Section 207(1)(a) of the State Administrative Procedure Act (SAPA) requires that each State agency review each of its rules which 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.

Additionally, section 207(1)(b) of SAPA requires that, for any rule adopted on or after January 1, 2013, for which a regulatory flexibility analysis, rural area flexibility analysis, or job impact statement is required, the initial review shall occur no later than in the third calendar year after the year in which the rule is adopted; provided, however, that the agency may propose a different review period in such analysis or statement, along with its justification for doing so, and shall invite public comment thereon.

Pursuant to SAPA section 207, the State Education Department submits the following list of its rules that were adopted during calendar years 2019, 2018, 2017, 2014, 2013, 2012, 2007, 2002 and 1997 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 2019 (3 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Sections 114.1 Breakfast after the Bell

Description of Rule: School breakfast programs.

Need for Rule: To initiate, maintain, or expand school breakfast programs and make technical amendments to conform to federal requirements.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208 (not subdivided), 209 (not subdivided), 305(1) and (2) and Sections 4 and 5 of Chapter 537 of the Laws of 1976, as amended by Chapter 56 of the Laws of 2018.

Section 114.5 Meal Shaming

Description of Rule: Prohibition against meal shaming.

Need for Rule: Requires certain schools to develop a plan to prohibit against meal shaming or treating pupils with unpaid meal fees differently.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208 (not subdivided), 209 (not subdivided), 305(1) and (2) and 908 (as added by Section 1, Part B of Chapter 56 of the Laws of 2018).

Sections 52.21 and 80-3.10 Principal Preparation Pilot Program

Description of Rule: P-20 Principal Preparation Pilot Program.

Need for Rule: To establish the requirements for the P-20 Principal Preparation Pilot Program.

Legal Basis for Rule: Education Law 102, 207, 305, 3004, 3006, 3006-a and 3009.

Section 154-2.3(i) ELL Grade Span Waiver

Description of Rule: English Language Learner grade span requirement.

Need for Rule: To provide a one-year renewable waiver to expand the allowable grade span for English as a New Language and Bilingual Education classes to three contiguous grades.

Legal Basis for Rule: Education Law sections 207, 208, 315, 305, 2117, 2854(1)(b), and 3204.

Sections 52.21 and 80-4.3 CTE Extension

Description of Rule: Limited extensions and program requirements for certain career and technical education teachers.

Need for Rule: To create an extension for holders of the Career and Technical Education Certificate to teach grades 5 and 6.

Legal Basis for Rule: Education Law sections 101, 205, 207, 3001, 3004 and 3009.

Sections 80-3.15 and 80-4.3 Special Education SOCE and Limited Extensions

Description of Rule: Addition of certificate titles eligible for grade level extensions, limited extensions, and a statement of continued eligibility.

Need for Rule: To create limited extensions and continued eligibility in the core subject areas for teachers of students with disabilities.

Legal Basis for Rule: Education Law sections 101, 207, 210, 215, 305, 3001, 3004 and 3009.

Sections 100.2, 200.1, 200.2, 200.3, 200.4, 200.5, 200.15 IDEA

Description of Rule: Students with disabilities.

Need for Rule: To conform the Commissioner's regulations to Chapters 422, 428 and 429 of the Laws of 2017 and Chapter 32 of the Laws of 2018.

Legal Basis for Rule: Education Law sections 101, 207, 305(1), (2) and (20), 3204, 4402, 4403(3) and 4410(13), Chapters 422, 428 and 429 of the Laws of 2017 and Chapter 32 of the Laws of 2018.

Sections 100.2(hh), 200.7, 200.20 and Subpart 57-1 Child Abuse in an Educational Setting

Description of Rule: Reports of child abuse in an educational setting.

Need for Rule: To implement the provisions of Chapter 363 of the Laws of 2018 relating to reports of child abuse in an educational setting.

Legal Basis for Rule: Education Law sections 101, 207, 305, 1125(1)-(10),1126(1)-(4), 1128(1)-(4), 1132(1)-(4), 3028-b and Chapter 363 of the Laws of 2018.

Agency Representative:

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

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-1954

OFFICE OF HIGHER EDUCATION

Section 80-3.7 Certificate Progression

Description of Rule: Certificate Progression Pathway.

Need for Rule: To establish initial certificate requirements for individuals who have a graduate degree and two years of postsecondary teaching experience.

Legal Basis for Rule: Education Law sections 207, 205, 3001, 3004 and 3006.

Section 80-1.5 Science Safety Net

Description of Rule: Creation of safety nets for the science Content Specialty Tests (CSTs).

Need for Rule: To allow candidates to be held harmless during a one-year transition period from the predecessor CSTs to the revised CST's.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 305, 3001, 3003, 3004 and 3009.

Sections 80-3.15 and 80.4-3 SOCE

Description of Rule: Statement of continued eligibility for certain teachers of students with disabilities.

Need for Rule: To extend the deadline to apply for a statement of continued eligibility for certain teachers of students with disabilities.

Legal Basis for Rule: Education Law sections 101, 207, 210, 215, 305, 3001, 3003, 3004 and 3009.

Sections 52.21 and 80-3.7 Student Teaching

Description of Rule: Student teaching requirements for teacher certification and the registration of teacher preparation programs.

Need for Rule: To amend the student teaching requirements for teacher certification and registered teacher education programs.

Legal Basis for Rule: Education Law sections 207, 305, 3001 and 3004.

Section 80-5.25 Transitional H

Description of Rule: Transitional H Pathway for School District Business Leader certification.

Need for Rule: To expand the type of eligible experiences for the Transitional H Pathway for School District Business Leader certification.

Legal Basis for Rule: Education Law sections 101, 207, 305, 3001, 3004 and 3009.

Sections 52.21, 80-2.1, 80-3.1, 80-3.11, 80-3.12 and 80-5.23 and the Titles of Subparts 80-2 and 80-3 School Counselor

Description of Rule: Registration requirements for school counselor programs and certification requirements for school counselors.

Need for Rule: To amend requirements for registered school counselor programs and the certification requirements for school counselors.

Legal Basis for Rule: Education Law sections 101, 207, 210, 215, 305, 3001, 3003, 3006 and 3009.

Section 80-1.5 Educational Technology Specialist

Description of Rule: Safety Net for the Educational Technology Specialist Content Specialty Test (CST).

Need for Rule: To extend the Educational Technology Specialist Content Specialty Test (CST) safety net through June 30, 2019.

Legal Basis for Rule: Education Law sections 101, 207(not subdivided), 210, 305, 3001, 3004 and 3009.

Section 80-1.5 Library Specialist

Description of Rule: Extension of the edTPA Safety Net for candidates who receive a failing score on the library specialist edTPA.

Need for Rule: To extend the edTPA safety net expiration date to enable candidates to be held harmless during the edTPA Library Specialist handbook revision process.

Legal Basis for Rule: Education Law §§ 101, 207(not subdivided), 210, 305, 3001, 3004 and 3009.

Section 52.21Transitional D

Description of Rule: Requirements for Transitional D programs that lead to School District Leader certification.

Need for Rule: To require that Transitional D programs provide written notification to candidates that they must apply for the Transitional D certificate upon enrollment in the program and submit an institutional recommendation for certification immediately upon the candidates’ enrollment to ensure that candidates know they must apply for certification and would receive an institutional recommendation for certification in a timely manner.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 305, 3001, 3004 and 3009.

Section 80-5.17 Conditional Initial Certificate Requirements

Description of Rule: Conditional Initial certificate requirements.

Need for Rule: To provide that candidates may be eligible for an Initial certificate even after their conditional Initial certificate expires.

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

Section 80-6.1 Continuing Teacher and Leader Education (CTLE)

Description of Rule: Continuing Teacher and Leader Education (CTLE) for educators in nonpublic schools.

Need for Rule: To make technical amendments to the CTLE regulations for educators employed in nonpublic schools.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 305, 3001, 3004, 3006, 3006-a and 3009.

Sections 80-5.8 and 805.20 Endorsement

Description of Rule: Eligibility requirements for the endorsement pathway for certification as an educator in the classroom teaching service.

Need for Rule: To provide candidates with more flexibility to be eligible for the endorsement pathway.

Legal Basis for Rule: Education Law sections 207, 305, 3001, 3004, 3006, 3007 and 3009.

Sections 52.21, 75.8, 200.2, 90.18, 100.2, 100.13, 100.15, 100.17, and 100.19, Subparts 151-1, 154-2, 57-2, Parts 30 and 80, and Repeal of 80-3.6, 80-3.4(a)(1), 80-3.10(a)(2)(i) and (b)(1) and 80-3.10(c)(1) Professional Development Plan

Description of Rule: Relates to professional development plans and other related requirements for school districts and BOCES.

Need for Rule: To improve the quality of teaching and learning for teachers and leaders for professional growth.

Legal Basis for Rule: Education Law sections 101, 2017, 305(1), 3004(1), 3006, 3006-a and 3009.

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 P. Murphy

Deputy Commissioner for the Office 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) 402-3602

OFFICE OF THE PROFESSIONS

Sections 63.4 and 63.9 Administration of Vaccines by Pharmacy Interns

Description of Rule: The administration of certain vaccines by pharmacy interns.

Need for Rule: To implement the provisions of Chapter 359 of the Laws of 2018.

Legal Basis for Rule: Education Law 207(not subdivided), 6504(not subdivided) 6507(2), 6527(7), 6801(2), 6801(4), 6802(22), 6806, 6902(1) and 6909(7) and Chapter 359 of the Laws of 2018.

Section 63.6 Pharmacy Certificate Sales.

Description of Rule: Certification of manufacturers and wholesalers for export purposes.

Need for Rule: To clarify who may issue free sale certificates to New York State registered manufacturers or wholesalers.

Legal Basis for Rule: Education Law 207(not subdivided), 6504(not subdivided), 6507(2), 6801(1), 6802(7), 6802(16), 6802(18), 6802(21), 6808(4).

Section 64.7 RN Immunizations

Description of Rule: Execution by registered professional nurses of non-patient specific orders to administer immunizations.

Need for Rule: To conform the regulation to current immunization standards.

Legal Basis for Rule: Education Law 207(not subdivided), 6504,(not subdivided) 6507(2), 6902(1), and 6909(5) and (7).

Agency Representative:

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

Sarah S. Benson

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) 474-1431

OFFICE OF CULTURAL EDUCATION

Sections 179.3 and 179.5 Public Broadcasting

Description of Rule: Reports required by educational broadcast councils and radio stations.

Need for Rule: Reduce costs incurred by each Council and Radio Station for redundant annual certified audits & to streamline reporting process.

Legal Basis for Rule: Education Law sections 207 and 236.

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:

Tom Ruller

Assistant Commissioner for the State Archives

New York State Education Department

Room 9B52 Cultural Education Center

Albany, New York 12230

(518) 474-6926

B. CALENDAR YEAR 2018 (4 YEAR REVIEW)

The State Education Department did not adopt any rules in the year 2018 to be initially reviewed in 4 years.

C. CALENDAR YEAR 2017 (5 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Sections 100.2 and 100.5 LOTE Examinations

Description of Rule: Criteria for approval of pathway assessments in Languages Other Than English (LOTE).

Need for Rule: To provide for approval of pathway examinations in Languages Other Than English (LOTE), to meet diploma requirements.

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

Section 100.5(d)(7) ELL Appeal

Description of Rule: Eligible score band of an appeal of the English Language Arts Regents Examination for eligible English Language Learners (ELLs).

Need for Rule: To align the Commissioner’s regulations with the recent expansion of the eligible score band for appeals for certain Regents Examinations for all students.

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), 2117(1) and 3204(2) and (2-a).

Agency Representative:

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

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-1954

OFFICE OF THE PROFESSIONS

Section 64.7 STI Screening

Description of Rule: Screening of individuals at increased risk of syphilis, gonorrhea and chlamydia (sexually transmitted infections or STIs).

Need for Rule: To allow execution by registered professional nurses of non-patient specific orders to screen persons at increased risk of STIs.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6527(6)(g), 6902(1), 6909(4)(g), and Chapter 502 of the Laws of 2016.

Sections 60.12, 63.13, 64.5 HIV

Description of Rule: Dispensing of post-exposure prophylaxis drugs to prevent HIV in persons who may have been recently exposed.

Need for Rule: To allow execution by licensed pharmacists of non-patient specific orders to dispense HIV post-exposure prophylaxis drugs.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6527(7-a), 6801(5), 6902(3), 6909(8), and Chapter 502 of the Laws of 2016.

Section 79-7.2 Certified Athletic Trainer Education Requirements

Description of Rule: Education requirements for certification as a certified athletic trainer.

Need for Rule: To conform the Commissioner’s regulations to current national education standards for certification by elimination the education pathway (8 NYCRR 79-7.2(b)) by July 1, 2022.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 6504(not subdivided), 6507(2)(a) and 8355(2).

Section 62.8 Veterinary Continuing Education

Description of Rule: Continuing education requirements for veterinarians and veterinary technicians.

Need for Rule: To provide that veterinarians may provide free spaying and neutering services as part of their continuing education requirements.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6704-a and Chapter 398 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:

Sarah S. Benson

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) 474-1431

D. CALENDAR YEAR 2014 (3 YEAR INITIAL & 5 YEAR SUBSEQUENT REVIEW)

OFFICE OF P-12 EDUCATION

Section 100.2(ee) Academic Intervention Services (AIS)

Description of Rule: Academic Intervention Services (AIS).

Need for Rule: To establish modified requirements for AIS during the 2014-2015 school year.

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

Section 100.5(d) State Facility Transfer Credit

Description of Rule: Transfer credit for students in a State Agency educational program.

Need for Rule: To provide transfer credit for students in a State Agency educational program upon attestation of chief program administrator

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 209(not subdivided), 210(not subdivided), 215(not subdivided), 305(1) and (2) and 309(not subdivided).

Section 100.17 Distinguished Educators

Description of Rule: Modifies criteria for appointment, roles, responsibilities, protocols and procedures for distinguished educators.

Need for Rule: To ensure the appointment, consistent with statutory requirements, of qualified individuals, who have demonstrated consistent growth in academic performance or educational expertise including superior performance in the classroom, to serve as distinguished educators to assist low performing schools.

Legal Basis of Rule: Education Law sections 207, 305(1), (2) and (20), 211-b(1-5), and 211-c(1-8).

Sections 200.1(x), 200.5(j)(3), (4), (5), and (6) and 200.16(h)(9) Special Education Impartial Hearings

Description of Rule: Impartial due process hearings for special education matters.

Need for Rule: Ensure that due process hearings are conducted in a more efficient and expeditious manner in order to meet statutory time lines.

Legal Basis of Rule: Education Laws sections 101 (not subdivided), 207 (not subdivided), 305(1) and (2) and (20), 3214(3)(g), 4402(1) and (2), 4403(3), 4404(1) and 4410(7)(b) and (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:

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 478-1954

OFFICE OF HIGHER EDUCATION

Section 30-2.1 APPR Performance Definition

Description of Rule: Definition of “performance” for Annual Professional Performance Reviews (APPR).

Need for Rule: To clarify that the references to “performance” of the teacher or principal in the classroom or school for purposes of Education Law § 3012-c(1) and (5)(b) and section 30-2.1(d) and 30-2.11(c) of the Rules of the Board of Regents are references to the teacher’s or principal’s performance on the APPR, as measured by the teacher’s or principal’s overall composite rating.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2) and 3012-c.

Sections 52.21, 80-1.1, 80-3.5 and 80-3.3 edTPA

Description of Rule: Teacher performance assessment (edTPA) requirement for certification.

Need for Rule: To provide teacher candidates, who apply for teacher certification prior to June 30, 2015 and who take and fail the teacher performance assessment (edTPA) with the option of obtaining an initial certificate if the candidate passes the ATS-W prior to June 30, 2015 and subsequent to receiving his or her score on the edTPA.

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

Part 80 Reciprocity

Description of Rule: Reciprocity requirements for classroom teachers.

Need for Rule: To establish a standardized reciprocity process for the review of teaching candidates from other jurisdictions.

Legal Basis of Rule: Education law sections 207 (not subdivided), 305(1) and (2), 3001(2), 3004(1), 3006(1)(b), 3007(1) and (2) and 3009(1).

Section 80-1.1(b)(47) Definition of Part-Time Experience for Permanent or Professional Certification

Description of Rule: Definition of part-time experience for permanent or professional certification.

Need for Rule: To provide certification candidates serving as substitute teachers with an alternative to meet part-time continuous service experience requirements.

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

Sections 80-3.3 and 80-3.7 Individual Evaluation

Description of Rule: Individual evaluation pathway.

Need for Rule: To discontinue the individual evaluation pathway for certain certificate titles and continue the individual evaluation pathway for all other certificate titles.

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

Section 102.4 Test Security

Description of Rule: Mandatory reporting requirements and testing misconduct.

Need for Rule: To formally implement the recommendations of Special Investigator Hank Greenberg to enhance the security of the State assessment program by prohibiting certain testing misconduct, establishing a mandatory reporting requirement for certain school personnel who learn of any security breach or other testing misconduct, and to sanction those who fail to comply.

Legal Basis of Rule: Education Law sections 207 (not subdivided), 225(1)-(11) and 305(1) and (2) and Civil Service Law section 75-b(2)(a).

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 P. Murphy

Deputy Commissioner for the Office 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 (ACCES)

Section 100.7(a)(2) State High School Equivalency Diploma

Description of Rule: State High School Equivalency Diploma.

Need for Rule: To permit, for a limited time, acceptance of partial passing scores on one or more sub-tests of the GED® examination for the corresponding sub-test on the State High School Equivalency examination (the Test Assessing Secondary Completion – TASC).

Legal Basis of Rule: Education Laws sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 209(not subdivided), 305(1) and (2), 308(not subdivided) and 3204.

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:

Ceylane Meyers-Ruff

Deputy Commissioner

Office of Adult Career and Continuing Education Services (ACCES)

New York State Education Department

89 Washington Ave., Room 575 EBA

Albany, New York 12234

518-474-2714

E. CALENDAR YEAR 2013 (4 YEAR INITIAL & 5 YEAR SUBSEQUENT REVIEW)

OFFICE OF P-12 EDUCATION

Section 100.2(ee) Academic Intervention Services (AIS)

Description of Rule: Academic Intervention Services.

Need for Rule: To establish modified requirements for AIS during the 2013-2014 school year.

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

Sections 100.5(b)(7)(i), 100.6 and 200.5(a)(5)(iii) Career Development and Occupational Studies Credentials

Description of Rule: New York State Career Development and Occupational Studies Commencement Credentials.

Need for Rule: To establish criteria for a career development and occupational studies commencement credential for students with disabilities.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 305(1) and (2), 4402(1 - 7) and 4403(3).

Section 119.7 Charter School Charter Renewals

Description of Rule: Charter renewals of charter schools.

Need for Rule: To clarify standards for charter renewals of charter schools for which the Board of Regents is the authorizing entity.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (20), 2851(4) and 2852(1), (2), (3), (5), (5-a), (5-b) and (6) and 2857(1).

Section 135.4(c)(7)(ii)(d) Duration of Competition in High School Athletics

Description of Rule: Duration of competition in high school athletics.

Need for Rule: To eliminate the one additional season limit on waivers for students with disabilities to participate in athletic competition.

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

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF HIGHER EDUCATION

Sections 80-3.3, 80-3.4, 80-3.10, 80-5.13, 80-5.15 and 80-5.20(a)(1)(v) Teacher and School District Leader Certification Examinations

Description of Rule: Teacher and School District Leader certification examinations.

Need for Rule: To adopt technical changes to the certification examination requirements for certain teachers and school district leaders.

Legal Basis of Rule: Education Law sections 207, 305(1), 3001(2), 3006(1)(b) and 3009(1).

Sections 80-1.2(b), 80-1.6 and 80-2.1(a)(2)(i) and (ii) Definition of Date of Issuance of Certificates and Expiration of Certain Permanent Certificates from Expired Provisionals

Description of Rule: Definition of date of issuance of Certificates and Expiration of Certain Permanent Certificates from Expired Provisionals

Need for Rule: To amend the definition of effective date of a certificate to allow persons to be employed in their certificate area on the date their certificate is issued, rather than the February 1 or September 1 following the issuance date of their certificates. The proposed amendment also establishes an expiration date of October 1, 2014 for the issuance of a permanent certificate in the classroom teaching service or school administrator and supervisory service for candidates with an expired provisional certificate.

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

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 P. Murphy

Deputy Commissioner for 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 63.11 and 63.12 Interpretations and Translations for Prescription Drugs, Standardized Labeling and Patient-Centered Data Elements for Medications

Description of Rule: Interpretations and translations for prescription drugs, standardized labeling and patient-centered data elements for medications.

Need for Rule: To implement Part V of Chapter 57 of the Laws of 2012 regarding interpretations and translations for prescription drugs, standardized labeling and patient-centered data elements for medications.

Legal Basis of Rule: Sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6829(1), (6), (7) and 6830 (1) of the Education Law, and Part V of Chapter 57 of the Laws of 2012.

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:

Sarah S. Benson

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) 474-1431

[email protected]

OFFICE OF ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCES)

Section 100.8 Local Diploma Based On Experimental Programs.

Description of Rule: Local high school equivalency diplomas based upon experimental programs.

Need for Rule: To extend until June 30, 2013 the provision for awarding local high school equivalency diplomas based upon experimental programs.

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

Part 126 and section 145-2.3 Licensure of Non-Degree Granting Private Proprietary Schools

Description of Rule: Licensure of non-degree granting private proprietary schools.

Need for Rule: To implement the provisions of Chapter 381 of the Laws of 2012 which eliminates the distinction between licensed private schools and registered business schools, replaces the phrase “licensed private schools” with the more descriptive “licensed private career schools”, adjusts fees, which had not changed since 1990, and establishes a candidate school category that would allow a school to operate legally while it is in the process of obtaining a non-degree-granting proprietary school license.

Legal Basis of Rule: Education law sections 207 (not subdivided), 212(3), 305(1), 5001 through 5010 and Chapter 381 of the Laws of 2012.

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:

Ceylane Meyers-Ruff

Deputy Commissioner

Office of Adult Career and Continuing Education Services (ACCES)

New York State Education Department

89 Washington Ave., Room 575 EBA

Albany, New York 12234

518-474-2714

F. CALENDAR YEAR 2012 (5 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Section 3.16(b) Charter School Public Hearings

Description of Rule: Charter school public hearings.

Need for Rule: To provide for the Commissioner to conduct, on behalf of the Board of Regents, public hearings required by Article 56 of the Education Law to solicit comments from the community on charter school matters.

Legal Basis for Rule: Education Law sections 101(not subdivided), 206(not subdivided), 207(not subdivided), 305(1), (2) and (20), 2853(3)(a) and 2857(1-a).

Section 100.2(c) Instruction in Civility, Citizenship and Character Education and the Dignity for All Students Act (DASA)

Description of Rule: Instruction in civility, citizenship and character education.

Need for Rule: To provide for instruction in civility, citizenship and character education in relation to the Dignity for All Students Act.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207(not subdivided), 305(1) and (2), and 801-a(1)(not subdivided), and section 3 of Chapter 482 of the Laws of 2010.

Sections 100.2(l) and 119.6 Codes of Conduct to implement the Dignity for All Students Act (DASA)

Description of Rule: Codes of conduct.

Need for Rule: To conform Commissioner’s Regulations on Codes of Conduct to the Dignity for All Students Act.

Legal Basis for Rule: Education Law sections 11(1) –(7), 12(1) and (2), 13(1)-(3), 14(1) and (3), 101 (not subdivided), 207(not subdivided), 305(1) and (2), and 2801(1) –(5), and sections 2 and 4 of Chapter 482 of the Laws of 2010.

Section 100.2(jj) Policy and Guidelines Prohibiting Discrimination and Harassment of Students (Dignity Act Training)

Description of Rule: Policy and guidelines relating to the Dignity for All Students Act prohibiting discrimination and harassment of students.

Need for Rule: To establish standards and criteria for issuance of policy and guidelines relating to the Dignity for All Students Act (Ch.482, L. 2010) prohibiting discrimination and harassment of students.

Legal Basis for Rule: Education Law sections 11(1-7), 12(1) and (2), 13(1-3), 14(1-3), 101(not subdivided), 207(not subdivided), 305(1) and (2) and 2854(1)(b), and Chapter 482 of the Laws of 2010.

Section 100.2(kk) Dignity for All Students Act Reporting Requirements

Description of Rule: Standards for reporting material incidents of discrimination and harassment under the Dignity for All Students Act.

Need for Rule: To establish standards for reporting material incidents of discrimination and harassment under the Dignity for All Students Act.

Legal Basis for Rule: Education Law sections 11(1-7), 15(not subdivided), 16(not subdivided), 101(not subdivided), 207(not subdivided), 305(1) and (2) and 2854(1)(b), and Chapter 482 of the Laws of 2010.

Section 100.5 Diploma Requirements for Students with Disabilities

Description of Rule: Diploma Requirements for Students with Disabilities.

Need for Rule: To provide a new safety net option for students with disabilities to earn a local diploma through the use of compensatory scoring.

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) and 309 (not subdivided).

Sections 100.5, 100.6, 100.9 and 200.5 Skills and Achievement Commencement Credential.

Description of Rule: Skills and Achievement Commencement Credential.

Need for Rule: To replace the Individualized Education Program (IEP) diploma with a Skills and Achievement Commencement Credential.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 305(1) and (2), 4402(1 - 7) and 4403(3).

Sections 100.18, 100.2(m), 100.17(c)(3)(i), 120.3 and 120.4 Elementary and Secondary Education Act (ESEA) Flexibility and School District Accountability

Description of Rule: ESEA Flexibility Waiver and school and school district accountability.

Need for Rule: The rule is necessary to conform Commissioner's Regulations to New York's Elementary and Secondary Education Act (ESEA) Flexibility Waiver, as approved by the U.S. Department of Education Secretary on May 29, 2012, and address the Regents Reform Agenda.

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

Sections 136.5 and 135.4 Concussion Management and Awareness

Description of Rule: Concussion management and awareness.

Need for Rule: To establish criteria relating to mild traumatic brain injury sustained by pupils during instruction or school activities.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), (2) and (42) and 2854(1)(b) and Chapter 496 of the Laws of 2011.

Sections 200.2, 200.3, 200.4 and 200.5 Special Education Services for Students with Disabilities-Additional Parent Member of CSE and Electronic Access to IEPs

Description of Rule: Additional parent member of CSE and electronic access to IEPs.

Need for Rule: To conform Commissioner’s Regulations to Chapters 276 and 279 of the Laws of 2012 regarding the additional parent member of a committee on special education (CSE) and electronic access to students’ individualized education programs (IEPs).

Legal Basis for Rule: Education Laws sections 101(not subdivided), 207(not subdivided), 305(1) and (2) and (20), 4402(1)(b)(1)(b) and (7)(a), 4403(3) and 4410(13) and Chapters 276 and 279 of the Laws of 2012.

Sections 200.4 and 200.16 Preschool and School-Age Individual Evaluations

Description of Rule: Changes the timeline for the required completion of preschool evaluations; repeals the requirement that a psychologist prepare a written report of his/her determination as to whether each student with a disability needs a psychological assessment as part of his or her reevaluation; and clarifies that the 60-day timeline applies to initial individual evaluations to determine a student’s eligibility for special education.

Need for Rule: To provide mandate relief relating to special education requirements.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 4402(1), 4403(3), 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:

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-1954

OFFICE OF HIGHER EDUCATION

Subpart 4-1 Institutional Accreditation for Title IV Purposes

Description of Rule: Voluntary institutional accreditation for Title IV purposes.

Need for Rule: To conform the Regents Rules to federal regulations relating to voluntary institutional accreditation for Title IV purposes.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 214(not subdivided) 215(not subdivided) and 305(1) and (2).

Section 52.21 and Part 80 Transitional B and C Certificates and Program Registration Standards Leading to Such Certificates

Description of Rule: Transitional B and C certificates and program registration standards leading to such certificates.

Need for Rule: To allow certified teachers to enter a Transitional B or C certificate program to become certified in a different area.

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

Sections 80-1.5, 80-3.3, 80-3.4, 80-3.9, 80-3.10, 80-5.13, 80-5.14 and 80-5.22 Teacher and School Building Leader Certification Examinations

Description of Rule: Teacher and school building leader certification examinations.

Need for Rule: To establish the timeframes and what new certification examinations will be required for each certificate title.

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

Subpart 82-1 Teacher Discipline

Description of Rule: Procedures for hearings on charges against tenured school employees.

Need for Rule: To implement the provisions of Education Law section 3020-a, as amended by Chapter 57 of the Laws of 2012, relating to procedures for hearings on charges against tenured school employees.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1) and (2), and 3020-a, as amended by Part B of Chapter 57 of the Laws of 2012.

