As required by Chapter 262 of the Laws of 1996, the following is a list of rules which were adopted by the State Commission of Correction in calendar years 1999, 2004, and 2009 which must be reviewed in calendar year 2014. Public comment on the continuation or modification of these rules is invited. Comments should be received by April 1, 2014. Comments may be directed to: Brian Callahan, General Counsel, A.E. Smith State Office Building, 80 S. Swan Street, 12th Floor, Albany, New York 12210-8001.

CMC-12-99-00013 Amendment of subdivision (a) of section 7032.2 and addition of a new subdivision (c) to section 7006.9 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to authorize local correctional facilities to impose a disciplinary surcharge, not to exceed $5, upon inmates found guilty of misbehavior.

Legal basis for the rule: Correction Law sections 45(6) and 42(b)(1).

CMC-17-99-00003 Repeal of § 7009.7; renumbering of § 7009.8 to 7009.7; and amendment of § 7009.2, paragraph (1) of subdivision (a) of § 7009.5, and subdivision (a) of § 7009.6 of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to streamline provisions and ensure that prisoners are provided with nutritionally adequate diets.

Legal basis for the rule: Correction Law section 45(6).

CMC-44-98-00008 Part 7400 of Title 9 NYCRR is renumbered 7202. Chapters III and IV of Title 9 NYCRR are redesignated Chapters IV and V, respectively. Parts 7400-7499 of Title 9 NYCRR are designated Chapter III.

Analysis of the need for the rule: The rule is needed to establish a new Chapter III of Title 9 NYCRR for Minimum Standards and Regulations for Management of Office of Children and Family Services’ Secure Facilities for Juvenile Offenders.

Legal basis for the rule: Correction Law section 45(6-b).

CMC-31-09-00005 Amendment the title of Part 7016 and the addition of § 7016.2 of Title 9 NYCRR.

Analysis of the need for the rule: The rule is needed to allow for automated and electronic deposits to inmate institutional fund accounts in county correctional facilities.

Legal basis for the rule: Correction Law section 45(6) and 45(15).

CMC-10-09-00001 Addition of a new Chapter III of Subtitle AA of Title 9 NYCRR.

Analysis of the need for the rule: The rule is needed to enact minimum standards and regulations for the management of secure facilities operated by OCFS.

Legal basis for the rule: Correction Law sections 45(6-b) and 45(10).

Section 207 of the State Administrative Procedure Act (SAPA) requires that each State agency review, after five years and thereafter at five-year intervals, each of its rules that is adopted on or after January 1, 1997 to determine whether such rules should be modified or continued without modification.

Pursuant to SAPA section 207, the State Education Department submits the following list of its rules that were adopted during calendar years 2009, 2004 and 1999 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 2009

OFFICE OF P-12 EDUCATION

Section 100.2(p) – Differentiated Accountability

Description of Rule: The purpose of the rule is to implement the No Child Left Behind (NCLB) Differentiated Accountability Pilot Program in order to increase the percentage of schools designated for Improvement that are able to make adequate yearly progress for two consecutive years and be returned to Good Standing.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations with New York State's approval to participate in the No Child Left Behind (NCLB) Differentiated Accountability Pilot Program, as granted by the United States Department of Education (USED) on January 8, 2009.

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

Section 100.5 – Special Education Safety Net Extension

Description of Rule: The rule extends the existing regulatory requirements of section 100.5 of the Regulations of the Commissioner of Education relating to the Regents Competency Test (RCT) safety net for students with disabilities.

Need for Rule: The rule extends the RCT safety net for an additional year to make it available to all students with disabilities entering grade nine in the 2010-11 school year. Extending the RCT safety net provided time for the Regents and Department to fully analyze all of the policy issues concerning graduation, including policy implications for students with disabilities.

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

Section 135.4 – Physical Education, Coaching and Interscholastic Athletics

Description of Rule: The rule provides flexibility for school districts that have organized their 5th and 6th grades into a middle school, by revising the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. The rule also specifies the qualifications of those to be appointed (whether paid or unpaid) by school districts to fill existing athletic coaching positions, clarifies evidential requirements for extension of eligibility for interscholastic athletics, and adds provisions permitting coaches to apply to the Commissioner for extensions to complete required coursework.

Need for Rule: The Office of the State Comptroller Audit on Physical Education recommended the change in regulation to accommodate districts with middle schools and the New York State Public High School Athletic Association and the New York State Athletic Administrators’ Association have actively pursued a change in Commissioner’s Regulation section 135.4(c)(7)(i)(c), relating to the educational requirements of coaches, the timelines to complete required course work and duration of competition for athletes. The prior regulations did not provide flexibility for school districts that have organized their 5th and 6th grades into a middle school. The rule revises the physical education instruction requirements for elementary programs to include provisions for pupils in grades 5 and 6 who attend a middle school. The rule eliminates scheduling and staffing issues in middle level schools. The change effected by the rule was listed in the recommendations of the Office of the State Comptroller Audit on Physical Education and recommended by administrators in middle level buildings.

Furthermore, the prior regulations did not reflect equality of coaching requirements for certified teacher coaches and non-teacher coaches. In addition, new teachers are required to complete a Master’s degree within five years of receiving their baccalaureate. This has affected the time available to new coaches to complete the required coaching courses and has affected the number of certified teacher coaches available to school districts for appointment as an interscholastic athletic coach. The rule establishes equal timelines for coaches to complete required course work, extends the time for completing requirements, provides authority for additional extensions for individuals who have had a lapse in service due to extenuating circumstances, and clarifies extension of eligibility for interscholastic athletes. New York State Education Department oversight and control over the required instruction and coaching regulations remain intact.

The rule also clarifies the extension of eligibility rule to provide that in order to be an acceptable cause for extending a student's eligibility for interscholastic athletics, the chief school officer must present sufficient evidence that includes documentation showing that the student's education plan has been extended to a fifth year as a direct result of the illness, accident or other circumstance beyond the control of the student.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1) and (2), 803(5) and 3204(2).

Section 174.2 – Computation of nonresident pupil tuition rate

Description of Rule: The rule conforms the Commissioner's Regulations to changes in State statutes and corrects technical deficiencies.

Need for Rule: The rule is necessary to reflect the Foundation Aid provisions enacted by Chapter 57 of the Laws of 2007 and to otherwise bring the Commissioner’s Regulations into compliance with those changes to the law.

Legal Basis for Rule: Education Law sections 207, 3202(4)(d) and 3602.

Section 175.5 – Superintendent’s Conference Days

Description of Rule: The rule extends for four years the provision in the regulation that permits a school district to use up to two of its superintendents’ conference days in each school year for teacher rating of State assessments.

Need for Rule: The rule provides school districts with additional flexibility and discretion to use this staff development function to fulfill their State test scoring requirements while minimizing impact on student instructional time.

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

Sections 200.1, 200.2, 200.4, 200.5, 200.6, 200.9 & 200.15 – Federal/State Conform Regulations

Description of Rule: The rule accomplishes the following:

•adds the definition of declassification support services consistent with the definition of such term in section 3202(i)(2) of the Education law;

•conforms State regulations to federal requirements relating to participation in regular class, parent consent, including revocation of parent consent for special education and related services, and meeting notice;

•repeals language in the prior notice requirements relating to provision of a free appropriate public education after graduation with the receipt of a local high school or Regents diploma to be consistent with Education Law; and

•conforms State regulations to Chapter 323 of the NYS Laws of 2008 relating to procedures for prevention of abuse, maltreatment or neglect of students in residential placements.

Need for Rule: The rule is necessary to conform State regulations to federal regulations (34 CFR Part 300) and New York State (NYS) Social Services Law and Mental Hygiene Law, as amended by Chapter 323 of the Laws of 2008; and to make certain technical amendments, including correction of cross citations.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207 (not subdivided), 3208(1-5), 3602(i)(2), 3713(1) and (2), 4002(1-3), 4308(3) and 4355(3), 4401(2- 9), 4402(1-7) and 4410(13), and Chapter 323 of the Laws of 2008.

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:

Ken Slentz

Deputy Commissioner of Education P-12

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

Sections 3.47, 3.48, and 3.50 – Masters of Study in Law

Description of Rule: The rule amends section 3.47(c) to delete the phrase “specialized study” from the definition of liberal arts content. The rule also creates a new degree title, Master of Studies in Law (M.S.L.), in the category of Professional Degrees and Specialized Degrees. The rule also adds a new section 3.48(c) to authorize community colleges to award honorary associate degrees in accordance with section 6306(5-b) of the Education Law.

Need for Rule: The amendment to section 3.47(c) clarifies the distinction between such content in an undergraduate degree program and courses directed toward a specific occupational or professional objective. The amendment to section 3.50, creating the M.S.L., makes a non-licensure legal education available to non-lawyers. The amendment to section 3.48(c) authorizes community colleges to award honorary associate degrees in accordance with section 6306(5-b) of the Education Law.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 214(not subdivided), 215(not subdivided), 218(1), 224(4), 305(1) and (2) and 6306(5-b).

Sections 30-1.1, 30-1.2, 30-1.9, 80-1.1 and 80-5.21 – Teacher tenure area – instructional support services.

Description of Rule: The rule establishes qualifications and tenure and/or seniority rights for teachers performing instructional support services, and thus permits teachers employed in instructional support service positions in BOCES and school districts to receive tenure and seniority rights in a tenure area for which they are properly certified. (The regulations do not impact teachers serving in the New York City School District.)

Need for Rule: The rule is necessary because the number of individuals serving in these types of positions has grown considerably in the past three decades and these positions have never been formally recognized as being educational in nature under section 35-g of the Civil Service Law. The effect is that teachers serving in these positions currently are not eligible to accrue tenure and seniority rights in any tenure area. Under the rule, these positions become part of the unclassified service, require an appropriate teaching certificate, and would be subject to Education Law in regard to appointment and tenure.

Legal Basis for Rule: Education Law section 207.

Sections 80-1.2, 80-1.6, 80-1.8, 80-5.9 – Processing and Requirements for Teacher's Certificates.

Description of Rule: The rule imposes reasonable limits on transcript evaluation by limiting the length of time an application for a certificate will remain in active status to three years and limiting the number of evaluations an applicant can receive to two. Additional evaluations will require submission of a new application and fee. The rule imposes a $50 fee for the issuance of an internship certificate, the same fee that the Department collects for all other college-recommended certificates. The rule specifies that certificates may be issued in electronic and/or paper format, in order to implement a policy change from the issuance of time limited certificates, in favor of a web based verification system. The rule only allows a holder of a provisional certificate to qualify for a time extension if he/she has passed the appropriate New York State Teacher Certification Examination content specialty test(s). The rule also streamlines the requirements for the reissuance of an initial certificate by requiring passage of the applicable Content Specialty Test(s) only if the certificate has been expired for more than two years, eliminates the requirement that the teacher submit evidence of being unable to secure a teaching position to qualify, establishes a uniform professional development requirement of 75 hours and requires that a candidate complete the 75 hours of professional development within one year of applying to the department for the reissued initial certificate.

Need for Rule: The rule is needed to streamline certificate evaluations and the processing of certificates under Part 80 of the Regulations of the Commissioner of Education, in light of the reduction in available resources to the State Education Department to perform these functions, in order to continue to provide core teacher certification services to school districts and candidates seeking a certificate in teaching, allow evaluation staff to work on more critical evaluation functions, and reduce the processing time for applicants.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210, 212, 305, 3001, 3003, 3004, 3006, 3007, 3009 and 3604.

80-1.2, 80-1.6, 80-2.2, 80-2.9, 80-3.6, 80-4.3, 80-5.6, 80-5.7 and 80-5.9 – Patriot Plan

Description of Rule: The rule implements the provisions of the Patriot Plan by reducing the professional development requirement for certificate holders called to active duty for the time of such active service. The rule also extends the validity of teaching certificates for members of the military called to active duty for the period of such active service and an additional 12 months from the end of such service.

Need for Rule: The rule is necessary to implement the provisions of the Patriot Plan, which was enacted by the Legislature in Chapter 106 of the Laws of 2003. The Patriot Plan was enacted by the Legislature to recognize members of the military who are called to active duty so that such members are not discriminated against based upon their military status in areas such as housing, employment and education.

Legal Basis for Rule: Education Law sections 207, 210, 212, 305, 3001, 3004 and 3006.

Sections 80-2.9, 80-4.3 and 80-5.18 – Supplementary Extension in Bilingual Education

Description of Rule: The purpose of the rule is to establish a supplementary bilingual education extension to enable a certified teacher or pupil personnel service professional to provide bilingual instruction or services, in a demonstrated shortage area, while the teacher or pupil personnel service professional completes the remaining course requirements necessary to qualify for a bilingual extension. The supplementary bilingual education extension is valid for three years from its effective date and will not be renewable. It will be limited to employment with an employing entity. Due to continuing shortages of classroom teachers in certain certificate titles (including but not limited to mathematics, the sciences and special education) and in certain geographic areas, the rule also removes the sunset date of September 1, 2009 for supplementary certificates, which authorizes a teacher certified in the classroom teaching service to teach in a different title when there is a demonstrated shortage of certified teachers, while the teacher is engaged in study at an institution of higher education to complete any necessary requirements to qualify for the new certificate.

Need for Rule: The rule is needed to facilitate the State’s ability to address persistent shortages of certified teachers and pupil personnel service professionals (such as school psychologists, school counselors and school social workers) who are qualified to provide bilingual instruction and services. The rule creates a practical mechanism for certified teachers and pupil personnel professionals to earn this additional credential, while continuing to be employed as a classroom teacher or pupil personnel service provider. The rule prescribes clearly defined standards to ensure the quality of the education of teachers and pupil personnel professionals certified in bilingual education. The rule is designed to support the Department’s continuing efforts to certify a sufficient number of properly qualified candidates to fill the need for bilingual instruction and support services in the State’s schools.

Legal Basis for Rule: Education Law sections 207(not subdivided), 305(1), (2) and (7); 3001(2); 3004(1) and 3006(1)(b).

Section 145-2.15 – Administration of Ability-to-Benefits Tests for purposes of Eligibility for Student Aid Awards

Description of Rule: The rule clarifies the requirements for the independent administration of ability-to-benefit tests, for purposes of eligibility for student aid awards.

Need for Rule: The rule replaces the phrase “assessment center” with “testing center to avoid confusion with the different meaning of "assessment center" in federal regulations governing the administration of HEA Title IV student aid funds (34 CFR 668.142). The rule also adds to the existing prohibition on test center employees, a prohibition on not only the use of any person employed through the admissions, student financial aid, or registrar’s offices at an institution, but a prohibition on the use of any employee who performs the duties of such offices. The rule also requires that the scoring of an ability-to-benefit test be “in accordance with the test publisher’s instructions.” The rule requires that tests, results, and databases be kept “secure” instead of “in locked and secured containers”, in light of the fact that tests may be offered on computer as well as in paper-and-pencil format. The rule also eliminates the prohibition against an institution employing a former student as a test administrator because it is unnecessarily restrictive, given the other constraints § 145-2.15 of the Commissioner’s regulations places on the administration of ability-to-benefit tests. The rule also amends section 145-2.15(e) to clarify that in order for the Department to consider a test “independently administered”, it must be administered at one of the following locations: (1) a testing center that is not located at and/or affiliated with the institution for which the student is seeking enrollment; (2) a degree-granting institution that confers two-year or four-year degrees or an institution that qualifies as an eligible public vocational institution provided that the chief executive officer certifies annually that certain procedures have been followed; or (3) an eligible non-degree granting institution that is not a public vocational institution provided that the test is given by a test administrator meeting certain requirements delineated in the rule.

Legal Basis for Rule: Education Law sections 207(not subdivided) and 661(4).

Agency Representative:

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

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 & 63.3 – Pharmacy Electronic Records and Residency

Description of Rule: The rule enables licensed pharmacists to maintain required records in electronic format, and provides applicants seeking licensure in pharmacy with an alternative to passing a Department administered practical examination, one of three examinations that a pharmacist must complete to become licensed.

Need for Rule: As a general rule, licensed professionals are allowed to maintain records electronically. Pharmacy rules and regulations, however, previously retained references to hard-copy records, despite the extremely large volume of records contemporary community and hospital pharmacies generate. The rule removed this requirement and allows pharmacists and pharmacies the option of converting records to a secure, electronic format. The rule encourages greater acceptance of electronic prescribing which has been shown to be effective in reducing medication errors.

Pharmacists seeking licensure in New York State previously were required to complete a three-part series of examinations. The third part of the examination is a Department prepared and administered practical examination that tests candidates’ abilities to actually compound and dispense medications, including sterile products. This examination is labor intensive, and the Department has been reviewing effective alternatives. An increasing number of pharmacy graduates voluntarily enroll in accredited residency programs wherein their knowledge and skills are further developed and confirmed. The rule authorizes the Department to accept a certification from the residency program director, attesting to the applicant’s attainment of specified skills and competencies within an accepted residency program in lieu of successful completion of the current practical examination. The rule is similar to recent changes made in the licensure of dentists, who are now required to complete a dental residency in lieu of the previously administered practical examination. The rule permits an applicant to either complete certain competencies as part of an approved residency program or complete a Department administered practical examination.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1), 6507(2)(a), 6507(4)(h), 6509(9), 6801(not subdivided) 6805(3) and 6810(4) and (5) of the Education Law.

Sections 29.10, 52.13 & Part 70 – Public Accountancy

Description of Rule: The rule enacts requirements in the following areas of professional licensure or practice impacted by Chapter 651 of the Laws of 2008:

(1) Commission and referral fees. In order to ensure that certified public accountants (CPAs) and public accountants (PAs) working in private industry or providing non-attest services through a public accounting firm may continue to receive commissions/referrals, the rule defines as unprofessional conduct in the practice of public accountancy the receipt of a commission or referral fee by a licensee or the public accounting firm employing such licensee for the referral of any product or service to a client if the licensee is performing certain attest and compilation services. The purpose of the rule is to retain the independent judgment of the CPA or PA. The rule also defines as unprofessional conduct the failure of a CPA or PA to provide specific written disclosure to a client when the licensee is performing professional services other than certain attest or compilation services for which a licensee may not receive a commission, and the licensee receives a commission or referral fee for recommending the products or services of a third party to the client.

(2) Firm Registration. Chapter 651 of the Laws of 2008 requires the Commissioner to establish a registration process for public accounting firms. The rule requires all firms (including sole proprietorships, partnerships, LLPs, LLCs, and PCs) to maintain a registration with the Department if the firm is performing attest or compilation services or using the title “CPA” or “CPA firm” or the title “PA” or “PA firm.” Firms performing only non-attest services described in Education Law § 7401(3) are not required to, but may, register with the Department. The rule requires firms applying for registration with the Department to provide a list of all offices within New York State and a list of all states or jurisdictions in which the firm maintains offices. It also requires firms to list any past denial, revocation or suspension of a registration or permit by any other state or jurisdiction within the past three years. The Board of Regents may revoke a firm’s registration or take other disciplinary action against a firm to the same extent as an individual licensee, or pursuant to a settlement in which the firm neither admits nor denies the allegations of professional misconduct, or based upon other grounds including failure to undergo the required quality review every three years.

(3) Continuing Professional Education (“CPE”). Chapter 651 of the Laws of 2008 amends Education Law § 7409 to change the tracking year for CPE credit from a September 1 – August 31 year to a January 1 – December 31 year. The changes also allow licensees to meet their annual CPE requirement by completing either 40 credits in any combination of allowable subject areas or by completing 24 credits concentrated in any one subject area. Before this change, licensees were required to complete 40 credits in a combination of the following areas: accounting, auditing or taxation, or 24 credits concentrated, in either accounting, auditing or taxation. The legislation also requires that any licensed CPA or PA that engages in the new definition of public practice in § 7401 meet the CPE requirements. Any licensee who does not engage in public practice as defined in § 7401 may file a written request for an exemption from CPE. The rule implements these statutory changes, deletes prior exemptions from mandatory CPE for individuals who work in private industry or government and specifies that all registered CPAs and PAs are required to pay a CPE fee of $50.

(4) Registration and Use of Professional Title. The rule requires CPAs and PAs to maintain an active registration with the Department if the licensee is practicing public accountancy or using the title “certified public accountant” or “public accountant” or the designation “CPA” or “PA.” Licensees not practicing public accountancy or not using the title may request inactive status from the Department by filing a form to be approved by the Department requesting such status.

(5) Non-attest Services Performed by Out-of-State Licensed CPAs. Existing law was amended to add Education Law § 7406-a to authorize out-of-state CPAs to perform non-attest services such as accounting, management advisory, financial advisory, and tax in New York without a permit or license. As a condition of practicing in New York under this provision, the CPA and the firm that employs him or her agrees to be subject to the disciplinary authority of the Board of Regents; to comply with Article 149 of the Education Law, the Rules of the Board of Regents and the Regulations of the Commissioner of Education and to the appointment of the Secretary of State or other public official acceptable to the Department. The rule amends the Rules of the Board of Regents by defining as unprofessional conduct the willful or grossly negligent failure of an out-of-state CPA practicing non-attest services pursuant to Education Law § 7406-a to comply with substantial provisions of Federal, State or local laws, rules or regulations.

Need for Rule: The rule is necessary to conform the Commissioner's Regulations to Chapter 651 of the Laws of 2008.

Legal Basis for Rule: Education Law § § 207(not subdivided), 6501(not subdivided), 6504(not subdivided), 6506(1), (2) and (6), 6507(2)(a), (3), (4)(a), 6508 (1) and § § 7401, 7401-a, 7402, 7404, 7406, 7406-a, 7408, 7409 and 7410 and Chapter 651 of the Laws of 2008.

Section 77.10 – Physical therapy continuing education requirements

Description of Rule: The rule establishes mandatory continuing education requirements and the process for the Department’s approval of sponsors of such continuing education.

Need for Rule: The rule is necessary to implement the requirements of Chapter 563 of the Laws of 2008.

Legal Basis for Rule: Education Law sections 207(not subdivided), 212(3), 6504(not subdivided), 6507(2)(a), and 6742-a(1)(2)(3)(4)(5) and (6); and section 2 of Chapter 207 of the Laws of 2008.

Section 150.4 – High Needs Nursing

Description of Rule: The purpose of the rule is to extend from June 1 to November 15 of each year the deadline for submission of annual reports certifying the number of students enrolled in a high needs nursing program at such institution.

Need for Rule: The rule is needed to provide institutions with an adequate amount of time to submit their annual reports.

Legal Basis for Rule: Education Law § § 207 and 6401-a and Chapter 57 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 90.3 – Public Library Systems

Description of Rule: The rule adds the definition of “developmentally or learning disabled” to the special populations who are served by coordinated outreach. The “Enriched coordinated outreach program” has been replaced with a more appropriate name, the “Family Literacy Library Services Grant Program.” Current operations of library systems are more accurately reflected and references to obsolete practices and terms are omitted.

Need for Rule: The rule is needed to update certain terminology and to clarify procedural requirements in the Commissioner’s Regulations relating to the approval of public library systems, specifically the Coordinated Outreach Services, Family Literacy Library Services grant program (formerly the "enriched coordinated outreach programs"), and Adult Literacy Library Services grant programs, in order to conform to Education Law section 273, as amended by Chapter 57 of the Laws of 2005, Part O, and to accurately reflect the current implementation of the statute.

Legal Basis for Rule: Education Law sections 207 (not subdivided), 215 (not subdivided), 254 (not subdivided), 255 (1 through 5), 272(1)(h) and 273(1).

Section 92.1 - State Library’s Circulation Policy

Description of Rule: The rule eliminates the restriction that certain State officials registered to borrow from the State Library may only borrow library materials for work-related purposes. The rule simplifies the registration process for a State official by only requiring proof that the individual is a permanent employee of State Government rather than requiring certification by a supervisor at the bureau chief level or above that the individual is currently a permanent employee of a State agency and requires library materials in connection with his or her official duties. The rule allows New York State residents 18 years and older to borrow library materials directly from the State Library if borrowed onsite and imposes a fine upon such individuals for overdue library materials. The rule also restricts the circulation of the only copy, or copy 1, of a New York State document. The rule also simplifies the return policy by providing that materials not returned within six weeks after the due date are considered lost and may be replaced at the borrower’s expense. Additionally, the rule clarifies that physicians and attorneys in New York State must be residents of the State as well as licensed to practice in the State in order to borrow library materials. The rule also makes technical amendments, including grammatical and stylistic changes.

Need for Rule: The rule is necessary to conform the Commissioner’s Regulations to the State Library’s current policy and practice relating to borrowing circulating library materials.

Legal Basis for Rule: Education Law sections 207 (not subdivided) and 249 (not subdivided).

Part 188 – State Government Archives and Records Management

Description of Rule: The rule revises and clarifies various provisions of the regulations, especially those pertaining to replacing original records with microforms, the retention and preservation of electronic records, the disposition of damaged records, and fees for records management services and the storage of records at the State records center.

Need for Rule: The rule is needed to update and clarify various provisions of Part 188. In particular, revisions to section 188.13 establish procedures to authorize the destruction of damaged records. Revisions to section 188.18 clarify and modernize requirements for replacing original records with microforms. Revisions to section 188.20 clarify and modernize requirements for the retention and preservation of electronic records. Revisions to section 188.21 update the list of agencies paying fees for records management services and the fee for storing records at the State records center. These changes establish improved and uniform standards for State government records management operations.

Legal Basis for Rule: Education Law section 207(not subdivided) and Arts and Cultural Affairs law section 57.05(9)

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:

Jeffrey W. Cannell

Deputy Commissioner for Cultural Education

State Education Department

Cultural Education Center

Room 10A33

Albany, NY 12230

(518) 474-5976

OFFICE OF OPERATIONS AND MANAGEMENT SERVICES

Section 3.2(b) – Chancellor Emeritus

Description of Rule: The rule provides that a Chancellor Emeritus, who is also a current member of the Board of Regents, is an ex officio member of each standing committee of the Board of Regents.

Need for Rule: The Board of Regents has determined that this provision is appropriate and necessary to assist the Board of Regents to effectively meet its responsibilities to govern the University of the State of New York, determine the educational policies of the State and oversee the State Education Department.

Legal Basis for Rule: Education Law section 207(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:

Richard J. Trautwein

Counsel and Deputy Commissioner for Legal Affairs

New York State Education Department

State Education Building, Room 112

Albany, New York 12234

(518) 474-6400

B. CALENDAR YEAR 2004

OFFICE OF P-12 EDUCATION

Section 156.3 – Nonpublic School Bus Drivers

Description of Rule: The rule conforms the Commissioner’s Regulations to Chapter 270 of the Laws of 2003 by applying the school bus safety practices instruction and retraining requirements for public school bus drivers to nonpublic school bus drivers.

Need for Rule: The rule is needed to implement the statutory requirements of Chapter 270 of the Laws of 2003. The rule will help to insure the safety of the 2.3 million students transported on school buses each day in New York State by applying, as required by Chapter 270 of the Laws of 2003, school bus safety practices instruction and retraining requirements prescribed pursuant to Education Law section 3624 to drivers who operate transportation which is owned, leased or contracted for by private and parochial schools to the same extent as such requirements apply to drivers who operate transportation which is owned, leased or contracted for by public school districts.

Legal Basis for Rule: Education Law § § 207, 305(34) and 3624 and Chapter 270 of the Laws of 2003.

Section 155.26 – Qualified Public Educational Facilities Bonds

Description of Rule: The rule establishes procedures, consistent with State and federal law, for the allocation of the State’s qualified public educational facility bond limitation pursuant to 26 USC section 142(k).

Need for Rule: The rule is needed to implement the provisions of 26 USC section 142 by establishing the process for the allocation of the State's Qualified Public Educational Facilities (QPEF) bond limitation amount to local educational agencies within the State.

Legal Basis for Rule: Education Law § § 101, 207, 305(1) and (2) and 3713(1) and (2) and 26 USC 142(a) and 142(k).

Section 164.1(g) – Education for Gainful Employment (EDGE) Program

Description of Rule: The rule updates the Commissioner’s Regulations by replacing references to the job opportunities and basic skills (JOBS) program with references to the Education for Gainful Employment (EDGE) program.

Need for Rule: The rule is needed to replace references to the Jobs Opportunities and Basic Skills Training (JOBS) program and the Aid to Families with Dependent Children (AFDC) program with, respectively, the Education for Gainful Employment (EDGE) program and Temporary Assistance for Needy Families (TANF) program. The federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. Law 104-193) repealed the JOBS and AFDC programs, and created the TANF program. The rule sets forth the description, eligibility criteria and allowable activities for programs funded under the Welfare Education Program (WEP). A portion of WEP is sub-allocated for a match for TANF funds to create the EDGE program, which is administered in partnership with the State Department of Labor.

Legal Basis for Rule: Education Law § § 207, 3713(1) and (2) and § 1 of Chapter 53 of the Laws of 2003.

Sections 8.2, 8.3 and 100.7 – Admission to and Passing Mark on Regents Examinations and College Credits to Meet High School Equivalency Diploma Requirements.

Description of Rule: The rule implements policy enacted by the Board of Regents relating to admission to and passing mark for Regents examinations and high school equivalency diploma requirements.

Need for Rule: The rule requires principals of public schools to admit to Regents examinations a candidate who is a school district resident and who seeks to take such examinations for the purpose of meeting the requirements for an earned degree pursuant to Regents Rule section 3.47(a)(2). This provision is consistent with amendments to Regents Rules that establish an additional pathway for students beyond compulsory school age to earn a college degree by having passed and successfully completed all requirements for the following Regents examinations or the approved alternative assessments for these examinations: Comprehensive English, mathematics, U.S. history and government, global history and geography, and a science. The rule makes a technical change to add the citation in Regulations of the Commissioner of Education (section 100.5[a][5][i]) where there is an exception to the 65 passing mark on Regents examinations. The rule changes the subject distribution of the 24 college semester hours required for a pathway to earn a high school equivalency diploma. Provision is made to transition to the revised subject distribution that is anticipated to become effective September 30, 2004. The revised subject distribution will be consistent with recent amendments to Regents Rules relating to the satisfactory evidence candidates who are beyond compulsory school age must provide to degree-granting institutions to earn a college degree. The rule reduces the semester hour requirement in mathematics from six to three, eliminates the three semester hours in career and technical education and/or foreign languages, and allows a candidate to complete six semester hours in courses within the registered degree program.

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

Section 100.8 – Local High School Equivalency Diploma

Description of Rule: The rule extends for three years the provision in the Commissioner’s Regulations that 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 subsequently amended to extend the provision through June 30, 2011.

Need for Rule: The rule is needed to allow the continuance of the External Diploma Program (EDP), 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. EDP is a competency-based, applied performance assessment system that expects adults to demonstrate their ability in a series of simulations that parallel job and life situations. Participants are evaluated against a criterion of excellence instead of by comparison with others. They take responsibility for acquiring instruction through existing community resources to achieve mastery of all the competencies required, plus an occupational or specialized skill.

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

Section 164.2 – Adult Literacy Education Aid

Description of Rule: The rule amends certain requirements for not-for-profit organizations applying for adult literacy education grants and deletes references to obsolete provisions.

Need for Rule: The rule is needed to provide not-for-profit organizations with increased flexibility in offering adult literacy education (ALE) programs, which are designated by the commissioner to serve persons who are receiving public assistance, who are unemployed, or who are economically or educationally disadvantaged, by deleting the 10-pupil minimum class size requirement and the requirement that ALE programs meet certain frequency and duration criteria set forth in section 168.3(b)(5) and (6), relating to Employment Preparation Education programs. This will extend eligibility for State aid to not-for-profit ALE providers serving small populations, such as in situations involving one-on-one tutoring or small groups of no more than 4 students, in which students receive between 1 to 3 hours of instruction per week. The rule also deletes obsolete references to section 167.3(b) and 167.4, which applied to programs funded under the federal Job Training Partnership Training Act, which Act was repealed by the Workforce Investment Act of 1998 (Pub.L. 105-220).

