In accordance with section 207 of SAPA, OCFS submits the following rules that were adopted during calendar years 2008, 2013, and 2015, and invites public comment on the continuation or modification of such rules. All section and part references are to Title 18 of the Official Compilation of the Codes, Rules and Regulations of the State of New York (NYCRR) unless otherwise indicated.

Comments regarding these rules should be sent to the attention of the following agency contact: Senior Attorney, Leslie Robinson, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144. Email: [email protected]. Comments must be received within 60 days of the date of publication of this Notice. Please reference Rule Review in the subject line of the email.

2008

1. CFS-43-07-00013-A Performance and Outcome-Based Provisions for Preventive Services

Action taken: Amendment of section 423.5

Analysis of need: This rule is necessary to promote the efficient use of state and local resources through performance and out-based provisions for preventive services.

Legal basis: Social Services Law, sections 20(3)(d), 153-k and 409-a; L. 2007, ch. 53, 57, part H

2. CFS-15-07-00010-A Residential Youth Facilities

Action taken: Amendment of Part 171 of Title 9 NYCRR

Analysis of need: This rule is necessary to amend the rules relating to the procedures for permitting resident mail, telephone calls and visitors to OCFS residents.

Legal basis: Executive Law, art. 19-G, sections 500, 501 and 504

2013

3. CFS-22-12-00010-A Establishing Limitations on Administrative Expenses and Executive Compensation of Service Providers Who Receive State Funds

Action taken: Addition of Part 409 to Title 18 NYCRR and addition of Sub-part 166-5 to Title 9 NYCRR

Analysis of need: This rule is necessary to establish limitations on administrative expenses and executive compensation in accordance with Executive Order numbers 38 and 43.

Legal basis: Social Services Law, sections 20(3)(d) and 34(3)(f); Executive Law, section 501(5)

4. CFS-32-13-00007-A Prohibition of Discrimination on the Basis of Sexual Orientation, Gender Identity or Expression

Action taken: Amendment of section 182-1.5 of Title 9 NYCRR; amendment of sections 421.3, 421.4 and 421.16; and addition of section 441.24

Analysis of need: This rule is necessary to prohibit the discrimination on the basis of sexual orientation, gender identity or expression.

Legal basis: Executive Law, sections 503 and 532-e, and Social Services Law, sections 20(3)(d), 34(3)(f), 462(1), 372-b(3), 372-e(2), 378(5), 409 and 409-a

2015

5. CFS-39-15-00001 Durable and Consistent Safeguards for Vulnerable Persons

Action taken: Amendment of Parts 166, 180 and 182 of Title 9 NYCRR; and amendment of Parts 402, 421, 433, 435, 441, 442, 443, 447, 448, 449, 476, 477 and 489

Analysis of need: This rule is necessary to create a set of durable and consistent safeguards for vulnerable persons.

Legal basis: Executive Law, sections 501(5) and 532-a and Social Services Law, sections 20(3)(d) and 34(3)(f)

6. CFS-35-00007-A Limited Secure Regulations

Action taken: Addition of Part 450

Analysis of need: This rule is necessary to establish regulations for residential facilities providing limited secure care within a social services district.

Legal basis: Social Services Law, sections 20(3)(d), 34(3)(d) and 404

7. CFS-25-15-00004-A To Allow the Business Enterprise Program to Expand Opportunities for Employment of Blind and Visually Impaired Individuals

Action taken: Amendment of sections 729.1, 729.2, 729.14, 729.18, 729.19 and 729.20

Analysis of need: This rule is necessary to allow the Business Enterprise Program to expand opportunities for employment of blind and visually impaired individuals.

Legal basis: Social Services Law, sections 20(3)(d), 34(3)(f) and 38 and Unconsolidated Law, sections 8714-a

8. CFS-25-15-00005-A To Eliminate the Use of Restraint Solely to Prevent Property Damage in Residential Facilities for Children

Action taken: Amendment of section 441.7

Analysis of need: This rule is necessary to eliminate the use of restraint solely to prevent property damage in residential facilities for children.

Legal basis: Social Services Law, sections 20(3)(d) and 34(3)(f)

9. CFS-11-15-00011-A Implementation of Federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183)

Action taken: Addition of section 441.25; and amendment of sections 428.3, 428.5, 428.6, 428.9, 430.11, 430.12, 431.8, 443.2 and 443.3

Analysis of need: This rule is necessary to implement the federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183).

Legal basis: Social Services Law, sections 20(3)(d) and 34(3)(f)

10. CFS-12-15-00010-A Implementation of Legislation for Destitute Children Re-entering Foster Care

Action taken: Amendment of sections 420.1, 421.1, 422.1, 427.2, 428.2, 430.10, 430.11, 431.17, 431.18, 436.1, 436.5, 441.2, 441.22, 443.1, 443.7 and 628.3

Analysis of need: This rule is necessary to implement legislation for destitute children re-entering foster care.

Legal basis: Social Services Law, sections 20(3)(d) and 34(3)(f) and L. 2012, ch.3

Section 207 of the State Administrative Procedure Act (SAPA) requires that each State agency review, any rule 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.

Pursuant to SAPA section 207, the State Education Department submits the following list of its rules that were adopted during calendar years 2013, 2008, 2003 and 1998 and invites public comment on the continuation or modification of such rules. Pursuant to SAPA section 207, the State Education Department submits the following list of its rules that were adopted during calendar years 2014, subject to a four-year review, and 1998 and invites public comment on the continuation or modification of such rules. Pursuant to SAPA section 207, the State Education Department submits the following list of its rules that were adopted during calendar years 2015, subject to a three-year review, 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 2013

OFFICE OF P-12 EDUCATION

Section 100.5 of the Commissioner’s Regulations relating to Diploma requirements for students with Disabilities

Description of Rule: Diploma Requirements for Students with Disabilities

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

Legal Basis of 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(b)(7)(i), 100.6 & 200.5(a)(5)(iii) of the Commissioner’s Regulations relating to Career Development and Occupational Studies Credentials

Description of Rule: Career Development and Occupational Studies Credential

Need for Rule: To establish criteria for award of a career development and occupational studies credential to 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 100.2(kk) of the Commissioner’s Regulations relating to Dignity Reporting

Description of Rule: Reporting requirements under the Dignity for All Students Act

Need for Rule: To implement Ch. 102, L. 2012 changes to the Dignity Act, for reporting incidents of harassment, bullying and discrimination

Legal Basis of Rule: Education Law sections 11(7) and (8), 13(1), 15(not subdivided), 16(not subdivided), 101(not subdivided), 207(not subdivided), 305(1) and (2) and 2854(1)(b), and Chapter 102 of the Laws of 2012.

Sections 100.2(1)(2) and 119.6 of the Commissioner’s Regulations relating to Dignity Code of Conduct

Description of Rule: The inclusion of Dignity Act components in the Code of Conduct

Need for Rule: To conform regulations to code of conduct provisions in the Dignity for All Students Act, as amended by Ch.102, L.2012.

Legal Basis of 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 Chapter 102 of the Laws of 2012.

Section 100.2(c) of the Commissioner’s Regulations relating to Dignity Instruction

Description of Rule: The Dignity for All Students Act (L. 2010, Ch. 482; L.2012, Ch.102)

Need for Rule: To prescribe instructional requirements to implement the Dignity Act, as amended by Ch. 102 of the Laws of 2012.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 801-a(not subdivided) and 2854(1)(b) and Chapter 102 of the Laws of 2012

Section 119.7 of the Commissioner’s Regulations Relating to Charter School Charter Renewals

Description of Rule: Charter school renewals

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 200.18(b) of the Commissioner’s Regulations relating to Fiscal audits of special education preschool programs and services for which a municipality bears responsibility

Description of Rule: Fiscal audits of special education preschool programs and services for which a municipality bears responsibility

Need for Rule: To implement L.2010, Ch.57, section 24 by establishing standards and procedures for municipalities to perform fiscal audits

Legal Basis of Rule: Education Law sections 207(not subdivided), 4401(2), 4403(3) and 4410(1)(g), (11)(c)(i) and (ii), and (13) and section 24 of Chapter 57 of the Laws of 2013

Section 100.2(jj) of the Commissioner’s Regulations relating to Policy, procedures and guidelines prohibiting harassment, bullying (including cyberbullying) and discrimination against students

Description of Rule: Policy, procedures and guidelines prohibiting harassment, bullying (including cyberbullying) and discrimination against students

Need for Rule: To implement the Ch.102, L.2012 amendments to the Dignity for All Students Act

Legal Basis of Rule: Education Law sections 11(7) and (8), 12(1), 13(1-5), 14(1-5), 101(not subdivided), 207(not subdivided), 305(1) and (2) and 2854(1)(b), and Chapter 102 of the Laws of 2012.

Title of Part 8 and Section 8.3 of the Commissioner’s Regulations relating to State Student Assessments in the Elementary and Secondary Grades

Description of Rule: State student assessments in the elementary and secondary grades

Need for Rule: To clarify procedures for establishment of cut scores and performance standards for determining proficiency on State Assessments

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided) and 209(not subdivided)

Sections 200.5(b)(1)(v),(8) & (9) of the Commissioner’s Regulations relating to Accessing public or private benefits and insurance to pay for special education programs and services under the IDEA

Description of Rule: Accessing public or private benefits and insurance to pay for special education programs and services under the IDEA

Need for Rule: To conform Commissioner's Regulations to federal parental notice and consent requirements in 34 CFR 300.154

Legal Basis of Rule: Education Law sections 207(not subdivided), 4402(2) and 4403(3)

Sections 200.7(b)(3) and (6) and 200.15 of the Commissioner’s Regulations relating to Protection of People with Special Needs Act (L. 2012, Ch.501)

Description of Rule: Protection of People with Special Needs Act (L. 2012, Ch. 501)

Need for Rule: To conform Commissioner's Regulations relating to students attending residential schools to L. 2012, Ch. 501.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4002(1)-(3), 4212(a), 4314(a), 4358(a), 4403(11), 4308(3), 4355(3), 4401(2), 4402(1) - (7), 4403(3), (11) and (13), 4410(1) - (13), and Chapter 501 of the Laws of 2012

Sections 100.5(a), (b), (c) and (g) of the Commissioner’s Regulations relating to English Language Arts and Mathematics Common Core Learning Standards

Description of Rule: English Language Arts (ELA) and Mathematics Common Core Learning Standards (CCLS)

Need for Rule: To establish transition requirements for the Regents ELA and Mathematics examinations aligned to the CCLS.

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

Section 100.2(ee)(2) of the Commissioner’s Regulations relating to Academic Intervention Services (AIS)

Description of Rule: Academic Intervention Services (AIS)

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)

Section 135.4(c)(7)(ii)(d) of the Commissioner’s Regulations relating to 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).

Sections 155.2(b)(2), 155.12(b)(6) and 200.2(c)(2) and (3), and (g) of the Commissioner’s Regulations relating to Special Education Space Plans

Description of Rule: Special education space plans

Need for Rule: To conform the Commissioner's Regulations to L. 2013, Ch. 57, sections 2-a and 2-b

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (20), 308(not subdivided), 309(not subdivided), 2215(17), 4402(2), 4403(3) and sections 2-a and 2-b of Chapter 57 of the Laws of 2013.

Sections 100.5(g) and 100.18(b) of the Commissioner’s Regulations relating to New York State Common Core Learning Standards (CCLS)

Description of Rule: New York State Common Core Learning Standards (CCLS)

Need for Rule: To provide for transition to the Common Core English Language Arts (ELA) and mathematics examinations in the following areas: (1) students with disabilities local diplomas; (2) Regents diploma with advanced designation; (3) credit by examination; and (4) transfer credit; To provide an additional opportunity for students to meet diploma requirements by passing either the Regents Comprehensive Examination in English or the Common Core ELA examination at the January 2014 test administration; and To update the names of the performance level descriptors for school accountability purposes.

Legal Basis of 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)

Sections 200.3(a)(2)(v) and 200.5(c)(2)(v)(iv) of the Commissioner’s Regulations relating to Additional Parent Member of a Committee on Preschool Special Education

Description of Rule: Committees on Preschool Special Education (CPSE)

Need for Rule: To conform Commissioner's Regulations to L. 2013, Ch. 213, relating to the additional parent member on a CPSE.

Legal Basis of Rule: Education Laws sections 101(not subdivided), 207(not subdivided), 305(1) and (2) and (20), 4402(1)(b)(1)(b), 4403(3) and 4410(13) and Chapter 213 of the Laws of 2013

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:

Jhone M. Ebert

Senior Deputy Commissioner for Education Policy

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 80-1.7 and 80-1.8 of the Commissioner’s Regulations relating to Renewals of a provisional SAS certificate and reissuances of initial certificates

Description of Rule: Renewals of a provisional SAS certificate and reissuances of initial certificates.

Need for Rule: To change the requirements for renewal of a SAS certificate & requirements for a reissuance of an initial certificate.

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

Sections 80-3.3, 80-3.7 and 80-5.6 of the Commissioner’s Regulations relating to Individual evaluation and experience requirements for Level III teaching assistant certificates

Description of Rule: Individual evaluation and experience requirements for Level III teaching assistant certificates.

Need for Rule: To extend the sunset date for individual evaluation & amend experience requirements for level III teaching assistant certificate

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

Section 80-5.5(b) of the Commissioner’s Regulations relating to Employment of retired public employees

Description of Rule: Employment of Retired Public Employee

Need for Rule: To implement Retirement and Social Security Law section 212(3), as added by Section 1 of Part Y of Chapter 55 of the Laws of 2013, which provides the Commissioner of Education with discretion to eliminate the earnings limitations for retired police officers employed by a school district as a school resource officer.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207(not subdivided) and 305(1), (2) and (20); Retirement and Social Security Law sections 211(2) and (8); and 212(3) and Section 1 of Part Y of Chapter 55 of the Laws of 2013

Section 3.12 and Subpart 4-1 of the Commissioner’s Regulations relating to Institutional accreditation for Title IV purposes

Description of Rule: Institutional accreditation for Title IV purposes.

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

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

Sections 52.21, Subpart 57-4 and Part 80 of the Commissioner’s Regulations relating to Coursework or training in harassment, bullying and discrimination prevention and intervention

Description of Rule: Coursework or training in harassment, bullying and discrimination prevention and intervention.

Need for Rule: To require that applicants for an administrative or supervisory service, classroom teaching service or school service certificate or license on or after July 1, 2013, shall have completed at least six hours of coursework or training in harassment, bullying and discrimination prevention and intervention as prescribed in the Dignity for All Students Act.

Legal Basis of Rule: Education Law sections 14(5), 207(not subdivided), 212(3), 305(1) and (2), 3004(1), and 3007(not subdivided) and Chapter 102 of the Laws of 2012.

Section 30-2.2(r) and (v) of the Commissioner’s Regulations relating to Annual Professional Performance Review (APPR)

Description of Rule: Annual Professional Performance Review (APPR)

Need for Rule: Amends the definitions of "teacher or principal student growth percentile score" and "value-added growth score" for purposes of implementing a growth model for the 2012-2013 and 2013-2014 school years and a value-added model for the 2014-2015 school year and thereafter.

Legal Basis of Rule: Education Law sections 101(not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2), and 3012-c(1) - (9).

Sections 83.4(d) & 83.5(b)(1)(iv) of the Commissioner’s Regulations relating to Moral Character Hearings under 8 NYCRR Part 83 for Certified Teachers and Other Certified School Personnel

Description of Rule: Moral character hearings under 8NYCRR Part 83 for certified teachers and other certified school personnel.

Need for Rule: To establish a rebuttable presumption that a certified individual who is convicted of any crime relating to the submission of false information, or who has committed fraud, relating to his/her criminal history record check lacks good moral character The proposed amendment also authorizes the Commissioner to initiate a review of the findings and recommendation of a hearing officer or hearing panel in cases involving convictions for any crimes involving the submission of false information, or the commission of fraud, related to a criminal history check.

Legal Basis of Rule: Education Law sections 207(not subdivided), 305(7) and (30), 3001(2), 3001-d(2), 3004(1), 3004-c(not subdivided), 3006(1), 3009(1), 3010(not subdivided) and 3035(1) and (3).

Sections 80-1.13, 80-3.5, 80-5.14 and 80-5.22 of the Commissioner’s Regulations relating to Coursework or training in harassment, bullying and discrimination prevention and intervention

Description of Rule: Coursework or training in harassment, bullying and discrimination prevention and intervention

Need for Rule: To conform the Commissioner's Regulations to Education Law section 14(5), as amended by Chapter 90 of the Laws of 2013, by making the training requirement on the social patterns of harassment, bullying and discrimination applicable to school professionals applying for a certificate or license on or after December 31, 2013, instead of on or after July 1, 2013.

Legal Basis of Rule: Education Law sections 14(5), 207(not subdivided), 305(1) and (2), 3004(1) and 3007(not subdivided) and Chapter 90 of the Laws of 2013

Sections 80-3.3, 80-3.4, 80-3.10, 80-5.13, 80-5.15 and 80-5.20(a)(1)(v) of the Commissioner’s Regulations relating to 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) of the Commissioner’s Regulations relating to 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: The purpose of the proposed amendment is 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:

John D’Agati

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) 486-3633

OFFICE OF THE PROFESSIONS

Sections 76.4, 76.9 and 76.10 of the Commissioner’s Regulations relating to Occupational Therapy

Description of Rule: Occupational Therapy

Need for Rule: To establish standards relating to continuing competency, limited permits and supervision of OT assistant students.

Legal Basis of Rule: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a), 7905(1)(c), 7906(4), and 7908(1)(a), (b), and (c), (2), (3), (4), (5) and (6) and section 5 of Chapter 329 and section 2 of Chapter 444 of the Laws of 2012

Section 3.47(d)(2) and 3.50(b)(36) of the Commissioner’s Regulations relating to Doctor of Acupuncture and Oriental Medicine (D.A.O.M) Degree

Description of Rule: Doctor of Acupuncture and Oriental Medicine (D.A.O.M.) Degree.

Need for Rule: To authorize the conferral in New York State of the degree of Doctor of Acupuncture and Oriental Medicine (D.A.O.M.).

Legal Basis of Rule: Education Law sections 207(not subdivided), 210(not subdivided), 218(1), 224(4), and 305(1) and (2).

Sections 63.11 and 63.12 of the Commissioner’s Regulations relating to Interpretations and translations for prescription drugs, standardized labeling and patient-centered data elements for medications

Description of Rule: Interpretation & translation for prescription drugs, standardized labeling & patient-centered data elements for medications.

Need for Rule: To implement Part V of Chapter 57 of the Laws of 2012.

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.

Section 60.2(f)(2) of the Commissioner’s Regulations relating to Advisory Committee on Long-Term Clinical Clerkships

Description of Rule: Advisory Committee on Long-Term Clinical Clerkships

Need for Rule: The proposed amendment would increase from one to two the number of Regents sitting on the Advisory Committee and would authorize the Regents Chancellor to appoint additional Committee members, upon consultation with the Board, and to remove and replace members who have been absent for three or more consecutive Committee meetings.

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

Section 76.10 of the Commissioner’s Regulations relating to Occupational Therapy Continuing Competency

Description of Rule: Occupational Therapy

Need for Rule: Permits continuing competency credits for independent study related to fieldwork education and mentoring from outside the field

Legal Basis of Rule: Education Law sections 207 (not subdivided), 212 (3), 6504 (not subdivided), 6507(2)(a), and 7908(4), (5) and (6).

Section 63.9(b)(2) of the Commissioner’s Regulations relating to Administration of Meningococcal Disease Vaccinations by Pharmacists

Description of Rule: Administration of meningococcal disease vaccinations by pharmacists

Need for Rule: To implement Chapter 274 of the Laws of 2013 to authorize qualified pharmacists to administer meningococcal disease vaccinations

Legal Basis of Rule: Education Law sections 207 (not subdivided), 6504 (not subdivided), 6507(2)(a), 6527(7)(c), 6802(22) and 6909(7)(c), and Chapter 274 of the Laws of 2013.

Sections 79-9.4(c), 79-10.4(c), 79-11.4(c) and 79-12.4(c) of the Commissioner’s Regulations relating to Duration of Limited Permits for Applicants Seeking Licensure as Mental Health Practitioners under Article 163 of the Education Law

Description of Rule: Advisory Committee on Long-Term Clinical Clerkships

Need for Rule: The proposed amendment would increase from one to two the number of Regents sitting on the Advisory Committee and would authorize the Regents Chancellor to appoint additional Committee members, upon consultation with the Board, and to remove and replace members who have been absent for three or more consecutive Committee meetings.

Legal Basis of Rule: Education Law sections 207 (not subdivided), 6501 (not subdivided), 6504 (not subdivided), and 6507(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:

Douglas E. Lentivech

Deputy Commissioner for the Professions

New York State Education Department

Office of the Professions

89 Washington Avenue

West Wing, Second Floor - Education Building

Albany, NY 12234

(518) 486-1765

[email protected]

OFFICE OF ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCESS)

Section 100.7(a)(2) of the Commissioner’s Regulations relating to State High School Equivalency Diploma

Description of Rule: New York State High School Equivalency Diploma

Need for Rule: To permit, for a limited time, acceptance of partial passing scores on up to four sub-tests of the current GED® examination for the corresponding sub-test on the new 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(3)

Section 100.8 of the Commissioner’s Regulations relating to Local Diploma Based on Experimental Programs

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

Need for Rule: To extend until 6/30/15 the provision for awarding local high school equivalency diplomas based upon experimental programs

Legal Basis of 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 of the Commissioner’s Regulations relating to 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.

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 continuation or modification of any of the above rules by contacting:

Lisa Van Ryn

Manager, VR Resource Development

Office of Adult Career and Continuing Education Services

Room 580 EBA

89 Washington Avenue

Albany, New York 12234

(518) 473-1626

B. CALENDAR YEAR 2008

OFFICE OF P-12 EDUCATION

100.8 Local high school equivalency diploma

Description of rule: The rule allows boards of education specified by the Commissioner to award a local high school equivalency diploma based upon experimental programs approved by the Commissioner. The rule was extended for one year in 2011 and again in 2012 and is currently set to expire June 30, 2013.

Need for rule: The rule is consistent with statutory authority and necessary to implement Regents policy. The rule provides for continuance of the External Diploma Program, which is a complete assessment program that allows adults to demonstrate and document the lasting outcomes and transferable skills for which a high school diploma is awarded.

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).

175.41 Average Interest Rates Applied to Capital Debt Incurred by the City of New York for School Purposes

Description of rule: The rule provides an appropriate methodology for computation of the true cost of debt issued by New York City for the purpose of financing school construction.

Need for rule: The rule is needed to align the Commissioner’s regulations with statute and so that New York City can plan its capital expenditures and issue debt to fund them.

Legal basis for rule: Education Law sections 207(not subdivided) and 3602(6)(e)(1).

100.2(x) Unaccompanied youth

Description of rule: The rule clarifies the definition of "unaccompanied youth" in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended. The rule also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

Need for rule: The rule is needed to ensure State and school districts comply with the requirements of the McKinney-Vento Act.

Legal basis for rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), 3202(1) and (8), 3209(1)(a) and (7) and 3713(1) and (2).