Section 87.5 Due Process Procedures for Criminal History Record Checks of Prospective School Employees and Applicants for Certification

Description of Rule: Due Process Procedures for Criminal History Record Checks of Prospective School Employees and Applicants for Certification.

Need for Rule: To eliminate oral argument in appeals of State Education Department determinations denying clearance for employment for prospective school employees and applicants for certification as a result of a criminal history record check.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(30)(a), 3001-d(1-4) and 3035(3)(a).

Sections 145-2.1, 145-2.2 and 145-2.4 Tuition Assistance Program

Description of Rule: Updates the criteria for determining student eligibility for Tuition Assistance Program (TAP).

Need for Rule: To revise and clarify the criteria for determining student eligibility to participate in the Tuition Assistance Program (TAP).

Legal Basis for Rule: Education Law sections 207 and 661 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 P. Murphy

Deputy Commissioner for 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 29.7(a) and 63.6(a)(7) Electronic Prescriptions

Description of Rule: Form and use of electronic prescriptions and maintenance of prescriptions by pharmacists in a secure electronic record.

Need for Rule: To implement Education Law sections 6802(23), as added, and section 6810(6)(a), as amended, by Chapter 590 of the Laws of 2011 regarding the form and use of electronic prescriptions and maintenance of prescriptions by pharmacists in a secure electronic record.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6506(1), 6507(2)(a), 6509(9), 6802(23) and 6810(6)(a), and Chapter 590 of the Laws of 2011.

Sections 29.18 and 59.15 Waiver Requirements from Corporate Practice Restrictions for Special Education Schools and Early Intervention Agencies

Description of Rule: Waiver requirements for special education schools and early intervention agencies.

Need for Rule: To implement Chapter 581 of the Laws of 2011 by establishing waiver requirements for special education schools and early intervention agencies.

Legal Basis for Rule: Education Law 207(not subdivided), 6501(not subdivided), 6503-b, 6504(not subdivided), 6506(2), 6507(2)(a), 6508(1), 6509(9), 6510(1)-(9) and 6511(not subdivided).

Sections 52.41, 77.1 and 77.11 Professional Study Requirements for Licensure in Physical Therapy

Description of Rule: Educational requirements for licensure as a physical therapist.

Need for Rule: To conform the regulations to Chapter 410 of the Laws of 2011, which raised the educational requirements for licensure in the profession of physical therapy from a bachelor’s degree to a master’s degree in physical therapy.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1), 6507(2)(a), and 6734(b), and Chapter 410 of the Laws of 2011.

Sections 52.42 and 79-4.8 through 79-4.17 Polysomnographic Technologists

Description of Rule: Polysomnographic technologists.

Need for Rule: To implement the provisions of Chapter 262 of the Laws of 2011, which authorizes the Department to define, in regulation, the practice of polysomnographic technology and set forth the standards to be met for authorization.

Legal Basis for Rule: Education Law sections 207(not subdivided), 212(3), 6504(not subdivided), 6506(1), (2), (5), (6), (8), (9) and (10), 6507(2)(a), 6508(1), (2), (3) and (7), and 8505(5) and Chapter 262 of the Laws of 2011.

Section 60.10 Approval of International Medical Schools for Long-Term Clinical Clerkship Placements

Description of Rule: Approval of international medical schools for long-term clinical clerkship placements.

Need for Rule: To establish the approval standards and procedures for international medical schools to place students in long term clerkships in New York.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6501 (not subdivided), 6504(not subdivided), 6506(1), 6507(2)(a) and 6508(1).

Section 63.9 Administration of Acute Herpes Zoster (Shingles) Vaccinations by Pharmacists

Description of Rule: Authorizes qualified pharmacists to administer acute herpes zoster vaccinations.

Need for Rule: To implement Chapter 116 of the Laws of 2012 which authorizes qualified pharmacists to administer acute herpes zoster vaccinations.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6506(1), 6507(2)(a), 6527(7), 6801(5), 6802(23) and 6909(7), and Chapter 116 of the Laws of 2012.

Sections 76.4, 76.5, 76.6, 76.7 and 76.9 Occupational Therapy

Description of Rule: Occupational therapy.

Need for Rule: To implement Chapter 460 of the Laws of 2011, relating to the profession of occupational therapy.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a) and 7906 (4) and (7) and Chapter 460 of the Laws of 2011.

Sections 79-1.1 and 79-1.2 Landscape Architecture

Description of Rule: Landscape architecture.

Need for Rule: To align Landscape Architect Registration Examination admission requirements with national standards and clarify professional study and experience requirements for landscape architecture candidates.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1), 6507(2)(a) and 7324(1) and (2).

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:

Sarah S. Benson

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) 474-1431

[email protected]

OFFICE OF ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCES)

Section 100.5(b)(7) Veterans Diploma

Description of Rule: Award of local high school diploma to veterans of World War II, the Korean Conflict and the Vietnam War.

Need for Rule: To prescribe requirements for award of high school diplomas to veterans of World War II, the Korean Conflict and the Vietnam War.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided, 208(not subdivided), 209(not subdivided), 305(1), (2), (29), (29-a) and (29-b), 309(not subdivided) and 3204(3).

Section 100.8 National External Diploma Extension

Description of Rule: Local high school equivalency diplomas based upon experimental programs.

Need for Rule: To extend until June 30, 2013 the provision for awarding local high school equivalency diplomas based upon experimental programs.

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

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:

Ceylane Meyers-Ruff

Deputy Commissioner

Office of Adult Career and Continuing Education Services (ACCES)

New York State Education Department

89 Washington Ave., Room 575 EBA

Albany, New York 12234

518-474-2714

G. CALENDAR YEAR 2007 (5 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Section 100.5 Regents Diploma With Honors

Description of Rule: Regents Diplomas with honors and Regents Diplomas with Advanced Designation with honors.

Need for Rule: To revise and clarify diploma requirements, provide flexibility to schools, and alternatives for students who seek a Regents Diploma with honors or a Regents Diploma with Advanced Designation with honors.

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 120.4 Supplemental Educational Services (SES)

Description of Rule: Supplemental Educational Services (SES).

Need for Rule: To prescribe requirements regarding the use of rewards and incentives by SES providers; to revise reporting dates for SES providers and local educational agencies (LEAs); and to correct inaccurate references in the SES regulations.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (33), 308(not subdivided), 309(not subdivided) and 3713(1) and (2).

Sections 100.13 and 170.12 Contracts for Excellence

Description of Rule: Establishes requirements for Contracts for Excellence.

Need for Rule: To establish requirements for Contracts for Excellence, including allowable programs and activities, criteria for public reporting by school districts of their total foundation aid expenditures, and other requirements for purposes of preparation of the Contracts by certain specified school districts.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2), 211-d(1-9), and Chapter 57 of the Laws of 2007.

Sections 21.3 and 100.12 Loan of Instructional Computer Hardware

Description of Rule: Loan of instructional computer hardware.

Need for Rule: To implement Education Law sections 753 and 754, as added by Chapter 57 of the Laws of 2007, to provide for the loan of instructional computer hardware from public school districts to nonpublic school students.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305 (1) and (2), 753 (1) and 754 (1) and sections 7-a and 7-b of Chapter 57 of the Laws of 2007.

Section 151-1 Universal Pre-Kindergarten Program

Description of Rule: Universal Pre-Kindergarten program.

Need for Rule: Conforms the Commissioner's Regulations to Education Law section 3602-e, as amended by Chapter 57 of the Laws of 2007, by establishing uniform quality standards for prekindergarten programs, criteria relating to program design, procedures for applying for universal prekindergarten grants, procedures by which districts select eligible agency collaborators through a competitive process, and facility requirements.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided) and 3602-e(1), (2), and (5)-(16), and section 19 of Chapter 57 of the Laws of 2007.

Sections 100.2, 120.6, 200.1 through 200.9, 200.13, 200.14, 200.16, 200.22, 201.2 through 201.11 Special Education programs and services

Description of Rule: Special education programs and services.

Need for Rule: To conform regulations to the reauthorization of the Individuals with Disabilities Education Act (IDEA); ensure consistency in procedural safeguards; promotes timely evaluations and services; and facilitates services in the least restrictive environment for students with disabilities.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 3208 (1-5), 3209(7),3214(3), 3602-c(2), 3713(1) and (2), 4002(1-3), 4308(3), 4355(3), 4401(1-11), 4402 (1-7), 4403(3), 4404(1-5), 4404-a(1-7), and 4410(13).

Section 154.2, Repeal and Addition of Section 154.3 and Repeal of Section 154.4 Pupils with Limited English Proficiency

Description of Rule: Students with limited English proficiency.

Need for Rule: Conforms the Commissioner’s Regulations to section 10 of Chapter 57 of the Laws of 2007 by prescribing requirements for the development of comprehensive plans for students with limited English proficiency by school districts.

Legal Basis for Rule: Education Law sections 207, 215, 2117(1), 3204(2),(2-a),(3) and (6) and section 10 of Chapter 57 of the Laws of 2007.

Section 175.5 Superintendents' Conference Days

Description of Rule: Superintendents' conference days.

Need for Rule: To extend for two years the provision in section 175.5(f) of the Commissioner's Regulations that allows a school district to use up to two of its superintendents' conference days for teacher rating of State assessments.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided) and 3604(8).

Section 3.16 Delegation of Authority with Respect to Certain Charter School Hearings

Description of Rule: Delegation of authority to conduct and hold public hearings concerning charter schools under Education Law section 2857(1-a).

Need for Rule: Delegates to the Commissioner of Education the Board of Regents' authority to conduct and hold public hearings to solicit comments from the community in connection with the issuance, revision, or renewal of a charter school’s charter pursuant to Education Law section 2857(1-a).

Legal Basis for Rule: Education Law sections 101 (not subdivided), 206 (not subdivided), 207 (not subdivided), 305(1), (2) and (20) and 2857(1) and (1-a) and section 7 of Part D-2 of Chapter 57 of the Laws of 2007.

Section 119.4 Charter School Public Hearings

Description of Rule: Procedures for public hearings concerning charter schools pursuant to Education Law section 2857(1). Establishes procedures for the conduct of public hearings by school districts to solicit comments from the community in connection with the issuance, revision, or renewal of a charter school’s charter pursuant to Education Law section 2857(1).

Need for Rule: Establishes procedures for the conduct of public hearings by school districts to solicit comments from the community in connection with the issuance, revision, or renewal of a charter school’s charter pursuant to Education Law section 2857(1).

Legal Basis for Rule: Education Law sections 101 (not subdivided), 206 (not subdivided), 207 (not subdivided), 305(1), (2) and (20) and 2857(1) and section 7 of Part D-2 of Chapter 57 of the Laws of 2007.

Section 170.13 Fiscal Maintenance of Effort

Description of Rule: Fiscal maintenance of effort; definition of “city funds”.

Need for Rule: To define "city funds" for purposes of determining maintenance of effort in cities having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants pursuant to Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion, and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided) and 305(1) and (2) and 2576(5-b) and section 9 of Part B of Chapter 57 of the Laws of 2007.

Section 100.3 Program Requirements for Students in Prekindergarten and Kindergarten

Description of Rule: Program requirements for prekindergarten and kindergarten programs.

Need for Rule: To align program requirements for prekindergarten and kindergarten programs operated by school districts and voluntarily registered nonpublic schools with those established for State-funded universal kindergarten programs.

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

Section 117 Diagnostic Screening for Students Who Are New Entrants or Who Have Low Test Scores in Reading or Mathematics

Description of Rule: Diagnostic screening of students who are new entrants to school or who have low test scores on the statewide reading or mathematics assessment”.

Need for Rule: To provide for the diagnostic screening of students who are new entrants to school or who have low test scores on the statewide reading or mathematics assessment and to provide consistency between definitions in Part 117 and other provisions of the Commissioner’s Regulations, specifically, by conforming the definition of “handicapping condition” to the definitions of a “preschool student with a disability” and a “student with a disability”.

The rule is necessary to achieve consistency between the definitions in Part 117 and those in other provisions of the Regulations of the Commissioner of Education.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 3208(5) and 4403(3).

Sections 100.14 and 100.15 Excelsior Scholars Program and Grants for Summer Institutes for Mathematics and Science Teachers

Description of Rule: Excelsior Scholars Program and grants for summer institutes for mathematics and science teachers.

Need for Rule: To establish criteria for the award of grants for the Excelsior Scholars Program pursuant to Education Law section 3641-a and grants for Summer Institutes for Mathematics and Science Teachers pursuant to Education Law section 3641-b.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2) and sections 3641-a(1), (2) and (3) and 3641-b(not subdivided), as added by section 39 of Part B of Chapter 57 of the Laws of 2007.

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:

Kimberly Young Wilkins

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-1954

OFFICE OF HIGHER EDUCATION

Section Subpart 4-1 Voluntary Institutional Accreditation for Title IV purposes

Description of Rule: Voluntary Institutional Accreditation for Title IV purposes.

Need for Rule: To establish requirements and clarify existing standards and procedures that must be met by institutions of higher education voluntarily seeking institutional accreditation or renewal of such accreditation by the Board of Regents and the Commissioner of Education.

Legal Basis for Rule: Education Law sections 207 (not subdivided); 210 (not subdivided); 214 (not subdivided), 215 (not subdivided), and 305(1) and (2).

Sections 80-1, 80-3, 80-4 and 80-5 Requirements for Teachers’ Certification and Teaching Practice

Description of Rule: Teachers’ certification and teaching practice requirements.

Need for Rule: To clarify existing standards and procedures that must be met by teachers (classroom teachers, school leaders and pupil personnel professionals) when seeking certification by the Board of Regents and the Commissioner of Education. The rule also provides the Commissioner with the flexibility to accept candidates who substantially meet certain certification requirements and/or who have a valid certificate from another state or an authorization to practice from another country evidencing knowledge, skills and abilities comparable to those required for certification in New York State.

Legal Basis for Rule: Education Law Sections 207 (not subdivided), 208 (not subdivided), 305(1), (2) and (7), 308 (not subdivided), 3001(2), 3004(1), 3006(1)(b), 3007(not subdivided), and 3009.

Sections 80-1.11, 87.1, 87.2, 87.4, 87.5, 87.6, 87.8 and 87.10 Fingerprinting and Criminal History Record Check of Prospective Employees of Nonpublic and Private Elementary or Secondary Schools

Description of Rule: Requirements and procedures for the fingerprinting and criminal history record check of prospective school employees.

Need for Rule: To implement the requirements set forth in sections 305, 3001-d and 3035 of the Education Law, as amended by Chapter 630 of the Laws of 2006, relating to requirements and procedures for the fingerprinting and criminal history record check of prospective school employees for nonpublic and private elementary or secondary schools.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 3012-b and Section 9 of Part 12 of Chapter 57 of the Laws of 2007.

Subpart 4-1 Institutional Accreditation

Description of Rule: Voluntary institutional accreditation for Title IV purposes.

Need for Rule: The purpose of the rule is to establish requirements and clarify existing standards and procedures that must be met for institutions of higher education voluntarily seeking institutional accreditation of their teacher education programs, or renewal of such accreditation, by the Board of Regents.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210 (not subdivided), 214 (not subdivided), 215 (not subdivided), and 305 (1), and (2).

Section 145-2.15 Administration of Ability-to-Benefit Tests for Eligibility for Awards.

Description of Rule: Administration of ability-to-benefit tests for eligibility for awards.

Need for Rule: To identify certain ability-to-benefit tests and the passing scores for such tests that the Board of Regents approves for purposes of eligibility for awards under section 661 of the Education Law. The rule also establishes criteria that the Department will utilize to determine if an approved ability-to-benefit test is independently administered in order to implement the requirements of Chapter 57 of the Laws of 2007.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 215 (not subdivided) and 661(4) and Sections 1 and 2 of Part E-1 of Chapter 57 of the Laws of 2007.

Section 150.2 and addition of section 150.4 State Aid Awards for High Needs Nursing Programs at Certain Independent Colleges and Universities

Description of Rule: State aid awards for high needs nursing programs.

Need for Rule: To establish eligibility criteria and the requirements and procedures for certain eligible independent colleges and universities to follow when applying for, or awarding, State aid awards for high needs nursing programs in order to implement the requirements of Chapter 57 of the Laws of 2007.

Legal Basis for Rule: Education Law sections 207 (not subdivided) and 6401-a(4) and Part E-4 of Chapter 57 of the Laws of 2007.

Section 27-1.1 Student Eligibility for the Higher Education Opportunity Program

Description of Rule: Economic eligibility criteria for the Higher Education Opportunity Program at independent colleges and universities.

Need for Rule: To update the current economic eligibility criteria for the Higher Education Opportunity Program at independent colleges and universities.

Legal Basis for Rule: Education Law sections 207 (not subdivided); 6451(1).

Sections 50.1, 52.2(c)(4), and 145-2.1(g) Disaster Planning

Description of Rule: Establishing equivalency of instruction and study in the temporary closure of an institution as a result of a disaster.

Need for Rule: To permit an institution to provide a statement of academic standards establishing equivalency of instruction and study in the temporary closure of an institution as a result of a disaster.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 202(1), 207 (not subdivided), 210 (not subdivided), 215 (not subdivided), and 305 (1), (2) and (20).

Section 52.21(b)(2)(iv)(c)(3)(i) and (ii) Accreditation of Teacher Education Programs

Description of Rule: Accreditation of teacher education programs.

Need for Rule: To enable certain teacher education programs to complete the accreditation process, by extending for six months the date by which teacher education programs registered prior to September 1, 2001 that are awaiting an accreditation decision following an accreditation review which included a site visit conducted on or before December 31, 2006, must achieve accreditation. In addition, the rule extends by six months the period of eligibility in which certain teacher education programs denied accreditation may request a deferral of the date for accreditation. The rule is needed to provide the Department with regulatory flexibility to accommodate sound teacher education programs that demonstrate the ability to earn accreditation within the short term.

Legal Basis for Rule: Education Law sections 207 (not subdivided); 210 (not subdivided); 215 (not subdivided); 305 (1) and (2); 3001(2); and 3004(1).

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 P. Murphy

Deputy Commissioner for 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 29.17 and 77.9 Physical Therapy

Description of Rule: The practice of physical therapy without a referral.

Need for Rule: To implement the requirements of section 6731(d) of the Education Law by defining the experience requirement that a licensed physical therapist must meet to provide treatment without a referral, clarifying the content of the notice of advice provided to a patient prior to treatment by a physical therapist without a referral, and establishing a definition of unprofessional conduct relating to such practice.

Legal Basis for Rule: Education Law sections 207(not subdivided); 6504(not subdivided); 6506(1); 6507(2)(a); 6509(9), and 6731(d).

Part 31 Unauthorized Practice

Description of Rule: Civil enforcement proceedings for the unauthorized practice of the professions and the unauthorized use of a professional title.

Need for Rule: To implement the requirements of Section 6516 of the Education Law by specifying the requirements for the submission of complaints, investigations, hearing requests and stay requests; the contents of a cease and desist order; the standards for the imposition of civil penalties and restitution and the procedures for hearings and appeals.

Legal Basis for Rule: Sections 207 (not subdivided); 6506(1); 6512(1); 6513(1); and 6516 (1), (2), (3), (4), (5), (6), and (7) of the Education Law.

Sections 52.26, 61.9, and 61.13 Dental Assisting.

Description of Rule: Scope of practice for certified dental assistants and dental hygienists and the curriculum requirements for registration as a program leading to licensure in certified dental assisting.

Need for Rule: To implement Chapter 300 of the Laws of 2006 amended Sections 6608 and 6608-b of the Education Law to expand the scope of practice for certified dental assistants and dental hygienists and amending the curriculum requirements for registration as a program leading to licensure in certified dental assisting.

Legal Basis for Rule: Sections 207(not subdivided); 6506(1); 6507(2)(a), 6606(2), 6608(not subdivided) and 6608-b(4) of the Education Law.

Section 64.7 Human Immunodeficiency Virus Tests

Description of Rule: The execution by registered professional nurses of non-patient specific orders to administer human immunodeficiency virus tests.

Need for Rule: To establish requirements for registered professional nurses to meet when executing non-patient specific orders prescribed or ordered by a licensed physician or certified nurse practitioner for the administration of human immunodeficiency virus tests.

Legal Basis for Rule: Education Law sections 207 (not subdivided); 6507(2)(a); 6527(6); 6902(1) and 6909(4)(d) and (5).

Section 66.5(f) and Addition of Section 66.6 Optometry

Description of Rule: Continuing education requirements for licensed optometrists certified to use therapeutic pharmaceutical agents.

Need for Rule: To clarify existing mandatory continuing education requirements and provides more flexibility to the Department for exceptional circumstances that lead to non-compliance.

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

Section 70.3 Public Accountancy

Description of Rule: Examination requirements for licensure in public accountancy.

Need for Rule: To revise standards and procedures relating to the examination for licensure in public accountancy.

Legal Basis for Rule: Education Law sections 207(not subdivided); 6504 (not subdivided); 6507(2)(a) and (3)(a); 6508(2)and 7404(1)(4).

Sections 74.2, 74.3, 74.4 and 74.6 Social Work

Description of Rule: Requirements relating to licensure as a licensed clinical social worker, limited permits to practice licensed clinical social work and the supervision of clinical social work services provided by a licensed master social worker.

Need for Rule: To conform to the content of the licensing examination, which is based on the expectation that the applicant will have completed at least two years of post-degree supervised experience.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 6501, 6504, 6507(2)(a),7704(2)(c), (2)(d) and 7705.

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:

Sarah S. Benson

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) 474-1431

[email protected]

OFFICE OF CULTURAL EDUCATION

Section 90.12 State Aid for Public Library Construction

Description of Rule: State aid for library construction and renovation projects.

Need for Rule: To prescribe eligibility requirements and criteria for applications for state aid for library construction and renovation projects, and to conform the Commissioner’s Regulations to recent changes made to Education Law section 273-a by Chapter 57 of the Laws of 2007.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 215 (not subdivided) and 273(5), section 1 of Chapter 53 of the Laws of 2007, and section 4 of Part B of Chapter 57 of the Laws of 2007.

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:

Tom Ruller

Assistant Commissioner for the State Archives

State Education Department

Room 9B52 Cultural Education Center

Albany, New York 12230

(518) 474-6926

H. CALENDAR YEAR 2002 (5 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Sections 3.32 and 100.2(p) Registration of Public Schools

Description of Rule: Registration of public schools.

Need for Rule: To establish procedures for the registration of public schools

through the submission of a petition to the Board of Regents.

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) and (19) and 309 (not subdivided).

Part 120 No Child Left Behind Act of 2001 (Pub. L. 107-110)

Description of Rule: No Child Left Behind Act of 2001 (Pub.L. 107-110).

Need for Rule: To establish criteria and procedures to ensure State and local educational agency compliance with the federal No Child Left Behind Act of 2001 and Chapter 425 of the Laws of 2002.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1), (2) and (33), 2802(7), 3214(3)(d) and (f) and Chapter 425 of the Laws of 2002.

Section 136.4 On-Site Automated External Defibrillators

Description of Rule: Automated external defibrillator (AED)

Need for Rule: To implement Education Law section 917, as added and amended by Chapters 60 and 61 of the Laws of 2002, to prescribe standards for the use of automated external defibrillators by school districts, board of cooperative educational services, county vocational education and extension boards, and charter schools.

Legal Basis for Rule: Education Law sections 207(not subdivided) and 917(1) and (2) and Chapters 60 and 61 of the Laws of 2002.

Sections 151-1.2 Universal Prekindergarten Programs

Description of Rule: Universal prekindergarten programs.

Need for Rule: To conform the definition of “eligible child” to Education Law section 3602-e(10)(a)(4), as amended by Chapter 383 of the Laws of 2001, relating to the age eligibility for children enrolled in summer only Universal Prekindergarten programs.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided) and 3602-e (10)(a)(4) and (12) and section 1-a of Part F of Chapter 383 of the Laws of 2001.

Section 155.25 Electrically Operated Partitions

Description of Rule: Establishes minimum standards for t electrically operated partitions or room dividers.

Need for Rule: To establish standards relating to the construction, maintenance and operation of electrically operated partitions located in classrooms or other facilities used by students in public and nonpublic schools or educational institutions within the state in compliance with Chapter 217 of the Laws of 2001 and Chapter 231 of the Laws of 2002.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 409-f(1) and (2) and 3602(6-c), Chapter 217 of the Laws of 2001, and Chapter 231 of 2002.

Section 200.2 Instructional Material in Alternative Formats

Description of Rule: Plans to ensure instructional material in alternative formats are provided to students with disabilities.

Need for Rule: The rule is necessary to implement Chapter 377 of the Laws of 2001, which requires every school district and BOCES to develop a plan to ensure that all instructional materials to be used in the schools of the district (or in the programs of the BOCES) are available in a usable alternative format for every student with a disability in accordance with his or her educational needs and course selections at the same time that such materials are available to non-disabled students.

Legal Basis for Rule: Education Law sections 207, 1604(29-a), 1709(4-a), 1950(4-a), 2503(7-a), 2554(7-a), 3602(10)(b), 4403(3) and Chapter 377 of the Laws of 2001.

Sections 200.2, 200.4 and 200.16 Individualized Education Programs (IEPs)

Description of Rule: Providing copies of individualized education programs (IEP’s) to teachers, related service providers and other providers.

Need for Rule: To implement Education Law section 4402(7), as added by Chapter 408 of the Laws of 2002, which requires that school districts establish a policy that: ensures that teachers and other service providers are provided with students’ individualized education programs (IEPs) prior to the implementation of such IEPs; ensures the confidentiality of such IEPs; and requires that teachers, assistants, support staff persons and other service providers be informed of their responsibilities in relation to the implementation of students’ IEPs prior to the implementation of such IEPs.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4402(7), 4403(3), 4410(13) and Chapter 408 of the Laws of 2002.

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:

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCES)

Sections 246.3 and 246.6 Vocational Rehabilitation Program

Description of Rule: Vocational rehabilitation program.

Need for Rule: To conform the Commissioner's Regulations to changes in federal law made in the 1998 reauthorization of the Rehabilitation Act (Pub.L.105-22) and thereby ensure that the State vocational rehabilitation program is conducted according to federal standards.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided) and 1004(1).

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:

Ceylane Meyers-Ruff

Deputy Commissioner

Office of Adult Career and Continuing Education Services (ACCES)

New York State Education Department

89 Washington Ave., Room 575 EBA

Albany, New York 12234

(518) 474-2714

OFFICE OF HIGHER EDUCATION

Sections 3.47 and 3.50 Authorization of a Degree Abbreviation (B.M.)

Description of Rule: Authorization of a degree abbreviation.

Need for Rule: The rule is needed to authorize the use by New York postsecondary degree-granting institutions authorized to confer the Bachelor of Music degree of the abbreviation “B.M” for that degree as an alternative to the existing abbreviation “Mus. B.” to be consistent with the abbreviation commonly used by other jurisdictions for this degree.

Legal Basis for Rule: Sections 207(not subdivided), 210(not subdivided), 218(1), and 224(4) of the Education Law.

Part 4 and Sections 3.14, 13.11,52.23 Accreditation of Teacher Education Programs and Voluntary Institutional Accreditation for Title IV purposes.

Description of Rule: Regents accreditation of teacher education programs and voluntary institutional accreditation for Title IV purposes.

Need for Rule: To establish standards and procedures that must be met by institutions of higher education seeking accreditation of their teacher education programs by the Board of Regents; aligns related provisions in the Rules of the Board of Regents and the Regulations of the Commissioner of Education with the new standards and procedures; and renumbers the rule and clarifies language related to voluntary institutional accreditation for Title IV purposes by the Commissioner of Education and the Board of Regents.

Legal Basis for Rule: Sections 207(not subdivided), 210(not subdivided), 212-c (not subdivided), 214(not subdivided), 215(not subdivided), and 305(1) and (2) of the Education Law.

Sections 87.3, 87.4, 87.5 and 87.9 Fingerprinting and Criminal History Check of Prospective School Employees and Applicants for Teaching Certification

Description of Rule: Fingerprinting and criminal history check of prospective school employees and applicants for teaching certification.

Need for Rule: To implement Chapter 380 of the Laws of 2001, which authorizes the exchange of criminal history records of certain individuals, upon their authorization, between the State Education Department and the City School District of the City of New York.

Legal Basis for Rule: Sections 207(not subdivided), 305(3)(a), 3004-b(1), 3035(3) and (3-a) of the Education Law and Chapter 380 of the Laws of 2001.

Section 52.21(b)(2)(iv)(b)(1) Requirements for Teacher Education Programs

Description of Rule: Teacher education programs requirements.

Need for Rule: To align the definition for pass rates on teacher certification examinations, used for purposes of triggering a State Education Department registration review of teacher education programs, with the Federal definition, used for purposes of Title II of the Higher Education Act.

Legal Basis for Rule: Sections 207(not subdivided), 210(not subdivided), 215(not subdivided), 305(1), and 3004(1) of the Education Law.