Legal Basis for Rule: Education Law § 207 and § 1 of Chapter 53 of the Laws of 2003.

Section 200.1(i) and (h) Definitions

Description of Rule: The rule corrected certain citations and terms and replaced references to the term “paraprofessional” with the term “supplementary school personnel” in the definitions of class size and paraprofessional.

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal No Child Left Behind (NCLB) Act (Public Law 107-110).

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4403(3) and 4410(13).

Section 200.2(b)(11)(iii) Written Policies of the Board of Education

Description of Rule: The rule replaced the reference to the term “paraprofessional” with the term “supplementary school personnel.”

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal NCLB Act (Public Law 107-110).

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4403(3) and 4410(13).

Section 200.2(h) Local Comprehensive System of Personnel Development (CSPD) Plan

Description of the Rule: The rule replaced the reference to the term “paraprofessional” with the term “supplementary school personnel”.

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal NCLB Act (Public Law 107-110). (The rule was amended in 2005 to repeal requirements for CSPD plans and to require that schools include professional development activities for professional staff and supplementary school personnel staff working with students with disabilities in the professional development plan pursuant to section 100.2 of the Commissioner’s Regulations.)

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4403(3) and 4410(13).

Section 200.4(e)(3)(ii) and (iii) Individualized Education Program (IEP) Implementation

Description of the Rule: The rule replaced references to the term “paraprofessional” with the term “supplementary school personnel.”

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal NCLB Act (Public Law 107-110).

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4403(3) and 4410(13).

Section 200.5(i)(3) Impartial Hearings

Description of the Rule: The rule clarified that the impartial hearing officer (IHO) may not accept appointment unless he or she is available to initiate the hearing within the first 14 days of being appointed; added that the hearing or a prehearing conference must be scheduled to begin within the first 14 days of the IHO's appointment, unless an extension is granted; added that the IHO may assist an unrepresented party by providing information relating only to the hearing process at all stages of the hearing and that nothing contained in the regulations is to be construed to impair or limit the authority of the IHO to ask questions of counsel or witnesses to clarify or complete the record; added that a prehearing conference with the parties may be scheduled, that such conference may be conducted by telephone, and that a transcript or a written summary of the prehearing conference must be entered into the record by the IHO; delineated the purposes of the prehearing conference; required, except as provided for in section 201.11, that each party must disclose to all other parties all evaluations completed by that date and recommendations based on the offering party’s evaluations that the party intends to use at the hearing at least five business days prior to a hearing; added that the IHO, wherever practicable, must enter into the record a stipulation of facts and/or joint exhibits agreed to by the parties; added that the IHO may receive any oral, documentary or tangible evidence except that the IHO must exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious and that the IHO may receive testimony by telephone, provided that such testimony must be made under oath and must be subject to cross examination; added that the impartial hearing officer may limit examination of a witness by either party whose testimony the IHO determines to be irrelevant, immaterial or unduly repetitious; added that the IHO may limit the number of additional witnesses to avoid unduly repetitious testimony; added that the IHO may take direct testimony by affidavit in lieu of in-hearing testimony, provided that the witness giving such testimony must be made available for cross examination; added that the IHO may receive memoranda of law from the parties not to exceed 30 pages in length, with typed material in minimum 12 point type (footnotes minimum 10 point type) and not exceeding 6 1/2 by 9 1/2 inches on each page, and added that each party will have up to one day to present its case unless the IHO determines that additional time is necessary for a full, fair disclosure of the facts required to arrive at a decision and that additional hearing days, if required, must be scheduled on consecutive days wherever practicable.

Need for Rule: The rule is necessary to prescribe procedures for the conduct of impartial hearings to comply with the Individuals with Disabilities Education Act (IDEA) and its implementing regulations.

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

Section 200.5(i)(4) Impartial Hearing Officer Decisions

Description of the Rule: The rule provides that in cases where extensions of time have been granted beyond the applicable required timelines, the decision must be rendered and mailed no later than 14 days from the date the IHO closes the record and the date the record is closed must be indicated in the decision; provides that each extension of time granted by the IHO must be for no more than 30 days; added that the IHO may grant a request for an extension only after fully considering the cumulative impact of the following factors: (a) the impact on the child’s educational interest or well-being which might be occasioned by the delay; (b) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; (c) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and (d) whether there has already been a delay in the proceeding through the actions of one of the parties; added that absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted because of school vacations, a lack of availability resulting from the parties' and/or representatives' scheduling conflicts, settlement discussions between the parties or other similar reasons and that the agreement of the parties is not a sufficient basis for granting an extension; added that the IHO shall respond in writing to each request for an extension and the response shall become part of the record; added that the IHO may render an oral decision to an oral request for an extension, but must subsequently provide that decision in writing and include it as part of the record, and for each extension granted, the IHO must set a new date for rendering his or her decision and notify the parties in writing of such date; provided that the IHO shall determine when the record is closed and notify the parties of the date the record is closed; required the decision to reference the hearing record to support the findings of fact and that the IHO attach to the decision a list identifying each exhibit admitted into evidence by date, number of pages and exhibit number or letter; and required the decision to include an identification of all other items the IHO has entered into the record.

Need for Rule: The rule is necessary to prescribe procedures for the conduct of impartial hearings to comply with the IDEA and its implementing regulations.

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

Section 200.6(g)(4)(i)-(iii) Special Class Size for Students with Disabilities

Description of the Rule: The rule replaced references to the term “paraprofessional” with the term “supplementary school personnel.”

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal NCLB Act (Public Law 107-110). (The rule was amended in 2007 to re-letter section 200.6(g) to section 200.6(h).)

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 4403(3) and 4410(13).

Section 200.9(f)(2)(x) Tuition Reimbursement Methodology-Integrated Special Class Programs

Description of the Rule: The rule replaced references to the term “paraprofessional” with the term “supplementary school personnel.”

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal NCLB Act (Public Law 107-110).

Legal Basis for Rule: Education Law sections 101(not subdivided), 207 (not subdivided), 4403(3) and 4410(13).

Section 200.16(h)(3)(iii)(b) Special Education Programs and Services-Special Classes

Description of the Rule: The rule replaced the reference to the term “paraprofessional” with the term “supplementary school personnel.”

Need for Rule: The rule is necessary to ensure consistency with the provisions of section 80-5.6 of the Commissioner’s Regulations and the provisions of the federal NCLB Act (Public Law 107-110). (The rule was amended in 2005 to re-letter section 200.16(h) to section 200.16(i).)

Legal Basis for Rule: Education Law sections 101(not subdivided), 207 (not subdivided), 4403(3) and 4410(13).

Agency Representative:

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

Ken Slentz

Deputy Commissioner of Education P-12

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

80-3.3, 80-3.7, 80-4.3 and 80-4.4 Individual evaluation and other requirements for teacher certification

Description of Rule: The rule establishes requirements for classroom teaching certification through the individual evaluation of candidates who have not completed registered teacher education programs, streamline examination requirements for candidates who already hold classroom teaching certification, establish coursework requirements for extensions and annotations of certificates, and remove unnecessary certification requirements. These new requirements apply to candidates who apply for certification in a classroom title after February 1, 2004.

Need for Rule: The amendment is needed to streamline the current examination requirements for the issuance of additional certificates to individuals already holding a classroom teaching certification. In such cases, candidates need only pass the content specialty test in the area for which application is made because they have already shown pedagogical competence through meeting requirements for the original certificate. It also is needed to require a candidate for the initial certificate under Option B in a specific career and technical subject to pass the communication and quantitative skills test, which is a necessary assessment for these candidates who do not hold a college degree.

The amendment is needed to remove unnecessary provisions in Commissioner's regulations. It removes requirements applicable to candidates who complete out-of-state teacher education programs that are not registered by the State Education Department and not offered by an institution that is a party to the interstate agreement on the qualifications of educational personnel. It also removes education requirements for candidates who already hold certification in another area. These provisions will not be needed because the new individual evaluation requirements will apply. Finally, the amendment is needed to remove 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 Department believes that these additional requirements are unnecessary and removing them will help alleviate the shortage of certified teachers in New York State.

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

Sections 80-1.2, 80-2.12, 80-2.13, 80-3.1, 80-3.5, 80-4.3, 80-5.6 and 80-5.13 – Technical Changes in Requirements for Certification in the Classroom Teaching Service.

Description of Rule: The rule clarifies and corrects omissions in the new requirements for the certification of teachers in the classroom teaching service that became effective on February 2, 2004.

Need for Rule: The rule is needed to clarify the applicability of the new certification requirements for the classroom teaching service, providing that the new certification requirements will apply to candidates who apply for certification on or after February 2, 2004, unless an exception is otherwise specifically set forth in the regulations. This is needed because a number of exceptions are stated in Part 80 that would permit candidates to meet the old requirements. These candidates already hold some type of certification, and are on the path to certification under the old requirements.

The rule is needed to provide that candidates in the alternative certification programs who applied and qualified for a transitional B certificate on or before February 1, 2004 will be eligible to obtain a provisional certificate, upon meeting the requirements for the provisional certificate. Those applying and qualifying for the transitional B certification after February 1, 2004 will have to apply for the initial certificate and meet the new requirements. This change is necessary as a matter of fairness to permit holders of the transitional B certificate who were already on track for obtaining a provisional certificate under the old requirements to obtain that certificate.

The rule is needed to update the name of the examination for teaching assistants, the "Assessment of Teaching Assistant Skills," and to specify the correct name for the examination required for an extension in bilingual education, the "bilingual extension assessment." In addition it is needed to clarify the language for the general science extension to indicate that study is required in "at least" two additional sciences, rather than in just two additional sciences.

Finally, the rule removes the requirement that a candidate for an extension in career awareness must hold a base teacher certificate in career and technical education. It also removes the requirement that holders of the transitional A certificate must be in a registered teacher education program. The transitional A certificates are in specific career and technical subjects within the field of agriculture, health or a trade (7-12) and are designed to permit career changes who hold an associate degree or high school education to enter the teaching field in these technical areas. The Department does not believe that either of the requirements proposed for removal are necessary.

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

Sections 80-1.3, 80-2.1, 80-3.8, 80-3.9 and 80-5.17 – Pathways to Certification in the Classroom Teaching Service.

Description of Rule: The rule clarifies and supplements the new requirements for the certification of classroom teachers that became effective on February 2, 2004.

Need for Rule: The rule is needed to clarify the citizenship requirement for certification consistent with recent statutory change. The rule implements the provisions of Education Law section 3001, which establishes exceptions to the citizenship requirement for teaching in the public schools of New York State. As permitted in section 3001 of the Education Law, the rule provides that a candidate who is not a citizen of the United States may qualify if the candidate is a lawful permanent resident of the United States. It also establishes a number of exceptions that would allow non-citizens to obtain time-limited teaching certificates.

The rule will permit candidates whose participation in a teacher preparation program was interrupted by active military service to have additional time to complete requirements under the teacher certification requirements in effect prior to February 2, 2004. This change is needed to accommodate such candidates who were on track for meeting the requirements for certification under the requirements that were in place at the time they were called to service for the country. The Department believes that these candidates should not be penalized for such service.

The rule renews two pathways to certification needed to meet teacher shortages. The first would permit licensed and registered speech-language pathologists to qualify for teaching certificates in speech and language disabilities (all grades) under an exception to the regular requirements. The second would permit certified out-of-state teachers to qualify for a "conditional" first level certificate, allowing holders two years to pass the New York State certification examination. Both pathways expired on February 1, 2004, and reinstatement is needed to meet teacher shortages.

The rule also permits individuals who were employed in a public school or other school requiring certification, as theater teachers for a prescribed period prior to February 2, 2004, to continue to teach without additional certification, provided the teacher holds a permanent certificate in the classroom teaching service. The new teacher certification requirements establish the new certificate title, theater (all grades). This title did not exist before February 2, 2004. The rule is needed as a matter of fairness to permit teachers who have recent employment as theater teachers to continue their employment.

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

Sections 3.47 and 100.10 – Requirements for the Conferral of a College Degree and the Home Instruction of Students of Compulsory Attendance Age and College Study.

Description of Rule: The rule establishes alternatives to the requirement that a candidate for a college degree hold a high school diploma, repeals the requirement that a student must have completed at least a four-year high school course or its equivalent prior to beginning degree study, requires students subject to compulsory education to obtain the approval of an appropriate school administrator prior to enrolling in college credit course work offered when the public school is in session, and establishes requirements relating to the home instruction of students of compulsory attendance age and college study.

Need for Rule: Currently, Regents Rules require candidates for a college degree to demonstrate that they have completed at least a four-year high school course or its equivalent, prior to obtaining the degree. The rule provides a number of alternative requirements that may be met instead of the holding of a high school diploma. Specifically, under the rule, the candidate for a degree who is beyond compulsory school age will be required to: hold a high school diploma, or have completed the equivalent of a four-year high school course as certified by the superintendent of schools or comparable chief school administrator, or hold a high school equivalency diploma, or have completed 24 semester hours of college course work in designated subjects, or have previously earned and been granted a college degree. The increasing variety of high school preparation, including by distance learning or through home instruction, has suggested that providing additional alternatives to the requirement that a candidate for a college degree hold a high school diploma would be helpful to students and colleges and universities in New York State. The requirements provide needed flexibility in the regulation, permitting the candidate for a degree to demonstrate preliminary education through a variety of means. The rule does not extend these alternatives to a candidate for a degree who is of compulsory school age. Such a candidate must demonstrate to the college that he or she holds a high school diploma, or has completed a four-year high school course, as certified by the superintendent of schools or comparable chief school administrator. This requirement is necessary because students of compulsory school age must be in high school or home schooled, unless they have already completed high school study, as signified by holding the high school diploma or the certification by the superintendent of schools of completion of the high school course. The rule removes the requirement that a student must complete at least a four-year high school course, or its equivalent, prior to beginning the course of study for a college degree. The Department does not believe this requirement is necessary because section 52.2(d) of the Commissioner's regulations already requires colleges to take into account the capacity of the student to undertake the program of study in their admission requirements for each degree program. In addition, the change is needed to resolve a conflict in the Rules of the Board of Regents and the Regulations of the Commissioner of Education. Section 100.7 of Commissioner's Regulations permits a student to earn a high school equivalent diploma through college study as a recognized candidate for a degree, but the provision proposed for repeal appears to prohibit that study. The rule also requires students who are subject to compulsory education requirements to present the college with written approval from an appropriate school administrator that enrollment in college credit courses is approved, prior to college enrollment. This requirement does not apply when the college credit course is offered in its entirety outside the normal instructional year or hours of session of the public schools of the district of residence. This change provides a necessary link between the college and the school district for students subject to compulsory education. It helps to safeguard that these students are meeting the requirements for compulsory school attendance. Finally, the rule establishes an additional content requirement for individual home instruction plans (IHIPs) for home-schooled students. It requires the IHIP to include a statement regarding whether or not the child will enroll in college-level course work as part of the child's instruction and the subjects to be covered by such course work. This is needed to enable a home-schooled student subject to compulsory education requirements to easily demonstrate to the college that college-level study is authorized by the school district.

Legal Basis for Rule: Education Law § § 207, 210, 218(1), 224(4), 3204(2), 3205(1), (2) and (3), 3210(2)(d), 3212(2)(d) and 3234(1).

Sections 80-3.6, 80-4.1, 80-4.3, 83.1, 83.3, 83.5, 87.5 and 87.6 – Title of the Executive Director of the Office of Teaching Initiatives and the Extension in Gifted Education of a Teaching Certificate.

Description of Rule: The rule updates the title of the head of the State Education Department’s Office of Teaching Initiatives in various provisions of the Regulations of the Commissioner of Education and defers implementation of the effective date of the requirement for a gifted education extension of a teaching certificate.

Need for Rule: The rule is needed to conform the Regulations of the Commissioner of Education to changes made in the organization of the Office of Higher Education. Specifically, the former title of Executive Coordinator of the Office of Teaching has been changed to Executive Director of the Office of Teaching Initiatives. The rule updates references to this title in provisions of the Regulations of the Commissioner of Education relating to professional development for teachers holding a professional certificate, teacher moral character proceedings, and proceedings for the denial of clearance for employment or certification based upon a criminal history check. The rule is also needed to delay until September 1, 2005 the requirement that a teacher must hold a gifted education extension of a teaching certificate, or have obtained from the Department a statement of continued eligibility based upon employment in this field, in order to provide education for gifted pupils within a gifted and talented program which is funded pursuant to Education Law and in accordance with Part 142 of the Commissioner's Regulations. At the present time, there are insufficient options available for candidates to take the course work they need to have completed for this extension. Only eight colleges offer registered programs leading to the extension in gifted education. Currently, the Office of Higher Education is encouraging additional colleges across the State to offer the course work for the extension. The delay in the effective date is needed to permit colleges time to develop and offer the course work and candidates additional opportunities to complete it.

Legal Basis for Rule: Education Law § § 207, 305(1), (2), and (7), 3001(2), 3004(1), 3004-c, 3006(1)(b), 3009(1), 3010 and 3035(3).

Sections 80-2.11, 80-5.18 and 80-5.19 – Creation of a supplementary certificate in the classroom teaching service and relocation of the requirements for teachers of adult, community and continuing education.

Description of Rule: The rule establishes a new teaching certificate, the supplementary certificate, to enable a teacher certified in one classroom teaching title, upon meeting prescribed requirements, to provide instruction in a different title in the classroom teaching service for which there is a demonstrated shortage of certified teachers; and to relocate existing requirements for teachers of adult, community and continuing education to another section of Commissioner's regulations.

Need for Rule: The rule is needed to facilitate the State’s ability to address persistent shortages of certified teachers in certain subject matter areas, including but not limited to mathematics, the sciences, bilingual education, and special education, and in certain geographic areas of the State. The rule creates a practical mechanism for certified teachers in areas of oversupply to earn additional certificates in areas of need. The rule prescribes clearly defined standards to ensure the quality of the education and experience of teachers certified by this route. The rule is designed to support the Department’s continuing efforts to certify a sufficient number of properly qualified candidates to fill vacant teaching positions in the State’s public schools. The supplementary certificate will be valid for three years from its effective date and will not be renewable. This certificate will be limited to employment with an employing entity. The option to obtain the supplementary certificate will expire on September 1, 2009. The rule is also needed to relocate the existing requirements for teachers of adult, community and continuing education to a more appropriate section of the Regulations of the Commissioner of Education. The rule moves these requirements from section 80-2.11 to section 80-5.19 in a Subpart that deals with specialized credentials.

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

Section 120.6 – Qualifications for teachers and paraprofessionals under the No Child Left Behind Act of 2001.

Description of Rule: The rule incorporates by reference requirements of the No Child Left Behind Act of 2001 (NCLB) relating to qualifications of teachers and paraprofessionals in order to ensure that local educational agencies are in compliance with this Federal law. The rule will provide an underlying legal basis in State regulation for the State Education Department's guidance to local educational agencies (school districts, boards of cooperative educational services, county vocational education and extension boards, and charter schools) on the NCLB requirements. The State Education Department has issued guidance documents to local educational agencies on this topic, and plans to continue to provide guidance on how local educational agencies may meet the requirements of the NCLB.

The NCLB requires teachers of core academic subjects to be "highly qualified." The NCLB defines what this means, and provides that a teacher of core academic subjects who is not new to the profession may meet the requirement to be highly qualified, in part, through passing a high objective uniform State standard of evaluation (HOUSSE). The State Education Department has prescribed a HOUSSE for New York teachers of core academics who are not new to the profession. The HOUSSE is to be conducted by the local educational agency either during a pre-employment review or at the time of a teacher's annual review.

Need for Rule: The rule is needed to require a local educational agency to provide a teacher of core academic subjects who is not new to the profession the opportunity to meet the NCLB requirement to be highly qualified, in part, through passing the HOUSSE. Without the HOUSSE, New York State could have difficulty complying with NCLB's teacher quality requirements. This rule will ensure that local educational agencies use the HOUSSE when needed so that New York State will be in compliance with this Federal law.

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

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 64.7 of the Commissioner’s Regulations - Nursing

Description of Rule: This rule establishes requirements governing the execution by registered professional nurses of non-patient specific orders of licensed physicians or certified nurse practitioners to administer purified protein derivative (PPD) mantoux tuberculin skin tests

Need for Rule: The rule is necessary to implement statutory requirements.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504 (not subdivided), 6506(1), 6507(2)(a), 6527(6)(c), 6909(4)(d) and (5).

Section 73.5 of the Commissioner's Regulations - Chiropractic

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

Need for Rule: The rule is necessary to implement statutory requirements.

Legal Basis for the Rule: Education Law sections 207(not subdivided), 212 (3), 6502(1), 6504(not subdivided), 6507(2)(a), 6508(1), and 6554-a.

Sections 52.30, 74.1, 74.2, 74.3, 74.4, 74.5, 74.6, 74.7, and 74.8 of the Commissioner's Regulations – Social Work

Description of Rule: The rule sets forth requirements for licensure in the profession of social work, requirements for an authorization qualifying licensed clinical social workers for insurance reimbursement, and requirements relating to the supervision of licensed master social workers who provide licensed clinical social work services and for baccalaureate social workers who provide licensed master social work services.

Need for Rule: The rule is necessary to implement statutory requirements. Some of the sections have been amended since the 2004 amendment to make necessary adjustments.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 6501(not subdivided), 6507(2)(a) and (3)(a), 7701(1)(d), 7704(1)(b) and (d) and (2)(b), (c), and (d), 7705(1), 7706(2) and (3), and 7707(4).

Sections 65.6 and 65.7 of the Commissioner’s Regulations - Podiatry

Description of Rule: The rule implements section 7006(4) of the Education Law by establishing the requirements pursuant to which an unlicensed assistant providing supportive services to a licensed podiatrist may x-ray a patient's foot, while under the direct supervision of the licensed podiatrist, provided that the unlicensed assistant has completed an acceptable course of study, the content of which is set forth in the rule.

Need for Rule: The rule is necessary to implement statutory requirements.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a), and 7006(4).

Section 61.18 of the Commissioner's Regulations - Dentistry

Description of Rule: The rule adjusts the requirements for the residency option pathway for dental licensure by deleting an unnecessary provision that required the dental residency program to be completed within a time frame of two years prior to application for licensure.

Need for Rule: The rule is needed as it has been determined that the originally imposed two year time frame is unnecessary, as the regulation contains other requirements that adequately verify that the applicant has completed the residency program and other licensed professions do not have similar time frames for completing residency programs.

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

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

Sections 185.5 and 185.12 - Local Government Records Management.

Description of Rule: The rule revises Records Retention and Disposition Schedule ED-1 to make needed changes and additions to minimum retention periods for records of school districts, boards of cooperative educational services, county vocational education and extension boards, and teacher resource and computer training centers.

Need for Rule: Section 57.25(2) of Arts and Cultural Affairs Law requires the commissioner of education to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules constitutes formal consent by the commissioner to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. The 2004 revisions to the rule make necessary changes and additions to ensure that concerned local governments have up-to-date standards for records retention and disposition.

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

Agency Representative:

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

Jeffrey W. Cannell

Deputy Commissioner for Cultural Education

State Education Department

Cultural Education Center

Room 10A33

Albany, NY 12230

(518) 474-5976

OFFICE OF MANAGEMENT SERVICES

Sections 3.2 and 4-1.5 – Standing Committees of the Board of Regents.

Description of Rule: The rule conforms the Rules of the Board of Regents to a recent reorganization of the committee structure of the Board of Regents, which merged the Committee on Higher and Professional Education and the Committee on Professional Practice, and merged the Committee on Elementary, Middle, Secondary and Continuing Education and the Committee on Vocational and Educational Services for Individuals with Disabilities.

Need for Rule: The rule is needed to ensure that the Board of Regents may more effectively meet its statutory responsibilities. The Committee on Higher and Professional Education and the Committee on Professional Practice have been merged into a Committee on Higher Education and Professional Practice. The Committee on Elementary, Middle, Secondary and Continuing Education and the Committee on Vocational and Educational Services for Individuals with Disabilities have been merged into a Committee on Elementary, Middle, Secondary and Continuing Education and Vocational and Educational Services for Individuals with Disabilities. This will reduce the time spent by members of the Board of Regents in committee meetings, reduce paperwork and multiple review of items, provide for the efficient review of numerous priority issues that otherwise overlap existing committee functions, and thereby permit the Regents to devote more time to full Board discussion of policy issues.

Legal Basis for Rule: Education Law § 207.

Sections 187.1, 187.2 and 187.3 – Inspection and Copying of Department Records.

Description of Rule: The rule conforms the Commissioner’s Regulations regarding Freedom of Information Law (FOIL) procedures to a Court decision interpreting Public Officers Law section 89(3); and to update the address of the Department’s records access officer and the addresses of several regional offices designated to receive requests for inspection and copies of Department records.

Need for Rule: The rule is needed to conform the Commissioner's Regulations to Public Officers Law section 89(3) and the regulations promulgated by the Committee on Open Government, consistent with the holding in Lecker v. New York City Board of Education, 157 AD2d 486 (1st Dept). In that decision, the Court upheld a determination by the Supreme Court, New York County, that denied petitioner's application for an order directing the New York City Board of Education to amend its regulations relating to FOIL to require the Board of Education to either grant or deny access to its records within 10 days after acknowledgment of receipt of the request for records. While noting that this requirement was contained in the regulations promulgated by the Committee on Open Government (21 NYCRR 1401.5[d]), the Court determined that such regulation was invalid as inconsistent with Public Officers Law section 89(3), which contains no such time limitation but merely requires that the person requesting a record be furnished with a statement of the "approximate date when such request will be granted or denied." The Committee on Open Government subsequently amended section 1401.5 to remove the 10-day requirement. The amendment to section 187.4 of the Commissioner's Regulations removes identical language imposing such 10-day requirement.

In addition, the amendments to sections 187.1 and 187.2 are necessary to update references to the address of the Department's records access officer and the addresses of several regional offices designated to receive requests for inspection and copies of Department records.

Legal Basis for Rule: Education Law sections 207, 305(6) and Public Officers Law sections 87(1)(b) and 89(3).

Part 221 – Education Department Staff

Description of Rule: The rule deletes obsolete provisions relating to leaves of absence for State Education Department employees.

Need for Rule: The rule is needed to delete obsolete provisions that have been superceded by provisions in the Civil Service Law, federal law or collective bargaining agreements.

Legal Basis for Rule: Education Law sections 101, 207, 305(1) and (6).

Agency Representative:

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

Richard J. Trautwein

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

Sections 200.5, 200.6 & 200.7 – Judicial Review of the Determination of the State Review Officer

Description of Rule: The rule aligns State regulations with section 4403(3) of the Education Law, as amended by Chapter 492 of the Laws of 2003, to ensure that a judicial appeal of a decision of the State review officer is by means of a proceeding in State Supreme Court pursuant to Article 4 of the Civil Practice Law and Rules.

Need for Rule: The rule is necessary to align the Commissioner's Regulations with Education Law section 4404(3), as amended by Chapter 492 of the Laws of 2003. Chapter 492 amended section 4404(3) to provide that judicial review of the final determination or order of a State Review Officer be conducted in a proceeding pursuant to Article 4 of the Civil Practice Law and Rules (CPLR) rather than pursuant to Article 78 of the CPLR. Judicial review under CPLR Article 4 ensures the State's compliance with the federal Individuals with Disabilities Education Act (IDEA) and its implementing regulations, which require that a review of the final determination or order be made on the entire record, with any additional evidence heard at the request of the party, and be based upon a preponderance of the evidence.

Legal Basis for Rule: Education Law sections 101, 207, 4403(3) and 4404(3), and Chapter 492 of the Laws of 2003.

Part 279.12 – State-Level Review of Impartial Hearing Officer Determinations

Description of Rule: The rule conforms the Regulations to the Federal Individuals with Disabilities Education Act (IDEA) and 34 CFR section 300.511, by deleting a provision authorizing the State Review Officer to extend the timelines for issuing a decision to allow additional time to review an extensive record on appeal.

Need for Rule: The U.S. Department of Education has notified the State Education Department that this provision is out of compliance with CFR section 300.511.

Legal Basis for Rule: Education Law sections 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 rules 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 1999

OFFICE OF P-12 EDUCATION

Section 100.2(m) - Local Assistance Plans

Description of Rule: Section 100.2(m) of the Commissioner’s Regulations specifies the requirements for public school reporting, including dissemination of public school report cards to the public and parents. The regulation also requires that school districts develop Local Assistance Plans for those schools that perform below benchmarks established by the Commissioner on selected State assessments.

Need for Rule: The regulation is intended to satisfy the public school reporting requirements of the No Child Left Behind (NCLB) Act, 20 USC section 6311(h)(2), and achieve the Regents goal that all educational institutions will meet Regents high performance standards. The regulations were last amended in August 2003 to bring them into alignment with the requirements of NCLB.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 305(1), (2) and (19) and 309(not subdivided).

Section 100.2(p) - Schools Under Registration Review

Description of Rule: Section 100.2(p) of the Commissioner’s Regulations specifies the State’s system for registration of public schools and school/district accountability. The regulations delineate the process for registration and revocation of registration of pubic schools, the criteria used to hold schools and districts accountable for student performance, the actions to be taken when schools or districts fail to meet standards and the process for recognizing high performing or rapidly improving schools and districts.

Need for Rule: The regulation is necessary to meet the requirements of the No Child Left Behind (NCLB) Act, 20 USC section 6316, relating to school and district accountability and achieve the Regents goal that all educational institutions will meet Regents high performance standards. The regulations were last amended in August 2003 to bring them into alignment with the requirements of NCLB.

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

Part 119- Charter schools

Description of Rule: The rule describes the manner in which payments due to charter schools by public school districts are paid, and if necessary, recovered by the State, and the manner in which charter schools may provide retirement benefits for their employees.

Need for Rule: The rule is necessary to implement statutory requirements by establishing standards for the calculation of school district obligations to charter schools and the manner in which unpaid obligations will be recovered by the State for payment to charter schools. The rule also establishes standards for participation in public employee retirement systems by those charter schools electing to do so.

Legal Basis for Rule: Education Law section 207(not subdivided), 2854(c) and 2856(1) and (2), and Chapter 4 of the Laws of 1998.

Sections 155.1-155.21 - Comprehensive Public School Safety Program

Description of Rule: Sections 155.1-155.21 specify requirements for school districts to properly maintain, manage and improve public school facilities in order to provide sound educational environments for New York State's students, including the preparation of a five-year capital facilities plan that is updated annually; structural safety inspections; annual visual inspections; compliance with the Uniform Safety Standards for School Construction and Maintenance Projects and the Uniform Code of Public School Building Inspections, Safety Rating and Monitoring, and Comprehensive Public School Safety Program.

Need for Rule: The regulations are necessary to comply with Chapters 56 and 58 of the Laws of 1998.

Legal Basis for Rule: Education Law sections 207(not subdivided), 409-d(1) and (2), 409-e(1) through (4), 3602(3)(b) and 3641(4) and section 1 of Part B of Chapter 56 and sections 13 and 48 of Chapter 58 of the Laws of 1998.

Sections 100.1-100.9 - State Learning Standards and Assessments and Graduation and Diploma Requirements

Description of Rule: Sections 100.1-100.9 specify the State learning standards, the program and unit of study requirements and the assessment requirements for students at the elementary, middle and high school levels, including the requirements for high school graduation and earning a diploma.

Need for Rule: These regulations implement policy adopted by the Board of Regents.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 208(not subdivided), 209(not subdivided), 210(not subdivided), 212(3), 215(not subdivided), 305(1) and (2), 308(not subdivided), 309(not subdivided), 911(not subdivided), 3204(2-a) and 4403(3).

Sections 154.2 through 154.5 - Limited English Proficiency

Description of Rule: Sections 154.2-154.5 specify the plan and program requirements for districts claiming State aid for the operation of programs for pupils with limited English proficiency.

