking Law §§ 130(3)(b), 143(3)(b), 209(3), 247(5)(b), 399(5)(b) and 399-a(2).

c. Need for rule: This rule is needed to eliminate the requirement that interlock permissions granted by the Banking Board must be expressed in a special regulation.

• Amendments to Part 95.2 of the General Regulations of the Superintendent (Borrowings by Credit Unions)

a. Description of rule: This rule outlines borrowings by credit unions.

b. Legal Basis for the rule: Banking Law §§ 14, 453(7) and 454(9).

c. Need for rule: This rule was repealed.

• Amendments to Part 96.2 of the General Regulations of the Superintendent (Lending Limits for Credit Unions: Fully Secured Loans)

a. Description of rule: This rule describes how a credit union may make a loan to a member secured by that member’s shares.

b. Legal Basis for the rule: Banking Law §§ 14, 453(5) and 454(6).

c. Need for rule: This rule is needed to conform the regulation to changes in the Banking Law intended to provide New York state-chartered credit unions with powers comparable to, and competitive with, those of federally-chartered credit unions.

• Amendments to Part 96.6 of the General Regulations of the Superintendent (Lending Limits for Credit Unions: Maximum Amount of Loan)

a. Description of rule: This rule provides the maximum amount that a credit union may loan to a member without permission of the superintendent and that a loan to a member may not exceed 25 percent of the net worth of the credit union.

b. Legal Basis for the rule: Banking Law §§ 14, 453(5) and 454(6).

c. Need for rule: This rule is needed to conform the regulation to changes in the Banking Law intended to provide New York state-chartered credit unions with powers comparable to, and competitive with, those of federally chartered credit unions.

• Amendments to Part 97.5 of the General Regulations of the Superintendent (Investment in Credit Union Organizations: Aggregate Limitation)

a. Description of rule: This rule sets forth the aggregate limit of a credit union’s investments in the stock, capital notes and debentures of credit union organizations.

b. Legal basis for the rule: Banking Law §§ 14, 453(14-a), 454(19) and 460-a.

c. Need for rule: This rule is needed to conform the regulation to changes in the Banking Law intended to provide New York state-chartered credit unions with powers comparable to, and competitive with, those of federally chartered credit unions.

• Amendments to Part 113 of the General Regulations of the Superintendent (Investment by Credit Unions in the Shares of Central Credit Unions Located in this State)

a. Description of rule: This rule sets forth the limitations of investment by credit unions in the shares of central credit unions located in this state.

b. Legal basis for the rule: Banking Law §§ 14, 453(14-a), 454(19) and 460-a.

c. Need for rule: This rule was repealed.

• Amendments to Part 207 of the General Regulations of the Superintendent (Permission to Serve as an Executive Officer, Director or Trustee of Banks, Trust Companies, Savings Banks, Savings and Loan Associations, Foreign Banking Corporations, National Banks, Federal Savings and Loan Associations and Banking Holding Companies)

a. Description of rule: This rule allows executive officer and director interlocks at banking organizations.

b. Legal Basis for the rule: Banking Law §§ 130(3)(b), 143(3)(b), 209(3), 247(5)(b) and 399-a(2).

c. Need for rule: This rule is needed to allow an individual to serve as both an executive officer of an institution and a director of another institution.

• Amendment to Part 301.5 of the Superintendent’s Regulations (Security at Automated Teller Machines: Type and Frequency of Video Tapes or Digital Recording Media for ATM surveillance systems)

a. Description of rule: The rule sets forth the requirements for the quality and maintenance of surveillance equipment at Automatic Teller Machines.

b. Legal basis for the rule: Banking Law §§ 12 and 75-n.

c. Need for rule: Part 301.5 provides detailed standards regarding the retention of surveillance image records.

• Adoption of New Part 326 of the Superintendent’s Regulations (Maintenance of Reserves by Credit Unions)

a. Description of rule: This rule outlines the maintenance of reserves by credit unions.

b. Legal Basis for the rule: Banking Law §§ 12 and 458-a.

c. Need for rule: This rule is needed to conform the regulation to changes in the Banking Law intended to provide New York state-chartered credit unions with powers comparable to, and competitive with, those of federally chartered credit unions.

• Adoption of New Part 327 of the Superintendent’s Regulations (Investments by Credit Unions in the Shares of Corporate Credit Unions Located in this State)

a. Description of rule: This rule outlines the requirements for investments by credit unions in the shares of corporate credit unions located in New York.

b. Legal Basis for the rule: Banking Law §§ 12, 454 and 454(14).

c. Need for rule: This rule is needed to conform the regulation to changes in the Banking Law intended to provide New York state-chartered credit unions with powers comparable to, and competitive with, those of federally chartered credit unions.

• Amendments to Supervisory Policy G 4 (Public Accommodation Offices, Adjoining Facilities, and Adjacent Facilities)

a. Description of rule: This rule outlines the procedure for the establishment of public accommodation offices, adjoining facilities and adjacent facilities.

b. Legal Basis for the rule: Banking Law § 195.

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

• Amendments to Supervisory Policy G 6 (Branching Policy for Banking Organizations)

a. Description of rule: This rule outlines the Department’s policy regarding authorization of branches of state-chartered banking organizations.

b. Legal Basis for the rule: Banking Law § 195.

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

• Amendments to Supervisory Procedure G 104 (Application for a Public Accommodation Office)

a. Description of rule: This rule describes the requirements for a public accommodation office application.

b. Legal Basis for the rule: Banking Law §§ 12 and 29

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

• Amendments to Supervisory Procedure G 105 (Application for a Change of Location or a Change of Designation of Principal Office)

a. Description of rule: This rule describes the process for the filing of a change of location or a change of designation of principal office.

b. Legal Basis for the rule: Banking Law §§ 12 and 28.

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

• Amendments to Supervisory Procedure G 108 (Evidence of Compliance with Executive Law § 296-a)

a. Description of rule: This rule describes the procedure that a person, corporation, partnership or other entity must follow when filing certain applications to evidence that it is in compliance with Executive Law § 296-a.

b. Legal Basis for the rule: Executive Law § 296-a and Banking Law § 9-d.

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

• Amendments to Supervisory Procedure CB 103 (Application for Commercial Bank Branch Offices)

a. Description of rule: This rule describes the application process for institutions wishing to open branch offices.

b. Legal Basis for the rule: Banking Law §§ 11 and 29.

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

• Amendments to Supervisory Procedure SB 101 (Application for Savings Bank Branch Offices)

a. Description of rule: This rule describes the application process for savings banks wishing to open branch offices.

b. Legal Basis for the rule: Banking Law §§ 12 and 29.

c. Need for rule: This rule is needed to provide for an expedited branch application process for well-rated institutions; provide simplified application forms; eliminate outdated or unnecessary informational requirements; and establish more consistent applications requirements for different types of banking institutions.

The following rulemakings were adopted in 2000:

• Adoption of New Part 41 of the General Regulations of the Superintendent (Restrictions and Limitations on High Cost Home Loans)

a. Description of rule: The rule sets forth the guidelines for the making of high cost mortgage loans by regulated lenders.

b. Legal basis for the rule: Banking Law §§ 6-I, 6-l, 13 and 14.

c. Need for rule: Part 41 establishes various consumer protections with regard to the making of high cost mortgage loans.

• Amendment to Part 301.5 of the Superintendent’s Regulations (Security at Automated Teller Machines: Type and Frequency of Video Tapes or Digital Recording Media for ATM surveillance systems)

a. Description of rule: The rule sets forth the requirements for the quality and maintenance of surveillance equipment at Automatic Teller Machines.

b. Legal basis for the rule: Banking Law §§ 12 and 75-n.

c. Need for rule: Part 301.5 provides detailed standards regarding video tape quality and usage.

PART 3. FINANCIAL SERVICES REGULATIONS

Notice is hereby given of the following rules relating to financial services that the Department will review this year to determine whether they should be continued or modified. These rules as published in the Register contain a regulatory flexibility analysis, a rural area flexibility analysis, and/or a job impact statement. If no such analysis was filed, a statement setting forth why one or all of those analyses was unnecessary was published in the Register. Public comment on the continuation or modification of these rules is invited. Comments must be received within 60 days of the date of publication of this notice. Comments should be submitted as indicated in the summaries below.

The following rulemakings were adopted in 2017:

• Adoption of new Part 500 (Cybersecurity Requirements for Financial Services Companies) of Title 23 NYCRR

Statutory Authority: Financial Services Law Sections 102, 201, 202, 301, 302 and 408.

The Financial Services Law is intended to ensure the safe and sound operation of the financial system. Cybercriminals present an ever-growing threat to that system. They can cause significant financial losses for Department-regulated entities and for New York consumers who use the products and services of those entities. In addition, the private information of such consumers may be revealed and/or stolen by cybercriminals for illicit purposes. The adopted rule is intended to ensure that all financial services providers regulated by the Department have and maintain cybersecurity programs that meet certain minimum cybersecurity standards in order to protect consumers and continue operating in a safe and sound manner.

The contact for this rulemaking is Thomas S. Eckmier, Deputy General Counsel – [email protected]; (212) 709-1661.

• Adoption of new Part 501 (Nationwide Multistate Licensing System and Registry) of Title 23 NYCRR

Statutory Authority: Banking Law Sections 10, 14, 359, 371, 498-b, 561, 587 and 649, and Financial Services Law Sections 102, 201, 202, 301, 302, 309 and 408.

The adopted rulemaking allows regulated entities and applicants, which choose to do so, to use the Nationwide Multistate Licensing System and Registry (“NMLS”) in making submissions to the Department. The Department anticipates that this will prove both easier and more cost effective for those entities which choose to take advantage of the permitted use of NMLS.

The contact for this rulemaking is Thomas S. Eckmier, Deputy General Counsel – [email protected]; (212) 709-1661.

The following rulemakings were adopted in 2015:

• Amendment of Part 1 (Debt Collection by Third-Party Debt Collectors and Debt Buyers) of Title 23 NYCRR

Statutory Authority: Financial Services Law Sections 202, 302, and 408.

The Financial Services Law is intended to promote the reduction and elimination of fraud, criminal abuse, and unethical conduct by, and with respect to, banking, insurance and other financial services institutions and their customers. Debt collectors have the potential to cause significant harm to New York’s consumers and residents when engaging in overzealous, mistaken, or fraudulent debt collection. Debt collection practices can contribute to personal bankruptcies, marital instability, loss of jobs, and invasions of individual privacy. The adopted rule is intended to ensure that any debt collector that collects on debt from a New York consumer or resident meet certain minimum disclosure standards, such as requiring additional information in the debt collector’s initial communications with a consumer and disclosing when a statute of limitations for a debt may be expired, prior to accepting payment on the debt. It also requires debt collectors to provide additional documentation to New York consumers or residents that dispute the validity of a charged-off debt or right of the debt collector to collect on a charged-off debt.

The contact for this rulemaking is Bruce Wells, Associate Counsel – [email protected]; (212) 709-3802.

• Adoption of new Part 200 (Virtual Currencies) of Title 23 NYCRR.

Statutory Authority: Financial Services Law Sections 102, 104, 201, 202, 206, 301, 302, 303, 304-a, 305, 306, 309, 404 and 408; Banking Law Sections 10, 14, 36, 37, 39, 40, 44, 44-a, 78, 128, 225-a, 600, 601-a and 601-b; and Executive Law Section 63.

The adopted rule provides a comprehensive framework for the licensing and supervision by the Department of persons who engage in virtual currency business activity. Consistent with the goals of the Financial Services Law, this framework is intended to protect New York consumers and users of virtual currency, to ensure that virtual currency businesses operate safely and soundly, and to support continued growth and innovation in this constantly developing area of financial services.

The contact for this rulemaking is Thomas S. Eckmier, Deputy General Counsel – [email protected]; (212) 709-1661.

• Adoption of new Part 400 (Independent Dispute Resolution for Emergency Services and Surprise Bills) of Title 23 NYCRR.

Statutory Authority: Financial Services Law Sections 202, 301, 302, and Article 6, Insurance Law Section 301, and Part H of Chapter 60 of the Laws of 2014

Part H of Chapter 60 of the Laws of 2014 provided new rights and obligations, effective March 31, 2015, concerning disputes involving bills by health care providers. Health care plans, physicians, and when applicable, other health care providers and patients, have the right to request a review by an independent dispute resolution entity (“IDRE”) to resolve a payment dispute regarding a bill for certain emergency services or surprise bills. This Part implements the requirements of Financial Services Law Article 6 by establishing a dispute resolution process and the standards for such process, including criteria and the process for certifying and selecting an IDRE.

The contact for this rulemaking is Emily Donovan, Associate Attorney – [email protected]; (518) 473-4177.

Pursuant to section 207 of the State Administrative Procedure Act, notice is hereby provided of rules adopted by the New York State Gaming Commission (or its two predecessor agencies, the Racing and Wagering Board and the Division of Lottery) for the calendar years 2015, 2010, 2005 and 2000. Public comments on the continuation or modification of these rules are invited and those received by March 16, 2020, will be considered. Please forward comments to Kristen M. Buckley, Secretary of the New York State Gaming Commission, One Broadway Center, Suite 500, Schenectady, New York 12301-7500 or by electronic mail at [email protected].

The following contains a brief description of each rule, including the statutory authority, and a statement setting forth the justification for the need for each rule and its continuation without further modification.

2015

SGC-49-13-00009 Clenbuterol regulatory threshold and restricted time period

This rulemaking amended 9 NYCRR § 4043.2(g)(5) to limit the 96-hour restricted time period before a standardbred horse may race after an administration of clenbuterol to only horses that raced during the preceding 30 days and added a new rule, 9 NYCRR § 4043.2(k), which restricts from racing for 14 days a horse that has not raced for 30 or more days. This rule is needed because 14 days allow the anabolic effects of clenbuterol administration, which may occur when the drug is administered regularly for many days, to dissipate before the horse races. The legal basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law (“RWL”) §§ 103, 104 and 122.

SGC-49-13-00011 Regulatory thresholds for 16 drugs

This rulemaking added a new rule, 9 NYCRR § 4120.3, to supplement the restricted time periods with regulatory thresholds consistent with national standards and to control the use of 16 common equine drugs in a standardbred horse before it races. This rule is needed because the thresholds are designed to keep a horse from racing while a drug is affecting its performance. The legal basis for the rule is RWL §§ 103, 104 and 122.

SGC-49-13-00014 Depo Medrol threshold and tests required after administration

This rulemaking added paragraph (17) to 9 NYCRR § 4120.3(a) to create a regulatory threshold for methylprednisolone acetate (“Depo Medrol”) in a standardbred horse that demonstrates a joint injection of Depo Medrol within the previous seven days,; repealed the 48-hour restricted time period in 9 NYCRR § 4120.2(e)(9); and added a new rule, subdivision (1) of 9 NYCRR § 4120.2, to require a standardbred horse treated with Depo Medrol to test below the regulatory threshold for the drug and be released by the stewards to race. This rule is needed because it allows a time sufficient to allow an evaluation of whether the drug helped the horse to heal and because the long half-life of the drug makes it difficult to regulate with a restricted time period and threshold. The legal basis for the rules is RWL §§ 103, 104 and 122.

SGC-49-13-00015 48-hour restricted time period for flunixin

This rulemaking repealed subdivision (d) and amended subdivision (e) of 9 NYCRR § 4120.2 to no longer permit the non-steroidal anti-inflammatory drug (“NSAID”) flunixin to be administered until 24 hours before a standardbred horse races. This rule is needed because it standardized the restricted time period for all NSAIDs, removed an unwanted incentive to use flunixin, and protects horsepersons from exceeding the flunixin threshold. The legal basis for the rule is RWL §§ 103, 104 and 122.

SGC-49-13-00017 14-day restricted time period for firocoxib

This rulemaking added a new rule, subdivision (m) of 9 NYCRR § 4120.2, to restrict the administration of the NSAID firocoxib within 14 days before a standardbred horse race. this rule is needed to protect horsepersons from exceeding the firocoxib threshold and because a higher threshold would fail to identify administrations that are efficacious on race day. The legal basis for the rule is RWL §§ 103, 104 and 122.

SGC-49-13-00018 DMSO threshold and restricted time period

This rulemaking added paragraph (23) to 9 NYCRR § 4120.3(a) to establish a regulatory threshold that is consistent with national standards, and clarified subdivision (a) and amended subdivision (e) of 9 NYCRR § 4120.2 to increase the time restriction after an administration of dimethyl sulfoxide (i.e., DMSO) to 48 hours before a standardbred horse races to be consistent with this new threshold. This rule is needed for consistency with national standards. The legal basis for the rules is RWL §§ 103, 104 and 122. 9 NYCRR § 4120.3(a)(23) has been renumbered § 4120.3(a)(8).