Section 80-2.6(c) Requirements for Certification of Teachers of the Speech and Hearing Handicapped

Description of Rule: Requirements for certificate of teachers of the speech and hearing handicapped.

Need for Rule: To enable licensed and registered speech-language pathologists in New York State to become certified as teachers of the speech and hearing handicapped through an alternative path.

Legal Basis for Rule: Sections 207(not subdivided), 305(1), (2), and (7), 3004(1) and 3006(1) of the Education Law.

Section 27-1.1 Student eligibility for the Higher Education Opportunity Program

Description of Rule: Income criteria for determining student eligibility to participate in the Higher Education Opportunity Program at nonpublic institutions of higher education.

Need for Rule: To update the current criteria for determining student economic eligibility for the Higher Education Opportunity Program.

Legal Basis for Rule: Sections 207(not subdivided) and 6451(1) of the Education Law.

80-1.7 and 80-5.15 Provisional Teaching Certificate and the Issuance of a Limited Certificate in the Classroom Teaching Service

Description of Rule: Renewal of an expired provisional teaching certificate and the issuance of a limited certificate in the classroom teaching service.

Need for Rule: To establish the requirements for the renewal of an expired provisional teaching certificate for an additional five-year term and for the issuance of a limited certificate in the classroom teaching service which would permit candidates to teach for the period September 1, 2003 through August 31, 2004, while they are completing academic requirements for the provisional certificate.

Legal Basis for Rule: Sections 207(not subdivided), 305(1), (2), and (7), 3004(1) and 3006(1) 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 P. Murphy

Deputy Commissioner for 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 29.13(a) Definition of Unprofessional Conduct in the Practice of Massage Therapy

Description of Rule: The definition of unprofessional conduct in the practice of massage therapy.

Need for Rule: To remove an exception in the definition of unprofessional conduct in the practice of massage therapy relating to patient records, which pertains to licensed practitioners who are providing massage therapy services to clients in a health spa or similar setting, when such services are not provided pursuant to a prescription by a health care practitioner.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1) and 6509(9).

Section 29.7(a)(21)(ii)(a) Definition of Unprofessional Conduct in the Practice of Pharmacy and Limitations on Assistance to Licensed Pharmacists by Unlicensed Individuals

Description of Rule: The definition of unprofessional conduct in the practice of pharmacy and limitations on assistance to licensed pharmacists by unlicensed individuals.

Need for Rule: To revise the list of activities, performed by an unlicensed individual while assisting a licensed pharmacist in the dispensing of a prescription that would invoke the requirement that a licensed pharmacist supervise no more than two unlicensed persons.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1) and 6509(7) and (9), and 6801(not subdivided).

Section 29.10 Definition of Unprofessional Conduct and Work Paper Documentation and Retention in the Practice of Public Accountancy

Description of Rule: The definition of unprofessional conduct and work paper documentation and retention in the practice of public accountancy.

Need for Rule: To establish, in the definition of unprofessional conduct in the practice of public accountancy, standards that licensees must meet in relation to documentation in work papers and the retention of such papers.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1) and 6509(9), and 7401(not subdivided).

Section 64.6 Practice of Nursing and Midwifery

Description of Rule: Profession of midwifery.

Need for Rule: To identify the licensed profession of midwifery as one of the licensed health care professions that is authorized to prescribe medical regimens to be executed by registered professional nurses that may direct the care provided by licensed practical nurses.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6507(1) and (2), 6902(1) and (2), and 6951(1), (2) and (3).

Part 77 Licensing of Physical Therapists and Certification of Physical Therapy Assistants

Description of Rule: Renewal of a limited permit for a physical therapist assistant.

Need for Rule: To implement Chapter 404 of the Laws of 2002 by establishing requirements for the renewal of a limited permit for a physical therapist assistant and prescribes the examination that must be passed for certification as a physical therapist assistant, and makes nonsubstantial changes in the requirements for licensure as a physical therapist.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6506(1), 6507(2)(a), 6734(d), 6735(c), 6740(c-1), and 6741-a(c), and Section 4 of Chapter 404 of the Laws of 2002.

Section 61.15(a) Mandatory Continuing Education for Dentists

Description of Rule: Mandatory continuing education for dentists.

Need for Rule: To implement Chapter 237 of the Laws of 2001 which requires licensed dentists to complete, on a one-time basis, no fewer than two hours of acceptable coursework regarding the recognition, diagnosis, and treatment of the oral health effects of the use of tobacco and tobacco products, as part of the dentist’s continuing education requirement.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6502(1), 6504(not subdivided), 6507(2)(a) , and 6604-a(2) and (4).

Agency Representative:

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

Sarah S. Benson

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) 474-1431

[email protected]

OFFICE OF CULTURAL EDUCATION

Sections 185.5, 185.13 and 185.14 Local Government Records Management

Description of Rule: Records Retention and Disposition Schedules CO-2 and MI-1.

Need for Rule: To amend Records Retention and Disposition Schedule CO-2 and Records Retention and Disposition Schedule MI-1, thus providing counties and miscellaneous local governments with means to dispose of valueless records not listed on the existing schedules, to maintain voluminous records no longer than the records are needed, and to make the schedules easier to understand.

Legal Basis for Rule: Education Law section 207(not subdivided) and Arts and Cultural Affairs Law section 57.25(2).

Agency Representative:

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

Tom Ruller

Assistant Commissioner for the State Archives

9B52 Cultural Education Center

Albany, New York 12230

(518) 474-6926

[email protected]

OFFICE OF OPERATIONS AND MANAGEMENT SERVICES

Sections 3.16 and 3.17 Charter School Complaints and Revocations

Description of Rule: Charter school complaints and revocations.

Need for Rule: To (1) establish procedures for the conduct of charter school revocation proceedings initiated by the Board of Regents, and (2) delegate to the Commissioner the authority of the Board of Regents to investigate and respond to complaints against charter schools pursuant to Education Law section 2855(4), authority to issue remedial orders to charter schools pursuant to Education Law section 2855(4), and the authority to place a charter school on probationary status and to develop and impose a remedial action plan pursuant to Education Law section 2855(3).

Legal Basis for Rule: Education Law sections 101(not subdivided), 206(not subdivided), 207(not subdivided), 305(1), (2) and (20) and 2855(1), (2), (3), 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:

Daniel Morton-Bentley

Counsel and Deputy Commissioner for Legal Affairs

State Education Building Room 112

89 Washington Ave., Albany, NY 12234

(518) 474-6400

I. CALENDAR YEAR 1997 (5 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Section 108.7(b) Flag

Description of Rule: Requires public schools to provide specific instruction regarding respect for the flag of the United States of America, its display and use, to include, as a minimum, instruction regarding the provisions of Sections 170 through 177 of Title 36 of the United States Code.

Need for Rule: To comply with the requirements of Education Law section 802(1), as amended by Chapter 601 of the Laws of 1996, which requires public schools to provide the specified instruction.

Legal Basis for Rule: Education Law sections 207 and 802(1) and Chapter 601 of the Laws of 1996.

Section 135.4(c)(7)(ii)(b)(1) Athletic Eligibility

Description of Rule: Student eligibility requirements for interschool competition in grades 9, 10, 11 and 12, to provide that a student may participate in interscholastic athletics until the last day of the school year in which the student attains the age of 19. It affixes eligibility to a student’s age at the start of the legal school year and, thereby, reduces the number of disqualified students. The rule retains the current safety standard which generally precludes students over the age of 19 from participating in interscholastic athletics.

Need for Rule: To promote safe and equitable competition particularly in contact sports and eliminates the potential incentive of students staying in school longer in order to compete in athletic programs.

Legal Basis for Rule: Education Law sections 207, 305(1) and (2), 803(1) and (5) and 3204(3).

Sections 176.1 and 176.2 Mandated Services Reimbursement

Description of Rule: Mandated services reimbursement.

Need for Rule: To eliminate the onerous task of maintaining individual time records for each staff person involved in 14 of the 16 mandates by authorizing the use of time and effort standards established by the Commissioner to determine the time spent on each required service by nonpublic schools.

Legal Basis for Rule: Education Law sections 207 and Chapter 507 of the Laws of 1974, as amended by Chapter 903 of the Laws of 1984.

Section 100.2(bb) School District Report Cards

Description of Rule: The rule establishes criteria for the issuance of school district report cards by all public schools and requires school districts to annually prepare a report card and to make it available by appending it to copies of the proposed budget made publicly available.

Need for Rule: To comply with Chapter 474 of the Laws of 1996, which requires the Commissioner to establish criteria for the issuance and dissemination of school district report cards. It also satisfies federal public reporting requirements under the 1994 reauthorization of ESEA.

Legal Basis for Rule: Education Law sections 207, 1608, 1716, 2554(24), 2509-e(23), 2509-g(21) and 2601-a(7) and sections 157 through 162 of Chapter 474 of the Laws of 1996.

Section 156.12 Contracts for Pupil Transportation Services

Description of Rule: Requirements for boards of education that elect to award contracts for pupil transportation services through a request for proposals (RFP) instead of through competitive bidding.

Need for Rule: The rule is necessary to comply with Chapter 698 of the Laws of 1996, which requires the Commissioner to establish a process for the approval of contracts awarded in response to a request for proposals for pupil transportation services.

Legal Basis for Rule: Education Law sections 207, 305(14) and 3625 and Chapter 698 of the Laws of 1996.

Section 100.2(p) School Deregistration

Description of Rule: To establish a System of Accountability for Student Success for schools in New York State

Need for Rule: To set forth policy of the Board of Regents in order to carry out its responsibility to register public schools in New York State and to ensure that schools are preparing students appropriately to meet State standards. The regulation is also necessary to ensure that improvement efforts are initiated in schools that are not meeting State standards and that such schools are subject to revocation of registration for persistently unacceptable performance. The regulation also helps to ensure that the State is in compliance with federal requirements relating to school accountability.

Legal Basis for Rule: Education Law sections 207, 305(1) and (2) and 308.

Section 156.3(c) Qualifications for School Bus Drivers

Description of Rule: Testing of all new school bus drivers hired after September l, 1997, and a three-year phase-in of testing for veteran school bus drivers.

Need for Rule: To clarify the standards of fitness for school bus drivers consistent with the recommendations of the Commissioner's School Bus Driver Instructor Advisory Committee convened pursuant to section 156.3(c)(2) of the Commissioner's Regulations.

Legal Basis for Rule: Education Law sections 207 and 3624.

Section 100.2(m) Public School Performance Report

Description of Rule: Comprehensive assessment report for nonpublic schools and a public school performance report that include measures of academic performance and attendance, suspension and dropout rates for each school.

Need for Rule: To implement Board of Regents policy on raising standards for all students. It also satisfies federal public reporting requirements under the 1994 reauthorization of the federal Elementary and Secondary Education Act (ESEA).

Legal Basis for Rule: Education Law sections 101, 207, 215 and 305(1) and (2).

Section 100.2(cc) BOCES Report Cards

Description of Rule: Requires each board of cooperative educational services (BOCES) to prepare a BOCES report card and to append it to copies of the proposed administrative budget made publicly available.

Need for Rule: To comply with the provision in Chapter 436 of the Laws of 1997, which requires that each BOCES issue a report card on an annual basis, pursuant to regulations of the Commissioner, commencing with the 1997-98 school year.

Legal Basis for Rule: Education Law sections 101, 207, 215 and 1950(4)(kk) and section 13 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Section 100.12 Instructional Computer Technology Plans

Description of Rule: Requires each school district to develop and maintain a plan for the use of instructional computer technology equipment in order to be eligible for aid for instructional computer technology expenses and identifies what should be included in the plan.

Need for Rule: To comply with the provision in Chapter 436 of the Laws of 1997 which requires, as a condition for eligibility for State aid, that each school district develop and maintain a plan for the use of instructional computer equipment.

Legal basis for Rule: Education Law sections 207 and 3602(26-a) and section 53 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Part 151 and Section 156.7 Universal Prekindergarten Program

Description of Rule: Establishes program components, staff qualifications, program design, application procedures, transition rules, transportation provisions, and a required competitive process in order to implement the universal prekindergarten program.

Need for Rule: To implement universal prekindergarten programs pursuant to the provisions of Chapter 436 of the Laws of 1997.

Legal Basis for Rule: Education Law sections 101, 207, 3602(7)(d) and 3602-e and section 58 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Section 155.17 Contracts for Mobile Instructional Units

Description of Rule: Establishes a process that school districts and BOCES must follow in the award and approval of contracts for mobile instructional units.

Need for Rule: To comply with Chapter 464 of the Laws of 1997, which requires the Commissioner to establish a process for the approval of contracts awarded in response to a request for proposals for mobile instructional units.

Legal Basis for Rule: Education Law sections 207 and 305(14), as amended by Chapter 464 of the Laws of 1997.

Section 170.3 Instructional Support Services

Description of Rule: Purchase of instructional support services by school districts not a component of a BOCES, including a city school in a city having a population in excess of 125,000, and defines for school districts what constitutes instructional support services.

Need for Rule: To implement the provisions of Chapter 436 of the Laws of 1997, by defining the term "instructional support services" for purposes set forth in Education Law section 1950(8-c).

Legal Basis for Rule: Education Law sections 101, 207 and 1950(8-c) and section 14 of Chapter 436 of the Laws of 1997.

Section 170.8 Annual School Budgets

Description of Rule: Requires school districts to prepare annual budgets and budget-related materials in plain language and organized in a manner that promotes public understanding of the material.

Need for Rule: To comply with the provisions of Chapter 436 of the Laws of 1997 which requires district to prepare annual budgets containing the above-specified components.

Legal Basis for Rule: Education Law sections 207, 1608 and 1716 and sections 5 and 7 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Sections 200.1 (o) and (q), 200.1(tt)(uu), 200.9(f)(2) and (f)(3)(iii), 200.16 and 200.20(a)(1) and (3) Special Education Programs and Services to Preschool Students with Disabilities

Description of Rule: Evaluation of preschool students with disabilities and the recommendation for appropriate special education programs and services in the least restrictive environment and establishment of approved rates for preschool programs and tuition reimbursement.

Need for Rule: To comply with paragraph (b) of subdivision 5 of section 4410 of the Education Law, which compels the Commissioner to promulgate definitions needed to ensure that the individualized education program (IEP) of a preschool child indicates the extent of services to be provided to the child when a half-day or full-day program is recommended.

Legal basis for Rule: Education Law sections 207 and 4410, as amended by sections 164, 165, 166 and 169 of Chapter 474 of the Laws of 1996.

Section 200.2(c) District Plans for Special Education Programs and Services

Description of Rule: Requires that a district plan for special education programs and services be filed consistent with the time intervals required in section 3602(10), and that the district plan include an estimated budget.

Need for Rule: To ensure consistency with Education Law section 3602(10), which requires that district plans be revised and made available for public inspection and review by the Commissioner every two years.

Legal Basis for Rule: Education Law sections 207, 3602(3) and (10), 4402(1), (2) and (3), and 4410(13).

Section 200.6(b)(6) Specially Designed Reading Instruction to Students with Disabilities

Description of Rule: Adds specially designed reading instruction, provided by an individual who holds a certificate valid for a reading teacher, to the continuum of services that may be recommended for a student with a disability and authorizes the provision of such instruction.

Need for Rule: To ensure that specially designed reading instruction is provided by individuals with certification and expertise in the area of reading.

Legal Basis for Rule: Education Law section 207 and 4403(3).

Section 200.9(f)(4) Reimbursement of Transportation Expenses for Preschool Students with Disabilities

Description of Rule: Standardized methodology to develop regional maximum per trip rates for the reimbursement of transportation expenses incurred by municipalities providing services to preschool students with disabilities.

Need for Rule: To implement section 4410(c)(1) of the Education Law, which requires the Commissioner to establish regional ceilings for each region of the State on the maximum allowable State reimbursement and sets out factors the Commissioner must consider in developing such ceilings, and thus ensure that the transportation rates for preschool children between counties in the same geographic regions of the State are not widely discrepant.

Legal Basis for Rule: Education Law sections 207, 4401(4), 4402(4), 4405(2) and 4410(8), (10) and (13), and sections 171 and 175 of Chapter 474 of the Laws of 1996.

Sections 276.1(c), 276.10 and Part 279 State Level Review of Impartial Hearing Officer Determinations Regarding Services for Students with Disabilities

Description of Rule: Clarifies procedures for pendency determinations, school board initiated appeals, cross-appeals and review of interim issues, relating to impartial hearings concerning services for students with disabilities.

Need for Rule: To ensure that impartial hearing officers (IHOs) are made aware of their responsibilities to determine issues of pendency pursuant to statute; to ensure clear identification of the sections of an IHO’s decision being challenged and relief sought; to clarify procedures, including timelines, to be followed when a board of education initiates an appeal from an impartial hearing officer's decision; to clarify procedures for cross-appeals; to conform appeals practice to Federal and State requirements; and to otherwise ensure that disagreements regarding a student’s status during the due process proceeding are addressed in a timely manner.

Legal Basis for Rule: Education Law sections 207, 311, 4403(1) and (3), 4404(2) 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:

Kimberly Young Wilkins

Deputy Commissioner for P12 Instructional Support

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-1954

OFFICE OF ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCES)

Part 247 Vocational Rehabilitation Program

Description of Rule: Vocational rehabilitation program.

Need for Rule: To ensure that the vocational rehabilitation program is conducted according to Federal requirements set forth in the 1992 amendments to the Rehabilitation Act and the corresponding Federal regulations which took effect March 13, 1997.

Legal Basis for Rule: Education Law sections 207 and 1004(1).

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:

Ceylane Meyers-Ruff

Deputy Commissioner

Office of Adult Career and Continuing Education Services (ACCES)

New York State Education Department

89 Washington Ave., Room 575 EBA

Albany, New York 12234

518-474-2714

OFFICE OF OPERATIONS AND MANAGEMENT SERVICES

Section 3.8, 3.9 and 3.15 Chief Operating Officer

Description of Rule: Replaces the term "Executive Deputy Commissioner" with the term "Chief Operating Officer" and designates the chief operating officer as the deputy commissioner of education as specified in Education Law section 101.

Need for Rule: To implement a change in the internal organization of the State Education Department which replaces the position of Executive Deputy Commissioner with the position of Chief Operating Officer.

Legal Basis for Rule: Education Law section 101.

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:

Daniel Morton-Bentley

Counsel and Deputy Commissioner for Legal Affairs

New York State Education Department

State Education Building Room 112

89 Washington Ave., Albany, NY 12234

(518) 474-6400

OFFICE OF CULTURAL EDUCATION

Section 185.5 and 185.12 Local Government Records

Description of Rule: Retention schedule for school districts, boards of cooperative educational services, teacher resources and computer training centers and county vocational education and extension boards.

Need for Rule: To update references to Records Retention and Disposition Schedule ED-1, which was substantially revised from its last issue in 1993-94.

Legal Basis for Rule: Education Law section 207 and Arts and Cultural Affairs Law section 57.25(2).

Section 185.10(a) Local Government Records

Description of Rule: Local government records management.

Need for Rule: To streamline the records management improvement grant application process by removing the requirement that a records management plan be developed and approved before that local government is eligible to apply for such grant.

Legal Basis for Rule: Education Law section 207 and Arts and Cultural Affairs Law section 57.35(1) and (2).

Sections 185.1, 185.7, 185.8, 188.2 and 188.20 Local and State Government Records Management

Description of Rule: Local and state government records management.

Need for Rule: To update language to reflect current technologies, remove two definitions of “digital images” and “source code” that are no longer necessary, add a new and more current definition of “automated information system”, add a new definition of “SARA”, remove the requirement that local government officials must maintain the paper original, or a paper copy, or a microform copy of all electronically imaged records which are scheduled to be retained for ten or more years, and updated the definition of “State Archives and Records Administration”.

Legal Basis for Rule: Education Law section 207 and Arts and Cultural Affairs Law sections 57.05, 57.17, 57.23(2) and (3) and 57.29.

Section 188.21 State Government Records Management

Description of Rule: Updates the schedule of fees to reflect changes in the organization of State government and to establish a process for the Division of the Budget to reduce or waive fees under certain conditions.

Need for Rule: To implement Arts and Cultural Affairs Law section 57.05 (9) and (11)(i) and (j), which authorizes the Commissioner of Education to implement a fee schedule to support records management activities for State government agencies and to promulgate rules and regulations setting forth fees to be paid for records management services.

Legal Basis for Rule: Education Law section 207 and Arts and Cultural Affairs Law section 57.05 (9) and (11)(i) and (j).

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:

Tom Ruller

Assistant Commissioner for the State Archives

State Education Department

9B52 Cultural Education Center

Albany, New York 12230

(518) 474-6926

OFFICE OF THE PROFESSIONS

Section 24.3(c) Waiver of Citizenship/Immunizations Requirement

Description of Rule: Authorizes the Board of Regents to grant time-limited waivers of the statutory citizenship or immunizations status requirements for licensure in medicine.

Need for Rule: To implement statutory amendments to the

provisions of Education Law § 6524(b), which authorizes the Board of Regents to grant time-limited waivers of the citizenship or immigration status requirements for licensure in medicine.

Legal Basis for Rule: Education Law sections 207, 6504, 6506(1) and (10), 6507(4)(b) and 6524(6).

Section 24.7(h) Restoration of License

Description of Rule: Establishes time constraints and fee requirements for the filing of petitions for restoration of professional licenses which have been revoked or surrendered.

Need for Rule: To implement a process for consideration by the Board of Regents of petitions for the restoration of a professional license which was either revoked or surrendered.

Legal Basis for Rule: Education Law sections 207, 6504, 6506(1) and (10), 6508(4) and 6511.

Part 65 Licensure in Podiatry

Description of Rule: Requires all individuals who apply for licensure in podiatry on or after July 1, 2000 to have completed one year of supervised postgraduate hospital training in podiatry, acceptable to the Department.

Need for Rule: To require that podiatrists have adequate clinical experience, given discontinuance of the practical examinations as an evaluative method of determining minimal competence.

Legal Basis for Rule: Education Law sections 207, 6501, 6504, 6506(1), 6507(2)(a) and (3)(a), 7004(3) and (4) and 7007(1)(c).

Section 61.15 Dentistry Continuing Education

Description of Rule: Mandatory continuing education requirements for dentists.

Need for Rule: To implement Education Law section 6604-a for dentists, by establishing standards for what constitutes acceptable formal continuing education, education requirements when there is a lapse in practice, requirements for licensees under conditional registration and standards for the approval of sponsors of continuing education to licensed dentists.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1) and 6604-a(1)(a), (b) and (c), (2), (3), (4) and (5).

Section 61.16 Dental Hygiene

Description of Rule: Mandatory continuing education requirements for dental hygienists.

Need for Rule: To implement Education Law section 6609-a, 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 and standards for the approval of sponsors of continuing education to licensed dental hygienists.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1) and 6609-a(1)(a), (b) and (c), (2),(3),(4) and (5).

Section 63.7 Pharmacy

Description of Rule: Mandatory continuing education requirements for pharmacists.

Need for Rule: To implement Education Law section 6827, by establishing standards for what constitutes acceptable formal continuing education, education requirements when there is a lapse in practice, requirements for licensees under conditional registration and standards for the approval of sponsors of continuing education to licensed pharmacists.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1) and 6827(1)(a), (b) and (c), (2), (3), (4), (5) and (6).

Section 29.10 Public Accountancy

Description of Rule: Unprofessional conduct in the practice of public accountancy.

Need for Rule: To update and clarify the professional standards for public accounting by: (1) conforming the standards for unprofessional conduct in the Regents Rules with those prescribed by national and State standard-setting bodies; (2) limiting instances where accepting contingent fees would constitute unprofessional conduct; (3) eliminating references to outdated pronouncements of the American Institute of Certified Public Accountants; and (4) limiting a licensee’s responsibility to clients for uncompensated work products and clarifying a licensee’s responsibility to provide copies of documents.

Legal basis for Rule: Education Law sections 207, 6504, 6506(1) and (9), 6508(1) and 6509(9).

Sections 29.13 Massage Therapy

Description of Rule: Unprofessional conduct in the profession of massage therapy.

Need for Rule: To clarify and define unprofessional conduct in the practice of massage therapy and to conform regulatory language to statutory terms of massage therapy and massage therapist.

Legal Basis for Rule: Education Law sections 207, 6504, 6506(1) and (9), 6508(1) and 6509(9).

52.15, 78.1, 78.2, 78.3 and 78.4 Massage Therapy

Description of Rule: The rule (1) increases, from 500 to 1000 hours, the amount of instruction and specifies Minimum hours in certain curricular areas for the registration of professional massage therapy programs; (2) ensures that the massage therapy licensing examination measures candidates' knowledge of both western and oriental massage; (3) conforms the regulatory language to that in statute of the terms massage therapy and massage therapist; and (4) ensures that persons licensed as massage therapists on the basis of endorsement of licensure in other jurisdictions meet acceptable education, examination and practice standards.

Need for Rule: To ensure the quality of applicants' preparation for entry level licensure in massage therapy by upgrading educational requirements for professional programs to include subject matter and modalities used in contemporary practice and to ensure the competency of individuals licensed through the endorsement of a license issued by another jurisdiction by establishing education, examination and practice standards.

Legal Basis for Rule: Education Law sections 207, 210, 6501, 6504, 6506(6), 6507(2)(a) and (4)(a), 6508(1), 7801, 7804(2) and 7805(3).

78.4 (b) Massage Therapy

Description of Rule: The rule amended subdivision (b) of section 78.4 to replace the term "grant" with the term "recommend", concerning State Education Department actions taken with respect to licensure by endorsement.

Need for Rule: To provide clarification that the State Education Department recommends to the Regents the endorsement of a license issued by another jurisdiction and that the Regents make the decision concerning whether to grant licensure by endorsement.

Legal Basis for Rule: Education Law sections 207, 6501, 6504, 6506(6), 6507(2)(a) and 7804(2).

Sections 52.10, 72.1, 72.2 and 72.3 Psychology

Description of Rule: The rule: (1) revises the curricular requirements for the registration of professional programs in psychology to conform the education requirements to nationally accepted standards; (2) consolidates and clarifies the experience requirement; (3) admits to the licensing exam, applicants who have completed the required doctoral education and one year of supervised experience; and (4) corrects the name of the exam provider.

Need for Rule: To ensure the quality of applicants' preparation for entry-level licensure in psychology by upgrading educational requirements for professional programs.

Legal Basis for Rule: Education Law sections 207, 210, 6501, 6504, 6507(2)(a) and (4)(a), 6508(1), 7603(2), (3) and (4) and 7605(2) and (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:

Sarah S. Benson

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) 474-1431

[email protected]

OFFICE OF HIGHER EDUCATION

85.1 and 85.2 Mentor-Teacher Internship Program

Description of Rule: The rule (1) makes the requirements for and limitations on interns and mentors who participate in the Mentor-Teacher Internship Program and allowable costs for that program consistent with changes in statutory requirements; (2) removes an unnecessary reference to licenses issued by the City School District of the City of New York; and (3) clarifies that the budget for the program may include up to 10 percent of the salary of each mentor per mentor-intern relationship.

Need for Rule: To conform the Commissioner's Regulations with the requirements and limitations for interns and mentors set forth in Education Law section 3033, as amended by section 117-b of Part A of section 1 of Chapter 436 of the Laws of 1997.

Legal Basis for Rule: Education Law sections 207 and 3033(4) and (5) and section 117-b of Part A of section 1 of Chapter 436 of the Laws of 1997.

145-9 - Merit Scholarships

Description of Rule: Establishes criteria, definitions and procedures for the Merit Scholarships for Academic Excellence Program, including selection criteria for scholarship nominees, definition of high schools that will receive an allocation of scholarship awards, and reporting requirements for the high schools.

Need for Rule: To implement the requirements of Education Law section 605-a and 670-b, as promulgated by sections 11 and 12 of Chapter 309 of the Laws of 1996.

Legal Basis for Rule: Education Law section 207, 605-a(1)(a) and (b) and 670-b(1) and sections 11 and 12 of Chapter 309 of the Laws of 1996.

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 P. Murphy

Deputy Commissioner for 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

1. INTRODUCTION

Pursuant to Section 207 of the State Administrative Procedure Act, Review of Existing Rules, the Department (as defined below) must review, after five years and at five-year intervals thereafter, rulemakings adopted on or after January 1, 1997. 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” regarding rules adopted 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 rules. For references to rules adopted on or after October 3, 2011, “Department” and “Superintendent” mean, respectively, the Department of Financial Services and the Superintendent of Financial Services.

Notice is hereby given of the following rules that the Department will review this year to determine whether they should be continued or modified. These rules were adopted in 2019, 2017, 2012, 2007, 2002 and 1997. These rules, as published in the State Register, contain a regulatory flexibility analysis, a rural area flexibility analysis or a job impact statement. If one or more of those analyses was not filed, a statement setting forth why one or all those analyses was unnecessary was published in the State 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.