Need for Rule: The rule requires school districts that are claiming State aid for the instruction of students with limited English proficiency (LEP) to increase the amount of time for English language instruction to strengthen and improve bilingual education and freestanding English as a second language programs to help LEP students meet Regents standards and pass the new State Assessments. The regulations were amended in April 2003 to conform to the accountability provisions of the federal No Child Left Behind Act and to establish criteria for the identification and assessment of students with limited English proficiency through the use of the Language Assessment Battery-Revised test and the New York State English as a Second Language test.

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

Sections 154.4(a) and 154.5 - Students with Limited English Proficiency

Description of Rule: The Rule allows schools with students with limited English proficiency in grades 7-12 a one year extension to the 2000-2001 school year to implement the additional English language requirements.

Need for Rule: The amendment to section 154.4(a) was necessary to extend until September 1, 1999, the deadine for submission of the plan prescribed in section 154.4(a) that describes how the additional time requirements for English language instruction will be implemented in their free-standing English as a second language and bilingual education programs during the 1999-2000 and 2000-2001 school years. The rule also specified that the additional time requirements for English language instruction set forth in section 154.2(f) and (g) be implemented in 1999-2000 for grades 7-12 and in 2000-2001 for grades K-6. The addition of section 154.5 established a procedure to grant a one-year extension to certain schools with LEP students in grades 7-12 to the 2000-2001 school year, to implement additional time requirements for English language instruction in their bilingual and free- standing English as a second language programs contained in subdivisions 154.2(f) and (g).

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

Section 200.1 Definitions

Description of Rule: The rule amended or added the following definitions relating to special education: adapted physical education, assistive technology device, assistive technology service, change in placement, child’s teacher, consent, consultant teacher, days, functional behavioral assessment, general curriculum, individualized education program, mediator, native language, parent, parent counseling and training, preschool student with a disability, prior notice, regular education teacher, related services, school health services, special class, specially designed instruction, special education, special education provider, special education teacher, student with a disability and travel training.

Need for Rule: The rule is needed in order to ensure compliance with federal regulations 34 CFR sections 300.5, 300.6, 300.7, 300.8, 300.9, 300.16, 300.19, 300.20, 300.24, 300.26, 300.15 and 300.571.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1) - (11), 4403(3) and 4410(13).

Section 200.2 Board of Education Child Find Responsibilities

Description of Rule: The rule amended the requirements relating to procedures to locate, identify and evaluate all nonpublic private school students with disabilities.

Need for Rule: The rule is needed in order to ensure compliance with 34 CFR section 300.454.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1) - (11), 4403(3) and 4410(13).

Section 200.2(b) Written Policies of the Board of Education

Description of Rule: The rule added a requirement that the board of education adopt policies to ensure that students with disabilities be involved in and progress in the general education classes; establish a plan and policies for implementing schoolwide approaches and prereferral interventions prior to a referral for special education; and establish plans and policies for the appropriate declassification of students with disabilities.

Need for Rule: The rule is needed to align State regulations to State law which requires that schools provide prereferral supports and services to ensure appropriate referrals of students who need special education.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1) - (11), 4403(3), 4410(13) and 4402(b)(3) as amended by Chapter 405 of the Laws of 1999.

Section 200.2(c) District Plans

Description of Rule: The rule repealed the requirement for district plans for the period September 1, 1996 to September 1, 1998.

Need for Rule: The rule was no longer applicable as those dates had passed.

Legal Basis for Rule: Education Law sections 207(not subdivided), 3602, 4401(1) - (11), 4403(3), 4410(13).

Section 200.2(h) Local Comprehensive System of Personnel Development (CSPD) Plan

Description of Rule: The rule adds the requirement for each board of education to annually submit to the State Education Department a plan that demonstrates that all personnel providing services to students with disabilities are adequately trained.

Need for Rule: The rule is needed to ensure compliance with 34 CFR section 300.135, which requires that the State have in effect a comprehensive system of personnel development.

Legal Basis for Rule: 34 CFR section 300.135 and Education Law sections 207(not subdivided), 4401(1) - (11), 4402, 4403(3) and 4410(13).

Section 200.3 Committees on Special Education

Description of Rule: The rule amends the required membership of the Committee on Special Education (CSE), Committee on Preschool Special Education (CPSE) and the Subcommittee on Special Education to add members required by federal law and to provide that a parent of a student may decline the participation of the additional parent member.

Need for Rule: The rule is necessary to conform to federal regulations and State law relating to membership of the CSE, CPSE and Subcommittees.

Legal Basis for Rule: 34 CFR section 300.344 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402(1)(b), 4403(3) and 4410(3).

Section 200.4(a) Referrals for Special Education Services

Description of Rule: The rule was amended relating to the withdrawal of a referral for special education to add that the building administrator and the parent could meet to determine if additional general education support services, including academic intervention services, could be provided to the student as an alternative to special education.

Need for Rule: The rule is necessary to align State regulations with Education Law section 4402 as amended by Chapter 405 of the Laws of 1999.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1)-(11), 4401-a as amended by Chapter 405 of the Laws of 1999, 4403(3) and 4410(13).

Section 200.4(b) Individual Evaluation

Description of Rule: The rule was amended to add that the individual evaluation include a variety of assessment tools and strategies, including information provided by the parent, to gather relevant functional and developmental information about the student and information related to enabling the student to participate and progress in the general education curriculum; and to add that the evaluation must include a functional behavioral assessment for a student whose behavior impedes his or her learning or that of others.

Need for Rule: The rule is needed to conform State regulations to federal regulations relating to the required components of evaluations.

Legal Basis for Rule: 34 CFR section 300.532 and Education Law sections 207(not subdivided), 4401(1)-(11), 4403(3) and 4410(13).

Section 200.4(b)(4) and (5) Initial and Reevaluations

Description of Rule: The rule amended the requirements relating to the determination of needed evaluation data for initial and reevaluations of students with disabilities.

Need for Rule: The rule is needed to align State regulations to federal regulations in 34 CFR section 300.533.

Legal Basis for Rule: 34 CFR section 300.533 and Education Law sections 201(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Section 200.4(b)(6) Evaluation Procedures

Description of Rule: The rule was amended to add that evaluations be administered by individuals who are knowledgeable about the test or procedures; that assessments not conducted under standard conditions must include a description of how the administration varied from standard administration; that no single procedure be used to determine a student’s eligibility for special education; that evaluations must be comprehensive and use technically sound instruments; that assessment tools and strategies are used that provide relevant information to determine a student’s educational needs; that a copy of the evaluation report be provided to the student’s parent; that the procedures for evaluating students suspected of having a learning disability must be consistent with federal regulations; and that the procedures for conducting expedited evaluations must meet the requirements of section 201.6 of the Regulations of the Commissioner.

Need for Rule: The rule is necessary to conform to federal regulations in 34 CFR sections 300.532, 300.534 and 300.535.

Legal Basis for Rule: 34 CFR sections 300.532, 300.534 and 300.535 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13) of the Education Law.

Section 200.4(c) Eligibility Determinations

Description of Rule: The rule adds requirements relating to eligibility determinations for a student with a disability that the parent must be given a copy of the evaluation report and the documentation of eligibility; that a student may not be determined eligible for special education if the determinant factor is lack of instruction in reading or math or limited English proficiency; that a school must evaluate a student prior to declassification (which does not include prior to graduation or aging out).

Need for Rule: The rule is necessary to conform State regulations with federal regulations in 34 CFR section 300.534.

Legal Basis for Rule: 34 CFR section 300.534 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.4(d) IEP Recommendations

Description of Rule: The rule adds that, in developing the IEP, the Committee must consider the results of the initial or most recent evaluation, the student’s strengths, the concerns of the parents, the student’s results on State or districtwide assessments and other special considerations. The rule also adds that the IEP must include program modifications or supports for school personnel; testing accommodations a student needs in the administration of district-wide assessments and, consistent with Department policy, State assessments; and a statement of a particular device or service a student needs to receive a free appropriate public education.

Need for Rule: The rule is necessary to conform State regulations to federal regulations in 34 CFR section 300.346.

Legal Basis for Rule: 34 CFR 300.346 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.4(d)(4) IEP Development

Description of Rule: The rule added a requirement that a school district use other methods to ensure participation by the private school or facility, such as individual or conference telephone calls, to ensure private school participation in an IEP meeting; and repeals the requirement that the Committee ensure the participation of a person knowledgeable about the individual evaluation conducted and the evaluation results for a student with a disability who has been evaluated for the first time.

Need for Rule: The rule regarding participation by private school representatives is necessary to conform to federal regulations in 34 CFR section 300.349. The rule regarding participation of a person knowledgeable about the evaluation is necessary to align State regulations to federal regulations in 34 CFR section 300.344, which requires each Committee meeting to include an individual who can interpret the instructional implications of evaluation results.

Legal Basis for Rule: 34 CFR sections 300.344 and 300.349 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.4(d)(4)(c) Least Restrictive Environment

Description of Rule: The rule added that, in selecting the least restrictive environment, consideration must be given to any potential harmful effect on the student or on the quality of services that he or she needs; and that a student with a disability may not be removed from education in age-appropriate regular classrooms solely because of needed modifications in the general curriculum.

Need for Rule: The rule is necessary to align State regulations to federal regulations in 34 CFR section 300.552.

Legal Basis for Rule: 34 CFR section 300.552 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.4(e) IEP Implementation

Description of Rule: The rule was amended to add that there may be no delay in implementing a student’s IEP, including any case in which the payment source for providing or paying for special education to the student is being determined; and that teachers and other providers must have access to a copy of the student’s IEP. (This later rule was amended in 2003 consistent with Chapter 408 of the Laws of 2003.)

Need for Rule: The rule is necessary to ensure IEP implementation in a timely manner consistent with the requirements in 34 CFR sections 300.301 and 300.342.

Legal Basis for Rule: 34 CFR sections 300.301 and 300.342 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.4(e) Annual Review and Reevaluations

Description of Rule: The rule was amended to require that a student’s placement in the least restrictive environment be a consideration in the annual review and that the results of any reevaluation must be addressed by the CSE or CPSE in a meeting.

Need for Rule: The rule is necessary to align State regulations with federal regulations in 34 CFR sections 300.346, 300.535, 300.536 and 300.552.

Legal Basis for Rule: 34 CFR sections 300.346, 300.535, 300.536 and 300.552 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.4(g) IEP for a Student Placed in a Child Care Institution by other Agency

Description of Rule: This rule amended the requirements for IEP information developed by the school district where the student last attended.

Need for Rule: This rule is necessary to be consistent with amended section 200.4(d) of the Regulations of the Commissioner of Education.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.5 Due Process Procedures

Description of Rule: This rule repealed section 200.5 and replaced it with a new section 200.5 relating to prior notice, consent, notice of meetings, parent participation in CSE meetings, confidentiality of personally identifiable data, procedural safeguards notice, independent educational evaluations, mediation, impartial hearings, appeal to a State review officer of the State Education Department, State complaint procedures and surrogate parents.

Need for Rule: The rule is necessary to align State regulations with federal law and regulations.

Legal Basis for Rule: 34 CFR sections 300.500 through 300.515 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3), 4404, 4404-a and 4410(13).

Section 200.6(a) Continuum of Services

Description of Rule: The rule was amended to add that special education services could be provided in a general education class.

Need for Rule: The rule was necessary to clarify that special education includes services that could be provided in a student’s general education classes to ensure a student’s placement in the least restrictive environment.

Legal Basis for Rule: 34 CFR sections 300.550 through 300.552 and Education Law sections 207(not subdivided), 4401(1) - (11), 4402, 4403(3) and 4410(13).

Section 200.6(d) Consultant Teacher Services

Description of Rule: The rule was amended to repeal the requirement that a student with a disability be enrolled full-time in general education classes in order to be provided consultant teacher services and to make a technical change to replace the term “occupational education” with “career and technical education.”

Need for Rule: The rule was necessary to ensure students with disabilities are able to receive consultant teacher services, as appropriate, in combination with other special education services such as resource room and related services.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.6(e) Related Services

Description of Rule: The rule was amended to add that the location of the related services must be documented on the IEP.

Need for Rule: The rule is necessary to align State regulations with federal regulations at 34 CFR section 300.347.

Legal Basis for Rule: 34 CFR section 300.347 and Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Section 200.6(g) Special Classes

Description of Rule: The rule was amended to add that a variance from the special class sizes for middle and secondary students can be implemented to the extent authorized by law, repealing references to the school years 1995-96 and 1996-97. The rule also added that a special class with 15 students in New York City could only be increased by one additional student through this variance process.

Need for Rule: The rule was necessary since the variance is applicable only to the extent that the Legislature extends the sunset provision and to comply with changes to State law. Therefore, any reference to a particular year required an annual amendment to State regulations.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4402(2)(d) and (6), 4403(3) and 4410(13).

Section 200.6(h) Home and Hospital Instruction

Description of Rule: The rule adds that a student with a disability on home and/or hospital instruction must receive instruction and related services as recommended on the IEP and that a student shall only be recommended for home and/or hospital instruction if that is the least restrictive environment for the student.

Need for Rule: The rule is necessary to ensure that the CSE considers the least restrictive environment and the unique needs of a student with a disability when making a home or hospital instruction recommendation.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.7 Approval of Private Schools for Students with Disabilities

Description of Rule: The rule was amended to add that the school conduct and discipline procedures in an approved school, a State-operated school and a State-supported school must be consistent with section 100.2(l) and Part 201 of the Commissioner’s Regulations.

Need for Rule: The rule is necessary to conform to federal regulations 34 CFR sections 300.401 and 300.519 through 300.529.

Legal Basis for Rule: 34 CFR sections 300.401 and 300.519 through 300.529 and Education Law sections 207(not subdivided), 3214(3)(c), 4402, 4403(3) and 4410(13).

Section 200.7 State-Operated Schools

Description of Rule: The rule is amended to conform the required members of the multidisciplinary team of a State-operated school to the required members in federal regulations 34 CFR section 300.344 and to add that a parent of a child in a State-operated school may request mediation to resolve a dispute.

Need for Rule: The rule is necessary to ensure compliance with federal regulations 34 CFR sections 300.344 and 300.506.

Legal Basis for Rule: 34 CFR sections 300.344 and 300.506 and Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.8 State Assistance for Instruction of Students with Disabilities

Description of Rule: The rule was amended to make technical corrections to cross citations; to clarify the term “days” consistent with the amended definition in section 200.1 of the Commissioner’s Regulations; and to replace the term “triennial evaluation” with the term “reevaluation.”

Need for Rule: The rule is necessary to make technical corrections as a result of amendments to other sections of the regulations.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4402, 4403(3) and 4410(13).

Section 200.16(c) Individual Evaluation - Preschool Students with Disabilities

Description of Rule: The rule was amended to make technical corrections to cross citations and certain terms; to add that the summary report of the evaluation not include a recommendation as to location of services; to repeal the requirement that the parent must request the approved evaluator to provide the parent with a copy of the evaluation summary and to ensure that for purposes of eligibility and continuing eligibility determinations, the CPSE must provide a copy of the evaluation report and the documentation of eligibility to the parent.

Need for Rule: The rule is necessary to conform State regulations to 34 CFR section 300.534.

Legal Basis for Rule: 34 CFR section 300.534 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Section 200.16(d) Recommendation – Preschool Student with a Disability

Description of Rule: The rule was amended to make technical corrections to cross citations and certain terms and to add that the board of education must notify the parent if it sends the recommendation back to the CPSE.

Need for Rule: The rule is necessary to correct cross citations and ensure State regulations conform to State law.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Section 200.16(e) Annual Review – Preschool Student with a Disability

Description of Rule: The rule was amended to correct certain cross citations and terms.

Need for Rule: The rule is necessary to align cross citations with amended sections in the Regulations.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Section 200.16(g) Procedural Due Process – Preschool Student with a Disability

Description of Rule: The rule was amended to require that a procedural safeguards notice be provided to a parent upon initial referral, each notification of an IEP meeting, upon reevaluation of the child and upon receipt of a request for an impartial hearing; and to require that the notice upon initial referral must request consent to the proposed evaluation and advise the parent of the right to consent or withhold consent to the evaluation and initial provision of services to a student not previously identified, and indicate that if the parent does not provide such consent, no further action will be taken by the CPSE until consent is obtained.

Need for Rule: The rule is necessary to clarify procedural safeguards and notice requirements as they relate to preschool students with disabilities.

Legal Basis for Rule: 34 CFR sections 300.500 through 300.505 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Section 200.16(g)(3) Notice of Meetings – Preschool Student with a Disability

Description of Rule: The rule was amended to require that a notice of a CSE meeting be provided consistent with section 200.5 of the Commissioner’s Regulations.

Need for Rule: The rule is necessary to ensure the meeting notice is provided in accordance with section 200.4(c) of the Commissioner’s Regulations.

Legal Basis for Rule: 34 CFR section 300.345 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Section 200.16(g)(7) Mediation – Preschool Student with a Disability

Description of Rule: The rule is amended to add that the board of education must ensure that mediation sessions are available to the parent of a preschool child.

Need for Rule: The rule is necessary to ensure compliance with 34 CFR section 300.506 and section 4404-a of the Education Law.

Legal Basis for Rule: 34 CFR section 300.506 and Education Law section 207(not subdivided), 4403(3) and 4404-a of the Education Law.

Section 200.16(g)(10) State Complaints – Preschool Student with a Disability

Description of Rule: The rule was amended to add to the procedural safeguards for preschool students that State complaint investigations shall be conducted in accordance with section 200.5(m) of the Commissioner’s Regulations.

Need for Rule: The rule is necessary to ensure compliance with federal regulations in 34 CFR sections 300.660 through 300.662.

Legal Basis for Rule: 34 CFR sections 300.660 through 300.662 and Education Law sections 207(not subdivided), 4403(3) and 4410(13).

Section 200.6(h) Continuum of Services – Preschool Student with a Disability

Description of Rule: The rule was amended to correct certain cross citations and terms.

Need for Rule: The rule is necessary to align this section with other amended sections of the Commissioner’s Regulations.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1)-(11), 4402, 4403(3) and 4410(13).

Section 200.20 Approval, Operation and Administration of Preschool Programs

Description of Rule: The rule was amended to correct certain cross citations and the name of the State’s special education office.

Need for Rule: The rule is necessary to align this section with other amended sections of Part 200 of the Commissioner’s Regulations.

Legal Basis for Rule: Education Law sections 207(not subdivided), 4401(1)-(11), 4202, 4403(3) and 4410(13).

Part 201 – Procedural Safeguards for Students with Disabilities Subject to Discipline

Description of Rule: The rule was added to define terms relating to disciplinary actions of students with disabilities; to establish the requirements for CSEs to conduct functional behavioral assessments and develop and implement behavioral intervention plans for students with disabilities; to establish the requirements for CSEs to conduct manifestation determinations; to establish the protections for students presumed to have a disability for discipline purposes; to establish general procedures for suspensions and removals of students with disabilities, including parental notice, five school day suspensions or removals, 10 school day suspensions or removals, exceptions for patterns of suspensions or removals, and change in placement to an interim alternative educational setting (IAES) for behavior involving weapons, illegal drugs or controlled substances; authority of impartial hearing officers to order a change in placement to an IAES in a dangerous situation; coordination with superintendent’s hearing and other due process procedures applicable to all students; provision of services during suspensions; and expedited due process hearings.

Need for Rule: The rule is necessary to align State regulations with federal regulations and State law relating to the discipline of a student with a disability.

Legal Basis for Rule: 34 CFR sections 300.121 and 300.519 through 300.529 and Education Law sections 207(not subdivided), 4403(3) and 3214(3)(c).

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:

Ken Slentz

Deputy Commissioner of Education P-12

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 ADULT CAREER AND CONTINUING EDUCATION SERVICES (ACCES)

Part 247 – Vocational Rehabilitation Program

Description of Rule: This rule enacted certain amendments to Part 247 to conform State regulations relating to the vocational rehabilitation program to changes in federal law made in 1998 by the reauthorization of the Rehabilitation Act (Public Law 105-22).

Need for Rule: These regulations are necessary to ensure that the vocational rehabilitation program is conducted according to federal requirements set forth in the 1998 amendments to the Rehabilitation Act.

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

Agency Representative:

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

Frank Coco, CRC

Manager, VR Policy and Partnerships

Office of Adult Career and Continuing Education Services

Room 1603, One Commerce Plaza

Albany, New York 12234

(518) 474-3946

OFFICE OF HIGHER EDUCATION

Amendment of Section 145-2.1 of the Regulations of the Commissioner of Education Relating to TAP for Part-Time Students with Disabilities

Description of Rule: Section 145-2.1(a)(4) defines part-time study for State student financial aid purposes (TAP, etc.) for students with disabilities, as defined in the federal Americans with Disabilities Act (42 USC 12102(2)), as enrollment for at least 3 but less than 12 semester hours per semester or the equivalent, or at least 2 but less than 8 semester hours per quarter. The Regents approved the amendment at their July 1999 meeting, to be effective September 1, 1999.

Need for Rule: Chapter 332 of the Laws of 1998 amended subdivision (4) of section 661 of the Education Law to eliminate the full-time attendance requirement for students with disabilities. The law did not specify the minimum course load that students with disabilities must carry. Section 145-2.1(a) defines part-time study as enrollment for at least six semester hours in a semester. However, the sponsors of Chapter 332 advised the State Education Department that the intent was for students with disabilities to be eligible for TAP providing they enroll for at least three semester hours, necessitating the amendment to the regulation. Based on guidance from Office of Counsel, it was also necessary to include the reference to the federal statute contained in Education Law and specify that, to be eligible, students must be determined to be disabled in accordance with the Americans with Disabilities Act.

Legal Basis for Rule: Education Law sections 207(not subdivided) and 661(4)(d).

Section 52.21(b) of the Regulations of the Commissioner of Education - Registration of Programs for Preparing Classroom Teachers

Description of Rule: The addition of Section 52.21(b) provided specific standards for all teacher education programs registered in New York State leading to teacher certification. This regulation implemented the intent of the Regents 1998 policy paper “Teaching to Higher Standards: New York’s Commitment.” The following is a summary of the major requirements of this rule:

• A general education core in liberal arts and sciences is required for all classroom teachers.

• Preparation for teaching students to meet Regents learning standards is required for all classroom teachers.

• Preparation for teaching students with disabilities and students with limited English proficiency is required of all classroom teachers.

• Academic content preparation is also required for special education, literacy and ESL teachers.

• Ten days of diverse field experience is required prior to 40 school days of student teaching for all classroom teachers.

• All teacher education programs leading to certification in social studies shall include study of economics and government and at least 21 credit hours of history and geography to prepare teachers to teach to the new learning standards.

• Thirty-credit major in content area required for secondary teachers and teachers of special subjects.

• All programs for classroom teachers must be accredited.

• Eighty percent of all program completers of teacher education programs must pass the New York State Teacher Certification Examinations or the program may be subject to de-registration.

Need for Rule: In 1998, the Regents enacted “Teaching to Higher Standards: New York’s Commitment.” This policy statement provided the framework for sweeping changes to pre-service and in-service teacher education. In enacting these policy changes, the Regents were acknowledging the vital role played by the classroom teacher in improving student learning and achievement. The Regents believed there was a need to create a stronger linkage between the teacher preparation programs and the Regents learning standards for all students. In addition, it was important that all teachers be prepared to teach all students, especially students with disabilities and English language learners. As the State moved to establish rigorous learning standards for all students and increase graduation requirements, the Regents believed that such sweeping reforms can only be successful if all our students had access to highly qualified and certified teachers.

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

Amendment of Section 100.2(dd) of the Regulations of the Commissioner of Education Relating to Annual Professional Performance Reviews

Description of Rule: The purpose of the addition of Section 100.2(dd) of the Commissioner’s Regulations is to require each school district and BOCES to establish a prescribed plan for the annual professional performance review of its teachers providing instructional services or pupil personnel services. The amendment requires the governing body of each school district and BOCES to adopt a plan for the annual professional performance review of its teachers providing instructional service or pupil personnel services by September 1, 2000. The amendment prescribes criteria that school districts or BOCES must use for the evaluation of teachers providing instructional services in the following areas: content knowledge, preparation, instructional delivery, classroom management, student development, student assessment, collaboration, and reflective and responsive practice. Districts may supplement these State criteria with locally developed criteria, and the amendment permits a variance from the State criteria upon a finding by the Commissioner that the school district or BOCES has demonstrated a local model for the evaluation of teachers providing instructional services that has produced successful results. The amendment also requires the plan to describe the methods that the school district or BOCES employs to assess teachers’ performance. The amendment requires the plan to describe how the school district or BOCES addresses the performance of teachers whose performance is evaluated as unsatisfactory, and requires the development of a teacher improvement plan for teachers so evaluated, which is to be developed by the district or BOCES in consultation with the teacher. In addition, the plan must describe how the school district or BOCES provides training in good practice for the conducting of performance evaluations to staff who perform them, or alternatively, shall state the fact that the school district or BOCES permits such personnel to participate in training in this subject offered by the State Education Department. Finally, pursuant to the Taylor Law, the amendment states that the procedures for the annual professional performance review are subject to collective bargaining.

Need for Rule: In 1998, the Regents enacted “Teaching to Higher Standards: New York’s Commitment,” which was the blueprint for the redesign of both pre-service and in-service teacher education in New York State. One of the critical components of this policy statement was to ensure that each teacher received a rigorous annual professional performance review which assessed the teacher’s overall performance in the classroom. With the Regents sweeping reforms to K-12 educational system, they acknowledged the need to ensure that all teachers remain current and effective in the classroom to ensure that all students will attain the Regents learning standards and graduation requirements. The requirement for annual professional performance review was strengthened by ensuring that critical components of the teacher’s practice in the classroom were assessed, on an annual basis, by the district. The more rigorous annual professional performance review was another component to ensure that teachers remain current and effective in the classroom.

Legal Basis for Rule: Education Law sections 101(not subdivided), 207(not subdivided), 215(not subdivided), 305(1) and (2), and 3604(8).

Section 100.2(o) of the Regulations of the Commissioner of Education - Professional Development Plans

Description of Rule: The rule requires each school district and BOCES to have a professional development plan, which describes how they will provide all of their teachers with substantial professional development opportunities. For plans covering the time period February 2, 2004 and thereafter, each school district or BOCES is required to describe in its plans how it will provide teachers it employs holding a professional certificate with opportunities to maintain such certificates in good standing based upon successfully completing 175 hours of professional development every five years. The intent is for school districts and BOCES to offer a menu of professional development opportunities to their teachers. Such opportunities may be in a variety of formats and offered by a variety of providers and include course work paid for by the school district or BOCES or the teacher, depending on local arrangements and how professional development offered outside the school day is collectively bargained. The amendment requires the professional development plan to be adopted by September 1, 2000 and annually thereafter. It requires the plan to be developed through collaboration with a professional development team, including the superintendent of schools or district superintendent or their designees, school administrators, teachers, at least one parent and curriculum specialist, a representative of a higher education institution provided that a qualified candidate is available, and others. A majority of the members of the professional development team must be teachers selected by their collective bargaining unit. Among other items, the plan must describe the alignment of professional development with New York standards and assessments, student needs, teacher capacities, and include a needs analysis, goals, objectives, strategies, activities and evaluation standards. It must also describe the manner in which the school district or BOCES will measure the impact of professional development on student achievement and teachers’ practices.

Need for Rule: In 1998, the Board of Regents enacted “Teaching to Higher Standards: New York’s Commitment,” which was the blueprint for the redesign of both teacher pre-service and in-service programs in New York State. The Regents recognized the need to ensure that all teachers remain current with their professions and be given professional development focused on their capacities and the needs of their students. The Regents were guided by research which demonstrated that professional development, when locally developed, and focusing on student learning needs did improve the quality of instruction and student achievement. The enactment of the requirement of professional development plans ensured that local districts would collaborate to develop meaningful professional development to meet the needs of their teachers and students.

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

Part 86- Albert Shanker National Board for Professional Teacher Standards Certification Grant Programs

Description of Rule: Part 86 of the Regulations of the Commissioner of Education defines the rights, obligations, application procedures, and grant delimitations pertaining to the Albert Shanker Grant, pursuant to Education Law section 3004-a, establishing such grant to support and encourage qualified New York State teachers seeking a National Teaching Certificate from the National Board for Professional Teaching Standards (NBPTS.) The National Board for Professional Teaching Standards (NBPTS) is a nonprofit organization of teachers and other education stakeholders created in 1987 to assist in improving student learning through the establishment of higher, more rigorous standards of knowledge and performance for teachers. By defining and recognizing highly accomplished practice, a certificate awarded by the National Board attests that a teacher has been judged by his or her peers as one who meets meaningfully high and rigorous standards of knowledge and performance. He or she has demonstrated the ability, in a variety of settings, to make sound professional judgments about students' learning needs and to act effectively on those judgments. The NBPTS national teaching certificate has been recognized by many states as valid in lieu of a state teaching certificate and, in some, as worthy of a salary incrementation in recognition of ones’ status as a "master teacher." The New York State Board of Regents accepts the NBPTS national teaching certificate in reciprocity towards a permanent NYS teaching certificate in a comparable subject title. Eligible teachers receiving the Shanker grant are awarded up to $2,000 toward the $2,300 registration fees in support of this effort. All but $300 of such registration fees are paid directly to the National Board for Professional Teaching Standards by SED. Individual candidates or their employing school districts also may be reimbursed for prior, authorized fees paid and/or for other approved expenditures in support of this effort, including up to three days for substitute teacher salary reimbursements, to a maximum of an additional $500 for each candidate.

Need for Rule: The Shanker Grants help support rigorous and meaningful professional development for teachers, whether or not they become Board certified. The National Board process (portfolio and assessment center activities) causes teachers to consider student work as a consequence of their own work according to NBPTS standards, and the reinculcated habits of analytical and reflective practice appear to translate reliably into perceptions of changed teaching behaviors stimulating the growth of teachers content knowledge, knowledge of child development, and actual employment of a broader array of more effective strategies to facilitate teaching and learning across diverse student populations. Continued Department support for Part 86 and the Albert Shanker Grant is consistent with current Regents policy initiatives, NCLB, and seemingly omnipresent efforts to raise and maintain standards for teaching and learning with a level of reliability heretofore unattained.

Legal Basis for Rule: Education Law sections 207(not subdivided) and 3004-a(4).

Agency Representative:

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

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 3.3, 3.9, 17.1, 17.2, 17.4, 17.5, 17.6, 17.7, 17.9, 28.2, 28.3 and 28.6 of the Rules of the Board of Regents - Change in title of Chief Administrator of the Office of Professional Discipline and applicability of consent order and license surrender procedures to physicians, physician assistants and specialist assistants

Description of Rule: changed title of the chief administrator of the Office of Professional Discipline from "Executive Director of the Office of Professional Discipline" to "Director of the Office of Professional Discipline" and clarified the applicability of the consent order and license surrender procedures to physicians, physician assistants and specialist assistants.

Need for Rule: The rule is needed to implement a change in the internal organization of the Office of Professional Discipline. The rule also prescribes that the existing procedures set forth for physicians, physician assistants and specialist assistants are applicable to cases in which charges of professional misconduct were served on or before July 26, 1991, the effective date of Chapter 606 of the Laws of 1991. This is necessary because Chapter 606 provided the Department of Health with the responsibility for administering professional discipline proceedings against such licensees in cases served after that date, so that it is necessary to make clear that disciplinary proceedings for the three professions are not covered by the Education Department disciplinary procedures after that date.

Legal Basis for Rule: Education Law sections 104(not subdivided), 207(not subdivided) and 6506(1) and (8) and Chapter 606 of the Laws of 1991.

Sections 3.47 and 3.50 of the Commissioner's Regulations - Doctor of Audiology

Description of Rule: The rule authorizes the conferral of the Doctor of Audiology (Au.D.) degree, for completion of a professionally oriented doctoral program in audiology.

Need for Rule: The rule is necessary to prescribe requirements for the conferral of the Au.D. degree.