100.15 Reasonable and necessary expenses of distinguished educators

Description of rule: The rule establishes criteria for the determination of reasonable and necessary expenses of members of school quality review teams and joint intervention teams, and distinguished educators, who are appointed by the Commissioner to assist low performing districts in improving their academic performance.

Need for rule: The rule is necessary to implement Chapter 57 of the Laws of 2007, which requires the development of an enhanced accountability system for New York State’s schools and districts and includes the development of a system of support and intervention in low performing schools. The rule is consistent with statutory authority and Regents policy.

Legal basis for rule: Education Law sections 207 (not subdivided) and 211-b(2)(a) and (b) and 211-c(7) and Chapter 57 of the Laws of 2007.

156.3(h) Idling school buses

Description of rule: The rule prescribes requirements for minimizing the idling of school buses and other vehicles owned or leased by school districts.

Need for rule: The rule is necessary to implement Education Law section 3637, as added by Chapter 670 of the Laws of 2007, which requires the Commissioner to promulgate regulations requiring school districts to minimize, to the extent practicable, the idling of the engine of any school bus and other vehicles owned or leased by the school district while such bus is parked or standing on school grounds, or in front of any school.

Legal basis for rule: Education Law sections 207(not subdivided), 3624(not subdivided) and 3627(1), (2) and (3) and Chapter 670 of the Laws of 2007.

Parts 175, 100, 110 & 144 State aid

Description of rule: The rule implements the Foundation Aid provisions enacted by Chapter 57 of the Laws of 2007, brings the Commissioner's Regulations into compliance with other statutory changes to the law, and eliminates obsolete provisions.

Need for rule: The rule is needed to repeal obsolete State Aid provisions and conform the Commissioner’s regulations with the statutory changes to Education Law section 3602 made by Chapter 57 of the Laws of 2007, which changed the school funding system by replacing approximately 30 State Aid categories with a single Foundation Aid.

Legal basis for rule: Education Law sections 101(not subdivided), 207 (not subdivided), 305(1), (2) and (20) and 3602, and Chapter 57 of the Laws of 2007.

136.3 Dental certificates

Description of rule: The rule prescribes requirements for school districts to request a dental health certificate from each student in the public schools at designated intervals.

Need for rule: The rule is consistent with statutory authority and is necessary to implement Education Law 903, as amended by Chapter 281 of the Laws of 2007.

Legal basis for rule: Education Law section 207(not subdivided), 305(1) and (2), and 903(2)(a) and (b), (3)(b) and (4).

177.1, 200.1, 200.3 through 200.7, 200.16 and 201.11 Special education programs and services for students with disabilities

Description of rule: The rule ensures that chairpersons of committees on special education are appropriately qualified, and establishes procedures when a district receives a request for referral of a student for an initial evaluation for special education services.

Need for rule: The rule conforms the Commissioner's Regulations to Chapter 378 of the Laws of 2007, the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq.), as amended by Public Law 108-446, and the amendments to 34 CFR Part 300.

Legal basis for rule: Education Law sections 207 (not subdivided), 3208 (1-5), 3214(3), 3602-c, 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).

177.2 Disputes of Reimbursement Claims for Special Education Services Provided to Nonresident Parentally-Placed Nonpublic School Students with Disabilities

Description of rule: The rule prescribes a dispute resolution mechanism regarding claims for reimbursement of costs for special education provided to a nonresident student with a disability, who is parentally placed in a nonpublic school located in a school district other than the school district in which the student legally resides.

Need for rule: The rule implements Education Law section 3602-c(7), as amended by Chapter 378 of the Laws of 2007.

Legal basis for rule: Education Law sections 207(not subdivided) and 3602-c(7) and section 4 of Chapter 378 of the Laws of 2007.

200.4 & 200.5 State forms for Individualized Education Programs, Meeting Notice and Prior Written Notice (Notice of Recommendation)

Description of rule: The proposed amendment was first adopted as an emergency action at the October 2008 Regents meeting to extend from January 1, 2009 to September 1, 2009, the initial effective date for required use of State forms for IEPs, meeting notice and prior written notice (notice of recommendation). In response to public comment, the rule was subsequently revised and permanently adopted in March 2009 to further extend the initial effective date to commence with the 2011-12 school year, in order to provide additional time for cost-effective conversion to the State’s required forms and for the State to make professional development available through no-cost means such as informational materials, web-conferencing and professional development through its technical assistance networks.

Need for rule: The rule is consistent with statutory authority and ensures consistency in procedural safeguards.

Legal basis for rule: Education Law sections 207 (not subdivided), 4402 (1-7), 4403(3), and 4410(13).

100.14 Excelsior Scholars

Description of rule: The rule clarifies procedures for the nomination of eligible students in mathematics and science who have completed seventh grade to participate in the Excelsior Scholars program pursuant to Education Law section 3641-a.

Need for rule: The rule is necessary to implement Education Law section 3641-a, as added by Chapter 57 of the Laws of 2007.

Legal basis for rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2) and 3641-a(1), (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:

Jhone M. Ebert

Senior Deputy Commissioner for Education Policy

New York State Education Department

Office of P-12 Education

89 Washington Avenue

West Wing, Second Floor Mezzanine - EB

Albany, New York 12234

(518) 474-5520

OFFICE OF HIGHER EDUCATION

80-5.5 Waivers of teacher certification requirements

Description of rule: The rule strengthens the current regulatory standards relating to the approval process for the employment of retired persons in public school districts other than the City of New York, boards of cooperative educational services and county vocational educational and extension board prescribed under Section 211 of the Retirement and Social Security Law.

Need for rule: The rule is needed to ensure that such standards conform with legislative intent and to provide transparency and effectiveness in the approval process.

Legal basis for rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 3003(1), 3004(1) and Retirement and Social Security Law sections 210(not subdivided) and 211(2) and (8).

145-2.2 Tuition Assistance Program

Description of rule: The rule updates the academic achievement requirements (minimum credits and minimum cumulative grade point average) a student must meet before being certified for a payment on his or her tuition assistance program (TAP) award including such an award for accelerated study.

Need for rule: The rule is needed to conform the Commissioner’s Regulations to changes made to subdivisions (2) and (6) of section 665 of the Education Law by Parts E-1 and E-2 of section 1 of Chapter 57 of the Laws of 2007.

Legal basis for rule: Education Law sections 207 (not subdivided), 602(1) and (2), 661(2), and 665(2) and (6).

3.50(c) Honorary degrees

Description of rule: The rule establishes the list of honorary associate degrees that community colleges and other New York degree-granting institutions may award.

Need for rule: The rule implements the provisions of Chapter 324 of the Laws of 2006 that amended Education Law § 6306 by adding a new subdivision 5-b to authorize honorary degrees "[s]ubject to the approval of the Board of Regents."

Legal basis for rule: Sections 207 (not subdivided), 210 (not subdivided), 214 (not subdivided), 215 (not subdivided), 305 (not subdivided) and 6306(5-b) of the Education Law.

Part 30 & 100.2 Teacher tenure determinations

Description of rule: The rule establishes minimum standards and procedures for teacher tenure determinations for teachers in all school districts and boards of cooperative educational services (“BOCES”) in New York State.

Need for rule: The rule is needed to implement the requirements of Section 3012-b of the Education Law, as amended by Chapter 57 of the Laws of 2008.

Legal basis for rule: Education Law sections 207 and 3012-b and Chapter 57 of the Laws of 2008.

80-3.7 Certification for individual evaluation

Description of rule: The rule extends the expiration date for applicants seeking certification through the individual evaluation pathway in all classroom titles except childhood education from February 1, 2009 to February 1, 2012, thus extending the time that the individual evaluation pathway remains available for these applicants.

Need for rule: The rule is needed to facilitate the Department’s continuing ability to certify a sufficient number of properly qualified candidates to fill vacant teaching positions in the State’s public schools and allows the Board of Regents and the Department to monitor and assess teacher supply and demand data for three additional years, from 2009 to 2012.

Legal basis for rule: Education Law sections 207, 305(1), 3001(2), 3004(1) and 3006(1)(b).

52.21, 80-1.12 and Subpart 57-3 Autism training

Description of rule: The rule requires teachers seeking certification in special education titles to have course work or training in the needs of students with autism and establishes standards for Education Department approval of providers of course work or training in autism.

Need for rule: The rule implements the requirements of Education Law section 3004 (4) and (5), as added by Chapter 143 of the Laws of 2006.

Legal basis for rule: Education Law sections 207(not subdivided), 215(not subdivided), 208 (not subdivided), 212(3), 305(1) and (2), 3004(1), (4) and (5) and 3007 (not subdivided).

52.36 and 52.37 Speech/language pathology

Description of rule: The rule updates the education, experience, examination and endorsement provisions for licensure of speech-language pathologists and audiologists.

Need for rule: The rule conforms New York State requirements for licensure as a speech pathologist or audiologist to federal Medicaid requirements, expands opportunities for qualified speech-language pathologists and audiologists in other jurisdictions to become licensed in New York State, and addresses shortages in the number of speech-language pathologists that exist in New York State school districts.

Legal basis for rule: Education Law sections 207(not subdivided), 212(3), 6504(not subdivided), 6506(5) and (6), 6507(1), (2)(a) and (4)(a), 8206(2), (3) and (4).

69.1, 69.2 and 69.3 Architectural endorsement

Description of rule: The rule aligns the New York State requirements for admission into the Architect Registration Examination with national standards and modifies the endorsement provisions for applicants licensed in another jurisdiction prior to 1983 to conform to current practice.

Need for rule: The rule is consistent with statutory authority and aligns with national standards.

Legal basis for rule: Education Law sections 207(not subdivided); 6504(not subdivided); 6506(1) and (6)(c); 6507(2)(a); and 7304(1)(3), (2) and (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:

John D’Agati

Deputy Commissioner for Higher Education

New York State Education Department

Office of Higher Education

Room 978, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-3633

OFFICE OF THE PROFESSIONS

52.38, 52.39. 52.40. 79-13.1, 79-14.1 and 79-15.1 Clinical Lab Technology

Description of rule: The rule establishes educational requirements for licensure as a clinical laboratory technologist or cytotechnologist and for certification as a clinical laboratory technician, and standards for registered college preparation programs for these professions.

Need for rule: The rule is necessary to implement Education Law sections 8605(2)(b), which authorizes the State Education Department to establish implementing standards for education that must be successfully completed by an applicant to qualify for a license as a cytotechnologist, and section 8606(2), which authorizes the State Education Department to establish implementing standards for education that must be successfully completed to qualify for certification as a clinical laboratory technician.

Legal basis for rule: Education Law sections 207 (not subdivided); 210 (not subdivided); 6501 (not subdivided); 6504(not subdivided); 6507(2)(a), (3)(a), and (4)(a); 6508(1); 8605(1)(b) and (2)(b); 8606(2).

61.15 and 61.19 Dental continuing education

Description of rule: The rule increases the amount of continuing education required of licensed dentists during each triennial registration period and requiring certification in cardiopulmonary resuscitation and completion of coursework in New York State jurisprudence and ethics.

Need for rule: The rule is consistent with statutory authority and conforms the Commissioner’s regulations to section 4 of Chapter 183 of the Laws of 2007.

Legal basis for rule: Education Law sections 207(not subdivided); 6506(1); 6507(2)(a), 6604-a(2), 6604-a(6), 6611(10), and section 4 of Chapter 183 of the Laws of 2007.

62.5 Veterinarian technology

Description of rule: The rule allows students completing registered or accredited programs of education for veterinary technology admission to the licensing examination for veterinary technicians within the final six months of professional study.

Need for rule: The rule is needed to align examination admission requirements in this field with practice in other states and thereby remove the competitive disadvantage that New York students confront.

Legal basis for rule: Education Law sections 207(not subdivided); 6504 (not subdivided); 6506(1); 6507(2)(a) and (3)(a); and 6711(5).

52.41 and Subparts 79-13, 79-14 & 79-15 Clinical laboratory technology

Description of rule: The rule establishes standards for licensure as a clinical laboratory technologist or a cytotechnologist and certification as a clinical laboratory technician or a histological technician.

Need for rule: The rule is consistent with statutory authority and implements the provisions of Chapter 204 of the Laws of 2008, which amended Article 165 of the Education Law.

Legal basis for rule: Education Law sections 207(not subdivided); 210 (not subdivided); 212(3); 6501 (not subdivided); 6504(not subdivided); 6507(2)(a), (3)(a), and (4)(a); 6508(1), 8606-a(2) and (3); 8610(3).

150.4 High needs nursing

Description of rule: The rule permits online nursing programs to be eligible for state aid.

Need for rule: The rule is consistent with statutory authority and conforms to Chapter 57 of the Laws of 2008, which authorizes the Commissioner of Education to award state aid to certain eligible independent colleges and universities for high needs nursing programs, including those institutions that offer online nursing programs via the internet.

Legal basis for rule: Education Law sections 207, 215 and 6401-a and Chapter 57 of the Laws of 2008.

24-7 Professional license restoration

Description of rule: The rule specifies that an applicant’s response to the report and recommendation made by the Committee on the Professions (COP) shall not contain any new evidentiary material.

Need for rule: The rule is consistent with statutory authority and is needed to provide a more orderly and effective review of evidentiary information submitted in support of a restoration application.

Legal basis for rule: Education Law Sections 207, 6506(1) and 6511.

63.9 Pharmacy flu shots

Description of rule: The rule establishes criteria for the certification of licensed pharmacists and requirements for the administration of immunization agents.

Need for rule: The rule is consistent with Education Law section 6801(2), as added by Chapter 563 of the Laws of 2008, which authorizes certified pharmacists to administer immunizing agents and authorizes the Commissioner of Education to promulgate regulations regarding training and reporting requirements.

Legal basis for rule: Education Law §§ 207(not subdivided), 6504(not subdivided), 6507(2)(a), 6527(7), 6801(1), (2) and (3), 6802(22), 6828(1) and (2), and 6909(7) of the Education Law, and Chapter 563 of the Laws of 2008.

Agency Representative:

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

Douglas E. Lentivech

Deputy Commissioner for the Office of the Professions

Office of the Professions

New York State Education Department

West Wing, Second Floor, EB

Albany, NY 12234

(518) 474-3817 ext. 470

OFFICE OF CULTURAL EDUCATION

Section 3.27 of the Rules of the Board of Regents, regarding museum collections management policies

Description of rule: The rule clarifies restrictions on deaccessioning of items in an institution's collections, consistent with generally accepted professional and ethical standards within the museum and historical society communities.

Need for rule: rule is necessary to implement Regents policy to protect the public’s interest in collections held by chartered museums and historical societies.

Legal basis for rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 216(not subdivided) and 217(not subdivided).

90.7 Public librarian professional certificates

Description of rule: The rule ensures that public librarian professional certificate holders certified on or after January 1, 2010 will participate in continuous professional development.

Need for rule: The rule is consistent with Regents policy to promote excellence in New York’s library workforce at all stages and levels.

Legal basis for rule: Education Law sections 207(not subdivided), 208(not subdivided), 254(not subdivided), 272(1)(k)(3) and 279(not subdivided).

90.18 School library systems

Description of rule: The rule amends terminology primarily relating to the functions of school library systems to accurately reflect the current operations of such library systems and to omit references to obsolete practices and terms; amends certain terms relating to State aid for school library systems to accurately reflect the legislative intent of section 284 of the Education Law; amends certain terminology relating to school library systems to conform such provisions of the Commissioner’s Regulations to other corresponding sections of such regulations; amends the definition of a “coordinator of a school library system” to clarify that such a coordinator must possess a valid certificate as either a school administrator and supervisor (S.A.S.) or a school building leader (S.B.L.); and provides for the uniform application of the title of “Communications Coordinator” to persons serving such role in both BOCES and the Big Five city school districts, and clarifies the role of such persons, which is to effectuate two-way communication between districts and school library systems.

Need for rule: The rule updates and clarifies certain terminology relating to the functions of and State aid for school library systems.

Legal basis for rule: Education law sections 282, 283 and 284.

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:

Mark Schaming

Deputy Commissioner for Cultural Education

New York State Education Department

Cultural Education Center

222 Madison Avenue

Albany, NY 12230

(518) 474-5812

OFFICE OF OPERATIONS AND MANAGEMENT SERVICES

3.2 & 4-1.5 Regents committees

Description of rule: The rule reorganizes the structure of the standing committees of the Board of Regents. Specifically, the Committee on Higher Education and Professional Practice will be separated into two committees, the Committee on Higher Education and the Committee on Professional Practice, and the Committee on Elementary, Middle, Secondary and Continuing Education and Vocational and Educational Services for Individuals with Disabilities will be separated into two committees, the Committee on Elementary, Middle, Secondary and Continuing Education (EMSC) and the Committee on Vocational and Educational Services for Individuals with Disabilities (VESID).

Need for rule: The rule is needed to conform the Rules of the Board of Regents to a reconfiguration of the standing committees of the Board of Regents. The rule was subsequently amended in 2009 to: (1) rename the EMSC Committee as the P-12 Education Committee and (2) abolish the VESID Committee and transfer its functions regarding special education for students with disabilities to the P-12 Committee and its functions concerning vocational rehabilitation to a newly established Adult Career and Continuing Education (ACCES) Committee.

Legal basis for rule: Education Law § 207(not subdivided).

Parts 275, 276 and section 10.2(y) Ed Law § 310 appeal procedures

Description of rule: the rule revises the procedures relating to appeals to the Commissioner of Education pursuant to Education Law section 310.

Need for rule: The proposed rule is needed to clarify, update and prescribe appeal procedures and requirements, consistent with established practice.

Legal basis for rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), 310(not subdivided) and 311(not subdivided).

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:

Alison Bianchi, Esq.

Counsel and Deputy Commissioner for Legal Affairs

New York State Education Department

State Education Building, Room 112

Albany, New York 12234

(518) 474-6400

OFFICE OF STATE REVIEW

Part 279 State Office Review

Description of rule: The rule revises the procedures for state-level review of impartial hearing officer determinations regarding services for students with disabilities.

Need for rule: The rule is needed to clarify the procedures concerning appeals of impartial hearing officer decisions to a State Review Officer, correct citations and references and expedite and otherwise facilitate the processing of petitions for review to State Review Officers.

Legal basis for rule: Education Law sections 101(not subdivided), 207(not subdivided), 311(not subdivided), 4403(1) and 93), 4404(2) and 4410(13).

Agency Representative:

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

Justyn Bates

Assistant Counsel and State Review Officer

Office of State Review

80 Wolf Road, 2nd Floor

Albany New York 12203

(518) 485-9373

B. CALENDAR YEAR 2003

OFFICE OF P-12 EDUCATION

Section 100.2(x) – Homeless Children and Youth.

Description of Rule: The rule codifies the process for the enrollment and registration of homeless children in New York State public schools, defines terms and criteria used to designate and qualify homeless children, and prescribes the steps to be taken during the enrollment procedures.

Need for Rule: The rule is needed to conform the Commissioner's Regulations to the amendments to Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.) that were enacted pursuant to the federal No Child Left Behind Act of 2001 (NCLB) [Pub.L. 107-110]. The State is required to comply with the requirements of the McKinney-Vento Act and the NCLB as a condition to its receipt of federal funds. The rule incorporates a new definition for "unaccompanied youth."

Legal Basis for Rule: Education Law §§ 101, 207, 215, 305(1) and (2), 3202(1) and (8), 3205(1), 3209(7) and 3713(1) and (2).

Part 154 – Students With Limited English Proficiency.

Description of Rule: The rule establishes criteria for the identification and assessment of students with limited English proficiency (LEP) through use of, respectively, the Language Assessment Battery-Revised test and the New York State English as a Second Language Test; establishment of curriculum and reporting requirements for such students; and updates of provisions in the regulations concerning such students.

Need for Rule: The rule is necessary to conform the Commissioner's Regulations, relating to students with limited English proficiency, to the federal No Child Left Behind Act of 2001 (NCLB), which requires that the English proficiency of all LEP students be measured annually as part of the school accountability provisions of the Act. The U.S. Department of Education has approved the use of the new New York State English as a Second Language Achievement Test (NYSESLAT) as the required measure for LEP students. In addition to amending the Commissioner's Regulations to reflect use of the NYSESLAT, the rule is also necessary to reflect use of the Language Assessment Battery-Revised (LAB-R) for purposes of initial identification of LEP students. The rule requires local educational agencies (LEAs) to assess the LEP student’s English language proficiency level for purposes of initial identification and continued eligibility, using the LAB-R and the NYSESLAT, respectively. The results of these tests will be reported in terms of designated levels of proficiency, not percentile scores. Since the current standard (40th percentile) established in the Commissioner's Regulations is not consistent with these designated proficiency levels, it is necessary to amend the regulations to conform to the use of the LAB-R and NYSESLAT and thereby ensure the proper identification and assessment of LEP students, and the reporting of data concerning such students and those students who are entitled to receive bilingual or English as a second language instruction. School districts are required to comply with Part 154 requirements as a condition to their receipt of State Limited English Proficiency Aid and, for a large number of districts, as a condition to their receipt of other State Categorical funds and Title III, Part A LEP and Immigrant funds under The No Child Left Behind Act of 2001. The rule also provides that the learning standards for English language arts and English as a second language serve as the basis for the ELA and ESL curricula, thus strengthening and improving the bilingual education and freestanding ESL for LEP students. The amendment is geared to secure opportunities for LEP students to achieve the same educational goals and standards as the general school population. The rule is also necessary to update certain references and to delete certain outdated references and provisions.

Legal Basis for Rule: Education Law §§ 207(not subdivided), 215(not subdivided), 2117(1), 3204(2), (2-a), (3) and (6), 3602(10) and (22), and 3713(1) and (2).

Sections 120.3 and 120.4 – No Child Left Behind Act of 2001 (NCLB - Pub.L. 107-110).

Description of Rule: The rule conforms Part 120 of the Commissioner's Regulations to Federal regulations and guidance implementing the public school choice and supplemental educational services provisions of the NCLB.

Need for Rule: The rule is needed to establish procedures for implementation of the public school choice provisions of NCLB section 1116(b)(1)(E). Pursuant to the NCLB, a Title I LEA that has a school in school improvement, corrective action or restructuring status must provide all students enrolled in such school with the option to transfer to another school, not in such status, served by the LEA. The State is required to comply with the requirements of the NCLB as a condition to its receipt of federal Title I ESEA funds.

Legal Basis for Rule: Education Law §§ 101, 207, 215, 305(1),(2), and (33), 2802(7) and 3713(1) and (2).

Section 135.4 – Certified Athletic Trainers.

Description of Rule: The rule requires athletic trainers employed by school districts to be certified by New York State pursuant to Article 162 of the Education Law and to more specifically detail the scope of duties and responsibilities of Athletic Trainers employed by school districts.

Need for Rule: The previous regulations did not reflect provisions for New York State Certification of certified athletic trainers pursuant to Article 162 of the Education Law, thereby decreasing the incentive for some trainers to obtain such certification and for schools to hire qualified personnel. The rule allows New York State Education Department oversight and control over the professional practice of certification related to athletic trainers in high schools, and enables school districts to hire the most qualified candidates for athletic trainer positions.

