Office of Alcoholism and Substance of Emergency Rule: the Proposed Rule Would Repeal the Cur- Rent Part 853 and Replace It with a New Part 853

April 1, 2015 DEPARTMENT OF STATE Vol. XXXVII Division of Administrative Rules Issue 13 NEW YORK STATE REGISTER

INSIDE THIS ISSUE: D Credentialing of Addictions Professionals D Criminal History Information Reviews D Patient Rights Notice of Availability of State and Federal Funds

State agencies must specify in each notice which proposes a rule the last date on which they will accept public comment. Agencies must always accept public comment: for a minimum of 45 days following publication in the Register of a Notice of Proposed Rule Making or a Notice of Emergency Adoption and Proposed Rule Making for which full text was included in the Notice or posted on a state web site, or which is a consensus rule or a rule defined in SAPA § 102(2)(a)(ii); or for a minimum of 60 days following publication in the Register of a Notice of Proposed Rule Making or a Notice of Emergency Adoption and Proposed Rule Making for which a summary of the text of the rule was included in the Notice and the full text of which was not published on a state web site; and for 30 days after publication of a Notice of Revised Rule Making in the Register. When a public hearing is required by statute, the hearing cannot be held until 45 days after publication of the notice, and comments must be accepted for at least 5 days after the last required hearing. When the public comment period ends on a Saturday, Sunday or legal holiday, agencies must accept comment through the close of business on the next succeeding workday.

For notices published in this issue: – the 60-day period expires on May 31, 2015 – the 45-day period expires on May 16, 2015 – the 30-day period expires on May 1, 2015 ANDREW M. CUOMO GOVERNOR

CESAR A. PERALES SECRETARY OF STATE

NEW YORK STATE DEPARTMENT OF STATE

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New York State Register April 1, 2015/Volume XXXVII, Issue 13

KEY: (P) Proposal; (RP) Revised Proposal; (E) Emergency; (EP) Emergency and Proposal; (A) Adoption; (AA) Amended Adoption; (W) Withdrawal

Individuals may send public comment via electronic mail to those recipients who provided an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings. Choose pertinent issue of the Register and follow the procedures on the website (www.dos.ny.gov) Rule Making Activities Alcoholism and Substance Abuse Services, Office of 1 / Credentialing of Addictions Professionals (E) 3 / Criminal History Information Reviews (E) 6 / Incident Reporting in OASAS Certified, Licensed, Funded or Operated Programs (E) 8 / Patient Rights (E) 10 / Establishment, Incorporation and Certification of Providers of Substance Use Disorder Services (E) Children and Family Services, Office of 13 / Protection of Vulnerable Persons (E) Civil Service, Department of 15 / Jurisdictional Classification (P) 17 / Supplemental Military Leave Benefits (P) Criminal Justice Services, Division of 18 / Statement of Purpose for Medical and Physical Fitness Standards and Procedures for Police Officer Candidates (P) Education Department 18 / Student Enrollment (E) 23 / Profession of Applied Behavior Analysis (E) 27 / Pathways to Graduation and Regents Diploma Advanced Designation (EP) 30 / Local High School Equivalency Diplomas Based Upon Experimental Programs (A) 31 / Profession of Applied Behavior Analysis (A) 33 / Certification Requirements for Teaching Assistants (A) 33 / Epinephrine Auto-Injectors (A) 34 / Supplementary Teaching Certificates in Bilingual Education and English to Speakers of Other Lan- guages (ESOL) (P) 36 / Special Education Itinerant Services (SEIS) (P) Environmental Conservation, Department of 39 / To Amend 6 NYCRR Parts 10 and 40 Pertaining to Commercial and Recreational Regulations for Striped Bass (EP) Financial Services, Department of 42 / Independent Dispute Resolution for Emergency Services and Surprise Bills (ERP) 46 / Life Insurance Reserves (A) Health, Department of 47 / Children's Camps (E) 50 / Standards for Adult Homes and Adult Care Facilities Standards for Enriched Housing (E) Liquor Authority, State 51 / Updated Application Processes for Various Licenses and Permits (P) Mental Health, Office of 52 / Implementation of the Protection of People With Special Needs Act and Reforms to Incident Management (E) 55 / Clinic Treatment Programs (A) Motor Vehicles, Department of 55 / Registration of Pick Up Trucks (P) 56 / Off Premise Sales of Motor Vehicles (P) 57 / Montgomery County Motor Vehicle Use Tax (P) People with Developmental Disabilities, Office for 58 / Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management (E) Public Service Commission 63 / Whether Leatherstocking Should be Permitted to Recover a Shortfall in Earnings (P) 63 / Whether to Permit the Use of the Quadlogic Controls S-10T Electric Submeter (P) 64 / Whether to Permit the Use of the Sensus Smart Point Gas AMR/AMI Product (P) 64 / Whether to Permit the Use of the Measurlogic DTS 310 Electric Submeter (P) 64 / Whether to Permit the Use of the SATEC EM920 Electric Meter (P) 65 / Whether to Permit the Use the Triacta Power Technologies 6103, 6112, 6303, and 6312 Electric Submeters (P) Hearings Schedule for Proposed Rule Makings /66 Action Pending Index /67

Securities Offerings 111 / State Notices

Notice of Availability of State and Federal Funds 113 / Homeland Security and Emergency Services, Division of

Miscellaneous Notices/Hearings 115 / Notice of Abandoned Property Received by the State Comptroller 115 / Public Notice RULE MAKING ACTIVITIES

Each rule making is identified by an I.D. No., which consists ated or certified by OASAS; and new requirements for pre-employment background checks in OASAS certified and operated service providers, of 13 characters. For example, the I.D. No. persons credentialed by the Office, and applicants for new operating AAM-01-96-00001-E indicates the following: certificates. The amendments to Part 853, effective June 30, 2013 and subsequently AAM -the abbreviation to identify the adopting agency September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, 01 -the State Register issue number September 12, 2014, December 14, 2014, and March 14, 2015 are necessary to implement the new process of criminal history background checks 96 -the year into the credentialing process for addictions professionals credentialed by 00001 -the Department of State number, assigned upon OASAS. Additionally, by statute (Mental Hygiene Law sections 19.20 receipt of notice. and 19.20-a) requires OASAS, rather than the Justice Center, to conduct reviews of criminal history information and to make recommendations E -Emergency Rule Making—permanent action regarding hiring, credentialing and certification so OASAS will be more not intended (This character could also be: A involved in credentialing decisions. for Adoption; P for Proposed Rule Making; RP The promulgation of these regulations is essential to preserve the health, safety and welfare of individuals receiving services within the OASAS for Revised Rule Making; EP for a combined treatment system. If OASAS did not promulgate regulations on an emer- Emergency and Proposed Rule Making; EA for gency basis, the process for OASAS to implement this new process would be implemented ineffectively. Further, protections for individuals receiv- an Emergency Rule Making that is permanent ing services would be threatened by the confusion resulting inconsistent and does not expire 90 days after filing.) credentialing standards. OASAS was not able to use the regular rulemaking process established Italics contained in text denote new material. Brackets by the State Administrative Procedure Act because there was not suf- indicate material to be deleted. ficient time to develop and promulgate regulations within the necessary timeframes. Subject: Credentialing of Addictions Professionals. Purpose: To enhance protections for service recipients in the OASAS system. Office of Alcoholism and Substance of emergency rule: The Proposed Rule would Repeal the current Part 853 and Replace it with a new Part 853. The new Part incorporates Substance Abuse Services amendments related to required Criminal History Information reviews of all applicants for credentials issued by the Office on or after June 30, 2013, such reviews required by the Justice Center, pursuant to the Protec- EMERGENCY tion of People with Special Needs Act (Chapter 501 of the Laws of 2012). The Proposed Rule also makes technical amendments to standardize RULE MAKING formatting for all Office regulations. Amendments related to the Justice Center include: Credentialing of Addictions Professionals Section 853.1 sets forth the statutory authority for the promulgation of the rule by the Office of Alcoholism and Substance Abuse Services (“Of- I.D. No. ASA-13-15-00015-E fice”); adds The Protection of People with Special Needs Act. Filing No. 168 § 853.3 adds new definition of ‘‘Criminal history information” and Filing Date: 2015-03-16 “custodian” as defined in Chapter 501/2012. § 853.5 adds requirements for criminal history information reviews of Effective Date: 2015-03-16 all applicants for new, renewal or reinstated certified alcoholism and substance abuse counselor (“CASAC”) credentials; adds requirement for PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- compliance by CASACs with a Code of Conduct for “custodians” in all cedure Act, NOTICE is hereby given of the following action: OASAS service providers; “grandfathers” currently credentialed persons Action taken: Repeal of Part 853; and addition of new Part 853 to Title 14 until application for renewal or reinstatement, application for a position or NYCRR. a new position in an Office certified service provider. § 853.6 adds requirements for criminal history information reviews of Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, all applicants for new, renewal or reinstated certified alcoholism and 19.20-a, 19.40, 32.02; Executive Law, section 296(15) and (16); Correc- substance abuse counselor trainee (“CASAC-T”) credentials; adds require- tions Law, art. 23-A; Civil Service Law, section 50; Protection of People ment for compliance by CASAC-Ts with a Code of Conduct for “custodi- with Special Needs Act (L. 2012, ch. 501) ans” in all OASAS service providers. Finding of necessity for emergency rule: Preservation of public health, § 853.7 adds requirements for criminal history information reviews of public safety and general welfare. all applicants for new, renewal or reinstated credentialed prevention Specific reasons underlying the finding of necessity: The immediate professional (“CPP”) credentials; adds requirement for compliance by adoption of these amendments is necessary for the preservation of the CPPs with a Code of Conduct for “custodians” in all OASAS service health, safety, and welfare of individuals receiving services. providers. In December, 2012 Governor Andrew Cuomo signed the Protection of § 853.8 adds requirements for criminal history information reviews of People with Special Needs Act (PPSNA; chapter 501 of the Laws of 2012); all applicants for new, renewal or reinstated credentialed prevention the statute created the Justice Center for the Protection of People with specialist (“CPS”) credentials; adds requirement for compliance by CPSs Special Needs (Justice Center) establishing various protections for vulner- with a Code of Conduct for “custodians” in all OASAS service providers. able persons, i.e., a new system for incident management in services oper- § 853.9 adds requirements for criminal history information reviews of