Legal Basis for the Rule: Education Law sections 207(not subdivided), 210(not subdivided), 218(1), 224(4) and 8206(2).

Sections 3.47 and 3.50 of the Rules of the Board of Regents - Doctor of Physical Therapy

Description of Rule: The rule authorizes the conferral of the Doctor of Physical Therapy (D.P.T.) degree, for completion of a professionally oriented doctoral program in physical therapy.

Need for Rule: The rule is necessary to prescribe requirements for the conferral of the D.P.T. degree.

Legal Basis for Rule: Education Law sections 207(not subdivided), 210(not subdivided), 218(1), 224(4) and 6734(b).

Sections 17.5, 17.6, 24.2 and 24.7 of the Rules of the Board of Regents - Professional discipline proceedings

Description of Rule: The rule clarified the role of the Committee on the Professions in consent order and license surrender procedures, which resolve charges of professional misconduct in disciplinary proceedings conducted pursuant to Title VIII of the Education Law.

Need for Rule: The rule codifies the existing procedures for the settling of cases of professional misconduct.

Legal Basis for Rule: Education Law sections 201(not subdivided), 6504(not subdivided), 6506(1), (4) and (10), and 6507(4)(h).

Sections 29.2 and 29.7 of the Rules of the Board of Regents and section 63.6 of the Commissioner's Regulations - Pharmacy

Description of Rule: The rule authorizes the electronic transmission of prescriptions and the transfer of prescriptions between pharmacies for refills; establishes requirements for the use of a common electronic database used to maintain dispensing information; removes outdated references in registration requirements for pharmacies; authorizes the waiver of regulations to permit demonstration projects; authorizes unlicensed persons to enter and retrieve prescription data, under the supervision of a pharmacist, and clarify their permitted duties; increases from one to two the number of unlicensed persons a pharmacist may supervise; amends requirements for the offering of counseling to patients by pharmacists or pharmacy interns; and updates titles of unlicensed health professions in Regents Rule section 29.2.

Need for Rule: The rule is needed to ensure that the public will be protected in its use of pharmaceutical services, while permitting pharmacies to employ recent developments in the electronic technologies. The requirements for the use of a common electronic file or database used to maintain dispensing information are needed to ensure the confidentiality of this information. The rule also frees pharmacists and pharmacy interns from routine tasks so they may have sufficient time to directly interact with patients, assess patient profiles and provide enhanced patient counseling. The rule is also needed to specify additional requirements for the offering of counseling by pharmacists and pharmacist assistants.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1) and (9), 6507(2)(a), 6509(9), 6801(not subdivided), 6803(not subdivided), 6804(a) and (b), 6806(1), 6808(2)(a)(3) and 6810(1).

Section 61.15 of the Commissioner's Regulations - Dentists

Description of Rule: The rule implements the provisions of Chapter 354 of the Laws of 1998, which amended Education Law section 6604-a(4), and clarifies qualifications of acceptable sponsors of continuing education for dentists.

Need for Rule: The rule establishes standards for the approval of sponsors of continuing education relating to facilities, equipment and financial and physical resources, and otherwise implements statutory provisions.

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

Section 66.5 of the Commissioner's Regulations - Optometry

Description of Rule: The rule clarifies and implements the requirements of Education Law section 7101-a and Chapter 517 of the Laws of 1995, 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 rule is necessary to implement statutory requirements.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6502(1), 6504(not subdivided), 6507(2)(a), (3)(a) and (4)(a), 6508(1) and (2), 7101(not subdivided), 7101-a(1)(f), (3)(4), (7), (9), (9-a) and (11), and sections 3 and 4(b) of Chapter 517 of the Laws of 1995.

Section 66.5 of the Commissioner's Regulations - Optometry

Description of Rule: The rule specified two additional classes of drugs that an optometrist who is certified to use phase two therapeutic pharmaceutical agents may use and prescribe to treat patients.

Need for Rule: The rule adds two additional drugs, carbonic anhydrase inhibitors and prostaglandin analogs, that demonstrate equivalence to a class of drugs that appropriately certified optometrists are now authorized to use to treat glaucoma.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6507(2)(a) and 7101-a(1)(f), (10)(c) and (12).

Section 75.1 of the Commissioner's Regulations - Speech Language Pathology and Audiology

Description of Rule: To prescribe the education requirements for licensure in speech-language pathology and/or audiology by adjusting the definition of study that is equivalent to a master's degree program in the field, permitting doctoral level graduates to qualify and redistributing the education practicum hours to be compatible with national standards.

Need for Rule: This rule has been extensively revised, effective October 9, 2008, to further update the requirements for licensure in speech language pathology and in audiology. The new rule aligned New York State licensing requirements with federal Medicaid requirements, expanded opportunities for qualified speech-language pathologists and audiologists in other jurisdiction to become licensed in New York state, and addressed shortages in the number of speech-language pathologists in New York State school districts.

Legal Basis for Rule: Education Law sections 207(not subdivided), 6504(not subdivided), 6506(1) and (10), 6507(2)(a) and 8206(2).

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 MANAGEMENT SERVICES

Section 3.2 of the Commissioner's Regulations - Standing Committees of the Board of Regents

Description of Rule: to reorganize the committee structure of the Board of Regents to abolish the Committee on Administration, Law and Legislation (ALL) and to establish the Committee on Quality.

Need for Rule: The Board of Regents abolished the ALL Committee and established the Committee on Quality in 1999. The rule merely conforms the Regents Rules to this change in internal organization of the Board of Regents.

Legal Basis for Rule: Education Law section 207(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:

Richard J. Trautwein

Counsel and Deputy Commissioner for Legal Affairs

New York State Education Department

State Education Building, Room 112

Albany, New York 12234

(518) 474-6400

Sections 187.1 and 187.2 of the Commissioner's Regulations - Freedom of Information Law and Personal Privacy Protection Law

Description of Rule: The rule amends the offices and office addresses within the State Education Department for submissions of requests under the Freedom of Information Law and the Personal Privacy Protection Law.

Need for Rule: The rule updated information relating to the State Education Department employee who is designated as the Department's Records Access Officer, responsible for ensuring compliance with the Freedom of Information Law and the Personal Privacy Protection Law (Articles 6 and 6-A of the Public Officers Law), and to update the addresses of the offices designated to receive requests for the Department's records.

Legal Basis for Rule: Education Law sections 207(not subdivided) and 305(6) and Public Officers Law sections 87(1)(b), 94(1)(j) and 94(2)(c).

Section 187.7 of the Commissioner's Regulations - Freedom of Information Law

Description of Rule: The rule revised the fee charged by the Department to produce computer records requested under the Freedom of Information Law.

Need for Rule: The rule changed the time-charge to reflect the actual cost incurred by the Department.

Legal Basis for Rule: Education Law sections 207(not subdivided) and 305(6) and Public Officers Law sections 87(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:

Benny Thottam

Chief Information Officer

New York State Education Department

Office of Management Services

State Education Building, Room 121

Albany, New York 12234

(518) 486-1702

OFFICE OF CULTURAL EDUCATION

Sections 185.5 and 185.11 - Local Government Records Management.

Description of Rule: The rule revises Records Retention and Disposition Schedule MU-1 to make needed changes and additions to minimum retention periods for records of cities, towns, villages and fire districts.

Need for Rule: Section 57.25(2) of Arts and Cultural Affairs Law requires the commissioner of education to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules constitutes formal consent by the commissioner to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. The 1999 revisions to the rule make necessary changes and additions to ensure that concerned local governments have up-to-date standards for records retention and disposition.

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

Agency Representative:

Information may be obtained, and written comments may be submitted, concerning the modification or continuation of the above rule by contacting: Jeffrey W. Cannell, Deputy Commissioner for Cultural Education, State Education Department, Cultural Education Center, Rm. 10A33, Albany, NY 12230, (518) 474-5976, [email protected]

The following rules were adopted by the New York State Department of Environmental Conservation (Department or DEC) DURING 2009, and pursuant to SAPA Section 207 have been reviewed. Comments on the rules that are being amended this year should be directed to the contact person listed in the main body of the Regulatory Agenda. Comments on any rules that are not being changed at this time will be accepted for 45 days from the date of publication in the State Register and should be directed to the regulatory coordinator for the appropriate program, as listed below the rules.

DIVISION OF AIR RESOURCES

6 NYCRR Part 200, General Provisions. Statutory Authority: Environmental Conservation Law Sections 1-0101, 1-0303, 3-0301, 3-0303, 11-0303, 11-0305, 11-0535, 13-0105, 15-0109, 15-1903, 16-0111, 17-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0302, 19-0303, 19-0305, 19-0306, 19-0311, 19-0319, 19-0323, 24-0103, 25-0102, 34-0108, 49-0309, 70-0109, 71-2103, 71-2105, 72-0303; Energy Law Sections 3-101, 3-103; Public Authorities Law Sections 1850, 1851, 1854, 1855; Federal Clean Air Act Sections 160-169, 171-193 [42 U.S.C. 7470-7479; 7501-7515]. Part 200 will be revised, and is on the Department’s 2014 regulatory agenda.

6 NYCRR Part 215, Open Fires. Statutory Authority: Environmental Conservation Law Sections 1-0101, 3-0301, 9-0105, 9-1103, 19-0103, 19-0105, 19-0301, 19-0303, 19-0305, 70-0107, 71-2103, 71-2105. This regulation will not be amended at this time.

6 NYCRR Part 228, Surface Coating Processes. Statutory Authority: Environmental Conservation Law Sections 3-0301, 19-0301, 19-0303. Part 228 was amended in 2013. Additional amendments will not be made at this time.

6 NYCRR Part 231, New Source Review for New and Modified Facilities. Statutory Authority: Environmental Conservation Law Sections 1-0101, 3-0301, 3-0303, 19-0103, 19-0105, 19-01017, 19-0301, 19-0302, 19-0303, 19-0305; Federal Clean Air Act Sections 160-169, 171-193 [42 U.S.C. 7470-7479; 7501-7515]. Part 231 was amended in 2011. No further amendments will be made at this time.

6 NYCRR Part 239, Portable Fuel Container Spillage Control. Statutory Authority: Environmental Conservation Law Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0303, 19-0305, 17-2103 and 71-2105. Part 239 was amended in 2009 to include a more broad set of standards which were consistent with the Federal Rule 40 CFR part 59. Part 239 is part of a suite of actions undertaken by the State to control VOC emissions. VOCs are precursors, with nitrogen oxides in the formation of ozone. This regulation will not be amended this year as the current regulations limit the VOCs of this category to a level where the emissions are controlled to a reasonable level.

6 NYCRR Part 248, Use of Ultra Low Sulfur Diesel Fuel and Best Available Retrofit Technology for Heavy Duty Vehicles. Statutory Authority: Environmental Conservation Law (ECL) Sections 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, 19-0305, 19-0323, 17-2103 and 71-2105. Part 248 is consistent with the Department’s obligations and the Legislature’s intent under the “Diesel Emissions Reduction Act of 2006” (DERA). The DERA legislation charged the Department with implementing a regulatory program that would require the use of ULSD fuel and BART for any diesel powered heavy duty vehicle (HDV) that is owned by, operated by or on behalf of, or leased by a state agency and state and regional public authority. The regulation was amended in January 2013 to incorporate revisions required by judicial decision and by changes to the enabling legislation. A subsequent change to the compliance date in ECL Section 19-0323 has been dealt with through a letter of enforcement discretion. No additional revisions are required at this time

6 NYCRR Part 252, Environmental Performance Labels. Statutory Authority: Environmental Conservation Law Sections: 19-1101, 19-1103, 19-1105. Part 252 was repealed in 2012, and its provisions were updated and incorporated as a new Subpart 218-11.

Regulatory Coordinator for the Division of Air Resources is Laura Stevens, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233-3258. Telephone: 518-402-8401. E-mail: [email protected]. Please include the Part number when emailing.

DIVISION OF FISH, WILDLIFE AND MARINE RESOURCES

6 NYCRR Parts 1, 2 4 & 6: Amendment of wildlife management unit boundaries. Statutory Authority: ECL 11-0903, 11-0905, 11-0907, 11-0913, 11-1103. Amended wildlife management unit (WMU) boundaries and make associated revisions to game species hunting and trapping seasons. Amendments are not planned in 2014 because these WMU boundaries are still in use for setting of various hunting and trapping seasons. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Section 1.40: Hunting wild turkey. Statutory Authority: ECL 11-0901, 11-0903, and 11-0905.

Established a fall turkey hunting season on Long Island, and amended the methods of taking wild turkey statewide. No amendments are planned for 2014 as a comprehensive evaluation of current turkey hunting regulations is underway by the Department. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Part 79: Lakeview and Black Pond Wildlife Management Areas. Statutory Authority: ECL 11-2101.

Regulated public use of the Lakeview and Black Pond Wildlife Management Areas. No amendments are planned for 2014 as the area description and prohibited activities are still deemed appropriate by the Department. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Section 1.20: Deer management permits. Statutory Authority: ECL 11-0903, 11-0907, and 11-0913.

Amended procedures for the issuance and use of deer management permits (DMPs). No amendments are planned for 2014 as the procedures for application and issuance of DMPs are unchanged and necessary to maintain in regulation. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Sections 1.22 and 1.27: Deer hunting regulations. Statutory Authority: ECL 11-0903 and 11-0907.

Updated muzzleloading regulations in the Northern Zone. Section 1.22 was repealed in 2012, with necessary provisions incorporated into other sections; amendments to Section 1.27 that were proposed in 2009 ultimately were not adopted. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Sections 6.1, 6.2 & 6.3: Trapping regulations. Statutory Authority: ECL 11-1101, 11-1103, and 11-1105. Set trapping seasons for beaver, river otter, mink, and muskrat; and to improve general trapping regulations. No amendments are planned for 2014; beaver and otter seasons described in Section 6.1 are still deemed appropriate by the Department, and Sections 6.2 and 6.3 were revised again in 2010. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Section 2.30: Migratory game bird hunting regulations for the 2009-2010 season. Statutory Authority: ECL 11-0307. Changed migratory game bird hunting regulations to conform to federal regulations. These amendments were repealed in 2010, after ECL 11-0307 was amended to eliminate the need for annual rulemaking to adjust waterfowl seasons and bag limits. No changes to this section are planned for 2014. Contact: Vicky Wagenbaugh, NYS Department of Environmental Conservation, Division of Fish, Wildlife & Marine Resources, 625 Broadway, Albany, NY 12233-4754, Telephone: 518-402-8879. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Part 40 Marine Fish: Statutory Authority: ECL 13-0340-a, 13-0340-f. This rule making reduces the bycatch possession limit for weakfish, specifies a definition for total length for black sea bass that excludes the tail filament from the length measurement of the fish, and increases the number of escape vents and the diameter of escape vents on fish traps used to take black sea bass. These rules are necessary for New York State to remain in compliance with the management measures detailed in the ASMFC fishery management plans for weakfish and black sea bass. These rules remain in effect and may be modified to meet the requirements of the fishery management plans as ASMFC seeks to provide for the long-term health of these species and to comply with federal regulations. Contact: Stephen W. Heins, New York State Department of Environmental Conservation, Bureau of Marine Resources, Finfish and Crustaceans Section, 205 N. Belle Meade Road, Suite 1, E. Setauket, NY 11733. Telephone: 631-444-0435. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Part 40 Marine Fish: Statutory Authority: ECL 11-0303, 13-0105, 13-0340-b, 13-0340-f. This rule making established the recreational open season, size limit and possession limit for summer flounder and increased the size limit for black sea bass. This rule was necessary to prevent New York State recreational anglers from exceeding the assigned summer flounder and black sea bass quotas for 2000 and ensuring New York State remains in compliance with the ASMFC fishery management plan for summer flounder and black sea bass. This rule has since been modified in 2010, 2011, 2012 and 2013 to meet the requirements of the summer flounder and black sea bass fishery management plan as ASMFC seeks to provide for the long-term health of these species and to comply with federal regulations. Contact: Stephen W. Heins, New York State Department of Environmental Conservation, Bureau of Marine Resources, Finfish and Crustaceans Section, 205 N. Belle Meade Road, Suite 1, E. Setauket, NY 11733. Telephone: 631-444-0435. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Subpart 43-2 Atlantic Ocean: Statutory Authority: ECL 13-0309.

This rule making implements management measures and harvest provisions specified in Amendment 1 to the state fishery management plan for the Atlantic surfclam fishery in the Atlantic Ocean. Fishery management tools introduced by this rule making include individual fishery quota, cage tags, and the use of a vessel monitoring system. These measures are necessary to ensure the long-term sustainability of the surfclam resource and fishery. These regulations remain in effect and may be amended as necessary to continue to properly mange and protect the State’s surfclam resources. Contact: Jennifer O’Dwyer, New York State Department of Environmental Conservation, Bureau of Marine Resources, 205 N. Belle Mead Road, Suite 1, East Setauket, NY 11733. Telephone: 631-444-0489. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Part 40 Marine Fish: Statutory Authority: 11-0303, 13-0105, 13-0340-c.

This rule making reduced the recreational possession limit of winter flounder from 10 to 2 fish and reduced the commercial trip limit to 50 pounds. These harvest restrictions are necessary to protect the depleted winter flounder stock and to allow the stock to recover and to ensure New York State remains in compliance with the ASMFC fishery management plan for winter flounder. These regulations currently remain in effect to continue to provide protection to the winter flounder resource. Contact: Stephen W. Heins, New York State Department of Environmental Conservation, Bureau of Marine Resources, Finfish and Crustaceans Section, 205 N. Belle Meade Road, Suite 1, E. Setauket, NY 11733. Telephone: 631-444-0435. E-mail:[email protected]. Please include the Part number when emailing.

DIVISION OF LANDS AND FORESTS

6 NYCRR Part 190, Use of State Lands. Environmental Conservation Law sections, sections 1-0101(3)(b), 1-0101(3)(d), 3-0301(1)(b), 3-0301(1)(d), 3-0301(1)(i), 3-0301(2)(m), 3-0301(2)(v), 9-0105(1), 9-0105(3), 9-0303, 9-1105(1) and Article 49 of the Environmental Conservation Law, and section 816(3) of Executive Law. This regulation protects public safety, manages public use and protects natural resources on state lands. Minor revisions to clarify the existing regulations need to be made in the coming year. Refer to 6NYCRR Part 190, Use of State Lands in this Regulatory Agenda, amend existing sections 190.0(14), 190.1(c) and 190.8(g).

6 NYCRR Part 192, Firewood Restrictions to Protect Forests from Invasive Species. Environmental Conservation Law sections, 1-0101(3)(b), 1-0101(3)(d), 3-0301(1)(b), 3-0301(1)(d), 3-0301(2)(m), 9-0105(1), 9-0105(3) and 9-1303. The 2008 emergency rulemakings were replaced by a final regulation adopted in March 2009 which protects New York State’s forests from invasive insects and diseases carried on firewood and introduced into non-infested forests. Amendment to this regulation was made in another rulemaking adopted in July 2012. This amendment was needed to facilitate the interpretation, compliance and enforcement of the 2009 regulation. These were not substantive revisions. No further revisions to this rulemaking are needed.

6 NYCRR Part196, Operation of Motorized Equipment in Wilderness, Primitive, Primitive Bicycle Corridor and Canoe Areas within the Adirondack and Catskill Parks. Environmental Conservation Law sections, 1-0101(3)(b), 1-0101(3)(d), 3-0301(1)(d), 3-0301(2)(m) and 9-0105(1). This regulation is needed since it prohibits the use of motorized equipment on wilderness, primitive and canoe areas in the Adirondack Park and on wilderness or primitive bicycle corridors in the Catskill Park, enforcing master plan guidelines. No amendments to this regulation are planned for the coming year since implementation has been satisfactory. There is no need for the Department to modify this rule.

6 NYCRR Part 196, Operation of Mechanically Propelled Vessels and Aircraft in the Forest Preserve. Environmental Conservation Law sections, 1-0101(3)(b), 1-0101(3)(d), 3-0301(1)(b), 3-0301(1)(d), 3-0301(2)(m), 9-0105(1), Executive Law section 816(3) and Article 14, section 1 of the New York State Constitution. The interim permit system that set limits on the time and frequency of flights to Lows Lake was authorized until December 31, 2011. After this date mechanically propelled vessels and aircraft were prohibited. This provision in the regulation still applies. No amendments to this regulation are planned.

Contact: Linda Kashdan-Schrom, NYS Department of Environmental Conservation, Division of Lands and Forests, 625 Broadway, Albany, NY 12233-4250 Telephone: (518) 402-9405 E-mail: [email protected]. Please include the Part number when emailing.

DIVISION OF WATER

6 NYCRR Part 649, Implementing Statutory Provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”). Statutory Authority: Environmental Conservation Law Sections 1-0101, 3-0301, 15-0101, 15-0105, 15-0109, 15-0315, 15-0317, 15-1303; L. 1989, ch. 565. The regulations are for the Clean Water State Revolving Fund (CWSRF), co-administered by NYSDEC and the Environmental Facilities Corporation, to set forth rules implementing the statutory provisions of the American Recovery and Reinvestment Act of 2009 ("ARRA"). No amendments for this regulation are planned. Contact: Robert Simson, Regulatory Coordinator, Director’s Office, Division of Water, NYSDEC, Albany, NY 12233-3500. Telephone 518-402-8271. E-mail: [email protected]. Please include the Part number when emailing.

6 NYCRR Parts 608, 621 and 673, Operation and Maintenance of Dams. Statutory Authority: Environmental Conservation Law, art. 3, title 3 and art. 15, title 5. These regulations require all dam owners to operate and maintain dams in a safe condition and adopts requirements for owner dam safety programs. No amendments for this regulation are planned. Contact: Alon Dominitz, Chief, Dam Safety Section, Bureau of Flood Protection and Dam Safety, Division of Water, NYSDEC, Albany, NY 12233-3504. Telephone 518-402-8130. E-mail: [email protected]. Please include the Part number when emailing.

Pursuant to section 207 of the State Administrative Procedure Act (“SAPA”), 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. Please note that all references to “the Department” and the “Superintendent” prior to October 3, 2011, mean the former Insurance Department and former Superintendent of Insurance, respectively, as appropriate to the context, and that the references to the law cited are as of the date of the amendment to the regulations.

The purpose of the review is to analyze the need for and legal basis of rulemakings that were adopted in 2009, 2004, and 1999, and the Department invites public comment on the continuation or modification of those rulemakings. Comments must be received within 45 days of the date of publication of this notice.

Comments should be submitted to:

Camielle A. Barclay

Senior Attorney

New York State Department of Financial Services

One State Street

New York, NY 10004

Telephone Number: (212) 480-5299

Email: [email protected]

The Department invites public comments on the continuation or modification of the following rulemakings that were adopted in 2009.

• INS-52-08-00006-A (State Register of April 1, 2009) Consolidated amendment of 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, and amendment of Part 217 (Regulation 178) (Processing of Health Insurance Claims) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 1109, 2403, 3216, 3221, 3224-a, 3224-b, 4304, 4305, and Article 43 of the Insurance Law.

Insurance Regulation 62 was amended to facilitate the timely processing and payment of health insurance claims in those circumstances where a patient is covered by two or more policies issued by different insurers. Insurance Regulation 178 was amended to establish procedures that an insurer, health maintenance organization, or private health services plan must follow when it is determined that other coverage may exist. In addition, the regulation established requirements for the provider if the provider wishes to seek payment from the other insurer, and the time in which the provider must act. The amendment to Insurance Regulation 62 cross-referenced the two regulations.

• INS-24-09-00002-A (State Register of September 2, 2009) Amendment of Part 27 (Insurance Regulation 41) (Excess Line Placements Governing Standards) of Title 11 NYCRR.

Statutory authority: Sections 201, 301, 2101, 2104, 2105, 2110, 2116, 2117, 2118, 2121, 2130, 3103,9102, and Article 59 of the Insurance Law.

This amendment to Insurance Regulation 41 added to the ‘‘export’’ list a number of coverages that were not readily available in the authorized market, and that may be placed through an excess line broker, and also reduced the requisite number of declinations necessary for placement of several other coverages.

On April 10, 2013, the Department adopted another amendment to Insurance Regulation 41 (DFS-45-12-00002-A State Register of April 10, 2013) to update the “export list” pursuant to Insurance Law section 2118(b)(4).

• INS-33-09-00001-A (State Register of October 9, 2009) Amendment of Part 102 (Insurance Regulation192) (Minimum Standards for Determining Reserve Liabilities and Nonforfeiture Values for Preneed Life Insurance) of Title 11 NYCRR.

Statutory authority: Sections 201, 301, 1304, 1308, 4217, 4218, 4221, 4240, and 4517 of the Insurance Law.

This amendment to Insurance Regulation 192 established minimum standards for determining reserve liabilities and nonforfeiture values for preneed life insurance policies and certificates.

The amendment was necessary to help ensure the solvency of life insurers and fraternal benefit societies doing business in New York by providing an appropriate mortality table to be used for valuing reserves for preneed life insurance policies and certificates.

• INS-36-09-00001-A (State Register of December 9, 2009) Amendment of 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.

Statutory Authority: Sections 201, 301, 1009, and 3234 of the Insurance Law

Insurance Regulation 62 was amended to comply with Insurance Law section 3234(b) regarding the application of a pre-existing condition to coverage for disabilities pursuant to the court’s decision in Benesowitz v. Metropolitan Life Insurance Company, 8 NY3d 661 (2007).

The Department also invites public comment on the continuation or modification of the following rulemakings, which were adopted in 2004.

• INS-47-03-00006-A (State Register of February 4, 2004) Amendment of Parts 140, 141, 142, 143, and 144 (Insurance Regulation 32-A) (Private Passenger and Commercial Automobile Statistical Plans) of 11 NYCRR.

Statutory authority: Sections 201, 301, 2304, 2315, 2331, 2332, 2333, and 2334 of the Insurance Law.

Insurance Regulation 32-A contained provisions prescribing the format of statistical plans to be used in automobile markets (both private passenger and commercial) in general and for individual classifications in particular. This amendment to Insurance Regulation 32-A removed obsolete references and also provided a simplified framework for approval and implementation of revisions to statistical plans as market conditions warrant.

• INS-46-03-00004-A (State Register of February 11, 2004) Amendment of Part 362 (Insurance Regulation 171) (Healthy New York Program) of Title 11 NYCCR.

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

This amendment to Insurance Law 171 clarified the eligibility for the Healthy NY Program and simplified the application and administrative process for both enrollees and providers. The amendment was necessary to enhance the implementation and operation of the Healthy NY Program while improving the efficiency with which individuals and small employers accessed comprehensive health insurance forms from a variety of sources.

In January 2007, Insurance Regulation 171 was amended (INS-44-06-00004-A, State Register of January 31, 2007) to provide another Healthy New York benefit package at a reduced premium rate. The amendment also eliminated the well-child copayment applicable to the Healthy New York Program in order to enhance access to preventive and primary care for children, and to permit the Program to be considered qualifying health insurance under the Federal Trade Act of 2002 to allow those qualifying for a federal tax credit to benefit from that credit. The amendment also revised the eligibility requirements relating to employment in order to lessen complexity and to enhance access.

Insurance Regulation 171 again was amended in November 2007 (INS-34-07-00016-A, State Register of November 7, 2007) to require health maintenance organizations and participating insurers to offer high deductible health plans under the Healthy New York small employer and individual programs.

• INS-14-04-00014-A (State Register of June 23, 2004) Addition of Part 100 (Insurance Regulation 179) (Recognition of the 2001 CSO Mortality Table) to Title 11 NYCRR.

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

Insurance Regulation 179 was adopted to permit and prescribe the use of the 2001 Commissioners Standard Ordinary (“CSO”) Mortality Table for life insurance. This amendment provided domestic and foreign insurance companies licensed to do business in New York State the ability to compete effectively with companies doing business in other states.

In 2007, the Department amended Insurance Regulation 179 ( INS-42-07-00005-A, State Register of December 26, 2007), to permit, under specified conditions, the use of the 2001 CSO Preferred Class Structure Mortality Table in lieu of the 2001 CSO Mortality Table for valuing the minimum standards for individual life insurance policies and group life insurance policies, which were sold to individuals by certificate with premium rates guaranteed from issue for at least two years in accordance with Insurance Law sections 4217 and 4517.

In 2011, the Department adopted another amendment to Insurance Regulation 179 (INS-02-11-00003-A, State Register of March 16, 2011), which extended the use of the 2001 CSO Preferred Class Structure Mortality Table to policies issued on or after January 1, 2004, provided that insurers obtained the Superintendent’s approval and met certain conditions with respect to the policies or portions of policies that were co-insured.

• INS-12-04-00016-A (State Register of October 6, 2004) Amendment of Part 68 (Insurance Regulation 83) (Charges for Professional Health Services) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 2601, 5221, and Article 51 of the Insurance Law.

Insurance Regulation 83 was amended to establish a fee schedule for professional healthcare services for no-fault claims. The amendment was necessary to provide for more timely payment of healthcare provider charges, which resulted in a significant reduction in litigation costs incurred due to the variable nature of the fee schedule previously used to establish these costs.

In 2008, the Department adopted another amendment to Insurance Regulation 83 (INS-02-08-00005- A, State Register of April 16, 2008), which repealed the fee schedules that the Department had previously established for prescription drugs, durable medical equipment, medical/surgical supplies, orthopedic footwear, and orthotic and prosthetic appliances, and clarified that a pharmacy was deemed to be a provider of health services for purposes of eligibility for direct payments under 11 NYCRR 65-3.

Insurance Regulation 83 again was amended in 2010 (INS-25-10-00017-A, State Register of September 22, 2010) to adopt the Worker’s Compensation Board’s dental fee schedule that took effect on March 1, 2009. This amendment also repealed the fee schedule for dental services that the Department had previously adopted in the absence of a fee schedule established by the Worker’s Compensation Board.

• INS-32-04-00006-A (State Register of October 27, 2004) Amendment of Part 52 (Insurance Regulation 2) (Minimum Standards for the Form, Content and Sale of Health Insurance) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 1109, 3201, 3217, 3221, and 4303 of the Insurance Law; and Chapter 82 of the Laws of 2002.

This amendment to Insurance Regulation 62 implemented Chapter 82 of the Laws of 2002, which amended Insurance Law sections 3221(k)(6) and 4303(s) to add coverage for procedures used to diagnose and treat infertility when certain conditions are met, and to add a prescription drug benefit for coverage of prescription drugs approved by the federal Food and Drug Administration for use in the diagnosis and treatment of infertility. The law also directed the Superintendent, in consultation with the Commissioner of Health, to promulgate regulations that established guidelines and standards to be used in carrying out the mandates of the legislation.

The Department also invites public comment on the continuation or modification of the following rulemakings, which were adopted in 1999.

• INS-39-98-00014-A (State Register of January 6, 1999) Amendment of Part 70 (Insurance Regulation 101) (Medical Malpractice Insurance: Required Notices and Rate Modification) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 1113(a)(13) and (14), 3426, 3436, 5504, 5907, 6302, 6303, and Article 23 of the Insurance Law; and Chapter 639 of the Laws of 1996.

Chapter 639 of the Laws of 1996 authorized the Superintendent to establish rates and surcharges for policies of primary and excess medical malpractice insurance so as to maintain stability and availability of this insurance in the voluntary market. Part 70 established the framework for the rates and forms of policies of physicians’ medical malpractice insurance. This amendment to Insurance Regulation 101 permitted insurers to use rates established by the Superintendent for the Medical Liability Mutual Insurance Company (“MLMIC”) modified by any differences in expenses incurred by the insurer as opposed to those incurred by the MLMIC. Prior to the amendment, insurers were required to use the rates established for the MLMIC without any such modification.

The Department promulgated this amendment after determining that the marketplace for medical malpractice insurance had been stable for some time and as such, that competitive forces should be allowed a greater role in determining rates.

Regulation 101 was amended in 2000 (INS-13-00-00006-A, State Register of July 12, 2000) to establish physicians and surgeons medical malpractice insurance rates and appropriate surcharges for the policy year July 1, 1999 through June 30, 2000, and to establish rules to collect and allocate surcharges to recover deficits based on past experience.