Legal Basis for Rule: Education Law §§ 101, 207, 305(1) and (2), 803(5), 917(1) and (2), 3204(2), 8351 and 8352.

Section 156.3 – Requirements for school bus drivers, monitors and attendants

Description of Rule: The rule defines and establishes qualifications for the positions of school bus monitor and attendant; and enacts certain technical amendments relating to school bus drivers.

Need for Rule: The rule is needed to implement the statutory requirements of Chapters 472 and 529 of the Laws of 2002, and to provide cost savings and mandate relief. The rule ensures the safety of the 2.3 million students transported on school buses each day in the State by implementing Chapter 529 of the Laws of 2003, which requires the Commissioner to determine and define the qualifications and training for school bus monitors and attendants. The rule is also necessary to implement Chapter 472 of the Laws of 2003, which requires the Commissioner to promulgate regulations requiring school bus safety training and instruction related to the special needs of students. The State Education Department anticipates amendments in 2008 to expand upon the training requirements for school bus drivers, monitors and attendants to complete training, at least once a year, on the special needs of children with a disability, as required by Chapter 181 of the Laws of 2007.

Legal Basis for Rule: Education Law §§ 207(not subdivided) and 3624 (not subdivided), and Vehicle and Traffic Law §§ 509-g (1) and 1229-d (3) and Chapters 472, 529 and 600 of the Laws of 2002.

Section 120.5 – No Child Left Behind Act (NCLB) – Persistently Dangerous Schools.

Description of Rule: The rule ensures State and local educational agency (LEA) compliance with the NCLB by establishing criteria relating to the identification and designation of persistently dangerous public schools.

Need for Rule: The rule is needed to ensure State and local educational agency (LEA) compliance with the NCLB by establishing criteria relating to the identification and designation of persistently dangerous public schools. The State and LEA are required to comply with the requirements of the NCLB as a condition to their receipt of federal Title I ESEA funds.

Legal Basis for Rule: Education Law §§ 101, 207, 215, 305(1), (2) and (33), 2802(7) and 3713(1) and (2).

Section 100.2(m) – No Child Left Behind Act (NCLB) – public reporting requirements.

Description of Rule: The rule establishes criteria and procedures to ensure State and local educational agency compliance with the provisions of the No Child Left Behind Act (NCLB) relating to public reporting requirements.

Need for Rule: The rule is needed to ensure State and local educational agencies (LEAs) compliance with the NCLB in order that they may be eligible to receive federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA). NCLB section 1111(h)(2)(A)(i), (20 USC section 6311[h][2]), requires that, for LEAs receiving assistance under Title I of the ESEA, an annual LEA report card be prepared and disseminated. NCLB section 1111(h)(2)(B) requires the State to ensure that each LEA collects appropriate data and includes in the LEA's annual report card the information described in the annual State report card under NCLB section 1111(h)(1)(C), as applied to the LEA and each school served by the LEA, and certain additional information specified in NCLB section 1111(h)(2)(B)(i) and (ii).

Legal Basis for Rule: Education Law §§ 101, 207, 215, 305(1) and (2), 309, 1608(6), 1716(6), 2554(24), 2590-e(23), 2590-g(21), 2601-a(7) and 3713(1) and (2).

Section 100.2(p) – No Child Left Behind Act (NCLB) – school/district accountablility.

Description of Rule: The rule establishes criteria and procedures to ensure State and local educational agency compliance with the provisions of the NCLB relating to academic standards and school and school district accountability.

Need for Rule: The rule is needed to ensure State and local educational agencies (LEAs) compliance with the NCLB in order that they may be eligible to receive federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA). NCLB section 1111(b)(2) requires each state that receives funds to demonstrate, as part of its State Plan, that the state has developed and is implementing a single, statewide accountability system to ensure that all LEAs, public elementary schools and public high schools make adequate yearly progress (AYP). Each state must implement a set of yearly student academic assessments in specified subject areas that will be used as the primary means of determining the yearly performance of the state and each LEA and school in the state in enabling all children to meet the State's academic achievement standards.

Legal Basis for Rule: Education Law §§ 101, 207, 215, 305(1), (2) and (20), 309 and 3713(1) and (2).

Section 100.2(bb) – No Child Left Behind Act (NCLB) – school district data reporting requirements.

Description of Rule: The rule establishes criteria and procedures to ensure State and local educational agency compliance with the provisions of the NCLB relating to public reporting requirements.

Need for Rule: The rule is needed to ensure State and local educational agencies (LEAs) compliance with the NCLB in order that they may be eligible to receive federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA). NCLB section 1111(h)(2)(A)(i), (20 USC section 6311[h][2]), requires that, for LEAs receiving assistance under Title I of the ESEA, an annual LEA report card be prepared and disseminated. NCLB section 1111(h)(1), (20 USC section 6311[h][1]), requires a state, that receives assistance under Title I of the ESEA, to prepare and disseminate an annual State report card that includes the information specified in NCLB section 1111(h)(1)(C) and (D). NCLB section 1111(h)(2)(A)(i), (20 USC section 6311[h][2]), requires that, for LEAs receiving assistance under Title I of the ESEA, an annual LEA report card be prepared and disseminated. NCLB section 1111(h)(2)(B) requires the State to ensure that each LEA collects appropriate data and includes in the LEA's annual report card the information described in the annual State report card under NCLB section 1111(h)(1)(C), as applied to the LEA and each school served by the LEA, and certain additional information specified in NCLB section 1111(h)(2)(B)(i) and (ii). The rule prescribes the data reporting requirements necessary for the preparation of the annual State and the annual LEA report cards.

Legal Basis for Rule: Education Law §§ 101, 207, 215, 305(1) and (2), 309, 1608(6), 1716(6), 2554(24), 2590-e(23), 2590-g(21), 2601-a(7) and 3713(1) and (2).

Section 119.3 – No Child Left Behind Act (NCLB) – charter school reporting requirements.

Description of Rule: The rule establishes criteria and procedures to ensure State and charter school compliance with the provisions of the NCLB relating to public reporting requirements.

Need for Rule: The rule is needed to ensure State and local educational agencies (LEAs), including school districts, BOCES and Charter schools, compliance with the NCLB in order that they may be eligible to receive federal funds under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA). NCLB section 1111(h)(2)(A)(i), (20 USC section 6311[h][2]), requires that, for LEAs receiving assistance under Title I of the ESEA, an annual LEA report card be prepared and disseminated. NCLB section 1111(h)(2)(B) requires the State to ensure that each LEA collects appropriate data and includes in the LEA's annual report card the information described in the annual State report card under NCLB section 1111(h)(1)(C), as applied to the LEA and each school served by the LEA, and certain additional information specified in NCLB section 1111(h)(2)(B)(i) and (ii).

Legal Basis for Rule: Education Law §§ 207, 2857(2) and 3713(1) and (2).

Section 156.3 – Requirements for school bus monitors and attendants.

Description of Rule: The rule conforms the Commissioner’s Regulations to Chapter 159 of the Laws of 2003 by clarifying the training and testing requirements for school bus monitors and attendants.

Need for Rule: The rule is needed to conform the Commissioner's Regulations to the provisions of Vehicle and Traffic Law (VTL) section 1229-d(3), as amended by Chapter 159 of the Laws of 2003. Consistent with the statute, section 156.3(c)(4) has been revised to provide that CPR instruction shall be given where such skills are required as part of the individualized education plan prepared for the student, and to further provide that any person employed as a school bus attendant serving pupils with a disabling condition on January 1, 2004 shall comply with VTL section 1229-d(3) by July 1, 2004 and that any person hired after January 1, 2004 shall complete training, instruction and testing prior to assuming their duties as a school bus attendant serving pupils with a disabling condition.

Legal Basis for Rule: Education Law §§ 207 and 3624 and Vehicle and Traffic Law § 1229-d(3) and Chapter 159 of the Laws of 2003.

Section 100.5 – State Assessments and Graduation and Diploma Requirements.

Description of Rule: This rule revised the graduation and diploma requirements that were first adopted by the Board of Regents in July 1999 to help ensure that all students in the State’s public schools have the skills, knowledge and understandings they need to succeed in the next century. The proposed changes were necessary to implement revisions to policy adopted by the Board of Regents in October 2003.

Need for Rule: Under the previous regulations, the minimum passing score on five required Regents examinations rises from 55 to 65 for those students who entered grade 9 in the 2001-2002 school year and thereafter. The revised policy continues to allow a passing score of 55-64 on the five required Regents examinations as an option to meet local diploma requirements. This provision will be in effect for all students in high school who entered grade 9 in the school years 2000-2001, 2001-2002, 2002-2003, and 2003-2004, and for those current eighth grade students who enter grade 9 in the 2004-2005 school year. The extension of this option will give students and schools more time to improve achievement while keeping the educational system moving forward toward the goal of higher achievement for all students.

In addition, the amendment extended the existing safety net for all students with disabilities entering grade 9 prior to the 2010-11 school year. Under this safety net, students with disabilities who fail to pass a required Regents examination may meet local diploma requirements by taking and passing the corresponding Regents Competency Test.

The amendment also made technical changes to clarify the requirements relating to mathematics and visual arts and/or music, dance or theatre alternatives. The mathematics requirements need revision and clarification because previous language would not allow students who took Course III after January 2003 to be eligible for a Regents Diploma or Regents Diploma with Advanced Designation. Course I phased out in January 2002, Course II phased out in January 2003, and Course III will phase out in January 2004. The visual arts and/or music, dance, or theatre unit of credit requirement needs to be revised to allow students who entered grade 9 after 2001 with course options, such as participating in a school's major performing group or in an advanced out-of-school art or music activity, which previous classes of students have used to satisfy Regents Diploma requirements.

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

Section 107.2 – Driver Education.

Description of Rule: The rule establishes a certification process by driver education courses of the amount of time a holder of a class DJ or class MJ learner’s permit has spent operating a motor vehicle while under the immediate supervision of a driver education teacher.

Need for Rule: The rule is needed to implement Education Law section 806-a, as added by Chapter 644 of the Laws of 2002, by establishing a certification process by driver education courses of the amount of time a holder of a class DJ or class MJ learner's permit has spent operating a motor vehicle while under the immediate supervision of a driver education teacher. The rule provides that the driver education teacher in a driver and traffic safety education course approved by the Commissioner shall, upon the request of his or her student who is the holder of a class DJ or class MJ learner's permit, certify on a form prescribed by the Commissioner of Motor Vehicles, the number of hours such student has spent operating a motor vehicle while under the immediate supervision of such driver education teacher.

Legal Basis for Rule: Education Law §§ 207, 305(1) and (2) and 806-a(2) and § 13 of Chapter 644 of the Laws of 2002

Sections 247.1, 247.2, 247.3 and 247.4 – Vocational Rehabilitation Program

Description of Rule: The rule conforms the Commissioner’s Regulations pertaining to the Department’s operation of the vocational rehabilitation program to recent amendments to the Federal vocational rehabilitation regulations governing that program, and makes certain technical corrections.

Need for Rule: In recent years, The State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (VESID) has implemented mediation as part of its due process system. The time to arrange and conduct a mediation session impinges upon the deadline for arranging for an impartial hearing. The previous Commissioner’s regulation reflected the 4 day time limit contained in the original, draft Federal regulation. When that regulation was finalized, the Secretary of Education discussed the need to allow time for mediation and also cited the overwhelming, nationwide support for extending that 45 day period. This rule allows VESID to use mediation, when appropriate, while preserving a due process system that is timely, quick and equitable. The rule also restates the criteria for determining eligibility in terms of the standards in the Commissioner's regulations, and eliminates an obsolete reference to the possible review of a hearing officer decision by the deputy commissioner, that is no longer available under Federal law. In addition, the title of section 247.3 is revised to reflect the addition of mediation as a dispute resolution tool.

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

Sections 200.1, 200.4, 200.16 and 201.10 – Vocational Rehabilitation Program

Description of Rule: The rule aligns the State regulations with Federal regulations and technical amendments relating to special education.

Need for Rule: The rule is necessary to align State regulations consistent with Part 300 of the Code of Federal Regulations relating to the definition of mediator and to make technical corrections to the definition of independent educational evaluations, the contents of the individualized education program (IEP) for preschool students and to certain cross citations.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 3214(3), 4403(3), 4404(not subdivided) and 4410(5).

Sections 155.1, 155.2, 155.12, 155.15 and 200.2 – Special Education Space Requirements Plans

Description of Rule: The rule ensures the provision of appropriate long-term education space for students with disabilities in the least restrictive environment.

Need for Rule: The rule is necessary to ensure the provision of appropriate long-term education space for students with disabilities; to expand opportunities for students with disabilities to be educated in settings with nondisabled students, while reducing the number of classrooms in separate settings where opportunities for interaction with nondisabled peers are limited or nonexistent; and to establish connections between the statutory requirements relating to school district plans of service, special education space requirements plans and approvals of aid for construction, remodeling and new leases from BOCES and school districts.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), 403-a(1)-(6), 1950(17), 3602(3), (6) and (10), 4402(1) and 4403(3).

Section 200.5(b) – Parental consent for special education services

Description of Rule: The rule conforms the Commissioner’s Regulations to the federal Individuals with Disabilities Education Act and its implementing regulations by repealing the requirement that a school district initiate an impartial hearing when a parent does not provide consent for the initial provision of special education services.

Need for Rule: The rule is necessary to conform the Commissioner's Regulations to the parental consent provisions of section 614(a) of Part B of the Individuals with Disabilities Education Act (IDEA) and 34 CFR 300.505, as clarified in recent guidance received from the U.S. Department of Education. The U.S. Department of Education has informed the State Education Department that Part B of the IDEA requires parental consent for the initial provision of special education and related services and does not permit public agencies to use the IDEA due process hearing procedures to override a parental refusal to consent to the initial provision of special education and related services. The rule is necessary to conform the Commissioner's Regulations to federal requirements by repealing provisions in section 200.5(b)(1)(ii) and (iii) that require, in the event that a parent does not grant consent for an initial provision of special education services within 30 days of a notice of recommendation, a board of education to initiate an impartial hearing to determine if the provision of special education services is warranted without parental consent.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2), and (20), 3713(1) and (2), 4402(1)(b)(2) and (3) and (2)(a), 4403(3) and 4404(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:

Jhone M. Ebert

Senior Deputy Commissioner for Education Policy

New York State Education Department

Office of P-12 Education

89 Washington Avenue

West Wing, Second Floor Mezzanine - EB

Albany, New York 12234

(518) 474-5520

OFFICE OF HIGHER EDUCATION

Section 80-5.16 – Requirements for the transitional E certificate for teachers of specific occupational subjects.

Description of Rule: Section 80-5.10 establishes a Modified Temporary License for issuance to schools seeking to employ classroom teachers in demonstrated shortage areas. The regulation specifies degree, testing, and semester hour requirements for candidates. Modified temporary licenses are valid for one year, and the regulation limits issuance to the 2003-2004 and 2004-2005 school years. Because of the time limit established in regulation, modified temporary licenses are no longer issued.

Need for Rule: Because of the time limit established in regulation, modified temporary licenses are no longer routinely issued. There are, however, candidates waiting processing of applications that were filed during the appropriate time frame, but who need to complete certain requirements. These applicants will be eligible for the Modified Temporary License once those requirements are met. The regulation, therefore, continues to be needed.

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

Sections 3.47 and 3.50 – Authorization of degrees.

Description of Rule: The rule authorizes the conferral in New York State of the degree, Bachelor of Social Work (B.S.W.), for completion of a baccalaureate program in social work.

Need for Rule: Section 3.50 lists the titles and abbreviations of degrees authorized to be conferred in New York State and Section 3.47(c) classifies such degrees. The amendment arose from an institution of higher education's request to confer the Bachelor of Social Work (B.S.W.) degree for completion of a baccalaureate program in social work. The degree is commonly used in other states, and the amendment benefits students in New York by affording them the opportunity to earn a baccalaureate degree that is specific to the field of social work. Since the amendment benefits New York students and was supported by the State Board for Social Work and representatives of professional associations and institutions of higher education, the regulation will be continued without modification.

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

Section 52.21(b)(2) – Requirements for teacher education programs.

Description of Rule: This rule relates to accreditation requirements for teacher education programs. The rule extended the date by which registered programs for the preparation of classroom teachers must achieve accreditation. For programs registered on or before September 1, 2001, the deadline was extended from December 31, 2004, to December 31, 2006. Section 52.21(b)(2)(iv)(c) was amended effective July 13, 2006, to provide an exception to the amended deadline for programs awaiting an accreditation decision or who are operating under a corrective action plan.

Need for Rule: Due to administrative demands on the accrediting organizations, some of those teacher preparation programs continue to await accreditation decisions as the amended deadline approaches. Emergency action is expected in December 2007 to amend the exception. The emergency action is needed to ensure the continuing ability of the impacted colleges to offer their teacher education programs and to protect the interests of teacher education students at those institutions.

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

Section 52.21 – Requirements for educational leadership programs.

Description of Rule: The rule improves the preparation of education leaders in New York State by establishing new requirements for college programs that prepare school building leaders, school district leaders, and school district business leaders.

Need for Rule: Section 52.21(c) was amended effective July 13, 2006, to clarify and strengthen requirements relating to the three educational leadership certifications. For registered School Building Leader (SBL) programs only, the 2006 amendment specified that programs must inform applicants, in writing, prior to admission, that the Department requires candidates to have completed three years of classroom teaching service and/or pupil personnel service experience, in public or non-public schools N-12, to qualify for initial SBL certification.

For registered School District Leader (SDL) programs only, the 2006 amendment specified that programs must inform applicants in writing, prior to admission, that the Department requires candidates to have completed three years of classroom teaching service and/or educational leadership service and/or pupil personnel service experience, in public or non-public schools N-12, to qualify for professional SDL certification.

The 2006 amendment pertaining to SDL certification also specified that candidates serving as school district leaders under "Transitional D" certificates must complete all program requirements to be recommended for professional SDL certification and that programs must support and supervise candidates as they complete the experience needed for professional certification. As a result of the 2006 amendment, the requirements for recommending candidates for SDL professional certification (alternative route) are described under Section 52.21(c)(4)(vii) of the Commissioner’s Regulations, in lieu of the repealed subparagraph (viii) of that Part.

For registered SDL and School District Business Leader (SDBL) programs, the 2006 amendment required non-certification SDL and SBL companion programs to meet all requirements for the respective certificates, except for completion of the certification exam. In addition, the 2006 amendment specified that the requirement to achieve a satisfactory level of performance on the New York State assessment for SDL or SDBL certification shall be waived if the candidate completes the registered SDL or SDBL program prior to the availability of the appropriate New York State assessment.

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

Section 80-5.10 – Modified temporary licenses for classroom teaching.

Description of Rule: Section 80-5.10 establishes a Modified Temporary License for issuance to schools seeking to employ classroom teachers in demonstrated shortage areas. The regulation specifies degree, testing, and semester hour requirements for candidates. Modified temporary licenses are valid for one year, and the regulation limits issuance to the 2003-2004 and 2004-2005 school years. Because of the time limit established in regulation, modified temporary licenses are no longer issued.

Need for Rule: Because of the time limit established in regulation, modified temporary licenses are no longer routinely issued. There are, however, candidates waiting processing of applications that were filed during the appropriate time frame, but who need to complete certain requirements. These applicants will be eligible for the Modified Temporary License once those requirements are met. The regulation, therefore, continues to be needed.

Legal Basis for Rule: Education Law §§ 207, 305(1), (2) and (7), 3004(1) and 3006(1)(b) and (c) and (2)(a)(iii), 3009(1) and 3010.

Section 100.2(dd) – Mentoring Programs at School Districts and BOCES.

Description of Rule: The amendment to Section 100.2(dd) requires that school district and BOCES professional development plans include a mentoring program to both support new classroom teachers holding Initial certificates, and to allow them to meet the mentored experience requirement for the Professional certificate. The regulation establishes required elements of the mentoring programs as well as documentation requirements for districts and BOCES. It is in effect for district professional development plans covering the period February 2, 2004 and thereafter.

Need for Rule: Mentoring continues to be a requirement for second level teacher certification and mentoring continues to be a priority area in the Regents and Education Department’s teaching policy.

Legal Basis for Rule: Education Law §§ 207, 215, 305(1), (2) and (7), 3004(1) and 3604(8).

Sections 80-3.3, 80-3.7, 80-4.3, and 84.4 – Individual Evaluation Requirements and other Requirements for Certification in the Classroom Teaching Service.

Description of Rule: The amendment establishes requirements for certification in classroom teaching titles and extensions through individual evaluation of candidates, in lieu of completion of a teacher education program. It specifies degree, coursework, and experience requirements. The changes apply to applicants for certification after February 1, 2004. A sunset date for individual evaluation of February 1, 2007 for childhood education certificates and February 1, 2009 for other classroom teaching certificates also was included. At the time of adoption, the amendment was critical to the Department’s ability to certify a sufficient number of properly qualified candidates to fill vacant teaching positions in the State’s public schools.

Need for Rule: As the second sunset date approaches, shortages in certain subjects and geographic regions persist. Therefore, the Department will conduct a review of the individual evaluation provision in the coming year, in order to decide whether it should be reinstated, modified, or replaced by another mechanism to address the State’s continuing shortage of qualified and certified teachers.

The amendment also streamlines examination requirements for candidates who already hold a classroom teaching certificate and apply for an additional certificate, and removes a provision that would establish additional requirements for candidates who have not applied for the Initial certificate within two years of completing his or her teacher education program. The changes apply to applicants for certification after February 1, 2004. The requirements were eliminated because they were judged to be unnecessary and their removal would help alleviate the shortage of certified teachers in New York State.

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

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:

John D’Agati

Deputy Commissioner for Higher Education

New York State Education Department

Office of Higher Education

Room 978, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-3633

OFFICE OF THE PROFESSIONS

Sections 29.7(c), 63.6 and 63.8 – Pharmacy and the registration of New York pharmacies and Nonresident Establishments.

Description of Rule: The rule establishes requirements for the registration of nonresident establishments that ship, mail, or deliver prescription drugs and/or devices into New York State, remove unnecessary requirements for faxing a prescription to a New York pharmacy that is under contract to a hospital or nursing home, and delete outdated references to registered stores in the regulations.

Need for Rule: The rule is needed to establish standards for the registration of nonresident establishments that are pharmacies, and wholesalers and manufacturers of prescription drugs and devices, in accordance with section 6808-b of the Education Law, including the requirements that a nonresident establishment must meet in order to be registered in New York; standards and procedures for taking disciplinary action against a nonresident establishment, including revoking or suspending the registration of such establishments; to define a standard for an exception to the registration requirement for nonresident establishments that engage in isolated transactions in New York; to remove an unnecessary registration requirement for New York pharmacies; to delete unnecessary requirements for faxing a prescription to a pharmacy serving as a vendor of pharmaceutical services, based upon a contractual arrangement with an institution, such as a hospital or nursing home; and to remove outdated requirements for the registration of registered stores, since these stores no longer exist, and the statutory authority to register them was repealed by Chapter 538 of the Laws of 2001.

Legal basis for rule: Education Law §§ 207, 6504, 6506(1), 6507(2)(a), 6509(9), 6801, 6808(1) and 6808-b(2), (4)(c),(6), (8) and (9).