1 Rule Making Activities NYS Register/April 1, 2015 all applicants for new, renewal or reinstated credentialed problem vulnerable persons, and may be subject to criminal prosecution. Less seri- gambling counselor (“CPGC”) credentials; adds requirement for compli- ous acts of misconduct are subject to progressive discipline and retraining. ance by CPGCs with a Code of Conduct for “custodians” in all OASAS Applicants with criminal records who seek employment serving vulner- service providers. able persons will be individually evaluated as to suitability for such § 853.10 sets forth the application process for all credentials, including positions. required criminal history information reviews and compliance with Justice The proposed Rule requires persons who apply to the Office for a Center Code of Conduct. credential issued by the Office comply with the requirements of The § 853.17 adds requirements for periodic updates of criminal history in- Protection of People with Special Needs Act (Chapter 501 of the Laws of formation reviews of all persons holding a credential issued by the Office. 2012) regarding a criminal history information review prior to certifica- § 853.18 adds requirements for criminal history information reviews of tion, credentialing or hiring, and compliance with a Code of Conduct all applicants for new, renewal or reinstated credentials issued by the established by the Justice Center. 3. Needs and Benefits: Office. OASAS is proposing to adopt the following regulation because The § 853.19 adds requirements for criminal history information reviews Protection of People with Special Needs Act (Chapter 501 of the Laws of and compliance with the Justice Center Code of Conduct of all applicants 2012) requires that allegations of abuse and neglect, and other significant for credentialing based on reciprocity. incidents be reported to the Justice Center Vulnerable Persons Central § 853.20 adds non-compliance with the Justice Center Code of Conduct Register via the toll free hotline. OASAS credentials addiction, preven- to the standards for misconduct. tion, and compulsive gambling professionals who will be affected by the § 853.22 adds reference to the Justice Center Code of Conduct in rela- Justice Center oversight as they work in OASAS certified facilities. This tion to penalties for misconduct. legislation conforms OASAS regulations to definitions, reporting, § 853.23 adds reference to the Justice Center Code of Conduct in rela- documentation and review requirements of the Justice Center. The legislation to complaints filed against credentialed persons. tion strengthens the role of the Incident Review Committee and links § 853.28 adds reference to the Justice Center Code of Conduct in rela- compliance with reporting and investigating incidents to a providers tion to the Affidavit of Ethical Principles. operating certificate renewal. Criminal history information reviews will A copy of the full text of the regulatory proposal is available on the be conducted on each prospective treatment provider, operator, employee, OASAS website at: http://www.oasas.ny.gov/regs/index.cfm contractor, or volunteer of treatment facilities certified by the NYS Office of Alcoholism and Substance Abuse Services (“OASAS” or “Office”) This notice is intended to serve only as a notice of emergency adoption. who will have the potential for, or may be permitted, regular and This agency intends to adopt this emergency rule as a permanent rule and substantial unsupervised or unrestricted physical contact with the clients will publish a notice of proposed rule making in the State Register at some in such treatment facilities and any individual seeking to be credentialed future date. The emergency rule will expire June 13, 2015. by the Office. This will include OASAS credentialed professionals who Text of rule and any required statements and analyses may be obtained will also be required to comply to an additional Code of Conduct of the from: Sara Osborne, Assoc. Attorney, NYS Office of Alcoholism and Justice Center which could subject those persons to additional reasons for Substance Abuse Svcs. (OASAS), 1450 Western Ave., Albany, NY 12203, limitation or loss of their credential or their future employment in other (518) 485-2317, email: [email protected] covered agencies throughout New York State. Regulatory Impact Statement The legislation is intended to enable the Office to more thoroughly and 1. Statutory Authority: efficiently monitor the quality and competency of its credentialed profes- (a) Protection of People with Special Needs Act, Chapter 501 of the sionals and enable providers of services to persons seeking treatment for Laws of 2012, which added Article 20 to the Executive Law and Article substance use disorders to secure appropriate and properly trained 11 to the Social Services Law as well as amended other laws. individuals to staff their facilities and programs, by verifying criminal his- (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- tory information received for individuals seeking employment or volun- missioner to adopt regulations necessary and proper to implement any teering their services and those credentialed by the Office. matter under his or her jurisdiction. The legislation also makes technical amendments to make language and (c) Section 19.20 of the MHL authorizes the Office to receive and format consistent throughout OASAS regulations. review criminal history information related to employees or volunteers of 4. Costs: treatment facilities certified, licensed, funded or operated by the Office. The Office anticipates no fiscal impact on providers, or local govern- (d) Section 19.20-a of the MHL authorizes the Office to receive and ments, job creation or loss. review criminal history information related to persons seeking to be 5. Paperwork: credentialed by the Office or applicants for an operating certificate issued The proposed regulatory amendments will require limited additional in- by the Office. formation to be reported to the Justice Center by applicants and mandated (e) Section 19.40 of the Mental Hygiene Law authorizes the Commis- reporters and documentation retained by providers. To the extent feasible, sioner to issue operating certificates for the provision of chemical depen- such reporting shall be made electronically to avoid unnecessary paper- dence services. work costs. (f) Subdivisions (15) and (16) of Section 296 of the Executive Law 6. Local Government Mandates: identify unlawful discriminatory practices with regard to the employment This regulation imposes no new mandates on local governments operat- and the issuance of licenses. ing certified OASAS programs even if they employ OASAS credentialed (h) Civil Service Law § 50 authorizes the Department of Civil Service professionals. to request criminal history checks for applicants for state employment. 7. Duplications: (i) Article 23-A of the Corrections Law provides the factors to be This proposed rule does not duplicate any State or federal statute or considered concerning a person’s previous criminal convictions in making rule. a determination regarding employment and the issuance of a license. 8. Alternatives: 2. Legislative Objectives: The Protection of People with Special Needs Act (Chapter 501 of the The legislative objectives are the establishment of comprehensive Laws of 2012) requires the adoption of this proposed regulation. protections for vulnerable persons against abuse, neglect and other harm- 9. Federal Standards: ful conduct. The Act created a Justice Center with responsibilities for ef- These amendments do not conflict with federal standards. fective incident reporting and investigation systems, fair disciplinary 10. Compliance Schedule: processes, informed and appropriate staff hiring procedures, and strength- The regulations will be effective on June 30, 2013 and subsequently ened monitoring and oversight systems. September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, The Justice Center operates a 24/7 hotline for reporting allegations of September 12, 2014, December 14, 2014 and March 14, 2015 to ensure abuse, neglect and significant incidents in accordance with Chapter 501’s compliance with Chapter 501 of the Laws of 2012. provisions for uniform definitions, mandatory reporting and minimum Regulatory Flexibility Analysis standards for incident management programs. Working in collaboration 1. Effect of the Rule: with the relevant state oversight agencies, the Justice Center is charged OASAS credentials persons in the areas of substance use disorder with developing and delivering appropriate training for caregivers, their counseling, problem gambling counseling, and prevention counseling to supervisors and investigators. work in OASAS certified programs. Services are provided by programs of A vulnerable persons’ central register contains the names of individuals varying size in every county in New York State; some counties are also found to have committed substantiated acts of abuse or neglect using a certified service providers. The proposed Rule has been reviewed by preponderance of evidence standard. All persons found to have committed OASAS in consideration of its impact on applications for credentialed such acts have the right to a hearing before an administrative law judge to professionals, on local governments; additionally this regulation has been challenge those findings Persons having committed egregious or repeated reviewed by the OASAS Advisory Council which consists of providers acts of abuse or neglect are prohibited from future employment caring for and stakeholders of all sizes and municipalities.

2 NYS Register/April 1, 2015 Rule Making Activities

2. Compliance Requirements: location. No new professional services are required; no professional ser- The proposed Rule requires persons who apply to the Office for a vices will be lost. Credentialed persons must already comply with a code credential issued by the Office comply with the requirements of The of ethics; it is not anticipated that additional character and competence Protection of People with Special Needs Act (Chapter 501 of the Laws of requirements will increase or decrease the number of applicants or have an 2012) regarding a criminal history information review prior to certifica- impact on the number of employment opportunities regardless of geo- tion, credentialing or hiring, and compliance with a Code of Conduct graphic location. Because these changes are statewide no region will ex- established by the Justice Center. The Office will retain documentation of perience any adverse impact because of population density or geography. such review; this will not be an additional recordkeeping requirement for 3. Costs: applicants or the Office. Every region of the state has resources for gather- No additional costs will be incurred for implementation by providers ing fingerprints, the history information collection is done electronically because no additional capital investment, personnel or equipment is from a central state or federal database, and communicated electronically, needed because the Office and applicants are involved, not programs. Ap- so any additional recordkeeping will be minimal regardless of geographic plicants will pay for their own processing regardless of geographic location. No new professional services are required; no professional ser- location. vices will be lost. Credentialed persons must already comply with a code 4. Minimizing adverse impact: of ethics; it is not anticipated that additional character and competence The application of the rule will not impose additional costs or operating requirements will increase or decrease the number of applicants or have an requirements on providers in rural areas; therefore, it is designed on its impact on the number of employment opportunities regardless of geo- face to minimize adverse impact. Credentialed persons must already graphic location. Because these changes are statewide no region will ex- comply with a code of ethics; it is not anticipated that additional character perience any adverse impact because of population density or geography. and competence requirements will increase or decrease the number of ap- 3. Professional Services: plicants or have an impact on the number of employment opportunities The Office will retain documentation of such applicant review; this will regardless of geographic location. Because these changes are statewide no not be an additional recordkeeping requirement for applicants or the region will experience any adverse impact because of population density Office. Every region of the state has resources for gathering fingerprints, or geography. the history information collection is done electronically from a central 5. Rural area participation: state or federal database, and communicated electronically, so any ad- The proposed rule is posted on the agency website; agency review pro- ditional recordkeeping will be minimal regardless of geographic location. cess involves input from trade organizations representing providers in di- No new professional services are required; no professional services will verse geographic locations. The Office has prepared webinars and guid- be lost. ance documents for provider use and for training of agency administration. 4. Compliance Costs: Because every region of the state has resources for gathering finger- Job Impact Statement prints, and the history information collection is done electronically from a OASAS is not submitting a Job Impact Statement for these amend- central state or federal database, individual or municipal applicants will ments because OASAS does not anticipate a substantial adverse impact on not be affected in any way. Many municipalities already conduct criminal jobs and employment opportunities. history information reviews on prospective employees. Applicants for cer- The proposed regulation requires persons who apply to the Office for tification and re-certification will pay for their own processing. any credential issued by the Office to comply with the requirements of 5. Economic and Technological Feasibility: The Protection of People with Special Needs Act (Chapter 501 of the Laws Implementation of the rule will require computer and email capability; of2012) and complete a criminal history information review prior to certi- all applicants in all regions of the state, both private and public sector, fication, credentialing or hiring. The proposed Rule also requires compli- have such capability. No upgrades of hardware or software will be ance with a Code of Conduct established by the Justice Center. required. Also because every region of the state has resources for gather- The proposed regulation will not have an adverse impact on existing ing fingerprints, and the history information collection is done electroni- jobs or the development of new employment opportunities for New York cally from a central state or federal database, and increasingly com- residents. It is anticipated that the proposed regulation will not have an municated electronically any additional recordkeeping will be minimal adverse impact on existing employees in the field of substance use disor- regardless of geographic location. der treatment (certified alcoholism and substance abuse counselors and 6. Minimizing Adverse Impact: trainees), substance use disorder prevention counseling (prevention profes- The application of the rule will not impose additional costs or operating sionals and specialists), or problem gambling counseling. The proposed requirements on applicants, local governments or small businesses; regulations should not impact the number of criminal history information therefore, it is designed on its face to minimize adverse impact. reviews requested via federal and state existing database. The Office is 7. Small Business and Local Government Participation: unable to determine what effect the proposed regulation may have on the The proposed rule is posted on the agency website; agency review pro- employment of independent fingerprinting services or Office employees cess involves input from trade organizations representing providers in in the future, but does not anticipate that the proposed rule will increase or both public and private sectors, of all sizes and in diverse geographic decrease the number of applicants for certification. locations. The Office has prepared webinars and guidance documents for The proposed regulation does not have an adverse impact on jobs or applicant use and for training agency administration. employment opportunities anywhere in the State; therefore, no region is disproportionately affected by the proposed regulation. Rural Area Flexibility Analysis The proposed regulation will have no adverse impact on existing jobs 1. Types and estimated number of rural areas: or the development of new employment opportunities. OASAS services are provided in every county in New York State. 44 counties have a population less than 200,000: Allegany, Cattaraugus, Assessment of Public Comment Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, The agency received no public comment since publication of the last as- Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, sessment of public comment. Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- EMERGENCY nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- RULE MAKING kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 counties with certain townships have a population density of 150 persons or Criminal History Information Reviews less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga and Orange. I.D. No. ASA-13-15-00016-E 2. Reporting, recordkeeping and other compliance requirements; and Filing No. 169 professional services: The proposed Rule requires persons who apply to the Office for a Filing Date: 2015-03-16 credential issued by the Office comply with the requirements of The Effective Date: 2015-03-16 Protection of People with Special Needs Act (Chapter 501 of the Laws of 2012) regarding a criminal history information review prior to certifica- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- tion, credentialing or hiring, and compliance with a Code of Conduct cedure Act, NOTICE is hereby given of the following action: established by the Justice Center. The Office will retain documentation of such review; this will not be an additional recordkeeping requirement for Action taken: Addition of Part 805 to Title 14 NYCRR. applicants or the Office. Every region of the state has resources for gather- Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, ing fingerprints, the history information collection is done electronically 19.20-a, 19.40 and 32.02; Executive Law, section 296(15) and (16); Cor- from a central state or federal database, and communicated electronically, rections Law, art. 23-A; Civil Service Law, section 50; Protection of so any additional recordkeeping will be minimal regardless of geographic People with Special Needs Act (L. 2012, ch. 501)