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

2. INSURANCE RULEMAKINGS

The following Insurance rulemakings were adopted in 2019:

• Addition of new Part 6 (Insurance Regulation 195) (Electronic Filings and Submissions) to Title 11 NYCRR, effective May 25, 2020.

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

The regulation requires an insurer or other entity subject to the regulation to make certain filings or submissions electronically, such as insurance fraud prevention plans and reports, rates and forms, annual and quarterly statements and supplements, and holding company and parent corporation applications and reports. Filers for whom electronic filing would cause a hardship may request from the Superintendent an exemption from this regulation.

• Consolidated Rulemaking Amending Part 28 (Insurance Regulation 42) (Professional Bail Agents), Part 33 (Insurance Regulation 120) (Managing General Agents), and Part 66 (Insurance Regulation 76) (Surety Bond Forms – Waiver of the Filing and Prior Approval Requirements of Section 2317 of the Insurance Law) of Title 11 NYCRR, effective March 19, 2020.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 2307, 2314, and Article 68.

The amendments to the regulations provide greater protection to consumers and raise the standards of integrity in the bail business. The amendment to 11 NYCRR 28 (Insurance Regulation 42) requires, among other things, a bail agent to maintain a bail register; a bail agent to issue a receipt upon collecting and, if applicable, returning premium and collateral; an insurer, charitable bail organization (“CBO”), and bail agent to be liable for the return of all collateral received; a bail agent to prominently display in a headquarters location and each satellite office the license of the bail agent and any supervising person responsible for the place of business and a sign that states that a complaint may be filed with the Department; and a bail agent to provide certain disclosures to a potential indemnitor before the indemnitor signs any agreement. The amendments also codify Gevorkyan v. Judelson, 29 NY 3d 452 (2017), which held that the full premium paid for a bail bond must be returned if the principal is not released from custody.

The amendment to 11 NYCRR 33 (Insurance Regulation 120) defines “managing general agent” to mean any person or business entity that supervises or manages, on behalf of an insurer, bail agents appointed by the insurer, other than a person who is a full-time employee or officer of the insurer. The amendment to 11 NYCRR 66 (Insurance Regulation 76) requires insurers and CBOs to file, for the approval of the Superintendent, all contracts and other forms that are signed by or provided to the indemnitor or principal, including the bail bond form.

• Amendment to Part 58 (Insurance Regulation 193) (Minimum Standards for Form, Content and Sale of Medicare Supplement and Medicare Select Insurance, Including Standards of Full and Fair Disclosure) of Title 11 NYCRR, effective January 1, 2020.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 3201, 3216, 3217, 3218, 3221, 3231, and 4235 and Article 43.

The amendment requires insurers issuing Medicare supplement insurance policies to conform with the revised National Association of Insurance Commissioners (“NAIC”) model regulation for Medicare supplement insurance, as required by 42 U.S.C. Section 1395ss of the federal Social Security Act.

• Amendment to Part 52 (Insurance Regulation 62) (Minimum Standards for the Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure) of Title 11 NYCRR, effective January 1, 2020.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Sections 301, 3216, 3217, 3221, and 4303; Chapter 25 of the Laws of 2019; and Part M of Chapter 57 of the Laws of 2019.

The amendment establishes a process, including timeframes, for an insured, an insured’s designee, or an insured’s health care provider to request coverage of a non-covered contraceptive drug, device, or product in conformity with newly enacted Ch. 25 of the Laws of 2019 and Part M of Ch. 57 of the Laws of 2019.

Part 52 was amended in 2020, effective April 22, 2021 (State Register December 23, 2020), to require that health insurance identification cards must include the names and identification numbers of the insured and dependents; the name of the issuer providing the coverage; the product or plan name; important telephone numbers; the issuer’s website address; and cost-sharing information. Additionally, to eliminate confusion regarding self-funded plans, the amendment required that health insurance identification cards must include a statement identifying whether the coverage is insured by the issuer or administered by the issuer through a self-funded arrangement.

Part 52 was amended in 2020, effective July 28, 2020 (State Register April 29, 2020), to implement Subpart D of Part J of Chapter 57 of the Laws of 2019, which amended Insurance Law Section 2607 and added Insurance Law Sections 3243 and 4330, by clarifying that discrimination prohibited by Insurance Law Sections 2607, 3243, and 4330 includes certain activities, such as including a policy clause that purports to deny, limit, or exclude coverage based on an insured’s sexual orientation, gender identity or expression, or transgender status or designating an insured’s sexual orientation, gender identity or expression, or transgender status as a pre-existing condition for the purpose of denying, limiting, or excluding coverage. The amendment also implements Insurance Law Sections 3216(i)(17)(E), 3221(l)(8)(E) and (F), and 4303(j)(3) by clarifying that coverage for preexposure prophylaxis with effective antiretroviral therapy to persons who are at high risk of HIV acquisition is included within preventive care and screenings and specifying the timing for coverage of preventive care and screenings.

Part 52 was amended in 2021, effective December 22, 2021, to clarify that the meaning of “telehealth” includes audio-only visits (e.g., telephone calls) and that, for the purpose of telehealth, an insurer may engage in reasonable fraud, waste, and abuse detection efforts, including efforts to prevent payments for services that do not warrant separate reimbursement.

• Amendment to Part 350 (Insurance Regulation 140) (Continuing Care Retirement Communities) of Title 11 NYCRR, effective December 27, 2019.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Section 1119; and Public Health Law Sections 4604(4)(a), 4607, and 4611.

The amendment modernizes the parameters of the framework for the financial oversight of Continuing Care Retirement Communities (“CCRCs”) to better fit the needs of both CCRCs and the Department by broadening the range of permitted investments for CCRCs; by clarifying the oversight of numerous financial transactions between CCRCs and affiliated entities; by adding an annual financial reporting requirement related to the transfer or sale of capital assets; and by adding a reference to the new type of optional contract, the continuing care at home contract.

• Amendment to Part 94 (Insurance Regulation 56) (Valuation of Individual and Group Accident and Health Insurance Reserves) of Title 11 NYCRR, effective November 27, 2019.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 1303, 1304, 1305, 1308, 4117, 4217, 4310, and 4517.

The amendment adopts the 2016 Cancer Claim Cost Valuation Tables (2016 CCCVT) for first occurrence and hospitalization cancer expense benefit contracts issued on or after January 1, 2019, or if optionally elected, on or after January 1, 2018, replacing the 1985 NAIC Cancer Claim Cost Tables.

• Amendment to Part 41 (Insurance Regulation 143) (Accelerated Payment of the Death Benefit Under a Life Insurance Policy) of Title 11 NYCRR, effective November 27, 2019.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 1113, 1304, 3201, 3209, 3230, 4217 and 4517.

The amendment implements statutory amendments made by the Laws of 2017 Ch. 300, Laws of 2014 Ch. 465, Laws of 2014 Ch. 448, and Laws of 2010 Ch. 563, related to the acceleration of life insurance death benefits, including an amendment that an insurer issuing accelerated death benefits under Insurance Law Section 1113(a)(1)(D) is no longer required to be a qualified long-term care insurance carrier under Internal Revenue Code section 4980C (26 U.S.C. section 4980C).

• 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 11, 2019.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 1120, 3201, 3216(i)(17), 3217, 3217(d), 3217-g, 3221(l)(8), 4303(j), and 4306-f.

The amendment requires an insurance policy or contract, including a child health insurance plan, policy or contract, that provides coverage for direct access to maternal depression screening and referral performed by a provider of obstetrical, gynecologic, or pediatric services of the mother’s choice, to provide coverage for the screening and referral under the mother’s policy and also under the infant’s policy if the infant is covered under a different policy than the mother and a pediatric provider performs the screening and referral.

Additional amendments were made to 11 NYCRR 52 since 2019 as described above.

• Amendment to Part 68 (Insurance Regulation 83) (Charges for Professional Health Services) of Title 11 NYCRR, effective August 7, 2019.

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

The amendment delayed the effective date of the Workers’ Compensation fee schedule increases for no-fault reimbursement.

The regulation was amended in 2020, effective April 22, 2020, to implement Chapter 59, Part III, Section 19 of the Laws of 2019, which amended Insurance Law Section 3420(f) to require that any policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance and use of an altered motor vehicle or stretch limousine, having a seating capacity of eight or more passengers and used in the business of carrying or transporting passengers for hire, provide supplementary uninsured/underinsured (“SUM”) motorist coverage for bodily injury in an amount of a combined single limit of $1,500,000 because of bodily injury or death of one or more persons in any one accident. The amendment also added a definition of “altered motor vehicle” or “stretch limousine” consistent with Department of Motor Vehicles regulation 15 NYCRR Section 79.20(f)(2).

• Amendment to Part 103 (Insurance Regulation 213) (Principle-Based Reserving) of Title 11 NYCRR, effective May 15, 2019.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 4217, and 4517.

The amendment clarifies that the Superintendent may require a life insurer, including a fraternal benefit society issuing life insurance or annuity certificates, to change an assumption or method that in the Superintendent’s opinion is necessary to comply with the NAIC valuation manual adopted by the Superintendent and Section 4217(g), and clarifies that a life insurer must adjust reserves as the Superintendent requires.

The regulation was amended in 2020, effective February 26, 2020. The NAIC had revised its model Standard Valuation Law in 2009 to establish principle-based reserving (the funds set aside by insurers to pay insureds’ claims). Beginning January 1, 2020, the 2009 revisions to the NAIC’s Standard Valuation Law would become an accreditation standard. The amendment conformed to the 2009 revisions to the NAIC’s Standard Valuation Law to comply with the NAIC’s accreditation standards.

The regulation was amended in 2021, effective March 31, 2021, to clarify, and make certain adjustments to, the regulation and to prescribe additional minimum standards for valuing statutory reserves that in the Superintendent’s opinion were necessary to comply with the valuation manual to best serve the policyholders of New York State by ensuring that the minimum standards for valuing statutory reserves are set at a level appropriate for the payment of future claims.

• Addition of new Part 364 (Insurance Regulation 214) (Paid Family Leave Risk Adjustment Fund) of Title 11 NYCRR, effective May 15, 2019.

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

The regulation created the fund required to implement the risk adjustment mechanism referred to in Insurance Law Section 4235(n) and established by Part 363 of 11 NYCRR.

The following Insurance rulemakings were adopted in 2017:

• 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.

The amendment addresses several issues that had 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 amendment 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 amendment 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.

• Amendment to 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.

The amendment to Insurance Regulation 150 clarifies 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 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.

The 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 that: (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.

The regulation was amended in 2019 and 2020 as described above.

• Amendment to Part 420 (Insurance Regulation 169) (Privacy of Consumer Financial and Health Information General Provisions) of Title 11 NYCRR, effective December 20, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Sections 301, 1505, 1608, 1712, and 3217, and Article 24; and in accordance with the provisions of 12 U.S.C. Section 1831x, 15 U.S.C. Sections 6801(b), 6802, 6803, 6805(b), 6805(c) and 6807, and 15 U.S.C. Chapter 94.

The amendment incorporates changes to federal privacy laws regarding information maintained by financial institutions. Under the Gramm-Leach Bliley Act (“GLBA”), financial institutions must provide certain notices to consumers and customers regarding the use of personal information. The Fixing America’s Surface Transportation (“FAST”) Act, which was enacted into law on December 4, 2015, eliminated the requirement for financial institutions other than those in the insurance industry to provide GLBA annual notices under certain limited circumstances. Under GLBA, each individual state makes its own conforming amendments to implement the change for the insurance industry. The NAIC proposed the changes for all insurance regulators to make. The amendment makes those exceptions applicable to licensees (as that term is defined in the regulation) under the Insurance Law that are subject to the regulation. The amendments eliminate a costly and duplicative requirement.

• Amendment to Part 80-1 (Insurance Regulation 52) (Holding Companies) of Title 11 NYCRR, effective December 20, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302, and Insurance Law Sections 301, 1502(b) and 1506.

The rulemaking amends item 3 of Section 80-1.6 to fix incorrect references to a “controlled person” and to clarify that an executive officer or director of a corporation may make a written application to the Superintendent for an exemption from the requirement that the person furnish a consolidated balance sheet as of the end of the applicant’s fiscal year and related consolidated statements of income and surplus for the year then ended on the ground that submitting the documents is not pertinent in determining the financial condition of the corporation, of which the individual is an executive officer or director.

• 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.

Insurance Regulation 208 was adopted 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.

The Department is working on amending Section 228(a)(1)-(3) and (d) in accordance with Matter of New York State Land Tit. Assn., Inc. v. New York State Dep’t of Fin. Svcs., 169 A.D.3d 18 (1st Dep’t 2019).

• 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 Health of the State of New York (“Commissioner”) adopted a regulation (10 NYCRR 1003) (“ACO Regulation”) establishing 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.

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

• Consolidated Amendment to 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”) regarding transportation network companies (“TNCs”), which was signed into law on April 10, 2017, took effect on June 29, 2017, 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 uses drivers who 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 must establish the provisions for policies satisfying the new financial responsibility requirements of Article 44-B.

The amendments were 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.

Insurance Regulation 35-D was amended in 2018, effective November 25, 2018, to conform with 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. The amendment clarifies that SUM coverage must not provide fewer benefits than mandatory uninsured motorist coverage when a combined single limit policy is issued. In addition, the 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 to “AAA/American Arbitration Association” to read “designated organization.” The amendment also incorporates various editorial revisions to the prescribed endorsement and other portions of the regulation to clarify the intent and application of the coverage.

The regulation was amended again in 2020, effective March 25, 2020, to conform to a legislative amendment to Insurance Law Section 3420(f) by requiring any policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance, or use of an altered motor vehicle or stretch limousine, having a seating capacity of eight or more passengers and used in the business of carrying or transporting passengers for hire, provide SUM coverage for bodily injury in an amount of a combined single limit of $1,500,000 because of bodily injury or death of one or more persons in any one accident.

Insurance Regulation 35-E was amended in 2018, effective December 19, 2018, to extend, until July 1, 2019, the requirement that a group policy provide that the group policy is primary over a policy issued in satisfaction of Vehicle and Traffic Law Article 6 to give insurers additional time to revise and implement their new policy forms. The amendment also changed an incorrect citation from 11 NYCRR 60-3.3(g)(2) to 11 NYCRR 60-3.3(h)(2).

Insurance Regulation 68-C, as part of a consolidated consensus rulemaking, was amended in 2021, effective June 9, 2021, to repeal Form NF 10 of Appendix 13 and add a new Form NF 10 to Appendix 13 to remove the wording “Financial Frauds and Consumer Protection Division” from the Department’s address and to update the address of the Department’s Buffalo office.

• Consolidated Amendment to 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.

The amendments were made 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.

Part 20 (Insurance Regulations 9, 18 and 29) was amended in 2021, effective November 12, 2021, to require insurance producers (including title insurance agents) and resident public adjusters, during the two-year licensing term, to obtain at least one ethics and professionalism continuing education (“CE”) credit and at least one diversity, inclusion, and elimination of bias CE credit. The new amendment requires certain insurance producers to earn at least one flood insurance CE credit and at least three enhanced flood insurance CE credits if they sell flood insurance through the National Flood Insurance Program. Also, during the first two years an insurance producer or public adjuster is licensed, the amendment requires at least one credit for an overview of the New York Insurance Law.

• 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.

The 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.

Part 52 was amended in 2018, effective October 3, 2018, to require every individual and small group accident and health insurance policy or contract (other than a grandfathered health plan) delivered or issued for delivery in New York that provides hospital, surgical, or medical expense coverage and every student accident and health insurance policy or contract delivered or issued for delivery in New York to continue providing coverage of at least the enumerated ten categories of essential health benefits (“EHB”) if the EHB provisions in 42 U.S.C. § 18022 and 45 C.F.R. 156.100 et seq. are no longer in effect or are modified as determined by the Superintendent.

In addition, with respect to an individual or small group accident and health insurance policy that provides hospital, surgical, or medical expense coverage and a student accident and health insurance policy or contract delivered or issued for delivery in New York State, the amendment reaffirms that an issuer is prohibited from discriminating because of race, color, creed, national origin, sex, age, marital status, disability, or a preexisting condition and to clarify the scope of such prohibitions. Part 52 was amended in 2018, effective November 25, 2018 (State Register September 26, 2018), to provide that every insurer that delivers or issues for delivery in this state an accident and health insurance policy that provides hospital, surgical, or medical expense coverage and provides coverage for medication for the detoxification or maintenance treatment of a substance use disorder shall include in the policy processes that allow a formulary exception and access to clinically appropriate medication for the detoxification or maintenance treatment of a substance use disorder not otherwise covered by the policy. Part 52 was amended in 2018, effective October 31, 2018, to establish minimum standards for volunteer firefighter enhanced cancer insurance policies that, pursuant to General Municipal Law Section 205-cc, every legally organized fire district, department or company in this state must provide and maintain for each eligible volunteer firefighter unless the fire district, department or company self-funds the benefits.

Additional amendments made to Part 52 are discussed above.

• 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).

The 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.

Additional amendments made to Part 52 are described above.

• Amendment to Part 83 (Insurance Regulation 172) (Financial Statement Filings and Accounting Practices and Procedures) of Title 11 NYCRR, effective August 9, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Sections 107(a)(2), 301, 307, 308, 1109, 1301, 1302, 1308, 1404, 1405, 1407, 1411, 1414, 1501, 1505, 3233, 4117, 4233, 4239, 4301, 4310, 4321-a, 4322-a, 4327 and 6404; Public Health Law Sections 4403, 4403-a,

4403-c(12) and 4408-a; Chapter 599 of the Laws of 2002 and Chapter 311 of the Laws of 2008.

The regulation incorporates by reference the March 2017 edition of the Accounting Practices and Procedures Manual (“AP&P Manual”) published by the NAIC to enhance the consistency of the accounting treatment of assets, liabilities, reserves, income, and expenses, and to set forth the accounting practices and procedures to be followed in completing annual and quarterly financial statements required by law.

The regulation was amended in 2020, effective December 30, 2020, to adopt the March 2020 edition of the AP&P Manual; to except from the adoption of the AP&P Manual the guidance prescribed in subparagraphs 4.a. and 4.b. of SSAP No. 26R, “Bonds”, the third sentence of Footnote 1 of SSAP No. 97 and the guidance prescribed in paragraph 11, and Footnote 1 of SSAP No. 72, “Surplus and Quasi-Reorganizations”; and to make various technical corrections.

The regulation was amended in 2021 as part of a consolidated rulemaking that also adopted new Part 77 to 11 NYCRR (Insurance Regulation 220). The rulemaking requires that, until January 1, 2027, the shares of an exchange traded fund (“ETF”), the portfolio of which consists of fixed income securities, cash, and cash equivalents, be treated as bonds for the purpose of a domestic insurer’s risk-based capital (“RBC”) report if the ETF meets certain criteria. The rulemaking also requires that shares of an ETF that meets the criteria set forth in 11 NYCRR Section 77.2(a) be accounted for as set forth in the AP&P Manual, including with respect to the asset valuation reserve and interest maintenance reserve, with the exception that the book adjusted carrying value of such shares must be set equal to fair value (and not systematic value). The rulemaking further requires a foreign insurer to calculate its RBC consistent with 11 NYCRR 77 and to report that RBC in the New York supplement to the annual financial statement. The rulemaking also adopts the March 2021 edition of the AP&P Manual.

• 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.

The rule incorporates Section 2A of the 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 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.

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

The amendment clarifies an inadvertent misinterpretation to ensure that the SUM coverage will not provide fewer benefits than the mandatory uninsured motorist coverage. In addition, the 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, the 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 35-d was amended in 2018 and 2020 as described above.

• Amendment to Part 95 (Insurance Regulation 56) (Valuation of Individual and Group Accident and Health Insurance Reserves) of Title 11 NYCRR, effective July 19, 2017.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 1303, 1304, 1305, 1308, 4117, 4217, 4310, and 4517.

The amendment adopted the 2013 Individual Disability Income Valuation Table (“2013 IDI Valuation Table”) for individual disability income contracts issued on or after January 1, 2020, or if optionally elected, on or after January 1, 2017, replacing both the 1985 Commissioners Individual Disability Tables A and the 1985 Commissioners Individual Disability Tables B. The amendment also adopted the 2013 IDI Valuation Table for non-worksite individual disability income claims incurred on or after January 1, 2020, or if optionally elected, on or after January 1, 2017, replacing the 1985 Commissioners Individual Disability Tables C.

The regulation was amended in 2019 as described above.

• 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; Insurance Law Sections 301, 3201, 3217, 3221, and 4235; and Workers’ Compensation Law (“WCL”) Sections 204(2)(a), 208(2) and 209(3)(b).

The 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). The 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.

• Consolidated Rulemaking Amending Part 147 (Insurance Regulation 98) (Valuation of Life Insurance Reserves) and Part 179 (Insurance Regulation 100) (Recognition of the 2001 CSO Mortality Table and the 2017 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) to Title 11 NYCRR, effective May 17, 2017.

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

The rulemaking specified that the prior two amendments to Insurance Regulations 147 and 179 only applied to policies issued on or after January 1, 2015 and prior to January 1, 2017, or on or after January 1, 2015 and prior to January 1, 2018 with written notification provided to the Superintendent by June 30, 2017. The rulemaking also adopted the 2017 CSO Mortality Table, the table adopted by the NAIC as the minimum valuation standard for applicable life insurance policies issued on or after January 1, 2020, or if the insurer optionally elected, on or after January 1, 2017.

The prior two amendments to Insurance Regulations 147 and 179 had been implemented to reflect the emerging mortality experience that had significantly improved since the implementation of the 2001 CSO Mortality Table. The mortality improvement included in the prior amendments was no longer needed since it was directly incorporated within the 2017 CSO table. Allowing the prior two amendments to Insurance Regulations 149 and 179 to remain along with the adoption of the 2017 CSO Mortality Table would have caused double counting of the mortality improvement.

The rulemaking was amended in 2018, effective January 2, 2019, to grant insurers the additional time necessary to update administrative and valuation systems prior to any forthcoming changes to minimum reserve standards by statutory amendment.

The rulemaking was amended in 2020, effective April 22, 2020, to allow insurers that chose to continue using the 2015 reserve relief procedures to use them for one more year of policy issues, until they had to update their reserve procedures to comply with new Insurance Law Section 4217(g).

• Consolidated Rulemaking Amending Part 65-3 (Insurance Regulation 68-C) (Regulations Implementing the Comprehensive Motor Vehicle Insurance Reparations Act) and Part 216 (Insurance Regulation 64) (Unfair Claims Settlement Practices and Claim Cost Control Measures) of Title 11 NYCRR, effective February 1, 2017.

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

The amendment updated the address of the Department’s Long Island office referenced in Part 216 and NYS Form NF-10 to Appendix 13 (Part 65-13).

• 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.

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

The following rulemakings were adopted in 2012:

• Amendment to Part 362 (Insurance Regulation 171) (The Healthy New York Program) of Title 11 NYCRR, effective November 28, 2012.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Sections 301, 1109, 3201, 3216, 3217, 3221, 4235, 4303, 4304, 4305, 4326 and 4327.

This amendment permitted existing Healthy New York enrollees to keep their current coverage option. New applicants, for coverage effective January 1, 2012 or later, were limited to Healthy New York’s high deductible health plans only. This approach struck a balance in protecting existing enrollees from unaffordable rate increases while maintaining an affordable option for those purchasing coverage.

• Amendment to Part 16 (Insurance Regulation 86) (Special Risk Insurance) of Title 11 NYCRR, effective November 7, 2012.

Statutory Authority: Financial Services Law Sections 202, 301 and 302; Insurance Law Sections 301, 307 and 308 and Article 63.

The free trade zone enables insurers to make certain types of insurance available more quickly without prior approval or review by the Superintendent to facilitate more streamlined economic development in New York. To advance this objective, the Department reduced one of the premium thresholds for Class 1 risks and added more insurance risks that may be written as Class 2 risks in the free trade zone. The rule was also amended to define various risks and exposures that were previously added to the Class 2 risk list by public notice, pursuant to Section 16.8 of the regulation. Additionally, the parameters established for writing risks in the ‘‘free trade zone’’ had not been revised in several years. This amendment simplified certain of the calculations set forth in the current rule.

Section 16.4 was amended, effective April 2, 2014, to remove certain requirements to conform with the revisions then made to Insurance Law Section 6303(a)(3) by Chapter 75 of the Laws of 2013. The rulemaking also made technical corrections to conform to a statutory amendment, correct a citation and fix an error that was made in an earlier amendment to the regulation.

The rule was amended again in 2018, effective May 16, 2018, to incorporate Class 2 Risk changes that the Department had introduced by Public Notice in May 2017.

• Amendment to Part 39 (Insurance Regulation 144) (Minimum Standards for the New York State Partnership for Long-Term Care Program) of Title 11 NYCRR, effective June 1, 2012.

Statutory Authority: Financial Services Law Sections 202, 301 and 302; Insurance Law Sections 301, 1117, 3201, 3217, 3221, 3229, 4235, 4237 and Article 43; and Social Services Law Section 367-f.

The amendment revised minimum standards for inflation protection to add a new plan and add disclosure requirements relating to reciprocity.

The regulation was amended in 2013, effective January 1, 2014, to reflect in dollar amounts the minimum daily benefit amounts from 2014 to 2023 that New York State Partnership insurers must use.

The regulation was amended in 2013, effective June 5, 2013, as part of a consolidated rulemaking to revise references that became outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services, and made certain other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

• Amendment to Part 83 (Insurance Regulation 172) (Financial Statement Filings and Accounting Practices and Procedures) of Title 11 NYCRR, effective May 2, 2012.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Sections 107(a)(2), 301, 307, 308, 1109, 1301, 1302, 1308, 1404, 1405, 1407, 1411, 1414, 1501, 1505, 3233, 4117, 4233, 4239, 4301, 4310, 4321-a, 4322-a, 4327 and 6404; Public Health Law Sections 4403, 4403-a, 4403-c(12) and 4408-a; Chapter 599 of the Laws of 2002; and Chapter 311 of the Laws of 2008.

The regulation incorporates by reference the March 2017 edition of the AP&P Manual published by the NAIC to enhance the consistency of the accounting treatment of assets, liabilities, reserves, income, and expenses, and to set forth the accounting practices and procedures to be followed in completing annual and quarterly financial statements required by law.

The regulation was amended in 2013, effective June 5, 2013, as part of a consolidated rulemaking to revise references that became outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services, and made certain other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

The regulation was amended in the following years to adopt the most recent AP&P Manual in use at the time: 2013, effective December 4, 2013; twice in 2014, effective April 2, 2014 and November 19, 2014; in 2015, effective September 23, 2015; and in 2016, effective November 9, 2016. The amendment effective November 19, 2014 also updated references to the AP&P Manual’s statements of statutory accounting principles (“SSAP”) 10R to read SSAP 101, to reflect the same changes that were made by the NAIC as of January 1, 2012. The rule also makes technical corrections to Section 83.4(i).

The regulation also was amended in 2017, 2020 and 2021 as described above.

• Amendment to Part 26 (Insurance Regulation 25) (Independent Adjusters) of Title 11 NYCRR, effective April 25, 2012.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301 and 2108.

The regulation was amended to authorize the licensing of independent adjusters for multi-peril crop insurance.

The regulation was amended in 2013, effective June 5, 2013, as part of a consolidated rulemaking to revise references that became outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services, and made certain other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

• Amendment to Part 16 (Insurance Regulation 86) (Special Risk Insurance) of Title 11 NYCRR, effective April 11, 2012.

Statutory Authority: Financial Services Law Sections 202, 301 and 302; Insurance Law Sections 301, 307 and 308 and Article 63.

Chapter 490 of the Laws of 2011 amended Article 63 of the Insurance Law by introducing Class 3 risks to be written in New York by insurers licensed to write special risk insurance for “large commercial insureds,” as defined in the amendment, provided that the insurers make certain informational filings with the Superintendent. The addition of the Class 3 risks was intended to enhance the ability of insurers to underwrite large and unusual risks in the New York market, increase speed to market for certain insurance products not currently exempted, and facilitate more streamlined economic development in New York, as existing and emerging businesses that need to insure large or unusual risks would have quick access to the insurance they need. The rule set forth the requirements for writing Class 3 risks and the procedures for insurers to make the required filings as stated in Chapter 490.

The regulation was amended in 2013, effective June 5, 2013, as part of a consolidated rulemaking to revise references that became outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services, and made certain other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

The regulation was amended in 2014, effective April 2, 2014, to amend Section 16.4 to remove certain requirements in order to conform Section 16.9 with the revisions that had been made to Insurance Law Section 6303(a)(3) by Chapter 75 of the Laws of 2013. The rulemaking also made some technical corrections.