SGC-37-14-00005 Depo Medrol tests required after administration

This rulemaking added a new rule, subdivision (k) of 9 NYCRR § 4043.2, to require a thoroughbred horse treated with Depo Medrol to test below the regulatory threshold for this drug and be released by the stewards to race. This rule is needed because the long half-life of the drug makes it difficult to regulate with a restricted time period and threshold. The legal basis for the rule is RWL §§ 103, 104 and 122.

SGC-37-14-00007 Reporting corticosteroid joint injections

This rulemaking added a new rule, 9 NYCRR § 4120.4(b), to require corticosteroid joint injections be reported to the Commission and claimants of a standardbred horse. This rule is needed because this information helps limit the debilitative effects of repetitive corticosteroid treatments. The legal basis for the rule is RWL §§ 103 and 104.

SGC-19-15-00017 Thoroughbred superfecta wager

This rulemaking added a new rule, 9 NYCRR § 4011.22, to describe and allow expressly the superfecta wager on thoroughbred races and to permit the wager with coupled horses in the race by assigning the best finish of the coupled horses to the wager. These changes make the wager easier for racetracks to offer and increases bettor interest, wagering handle and the return to government. The legal basis for the rule is RWL §§ 103 and 104.

SGC-20-15-00003 Thoroughbred coupled entries

This rulemaking amended 9 NYCRR § 4025.10 to permit coupled entries in thoroughbred races with stakes of a minimum purse of $50,000 rather than $1,000,000, provided that the racetrack adequately informs the public of the common ownership. This change increases the opportunity for the racetracks to offer this wager, wagering handle and the return to government. The legal basis for the rule is RWL §§ 103 and 104.

SGC-20-15-00012 Definitions for casino gaming rules

This rulemaking added a new rule, 9 NYCRR § 5300.1, to define terms for the casino gaming regulations in subchapter B of Chapter IV of the Gaming Commission’s rules. This rule is needed for effective regulation of casinos. Subsequent rule making has added definitions of credit slip, dealer, drop box, fill, gaming cheat, hand, match-play coupon, pit, promotional gaming chip and coupon, shift, and supervisor; and the initial subdivisions (a) – (m) have been renumbered by subsequent rule making to maintain in alphabetical order all the terms defined now in subdivisions (a) – (y) of 9 NYCRR § 5300.1. The legal basis for the rule is RWL §§ 104 and 1307.

SGC-29-15-00013 Gaming facility license application

This rulemaking added a new Part 5301 (§§ 5301.1 to 5301.10) to 9 NYCRR to prescribe the form and process for gaming facility license applications. This rule is necessary to implement gaming facility licensing prescribed in statute. The legal basis for the rules is RWL §§ 104, 1305, 1306, 1307, 1311, 1312, 1313, 1315, 1316, 1317 and 1318.

SGC-29-15-00014 Minority- and Women-Owned Business and Workforce Diversity

This rulemaking added a new Part 5311 (§§ 5311.1 to 5311.8) to 9 NYCRR to establish a utilization plan for MWBE in the construction and operation of commercial casinos and a new Part 5312 (§§ 5312.1 to 5312.5) to 9 NYCRR to require gaming facilities to ensure a diverse workplace. This rule is necessary to implement policy prescribed in statute. The legal basis for the rules is RWL §§ 104, 1307, 1316 and 1320.

SGC-29-15-00015 Gaming facility employee and vender licensing

This rulemaking created new Parts 5303 through 5307 to 9 NYCRR for the licensing and registration of gaming facility employees and vendors. Sections 5303.1 through 5303.10 set forth the minimum requirements and application procedure, background investigation, license criteria, fees, reapplication process, license discipline and wagering restrictions for all applicants. Part 5304 has rules specific for key casino employees, Part 5305 for gaming employees, Part 5306 for non-gaming employees and Part 5307 for vendors. This rule is necessary to implement occupational licensing prescribed in statute. The legal basis for the rules is RWL §§ 104, 1307, 1322, 1323, 1324, 1325, 1326 and 1327.

SGC-29-15-00026 Powerball and other Lottery draw game rules

This rulemaking amended §§ 5004.9, 5007.2, 5007.13, 5007.15, 5007.16, 5009.2 and 5010.2 of 9 NYCRR to use the term Quick Pick for the random-selection tickets and to change how many numbers are in the fields from which a player selects numbers to play Powerball, a multi-jurisdictional lottery game offered in New York, because innovative games generate more revenue. This rule is needed for New York to continue to participate in the Powerball game. The legal basis for the rule is RWL § 104 and Tax Law §§ 1601, 1604, 1612 and 1617.

SGC-33-15-00013 Numbers and Win-4 Lottery wagers

This rulemaking amended §§ 5009.2 and 5010.2 of 9 NYCRR to allow a Close Enough type of wager for the New York’s Numbers and Win-4 Lottery games because innovative games generate more revenue. The legal basis for the rule is RWL §§ 103 and 104 and Tax Law §§ 1601, 1604 and 1612.

SGC-29-15-00001 Video lottery gaming facility closing hours

This rulemaking amended § 5118.9 of 9 NYCRR to remove the 4:00 a.m. restriction that was rendered obsolete by an amendment to Tax Law § 1617-a(b). The legal basis for the rule is RWL §§ 103 and 104 and Tax Law § 1617-a(b).

SCG-40-15-00003 Standardbred races for New York-bred horses

This rulemaking added subdivision (c) to § 4108.8 of 9 NYCRR to permit standardbred racetracks to offer races with entries limited to only New York-bred horses, which is rulemaking required by an amendment to RWL § 307-a. The legal basis for the rules is RWL §§ 103, 104 and 307-a.

2010

Rules adopted by the Division of Lottery:

LTR-19-10-00013. Multi-state Powerball game and payment of prizes

This rulemaking to 21 NYCRR added a new § 2806.13 to permit New York to offer the multi-state Powerball lottery game and amended §§ 2803.12, 2806.2, 2806.7 and 2806.11 to codify an agreement of Mega Millions state lottery jurisdictions like New York with the Multi-State Lottery Association and permit the sale of Powerball and Mega Million lottery tickets in all such states, define Quick Pick to be consistent with the Powerball game, and require that prize winners cooperate in publicity events. Joining the Powerball game increases Lottery revenue and aid to education in New York. These rules have been renumbered as 9 NYCRR §§ 5007.13 and 5002.12, 5007.2, 5007.7 and 5007.11. The legal basis for the rules is Tax Law §§ 1601, 1604, 1612 and 1617.

Rules adopted by the Racing and Wagering Board:

RWB-16-10-00034 Uncoupling of entries with common thoroughbred trainers

This ruling amended §§ 4025.10(d) and 4035.2(e) of 9 NYCRR to allow horses with a common trainer to compete in the same race as separate betting interests, and to permit the stewards to disqualify each horse of the trainer that finished ahead of an uncoupled horse committing a racing violation in the race that was disqualified, respectively. The uncoupling of entries increases bettor interest, handle and the return to government. The authority to disqualify other horses of the trainer protects the integrity of the races. The legal basis for the rules is RWL §§ 101 and 231.

2005

No rules were adopted by the Division of Lottery

Rules adopted by the Racing and Wagering Board:

RWB-48-04-00011 Programming and naming of jockeys entered to ride

This rulemaking amended § 4025.33 of 9 NYCRR to allow the race secretary to find an unassigned, replacement jockey on an “also eligible” list when another jockey was listed for two horses in the same race, rather than requiring that a back-up jockey be listed in the printed program for every horse. This rule is needed to assist the wagering public in receiving adequate electronic notice of the substitution and the list is an efficient means to find and assign the jockey. The legal basis for the rule is RWL §§ 103, 104 and 218.

RWB-09-05-00001 Drug rules for reserpine, fluphenazine, EPO and rhEPO

This rulemaking amended §§ 4043.6, 4043.7, 4038.18, 4120.10, 4120.11, 4109.7 and 4113.3 of 9 NYCRR to use antibody tests to disqualify horses that recently were given the tranquilizers reserpine or fluphenazine, and to prohibit the use of the blood-doping agents erythropoietin (EPO) and darbepoietin (rhEPO), which stimulate the horse to produce more red blood cells, deliver more oxygen to its muscles and improve race performance. This rule promotes fair racing. The legal basis for the rules is RWL §§ 103, 104 and 301.

RWB-10-05-00003 Definition of bingo “occasion”

This rulemaking amended subdivision (q) of § 5800.1 of 9 NYCRR 5800.1 to define a single bingo occasion, for an organization that conducts more than one bingo occasion, as limited to no more than 10 games. This rule is needed to provide clear guidance to organizations licensed to conduct bingo, players, inspectors and municipal clerks who issue the bingo licenses; allows for ample time for inspection and supervision by inspectors; and preserves certain traditional social elements of bingo. This rule has been renumbered by subsequent rule making as 9 NYCRR § 4800.1(q). The legal basis for the rule is Executive Law § 435.

RWB-10-05-00004 Public inspection of records

This rulemaking repealed subdivision (i) of § 5400.1 of 9 NYCRR to no longer require that the commission notify each person who has records on file when there is a FOIL request for those records because this practice was unduly delaying the production of records. The commission continues to notify each person who requested it at the time the person filed the records. This rule is needed for the efficient implementation of FOIL. The legal basis for the rule is Public Officers Law § 87(1)(b).

2000

No rules were adopted by the Division of Lottery

Rules adopted by the Racing and Wagering Board:

RWB-47-99-00001 Bell jar ticket art approval rule

This rulemaking amended § 5608.4 of 9 NYCRR to allow a manufacturer of bell jar tickets to submit an artist’s rendition of the bell jar ticket, payout cards and flare when seeking commission approval for a new bell jar game, rather than the previous, costly requirement that the manufacturer produce and submit exemplars of these items. This rule makes regulation more efficient. This rule has been renumbered by subsequent rule making as § 4608.4. The legal basis for the rule is General Municipal Law §§ 186 and 188-a(1).

RWB-15-00-00005 Games of chance and bingo regulations

This rulemaking amended §§ 5600.1, 5602.1, 5603.7, 5607.13, 5611.1, 5611.2, 5623.1, 5814.6, 5815.11 and Parts 5608, 5620, 5622, 5624, and 5820 of 9 NYCRR to give force and effect to comprehensive bell jar game statutory changes to Articles 9-A and 14-H of the General Municipal Law and strengthen the commission’s enforcement capabilities. These rules have been renumbered by subsequent rule making as §§ 4600.1, 4602.1, 4603.7, 4607.13, 4611.1, 4611.2, 4623.1, 4814.6, 4815.11 and Parts 4608, 4620, 4622, 4624, and 4820 of 9 NYCRR. The legal basis for the rules is Executive Law § 435 and General Municipal Law §§ 186 and 188-a.

RWB-38-00-00001 Occupational license renewal dates

This rulemaking amended §§ 4002.7, 4101.24(d) and 4205.1(j) of 9 NYCRR to base the renewal date for standardbred, thoroughbred and quarter horse occupational licenses on the birthdate of the licensee rather than a calendar year basis. This rule is needed to distribute the workload of processing license applications throughout the year. The legal basis for the rules is RWL 103, 104, 213, 309 and 409.

Pursuant to the State Administrative Procedure Act Section 207 and 202-d, the Department of Health invites public comment on the continuation or modification of the following rules. Public comments will be accepted for 45 days from the date of publication in the State Register and should be submitted to Katherine Ceroalo, Bureau of Program Counsel, Regulatory Affairs Unit, Corning Tower, Room 2438, Empire State Plaza, Albany, NY 12237 by email at [email protected].

Title 10 NYCRR - Three Year Review

Amendment of Sections 23.1 and 23.2 of Title 10

(Expansion of Minor Consent for HIV Treatment Access and Prevention)

Statutory Authority:

Public Health Law Sections 225(4), 2304, 2305 and 2311

Description of the regulation:

This amendment supports the Governor’s plan to end the AIDS epidemic in New York State by 2020, by connecting persons diagnosed with HIV with treatment, including prevention services. After being diagnosed, young people currently face barriers that can prevent or delay access to care, including denial and fear of their HIV infection, misinformation, HIV-related stigma, low self-esteem, lack of insurance, homelessness, substance use, mental health issues, and lack of adequate support systems. Because of these factors, many young people need the ability to consent to HIV treatment, including prevention services. These regulations are necessary to provide appropriate health care rights and protections to minors and remove the barriers that can prevent or delay access to care. The regulation should continue without modification.

Amendment of Section 86-1.47 of Title 10

(Hospital Indigent Care Pool Payment Methodology)

Statutory Authority:

Public Health Law Section 2807-k (5-d)

Description of the regulation:

Part 86-1.47 of Title 10 NYCRR extends for another two calendar years, 2019 and 2020, the current indigent care distribution methodology which replaced a complex distribution approach that expired December 31, 2012. Public Health Law Section 2807-k (5-d) requires the Department to have such a methodology in place through 2020. This regulation will be extended to accommodate a not greater than seventeen and a half percent for 2019 and a twenty percent for 2020 reduction in payments.

Addition of Part 350 to Title 10

(All Payer Database)

Statutory Authority:

Public Health Law Sections 2816 and 206(18-a)(d)

Description of the regulation:

These regulations establish New York State’s All Payer Database (APD). The APD provides a robust dataset that supports a variety of comparative analyses. The APD enables evaluation of care delivery and payment models and identifies opportunities to avoid waste, over/under utilization, misuse of treatments, and conflicting plans of care. The regulations should continue without modification.

Amendment of Part 405 of Title 10

(Federal Conditions of Participation)

Statutory Authority:

Public Health Law Section 2803

Description of the regulation:

The Centers for Medicare and Medicaid Services (CMS) requires hospitals to meet specified Conditions of Participation (CoPs) in order to participate in the federal Medicare and Medicaid programs. The CoPs outline the basic requirements related to a hospital’s structure, operations and delivery of patient care. CMS made numerous changes to the CoPs effective on July 16, 2012. As a result, New York State general hospital regulations were revised to reflect the federal changes. The regulation should continue without modification.

Amendment of Section 405.21 of Title 10

(Perinatal Services)

Statutory Authority:

Public Health Law Section 2505-a

Description of the regulation:

Describes hospital requirements for perinatal care. This amendment expanded rights of breastfeeding mothers. Marketing of breast milk substitutes was restricted. Hospitals were required to annually disseminate hospital breastfeeding policies and procedures to staff providing maternity and newborn care, inform the mother of community services, including the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), and to make referrals to such community services as appropriate. The regulation should continue without modification.

Amendment of Part 1004 and Subpart 55-2 of Title 10

(Medical Use of Marihuana)

Statutory Authority:

Public Health Law Sections 3369-a and 502

Description of the regulation:

These regulations comprehensively govern the medical marijuana program pursuant to Public Health Law §§ 3360-3369 and set the rules for patients to participate in the program, as well as for practitioners to certify them and for Registered Organizations to manufacture and distribute medical marijuana products in New York State.

Subpart 55-2 describes certification requirements for environmental laboratories that test samples that originate from New York State. Section 55-2.15, which describes requirements for testing for medical marihuana, was updated to correct the name of the Drug Enforcement Administration and to include disposal requirements for medical marihuana.

The regulations should be amended to improve patient access to the medical marijuana program, reduce the costs of medical marijuana products, clarify requirements for research on medical marijuana products, and promote social equity within the medical marijuana industry. Section 55-2.15 was recently amended, effective 08/21/2019, and future amendments may be required with changes in industry standards.

Title 10 NYCRR - Five Year Review

Amendment of Section 9.1 of Title 10

(Prohibit Additional Synthetic Cannabinoids)

Statutory Authority:

Public Health Law Section 225

Description of the regulation:

The regulation prohibits the manufacture and sale of certain synthetic cannabinoids.

The regulation should be amended to conform to and supplement subsequent amendments to Public Health Law § 3306, which added several synthetic cannabinoids to New York State’s schedule of controlled substances.

Amendment of Subpart 50-3 of Title 10

(Medical Records Access Review Committees)

Statutory Authority:

Public Health Law Section 18(4)

Description of the regulation:

Effective January 1, 1987, patients and other qualified persons were granted access to health care records by Section 18 of the New York State Public Health Law (PHL), which was enacted in Chapter 497 of the Laws of 1986. The law contains the procedures for making records available, the conditions under which a provider can deny access to records, and a process to resolve situations in which patients or other qualified persons dispute a provider’s denial of access to records.

If a patient is denied access to their health care records, the patient or other qualified persons are afforded the right of appeal to Medical Records Access Review Committees (MRARC) designated by the Commissioner of Health pursuant to PHL Section 18 to hear and make determinations on appeals. Subpart 50-3 of Title 10 of the New York State Codes, Rules and Regulations (NYCRR) governs the operations of the MRARCs, comprised of Department of Health professionals.