3 Rule Making Activities NYS Register/April 1, 2015

Finding of necessity for emergency rule: Preservation of public health, A copy of the full text of the regulatory proposal is available on the public safety and general welfare. OASAS website at: http://www.oasas.ny.gov/regs/index.cfm Specific reasons underlying the finding of necessity: The immediate This notice is intended to serve only as a notice of emergency adoption. adoption of these amendments is necessary for the preservation of the This agency intends to adopt this emergency rule as a permanent rule and health, safety, and welfare of individuals receiving services. will publish a notice of proposed rule making in the State Register at some In December, 2012 Governor Andrew Cuomo signed the Protection of future date. The emergency rule will expire June 13, 2015. People with Special Needs Act (PPSNA; chapter 501 of the Laws of 2012); Text of rule and any required statements and analyses may be obtained the statute created the Justice Center for the Protection of People with from: Sara Osborne, Assoc. Attorney, NYS Office of Alcoholism and Special Needs (Justice Center) establishing various protections for vulner- Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) able persons, i.e., a new system for incident management in services oper- 485-2317, email: [email protected] ated or certified by OASAS; and new requirements for pre-employment background checks in OASAS certified and operated service providers, Regulatory Impact Statement persons credentialed by the Office, and applicants for new operating 1. Statutory Authority: certificates. (a) Protection of People with Special Needs Act, Chapter 501 of the The addition of Part 805, effective June 30, 2013, and subsequently ef- Laws of 2012, which added Article 20 to the Executive Law and Article fective September 25, 2013, December 20, 2013, March 20, 2014, June 11 to the Social Services Law as well as amended other laws. 17, 2014, September 12, 2014, December 14, 2014, and March 14, 2015 is (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- necessary to implement the criminal history background check provisions missioner to adopt regulations necessary and proper to implement any as this is a new process for OASAS. Additionally, by statute (Mental matter under his or her jurisdiction. Hygiene Law sections 19.20 and 19.20-a) requires OASAS, rather than (c) Section 19.20 of the MHL authorizes the Office to receive and the Justice Center, to conduct reviews of criminal history information and review criminal history information related to employees or volunteers of to make recommendations regarding hiring, credentialing and certification. treatment facilities certified, licensed, funded or operated by the Office. The promulgation of these regulations is essential to preserve the health, (d) Section 19.20-a of the MHL authorizes the Office to receive and safety and welfare of individuals receiving services within the OASAS review criminal history information related to persons seeking to be treatment system. If OASAS did not promulgate regulations on an emer- credentialed by the Office or applicants for an operating certificate issued gency basis, the process for OASAS and its providers to conduct this new by the Office. process would not be implemented or would be implemented ineffectively. (e) Section 19.40 of the Mental Hygiene Law authorizes the Commis- Further, protections for individuals receiving services would be threatened sioner to issue operating certificates for the provision of chemical depen- by the confusion resulting from requirements differing for other agencies dence services. covered by the Justice Center. (f) Subdivisions (15) and (16) of Section 296 of the Executive Law OASAS was not able to use the regular rulemaking process established identify unlawful discriminatory practices with regard to the employment by the State Administrative Procedure Act because there was not suf- and the issuance of licenses. ficient time to develop and promulgate regulations within the necessary (g) Civil Service Law § 50 authorizes the Department of Civil Service timeframes. to request criminal history checks for applicants for state employment. (h) Article 23-A of the Corrections Law provides the factors to be Subject: Criminal History Information Reviews. considered concerning a person’s previous criminal convictions in making Purpose: To enhance protections for service recipients in the OASAS a determination regarding employment and the issuance of a license. system. 2. Legislative Objectives: Substance of emergency rule: The Proposed Rule would ADD a new Part The legislative objectives are the establishment of comprehensive 805 titled “Criminal History Information Reviews.” The new Part protections for vulnerable persons against abuse, neglect and other harm- incorporates into regulation requirements of sections 19.20 and 19.20-a of ful conduct. The Act created a Justice Center with responsibilities for ef- the mental hygiene law added by the Protection of People with Special fective incident reporting and investigation systems, fair disciplinary Needs Act (Chapter 501 of the Laws of 2012) which outlines the process processes, informed and appropriate staff hiring procedures, and strength- for the Office to conduct such reviews of prospective custodians and ap- ened monitoring and oversight systems. plicants for certification or credentialing. Amendments include: The Justice Center operates a 24/7 hotline for reporting allegations of Section 805.1 sets forth the background and intent consistent with the abuse, neglect and significant incidents in accordance with Chapter 501’s intent of the Protection of People with Special Needs Act (Chapter 501 of provisions for uniform definitions, mandatory reporting and minimum the laws of 2012). standards for incident management programs. Working in collaboration § 805.2 indicates those persons or “applicants” to whom this regulation with the relevant state oversight agencies, the Justice Center is charged is applicable and who is excluded. with developing and delivering appropriate training for caregivers, their § 805.3 sets for the statutory basis for the regulation in the executive supervisors and investigators. law, mental hygiene law, corrections law, and civil service law. A vulnerable persons’ central register contains the names of individuals § 805.4 defines terms used in this regulation: “applicant”, “authorized found to have committed substantiated acts of abuse or neglect using a person”, “commissioner”, “criminal history information”, “designated preponderance of evidence standard. All persons found to have committed fingerprinting entity”, “Division” of Criminal Justice Services, “Justice such acts have the right to a hearing before an administrative law judge to Center”, “natural person”, “prospective employee”, “prospective volun- challenge those findings Persons having committed egregious or repeated teer”, “operator”, “provider of services”, “subject individual.” acts of abuse or neglect are prohibited from future employment caring for § 805.5 sets forth in regulation the process involving the Office, a pro- vulnerable persons, and may be subject to criminal prosecution. Less seri- spective employee or volunteer, the Justice Center and the Division in re- ous acts of misconduct are subject to progressive discipline and retraining. lation to acquiring fingerprints necessary for a criminal history informa- Applicants with criminal records who seek employment serving vulner- tion review by the Office; allows for temporary approval of an employment able persons will be individually evaluated as to suitability for such or volunteer applicant in some cases; requires providers to establish poli- positions. cies and procedures consistent with this regulation. 3. Needs and Benefits: § 805.6 sets forth in regulation the process involving the Office, an ap- OASAS is proposing to adopt the following regulation because crimi- plicant for certification or credentialing, the Justice Center and the Divi- nal history information reviews conducted on each prospective treatment sion in relation to acquiring fingerprints necessary for a criminal history provider, operator, employee, contractor, or volunteer of treatment facili- information review by the Office; requires providers to establish policies ties certified by the NYS Office of Alcoholism and Substance Abuse Ser- and procedures consistent with this regulation and to submit to the Office vices (“OASAS” or “Office”) who will have the potential for, or may be a criminal background check form. permitted, regular and substantial unsupervised or unrestricted physical § 805.7 sets forth in regulation the process for the Office’s conduct of a contact with the clients in such treatment facilities and any individual criminal history review for purposes of approval or denial of an applica- seeking to be credentialed by the Office will be sufficiently screened tion for employment, volunteering, certification or credentialing, such before such contact with patients, ensuring a safe and therapeutic review to be consistent with the criteria in Article 23-A of the corrections environment. law. The legislation is intended to enable providers of services to persons § 805.8 sets forth standards for documentation and confidentiality. seeking treatment for substance use disorders to secure appropriate and § 805.9 sets forth process for notification to the Office of any subsequent properly trained individuals to staff their facilities and programs, by verify- criminal charges or convictions related to a custodian, principal of a certi- ing criminal history information received for individuals seeking employ- fied program, or credentialed person. ment or volunteering their services and those credentialed by the Office. § 805.10 sets forth the responsibilities of providers of services related 4. Costs: to recordkeeping, notifications, retention and disposal of information. The Office will require additional staffing to review any criminal his-

4 NYS Register/April 1, 2015 Rule Making Activities tory information found to contain convictions. The Office anticipates no municated electronically any additional recordkeeping will be minimal fiscal impact on providers or local governments, job creation or loss, regardless of geographic location. because the Office will subsidize the cost of fingerprint production for ap- 6. Minimizing Adverse Impact: plicants and prospective employees/volunteers of not-for-profit programs. The application of the rule will not impose additional costs or operating 5. Paperwork: requirements on providers on local governments or small businesses; The proposed regulation will require some additional information to be therefore, it is designed on its face to minimize adverse impact. reported to the agency by providers regarding potential employees and/or 7. Small Business and Local Government Participation: volunteers, and by applicants for certification and/or credentialing. To the The proposed rule is posted on the agency website; agency review pro- extent feasible, such reporting shall be made electronically to avoid un- cess involves input from trade organizations representing providers in necessary paperwork costs. both public and private sectors, of all sizes and in diverse geographic 6. Local Government Mandates: locations. The Office has prepared webinars and guidance documents for To the extent local governments already conduct criminal history infor- provider use and for training of agency administration. mation reviews on municipal employees, there are no new local govern- 8. Not applicable. (establish or modify a violation or penalties associ- ment mandates. ated with a violation) 7. Duplications: Rural Area Flexibility Analysis This proposed rule does not duplicate, overlap, or conflict with any 1. Types and estimated number of rural areas: State or federal statute or rule. OASAS services are provided in every county in New York State. 44 8. Alternatives: counties have a population less than 200,000: Allegany, Cattaraugus, The Protection of People with Special Needs Act (Chapter 501 of the Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Laws of 2012) requires the adoption of this proposed regulation. Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, 9. Federal Standards: Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, These amendments do not conflict with federal standards. Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- 10. Compliance Schedule: nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- The regulations will be effective on June 30, 2013 and subsequently on kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, ties with certain townships have a population density of 150 persons or September 12, 2014, December 14, 2014, and March 14, 2015 to ensure less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, compliance with Chapter 501 of the Laws of 2012. Oneida, Onondaga and Orange. Regulatory Flexibility Analysis 2. Reporting, recordkeeping and other compliance requirements; and 1. Effect of the Rule: professional services: OASAS services are provided by programs of varying size in every The proposed Rule requires persons who apply to the Office for certifi- county in New York State; some counties are also certified service cation to operate a treatment program, persons who apply to the Office for providers. The proposed Rule has been reviewed by OASAS in consider- a credential, and prospective employees and volunteers of certified treat- ation of its impact on service providers of all sizes and on local government providers to comply with the requirements of The Protection of ments, whether or not they are certified operators; additionally this regula- People with Special Needs Act (Chapter 501 of the Laws of 2012) and tion has been reviewed by the OASAS Advisory Council which consists complete a criminal history information review prior to certification, of providers and stakeholders of all sizes and municipalities. credentialing or hiring. 2. Compliance Requirements: Providers will be required to retain documentation of fingerprint The proposed Rule requires persons who apply to the Office for certifi- requests for employees, contractors of volunteers they ultimately employ; cation to operate a treatment program, persons who apply to the Office for this will not be a significant additional recordkeeping requirement for a credential, and prospective employees and volunteers of certified treat- personnel records they are already required to retain. Every region of the ment providers to comply with the requirements of The Protection of state has resources for gathering fingerprints, the history information col- People with Special Needs Act (Chapter 501 of the Laws of 2012) and lection is done electronically from a central state or federal database, and complete a criminal history information review prior to certification, communicated electronically, so any additional recordkeeping will be credentialing or hiring. minimal regardless of geographic location. No new professional services 3. Professional Services: are required; no professional services will be lost. Providers will be required to retain documentation of fingerprint 3. Costs: requests for employees, contractors of volunteers they ultimately employ; No additional costs will be incurred for implementation by providers this will not be a significant additional recordkeeping requirement for because no additional capital investment, personnel or equipment is personnel records they are already required to retain. Every region of the needed. Also, the Office will subsidize the cost of fingerprinting for all ap- state has resources for gathering fingerprints, the history information col- plicants for employment in not-for-profit providers; all other applicants lection is done electronically from a central state or federal database, and will pay for their own processing regardless of geographic. communicated electronically, so any additional recordkeeping will be 4. Minimizing adverse impact: minimal regardless of geographic location. No new professional services The application of the rule will not impose additional costs or operating are required; no professional services will be lost. requirements on providers in rural areas; therefore, it is designed on its 4. Compliance Costs: face to minimize adverse impact. Because every region of the state has resources for gathering finger- 5. Rural area participation: prints, and the history information collection is done electronically from a The proposed rule is posted on the agency website; agency review pro- central state or federal database, smaller providers or municipal providers cess involves input from trade organizations representing providers in di- will not be affected in any way. Many municipalities already conduct verse geographic locations. The Office has prepared webinars and guid- criminal history information reviews on prospective employees. ance documents for provider use and for training of agency administration. Although providers will be required to retain documentation of Job Impact Statement fingerprint requests for employees, contractors, or volunteers they OASAS is not submitting a Job Impact Statement for these amend- ultimately employ, this will not be a significant additional recordkeeping ments because OASAS does not anticipate a substantial adverse impact on requirement because providers are already required to retain records re- jobs and employment opportunities. lated to such relationships. No additional professional services will be The proposed regulation requires persons who apply to the Office for required of as a result of these amendments; nor will the amendments add certification to operate a treatment program, persons who apply to the Of- to the professional service needs of local governments. Because of the fice for a credential, and prospective employees and volunteers of certi- electronic nature of the transactions, minimal paperwork will be involved fied treatment providers to comply with the requirements of The Protec- on the part of business or local governments. tion of People with Special Needs Act (Chapter 501 of the Laws of2012) The Office will subsidize applicants for all prospective employees or and complete a criminal history information review prior to certification, volunteers of not-for-profit providers, regardless of geographic location; credentialing or hiring. there will be no disparate impact on providers based on location, size of The proposed regulation will not have an adverse impact on existing business or municipality. jobs or the development of new employment opportunities for New York 5. Economic and Technological Feasibility: residents. It is anticipated that the proposed regulation will not have an Implementation of the rule will require computer and email capability; adverse impact on existing employees in the field of fingerprinting or his- all providers in all regions of the state, both private and public sector, al- tory review. The proposed regulations should not impact the number of ready have such capability. No upgrades of hardware or software will be criminal history information reviews requested via federal and state exist- required. Also because every region of the state has resources for gathering database. The Office is unable to determine what affect the proposed ing fingerprints, and the history information collection is done electroni- regulation may have on the employment of independent fingerprinting cally from a central state or federal database, and increasingly com- services or Office employees in the future.