In 2001, Regulation 101 again was amended (INS-15-01-00007-A, State Register of June 20, 2001) to establish rates and surcharges for primary policies for physicians and surgeons’ medical malpractice insurance effective July 1, 2000.

• INS-44-98-00006-A (State Register of January 27, 1999) Amendment of Subpart 60-2 (Insurance Regulation 35-D) (Supplementary Uninsured/Underinsured Motorists Insurance) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, and 3420 of the Insurance Law; and Chapter 568 of the Laws of 1997.

This amendment to Insurance Regulation 35-D, which implemented Chapter 568 of the Laws of 1997, increased the amounts of supplementary uninsured/underinsured motorists (“SUM”) coverage that must be offered to an insured. The amendment also revised the specific information that must be included in the mandatory availability notices and retitled the mandatory SUM coverage endorsement.

In 2013, the Department amended Insurance Regulation 35-D (DFS-29-13-00015-A, State Register of September 25, 2013) to implement Chapter 11 of the Laws of 2013, which requires SUM coverage for employees of fire departments and ambulance services.

• INS-31-98-00024-A (State Register of February 10, 1999) Repeal of Part 53 and addition of a new Part 53 (Insurance Regulation 74) (Life and Annuity Cost Disclosure and Sales Illustrations) to Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 308, 1313, 2123, 2208, 2405, 3201, 3203, 3209, 3219, 3222, 4221, 4223, 4226, 4231, 4232, 4240, 4510, 4511, 4513, and 4518 of the Insurance Law; and Section 263 of the Banking Law.

Insurance Regulation 74, as promulgated in 1999, established new rules for the form and content of the preliminary information documents, policy summaries, and sales illustrations for life insurance policies and annuity contracts as required by Chapter 616 of the Laws of 1997.

• INS-52-98-00005-A (State Register of March 31, 1999) Addition of Part 74 (Insurance Regulation 159) (Homeowner’s Insurance Disclosure Information) to Title 11 NYCRR.

Statutory Authority: Sections 201, 301, and 3445 of the Insurance Law.

Chapter 44 of the Laws of 1998 added a new Section 3445 to the Insurance Law requiring the Superintendent to establish – by regulation – disclosure requirements with respect to the operation of any deductible in a homeowner’s insurance policy or a dwelling fire personal lines policy that applies as the result of a windstorm.

Insurance Regulation 159 prescribed standards for the uniform display of windstorm deductibles, which consisted of hurricane and non-hurricane deductibles, in policy declarations. It also set forth the minimum provisions to be contained in the policyholder disclosure notice, which explained the purpose and operation of a hurricane deductible, and which must accompany new and renewal policies containing such deductibles.

Insurance Regulation 159 was amended in 2007 (INS-21-07-00001-A, State Register of August 8, 2007) to implement Chapter 162 of the Laws of 2006, which required that when a policyholder received a notice of cancellation, nonrenewal, or conditional renewal for a homeowner’s insurance policy with respect to property located in an area served by a market assistance program established by the Superintendent for the purpose of facilitating placement of homeowners insurance, the policyholder must also receive notice from the insurer of possible eligibility for coverage through a market assistance program or through the New York Property Insurance Underwriting Association (“NYPIUA”). This amendment established certain minimum notification requirements to ensure that policyholders that may be eligible for a market assistance program or NYPIUA receive proper notice of their options, including information necessary to apply for coverage.

• INS-51-98-00011-A (State Register of May 12, 1999) Repeal of Part 185 and addition of a new Part 185 (Insurance Regulation 27A) (Policy Provision and Rating Standards for Credit Life and Credit Disability Insurance) to Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 3201, 4205, 4216, 4224, and 4235 of the Insurance Law.

Insurance Law sections 4216 and 4235 authorized credit life insurance and credit accident and health insurance as permitted coverages in this state. Insurance Regulation 27A, as promulgated in 1999, streamlined some of the requirements applicable to insurers authorized to offer credit life insurance and credit accident and health insurance, and generally provided for modest increases in rates with a resultant increase in the expense margins. The regulation also balanced the dual legislative objectives of having the product available while ensuring that insured parties receive fair value for their premium dollar.

Insurance Regulation 27A was amended in 2001 (INS-10-01-00004-A, State Register of May 30, 2001) to permit rates for blocks of vendor business to be based on actual experience. The amendment also balanced the legislative objective of having the product available with the legislative objective that insureds receive fair value for their premium dollar.

• INS-11-99-00006-A (State Register of May 19, 1999) Amendment of Part 27 (Insurance Regulation 41) (Excess Line Placements Governing Standards) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 2101, 2104, 2105, 2110, 2116, 2117, 2118, 2121, 2122, 2130, 3103, 5907, 5911, and 9102 of the Insurance Law; Chapter 225 of the Laws of 1997, and Chapter 282 of the Laws of 1998.

Chapter 225 of the Laws of 1997 amended Insurance Law sections 2117 and 2118 to provide that a licensed excess line broker may exercise binding authority and execute an authority to bind coverage on behalf of an insurer not licensed or authorized to do business in this State. The law required brokers to file binding agreements with the Excess Line Association of New York (“ELANY”).

This amendment to Insurance Regulation 41 clarified the information that must be included in a broker’s filing with ELANY, and required ELANY to file with the Superintendent monthly reports that contain information on excess line brokers’ binding authority agreements. The amendment also permitted the Superintendent to lower a syndicate’s trusteed account requirements, subject to certain factors.

Insurance Regulation 41 again was amended in 1999 (INS-16-98-00004-A, State Register of June 2, 1999) to implement Chapter 498 of the Laws of 1996, which eliminated the requirement that both the excess line broker and the insured must complete an affidavit affirming that the broker had advised the insured that coverage had been placed with an unauthorized insurer. The amendment prescribed specific requirements concerning information that the broker must disclose to the insured prior to making a placement with an unauthorized insurer. It also adopted trust deposit requirements for alien insurers that were adopted by the National Association of Insurance Commissioners (“NAIC”) in 1998.

Regulation 41 was amended in 2007 (INS-42-07-00005-A, State Register of February 19, 2003) to change the amount of funds required to be held in trust by alien excess line insurers and associations of insurance underwriters (“associations”), and resolved the existing inequity in the trust fund obligations imposed upon alien excess line insurers, as compared to the obligations imposed upon associations. Specifically, the amount of funds to be held in trust by alien excess line insurers increased, and the amount of funds to be held in trust by associations decreased.

The Department adopted another amendment to Regulation 41 in 2011 (INS-40-10-00009-A, State Register of May 4, 2011), which increased the minimum surplus to policyholders required to be maintained by new and current excess line insurers.

• INS-12-99-00001-A (State Register of June 2, 1999) Addition of Part 220 (Insurance Regulation 160) (Holocaust Victims Insurance Claims and Reports) to Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 2701(d), 2703(a)(2), 2710, and Article 27 of the Insurance Law; and Chapter 259 of the Laws of 1998.

Insurance Regulation 160 implemented the provisions of Chapter 259 of the Laws of 1998, which added a new Article 27 to the Insurance Law to provide a framework for the expeditious and equitable resolution of insurance claims by Holocaust victims as defined in Insurance Law section 2701(a).

• INS-47-98-00007-A (State Register of September 15, 1999) Amendment of Part 216 (Insurance Regulation 64) (Unfair Claims Settlement Practices and Claim Cost Control Measures) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 2601, 3411, and 3412 of the Insurance Law.

Chapter 360 of the Laws of 1997 amended Vehicle and Traffic Law section 429 to require full disclosure of the applicable status of a motor vehicle to a potential purchaser of that vehicle. Specifically, it must be disclosed when a vehicle being transferred is rebuilt salvage, and imposed a civil penalty on any person who knowingly and intentionally defrauded a purchaser by failing to make such disclosure.

This amendment to Insurance Regulation 64 required that in certain instances, the insurer, when authorizing repair of a vehicle after a covered loss, must obtain the vehicle title from the owner and forward it to the Department of Motor Vehicles so that it may be branded as “rebuilt salvage” and then returned to the vehicle’s owner.

• INS-22-99-00005-A (State Register of September 15, 1999) Amendment of Subpart 62-4 (Insurance Regulation 96) (Anti-Arson Application) of Title 11 NYCRR.

Statutory Authority: Sections 201, 301, and 3403 of the Insurance Law.

Insurance Regulation 96 implemented a new two-tier anti-arson application that included questions to be answered by applicants for new or renewal policies or binders covering the perils of fire or explosion. Since the regulation was first adopted in 1981, other sections of law applicable to such coverage had been amended, and certain requirements in Regulation 96 became inconsistent with the related provisions. This amendment brought the regulation into conformity with other applicable statutes and regulations.

Insurance Regulation 96 was amended in 2000 (INS-20-00-00006-A, State Register of November 27, 2000) to implement Chapter 456 of the Laws of 1999, which enacted a new subsection (h) to Insurance Law section 3403 that required the Superintendent to establish procedures by which an insurer may suspend or waive the requirement that the insurer use the anti-arson application upon renewal of policies, provided that the insurer can demonstrate that substantially equivalent information may be obtained through other means.

• INS-31-99-00017-A (State Register of November 3, 1999) Amendment of Part 52 (Insurance Regulation 62) (Medicare Supplement Insurance) of Title 11 NYCRR.

Sections 201, 301, 3201, 3216, 3217, 3218, 3221, 3231, 3232, 4235, 4237, and Article 43 of the Insurance Law.

This amendment to Insurance Regulation 62 revised the minimum standards for the form, content, and sale of Medicare supplement insurance to conform with the enactment of the Balanced Budget Act of 1997 (Public Law 105-33), which changed the federal minimum standards for Medicare supplement insurance.

In 2001, the Department amended Insurance Regulation 62 (INS-01-01-00009-A, State Register of March 21, 2001) to revise the minimum standards for the form, content, and sale of Medicare supplement insurance to conform with the enactment of the Balanced Budget Act of 1997 (Public Law 105-33), the Balanced Budget Refinement Act of 1999 (Public Law 106-170), and the Ticket to Work and Work Incentives Improvement Act of 1999 (Public Law 106-113), which changed the federal minimum standards for Medicare supplement insurance.

In 2002, Insurance Regulation 62 again was amended (INS-13-02-00004-AA, State Register of June 19, 2002) to revise the minimum standards for the form, content, and sale of Medicare supplement insurance to conform with changes to the federal minimum standards for Medicare supplement insurance.

In 2010, Insurance Regulation 62 was amended (INS-08-10-00002-A, State Register of May 5, 2010) to comply with federal requirements, as prescribed in the revised NAIC Medicare Supplement Insurance Minimum Standards Model Act.

• INS-29-99-00013 (State Register of December 8, 1999) Amendment of Part 52 (Insurance Regulation 62) (Minimum Standards for the Form, Content, and Sale of Health Insurance; Dental Care Exclusion) to Title 11 NYCRR.

Statutory Authority: Sections 201, 301, 3201, 3216, 3217, 3221, 4235, 4237, and Article 43 of the Insurance Law.

This amendment to Insurance Regulation 62 clarified that the dental exclusion permitted in health insurance policies did not extend to dental care or treatment necessary due to congenital disease or anomaly.

Part 2. Banking Regulations

Pursuant to Section 207 of the State Administrative Procedure Act, Review of Existing Rules, notice is hereby given of the following rules relating to banking which the Department of Financial Services will be reviewing this year to determine whether they should be continued or modified. These rules were adopted in 1999, 2004 and 2009. Public comment on the continuation or modification of the above rules is invited. Comments must be received within 45 days of the date of publication of this notice. Comments should be submitted to:

Sam L. Abram

Assistant Counsel

New York State Department of Financial Services

One State Street

New York, NY 10004

Telephone: (212) 709-1658

Email: [email protected]

The following rulemakings were adopted in 2009:

• Amendments to Part 38.1 of the General Regulations of the Banking Board (Definitions of Terms; Advertising; Application and Commitment Disclosures and Procedures; Improper Conduct under Article 12-D: Definitions).

Description of rule: The rule pertains to various mortgage loan requirements regarding advertising, application and commitment disclosures and procedures and improper conduct under Banking Law Article 12- D.

Legal basis for the rule: Banking Law Sections 6-l, 14, 590(3), 595-a.

Need for the rule: The rule is necessary to clarify and define certain mortgage loan terms.

• Amendments to Part 38.3 of the General Regulations of the Banking Board (Definitions of Terms; Advertising; Application and Commitment Disclosures and Procedures; Improper Conduct under Article 12-D: Applications Disclosures and Procedures).

Description of rule: The rule pertains to various mortgage loan requirements regarding application and commitment disclosures and procedures.

Legal basis for the rule: Banking Law Sections 6-l, 14, 590(3), 595-a.

Need for the rule: The rule is necessary to clarify and define the application disclosures and procedures with respect to applications for mortgage loans.

• Amendments to Part 38.11 of the General Regulations of the Banking Board (Definitions of Terms; Advertising; Application and Commitment Disclosures and Procedures; Improper Conduct under Article 12-D: Requirements for Branches).

Description of rule: The rule pertains to the various requirements for the establishment and operation of branch offices by mortgage bankers or mortgage brokers.

Legal basis for the rule: Banking Law Sections 6-l, 14, 590(3), 595-a.

Need for the rule: The rule is necessary to describe and clarify the requirements of the establishment and operation of branch offices of mortgage bankers and mortgage brokers.

• Amendments to Part 410.5 of the Superintendent’s Regulations (Mortgage Bankers: Licensing Requirements; Mortgage Brokers: Registration Requirements; Branch Applications: Notifications: Books and Records; Annual Reports: Surety Bonds; and Consultants of Licensed Mortgage Bankers and Registered Mortgage Brokers: Branch Application; investigation fees).

Description of rule: The rule outlines the specific branch application and investigation fees.

Legal basis for the rule: Banking Law Sections 12.

Need for the rule: This rule clarifies where one may locate a mortgage banker or mortgage broker branch application and the fees for each application.

• Amendments to Part 413.3 of the Superintendent’s Regulations (Procedures and Requirements for Mortgage Brokers to Act as FHA Mortgage Loan Correspondents: Minimum Standards required for Approval).

Description of rule: The rule outlines the minimum standards required to be approval to make FHA insured mortgage loans.

Legal basis for the rule: Banking Law Section 590.

Need for the rule: The rule explains how a mortgage broker may obtain the approval of the Superintendent to make FHA insured mortgage loans.

• Amendments to Supervisory Procedure MB 106 (Application to Act as an FHA Mortgage Loan Correspondent: Information and Documents required to be Submitted).

Description of rule: The rule pertains to the informational requirements for an application to act as an FHA Mortgage Loan Correspondent.

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

Need for the rule: The rule outlines the informational requirements for a FHA Mortgage Loan Correspondent application.

• Amendments to Supervisory Policy G 8 (Registration of Domestic Representative Offices).

Description of rule: This rule pertains to the informational requirements for a banking institution seeking to establish or maintain a representative office in New York.

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

Need for the rule: The rule outlines the informational requirements for a banking institution seeking approval from the Department in order to establish or maintain a representative office in New York.

The following rulemakings were adopted in 2004:

• Amendments to Part 400.12 of the Superintendent’s Regulations (Licensed Check Cashers: Fees).

Description of rule: This rule pertains to the licensing and the conduct of agents of money transmitters.

Legal Basis for the rule: Banking Law Sections 12, 37(3), 367, 369, 371, 372.

Need for rule: This rule describes the application process to obtain approval to engage in money transmission activities as an agent of a licensed money transmitters and rule of conduct thereof.

• Amendments to Part 402 of the Superintendent’s Regulations (Budget Planners).

Description of rule: This rule implements new statutory requirements relating to budget planners operating in New York.

Legal Basis for the rule: Banking Law Sections 12, 587.

Need for rule: This rule is needed to set forth and clarify the requirements for a budget planner to be licensed and operate in New York.

• Amendments to Part 410 of the Superintendent’s Regulations of the Banking Board (Mortgage Bankers: Licensing Requirements; Mortgage Brokers: Registration Requirements; Branch Applications: Notifications: Books and Records; Annual Reports; Surety Bonds; and Consultants of Licensed Mortgage Bankers and Registered Mortgage Brokers).

Description of rule: This rule outlines the various requirements proscribed for mortgage bankers and mortgage brokers in New York.

Legal Basis for the rule: Banking Law Section 12, Art.12-D.

Need for rule: This rule is needed to implement legislation regarding surety bond requirements for mortgage bankers and mortgage brokers by establishing a schedule of bond amounts and the rule also covers consultants and imposes more stringent recordkeeping requirements on mortgage bankers.

• Amendments to Supervisory Policy G 8 (Registration of Domestic Representative Offices).

Description of rule: This rule describes the registration process for a banking institution to register a domestic representative office.

Legal Basis for the rule: Banking Law Sections 14(1), 132, 258.

Need for rule: The Department has adopted further amendments to this rule.

• Amendments to Supervisory Policy G 106 (Public Access to Banking Department Records).

Description of rule: This rule explains the Department’s Freedom of Information Law procedures.

Legal Basis for the rule: Banking Law Sections 1, 36.10; Public Officers Law Sections 87, 89

Need for rule: This rule outlines the Department’s Freedom of Information Law procedures and clarifies the times and places when records are available, persons from whom records are available, payment of fees, denial of access to records, right of appeal and confidential communications.

The following rulemakings were adopted in 1999:

• Amendments to Part 6.5 of the General Regulations of the Banking Board (Additional Authority of Banks, Trust Companies, Savings Banks and Savings and Loan Associations pursuant to Banking Law, Sections 14-g and 14-h: Investments in Community Development Entities or Projects)

Description of rule: The rule sets forth the guidelines for investments in community development entities or projects for banks and trust companies.

Legal basis for the rule: Banking Law Section 13.4, 14-g and 14-h.

Need for rule: Part 6.5 provides New York State-chartered banks parity with national banks, utilizing New York’s Wildcard authority. This rule allows state-chartered banks to certify equity investments that are designed primarily to promote the public, including the welfare of low-and moderate-income areas or individuals.

• Amendments to Part 14.3 of the General Regulations of the Banking Board (Investments in Corporations by Banks and Trust Companies: Investment Procedures for Operating Subsidiaries and Edge Act Subsidiaries).

Description of rule: The rule sets forth the investment procedures for operating subsidiaries and Edge Act Subsidiaries of New York state-chartered banks.

Legal basis for the rule: Banking Law Sections 14(1) and 97(4-a).

Need for rule: The rule permits qualified state-chartered commercial banks and trust companies to provide the Department with notification within thirty days after acquiring, establishing, making new investments in, or performing new activities in certain operating subsidiaries.

• Amendments to Part 14.4 of the General Regulations of the Banking Board (Investments in Corporations by Banks and Trust Companies: Investment Procedures for other Stock Investments).

Description of rule: The rule sets forth the investment procedures for other stock investments made by banks and trust companies.

Legal basis for the rule: Banking Law Sections 14(1) and 97(4-a).

Need for rule: The rule permits qualified state-chartered commercial banks and trust companies to provide the Department with notification within thirty days after acquiring, establishing, making other stock investments in any other corporation.

• Adoption of New Part 31.2 of the General Regulations of the Banking Board (Investments of Banks or Trust Companies in Certain Corporations: The Depository Trust Company).

Description of rule: The rule pertains to the investments of banks and trust companies in certain corporations.

Legal basis for the rule: Banking Law Section 14(1)(d) and 97(5).

Need for rule: The rule allows banks and trust companies to invest in the common stock of Depository Trust Clearing Corporation, which serves as a holding company for the Depository Trust Company and the National Securities Clearing Corporation.

• Adoption of New Part 32.1 of the General Regulations of the Banking Board (Maximum Charges for Payments made against Insufficient Funds, Uncollected Balances and Return Items; Certain Disclosures: Maximum Charges).

Description of rule: The rule permits a charge to be imposed by banking institutions on its customers for insufficient funds and return items with a check or other written order received by it for collection.

Legal basis for the rule: Banking Law Sections 108(8), 202(8), 235-c, 383(13).

Need for rule: This rule outlines the factors a banking institution must consider when imposing a charge on its customers for insufficient funds and return items with a check or other written order by it for collection so as to deter this practice.

• Adoption of New Part 32.4 of the General Regulations of the Banking Board (Maximum Charges for Payments made against Insufficient Funds, Uncollected Balances and Return Items; Certain Disclosures: Required Disclosures).

Description of rule: This rule permits a charge to be imposed by banking institutions on it customers for insufficient funds and return items with a check or other written order received by it for collection.

Legal basis for the rule: Banking Law Sections 14(1), 108(8), 202, 235-c, 383(13).

Need for rule: This rule requires banks to inform depositors who may write checks drawn upon insufficient funds of the sequence employed by the bank to pay checks drawn each day upon such accounts.

• Adoption of New Part 207.1 of the General Regulations of the Banking Board (Permission to Serve as an Executive Officer, Director or Trustee of Banks, Trust Companies, Savings Banks, Savings and Loan Associations, Foreign Banking Corporations, National Banks, Federal Savings and Loan Associations and Bank Holding Companies: Depository Trust Company).

Description of rule: The rule pertains to permission to serve as an executive officer, director or trustee of banks, trust companies, savings banks, savings and loan associations, national bank, federal savings and loan associations and bank holding companies.

Legal basis for the rule: Banking Law Sections 130(3)(b), 143(3)(b), 209(3), 247(5)(b) and 399-a(2). Need for rule: The rule grants permission for present and future officers of banks, trust companies, bank holding companies, foreign banking corporations maintaining branches in this State and national banks located in this State to serve at the same time as directors or members of committees authorized by the board of directors, or both, of The Depository Trust & Clearing Corporation and its subsidiaries.

• Amendments to Part 400.6 of the Superintendent’s Regulations (Licensed Cashers of Checks: Reports of Arrests, Convictions, Etc.).

Description of rule: This rule pertains to the conduct of business by licensed cashers of checks.

Legal Basis for the rule: Banking Law Sections 12, 37(3), 371 and 372.

Need for rule: This rule explains the requirement that a written report must be submitted to the Department regarding any arrest, conviction of any stockholder, director, officer, owner, partner or employee of the licensee.

• Amendments to Part 400.12 of the Superintendent’s Regulations (Licensed Cashers of Checks: Agents of Money Transmitters).

Description of rule: This rule pertains to the licensing and the conduct of agents of money transmitters.

Legal Basis for the rule: Banking Law Section 12, 37(3), 371 and 372.

Need for rule: The Department has adopted further amendments to this rule.

• Amendments to Part 402 of the Superintendent’s Regulations (Budget Planners: Definitions).

Description of rule: This rule outlines the definitions of terms pertaining to Budget Planners.

Legal Basis for the rule: Banking Law Section 587.

Need for rule: The Department has adopted further amendments to this rule.

Pursuant to the State Administrative Procedure Act Section 207 and 202-d, the Department of Health invites public comment on the continuation or modification of the following rules. Public comments will be accepted for 45 days from the date of publication in the State Register and should be submitted to Katherine Ceroalo, Bureau of House Counsel, Regulatory Affairs Unit, Corning Tower, Room 2438, Empire State Plaza, Albany, NY 12237 by email at [email protected].

Title 10 NYCRR - Five Year Review

Amendment of Subpart 7-1 and Addition of New Subpart 7-4 of Part 7 of Title 10 - Temporary Residences and Mass Gatherings

Statutory Authority:

Public Health Law Section 225(5)

Description of the regulation:

Amended Subpart 7-1 of Title 10 NYCRR to: relocate sections pertaining to mass gatherings to a newly created Subpart 7-4; repeal sections pertaining to campgrounds (text previously moved to Subpart 7-3); repeal sections applicable to special provisions of hotels and motels and other requirements for employers; delete section reserved for mobile home parks; repeal text applicable to temporary residences and replace with newly drafted text. The regulation should continue without modification.

Addition of New Section 16.112 to Part 16 of Title 10 - Fingerprinting and Criminal Background Check Requirements for Unescorted Access to Radioactive Materials)

Statutory Authority:

Public Health Law Sections 225(5)(p) and (q)

Description of the regulation:

The amendments that incorporated a new Section 16.112 of Part 16 required fingerprinting of individuals who are allowed unescorted access to large quantities of radioactive material. This provision is necessary to be compliant with the requirements of the United States Nuclear Regulatory Commission. The regulation should continue without modification.

Amendment of Part 53 of Title 10 - Drinking Water State Revolving Fund

Statutory Authority:

Public Health Law Sections 1161 and 1162

Description of the regulation:

This regulation outlined rules and procedures for the New York State Department of Health to provide financial assistance to public water systems through the New York State Drinking Water State Revolving Fund (DWSRF). The DWSRF was created by Chapter 413 of the Laws of 1996 of the State of New York. Amendments were enacted in 2009 facilitate the use of additional Federal Capitalization Grant funds provided to the program through the American Recovery and Reinvestment Act. The regulation should continue without modification.

Amendment of subdivisions 59.1(c) and 59.4(b) of Title 10 - Chemical Analyses of Blood, Urine, Breath or Saliva for Alcohol Content

Statutory Authority:

NYS Vehicle and Traffic Law, Section 1194(4)(c) and Dept. of Environmental Conservation Law, Section 11-1205(6)

Description of the regulation:

This regulation established standards for the chemical analyses of blood, urine, breath and saliva for alcoholic content, instrument approval, and operator permits, to ensure law enforcement agencies have the appropriate tools and proficiency in their use for effective enforcement of DWI prosecution laws. Subdivision 59.1(c) clarified that chemical tests/analyses includes breath tests conducted on breath analysis instruments approved by the commissioner and 59.4(b) lists approved instruments found on the Conforming Products List of Evidential Breath Alcohol Measurement Devices as established by the U.S. Department of Transportation/National Highway Traffic Safety Administration (NHTSA). The regulation should continue without modification.

Amendment of Subparts 67-1 and 67-3 of Part 67 of Title 10 - Childhood Lead Poisoning Screening and Follow-up

Statutory Authority:

Public Health Law Section 206

Description of the regulation:

Subpart 67-1 was amended to lower the blood lead level threshold for requiring comprehensive case management services and environmental interventions from 20 micrograms per deciliter (mcg/dL) to 15 mcg/dL. Subpart 67-3 was amended to authorize the use of waived blood testing equipment by physician office laboratories and limited service laboratories, with reporting requirements to the Department. The regulations should continue without modification.

Addition of New Subpart 72-1 to Title 10 - Tanning Facilities

Statutory Authority:

Public Health Law Section 3551 and 3554

Description of the regulation:

The regulations established permit requirements, fees and standards for the safe and sanitary operation of ultraviolet (UV) tanning facilities. The regulation should continue without modification.

Amendment of Sections 80.2, 80.23, 80.67, 80.68, 80.69, 80.71, 80.73, 80.74, 80.132 and 80.134 of Part 80 of Title 10 - Controlled Substances Data Submissions

Statutory Authority:

Public Health Law Section 3308(2), 3333, 3343-a, 3371

Description of the regulation:

These regulations govern and control possession, prescribing, manufacturing, dispensing, distribution and reporting of controlled substances and needles and syringes within New York State. They should continue without modification.

Amendment of Section 86-1.62 of Title 10 - Service Intensity Weights (SIWs) and Average Lengths of Stay

Statutory Authority:

Public Health Law Section 2807-c(3)

Description of the regulation:

Section 86-1.62 has been re-codified as 86-1.18. Service intensity weights (SIW) and average lengths of stay (LOS) are integral components of the current DRG based inpatient Medicaid rate-setting methodology. This regulation should therefore be retained.

Amendment of Section 86-4.9 of Subpart 86-4 of Title 10 - Payment for FQHC Psychotherapy and Off-site Services (previously known as Payment for Psychiatric Social Work Services in Article 28 FQHCs)

Statutory Authority:

Public Health Law Section 201.1(v)

Description of the regulation:

Medicaid reimbursement for psychotherapy and off-site services provided by federally qualified health centers (FQHCs) continues to be required under federal Medicaid statutes. Accordingly, this regulation should be retained.

Amendment of Part 89 of Title 10 - Practice of Radiologic Technology

Statutory Authority:

Public Health Law Section 3504

Description of the regulation:

The amendments updated educational, licensing and certification requirements for persons engaged in the practice of radiologic technology as well as standards for educational programs in radiologic technology. The regulation should continue without modification.

Amendment of Section 400.12 of Title 10 - PASRR SCREEN Requirements

Statutory Authority:

Public Health Law Section 2803(2)

Description of the regulation:

This measure updated Pre-Admission Screen and Resident Review (PASRR) provisions. The SCREEN is used to determine a person’s potential to be appropriately cared for in a setting other than a Residential Health Care Facility (RHCF). It is also used to assess persons being recommended for RHCF placement for possible mental illness and/or mental retardation or developmental disabilities. The regulation should continue without modification.

Addition of new Part 402 to Title 10 - Criminal History Record Check

Statutory Authority:

Public Health Law Section 2899-a(4) and Executive Law Section 845-b(12)

Description of the regulation:

These regulations are required by Chapter 769 of the Laws of 2005, as amended by Chapters 331 and 673 of the Laws of 2006. The regulations required prospective unlicensed employees of nursing homes, certified home health agencies, licensed home care services agencies and long term home health care programs that will provide direct care or supervision to patients, residents or clients of such providers to undergo a criminal history record check. The regulations established standards and procedures for the criminal history record checks required by statute. The regulation should continue without modification.

Amendment of Sections 405.19, 405.22 and Addition of new Section 405.29 of Title 10 - Emergency and Cardiac Services

Statutory Authority:

Public Health Law Sections 2800 and 2803

Description of the regulation:

These provisions created a new Section 405.29 specific to cardiac services and set forth requirements for the direction, staffing, structure and services, patient selection and minimum workload standards for cardiac surgery, diagnostic cardiac catheterization, percutaneous coronary intervention (PCI), and for cardiac electrophysiology (EP) programs. The regulation should continue without modification.

Amendment of Section 709.14 of Title 10 - Cardiac Services Need Methodology

Statutory Authority:

Public Health Law Sections 2800 and 2803

Description of the regulation:

These standards are used to evaluate certificate of need (CON) applications for cardiac catheterization laboratory center services and cardiac surgery center services. The regulation should continue without modification.

Amendment of Section 710.1 of Part 710 of Title 10 - Certificate of Need Process for Cardiac Services

Statutory Authority:

Public Health Law Section 2803(2)

Description of the regulation:

This regulation streamlined approvals of applications by approved cardiac surgery programs and cardiac catheterization laboratory centers to expand capacity and/or add electrophysiology (EP). It also addressed in regulation for the first time the Certificate of Need (CON) reviews of cardiac EP services. The regulation should continue without modification.

Amendment of Section 710.1 of Part 710 of Title 10 - Initial Purchase of Magnetic Resonance Imagers (MRIs)

Statutory Authority:

Public Health Law Section 2802

Description of the regulation:

Proposals for acquisition of MRIs were eligible for administrative review provided that acquisitions of MRIs by a general hospital may be reviewed under the provisions for proposals requiring a limited review. The regulation should continue without modification.

Amendment of Section 710.1 of Part 710 of Title 10 - Non-clinical Projects

Statutory Authority:

Public Health Law Section 2802

Description of the regulation:

These provisions exempted those non-clinical projects from requiring a Certificate of Need that are subject to the provisions for proposals requiring a limited review. The regulation should continue without modification.

Amendment of Section 710.1 of Part 710 of Title 10 - Relocation of Extension Clinics

Statutory Authority:

Public Health Law Section 2802

Description of the regulation:

This regulation authorized administrative review for the operation or relocation of an extension clinic when such relocation is to a site outside the current services area of the extension clinic and did not entail an increase in scope of services or clinical capacity.