Section 52.31 and Subpart 79-8 – Professional Licensure in Medical Physics

Description of Rule: The rule implements the provisions of Article 166 of the Education Law by establishing the education, experience, and examination requirements for licensure as a medical physicist; requirements for granting licensure without examination for prescribed individuals with experience in the field; requirements for granting limited permits and licensure by endorsement, and standards for registered college programs that lead to licensure in this profession.

Need for Rule: Chapter 495 of the Laws of 2001 added a new Article 166 to the Education Law. Article 166 of the Education Law establishes medical physics as a licensed profession in New York State. . The rule is needed to implement Article 166 of the Education Law by establishing specific education, experience, and examination requirements that an applicant for licensure in a specialty area of medical physics must meet. In addition, in accordance with the requirements of Article 166 of the Education Law, the rule is needed to set forth standards for registered college programs that lead to licensure in a specialty area of medical physics. As required by statute, the rule is also needed to prescribe requirements, including educational requirements, for licensure as a professional medical physicist without examination under a "grandparenting" provision in the statute, available to individuals who have prescribed experience in the field and file an application for licensure by August 25, 2004.

Legal Basis for Rule: Education Law §§ 207, 6501, 6504, 6507(1), 2(a), (3)(a), and (4)(a) and (b), 6508(1) and (2), 8701(2) and (3), 8702(1), (2), (3), and (4), 8703, 8705(2), (3), and (4), 8706(3), and 8708(1) and (2).

Sections 61.2 and 61.18 – Residency option pathway for dental licensure.

Description of Rule: The rule establishes requirements for a residency option pathway for dental licensure that would permit a candidate to substitute successful completion of an acceptable dental residency program for the licensure examination in clinical dentistry.

Need for Rule: In accordance with statute, the residency program must include an outcome assessment evaluation of the resident's competence to practice dentistry, acceptable to the State Education Department. The rule is needed to establish requirements for that outcome assessment evaluation. In addition, the rule is needed to establish requirements that define and clarify the residency programs that may be successfully completed by a candidate in lieu of the clinical licensing examination.

Legal Basis for Rule: Education Law §§ 207, 6506(1), 6507(2)(a), 6601(not subdivided) and 6604(3) and (4).

52.10, 72.1[c], 72.2[b] and [c], 72.4, and 72.6 - Licensure of Psychologists

Description of rule: The rule establishes requirements for limited permits to practice psychology, remove outdated registration requirements for educational programs leading to licensure in this profession, delete a provision concerning professional study for admission to the licensure examination, and repeal the regulatory definition of the practice of psychology which is now established in statute.

Need for rule: The amendment is needed to implement the requirements of Chapter 676 of the Laws of 2002. This Chapter established a new route for obtaining a limited permit to practice psychology in section 7604(1-a) of the Education Law. This route permits an individual who has arranged for an acceptable supervised experience required for licensure to obtain a limited permit to participate in the experience.

Legal Basis for Rule: Sections 207(not subdivided), 210(not subdivided), 6506(1), 6507(2)(a) and (4)(a), 7601-a(1) and (2), 7603(2), and 7604(1) and (1-a) of the Education Law.

Sections 29.7(a), 63.6(b) and 63.8(b) – The practice of pharmacy and the registration of pharmacies.

Description of Rule: The rule establishes requirements relating to the counseling of patients by pharmacists and the maintenance of drug retail price lists by pharmacies.

Need for Rule: The rule requires that a pharmacist or pharmacy intern shall counsel patients in specified cases when prescriptions are delivered to the patient on the premises of the pharmacy. Such requirement is applicable in cases in which a prescription is dispensed for the first time for a new patient of the pharmacy or a prescription for a new medication for an existing patient of the pharmacy and/or a change in the dose, strength, route of administration or directions for use of an existing prescription previously dispensed for an existing patient of the pharmacy. The previous rule required the pharmacist or pharmacy intern to offer counseling to every patient for whom a prescription is delivered on the premises of the pharmacy. The rule is needed to improve efficiency in pharmacy practice, while strengthening the requirement in instances when counseling is appropriate. The rule is also needed to implement the requirements of section 6826 of the Education Law concerning drug retail price lists that must be maintained by pharmacies and made available to any person upon request. The rule is needed to specify the content of the sign that must be posted in the pharmacy advising the public of the retail drug price list and notice requirements for pharmacies that offer to dispense prescription drugs to consumers through an Internet website and/or through mail order.

Legal Basis for Rule: Education Law §§ 207, 6504, 6506(1), 6507(2)(a), 6509(9), 6801, 6806, 6808-b(2) and (6) and 6826(6).

Sections 61.9 and 61.13 – The practice of the profession of certified dental assisting and the profession of dental hygiene.

Description of Rule: The rule establishes additional dental supportive services that certified dental assistants may perform while under the direct personal supervision of a licensed dentist, and additional services that licensed dental hygienists may perform in the practice of dental hygiene while under the supervision of a licensed dentist as prescribed.

Need for Rule: Education Law section 6608 authorizes the Commissioner of Education to establish in regulation additional dental supportive services that a certified dental assistant may perform in the practice of certified dental assisting. The rule is needed to establish such appropriate additional dental supportive services that may be performed by certified dental assistants. The rule will benefit dental practice in the State by enabling the licensed dentist to use his or her staff more efficiently. The dentist will be able to delegate appropriate dental supportive services to trained staff, under the dentist's direct personal supervision. The State Board for Dentistry recommended that these additional supportive services be added to the scope of practice for certified dental assisting. In accordance with section 6608 of Education Law, all dental supportive services within the scope of practice of certified dental assisting may be performed by registered dental hygienists while under a dentist’s supervision as defined in Regulations of the Commissioner of Education. Therefore, the rule is also needed to include the additional services in the scope of practice of dental hygiene and to establish the appropriate level of supervision for those services. The rule was subsequently modified in 2007.

Legal Basis for Rule: Education Law §§ 207, 6506(1), 6507(2)(a), 6606(1) and (2) and 6608.

Section 63.7(c)(1) – Mandatory continuing education for licensed pharmacists.

Description of Rule: The rule requires licensed pharmacists to complete, as part of the existing 45-hour continuing education requirement that they must complete in each registration period, at least three hours in the processing and strategies that may be used to reduce medication and/or prescription errors.

Need for Rule: The rule specifies certain necessary areas of continuing education to foster safe pharmacy practice.

Legal Basis for Rule: Education Law §§ 207, 6502(1), 6504, 6507(2)(a) and 6827(2).

Sections 52.9 and 61.17 – Dental hygiene restricted local infiltration anesthesia/nitrous oxide analgesia certificate.

Description of Rule: The rule establishes procedures and education and training requirements for licensed dental hygienists to be certified to administer and monitor local infiltration anesthesia and nitrous oxide analgesia in the practice of dental hygiene under the personal supervision of a licensed dentist and requirements that college programs must meet to be registered by the State Education Department as leading to certification in this field.

Need for Rule: The rule is needed to ensure that licensed dental hygienists receive education and training sufficient to ensure the competent administration and monitoring of local infiltration anesthesia and nitrous oxide analgesia in the practice of dental hygiene. In addition, the rule is needed to establish standards for college programs leading to certification in this field. The amendment establishes specific content requirements for such programs.

Legal Basis for Rule: Education Law §§ 207, 6506(1), 6507(2)(a), 6605-b(1),(2) and (3) and 6606.

Sections 52.15 and 78.4 – Licensure in Massage Therapy.

Description of Rule: The rule clarifies clock hour requirements for programs leading to licensure in massage therapy and requirements for the endorsement of a license in massage therapy issued by another state, country, or territory.

Need for Rule: The rule is needed to clarify the intent of the Commissioner’s regulations. It requires programs leading to licensure in massage therapy to include at least 1,000 clock hours of classroom instruction or the semester equivalent. The previous language of the regulation required the program to include 1,000 hours (50 minutes each) of classroom instruction. This lead to confusion because the State Education Department has required programs leading to licensure to include at least 1,000 clock hours of classroom instruction. All such programs have met this requirement. The rule is needed to conform the language of the regulation to existing practice.

Legal Basis for Rule: Education Law §§ 207, 210, 6506(1) and (6), 6507(2)(a) and (4)(a), 7802 and 7804(2).

Section 68.11 – Mandatory Continuing Education Requirements for Professional Engineers.

Description of Rule: The rule sets forth the continuing education requirements and standards that licensed professional engineers must meet to be registered to practice in New York State and requirements for approval of sponsors of such continuing education.

Need for Rule: The rule is needed to clarify and implement the requirements of section 7211 of the Education Law, as added by Chapter 146 of the Laws of 2002. As required by statute, the rule is also needed to establish continuing 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 professional engineers. In addition, the rule is needed to establish a fee for the review by the State Education Department of sponsors of courses of learning or self-study programs in order to defray the cost of such review.

Legal Basis for Rule: Education Law §§ 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1), 7211(1)(a),(b),(c) and (d), (2),(3),(4),(5), and (6) and § 2 of Chapter 146 of the Laws of 2002.

Sections 70.3 and 70.6 – The Examination for Licensure as a Certified Public Accountant and Mandatory Continuing Education Requirements for Licensed Certified Public Accountants and Public Accountants.

Description of Rule: The rule establishes standards for the examination required for licensure as a certified public accountant, continuing education requirements that licensed certified public accountants and public accountants must meet to be registered to practice in New York State, and requirements for sponsors of the continuing education.

Need for Rule: The rule conforms the New York State licensing examination requirements to national standards for certified public accountancy, and allows New York State to continue to use the national examination as the licensing examination for certified public accountants.

The rule was modified in 2006. The 2003 rule specified that a candidate would carry conditional credit for a section passed for "18 months from the actual date the candidate took that section of the examination." Given candidates real life experience with late score reporting and difficulty scheduling to sit for exams in certain weeks of each testing window, the rule was modified to allow the candidate to carry credit until the end of the testing window which is 18 months after the candidates first sat for that section of the exam. It was also modified to allow the reporting of numeric scores. As written, with the implementation of computer-based testing in April 2004, scores had been reported on a pass/fail basis.

Legal Basis for Rule: Education Law §§ 207, 6501, 6502(1), 6504, 6507(2)(a) and (3)(a), 6508(2), 7404(1)(4), 7409(1)(a), (b) and (c) and 7409(2) and (4).

Section 68.12 – Mandatory Continuing Education Requirements for Licensed Land Surveyors.

Description of Rule: The rule sets forth the continuing education requirements and standards that licensed land surveyors must meet to be registered to practice in New York State and requirements for approval of sponsors of such continuing education.

Need for Rule: The rule is needed to clarify and implement the requirements of section 7212 of the Education Law, as added by Chapter 135 of the Laws of 2002 and renumbered and amended by Chapter 410 of the Laws of 2003. As required by statute, the proposed rule is also needed to establish continuing 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 land surveyors. In addition, the rule is needed to establish a fee for the review by the State Education Department of sponsors of courses of learning or self-study programs in order to defray the cost of such review.

Legal Basis for Rule: Education Law §§ 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1), 7212(1)(a),(b),(c) and (d), (2),(3),(4),(5), and (6) and § 1 of Chapter 410 of the Laws of 2003.

Agency Representative:

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

Douglas E. Lentivech

Deputy Commissioner for the Office of the Professions

Office of the Professions

New York State Education Department

West Wing, Second Floor, EB

Albany, NY 12234

(518) 474-3817 ext. 470

OFFICE OF CULTURAL EDUCATION

Part 179 – Apportionment of Funds to Educational Broadcast Councils.

Description of Rule: Apportionment of Funds to Educational Broadcast Councils.

Need for Rule: The rule is necessary to prescribe requirements regarding how the annual appropriation for public television is apportioned among New York’s nine funded public television stations; to specify the reporting requirements to remain eligible to receive public funding; and to update language from "instructional" services to "educational telecommunications" services to reflect the current practices and trends in public broadcasting in New York State.

Legal Basis for Rule: Education Law §§ 207(not subdivided) and 236(3), (4) and (5).

Sections 185.5 and 185.11 – Local Government Records Management.

Description of Rule: The rule makes necessary changes and additions in order to update Records Retention and Disposition Schedule MU-1 and corrects the name and address of the State Archives to which one can submit requests for records retention and disposition schedules.

Need for Rule: The rule revised Records Retention and Disposition Schedule MU-1, thus providing cities, towns, villages and fire districts with means to dispose of records not listed on the previous schedule, to maintain voluminous records no longer than the records are needed, and to make the schedule easier to understand. In addition, the rule is needed to provide the correct name and address of the State Archives to ensure that requests for copies of records retention and disposition schedules are handled in a timely manner.

Legal Basis for Rule: Education Law § 207(not subdivided) and Arts and Cultural Affairs Law § 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:

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:

Mark Schaming

Deputy Commissioner for Cultural Education

New York State Education Department

Cultural Education Center

222 Madison Avenue

Albany, NY 12230

(518) 474-5812

OFFICE OF MANAGEMENT SERVICES

Sections 3.8 and 3.9 – Chief of Staff and Chief Operating Officer of the State Education Department.

Description of Rule: The rule provides for the appointment of a chief of staff; to specify the duties of the chief of staff and the chief operating officer; and to designate the chief of staff as the deputy commissioner of education as specified in Education Law section 101, who, in the absence or disability of the Commissioner or when a vacancy exists in the office of Commissioner, shall exercise and perform the functions, powers and duties of the Commissioner.

Need for Rule: The rule is needed to conform the Rules of the Board of Regents to changes made in the internal organization of the Department.

Legal Basis for Rule: Education Law § 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:

Alison Bianchi, Esq.

Counsel and Deputy Commissioner for Legal Affairs

New York State Education Department

State Education Building, Room 112

Albany, New York 12234

(518) 474-6400

OFFICE OF STATE REVIEW

Part 279 – State Review of Impartial Hearing Officer Determinations Regarding Services for Students With Disabilities.

Description of Rule: The rule clarifies procedures for practice on State level review of Impartial Hearing Officer determinations for students with disabilities.

Need for Rule: The rule is needed to expedite and otherwise facilitate the processing of petitions for review to State Review Officers.

Legal Basis for Rule: Education Law §§ 101, 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 above-proposed amendments by contacting:

Justyn Bates

Assistant Counsel and State Review Officer

Office of State Review

80 Wolf Road, 2nd Floor

Albany New York 12203

(518) 485-9373

C. CALENDAR YEAR 1998

OFFICE OF P-12 EDUCATION

Section 100.12 Instructional Computer Technology Plans

Description of Rule: the regulation prescribes criteria for school districts to develop instructional computer technology plans, which include provisions for the maintenance and repair of equipment and provisions for related professional development.

Need for Rule: instructional computer technology plans are required for the use of instructional computer technology equipment funded pursuant to section 3602(26-a) of the Education Law, the federal ESEA Title III Technology Literacy Challenge Fund and the federal Telecommunications Act E-Rate Discounts.

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

Part 151 and 156.7 Universal Pre-Kindergarten Programs

Description of Rule: The regulation 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 beginning with the 1998-99 school year.

Need for Rule: The regulation is necessary to comply with section 58 of Part A of section 1 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.

155.16 Energy Performance Contracts

Description of Rule: The regulation establishes criteria for the development and approval of energy performance contracts of school districts and BOCES in accordance with Energy Law section 9-103(8) and in consultation with the State Energy Research and Development Authority and enables school districts and BOCES to reduce energy consumption and improve efficiency.

Need for Rule: The regulation is necessary to comply with sections 1 and 78 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Legal Basis for Rule: Education Law sections 101, 207 and 305(27), Energy Law section 9-103(8) and sections 1 and 78 of Part A of section 1 of Chapter 436 of the Laws of 1997.

100.7(i) and 116.4 Alternative High School Equivalency Preparation Programs

Description of Rule: The regulation makes residential facilities operated by the State Office of Children and Family Services eligible to operate approved alternative high school equivalency preparation programs for students at least 16 years of age and under the age of 18. It also permits students in these facilities to take the GED test at the same age as students in local school districts or BOCES. It allows students to be eligible to take the GED test when they are released from these facilities should they be unable or unwilling to return to the public school system. The regulation was amended in 1999 to expand the age range of students and subdivision 100.7 (i) was renumbered as subdivision 100.7 (h).

Need for Rule: the rule ensures equal access for students in facilities operated by the Office of Children and Family Services to participate in programs leading to a high school equivalency diploma.

Legal Basis for Rule: Education Law sections 207, 208, 209 and 3205(1), (2) and (3).

100.13 Operating Standards Aid

Description of Rule: The regulation requires school districts to develop and maintain an Operating Standards Aid plan to assist students to achieve the high learning standards and may use operating standards aid in conjunction with other resources to help students improve. Each plan shall be approved by the board of education by July 3lst and a district may incorporate the required elements of such a plan in a comprehensive district educational plan.

Need for Rule: The regulation is necessary to comply with section 92 of Chapter 58 of the Laws of 1998.

Legal Basis for Rule: Education Law sections 207, 3602(38) and section 92 of Chapter 58 of the Laws of 1998.

144.11 Early Grade Class Size

Description of Rule: The regulation sets forth the requirements for awarding grants to provide for a reduction in class size in grades kindergarten, one, two and three as a means of improving student academic performance.

Need for Rule: The regulation is necessary to comply with section 57 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Legal Basis for Rule: Education Law sections 101, 207 and 3602(37) and section 57 of Part A of section 1 of Chapter 436 of the Laws of 1997.

Section 200.1 (gg) – Definition of related services

Description of Rule: The rule adds “orientation and mobility services” to the definition of related services.

Need for Rule: The rule is needed in order to ensure that the list of related services in regulation is consistent with the related services specified in section 4401 of the Education Law.

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

Section 200.1(oo) – Definition of supplementary aids and services

Description of Rule: The rule defines “supplementary aids and services” as defined in 34 CFR section 300.28.

Need for Rule: This rule clarifies the definition of “supplementary aids and services,” consistent with federal regulations, which must be documented on a student’s individualized education program (IEP).

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

Section 200.1(ss) – Definition of transition services

Description of Rule: The rule adds “related services” to the list of coordinated set of activities for transition services.

Need for Rule: The rule is necessary to comply with Education Law section 4401(9) that includes related services in the definition of transition services.

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

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

Description of Rule: This rule specifies that the IEP include measurable annual goals, short-term objectives and benchmarks to enable the student to be involved in and progress in the general curriculum and meeting each of the student’s other educational needs that result from the disability; supplementary aids and services to be provided to the student, or on behalf of the student, specify the student’s participation in State or local assessments and participation in regular education programs (or, for preschool students, participation in appropriate activities with age-appropriate nondisabled peers); a statement of the program modifications or supports for school personnel that will be provided for the student to advance toward the annual goals, to be involved in the general curriculum and to participate in extracurricular and other nonacademic activities; for students age 14 and updated annually, a statement of the transition service needs of the student that focuses on the student’s courses of study; and a statement of how the student’s parents will be regularly informed of their child’s progress. This rule also requires that the Committee on Special Education shall, in the development of the IEP, consider special factors including a student’s needs relating to behavior, communication, limited English proficiency, instruction in and use of Braille, and assistive technology.

Need for Rule: This rule is necessary to comply with federal regulations regarding the required components of a student’s IEP.

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

Section 200.5(a) – Procedural safeguards notice

Description of Rule: This rule adds a cross citation to section 615 of the Individuals with Disabilities Act (IDEA) relating to the award of attorney’s fees in a due process appeal.

Need for Rule: This rule is necessary since IDEA specifies how the amount of attorney’s fees are to be based, the prohibition and reduction of attorneys’ fees and related costs for certain service; conditions for the exception to the prohibition and reduction of such fees.

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

Section 200.7 – Application for admission to a State-supported school.

Description of Rule: This rule corrects the cross citation to paragraph (4) of section 200.4 of the Regulations of the Commissioner relating to the procedures for referral, evaluation, IEP development, placement and review.

Need for Rule: This rule is necessary to correct the cross citation in section 200.4 of the Regulations of the Commissioner.

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

Section 200.16(d) – Preschool programs

Description of Rule: This rule corrects cross citations to section 200.4(c)(2) and (3) of the Regulations of the Commissioner relating to the required components of an IEP for a preschool student with a disability.

Need for Rule: This rule is necessary to correct a cross citation to section 200.4 of the Regulations of the Commissioner.

Legal Basis for Rule: Education Law sections 207, 4403(3) and 4410(13).

Section 200.2(e) – Impartial hearing officers

Description of Rule: This rule specifies that the appointment of impartial hearing officers (IHO) must be made on a rotational basis from an alphabetical list of IHOs who are certified by the Commissioner of Education and who are available to service in the district.

Need for Rule: This rule, subsequently amended effective September 1, 2001 and January 10, 2002, is necessary to ensure compliance with federal regulations which requires that impartial hearing officers be selected in a rotational manner.

Legal Basis for Rule: Education Law sections 207 and 4404(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:

Jhone M. Ebert

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

OFFICE OF CULTURAL EDUCATION

3.27 and 3.30 Museums and Historical Societies chartering and registration

Description of Rule: Every Regents-chartered museum and historical society must adopt a collections management policy which conforms to generally accepted professional and ethical standards; collecting must follow the specific purposes of the institution as enumerated in its charter; only those institutions which have collecting as one of the stated purposes in their charter shall hold collections; donors must be given a clear understanding of what will happen to their gifts to the collection; and the use of funds derived from the sale (deaccession) of collections is restricted to acquisition, preservation, protection or care of collections, with certain exceptions if warranted.

Need for Rule: The rule protects collections, the public and chartered institutions by ensuring that artifacts held in trust for the public are gathered, maintained, preserved and made available according to accepted professional and ethical standards, including standards enumerated by the American Association of Museums, the American Association for State and Local History, and the International Council of Museums. Adoption of a Collection Management Policy means that each institution will collect only as appropriate to its corporate purposes; the public will be informed as to what each institution collects; each institution’s trustees and staff will have a framework in which to make informed decisions about adding items to and removing items from the collection; and the temptation is removed to sell collections in order to finance general operations rather than to enhance or protect the collection.

Legal Basis for Rule: Education Law sections 207 and 216.

90.2(a)(9) Library Registration

Description of Rule: To provide minimum standards for equipment that better accommodates rapidly changing developments in new technology.

Need for Rule: The Commissioner of Education has determined that revisions were necessary in the part of the regulation relating to equipment because the current language did not reflect the technological environment in which libraries exist today. The rule eliminated the requirement for a microform reader, as many smaller, rural libraries found this requirement expensive and duplicative. The rule also requires public and association libraries to have the capability to provide telefacsimile transmissions and electronic communications, rather than requiring a specific type of equipment to perform those functions.

Legal Basis for Rule: Education Law sections 207, 215, 254 and 273(1)(f)(5).

90.3 Public Library System Plan of Service

Description of Rule: the rule requires each public library system to include in its plan of service a direct access provision for the total library resources within the system to all individuals residing within the system boundaries, and procedures for modification of its direct access conditions. The plan of service also includes procedures whereby libraries may modify direct access conditions of the system or of individual libraries.