5 Rule Making Activities NYS Register/April 1, 2015

The proposed regulation does not have an adverse impact on jobs or pealed statutes; adds the Vulnerable Persons Central Register in § 492 of employment opportunities anywhere in the State, therefore, no region is the social services law. disproportionately affected by the proposed regulation. § 836.3 amends applicability of this Part to be consistent with Justice The proposed regulation will have no adverse impact on existing jobs Center statute and regulations. or the development of new employment opportunities. § 836.4 adds new definitions or amends to be consistent with the Justice Center: “Reportable incident”, “physical abuse”, “psychological abuse”, EMERGENCY “deliberate inappropriate use of restraints”, “use of aversive condition- RULE MAKING ing”, “obstruction of reports of reportable incidents”, “unlawful use or administration of a controlled substance,” “neglect”, “significant incident”, Incident Reporting in OASAS Certified, Licensed, Funded or “custodian”, “facility or provider agency”, “mandated reporter”, “human Operated Programs services professional”, “physical injury”, “delegate investigatory entity”, “Justice Center”, “Person receiving services,”, “Personal representative,” I.D. No. ASA-13-15-00017-E “Abuse or neglect”, “subject of the report,” “other persons named in the Filing No. 170 report,” “Vulnerable Persons Central Register,” “vulnerable person”, Filing Date: 2015-03-16 “intentionally and recklessly”, “clinical records”, “Incident management programs”, “Incident report”, “Missing client”, “qualified person”, “staff”, Effective Date: 2015-03-16 “Incident review Committee”. § 836.5 adds requirements for providers of services’ policies and PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- procedures related to, and implementation of, an Incident Management cedure Act, NOTICE is hereby given of the following action: Program consistent with the requirements of Chapter 501 of the Laws of Action taken: Repeal of Part 836 and addition of new Part 836 to Title 14 2012. NYCRR. § 836.6 adds requirements for incident reporting, notice and investigation to incorporate changes in processes necessitated by Chapter 501 of Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, the Laws of 2012. 19.20-a, 19.40, 32.02; Executive Law, section 296(15) and (16); Correc- § 836.7 adds requirements for additional notice and reporting require- tions Law, art. 23-A; Civil Service Law, section 50; Protection of People ments for reportable and significant incidents necessitated by Chapter 501 with Special Needs Act (L. 2012, ch. 501) of the Laws of 2012 such as: reporting “immediately” upon discovery of Finding of necessity for emergency rule: Preservation of public health, an incident; required reporting to the Justice Center Vulnerable Persons public safety and general welfare. Central Register, Office and regional Field Office; includes all “custodi- Specific reasons underlying the finding of necessity: The immediate ans” as “mandated reporters” for purposes of this regulation. adoption of these amendments is necessary for the preservation of the § 836.8 adds requirements for configuration of Incident Review Com- health, safety, and welfare of individuals receiving services. mittees consistent with requirements of Chapter 501 of the Laws of 2012. In December, 2012 Governor Andrew Cuomo signed the Protection of § 836.9 adds requirements for recordkeeping and release of records to People with Special Needs Act (PPSNA; chapter 501 of the Laws of 2012); qualified persons consistent with requirements of Chapter 501 of the Laws the statute created the Justice Center for the Protection of People with of 2012. Special Needs (Justice Center) establishing various protections for vulner- § 836.10 adds to a provider’s duty to cooperate regarding inspection of able persons, i.e., a new system for incident management in services oper- facilities by permitting the Justice Center access for purposes of an ated or certified by OASAS; investigation of allegations of abuse and ne- investigation of a reportable or significant incident consistent with require- glect and significant incidents; and new requirements for pre-employment ments of Chapter 501 of the Laws of 2012. background checks in OASAS certified and operated service providers, A copy of the full text of the regulatory proposal is available on the persons credentialed by the Office, and applicants for new operating OASAS website at: http://www.oasas.ny.gov/regs/index.cfm certificates. This notice is intended to serve only as a notice of emergency adoption. The amendments to Part 836, effective June 30, 2013 and subsequently This agency intends to adopt this emergency rule as a permanent rule and September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, will publish a notice of proposed rule making in the State Register at some September 12, 2014, December 14, 2014, and March 14, 2015 are neces- future date. The emergency rule will expire June 13, 2015. sary to implement the incident reporting and management provisions Text of rule and any required statements and analyses may be obtained required by the statute and to ensure compliance with the criminal history from: Sara Osborne, Assoc. Attorney, NYS Office of Alcoholism and background check provisions to further enhance patient safety. Substance Abuse Svcs. (OASAS), 1450 Western Ave., Albany, NY 12203, The promulgation of these regulations is essential to preserve the health, (518) 485-2317, email: [email protected] safety and welfare of individuals receiving services within the OASAS treatment system. If OASAS did not promulgate regulations to report and Regulatory Impact Statement manage incidents of abuse and neglect or other significant incidents, these 1. Statutory Authority: requirements would not be implemented or would be implemented (a) Protection of People with Special Needs Act, Chapter 501 of the ineffectively. Further, protections for individuals receiving services would Laws of 2012, which added Article 20 to the Executive Law and Article be threatened by the confusion resulting from similar functions performed 11 to the Social Services Law as well as amended other laws. but differing among the other agencies covered by the Justice Center. (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- OASAS was not able to use the regular rulemaking process established missioner to adopt regulations necessary and proper to implement any by the State Administrative Procedure Act because there was not suf- matter under his or her jurisdiction. ficient time to develop and promulgate regulations within the necessary (c) Section 19.20 of the MHL authorizes the Office to receive and timeframes. review criminal history information related to employees or volunteers of treatment facilities certified, licensed, funded or operated by the Office. Subject: Incident Reporting in OASAS Certified, Licensed, Funded or (d) Section 19.20-a of the MHL authorizes the Office to receive and Operated Programs. review criminal history information related to persons seeking to be Purpose: To enhance protections for service recipients in the OASAS credentialed by the Office or applicants for an operating certificate issued system. by the Office. Substance of emergency rule: The Proposed Rule would Repeal the cur- (e) Section 19.40 of the Mental Hygiene Law authorizes the Commis- rent Part 836 and Replace it with a new Part 836. The new Part incorporates sioner to issue operating certificates for the provision of chemical depen- amendments related to incident reporting consistent with statutory require- dence services. ments, definitions and procedures of the Justice Center, pursuant to the (f) Subdivisions (15) and (16) of Section 296 of the Executive Law Protection of People with Special Needs Act (Chapter 501 of the Laws of identify unlawful discriminatory practices with regard to the employment 2012). and the issuance of licenses. The Proposed Rule also makes technical amendments to standardize (g) Civil Service Law § 50 authorizes the Department of Civil Service formatting for all Office regulations. Amendments related to the Justice to request criminal history checks for applicants for state employment. Center include: (h) Article 23-A of the Corrections Law provides the factors to be Section 836.1 sets forth the background and intent and adds language considered concerning a person’s previous criminal convictions in making referencing the purpose for establishing the Justice Center and for a determination regarding employment and the issuance of a license. coordinating agency incident reviews with the Justice Center. 2. Legislative Objectives: § 836.2 sets forth the statutory authority for the promulgation of the The legislative objectives are the establishment of comprehensive rule by the Office of Alcoholism and Substance Abuse Services (“Of- protections for vulnerable persons against abuse, neglect and other harm- fice”); adds The Protection of People with Special Needs Act; removes re- ful conduct. The Act created a Justice Center with responsibilities for ef-

6 NYS Register/April 1, 2015 Rule Making Activities fective incident reporting and investigation systems, fair disciplinary Regulatory Flexibility Analysis processes, informed and appropriate staff hiring procedures, and strength- 1. Effect of the Rule: ened monitoring and oversight systems. OASAS services are provided by programs of varying size in every The Justice Center operates a 24/7 hotline for reporting allegations of county in New York State; some counties are also certified service abuse, neglect and significant incidents in accordance with Chapter 501’s providers. The proposed Rule has been reviewed by OASAS in consider- provisions for uniform definitions, mandatory reporting and minimum ation of its impact on service providers of all sizes and on local govern- standards for incident management programs. Working in collaboration ments, whether or not they are certified operators; additionally this regula- with the relevant state oversight agencies, the Justice Center is charged tion has been reviewed by the OASAS Advisory Council which consists with developing and delivering appropriate training for caregivers, their of providers and stakeholders of all sizes and municipalities. supervisors and investigators. 2. Compliance Requirements: A vulnerable persons’ central register contains the names of individuals The proposed regulation implements provisions of The Protection of found to have committed substantiated acts of abuse or neglect using a People with Special Needs Act (Chapter 501 of the Laws of 2012) for the preponderance of evidence standard. All persons found to have committed purpose of ensuring persons who receive services from OASAS certified such acts have the right to a hearing before an administrative law judge to providers are assured of receiving treatment from custodians who have challenge those findings Persons having committed egregious or repeated been appropriately trained and screened for any prior abusive behavior. acts of abuse or neglect are prohibited from future employment caring for The proposed rule will incorporate the Justice Center incident reporting vulnerable persons, and may be subject to criminal prosecution. Less seri- mechanism and database into the OASAS system so all reporting will be ous acts of misconduct are subject to progressive discipline and retraining. centralized and tracked for patterns and abuse and neglect allegations and Applicants with criminal records who seek employment serving vulner- other significant incidents. These regulations have been reviewed by the able persons will be individually evaluated as to suitability for such OASAS Advisory council consisting of stakeholders from all regions of positions. the state, providers of all sizes and municipalities. 3. Needs and Benefits: The Rule sets forth criteria for incident reporting to the Justice Center, OASAS is proposing to adopt the following regulation because The investigations, corrective action and penalties for programs and individu- Protection of People with Special Needs Act (Chapter 501 of the Laws of als who are not compliant with these, or other applicable, regulations. 2012) requires that allegations of abuse and neglect, and other significant Incidents will be reported electronically via a toll-free hotline. incidents be reported to the Justice Center Vulnerable Persons Central 3. Professional Services: Register via the toll free hotline. This legislation conforms OASAS regula- The proposed Rule has been reviewed by OASAS in consideration of tions to definitions, incident reporting, documentation and review require- its impact on service providers of all sizes and on local governments, ments of the Justice Center. The legislation strengthens the role of the whether or not they are certified operators. OASAS has determined that Incident Review Committee and links compliance with reporting and the new regulations will not require any new staff or any reductions in investigating incidents to a providers operating certificate renewal. Crimi- staff, any new reporting requirements or technology. No additional profes- nal history information reviews will be conducted on each prospective sional services will be required of as a result of these amendments; nor treatment provider, operator, employee, contractor, or volunteer of treat- will the amendments add to the professional service needs of local ment facilities certified by the NYS Office of Alcoholism and Substance governments. Because of the electronic nature of the reporting transac- Abuse Services (“OASAS” or “Office”) who will have the potential for, tions, minimal paperwork will be involved on the part of business or local or may be permitted, regular and substantial unsupervised or unrestricted governments. Because every region of the state has certified programs, physical contact with the clients in such treatment facilities and any indi- and requirements for staffing and training are uniform already, programs vidual seeking to be credentialed by the Office. The cost of fingerprinting will not be affected in any way because of their size or corporate status. will be subsidized by the Office. 4. Compliance Costs: This legislation requires patients and staff be notified of the toll free No additional costs will be incurred for implementation by providers Vulnerable Persons Central Register for purposes of reporting allegations because no additional capital investment, personnel or equipment is of abuse and neglect in OASAS certified programs and by OASAS needed regardless of size or corporate status. custodians, and that staff receive regular training in their obligations as 5. Economic and Technological Feasibility: custodians regarding regulatory requirements for prompt and thorough Implementation of the rule will require computer and email capability; investigations, staff oversight, confidentiality laws, record keeping, timing all providers in all regions of the state, both private and public sector, al- of reporting and investigating, content of reports, and procedures for cor- ready have such capability. No upgrades of hardware or software will be rective action plan implementation. Training will be provided by the Of- required. fice or the Justice Center. 6. Minimizing Adverse Impact: The legislation is intended to enable providers of services to persons The application of the rule will not impose additional costs or operating seeking treatment for substance use disorders to secure appropriate and requirements on providers on local governments or small businesses; properly trained individuals to staff their facilities and programs, by verify- therefore, it is designed on its face to minimize adverse impact. ing criminal history information received for individuals seeking employ- 7. Small Business and Local Government Participation: ment or volunteering their services and those credentialed by the Office. The proposed rule is posted on the agency website; agency review pro- The legislation also makes technical amendments to make language and cess involves input from trade organizations representing providers in format consistent throughout OASAS regulations. both public and private sectors, of all sizes and in diverse geographic 4. Costs: locations. The Office has prepared webinars and guidance documents for The Office anticipates no fiscal impact on providers or local govern- provider use and for training of agency administration. ments, job creation or loss, because the process of reporting incidents will Providers will be required to retain documentation of fingerprint not require any additions or reductions in staffing. OASAS will subsidize requests for employees, contractors of volunteers they ultimately employ; the fingerprinting process for not-for-profit providers. this will not be a significant additional recordkeeping requirement for 5. Paperwork: personnel records they are already required to retain. Every region of the The proposed regulatory amendments will require limited additional in- state has resources for gathering fingerprints, the history information col- formation to be reported to the Justice Center by mandated reporters and lection is done electronically from a central state or federal database, and documentation retained by providers. To the extent feasible, such report- communicated electronically, so any additional recordkeeping will be ing shall be made electronically to avoid unnecessary paperwork costs. minimal regardless of geographic location. No new professional services 6. Local Government Mandates: are required; no professional services will be lost. This regulation imposes no new mandates on local governments operat- Rural Area Flexibility Analysis ing certified OASAS programs. 1. Types and estimated number of rural areas: 7. Duplications: OASAS services are provided in every county in New York State. 44 This proposed rule does not duplicate any State or federal statute or counties have a population less than 200,000: Allegany, Cattaraugus, rule. Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, 8. Alternatives: Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, The Protection of People with Special Needs Act (Chapter 501 of the Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, Laws of 2012) requires the adoption of this proposed regulation. Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- 9. Federal Standards: nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- These amendments do not conflict with federal standards. kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- 10. Compliance Schedule: ties with certain townships have a population density of 150 persons or The regulations will be effective on June 30, 2013 and subsequently less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, Oneida, Onondaga and Orange. September 12, 2014, December 14, 2014, and March 14, 2015 to ensure 2. Reporting, recordkeeping and other compliance requirements; and compliance with Chapter 501 of the Laws of 2012. professional services:

7 Rule Making Activities NYS Register/April 1, 2015

The proposed regulation implements provisions of The Protection of EMERGENCY People with Special Needs Act (Chapter 501 of the Laws of 2012) for the purpose of establishing a uniform incident reporting process via a state RULE MAKING centralized hotline (Vulnerable Persons Central Register). The proposed regulation incorporates provisions from this Act into the OASAS incident Patient Rights reporting regulation which applies to all programs throughout the state in I.D. No. ASA-13-15-00018-E all geographic locations. Because the regulation applies to incident report- Filing No. 171 ing and incident management in OASAS certified, operated, funded or licensed programs, there is no different application in any geographic Filing Date: 2015-03-16 location. The proposed regulation incorporates the OASAS incident Effective Date: 2015-03-16 reporting process into a larger oversight and enforcement entity under the Justice Center. These requirements apply to OASAS providers in all PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- geographic regions. Reporting will be done electronically via telephone or cedure Act, NOTICE is hereby given of the following action: other secure means which are not limited by geography. The new rule Action taken: Repeal of Part 815; and addition of new Part 815 to Title 14 does not require any additional staff, although training will be required NYCRR. statewide and be largely provided by the Office or the Justice Center. The Rule sets forth criteria for incident reporting to the Justice Center, Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, investigations, corrective action and penalties for programs and individu- 19.20-a, 19.40, 32.02; Executive Law, section 296(15) and (16); Correc- als who are not compliant with these, or other applicable, regulations. The tions Law, art. 23-A; Civil Service Law, section 50; Protection of People proposed Rule has been reviewed by OASAS in consideration of its impact with Special Needs Act (L. 2012, ch. 501) on service providers in rural areas. Because every region of the state has Finding of necessity for emergency rule: Preservation of public health, certified programs, and requirements for staffing, training and incident public safety and general welfare. reporting are uniform already, programs will not be affected in any way Specific reasons underlying the finding of necessity: The immediate because of their geographic location in a rural area. adoption of these amendments is necessary for the preservation of the 3. Costs: health, safety, and welfare of individuals receiving services. No additional costs will be incurred for implementation by providers In December, 2012 Governor Andrew Cuomo signed the Protection of because no additional capital investment, personnel or equipment is People with Special Needs Act (PPSNA; chapter 501 of the Laws of 2012); needed. the statute created the Justice Center for the Protection of People with 4. Minimizing adverse impact: Special Needs (Justice Center) establishing various protections for vulner- The application of the rule will not impose additional costs or operating able persons, i.e., a new system for incident management in services oper- requirements on providers in rural areas; therefore, it is designed on its ated or certified by OASAS; and new requirements for pre-employment face to minimize adverse impact. background checks in OASAS certified and operated service providers, 5. Rural area participation: persons credentialed by the Office, and applicants for new operating The proposed rule is posted on the agency website; agency review pro- certificates. cess involves input from trade organizations representing providers in di- The repeal and addition of Part 815 related to Patient Rights, effective verse geographic locations. The Office has prepared webinars and guid- June 30, 2013 and subsequently September 25, 2013, December 20, 2013, ance documents for provider use and for training of agency administration. March 20, 2014, June 17, 2014, September 12, 2014, December 14, 2014 Job Impact Statement and March 14, 2015 is necessary to implement the criminal history OASAS is not submitting a Job Impact Statement for these amend- background check provisions as this is a new process for OASAS and to ments because OASAS does not anticipate a substantial adverse impact on make patients aware of additional rights. Additionally, by statute (Mental jobs and employment opportunities. Hygiene Law sections 19.20 and 19.20-a) requires OASAS, rather than The proposed regulation implements provisions of The Protection of the Justice Center, to conduct reviews of criminal history information and People with Special Needs Act (Chapter 501 of the Laws of 2012) for the to make recommendations regarding hiring, credentialing and certification. purpose of ensuring persons who receive services from OASAS certified The promulgation of these regulations is essential to preserve the health, providers are assured of receiving treatment from custodians who have safety and welfare of individuals receiving services within the OASAS been appropriately trained and screened for any prior abusive behavior. treatment system. If OASAS did not promulgate regulations on an emer- The proposed rule incorporates definitions and procedures for reporting gency basis, the processes for OASAS, its providers and service recipients incidents to the Justice Center and highlights the role of investigations and would not be implemented or would be implemented ineffectively. Fur- a provider Incident Review Committee to be responsible for quality assur- ther, protections for individuals receiving services would be threatened by ance, implementing corrective action plans related to repetitive incidents the confusion resulting from requirements differing for other agencies or patterns of lack of oversight. It also strengthens the link to program cer- covered by the Justice Center. tification through the requirement for staff background checks and record OASAS was not able to use the regular rulemaking process established retention and the review by OASAS quality assurance staff. by the State Administrative Procedure Act because there was not suf- The Rule sets forth criteria for incident reporting to the Justice Center, ficient time to develop and promulgate regulations within the necessary investigations, corrective action and penalties for programs and individu- timeframes. als who are not compliant with these, or other applicable, regulations. The Subject: Patient Rights. proposed regulation requires criminal history information reviews of any Purpose: To enhance protections for service recipients in the OASAS employee, contractor, or volunteer in treatment facilities certified by the system. Office who will have the potential for, or may be permitted, regular and Substance of emergency rule: The Proposed Rule would Repeal the cur- substantial unsupervised or unrestricted physical contact with the clients rent Part 815 and Replace it with a new Part 815. The new Part incorporates in such treatment facilities. amendments related to rights and obligations of patients in OASAS certi- OASAS has evaluated this proposal considering its impact on existing fied programs consistent with statutory requirements, definitions and jobs or the development of new employment opportunities for New York procedures of the Justice Center, pursuant to the Protection of People with residents. It is anticipated that the proposed regulation will not have an Special Needs Act (Chapter 501 of the Laws of 2012). adverse impact on existing employees in the field of substance use disor- The Proposed Rule also makes technical amendments to standardize der treatment, nor affect any reduction or increase in the number of posi- formatting and language for all Office regulations. Amendments related to tions available in the future. OASAS providers are already required to the Justice Center include: report incidents, but the role of a new oversight agency will help to con- Section 815.1 sets forth the background and intent and adds language solidate and streamline that process. consistent with statutory requirements, definitions and procedures of the The proposed regulation will have no adverse impact on existing jobs Justice Center, pursuant to the Protection of People with Special Needs or the development of new employment opportunities because programs Act (Chapter 501 of the Laws of 2012). are already required to report incidents; new regulations will not require § 815.2 sets forth the statutory authority for the promulgation of the any new staff or any reductions in staff It is not anticipated that the rule by the Office of Alcoholism and Substance Abuse Services (“Of- proposed rule will affect the number of persons applying for employment fice”); adds The Protection of People with Special Needs Act; removes re- within the OASAS system. pealed statutes; adds the Vulnerable Persons Central Register in § 492 of Assessment of Public Comment the social services law. The agency received no public comment since publication of the last as- § 815.3 amends applicability of this Part to be consistent with Justice sessment of public comment. Center statute and regulations.