The regulation was amended in 2018, effective May 16, 2018, to update Section 16.12(e) to incorporate changes and additions to class 2 risks that were introduced by Public Notice published on May 10, 2017. In addition, Class Code 2-04002 (Federal Crime Program-Excess on Commercial Risks) were deleted since the program was defunct.

• Amendment to Part 99 (Insurance Regulation 151) (Valuation of Annuity, Single Premium Life Insurance, Guaranteed Interest Contract and Other Deposit Reserves) of Title 11 NYCRR, effective April 11, 2012.

Statutory Authority: Financial Services Law Sections 202, 301, and 302 and Insurance Law Sections 301, 1304, 4217 and 4517.

The Insurance Law prescribes the mortality tables and interest rates to be used for calculating reserve funds necessary in relation to the obligations made to policy or contract holders. This amendment was adopted to allow the use of substandard annuity mortality tables in valuing impaired lives under individual single premium immediate annuities. Use of a substandard annuity mortality table or the use of a constant addition to the standard mortality rate allowed the insurer to recognize the impaired health of the annuitant, which may benefit consumers with impaired health by enabling insurers to keep costs at a lower level because they would not need to hold standard reserves.

Insurance Regulation 151 was amended effective August 27, 2014 to prescribe a new individual annuity mortality table to be used when setting reserves that are held for individual annuities and pure endowments issued or purchased on or after January 1, 2015.

• Addition of Part 381 (Insurance Regulation 198) (Life Settlements) to Title 11 NYCRR, effective March 21, 2012.

Statutory Authority: Financial Services Law Sections 202, 301 and 302; Insurance Law Sections 301 and Sections 2137, 7803, 7804 and 7817 as added by the Laws of 2009, Chapter 499, Section 21.

Sections 2137, 7803, and 7804 of the Insurance Law require the Superintendent to establish the application filing fees for licensing of life settlement providers and brokers; the registration of life settlement intermediaries; and financial accountability requirements for life settlement providers. The amendment, which establishes license and registration fees and financial accountability requirements, was adopted to implement the life settlement legislation.

• Amendment to Part 54 (Insurance Regulation 77) (Variable Life Insurance) of Title 11 NYCRR, effective March 14, 2012.

Statutory Authority: Financial Services Law Sections 202, 301 and 302 and Insurance Law Sections 301, 3201, and 4240.

The amendment added provisions necessary to accommodate the mechanics of private placement investments in variable life insurance policies and allowed consumers who meet the federal definition of “accredited investor” or “qualified purchaser” as incorporated by reference in the regulation, to purchase private placement variable life insurance policies. The amendment also required insurers to inform consumers that, due to the illiquid nature of the investment options, the payment of the death benefit, the cash surrender value, policy loans, partial withdrawals, or partial surrenders, as applicable, may be delayed. The statement must also advise the applicant to refer to the policy for further details on any delay of payments.

The regulation was amended in 2013, effective June 5, 2013, as part of a consolidated rulemaking to revise references that became outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services, and made certain other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

• Addition of Subpart 151-6 (Insurance Regulation 119) (Workers’ Compensation Insurance) to Title 11 NYCRR, effective March 7, 2012.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Section 301; and Workers’ Compensation Law Sections 15(8)(h)(4) and 151(2)(b).

The amendment was adopted to standardize the basis upon which the workers’ compensation assessments were calculated to eliminate any discrepancy between the amount that an insurer collected from employers and the amount that an insurer remitted to the Workers’ Compensation Board.

The regulation was amended in 2013, effective June 5, 2013, as part of a consolidated rulemaking to revise references that became outdated as a result of the consolidation of the New York State Insurance and Banking Departments into a new Department of Financial Services, and made certain other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

The regulation was amended in 2016, effective November 23, 2016, to implement Part A of Chapter 60 of the Laws of 2014 by requiring that for each workers’ compensation insurance policy issued or renewed in New York State, an insurer provide a credit to a health care facility that implements and maintains a safe patient handling program that meets the requirements of Public Health Law § 2997-(k)(2). The amount of the credit and the manner in which it is applied must be made in accordance with the approved manual filed by the rate service organization (“RSO”) of which the insurer is a member. The rule also required every workers’ compensation RSO to file certain information with the Superintendent by June 1 of each year so that the Superintendent could collect information for the statutorily-required reports due to the Legislature in 2018 and 2020.

• Consolidated Rulemaking Amending Part 147 (Insurance Regulation 98) (Valuation of Life Insurance Reserves and Recognition of the 2001 CSO Mortality Table and the 2017 CSO Mortality Table for Use in Determining Minimum Reserve Liabilities) and Part 179 (Insurance Regulation 100) (Nonforfeiture Benefits and Recognition and Application of Preferred Mortality Tables for Use in Determining Minimum Reserve Liabilities) to Title 11 NYCRR, effective March 7, 2012.

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

The rulemaking specified the dates of applicability of the previous consolidated amendments to Insurance Regulations 147 and 179 and adopted the 2017 CSO Mortality Table as the minimum valuation standard for applicable life insurance policies issued on or after January 1, 2020 (or if the insurer optionally elected, on or after January 1, 2017), adopted by the NAIC in April 2016.

The rulemaking was amended in 2014, effective January 15, 2014, to delete the January 1, 2014 sunset provisions in Section 98.9(c)(viii), which permit insurers to use certain prescribed lapse assumptions that would make the section inoperable with respect to policies written on or after January 1, 2014.

The rulemaking was amended again in 2014, effective December 10, 2014, to enable life insurers to lower their reserves for term life policies.

The rulemaking was amended in 2015, effective April 1, 2015, to modernize the current regulatory scheme with respect to universal life insurance with secondary guarantee reserves.

The rulemaking was amended in 2018, effective January 2, 2019, and in 2020, effective April 22, 2020, as described above.

The following rulemakings were adopted in 2007:

• Amendment to Part 100 (Insurance Regulation 179) (Recognition of the 2001 CSO Mortality Table for Use in Determining Minimum Reserve Liabilities and Non-forfeiture Benefits and Recognition and Application of Preferred Mortality Table for Use in Determining Minimum Reserve Liabilities) of Title 11 NYCRR, effective December 26, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1304, 4217, 4218, 4221, 4224, 4240, and 4517, and Articles 24 and 26.

Insurance Regulation 179 was amended to recognize and permit the use of the 2001 CSO preferred class structure mortality table for preferred lives for individual life insurance and group life insurance products sold to individuals by certificate with premium rates guaranteed from issue for at least two years in accordance with Insurance Law Sections 4217 and 4517.

Insurance Regulation 179 was amended effective March 16, 2011, to extend the use of the 2001 CSO Preferred Structure Mortality Table to policies issued on or after January 1, 2004, and also amended in 2014 and 2015 as discussed above.

The regulation was amended in 2011, effective March 16, 2011, to extend the use of the 2001 CSO Preferred Structure Mortality Table to policies issued on or after January 1, 2004.

Insurance Regulation 179 was amended as part of consolidated rulemakings in 2012, 2014, 2015, 2017, 2018 and 2020 as described above.

• Amendment to Part 98 (Insurance Regulation 147) (Valuation of Life Insurance Reserves) of Title 11 NYCRR, effective December 26, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1304, 1308, 4217, 4218, 4240, and 4517.

Insurance Regulation 147 was amended to include the provisions of the adopted new version of the NAIC’s Actuarial Guideline 38 to be in effect for policies issued on or after January 1, 2007 and prior to January 1, 2011.

The regulation was amended in 2012, 2014, 2015, 2017, 2018, and 2020 as part of consolidated rulemakings amending 11 NYCRR Parts 147 and 179 (Insurance Regulations 147 and 179) as described above.

• Amendment to Part 27 (Insurance Regulation 41) (Excess Line Placements Governing Standards) of Title 11 NYCRR, effective December 19, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 2105, 2118, and Article 21.

Article 21 of the Insurance Law establishes minimum standards for the placement of New York risks with eligible excess line insurers. Insurance Regulation 41 further governs the placement of excess line insurance. Insurance Regulation 41 requires alien excess line insurers to maintain trust funds in the United States to support their United States excess line business. These trust requirements were not updated for several years. The NAIC’s International Insurers Department, which reviews alien insurer applications for inclusion on the NAIC Quarterly Listing of Alien Insurers, updated its trust funding standards for alien excess line insurers and for associations of insurance underwriters (“Associations”). This rule changed the amount of funds required to be held in trust by alien excess line insurers and Associations and resolved the existing inequity in the trust fund obligations imposed upon alien excess line insurers, as compared to the obligations imposed upon an Association. The amount of funds to be held in trust by alien excess line insurers increased, and the amount of funds to be held in trust by an Association decreased.

The regulation was amended in 2011, effective May 4, 2011, to increase the minimum surplus to policyholders required to be maintained by new and current excess line insurers.

The regulation was amended effective October 8, 2014, to implement Chapter 61 of the Laws of 2011, conforming to the Federal Non-admitted and Reinsurance Reform Act of 2010.

• Amendment to Part 42 (Insurance Regulation 149) (Term Life Issuance and Renewal Restrictions; Non-forfeiture Values for Certain Life Insurance Policies) of Title 11 NYCRR, effective December 5, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 3201, 4221, and 4511

The Insurance Law sets forth non-forfeiture requirements for the anniversaries of life insurance policies. Those requirements assume that premiums are annually paid at the beginning of each policy year, and that any surrenders or lapses occur at the end of the year. In practice, premiums actually may be paid throughout a policy year (i.e., monthly), and surrenders may occur at times other than on a policy anniversary. This amendment addressed the issues that can arise when those types of variations occur. Providing insurers with guidance as to what is considered acceptable should enhance their ability to get policy forms approved more quickly. This amendment also sought to clarify the requirements of Insurance Law Section 4221 because of the number of areas where the Department found problems with policy form submissions.

• Amendment to Part 362 (Insurance Regulation 171) (The Healthy New York Program & the Direct Payment Stop Loss Relief Program) of Title 11 NYCRR, effective November 7, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1109, 3201, 3217, 3221, 4235, 4303, 4304, 4305 and 4326.

Insurance Regulation 171 was amended to require health maintenance organizations and participating insurers to offer high deductible health plans using the Healthy New York small employer and individual programs. This option provided New Yorkers with access to a tax-advantaged method of purchasing health insurance. The rule also provided for prostate cancer screening and a limited home health care and physical therapy benefit. The addition of the prostate cancer screening benefit facilitated prompt and early detection of prostate cancer, which in turn should decrease mortality and reduce treatment costs.

Insurance Regulation 171 also was amended effective November 28, 2012 as discussed above.

• Amendment to Part 52 (Insurance Regulation 62) (Minimum Standards for the Form, Content, and Sale of Health Insurance, Including Standards of Full and Fair Disclosure) and Addition of a new Part 56 (Insurance Regulation 183) (Processing of Claims) to 11 NYCRR, effective November 7, 2007.

The Insurance Law authorizes the Superintendent to establish standard provisions for accident and health insurance coverage, and to promulgate regulations governing minimum standards for the form, content, and sale of such coverage. Insurance Regulation 183 and the amendment of 11 NYCRR 52.16(c)(5) served that purpose. The cosmetic surgery exclusion presently set forth in Regulation 62 predated Insurance Law Article 49, which provides for internal and external appeal of medical necessity denials. This rule clarified the requirements relating to the cosmetic surgery exclusion in light of the subsequently enacted statutes.

The regulation was amended in 2008, effective March 12, 2008, to require insurers, Article 43 corporations, and health maintenance organizations to send notices to their policy holders, certificate holders, and members describing chapter 748 of the Laws of 2006.

The regulation was amended again in 2008, effective November 19, 2008, to prohibit coverage of drugs, procedures, or supplies for the treatment of erectile dysfunction when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article 6-C of the Correction Law.

The regulation was amended in 2009, effective July 15, 2009, as part of a consolidated rulemaking also amending Part 217 to establish guidelines for processing of healthcare claims when the person is covered by more than one health insurance policy.

The regulation was amended again in 2009, effective December 9, 2009, to comply with Insurance Law 3234(b), pursuant to Benesowitz v. Metropolitan Life Insurance Company.

The regulation was amended in 2010, effective May 5, 2010, as part of a consolidated rulemaking adding a new Part 58 and amending Parts 52, 215, 360, and 361 to establish a framework for the form, content and sale of Medicare supplement insurance. States must have a Medicare supplement insurance regulatory program that provides a minimum level of coverage as established by federal law, 42 U.S.C. § 1395ss.

The regulation was amended in 2011, effective March 30, 2011, to establish minimum standards for internal appeal procedures for long term care insurance, nursing home & home care insurance, nursing home insurance only, and home care insurance only.

Additional amendments to Part 52 adopted after 2011 are described above.

• Amendment to Part 362 (Insurance Regulation 171) (The Healthy New York Program & the Direct Payment Stop Loss Relief Program) of Title 11 NYCRR, effective November 7, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1109, 3201, 3217, 3221, 4235, 4303, 4304, 4305, and 4326.

Insurance Regulation 171 was amended to require health maintenance organizations (“HMOs”) and participating insurers to offer high deductible health plans using the Healthy New York small employer and individual programs. This option provided New Yorkers with access to a tax-advantaged method of purchasing health insurance. The rule also provided for prostate cancer screening and a limited home health care and physical therapy benefit. The addition of the prostate cancer screening benefit facilitated prompt and early detection of prostate cancer, which in turn should decrease mortality and reduce treatment costs.

Insurance Regulation 171 also was amended effective November 28, 2012 as discussed above.

• Amendment to Part 350 (Insurance Regulation 140) (Continuing Care Retirement Communities) of Title 11 NYCRR effective October 17, 2007.

Statutory Authority: Insurance Law Sections 201, 301, and 1119 and Public Health Law Sections 4604(4)(a), 4607, and 4611.

Chapter 689 of the Laws of 1989 was enacted for the stated purpose of facilitating the creation of the necessary components for the development of a broader and more integrated continuum of long-term care, financed by a range of private, public, and public/private options. One option was the Continuing Care Retirement Community (“CCRC”), a residential facility for seniors that provides stated housekeeping, social, and health care services in return for some combination of advance fees, periodic fees, and additional fees. A CCRC is often designed to provide a full continuum of care as the health status of a resident deteriorates with age. A CCRC is expected to maintain at all times at least the required minimum level of liquid funds to cover unexpected expenses or unexpected revenue shortfalls. These funds are not to be used to cover budgeted expenses. This amendment reduced the minimum liquid amount requirement to a level more in line with the investment community’s “days cash on hand” benchmark for an entrance fee community. The “days cash on hand” benchmark was designed to provide sufficient funds to cover unexpected expenditures, to provide refunds for unanticipated living unit turnover without an attendant new entrance fee, or to meet other unbudgeted expenses.

The Department is considering another amendment to Insurance Regulation 140 to clarify and modify the actuarial reserve calculation, distribution allowances, allowable investments, and necessary filing requirements, in view of marketplace expansion in both the number and types of CCRCs. The amendment would also add a new section specifying parameters for transactions between a CCRC and its parent corporation, affiliate or subsidiary.

• Addition of Part 12 (Insurance Regulation 50) (Agent Training Allowance Subsidies for Certain Life Insurance and Annuity Business) to Title 11 NYCRR, effective October 17, 2007.

Statutory Authority: Insurance Law Sections 201, 301, and 4228.

Insurance Regulation 50 was added to update the limits in Insurance Law Sections 4228(e)(3)(C) through 4228(e)(3)(E) to reflect inflation from the January 1, 1998 effective date of Section 4228 to the present.

The Department adopted an amendment to Insurance Regulation 50 in 2017, effective January 25, 2017, to increase the training allowance limits to reflect inflationary increases that had arisen since the regulation was first promulgated.

• Amendment to Part 74 (Insurance Regulation 159) (Homeowners Insurance Disclosure Information and other Notices) of Title 11 NYCRR, effective August 8, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 3425, 3445, and 5403.

In enacting Chapter 162 of the Laws of 2006, the Legislature intended to improve public awareness of market assistance programs, such as the Coastal Market Assistance Program, that may be available to homeowners in New York. Chapter 162 required that when a policyholder received a notice of cancellation, nonrenewal, or conditional renewal for a homeowners insurance policy as specified in Insurance Law Section 3425(e) with respect to property located in an area served by a market assistance program established by the Superintendent for the purpose of facilitating placement of homeowners insurance, the policyholder must also have received notice from the insurer of possible eligibility for coverage through the market assistance program or through the New York Property Insurance Underwriting Association (“NYPIUA”). In order to implement Chapter 162, the Legislature required the Superintendent to promulgate regulations governing the notices required by law. This rule set forth certain minimum notification requirements to ensure that policyholders that may have been eligible for a market assistance program or NYPIUA received proper notice of their options.

• Repeal of Part 94 and addition of new Part 94 (Insurance Regulation 56) (Valuation of Individual and Group Accident and Health Insurance Reserves) to Title 11 NYCRR, effective July 11, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1303, 1304, 1305, 1308, 4117, 4217, 4310, and 4517.

The Insurance Law does not specify mortality, morbidity, and interest standards used to value individual and group accident and health insurance policies but relies on the Superintendent to specify methodology. This regulation was repealed and replaced with a new Part 94 to prescribe rules for valuing minimum individual and group accident and health insurance reserves, including standards for valuing certain accident and health benefits in life insurance policies and annuity contracts. The amendment also lowered reserves for individual policies, which was expected to result in a lower cost of doing business in New York.

The regulation was amended in 2016, effective February 24, 2016, to adopt the NAIC 2012 Group Long-Term Disability Valuation Table for group long-term disability income claims incurred on or after January 1, 2017, or if optionally elected, on or after October 1, 2014, replacing the 1987 Commissioners Group Disability Table.

The regulation was amended in 2019, effective November 27, 2019, to adopt the 2016 Cancer Claim Cost Valuation Tables for first occurrence and hospitalization cancer expense benefit contracts issued on or after January 1, 2019, or if optionally elected, on or after January 1, 2018, replacing the 1985 NAIC Cancer Claim Cost Tables.

• Amendment to Part 83 (Insurance Regulation 172) (Financial Statement Filings and Accounting Practices and Procedures) of Title 11 NYCRR, effective April 25, 2007.

Statutory Authority: Insurance Law Sections 107(a)(2), 201, 301, 307, 308, 1109, 1301, 1302, 1308, 1404, 1405, 1407, 1411, 1414, 1501, 1505, 3233, 4117, 4233, 4239, 4301, 4310, 4321-a, 4322-a, 4327 and 6404; Public Health Law Sections 4403, 4403-a, 4403-(c)(12) and 4408-a; and Chapter 599 of the Laws of 2002.

The rule incorporated the NAIC AP&P Manual, March 2006 edition by reference to enhance the consistency of the accounting treatment of assets, liabilities, reserves, income, and expenses, and to set forth the accounting practices and procedures to be followed in completing annual and quarterly financial statements required by law.

Insurance Regulation 172 was amended in 2011, effective March 16, 2011, to adopt the most recent edition of the AP&P Manual in use at the time.

The regulation was amended in 2012, 2013, 2014, 2015, 2016, 2017, 2020, and 2021 as described above.

• Amendment to Subpart 65-3 (Insurance Regulation 68-C) (Claims for Personal Injury Protection Benefits); Amendment of Subpart 65-4 (Insurance Regulation 68-D) (Arbitration) of Title 11 NYCRR, both effective March 14, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 2601, 5106, and 5221; Vehicle and Traffic Law Section 2407.

Insurance Regulation 68 contains provisions implementing Article 51 of the Insurance Law, which is commonly referred to as the No-fault law. No-fault insurance is intended to provide for prompt payment of health care and loss of earnings benefits. In accordance with Chapter 452 of the Laws of 2005, these two rules required an insurer to issue a denial of a no-fault claim with specific language that advised the applicant of the availability of special expedited arbitration to resolve the issue of which insurer must process the claim for first party benefits.

Insurance Regulations 68-C and 68-D were amended as part of a consolidated rulemaking in 2017, effective February 1, 2017, as described above.

• Amendment to Part 362 (Insurance Regulation 171) (The Healthy New York Program & the Direct Payment Stop Loss Relief Program) of Title 11 NYCRR, effective January 31, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1109, 3201, 3216, 3217, 3221, 4235, 4303, 4304, 4305, 4318, 4326, and 4327.

Chapter 1 of the Laws of 1999 enacted the Healthy New York Program as an initiative designed to encourage small employers to offer health insurance to their employees and to encourage uninsured individuals to purchase health insurance coverage. This rule introduced a second Healthy New York benefit package at a reduced premium rate. The second benefit package provided for a lower-cost alternative and permitted individuals and small businesses to choose a benefit package that met their needs. The rule eliminated the well-child copayment applicable to the Healthy New York Program in order to enhance access to preventive and primary care for children and permitted the Healthy New York Program to be considered qualifying health insurance under the federal Trade Act of 2002, which allowed those qualifying for a federal tax credit to benefit from that credit. The rule also revised the eligibility requirements relating to employment to lessen complexity and enhance access.

• Amendment to Part 152 (Insurance Regulation 124) (Physicians and Surgeons Professional Insurance Merit Rating Plan) of Title 11 NYCRR, effective January 24, 2007.

Insurance Law Section 2343(d) provides that the Superintendent shall, by regulation, establish a merit rating plan for physicians’ professional liability insurance. Section 2343(e) provides that the Superintendent may approve malpractice insurance premium reductions for insured physicians who successfully complete an approved risk management course, subject to standards prescribed by the Superintendent by regulation. This rule was amended to allow, but not to require, an insurer to offer an internet-based risk management course to its insureds as soon as the Department determines that the course is in proper compliance with applicable law.

• Amendment to Part 83 (Insurance Regulation 172) (Financial Statement Filings and Accounting Practices and Procedures) of Title 11 NYCRR, effective January 10, 2007.

Statutory Authority: Insurance Law Sections 107(a)(2), 201, 301, 307, 308, 1109, 1301, 1302, 1308, 1404, 1405, 1407, 1411, 1414, 1501, 1505, 3233, 4117, 4233, 4239, 4301, 4310, 4321-a, 4322-a, 4327 and 6404; Public Health Law Sections 4403, 4403-a, 4403-(c)(12) and 4408-a; and Chapter 599 of the Laws of 2002.

This rule incorporated the NAIC AP&P Manual, March 2005 edition by reference to enhance the consistency of the accounting treatment of assets, liabilities, reserves, income, and expenses, and to set forth the accounting practices and procedures to be followed in completing annual and quarterly financial statements required by law. The amendment of another portion of the regulation was necessitated by the issuance of a revised edition of Estimated Useful Lives of Depreciable Hospital Assets, another publication that is incorporated by reference in the regulation.

Insurance Regulation 172 was amended again in 2007, and in 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2020, and 2021 as described above.

• Addition of new Part 75 (Insurance Regulation 181) (Standards for Insurance that Qualifies for the Environmental Remediation Insurance Tax Credit) to Title 11 NYCRR, effect January 10, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 2105, 2118, and 3447.

Insurance Law Section 3447 provides that the Superintendent is authorized to promulgate regulations relating to the certification of policies of insurance that qualify for the environmental remediation insurance tax credit provided for under Tax Law Section 23. Part 75 was added to provide guidance for insurers as to the minimum standards for environmental remediation insurance coverages that will enable an insurer to certify that the coverages qualify for the environmental remediation insurance tax credit provided for under the Tax Law. This Part also provides the requirements for disclosure of the premiums paid for the coverages under Insurance Law Section 3447(b) to enable the insured to obtain the appropriate tax credit.

• Amendment to Part 262 (Insurance Regulation 162) (Legal Services Insurance) of Title 11 NYCRR, effective January 10, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1113(a)(29), 1116 and Articles 23 and 63 and Chapter 65 of the Laws of 1998.

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 Part 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 amendment permitted 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 qualified as a special risk coverage pursuant to Insurance Regulation 86 and Insurance Law Article 63, and the policy was written on such basis.

• Amendment to Part 98 (Insurance Regulation 147) (Valuation of Life Insurance Reserves) of Title 11 NYCRR, effective January 10, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1304, 1308, 4217, 4218, 4240, and 4517.

Maintaining solvency of insurers doing business in New York is a principal focus of the Insurance Law. One way the Insurance Law seeks to ensure solvency is by requiring all insurers and fraternal benefit societies authorized to do business in New York to hold reserve funds in an amount proportional to the obligations made to policyholders. At the same time, insurers and policyholders benefit when insurers have adequate capital for company purposes such as expansion and product or other forms of business development.

Some companies have sold life insurance products that result in lower reserves than would be required for products with similar death benefit and premium guarantees. This rule addressed that problem by establishing new reserve methodologies consistent with Insurance Law Section 4217.

Insurance Regulation 147 was amended effective March 16, 2011, to remove restrictions on the mortality adjustment factors (known as X factors) in deficiency reserves calculation. This amendment to Insurance Regulation 147 incorporated both the NAIC revisions to the model regulation and the interpretation of the Actuarial Guideline, thus resulting in consistency between the NAIC and New York and promoting regulatory uniformity across the U.S. Companies domiciled in states that did not adopt these changes by December 31, 2009 year-end were forced to hold higher reserves relative to companies domiciled in states that had adopted these changes.

The regulation was amended in 2011, effective March 16, 2011, to remove restrictions on the mortality adjustment factors (“X factors”) in deficiency reserves calculation.

• Addition of Part 46 (Insurance Regulation 174) (Unemployment Lapse Protection Benefit for Life Insurance) to Title 11 NYCRR, effective January 7, 2007.

Statutory Authority: Insurance Law Sections 201, 301, 1113, 3201, and 4525.

This rule established minimum standards for benefit levels, benefit eligibility and exclusion, and premium levels relating to additional benefits authorized under Insurance Law Section 1113(a)(1) for unemployment lapse protection benefits for life insurance. The unemployment lapse protection benefit includes waiver of premium benefits and waiver of charge benefits. This rule also prescribed advertising and disclosure requirements for unemployment lapse protection benefits for life insurance.

The following rulemakings were adopted in 2002:

• Consensus Rulemakings Amending Various Parts of Title 11 NYCRR, effective dates: December 4, 2021; August 21, 2002; June 26, 2002.

The consensus rulemakings amending 11 NYCRR were adopted to update regulations and statutory references to be consistent with the Insurance Law recodification and to eliminate numerous obsolete provisions.

• Amendment to Parts 1 and 2 (Insurance Regulation 1) (Definitions; Promulgation of Regulation; Opinions) of Title 11 NYCRR, effective November 6, 2002.

Statutory Authority: Insurance Law Sections 201 and 301.

This amendment deleted obsolete provisions to reflect current law and the existing internal practices of the Insurance Department and made editorial changes for clarification purposes.

• Amendment to Parts 105-109 (Insurance Regulation 30) (Operating and Allocation of Expenses for Annual Statement Purposes) of Title 11 NYCRR, effective October 23, 2002.

Statutory Authority: Insurance Law Sections 201, 301, 2325, and Article 23.

This amendment deleted obsolete provisions and updated other provisions to be consistent with the NAIC’s current Annual Statement instructions.

• Amendment of Part 68 (Regulation 83) (Charges for Professional Health Services) of Title 11 NYCRR, effective October 23, 2002.

Statutory Authority: Insurance Law Sections 201, 301, and Article 51.

The amendment repealed fee schedules that were superseded by fee schedules established by the Workers' Compensation Board. The amendment also repealed provisions referencing outdated hospital fee schedules applicable to No-fault. The Public Health Law establishes the applicable schedules to be used by hospitals when billing for services provided to patients involved in automobile accidents. The amendment repealed health provider schedules created by the Department, which were outdated and were rarely, if ever, used and referenced the current health provider fee schedules established by the Department.

The Department amended the regulation, effective September 22, 2010, to adopt the Workers Compensation Board Dental Fee Schedule.

• Amendment to Subpart 64-2 (Insurance Regulation 35-C) (Liability Insurance Covering All-Terrain Vehicles) of Title 11 NYCRR, effective September 11, 2002.

Insurance Regulation 35-C was amended to update the regulation and provisions contained therein to be consistent with approved name changes of statutorily prescribed endorsements, to delete obsolete provisions, and to make editorial changes.

• Amendment to Part 16 (Insurance Regulation 86) (Special Risk Insurance) of Title 11 NYCRR, effective September 11, 2002.

Statutory Authority: Insurance Law Sections 201, 301, 1403(c), 1404(a)(1), and 1405(a)(1).

This amendment updated Insurance Regulation 86 to include the definitions of various risks and exposures that were previously added to the Class Two Risk List of the Free Trade Zone by public notice. These risks and exposures had been added to the list since the last amendment to this regulation in 1998.

Insurance Regulation 86 was amended in 2012 and 2014 as discussed above.

• Amendment to Part 52 (Insurance Regulation 62) (Minimum Standards for the Form, Content, and Sale of Health Insurance, Including Standards for Full and Fair Disclosure) of Title 11 NYCRR, effective June 5, 2002 and amended for corrections June 19, 2002.