It also authorized for limited review the relocation of an extension clinic within the same service area, defined and (1) one or more postal zip code areas in each of which twenty-five (25) percent or more of the extension clinic’s patients reside, or (2) the area within one mile of the current location of such extension clinic, which does not entail an increase in services or clinical capacity. The regulation should continue without modification.

Amendment to Section 901.9 of Title 10 - Notification & Submission Requirements for Continuing Care Retirement Communities

Statutory Authority:

Public Health Law Section 4602(2)(g)

Description of the regulation:

The amendment provided that requests made by Continuing Care Retirement Communities (CCRCs) for certain extensions of construction completion dates can be approved by the Commissioner of Health, in consultation with the Superintendent of the Division of Financial Services, and eliminated the requirement to obtain CCRC Council approval. This provision streamlined the process for such requests and assists CCRCs working within strict financing deadlines. The regulation should continue without modification.

Amendment of Section 1000.1 of Title 10 - Physician Board Certification Entities

Statutory Authority:

Public Health Law Section 2995(1)(b)

Description of the regulation:

Part 1000 of 10 NYCRR set forth the Physician Profiles provisions. Section 1000.1 contained the definitions for Part 1000 including the definition for Board Certification. This definition specified that Board Certification means a specialty or subspecialty in which a physician is certified by the American Board of Medical Specialties (ABMS), American Osteopathic Association (AOA), or Royal College of Physicians and Surgeons of Canada (RCPSC). The regulation should continue without modification.

Title 18 NYCRR - Five Year Review

Amendment of Section 505.11 of Title 18 - Physical Therapist Assistants and Occupational Therapy Assistants

Statutory Authority:

Social Services Law Section 363-a and Public Health Law Section 201(1)(v)

Description of the regulation:

Section 505.11 pertained to rehabilitation services (physical, occupational and speech therapy).

Section 505.11 of Title 18 is on the current Regulatory Agenda. This regulation is being amended to align it with State Education law, federal guidelines, and current standards of practice for physical, occupational, and speech therapy.

Title 10 NYCRR - Ten Year Review

Amendment of Sections 2.1 and 2.5 of Title 10 (Communicable Disease Reporting-Severe Acute Respiratory Syndrome (SARS))

Statutory Authority:

Public Health Law (PHL) § 206(1)

Description of the regulation:

Severe Acute Respiratory Syndrome (SARS) is a viral respiratory illness that was recognized as a global threat in March 2003, after first appearing in Southern China in November 2002. In 10 percent to 20 percent of cases, patients require mechanical ventilation. Most patients develop pneumonia. The primary way that SARS appears to spread is by close person-to-person contact. In 2003, SARS was added to the communicable disease list in 10 NYCRR.

Although there have been no SARS cases reported since July 2003, it remains critical to keep SARS as a reportable condition to ensure the immediate identification, reporting, and investigation of any possible new cases. If cases go unidentified, spread in the population could have significant public health consequences. The regulation should be continued without modification.

Amendment of Sections 2.1 and 2.5 of Title 10 (Communicable Diseases - Monkeypox)

Statutory Authority:

PHL §§ 225(4), 225(5)(a), (g), (h) and (i), and 206(1)

Description of the regulation:

Monkeypox is a viral disease from Africa that resembles smallpox in humans and can be spread from animal to person or person to person through direct contact or respiratory droplets. Although human cases in the U.S. have not been seen since 2003 when this regulation was enacted, there is the possibility of cases occurring again in the future. Continuance of this regulation is warranted in order to improve reporting (Section 2.1) and laboratory testing (Section 2.5) of cases. The regulation should be continued without modification.

Amendments to Section 2.1(a) and addition of new Section 2.2(h) to Title 10 (Communicable Diseases - Arboviral Infection Reporting)

Statutory Authority:

PHL §§ 206(1) and 602.3

Description of the regulation:

This regulation simplified the requirements for reporting all arthropod-borne viral (arboviral) diseases rather than listing individual diseases with separate responses. This regulation grouped all of these, primarily mosquito-borne and potentially fatal diseases, into one inclusive term. As such, any potential confusion regarding responses to individual disease pathogens is minimized. The regulation should be continued without modification.

Amendment to various Sections in Part 5 of Title 10 (Public Notification, ByProducts and Interim Enhanced Surface Water Treatment Rule (SWTR) - Drinking Water)

Statutory Authority:

PHL § 225

Description of the regulation:

The amendment to various sections of Subpart 5-1 incorporated the requirements of the federal Interim Enhanced Surface Water Treatment Rule (IESWTR) and the Stage 1 Disinfectants and Disinfection Byproducts Rule (DBP Rule) and the Public Notification Rule (PNR) which were promulgated by the United States Environmental Protection Agency. All of these rules are requirements of 40 CFR Part 141. As a condition of the New York State Department of Health's primacy, there must be state rules or other authority that are at least as stringent as 40 CFR Part 141 to assure that public water systems comply with the requirements of the IESWTR, DBP Rule, and the PNR. The amendment should continue without modification.

Amendment of Subpart 6-2 of Title 10 (Bathing Beaches)

Statutory Authority:

PHL § 225

Description of the regulation:

The 6/23/04 amendments clarified the definition of “bathing” so that activities such as fishing, scuba diving and surf boarding were no longer prohibited at areas outside of regulated bathing beaches or at regulated bathing beaches when not open to bathing. The amendment also added enterococcus and E. coli as acceptable bacteriological indicator organisms to assess water quality at bathing beaches and clarified factors to be considered when determining if water quality creates a potential health hazard requiring closure of a beach. The regulation should continue without modification.

Amendment of Subpart 7-2 of Part 7 of Title 10 (Children's Camps)

Statutory Authority:

PHL §§ 225 and 1394

Description of the regulation:

The 9/29/04 amendments to Subpart 7-2 added standards for children’s camp trips, swimming, incidental water immersion, on-site activities and bunk bed guardrails; clarified and added potable water standards; and updated and clarified obsolete wording and standards. Analysis of the rule identified the need for minor revisions to the 9/29/04 amendments pertaining to swimming, which are included in current amendments proposed for this Subpart. The other amendments to the rule should continue without modification. Regulatory Status: Analysis of the rule identified the need for minor revisions to the September 29, 2004 amendments pertaining to swimming, which were made on July 6, 2011. The other 2004 amendments should continue without modification.

Amendments to Section 16.58 of Part 16 of Title 10 (Fluoroscopic X-ray Equipment)

Statutory Authority:

PHL § 225

Description of the regulation:

The amendment to Section 16.58 of Part 16 updated the quality control testing for fluoroscopic x-ray equipment. The requirements assured uniformity in testing and compliance with standards for image quality and patient doses. The amendment should continue without modification.

Amendment of Sections 55-2.1 through 55-1.12 of Subpart 55-2 of Title 10 (Environmental Laboratories)

Statutory Authority:

PHL § 502

Description of the regulation:

The rule established minimum standards for the certification and operation of environmental laboratories analyzing New York State samples, including personnel qualifications and quality systems standards for analytical processes and record keeping. A revision is under consideration to update technical standards.

Addition of new Sections 55-2.12 and 55-2.13 to Subpart 55-2 of Title 10 (Environmental Laboratory Standards)

Statutory Authority:

PHL § 502

Description of the regulation:

This regulation established requirements for the certification and operation of environmental laboratories. The two sections established requirements for laboratories engaged in testing for critical agents in environmental samples and qualifications for contract laboratory protocol personnel. Modifications to section 55-2.12 are proposed to establish consistency with Department of Environmental Conservation requirements. Section 55-2.13 should be continued without modification.

Amendment of Subpart 58-2 of Title 10 (Blood Banks)

Statutory Authority:

PHL § 3121(5)

Description of the regulation:

Subpart 58-2 promoted the public health, safety and welfare by establishing minimum standards for the proper collection, processing, fractionation, storage, distribution and supply of human blood or blood products for use in transfusion. In order to keep pace with current technology, periodic amendments are necessary. The rule was most recently amended in 2007 to update practice standards, lower donor age, and recognize advances in technology. Continuance of these regulations is warranted. A proposed amendment of Subpart 58-2 is currently under consideration. This amendment would update technical requirements for the collection, testing, and storage of blood and blood components, allow increased flexibility in compliance, and allow advanced life support emergency medical technicians to administer blood components during transport of patients from one hospital to another. This proposed rule was included in the June 1, 2013 Regulatory Agenda. No comments have been received.

Amendment of Subpart 58-5 of Title 10 (Hematopoietic Progenitor Cell Banks)

Statutory Authority:

PHL §§ 3121(5) and 4365(7)

Description of the regulation:

Subpart 58-5 promoted the public health, safety and welfare by establishing minimum standards for the banking of hematopoietic progenitor cells (HPCs), which are immature blood cells. These requirements have helped ensure that HPCs collected, processed, and used in New York State are obtained from fully screened and tested donors with documented informed consent. HPC banks operating in New York are subject to tissue bank licensure under Part 52 pursuant to PHL 4364. The regulations must be amended from time to time, in order to keep pace with advances in technology and practice standards; such amendment is under consideration. Continuance of these regulations is warranted.

Amendment of Section 69-1.3(1)(2) of Part 69 of Title 10 (Expedited HIV Testing of Women and Newborns)

Statutory Authority:

PHL §§ 576, 2500-a, and 2522

Description of the regulation:

Subpart 96-1.3(1)(2) promoted the public health and welfare by ensuring that the HIV exposure status is available for all newborns for mothers who have not been tested for HIV during the current pregnancy or for whom HIV test results are not available at delivery. This allows providers and patients information that is critical for the timely and efficacious administration of antiretroviral medications to prevent mother-to-child HIV transmission should the mother be HIV-infected. This amendment should be continued without modification.

Amendment of Section 80.86 and addition of a new Section 80.84 of Title 10 (Treatment of Opiate Dependence in the Outpatient Setting)

Statutory Authority:

PHL § 3308(2), 3351 and 3352

Description of the regulation:

This regulation allowed the treatment of narcotic addiction in the outpatient setting, pursuant to the provisions of the federal Drug Addiction Treatment Act of 2000. Under the regulation, a qualified physician may treat narcotic addiction by issuing a prescription for buprenorphine, a controlled substance approved by the U.S. Food and Drug Administration and the New York State Department of Health for such treatment. The prescription may be dispensed to the patient by a pharmacist. Prior to the regulation, narcotic addiction could only be treated by enrollment in a Methadone Maintenance Treatment Program (MMTP). The regulation ensures effective addiction treatment in the confidentiality of an office setting for persons who may be unable or unwilling to seek treatment in a MMTP venue. The regulation protects the public health by resulting in more persons entering treatment. Continuance of this regulation is warranted with modification of the total number of patients an authorized physician may treat, which will mirror current federal regulations, and modification to records and reports of treatment programs pursuant to statutory changes in Chapter 178 of the Laws of 2010.

Amendment to Section 85.21 of Title 10 and Section 505.3 of Title 18 (Smoking Cessation Products):

Statutory Authority:

Social Services Law (SSL) § 365-a(4)

Description of the regulation:

This regulation provided for inclusion of non-prescription smoking cessation drugs on the list of reimbursable drugs under the NYS medical assistance program. This regulation supports the DOH’s commitment to curtail tobacco use and to encourage smoking cessation. There have been no changes that would necessitate further amendment or repeal of this section. Continuance of the regulation is warranted.

Amendments to Sections 86-1.62 and 86-1.63 of Title 10 (DRGs, SIWs, Trimpoints and Arithmetic Mean LOS)

Statutory Authority:

PHL §§ 2803(2), 2807(3), and 2807-c(3) and (4)

Description of the regulation:

Section 86-1.62 has been re-codified as 86-1.18. Service intensity weights (SIW) and average lengths of stay (LOS) are integral components of the current DRG based inpatient Medicaid rate-setting methodology. This regulation should therefore be retained.

Amendment of Sections 88-2.1 and 88-2.2 of Part 88 of Title 10 (New York State Veterans’ Home)

Statutory Authority:

PHL Article 4, Title 1 and PHL Article 26-A.

Description of the regulation:

The amendments to these sections were technical in nature by incorporating all the veterans’ homes owned and operated by the NYS Department of Health. The Department currently owns and operates the Veterans’ Homes at Batavia (Genesee County), Montrose (Westchester County), Oxford (Chenango County) and St. Albans (Queens County).

There have been no other technical or procedural changes that would necessitate further amendments or repeal of these sections. The benefits of this technical change to include all four veterans’ homes as covered by this regulation continue to be realized. Continuance of the regulation is warranted.

Repeal of Section 131.1 of Part 131 and addition of new Section 131.1 of Title 10 (City of Syracuse Watershed Rules and Regulations)

Statutory Authority:

PHL § 1100

Description of the regulation:

The rule provided extensive regulations intended to protect Syracuse’s Skaneateles Lake Watershed by providing various limitations on activities and construction. The continuation of the rule is necessary to maintain protection of Syracuse’s Skaneateles Lake Watershed and for Syracuse to maintain filtration avoidance for this surface water source. The regulation should continue without modification.

Amendment of Section 405.22 of Title 10 (Live Adult Liver Donation and Transplantation)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

This regulation set forth provisions to ensure that potential donors are competent, willing to donate, free from coercion, medically and psychosocially suitable, fully informed of the risks and benefits as a donor and understand the alternative treatments that may be available to the recipient.

This measure is currently being modified. The provisions in 405.22 will be repealed and incorporated into two new Sections in 10 NYCRR. Section 405.30 will contain the Organ and Vascularized Composite Allograph Transplant Services/Programs provisions. Section 405.31 outlines the Living Donor Transplantation Services provisions.

Amendment of Sections 405.24(h) and 415.29(l) of Title 10 (Standards for Animals in Health Care Facilities)

Statutory Authority:

PHL §§ 2803(2) and 2803-h

Description of the regulation:

This regulation was amended to be consistent with the federal Americans with Disabilities Act (ADA) and PHL § 2803-h which gives hospitals and nursing homes the option to board animals. Service animals, not limited to guide dogs, for a disabled person are allowed, as long as they do not pose a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation and are not medically contraindicated. This regulation should be retained.

Repeal Parts 425-427 and addition of new Part 425 and amendment to Parts 711 and 713 of Title 10 (Adult Day Health Care)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

Effective 3/17/2004, PHL § 2803(2) defined “adult day health care” as the health care services and activities provided to a group of registrants with functional impairments to maintain their health status and enable them to remain in the community. This program serves registrants, defined as a person (1) who is not a resident of a residential health care facility, is functionally impaired and not homebound, and requires supervision, monitoring, preventive, diagnostic, therapeutic, rehabilitative or palliative care or services but does not require continuous 24-hour-a-day inpatient care and services, except that where reference is made to the requirements of Part 415 of this Subchapter, the term resident as used in Part 415 shall mean registrant; (2) whose assessed social and health care needs can satisfactorily be met in whole or in part by the delivery of appropriate services in the community setting; and (3) who has been admitted to an adult day health care program based on an authorized practitioner's order and the adult day health care program's interdisciplinary comprehensive assessment. The program is defined as an approved adult day health care program located at a licensed residential health care facility or an approved extension site.

Amendments to these regulations are proposed that would enable adult day health care programs in nursing homes to contract and work effectively with managed long term care

Plans (MLTC) and coordinated care models (CCM) as more Medicaid recipients are required to enroll in MLTC and CCM.

Amendment of Section 700.2(b)(32) and (44) of Part 700 of Title 10 (Certification Requirements for Physical Therapist Assistants and Limited Permits for Physical Therapists)

Statutory Authority:

PHL § 2803(2) and Chapter 404 of the Laws of 2002

Description of the regulation:

This regulation amended the definitions in the State Hospital Code for “physical therapy assistants” and “physical therapists” to conform to definitions consistent with Chapter 404 of the Laws of 2002.

The law shortened the duration of a limited permit to practice physical therapy from 1 year to 6 months. The previous regulation was silent on the issue of limited permits. New language was also added to the definition for those individuals who are not yet licensed and registered with the Education Department that specifies that they be issued a valid limited permit by the Education Department. The law also added an examination for certification as a physical therapy assistant and provides for limited permits for physical therapy assistants prior to certification. The physical therapy assistant definition added language specifying that they are licensed and currently registered with the New York State Education Department, or have been issued a valid limited permit by that Department. This regulation should be retained.

Amendment of Section 709.3 of Title 10 (Need Methodology for Residential Health Care Facility (RHCF) Beds)

Statutory Authority:

PHL § 2802

Description of the regulation:

This regulation was updated in 2010 to reflect changes in demographics and in long-term care services that affect the public need for RHCF (nursing home) beds. The regulation projected RHCF bed need through 2016 and should be retained.

Amendment of Section 800.26 of Part 800 of Title 10 (Emergency Ambulance Service Vehicle Equipment Requirements)

Statutory Authority:

PHL §§ 3011(4) and 3016

Description of the regulation:

This regulation described an emergency ambulance service vehicle (EASV). These vehicles are either owned or operated by an ambulance service and designated for the purposes of responding to medical emergencies with personnel and/or equipment and supplies. The EASV is not to be used to transport patients. This amendment was intended to give ambulance agencies greater flexibility in deploying their equipment and personnel to the scene of a medical or traumatic emergency. Continuance of this regulation amendment is warranted.

Addition of a new Part 801 to Title 10 (Resuscitation Equipment in Public Places)

Statutory Authority:

PHL § 3000-D

Description of the regulation:

This regulation required the owner or operator of a public place, as described in law and the regulation, to make available certain items of resuscitation equipment and make them readily accessible for use by either trained staff or the public during a medical emergency. It required that the equipment be located in such place that it may be brought to a patron’s side within three minutes of the onset of an event. Further, the regulations included requirements for appropriate signage indicating the availability of resuscitation equipment for emergency use and providing information on how to obtain cardiopulmonary resuscitation training. Continuance of these regulations is warranted.

Title 10 NYCRR - Fifteen Year Review

Amendment of Section 16.58 of Title 10 (Fluoroscopic X-ray Systems)

Statutory Authority:

PHL § 225

Description of the regulation:

The amendment to Section 16.58 of Part 16 limited the radiation output of fluoroscopic x-ray tubes when the fluoroscopic unit was operating in the high-level control mode. There have been no technological or procedural changes that would necessitate further amendment or repeal of this section. The amendment should continue without modification.

Addition of Subparts 47-3, 47-4, 47-5 and 47-6 to Part 47 of Title 10 (Primary Care Education and Training)

Statutory Authority:

PHL §§ 901, 903 and 904

Description of the regulation:

These regulations effectively served NYS DOH scholarship and loan repayment recipients who fulfilled their service obligations under these programs in the past. However, because the benefits of the amendment no longer continue to be realized, continuance of the regulation is not currently warranted.

Amendment to Subpart 58-5 of Title 10 (Hematopoietic Progenitor Cell Banks)

Statutory Authority:

PHL §§ 3121(5) and 4365(7)

Description of the regulation:

Subpart 58-5 established minimum standards for the banking of hematopoietic progenitor cells (HPCs), which are immature blood cells. These requirements have helped ensure that HPCs collected, processed, and used in New York State are obtained from fully screened and tested donors with documented informed consent. HPC banks operating in New York are subject to tissue bank licensure under Part 52 pursuant to PHL 4364. Most recently amended in 2004, these regulations must be amended from time to time, in order to keep pace with advances in technology and practice standards; such amendment is under consideration. Continuation of these regulations is warranted.

Amendment of Subpart 58-8 of Title 10 (HIV Testing of Newborns)

Statutory Authority:

PHL §§ 576(4) and 2786

Description of the regulation:

Subpart 58-8 promoted the public health, safety and welfare by establishing minimum standards for clinical laboratory testing and reporting of test results to detect human immunodeficiency virus (HIV) and to monitor infected individuals. Future amendments may be required to create consistency with the HIV testing law implemented September 1, 2010 and supporting regulations of Part 63. The amendments will also address updated technologies and revise the testing algorithms for the management of HIV. Continuance of these regulations is warranted.

Amendment of Sections 80.67, 80.69, 80.73 and 80.74 (Addition of Prescription Information)

Statutory Authority:

PHL §§ 3308(2) and 3338(3)

Description of the regulation:

This regulation allowed pharmacists to complete certain missing or incorrect information on an official New York State prescription, upon receiving oral authorization to do so from the prescribing practitioner. Allowing the pharmacist to add or change such information saved the patient the inconvenience of having to return to the practitioner who issued the prescription. The regulation ensured access to controlled substances for legitimate medical use and saved practice time for the prescriber and the pharmacist resulting from return visits to each. Continuance of this regulation is warranted.

Amendment of Sections 80.67, 80.69, 80.71 and 80.72 (Three-Month Controlled Substance Medication)

Statutory Authority:

PHL § 3308(2)

Description of the regulation:

The regulations provided consistent access to medication for all patients being treated with controlled substances for attention deficit disorder (ADHD). This regulation allowed patients of any age to obtain up to a 3-month supply of a controlled substance for treatment when prescribed by their practitioner since ADHD has been proven to extend into adulthood. Some prescription plans allowed for a single co-pay for a 3-month supply. The amendment has resulted in significant cost savings to the patient. Continuance of this regulation is warranted.

Amendment of Section 86-6.6 (Hospice Supplemental Financial Assistance)

Statutory Authority:

PHL § 4012-a

Description of the regulation:

The regulation permanently extended the Hospice Supplemental Financial Assistance Program until the supporting program legislation expires. The rule should continue without modification.

Amendment of Paragraph 415.14(a)(1) (Qualifications of Nursing Home Director of Food Services)

Statutory Authority:

PHL § 2803(2)

Description of the regulation:

The amendment modified a restrictive personnel qualification standard for the food service director which exceeded the federal requirements set forth at 42 CFR Section 483.35, and did not necessarily contribute to nursing home resident well-being. It also provided nursing home operators greater flexibility in the recruitment of a staff position. Based upon outcomes identified during nursing home surveillance activities, the amended regulation has not had a negative impact on resident health and safety. The regulation should continue without modification.

Title 18 NYCRR - Ten Year Review

Amendment of Section 486.5 of Part 486 of Title 18 (Non-Rectifiable Offenses in Adult Care Facilities)

Statutory Authority:

SSL §§ 460-d and 461

Description of the regulation:

The regulation allowed for the imposition of civil penalties against adult care facilities (except those operated by a social services district) for violation of regulations related to adult care facilities or any order of the Department issued pursuant to Social Services Law § 460-d. Most penalties may be abated if rectified by the facility within 30 days. Subdivision (a)(4) of the regulation provided that penalties imposed because a violation endangered or resulted in harm to a resident may not be rectified so as to abate the penalty, if the endangerment or harm is the result of one of the following actions or failures to act by the facility:

(i) Total or substantial failure of the facility’s fire protection or prevention systems or emergency evacuation procedures;

(ii) Retention of a resident medically requiring placement in a nursing home when the operator has not made and cannot document efforts to secure an appropriate placement;

(iii) Failure of the operator to take appropriate action in the event of a resident’s illness, accident, death or attempted suicide;

(iv) Failure of the facility to provide supervision in accordance with the staffing requirements of the regulations;

(v) Failure of systemic practices and procedures;

(vi) Threats of retaliation or taking reprisals against a resident who participates in the investigation of a complaint or who is the subject of an action identified in a complaint.

This regulation enabled the Department’s collection of civil penalties from facilities who fail to meet acceptable standards of resident care and supervision in these critical areas and also facilitated enforcement of basic resident protections and the prevention of endangerment and resident harm. Continuance of this regulation is warranted.

Repeal clause (a) of 505.14(h)(7)(iii) and add new clause (a); amendment of 505.14(h)(7)(iii)(b)(1); repeal of subclause (6) of 505.14(h)(7)(i)(a) and add new subclause (6),(i) and (ii) to Title 18 (Personal Care Services Reimbursement (BLTCR))

Statutory Authority:

SSL §§ 363-(a)(2) and 365a(2)(e)

Description of the regulation:

The rule revised Medicaid reimbursement regulations to include a two percent penalty when cost reports are submitted late, and instituted advance notification of January personal care rates. The rule should continue without modification.

Title 18 NYCRR - Fifteen Year Review

Amendment of Sections 347.5, 369.1, 369.7, 370.2, 370.7 and 360-3.2 of Title 18 (Child Support-MA)

Statutory Authority:

Chapter 398 of the Laws of 1997

Description of the regulation:

The regulation revision enhanced child support enforcement efforts by requiring Medicaid applicants and recipients to assist in establishing, modifying and enforcing child support orders. Section 360-3.2 was part of a regulatory package submitted by the Office of Temporary and Disability Assistance (OTDA). The revision remains valid in order to implement Chapter 398 of the Laws of 1997. Continuance of this regulation is warranted.

Amendment of Paragraph 505.5(d)(2) of Title 18 (Medicaid DME Pricing Methodology)

Statutory Authority:

Chapter 474 of the Laws of 1996.

Description of the regulation:

The regulation established maximum reimbursable prices for standard items of durable medical equipment. This regulatory change was developed with the support and assistance of the State’s durable medical equipment providers as a means to simplify billing procedures, to limit cost increases to Medicaid of durable medical equipment, and to minimize audit issues related to the determination of actual invoice cost for pricing. The methodology remains appropriate and consistent with the payment policy of other medical care insurers. This regulation should be retained without modification.

Pursuant to Section 207 of the State Administrative Procedure Act (“SAPA”), notice is hereby provided of the following rules which the New York State Higher Education Services Corporation (“HESC”) intends to review in 2014. Public comment on the continuation or modification of these regulations must be received within 45 days of the date of publication of this notice.

The following regulations are subject to review in the 2014 calendar year:

8 NYCRR § 2101.2 - Simplification of lending process for borrowers

Description of Rule: The rule is modeled after the Federal Family Education Loan Program’s (“FFELP”) “one lender, one guarantor” concept, which simplifies the student lending process for borrowers. To the extent practicable, and with the cooperation of the borrower, the “one lender” concept requires that lenders treat all of a borrower’s FFELP loans as a single loan. As a result, the borrower is able to receive one monthly statement from one lender, rather than multiple statements from multiple lenders.

Legal Basis for Rule: Education Law §§ 653, 655, and 680(2); and 20 USC § 1092c.

Need for Rule: This rule simplifies the student loan process for borrowers. The Higher Education Act of 1965 (“HEA”) grants student FFELP loan borrowers the right to the lender of their choice. As a result, student loan borrowers could receive multiple statements from multiple lenders representing multiple loans over the course of a student’s post-secondary education.

This rule requires each lender to report all FFELP loans to a student as if they were one loan. The rule benefits student loan borrowers by combining statements and providing borrowers with the ability to apply for a single forbearance or deferral for all loans with one application. Although the origination of FFELP loans ceased as of July 1, 2010, this rule remains necessary since it pertains to existing FFELP borrowers.

HESC Review: This regulation should be continued without modification.

8 NYCRR § 2101.5 – Default fee

Description of Rule: This rule provides that the default fee charged by the corporation for Federal Family Education Loan Program (“FFELP”) loans shall be no more than what is prescribed by the Higher Education Act of 1965, as amended.

Legal Basis for Rule: Education Law §§ 653, 655 and 680(2); 20 U.S.C. § 1078(b)(1)(H)(ii).

Need for Rule: Pursuant to federal law, the origination of FFELP loans ceased as of July 1, 2010. As a result, this rule is no longer needed.

HESC Review: HESC intends to repeal this regulation.

8 NYCRR § 2201.2 - World Trade Center Memorial Scholarships

Description of Rule: The World Trade Center (“WTC”) Memorial Scholarship Program is a New York State program that provides undergraduate awards that cover the cost of attendance at the State University of New York (“SUNY”), City University of New York (“CUNY”), or a commensurate amount to attend an eligible college or university to survivors, spouses, children, and financial dependents of victims of the terrorist attacks on the WTC and other locations on September 11, 2001. The rule provides necessary clarification of program criteria. In particular, the rule defines terms such as “severely and permanently disabled” and “impact area.”

Legal Basis for Rule: Education Law §§ 608, 653, 655 and 668-d.

Need for Rule: In order to be eligible for benefits under the WTC Memorial Scholarship Program, a “severe and permanent disability” must have occurred in an area that was impacted by the terrorist attacks. This rule is necessary to define the terms “impact area” and “severely and permanently disabled,” neither of which are defined by the enabling statute. The definition of “severely and permanently disabled” is necessary to prescribe the means by which this qualifying condition is established. The definition of “impact area” is necessary to establish precise geographic areas, (in locales including Manhattan, Washington, D.C., and the state of Pennsylvania), which an applicant must document for purposes of eligibility. In sum, these definitions provide guidance by clarifying eligibility criteria for an award under this program.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2201.4 – Eligibility criteria for Vietnam veterans’ children born with Spina Bifida

Description of Rule: This rule clarifies section 668-c of the Education Law which governs the above-referenced program. Under the program, eligible students can receive a $450 scholarship each year for up to five years of study.

Legal Basis for Rule: Education Law §§ 653, 655 and 668-c.

Need for Rule: The regulation is needed to clarify the award amounts and periods of eligibility for graduate students as compared to undergraduate students and to clarify eligibility criteria required for HESC’s implementation of this scholarship.

HESC Review: HESC does not anticipate amending this regulation.

8 NYCRR § 2201.7 – American Airlines Flight 587 Memorial Scholarship

Description of Rule: Flight 587 Memorial Scholarships provide financial aid to children, spouses, and financial dependents of individuals killed as a direct result of American Airlines Flight 587’s crash in Queens, New York on November 12, 2001. This rule provides necessary clarification of program criteria.

Legal Basis for Rule: Education Law §§ 604, 653, 655, and 668-f.

Need for Rule: This rule defines terms used in the statute and establishes the documentation necessary to evidence an applicant’s eligibility. In addition, the statute requires that award amounts be determined in accordance with the World Trade Center (“WTC”) Memorial Scholarships program. This rule aligns program requirements with those contained in the WTC Memorial Scholarships program. Therefore, the continuation of this rule is necessary to provide authority for the effective and consistent administration of this program.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2201.8 – New York State Licensed Social Worker Loan Forgiveness Program

Description of Rule: The NYS Licensed Social Worker Loan Forgiveness Program provides loan forgiveness awards for up to four years to licensed social workers serving in critical human service areas. This rule provides necessary clarification of program criteria.

Legal Basis for Rule: Education Law §§ 653, 655 and 679-a.

Need for Rule: The statute requires recipients of awards under this program to provide full-time social work services in a critical human service area in the year prior to his or her application for the award. The statute requires the corporation, in consultation with a committee comprised of the corporation and other state agencies, to designate such critical human service areas. The statute also requires that recipients have an outstanding student loan debt without defining this term. The statute further provides that third priority shall be given to those applicants who are economically disadvantaged as defined by the corporation. Finally, the statute requires the corporation to establish in regulation the method of distributing awards in the event there are more applicants with the same priority as set forth in the statute. This rule: (i) defines terms used in the statute; (ii) establishes administrative requirements; (iii) establishes standards for disqualification; (iv) establishes the method of distribution in the event funding is insufficient within any given statutory priority; and (v) establishes the method by which the corporation designates critical human service areas. Therefore, the continuation of this rule is necessary to provide authority for the effective and efficient administration of this program.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2201.10 – New York State Math and Science Teaching Incentive Program

Description of Rule: The NYS Math and Science Teaching Incentive Program provides awards to eligible full-time undergraduate or graduate students in approved programs that lead to math or science teaching careers in secondary education. Recipients are required to teach math or science in a school providing secondary education within the State for five years. The award is converted to a student loan if the recipient fails to fulfill this service obligation. This rule provides necessary clarification of program criteria.

Legal Basis for Rule: Education Law §§ 653, 655 and 669-d.

Need for Rule: The statute requires the corporation to establish the criteria for the provision of awards on a competitive basis, the rate of interest charged for repayment of the student loan, and other requirements necessary for the administration of the program. This rule defines terms used in the statute, establishes criteria for the provision of awards on a competitive basis, establishes standards for disqualification, and establishes penalties for a recipient’s failure to fulfill his or her teaching requirement. Therefore, the continuation of this rule is necessary to provide authority for the effective and efficient administration of this program.