8 NYS Register/April 1, 2015 Rule Making Activities

§ 815.4 adds to “provider requirements” language consistent with statu- patients’ rights to report allegations of abuse and neglect or other signifi- tory requirements, definitions and procedures of the Justice Center, pursu- cant incidents to the Vulnerable Persons Hotline. The requirement for ant to the Protection of People with Special Needs Act (Chapter 501 of the staff, operators, volunteers and contractors, if appropriate, to have Laws of 2012; requires posting of the toll-free hotline to the Vulnerable completed criminal history information reviews is incorporated as a right Persons Central Registry; requires policies and procedures for, and of patients to receive treatment in an environment that is therapeutic and implementation of, training for all “custodians” related to requirements of free from concerns about harm from staff. the Protection of People with Special Needs Act (Chapter 501 of the Laws OASAS is proposing to adopt the following regulation because crimi- of 2012) including the Code of Conduct. nal history information reviews conducted on each prospective treatment § 815.5 adds language which explicitly requires provider compliance provider, operator, employee, contractor, or volunteer of treatment facili- with the amended Patient Rights as a condition of receiving and maintain- ties certified by the NYS Office of Alcoholism and Substance Abuse Ser- ing an operating certificate to operate an Office service program. vices (“OASAS” or “Office”) who will have the potential for, or may be permitted, regular and substantial unsupervised or unrestricted physical § 815.10 amends reference to a “strip search” as a reportable incident to contact with the clients in such treatment facilities and any individual be referenced as a “significant incident” pursuant to Justice Center seeking to be credentialed by the Office will be sufficiently screened definitions. before such contact with patients, ensuring a safe and therapeutic A copy of the full text of the regulatory proposal is available on the environment. OASAS website at: http://www.oasas.ny.gov/regs/index.cfm The legislation is intended to enable providers of services to persons This notice is intended to serve only as a notice of emergency adoption. seeking treatment for substance use disorders to secure appropriate and This agency intends to adopt this emergency rule as a permanent rule and properly trained individuals to staff their facilities and programs, by verify- will publish a notice of proposed rule making in the State Register at some ing criminal history information received for individuals seeking employ- future date. The emergency rule will expire June 13, 2015. ment or volunteering their services and those credentialed by the Office. 4. Costs: Text of rule and any required statements and analyses may be obtained The Office anticipates no fiscal impact on providers or local govern- from: Sara Osborne, Assoc. Attorney, NYS Office of Alcoholism and ments, job creation or loss, because the Office will subsidize applicants Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) and prospective employees/volunteers in not for profit providers for the 485-2317, email: [email protected] cost of fingerprint production. Regulatory Impact Statement 5. Paperwork: 1. Statutory Authority: The proposed regulation will require some additional information to be (a) Protection of People with Special Needs Act, Chapter 501 of the reported to the agency by applicants for employment or management Laws of 2012, which added Article 20 to the Executive Law and Article contractors. To the extent feasible, such reporting shall be made electroni- 11 to the Social Services Law as well as amended other laws. cally to avoid unnecessary paperwork costs. No additional paperwork will (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- be required as it applies to patients. missioner to adopt regulations necessary and proper to implement any 6. Local Government Mandates: matter under his or her jurisdiction. To the extent local governments already conduct criminal history infor- (c) Section 19.20 of the MHL authorizes the Office to receive and mation reviews on municipal employees, there are no new local govern- review criminal history information related to employees or volunteers of ment mandates if a local government was to apply for certification. treatment facilities certified, licensed, funded or operated by the Office. Municipalities that are program operators will also need to comply with (d) Section 19.20-a of the MHL authorizes the Office to receive and the same rights of their patients as any other certified operator. review criminal history information related to persons seeking to be 7. Duplications: credentialed by the Office or applicants for an operating certificate issued This proposed rule does not duplicate, overlap, or conflict with any by the Office. State or federal statute or rule. (e) Section 19.40 of the Mental Hygiene Law authorizes the Commis- 8. Alternatives: sioner to issue operating certificates for the provision of chemical depen- The Protection of People with Special Needs Act (Chapter 501 of the dence services. Laws of 2012) requires the adoption of this proposed regulation. (f) Subdivisions (15) and (16) of Section 296 of the Executive Law 9. Federal Standards: identify unlawful discriminatory practices with regard to the employment These amendments do not conflict with federal standards. and the issuance of licenses. 10. Compliance Schedule: (g) Civil Service Law § 50 authorizes the Department of Civil Service The regulations will be effective on June 30, 2013 and subsequently to request criminal history checks for applicants for state employment. September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, (h) Article 23-A of the Corrections Law provides the factors to be September 12, 2014, December 14, 2014 and March 14, 2015 to ensure considered concerning a person’s previous criminal convictions in making compliance with Chapter 501 of the Laws of 2012. a determination regarding employment and the issuance of a license. Regulatory Flexibility Analysis 2. Legislative Objectives: 1. Effect of the Rule: The legislative objectives are the establishment of comprehensive OASAS services are provided by programs of varying size in every protections for vulnerable persons against abuse, neglect and other harm- county in New York State; some counties are also certified service ful conduct. The Act created a Justice Center with responsibilities for ef- providers. The proposed Rule has been reviewed by OASAS in consider- fective incident reporting and investigation systems, fair disciplinary ation of its impact on service providers of all sizes and on local govern- processes, informed and appropriate staff hiring procedures, and strength- ments, whether or not they are certified operators; additionally this regula- ened monitoring and oversight systems. tion has been reviewed by the OASAS Advisory Council which consists The Justice Center operates a 24/7 hotline for reporting allegations of of providers and stakeholders of all sizes and municipalities. abuse, neglect and significant incidents in accordance with Chapter 501’s 2. Compliance Requirements: provisions for uniform definitions, mandatory reporting and minimum The proposed regulation implements provisions of The Protection of standards for incident management programs. Working in collaboration People with Special Needs Act (Chapter 501 of the Laws of 2012) for the with the relevant state oversight agencies, the Justice Center is charged purpose of ensuring persons who receive services from OASAS certified with developing and delivering appropriate training for caregivers, their providers are assured of receiving treatment from custodians who have supervisors and investigators. been appropriately trained and screened for any prior abusive behavior. A vulnerable persons’ central register contains the names of individuals The proposed regulation incorporates provisions from this Act into the found to have committed substantiated acts of abuse or neglect using a OASAS Patient Rights regulation which applies to all programs throughout preponderance of evidence standard. All persons found to have committed the state in all geographic locations. Because the regulation applies only to such acts have the right to a hearing before an administrative law judge to the rights and responsibilities of patients in certified programs, there is no challenge those findings Persons having committed egregious or repeated different application in any geographic location. acts of abuse or neglect are prohibited from future employment caring for 3. Professional Services: vulnerable persons, and may be subject to criminal prosecution. Less seri- Providers will be required to retain documentation of fingerprint ous acts of misconduct are subject to progressive discipline and retraining. requests for employees, contractors of volunteers they ultimately employ; Applicants with criminal records who seek employment serving vulner- this will not be a significant additional recordkeeping requirement for able persons will be individually evaluated as to suitability for such personnel records they are already required to retain. Every region of the positions. state has resources for gathering fingerprints, the history information col- 3. Needs and Benefits: lection is done electronically from a central state or federal database, and This regulation governs the rights and responsibilities of patients in communicated electronically, so any additional recordkeeping will be OASAS certified treatment programs. The regulation incorporates provi- minimal regardless of geographic location. No new professional services sions of Chapter 501 of the Laws of 2012 to the extent they relate to are required; no professional services will be lost.

9 Rule Making Activities NYS Register/April 1, 2015

4. Compliance Costs: The proposed regulation implements provisions of The Protection of Because every region of the state has resources for gathering finger- People with Special Needs Act (Chapter 501 of the Laws of 2012) for the prints, and the history information collection is done electronically from a purpose of ensuring persons who receive services from OASAS certified central state or federal database, smaller providers or municipal providers providers are assured of receiving treatment from custodians who have will not be affected in any way. Many municipalities already conduct been appropriately trained and screened for any prior abusive behavior. criminal history information reviews on prospective employees. This regulation incorporates any relevant provisions into the OASAS Although providers will be required to retain documentation of Patient Rights regulation. fingerprint requests for employees, contractors, or volunteers they The proposed regulation will not have an adverse impact on existing ultimately employ, this will not be a significant additional recordkeeping jobs or the development of new employment opportunities for New York requirement because providers are already required to retain records re- residents because it is narrowly related to the rights and obligations of lated to such relationships. No additional professional services will be patients while they are in OASAS certified programs. It is anticipated that required of as a result of these amendments; nor will the amendments add the proposed regulation will not have an adverse impact on existing em- to the professional service needs of local governments. Because of the ployees in the field of substance use disorder treatment, nor affect any electronic nature of the transactions, minimal paperwork will be involved reduction or increase in the number of positions available in the future. on the part of business or local governments. The Office will subsidize ap- The proposed regulation does not have an adverse impact on jobs or plicants for all prospective employees or volunteers of not-for-profit employment opportunities anywhere in the State, therefore, no region is providers, regardless of geographic location; there will be no disparate disproportionately affected by the proposed regulation. impact on providers based on location, size of business or municipality. The proposed regulation will have no adverse impact on existing jobs 5. Economic and Technological Feasibility: or the development of new employment opportunities. It is not anticipated Implementation of the rule will require computer and email capability; that the proposed rule will affect the number of persons applying for all providers in all regions of the state, both private and public sector, al- employment. ready have such capability. No upgrades of hardware or software will be required. Also because every region of the state has resources for gather- EMERGENCY ing fingerprints, and the history information collection is done electronically from a central state or federal database, and increasingly com- RULE MAKING municated electronically any additional recordkeeping will be minimal regardless of geographic location. Establishment, Incorporation and Certification of Providers of 6. Minimizing Adverse Impact: Substance Use Disorder Services The application of the rule will not impose additional costs or operating requirements on providers on local governments or small businesses; I.D. No. ASA-13-15-00019-E therefore, it is designed on its face to minimize adverse impact. Filing No. 172 7. Small Business and Local Government Participation: The proposed rule is posted on the agency website; agency review pro- Filing Date: 2015-03-16 cess involves input from trade organizations representing providers in Effective Date: 2015-03-16 both public and private sectors, of all sizes and in diverse geographic locations. The Office has prepared webinars and guidance documents for PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- provider use and for training of agency administration. cedure Act, NOTICE is hereby given of the following action: Rural Area Flexibility Analysis 1. Types and estimated number of rural areas: Action taken: Repeal of Part 810; and addition of new Part 810 to Title 14 OASAS services are provided in every county in New York State. 44 NYCRR. counties have a population less than 200,000: Allegany, Cattaraugus, Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, 19.20-a, 19.40, 32.02; Executive Law, section 296(15) and (16); Correc- Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, tions Law, art. 23-A; Civil Service Law, section 50; Protection of People Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, with Special Needs Act (L. 2012, ch. 501) Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- Finding of necessity for emergency rule: Preservation of public health, nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- public safety and general welfare. kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- Specific reasons underlying the finding of necessity: The immediate ties with certain townships have a population density of 150 persons or adoption of these amendments is necessary for the preservation of the less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, health, safety, and welfare of individuals receiving services. Oneida, Onondaga and Orange. In December, 2012 Governor Andrew Cuomo signed the Protection of 2. Reporting, recordkeeping and other compliance requirements; and People with Special Needs Act (PPSNA; chapter 501 of the Laws of 2012); professional services: the statute created the Justice Center for the Protection of People with The proposed regulation implements provisions of The Protection of Special Needs (Justice Center) establishing various protections for vulner- People with Special Needs Act (Chapter 501 of the Laws of 2012) for the able persons, i.e., a new system for incident management in services oper- purpose of ensuring persons who receive services from OASAS certified ated or certified by OASAS; and new requirements for pre-employment providers are assured of receiving treatment from custodians who have background checks in OASAS certified and operated service providers, been appropriately trained and screened for any prior abusive behavior. persons credentialed by the Office, and applicants for new operating The proposed regulation incorporates provisions from this Act into the certificates. OASAS Patient Rights regulation which applies to all programs throughout The amendments to Part 810, effective June 30, 2013 and subsequently the state in all geographic locations. Because the regulation applies only to September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, the rights and responsibilities of patients in certified programs, there is no September 12, 2014, December 14, 2014 and March 14, 2015 are neces- different application in any geographic location. sary to implement the criminal history background check provisions as 3. Costs: this is a new process for OASAS. Additionally, by statute (Mental Hygiene No additional costs will be incurred for implementation by providers Law sections 19.20 and 19.20-a) requires OASAS, rather than the Justice because no additional capital investment, personnel or equipment is Center, to conduct reviews of criminal history information and to make needed. Also, the Office will subsidize the cost of fingerprinting for all ap- recommendations regarding hiring, credentialing and certification. plicants for employment in not-for-profit providers; all other applicants Amendments will also streamline the process of program certification for will pay for their own processing regardless of geographic. needed services and is consistent with Governor Cuomo and the Sage 4. Minimizing adverse impact: Commission’s “Lean Initiative” to improve efficiency in state government. The application of the rule will not impose additional costs or operating The promulgation of these regulations is essential to preserve the health, requirements on providers in rural areas; therefore, it is designed on its safety and welfare of individuals receiving services within the OASAS face to minimize adverse impact. treatment system. If OASAS did not promulgate regulations on an emer- 5. Rural area participation: gency basis, the process for OASAS to conduct ct this new process would The proposed rule is posted on the agency website; agency review pro- not be implemented or would be implemented ineffectively. Further, cess involves input from trade organizations representing providers in di- protections for individuals receiving services would be threatened by verse geographic locations. The Office has prepared webinars and guid- insufficient safeguards regarding entities receiving operating certificates ance documents for provider use and for training of agency administration. from the Office. If OASAS did not promulgate regulations related to the Job Impact Statement “Lean Initiative” on an emergency basis, the process for OASAS and ap- OASAS is not submitting a Job Impact Statement for these amend- plicants for certification of new providers would become increasingly ments because OASAS does not anticipate a substantial adverse impact on cumbersome due to timetables, records management, and protracted jobs and employment opportunities. reviews of submissions.