Subpart 50-3 describes the steps that physicians and non-physician professionals must take in the event of an appeal to the denial of access to patient information and the process to be followed by MRARCs in hearing and issuing determinations on appeals. The regulation should continue without modification.

Amendment of Parts 58 and 34 of Title 10

(Patient Access of Laboratory Test Results)

Statutory Authority:

Public Health Law Sections 576 & 587

Description of the regulation:

Subparts 58-1 (Clinical Laboratories), 58-8 (HIV Testing) and 34-2 (Laboratory Business Practices) had previously included language that prohibited a patient from obtaining their test results directly from a laboratory. These regulations were amended to allow patients to access their test results directly from a laboratory. The regulation should continue without modification.

Amendment of Subpart 58-2 of Part 58 of Title 10

(Blood Banks)

Statutory Authority:

Public Health Law Section 3121(5)

Description of the regulation:

This regulation describes requirements for blood banks and requirements for laboratories performing immunohematology testing. Numerous amendments were made to update practice standards, to address changes in nomenclature and technologies used in the field of blood banking and immunohematology testing and added requirements for ambulance services that administers blood components during transport from one hospital to another hospital.

Amendments will be proposed to clarify requirements for reinfusion procedures; modify the requirements for the collection and handling of blood for subsequent transfusion; establish requirements for the issuance of blood, blood components and derivatives during routine and emergency situations; revise donor qualifications, collection and testing requirements for whole blood, apheresis and serial plasmapheresis; update record retention requirements to be consistent with the FDA and industry standards; amend requirements for standard operating procedures; amend the standards for transfusion and immunohematology testing requirements; clarify personnel and supervisory requirements for serial plasmapheresis and apheresis collection of blood components.; clarify requirements for transfusions that occur outside of a hospital setting and during interfacility transport; and revise criteria for exceptions to reflect industry standards.

Amendment of Subpart 66-1 of Title 10

(School Immunization Requirements)

Statutory Authority:

Public Health Law Sections 2164 and 2168

Description of the regulation:

On June 13, 2019, Governor Andrew Cuomo signed legislation removing non-medical exemptions from school vaccinations for children. Therefore, in August 2019, Section 2164(10) of the Public Health Law (PHL), sections 66-1.1, 66-1.2, 66-1.3, 66-1.6, and 66-1.10 of Title 10 (Health) of the Official Compilation of Codes, Rules and Regulations of the State of New York were amended via emergency regulation changes, to be compatible with the new legislation. At the same time, a notice of proposed rulemaking was submitted for public comment.

Amendment of Section 80.138 of Title 10

(Opioid Overdose Programs)

Statutory Authority:

Public Health Law Section 3309

Description of the regulation:

The Commissioner is authorized to establish standards for approval of any opioid overdose prevention program, and opioid antagonist prescribing, dispensing, distribution, possession and administration pursuant to this section which may include, but not be limited to, standards for program directors, appropriate clinical oversight, training, record keeping and reporting.

The standards, since the inception of New York State’s opioid overdose prevention initiative in 2006, have been codified in 10 NYCRR 80.138. These standards, with minor proposed amendments to the regulation, must remain to ensure the orderly continuance of the state’s opioid overdose prevention initiative. Modifications will be proposed to conform to updated program standards.

Addition of Section 86-1.45 to Title 10

Inpatient Rate for Language Assistance Services

Statutory Authority:

Public Health Law Section 2807-c(35)

Description of the regulation:

Reimbursement for language assistance services in the hospital inpatient setting. The regulation should continue without modification.

Amendment of Subpart 86-10 of Title 10

Rate Rationalization for Community Residences (CRs) / Individualized Residential Alternatives (IRAs) Habilitation and Day Habilitation

Statutory Authority:

Public Health Law Section 201

Description of the regulation:

Rate rationalization reformed the operating component of the rate by introducing methodological rigor into what was previously a negotiated rate. Further, these regulations consolidate the rate-setting functions of Medicaid services previously exercised by the Office for People with Developmental Disabilities (OPWDD) within the Department of Health.

OPWDD was responsible for the reimbursement of the capitol cost component of Residential and Day Habilitation providers and the Department of Health is responsible for reimbursement of the operating cost component. This arrangement has been ratified by the Centers for Medicare and Medicaid Services (CMS), along with the changes to reimbursement for Residential and Day Habilitation services reflected by this regulation.

The regulation should not continue without modification.

Amend regulation to add the following:

• Direct Care Support Professional and Clinical 2% compensation increases

• Cap reimbursement of Agency Administration at 15 percent

• Offset other income surpluses against allowable Medicaid costs.

Amendment of Subpart 86-11 of Title 10

Rate Rationalization for Intermediate Care Facilities for Persons with Developmental Disabilities (ICF/DDs)

Statutory Authority:

Social Services Law Section 201

Description of the regulation:

Rate rationalization reformed the operating component of the rate by introducing methodological rigor into what was previously a negotiated rate. Further, these regulations consolidate the rate-setting functions of Medicaid services previously exercised by the Office for People with Developmental Disabilities (OPWDD) within the Department of Health.

OPWDD was responsible for the reimbursement of the capitol cost component of ICF/DD services and the Department of Health is responsible for reimbursement of the operating cost component. This arrangement has been ratified by the Centers for Medicare and Medicaid Services (CMS), along with the changes to reimbursement for ICF/DD services reflected by this regulation.

The regulation should not continue without modification.

Amend regulation to add the following:

• Direct Care Support Professional and Clinical 2% compensation increases

• Cap reimbursement of Agency Administration at 15 percent

Addition of Subpart 86-12 to Title 10

(Outpatient Services Licensed Under the Mental Hygiene Law)

Statutory Authority:

Sections 26 and 111(a) of part H of chapter 59 of the laws of 2011

Description of the regulation:

Utilization limits applied to Office for People with Developmental Disabilities licensed clinics. The regulation should continue without modification.

Amendment of Part 94 of Title 10

(Physician Assistants and Specialist Assistants)

Statutory Authority:

Public Health Law Sections 3308, 3701 and 3703

Description of the regulation:

Part 94 of Title 10 sets forth the supervision and scope of duties of a licensed physician assistant or a registered specialist assistant performing medical services only under the supervision of a physician. This includes the number of assistants that can be supervised by a physician, the prescribing authority of an assistant, and the types of specialist assistants. The regulation should continue without modification.

Amendment of Sections 98-1.2 & 98-1.11 of Title 10

(Managed Care Organizations)

Statutory Authority:

Public Health Law Sections 2801, 2801-a and 2803(2)

Description of the regulation:

Section 98-1.2 includes a definition for the HARP line of business. Section 98.11(e) (1) ii maintains the contingent reserve percentage at 7.25% for the Medicaid Managed Care, HARP and HIV SNP Programs. The regulation should continue without modification.

Amendment of Section 98-1.16(c) and Addition of Subpart 98-3 to Title 10

(Audited Financial Statements for Managed Care Organizations)

Statutory Authority:

Public Health Law Sections 4403(2) and 4403(f)(7)

Description of the regulation:

The regulation extends audit and reporting standards to all managed care organizations (MCOs) certified under Article 44 of the Public Health Law. The regulation applies to MCOs (Prepaid Health Services Plans, HIV Special Needs Plans and Managed Long Term Care Plans) (PHSPs, HIV SNPs and MLTCPs) that were not included under the Department of Financial Services Regulation 118. This ensures that all MCOs authorized to operate under Article 44 must adhere to the same financial reporting requirements and standards in the filing of audited financial statements. The regulation is closely patterned upon 11 NYCRR 89 (Regulation 118) adopted by the Department of Financial Services and the National Association of Insurance Commissioners model audit rule ("NAIC model") that reflects a consensus of the insurance regulators of all states and territories of the United States as to scope, detail, needs and benefits. The regulation should continue without modification.

Addition of Section 400.25 to Title 10

(Disclosure of Quality and Surveillance Related Information)

Statutory Authority:

Public Health Law Sections 2803 and 2805-t

Description of the regulation:

The Nursing Care Quality Protection Act (Chapter 422 of the Laws of 2009), added PHL Section 2805-t which requires Article 28 facilities to disclose identified nursing quality indicator information upon request to any member of the public, and to the Commissioner of any State agency responsible for licensing the facility or responsible for overseeing the delivery of services by the facility, or any organization accrediting the facility. PHL Section 2805-t authorizes the Commissioner to promulgate regulations regarding disclosure of nursing quality indicators to such requesters. This regulation establishes standards for the collection and disclosure of data regarding nursing staffing levels and nursing-sensitive patient outcome indicators. The regulation should continue without modification.

Addition of Part 404 to Title 10

(Integrated Outpatient Services)

Statutory Authority:

Public Health Law Section 2803

Description of the regulation:

The regulation relates to standards applicable to programs licensed or certified by the Department of Health, Office of Mental Health or Office of Alcoholism and Substance Abuse Services which desire to add to services provided under the licensure or certification of one or both agencies. The regulation should not continue without modification. In response to the Regulatory Modernization Initiative and to and to make permanent the DSRIP Project 3.a.i. Licensure Threshold, these regulations will be amended by DOH, OMH, and OASAS to facilitate the integration of health care services by any provider licensed by one of those agencies.

Amendment of Part 405 of Title 10

(Hospital Observation Services)

Statutory Authority:

Public Health Law Sections 2803, 2805-v & 2805-w

Description of the regulation:

Legislation passed in 2013 added new Sections 2805-v and 2805-w of the Public Health Law. This legislation established new requirements for hospital observation services. Since these requirements differed from those in the existing regulations, amendments were made to bring the regulations into conformance with the provisions of PHL. The regulation should continue without modification.

Amendments of Section 415.3(h) of Title 10

Nursing Home Transfer and Discharge Rights

Statutory Authority:

Public Health Law Sections 2801, 2801-a and 2803(2)

Description of the regulation:

Resident rights as it relates to transfer and discharge from nursing home facility. The regulation should continue without modification.

The Division is currently reviewing all of Part 415 of Title 10 and intends to make appropriate updates.

Amendment of Sections 600.3 and 710.5 of Title 10

(Amendment of Certificate of Need (CON) Applications)

Statutory Authority:

Public Health Law Sections 2801-a(1) and 2802(1)

Description of the regulation:

The regulation clarified language relating to changes to Certificate of Need applications prior to and after Public Health and Health Planning Council (PHHPC) approval and set forth conditions under which such changes would be referred back to PHHPC for reevaluation and recommendations. The regulation should continue without modification.

Amendment of Section 710.1 of Title 10

(Certificate of Need Requirements)

Statutory Authority:

Public Health Law Section 2802

Description of the regulation:

The regulation removed CON review requirements for repair and maintenance projects and equipment replacement projects costing more than $6 million. The regulation also removed the requirement that non-clinical infrastructure projects exceeding $15 million be subject to administrative review. In lieu of the submission of administrative or full review CON applications, the amended rule required the submission of only a written notice and, where applicable, specified certifications and a plan for patient safety during project construction.

The regulation was amended again effective 9/6/17 to eliminate the requirement that notice be provided for non-clinical infrastructure projects that do not exceed $6 million and to apply the notice requirement to non-clinical infrastructure projects costing over $6 million. The regulation should continue without modification.

Amendment of Part 757 of Title 10

(Chronic Renal Dialysis Services)

Statutory Authority:

Public Health Law Section 2803

Description of the regulation:

Part 757 of Title 10 of the New York Codes Rules and Regulations (NYCRR) outlines the requirements for services provided in New York State chronic renal dialysis centers. These centers must comply with the regulations contained in Title 42 of the Code for Federal Regulations (CFR), Amendments to 42 CFR established new conditions for coverage that chronic renal dialysis centers must meet to be approved by the Centers for Medicare and Medicaid Services. It establishes performance expectations for centers and encourages patients to participate in their plan of care and treatment. It also reflects advances in dialysis technology and standard care practices. This regulation was updated in 2015 to be in compliance with the revised federal requirements. The regulation should continue without modification.

Amendment of Part 800 of Title 10

(Emergency Medical Services)

Statutory Authority:

Public Health Law Section 3002

Description of the regulation:

This regulation provides descriptions of all terms used in regulations, outlines the requirements and process in order to become a certified EMS provider in New York State. Further, this regulation outlines the requirements to participant in the NYS Continuing Medical Education recertification program, provides the guidelines that regulate the conduct of EMS providers related to pre-hospital care and provides the guidelines on disciplinary action of EMS providers and agencies.

The regulations will be amended to match current medical practice, educational standards and EMS operations.

Addition of Part 1004 and Amendment of Subpart 55-2 of Title 10

(Medical Use of Marihuana)

Statutory Authority:

Public Health Law Section 3369-a

Description of the regulation:

These regulations comprehensively govern the medical marijuana program pursuant to Public Health Law §§ 3360-3369 and set the rules for patients to participate in the program, as well as for practitioners to certify them and for Registered Organizations to manufacture and distribute medical marijuana products in New York State.

Subpart 55-2 describes certification requirements for environmental laboratories that test samples that originate from New York State. A new section, Section 55-2.15, was added which describes requirements for testing for medical marihuana.

The regulations should be amended to improve patient access to the medical marijuana program, reduce the costs of medical marijuana products, clarify requirements for research on medical marijuana products, and promote social equity within the medical marijuana industry.

Section 55-2.15 was recently amended, effective 08/21/2019, and future amendments may be required with changes in industry standards.

Title 18 NYCRR - Five Year Review

Amendment of Section 505.2(l) of Title 18

(Transgender Related Care and Services)

Statutory Authority:

Public Health Law Sections 201 and 206 & Social Services Law Sections 363-a and 365-a(2)

Description of the regulation:

Authorizes the provision of transition-related care and services for Medicaid eligible persons diagnosed with gender dysphoria. The regulation should continue without modification.

Amendment of Sections 505.14 and 505.28 of Title 18

Personal Care Services Program (PCSP) and Consumer Directed Personal Assistance Program (CDPAP)

Statutory Authority:

Social Services Law Sections 363-a(2), 365-a(2)(e) & 365-f and Public Health Law Section 201(1)(v)

Description of the regulation:

Sets forth the requirements for Medicaid payment for home health services provided by personal care agencies.

This regulation is under review for amendment.

Title 10 NYCRR - Ten Year Review

Amendment of Subpart 6-2 of Title 10

(Ocean Surf Bathing Beaches and Automated External Defibrillators (AEDs))

Statutory Authority:

Public Health Law Section 225

Description of the regulation:

The regulation requires automated external defibrillation (AED) equipment and at least one lifeguard trained in the use of an AED at regulated surf beaches during all hours of operation. The regulation further requires all ocean surf beaches operated by a homeowners association to have qualified surf lifeguards on duty, and to comply with Subpart 6-2 of the State Sanitary Code. The regulation should continue without modification.

Addition of Section 23.5 to Part 23 of Title 10

(Expedited Partner Therapy to Treat Chlamydia Trachomatis)

Statutory Authority:

Public Health Law Section 2312

Description of the regulation:

The regulation permits health care providers to provide Chlamydia trachomatis patients with antibiotics or a written prescription for antibiotics to deliver to his or her sexual partner(s) without prior clinical assessment of those partners. The regulation furthers an important goal to reduce the incidence of Chlamydia re-infection and augments provider options for managing the care of Chlamydia patients. The regulation is under review for amendment to conform to chapter 298 of the Laws of 2019.

Amendment of Part 40 of Title 10

(State Aid for Public Health Services: Counties and Cities)

Statutory Authority:

Public Health Law Section 602(3)(a)

Description of the regulation:

10 NYCRR Part 40 establishes regulations regarding State Aid to local health departments for general public health work. Subpart 40-1 establishes the administrative aspects of the State Aid program.

In 2010, certain Subpart 40-1 regulations relating to State Aid eligibility were amended. Effective December 31, 2014, Subpart 40-1 was repealed and a new Subpart 40-1 was issued. The new Subpart 40-1 clarifies, simplifies and modernizes certain regulations related to the administrative aspects of the State Aid program.

Part 42 establishes regulations for State Aid for public health laboratories. Part 42 was also amended in 2010 to eliminate State Aid for laboratory services that do not support public health programs. The Part 42 regulations should continue without modification.

Amendment of Sections 40-1 & 40-3 of Title 10

(State Aid for Public Health Services: Counties and Cities - Reimbursement to Municipalities per PHL Article 6 for Home Health Services)

Statutory Authority:

Public Health Law Section 602(3)(a)

Description of the regulation:

10 NYCRR Part 40 establishes regulations regarding State Aid to local health departments for general public health work. Subpart 40-1 establishes the administrative aspects of the State Aid program. In 2010, certain regulations relating to State Aid for home health services provided by the local health department were amended.