HESC Review: This rule contains an outdated reference to the Federal Family Education Loan Program (“FFELP”). Therefore, HESC intends to amend this regulation to delete this reference.

8 NYCRR § 2201.11 – Volunteer Recruitment Service Scholarship Program

Description of Rule: The Volunteer Recruitment Service Scholarship Program provides awards to volunteer firefighters and ambulance personnel who are enrolled in an approved undergraduate degree program in New York State. This rule provides necessary clarification of program criteria.

Legal Basis for Rule: Education Law §§ 653, 655 and 669-c.

Need for Rule: The statute was repealed and therefore this rule is no longer necessary.

HESC Review: HESC intends to repeal this regulation.

8 NYCRR § 2202.2 – Eligibility criteria and award limitations

Description of Rule: Award amounts are based on the applicant’s income. This rule sets forth the eligibility criteria associated with the applicant’s income, and the limitations on awards based on income.

Legal Basis for Rule: Education Law §§ 653, 655 and 663.

Need for Rule: This rule is intended to clarify the eligibility requirements and award limitations for Tuition Assistance Program awards. Therefore, it is necessary to continue this rule. However, since the rule is incomplete, HESC intends to amend this regulation.

HESC Review: HESC intends to amend this regulation so that it is comprehensive.

8 NYCRR § 2202.3 – Adjustments to income

Description of Rule: This rule establishes the criteria upon which adjustments to income are made for purposes of computing an applicant’s Tuition Assistance Program (TAP) award.

Legal Basis for Rule: Education Law §§ 653, 655, 663(1) and 663(5).

Need for Rule: This rule contains the method used by the corporation to compute adjustments of applicants’ TAP awards. Therefore, the continuation of this rule is necessary for the effective and efficient administration of the Tuition Assistance Program.

HESC Review: This regulation contains outdated references to guaranteed loans. Therefore, HESC intends to amend this regulation to delete these references.

8 NYCRR § 2206.3 – Methods of payment

Description of Rule: This rule establishes the method of payment of awards to institutions on behalf of eligible students. The rule provides for criteria for payment during the initial year of a school offers approved programs, prepayment, lump sum payment, and disqualification from prepayment.

Legal Basis for Rule: Education Law §§ 653, 655 and 665(3)(c).

Need for Rule: The corporation is required by statute to establish methods of payment, including prepayment, of awards to students or to schools on behalf of students as may affect the orderly administration of the program. The criteria established in this rule is necessary for the appropriate handling of funds as prescribed by statute.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2213.7 – Fixed Rate Program Loans

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule sets forth the process governing the establishment of fixed interest rates, notification of such rates and the allocation and distribution of fixed rate program loans.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10), and 692(4)

Need for Rule: Although there is no new funding for this program, since the statute remains in effect, this rule is necessary to implement the statutory requirement that interest rates under the program be established by the corporation on an annual basis.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2213.8 – Variable Rate Program Loans

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule sets forth the process governing the establishment of variable interest rates.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10), and 692(4)

Need for Rule: Due to the changes in the financial marketplace, lenders will no longer originate variable rate loans. Additionally, for a variety of reasons, fixed rate loans are more beneficial to borrowers.

HESC Review: HESC intends to repeal this section.

8 NYCRR § 2213.12 – Prohibited Transactions

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule requires lenders and schools to comply with all State and federal laws pertaining to unfair or deceptive lending practices for educational loans, any conflicts of interest detrimental to students, and any other prohibited conduct in connection with student lending.

Legal Basis for Rule: Education Law §§ 653, 655 and 691(10).

Need for Rule: At the time NYHELPs was enacted, there were ongoing State and federal investigations of the student lending industry. These investigations led to the enactment of laws and regulations on both the State and federal level prohibiting certain practices and conduct. Although there is no new funding for NYHELPs, since the statute remains in effect, this rule is necessary to incorporate these prohibited acts into the NYHELPs program.

HESC Review: This regulation should be continued without modification.

8 NYCRR § 2213.23 – Loan Collection Efforts

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule provides that required collection activities shall be set forth in the program’s Default Avoidance and Claims Manual, which is incorporated into the regulation by reference pursuant to 8 NYCRR § 2213.28.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10) and 693.

Need for Rule: Borrowers and cosigners, whose program loans are delinquent or in default, are subject to collection efforts as set forth in the statute. This rule is necessary to implement the statutory requirement. The program’s Default Avoidance and Claims Manual is reviewed periodically for revision, as required, and was recently amended on October 2, 2013.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2213.24 – Administrative Wage Garnishment

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule establishes procedures for administrative wage garnishment as required by statute.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10) and 693(7).

Need for Rule: Borrowers and cosigners, whose program loans enter default, are subject to garnishment under the statute. Therefore, this rule is necessary to implement the statute. Both the statute and the regulation are modeled after the federal program.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2213.25 – Bankruptcy

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule provides that holders of program loans shall follow the requirements set forth in the Program’s Default Avoidance and Claim Manual, which is incorporated into the regulation by reference pursuant to 8 NYCRR § 2213.28, for borrowers and cosigners filing bankruptcy. In addition, consistent with statute, this rule provides that program loans are non-dischargeable in bankruptcy pursuant to section 523(a)(8) of the U.S. Bankruptcy Code.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10) and 693(14).

Need for Rule: This rule is necessary to ensure compliance with the provisions of the U.S. Bankruptcy Code. In that regard, the Program’s Default Avoidance and Claim Manual is reviewed periodically for revision, as required, and was recently amended on October 2, 2013.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2213.26 – Program Loan Consolidation

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule provides for the annual review and determination by the corporation of the availability of program loan consolidations.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10) and 692(6).

Need for Rule: Although there is no new funding for this program, since the statute remains in effect, this rule is necessary to implement the statutory requirement that the corporation establish terms and conditions for the consolidation of program loans.

HESC Review: HESC does not anticipate amending this regulation at this time.

8 NYCRR § 2213.27 – Program Audits

Description of Rule: The New York Higher Education Loan Program (NYHELPs) was enacted on April 7, 2009 to offer New York State students and families the option of a low rate private education loan to fill the gap between college costs and currently available State and federal student aid. This rule provides for program audits to be performed on lenders, servicers, holders and eligible schools for program compliance.

Legal Basis for Rule: Education Law §§ 653, 655, 691(10) and 691(9).

Need for Rule: This rule is necessary to implement the corporation’s statutory duty to audit lenders, servicers, holders, and eligible colleges for program compliance.

HESC Review: HESC does not anticipate amending this regulation at this time.

Agency Contact Information

Public comment on the continuation or modification of the above rules is invited. Comments must be received within 45 days of the date of publication of this notice. Comments or requests for information should be submitted to: Cheryl B. Fisher, Supervising Attorney, Higher Education Services Corporation, 99 Washington Ave., Rm. 1325, Albany, NY 12255, (518) 474-5592, e-mail: [email protected]

Title 18 NYCRR – Five Year Review

Pursuant to the State Administrative Procedure Act Section 207, the Office of the Medicaid Inspector General invites public comment on the continuation or modification of the following rules which were adopted in 2009. Public comment should be received by April 25, 2014. Comments should be submitted to Michael T. D’Allaird, Esq., Office of Counsel, Office of the Medicaid Inspector General, 800 North Pearl Street, Albany, New York 12204 or [email protected].

Addition of Part 521 of Title 18 NYCRR – Provider Compliance Programs

Statutory Authority:

Public Health Law section 32; Social Services Law section 363-d

Description of the regulation:

Part 521 of the Title 18 NYCRR requires certain persons participating in the Medicaid program to adopt and implement an effective compliance program which meets the requirements of Part 521. The rule is needed to comply with the statutory directive in Social Services Law section 363-d(4). The rule enhances the integrity of the New York State Medicaid program and reduces fraud, waste, and abuse by helping to ensure that Medicaid funds are used properly and that payments are made only for legitimate claims; that providers systematically identify, report, and return overpayments; that medical care, services, and supplies provided meet required standards of care; that individuals can report unacceptable practices, such as fraud, directly and safely; and that providers establish accountability in governance structures. Proposed amendments to these regulations are under consideration to clarify existing definitions and the requirements of the eight elements of a compliance program.

Five Year Review of Rules Adopted by the Department of Motor Vehicles in Calendar Years 1999, 2004 and 2009 Required to be Reviewed in Calendar Year 2014

As required by Chapter 262 of the Laws of 1996, the following is a list of rules that were adopted by the Department of Motor Vehicles in calendar years 1999, 2004 and 2009 which must be reviewed in calendar year 2014. Public comment on the continuation or modification of these rules is invited and will be accepted for 45 days from the date of publication in the State Register. Comments may be directed to: The Department of Motor Vehicles, Counsel's Office, 6 ESP, Room 522A, Albany, NY 12228.

2009

MTV-16-09-0006 Part 123 Fine Schedule in Traffic Violation Bureaus.

Analysis of the need for the rule: Section 226(1)(b) of the Vehicle and Traffic Law (VTL) authorizes the Commissioner of Motor Vehicles to establish a schedule of penalties for violations of the VTL and to print such schedule on the summons issued to a motorist when such ticket is returnable to a Traffic Violations Bureau. In 2009, the fines set forth in the schedule in Part 123 were increased by 25%, accounting for inflation, and to serve as a meaningful deterrent against violations of the VTL. The rationale for the fine increase remains and, therefore, the regulation should not be amended.

Legal basis for the rule: Vehicle and Traffic Law sections 215(a), 225 and 226(1)(b).

MTV-26-09-00013 Parts 77 and 78 Dealer Document Fee.

Analysis of the need for the rule: This amendment raised the dealer document fee from $45 to $75. This is a non-DMV fee that a dealer may charge to assist a customer in securing registration and title documents from the Department. The increase was necessary to address the increasing cost of processing DMV registrations and titles and to allow New York State dealers to compete with dealers in neighboring states, i.e., with this increase, New York came within 50% of the national average of dealer document fees, without posing an onerous burden on consumers. The need for the dealer document fee remains.

Legal basis for the rule: Vehicle and Traffic Law sections 215(a) and 415(9)(d).

2004

MTV-27-03-00004 Part 5 Vision Requirements.

Analysis of the need for the rule: An applicant for renewal of a driver’s license must pass a vision test. Such person may submit a form to the Department that is signed by a health care professional and attests to the fact that such person meets the Department’s vision standards. This amendment provided that the form could be signed within 6 months or one year prior to the date of renewal, giving the health care professional flexibility to address the individual needs of patients. The need for the flexibility provided by this rule remains.

Legal basis for rule: Vehicle and Traffic Law sections 215(a) and 502(6)(a).

MTV-04-04-000009 Part 79 Inspection Station Stickers.

Analysis of the need for the rule: This regulation increased the fee that DMV charges inspection stations for inspection stickers by two dollars and permitted such stations to pass along the cost to consumers. This increase was necessary to insure adequate funding for enforcement of the Department’s Clean Air program. Failure to meet federal Clean Air Act mandates could subject the State to a significant loss in highway funding. Since funding is still necessary to support the Department’s enforcement program, the amendment remains necessary.

Legal basis for rule: Vehicle and Traffic Law sections 215(a) and 305(a)(2).

MTV-49-03-00015 Parts 77/78 Dealer document fee.

Analysis of the need for the rule: This amendment raised the dealer document fee from $20 to $45. This is a non-DMV fee that a dealer may charge to assist a customer in securing registration and title documents from the Department. This amendment was superseded by a subsequent amendment in 2009, which raised the fee to $75.

Legal basis for rule: Vehicle and Traffic Law sections 215(a) and 415(9)(d).

MTV-10-04-00023 Part 134 Drinking Driver Program.

Analysis of the need for the rule: This amendment raised the total fee to enroll in the Drinking Driver Program (DDP) from $250 to $300. This increase was justified by increasing costs for DDP providers, who run educational programs for persons convicted of alcohol-related driving offenses. In addition, the amendment provided that $5 of such fee could be used by the Department or a third party provider for curriculum enhancements. The current fee remains justified in light of costs to run the DDPs and the $5 offset is being used for significant curriculum improvements.

Legal basis for rule: Vehicle and Traffic Law sections 215(a), 1196(1) and 1196(6).

MTV-12-04-0002 Part 134 Limited DJ and MJ licenses.

Analysis of the need for the rule: This amendment provided that the holder of a limited use DJ or MJ license is not eligible for a restricted, a conditional use license, or a post- revocation conditional license, which enable persons to operate a motor vehicle with limited privileges upon conviction for certain offenses, e.g., alcohol-related, no insurance, three speeds within 18 months. Since limited use licenses are no longer issued by the Department as the result of Chapter 403 of the Laws of 2009, which repealed the provisions in the Vehicle and Traffic Law related to limited use licenses, the repeal of this provision would be appropriate.

Legal basis for rule: Vehicle and Traffic Law sections 215(a), 530, 1196(7) and 1198.

MTV-18-04-00017 Part 106 Registration of pick-up trucks.

Analysis of the need for the rule: This amendment allowed owners, lessees and renters of pickup trucks weighing up to 5,500 pounds to register such vehicles with passenger plates as long as the vehicles were used exclusively for non-commercial purposes. Vehicles with commercial plates are not allowed to operate on parkways, largely for highway safety reasons, i.e., large commercial vehicles can pose a danger to other vehicles on parkways more narrow roads. However, the parkway regulations banned all vehicles with commercial plates, even those that were not particularly large. In 2000, the Department amended Part 106 to allow pickups weighing up to 5,000 to obtain passenger plates as long as the vehicles were used exclusively for non-commercial purposes. The 2004 amendment was promulgated to accommodate pickups that are frequently used for passenger purposes, including pickups that are rented and leased, which weigh up to 5,500 pounds. Since pickups used exclusively for non-commercial purposes continue to operate on parkways, this regulation remains necessary.

Legal basis for the rule: Vehicle and Traffic Law section 215(a), 401(7) and 401(15).

MTV-25-04-00023 Part 79 On Board Diagnostic program.

Analysis of the need for the rule: The primary purpose of this regulation was to set forth the requirements for the On Board Diagnostic (OBD) emissions test in the upstate area. The regulation also made numerous technical and clarifying amendments regarding the safety and emissions programs. Any obsolete or unnecessary requirements have been addressed by subsequent amendments to Part 79, including the implementation of the OBD II program.

Legal basis for the rule: Vehicle and Traffic Law section 215(a),301(d)(1), 301(f), 302(a) and 302(e).

1999

MTV-15-98-00017 Motor Vehicle Inspections.

Analysis of the need for the rule: The Department is responsible for the regulation of inspection stations. The purpose of this amendment was to clarify multiple sections of Part 79 relative to the emissions program. Some of the amendments have been revised or deleted in subsequent rulemakings due to changing requirements in the inspection program, e.g., such as the evolution of the On-Board Diagnostic II testing program. Other elements of this rule should be maintained because they reflect current inspection station requirements.

Legal basis for rule: Vehicle and Traffic Law sections 215(a), 302, 303, 304 and 305.

MTV-47-98-00003 Part 6 Disqualification of bus drivers.

Analysis of the need for the rule: This amendment provided that a person is not qualified to operate a bus if such person has an alcohol or drug related problem. Since this regulation reflects current law and the Department’s commitment to highway safety, it should be maintained.

Legal basis for rule: Vehicle and Traffic Law sections 215(a), 509-b and 509-g.

MTV-47-98-00005 Part 174 Windshield Stickers.

Analysis of the need for the rule: The regulation permits the affixing of stickers in the front window of motor vehicles regulated by the Westchester Taxi and Limousine Commission. Since this regulation reflects current law and procedure, it should be maintained.

Legal basis for rule: Vehicle and Traffic Law sections 215(a) and 375(1).

MTV-14-99-0006 Display of electronic toll collection tags.

Analysis of the need for the rule: This regulation authorized the placement of the EZ Pass tags on motor vehicle windshields. Since this regulation reflects current law and procedure, it should be maintained.

Legal basis for rule: Vehicle and Traffic Law sections 215(a) and 375(1).

MTV-49-98-0018 Parts 20 and 78 Salvage Branding.

Analysis of the need for the rule: This regulation required the Department to brand all titles for vehicles that were eight model years or newer that have been wrecked, destroyed or damaged in excess of 75% of the retail value of the vehicle at the time of the loss. Owners of such vehicles are required to note such damage on the back of the title document or on an MV-103 form when transferring the vehicle to another party. The brand is displayed as “REBUILT SALVAGE: NY.” Since this consumer protection measure is still necessary to put subsequent owners on notice of damage to a vehicle, the regulation should be maintained.

Legal basis for the rule: Vehicle and Traffic Law sections 215(a), 2108(a)(6), 2113(a), 2114(a) and 2126(b).

MTV-09-99-0006 Part 15 NYC Commercial Use Tax.

Analysis of the need for the rule: This regulation required the Department to assume the function from the NYC Department of Taxation and Finance of collecting the commercial vehicle use tax on all commercial vehicles with a maximum gross weight of 10,000 pounds or less on non-medallion taxicabs. Since the law still requires the Department to collect this tax, this regulation remains necessary.

Legal basis for the rule: Vehicle and Traffic Law sections 215(a) and 789 of the Laws of 1992.

MTV-41-99-00003 Heavy Duty Vehicles Emissions.

Analysis of the need for the rule: Chapter 621 of the Laws of 1998 created the Heavy Duty Vehicles Emissions Reduction Act, requiring all diesel powered vehicles with a gross vehicle weight rating of greater than 8,500 pounds to have an emissions inspection. This regulation established the standard and procedures for heavy duty diesel emission inspection stations. Since this rule is part of New York State’s efforts to enhance air quality and reduce pollution, the rule remains necessary.

Legal basis for the rule: Vehicle and Traffic Law sections 215(a), 301(f), 301(d)(1), 302(a), and 302(e), and section 19-0320 of the Environmental Conservation Law.

NOTICE is hereby given that the Public Service Commission has reviewed the rules adopted in 1998, 2003, and 2008 as required by the State Administrative Procedure Act § 207, and determined that the following rules will continue without change:

1.16 NYCRR § 11 (Case No. 96-M-0706).

a. Description of rules:

In an effort to reduce regulatory burdens on utilities while maintaining customer protections, this rulemaking was initiated to modify the rules and procedures governing the provision of energy service to residential utility customers. The enactment streamlined and clarified the language in the rules and allowed utilities to require proof of identity from all applicants for service.

b. Statutory Authority: PSL § § 4(1), 30 through 51, 66(1) and 80(1).

c. No hearings or public meetings are scheduled.

d. The rules are in effect and will continue.

e. Need and legal basis for the rules:

The rules are an outgrowth of the Public Service Commission’s general supervision of gas, electric and steam corporations that protect consumers and allow utilities to thwart a common form of theft of services.

2. 16 NYCRR § 262 (Case No. 97-G-0230).

a. Description of rules:

This rule expands the drug testing requirements of 16 NYCRR § 262 to include alcohol testing of impaired employees.

b. Statutory Authority: Title 49, Code of Federal Regulations, Part 199.

c. No hearings or public meetings are scheduled.

d. The rules are in effect and will continue.

e. Need and legal basis for the rules:

The New York State Department of Public Service is certified under section 60105(a) of the Accountable Pipeline Safety and Partnership Act of 1996 to act as a representative for the Administrator of the Research and Special Programs Administration (RSPA) in enforcing pipeline safety regulations within New York State. A requirement of that certification is that state regulations be at least as stringent as federal regulations.

3. 16 NYCRR §§ 21.2, 21.3, 603, 642, 644 (Case No. 97-C-0956).

a. Description of Rules:

The preexisting rules were unnecessary and routinely waived on a case by case basis for certain telephone companies, and therefore permanently waived by amendments to the code: 16 NYCRR sections 21.2 (details of a petition), 21.3 (evidence to be presented at a hearing), and Part 642 (retention of records) for facilities based carriers that do not provide local service and non-incumbent facilities based local exchange companies, Part 603 (service standards), and Part 644.3 (capital program filing), for facilities based carriers that do not provide local service.

b. Statutory Authority: PSL §§ 4(1), and 94(2).

c. No hearings or public meetings are scheduled.

d. The rules are in effect and will continue.

e. Need and legal basis for the rules:

The amendment will allow companies to be certified more quickly without requiring rule waivers, enabling them to enter and compete more effectively in the telecommunications market.

4. 16 NYCRR §§ 10 and 255 (Case No. 97-G-1161).

a. Description of rules:

Several amendments to the federal pipeline safety regulations contained in 49 CFR 192 required revisions to Chapter I, Rules of Procedure, Subchapter A, General, Part 10, Referenced Material, section 10.3, and Chapter III, Gas Utilities, Subchapter C, Safety, Part 255, Transmission and Distribution of Gas. The revisions brought the Department’s regulations into compliance with the federal rules.

b. Statutory authority: PSL §§ 66(2).

c. No hearings or public meetings are scheduled.

d. The rules are in effect and will continue.

e. Need and legal basis for the rules:

PSL § 66(2) grants the Department of Public Service the power to investigate and ascertain the quality of gas supplied, the methods employed in supply and distribution gas and the power to order reasonable improvements to promote the public interest, preserve public health, and protect those using such gas supplies. The listing of standards and codes incorporated by reference in Part 10 now reference the current editions and provide contact information for the codes’ publishers. Part 255 was streamlined by revising or eliminating unnecessary and costly requirements.

5. 16 NYCRR §§ 10 and 255 (Case No. 02-G-0134).

a. Description of rules:

16 NYCRR Parts 10 and 255 were amended to conform to federal regulations contained in Title 49 CFR 192.

b. Statutory Authority: PSL § 66.

c. No hearings or public meetings are scheduled.

d. The rules are in effect and will continue.

e. Need and legal basis for the rules:

Part 255, Transmission and Distribution of Gas was updated to conform to the federal regulations. The listing of standards and codes incorporated by reference in Part 10 were revised in order to reference current editions of the standards and codes and updated contact information for the codes’ publishers.

Review of Rules Adopted by the Department of State in Calendar Year 2009 Required to be Reviewed in Calendar Year 2014; Further Review of Rules Adopted by the Department of State in Calendar Year 2004 Required to be Re-Reviewed in Calendar Year 2014; and Further Review of Rules Adopted by the Department of State in Calendar Year 1999 Required to be Re-Reviewed Again in Calendar Year 2014

Public comment on the continuation or modification of the rules listed below is invited and will be accepted until February 24, 2014. Comments may be submitted to the contact person indicated at the end of this list.

Rules adopted in 2009

As required by section 207 of the State Administrative Procedure Act (SAPA), the following list of rules adopted by the Department of State in calendar year 2009 must be reviewed in calendar year 2014. This list does not include rules that were adopted as consensus or emergency rules in 2009, or rules that subsequently have been amended or repealed. The original Notices of Proposed Rulemaking for all of the following rules required the preparation of a Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement.

(1) DOS-44-88-00001 Qualifying School Requirements for Bail Enforcement

Part 171 was added to Title 19 of NYCRR to set forth requirements for schools providing qualifying education to prospective bail enforcement agents.

Analysis of the need for the rule: The rule was needed: to satisfy the legislative intent of Article 7 of the General Business Law, to set forth procedures and requirements for education providers to obtain Department approval in order to offer a qualifying course, and to protect the public by ensuring that State- licensed bail enforcement agents have obtained proper education.

Legal basis for the rule: General Business Law, section 72

(2) DOS-16-09-00004 Continuing Education for Licensed Home Inspectors

Subpart 197-3 was added to Title 19 of NYCRR to establish continuing-education standards for licensed home inspectors.

Analysis of the need for the rule: The rule was needed to satisfy section 444-f (1) of the Real Property Law, which requires all home inspectors seeking renewal of their licenses to have successfully completed an approved course of continuing education. The rule also protected the public by requiring all licensed home inspectors to complete an appropriate amount of continuing education.

Legal basis for the rule: Real Property Law, section 444-f

Rules adopted in 2004

As required by section 207 of SAPA, the following list of rules adopted by the Department of State in calendar year 2004 must be reviewed in calendar year 2014. This list does not include rules that were adopted as consensus or emergency rules in 2004, or rules that subsequently have been amended or repealed. The original Notices of Proposed Rulemaking for all of the following rules required the preparation of a Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement.

(1) DOS-31-03-00001 Approval of Real Estate Courses

Part 176 of Title 19 of NYCRR was amended for the purpose of updating rules related to the approval of real estate courses, and the approval of schools offering education to prospective real estate brokers and salespersons.

Analysis of the need for the rule: The rule was needed in order for the New York State Real Estate Board to fulfill statutory responsibilities related to implementing state-wide standards for real estate courses and schools, as required by Article 12-A of the Real Property Law.

Legal basis for the rule: Real Property Law, sections 442-k (2) and (3)

(2) DOS-34-04-00006 Identification of Buildings Utilizing Truss Construction

Part 1264 of Title 19 of NYCRR was amended to establish requirements for signs to identify the existence of truss-type construction in a building.

Analysis of the need for the rule: The rule was needed, pursuant to section 382-a of the Executive Law, to require all commercial and industrial structures utilizing truss-type construction to be marked with a sign or symbol for the purpose of notifying fire and other emergency personnel that truss construction exists in such structures.

Legal basis for the rule: Executive Law, section 382-a

(3) DOS-52-03-00019 Filing of Security Interests

Part 177 of Title 19 of NYCRR was amended to implement provisions of Article 9 of the Uniform Commercial Code concerning security interests.

Analysis of the need for the rule: The rule was needed to implement the provisions of Article 9 of the Uniform Commercial Code, as revised by Chapter 84 of the Laws of 2001.

Legal basis for the rule: Uniform Commercial Code, section 9-526 (a)

Rules adopted in 1999

As required by section 207 of SAPA, the following list of rules adopted by the Department of State in calendar year 1999 must be reviewed in calendar year 2014. This list does not include rules that were adopted as consensus or emergency rules in 1999, or rules that subsequently have been amended or repealed. The original Notices of Proposed Rulemaking for all of the following rules required the preparation of a Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement.

(1) DOS-06-99-00001 Cemetery Corporations

Parts 200 - 203 of Title of 19 NYCRR were amended to remove outdated terminology and to make the regulations easier to comprehend.

Analysis of the need for the rule: The rule was needed to clarify, revise and delete old language in rules regulating cemeteries that are organized under Article 15 of the Not-For-Profit Corporation Law and regulated by the State Cemetery Board. The rule also reduced operating costs to such cemeteries.

Legal basis for the rule: Not-For-Profit Corporation Law, sections 1401(zz) and 1501(c)

(2) DOS-09-99-00005 Natural Hair Styling License

Section 162.3 of Title 19 of NYCRR was repealed and a new section 162.3 was added to establish qualifying education requirements for obtaining a license for natural hair styling.

Analysis of the need for the rule: The rule was needed to establish a required training curriculum, providing assurance to the public that a licensee is reasonably competent to provide natural hair styling services.

Legal basis for the rule: General Business Law, section 404; Chapter 343 of the Laws of 1998, section 3

(3) DOS-17-99-00008 Qualifying Education for Waxing License

Section 162.5 was added to Title 19 of NYCRR, and sections 160.1(b), 160.2, 160.10(b), and 160.36 were amended to include a license for waxing under the general rules of practice applicable to appearance enhancement practitioners, and to prescribe a required curriculum for potential waxing licensees.

Analysis of the need for the rule: The rule was needed to set forth a required training curriculum, and to provide assurance to the public that a licensee is reasonably competent to provide waxing services. The rule was also needed to add the practice of waxing to the general rules of practice applicable to all other appearance enhancement licensees.

Legal basis for the rule: General Business Law, section 404; Chapter 343 of the Laws of 1998, section 3

(4) DOS-28-99-00001 Experience Credit for Mass Appraisals

Section 1102.6 of Title 19 of NYCRR was repealed and section 1102.7 was added to recognize mass appraisal credit for the purposes of licensing and certification.

Analysis of the need for the rule: The rule was needed to change the regulations in order to allow mass appraisals to be used as qualifying experience and to establish criteria for granting credit for mass appraisal experience for Real Estate Appraisal licensing and certification purposes under Article 6-E of the Executive Law.

Legal basis for the rule: Executive Law, section 160-d (1)(a)

(5) DOS-31-99-00003 Exclusive Listing Contracts

Section 175.24(c) of Title 19 of NYCRR was amended to remove the requirement for a real estate broker to provide a new client with a list of names and addresses of the members of the local multiple listing service (MLS).

Analysis of the need for the rule: The rule was needed to change provisions that contained an outdated and unnecessary paperwork requirement for the real estate industry. Section 443 of the Real Property Law, enacted subsequent to the original adoption of this rule, required a broker to provide a seller with a written agency disclosure form, which supplanted the MLS list as the means by which a seller was notified of the agency status of brokers involved in a transaction.

Legal basis for the rule: Real Property Law, section 443-k (1)

(6) DOS-51-98-00001 Licensing of Armored Car Carriers

Part 185 was added to Title 19 of NYCRR to prescribe requirements for armored car carriers to retain business records and to fulfill fingerprinting responsibilities. The rule also required carriers to notify the Department of name changes, employment of guards, and termination of guards.

Analysis of the need for the rule: The rule was needed: to facilitate applicant and licensee compliance with statutory duties related to operating New York State licensed armored car carriers, as required by section 89-ccc of the General Business Law, and to reduce the likelihood of confusion over statutory language regarding requirements of armored car carriers.

Legal basis for the rule: General Business Law, section 89-lll

(7) DOS-51-98-00002 Registration of Armored Car Guards

Part 186 was added to Title 19 of NYCRR to prescribe requirements for armored car guards concerning fingerprinting, registering on a staggered schedule, and displaying of State-issued registration cards.

Analysis of the need for the rule: The rule was needed to clarify procedures for fingerprinting of armored car guards and prescribing a staggered schedule of registration, as required by section 89-uuu of the General Business Law. The rule also ensured that identification cards of armored car guards would be visible to the public.

Legal basis for the rule: General Business Law, section 89-yyy

(8) DOS-52-98-00002 Qualifying Experience Requirements for Certified Real Estate Appraisers

Part 1102 of Title 19 of NYCRR was amended to conform New York’s qualifying experience standards to standards adopted by the Appraisal Qualification Board of the Appraisal Foundation.

Analysis of the need for the rule: The rule was needed to ensure that the Appraisal Subcommittee of the Federal Financial Institutions Examination Council would not withdraw its recognition of New York’s program for certifying real estate appraisers. Such withdrawal would make this State’s certified general real estate appraisers ineligible to perform appraisals for federal-related real estate transactions, which would result in New York financial institutions being precluded from participating in transactions where federal law requires the use of a State-certified appraiser. Adopting this rule ensured the continued recognition of New York’s licensing and certification program The rule also prevented both a disruption in New York’s real estate financing markets, and a loss of employment opportunities for New York’s licensed (and certified) real estate appraisers.

Legal basis for the rule: Executive Law, section 160-d (1)(a)

Comments on any item appearing above may be submitted to David Treacy, Esq., Office of General Counsel, Department of State, One Commerce Plaza, 99 Washington Ave., Suite 1120, Albany, NY 12231-0001, (518) 474-6740, [email protected]. This Notice of Rule Review is posted on the Department’s website at: www.dos.ny.gov.

Pursuant to section 207 of the State Administrative Procedure Act (SAPA) the Department of Taxation and Finance intends to review the following rules during 2014, and invites written comments on the continuation or modification of these rules in order to assist the Department in the required review. We will consider comments that are received by February 24, 2014. Any questions concerning the items listed in this rule review or comments regarding the continuation of the rules being reviewed should be referred to: Taxpayer Guidance, Department of Taxation and Finance, W.A. Harriman Campus, Building 9, Room 160, Albany, New York 12227. Telephone: (518) 530-4145, Email address: [email protected].

RULES ADOPTED IN 2009

1. TAF-07-09-00010-A Communications of the Division of Taxation of the Department of Taxation and Finance

This rule amended Parts 2375 and 2376 of Title 20 NYCRR of the Communications of the Division of Taxation of the Department of Taxation and Finance Regulations to reflect policy changes concerning communications of the Division of Taxation.