10 NYS Register/April 1, 2015 Rule Making Activities

OASAS is not able to use the regular rulemaking process established by requirements are part of the inspection and review process for re- the State Administrative Procedure Act because there is not sufficient time certification. to develop and promulgate regulations within the necessary timeframes. § 810.16 consolidates language related to voluntary termination of au- Subject: Establishment, Incorporation and Certification of Providers of thorized services. Substance Use Disorder Services. § 810.18 removes provisions for waiver; adds severability language. Purpose: To enhance protections for service recipients in the OASAS A copy of the full text of the regulatory proposal is available on the system. OASAS website at: http://www.oasas.ny.gov/regs/index.cfm Substance of emergency rule: The Proposed Rule would Repeal the cur- This notice is intended to serve only as a notice of emergency adoption. rent Part 810 and Replace it with a new Part 810 titled “Establishment, This agency intends to adopt this emergency rule as a permanent rule and Incorporation and Certification of Providers of Substance Use Disorder will publish a notice of proposed rule making in the State Register at some Services.” The new Part incorporates amendments to the Office’s certifi- future date. The emergency rule will expire June 13, 2015. cation and review process consistent with statutory requirements, defini- Text of rule and any required statements and analyses may be obtained tions and procedures of the Justice Center, pursuant to the Protection of from: Sara Osborne, Assoc. Attorney, NYS Office of Alcoholism and People with Special Needs Act (Chapter 501 of the Laws of 2012); adds a Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) new requirement that a majority of owners or principals of an applicant 485-2317, email: [email protected] must have demonstrated prior experience in substance use disorder ser- Regulatory Impact Statement vices, and that they shall require a criminal history information review 1. Statutory Authority: prior to any final agency decision regarding certification or re-certification; (a) Protection of People with Special Needs Act, Chapter 501 of the and makes amendments which adopt recommendations developed by the Laws of 2012, which added Article 20 to the Executive Law and Article Office in response to Governor Cuomo and the Sage Commission’s “Lean 11 to the Social Services Law as well as amended other laws. Initiative” to streamline government processes and procedures. (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- The Proposed Rule also makes technical amendments to standardize missioner to adopt regulations necessary and proper to implement any formatting and language usage for all Office regulations. matter under his or her jurisdiction. Amendments include: (c) Section 19.20 of the MHL authorizes the Office to receive and Section 810.1 sets forth the background and intent and updates language review criminal history information related to employees or volunteers of referencing “substance use disorder”; removes language no longer ap- treatment facilities certified, licensed, funded or operated by the Office. plicable which was required to “grandfather” programs certified pursuant (d) Section 19.20-a of the MHL authorizes the Office to receive and to prior regulations. review criminal history information related to persons seeking to be § 810.2 sets forth the statutory authority for the promulgation of the credentialed by the Office or applicants for an operating certificate issued rule by the Office of Alcoholism and Substance Abuse Services (“Of- by the Office. fice”); adds The Protection of People with Special Needs Act and statutes (e) Section 19.40 of the Mental Hygiene Law authorizes the Commis- relating to required Criminal History Information reviews for all applicants sioner to issue operating certificates for the provision of chemical depen- for certification. dence services. § 810.4 adds new definitions or amends language to be consistent with (f) Subdivisions (15) and (16) of Section 296 of the Executive Law the Justice Center: “criminal history information review”, updates usage. identify unlawful discriminatory practices with regard to the employment § 810.5 and 810.6 eliminates the requirement of a full review for a and the issuance of licenses. capital project proposed by a program that is not utilizing state funds from (g) Civil Service Law § 50 authorizes the Department of Civil Service the DASNY Mental Hygiene bonding program; requires such proposals to to request criminal history checks for applicants for state employment. receive an administrative review instead. (h) Article 23-A of the Corrections Law provides the factors to be § 810.7 requires a majority of applicants for certification or renewal to considered concerning a person’s previous criminal convictions in making have demonstrated prior experience in substance use disorder treatment a determination regarding employment and the issuance of a license. services; updates language related to corporate structure. 2. Legislative Objectives: § 810.8 amends requirements for the full review process of an applica- The legislative objectives are the establishment of comprehensive tion for certification to include required criminal history information protections for vulnerable persons against abuse, neglect and other harm- review as a criteria for Office consideration whether or not to issue or ful conduct. The Act created a Justice Center with responsibilities for ef- renew and operating certificate; eliminates the “interim operating certifi- fective incident reporting and investigation systems, fair disciplinary cate” as it is not used; consolidates language related to due process for ap- processes, informed and appropriate staff hiring procedures, and strength- plicants denied certification; eliminates specific time frames for response ened monitoring and oversight systems. and submission of documentation in a certification application and re- The Justice Center operates a 24/7 hotline for reporting allegations of places them with “a reasonable time.” Amendments also introduce an abuse, neglect and significant incidents in accordance with Chapter 501’s interim “threshold review” by the Office to reduce retention of incomplete provisions for uniform definitions, mandatory reporting and minimum applications and reduce staff time needed to track and follow-up on standards for incident management programs. Working in collaboration incomplete submissions. with the relevant state oversight agencies, the Justice Center is charged § 810.9 amends requirements for the administrative review process of with developing and delivering appropriate training for caregivers, their an application for certification to include required criminal history infor- supervisors and investigators. mation review as a criteria for Office consideration whether or not to issue A vulnerable persons’ central register contains the names of individuals or renew and operating certificate; eliminates the “interim operating cer- found to have committed substantiated acts of abuse or neglect using a tificate” as it is not used; consolidates language related to due process for preponderance of evidence standard. All persons found to have committed applicants denied certification; eliminates specific timeframes for response such acts have the right to a hearing before an administrative law judge to and submission of documentation and replaces them with “a reasonable challenge those findings Persons having committed egregious or repeated time.” acts of abuse or neglect are prohibited from future employment caring for § 810.10 adds requirements for Office prior approval of any changes in vulnerable persons, and may be subject to criminal prosecution. Less seri- programming or corporate structure post certification, including any ous acts of misconduct are subject to progressive discipline and retraining. reduction in the majority of owners or principals with prior substance use Applicants with criminal records who seek employment serving vulner- disorder treatment experience; eliminates specific timeframes for response able persons will be individually evaluated as to suitability for such and submission of documentation and replaces them with “a reasonable positions. time.” Additional amendments adopt recommendations developed by the Of- § 810.11 consolidates language requiring cooperative review of any fice in response to Governor Cuomo and the Sage Commission’s “Lean programs requiring review by both the Office and the Department of Initiative” to streamline government processes and procedures. The Health. amendments eliminate specific time frames for response and submission § 810.12 strengthens Office control of management contracts entered of documentation in a certification application and replace them with “a into by providers of services; requires administrators of contractors to reasonable time.” Amendments also introduce an interim “threshold complete a criminal history information review; retains in the governing review” by the Office to reduce retention of incomplete applications and authority to authority to remove any custodian regardless of change in reduce staff time needed to track and follow-up on incomplete employment status. submissions. Amendments to the regulation serve as notice to the public § 810.13 updates language related to the different levels of certification of such changes in application processes. of substance use disorder services. 3. Needs and Benefits: § 810.14 adds requirement that staff credentials and employee or OASAS is proposing to adopt the following regulation because The contractor compliance with the criminal history information review Protection of People with Special Needs Act (Chapter 501 of the Laws of

11 Rule Making Activities NYS Register/April 1, 2015

2012) requires that criminal history information reviews be conducted on No new professional services are required; no professional services will each prospective treatment provider, operator, employee, contractor, or be lost. volunteer of treatment facilities certified by the NYS Office of Alcohol- 4. Compliance Costs: ism and Substance Abuse Services (“OASAS” or “Office”) who will have Because every region of the state has resources for gathering finger- the potential for, or may be permitted, regular and substantial unsupervised prints, and the history information collection is done electronically from a or unrestricted physical contact with the clients in such treatment facilities central state or federal database, individual or municipal applicants will and any individual seeking to be credentialed by the Office. not be affected in any way. Many municipalities already conduct criminal This legislation adds a new requirement that a majority of owners or history information reviews on prospective employees. principals of a provider demonstrate prior experience in substance use dis- 5. Economic and Technological Feasibility: order treatment and also requires principals or applicants for certification Implementation of the rule will require computer and email capability; to comply with requirements for a criminal history information review. all applicants in all regions of the state, both private and public sector, The legislation is intended to enable providers of services to persons seek- have such capability. No upgrades of hardware or software will be ing treatment for substance use disorders to secure appropriate and required. Also because every region of the state has resources for gather- properly trained individuals who own and operate OASAS facilities and ing fingerprints, and the history information collection is done electroni- programs, by verifying criminal history information received for individu- cally from a central state or federal database, and increasingly com- als to operate such programs. municated electronically any additional recordkeeping will be minimal OASAS is proposing to adopt these amendments to the certification ap- regardless of geographic location. plication and review process because they will reduce administrative time 6. Minimizing Adverse Impact: spent tracking incomplete submissions and retaining and organizing The application of the rule will not impose additional costs or operating incomplete submissions or those that are not serious about becoming requirements on applicants, local governments or small businesses; providers. therefore, it is designed on its face to minimize adverse impact. The legislation also makes technical amendments to make language and 7. Small Business and Local Government Participation: format consistent throughout OASAS regulations. The proposed rule is posted on the agency website; agency review pro- 4. Costs: cess involves input from trade organizations representing providers in The Office anticipates no fiscal impact on providers or local govern- both public and private sectors, of all sizes and in diverse geographic ments, job creation or loss. No additional administrative costs to the locations. The Office has prepared webinars and guidance documents for agency are anticipated; no additional costs to programs/providers are applicant use and for training agency administration. anticipated. Rural Area Flexibility Analysis 5. Paperwork: 1. Types and estimated number of rural areas: The proposed regulation will require some additional information to be OASAS services are provided in every county in New York State. 44 reported to the agency by applicants for certification. To the extent counties have a population less than 200,000: Allegany, Cattaraugus, feasible, such reporting shall be made electronically to avoid unnecessary Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, paperwork costs. The proposed “Lean Initiative” amendments will reduce Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, agency paperwork and storage of incomplete applications. Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, 6. Local Government Mandates: Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- To the extent local governments already conduct criminal history infor- nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- mation reviews on municipal employees, there are no new local govern- kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- ment mandates if a local government was to apply for certification; “Lean ties with certain townships have a population density of 150 persons or Initiative” amendments impose no local government mandates. less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, 7. Duplications: Oneida, Onondaga and Orange. This proposed rule does not duplicate, overlap, or conflict with any 2. Reporting, recordkeeping and other compliance requirements; and State or federal statute or rule. professional services: 8. Alternatives: The proposed Rule requires persons who apply to the Office for certifi- The Protection of People with Special Needs Act (Chapter 501 of the cation to operate a treatment program to comply with the requirements of Laws of 2012) requires the adoption of this proposed regulation; failure to The Protection of People with Special Needs Act (Chapter 501 of the Laws adopt the “Lean Initiative” amendments would continue to subject ap- of 2012) and complete a criminal history information review prior to certi- plicants and Office personnel to inefficient and cumbersome processes fication, credentialing or hiring. and procedures. The Office will retain documentation of such review; this will not be an 9. Federal Standards: additional recordkeeping requirement for applicants or the Office. Every These amendments do not conflict with federal standards. region of the state has resources for gathering fingerprints, the history in- 10. Compliance Schedule: formation collection is done electronically from a central state or federal The regulations will be effective on June 30, 2013 and subsequently database, and communicated electronically, so any additional recordkeep- September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, ing will be minimal regardless of geographic location. No new profes- September 12, 2014, December 14, 2014 and March 14, 2015 to ensure sional services are required; no professional services will be lost. compliance with Chapter 501 of the Laws of 2012 and Governor Cuomo’s 3. Costs: “Lean Initiative” and Sage Commission mandates. No additional costs will be incurred for implementation by providers Regulatory Flexibility Analysis because no additional capital investment, personnel or equipment is 1. Effect of the Rule: needed and the Office and applicants are involved, not programs. Ap- OASAS services are provided by programs of varying size in every plicants will pay for their own processing regardless of geographic. county in New York State; some counties are also certified service 4. Minimizing adverse impact: providers. The proposed Rule has been reviewed by OASAS in consider- The application of the rule will not impose additional costs or operating ation of its impact on applications for service providers of all sizes and on requirements on providers in rural areas; therefore, it is designed on its local governments; additionally this regulation has been reviewed by the face to minimize adverse impact. OASAS Advisory Council which consists of providers and stakeholders 5. Rural area participation: of all sizes and municipalities. The proposed rule is posted on the agency website; agency review pro- 2. Compliance Requirements: cess involves input from trade organizations representing providers in di- The proposed Rule requires persons who apply to the Office for certifi- verse geographic locations. The Office has prepared webinars and guid- cation to operate a treatment program to comply with the requirements of ance documents for provider use and for training of agency administration. The Protection of People with Special Needs Act (Chapter 501 of the Laws Job Impact Statement of 2012) and complete a criminal history information review prior to certi- OASAS is not submitting a Job Impact Statement for these amend- fication; amendments also streamline the application review process by ments because OASAS does not anticipate a substantial adverse impact on the agency by affording flexibility in time schedules and a threshold jobs and employment opportunities. review prior to a substantive review. The proposed regulation requires persons who apply to the Office for 3. Professional Services: certification to operate a treatment program, or persons who are principals The Office will retain documentation of such applicant review; this will or operators of an entity applying for certification, to comply with the not be an additional recordkeeping requirement for applicants or the requirements of The Protection of People with Special Needs Act (Chapter Office. Every region of the state has resources for gathering fingerprints, 501 of the Laws of 2012) and complete a criminal history information the history information collection is done electronically from a central review prior to certification. Operating certificates are also issued state or federal database, and communicated electronically, so any ad- contingent on compliance with other laws and regulations, including those ditional recordkeeping will be minimal regardless of geographic location. promulgated by the Justice Center.