Effective December 31, 2014, Subpart 40-1 was repealed and a new Subpart 40-1 was issued. The new Subpart 40-1 clarifies, simplifies and modernizes the regulations related to the administrative aspects of the State Aid program, including those for home health services provided by the local health departments.

Subpart 40-3, related to optional programs reimbursable for State Aid, was also repealed effective December 31, 2014. This regulation should continue without modification.

Amendment of Subpart 43-2 of Title 10

(HIV Uninsured Care Programs)

Statutory Authority:

Public Health Law Sections 2776(1)(e), 201(1)(h) & (p) & 206(3)

Description of the regulation:

The regulation supports access to medications, primary care and insurance premium assistance for uninsured and underinsured New Yorkers. Additional amendments to the regulation were promulgated in April 24, 2019. The regulation should continue without modification.

Addition of New Part 48 to Title 10

(Palliative Care Certified Medical Schools and Residency Programs)

Statutory Authority:

Public Health Law Sections 2807-n

Description of the regulation:

Section 48.10 establishes the criteria for New York Medical Schools and Residency programs to become certified. The regulation provides that in order to become NYS certified the school must be accredited by the Liaison Committee on Medical Education or the American Osteopathic Association.

Section 48.20 provides for the Commissioner or his/her designee to award designation upon receipt of an application from a NYS Medical School or residency program which meets the criteria in 48.10

The regulations should continue without modification.

Amendment of Subpart 55-2 of Title 10

(Environmental Testing for Critical Agents Using Autonomous Detection Systems (ADS))

Statutory Authority:

Public Health Law Section 502

Description of the regulation:

Subpart 55-2 describes certification requirements for environmental laboratories that test samples that originate in New York State. The amendment revised Sections 55-2.10 and 55-2.13, as well as added a new Section 55-2.14, established standards for the certification and operation of environmental laboratories that seek approval to engage in critical agent testing by means of new technologies, including polymerase chain reaction (PCR)-based methods and immune-based bioassays employed at a fixed-base facility, or by use of an autonomous detection system (ADS) deployed in the field. An ADS is, generally speaking, an automated, real-time, self-contained sampling and analytical system for detection of critical agents situated outside a fixed-base laboratory. This regulation should continue without modification.

Amendment of Section 60-1.13 of Title 10

(WIC Vendor Minimum Stocking Requirements)

Statutory Authority:

Public Health Law Section 2500

Description of the regulation:

10 NYCRR 60.1.13 sets forth the criteria that a retail vendor must meet in order to become an approved vendor for the New York State Women, Infant and Children’s (WIC) supplemental food program.

The regulations, as they pertain to minimum stocking requirements, should continue without modification. However, the Department intends to propose amendments to other provisions of the existing regulation to conform to U.S. Department of Agriculture (USDA) program requirements regarding vendor authorization and management including vendor participant ratio, geographic proximity and transaction volume of nearby vendors.

Amendment of Subpart 69-4 of Title 10

(Early Intervention Program)

Statutory Authority:

Public Health Law Sections 2540 - 2559-b

Description of the regulation:

These regulations set forth State requirements, in conformance with federal requirements, for New York’s Early Intervention Program for infants and toddlers ages birth to three years and their families. The regulations include definitions, child find to identify potentially eligible children, provider qualifications and standards, multidisciplinary evaluations, initial and ongoing eligibility criteria, individualized family service plans, service delivery options and standards, monitoring of providers, procedural safeguards, transition, content and retention of records, and computation of reimbursement rates for program services. These regulations must be revised to conform to revised federal regulations and amendments to state statute.

Amendment of Appendix 75-A of Part 75 of Title 10 - Wastewater Standard-Residential Onsite Systems

Statutory Authority:

Public Health Law Section 201(1)(l)

Description of the regulation:

The regulation sets forth design standards to be met in the construction of residential onsite wastewater treatment systems. These design standards provide for the safe, sanitary means of treating and dispersing wastewater. The Department intends to propose amendments to the regulations to delete reference to obsolete standards. This regulation should continue until the proposed amendments are adopted.

Amendment of Subpart 86-8 of Title 10

(Ambulatory Patient Groups (APGs) Methodology)

Statutory Authority:

Public Health Law Section 2807(2-a)

Description of the regulation:

Modifies existing APG transition provisions for new providers and the listing of APG reimbursable and non-reimbursable services. The regulation is under review for amendment.

Amendment of Subpart 86-8 of Title 10

(Ambulatory Patient Groups (APGs) Outpatient Rate Setting Methodology)

Statutory Authority:

Public Health Law Section 2807(2-a)(e)

Description of the regulation:

To refine APG payment methodology regarding new APG weights, new procedure-based weights & minor changes in APG payment rules. The regulation is under review for amendment.

Amendment of Parts 405, 410, 420, 600, 703, 705, 709 and 710 of Title 10

(Revisions to Certificate of Need (CON) Process for Threshold Levels)

Statutory Authority:

Public Health Law Sections 2802 and 2803(2)(a)

Description of the regulation:

The regulations set forth the dollar cost thresholds that determine the various levels of CON review—limited, administrative or full review—for construction projects by health care facilities subject to Article 28 of the Public Health Law. The regulations should continue as modified in 2017 to raise dollar cost thresholds for general hospital projects.

Amendment of Sections 405.3, 405.9, 405.10, 415.26, 751.6, 763.13, 766.11, and 793.5 of Title 10

(Personnel Health Amendments and Medicare Conditions of Participation)

Statutory Authority:

Public Health Law Sections 2800, 2803, 3612 and 4010

Description of the regulation:

The regulations were amended to permit the use of the FDA-approved blood assays for the detection of latent TB infection, as an alternative to the skin test as a condition of employment or affiliation in general hospitals, diagnostic and treatment centers, nursing homes, certified home health agencies, long term home health care programs or AIDS home care programs, licensed home care service agencies, and hospices. In addition, the amendments were made to update the regulations to be consistent with federal requirements (Medicare Conditions of Participation) regarding the timeframe for completion of the hospital admission history and physical examinations, and for authentication of verbal orders and persons who may authenticate verbal orders in hospitals. The regulations should continue without modification.

Amendment of Sections 405.6, 405.7, 405.19, 708.5 of Title 10

(Hospital Minimum Standards and Appropriateness Review)

Statutory Authority:

Public Health Law Section 2803

Description of the regulation:

The regulations were amended to allow hospitals a five year “look back” period of a person’s employment instead of ten years when granting privileges to physicians, podiatrists and dentists. The existing regulation concerning patient’s rights prohibited hospitals from discriminating against patients on the basis of race, color, religion, sex, national origin, disability, sexual orientation, or source of payment. This amendment added a prohibition against discrimination based on age. In addition, hospital emergency department requirements were amended to allow hospitals with less than 15,000 emergency department visits a year to staff their emergency departments with a supervising or attending physician who is not present, but is available within 30 minutes, instead of the previous requirement of 20 minutes, provided that a nurse practitioner or physician assistant is on site. The regulations should continue without modification.

Amendment of Section 405.12 of Title 10

(Circulating Nursing Required)

Statutory Authority:

Public Health Law Sections 2800, 2803(2) and 2805-s

Description of the regulation:

The regulation was amended to implement Chapter 158 of the Laws of 2008. This chapter law requires general hospitals to employ a registered nurse, qualified by training and experience, to be present as a circulating nurse, in any and each separate operating room where surgery is performed for the duration of the operative procedure. The regulation should continue without modification.

Amendment of Section 709.3 of Part 709 of Title 10

(Residential Health Care Facility (RHCF) Bed Need Methodology)

Statutory Authority:

Public Health Law Section 2803(2)

Description of the regulation:

The regulation lists the factors and formulas used in the calculation of the public need for residential health care facility beds as reviewed in the Certificate of Need (CON) process under Article 28 of the Public Health Law. The regulation should be amended to project bed need out to 2025.

Amendment of Parts 711, 712, 713, 714, 715 & 716 of Title 10

(Standards of Construction for Health Care Facilities)

Statutory Authority:

Public Health Law Section 2803(2)

Description of the regulation:

These regulations establish architectural, engineering and construction standards for hospitals, nursing homes, diagnostic and treatment centers and other facilities subject to Article 28 of the Public Health Law. The regulation should be amended to require that future health care facility construction projects conform to the 2014 edition of Guidelines for Design and Construction of Health Care Facilities.

Amendment of Section 755.6 of Part 755 of Title 10

(Post Anesthesia Evaluations at Freestanding and Hospital Off-Site Ambulatory Surgery Centers (ASCs))

Statutory Authority:

Public Health Law Section 2803

Description of the regulation:

This amendment was made to conform the regulation with a federal regulatory change (42 CFR 416.42), which specifies that in the ambulatory surgery center (ASC) setting the post anesthesia assessment must be completed and documented by a physician, anesthetist, or certified registered nurse anesthetist (CRNA). Previously, the regulation only authorized a physician to evaluate each patient for proper anesthesia recovery in ASCs. The regulation now permits CRNAs and dentists (the federal definition of physicians includes dentists) to conduct the post-anesthesia evaluation. The regulation should continue without modification.

Title 18 NYCRR - Ten Year Review

Amendment of Section 505.23 of Title 18

(Certified Home Health Agency Program)

Statutory Authority:

Social Services Law Sections 363-a(2), SSL 365-a(2)(d)

Description of the regulation:

Sets forth the requirements for Medicaid payment for home health services provided by a certified home health agency. The regulation should continue without modification.

Title 10 NYCRR - Fifteen Year Review

Amendment of Section 2.1(a) of Title 10 (Communicable Diseases-Addition of Laboratory Confirmed Influenza)

Statutory Authority:

Public Health Law (PHL) §§ 225(4) and (5)(a), (g) and (h)

Description of the regulation:

This amendment to the regulation added laboratory confirmed influenza to the NYS list of reportable communicable diseases. This initiative protected the public health by permitting closer monitoring of communicable diseases. This addition was the basis for the Department's enhanced monitoring of influenza and has been instrumental in the prompt identification and surveillance of unusual strains of influenza circulating in NYS such as the novel A influenza H1N1virus. Requiring laboratories to electronically submit confirmed influenza laboratory data via the NYSDOH electronic clinical laboratory reporting system (ECLRS) permitted adequate disease monitoring without unnecessarily burdening the disease reporting system. During the 2008-2009 influenza season there were 30,144 laboratory reports of confirmed influenza received via ECLRS which has more than doubled the number of cases previously reported. This data allowed the department to characterize the outbreak, watch for changes in transmission, monitor for antiviral resistance, determine geographic and temporal changes and mount an appropriate public health response. For these reasons, amending the list of reportable communicable diseases to add laboratory confirmed influenza, should be retained. The Department intends to further amend the list of reportable diseases set forth in the regulation in the future.

Revisions to Subparts 5-1, 5-2, Repeal existing Appendix 5-B and add a new Appendix 5-B, and addition of a new Appendix 5-D to Part 5 of Title 10 (Water Well Construction)

Statutory Authority:

PHL §§ 201, 206(18), 225 and 1120

Description of the regulation:

Section 206 of Public Health Law was amended in 1999 to require the Department to promulgate standards for water wells, including drilling, construction, abandonment, repair, maintenance, water flow and pumps. Extensive outreach to water well drillers, other interested parties and also to other states with long-standing water well programs was conducted to assure that all directives of the law were implemented. Appendix 5-B was promulgated, containing standards for all water supply wells, including both residential and public water supply wells. Appendix 5-D was promulgated to include supplementary and complementary requirements for public water supply wells. Subparts 5-1 and 5-2 were revised to accommodate 5-B and 5-D as reference standards. These regulations should continue without modification.

Amendment of Section 5-1.52 and 5-1.91 of Subpart 5-1 of Title 10 (Treatment, Monitoring and Reporting for Radionuclides)

Statutory Authority:

PHL § 225

Description of the regulation:

Sections 5-1.52 and 5-1.91 of Subpart 5-1 were amended to incorporate and reflect federal regulations promulgated by the U.S. Environmental Protection Agency. New maximum containment levels, monitoring frequencies, notification and compliance requirements for various radionuclide contaminants were established, as were provisions for variances from specified treatment techniques. The U.S. Environmental Protection Agency has further revised federal regulations. For the Department to obtain primacy for the implementation and enforcement of federal drinking water regulations, these regulations should be amended.

Amendment of Sections 69-1.1, 69-1.2 and 69-1.3 of Subpart 69-1 of Title 10 (Newborn Screening Panel)

Statutory Authority:

PHL § 2500-a

Description of the regulation:

Subpart 69-1 designates diseases or conditions which must be included in the state's newborn screening panel and enumerates the responsibilities of the hospital CEO with regard to such screening, in accordance with the Department’s mandate to prevent infant and child mortality, morbidity and diseases and disorders of childhood. The rule implemented the public health aims of early identification and timely medical intervention for all the State’s youngest citizens. The Department’s Newborn Screening Program continues to perform testing on newborns and continually updates the panel of tests that are performed.

The regulation should continue with modification. Subpart 69-1 was recently amended, effective on 2/13/19, that reflect recent recommendations by the Department of Health and Human Services Advisory Committee on Heritable Disorders in Newborns and Children related to improving timeliness in newborn screening programs. Section 69-1.2 was amended such that the diseases to be screened will no longer be listed and will instead be listed on the Department’s web page.

Addition of new Subpart 69-9 to Title 10 (Standardized Autopsy Protocols for Unanticipated Infant Deaths)

Statutory Authority:

PHL § 4210, as amended by Chapter 58 of the Laws of 2002

Description of the regulation:

The regulation was established to provide standardized autopsy protocols. The Infant Autopsy Protocol is intended to:

• Ensure comprehensive postmortem examinations of infants who die suddenly and unexpectedly.

• Provide findings to correlate with the decedent’s medical history.

• Provide findings to correlate with the death scene investigation.

• Develop documentation that justifies the autopsy diagnoses.

• Establish accurate causes of death.

• Develop accurate vital statistics, information and records.

• Assist in prioritizing the allocation of health care resources.

• Fulfill criteria to make a diagnosis of Sudden Infant Death Syndrome (SIDS)

• Allow comparison of SIDS and sudden, unexpected death cases in different locales.

The regulation should continue without modification.

Amendment of 86-1.89 of Part 86 of Title 10 (Supplemental Distributions of Regional Professional Education Pools)

Statutory Authority:

PHL § 2807-m(5)

Description of the regulation:

This regulation defined “reform goals” for the Supplemental Distribution of Regional Education Pools and specified the method of distributing funds to the pools. This rule was repealed in 2011 as part of the 2009/2010 Executive Budget implementation.

Addition of Subpart 86-8 of Part 86 of Title 10 (Rates of Payment for Limited Home Care Agencies)

Statutory Authority:

Laws of 1995, Chapter 81, section 105-d as amended by Laws of 1997, Chapter 433, section 69

Description of the regulation:

The regulation establishes a rate of payment for limited home care services agencies to reduce Medicaid expenditures for certain personal care services furnished to eligible residents of an adult home or enriched housing program. It provides reimbursement directly to the limited home care services agency rather than an outside personal care provider or certified home health agency. The regulation should continue without modification.

Amendment of Subpart 98-1 of Title 10 (Managed Care Organizations)

Statutory Authority:

PHL Article 44

Description of the regulation:

Article 44 was amended by Chapter 649 and 705 of the Laws of 1996, Chapter 433 of the Laws of 1997 and Chapter 659 of the Laws of 1997 in relation to Medicaid managed care, managed care consumer rights and managed long term care programs. The amendments changed the title and clarified the department’s authority over specified forms of managed care organizations, including primary care partial capitation providers, HIV special needs plans and managed long term care plans. The regulations removed obsolete provisions and provided clearer guidance to the health care industry concerning certification and operational requirements for managed care organizations. This regulation should continue without modification because it is necessary for the operation of managed care programs in NYS.

Amendment of Sections 128-1.6 and 128-3.8 of Title 10 (New York City Watershed Rules and Regulations)

Statutory Authority:

PHL §§ 1100-1103

Description of the regulation:

The Department adopted amendments to NYC's Watershed Rules and Regulations at New York City's request for the purpose of protecting the water quality of NYC reservoir sources. These amendments were also necessary for NYC to maintain the “filtration avoidance” issued by U.S. Environmental Protection Administration and NYSDOH for the City's Catskill/Delaware sources. Due to recent federal and state regulatory changes and in order to implement new “filtration avoidance” mandates, these regulations should be amended. The Department plans to propose amendments to this regulation that will continue to protect NYC’s watersheds and preserve NYC’s Filtration Avoidance Determination (FAD). This regulation should continue until the proposed amendments are adopted.