Need for Rule: The rule reaffirms the commitment of no direct charge to an individual for public library services, requires a specific plan from the public library system for providing library services to unserved and underserved areas, helps reduce the burdens on overused libraries, allows flexibility for library systems to respond to local patterns of use and modify free direct access at the public library system level, and provides a procedure for waivers when remedies were needed outside of those listed in the regulation.

Legal Basis for Rule: Education Law sections 207, 254, 255(1), (2) and (3), 272(1)(g) and (h) and 273(1).

179.2 Operating Aid to Public Broadcasting Councils

Description of Rule: the rule amended the provision of the Commissioner's Regulations regarding public broadcasting council organization and funding to allow two or more councils to consolidate into one council and to provide for an up to 3 year transition period during which time the newly consolidated council receives the amount of State operational aid the individual councils would have received if they had not consolidated. In 1998, subsection (e) was added to address what would happen if two or more public television stations were to merge.

Need for Rule: the rule eliminates disincentives for the consolidation of public broadcasting councils, and thereby encourages the consolidation of councils, resulting in increased efficiency and cost savings to the State.

Legal Basis for Rule: Education Law sections 207, 263(3) and 263(4).

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:

Mark Schaming

Deputy Commissioner for Cultural Education

New York State Education Department

Cultural Education Center

222 Madison Avenue

Albany, NY 12230

(518) 474-5812

OFFICE OF THE PROFESSIONS

Sections 3.47 and 3.50 - Master of Physical Therapy Degree and Abbreviations of Pharmacy Degrees

Description: These sections of Regents Rules were amended to authorize the conferral of a new degree, Master of Physical Therapy (M.P.T.), for completion of a professionally oriented master's degree program in physical therapy and to conform the abbreviations of three professional pharmacy degrees to current national usage.

Need for Rule: The need for schools to be able to award the M.P.T. degree arose from a request by a university to offer a physical therapy program leading to this degree. The M.P.T. degree benefits students by affording them the opportunity to earn a degree specific to the profession of physical therapy. The amendment to conform the abbreviations of the three professional pharmacy degrees to nationally accepted usage was proposed by the State Board of pharmacy, pharmacy educators, and licensed professionals in New York State.

Legal Basis for Rule: Education Law sections 207, 210, 218(1); 224(4); and 6734(b).

Section 52.28 and Part 67 - Ophthalmic Dispensing Education and Licensure Requirements

Description: This rule sets forth in regulations the existing standards for registered programs leading to licensure in ophthalmic dispensing and certification in the fitting of contact lenses; strengthen the alternative training and experience requirements for applicants who have not completed a registered program in ophthalmic dispensing or its equivalent; and clarify the examination requirements for licensure and certification.

Need for Rule: the rule is needed to strengthen the alternative training and experience requirements for applicants who have not completed a registered program in ophthalmic dispensing by ensuring adherence to a common curriculum which has been determined by a national body of opticians to be equivalent to the didactic course work provided in registered programs in ophthalmic dispensing. The requirement of on-site supervision by a licensee is needed to ensure the on-site presence of a licensed practitioner when services are provided by an applicant-trainee. Moreover, the provision requiring a ratio of one applicant-trainee to one supervising licensee will ensure that appropriate and adequate supervision and training is provided to the applicant. Finally, limiting renewal of the training permit to a maximum of three years will help to ensure that supervisors provide appropriate learning experiences for an applicant-trainee within a reasonable time period.

Legal Basis for Rule: Education Law sections 207, 210, 6501, 6504, 6506(1), 6507(2)(a), (4)(a), 6508(1), 7121, 7124(a)(2) and (3) and (b) and 7125(c).

Section 66.5 - Phase Two Therapeutic Pharmaceutical Agents

Description: This rule implements requirements relating to the certification of optometrists, to use phase two therapeutic pharmaceutical agents, including clarifying clinical training requirements, examination requirements, reporting requirements and continuing education requirements.

Need for Rule: The regulation is needed to implement section 7101-a of Education Law. The regulation establishes standards for clinical training and the examination necessary for certification, establishes requirements for the reporting of the use of phase two drugs, and establishes requirements for continuing education.

Legal Basis for Rule: Education Law sections 207, 6502(1), 6504, 6507(2)(a)(3)(a) and 4(a), 6508(1) and (2), 7101, 7101-a(1)(f), (3), (4), (7), (9), (9a) and (11); and Ch. 517, L. 1995, sections 3 and 4(b).

Section 67.6 - Ophthalmic Dispensing Continuing Education Requirements

Description: This rule specifies the manner in which licensed ophthalmic dispensers and those certified to dispense contact lenses shall meet the continuing education requirements specified in Education Law for triennial registration. This regulation includes provisions for exemptions, conditional registrations and other procedures necessary to implement the law.

Need for Rule: The regulation is needed to implement Education Law section 7128 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 ophthalmic dispenser.

Legal Basis for Rule: Education Law sections 207, 212(3), 6502(1), 6504, 6507(2)(a), 6508(1) and 7128(1) - (6).

Section 52.13, 70.1 and 70.2 - Public Accountancy Education and Licensure Requirements

Description: This regulation relates to education and licensure requirements in the profession of public accountancy. The purpose of the proposed measure is to set forth in regulations the standards for registered programs leading to licensure in public accountancy that, on or after August 1, 2004, require 150 hours of collegiate study in specified content areas, the requirement that individuals who apply for licensure in public accountancy on or after August 1, 2009 must complete a registered 150-hour program or the equivalent, and the reduction of the experience requirement from two years to one year for applicants who complete a 150-hour registered program in public accountancy or its equivalent.

Need for Rule: The regulation is necessary to strengthen the education requirements for licensure to accommodate licensees' need for core competencies required to practice public accountancy in today's complex business world. Such education will ensure the applicant’s balanced educational preparation in content areas of professional accountancy, general business, and liberal arts and sciences. It will also prepare applicants with such necessary skills as logical thinking, effective writing, ethics, judgment, and quantitative skills. The requirement of one-year experience will suffice an applicant with such preparation for entry into the public accountancy profession.

Legal Basis for Rule: Education Law sections 207, 210, 6501, 6504, 6506(1), 6507(2)(a) and (4)(a), 6508(1) and 7404(1)(2) and (1)(3).

Section 24.7 - Fee for Review of Application for Restoration of Professional License

Description: This rule establishes fee requirements for the filing of petitions for restoration of professional licenses that have been revoked or surrendered.

Need for Rule: The Board of Regents is authorized to restore a license which has been revoked (Education Law § 6511). This rule is necessary to implement the processes by which the Board of Regents considers petitions for the restoration of a professional license that was either revoked or surrendered.

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

Section 52.29, 63.1, 63.4 and 63.5 - Pharmacy Education and Licensure Requirements

Description: These regulations define educational and examination requirements for licensure in the profession of pharmacy. The regulations provide curriculum detail, define what constitutes an acceptable accrediting body, and provide a basis for licensure of pharmacists that graduate from non-accredited programs.

Need for Rule: The rule provides needed clarity since there are no other definitions of an acceptable educational curriculum for pharmacists in New York State. Additionally, the rule is required as a foundation for comparison of foreign non-accredited programs of study.

Legal Basis for Rule: Education Law sections 207, 210, 6501, 6506(6), 6507(2)(a) and (4)(a), 6508(1), 6805(1)(2) and 6806(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:

Douglas E. Lentivech

Deputy Commissioner for the Office of the Professions

Office of the Professions

New York State Education Department

West Wing, Second Floor, EB

Albany, NY 12234

(518) 474-3817 ext. 470

OFFICE OF HIGHER EDUCATION

27-1.1 Higher Education Oppportunity Program

Description of Rule: the rule revised the criteria for determining student economic eligibility for the Higher Education Opportunity Program.

Need for Rule: the rule is needed in order to update the criteria for student eligibility by (1) taking into account inflationary conditions and changes in annual income; (2) accounting for New York State and local taxes and regional maintenance costs and (3) assuring consistency across the State-supported postsecondary opportunity programs and the continuing linkage of these eligibility criteria to federally approved needs analysis techniques. The rule also updated the names of government offices and programs referred to in the economic criteria.

Legal Basis for rule: Education Law sections 207 and 6451(1).

7.3 and 80.2(l) Teacher Certification: certificates of qualification

Description of Rule: the rule eliminated, beginning September 1, 1998, the issuance of the certificate of qualification (CQ) to candidates eligible or provisional teacher certification. The CQ originally provided an additional five years for persons who completed teacher preparation programs to secure employment, at which time he or she surrendered the CQ for a provisional certificate.

Need for Rule: the CQ is no longer needed because in the early 1990s, provisional teaching certificates became renewable for an additional five years beyond their initial five year issuance period, thereby fulfilling the purpose the CQ once served.

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

80.5, 80.6, 80.7, 80.8 and 80.17 Teacher Certification: NTE Core Battery Tests

Description of Rule: the rule eliminated the National Teacher Examination (NTE) Core Battery tests as an option to candidates, for teacher certification in certain specified areas, to satisfy the examination requirement for eligibility for a provisional and/or permanent teaching certificate in certain subjects. The option was eliminated for provisional or permanent certification in the occupational subjects; provisional certification in special education, teaching the deaf and hearing-impaired, the blind and partially sighted, and the speech and hearing handicapped; provisional certification in reading; provisional certification in school media specialist, school media specialist (library) and school media specialist (educational communications); and provisional certification in special subjects: art, business and distributive education (general), dance, home economics (general), health, music, physical education, recreation, speech and technology education. Candidates must instead satisfy the examination requirement by satisfactory performance on the liberal arts and sciences (LAST) portion and the written assessment of teaching skills (ATS-W) portion of the New York State Teacher Certification Examinations (NYSTCE).

Need for Rule: the rule is needed to make uniform the testing requirements for all candidates for teacher certification. With the implementation of the NYSTCE program in 1993, a series of regulatory amendments was begun to require the new NYSTCE exams for all candidates for certification. The amendment completes the process for all teacher certification areas. The NYSTCE program is customized for New York State and the tests align closely with student learning standards that the Board of Regents adopted for kindergarten through twelfth grade students in the State's public schools. The data compiled on candidates taking the NYSTCE tests are made available, with candidates' consent, to institutions that prepare teachers. Institutions use this information to review their teacher education programs and to advise students. The data is also used by the Regents and the State Education Department to formulate teacher education and certification policy. In addition, a uniform testing standard is easier to administer by the Department and would prevent confusion on the part of candidates, and eliminate a significant amount of paperwork and speed the processing of certifications for teachers.

Legal Basis for rule: Education Law sections 207, 305(1), 3004(1)

145-9 Scholarships for Academic Excellence Program

Description of Rule: the rule changed the name of the Merit Scholarship for Academic Excellence program to the Scholarships for Academic Excellence program and corrected a citation to the Education Law relating to the school allocation formula for the scholarship program.

Need for Rule: the rule is necessary to comply with the statutory name of the scholarship program and to provide a correct citation to the Education Law relating to the school allocation formula set forth in statute. Section 83 of Part C of Chapter 58 of the Laws of 1998 amended sections 605-a and 670-b of the Education Law to change the name of the Merit Scholarships for Academic Excellence to the Scholarships for Academic Excellence.

Legal Basis for rule: Education Law sections 207, 605-a(1)(b), 670-b(1), section 12 of Chapter 309 of the Laws of 1996, and section 83 of Part C of Chapter 58 of the Laws of 1998.

3.14, 83.2 and 83.4 State Professional Standards and Practices Board for Teaching

Description of Rule: the rule replaced the then existing Teacher Education, Certification and Practice Board with a new State Professional Standards and Practices Board for Teaching, which serves in an advisory capacity to the Regents and the Commissioner on matters related to teacher preparation, certification, practice and discipline of certificate holders contained in Part 83.

Need for Rule: the rule implemented one of the recommendations of the Regents Task Force on Teaching, as adopted by the Board of Regents on July 17, 1998 and reflects the State Professional Standards and Practices Board for Teaching's assumption of the duties of the now defunct Teacher Education, Certification and Practice Board.

Legal Basis for rule: Education Law sections 207, 305(1) 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:

John D’Agati

Deputy Commissioner for Higher Education

New York State Education Department

Office of Higher Education

Room 978, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-3633

D. CALENDAR YEAR 2015 (3 Year Review)

OFFICE OF P-12 EDUCATION

Section 100.2(c)(11) CPR/AED Instruction

Description: Instruction in Cardiopulmonary Resuscitation (CPR) and Use of Automated External Defibrillators (AEDs).

Need for Rule: To require hands-only instruction in CPR and instruction in the use of AEDs in senior high schools.

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

Section 200.9 SEIS Reimbursement

Description: Special Education Itinerant Services (SEIS).

Need for Rule: To revise the SEIS tuition reimbursement methodology to: (1) provide that reimbursement is to be paid upon the actual provision of SEIS to the student, in conformity with Chapter 56 of the Laws of 2014; (2) allow flexibility in how the minimum billable units of service adjustment are applied; and (3) clarify that consultation with a student’s regular early childhood provider is expressly included as a potential function of a special education itinerant teacher.

Legal Basis for Rule: Education Law sections 101 (not subdivided), 207(not subdivided), 305(1), (2) and (20), 4003(1) and (2), 4401(5), 4405(4) and 4410(10), and section 11 of Part A of Chapter 56 of the Laws of 2014.

Section 100.7 High School Equivalency

Description: State high school equivalency diploma.

Need for Rule: To update, clarify and make technical changes, including provisions relating to the Alternative High School Equivalency Preparation Programs (AHSEP), and otherwise conform to reflect current Department policy and practice.

Legal Basis for 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.

Section 100.2(ee) Academic Intervention Services

Description: Academic Intervention Services (AIS).

Need for Rule: To establish modified requirements for AIS during the 2015-2016 school year.

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

Section 100.8 NEDP Extension

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

Need for Rule: To extend until 6/30/17 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 continuation or modification of any of the above rules by contacting:

Jhone M. Ebert

Senior Deputy Commissioner for Education Policy

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 & 80-5.13 edTPA Safety Net

Description: Requirements for teacher certification.

Need for Rule: To provide teacher candidates with additional flexibility to use the safety net for the teacher performance assessment.(edTPA).

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

Part 80-1.6 Time Extensions on Expired Initial Certificates

Description: Teacher certification.

Need for Rule: To provide for a time extension of up to one-year for an expired initial certificate, transitional certificate and/or a conditional initial certificate to provide time for the revised Content Specialty Test (CST) results to be released by the Department without penalizing the certificate holder.

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

Section 145-2.2 Tuition Assistance Program Academic Standing

Description: Tuition Assistance Program.

Need for Rule: Establishment of standards for a student to regain good academic standing for the purposes of receiving awards under TAP.

Legal Basis for Rule: Education Law sections 101, 207 (not subdivided), 305(1) and (2), 602(2), 661(2) and 665(6).

Amendment of section 100.2(o) of the Commissioner's regulations and Subpart 30-2 of the Rules of the Board of Regents and Addition of a new 30-2.13 and Subpart 30-3 to the Rules of the Board of Regents

Description: Annual Professional Performance Reviews of Classroom Teachers and Building Principals.

Need for Rule: To Implement Subparts D and E of Part EE of Chapters 20 and 56 of the Laws of 2015.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), 3009(1), 3012-c(1-10) and section 3012-d(1-15), and Subparts D and E of Part EE of Chapters 20 and 56 of the Laws of 2015.

Sections 30-1.3, 82-1 and 83-3 Probationary Appointments and Tenured Hearings

Description: Probationary Appointments and Tenured Teacher Hearings.

Need for Rule: To Implement Subparts D and G of Part EE Chapter 56 of the Laws of 2015.

Legal Basis for Rule: Education Law sections 207(not subdivided), 215(not subdivided), 305(1) and (2), 2509(1) and (2), 2573(1), (5) and (6), 3001(2), 3004(1), 3009(1), 3012(1) and (2), 3012-c(1-10), 3012-d(1-15), 3014(1) and (2), 3020(3) and (4), 3020-a(2) and 3020-b(1-6), and Subparts D and G of Part EE of Chapter 56 of the Laws of 2015.

Agency Representative:

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

John D’Agati

Deputy Commissioner for Higher Education

New York State Education Department

Office of Higher Education

Room 978, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 486-3633

OFFICE OF THE PROFESSIONS

Sections 3.47 and 3.50 Doctorate in Occupational Therapy (O.T.D.)

Description: Doctor of Occupational Therapy (O.T.D.) degree.

Need for Rule: To authorize the conferral in New York State of the degree of Doctor of Occupational Therapy (O.T.D.).

Legal Basis for Rule: Education Law sections 207(not subdivided), 210 (not subdivided), 214 (not subdivided), 215 (not subdivided), 218(1), 224(4), and 305(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:

Douglas E. Lentivech

Deputy Commissioner for the Professions

New York State Education Department

Office of the Professions

89 Washington Avenue

West Wing, Second Floor - Education Building

Albany, NY 12234

(518) 486-1765

[email protected]

OFFICE OF CULTURAL EDUCATION

Section 230.2 Cultural Education Center Facilities

Description: Use of Department Facilities in the Cultural Education Center.

Need for Rule: To prescribe standards for the use of Cultural Education Center facilities.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided) and 305(1), (2), (6) and (20).

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:

Mark Schaming

Deputy Commissioner for Cultural Education

New York State Education Department

Cultural Education Center

222 Madison Avenue

Albany, NY 12230

(518) 474-5812

E. CALENDAR YEAR 2014 (4 YEAR REVIEW)

OFFICE OF P-12 EDUCATION

Sections 154.2 and 154.3 of the Regulations of the Commissioner relating to Examination Requirements for Identifying Pupils with Limited English Proficiency

Description: Pupils with Limited English Proficiency.

Need for Rule: To specify the NYS Identification Test for English Language Learners (NYSITELL) for purposes of identifying LEP pupils.

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

Sections 200.7 and 200.15 of the Regulations of the Commissioner of Education Relating to Chapter 501 of the Laws of 2012 (“Protection of People with Special Needs Act”)

Description: Protection of People with Special Needs Act (L. 2012, Ch. 501).

Need for Rule: To conform Commissioner's Regulations relating to students attending residential schools to L. 2012, Ch. 501.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4002(1)-(3), 4212(a), 4314(a), 4358(a), 4403(11), 4308(3), 4355(3), 4401(2), 4402(1) - (7), 4403(3), (11) and (13), 4410(1) - (13), and Chapter 501 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:

Jhone M. Ebert

Senior Deputy Commissioner for Education Policy

New York State Education Department

Room 875, Education Building Annex

89 Washington Avenue

Albany, New York 12234

(518) 474-3862

INTRODUCTION

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

PART 1. INSURANCE REGULATIONS

Notice is hereby given of the following rules relating to insurance that the Department will review this year to determine whether they should be continued or modified. These rules were adopted in 2015, 2013, 2008 and 2003. These rules as published in the State Register (“Register”) contain a regulatory flexibility analysis, a rural area flexibility analysis and/or a job impact statement. If no such analysis was filed, a statement setting forth why one or all of those analyses was unnecessary was published in the Register. Public comment on the continuation or modification of the above rules is invited. Comments must be received within 60 days of the date of publication of this notice. Comments should be submitted to:

Camielle Barclay

Associate Attorney

New York State Department of Financial Services

One State Street

New York, NY 10004

Telephone Number: (212) 480-5299

Email: [email protected]

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

The following rulemakings were adopted in 2015:

• Amendment to Part 65-4 (Insurance Regulation 68-D) (Arbitration) of Title 11 NYCRR, effective February 4, 2015.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301 and 5201 and Article 51.

This amendment revised the structure of fees that are awarded to attorneys who prevail in no-fault disputes on behalf of applicants (generally, health service providers who have obtained assignments from insureds).

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

Statutory Authority: Financial Services Law Sections 202, 301, and 302 and Insurance Law Sections 301, 308, 2110, 2303, 2304, 2324, and 2403 and Articles 21, 23, 24, and 34.

This new Part set forth rules for the rates for and placement of force-placed insurance and prohibited certain practices related to force-placed insurance to protect homeowners and investors from harm caused by excessive force-placed insurance rates, questionable business practices and relationships in the force-placed insurance industry, and inadequate notice of force-placed insurance.

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

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

Insurance Regulation 79 implemented the vehicle inspection requirements of Insurance Law Section 3411 (formerly Section 167-d) to allow insurers to verify the actual existence and condition of a vehicle to be insured for physical damage coverage. This amendment to Insurance Regulation 79 enhanced the speed, effectiveness and efficiency of the inspection program, and facilitated current technology by requiring photo inspections when appropriate, but in a manner that recognized certain specific conditions for optional waivers.

Insurance Regulation 79 was amended, effective May 20, 2015, to revise requirements regarding the inspection of private passenger automobiles for physical damage coverage.

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

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

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

The Department is considering another amendment to Insurance Regulation 147 to allow insurers to continue to use the previously revised standards for varying premium term life insurance policies and universal life products with secondary guarantees issued in 2018.

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

The Department is considering another amendment to Insurance Regulation 179 to allow insurers to continue to use the previously revised standards for varying premium term life insurance policies and universal life products with secondary guarantees issued in 2018.

• Amendment to Part 51 (Insurance Regulation 60) (Replacement of Life Insurance Policies and Annuity Contracts) of Title 11 NYCRR, effective April 21, 2015.

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

This amendment changed the time within which a disclosure statement must be provided to an insured from “no later than when an application is signed” to “no later than the time of policy delivery”, assisting in the immediate binding of insurance, allowing insurance applications to be processed more quickly, and reducing the need for multiple revisions to the disclosure statement.

The Department is considering another amendment to Insurance Regulation 60 to revise the exhibits to accommodate new products, features and sales processes.

The following rulemakings were adopted in 2013:

• Adoption of New Part 225 (Insurance Regulation 199) (Use of Senior-Specific Certifications and Professional Designations in the Sale of Life Insurance and Annuities) to Title 11 NYCRR, effective February 20, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 2103, 2104, 2110, 2403, and 4525.

This new rulemaking was promulgated to protect consumers from the misleading use of senior-specific certifications and designations in the sale of life insurance.

• Amendment to Part 125 (Insurance Regulations 17, 20, and 20-A) (Credit for Reinsurance) of Title 11 NYCRR, effective March 20, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 307(a), 308, 1301(a)(9), 1301(c), and 1308.

This amendment conformed New York’s regulatory language to that of the National Association of Insurance Commissioners (“NAIC”) Credit for Reinsurance Model Law and Model Regulation to modernize reinsurance collateral requirements.

• Amendment to Part 65-3 (Insurance Regulation 68-C) (Claims for Personal Injury Protection Benefits) of Title 11 NYCRR, effective April 1, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302, Insurance Law Sections 301, 2601, and 5221 and Article 51, and Vehicle and Traffic Law Section 2407.

Insurance Regulation 68-C was amended to combat no-fault fraud while also accelerating the resolution of no-fault claims by: (1) limiting the time to respond to verification requests and permitting denials for untimely responses; (2) preventing immaterial defects in notices from invalidating them; and (3) preventing billing contrary to mandated fee schedule or for services not rendered.

The Department is considering another amendment to Insurance Regulation 68-C and the New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form to further combat fraud with respect to arbitration of claims when an insurer denies a claim because the eligible injured person failed to appear for a medical examination or examination under oath at the insurer’s request.