Analysis of the need for the rule: The rule needed to be updated to recognize alternative methods of disseminating communications of the department, including use of the department’s Web site and online tax information, as well as electronic mail. The procedures for review and issuance of advisory opinions were streamlined to improve timeliness and protect taxpayer confidentiality. Opinions of Counsel, which were discretionary and similar in many respects to technical memoranda (TSB-Ms) were discontinued to avoid unnecessary duplication.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subds. First and Twenty-fourth; 1142(1); and 1250 (not subdivided).

2. TAF-07-09-00012-A Filing Requirements for Certain Wine Distributors Registered Under Article 18 of the Tax Law

This rule amended section 60.1 of Title 20 NYCRR of the Alcoholic Beverage Tax Regulations to allow certain wine distributors to file annual rather than monthly alcoholic beverage returns.

Analysis of the need for the rule: This rule reduced the tax filing burden for certain New York State farm wineries, micro-wineries, and out-of-state direct wine shippers as records showed that the tax liability of these wine distributors was minimal.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subd. First; 429(1); and 436 (not subdivided).

3. TAF-07-09-00011-A Consumer Bill of Rights Regarding Tax Preparers

This rule added Part 2398 to the Title 20 NYCRR Procedural Regulations in compliance with a statutory requirement that the department produce and make available an informational flier called a Consumer Bill of Rights Regarding Tax Preparers.

Analysis of the need for the rule: This rule implemented provisions of section 372 of the General Business Law, added by Chapter 432 of the Laws of 2008.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: General Business Law, section 372.

4. TAF-43-09-00023-A Permanent Place of Abode

This rule amended section 105.20(e)(1) of the Title 20 NYCRR Personal Income Tax Regulations to except dwellings maintained by full-time undergraduate students from the definition of permanent place of abode.

Analysis of the need for the rule: In 2008, the regulations were amended to eliminate the “temporary stay” concept from the definition of “permanent place of abode”. Removing the temporary stay concept from the regulations rendered many college students (e.g., those living in apartments) previously not taxed as residents subject to personal income tax as statutory residents. Students living in traditional dormitories were never subject to tax as statutory residents because dormitories lack the facilities to be deemed permanent places of abode under the regulations. The rule eliminated this distinction.

The notice of proposed rule making included a regulatory flexibility analysis and a rural area flexibility analysis.

Legal basis for the rule: Tax Law, sections 171, subd. First; 697(a) and 605(b)(1).

5. RPS-37-08-00002-A Agricultural Assessment Program Definitions

This rule amended former section 194.1 of Title 9 NYCRR to conform the definitions applicable to the agricultural assessment program with the provisions of Agricultural and Markets Law, Article 25-AA.

Analysis of the need for the rule: The Agricultural and Markets Law was amended to revise the eligibility requirements for receiving agricultural assessments. This rule updated the regulations to reflect the statutory changes and facilitated a more accurate and complete understanding of the agricultural assessment program by assessors and the farm community.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Sections 202(1)(l) and Agricultural and Markets Law 307.

6. RPS-45-08-00019-A Certification and Training Rules for Certain New York City (NYC) Assessors

This rule amended former Subpart 188-8 of Title 9 NYCRR to reflect the provisions of Chapter 252 of the Laws of 2007 relating to training and certificates for certain New York City Assessors.

Analysis of the need for the rule: The rule reflected the extended time to obtain certification and added flexibility to the training program to incorporate assessors whose functions involve adjudication rather than just appraisal.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Art. 3, Title 3 and Section 202(1)(l).

Rules adopted in 2004

1. TAF-10-04-00025-A Farming and Commercial Horse Boarding Operations

This rule updated sections 528.7 and 528.22 of Title 20 NYCRR of the Sales and Use Taxes Regulations to reflect current Tax Law as it pertains to farming and commercial horse boarding operations.

Analysis of the need for the rule: Chapter 407 of the Laws of 1999 and Chapters 63 and 472 of the Laws of 2000 amended Tax Law § 1115(a)(6) and related provisions to substantially broaden the sales tax exemptions for farming and commercial horse boarding operations. This rule was necessary to update the regulations by deleting dated information and by incorporating the legislative objectives of the 1999 and 2000 Tax Law amendments.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subd. First; 1101(b)(19) and (20); 1105(c)(3)(vi) and (5)(iii); 1115(a)(6), (15), and (16) and (c)(2); 1142(1) and (8); and 1250 (not subdivided).

2. TAF-45-03-00004-A Registration of Wholesale Dealers of Cigarettes

The rule amended the Cigarette Tax Regulations and the Cigarette Marketing Standards regulations of Title 20 NYCRR to require a licensed wholesale dealer of cigarettes that also sells cigarettes at retail to be registered as a retail dealer of cigarettes.

Analysis of the need for the rule: The rule provides separate authorities for each activity: a wholesale dealer’s license for sales of cigarettes for resale and a retail dealer’s certificate of registration for each separate retail location where cigarettes are sold to consumers. As a result, a wholesale dealer that also sells cigarettes at retail became subject to the appropriate penalties applicable to its retail activity. In addition wholesale dealers that also sell cigarettes at retail locations are now subject to the suspension and revocation of their dealers’ certificate of registration for sales to minors.

The notice of proposed rule making included a regulatory flexibility analysis.

Legal basis for the rule: Tax Law, sections 171, subd. First, 475 (not subdivided), 482-a, and 488.

3. TAF-06-04-00001-A Personal Income Tax Estimated Payments

This rule amended the Personal Income Tax regulations relating to estimated tax payments on sales or transfers of real property by nonresident taxpayers required by section 663 of the Tax Law.

Analysis of the need for the rule: The rule complies with the statutory requirements of section 663 of the Tax Law.

The notice of proposed rule making included a regulatory flexibility analysis and a rural area flexibility analysis.

Legal basis for the rule: Tax Law, sections l71, subdivision First; 663, and 697(a).

4. TAF-52-03-00024-A Personal Income Tax Deductions

This rule amended the personal income tax regulations to update provisions concerning the deductions subtracted by a resident individual from New York adjusted gross income in arriving at the New York taxable income of a resident individual.

Analysis of the need for the rule: The rule reflects the decision of the New York State Tax Appeals Tribunal in Matter of Shorter concerning the New York State deduction (standard or itemized) used in computing the New York taxable income of a resident individual.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subdivision First, and 697(a).

5. TAF-45-03-00003-A Taxation of Foreign Corporations Participating in a Trade Show

This rule amended the business corporation franchise tax regulations to provide that limited participation in a trade show or shows in New York State is an activity that is deemed insufficient to subject a foreign corporation to the tax. The amendments also reflected various statutory provisions and included nonsubstantive technical changes.

Analysis of the need for the rule: The rule provides a bright-line nexus test for foreign corporations participating in trade shows in New York State.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subd. First, and 1096(a).

6. RPS-05-04-00005-A Assessors Reports and State Equalization Rates

This rule amended former Parts 186 and 193 of Title 9 NYCRR to revise the assessors’ reports requirements, the definition of isolated properties for equalization studies and the standard for establishing special segment equalization rates.

Analysis of the need for the rule: The rule reduced information required to be submitted by local governments and achieved certain efficiencies.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, sections 202(1)(l), 575, 1200 and 1314(2).

7. RPS-06-04-00003-A Annual License Fees

This rule amended former section 190-3.2 of Title 9 NYCRR relating to the annual license fee for users of the Real Property System (RPS).

Analysis of the need for the rule: The schedule of annual fees paid by users of the Real Property System (RPS) was revised based on costs to support the RPS system.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Section 202(1)(l); State Finance Law, Section 97-kk.

8. RPS-06-04-00004-A State Advisory Appraisals

This rule amended former Subpart 195-2 of Title 9 NYCRR to simplify the program of state advisory appraisals.

Analysis of the need for the rule: The rule simplified the process conducting annual programs, shortened the times for providing requests and information, and clarify that communications may be electronic if the parties so agree.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Sections 202(1)(l) and 1544.

9. RPS-09-04-00005-A Calculation of Railroad Ceilings

This rule added former Part 200-3 to Title 9 NYCRR to establish standards for railroads to receive depreciation in the calculation of their ceilings for local real property taxation.

Analysis of the need for the rule: The rule provided the process for applying for increased depreciation as well as the standards for granting the depreciation as required by Real Property Tax Law section 489-g and 489-ii.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Sections 202(1)(l), 489-g(8) and 489-ii(9).

10. RPS-36-04-00002-A State Assistance for Annual Assessment Programs

This rule added former section 201-2.3(f) to Title 9 NYCRR to set the filing requirements for six-year plans.

Analysis of the need for the rule: The requiring of the submission of the plan sufficiently in advance of the filing of the tentative assessment roll enabled staff to analyze the plan and recommend changes to the assessing unit at a time when deficiencies could still be corrected.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Sections 202(1)(l) and 1573(1)(a).

Rules adopted in 1999

1. TAF-06-99-00018-A Employee Meals and Lodging

This rule amended sections 527.8(j) and 527.9(g) of Title 20 NYCRR of the Sales and Use Taxes Regulations to delete complex requirements regarding employee meals and lodging that were no longer applicable.

Analysis of the need for the rule: This rule was necessary to simplify the regulations and to bring them up to date to reflect the Department’s current policy with respect to employee meals and lodging. The rule eliminated from the regulations complex requirements that were no longer applicable and retained only the provisions that meals and lodging furnished by certain employers to employees are not subject to sales tax if the employers receive no cash (or other consideration) from the employees and the values of the meals and lodging are not included as income for the employees for income tax purposes.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subd. First; 1142(1); and 1250 (not subdivided).

2. TAF-22-99-00001-A Sales and Use Taxes Regulations – Part 525 (General)

This rule amended Part 525 of Title 20 NYCRR of the Sales and Use Taxes Regulations concerning general sales and compensating use tax provisions.

Analysis of the need for the rule: This rule was necessary to update and simplify the “general” provisions in Part 525 by deleting text that merely repeated the statute or that was superfluous, unnecessarily complex, or no longer applicable. The rule also cited pertinent sections of the Tax Law applicable to sales and use taxes.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subd. First; 1142(1) and (8); and 1250 (not subdivided).

3. TAF-22-99-00002-A Abatement of Penalties

The rule added Part 2392 to Title 20 NYCRR of the Procedural Regulations to consolidate and modify the grounds to establish reasonable cause.

Analysis of the rule: The rule expanded the application of reasonable cause to various other penalties imposed by the Tax Law that allowed for abatement upon a showing of reasonable cause and an absence of willful neglect. Consolidating these provisions as a single source facilitated the process of obtaining information regarding the various grounds for reasonable cause. The rule created a broad, uniform reference applicable to various taxes by including penalties that were not previously covered by the regulations and tax articles that have penalties that are jointly administered. The rule expanded what constitutes reasonable cause.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal Basis: Tax Law, sections 171, subd. First; 171-a(8); 207-b; 219-a; 289-b(1)(c); 295 (not subdivided); 315; 433(1)(c); 436 (not subdivided); 475 (not subdivided); 481(1)(a)(iii); 509(7); 512(1)(c); 528(a); 697(a); 990(a); 1007(b); 1080(a); 1096(a); 1142(1) and (8); 1145(a)(1)(iii) and (a)(6); 1165 (not subdivided); 1250 (not subdivided); 1312(a); 1332(a); 1342 (not subdivided); 1415(a); 1468 (not subdivided); 1519 (not subdivided); and 1556 (not subdivided); and General City Law, section 25-n(e).

4. TAF-17-99-00005-A Offers in Compromise of Fixed and Finally Determined Tax Liabilities

This rule added Part 5005 to Title 20 NYCRR of the Compromises Regulations to codify the department’s policy in relation to offers in compromise of fixed and finally determined tax liabilities allowed under section 171 (Fifteenth) of the Tax Law.

Analysis of the rule: The rule provided written guidance to taxpayers with respect to the grounds for an offer in compromise, the procedure for submission of an offer, the procedure for review and acceptance or rejection of an offer and the criteria for rejection of an offer.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal Basis: Tax Law, sections 171, subds. First and Fifteenth.

5. TAF-16-99-00002-A Conforming the Due Dates of Short Period Returns

This regulation conformed the due dates of certain general business and banking corporations’ short period reports to those required for Federal income tax purposes. Specifically, the amendments conformed the due dates of short period reports required in cases where a taxpayer became part of or ceased to be part of a Federal consolidated group or changed from one Federal consolidated group to another. In addition, the amendments conformed the due date of a short period report required in the case of a taxpayer which was a target corporation for which an election had been made under section 338(h)(10) of the Internal Revenue Code.

Analysis of the need for the rule: The rule eased the burden on taxpayers required to file certain short period reports by conforming the due dates of those short period reports to those required for Federal income tax purposes.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal Basis for the rule: Tax Law, sections 171, subd. First; 211.1; 1096(a); and 1462(a).

6. TAF-22-99-00004-A Allocation for Business Corporations

This rule amended Part 4 of Title 20 NYCRR of the Business Corporation Franchise Tax Regulations, relating to allocation, to repeal obsolete language and references contained in various sections of this Part, to make changes necessitated by legislative amendments, and to make technical and clarifying amendments.

Analysis of the need for the rule: This rule provided taxpayers using the regulations with current information about tax policies and procedures to assist them in complying with the Tax Law.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Tax Law, sections 171, subd. First; 210; 210(3)(a), (1), (2), (2)(B), (6), (7)(A), (8); 210(8); and 1096(a).

7. TAF-28-99-00014-A Pension and Annuity Exclusion

This rule amended the Personal Income Tax regulations to extend the personal income tax pension and annuity exclusion to payments received by a beneficiary of a deceased pensioner on or after the date the decedent would have reached 59½ years of age.

Analysis of the need for the rule: The rule ensured equitable treatment with respect to the $20,000 exclusion for pension and annuity payments for beneficiaries, whether the decedent had died before or after reaching the age of 59½.

The notice of proposed rule making included a regulatory flexibility analysis and a rual area flexibility analysis.

Legal basis for the rule: Tax Law, sections 171, subdivision First; 612(c)(3-a); and 697(a).

8. RPS-08-99-00015-A Inventory Standards of Property Characteristics

This rule amended former Subparts 190-1 and 192-3 of Title 9 NYCRR to establish a comprehensive list of inventory standards.

Analysis of the need for the rule: The rule established a list of property characteristics by property class to be used uniformly by all assessors throughout the State. It addresses the issue of incomplete inventory kept by assessors.

The notice of proposed rule making did not include a regulatory flexibility analysis, a rural area flexibility analysis, or a job impact statement.

Legal basis for the rule: Real Property Tax Law, Sections 202(1)(e), 202(1)(g), 202(1)(l), 500 and 501.

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 16, 2013, 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 2008, 2003, and 1998. Those regulations are set forth below:

Rules Adopted in 2008

A. 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 (SSDs), of face-to-face recertification requirements, subject to OTDA approval.

Analysis of the need for the rule: The amendments were developed to provide SSDs 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).

B. 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, regardless of the amount of the 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. In order to maintain temporal consistency with the language of the regulations reviewed herein, the program is hereinafter referred to as the “Food Stamp” Program).

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).

C. 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 U.S.C.; 7 U.S.C. §§ 2011 and 2013; SSL §§ 95 and 95-a.

Rules Adopted in 2003

D. 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).

E. TDA-49-02-00006 Adjustment of Public Assistance Grants*

Amended 18 NYCRR § 352.17(e) to establish a reasonable administrative processing period within which a social services official was required to adjust a public assistance grant or calculate the amount of any overpayment of a public assistance grant as a result of new or increased earnings.

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 SSDs 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).

F. 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 were unable to file an application 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 (C.F.R.).

G. TDA-49-02-00008 Vehicle Resource Level*

Amended 18 NYCRR § 352.23(b) establish resource exemption levels for vehicles owned by public assistance recipients and authorize SSDs 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.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-n, and 355(3).

H. 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.

I. 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 SSDs; 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 C.F.R..

J. 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 SSDs; 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 C.F.R..

K. 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.

L. 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).

M. 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).

N. 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).

O. 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 SSDs 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 C.F.R..

Rules Adopted in 1998

P. TDA-49-97-00006 Learnfare Program*

Added 18 NYCRR § 351.12 to implement the Learnfare Program.

Analysis of the need for the rule: The amendments were developed to implement the Learnfare Program, which was intended to prevent children from dropping out of school and improve the attendance of children in school.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131-y.

Q. 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.

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).

R. 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.

S. 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.

T. 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.

U. 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.

V. 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 SSDs 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.

W. 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.

X. 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.

Y. 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 SSDs 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.

Z. 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).

AA. 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.

BB. 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.

CC. 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.

DD. 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.

EE. 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.

FF. 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.

GG. 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.

HH. 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.

II. TDA-02-98-00036 Finger Imaging

Amended 18 NYCRR §§ 351.2, 384.1, 384.2(b) and (c), and 384.3(a)(3)(i), 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 SSDs 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(a), and 355(3); Chapter 436 of the Laws of 1997.

JJ. 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).

KK. 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) .

LL. TDA-15-98-00003 Immunizations*

Added 18 NYCRR § 355.1(c) to require SSDs 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 SSDs 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 SSDs 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).

MM. 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 $35 to $125.

Analysis of the need for the rule: The amendments were developed to relieve SSDs 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.

NN. 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.

During the comment period, OTDA received one letter, dated March 21, 2013, in response to the above list. That letter recommended the elimination of the requirement for a face-to-face interview at the conclusion of the third calendar month after the month of acceptance for all new and reopened FA and SNA cases as set forth in 18 NYCRR § 351.21 (c)(2), maintaining that this requirement could place an undue hardship upon unemployable customers. The letter also recommended amendment of 18 NYCRR § 351.22 (a) to permit the substitution of an electronic mail questionnaire or telephonic interview in lieu of a face-to-face recertification interview. The letter further recommended amendment of 18 NYCRR § 352.20 to permit the same earned income disregards for recipients of SNA as are permitted for FA recipients. Additionally, the letter recommended amendment of 18 NYCRR § 352.30 to provide for a full family sanction and to eliminate public assistance grants for households in which a legally responsible adult is in non-compliance with work rules and/or drug and alcohol treatment requirements, maintaining that this would promote increased cooperation on the part of benefit recipients and increase the probability of the family achieving self-sufficiency. The letter also recommended amendment of 18 NYCRR § 383(b) to permit SSDs to charge benefit recipients a nominal fee for the reissuance of identification cards more than once in a calendar year. The letter further recommended amendment of 18 NYCRR §§ 387.7-387.8 to allow deferral of the interview requirement prior to the issuance of initial benefits for SNAP applicants for up to 60 days after application, where necessary, asserting that this amendment would streamline and expedite the review process and allow the SSDs to issue the most essential benefits to the families with the greatest needs.

Upon review, OTDA considered these recommendations, and determined that 18 NYCRR § 351.21(c) already allows SSDs to waive certain face-to-face recertification timeframes, including that for three-month recertification, as approved by OTDA. OTDA also determined that SSL § 134-a requires SSDs to conduct eligibility interviews, such as annual recertification interviews, in person; moreover, face-to-face interviews afford the SSDs the opportunity to conduct other necessary assessments and screenings such as drug/alcohol screening, domestic violence screening, and employment assessments. OTDA further determined that SSL § 131-a (8) limits the earned income disregard to households with eligible children. Additionally, OTDA determined that the imposition of sanctions for non-compliance with work rules and/or drug and alcohol treatment requirements is governed by the SSL. OTDA also determined that any amendment of 18 NYCRR § 383.3(b) to permit charging a fee for reissued identification cards would require interagency agreement. OTDA further determined that the interview requirements presently included in 18 NYCRR §§ 387.7-387.8 conform to those contained in the federal regulations.

OTDA is considering amendments that may impact the regulatory changes that were adopted in 2008, 2003, and 1998. OTDA is considering the following regulatory amendments: update provisions regarding persons who are permanently residing in the United States under the color of law (PRUCOL); delete the regulatory provisions relating to the Learnfare Program; amend regulations to make technical updates to Part 352 of Title 18 NYCRR, including updating references to “aid to dependent children” and “home relief” with “family assistance” and “safety net assistance” respectively; amend regulations to address support payments, noncountable income and resources, and estimates of need and application of income; amend regulations authorizing SSDs to provide shelter allowance supplements at local option to prevent eviction and address homelessness; amend regulations governing emergency shelter allowances for persons medically diagnosed with acquired immunodeficiency syndrome (AIDS) or human immunodeficiency virus (HIV)-related illness; amend public assistance regulations to implement a shared living reduction; implement a federal waiver regarding the SNAP employment sanction process; delete SNAP monthly reporting/retrospective budgeting references and add provisions for change reporting; conform regulations concerning in-office interviews for SNAP applicants to federal requirements; amend SNAP regulations to reflect expanded categorical eligibility for SNAP; amend regulations regarding what is a complete periodic report to require verification of income only if a change in income has been reported; and repeal provisions relating to the Food Assistance Program. At this time, OTDA has determined that no additional modifications need to be made to its regulations adopted in 2008, 2003, and 1998, as amended.

OTDA has determined that in the ensuing calendar year, it should review its regulations from Title 18 NYCRR adopted in 2009, 2004, and 1999. These regulations from 2009, 2004 and 1999, 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 March 4, 2014.

Rules adopted in 2009

1. TDA-17-08-00032-A State-Confirmed Human Trafficking Victims*

Added Part 765 of Subchapter K to Title 18 NYCRR to govern the process and protocols for confirming an individual as a human trafficking victim in New York State.

Analysis of the need for the rule: The amendments provide more detailed instruction on protocols and procedures relating to the confirmation of human trafficking victims and how the responsibilities are to be carried out by OTDA. The need for the amendments is derived from the necessity to clearly define the participant agencies, the victim, and the terms describing the process of referral; to clearly describe the nature of OTDA’s consultative role in the confirmation process; and to clearly describe the process for required notifications to the prescribed parties.

Legal basis: SSL Art. 10-D.

2. TDA-04-09-00011-A Educational Activities*

Amended §§ 385.6(a) and (b), 385.7(a) and (b), and 385.9(c) of Title 18 NYCRR to provide additional opportunities to participate in education and other skill development activities.

Analysis of the need for the rule: The amendments were developed to increase the skills of individuals receiving public assistance through the provision of additional opportunities to participate in education and other skill development activities.

Legal basis: 42 U.S.C. §§ 601(a) and 607; SSL Art. 5, Title 9-B.

3. TDA-07-09-00014-A Utility Service*

Amended § 352.5(e) of Title 18 NYCRR to suspend the enforcement of utility repayment agreements during periods of cold weather.

Analysis of the need for the rule: The amendment was developed to better enable SSDs to help protect the health and safety of households if they suffer utility shutoffs during a cold weather period as a result of high energy costs.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), and 131-s.

4. TDA-09-09-00007-A Recovery of Overpayments*

Amended § 352.31(d)(1) of Title 18 NYCRR to delete the regulatory requirement to recoup/recover overpayments from all members of an assistance unit regardless of their ages at the time of overpayment.

Analysis of the need for the rule: This amendment was developed to benefit children by relieving them of the burden of an overpayment incurred on someone else's assistance unit when they were children in that assistance unit.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 106-b.

Rules adopted in 2004

5. TDA-03-04-00003-A SSI Benefits*

Repealed § 352.2(b) and added new § 352.2(b); amended §§ 352.3(k)(3), (i), 352.30(a) and (f), and 352.31(a)(2); and added § 352.3(l) to Title 18 NYCRR, to require SSDs to consider the presence in the household of an adult or child receiving SSI who would, except for the receipt of SSI, be required to be included in the public assistance household when determining the household’s standard of need.

Analysis of the need for the rule: The amendments were developed to eliminate different budgeting methods required to be used for various family circumstances, and, with the exception of budgeting for households requesting and eligible to receive an emergency shelter allowance under § 352.3(k), to establish one budgeting method for determining the needs standard for a household that is applying for benefits.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 158, 349, and 355(3).

6. TDA-28-03-00008-A Eligibility of Refugees, Asylees, and Aliens for Public Assistance*

Amended §§ 349.3(a)(1)(iv), (vii), (2), (b), and 352.33; and added § 349.3(c) to Title 18 NYCRR to implement changes to the public assistance eligibility requirements for refugees, asylees, and aliens as set forth in Chapter 214 of the Laws of 1998.

Analysis of the need for the rule: The amendments were developed to implement provisions in Chapter 214 of the Laws of 1998, and to incorporate federal clarification of certain definitions related to citizenship and alien status.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 122, 131(1), and 355(3).

7. TDA-13-04-00002-A Case Management Subsystem*

Amended § 600.6 of Title 18 NYCRR requiring SSDs to use the cash management subsystem of the welfare management system.

Analysis of the need for the rule: The amendment was developed to standardize local cash processing systems by requiring SSDs to use the cash management subsystem of the welfare management system for receipt of cash and for refunds and recoveries of past expenditures and the collection and tracking of overpayments; to reduce the number of systems used by SSDs to establish and collect recoveries and overpayments on a timely basis; to identify claims on collection cases; and to encourage more orderly claims processing.

Legal basis: SSL §§ 20(3)(d), 21, 21(2), 34(3)(f), and 82.

8. TDA-17-04-00016-A Exemption of Earned Income*

Amended § 352.20(a) and (b) of Title 18 NYCRR concerning the exemption of the earned income of full-time and part-time students when determining eligibility for public assistance.

Analysis of the need for the rule: The amendment was developed to implement Chapter 246 of the Laws of 2002, which amended the regulations to provide that all of the income earned by a dependent child receiving public assistance or for whom an application for such assistance has been made, who is a full-time or part-time student attending a school, college, or university or a course of vocational or technical training designed to fit him or her for gainful employment is exempt when determining eligibility for public assistance.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131-a(8), 158, 349, and 355(3).

Rules adopted in 1999

9. TDA-30-98-00005 Child Support Cooperation Requirements*

Amended §§ 347.5, 360-3.2, 369.1, 369.2, 369.7, 370.2, and 370.7 of Title 18 NYCRR to require child support enforcement unit workers, instead of public assistance or medical assistance workers, to determine whether an applicant/recipient has cooperated in establishing paternity and in establishing, modifying, and enforcing a support order (for medical assistance, a medical support order only).

Analysis of the need for the rule: These amendments implemented Public Law 104-193, regarding cooperation in establishing paternity and establishing, modifying, or enforcing a support order by applicants for and recipients of public assistance and medical assistance, and Chapter 398 of the Laws of 1997, requiring applicants for and recipients of medical assistance to cooperate in establishing paternity or establishing, modifying, or enforcing a medical support order.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 111-a, and 364; Chapter 474 of the Laws of 1996.

10. TDA-39-98-00067 Child Support Cooperation and Reduction of Benefits

Amended § 352.30 (d) of Title 18 NYCRR to implement provisions of Public Law 104-193 and Chapter 214 of the Laws of 1998.

Analysis of the need for the rule: This amendment conformed the regulations to changes in federal and State law, so that instead of a person being ineligible for public assistance when the person failed to comply with requirements to cooperate in establishing paternity or in establishing, modifying, or enforcing a support order, that person’s household benefit was reduced by 25%.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131 (16).

11. TDA-46-98-00015 EAF

Amended §§ 372.1, 372.2, 372.4, and 372.6 of Title 18 NYCRR, in part, to implement provisions of § 38 of Part B of Chapter 436 of the Laws of 1997.

Analysis of the need for the rule: The amendments were developed to implement Chapter 436 of the laws of 1997, which amended § 350-j of the SSL concerning the types of care that EAF can pay for, eliminating the maximum time period for EAF eligibility, and setting forth other EAF eligibility requirements.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 350-j; § 38 of Part B of Chapter 436 of the Laws of 1997.

12. TDA-47-98-00002 Tier II Family Shelters

Amended Part 900 of Title 18 NYCRR to conform the regulations governing the operation of shelters for homeless families to § 352.35 of Title 18 NYCRR.

Analysis of the need for the rule: The amendments were developed to update Part 900 of Title 18 of the NYCRR to conform to the regulations governing the provision of temporary housing assistance to persons that are homeless as set forth in 18 NYCRR § 352.35.

Legal basis: SSL §§ 20(3)(d) and 34(3)(f); Chapter 562 of the Laws of 1953.

13. TDA-52-98-00007 Lottery Intercept

Added Part 396 to Title 18 NYCRR concerning the interception of lottery awards to repay public assistance received.

Analysis of the need for the rule: The amendment was developed to implement provisions of § 131-r of the SSL which authorized OTDA to recoup any public assistance paid over the prior 10 years from recipients of such assistance who won lottery prizes of $600 or more. The amount of assistance to be recovered could not exceed 50% of the lottery prize.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), and 131-r.

14. TDA-07-99-00002 Child Assistance Program Participants

Amended § 366.4(c)(2)(ii) and added § 366.7(o) to clarify the eligibility requirements for a family in receipt of FA to participate in the child assistance program and to add the repair of heating equipment, cooking stoves and refrigerators to the list of special allowances to which child assistance program recipients could be entitled.

Analysis of the need for the rule: The amendments were developed to conform the State regulation to current practices by SSDs relative to the eligibility prerequisites that must be met by a family receiving FA to enroll in the child assistance program, and to remedy an administrative oversight in the original Part 366 of Title 18 NYCRR which did not include the repair of heating equipment, cooking stoves and refrigerators on the list of special allowances.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131-z, and 355(3).

15. TDA-10-99-00001 Supervisory Review*

Amended § 351.7 of Title 18 NYCRR to provide SSDs the option of conducting supervisory reviews on all actions on public assistance cases or of conducting supervisory reviews on selected cases.

Analysis of the need for the rule: The amendment was developed to give SSDs the option to forego supervisory review of applications for public assistance. There are cases in which strict guidelines can be applied to such applications and no discretion is involved, thereby reducing the need for a supervisor’s review. If SSDs wished to review only a certain proportion of the cases, they could submit a plan to OTDA for approval setting forth requirements for supervisory review.

Legal basis: SSL §§ 20(3)(d) and 34(3)(f).

16. TDA-14-99-00014 Reporting Requirements*

Amended Part 651 of Title 18 NYCRR to implement § 149 of Part B of Chapter 436 of the Laws of 1997, which required that OTDA and the Department of Labor (DOL) collect data related to the operation of public assistance programs, including, but not limited to, information that must be submitted to the federal Department of Health and Human Services pursuant to Public Law 104-193.

Analysis of the need for the rule: The rule set forth requirements for monthly reporting by SSDs to OTDA and DOL.

Legal basis: SSL §§ 20(3)(d) and 34(3)(f); § 149 of Part B of Chapter 436 of the Laws of 1997.

17. TDA-40-99-00001 Allowances to Children Suffering from Spina Bifida*

Amended §§ 352.22(c), (f), (w), (x), and (y), and added § 352.22(bb) to Title 18 NYCRR to implement the provisions of Public Law 104-204, which provided that allowances paid on behalf of the natural children of Vietnam veterans who suffered from spina bifida could not be considered when determining eligibility for any federally–financed program.

Analysis of the need for the rule: These amendments implemented provisions of Chapter 18 of Part II of Title 38 of the U.S.C., as added by Public Law 104-204, and made technical corrections to several provisions of 18 NYCRR § 352.22 consistent with Public Law 104-193 and Chapter 436 of the Laws of 1997.

Legal basis: SSL §§ 20(3)(d), 34(3)(f), 131(1), 131-n, and 355(3).

* The asterisks identify rules for which a regulatory flexibility analysis, rural area flexibility analysis, or job impact statement was prepared.

The rule review may be accessed on OTDA's website at http://otda.ny.gov/legal/.

Any comments should be submitted to: Richard P. Rhodes, Jr., Office of Temporary and Disability Assistance, 40 N. Pearl St., 16th Fl., Albany, NY 12243, (518) 486-7503, e-mail: [email protected]