Amendment of Section 131.1 of Title 10 (City of Syracuse-Watershed Rules and Regulations)

Statutory Authority:

PHL § 1100

Description of the regulation:

The Department adopted amendments to the City of Syracuse's Watershed Rules and Regulations at Syracuse's request for the purpose of protecting the water quality of Syracuse's Skaneateles Lake source. These amendments were also necessary for the City of Syracuse to maintain “filtration avoidance,” previously issued by the Department for this source. These regulations should continue without modification.

Addition of new Section 400.10 to Part 400; Addition of new subdivision (f) to 763.11, new subdivision (o) to 766.9 and new subdivision (n) to 793.1 of Title 10 (Health Provider Network (HPN) Access and Reporting Requirements)

Statutory Authority:

PHL §§ 2800, 2803, 3612 and 4010

Description of the regulation:

This regulation required Article 28 facilities, home care facilities and hospices to establish and maintain health commerce system (HCS) accounts with the Department of Health for the purpose of exchanging information with the Department in a rapid and efficient manner in times of emergency or urgent matters. The HCS is a secure web-based application that can be utilized by facilities to receive current and up-to-date information as well as submit data to specialized programs for reporting or surveillance purposes. In times of emergencies or urgent matters, such as disease outbreaks, it is imperative that facilities receive from and submit to the Department information in a rapid, efficient manner. The HCS, a free service, is the best means to ensure this exchange of information. This regulation should continue with the above noted technical modification to the System’s correct name.

Amendment of Section 400.18, Appendix C-4 & C-5 of 400.18 and Section 405.27 (Emergency Department Data Collection by SPARCS)

Statutory Authority:

PHL § 2816

Description of the regulation:

Section 400.18 regulates the operation of the Statewide Planning and Research Cooperative System (SPARCS). The Department intends to repeal the current Section 400.18 and a new Section 400.18 will be promulgated. The reasons for the complete revision are to delete obsolete language and to update the regulation. The new Section 400.18 will authorize SPARCS to collect additional outpatient data not currently being collected by SPARCS from general hospitals and diagnostic and treatment centers licensed under Article 28 of the Public Health Law. This regulation should continue until it is amended.

Amendment of Sections 405.21, 407.14, 708.2, 708.5, 711.4 and Addition of new Part 721 of Title 10 (Perinatal Regionalization)

Statutory Authority:

PHL §§ 2500, 2800, 2803(2) and 2803-j

Description of the regulation:

These regulatory changes updated previous requirements for maternal and newborn care, and formalized perinatal regionalization and designation requirements. The new Part 721 was added to collect in one section all the regulations governing the perinatal regionalization system, which had been divided among several sections of the New York State Hospital Code. The regulatory changes also described the kinds of resources that should be available for different levels of hospitals, and deleted outdated appropriateness-review standards used in the 1985 designation of hospitals at different levels of high-risk neonatal care.

These regulations govern the perinatal regionalization system, in which Regional Perinatal Centers (RPCs) coordinate the perinatal delivery system within their region; provide critical care and transport of pregnant women and infants; provide specialty care, including pediatric open heart surgery; and oversight of quality improvement activities within affiliate hospitals. Perinatal regionalization plays a critical role in reducing maternal and newborn morbidity and mortality.

Section 405.21 for hospital-based perinatal services was amended to support perinatal regionalization efforts, and to clarify and simplify some other existing regulatory requirements.

Sections 407.14, 711.4(d)(21) and (e)(10) were amended to reflect the change in terminology in section 405.21 in which hospital-based "maternity and newborn" services began to be referred to as "perinatal" services.

Section 708.2(b)(6) and Section 708.5(f) were repealed since new Part 721 integrated the requirements for perinatal re-designation and regionalization in one section.

Part 721 defines the perinatal regionalization system including requirements for affiliation agreements between Levels I, II and III hospitals and regional perinatal centers (RPCs), staffing requirements and quality improvement activities. The regulations formalize the designation process, update the Department of Health expectations for resources to be available at each level of care, and clarify the relationship between Levels I, II, and III programs and RPCs.

Amendments to these regulations have been proposed. In particular:

405.21 Perinatal Services - Perinatal hospital standards to be reviewed and updated to be consistent with national authorities based on a literature review and input from an expert workgroup of clinicians and key stakeholders. The regulations will address the professional qualifications of the obstetric and pediatric staff, the requirements for consultation with a qualified specialist when required by specific medical conditions, protocols and resources available to stabilize and assess newborns for their need of neonatal intensive care, and the daily care of maternity patients and infants in the perinatal service.

721.4 Statewide Perinatal Regionalization System - Perinatal hospital standards to be reviewed and updated to be consistent with national authorities based on a literature review and input from an expert workgroup of clinicians and key stakeholders. The regulations will provide definitions and requirements for level of care designations as well as patient care and patient transfers, qualifications and responsibilities of staff and ancillary personnel, quality improvement activities, and affiliation and transfer agreements.

Amendment of Sections 703.6 and 710.1 of Title 10 (Part-Time Clinics)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

Since its issuance in 2005, the current regulation has proven adequate to help ensure that services provided in part-time clinics are appropriate to those settings, and that the existing number of part-time clinics is sufficient to promote access to needed care. The regulation has also guarded against the operation of an excess number of part-time clinics, which occurred in some parts of the State prior to the amendment of the rule. The regulations should continue without modification.

Amendment of Sections 708.2, 708.5 and 709.16 of Title 10 (Review Criteria for Therapeutic Radiology)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

The regulations establish a methodology to be used to evaluate public need for therapeutic radiology devices as affected by prevailing medical practice in the use of these devices for curative and palliative care.

The Department intends to repeal this regulation as technological advances in the last 15 years have made it no longer necessary.

Amendment of Sections 709.16 and 709.17 of Title 10 (Need Methodology for Long-Term Ventilator Beds in Nursing Homes)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

The current regulation provides a methodology to be used in the evaluation of certificate of need applications for certification of long term ventilator beds. Since its issuance in 2005, the regulation has ensured that long-term ventilator beds are distributed throughout the State in a manner that both provided sufficient access to care and guarded against the costs associated with the operation and maintenance of beds in excess of those needed.

The regulation should continue with modification. The Department intends to amend this regulation in keeping with medical and technological advances that have occurred over the last 15 years.

Amendment of Section 763.13, Section 766.11 and addition of new Section 400.32 to Title 10 and amendment of Section 505.14 of Title 18 (Criminal History Record Check)

Statutory Authority:

PHL §§ 201, 2803 and 3612 and Social Services Law (SSL) § 363-a

Description of the regulation:

Section 400.23 related to the criminal history record check program and was repealed on December 19, 2007. It was replaced by Section 402 which implemented the statutory criminal history record check program defined in PHL Article 28-E. Sections 763.13, 766.11 of Title 10, and the amendment of Section 505.14 of Title 18 added a criminal background check requirement under Section 402. Although the CHRC program had been covered by emergency regulations since August 2006, permanent regulations became effective on December 2, 2009. The regulation should continue without modification.

Title 18 NYCRR - Fifteen Year Review

Amendment of 360-4.10(a)(9) of Title 18 (Spousal Impoverishment Budgeting)

Statutory Authority:

SSL § 366-c (2)(d)

Description of the regulation:

This regulation clarified that the community spouse's pension/retirement funds are resources of the community spouse which are to be included for purposes of determining the community spouse resource allowance and determining the institutionalized spouse's Medicaid eligibility. These funds are considered otherwise available to the community spouse under spousal impoverishment budgeting rules. This regulation should continue without modification.

Amendment of Section 486.2 and 486.5 of Part 486 of Title 18 (Adult Care Facility Inspection Reports)

Statutory Authority:

SSL §§ 460 and 461

Description of the regulation:

These amendments changed the requirement that an adult care facility inspection report include areas where the facility met or exceeded compliance with regulation and also steps for rectification of violations. The amendment provides that a report need only include a statement attesting that areas reviewed are deemed to be in compliance with applicable requirements if no violation is noted. The report may also include directions as may be appropriate as to the manner and time in which compliance with applicable requirements of law and regulation of the Department shall be effected. The regulations should continue without modification.

Addition of new subdivision (k) to Section 487.12, new subdivision (m) to Section 488.12 and new subdivision (k) to Section 490.12 of Title 18 (Health Provider Network (HPN) Access and Reporting Requirements – Adult Facilities)

Statutory Authority:

SSL §§ 460 and 461

Description of the regulation:

This regulation required adult homes, enriched housing programs and residences for adults to establish and maintain Health Commerce System (HCS) accounts with the Department of Health for the purpose of exchanging information with the Department in a rapid and efficient manner in times of emergency or urgent matters. The HCS is a secure web-based application that can be utilized by facilities to receive current and up-to-date information as well as submit data to specialized programs for reporting or surveillance purposes. In times of emergencies or urgent matters, such as disease outbreaks, it is imperative that facilities exchange information with the Department in a rapid, efficient manner. The HCS, a free service, is the best means to ensure this exchange of information. This regulation should continue with the above noted technical modification to the system’s correct name.

Amendment of Section 505.5 of Part 505 of Title 18 (Medicaid Enteral Nutrition Reimbursement Methodology)

Statutory Authority:

PHL § 230(1)(a)

Description of the regulation:

This methodology remains appropriate and consistent with the payment policy of other medical care insurers on this subject. This regulation should continue without modification.

Title 10 NYCRR – Twenty Year Review

Amendment of Parts 2 and 23 of Title 10 (Communicable Diseases)

Statutory Authority:

PHL §§ 225(4) and (5)(a), (g) and (h)

Description of the regulation:

This regulation protected the public health by permitting closer monitoring of communicable diseases. Diseases and infections of substantial public health importance were added to the list of communicable diseases that must be reported to public health authorities and/or require specimen submission for laboratory testing. These changes facilitated the diagnosis and treatment of disease and implementation of preventive measures to stop the spread of disease. In addition, the regulation eliminated from both the reporting list and the list of diseases requiring specimen submission diseases that were no longer of significance. In addition to rabies, clarification of reporting, prevention and control measures and treatment procedures were also made for emerging infections such as West Nile virus, and Severe Acute Respiratory Syndrome (SARS). The regulation was amended in 2005 to add confirmed influenza to the list of reportable communicable disease. These regulations should be retained without modification. The Department intends to amend the list of reportable communicable diseases in Part 2 in the future.

Amendment of Subparts 6-1 and 6-2 of Title 10 (Swimming Pools and Bathing Beaches)

Statutory Authority:

PHL §§ 225(4) and 225(5)

Description of the regulation:

Prior to the amendments, the regulation stated that temporary residence/campground bathing facilities were not required to provide lifeguards for their bathing facilities in 1991 or 1992 and may provide supervision through patron use rules and signage or a responsible person, depending on the level of supervision required at that time. The amendments allowed all temporary residence and campground operators, except those with ocean surf beaches, to select the level of supervision at swimming pools and bathing beaches operated as part of their temporary residence or campground, regardless of the supervision level provided in 1991 or 1992. The amendments provided a uniform standard allowing the same opportunity for selection of bathing facility supervision at all regulated temporary residences and campgrounds in the state, eliminating the differential standards that existed in the State. Also, the amendments clarified the intent, by specifying that parents, guardians, or similar adults must accompany children less than 16 years of age to a Supervision Level IV bathing facility. The regulation should continue without modification.

Amendment of Sections 12.2, 12.3, 12.13 and 23 of Title 10 (Regulation Affecting Nurse Practitioners, Licensed Nurses and Midwives)

Statutory Authority:

PHL § 225

Description of the regulation:

Amendments to these regulations were adopted to bring these provisions into conformance with amendments to Articles 139 (Nursing) and 140 of the Education Law (Midwife Practice Act). Article 140 of the Education Law, enacted in 1992, defined and established licensure and practice standards for the practice of midwifery. Those amendments rendered several provisions of the Department’s regulations either obsolete or inconsistent with the new law. The regulations should continue without modification.

Repeal of Subpart 24-1 of Title 10 (AIDS Reporting)

Statutory Authority:

PHL §§ 225(4) and 225 (5)(a)

Description of the regulation:

This regulation deleted provisions to conform to Part 63 amendments requiring HIV and AIDS case reporting. The deletions continue to be necessary. The regulation should continue without modification.

Amendment of Parts 36, 58, 66, 69, 82, 85 and 766 of Title 10 (Nurse Midwives)

Statutory Authority:

PHL §§ 576, 2164, 2500-a, 2522(6) and 4175; SSL §§ 364(2) and 365-a

Description of the regulation:

Amendments to these regulations were adopted to bring these regulations into conformance with the amendments to Articles 139 (Nursing) and 140 of the Education Law (Midwife Practice Act). Article 140 of the Education Law, enacted in 1992 defined and established licensure and practice standards for the practice of midwifery. Those amendments rendered several provisions of the Department’s regulations either obsolete or inconsistent with the new law. This regulation should continue without modification.

Amendment of Part 52 of Title 10 (Tissue Banks and Nontransplant Anatomic Banks)

Statutory Authority:

Article 43-B of the PHL

Description of the regulation:

This regulation details administrative and technical requirements pertaining to the collection, processing, storage, and distribution of tissue and nontransplant anatomic parts so as to protect the health of donors and recipients and advance the safety and utility of tissue and nontransplant anatomic parts for transplant, education, and research, as applicable.

The regulations should continue with modification. The regulation had not been amended since 2007 and amendments are proposed to re-organize the regulation to update categories of tissues and activities, their definitions and requirements to reflect advances in technology and changes in industry standards and medical practice; update requirements that need to be met for tissue bank directors; revise requirements for procurement of tissue from deceased donors, including setting restrictions on banks’ ownership and business relationships with funeral directors and funeral firms, and limiting recovery of tissue to specific locations; revise requirements for reproductive tissue banking; clarify requirements for activities subject to FDA oversight; revise requirements for compensation of donors; clarify requirements for tissue-derived products; clarify language for license denial and add language for other enforcement procedures, including license revocation, to be consistent with public health law.

Amendment of Subpart 58-2 of Title 10 (Blood Banks)

Statutory Authority:

PHL Article 31

Description of the regulation:

Subpart 58-2 amendments provided technical standards for NYS-permitted blood banks that collect, process, store, distribute and/or transfuse blood and blood components, and laboratories that perform related testing. The Department's efforts to ensure the safety of the blood supply and prevent adverse reactions in donors and transfusion recipients must be maintained through continuation of Subpart 58-2.

The regulation should continue without modification. Amendments will be proposed to clarify requirements for reinfusion procedures; modify the requirements for the collection and handling of blood for subsequent transfusion; establish requirements for the issuance of blood, blood components and derivatives during routine and emergency situations; revise donor qualifications, collection and testing requirements for whole blood, apheresis and serial plasmapheresis; update record retention requirements to be consistent with the FDA and industry standards; amend requirements for standard operating procedures; amend the standards for transfusion and immunohematology testing requirements; clarify personnel and supervisory requirements for serial plasmapheresis and apheresis collection of blood components.; clarify requirements for transfusions that occur outside of a hospital setting and during interfacility transport; and revise criteria for exceptions to reflect industry standards.

Amendment of Part 63 of Title 10 (HIV/AIDS Testing, Reporting and Confidentiality of HIV Related Information)

Statutory Authority:

PHL §§ 2786 and 2139

Description of the regulation:

This regulation described the protocols and procedures required for HIV/AIDS testing, reporting and confidentiality of HIV related information. Revisions to specific sections of Part 63 are being proposed currently to implement revisions to PHL sections 2781 and 2135. The regulation should continue without modification.

Addition of Section 68.6 of Title 10 (Distributions from the Health Care Initiatives Pool for Poison Control Center Operations)

Statutory Authority:

PHL §§ 2500-d(7) and 2807-1(l)(c)(iv)

Description of the regulation:

This regulation described the methodology for distributing funds from the Health Care Initiatives Pool to regional poison control centers. The regulation should continue without modification.

Amendment of Section 80.132 of Title 10 (Hypodermic Syringes and Needles)

Statutory Authority:

PHL §§ 3308 and 3381

Description of the regulation:

This regulation designates persons or classes of persons who may obtain and possess hypodermic needles and syringes without a prescription for use within the scope of their professions or activities, subject to additional conditions as specified. The regulation implements Public Health Law section 3381(1)(b), which authorizes the Commissioner to designate such persons, and eliminates unnecessary barriers in the provision of care to patients and animals. This regulation should continue without modification. This regulation should continue without modification.

Amendment of Section 86-2.30 of Title 10 (PRI Instructions)

Statutory Authority:

PHL §§ 2803(2), 2807(3) and 2808

Description of the regulation:

This regulation modified the instructions for completing the PRI form to recognize certain medical treatments provided to persons newly admitted as nursing facility residents, and services provided by nurse practitioners and physician assistants.