• Amendment to Part 27 (Insurance Regulation 41) (Excess Line Placements Governing Standards) of Title 11 NYCRR, effective April 10, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 307, 308, 2101, 2104, 2105, 2110, 2116, 2117, 2118, 2121, 2130, 3103, 5907, 5909, 5911, and 9102.

11 NYCRR Section 27.3(g) sets forth a list of coverages, commonly referred to as the “export list”, for which the Superintendent has determined an excess line broker does not have to comply with certain requirements. This amendment added coverages to the export list.

Insurance Regulation 41 also was amended, effective October 8, 2014, to implement Chapter 61 of the Laws of 2011, conforming to the federal Nonadmitted and Reinsurance Reform Act of 2010.

• Amendment to Part 80-1 (Insurance Regulation 52) (Holding Companies) of Title 11 NYCRR, effective June 23, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301 and 306 and Article 15.

Insurance Regulation 52 implements Insurance Law Article 15, which governs the regulation of insurance holding company systems. The NAIC amended its model Insurance Holding Company System Regulatory Act (“Model Act”). Some of New York’s holding company requirements did not match the Model Act; thus, updating the regulation was necessary to ensure that New York maintained its accreditation status. The amendment aimed to modernize the Department’s processes, which would benefit both insurers and Department staff.

Insurance Regulation 52 also was amended, effective June 11, 2014, to conform to amendments made to Insurance Law Section 1505(d) by Chapter 238 of the Laws of 2013, and again amended, effective November 12, 2014, to help ensure that acquisitions do not financially harm domestic insurers and are not likely to be hazardous to policyholders.

• Adoption of New Part 224 (Insurance Regulation 187) (Suitability in Annuity Transactions) to Title 11 NYCRR, effective August 14, 2013.

Statutory Authority: Financial Services Law Sections 202, 301 and 302 and Insurance Law Sections 301, 308, 309, 2110, 2123, 2208, 3209, 4226, and 4525 and Article 24.

Insurance Regulation 187 was promulgated to require insurers to adopt standards and procedures for making recommendations to consumers with respect to annuity contracts to ensure that the insurance needs and financial objectives of consumers are appropriately addressed at the time of a transaction.

• Amendment to Part 57 (Insurance Regulation 113) (Smoker/Nonsmoker Mortality Tables and Underwriting Classifications) of Title 11 NYCRR, effective April 10, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302 and Insurance Law Sections 301, 2403, 3201, 4217, 4221, 4224, 4511, and 4517.

Prior to this amendment, some insurers re-classified certain insureds as smokers or tobacco users upon the attainment of a specified age without evidence of the insured’s actual tobacco or nicotine usage. The amendment ensured that an insured will not be classified as a smoker or tobacco user by an insurer unless the insured actually smokes or uses tobacco or nicotine products. The amendment also required insurers to provide notice of any procedures to seek reclassification of an insured’s risk classification.

• Amendment to Part 60-2 (Insurance Regulation 35-D) (Supplementary Uninsured/Underinsured Motorists Insurance) of Title 11 NYCRR, effective September 25, 2013.

Statutory Authority: Financial Services Law Sections 202 and 302; Insurance Law Sections 301 and 3420; and Laws of 2012, Chapter 496 and Laws of 2013, Chapter 11.

This amendment implemented Chapter 11 of the Laws of 2013 by requiring Supplementary Uninsured/Underinsured Motorists Insurance (“SUM”) coverage to be provided for employees of fire departments and ambulance services.

Insurance Regulation 35-D was amended, effective October 25, 2017, as part of a consolidated amendment to various insurance regulations to implement part AAA of chapter 59 of the Laws of 2017,

providing for the operation of transportation network companies (“TNCs”) in NY. Insurance Regulation 35-D was amended to include references to TNCs as they pertain to SUM coverage.

• Adoption of New Part 65-5 (Insurance Regulation 68-E) (Unauthorized Providers of Health Services) of Title 11 NYCRR, effective November 13, 2013.

Statutory Authority: Financial Services Law Section 202 and Articles 3 and 4 and Insurance Law Sections 301, 5109, and 5221 and Articles 4 and 51.

Insurance Law Section 5109(a) requires the Superintendent of Financial Services (“Superintendent”), in consultation with the Commissioner of Health and the Commissioner of Education, to promulgate standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment for health services under Insurance Law Article 51 upon findings of certain unlawful conduct reached after investigation, notice, and a hearing pursuant to Insurance Law Section 5109. This regulation established standards and procedures for the investigation and suspension or removal of a health service provider’s authorization.

The following rulemakings were adopted in 2008:

• 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 March 5, 2008.

Statutory Authority: Insurance Law Sections 201, 301, 1109, 3103, 3201, 3217, 3221, 4303, 4305, and 4308.

Insurance Regulation 62 was amended in light of the enactment of Chapter 748 of the Laws of 2006 (“Timothy’s Law”), which required insurance companies, Article 43 corporations, and Health Maintenance Organizations (“HMOs”) to provide coverage for inpatient and outpatient mental health services in certain policies and contracts. This amendment required insurers, Article 43 corporations, and HMOs to notify their policyholders, certificate holders, and members of the impact of Chapter 748 on their coverage.

• Amendment to Part 361 (Insurance Regulation 146) (Market Stabilization Mechanisms for Individual and Small Group Health Insurance and Medicare Supplement Insurance) of Title 11 NYCRR, effective June 25, 2008.

Statutory Authority: Insurance Law Sections 201, 301, 1109, and 3233; L. 1992, Ch. 501; and L. 1995, Ch. 504.

Insurance Regulation 146 was originally promulgated pursuant to the requirements of Chapter 501 of the Laws of 1992 and the statutory authority set forth in Insurance Law Section 3233, requiring the Superintendent to promulgate regulations designed to encourage insurers to remain in or enter the small group or individual health insurance markets, as well as to promote an insurance marketplace where premiums do not unduly fluctuate and where insurers and HMOs are reasonably protected against unexpected, significant shifts in the number of persons insured who are ill or who have a history of poor health. Insurance Law Section 3233 specifically directs the Superintendent to create a pooling process involving insurer contributions to, or receipts from, a fund designed to share the risk of or equalize high cost claims and claims of high cost persons.

Insurance Regulation 146 was amended to address comments and suggestions that the Department received regarding the specified medical condition pool established in a prior amendment to the regulation. That market stabilization pool was phased out, and a new pooling methodology was established, which has been fully operational since 2009.

• Amendment to Part 42 (Insurance Regulation 119) (Workers’ Compensation Insurance Rates) of Title 11 NYCRR.

Statutory Authority: Insurance Law Sections 201 and 301 and Workers’ Compensation Law Section 27.

Chapter 6 of the Laws of 2007 established comprehensive reforms to New York’s Workers’ Compensation Law by: (1) increasing maximum and minimum benefits for injured workers and indexing the maximum to New York's average weekly wage; (2) dramatically reducing costs in the workers’ compensation system, thus making hundreds of millions of dollars available annually to be translated into premium reductions; (3) establishing enhanced measures to combat workers’ compensation fraud; (4) replacing the Special Disability Fund (“SDF”) with enhanced protections for injured veterans; (5) preventing insurers from transferring costs to New York employers by closing the SDF to new claims; and (6) creating a financing mechanism to allow for settlement of the SDF’s existing liabilities. The legislation also amended Section 27(4) of the Workers’ Compensation Law to authorize the Superintendent to determine, by regulation, the “industry standard rate” for calculating simple interest to be used in calculating the present value of future benefits when the employer or insurer is required to deposit such amount into the Aggregate Trust Fund (“ATF”). The Workers’ Compensation Board (“WCB”) computes the present value thereof and requires payment of such amount into the ATF.

Insurance Regulation 119 was amended to establish the interest rate applicable when workers’ compensation insurers are required to deposit the present value of unpaid benefits for permanent partial disability and death benefit cases into the ATF. Without the Superintendent’s determination of the industry standard rate, the WCB would have been unable to compute the present value of amounts to be deposited into the ATF.

Insurance Regulation 119 also was amended, effective April 21, 2010, pursuant to Workers’ Compensation Law Section 32, which permits the chair of the WCB to procure one or more private entities to assume the liability for, and the management, administration, or settlement of, all or a portion of the claims in the SDF. No insurer, self-insured employer, or the State Insurance Fund (“SIF”) may assume liability for, or the management, administration or settlement of, any claims on which it holds reserves, beyond such reserves as are permitted by regulation of the Superintendent. The law also mandates the Superintendent to set a reserve standard specific to transactions authorized by the law.

This amendment to Insurance Regulation 119 was necessary to establish the required reserve standards, including establishing the amount of reserves an insurer, self-insured employer, or SIF may hold for claims for which an entity has waived its right to reimbursement for the SDF and for which it has assumed the liability, management, administration, or settlement.

Insurance Regulation 119 again was amended effective March 7, 2012, to standardize the basis upon which workers’ compensation assessments were calculated.

• Amendment to Part 136 (Insurance Regulation 85) (Standards for the Management of the State Employees’ Retirement System and the Common Retirement Fund) of Title 11 NYCRR, effective November 19, 2008.

Statutory authority: Insurance Law Sections 201, 301, 314, 7401(a), and 7402(n).

Insurance Regulation 85 was amended to establish standards governing actuarial assumptions, administrative efficiency, investment policies, and financial soundness for the management of the New York State and Local Employees’ Retirement System, and the New York State and Local Police and Fire Retirement System (collectively the “Retirement System”), as well as the New York State Common Retirement Fund (“Fund”), which was established pursuant to Retirement and Social Security Law Section 422 and holds the assets of the Retirement System.

The standards in the regulation are intended to ensure that the conduct of the business of the Retirement System and the Fund, and of the New York State Comptroller (as administrative head of the retirement system and as sole trustee of the fund), are consistent with fiduciary standards, including maintenance of a strong governance framework with a rigorous system of internal controls, a high level of operational transparency, and the highest ethical, professional, and conflict of interest standards.

• 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 November 19, 2008.

Statutory Authority: Insurance Law Sections 201, 301, 1109, 3217, 4308, 4321, 4322, and 4326, Correction Law Section 168-b, and Chapter 645 of the Laws of 2005.

Chapter 645 of the Laws of 2005 directed the Superintendent to promulgate rules to implement the denial of coverage for drugs, procedures, and supplies for the treatment of erectile dysfunction by publicly funded health insurance programs 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. This amendment to Insurance Regulation 62 prohibited Healthy New York and the standardized individual enrollee direct payment contracts from providing coverage for erectile dysfunction drugs, procedures, or supplies provided to registered sex offenders.

• Amendment to Part 410 (Insurance Regulation 166) (External Appeals of Adverse Determinations of Health Care Plans) of Title 11 NYCRR, effective December 3, 2008.

Statutory Authority: Insurance Law Sections 201, 301, and 1109 and Article 49, and Laws of 1998, Chapter 586.

Chapter 586 of the Laws of 1998 amended the Insurance Law and the Public Health Law to authorize external appeals of adverse determinations relating to health care services, and Section 45 of Chapter 586 provided that the Superintendent may promulgate regulations to implement the external appeal program. In turn, Insurance Law Article 49 and Public Health Law Article 49 were amended to provide an insured with the right to obtain an independent medical review by an external appeal agent when the insured’s health plan denies a health care service as not medically necessary, experimental, or investigational. This amendment does not affect an insured’s right to bring a legal action against a health plan that issues an adverse determination that has been reviewed by an external appeal agent if the insured continues to disagree with the factual basis or clinical rationale for that health plan’s adverse determination.

This amendment to Insurance Regulation 166 does not affect any remedy an insured may have with respect to the Department of Financial Services or the Department of Health regarding the Departments’ oversight of the external appeal program. Nor does the amendment preclude an insured from seeking damages for an opinion rendered in bad faith or involving gross negligence. The amendment to Insurance Regulation 166 only provides that upon requesting an external appeal, the insured acknowledges that the external appeal agent’s determination is binding on the health plan, as well as the insured, and agrees not to commence any legal proceeding against that external appeal agent or clinical peer reviewer with respect to any determination that was made, other than an action for damages pursuant to Insurance Law Article 49 or Public Health Law Article 49.

• Adoption of New Part 223 (Insurance Regulation 186) (Insurance Sales Practices on Military Installations or Involving Military Personnel) of Title 11 NYCRR, effective December 3, 2008.

Statutory Authority: Insurance Law Sections 201, 301, 308, 309, 2103, 2104, 2107, 2109, 2110, 2123, 3201, and 4226 and Articles 24 and 45.

The United States Congress (“Congress”) determined that sales abuses were occurring on military installations or involving military personnel. As a result, Congress passed, and President Bush signed on September 29, 2006, the Military Personnel Financial Services Protection Act (the “Federal Act”), Pub. L. No. 109-290 (2006). In order to effectuate the Federal Act, the Department promulgated Insurance Regulation 186 to declare certain sales practices occurring on military installations or involving military personnel as false, misleading, deceptive, or unfair.

Also, the Military Sales Practices Model Regulation (the “Model Regulation”) was developed by the NAIC to meet the congressional mandates. The Model Regulation makes actionable certain acts and practices that have not been declared to be false, misleading, deceptive, or unfair under state trade practices statutes. Many of the practices identified incorporated Department of Defense (“DoD”) solicitation rules. For example, the Model Regulation, by tracking DoD regulations, makes it a deceptive trade practice to solicit in barracks, day rooms, and other restricted areas.

The Model Regulation also addresses congressional concerns regarding suitability and product standards. In that regard, the Model Regulation makes it a deceptive or unfair trade practice to recommend the purchase of any life insurance product that includes a “side fund” to junior enlisted service members in pay grades E- 4 and below, unless the insurer has reasonable grounds for believing that the life insurance portion of the product, standing alone, is suitable.

In recognition of Congress’ concerns and in furtherance of its goals, the Department adopted the Model Regulation, which became 11 NYCRR 223 (Insurance Regulation 186), with minimal modifications to the Model Regulation necessary to comport with existing New York law. For example, the Department revised the Model Regulation’s exclusion provision to remove the reference to prearranged funeral contracts, because under Insurance Law Section 3208(d) insurers are prohibited from marketing prepaid funeral agreements in New York. The Department also revised the Model Regulation to remove the prohibition against the use of war exclusions in life insurance policies, because Insurance Law Sections 3203(c) and 4510(b)(1) specifically authorize such exclusions.

The following rulemakings were adopted in 2003:

• Amendment of Subpart 65-3 (Insurance Regulation 68-C) (Motor Vehicle Insurance Reparations Act/Claims for PIP Benefits) and Subpart 65-4 (Insurance Regulation 68-D) (Motor Vehicle Insurance Reparations Act/Arbitration) of Title 11 NYCRR, effective February 5, 2003.

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

Insurance Regulation 68 sets forth provisions implementing Article 51 of the Insurance Law, popularly referred to as the “no-fault law.” The amendment to Insurance Regulation 68-C updated provisions relating to Personal Injury Protection (“PIP”) benefits to conform to changes in the requirements regarding the forms to be used by insureds, claimants, and providers. The amendment to Insurance Regulation 68-D revised the rules and requirements applicable to the arbitration of no-fault claims.

In 2007, the Department adopted another amendment to Subpart 65-3, effective March 14, 2007, which revised the standards regarding the responsibility of insurers to pay PIP benefits. In a consolidated action, the Department also adopted an amendment to Subpart 65-4 of the regulation (effective March 14, 2007) to provide for special expedited arbitration when there is a dispute between multiple eligible insurers over which carrier has primary responsibility for the payment of first party benefits.

• Amendment to Part 33 (Insurance Regulation 120) (Managing General Agents) of Title 11 NYCRR, effective February 5, 2003.

Statutory Authority: Insurance Law Sections 201, 301, 308, 2101, 2102, and 2103.

This amendment required that certain contract provisions be included in a written contract between an insurer and a managing general agent (“MGA”). The amendment implemented minimum provisions of the NAIC’s model law for MGAs, which had been adopted by several other states. The provisions help to ensure that an insurer maintains proper supervision over an MGA, and thus safeguards the interests of both insureds and the general public in protecting against abuses to insureds that may occur when another entity manages the affairs of the insurer.

• Amendment to Part 83 (Insurance Regulation 172) (Financial Statement Filings and Accounting Practices and Procedures) of Title 11 NYCRR, effective March 26, 2003.

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 Laws of 2002, Chapter 599.

Insurance Regulation 172 was promulgated to enhance the consistency of the accounting treatment of assets, liabilities, reserves, income, and expenses by entities subject to the Part, by clearly setting forth the accounting practices and procedures to be followed in completing annual and quarterly financial statements required by law. Pursuant to the Insurance Law, the Superintendent is authorized to implement the Accounting Practices and Procedures Manual (“Accounting Manual”) published by the NAIC, subject to any provisions in New York law or regulations promulgated thereunder that conflict with particular points in those rules. The Accounting Manual includes a body of accounting guidelines referred to as Statements of Statutory Accounting Principles (“SSAPs”).

Insurance Regulation 172 was amended, effective January 10, 2007, to incorporate the revised edition of NAIC’s Estimated Useful Lives of Depreciable Hospital Assets.

Insurance Regulation 172 also was amended, effective March 16, 2011, to conform to NAIC guidelines and statutory amendments, as well as to clarify existing provisions.

• Amendment to Part 125 (Insurance Regulation 20) (Credit for Reinsurance from Unauthorized Insurers) of Title 11 NYCRR, effective April 2, 2003, and Amendment to Part 125 (Insurance Regulation 20) (Credit for Reinsurance from Unauthorized Insurers) of Title 11 NYCRR, effective April 9, 2003.

Statutory Authority: Insurance Law Sections 201, 301, 307-a, 308, and 1301(a)(14) and (c).

Insurance Law Sections 1301(a)(14) and 1301(c) authorize the Superintendent to prescribe, by regulation, the conditions under which a ceding insurer may be allowed credit, as an asset or as a deduction from loss and unearned premium reserves, for reinsurance recoverable from an assuming insurer not authorized in this state.

The amendment to Insurance Regulation 20, which took effect on April 2, 2003, implemented minimum provisions of the NAIC’s model law relating to credit for reinsurance. By modifying the requirements with respect to controlling when ceding insurers may take credit for certain reinsurance contracts, these provisions help to maintain the ceding insurer’s financial stability, and thereby safeguard the interests of both insureds and the general public.

The amendment to Insurance Regulation 20, which took effect on April 9, 2003, provided alien reinsurers the means to secure their United States obligations through the establishment of a multi-beneficiary trust. Previously, the regulation required that funds held in such a trust be in the form of cash or readily marketable securities. Since the requirement was originally established, the Department recognized the use of letters of credit as qualifying securities in a number of similar trust vehicles. In addition, the NAIC amended its model regulation relating to credit for reinsurance to specifically permit certain alien assuming reinsurers to include, subject to specified conditions, letters of credit in trust funds held for the protection of United States insurers and beneficiaries under reinsurance polices issued by such alien insurers. Modifying the requirements regarding alien reinsurer funding requirements to permit the use of letters of credit allowed alien reinsurers using multi-beneficiary trusts to reduce their cost of capital in a manner similar to other methods used by unauthorized reinsurers that use single-beneficiary trusts.

To assure that the marketable securities in the trust funds provided security adequate for the protection of the United States insurers and beneficiaries under reinsurance polices issued by such alien insurers, the Department established standards for the quality of the marketable securities held in the trust. Those qualitative standards were consistent with those required for the minimum capital and surplus investments and the reserve investments for licensed property/casualty insurers in New York State. Previously, as a condition of accreditation, the alien insurers were required to stipulate to hold marketable securities in the trust that met these standards.

Insurance Regulation 20 requires a strongly capitalized non-New York authorized or accredited reinsurer to tie up capital by posting collateral while not imposing a similar burden on a New York authorized or accredited reinsurer. This rule levels the playing field for all reinsurers, mitigates the risk that may exist under the present regulatory structure, and continues the Department’s efforts to keep New York competitive while bringing the United States into the 21st century of financial services regulation.

Insurance Regulations 17, 20, and 20-A were amended effective January 1, 2011, to repeal redundant and dated insolvency clause requirements and to establish rules governing when an authorized ceding insurer may take credit on its balance sheet, as an asset or deduction from reserves, for reinsurance recoverable from any unauthorized assuming insurer; to establish certain requirements for ceding insurers and reinsurers; and to place the onus on ceding insurers to prudently manage their risk.

In 2013, the Department adopted another amendment to Insurance Regulations 17, 20, and 20-A to establish rules governing when an authorized ceding insurer may take credit on its balance sheet for a reinsurance recoverable (see rulemakings adopted in 2013, above).

• Amendment to Part 39 (Insurance Regulation 144) (Partnership for Long-Term Care Program) of Title 11 NYCRR, effective April 16, 2003.

Statutory Authority: Insurance Law Sections 201, 301, 3201, 3217, 3221, 3229, 4235, and 4237 and Article 43; and Social Services Law Section 367-f.

By Chapter 454 of the Laws of 1989, as amended by Chapter 659 of the Laws of 1997, the Legislature enacted the Partnership for Long-Term Care Program (“the LTC Program”) to provide that citizens of New York State who purchase a long-term care insurance policy/certificate under the LTC Program, and who exhaust benefits under such policy/certificate, will become eligible for long-term care protection through the New York State Medicaid program without spending down all or some of their assets.

Insurance Regulation 144 established the standards and requirements relating to the LTC Program, as well as set the daily minimum benefit amounts that the LTC Program prescribes. All policies sold pursuant to the Program include a provision guaranteeing lifetime inflation protection of at least five percent compounded on an annual calendar or policy year basis at issue ages 79 and younger. The previously existing regulation set forth the minimum daily benefit standards for the 10-year period beginning January 1, 1993 and ending December 31, 2002. Those minimum benefit standards were computed with a minimum annual increase of five percent.

This amendment to Insurance Regulation 144 set forth the daily minimum benefit amounts, computed using the five percent inflation protection, for the consecutive 10-year period beginning January 1, 2003 through December 31, 2012. The increase in daily minimum benefit amounts favors insureds under the LTC Program who require long-term care services by providing a higher daily reimbursement rate to offset their nursing home or home care costs. The increased daily minimum amounts should encourage individuals to purchase the LTC Program coverage to offset potential long-term care costs.

Insurance Regulation 144 also was amended, effective January 26, 2005, to make various changes to and expand the LTC Program, as well as extend minimum daily benefit amounts through December 31, 2013.

The Department adopted another amendment to Insurance Regulation 144, effective June 1, 2012 to amend minimum standards for inflation protection, add a new plan, and add disclosure requirements relating to reciprocity.

Insurance Regulation 144 again was amended, effective January 1, 2014, to amend the minimum daily benefit amounts for 2014 through 2023 for the LTC Program.

• Repeal and addition of New Part 98 (Insurance Regulation 147) (Life Insurance Reserve Requirements) of Title 11 NYCRR, effective April 16, 2003.

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

Insurance Law Section 1304 gives the Superintendent the authority to require any additional reserves as necessary on account of policies, certificates, and contracts of insurers authorized to transact life insurance, annuities, and accident and health insurance. Insurance Law Section 1308 describes when reinsurance is permitted and the effect that reinsurance will have on reserves.