Statutory Authority: Insurance Law Sections 201, 301, 3201, 3216, 3217, 3218, 3221, 3231, 3232, 4235, 4237, and Article 43 and Social Security Act (42 U.S.C. Section 1395ss).

The enactment of the Omnibus Budget Reconciliation Act of 1990 required the mandatory standardization and federal certification of policies of Medicare supplement insurance. As a result of this Act, states were required to amend their laws and regulations to conform to the federal standards for Medicare supplement insurance. The revisions contained in this amendment made technical corrections to New York’s Medicare supplement regulation to ensure continued compliance with federal standards.

• Amendment to Part 361 (Insurance Regulation 146) (Establishment and Operation of Market Stabilization Mechanisms for Individual and Small Group Health Insurance and Medicare Supplement Insurance) of Title 11 NYCRR, effective May 22, 2002.

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; 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 coverage and provided for a pooling mechanism for individual and small group insurance to ensure the stabilization of health insurance markets and premium rates. 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 to Insurance Regulation 146 exercised 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 also phased out (as of January 1, 2000) pooling based on demographics for individual and small group coverage, other than Medicare supplement insurance, and replaced them with modified specified medical condition pools. It continued a demographic pooling mechanism for Medicare supplement insurance.

Insurance Regulation 146 was amended effective June 25, 2008 to create a new market stabilization process in the individual and small group market in order to share among plans substantive cost variations attributable to high-cost medical claims.

On December 7, 2016, the Department adopted an amendment to Insurance Regulation 146 on an emergency basis to implement a market stabilization pool for the small group health insurance market for the 2017 plan year.

• Amendment to Part 86 (Insurance Regulation 95) (Report of Suspected Insurance Fraud to the Insurance Frauds Bureau; Required Warning Statements) of Title 11 NYCRR, effective May 1, 2002.

Statutory Authority: Insurance Law Sections 201, 301, 403(c), (d), and (e), 409, and 4322 and Chapter 2 of the Laws of 1998.

Chapter 2 of the Laws of 1998 amended Insurance Law Section 409 relating to fraud prevention plans, to make it applicable to most entities licensed pursuant to Article 44 of the Public Health Law. Section 409 required the Superintendent to implement the provisions of Chapter 2 by promulgating a regulation, including those provisions requiring insurers to adopt and implement fraud prevention plans using a special investigation unit (“SIU”). Therefore, Insurance Regulation 95 was amended to require HMOs to adopt and implement fraud prevention plans and to liberalize the requirements for SIU investigators so that insurers would be better able to recruit qualified investigators.

The Department is considering another amendment to Insurance Regulation 95 to establish a requirement that a licensee required to submit a fraud prevention plan must revise its fraud prevention plan to reflect changes to the holding company, the lines of business that affect the SIU, and changes to SIU personnel or the provider of SIU services. The Department is also revising Section 86.6(d) to correct the due date of the filing of the annual report from January 15 to March 15, in compliance with Insurance Law Section 409(g).

• Amendment to Part 71 (Insurance Regulation 107) (Legal Defense Costs in Liability Policies) of Title 11 NYCRR, effective April 17, 2002.

Statutory Authority: Insurance Law Sections 201, 301, 1113(a)(13)-(14), 3436, and 5504 and Articles 23, 31, 34, and 55.

This amendment to Insurance Regulation 107 established lines of insurance that may be written to provide for defense of a claim to be provided within policy limits (defense within limits). Information provided to the Department indicated that for certain of the lines of insurance for which defense within limits was allowed, the minimum limit requirements were greater than the needs of some policyholders. The premium for the minimum permissible limits was often such that, as a business decision, the employer declined to purchase the coverage. As a consequence, the financial position of the employer, if faced with a claim, could be placed at undue risk and injured parties may have no means of recovery for damages suffered. In addition, some small and regional insurers with relatively limited financial capacity had indicated reluctance to participate in this market at the previously required minimum limits. This regulation also reduced the minimum required limit of liability for employee benefit liability, fiduciary liability, and employment practices liability. As a result, small insurance agents and brokers, as well as regional insurers, had an additional product line to offer and small businesses were offered more affordable coverage.

• Repeal of Parts 11 and 12 (Regulations 49 and 50) (Expense Allowance Limits and Training Allowances) of Title 11 NYCRR, effective April 17, 2002.

Statutory Authority: Insurance Law Sections 201 and 301.

Parts 11 and 12 were promulgated pursuant to Insurance Law Section 4228 prior to its repeal by Chapter 616 of the Laws of 1997. A newly enacted Section 4228, effective January 1, 1998, contained provisions relating to expense allowance limits and training allowances that conflicted with the provisions of these regulations. This action repealed the regulatory provisions that were no longer applicable by virtue of repeal of the authority for their promulgation.

• Addition of new Part 421 (Insurance Regulation 173) (Standards for Safeguarding Consumer Information) to Title 11 NYCRR, effective February 27, 2002.

Statutory Authority: Insurance Law Sections 201 and 301 and Article 24; 15 U.S.C. Sections 6801, 6805(a)(6), 6805(b), 6805(c), and 6807; and 15 U.S.C. Chapter 94.

Insurance Regulation 173 was added to establish standards for developing and implementing administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of customer information, pursuant to Sections 501, 505(b) and 507 of the GLBA.

• Amendment to Part 34 (Insurance Regulation 125) (Requirements Pertaining to the Location of an Insurance Agent or Broker at Each Place of Insurance Business in New York) of Title 11 NYCRR, effective February 13, 2002.

Statutory Authority: Insurance Law Sections 201, 301, and 2129; Chapter 556 of the Laws of 1996; and Chapter 505 of the Laws of 2000.

This amendment to Insurance Regulation 125 implemented Chapter 556 of the Laws of 1996, which modified the requirements as to whom may supervise the office of an insurance agent or broker, and Chapter 505 of the Laws of 2000, which created a new type of license, the life insurance broker license.

• Amendment to Part 101 (Insurance Regulation 164) (Financial Risk Transfer Agreements) of Title 11 NYCRR, effective January 30, 2002.

Statutory Authority: Insurance Law Sections 201, 301, 1102, 1109 and Articles 32, 41, 42 and 43 and Public Health Law Section 4403(1)(c).

The regulation was amended to assess the financial responsibility and capability of health care providers to perform their obligations under certain financial risk sharing agreements and set forth standards pursuant to which providers may adequately demonstrate such responsibility and capability to insurers.

The following rulemakings were adopted in 1997:

• Adoption of Part 163 (Regulation 153) (Flexible Rating for Nonbusiness Automobile Insurance Policies) of Title 11 NYCRR, effective August 20, 1997.

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

The stated purpose of Article 23 of the Insurance Law includes improving the availability and reliability of insurance and promoting the public welfare by regulating insurance rates to assure that they are not excessive, inadequate, or unfairly discriminatory and are responsive to competitive market conditions. The introduction of flexible rating to private passenger automobile insurance by Chapter 113 of the Laws of 1995 was intended to strengthen the high level of fair competition on a long term basis. Flexible rating is a blend of prior approval and competitive rating. This rule replaces the prior approval system for nonbusiness auto insurance that had been in effect since 1974.

In 2010, effective January 6, 2010, the Department amended the regulation to implement Section 13 of Chapter 136 of the Laws of 2008, which added a new Section 2350 to the Insurance Law, which reintroduced flexible rating for nonbusiness automobile insurance rates. Chapter 113 of the Laws of 1995 first introduced “flex rating” to nonbusiness automobile insurance effective July 1, 1995 until it expired on August 2, 2001 and was replaced by prior approval requirements.

• Amendment to Part 73 (Insurance Regulation 121) (Claims Made Policies: Scope of Application; Minimum Standards) of Title 11 NYCRR, effective August 1, 1997 (State Register July 30, 1997).

Statutory Authority: Insurance Law Sections 201, 301, 308, 1113, 3436, 5504, and Articles 23 and 55.

This regulation provides minimum standards and requirements concerning the offset of defense costs against liability insurance policy limits and/or deductibles. This amendment updated the list of coverages and risks that may be written on a defense cost within limits of liability basis; disclosure requirements; minimum limits of liability; and minimum standards for approval of policies written on a defense cost within limits basis.

In 2000, effective March 22, 2000, the Department amended the regulation to provide that legal services insurance may be provided on a claims-made basis when written as part of a policy of liability insurance covering the types of risk specified in section 73.2(a) of the regulation.

• Amendment to Part 80-2 (Insurance Regulation 52-A) (Minimum Standards for Producer-Controlled Insurers and Controlling Producers: Disclosure Requirements for Certain Other Producers) of Title 11 NYCRR, effective August 1, 1997 (State Register July 30, 1997).

Statutory Authority: Insurance Law Sections 201, 301, 308, 309, 310, 1104, 1106(e), and Articles 15, 16, and 21.

Because the close relationship between a producer and insurer could result in a conflict of interest that might compromise the insurer’s solvency, Subpart 80-2 was promulgated to provide minimum safeguards, allow timely oversight of control arrangements, and reduce the likelihood of abuses and financial harm. This amendment exempts any controlled non-domestic insurer whose state of domicile has a substantially similar law from compliance with the reporting requirements of this subpart.

In 2004, effective February 4, 2004, the Department amended the regulation to repeal Section 80-2.6, a section containing obsolete provisions.

• Amendment to Part 81-1.0 (Insurance Regulation 53) (Subsidiaries of Insurance Companies) of Title 11 NYCRR, effective August 1, 1997 (State Register July 30, 1997).

Statutory Authority: Insurance Law Sections 201, 301, and Article 16.

This regulation concerns subsidiaries that are owned, acquired, or organized pursuant to Article 16 of the Insurance Law by insurance companies that are subject to Insurance Law Section 1403(c). Section 1403(c) prescribes the investments that certain domestic insurers may make once they meet their minimum capital and minimum surplus to policyholders requirement. This rule clarifies that the regulation is applicable only to domestic insurance companies.

• Addition of Part 19 (Regulation 154) (Homeowners Insurance; Applications for Withdrawal from Marketplace) of Title 11 NYCRR, effective July 30, 1997.

Statutory Authority: Insurance Law Sections 201, 301, 2351, and 3425.

The regulation establishes standards for the definition of “material reduction of volume of policies” and standards by which an insurer’s application for material reduction of policies shall be approved.

• 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 July 30, 1997.

Statutory Authority: Insurance Law Sections 201, 301, 1113(a)(13) and (14), 3426, 3436, 5504, 5907, 6302, 6303 and Article 23 and Chapters 639 and 253, Laws of 1996.

The regulation establishes medical malpractice insurance rates, required policy provisions and other standards relating thereto. The amendment established physicians and surgeons medical malpractice rates for the policy year beginning July 1, 1996, and established rules to collect and allocate surcharges to recover deficits based on past experience.

In 1999, effective January 6, 1999, the Department amended the regulation to require that when an insurer enters New York to write physicians and surgeons medical malpractice liability insurance it must use the rates established for the Medical Liability Mutual Insurance Company (“MLMIC”), unless the insurer can demonstrate to the satisfaction of the Superintendent that another rate is appropriate.

Also in 1999, effective April 7, 1999, the Department amended the regulation to establish physicians and surgeons medical malpractice rates for the policy year beginning July 1, 1998, and established rules to collect and allocate surcharges to recover deficits based on past experience.

In 2000, effective July 12, 2000, the Department amended the regulation to establish physicians and surgeons medical malpractice rates for the policy year beginning July 1, 1999; and establish rules to collect and allocate surcharges to recover deficits based on past experience.

In 2001, effective June 20, 2001, the Department amended the regulation to establish physicians and surgeons medical malpractice rates for the policy year beginning July 1, 2000 and establish rules to collect and allocate surcharges to recover deficits based on past experience. In addition, the rule established the rates to be used by the Medical Malpractice Insurance Plan, which was created by statute to provide coverage for eligible health care practitioners and facilities that were unable to obtain coverage in the voluntary market.

• Amendment to Part 169 (Insurance Regulation 100) (Noncommercial Motor Vehicle Insurance Merit Rating) of Title 11 NYCRR, effective July 9, 1997.

Statutory Authority: Insurance Law Sections 201, 301, 2334, 2335, and 2345.

Insurance Law Section 2334 authorizes the Superintendent to promulgate regulations establishing standards and limitations that are intended to ensure that noncommercial motor vehicle insurance merit rating plans are reasonable, understandable, and objective and are not unfairly discriminatory, inequitable, violative of public policy, or otherwise contrary to the best interests of the people of New York State. This Part establishes standards and limitations under which insurers may use merit rating plans.

In 2011, effective January 19, 2011, the Department amended the regulation to raise from $1,000 to $2,000 the minimum threshold amount of property damage which, if exceeded in a motor vehicle accident, would allow an insurer to impose a policy premium surcharge. This conforms the regulation to Chapter 277 of the Laws of 2010, which amended Section 2335 of the Insurance Law.

• Amendment to Part 216 (Insurance Regulation 64) (Unfair Claims Settlement Practices and Claim Cost Control Measures) of Title 11 NYCRR, effective April 23, 1997.

Statutory Authority: Insurance Law Sections 201, 301, and Article 51.

The regulation implements Insurance Law § 2601, which prohibits an insurer from engaging in unfair claims practices, including knowingly misrepresenting pertinent facts or policy provisions; failing to acknowledge with reasonable promptness pertinent communications of claims; failing to adopt and implement reasonable standards for the prompt investigation of claims; not attempting in good faith to effectuate prompt, fair, and equitable claim settlements submitted in which liability has become reasonably clear; and compelling policyholders to institute suits to recover amounts due by offering substantially less than the amounts ultimately recovered in suits brought by the policyholders.

This rulemaking updated the requirements placed on insurers regarding the investigation and settlement of claims.

In 1999, effective September 15, 1999, the Department amended the regulation to ensure that full information be provided regarding vehicles that are severely damaged and subsequently rebuilt.

In 2003, effective April 23, 2003, the Department amended the regulation to add provisions related to the rights of authorized drivers and insurers to inspect damaged rental vehicles.

In 2004, effective July 28, 2004, the Department amended the regulation to replace the reference to the National Insurance Crime Bureau (“NICB”) with an unspecified “central organization” designated by the Superintendent, which will receive and investigate automobile total losses.

The regulation was amended in 2017 as described above.

• Addition of Sections 68.1(x) and 68.2(i) to Part 68 (Insurance Regulation 83) (Charges For Professional Health Services) of Title 11 NYCRR, effective April 23, 1997.

Statutory Authority: Insurance Law Sections 201, 301, and Article 51.

Insurance Law Article 51 contains the provisions authorizing the establishment of a no-fault reparations system for persons injured in motor vehicle accidents, and Section 5108 specifically authorizes the Superintendent to adopt or promulgate fee schedules for health care benefits payable under the no-fault system.

The Superintendent is required to promulgate rules and regulations implementing and coordinating the fee schedules adopted by the Chair of the Workers’ Compensation Board for medical, chiropractic and podiatric services. These schedules also include fees for some dental, psychiatric and physical therapy services. In 1996 the Chair adopted a new fee schedule. This rulemaking adopted that same schedule for use under the no-fault system.

In 2002, effective October 23, 2002, the Department amended the regulation to repeal those fee schedules that had been superseded by fee schedules established by the Workers’ Compensation Board.

In 2004, effective October 6, 2004, the Department amended the regulation to adopt revised standards for charges for professional health care services, including adoption of the fee schedule set forth in the New York State Medicaid Management Information System Provider Manual for durable medical equipment, medical/surgical supplies, orthopedic footwear, and orthotic and prosthetic appliances.

In 2008, effective April 16, 2008, the Department amended the regulation to repeal the fee schedules previously established by the Department for prescription drugs, durable medical equipment, medical/surgical supplies, orthopedic footwear, and orthotic and prosthetic appliances that are now covered by the two fee schedules established by the Workers’ Compensation Board, and to clarify that a pharmacy is deemed to be a provider of health services for purposes of eligibility of direct payments pursuant to Regulation 68-C.

In 2010, effective September 22, 2010, the Department amended the regulation to adopt the Workers’ Compensation Board Dental Fee Schedule.

The regulation was amended in 2017, 2019, and 2020 as described above.

• Amendment to Subpart 186 (Insurance Regulation 27-B) (Insurance Covering Debtors or Personal Property Purchased on Installment or Deferred Payment Plan) of Title 11 NYCRR, effective April 9, 1997.

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

The regulation sets forth minimum requirements for disclosure, policy provisions, policy cancellations, form and rate filing, reporting of experience statistics, and adjustment of claims for policies issued in New York covering debtors and/or creditors on personal property purchased on installment or deferred payment plans. This rulemaking was technical in nature, merely amending the regulation to conform to amendments to the Insurance Law.

• Repeal of Part 63 (Regulation 61) and Adoption of new Part 63 (Regulation 61) (Financial Guaranty Insurance) of Title 11 NYCRR, effective April 2, 1997.

Statutory Authority: Insurance Law Sections 201, 301, 6903(a), and 6907(b) and Article 69.

Article 69, effective May 14, 1989, was added to the Insurance Law to define and authorize the sale of certain types of financial guaranty insurance. Article 69 superseded Part 63 for all new financial guaranties. However, Sections 6903(a)(2) and 6907(b) provide that certain reserve requirements that were applicable for municipal bond guaranties prior to the effective date of Article 69 would continue to apply to all financial guaranties in force prior to the dates set forth in the respective sections. The specific reserve requirements that must be met are different depending on whether the insurer is currently organized and licensed as a financial guaranty insurance corporation pursuant to Article 69.

This Part sets forth the reserve requirements for financial guaranty insurance in force prior to May 14, 1989, the effective date of Article 69 of the Insurance Law.

• Amendment to Subpart 60-2 (Insurance Regulation 35-D) (Supplementary Uninsured Motorist Insurance) of Title 11 NYCRR, effective February 26, 1997.

Statutory Authority: Insurance Law Sections 201, 301, and 3420.

This Subpart interprets Insurance Law Section 3420(f)(2) and establishes a standard form for SUM coverage in order to eliminate ambiguity, minimize confusion, and maximize its utility.

The 1997 rulemaking was adopted to clarify certain provisions of the Subpart, including a specific provision providing that the per person limit of liability is also applicable to the limit of liability per accident and to reflect an increase in the required minimum limits of liability for motor vehicle liability insurance.

The regulation was amended in 2017, 2018, and 2020 as described above.

• Amendment to Part 135 (Insurance Regulation 67) (Reporting of Certain Financial Transactions) of Title 11 NYCRR, effective February 5, 1997.

Statutory Authority: Insurance Law Sections 301 and 307; Retirement and Social Security Law Sections 15 and 315; Education Law Section 523; Administrative Code of the City of New York, Sections 13-193, 13-266, 13-378, and 13-562; and Rules and Regulations of the Retirement Board of the Board of Education of the City of New York, Section 25.

The regulation 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. This amendment repealed obsolete and invalid provisions and made technical revisions to update the statutory references.

In 2010, effective February 24, 2010, the Department repealed the regulation to eliminate requirements relating to a previous annual statement form that was no longer in use and to eliminate regulatory provisions that were no longer applicable to any person.

• Amendment to Part 67 (Insurance Regulation 79) (Mandatory Inspection of Certain Private Passenger Automobiles) of Title 11 NYCRR, effective February 5, 1997.

Statutory Authority: Insurance Law Sections 201, 301, 3411, and 5303 and Article 53.

Insurance Law Section 3411 sets forth a framework for providing physical damage coverage to private passenger automobiles. Inspections of such vehicles have been required since 1977 in order to combat insurance fraud (as where, for instance, coverage is purchased for a non-existent vehicle, or for a damaged vehicle). Section 3411 also provides that the Superintendent, by regulation, may relieve insurers of the requirement to inspect private passenger motor vehicles where circumstances obviate the need.

The rule was adopted to alleviate the cost and burden to insurers, as well as consumers, where circumstances obviate or minimize the need for applicability of the provisions of this article.

The rule was amended in 2014, effective April 1, 2015 (December 31, 2014 State Register) to revise the requirements placed on insurers with respect to the inspection of private passenger automobiles for physical damage coverage, specifically to eliminate or amend unnecessary or obsolete provisions that are unduly burdensome to insurers and insureds.

Comments on Insurance rulemakings may be submitted to Sally Geisel, Supervising Attorney – [email protected]; (212) 480-7608; New York State Department of Financial Services, One State Street, New York, NY 10004.

3. BANKING RULEMAKINGS

The following Banking rulemakings were adopted in 2019:

• Amendment to Part 301.6 of the Superintendent’s Regulations (Security at Automated Teller Machines: Report of Compliance)

Description of rule: The rule describes the report of compliance required to be filed with the Department pursuant to Banking Law Section 75-g.

Legal basis for the rule: Banking Law §§ 12, 75-n, as amended by Laws of 2011, Chapter 62, Part A, 104(e), and Financial Services Law §§ 202, 302.

Need for rule: The rule is necessary to clarify when the report must be filed and the required language of the report.

• Amendment to Part 400.11 of the Superintendent’s Regulations (Fees)

Description of rule: The rule outlines the permissible fees for the cashing of checks, drafts or money orders by licensed check cashers in New York.

Legal basis for the rule: Banking Law §§ 12, 37.3, 367, 369, 371 and 372.

Need for rule: The rule is necessary to clarify the permissible amount of a fee for the cashing of checks, drafts or money orders by licensed check cashers in New York.

• Adoption of New Part 409 of the Superintendent’s Regulations (Student Loan Servicers)

Description of rule: The rule describes the regulation of student loan servicers by the Department.

Legal basis for the rule: Banking Law §§ 10, 11, 14, 718 and Article 14-A and Financial Services Law §§ 102, 201, 202, 301 and 302.

Need for rule: The rule is necessary to set forth the requirements and duties of student loan servicers in New York.

• Adoption of New Part 418 of the Superintendent’s Regulations (Mortgage Loan Servicers: Registration Requirements; Financial Responsibility Requirements)

Description of rule: The rule describes the registration and financial responsibility requirements of mortgage loan servicers in New York.

Legal basis for the rule: Banking Law, Articles 12-D, 12-E, 12D, § 14 as amended by the Laws of 2011, Chapter 62, Part A § 104(e), (g); Financial Services Law §§ 202, 302.

Need for rule: The rule is necessary to set forth the registration and financial responsibility requirements of mortgage loan servicers in New York.

• Adoption of New Part 419 of the Superintendent’s Regulations (Servicing Mortgage Loan Loans: Business Conduct Rules)

Description of rule: The rule describes the business conduct rules of mortgage loan servicers in New York.

Legal basis for the rule: Banking Law, Articles 12-D, 12-E, 12D, § 14 as amended by the Laws of 2011, Chapter 62, Part A § 104(e), (g); Financial Services Law §§ 202, 302.

Need for rule: The rule is necessary to set forth the business conduct rules of mortgage loan servicers in New York.

The following Banking rulemakings were adopted in 2017:

There were no new Banking regulation amendments or adoptions in 2017.

The following Banking rulemakings were adopted in 2012:

• Amendments to Part 23 of the General Regulations of the Superintendent (Call Reports)

Description of rule: This rule requires banks, trust companies and private bankers to file periodical reports of condition with the Superintendent.

Legal basis for the rule: Banking Law §§ 14.1(l) and 37(1).

Need for rule: This rule is necessary to require banks, trust companies and private bankers to file periodical reports of condition using the Federal Financial Institutions Examination Council (FFIEC) forms.

• Amendments to Part 39 of the General Regulations of the Superintendent (Exempt Organizations; Subsidiaries of Exempt Organizations)

Description of rule: This rule defined the entities engaged in the business of soliciting, negotiating, placing, processing or making mortgage loans secured by a first or junior lien that will be exempt from the registration or licensing requirements of Article 12-D of the Banking Law, and to define mortgage loan products, the brokering or funding of which do not require registration or licensing as mortgage banker or broker under Article 12-D.

Legal basis for the rule: Banking Law §§ 12, 14, Article 12-D, L. 2011, Ch. 62, Part A, § 91.

Need for rule: This rule is necessary to eliminate the former exemptions from licensing as a mortgage banker or registration as a mortgage broker for consolidated subsidiaries of financial services organizations and for entities that deal solely in certain loan products.

• Adoption of a New Part 342 of the General Regulations of the Superintendent (Call Reports)

Description of rule: This rule requires branches and agencies of foreign banks, savings banks and savings and loan associations to file periodical reports of condition with the Superintendent.

Legal basis for the rule: Banking Law §§ 37, 204, 255 and 404.

Need for rule: This rule is necessary to require branches and agencies of foreign banks, savings banks and savings and loan associations to file periodical reports of condition using the Federal Financial Institutions Examination Council (FFIEC) forms.

The following Banking rulemakings were adopted in 2007:

• Amendments to Part 6.8 of the General Regulations of the Superintendent (Superintendent’s Regulations: Additional Authority of Banks, Trust Companies, Savings Banks and Savings and Loan Associations pursuant to Banking Law, Sections 14-g and 14-h: Overdraft Protection Charges)

Description of rule: This rule allows New York state-chartered banks, trust companies, savings banks and savings and loan associations to impose charges regarding insufficient funds to the same extent as national banks and federal savings associations.

Legal Basis for the rule: Banking Law §§ 13.4, 14, 14-g and 14-h.

Need for rule: This rule is necessary to make it clear that the notice to account holders regarding overdraft protection programs must be separately given and must be “clear and conspicuous” in cases in which bounce protection will be applied to a new or existing account.

• Amendments to Part 73 of the General Regulations of the Superintendent (Electronic Facilities)

Description of rule: This rule allows for a banking organization to conduct banking business at electronic facilities that are either established or shared, on a transaction fee or similar basis, by such banking facility.

Legal Basis for the rule: Banking Law §§ 14.1, 105-a, 240-a and 396-a.

Need for rule: This rule is necessary to streamline the application process for banking institutions when establishing electronic facilities.

• Amendments to Part 76 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act)

Description of rule: This rule pertains to the framework and criteria by which the Department of Financial Services assesses a banking institution’s record of helping to meet the credit needs of its entire community, including low- and moderate-income neighborhoods.

Legal Basis for the rule: Banking Law §§ 10, 14, 28-b and Art. XII.

Need for rule: This rule is necessary to conform the rule to changes in the Federal Community Reinvestment Act regulations.

• Amendments to Part 322 of the General Regulations of the Superintendent (Pledge of Assets and Maintenance of Assets by Licensed Foreign Banking Corporations in New York)

Description of rule: This rule describes the requirement of the pledge of assets and maintenance of assets by branches or agencies of foreign banking corporations in New York.

Legal Basis for the rule: Banking Law §§ 12, 202-b and 204.

Need for rule: This rule is necessary to reduce the asset pledge requirement for foreign banks with “well-rated” foreign branches and agencies and allow all foreign banks to pledge a wider variety of assets.

• Amendment to Part 400.5 of the General Regulations of the Superintendent (Licensed Check Cashers: Conduct of Business)

Description of rule: This rule describes the process of licensing for check cashers in New York state and the requirements of doing business as a check casher.

Legal Basis for the rule: Banking Law §§ 12, 37(3), 367, 369, 371, 372.

Need for rule: This rule is necessary to permit licensed check cashers to maintain bank accounts with banking institutions or their branches located inside New York state.

The following Banking rulemakings were adopted in 2002:

• Amendments to Part 41.3 of the General Regulations of the Superintendent (Prohibited Acts and Practices)

Description of rule: The rule sets forth the guidelines for the making of high-cost mortgage loans by regulated lenders.

Legal basis for the rule: Banking Law §§ 6-I, 6-l, 13 and 14.

Need for rule: Part 41 establishes various consumer protections with regard to the making of high cost mortgage loans. This rule is necessary to prohibit a lender from requiring a borrower to finance single premium credit insurance for a high cost home loan covered by Part 41.

• Adoption of New Part 41.11 of the General Regulations of the Superintendent (Single premium insurance; debt cancellation and suspension agreement payments)

Description of rule: The rule sets forth the guidelines for the making of high cost mortgage loans by regulated lenders.

Legal basis for the rule: Banking Law §§ 6-I, 6-l, 13 and 14.

Need for rule: Part 41 establishes various consumer protections regarding the making of high cost mortgage loans. This rule is necessary to ban the financing of single premium credit insurance, in high cost home loans covered by Part 41.

• Amendments to Part 80 of the General Regulations of the Superintendent (Investment in Junior Lien Mortgage Loans by Commercial Banks, Savings Banks, Credit Unions, Mortgage Bankers and Savings and Loan Associations)

Description of rule: The rule sets forth the guidelines for investment in junior lien mortgages by various entities.

Legal basis for the rule: Banking Law §§ 14, 103, 235, 380, 454 and 590-a.

Need for rule: This rule is necessary to conform Part 80 to Part 38 of the General Regulations of the Superintendent so that entities may comply with applicable disclosure and notification requirements and to allow collection of processing fees.