This regulation should be repealed. The NYSDOH no longer uses from the Patient Review Instrument (RUGS-II) and has adopted the Minimum Data Set (MDS) and RUGS-III for measuring patient acuity, beginning with rates effective April 1, 2009.

Amendment of Sections 401.1 and 710.1 of Title 10 (CON Requirements for Acute Care Beds and Major Medical Equipment)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

This regulation addressed the removal of certificate of need review of transfers of beds and equipment within established Article 28 hospital networks. This regulation should continue without modification.

Amendment of Section 405.25 of Title 10 (Organ and Tissue Donation Anatomical Gifts)

Statutory Authority:

PHL §§ 2803 and 4351

Description of the regulation:

This regulation sets forth a hospital’s responsibilities with regard to organ and tissue donation. Section 405.31 establishes the requirements for performing living donor transplants. Section 405.25 requires the hospital to establish appropriate protocols for contacting the proper organ procurement organizations (OPOs) when a patient is at or near death, and for selecting an OPO and eye and tissue banks, as well as a designated requester, with whom the hospital will work. Medicare Federal Conditions of Participation were considered when these regulations were developed, and the regulations reflect those conditions as well as the requirements of Article 43 of the Public Health Law. The Department intends to amend the regulations to conform to changes made to Article 43. These regulations should continue without modification while the amendments are being developed.

Amendment of Sections 600.3 and 710.5 of Title 10 (Requirements for Amendment of Approved CON Applications)

Statutory Authority:

PHL §§ 280-1-a(10)(a), 2808(2) and 2803(2)(a)

Description of the regulation:

This regulation simplified the certificate of need (CON) process related to the requirements for amendment of approved CON applications. Sections 600.3 and 710.5 have been further amended to reclassify additional changes which currently constitute “amendments” and thus require full review, so that they are instead considered to be “modifications” which are reviewed only by the Commissioner. The regulations should continue without modification.

Amendment of Section 710.1 of Title 10 (CON Requirements for Acquisition of Major Medical Equipment)

Statutory Authority:

PHL §§ 2808(2) and 2803(2)(a)

Description of the regulation:

This regulation amended CON requirements for acquisition of major medical equipment to simplify the purchase of additional equipment and replacement of such equipment by Article 28 facilities. This regulation should continue without modification.

Title 18 NYCRR - Twenty Year Review

Amendment of Section 360-3.2 of Title 18 (Finger Imaging for Medicaid Applicants/Recipients)

Statutory Authority:

Chapter 436 of the Laws of 1997

Description of the regulation:

This regulatory amendment made finger imaging an eligibility requirement for adults who apply for Medicaid and who are subject to the photo identification requirements established by the Department of Health. Chapter 58 of the Laws of 2009 eliminated the finger imaging requirement for Medicaid applicants/recipients. This amendment needs to be repealed.

Pursuant to the State Administrative Procedure Act (SAPA) § 207, the Office of Temporary and Disability Assistance (OTDA) must review at regular intervals those regulations that were adopted on or after January 1, 1997. The purpose of the review is to determine whether the regulations should be retained as written or modified. On January 30, 2019, OTDA published in the New York State Register a list of regulations from Title 18 of the New York Codes, Rules and Regulations (NYCRR) that OTDA adopted in 2016, 2014, 2009, 2004 and 1999. Those regulations are set forth below:

Rules adopted in 2016

A. TDA-03-16-00001 Referrals of Human Trafficking Victims from Established Providers of Social or Legal Services*

Amended 18 NYCRR 765.1 and 765.2 to clearly define the participant agencies that are statutorily authorized to participate in the referral process.

Analysis for the need for the rule: These amendments were needed to conform State regulations with Chapter 368 of the Laws of 2015.

Legal basis for the rule: Social Services Law (SSL) § 20(3)(d); L. 2015, ch. 368; L. 2011, ch.24; L. 2007, ch. 74; SSL Article 10-D

B. TDA-45-15-00012 Public Assistance (PA) Resources Exemption for Four-Year Accredited Post-Secondary Educational Institutions

Amended 18 NYCRR 352.23(b)(4) to exempt up to $1,400 for funds in a separate bank account for the sole purpose of paying tuition at two-year or four-year accredited post-secondary educational institutions, so long as the funds are not used for any other purpose.

Analysis for the need for the rule: By allowing PA recipients to utilize the exempt resources amount for either a two-year or four-year accredited educational institution, the regulatory amendment offers PA recipients enhanced educational options to advance their workforce readiness and financial earning capabilities through the pursuit of higher education.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1) and 131-n; L. 2014, ch. 58, part J, § 5

C. TDA-45-15-00011 Burden of Proof at Fair Hearings Challenging Interim Assistance Reimbursement (IAR) Amounts

Amended 18 NYCRR 358-5.9(a) to clarify the burden of proof for fair hearings concerning Interim Assistance reimbursement (IAR). The amendments provided that a social services district (district) must establish that its actions were correct at a fair hearing concerning the amount deducted from the initial payment of supplemental security income as reimbursement of PA.

Analysis for the need for the rule: The amendments rendered State regulations consistent with case precedents set by the New York State courts.

Legal basis for the rule: SSL §§ 20(3)(d), 22(8) and 95; L. 2012, ch. 41

D. TDA-47-15-00004 Child Support Program*

Amended 18 NYCRR §§ 346.2, 347.12, 347.17, 347.25, 352.15, 352.22, 352.31, and 369.1; repealed and added new §§ 347.2 and 347.13, and added § 300.13 to amend regulatory requirements concerning the distribution and disbursement of child support collections.

Analysis of the need for the rule: These amendments were required to comply with federal statutes and requirements.

Legal basis for the rule: SSL §§ 17(a)-(b), (i), 20(2)-(3), 34, 111-a, 111-c(2)(a), (d), 131-a(8)(a)(v), 158(5)-(6)(i), 348(2)-(3); Federal Social Security Act, §§ 408(a)(3), 457; 45 CFR §§ 302.32, 302.50-302.52, 303.72; Federal Deficit Reduction Act of 2005 (P.L. 109-171)

E. TDA-20-15-00001 Information Appropriate for Victims of Sexual Assault*

Added 18 NYCRR § 351.2(m) to require districts to make all applicants for and recipients of public assistance aware of their option to receive information appropriate for victims of sexual assault

Analysis of the need for the rule: The amendment increased outreach to victims of sexual assault and promoted access to essential services necessary for victims of sexual assault to overcome the physical, mental and emotional trauma associated from such abuse.

Legal basis for the rule: SSL §§ 17(a)-(b), (i), 20(2)-(3)(d), 34(3)(f) and 131(20); L. 2009, ch. 427

F. TDA-27-15-00002 Child Support Federal Incentive Payments*

Amended 18 NYCRR § 347.16 in order to establish the procedures by which the State distributes child support incentives received from the U.S. Department of Health and Human Services and allocate portions of those incentives to districts.

Analysis of the need for the rule: The amendment complied with changes to the federal incentive payment process under the Child Support Performance and Incentive Act (CSPIA).

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 111-a; 42 USC § 658a; 45 CFR, §§ 302.55, 303.52, 305.2, 305.31, 305.33

G. TDA-37-15-00005 Monthly Shelter Supplements*

Amended 18 NYCRR § 352.3(a)(3)(i) in order to update State regulations to reflect current State law by extending the authority to provide additional monthly shelter supplements to eligible public assistance applicants and recipients, including single adults and childless couples.

Analysis of the need for the rule: For homeless households that are moving from temporary housing to permanent housing, public assistance can be a stabilizing factor allowing households to begin working or increase earnings as they receive assistance to help pay bills, purchase food and meet their monthly rent. When necessary, rent supplements are also a stabilizing factor to help pay for some of the rent until the households become self-sufficient.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1); L. 2009, 2011-2015, Ch. 53; L. 2010, chs. 58, 110

H. TDA-39-15-00016 Temporary Housing Placements*

Amended 18 NYCRR §§ 352.8(b)(1) and 352.3(h) and added § 352.3(m) to adjust the rate approval process for temporary housing placements and expand the scope of inspections for such placements.

Analysis of the need for the rule: OTDA’s review and approval of the room and board rates help ensure that rates for temporary housing negotiated between districts and temporary housing providers are fair and affordable, and that they include services necessary to assist vulnerable families and individuals in their transitions out of homelessness. The expansion of inspections promotes greater accountability by districts for the quality of the temporary housing that is utilized.

Legal basis for the rule: SSL §§ 20(2), (3)(d), 34 and, 131-v(4)

I. TDA-06-16-00016 Emergency Shelters for the Homeless*

Added 18 NYCRR § 352.37 to allow OTDA full authority to take immediate emergency action against facilities and districts that are not providing emergency shelter that comports with prescribed standards.

Analysis of the need for the rule: The regulation helps ensure that emergency shelters are maintained in safer, more sanitary conditions, and that the welfare of residents is better protected.

Legal basis for the rule: SSL §§ 17(a)-(b), (i), 20(2)- (3), 34, 460-c and 460-d; Executive Law § 43(1); General Municipal Law § 34; State Finance Law § 109(4); New York City Charter § 93; Buffalo City Charter, ch. C, art. 7, § 7-4

J. TDA-19-16-00007 SNAP

Amended 18 NYCRR § 387.9(a)(7)(ii)(a)-(b)(2)-(3); and added 18 NYCRR § 387.9(a)(7)(ii)(c) to provide that in the event one or more household members no longer reside with a household terminated for refusal to cooperate, the penalty for refusal to cooperate will attach to the household of the person(s) refusing to cooperate.

Analysis of the need for the rule: The amendments are necessary to bring the State regulations concerning household cooperation with quality control reviews into compliance with federal statutes and regulations.

Legal basis for the rule: 7 USC, ch. 51 (generally) and §§ 2011 and 2013; 7 CFR § 273.2(d); SSL §§ 17(a)-(b) and (j), 20(3)(d), 34(3)(f) and 95; L. 2012, ch. 41

K. TDA-21-16-00005 Income Withholding of Child or Combined Child and Spousal Support

Amended Part 344 and § 347.9 of 18 NYCRR in order to update State regulations related to income withholding of child support or combined child and spousal support for persons who are not served by Part D of Title IV of the federal Social Security Act and for persons who are in receipt of Title IV-D services, respectively.

Analysis of the need for the rule: The regulatory amendments were necessary to conform the State regulations to federally-mandated changes to Civil Practice Law and Rules (CPLR) §§ 5241 and 5242 and SSL § 111-b(14).

Legal basis for the rule: 42 USC §§ 651, 654b, 666(a)(8)(B)(iii) and (b)(6); CPLR §§ 5241 and 5242; SSL §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 111-a and 111-b(14)

L. TDA-25-16-00002 Emergency Shelters*

Added 18 NYCRR 352.38 to address security measures and incident reporting in shelters for the homeless. The regulatory amendments required the operator of each emergency shelter to submit to OTDA and the district in which the emergency shelter is located an annual security plan for the emergency shelter. In addition, each district shall submit an annual plan to OTDA to help ensure that emergency shelters operating within the district are providing security and taking appropriate measures to protect the physical safety of emergency shelter residents and staff. Additionally, the regulatory amendments would clarify not only that reports of all serious incidents impacting upon the safety and well-being of shelter residents or staff must be documented and timely submitted to OTDA, but also OTDA’s authority to direct a district or emergency shelter operator to take additional security measures where an incident is reported.

Analysis of the need for the rule: The regulations help ensure that reasonable security measures are implemented at emergency shelters and that the safety of emergency shelter residents and staff is protected.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(2)-(3), 34, 460-c and 460-d

M. TDA-22-15-00005 SNAP*

Amended 18 NYCRR § 387.1, and added § 387.25 to update regulations for the Transitional Benefits Alternative (TBA) program, which provides additional federally funded SNAP benefits to certain households with children that are leaving cash assistance programs. These additional benefits help families meet their nutritional needs while making the transition from cash assistance to employment.

Analysis of the need for the rule: Both social services districts and recipients benefitted from having the requirements of the TBA program set forth in State regulations.

Legal basis for the rule: 7 USC § 2020(s); SSL § 20(3)(d) and 95

N. TDA-39-16-00010 Standard Utility Allowances for SNAP*

Amended 18 NYCRR § 387.12 to set forth the federally approved standard utility allowances as of October 1, 2016.

Analysis of the need for the rule: It is of great importance that the federally approved standard utility allowances for SNAP were applied to SNAP benefit calculations effective October 1, 2016. If post standard utility allowances were not updated on October 1, 2016, it could have resulted in thousands of SNAP dependent households receiving SNAP overpayments each month. Households receiving such overpayments could be subject to an extended period of SNAP recoupments at the rate of 10% of their monthly SNAP benefits to recover the resulting overpayments of SNAP benefits. Thus, the rule was necessary for the preservation of the public health and the general welfare of SNAP dependent households.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d) and 95; 7 USC § 2014(e)(6)(C); 7 CFR § 273.9(d)(6)(iii)

O. TDA-37-16-00004 PA Use of Resources - General Policy

Amended 18 NYCRR 352.23(b)(2) to update PA resource exemptions related to automobiles. Prior to this amendment, PA applicants and recipients were allowed to exempt one automobile, up to $4,650 fair market value. The amendment raised the fair market value of the exempt automobile on the following time line: one automobile, up to $10,000 fair market value, through March 31, 2017; one automobile, up to $11,000 fair market value, from April 1, 2017 through March 31, 2018; and one automobile, up to $12,000 fair market value, beginning April 1, 2018 and thereafter, or such other higher dollar value as the district may elect to adopt. However, if the automobile is especially equipped with apparatus for individuals with a disability, the apparatus must not increase the value of the automobile.

Analysis of the need for the rule: This amendment was needed to make State regulations consistent with § 1 of Part X of Chapter 54 of the Laws of 2016.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 131(1) and 131-n; L. 2016, ch. 54, part X, § 1

P. TDA-36-16-00006 SNAP*

Amended 18 NYCRR § 387.1 to update State regulations by adding the definitions of “eligible food” and “trafficking of SNAP benefits” to reflect federal requirements regarding the trafficking of SNAP benefits.

Analysis of the need for the rule: The regulatory amendments were necessary to bring the State regulations into compliance with federal requirements and State practices.

Legal basis for the rule: 7 USC Ch. 51 and §§ 2011, 2013 and 2024; 7 CFR §§ 271.2 and 273.16; SSL §§ 17(a)-(b), (j), 20(3)(d) and 95; L. 2012, ch. 41

Rules adopted in 2014

Q. TDA-14-14-00014 State Supplement Program (SSP)*

Repeal of 18 NYCRR Part 398; addition of a new Part 398 and § 358-5.12 to set forth the process for OTDA’s administration of the SSP and allow for telephone hearings to challenge SSP determinations.

Analysis of the need for the rule: These regulations provide the framework for OTDA’s administration of the SSP. The regulations provide the initial and continuing eligibility requirements for additional State payments. They set forth the reporting responsibilities of applicants and recipients of the SSP benefits and the ramifications if they fail to comply with the requirements. The regulations address the issuance of notices of action and provide for administrative fair hearings. They also address when OTDA will replace additional State payments for recipients and when underpayments of such benefits will be corrected. Conversely, the regulations also provide when OTDA will recover overpayments and equivalent benefits from recipients. The regulations address OTDA’s administrative responsibilities including confidentiality and document retention requirements. Lastly, the regulations allow telephone hearings for applicants and recipients of additional State payments.

Legal basis for the rule: SSL §§ 20(3)(d), 22(3)(f), (4), (8), 207, 211 and 212

R. TDA-36-14-00014 Noncompliance with SNAP Work Requirements; SNAP Conciliation Process*

Amended 18 NYCRR §§ 385.11 and 385.12 to render State regulations governing noncompliance and the conciliation process consistent with federal requirements.

Analysis of the need for the rule: These regulations were developed to make OTDA regulations pertaining to noncompliance and notice requirements consistent with federal regulations and policy. The regulations, in part, provide that SNAP applicants who fail to comply with work requirements without good cause are no longer subject to a durational sanction, and SNAP recipients will have the opportunity to avoid the imposition of a SNAP sanction by timely demonstrating compliance with the work requirements of the employment and training program as assigned by the district.

Legal basis for the rule: SSL § 95(1)(b); 7 USC §§ 2011, 2013 and 2029

S. TDA-38-14-00023 Standard Utility Allowances for SNAP*

Amended 18 NYCRR § 387.12 to update the standard utility allowances for SNAP to the federally approved levels as of October 1, 2014.

Analysis of the need for the rule: It was of great importance that the federally approved standard utility allowances for the SNAP were applied to SNAP benefit calculations effective October 1, 2014. If the standard utility allowances were not updated on October 1, 2014, it could have resulted in thousands of SNAP dependent households receiving underpayments each month. Thus, the rule was necessary for the preservation of the public health and general welfare of SNAP dependent households.