One of the Department’s primary areas of focus is ensuring the solvency of insurers doing business in New York. To do so, the Insurance Law requires authorized insurers to hold reserve funds proportionate to their obligations to policyholders. The Insurance Law also specifies mortality and interest standards but does not specify an explicit method to be used to value life insurance policies that do not have level premiums and/or level benefits. The absence of a specific standard to value such products could result in inadequate reserves for some insurers that could jeopardize the security of policyholders’ funds.

Insurance Regulation 147 was promulgated to fill the gaps in the Insurance Law. Specifically, the regulation required that reserves for term insurance and secondary guarantees on universal life, universal life-type products, and variable life products meet the same standards as reserves for level premium insurance. Insurance Regulation 147 also permitted the use of new select mortality factors and allowed the appointed actuary for a life insurer to apply certain percentages, called X factors, to modify the mortality bases for deficiency reserves, which gave domestic insurance companies and authorized foreign insurance companies the ability to compete in those markets with companies not so authorized.

Insurance Regulation 147 also was amended, effective January 10, 2007, to prescribe rules and guidelines for valuing individual life insurance policies and certain group life insurance certificates, with primary emphasis on valuation of non-level premium and/or non-level benefit life insurance policies, indeterminate premium life insurance policies, universal life insurance policies, variable life insurance policies, and credit life insurance policies in accordance with statutory reserve formulae.

Insurance Regulation 147 again was amended, effective March 16, 2011, to remove restrictions on the mortality adjustment factors (known as X factors) in the deficiency reserves calculation.

Another amendment to Insurance Regulation 147 was promulgated, effective December 10, 2014, to modernize the current regulatory scheme with respect to term life insurance reserves, and another amendment was promulgated, effective April 1, 2015, as described above in the section related to rulemakings adopted in 2015.

• Amendment to Part 60-1 (Insurance Regulation 35-A) (Minimum Provisions for Auto Liability Insurance/Supplemental Spousal Liability Insurance) of Title 11 NYCRR, effective July 23, 2003.

Statutory Authority: Insurance Law Sections 201, 301, and 3420(a) and (g); Vehicle and Traffic Law Section 311; and Laws of 2002, Chapter 584.

Insurance Law Section 3420(g), as amended by Chapter 584 of the Laws of 2002, requires insurers to provide notification on an annual basis to insureds about the availability of supplemental spousal liability insurance coverage, an explanation of such coverage, and the premium for such coverage. The law also requires the Superintendent to promulgate a regulation to provide guidelines to insurers to comply with those requirements.

To comport with the Insurance Law, the Department amended Insurance Regulation 35-A to provide the minimum requirements for notification of the availability of supplemental spousal liability insurance coverage and sample notification language that insurers may use.

PART 2. BANKING REGULATIONS

Notice is hereby given of the following rules relating to banking that the Department will review this year to determine whether they should be continued or modified. These rules were adopted in 2015, 2013, 2008, and 2003. These rules as published in the Register contain a regulatory flexibility analysis, a rural area flexibility analysis, and/or a job impact statement. If no such analysis was filed, a statement setting forth why one or all of those analyses was unnecessary was published in the Register. Public comment on the continuation or modification of the above rules is invited. Comments must be received within 60 days of the date of publication of this notice. Comments should be submitted to:

Christine M. Tomczak

Assistant Counsel

New York State Department of Financial Services

One State Street

New York, NY 10004

Telephone: (212) 709-1642

Email: [email protected]

The following rulemakings were adopted in 2015:

There were no adoptions of new rules or amendments of existing rules in 2015.

The following rulemakings were adopted in 2013:

• Various technical amendments to multiple parts of 3 NYCRR

a. Description of rule: Various technical amendments to multiple parts of 3 NYCRR.

b. Legal basis for the rule: State Administrative Procedure Act Section 202(1) - Consensus Rulemaking.

c. Need for rule: The amendments revised references that were outdated as a result of the consolidation of the New York State Insurance and Banking Departments into the new Department of Financial Services, and made other technical changes (e.g., grammatical corrections and repeal of obsolete forms).

The following rulemakings were adopted in 2008:

• Adoption of New Part 115 of the General Regulations of the Banking Board (Anti-Money Laundering Programs for Applications for Charters, Acquisitions and Mergers and Changes of Control)

a. Description of rule: The rule requires banking organizations and certain licensees to demonstrate compliance with applicable anti-money laundering and foreign assets control programs.

b. Legal basis for the rule: Banking Law Sections 10, 14[1], 24, 26, 29, 39, 44, 142, 143-a, 143-b, 201, 324, 413, 450, 461, 519, 601, 601-a, 601-b.

c. Need for the rule: The rule formalizes the existing practice of the Department to require applicants for charters, licenses, acquisitions, and changes of control to guard against money laundering through their institutions.

• Adoption of New Part 116 of the General Regulations of the Banking Board (Maintenance of Anti-Money Laundering Compliance Programs by Banking Organizations and Foreign Banking Corporations Licensed to Maintain a Branch or Agency)

a. Description of rule: The rule requires foreign banking organizations and foreign banking corporations licensed to maintain a branch or agency to establish and maintain an anti-money laundering compliance program.

b. Legal basis for the rule: Banking Law Sections 10, 14[1], 37[3], 39, 44.

c. Need for the rule: The rule formalizes the existing practice of the Department to require applicants for charters, licenses, acquisitions, and changes of control to guard against money laundering through their institutions.

• Amendments to New Part 306 of the Superintendent’s Regulations (Corporate Governance Vacancies on the Board of Directors)

a. Description of rule: The rule outlines the maximum number of vacancies in the office of the director that may be left unfilled until the next annual election by the stockholders.

b. Legal basis for the rule: Banking Law Sections 12 and 7005.

c. Need for the rule: The rule is necessary in order to establish the circumstances under which vacancies on the board of directors of a bank, trust company, stock-form savings bank, and stock-form savings and loan association may be left unfilled until the next annual election by the stockholders.

• Amendments to New Part 307 of the Superintendent’s Regulations (Corporate Governance Actions permitted to be taken by Unanimous Written Consent of Board of Directors)

a. Description of rule: The rule outlines the actions that may be taken by unanimous written consent of a board of directors.

b. Legal basis for the rule: Banking Law Sections 12, 7008(3).

c. Need for the rule: This rule provides a more flexible environment for certain institutions to conduct their business.

• Adoption of New Part 416 of the Superintendent’s Regulations (Anti-Money Laundering Programs for Applications for Licenses, Branches and Acquisitions by Licensed Check Cashers and Licensed Money Transmitters)

a. Description of rule: The rule requires licensed check cashers and licensed money transmitters to demonstrate compliance with applicable anti-money laundering and foreign assets control programs.

b. Legal basis for the rule: Banking Law Sections 10, 39, 44, 367, 369, 370, 371, 370-a, 641, 646, 649, 652(a).

c. Need for the rule: The rule formalizes the existing practice of the Department to require applicants for charters, licenses, and acquisitions to guard against money laundering through their institutions.

• Adoption of New Part 417 of the Superintendent’s Regulations (Maintenance of Anti-Money Laundering Compliance Programs by Licensed Check Cashers and Licensed Money Transmitters)

a. Description of rule: The rule requires licensed check cashers and licensed money transmitters to establish and maintain an anti-money laundering compliance program.

b. Legal basis for the rule: Banking Law Sections: 10, 37[3], 39, 44, 371, 646, 649.

d. Need for the rule: The rule formalizes the existing practice of the Department to require applicants for charters, licenses, and acquisitions to guard against money laundering through their institutions.

• Adoption of New Part 420 of the Superintendent’s Regulations (Mortgage Loan Originators: Licensing; Education Requirements)

a. Description of rule: The rule sets forth the application, exemption and approval procedures for initial and annual mortgage loan originator licensing.

b. Legal basis for the rule: Banking Law Sections 39, 44.

c. Need for the rule: The rule assists the Department in its efforts to oversee the mortgage industry and protect consumers.

• Adoption of New Supervisory Procedure MB 107 (Application for Initial License as a Mortgage Loan Originator; Request for Renewal of License)

a. Description of rule: The rule sets forth the details of the application procedure for mortgage loan originators.

b. Legal basis for the rule: Banking Law Section 599-c

c. Need for the rule: The rule explains the application procedure for initial licenses and annual renewals.

The following rulemakings were adopted in 2003:

• Adoption of technical amendments to Parts 4, 8, 10-12, 24, 26, 28, 33, 50, 68, 79 and 86 of the General Regulations of the Banking Board

a. Description of rule: These amendments technically amend Parts 4, 8, 10-12, 24, 26, 28, 33, 50, 68, 79 and 86.

b. Legal basis for the rule: Banking Law Section 12.

c. Need for rule: The amendments remove references to laws that have been repealed or recodified, correct typos, and provide for the elimination of regulatory provisions that had expired.

• Adoption of New Part 306 to the Superintendent’s Regulations (Maximum Number of Board of Director Vacancies)

a. Description of rule: This rule describes the circumstances under which vacancies on the board of directors of a bank, trust company, stock-form savings bank, and stock-form savings and loan association may be left unfilled until the next annual election by the stockholders.

b. Legal basis for the rule: Banking Law Sections 12 and 7005.

c. Need for rule: This rule is needed to clarify the circumstances under which vacancies on the board of directors may be left unfilled until the next annual election by the stockholders.

• Adoption of New Part 307 to the Superintendent’s Regulations (Board of Director Actions by Written Consent)

a. Description of rule: This rule describes the circumstances under which any action authorized by the organization certificate or the by-laws to be taken at a meeting of the board of directors of a bank, trust company, stock-form savings bank, and stock-form savings and loan association may be taken without a meeting.

b. Legal basis for the rule: Banking Law Sections 12 and 7008(3).

c. Need for rule: This rule is needed to clarify under what circumstances actions by the board of directors may be by unanimous written consent rather than at a meeting.

• Adoption of Technical Amendments to Parts 334, 405, 406 and 410; Legal Interpretations LI 4, Sections 4.1 and 4.10; Supervisory Procedures G 111, CB 101, CB 109, SB 110 and MB 101; and Appendix 8 of the Superintendent’s Regulations

a. Description of rule: This rule describes the additional requirements in order to make high cost home loans.

b. Legal basis for the rule: Banking Law Section 12.

c. Need for rule: The amendments remove references to laws that have been repealed or recodified, correct typos, and provide for the elimination of regulatory provisions that have expired.

• Adoption of New Supervisory Policy G1 (All Addresses of Banking Department Offices)

a. Description of rule: This rule sets forth the addresses of the Banking Department.

b. Legal basis for the rule: Banking Law Section 12.

c. Need for rule: This rule states how best the public may contact the Banking Department regarding applications, inquiries, and complaints. This rule was subsequently further amended to reflect the merger of the Banking Department and the Insurance Department into the Department of Financial Services in 2011.

• Amendments to Supervisory Policy G1 (Schedule of Fees and Headquarters Reference)

a. Description of rule: This rule sets forth the schedule of fees for the processing of applications.

b. Legal basis for the rule: Banking Law Section 12.

c. Need for rule: This rule is needed to state the fees for various transactions brought before the Department of Financial Services.

PART 3. FINANCIAL SERVICES REGULATIONS

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

• Adoption of new Part 400 (Independent Dispute Resolution for Emergency Services and Surprise Bills) of Title 23 NYCRR, effective June 3, 2015.

Statutory Authority: Financial Services Law Sections 202, 301, 302 and Article 6; Insurance Law Section 301; and Laws of 2014, Chapter 60, Part H.

Chapter 60 of the Laws of 2014 added a new Financial Services Law Article 6 to address the problem of emergency and surprise bills. Article 6 provides that consumers must be held harmless for out-of-network emergency bills and surprise bills, and directs the provider and the health plan to work out payment for those bills. Article 6 establishes an independent dispute resolution (“IDR”) process by which a dispute involving a bill for emergency services or a surprise bill may be resolved, and gives the Superintendent authority to adopt rules necessary to implement the IDR process. This regulation established rules and standards for the IDR process.

Contact: Camielle Barclay, Associate Attorney, New York State Department of Financial Services, One State Street, New York, NY 10004, (212) 480-5299, [email protected].

• Adoption of new Part 200 (Virtual Currencies) of Title 23 NYCRR, effective June 24, 2015.

Statutory Authority: Financial Services Law Sections 102, 104, 201, 206, 301, 302, 309, and 408.

This rulemaking was promulgated for the purpose of protecting members of the public by imposing regulatory standards on virtual currency transactions and services that involve New York or New York residents; ensuring the solvency, safety, soundness, and prudent conduct of persons or entities engaged in virtual currency business activity; and fostering the growth of the financial industry in New York by setting forth clear guidelines to inspire confidence and allow for the establishment of legal virtual currency business activity.

Prior to proposing this regulation, the Department had conducted extensive research, including a two-day hearing held in January 2014, which made clear the need for a new and comprehensive set of regulations to address the novel aspects and risks of virtual currency. Existing laws and regulations at the time did not cover proposed or current virtual currency business activity. Adoption of the regulation was therefore necessary to ensure that: (a) persons or entities engaged in virtual currency business activity operate in a safe and sound manner; (b) New York consumers and other residents are protected from the risks posed by virtual currency business activity; and (c) persons or entities engaged in new virtual currency business activity have a framework within which they can grow.

Contact: Christine M. Tomczak, Associate Counsel, New York State Department of Financial Services, One State Street, New York, NY 10004, (212) 709-1642, [email protected].

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 4, 2017, 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 2014, 2012, 2007, 2002 and 1997. Those regulations are set forth below:

Rules adopted in 2014

A. TDA-14-14-00014 State Supplement Program (SSP)*

Repeal of 18 NYCRR Part 398; addition of a new Part 398 and § 358-5.12 to set forth the process for OTDA’s administration of the SSP and allow for telephone hearings to challenge SSP determinations.

Analysis of the need for the rule: These regulations provide the framework for OTDA’s administration of the SSP. The regulations provide the initial and continuing eligibility requirements for additional State payments. They set forth the reporting responsibilities of applicants and recipients of the SSP benefits and the ramifications if they fail to comply with the requirements. The regulations address the issuance of notices of action and provide for administrative fair hearings. They also address when OTDA will replace additional State payments for recipients and when underpayments of such benefits will be corrected. Conversely, the regulations also provide when OTDA will recover overpayments and equivalent benefits from recipients. The regulations address OTDA’s administrative responsibilities including confidentiality and document retention requirements. Lastly, the regulations allow telephone hearings for applicants and recipients of additional State payments.

Legal basis for the rule: SSL §§ 20(3)(d), 22(3)(f), (4), (8), 207, 211 and 212

B. TDA-36-14-00014 Noncompliance with SNAP Work Requirements; SNAP Conciliation Process*

Amended 18 NYCRR §§ 385.11 and 385.12 to render State regulations governing noncompliance and the conciliation process consistent with federal requirements.

Analysis of the need for the rule: These regulations were developed to make OTDA regulations pertaining to noncompliance and notice requirements consistent with federal regulations and policy. The regulations, in part, provide that SNAP applicants who fail to comply with work requirements without good cause are no longer subject to a durational sanction, and SNAP recipients will have the opportunity to avoid the imposition of a SNAP sanction by timely demonstrating compliance with the work requirements of the employment and training program as assigned by the District.

Legal basis for the rule: SSL § 95(1)(b); 7 USC §§ 2011, 2013 and 2029

C. TDA-38-14-00023 Standard Utility Allowances for SNAP*

Amended 18 NYCRR § 387.12 to update the standard utility allowances for SNAP to the federally approved levels as of October 1, 2014.

Analysis of the need for the rule: It was of great importance that the federally approved standard utility allowances for the SNAP were applied to SNAP benefit calculations effective October 1, 2014. If the standard utility allowances were not updated on October 1, 2014, it could have resulted in thousands of SNAP dependent households receiving underpayments each month. Thus, the rule was necessary for the preservation of the public health and general welfare of SNAP dependent households.

Legal basis for the rule: SSL §§ 20(3)(d) and 95; 7 USC § 2014(e)(6)(C); 7 CFR § 273.9(d)(6)(iii).

Rules adopted in 2012

D. 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).

E. 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).

F. 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.

G. 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

H. 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.

I. 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).

J. 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

K. TDA-37-01-00006 Applications for Safety Net Assistance*

Amended 18 NYCRR § 350.4 (a) and (b) to describe the circumstances when a person who is no longer eligible for family assistance because of the durational limits must apply for safety net assistance in order to be eligible for such assistance.

Analysis of the need for the rule: This rule was developed to describe the circumstances when a person who is no longer eligible for family assistance because of the durational limits must apply for safety net assistance in order to be eligible for such assistance.

Legal basis for the rule: SSL sections 20(3)(d), 34(3)(f), 131(1) and 355(3).

L. 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.

M. 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.

N. 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).

O. 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.

P. 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

Q. SCS-07-96-00005 Shelters for Adults

Amended 18 NYCRR Part 491 to ease the burden on social services districts and other operators of shelters for adults in relation to the operation of such shelters.

Analysis of the need for the rule: The regulatory amendments, among other things, expanded the options for granting waivers of non-statutory requirements of 18 NYCRR Parts 485, 486 and 491 relating to shelters for adults; increased the time period during which a shelter for adults could be operated above the certified capacity; and repealed environmental standards that were duplicative of local codes or other State requirements.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 460 and 461.

R. 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).

S. SCS-25-96-00016 Temporary Housing Assistance for Homeless Families

Repealed 18 NYCRR Part 1000 and amended Part 900 to in part define a family to include a pregnant woman for eligibility in a shelter for families, and to modify existing requirements for all shelters for families.

Analysis of the need for the rule: The regulatory amendment provided administrative flexibility to, and reduced the administrative burden on, social services districts and homeless shelter providers by consolidating and modifying existing requirements for family shelters and shelters for pregnant women.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f) and 153, Chapter 562 of the Laws of 1953, and Chapter 53 of the Laws of 1992.

T. 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).

U. 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.

V. 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.

At the conclusion of the public comment period on March 7, 2017, OTDA had not received comments regarding its Rule Review published in the New York State Register on January 4, 2017.

OTDA is considering amendments that may impact the regulatory changes that were adopted in 2014, 2012, 2007, 2002, and 1997. OTDA is considering the following regulatory amendments: amend regulations by adding a reference to a written notice to Medicaid appellants, who failed to appear at a scheduled fair hearing, advising how to request the rescheduling of such fair hearing and which states the right to aid-continuing, if previously authorized, extends to the deadline to respond to the notice; amend the title and the regulations of Part 385 to make updates, including updating reference from “food stamp” to “SNAP”; amend employment program provisions for notices of conciliation and notices of discontinuance or reduction as a result of an employment sanction to incorporate plain language requirements; establish additional guidelines regarding work activity definitions and work documentation and verification procedures to make them consistent with standards required by federal regulations; revise SNAP employment and training regulations to conform to federal regulations; revise regulations to implement changes to conciliation and employment sanctions procedures pursuant to SSL §§ 341-a and 342-a; amend regulations to implement changes to the work activities that may be made available to individuals to include financial literacy consistent with Chapter 275 of the Laws of 2017; 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; generally update SNAP regulations to conform to changes in federal regulations and law; amend regulations to expand scope to include shelters for adults that currently are not certified by OTDA and to update and clarify applicable standards; and amend regulations to expand scope to include shelters for families that currently are not certified by OTDA and to update and clarify applicable standards. 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 2014, 2012, 2007, 2002, and 1997, as amended or otherwise modified.

OTDA has determined that in the ensuing calendar year, it should review certain regulations from Title 18 NYCRR adopted in 2015, 2013, 2008, 2003 and 1998. 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 2, 2018.

Rules adopted in 2015

1. TDA-49-14-00003 Public Assistance (PA) Schedules*

Amended 18 NYCRR §§ 352.1 and 352.2 to update certain PA schedules to comply with the schedules in SSL § 131-a.

Analysis of the need for the rule: The amendments were required in order to conform certain PA schedules set forth in 18 NYCRR §§ 352.1(a) and 352.2(d) to the non-discretionary provisions set forth in amended Social Services Law § 131-a.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-a(2)(a-1)-(a-4),and 131-a(3)(a-1)-(a-4).

2. TDA-23-15-00004 Emergency Shelter Allowances (ESA)*

Amended 18 NYCRR § 352.3(k) to update provisions for ESA for persons with AIDS or HIV-related illness to reflect statutory authority.

Analysis of the need for the rule: The amendments were needed to conform to State laws requiring social services districts to disregard the Supplemental Security Income and needs of any household member who is not the sole household member medically diagnosed with AIDS or HIV-related illness and to help ensure that districts, including New York City, are able to continue to provide the same level of housing for these individuals in need as they have in the past.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1); L. 2008, ch. 53; L. 2009, ch. 53; L. 2010, chs. 58, 110; L. 2011, ch. 53; L. 2012, ch. 53; L. 2013, ch. 53; L. 2014, ch. 53; L. 2015, ch. 53.

3. TDA-38-15-00005 Standard Utility Allowances for SNAP*

Amended 18 NYCRR § 387.12 to set forth the federally approved standard utility allowances as of October 1, 2015.

Analysis of the need for the rule: It was of great importance that the federally approved standard utility allowances for SNAP were applied to SNAP benefit calculations effective October 1, 2015. If the standard utility allowances were not updated on October 1, 2015, it could have resulted in thousands of SNAP dependent households receiving overpayments each month. Households receiving such overpayments could be subject to an extended period of SNAP recoupments at the rate of 10% of their monthly SNAP benefits to recover the resulting overpayments of SNAP benefits. Thus, the rule was necessary for the preservation of the public health and general welfare of SNAP dependent households.

Legal basis for the rule: SSL §§ 20(3)(d) and 95; 7 USC § 2014(e)(6)(C); 7 CFR § 273.9(d)(6)(iii).

4. TDA-15-15-00003 Video Hearings*

Added 18 NYCRR § 358-5.13 to specifically allow OTDA’s Office of Administrative Hearings (OAH) to conduct fair hearings by means of video equipment.

Analysis of the need for the rule: Video hearings allow OAH to hold more hearings by assigning individual hearing officers to hold fair hearings for multiple locations throughout the State on the same day.

Legal basis for the rule: SSL §§ 20(3)(d) and 22(8).

Rules adopted in 2013

5. TDA-36-12-00001 Fair Hearings Process for HEAP*

Amended 18 NYCRR §§ 358-3.5(b)(4) and 393.5(e) to eliminate the requirement that a fair hearing request concerning HEAP must be made within 105 days of the social services district’s termination of the receipt of HEAP applications for the program year.

Analysis of the need for the rule: These amendments were needed due to the court order and stipulation of settlement in Pedersen v. Hansell which ordered OTDA to commence rule making proceedings to eliminate the 105 day statute of limitations imposed on individuals requesting a HEAP fair hearing and clarify that federal HEAP funds are available for a finite period of time.

Legal basis: SSL §§ 20(3)(d), 22(8) and 97; 42 USC § 8621, et seq.

6. TDA-49-12-00014 Child Support*

Amended 18 NYCRR §§ 346.2 and 347.17 to address child support services applications and notification requirements and the imposition of an annual service fee; and to set forth requirements concerning the provision of legal services and the recovery of associated costs.