• Amendments to Part 82 of the General Regulations of the Superintendent (Alternative Mortgage Instruments)

Description of rule: The rule gives licensed entities the authority to enter into alternative mortgage instruments.

Legal basis for the rule: Banking Law §§ 6-f and 14[1].

Need for rule: This rule is necessary to conform Part 82 to Part 38 of the General Regulations of the Superintendent so that entities may comply with applicable disclosure and notification requirements and to allow collection of processing fees.

• Amendments to Part 322 of the General Regulations of the Superintendent (Pledge of Assets and Maintenance of Assets by Licensed Foreign Banking Corporations in New York)

Description of rule: The rule describes the requirement of the pledge of assets and maintenance of assets by branches or agencies of foreign banking corporations in New York.

Legal basis for the rule: Banking Law §§ 12, 202-b and 204.

Need for rule: This rule is necessary to provide all foreign banking institutions some relief from the current requirements in the form of a reduction for most institutions in the amount of assets required to be pledged, as well as additional flexibility in the types of assets that may be pledged, and an easing of certain administrative aspects of compliance with the requirements.

• Amendments to Part 333.1 of the General Regulations of the Superintendent (Indices Which may be used in Connection with Variable Rate Closed-End Personal Loans made by Lending Institutions Pursuant to Part 33 or in Connection with Variable Rate Open-Ended Accounts Established by Banking Institutions Pursuant to Part 90)

Description of rule: The rule sets forth the list of indices used by banking institutions which are making variable rate closed-end personal loans pursuant to the provisions of Part 33 of the General Regulations of the Superintendent or for use by banking institutions which establish variable rate open-end accounts pursuant to Part 90 of the General Regulations of the Secretary.

Legal basis for the rule: Banking Law §§ 12, 202-b and 204.

Need for rule: This rule is necessary to add LIBOR to the list of indices used by banking institutions which are making variable rate closed-end personal loans pursuant to the provisions of Part 33 of the General Regulations of the Superintendent or for use by banking institutions which establish variable rate open-end accounts pursuant to Part 90 of the General Regulations of the Secretary.

• Amendment to Supervisory Procedure G 106.3 (Public Access to Department of Financial Services Records: Records Access Officer)

Description of rule: The rule describes the process by which the public may access Department of Financial Services records.

Legal basis for the rule: Banking Law §§ 12, 36.10; Public Officers Law §§ 87, 89.

Need for rule: This rule has since been amended to state that the records access officer shall be designated by the general counsel from the attorneys in the office of the general counsel.

• Amendment to Supervisory Procedure G 114 (Access to Personal Information: Designation of Privacy Compliance Officer)

Description of rule: The rule describes the process by which the public may access Department of Financial Services records.

Legal basis for the rule: Banking Law §§ 12, 36.10; Public Officers Law §§ 87, 89.

Need for rule: This rule has since been amended to state that the privacy compliance officer shall be designated by the general counsel from the attorneys in the office of the general counsel.

The following Banking rulemakings were adopted in 1997:

• Amendment to Part 5.1 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: Purpose)

Description of rule: The rule sets forth criteria which would require under certain circumstances that foreign branches and agencies utilize independent external and internal auditors satisfactory to the superintendent.

Legal basis for the rule: Banking Law §§ 14, 37 and 204.

Need for rule: Part 5.a is necessary because it requires control enhancements to the auditing process which reduce the risk of fraud and promote a safe and sound banking environment.

• Amendment to Part 5.2 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: Definitions)

Description of rule: The rule defines various terms used in Part 5.

Legal basis for the rule: Banking Law §§ 14, 37 and 204.

Need for rule: Part 5.2 is necessary because it clarifies the meaning of various terms used through Part 5.

• Amendment to Part 5.3 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: External Audits)

Description of rule: The rule requires foreign bank offices with a composite ROC-A rating of four or worse; a separate operational controls (“O”) rating of four or worse; and, on a case-by-case basis, an O rating of three or worse to engage an independent external auditor.

Legal basis for the rule: Banking Law §§ 14, 37 and 204.

Need for rule: Part 5.3 is necessary because it sets forth the circumstances under which a foreign bank office would be required to engage an independent external auditor.

• Amendment to Part 5.4 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: Internal Audits)

Description of rule: The rule requires that foreign bank offices with a composite ROC-A rating of four or worse; a separate operational controls (“O”) rating of four or worse; and, on a case-by-case basis, an O rating of three or worse, must have comprehensive on-site audits performed annually by either the foreign banking corporation’s head office internal auditors or foreign bank office resident or regional internal auditors who report directly to the head office.

Legal basis for the rule: Banking Law §§ 14, 37 and 204

Need for rule: Part 5.2 is necessary because it sets forth the circumstances under which a foreign bank office would be required to have its internal audit performed by the foreign banking corporation’s internal auditors or foreign bank office resident or regional internal auditors who report directly to the head office.

• Amendment to Part 5.5 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: Compliance with Laws and Regulations)

Description of rule: The rule requires that coincidental with the reports issued pursuant to Part 5.3, a foreign bank office’s management shall assert its compliance with applicable laws and regulations.

Legal basis for the rule: Banking Law §§ 14, 37 and 204

Need for rule: Part 5.5 is necessary because it promotes safety and soundness by requiring that management of a foreign bank office formally assert that the office is in compliance with applicable laws and regulations.

• Amendment to Part 5.6 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: Additional actions and orders)

Description of rule: The rule states that the requirements outlined in Part 5 are in addition to any other additional supervisory or enforcement actions that the superintendent may impose against a foreign bank office.

Legal basis for the rule: Banking Law §§ 14, 37 and 204

Need for rule: Part 5.6 is necessary because it clarifies that the requirements outlined in Part 5 are in addition to any other additional supervisory or enforcement actions that the superintendent may impose against a foreign bank office.

• Amendment to Part 5.7 of the General Regulations of the Superintendent (Internal and External Audits at Branches and Agencies of Foreign Banking Corporations: Compliance with Federal regulations)

Description of rule: The rule states that compliance by an insured foreign bank office with section 112 of the Federal Deposit Insurance Corporation Improvement Act, (12 U.S.C. § 1831m), as it may be amended from time to time, shall be deemed compliance by that insured foreign bank office with section Part 5.3(a), subject to the superintendent’s authority to require additional procedures as may be deemed to be necessary.

Legal basis for the rule: Banking Law §§ 14, 37 and 204

Need for rule: Part 5.7 is necessary because it clarifies that a foreign bank office may be deemed in compliance with Part 5.3(a) by being in compliance with 12 U.S.C. § 1831m.

• Amendment to Part 76.1 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Statement of policy: Explanation)

Description of rule: Part 76 establishes the framework and criteria by which the department assesses a banking institution’s record of helping to meet the credit needs of its entire community, including low- and moderate- income neighborhoods, consistent with the safe and sound operation of the banking institution.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: The rule carries out the purpose of the Community Reinvestment Act (“CRA”) by having the superintendent assess a banking institution’s record of helping to meet the credit needs of the local communities in which the banking institution is chartered.

• Amendment to Part 76.2 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Definitions)

Description of rule: The rule defines various terms used throughout Part 76.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 5.2 is necessary because it clarifies the meaning of various terms used through Part 76.

• Amendment to Part 76.3 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Statement of policy: Filing Requirements)

Description of rule: The rule lists the documents that each banking institution is required to file with the superintendent to comply with the Community Reinvestment Act of 1977.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.3 is necessary because it sets forth the filing requirements to establish compliance with the Community Reinvestment Act of 1977.

• Amendment to Part 76.4 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Statement of policy: Review of applications)

Description of rule: The rule states that the superintendent will consider the factors set forth in section 28-b of the Banking Law and the performance tests and standards set forth in Part 76.7 in assessing a banking institution’s record of performance with respect to reviewing an application that a banking institution has submitted.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.4 is necessary because it explains how the superintendent will review applications submitted by banking institutions.

• Amendment to Part 76.5 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Community Reinvestment Act Assessments: Public Disclosure)

Description of rule: The rule states that the Department will conduct community reinvestment evaluations once every 24 to 36 months, assign a rating to each institution based on its performance, and make these ratings, along with the accompanying summaries, publically available.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.5 is necessary because it explains the process of community reinvestment evaluations.

• Amendments to Part 76.6 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Assessment Area Delineation)

Description of rule: The rule states that a banking institution shall delineate one or more assessment areas within which the Department evaluates the banking institution’s record of helping to the meet the credit needs of its community and describes the requirements for the assessment.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.6 is necessary because it describes the methods and requirements for assessment area delineation by a banking institution for Community Reinvestment purposes.

• Amendments to Part 76.7 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Performance Tests and Standards)

Description of rule: The rule outlines the performance tests and standards used by the Department to assess a banking institution’s Community Reinvestment Act performance.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.7 is necessary because it explains how the Department conducts the performance tests and standards to assess a banking institution’s Community Reinvestment Act performance.

• Amendments to Part 76.8 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Lending Test)

Description of rule: The rule describes the scope and the factors involved in the lending test conducted by the Department.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.8 is necessary because it clarifies the specific aspects of a lending test and factors the Department will use in conducting lending tests.

• Amendments to Part 76.9 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Investment Test)

Description of rule: The rule describes the scope and the factors involved in the investment test conducted by the Department.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.9 is necessary because it clarifies the specific aspects of a lending test and factors the Department will use in conducting investment tests.

• Amendments to Part 76.10 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Service Test)

Description of rule: The rule describes the scope and the factors involved in the service test conducted by the Department.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.10 is necessary because it clarifies the specific aspects of a service test and factors the Department will use in conducting service tests.

• Amendments to Part 76.11 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Community Development Test for Wholesale or Limited Purpose Banking Institutions)

Description of rule: The rule describes the scope and the factors involved in the community development test for wholesale or limited purpose banking institutions.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.11 is necessary because it clarifies the specific aspects of a community development test for wholesale or limited purpose banking institutions.

• Amendments to Part 76.12 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Small Banking Institution Performance Standards)

Description of rule: The rule describes the Community Reinvestment evaluation process of small banking institution performance standards.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.12 is necessary because it clarifies the performance standards of small banking institution regarding Community Reinvestment.

• Amendments to Part 76.13 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Strategic Plan)

Description of rule: The rule describes how the Department will assess a banking institution’s record of helping to meet the credit needs of its assessment area under a strategic plan and the requirements of such plan.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.13 is necessary because it clarifies the requirements of strategic plan for approval by the Department.

• Amendments to Part 76.14 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: High-Cost Areas)

Description of rule: The rule states that the department recognizes the demographics and housing characteristics of high-cost areas and outlines the considerations that the department takes in its evaluation of these areas.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.14 is necessary because it establishes various consumer protections with regard to the making of high cost mortgage loans. This rule is necessary to prohibit a lender from requiring a borrower to finance single premium.

• Amendments to Part 76.15 of the General Regulations of the Superintendent (Compliance with Community Reinvestment Act Requirements: Other Documents)

Description of rule: The rule states that the Department when taking any action under Banking Law section 29 relating to the opening of a branch or public accommodation office or under Banking Law section 601-b relating to the approval or disapproval of a merger or purchase of assets, may request documents in connection with these applications.

Legal basis for the rule: Banking Law §§ 10, 14, 28-b, and Article XII.

Need for rule: Part 76.15 is necessary because it gives notice that other documents may be requested by the Department with regard to Community Reinvestment Act assessments.

• Amendments to Part 80.7 of the General Regulations of the Superintendent (Investment in Junior Lien Mortgage Loans by Commercial Banks, Savings Banks, Credit Unions, Mortgage Bankers and Savings and Loan Associations: Appraisal)

Description of rule: The rule states that no junior mortgage loan shall be made except upon a written and signed certificate which state that the property securing such loan has been examined and which appraises the value of such property.

Legal basis for the rule: Banking Law §§ 14, 103, 235, 380, 454 and 590-a.

Need for rule: Part 80.7 is necessary because it requires a signed certificate stating the property has been appraised and examined in order for a junior lien mortgage.

• Amendments to Part 80.10 of the General Regulations of the Superintendent (Investment in Junior Lien Mortgage Loans by Commercial Banks, Savings Banks, Credit Unions, Mortgage Bankers and Savings and Loan Associations: Revolving Credit Accounts)

Description of rule: The rule sets forth the requirements of revolving credit account secured by a junior lien mortgage.

Legal basis for the rule: Banking Law §§ 14, 103, 235, 380, 454 and 590-a.

Need for rule: Part 80.10 is necessary because it establishes requirements for revolving credit accounts secured by a junior lien mortgages.

• Amendments to Part 82.9 of the General Regulations of the Superintendent (Alternative Mortgage Instruments: Compliance with Federal Regulation)

Description of rule: The rule states that any bank, trust company, savings bank, savings and loan association, credit union, mortgage banker and branch or agency of a foreign banking corporation are deemed to be in compliance with Parts 82.5, 82.6(a), 80.4(a) and 80.10(a) if those institutions are in compliance with certain sections of federal regulations with respect to adjustable-rate first lien mortgage transactions and home equity plans.

Legal basis for the rule: Banking Law §§ 6-f and 14[1].

Need for rule: Part 82.9 is necessary because it explains when the above-described institutions are in compliance with NY regulations with respect to adjustable-rate first lien mortgage transactions and home equity plans.

• Amendments to Part 321.3 of the General Regulations of the Superintendent (Loans to Executive Officers and Directors of Banks and Bank Holding Companies: Loans to Executive Officers and Directors)

Description of rule: The rule states that circumstances of when a bank or bank holding company institution may make a loan to an executive officer or a director.

Legal basis for the rule: Banking Law §§ 103.8, 130.5-6, 142.3(b) and 143.2.

Need for rule: Part 321.3 is necessary because it explains when a loan made to an executive officer or a director may be permissible.

• Amendments to Part 321.4 of the General Regulations of the Superintendent (Loans to Executive Officers and Directors of Banks and Bank Holding Companies: Additional Restrictions on Loans to Executive Officers)

Description of rule: The rule sets forth additional restrictions on loans to executive officers.

Legal basis for the rule: Banking Law §§ 103.8, 130.5-6, 142.3(b) and 143.2.

Need for rule: Part 321.4 is necessary because it clarifies any additional restrictions on loans to executive officers.

• Amendments to Part 321.5 of the General Regulations of the Superintendent (Loans to Executive Officers and Directors of Banks and Bank Holding Companies) (Reports of Executive Officers’ Indebtedness to other Banks)

Description of rule: The rule sets forth the requirement that an executive officer who becomes indebted to any domestic or foreign banking corporation for over a certain amount must file a report with the board of directors stating the date and amount of such loan or indebtedness.

Legal basis for the rule: Banking Law §§ 103.8, 130.5-6, 142.3(b) and 143.2.

Need for rule: Part 321.5 is necessary because it establishes a requirement that a report must filed so that the board of directors will be aware of such executive officer’s indebtedness.

• Amendments to Part 321.9 of the General Regulations of the Superintendent (Loans to Executive Officers and Directors of Banks and Bank Holding Companies: Compliance with Federal Regulation)

Description of rule: The rule states that if a banking organization is in compliance with Regulation O of the Board of Governors of the Federal Reserve System it shall be deemed in compliance with this rule.

Legal basis for the rule: Banking Law §§ 103.8, 130.5-6, 142.3(b) and 143.2.

Need for rule: Part 312.9 is necessary because it clarifies certain circumstances when a banking institution is in compliance with Part 321.

• Amendments to Part 410.7 of the General Regulations of the Superintendent (Mortgage Bankers: Books and Records; Annual Reports)

Description of rule: The rule describes the manner in which mortgage bankers shall keep and maintain its books and records and it also describes the annual reports which must be filed with the Department.

Legal basis for the rule: Banking Law §§ 103.8, 130.5-6, 142.3(b) and 143.2.

Need for rule: Part 410.7 is necessary because it clarifies the Department’ requirements regarding the maintenance of a mortgage banker’s books and records and annual reports.

• Amendments to Part 410.8 of the General Regulations of the Superintendent (Mortgage Bankers: Corporate Surety Bonds for Mortgage Bankers)

Description of rule: The rule sets forth the surety bond requirements for mortgage bankers.

Legal basis for the rule: Banking Law §§ 103.8, 130.5-6, 142.3(b) and 143.2.

Need for rule: Part 410.8 is necessary because it clarifies the amount and terms of surety bonds filed by mortgage bankers.

Comments on Banking Rulemakings may be submitted to Christine Tomczak, Assistant Counsel – [email protected]; (212) 709-1642; New York State Department of Financial Services, One State Street, New York, NY 10004.

4. FINANCIAL SERVICES RULEMAKINGS

There were no new or amended Financial Services rulemakings adopted in 2019.

The following Financial Services rulemakings were adopted in 2017:

• Adoption of new Part 500 (Cybersecurity Requirements for Financial Services Companies) to Title 23 NYCRR, effective March 1, 2017.

Statutory Authority: Financial Services Law Sections 102, 201, 202, 301, 302, and 408.

The regulation was adopted to require 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 to continue operating in a safe and sound manner.

• Adoption of new Part 501 (Nationwide Multistate Licensing System and Registry) to Title 23 NYCRR, effective October 4, 2017.

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 regulation was adopted to permit, on a voluntary basis, a broader range of regulated entities and applicants to make certain submissions electronically to the Department through the Nationwide Multistate Licensing System and Registry rather than make, as was required under the former rule, hard-copy submissions to the Department.

Comments on these Financial Services rulemakings may be submitted to Thomas Eckmier, Deputy General Counsel – [email protected]; (212) 709-1661; New York State Department of Financial Services, One State Street, New York, NY 10004.

There were no new or amended Financial Services rulemakings adopted in 2012.

Five-Year Review of Existing Regulations

Pursuant to section 207 of the State Administrative Procedure Act, notice is hereby provided of rules adopted by the New York State Gaming Commission (and its predecessor agencies, the Racing and Wagering Board and the Division of Lottery) for the calendar years 2017, 2012, 2007, 2002 and 1997. Public comments on the continuation or modification of these rules are invited and those received by March 14, 2022, 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.

2017

Horse Racing

SGC-45-16-00002 Advertising on jockeys

This rulemaking amended 9 NYCRR § 4041.6 to permit a jockey to display certain trade-related logos as well as the jockey’s name on the pants and the rear of the helmet within certain parameters, all without special permission of the stewards. This rule is needed to eliminate unnecessary regulation by the stewards. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 103(2) and 104(1) and (19).

SGC-47-16-00017 Harness racing conflicts

This rulemaking added 9 NYCRR § 4105.17 and repealed § 4116.3 to expand the conflict-of-interest restrictions on racing secretaries and their assistants and substitutes in harness racing. This rule is needed to enhance the real and perceived integrity of New York racing by prohibiting certain practices that could compromise, or appear to compromise, the writing of races at New York harness pari-mutuel racetracks. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 103(2), 104(1) and (19) and 122.

SGC-17-17-00008 Account wagering

This rulemaking amended 9 NYCRR §§ 4500.1, 4500.2, 4500.3, 4500.4, 4500.5, 4500.6, 4500.7, 4500.8, 4500.9, 4500.10, 4500.11, 4500.12, 4500.13, 4500.14, 4500.15, 4500.16, 4500.17, 4500.20, 4500.21 and 4500.22 to regulate multi-jurisdictional account wagering providers. This rule is needed to implement regulation of multi-jurisdictional account wagering providers consistent with provisions of Chapter 174 of the Laws of 2013. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 104(1) and (19) and 1012(2).

SGC-17-17-00004 Unqualified standardbred horse

This rulemaking amended 9 NYCRR § 4113.5(a)(1) to allow standardbred horses not to requalify when uncontrollable events (such as weather) prevent a horse from racing on regular basis. This rule is needed to permit a more efficient and timely response by the Commission when extraordinary events have interfered with the normal opportunities for harness horses to race. The rule was further amended in 2020. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 103(2), 104(1) and (19) and 301(1).

Lottery

SGC-32-17-00005 Mega Millions amendments

This rulemaking amended 9 NYCRR §§ 5007.1, 5007.2, 5007.4 and 5007.7 to implement nationwide changes to the Mega Millions multi-state lottery game. This rule is needed to enable the State’s continued participation in the game. Section 5007.2 was further amended in 2019. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law section 104 and Tax Law sections 1601, 1604, 1612 and 1617.

Gaming

SGC-47-16-000024 Bonding of video lottery agents

This rulemaking amended 9 NYCRR § 5103.5 to revise the manner in which the bond amount required from each video lottery gaming agent is determined, reflecting current vendor fees. This rule is needed to allow the flexibility to require bond coverage from each video gaming facility that is commensurate with the State retention percentage at such facility. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 103(2) and 104(1) and (19) and Tax Law sections 1601, 1604(b) and 1617-a.

2012

Rules adopted by the Racing and Wagering Board:

RWB-43-11-00003 Testing of certain licensees and officials in horse racing activities for blood alcohol content

This rulemaking added 9 NYCRR § 4042.6 to authorize testing of blood alcohol content to detect and deter alcohol intoxication by licensees. This rule is needed to ensure safe operations and integrity of racing. The rule was amended in 2013. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 301(1).

RWB-43-11-00004 Use of cellular telephones in the paddock at harness tracks

This rulemaking added 9 NYCRR § 4104.14 to allow cellular telephones and other electronic communication devices in designated areas of a harness racetrack paddock. This rule is needed to permit trainers, drivers, owners and groom the ability to communicate while in the paddock area and harmonize practices with those at Thoroughbred racetracks. The rule was amended in 2016. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law section sections 102 (formerly 101) and 301(1).

RWB-44-11-00001 Minimum diameter of a riding crop used in Thoroughbred racing

This rulemaking amended 9 NYCRR § 4035.9(a)(1)(iii) to require the use of a padded riding crop with a minimum shaft diameter of 3/8th of an inch. This rule is needed to protect the health of racehorses. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101), 205 and 218.

RWB-44-11-00002 The trifecta wager in thoroughbred horse racing

This rulemaking amended 9 NYCRR § 4011.22(i), since renumbered as 4011.21(h), to allow trifecta wagering when there are five betting entries in the racing fields. This rule is needed to make wagering more appealing to the betting public. The renumbering in 2015 also contained a stylistic edit. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 235.

RWB-44-11-00020 Generally accepted auditing standards for off-track betting corporations

This rulemaking amended 9 NYCRR §§ 5208.1, 5208.2, 5208.3, 5208.4, 5208.5 and 5208.6 to establish uniform auditing standards for off-track betting corporations. This rule is needed to ensure the integrity of auditing procedures used by off-track betting corporations by establishing uniform standards for reporting and auditing activities. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101), 516, 517, 520, 524 and 621.

RWB-52-11-00007 Authorizing and prohibiting the use of phenylbutazone

This rulemaking amended 9 NYCRR §§ 4043.2(d) and 4120.2(d) (both such subdivisions were repealed entirely in 2014) to make phenylbutazone a 48-hour drug only in both harness and Thoroughbred racing. This rule is needed to ensure that horses are not overmedicated to the point of adversely affecting the integrity of horseracing. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101), 301(2)(a) and 902(1).

RWB-08-12-00001 Out-of-competition drug testing of Thoroughbred race horses

This rulemaking amended 9 NYCRR §§ 4012.5 and 4043.12 to include within existing equine drug-testing requirements racehorses that are not formally scheduled to race. This rule is needed to keep the Commission's out-of-competition testing rule for Thoroughbred horses in line with enforcement needs. Section 4012.5 was further amended in 2013 and section 4023.12 was further amended in 2013 and 2018. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 902(1).

RWB-23-12-00001 Maximum fines for violations in Thoroughbred, harness and Quarterhorse racing

This rulemaking amended 9 NYCRR §§ 4022.13, 4102.3 and 4207.29 to establish maximum fine amounts in accordance with statute. This rule is needed to make regulations consistent with statute. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101), 250, 301(1), 310, 401(1) and 410.

RWB-25-12-00001 The reimbursement of costs to the State of New York for associate judges and starters at harness races

This rulemaking added 9 NYCRR § 4101.41 to implement reimbursement for the costs of hiring certain harness racing officials. This rule is needed to comply with the provisions of Part Y of Chapter 58 of the Laws of 2012. The rule was further amended in 2013. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101), 301 and 308.

RWB-29-12-00007 Claims of Thoroughbred horses that die on the track during or after a race

This rulemaking amended 9 NYCRR § 4038.5(a) to remove an incentive that a trainer or owner may have for entering an unsound horse in a claiming race for the purpose of racing and potentially transferring a horse without proper regard to the horse's well-being and the integrity of racing. This rule is needed to reduce fatalities of Thoroughbred horses and injuries to jockeys. Section 4038.5 was further amended in 2014, 2016 and 2020, The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law section 102 (formerly 101).

RWB-30-12-00001 Procedures and penalties for the testing of Thoroughbred and harness race horses for the presence of excess TCO2 levels

This rulemaking amended 9 NYCRR §§ 4043.8, 4043.9, 4120.13 and 4120.14 to revise the TCO2 testing rule to reflect current scientific developments and revise penalties to best deter violations. This rule is needed to bring the TCO2 testing rule horse in line with enforcement needs. The statutory basis for the rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 103(2), 301(1) and (2)(a) and 902(1).

RWB-33-12-00002 The minimum price for which a horse shall be entered in a claiming race

This rulemaking amended 9 NYCRR § 4038.2 to mandate a claiming price-to-purse proportion and thus establish a relationship between investment in a horse and the potential purse in a manner designed to provide a safer racing environment in which financial incentive is lessened to race a horse that should not be raced. This rule is needed to diminish the risk of injury to human and equine participants in horse racing. The rule was further amended in 2019. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law section 102 (formerly 101).

2007

Rules adopted by the Division of Lottery:

LTR-50-06-00004 Video lottery gaming

This rulemaking amended 21 NYCRR Part 2836 (since renumbered as 9 NYCRR Subtitle T, Chapter IV, Subchapter A, Parts 5100-5122) to allow for the licensed operation of video lottery gaming. These rules are needed to regulate video lottery gaming. These rules have been amended in 2013, 2015, 2016, 2017, 2019 and 2021. The statutory basis for the rules is Tax Law section 1617-a.

Rules adopted by the Racing and Wagering Board:

RWB-19-07-00004 Post race blood gas testing for Thoroughbred and harness race horses

This rulemaking added 9 NYCRR §§ 4038.19(g), 4043.8, 4043.9, 4043.10, 4109.7(f), 4120.13, 4120.14 and 4120.15 to detect and deter the administration of alkali agents to Thoroughbred racehorses and harness racehorses for the purpose of affecting the horse's performance. These rules are needed to assure the public's confidence and continue the high degree of integrity in racing at the pari-mutuel betting tracks. The statutory basis for these rules is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101), 235 (formerly 227), 301, 305 and 902.

RWB-19-07-00005 Authorizing the ‘‘Treasure Chest Raffle’’ and ‘‘Search for the Queen of Hearts” as games of chance

This rulemaking added 9 NYCRR §§ 5620.23 and 5620.24 (since renumbered as §§ 4620.23 and 4620.24). This rule is needed to ensure that the Commission’s approved games of chance keep pace with popular games of chance, and ensure increased charitable proceeds derived from lawful games of chance. The statutory basis for the rules is General Municipal Law section 188-a.

RWB-20-07-00006 Use of the whip rule

This rulemaking amended 9 NYCRR § 4117.8 to allow harness drivers to make use of the whip at one-quarter of a mile from the finish of the race. The previous rule allowed the use of a whip from one-eighth of a mile from the finish line. This rule is needed to diminish the public perception that the driver is not doing all he or she can to win the race. Judges at the racetracks in the state, as well as fans, had expressed concern that the former rule was too restrictive and did not allow enough time to urge the horse in the race. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 301.

RWB-20-07-00007 Wagering while on duty

This rulemaking amended 9 NYCRR §§ 4005.4 and 4122.10 to prohibit pari-mutuel corporation employees from making wagers while on duty. This rule is needed to prevent the apparent or actual improprieties that occur when an employee of the pari-mutuel division of a harness or Thoroughbred racetrack places wagers while on duty even though there is no customer at the window. The public sees the pari-mutuel teller as someone who may have access to exclusive wagering information regarding horses or betting patterns in a given race. If the pari-mutuel employee is allowed to place wagers while on duty, it may appear that the teller is exploiting the position for personal gain, thereby eroding public confidence in pari-mutuel wagering in general. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 301.

RWB-20-07-00008 Single service use and disposal of syringes and needles

This rulemaking added 9 NYCRR §§ 4043.11 and 4120.16 to prevent the inadvertent administration of a prohibited or harmful drug to a horse and prevent the contamination of the horse's blood. This rule requires single-service syringes for all racehorses. The rule is needed to prevent inadvertent administration of a prohibited or harmful drug to a horse, which may affect the health or performance of a racehorse. The rule is also needed to prevent the contamination of the horse's blood, which could result in a positive drug test and the subsequent disqualification and penalty for a drug positive. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 301.