Legal basis for the rule: SSL §§ 20(3)(d) and 95; 7 USC § 2014(e)(6)(C); 7 CFR § 273.9(d)(6)(iii).

Rules adopted in 2009

T. TDA-17-08-00032 State-Confirmed Human Trafficking Victims*

Added Part 765 of Subchapter K to Title 18 NYCRR to govern the process and protocols for confirming an individual as a human trafficking victim in New York State.

Analysis of the need for the rule: The amendments provide more detailed instruction on protocols and procedures relating to the confirmation of human trafficking victims and the OTDA responsibilities. The need for the amendments is derived from the necessity to clearly define the participant agencies, the victim, and the terms describing the process of referral; to clearly describe the nature of OTDA’s consultative role in the confirmation process; and to clearly describe the process for required notifications to the prescribed parties.

Legal basis: SSL Art. 10-D.

U. TDA-04-09-00011 Educational Activities*

Amended §§ 385.6(a) and (b), 385.7(a) and (b), and 385.9(c) of Title 18 NYCRR to provide additional opportunities to participate in education and other skill development activities.

Analysis of the need for the rule: The amendments were developed to increase the skills of individuals receiving public assistance through the provision of additional opportunities to participate in education and other skill development activities.

Legal basis: 42 United States Code (U.S.C.) §§ 601(a) and 607; SSL Art. 5, Title 9-B.

V. TDA-07-09-00014 Utility Service*

Amended § 352.5(e) of Title 18 NYCRR to suspend the enforcement of utility repayment agreements during periods of cold weather.

Analysis of the need for the rule: The amendment was developed to better enable districts to help protect the health and safety of households if they suffer utility shutoffs during a cold weather period as a result of high energy costs.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), and 131-s.

W. TDA-09-09-00007 Recovery of Overpayments*

Amended § 352.31(d)(1) of Title 18 NYCRR to delete the regulatory requirement to recoup/recover overpayments from all members of an assistance unit regardless of their ages at the time of overpayment.

Analysis of the need for the rule: This amendment was developed to benefit children by relieving them of the financial responsibility of an overpayment incurred when they were children in the assistance unit.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 106-b.

Rules adopted in 2004

X. TDA-03-04-00003 Supplemental Security Income (SSI) Benefits*

Repealed § 352.2(b) and added new § 352.2(b); amended §§ 352.3(k)(3), (i), 352.30(a) and (f), and 352.31(a)(2); and added § 352.3(l) to Title 18 NYCRR, to require districts to consider the presence in the household of an adult or child receiving SSI who would, except for the receipt of SSI, be required to be included in the public assistance household when determining the household’s standard of need.

Analysis of the need for the rule: The amendments were developed to eliminate different budgeting methods required to be used for various family circumstances, and, with the exception of budgeting for households requesting and eligible to receive an emergency shelter allowance under § 352.3(k), to establish one budgeting method for determining the needs standard for a household that is applying for benefits.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 158, 349, and 355(3).

Y. TDA-28-03-00008 Eligibility of Refugees, Asylees, and Aliens for Public Assistance*

Amended §§ 349.3(a)(1)(iv), (vii), (2), (b), and 352.33; and added § 349.3(c) to Title 18 NYCRR to implement changes to the public assistance eligibility requirements for refugees, asylees, and aliens as set forth in Chapter 214 of the Laws of 1998.

Analysis of the need for the rule: The amendments were developed to implement provisions in Chapter 214 of the Laws of 1998, and to incorporate federal clarification of certain definitions related to citizenship and alien status.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 122, 131(1), and 355(3).

Z. TDA-13-04-00002 Cash Management Subsystem*

Amended § 600.6 of Title 18 NYCRR requiring districts to use the cash management subsystem of the welfare management system.

Analysis of the need for the rule: The amendment was developed to standardize local cash processing systems by requiring districts to use the cash management subsystem of the welfare management system for receipt of cash and for refunds and recoveries of past expenditures and the collection and tracking of overpayments; to reduce the number of systems used by districts to establish and collect recoveries and overpayments on a timely basis; to identify claims on collection cases; and to encourage more orderly claims processing.

Legal basis: SSL §§ 20(3)(d), 21, 21(2), 34(3)(f), and 82.

AA. TDA-17-04-00016 Exemption of Earned Income*

Amended § 352.20(a) and (b) of Title 18 NYCRR concerning the exemption of the earned income of full-time and part-time students when determining eligibility for public assistance.

Analysis of the need for the rule: The amendment was developed to implement Chapter 246 of the Laws of 2002, which amended the regulations to provide that all income earned by a dependent child receiving public assistance or for whom an application for such assistance has been made, who is a full-time or part-time student attending a school, college, or university or a course of vocational or technical training designed to fit him or her for gainful employment, is exempt when determining eligibility for public assistance.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131-a(8), 158, 349, and 355(3).

Rules adopted in 1999

BB. TDA-30-98-00005 Child Support Cooperation Requirements*

Amended §§ 347.5, 360-3.2, 369.1, 369.2, 369.7, 370.2, and 370.9 of Title 18 NYCRR to require the local child support enforcement unit, instead of local public assistance or medical assistance unit, to determine whether an applicant/recipient has cooperated in establishing paternity and in establishing, modifying, and enforcing a support order for the child (for medical assistance, a medical support order only).

Analysis of the need for the rule: These amendments implemented Public Law 104-193, regarding cooperation in establishing paternity and establishing, modifying, or enforcing a support order for the child by applicants for and recipients of public assistance and medical assistance, and Chapter 398 of the Laws of 1997, requiring applicants for and recipients of medical assistance to cooperate in establishing paternity or establishing, modifying, or enforcing a medical support order for the child.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 111-a, and 364; Chapter 474 of the Laws of 1996.

CC. TDA-39-98-00067 Child Support Cooperation and Reduction of Benefits

Amended § 352.30 (d) of Title 18 NYCRR to implement provisions of Public Law 104-193 and Chapter 214 of the Laws of 1998.

Analysis of the need for the rule: This amendment conformed the regulations to changes in federal and State law, so that instead of an individual being ineligible for public assistance when the individual failed to cooperate in establishing paternity or in establishing, modifying, or enforcing a support order for the child (absent good cause for such failure or other exception from so cooperating), the public assistance otherwise available to the individual’s household will be reduced by 25 percent.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131 (16).

DD. TDA-46-98-00015 Emergency Assistance to Families (EAF)

Amended §§ 372.1, 372.2, 372.4, and 372.6 of Title 18 NYCRR, in part, to implement provisions of § 38 of Part B of Chapter 436 of the Laws of 1997.

Analysis of the need for the rule: The amendments were developed to implement Chapter 436 of the laws of 1997, which amended § 350-j of the SSL concerning the types of care that EAF can pay for, eliminating the maximum time period for EAF eligibility, and setting forth other EAF eligibility requirements.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 350-j; § 38 of Part B of Chapter 436 of the Laws of 1997.

EE. TDA-52-98-00007 Lottery Intercept

Added Part 396 to Title 18 NYCRR concerning the interception of lottery awards to repay public assistance received.

Analysis of the need for the rule: The amendment was developed to implement provisions of § 131-r of the SSL which authorized OTDA to recoup any public assistance paid over the prior 10 years from recipients of such assistance who won lottery prizes of $600 or more. The amount of assistance to be recovered could not exceed 50% of the lottery prize.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131-r.

FF. TDA-07-99-00002 Child Assistance Program (CAP) Participants

Amended § 366.4(c)(2)(ii) and added § 366.7(o) to clarify the eligibility requirements for a family in receipt of Family Assistance (FA) to participate in the CAP and to add the repair of heating equipment, cooking stoves, and refrigerators to the list of special allowances to which CAP recipients could be entitled.

Analysis of the need for the rule: The amendments were developed to conform the State regulation to current practices by districts relative to the eligibility prerequisites that must be met by a family receiving FA to enroll in the CAP, and to remedy an administrative oversight in the original Part 366 of Title 18 NYCRR which did not include the repair of heating equipment, cooking stoves, and refrigerators on the list of special allowances.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131-z, and 355(3).

GG. TDA-10-99-00001 Supervisory Review*

Amended § 351.7 of Title 18 NYCRR to provide districts the option of conducting supervisory reviews on all actions on public assistance cases or of conducting supervisory reviews on selected cases.

Analysis of the need for the rule: The amendment was developed to give districts the option to forego supervisory review of applications for public assistance. There are cases in which strict guidelines can be applied to such applications and no discretion is involved, thereby reducing the need for a supervisor’s review. If districts wished to review only a certain proportion of the cases, they could submit a plan to OTDA for approval setting forth requirements for supervisory review.

Legal basis: SSL §§ 20(3)(d) and 34(3)(f).

HH. TDA-14-99-00014 Reporting Requirements*

Amended Part 651 of Title 18 NYCRR to implement § 149 of Part B of Chapter 436 of the Laws of 1997, which required that OTDA and the Department of Labor (DOL) collect data related to the operation of public assistance programs, including, but not limited to, information that must be submitted to the federal Department of Health and Human Services pursuant to Public Law 104-193.

Analysis of the need for the rule: The rule sets forth the districts’ requirements at that time for monthly reporting to OTDA and DOL.

Legal basis: SSL §§ 20(3)(d) and 34(3)(f); § 149 of Part B of Chapter 436 of the Laws of 1997 at that time.

II. TDA-40-99-00001 Allowances to Children Suffering from Spina Bifida*

Amended §§ 352.22(c), (f), (w), (x), and (y), and added § 352.22(bb) to Title 18 NYCRR to implement the provisions of Public Law 104-204, which provided that allowances paid on behalf of the natural children of Vietnam veterans who suffered from spina bifida could not be considered when determining eligibility for any federally-financed program.

Analysis of the need for the rule: These amendments implemented provisions of Chapter 18 of Part II of Title 38 of the USC, as added by Public Law 104-204, and made technical corrections to several provisions of 18 NYCRR § 352.22 consistent with Public Law 104-193 and Chapter 436 of the Laws of 1997.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-n, and 355(3).

OTDA received no public comments regarding its Rule Review published in the New York State Register on January 30, 2019.

OTDA is considering amendments that may impact the regulatory changes that were adopted in 2016, 2014, 2009, 2004, and 1999. OTDA is considering the following regulatory amendments:

- Update regulations to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase the annual service fee imposed on persons who receive child support services who have never received assistance pursuant to Title IV-A of the Social Security Act, from $25 to $35, and to increase the minimum collection requirement for assessing this fee from $500 to $550 per federal fiscal year.

- Amend regulations to update and clarify standards pertaining to hotels and motels used as placements for recipients of temporary housing assistance;

- Amend regulation to address applications for or receipt of public assistance as an assignment to the State and the social services district of rights to support;

- Amend regulations to implement changes to the work activities that may be made available to individuals to include financial literacy;

- Establish additional guidelines regarding work activity definitions and work documentation and verification procedures to make them consistent with standards required by federal regulations;

- Implement changes to participation rate regulations to conform to amendments to the SSL which require social services districts to expand the countable work activities available to safety net assistance participants without children to include community service programs, the provision of child care services to an individual participating in community service and time limited vocational education training, job search and job readiness assistance.

- Revise SNAP employment and training regulations to conform to federal regulations;

- Update regulations to reflect the current policy that standard allowances for heating/air conditioning, utility and telephone costs are used in calculating shelter expenses for SNAP;

- Update regulations to reflect the current policy that households in shared living arrangements are entitled to the full applicable level of the standard utility allowance;

- Generally update SNAP regulations to conform to changes in federal regulations and law; and

- Amend regulations to clarify certain aspects of the State Supplement Program, among them: who is eligible to participate in the State Supplement Program (SSP) based on the initial eligibility determination transmitted from the Social Security Administration to New York State via the state data exchange process; that neither SSP nor State Supplemental Personal Needs Allowance benefits will be issued once a participant’s death has been verified; and that New York State has the right to operate the SSP under State rules.

At this time, OTDA has determined that no additional modifications, other than those set forth above, need to be made to its regulations adopted in 2016, 2014, 2009, 2004, and 1999, as amended or otherwise modified.

OTDA has determined that in the ensuing calendar year, it should review certain regulations from Title 18 NYCRR adopted in 2017, 2015, 2010, 2005 and 2000. These regulations, listed below, are subject to the provisions of SAPA § 207. The regulations must be reviewed to determine whether they should be retained as written or modified. OTDA invites written comments on the continuation or modification of these regulations in order to assist in the required review. We will consider only those comments that are received by April 30, 2020.

Rules adopted in 2017

1. TDA-46-15-00005 Storage of Furniture and Personal Belongings*

Amended 18 NYCRR 352.6(f) and 397.5(k) to provide clarification regarding allowances for the storage of furniture and personal belongings.

Analysis for the need for the rule: These amendments were needed to provide consistency and clarity to the eligibility and receipt of storage fee payments.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 131(1) and 303(1)(k)

2. TDA-37-16-00001 Child Support*

Amended 18 NYCRR 347.19 to clarify what information is to be safeguarded and what uses are permitted for child support purposes, to establish separate rules regarding the use and disclosure of information contained in the state parent locator service, and to amend the rules regarding reporting child support arrears to consumer reporting agencies.

Analysis for the need for the rule: To ensure the State’s compliance with the federal rules for safeguarding confidential information, disclosing said information, where appropriate, to authorized persons and entities for authorized purposes, and reporting of delinquent child support payors to credit reporting agencies.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 111-a and 111-v; 42 USC §§ 651-658, 660, 663-664, 666-667, 1302, 1396a(25), 1396b(d)(2), (o), (p) and (k); 45 CFR §§ 303.21, 303.69, 303.70 and 307.13

3. TDA-39-16-00006 Operational Plans for Uncertified Shelters for the Homeless*

Added 18 NYCRR 352.39 to require social services districts to submit to OTDA for review and approval operational plans and closure reports for each publicly-funded emergency shelter that currently does not fall within the scope of § 352.3(e)-(h), Part 491 or Part 900 of Title 18 NYCRR.

Analysis for the need for the rule: To protect vulnerable, low-income individuals and families with limited or no housing options, who have placed their trust and well-being in a system that should ensure that they have access to safe and habitable emergency shelter during their difficult times.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(2)-(3), 34, 460-c and 460-d

4. TDA-01-17-00002 Emergency Measures for the Homeless During Inclement Winter Weather*

Added 18 NYCRR Part 304 to mitigate the effects and impact of inclement winter weather on individuals experiencing homelessness.

Analysis of the need for the rule: The rule is necessary to protect homeless individuals from inclement winter weather in which air temperatures are at or below 32 degrees Fahrenheit, including National Weather Service calculations for windchill.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(2)(b), (3)(d), 34(3)(c)-(e) and (6)

5. TDA-23-17-00015 Supplemental Nutrition Assistance Program (SNAP) Categorical Eligibility*

Amended 18 NYCRR § 387.14 to update State regulations to include the previous expansion of categorical eligibility to certain SNAP applicants and further expand, pursuant to certain requirements, categorical eligibility of households having gross incomes at or below 200%, 150%, and 130% of the federal poverty limit (FPL).

Analysis of the need for the rule: The rule aligns State regulations with current SNAP policy regarding categorical eligibility for SNAP and advances the recommendations of the Governor’s Anti-Hunger Task Force.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d) and 95; L. 2012, ch. 41; 7 USC Ch. 51 (generally), 7 USC §§ 2011, 2013; 7 CFR § 273.2(j)(2)

6. TDA-25-17-00001 Local District Child Support Enforcement Unit*

Amended 18 NYCRR Part 347.3 in order to afford social services districts greater flexibility in selecting a name for the local entity responsible for child support activities within each social services district, update current State regulation language to reflect current terminology, and correct regulatory citations.

Analysis of the need for the rule: The rule was clarifying in nature, seeking to modernize the existing State regulations to reflect terminology currently used by the child support program. The regulatory amendments were responsive to a request by a social services district for flexibility in designating the local entity responsible for child support activities.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 111-a, 111-c; 42 U.S.C. §§ 651-657, 660, 663-664, 666-667; and 45 CFR § 302.12

7. TDA-31-17-00002 Mandated Reporter Requirement and Background Checks*

Added 18 NYCRR Part 901 to address the need for additional protections for children who are residing in publicly-funded emergency shelters for families with children by requiring checks of the Statewide Central Register of Child Abuse and Maltreatment and the Staff Exclusion List and criminal history background checks for individuals in certain positions in publicly-funded emergency shelters for families with children who have the potential for regular and substantial contact with children who are served by the shelter.