Analysis of the need for the rule: The amendment of § 346.2 was made to help ensure the state’s compliance with federal child support application and notification requirements pursuant to 45 CFR § 302.33, which requires that states must make available all services to any individual who files an application with the child support agency, and must provide information describing available services, the individual’s rights and responsibilities, the state’s fees, cost recovery, and distribution policies that must accompany all applications for services, and be provided to all applicants/recipients of Medicaid and assistance programs. In addition, the amendment to § 347.17 was made as a result of federal changes requiring the imposition of an annual service fee of $25 for families who have never received assistance.

Legal basis: 42 USC § 654(6)(B)(ii); 45 CFR §§ 302.33 and 303.2; SSL §§ 20(3)(d), 111-a, 111-c(4)(a), 111-g(3)(a) and (b); and Family Court Act § 453(a).

7. TDA-22-12-00021 Limits on Administrative Expenses and Executive Compensation

Added 18 NYCRR Part 315 to establish limits on the use of State funds or State-authorized payments for administrative costs and executive compensation by covered providers.

Analysis of the need for the rule: The regulations, which were required by Executive Order No. 38, were needed to prevent certain providers from using State funds or State-authorized payments to support excessive compensation or unnecessary administrative costs.

Legal basis: SSL § 20(3)(d); and Not-For-Profit Corporation Law § 508.

8. TDA-38-13-00008 Standard Utility Allowances for the Supplemental Nutrition Assistance Program (SNAP)*

Amended 18 NYCRR § 387.12 to update the standard utility allowances for SNAP to the federally approved levels as of October 1, 2013.

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, 2013. If the standard utility allowances were not updated on October 1, 2013, it could have resulted in thousands of SNAP dependent households receiving underpayments each month. Thus, the rule was necessary for the preservation of the public health and general welfare of SNAP dependent households.

Legal basis: SSL §§ 20(3)(d) and 95; 7 USC § 2014(e)(6)(C); and 7 CFR § 273.9(d)(6)(iii).

Rules adopted in 2008

9. TDA-02-08-00002 Recertification of Public Assistance Recipients*

Amended 18 NYCRR § 351.21(b), (c) and (f)(5) and 351.22(a), (b), (c)(1), and (f), and added 18 NYCRR § 351.22(b)(3) to provide for a waiver, by the social services districts (Districts), of face-to-face recertification requirements, subject to OTDA approval.

Analysis of the need for the rule: The amendments were developed to provide Districts the opportunity to request waivers from the OTDA of certain face-to-face recertification interviews for public assistance recipients.

Legal basis for the rule: Social Services Law (SSL) §§ 20(3)(d), 34(3)(f), 131(1), 134-a(3), and 355 (3).

10. TDA-28-08-00002 Home Energy Assistance Program (HEAP)*

Amended 18 NYCRR § 393.4(c)(3), (5); renumbered 18 NYCRR § 393.4(c)(4) to be § 393.4(c)(5) and added 18 NYCRR § 393.4(c)(4) to establish a new HEAP benefit level for low-income households in certain living arrangements.

Analysis of the need for the rule: The amendments were developed to establish a new HEAP benefit level for low-income households in certain living arrangements in order to enhance participation and benefits for certain Food Stamp Program applicants and recipients. By federal regulation, receipt of a HEAP benefit enables food stamp applicants or recipients to maximize the Food Stamp Standard Utility Allowance. (Note: the Food Stamp Program was renamed the “Supplemental Nutrition Assistance Program” [SNAP] on August 29, 2012.

Legal basis for the rule: Chapter 94 of Title 42 of the United States Code (U.S.C.); 42 U.S.C. § 8624(c), (b)(12); SSL § 97(1), (2).

11. TDA-28-08-00003 Food Stamp Program*

Amended 18 NYCRR § 387.16(e) and (f) and added 18 NYCRR § 387.16(e)(1)-(2) and (f)(1)-(2) to establish a new food stamp budgeting methodology for certain residents in group living arrangements.

Analysis of the need for the rule: The amendments were developed to establish a new, equitable method of calculating the food stamp benefits for residents of group living facilities and drug or alcoholic treatment facilities. It eliminated the differences between the food stamp benefit calculations done for residents who receive public assistance and those who receive Supplemental Security Income (SSI) by basing the calculations on the pertinent SSI rates.

Legal basis for the rule: Chapter 51 of Title 7 of the USC; 7 USC §§ 2011 and 2013; SSL §§ 95 and 95-a.

Rules Adopted in 2003

12. TDA-32-02-00004 Shelter Allowance*

Amended 18 NYCRR Part 352 and § 381.3(c) to establish new provisions concerning the shelter allowance.

Analysis of the need for the rule: The amendments were developed in order to provide a shelter allowance that reflected the cost of acceptable quality housing; provide for a supplement to ensure that family units facing special circumstances may be kept together in a home-type setting; maintain strong incentives to work; increase fairness and equity in the provision of public benefits; affect household composition; and simplify grant administration.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-a(2), 158, 349, and 355(3).

13. TDA-49-02-00006 Adjustment of Public Assistance Grants*

Amended 18 NYCRR § 352.17(e), which established that when a report of a new or increased earned income is made timely by the recipient, the district must adjust the grant or calculate the amount of any overpayment only after a reasonable administrative processing period has passed.

Analysis of the need for the rule: The amendments were developed to: encourage public assistance recipients to obtain employment and become self-sufficient; permit public assistance recipients to pay for employment-related expenses before their benefit levels are reduced; and allow Districts to adjust benefit levels without also having to calculate an overpayment of assistance.

Legal basis for the rule: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-a, and 355(3).

14. TDA-49-02-00007 Public Assistance and Food Stamps*

Amended 18 NYCRR §§ 350.3(a), 387.1(e)(1), and 387.5(j) and (k) limit the use of an authorized representative to persons who establish a good cause reason that prevents them from applying for public assistance or food stamps.

Analysis of the need for the rule: The amendments were developed to help ensure that the information given to a case worker by an authorized representative concerning a person's eligibility for public assistance or food stamps is accurate and reflects existing household circumstances. The amendments affecting the Food Stamp Program implement federal regulations.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 95, 131(1), and 355(3); Title 7, Part 273, § 2, subdivision (n) of the Code of Federal Regulations (CFR).

15. TDA-49-02-00008 Vehicle Resource Level*

Amended 18 NYCRR § 352.23(b) to establish resource exemption levels for vehicles owned by public assistance recipients and authorize Districts to exempt, as a resource, funds deposited in a bank account by such recipients if the account did not exceed a certain level and if the funds were used to purchase a first or used vehicle to enable the recipients to seek, obtain, or maintain employment.

Analysis of the need for the rule: The amendments were developed to implement legislative changes to the SSL at that time.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-n, and 355(3).

16. TDA-49-02-00009 Eligibility for Emergency Assistance to Needy Families with Children (EAF)*

Amended 18 NYCRR §§ 369.1, 372.2 and 372.4 to conform the EAF regulations to federal laws and regulations; eliminate the potential for federal penalties for incorrect use of funds in the EAF program; and remove unnecessary and restrictive limits on the amount of EAF benefits that can be provided to repair an EAF recipient's home.

Analysis of the need for the rule: The amendments were developed to: eliminate the potential for federal penalties; conform the regulations to federal law and regulations; and remove an unnecessary limit on the amount of EAF benefits that can be used to repair an EAF recipient's home.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 350-j, 355(3) and 410-u; Social Security Act §§ 404(a)(2), 408(a)(1)(A), and 409(a)(1)(A) and (B). The referenced SSL sections required OTDA to promulgate regulations necessary for the implementation of the provisions of the EAF program.

17. TDA-49-02-00010 Food Stamp Certification Periods*

Amended 18 NYCRR § 387.17(a) to extend, from 12 months to 24 months, the food stamp certification period for households in which all adult members are elderly or disabled.

Analysis of the need for the rule: The amendments were developed to: implement federal requirements concerning food stamp certification periods; significantly ease and streamline the processing procedures for Districts; and enhance access to food stamps for elderly or disabled persons.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 95; Title 7, Part 273, § 10, subdivision (f) of the CFR.

18. TDA-49-02-00011 Eligibility for Food Stamps*

Amended 18 NYCRR §§ 358-2.28, 358-2.29, 358-3.1(f), 387.7(a) and (g), 387.14(g)(1)(ii) and 387.17 to implement federal requirements concerning the food stamp application and certification processing requirements.

Analysis of the need for the rule: The amendments were developed to: implement federal requirements concerning the food stamp application and certification processing requirements; significantly ease and streamline the processing procedures for Districts; and enhance access to food stamps for eligible households.

Legal basis: SSL §§ 20(3)(d), 34(3)(f) and 95; Title 7, Part 273, §§ 2, 10, and 12 of the CFR.

19. TDA-19-03-00008 Eligibility for Food Stamps*

Amended 18 NYCRR § 387.14(a)(5)(i) and (ii) to extend categorical eligibility for food stamps to recipients of Safety Net Assistance (SNA).

Analysis of the need for the rule: The amendments were developed to extend categorical eligibility for food stamps to recipients of SNA.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 95.

20. TDA-19-03-00009 Eligibility for SNA*

Amended 18 NYCRR § 352.20(c) to allow for the percentage earned income disregard to be provided to all SNA cases eligible for family assistance (FA) except for the imposition of the 60-month State limit on the receipt of FA.

Analysis of the need for the rule: The amendments were developed to allow for the percentage earned income disregard to be provided to all SNA cases eligible for FA except for the imposition of the 60-month State limit on the receipt of FA.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131-a(1), 131-a(8)(a)(iii), 158, 349, and 355(3).

21. TDA-19-03-00010 Fair Hearings*

Amended 18 NYCRR Part 358 to make technical changes that were primarily needed to conform the regulations concerning fair hearings to the Welfare Reform Act of 1997.

Analysis of the need for the rule: The changes, in part, reflected the following: the creation of OTDA and the Office of Children and Family Services (OCFS); the responsibility of the Department of Health for the medical assistance program; the responsibility of the Department of Labor for the public assistance employment programs (subsequently repealed); the responsibility of OCFS for certain services programs; and the responsibility of the Office of Administrative Hearings within OTDA for conducting hearings on behalf of such agencies. The addition of § 358-5.9(e) concerned the issuance of subpoenas in fair hearings.

Legal basis: Chapter 436 of the Laws of 1997, constituting the Welfare Reform Act of 1997; SSL §§ 20(3)(d), 22(8), and 34(3)(f).

22. TDA-20-03-00001 Trust Assets*

Amended 18 NYCRR § 352.22(e)(1) and repealed 18 NYCRR § 352.22(e)(2) to clarify the regulations concerning the treatment of trust funds and the eligibility for public assistance.

Analysis of the need for the rule: The amendments revised the regulations concerning the treatment of trust assets for purposes of determining whether such assets can be used to provide for the basic maintenance needs of the trust beneficiary when such beneficiary was in receipt of or applied for public assistance.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-n, and 355(3).

23. TDA-23-03-00002 Food Stamp Reporting*

Amended 18 NYCRR §§ 358-3.3(e)(3), 387.14(a)(5)(ii)(b), and 387.17 to establish new requirements for reporting information to Districts concerning eligibility for food stamps.

Analysis of the need for the rule: The amendments were developed to: implement federal regulations concerning the food stamp application and certification processing requirements; and simplify the reporting requirements for food stamp recipients with earnings.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 95; Title 7, Part 273, §§ 10 and 12 of the CFR.

Rules Adopted in 1998

24. TDA-49-97-00007 Food Assistance Program*

Amended the Title of 18 NYCRR Part 358 and 18 NYCRR § 358-1.1, and added 18 NYCRR Part 388 and § 358-2.27 to implement the Food Assistance Program, consistent with State law at that time.

Analysis of the need for the rule: The amendments were developed to implement the Food Assistance Program.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 95(10).

25. TDA-02-98-00003 Child Assistance Program (CAP)

Added 18 NYCRR Part 366 to implement provisions of Chapter 436 of the Laws of 1997 concerning the CAP.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997 concerning the CAP, which was a district optional component of the FA program designed to encourage FA recipients to take steps towards financial self-sufficiency.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131-z.

26. TDA-02-98-00004 Law Enforcement Cooperation*

Amended 18 NYCRR § 357.3 to implement provisions of Chapter 436 of the Laws of 1997 concerning law enforcement cooperation.

Analysis of the need for the rule: The amendments, permitting social services officials to contact law enforcement officials under certain circumstances, were developed to implement SSL § 136, as amended by Chapter 436 of the Laws of 1997, and to implement mandatory provisions of § 408 (a)(9)(B) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Public Law 104-193).

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 136.

27. TDA-02-98-00005 Earned Income Disregards for Recipients of Public Assistance

Repealed 18 NYCRR § 352.17(b)(1)(iii) and amended 18 NYCRR §§ 352.18, 352.19, and 352.20 to implement provisions of Chapter 436 of the Laws of 1997 concerning the calculation of earned income disregards for recipients of public assistance.

Analysis of the need for the rule: The amendments were developed to implement Chapter 436 of the Laws of 1997, which revised certain income disregards used in calculating eligibility for public assistance.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131-a; Chapter 436 of the Laws of 1997.

28. TDA-02-98-00006 Sanctions for Non-Compliance

Amended 18 NYCRR § 352.30 to provide sanctions for noncompliance with work rules and drug or alcohol screening.

Analysis of the need for the rule: The amendments were developed to implement Chapter 436 of the Laws of 1997, which changed the sanction from an incremental reduction of benefits to a pro rata reduction of benefits for a failure to comply with the work requirements of 18 NYCRR Part 385. A similar sanction was imposed by Chapter 436 of the Laws of 1997 on persons who failed to participate in a drug or alcohol screening program.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 132(4)(f), and 342; Chapter 436 of the Laws of 1997.

29. TDA-02-98-00007 Local Flexibility Incentive Pilot Programs

Added 18 NYCRR § 300.9 to implement provisions of Chapter 436 of the Laws of 1997 concerning local flexibility incentive pilot programs.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997 concerning local flexibility incentive pilot programs to enable Districts to develop and implement innovative, flexible and efficient human service programs.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 36-b; Chapter 436 of the Laws of 1997.

30. TDA-02-98-00008 Intentional Program Violations

Amended 18 NYCRR § 352.30 and Part 359 to impose sanctions for intentional program violations in the FA and SNA Programs.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997 concerning the imposition of sanctions for intentional program violations in the FA and SNA Programs.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 145-c; Chapter 436 of the Laws of 1997.

31. TDA-02-98-00009 SNA Program*

Amended 18 NYCRR Part 370 to provide the standards for the SNA Program.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which included the replacement of the term ‘‘home relief’’ with ‘‘safety net assistance’’ throughout the Part. Many of the requirements for home relief remained under the SNA Program; however, the amendments added several new provisions for eligibility for, and the provision of, SNA.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 157 -159; Chapter 436 of the Laws of 1997.

32. TDA-02-98-00010 Replacement of Identification Cards*

Amended 18 NYCRR §§ 383.1 and 383.3 to implement provisions concerning when the identification card of a PA recipient should be replaced.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which required Districts to provide a recipient of PA with a replacement identification card within a certain time period.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131(19); Chapter 436 of the Laws of 1997.

33. TDA-02-98-00011 Electronic Benefit Transfer System

Amended 18 NYCRR §§ 381.1 and 381.2 to implement the Statewide electronic benefit transfer system.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997 concerning the establishment of a Statewide electronic benefit transfer system, which provides recipients increased security and convenience in accessing their benefits, while also reducing benefit fraud.

Legal basis: SSL §§ 20(3)(d), 21-a, and 34(3)(f).

34. TDA-02-98-00012 Eligibility for FA*

Amended 18 NYCRR Part 369 to implement provisions of Chapter 436 of the Laws of 1997 concerning eligibility for FA.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which included replacing the term ‘‘aid to dependent children’’ with the term ‘‘family assistance’’ throughout the Part. Many of the requirements for aid to dependent children remained under the FA program; however, the amendments added several new provisions for eligibility for, and the provision of, FA.

Legal basis: SSL §§ 2(18), 20(3)(d), 34(3)(f), 131(6), 344, 349, and 350(c)(2); Chapter 436 of the Laws of 1997.

35. TDA-02-98-00013 Screening for Alcohol and/or Drug Abuse*

Added 18 NYCRR § 351.2(i), requiring that applicants for or recipients of public assistance be screened for alcohol and/or drug abuse and attend appropriate treatment programs as necessary.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which required screening for alcohol and/or substance abuse of all heads of households and adult applicants for public assistance.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 132; Chapter 436 of the Laws of 1997.

36. TDA-02-98-00014 Exemption of Income and Resources for Public Assistance

Amended 18 NYCRR § 352.23(a), (b), and (d) to provide for the exemption of certain income and resources for public assistance eligibility.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which amended the provisions for the exemption of certain income and resources when determining public assistance eligibility in order to more closely align the public assistance resource policy with that of the Food Stamp Program.

Legal basis: SSL §§ 20(3)(d), 34(3)(f) and 131-n; Chapter 436 of the Laws of 1997.

37. TDA-02-98-00015 Recovery of Assistance for Basic Needs

Amended 18 NYCRR § 353.2(a) and (b) to clarify that interim assistance that is subject to recovery may include FA, if paid exclusively from State and local funds.

Analysis of the need for the rule: The amendments were developed to implement Chapter 436 of the Laws of 1997, which renamed the programs for which interim assistance may be recovered, and clarified that interim assistance could be recovered from non-federally funded FA provided to persons, or households containing such persons, who are permanently disabled and awaiting determinations of eligibility for federal SSI benefits.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 349(B)(2); Chapter 436 of the Laws of 1997.

38. TDA-02-98-00016 Individual Development Accounts

Added 18 NYCRR § 352.21 to implement the establishment of individual development accounts.

Analysis of the need for the rule: The amendments were developed to implement Chapter 436 of the Laws of 1997, which permitted individuals who are receiving FA to accumulate funds in certain individual development accounts.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 358(5); Chapter 436 of the Laws of 1997.

39. TDA-02-98-00017 Standards for Ineligibility for Public Assistance

Amended 18 NYCRR §§ 351.1(b)(2)(iv), 352.30(d)(2)-(4), and 387.1(w) and added 18 NYCRR § 351.2(k) concerning standards for ineligibility for public assistance.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which prohibited the following persons from receiving assistance: unmarried persons under 18 years old who are with a child and who have not completed or are not attending high school; fugitive felons and probation and parole violators; persons convicted of illegally receiving duplicate benefits; and minors absent from their homes.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131; Chapter 436 of the Laws of 1997.

40. TDA-02-98-00018 FA and SNA

Added 18 NYCRR § 350.1(d) to provide technical consistency and clarify the regulatory language relative to the PA Program.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which established the FA Program and the SNA Program. The amendments stated that references to ‘‘aid to dependent children’’ refer to ‘‘family assistance’’ and that references to ‘‘home relief’’ refer to ‘‘safety net assistance.’’ The amendment defined ‘‘public assistance’’ as referring to FA, SNA, and veteran assistance.

Legal basis: SSL §§ 2, 20(3)(d), and 34(3)(f); Chapter 436 of the Laws of 1997.

41. TDA-02-98-00019 Eligibility of Non-Citizens for FA

Repealed 18 NYCRR §§ 349.3 and 352.33 and added new 18 NYCRR §§ 349.3 and 352.33 to: conform the State's eligibility requirements for federally funded assistance to federal law; exercise federal options for the eligibility of certain persons; and set forth the requirements for eligibility for State funded programs.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which addressed the eligibility of non-citizens for FA, SNA, food stamps, Title XX benefits, and additional State payments in the SSI Program. The amendments established requirements for deeming the income of an alien's sponsor available to the alien for purposes of eligibility for various programs.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 122; Chapter 436 of the Laws of 1997.

42. TDA-02-98-00036 Finger Imaging

Amended 18 NYCRR §§ 351.2, 384.1, 384.2(b) and (c), and 384.3(a)(3), and added 18 NYCRR §§ 387.9(c) and 388.8 to extend the scope of the automated finger imaging system.

Analysis of the need for the rule: The amendments were developed to implement provisions of Chapter 436 of the Laws of 1997, which required Districts to obtain finger images of applicants for and recipients of SNA, emergency SNA, EAF, public institutional care adults, FA, food stamps, or food assistance benefits. (Note: effective November 1, 2012, finger imaging was eliminated for purposes of administering SNAP).

Legal basis: SSL §§ 17, 20(3)(d), 34(3)(f), 131(1), 134-a, 139-a, 158, and 355(3); Chapter 436 of the Laws of 1997.

43. TDA-12-98-00018 Repayment of Grants for Energy Arrears

Amended 18 NYCRR § 352.5(e) to revise the regulations concerning who must sign an agreement to repay emergency assistance provided to pay utility arrears.

Analysis of the need for the rule: The amendments were developed to clarify the regulations concerning who must sign an agreement to repay emergency assistance provided to pay utility arrears.

Legal basis: SSL §§ 17, 20(3)(d), 34(3)(f), 131(1), 131-s, 158, and 355(3).

44. TDA-15-98-00002 Nazi Persecution Payments

Added 18 NYCRR § 352.22(aa) to exempt payments to victims of Nazi persecution in determining eligibility for public assistance.

Analysis of the need for the rule: The amendments were developed to exclude reparation payments made to victims of Nazi persecution from consideration in determining eligibility for and the amount of benefits to be paid under certain public assistance programs.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131-n(2) .

45. TDA-15-98-00003 Immunizations*

Added 18 NYCRR § 355.1(c) to require Districts to provide information and a schedule regarding age-appropriate immunizations to certain applicants for and recipients of public assistance.

Analysis of the need for the rule: The amendments were developed to require that Districts provide all applicants for and recipients of public assistance whose households include a child five years of age or younger with information and a schedule regarding age-appropriate immunizations. The amendments also required that Districts must provide such applicants and recipients with information about eligibility for free vaccinations for children.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131(13).

46. TDA-19-98-00016 Recoveries of Public Assistance

Amended 18 NYCRR § 352.31(d)(5) to raise the threshold amount of public assistance to be recovered from an individual no longer receiving assistance, from $35 to $125.

Analysis of the need for the rule: The amendments were developed to relieve Districts from the administrative burden of collecting overpayment amounts which are so small that collection is not cost effective.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 106-b.

47. TDA-25-98-00006 Domestic Violence Protection*

Amended §§ 347.5 (g) and (h), 351.2(l), 357.3(i), 358-3.1(b), 358-3.3, and 369.2(b)(1)(iv) to implement procedures for domestic violence screening, assessment, and referral programs for applicants for and recipients of public assistance.

Analysis of the need for the rule: The amendments were developed to establish the procedures for the State's domestic violence screening, assessment, and referral program in order to provide care, support, and protection to those applicants for and recipients of public assistance who are victims of domestic violence.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 349-a.

*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/rule-review-2018.pdf.

Any comments should be submitted to: Joseph C. Mazza, Office of Temporary and Disability Assistance, 40 N. Pearl St., 16th Fl., Albany, NY 12243, (518) 474-0574, e-mail: [email protected].