RWB-31-07-00009 Failure to finish a harness race

This rulemaking amended 9 NYCRR § 4117.2(c) to clarify the process whereby judges decide the order of finish in cases where a horse fails to finish a race because it breaks its gait. It also allows the judges to determine the appropriate order of finish in light of the circumstances of the race. This rule is needed because it promotes safe driving, avoids the disqualification of more than one horse when only one horse is at fault and preserves the integrity of the race for the betting public. The statutory basis for the rule is Racing, Pari-Mutuel Wagering and Breeding Law sections 102 (formerly 101) and 301.

2002

Rules adopted by the Racing and Wagering Board:

RWB-37-01-00002 Games of Chance

This rulemaking amended 9 NYCRR §§ 5602.1, 5606.1, 5606.14, 5608.7, 5620.12, 5624.1, 5624.18 and 5624.21 (since renumbered as §§ 4602.1, 4606.14, 4608.7, 4620.12, 4624.1, 4624.18 and 4624.21) to make technical changes to update form numbers and addresses for agency offices, harmonize language and correct typographical errors. These rules are needed to make uniform the application and reporting forms used by the agency and licensing authorities in ensuring that charitable gaming is conducted in accordance with the games of Chance Law and that charitable gaming funds are used properly. The statutory basis for the rules is General Municipal Law section 188-a.

RWB-38-01-00001 Bell Jar Games

This rulemaking amended 9 NYCRR §§ 5600.1, 5608.4, 5608.5, 5608.7, 5611.1, 5611.2, 5620.19 and 5620.22 (since renumbered as §§ 4601.1, 4608.5, 4609.7, 4611.1, 4611.2, 4620.10 and 4620.22) to establish procedures for bell jar ticket review by the Commission; authorize games of chance known as “seal cards,” “merchandise boards,” and “coin boards” and allow for the manufacture, approval and distribution of such games; change the sales reporting period for bell jar ticket manufacturers and distributors from monthly to quarterly; and permit the leasing of games of chance equipment and give the agency and local governments authority over such leasing. These rules are needed to give force and effect to the Games of Chance Law, as amended, The statutory basis for the rules General Municipal Law section 188-a.

RWB-28-02-00006 Electronic Bingo Aids

This rulemaking amended 9 NYCRR § 5800.1 (since renumbered as § 4800.1) and added Part 5823 (since renumbered as Part 4823) to authorize the use of electronic bingo aids in the conduct of charitable bingo and establish licensing and agency oversight. This rule is needed to establish licensing standards, ensure that sales of electronic bingo aids to not lead to the commercialization of bingo as prohibited by the New York State Constitution, establish the proper use of electronic bingo aids and establish reporting requirements. The statutory basis for these rules is Executive Law section 435(1)(a).

1997

Rule adopted by the Division of Lottery:

LTR-33-97-00002 Lottery Subscriptions

This rulemaking amended 21 NYCRR §§ 2804.13(a) and § 2804.16 (since renumbered as 9 NYCRR §§ 5005.1(c) and 5055.7(c)) to limit the number of persons who may claim a Lottery subscription prize and the time during which an error in a lottery subscription may be corrected. This rule was amended in 2013 and 2016. These rules are needed to make regulation of the subscription program consistent and manage potential disputes. The statutory basis for this rule is Tax Law section 1604(a).

Rules adopted by the Racing and Wagering Board:

RWB-43-96-0004 Additional License Fee for Raffles

This rulemaking amended 9 NYCRR § 5624.3 (since renumbered as § 4624.3) to incorporate the statutorily required 2% license fee into the agency's rules. The rule is needed to conform with General Municipal Law Article 9-a. The statutory basis for the rule is General Municipal Law sections 188-a and 195-f(4).

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 13, 2021, 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 2018, 2016, 2011, 2006 and 2001. Those regulations are set forth below:

Rules adopted in 2018

A. TDA-35-17-00005 Application process for SNAP

Amended 18 NYCRR § 387.8 to extend the State timeframe for processing and the issuance of SNAP benefits on an expedited basis from five to seven days following the date of application.*

Analysis of the need for the rule: These amendments were needed to align State regulations with federal requirements regarding the expedited process for applying for SNAP benefits in New York State.

Legal basis for the rule: 7 USC Chapter 51 (generally); 7 USC §§ 2011, 2013, and 2020(e)(9); 7 CFR 273.2(e) and (j)(2); SSL § 17(a)-(b), (j), 20(3)(d), and 95; L. 2012, ch. 41.

Rules adopted in 2016

B. 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: SSL § 20(3)(d); L. 2015, ch. 368; L. 2011, ch.24; L. 2007, ch. 74; SSL Article 10-D

C. 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

D. 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

E. 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), (j), 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)

F. 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

G. 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

H. 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

I. 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 certain services. 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)

J. 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

K. 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

L. 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)

M. 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

N. 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

O. 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)

P. 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

Q. 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 2011

R. TDA-35-10-00005 Child Support*

Amended 18 NYCRR §§ 347.2, 347.6, 347.7 and 347.8 to conform to State and federal statutes and federal requirements concerning the use of locate sources.

Analysis of the need for the rule: These amendments conformed State regulations to federal regulations in regard to locator services, which require that location services be used in all cases referred to the child support enforcement unit and in all cases applying for child support services.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 111-a, 111-b(3), (4), 111-g, 111-h(9), 111-k(1), 111-r, 111-s(1), 111-v and 143; FCA § 542; 45 CFR §§ 301.1, 303.3(b)(1) and 303.101(b)(1); 42 USC 666(c)(1).

S. TDA-41-10-00005 Public Assistance*

Repeal of 18 NYCRR § 351.24, amendment of 18 NYCRR §§ 351.1(b)(2)(iv), 352.17(d), 352.19(b)(3), 366.3 and 366.4(g) and addition of 18 NYCRR § 366.11 to eliminate quarterly reporting as a district optional requirement for the majority of public assistance recipients but keeping it a requirement for child assistance program participants.

Analysis of the need for the rule: These amendments were made due to quarterly reporting being eliminated as a district optional requirement for the majority of public assistance recipients, but still required for child assistance program recipients. Eliminating the optional reporting requirement for public assistance recipients simplifies reporting requirements, reduces administrative requirements, and saves money by no longer requiring the option to be included in the State’s Welfare Management System.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-t, 131-z(9) and 355(3).

T. TDA-16-11-00004 Standard Allowances for the Food Stamp Program*

Amended 18 NYCRR § 387.12(f)(3)(v)(a), (b) and (c); and added 18 NYCRR § 387.12(f)(3)(v)(d) to update the standard utility allowances for SNAP to the federally approved levels as of April 1, 2011, and to set forth OTDA’s process for periodically reviewing and updating the standard utility allowances.

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 April 1, 2011. If the standard utility allowances were not updated on April 1, 2011, it could have resulted in thousands of SNAP dependent households receiving overpayments each month. Overpayments to food stamp dependent households could have subjected the households to a 10% recoupment of their monthly food stamp benefits until the overpayment was recovered. Thus, the rule was necessary for the preservations 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); and 7 CFR § 273.9(d)(6)(iii).

Note: Chapter 41 of the Laws of 2012 changed the name of New York’s Food Stamp Program to SNAP.

Rules adopted in 2006

U. TDA-13-05-00001 Verification of School Attendance*

Amended 18 NYCRR § 369.4(f) to relieve social services districts of verifying school attendance of children under the age of 18.

Analysis of the need for the rule: These amendments were developed to make the requirements of 18 NYCRR § 369.4(f) consistent with those of 18 NYCRR § 369.2(c) and to reduce the administrative burden on social services districts.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1) and 355(3).

V. TDA-36-05-00003 Enforcement of Support Obligations and Issuance of Income Executions*

Amended 18 NYCRR § 347.9 to implement State and federal laws concerning the process for issuing income execution orders in child support cases and to change the method for calculating the amount of any additional deductions to be withheld from an employee’s income if the employee owes child support arrears or past due child support.

Analysis of the need for the rule: These amendments were developed to implement section 314 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193) and the provisions of Chapter 398 of the Laws of 1997 that amended section 5241 of the Civil Practice Law and Rules (sections 20 through 28), concerning the process for issuing income execution orders in child support cases and the penalties to be imposed on employers for failing to comply with such orders. The amendments also revised the calculation of the additional amount deducted from an employee’s salary to collect child support arrears or past due child support. These revisions allowed a higher additional amount when current support terminates, clarified the rules for deductions from lump sum payments, and clarified the rules for proving that the additional amount should be reduced or eliminated in certain cases.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 111-a.

W. TDA-51-05-00006 Treatment of Lump Sum Income*

Amended 18 NYCRR §§ 352.23(b) and 352.29(h)(1) and (2) and added 18 NYCRR § 352.23(b)(4) to implement Chapter 373 of the Laws of 2003, concerning the treatment of lump sum income.

Analysis of the need for the rule: This rule was developed to provide that any lump sum of income received by a public assistance applicant or recipient could be disregarded when determining eligibility for such assistance under certain circumstances.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-a(12)(c), 131-n and 355(3).

Rules adopted in 2001

X. TDA-43-00-00001 Cooperation with Social Services Officials

Amended 18 NYCRR § 351.1(b)(2) to require information concerning the non-legally responsible caretaker relatives of children who receive public assistance and information concerning the siblings of children who are receiving public assistance to be provided to social services officials.

Analysis of the need for the rule: This rule was developed to help the State meet federal requirements concerning the furnishing of information on families receiving assistance under the State’s public assistance programs funded under Temporary Assistance for Needy Families program.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 132.

Y. TDA-43-00-00002 Safety Net Assistance*

Amended 18 NYCRR § 370.4(b)(1)(ii) to exempt from the two year limit on receipt of safety net assistance work subsidies paid to an employer or a third party for the cost of wages or benefits for a recipient when the payment equals the full amount of the recipient’s safety net assistance budget deficit.

Analysis of the need for the rule: This rule was developed to make State requirements concerning the time limits for receipt of safety net assistance consistent with federal requirements concerning the time limits for receipt of benefits funded under the Temporary Assistance for Needy Families program.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 158(a) and art. 5, title 3.

Z. TDA-46-00-00004 Intentional Program Violations

Amended 18 NYCRR §§ 359.3(a) and 359.9(g) to make State regulations consistent with State law and a federal court decision.

Analysis of the need for the rule: This rule was developed to clarify the circumstances under which a person would be determined to have committed an intentional program violation and to clarify the start date of the disqualification period for an intentional program violation in the food stamp program.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 145-c.

AA. TDA-48-00-00002 Homeless Housing Assistance Program Projects

Amended 18 NYCRR § 800.2(m) to provide additional funds to existing homeless housing and assistance program projects.

Analysis of the need for the rule: This rule was developed to extend the policy that authorized the creation of operating and capital replacement reserves to existing Homeless Housing and Assistance Program projects.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and art. 2-A, title 1.

BB. TDA-19-01-00009 Food Stamp Benefit Increase*

Amended 18 NYCRR § 387.17(e) to clarify existing federal policy regarding time frames due to change in household circumstances.

Analysis of the need for the rule: This rule was developed to implement existing federal requirements regarding time frames for providing an increase in food stamp benefits due to a change in household circumstances.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 95.

CC. TDA-19-01-00010 Eligibility for Public Assistance

Amended 18 NYCRR § 351.2(e), (f) and (j) to conform eligibility requirements to existing policies and remove outdated terminology.

Analysis of the need for the rule: This rule was developed to make technical changes to conform to existing policies and to remove references to outdated terminology.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 158 and 349.

DD. TDA-21-01-00004 Temporary Assistance for Needy Families Program*

Amended 18 NYCRR § 369.4(d)(7) to establish uniform statewide standards.

Analysis of the need for the rule: These amendments were developed to establish uniform statewide standards for determining hardship under the Temporary Assistance for Needy Families program for purposes of exempting certain households from the 60-month time limit for eligibility.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 350(2) and art. 5, title 10.

EE. TDA-24-01-00001 Recoupment and Advance Allowances*

Amended 18 NYCRR §§ 352.11 and 352.31(d)(2) to permit recoupment of 10 percent of Public Assistance benefits for recipients of Safety Net Assistance and Family Assistance.

Analysis of the need for the rule: This rule was developed to permit recoupment of overpayments of public assistance benefits from future benefit payments made to public assistance recipients, achieve consistency in the recoupment policy between the family assistance and safety net assistance programs, ease administrative burdens for local social services districts, and make conforming changes to advance allowances.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 158(1) and 355(3).

OTDA received no public comments regarding its Rule Review published in the New York State Register on January 13, 2021.

OTDA is considering amendments that may impact the regulatory changes that were adopted in 2018, 2016, 2011, 2006, and 2001. OTDA is considering the following regulatory amendments:

- Amend regulations to update and clarify standards pertaining to hotels and motels used as placements for recipients of temporary housing assistance.

- Generally update SNAP regulations to conform to changes in federal regulations and law.

- Amend regulations to add a new Part 902: (1) set forth the responsibilities of social services districts with respect to hotels and motels that are used to provide temporary emergency housing to persons and families experiencing homelessness; (2) update and clarify the standards applicable to these hotels/motels; (3) require that Temporary Housing Assistance (THA) recipients placed in hotels/motels are provided with supportive services that are currently available to THA recipients placed in shelters; and (4) clarify OTDA’s oversight and enforcement authorities with respect to hotel/motels used by social services districts to place THA recipients.

- 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.

- Revise regulations to permit electronic provision of notices and communications related to case closure and desk reviews of the distribution and disbursement of support collections.

- Update regulations to allow the noncustodial parent’s copy of an electronic income withholding order (i.e., e-IWO) to be transmitted electronically, consistent with federal program 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 2018, 2016, 2011, 2006 and 2001, as amended or otherwise modified since their original adoption.

OTDA has determined that in the ensuing calendar year, it should review certain regulations from Title 18 NYCRR adopted in 2019, 2017, 2012, 2007, 2002 and 1997. 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 29, 2022.

Rules Adopted in 2019

1. TDA-12-18-0004 Reengagement/conciliation and sanction procedures for employment programs*

Amended 18 NYCRR §§ 385.11-385.13 to implement statutory changes relative to public assistance (PA) reengagement/conciliation and sanction procedures for PA recipients living in a city with one million or more people and refusing or failing to comply with employment requirements assigned by the social services district; to establish a consistent standard for imposing a PA and SNAP employment sanction; to reduce the minimum durational SNAP sanction period for first- and second-level SNAP employment sanctions for SNAP applicants and recipients; and to implement changes to SNAP voluntary quit provisions consistent with State and federal laws, regulations and policies.

Analysis for the need for the rule: The rule was needed to conform OTDA’s regulatory PA conciliation and sanction procedures for PA recipients living in a city with one million or more people to the SSL, establish a consistent standard for imposing a sanction for noncompliance with PA and/or SNAP employment requirements when a recipient fails to comply with a PA and/or SNAP employment requirement and align OTDA’s voluntary quit provisions with federal regulations and policy. The rule would also reduce the minimum durational SNAP sanction periods for first- and second-level SNAP employment sanctions.

Legal basis for the rule: 51 USC title 7, §§ 2011, 2013, 2029 (generally); 42. USC § 607; SSL, Article 5, Title 9-B, §§ 17(a)-(b), (j), 20(3)(d), 95, 131, 337, 341, 341-a, 342 and 342-a; L. 2015, ch. 562; L. 2012, ch. 41

2. TDA-41-18-00002 Standard Utility Allowances for the Supplemental Nutrition Assistance Program (SNAP)*

Amended 18 NYCRR § 387.12(f)(3)(v)(a)-(b) to set forth the standard utility allowances for SNAP as of October 1, 2018.

Analysis for the need for the rule: The rule was needed to set forth the federally approved standard utility allowances for SNAP within New York State as of October 1, 2018, reflecting an increase in fuel and utility costs, which is indicated in the Consumer Price Index fuel and utilities values.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 95; 7 USC §§ 2014(e)(6)(C); 7 CFR § 273.9 (d)(6)(iii)

3. TDA-49-18-00009 Outreach, Homeless Services Plans and Outcome Reporting*

Added 18 NYCRR § 304.2 to promote effective planning and strategic use of resources by social services districts in combatting homelessness through their submission of homeless services plans and homeless services outcome reports, and to require social services districts to provide homeless services and engage in outreach to persons experiencing homelessness, including the unsheltered homeless, in accordance with homeless service plans approved by OTDA.

Analysis for the need for the rule: The rule was needed to help ensure that individuals and families experiencing homelessness, including the unsheltered homeless, are provided with assistance and the services needed to help them secure transitional and permanent housing as critical steps toward attaining the goal of long-term housing stability.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(2)(b), (3)(d)-(e), 34(3)(c)-(f) and (6)

4. TDA-19-19-00007 Adult-Care Facilities and Shelters for Adults*

Amended 18 NYCRR Parts 485 - 486; repealed 18 NYCRR Part 491; added a new 18 NYCRR Part 491 to update State regulations pertaining to general provisions, inspections and enforcement, and shelters for adults.

Analysis for the need for the rule: The rule was needed to provide State oversight for all publicly-funded shelters for adults experiencing homelessness, including small-capacity shelters that are excluded from the definition of “shelter for adults” set forth in SSL § 2(23) and shelters for adult families that were neither subject to OTDA’s regulations pertaining to shelters for families with children nor explicitly addressed by OTDA’s regulations pertaining to shelters for adults.

Legal basis for the rule: SSL §§ 17(a)-(b), (k), 20(2)(b), (3)(d)-(f), 34(3)(c)-(f), (6), 460, 460-a(1)-(2), 460-c(1), 460-d(1), (7)(a) and 461

5. TDA-19-19-00008 Shelters for Families*

Repealed 18 NYCRR §§ 352.8(b)(2), 352.37, 352.38(b) and Part 900; amended 18 NYCRR 352.38(a), (c)-(e), 352.39 (a)-(b), 358-3.1(h), Part 493; and added a new Part 900 to update State regulations pertaining to shelters for families.

Analysis for the need for the rule: The rule was needed to provide State oversight for each publicly funded facility providing shelter services to homeless families with children, including facilities sheltering less than 10 homeless families and facilities sheltering single pregnant persons, so as to help ensure that shelters for homeless families with children and homeless pregnant persons meet physical plant and programming standards.

Legal basis for the rule: SSL §§ 17(a)-(b), (k), 20(2)(b), (3)(d)-(f), 34(3)(c)-(f), (6), 131-a, 460, 460-c(1) and 460-d(1)

6. TDA-19-19-00010 Elimination of Finger Imaging Requirement for Public Assistance Applicants and Recipients*

Amended 18 NYCRR § 351.2(a) and repealed § 351.9(d)(1) and Part 384 to eliminate the finger imaging requirement for the public assistance programs.

Analysis for the need for the rule: The rule was needed to bring New York State’s public assistance programs into alignment with other State benefit programs regarding identification verification requirements while also providing operational efficiencies for the State and social services districts, with no reduction in New York State’s abilities to detect and prevent fraud and abuse.

Legal basis for the rule: SSL §§ 17(a)-(b), (k), 20(3)(d), 34(3)(f); L. 1997, ch. 436, part B, section 23-a; L. 1995, ch. 83, section 266

Rules Adopted in 2017

7. TDA-38-17-00002 Standard Utility Allowances for the Supplemental Nutrition Assistance Program (SNAP)*

Amended 18 NYCRR § 387.12(f)(3)(v)(a)-(c) to set forth the standard utility allowances for SNAP as of October 1, 2017.

Analysis for the need for the rule: The rule was needed to set forth the federally approved standard utility allowances for SNAP within New York State as of October 1, 2017, reflecting an increase in fuel and utility costs, which is indicated in the Consumer Price Index fuel and utilities values.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 95; 7 USC § 2014(e)(6)(C); 7 CFR § 273.9(d)(6)(iii)

8. TDA-39-17-00005 Public Assistance (PA) Budgetary Method

Amended 18 NYCRR § 352.29(h)(2)(v)(b) to update State regulations governing treatment of income in excess of standard of need in PA households, consistent with SSL § 131-n(1).

Analysis for the need for the rule: The rule was needed to implement the provision of SSL § 131-n(1) in the State regulations and allow PA recipients to exempt up to $1,400 in a separate bank account for the sole purpose of paying tuition at two-year or four-year accredited post-secondary educational institutions.

Legal basis for the rule: SSL §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 131(1) and 131-n(1)

9. 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: Social Services Law (SSL) §§ 17(a)-(b), (j), 20(3)(d), 34(3)(f), 131(1) and 303(1)(k)

10. 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 help 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

11. 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

12. 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)

13. 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)

14. TDA-25-17-00001 Local District Child Support Enforcement Unit*

Amended 18 NYCRR § 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 USC §§ 651-657, 660, 663-664, 666-667; and 45 CFR § 302.12

15. 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

16. 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 USC §§ 651-657, 660, 663-664 and 666-667; 45 CFR 303.4, 303.6 and 303.8

Rules adopted in 2012

17. TDA-17-11-00016 Fair Hearing Process*

Amended 18 NYCRR § 358-5.5 to revise the time frames within which an Appellant or an Appellant’s authorized representative must request that a defaulted fair hearing be rescheduled.

Analysis of the need for the rule: The regulation removed the 15-day and 45-day time frames within which an Appellant or Appellant’s authorized representative is to request that a fair hearing be rescheduled.

Legal basis for the rule: SSL §§ 20(3)(d), 22(8), and 34(3)(f).

18. TDA-22-12-00022 SNAP*

Repealed 18 NYCRR § 388.8 and amended 18 NYCRR §§ 351.2, 384.3 and 387.9 to eliminate finger imaging for purposes of SNAP, as OTDA had implemented a new Statewide Clearance process designed to prevent the receipt of duplicate SNAP benefits, in order to reduce food insecurity and improve nutrition.

Analysis of the need for the rule: On April 16, 2012, OTDA implemented a new Statewide clearance system for SNAP applicants and recipients designed to prevent the receipt of duplicate SNAP benefits. Cases are matched based on Social Security number, date of birth, name, and gender. The statewide clearance function enables both local social services district eligibility and case workers in all 58 districts to be able to check for duplicate participation in real time.

Legal basis for the rule: SSL §§ 20(3)(d), 95 and 131(1); 7 USC § 2020(a).

19. TDA-26-12-00017 Food Stamp Program Renamed to be SNAP*

Amended 18 NYCRR § 387.0 and § 387.1 to change the name of the Food Stamp Program to SNAP pursuant to Chapter 41 of the Laws of 2012.

Analysis of the need for the rule: Chapter 41 of the Laws of 2012 changed the name of the Food Stamp Program to SNAP. The rule implemented this Chapter Law and clarified that references in the regulations to the Food Stamp Program refer to SNAP.

Legal basis for the rule: SSL § 95; 7 USC Chapter 51, §§ 2011 and 2013; Chapter 41 of the Laws of 2012.

20. TDA-42-12-00001 Standard Utility Allowance for SNAP*

Amended 18 NYCRR § 387.12 to update the standard utility allowances for SNAP to the federally approved levels as of October 1, 2012.

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, 2012. If the standard utility allowances were not updated on October 1, 2012, it could have resulted in thousands of SNAP dependent households receiving overpayments each month. Overpayments to SNAP dependent households could have subjected the households to a 10% recoupment of their monthly SNAP benefits until the overpayment was recovered. Thus, the rule was necessary for the preservation of the public health and general welfare of SNAP dependent households.

Legal basis for the rule: Social Services Law, §§ 20(3)(d) and 95; 7 USC § 2014(e)(6)(c); 7 CFR § 273.9(d)(6)(iii).

Rules adopted in 2007

21. TDA-41-06-00034 Child Support Standards Chart*

Amended 18 NYCRR § 347.10(a)(9), (b) and (c), consistent with State law at that time, to update the child support calculations formula as reflected in the child support standards chart.

Analysis of the need for the rule: The amendments were developed to update the self-support reserve, the poverty level and the child support standards chart in order to correctly reflect child support obligation amounts.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f), 111-a and 111-i.

22. TDA-42-06-00015 HEAP*

Amended 18 NYCRR § 358-2.2(a)(14) to update the adequate notice requirements for HEAP determinations.

Analysis of the need for the rule: The amendments were developed to update the adequate notice requirements to reflect the current policy and practice of providing budget information in HEAP notices that are based upon budget computations.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f), 97 and 131(1).

23. TDA-37-06-00011 Congregate Care Level 3 Enhanced Residential Care*

Amended 18 NYCRR § 352.8(b)(4)(i), (ii), (5), (c)(1)(ii) and (d); and added 18 NYCRR § 352.8(b)(4)(iii) to authorize the provision of an allowance for temporary assistance recipients residing in congregate care level 3 facilities.

Analysis of the need for the rule: This rule was developed to authorize the provision of an allowance for temporary assistance recipients residing in congregate care level 3 facilities in order to implement the reclassification adult homes and enriched housing programs certified by the Department of Health from congregate care level 2 to level 3.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f), 131(1), 131-o and 209.

Rules Adopted in 2002

24. TDA-02-02-00005 Removals

Amended 18 NYCRR § 352.7(o) to revive regulations concerning the circumstances under which a social services district may remove a public assistance recipient to another state or country.

Analysis of the need for the rule: This rule was developed to revive regulations concerning the circumstances under which a social services district may remove a public assistance recipient to another state or country.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f) and 121.

25. TDA-01-02-00005 HEAP

Amended 18 NYCRR §§ 358-3.5(b)(4), 393.2(b), 393.3(a)-(b), 393.4(c)-(d) and 393.5(a), (c) and (e) to conform the regulations concerning HEAP with current policies and procedures of OTDA.

Analysis of the need for the rule: This rule was developed to conform the regulations concerning HEAP with OTDA’s policies and procedures.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f) and 97.

26. TDA-29-02-00010 Refugee Cash Assistance and Medical Assistance Programs*

Amended 18 NYCRR Part 373 to implement federal regulations concerning operation of the refugee cash assistance program and the refugee medical assistance program.

Analysis of the need for the rule: This rule was developed to implement federal regulations concerning operation of the refugee cash assistance program and the refugee medical assistance program.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f), 358(3) and 358(4).

27. TDA-01-02-00006 Domestic Violence Waivers*

Amended 18 NYCRR § 351.2 to implement federal requirements concerning the establishment of domestic violence service plans and review of domestic violence waivers.

Analysis of the need for the rule: This rule was developed to implement federal requirements concerning the establishment of domestic violence service plans and review of domestic violence waivers.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f), 131-u and 349-a.

28. TDA-50-01-00004 Desk Reviews of Child Support Payments*

Added 18 NYCRR § 347.25 to publish regulations on the conduct of desk reviews. The desk reviews involve an examination of public assistance and child support enforcement case records that will result in a written determination to the requestor of how the collections were distributed.

Analysis of the need for the rule: This rule was developed to formalize the procedures for the conduct of desk reviews upon the request of current and former recipients of public assistance who wish to obtain an accounting of the distribution of child support collected for months during which they received assistance payments and who believe that such distribution was incorrect.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f) and 111-a.

Rules Adopted in 1997

29. SCS-13-96-00003 Personal Interviews for Applicants

Amended 18 NYCRR § 350.3(c) to require that an interview with an applicant for Public Assistance be scheduled within seven rather than five working days after an application is submitted.

Analysis of the need for the rule: The regulatory amendment assisted social services districts in the effective and efficient administration of Public Assistance programs by providing additional time for districts to schedule interviews with Public Assistance applicants.

Legal basis for the rule: SSL §§ 17, 20(3)(d), 34(3)(f), 158(a) and 355(3).

30. SCS-31-96-00001 Copies of Documents for Fair Hearings

Amended 18 NYCRR §§ 358-3.7 and 358-4.2 to set forth standards for making documents available to appellants in fair hearings.

Analysis of the need for the rule: The regulatory amendments relieved social services districts from costly mandates by conforming Office regulations to federal requirements regarding the provision of copies of documents from the case file by social services districts to appellants at fair hearings.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 22(8).

31. SCS-41-96-00017 Food Stamp Program

Amended 18 NYCRR §§ 359.9, 387.1, 387.2, 387.9, 387.10, 387.11, 387.12, 387.14 and 387.19 to implement the provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193) relating to the food stamp program.

Analysis of the need for the rule: The regulatory amendments were developed to implement the provisions of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193) relating to the food stamp program.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 95.

32. SCS-11-97-00019 1996 Self-Support Reserve and Child Support Standards Chart

Amended 18 NYCRR § 347.10, consistent with State law at that time, to reflect the 1996 self-support reserve and child support standard chart.

Analysis of the need for the rule: The regulatory amendment advised the social services districts and the family courts of the correct amount of the 1996 self-support reserve when calculating the basic child support obligation for parties in child support proceedings. This was consistent with federal requirements that States implement child support standards that were used in the calculation of child support obligations and that the standards took into account the non-custodial parent’s income.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 111-a and 111-i.

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 questions or comments may be referred 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]