Analysis of the need for the rule: The amendments were needed to implement the State regulations as required by Part Q of Chapter 56 of the Laws of 2017.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(2)(b), 34(3)(c)-(d), (6), 412, 413, 424-a, 460-h and 495; L. 2017, Ch. 56, part Q

8. TDA-40-17-00002 Support Obligations*

Repealed 18 NYCRR §§ 347.8, 347.10, and 347.26; added 18 NYCRR § 347.8; and amended 18 NYCRR §§ 347.9 and 422.3 to align State regulations concerning the establishment, modification, and enforcement of support obligations with federal and State statutory requirements, to update State regulations to reflect current terminology used by the child support program, and to correct regulatory citations in accordance with federal and State laws.

Analysis of the need for the rule: The rule helped ensure the State’s compliance with the federal rules, promoted the use of current terminology, and corrected regulatory citations.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 111-a and 111-i; 42 U.S.C. §§ 651-657, 660, 663-664 and 666-667; 45 CFR 303.4, 303.6 and 303.8

Rules adopted in 2015

9. TDA-49-14-00003 Public Assistance (PA) Schedules*

Amended 18 NYCRR §§ 352.1 and 352.2 to update certain PA schedules to comply with the schedules in SSL § 131-a.

Analysis of the need for the rule: The amendments were required in order to conform certain PA schedules set forth in 18 NYCRR §§ 352.1(a) and 352.2(d) to the non-discretionary provisions set forth in amended SSL § 131-a.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-a(2)(a-1)-(a-4),and 131-a(3)(a-1)-(a-4)

10. TDA-23-15-00004 Emergency Shelter Allowances (ESA)*

Amended 18 NYCRR § 352.3(k) to update provisions for ESA for persons with AIDS or HIV-related illness to reflect statutory authority.

Analysis of the need for the rule: The amendments were needed to conform to State laws requiring social services districts (districts) to disregard the Supplemental Security Income and needs of any household member who is not the sole household member medically diagnosed with AIDS or HIV-related illness and to help ensure that districts, including New York City, are able to continue to provide the same level of housing for these individuals in need as they have in the past.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1); L. 2008, ch. 53; L. 2009, ch. 53; L. 2010, chs. 58, 110; L. 2011, ch. 53; L. 2012, ch. 53; L. 2013, ch. 53; L. 2014, ch. 53; L. 2015, ch. 53

11. TDA-38-15-00005 Standard Utility Allowances for Supplemental Nutrition Assistance Program (SNAP)*

Amended 18 NYCRR § 387.12 to set forth the federally approved standard utility allowances as of October 1, 2015.

Analysis of the need for the rule: It was of great importance that the federally approved standard utility allowances for SNAP were applied to SNAP benefit calculations effective October 1, 2015. If the standard utility allowances were not updated on October 1, 2015, it could have resulted in thousands of SNAP dependent households receiving SNAP overpayments each month. Households receiving such overpayments could be subject to an extended period of SNAP recoupments at the rate of 10% of their monthly SNAP benefits to recover the resulting overpayments of SNAP benefits. Thus, the rule was necessary for the preservation of the public health and general welfare of SNAP dependent households.

Legal basis for the rule: SSL §§ 20(3)(d) and 95; 7 USC § 2014(e)(6)(C); 7 CFR § 273.9(d)(6)(iii)

12. TDA-15-15-00003 Video Hearings*

Added 18 NYCRR § 358-5.13 to specifically allow OTDA’s Office of Administrative Hearings (OAH) to conduct fair hearings by means of video equipment.

Analysis of the need for the rule: Video hearings allow OAH to hold more hearings by assigning individual hearing officers to hold fair hearings for multiple locations throughout the State on the same day.

Legal basis for the rule: SSL §§ 20(3)(d) and 22(8)

13. TDA-52-14-00001 “Food Stamp Program” Renamed “Supplemental Nutrition Assistance Program” (SNAP); Food Assistance Program (FAP) Repealed; Certain Public Assistance Employment Program Reporting Requirements Modified

Amended 18 NYCRR §§ 358-1.1, 358-1.2, 358-2.27, 381.2, 651.1, 651.2; and repeal of Part 388 of Title 18 NYCRR to update reference in the regulations from the Food Stamp Program to SNAP; to remove references to FAP within regulations, thereby rendering them consistent with current law; and to eliminate the monthly SSD reporting requirement to the DOL relative to information on PA families incidental to the administration of the PA employment program.

Analysis of the need for the rule: These regulations were needed to bring the State regulations into compliance with Chapter 41 of the Laws of 2012, which changed the name of the Food Stamp Program to SNAP, and with Chapter 360 of the Laws of 2003, which established a sunset date of September 30, 2005 for the districts’ authority, as regulated by OTDA, to operate the FAP. The regulatory amendments also updated the State regulations by eliminating certain monthly requirements that SSDs report information to the DOL, thereby rendering the subject State regulations consistent with Part C of Chapter 57 of the Laws of 2005, which effectively transferred all functions, powers, duties and obligations incidental to the administration of the PA employment program from DOL to OTDA.

Legal basis for the rule: 7 U.S.C. Ch. 51 and §§ 2011 and 2013; SSL §§ 20, 34, 95 and art. 5, title 9-B; L. 2003, Ch. 360; L. 2005, Ch. 57, part C; L. 2012, Ch. 41

14. TDA-12-15-00004 Delete Regulatory References to the Learnfare Program

Amended 18 NYCRR § 351.2 and repealed § 351.12 to make technical amendments to reflect that the statutory authority to operate the Learnfare Program has expired.

Analysis of the need for the rule: Former SSL § 131-y, which authorized and directed OTDA to establish Learnfare, expired and was deemed repealed after July 31, 2000. Deletion of references to Learnfare from the existing State regulations rendered them consistent with current law.

Legal basis for the rule: SSL § 20(3)(d); L. 1995, Ch. 81 §§ 188 and 246(18); L. 1997, Ch. 436, § 21.

15. TDA-18-15-00002 Child Support

Amended 18 NYCRR § 347.24 to reflect the revised case closure criteria as set forth in the federal Department of Health and Human Services regulation.

Analysis of the need for the rule: The rule was necessary to conform the then existing State regulation to federal requirements for establishing and enforcing intergovernmental support obligations in child support program cases receiving services under Title IV-D of the Act.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 111-a; and 45 CFR § 303.11

Rules adopted in 2010

16. TDA-14-09-00009 SNA Application Supplement*

Repealed § 350.4(a)(7) and amended § 350.4(b) and (c)(1) of Title 18 NYCRR to eliminate the requirement that public assistance recipients complete an SNA application supplement to transition from federally-funded assistance to SNA when they reach the State 60-month time limit for federally-funded assistance.

Analysis of the need for the rule: The amendment eliminates an unnecessary administrative burden to both districts and recipients alike, since safeguards that are more efficient and effective are in place to ensure SNA eligibility. The eliminated requirement duplicated these already existing safeguards.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), and 158(1)(a).

17. TDA-28-09-00006 Temporary Housing Assistance for Certain Sex Offenders*

Implemented Chapter 568 of the Laws of 2008 concerning factors that districts must consider when making determinations about the locations of temporary housing for level two and level three sex offenders, when advanced notice has been received.

Analysis of the need for the rule: When assessing housing placements for certain sex offenders, consideration of the individual’s immediate housing needs and such factors as concentrations of registered sex offenders and the proximity of available housing to entities with vulnerable populations are intended to protect the public. Additionally, consideration of other factors, such as the accessibility to family members, friends, or other supportive services, including available sex offender treatment programs, is intended to prevent recidivism by providing sex offenders with suitable housing and support. Through its implementation of Chapter 568 of the Laws of 2008, the amendment was designed to balance the safety interests of the public, the statutory obligations of districts in meeting the immediate needs of individuals, and the unique housing needs of sex offenders.

Statutory basis: SSL §§ 20(3)(d), (8), 34(3)(f), and 131(1); Chapter 568 of the Laws of 2008.

18. TDA-19-10-00010 Utility Repayment Agreements*

Amended § 352.5(e) of Title 18 NYCRR by extending the repayment term of utility repayment agreements from one year to two years to meet the requirements of Chapter 318 of the Laws of 2009.

Analysis of the need for the rule: In addition to rendering the regulations compliant with statutory requirements, the regulatory amendments benefit low-income households which must sign repayment agreements by reducing their monthly repayment amounts, thereby making them more affordable. The amendments also help low-income families remain current on their utility repayment agreements and better enable them to meet their other monthly financial obligations. In addition, by improving the ability of low-income households to comply with the terms of their repayment agreements, the regulatory amendments reduce the need for districts to utilize costly temporary housing options.

Statutory basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), and 131-s(1); Chapter 318 of the Laws of 2009.

Rules adopted in 2005

19. TDA-06-04-00006 Operational Plans for Room and Board Facilities*

Amended 18 NYCRR §§ 352.8(b)(1) and 900.1(a), added 18 NYCRR § 352.8(b)(2), and renumbered paragraphs of 18 NYCRR § 352.8(b) to require an operational plan to be submitted under certain circumstances for facilities that provide room and/or board.

Analysis of the need for the rule: These amendments were developed to improve the quality and availability of temporary housing by making Part 900 standards and reimbursement available to scattered site housing and small facilities when they were operated by one organization and total occupancy exceeded 19 families.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), and 131(1); Chapter 562 of the Laws of 1953.

20. TDA-17-04-00001 Temporary Absences*

Amended 18 NYCRR § 349.4(a) and repealed 18 NYCRR § 352.3(c) to allow all public assistance recipients who are temporarily absent from their homes to be treated the same.

Analysis of the need for the rule: These amendments were developed to make it easier for districts to determine which public assistance recipients, who were temporarily absent from the district of residence, continue to be eligible for assistance.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131-a(1), 158, 349, and 355(3).

21. TDA-46-04-00006 Income Standards for Eligibility for Emergency Assistance for Needy Families with Children*

Amended 18 NYCRR § 372.2(a) to establish an objective income standard that would be used by districts when determining eligibility for emergency assistance for needy families with children.

Analysis of the need for the rule: This rule was developed to make OTDA’s regulations consistent with the terms of the State Plan submitted to the Department of Health and Human Services for the Temporary Assistance for Needy Families (TANF) Program.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 350-j, and 355(3).

22. TDA-02-05-00001 Families in Transition Act*

Added 18 NYCRR § 351.20(c) to implement Chapter 477 of the Laws of 2000 to permit the continuation of public assistance eligibility for a child whose adult relative caretaker has died until arrangements are completed for the addition of the child to another public assistance household, reclassification of the case, foster care for the child, or other appropriate financial support for the child.

Analysis of the need for the rule: This rule was developed to ensure that a lapse in assistance did not occur upon the death of the adult relative caretaker of a child in receipt of public assistance. A lapse in financial support can be highly injurious to a child undergoing the difficult transition to a new family or, eventually, to foster care. The amendments ensured that orphaned public assistance recipients would receive the correct amount of assistance and that these children will not be left without financial support.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-a(13), and 355(3); Chapter 477 of the Laws of 2000.

23. TDA-21-05-00002 Section 8 Housing Vouchers*

Amended 18 NYCRR §§ 350.3(d)(2)(i), 352.5(b), (f)(2), and (5)(i), and added 18 NYCRR § 352.3(d)(2)(ii) to establish a reasonable shelter schedule for persons and families receiving public assistance and rent subsidies under the Section 8 Voucher Program.

Analysis of the need for the rule: This rule was developed to provide a measure of uniformity and to insure that participants in the Section 8 Voucher Program would not receive a lower subsidy than other families based solely upon the participant families’ receipt of public assistance.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), and 355(3).

Rules adopted in 2000

24. TDA-39-99-00002 Fair Hearings for Employment Related Cases*

Amended 18 NYCRR §§ 358-2.9, 358-2.15, 358-3.1, 358-3.3, 358-3.5, 358-3.6, 358-4.1, 358-4.2, 358-5.9, 358-6.1, and 358-6.3 to conform State regulations concerning fair hearings for employment related cases to regulations of the New York State Department of Labor (DOL).

Analysis of the need for the rule: At the time, this rule was developed to reflect the transfer of the administration of employment programs from the New York State Department of Social Services to the DOL.

Legal basis for the rule: SSL §§ 20(3)(d), 22, 34(3)(f), and 337

It is noted that responsibility for the administration of employment programs has since been transferred from the DOL to OTDA. Title 18 NYCRR reflects this subsequent transfer.

25. TDA-39-99-00003 Home Energy Assistance Program (HEAP)

Amended 18 NYCRR §§ 393.4(c), 393.4(d)(1)(ix), and 393.5(a) and (c) to require applicants for emergency HEAP benefits to use available liquid resources to meet an energy emergency and to remove a detailed list of criteria for the HEAP payment matrix.

Analysis of the need for the rule: The amendments were developed to reflect the existing HEAP program requirements and to help reduce the State’s HEAP administrative costs, thereby increasing the amount of the HEAP grant that could be used to provide energy assistance to needy individuals.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), and 97.

26. TDA-03-00-00005 Public Assistance*

Amended 18 NYCRR § 352.31(a) and (d) to give guidance to districts with respect to counting the number of months a person has been in receipt of public assistance in circumstances where a person received public assistance during a time period that he or she was ineligible for the assistance, and the monies were subsequently recovered.

Analysis of the need for the rule: The amendments were developed to clarify State policy and ensure that the time limits for determining public assistance eligibility were applied correctly and consistently.

Legal basis for the rule: SSL §§ 20(3)(d) and 34(3)(f)

27. TDA-09-00-00005 Front End Detection System

Amended 18 NYCRR § 348.7(c)(1)(i)(a) to clarify when an applicant for public assistance must be referred to a front end detection system unit.

Analysis of the need for the rule: This rule was developed to provide for a more thorough review of the applicant’s financial situation. This amendment sought to address the question of why a person was applying for public assistance when the person’s financial obligations were current and there appeared to be no changes in the person’s circumstances.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), and 134(b)

28. TDA-09-00-00006 State Charges

Repealed 18 NYCRR Part 310 and amended 18 NYCRR §§ 313.1, 313.2, 603.1 and 620.3 to eliminate the concept of State charges, except under certain circumstances.

Analysis of the need for the rule: This rule was developed to render OTDA’s regulations consistent with the requirements of the SSL, as amended by Chapter 81 of the Laws of 1995; that Chapter was implemented in State Fiscal Year 1995/96 and repealed the “State charge” category in most situations.

Legal basis for the rule: SSL §§ 20(3)(d) and 34(3)(f); §§ 155-159 and 195-199 of Chapter 81 of the Laws of 1995.

29. TDA-22-00-00001 Automobile Exemption*

Amended 18 NYCRR § 352.23(b)(2) to implement Chapter 389 of the Laws of 1999 concerning the value of an automobile that can be exempted and disregarded when determining eligibility for public assistance.

Analysis of the need for the rule: At the time, this rule was developed to reflect the provisions of Chapter 389 of the Laws of 1999, which amended SSL § 131-n to provide that if an automobile is needed to enable a public assistance recipient to seek or retain employment or to travel to or from work activities, its exempted value can be up to twice the value of an automobile that can be exempted from consideration in determining eligibility for food stamp benefits, now known as “SNAP” benefits, or a higher amount as determined by the district.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), and 131-n(1); Chapter 389 of the Laws of 1999 at that time.

30. TDA-22-00-00002 HEAP*

Added 18 NYCRR § 393.4(c)(4) and amended 18 NYCRR § 393.4(d)(1)(i) to conform State regulations to federal requirements concerning which households were eligible for HEAP benefits.

Analysis of the need for the rule: These amendments were developed to conform State regulations to federal requirements governing which households were eligible for regular HEAP benefits. The federal requirements provided that, in order to be eligible for HEAP, an applicant must be a United States citizen, a national, or a qualified alien.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), and 97.

31. TDA-28-00-00001 Emergency Shelter Allowances

Repealed 18 NYCRR § 397.11 to eliminate an unnecessary section of Title 18 NYCRR concerning emergency shelter allowances.

Analysis of the need for the rule: The purpose of the repeal of 18 NYCRR § 397.11 was to eliminate provisions that were also contained in 18 NYCRR § 352.3(k).

Legal basis for the rule: SSL §§ 20(3)(d) and 34(3)(f); Chapter 53 of the Laws of 1988 and subsequently enacted budgets.

Conclusion

* The asterisks identify rules for which a regulatory flexibility analysis, rural area flexibility analysis, or job impact statement was prepared.

The Rule Review may be accessed on OTDA's website at http://otda.ny.gov/legal/.

Any comments should be submitted to: Joseph C. Mazza, Office of Temporary and Disability Assistance, 40 N. Pearl St., 16th Fl., Albany, NY 12243, (518) 474-0574, e-mail: [email protected].