12 NYS Register/April 1, 2015 Rule Making Activities

The proposed regulation has been presented to, and approved by, the Statewide Central Register of Child Abuse and Maltreatment (SCR). Any OASAS Advisory Council and to the Behavioral Health Services Advi- concerns regarding abuse or neglect of a child in a residential care program sory Council consisting of providers and other stakeholders from a range must be reported to the Vulnerable Persons Central Register (VPCR). The of corporate types and municipalities. It is not anticipated that this regula- VPCR will also register reports of suspected abuse or neglect of persons tion will have an adverse impact on existing jobs or the development of residing in Family Type Homes for Adults (FTHA). Reports registered by new employment opportunities for New York residents. It is anticipated the VPCR will be forwarded to Justice Center investigative staff or to that the proposed regulation will not have an adverse impact on existing investigative staff at the State Agency that licenses, certifies or operates employees in the field of fingerprinting or history review. The proposed the facility or provider agency. Regulations are required to provide direc- regulations should not impact the number of criminal history information tion to facilities, provider agencies, employees, local government staff and reviews requested via federal and state existing database. The Office is the public. It is imperative that rules be in place for the proper implementa- unable to determine what affect the proposed regulation may have on the tion of the Justice Center legislation. employment of independent fingerprinting services or Office employees In addition, these emergency regulations re-insert language at section in the future. The proposed regulation does not have an adverse impact on 182-1.5 of Title 9 NYCRR to prohibit discrimination on the basis of sexual jobs or employment opportunities anywhere in the State, therefore, no orientation, gender identity or expression. This language had been part of region is disproportionately affected by the proposed regulation. This the regulations until June 2014 when they were inadvertently overwritten regulation will not require additional professional staff in existing certi- by other regulatory changes. This language is necessary to provide protec- fied providers; although entities will be required to maintain some records tion from such discrimination for the persons receiving services in the related to staff background, these should be minimal because much of the programs regulated by section 182-1.5 of Title 9 NYCRR. record exchange will be accomplished electronically. Promulgating emergency regulations will ensure compliance with legislative requirements and provide the necessary guidance to affected The proposed regulation will have no adverse impact on existing jobs persons. Absent the filing of emergency regulations, guidance, protections or the development of new employment opportunities. It is not anticipated and processes will not be available to the aforementioned listed facilities that the proposed rule will affect the number of persons or entities apply- and agencies. ing for certification as operators of treatment service providers. Subject: Protection of vulnerable persons. Purpose: To create a durable set of safeguards to protect vulnerable persons against abuse, neglect and other conduct. Office of Children and Family Substance of emergency rule: Chapter 501 of the Laws of 2012 established the Justice Center for the Protection of People with Special Needs Services (“Justice Center”). The legislation requires the Office of Children and Family Services (“OCFS) to promulgate regulations consistent with the Justice Center oversight, regulations and enforcement. These regulations EMERGENCY enact changes in line with the legislation to protect vulnerable people against abuse, neglect and other conduct that may jeopardize their health, RULE MAKING safety and welfare, and to provide fair treatment and notice to the employees. The included additions and amendments allow OCFS to Protection of Vulnerable Persons comply with the statutory requirements that became effective June 30, 2013. I.D. No. CFS-13-15-00010-E The facilities and provider agencies that are license, operated or certi- Filing No. 165 fied by OCFS that are affected are the following: residential runaway and Filing Date: 2015-03-16 homeless youth programs; family type homes for adults; certified detention programs; OCFS operated juvenile justice programs; voluntary Effective Date: 2015-03-16 agency run institutions, group residences, group homes, agency operated boarding homes including supervised independent living programs; and, PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- any local department of social services that runs a detention program or cedure Act, NOTICE is hereby given of the following action: has a contract with an authorized agency for detention services or has a Action taken: Amendment of Part 180, Subparts 166-1, 182-1 and 182-2 contract(s) for care of foster children in out-of-state facilities. In addition, of Title 9 NYCRR; amendment of Parts 402, 414, 421, 433, 435, 441, 442, additional background check requirements were added for Family Foster 443, 447, 448, 449, 476, 477, 489, Subparts 418-1 and 418-2 of Title 18 Boarding Homes, families applying to adopt a child and child care NYCRR. providers. Regulations were added or amended to incorporate reporting, investigative, record keeping, record production, administrative, and Statutory authority: Social Services Law, sections 20(3)(d) and 34(3)(f); personnel requirements, among others. Executive Law, sections 501(5) and 532-e; L. 2012, ch. 501 The first category of regulations added or amended address jurisdiction Finding of necessity for emergency rule: Preservation of public health, of the newly created Vulnerable Persons Central Register (VPCR). public safety and general welfare. Regulations will now reflect that reports of suspected abuse or neglect of Specific reasons underlying the finding of necessity: Chapter 501 of the persons receiving services in OCFS licensed, certified or operated resi- Laws of 2012 established the Justice Center for the Protection of People dential care programs will be reported to the VPCR. Additionally reports with Special Needs (“Justice Center”). The Justice Center is tasked with regarding significant incidents that harm or put a service recipient at risk overseeing and improving consistency in responses to incidents of abuse of harm at those same programs will be reported to the VPCR. and neglect of vulnerable people. The Justice Center has also been tasked The second category of regulations added or amended addresses with establishing standards for tracking and investigating complaints and requirements of mandated reporters and what mandated reporters will be enforcement against those who commit substantiated acts of abuse and required to report to the VPCR. Acts of abuse/neglect and significant neglect. The legislation requires the Office of Children and Family Ser- incidents are defined and procedures regarding making a report to the vices, as a state oversight agency of vulnerable persons, to develop stan- VPCR are outlined. dards consistent with the Justice Center. These standards are to protect The third category of regulations added or amended provides for the vulnerable people against abuse, neglect and other conduct that may requirement of data collection by the facility or provider agencies in re- jeopardize their health, safety and welfare, and to provide fair treatment sponse to requests by the Justice Center and standards for release of that and notice to the employees. The Office of Children and Family Services information by the Justice Center. must promulgate regulations to provide notice, guidance and standards to The fourth category of regulations added or amended provides for the all facilities, provider agencies and employees who are affected by the creation of incident review committees to affected facilities and provider legislation. The Justice Center took effect June 30, 2013. agencies. Facilities and provider agencies covered by the legislation include vol- The fifth category of regulations added or amended provides criminal untary agencies that operate residential programs that are licensed or certi- history background checks and checks of the Justice Center’s list of fied by the Office of Children and Family Services, residential runaway substantiated category one reports of abuse and neglect prior to hiring and homeless youth programs, family type homes for adults, certified certain employees, use of volunteers or contracts with certain entities have detention programs, OCFS operated juvenile justice programs, and any lo- been added or amended. cal department of social services that runs a detention program or has a Lastly, language inadvertently overwritten in June 2014 was re-inserted contract with an authorized agency for detention services or has a at section 182-1.5 of Title 9 of the NYCRR. The re-inserted language contract(s) for care of foster children in out of state facilities. prohibits discrimination on the basis of sexual orientation, gender identity Effective on June 30, 2013 reports of suspected child abuse or neglect or expression. Inclusion of this language provides protection from such in a residential program no longer fall under the jurisdiction of the discrimination for the persons receiving services in the regulated programs.

13 Rule Making Activities NYS Register/April 1, 2015

This notice is intended to serve only as a notice of emergency adoption. 10. Compliance schedule: This agency intends to adopt this emergency rule as a permanent rule and The regulations will be effective on March 16, 2015 to ensure compli- will publish a notice of proposed rule making in the State Register at some ance with Chapter 501 of the Laws of 2012. future date. The emergency rule will expire June 13, 2015. Regulatory Flexibility Analysis Text of rule and any required statements and analyses may be obtained 1. Types and estimated number of small businesses and local from: Public Information Office, NYS Office of Children and Family Ser- governments: vices, 52 Washington Street, Rensselaer, New York 12144, (518) 473- Social services districts and voluntary authorized agencies contracting 7793 with such social services districts to provide residential foster care ser- Regulatory Impact Statement vices to children, authorized agencies providing juvenile detention ser- 1. Statutory authority: vices, runaway and homeless youth shelters and adult family type homes Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office will be affected by the proposed regulations, as well as state operated ju- of Children and Family Services (OCFS) to establish rules and regulations venile justice facilities. to carry out its powers and duties pursuant to the provisions of the SSL. 2. Reporting, recordkeeping and compliance requirements and profes- Section 34(3)(f) of the SSL requires the Commissioner of OCFS to es- sional services: tablish regulations for the administration of public assistance and care Prior to Chapter 501 of the Laws of 2012, authorized agencies, facilities within the State. and mandated reporters employed by the same were required reporters of Section 501(5) and 532-e of the New York State Executive Law suspected child abuse or maltreatment to the New York Statewide Central authorizes the Commissioner of OCFS to promulgate rules and regula- Register of Child Abuse and Maltreatment. Pursuant to the statutory tions for the establishment, operation and maintenance of division facili- requirements of Social Services Law Sections 490 and 491, those ties and programs. mandated reporters are now required to report all reportable incidents, Section 490 of the SSL as found in Chapter 501 of the Laws of 2012 which will include but not be limited to those things previously falling requires the Commissioner of OCFS to promulgate regulations that contain within the definitions of abuse and neglect of a child in residential care, to procedures and requirements consistent with guidelines and standards the Vulnerable Persons Central Register. Authorized Agencies and facili- developed by the justice center and addressing incident management ties will be required to maintain the same level of practice as it relates to programs required by the Chapter Law. recordkeeping, and prevention and remediation plans. Authorized agen- 2. Legislative objectives: cies and facilities will be required to comply with investigations and infor- The proposed changes to the regulations concerning vulnerable persons mation requests as required by the Justice Center for the Protection of in programs licensed, certified or operated by OCFS are necessary to fur- People with Special Needs, as defined in Article 20 of the Executive Law. ther the legislative objective that vulnerable persons be safe and afforded The proposed regulations and amendments alter practice to conform to appropriate care. statutory obligations set forth in Chapter 501 of the Laws of 2012. 3. Needs and benefits: 3. Costs: To the extent a change to the run away and homeless youth regulations To the extent a change to the run away and homeless youth regulations is a technical change, the need is to reauthorize language already found in is a technical change, there is no anticipated cost. All affected programs regulation and implemented by program. such as authorized agencies or facilities are currently subject to require- The proposed changes to the regulations concerning vulnerable persons ments governing reporting, record keeping, management of approved in programs licensed, certified or operated by OCFS providers is in re- procedures and policies. As such the proposed regulations should not sponse to the recognized need to strengthen and standardize the safety net impose any additional costs associated with those functions. The statutory for vulnerable persons, adults and children alike, who are receiving care and regulatory requirements will necessarily require a reconfiguration of from New York's human service agencies and programs. The Protection the current utilization of administrative costs to conform and comply with of People with Special Needs Act creates a set of uniform safeguards, to the requirements of the new law and conforming regulations. The statu- be implemented by a justice center whose primary focus will be on the tory scheme provides for the enhancement of services for the protections protection of vulnerable persons. Accordingly, the benefit of this legisla- of Vulnerable Persons, which will have added costs. tion is to create a durable set of consistent safeguards for all vulnerable 4. Economic and technological feasibility: persons that will protect them against abuse, neglect and other conduct The proposed regulatory changes would not require any additional that may jeopardize their health, safety and welfare, and to provide fair technology and should not have any adverse economic consequences for treatment to the employees upon whom they depend. regulated parties. 4. Costs: 5. Minimizing adverse impact: The proposed regulatory changes are not expected to have an adverse The proposed changes to the regulations will require authorized agen- fiscal impact on authorized agencies, family type homes for adults, or on cies and facilities to conform to new reporting and record keeping require- the social services districts with regard to reporting and record keeping ments, however inconsistent and duplicative measures have been ad- requirements. Current laws and regulations impose similar levels of report- dressed by the regulations to minimize the impact. Trainings will be taking ing and record keeping. In conforming to and complying with the new place across systems, as well as the dissemination of guidance documenta- statutory and regulatory requirements authorized agencies and other facil- tion in advance of the effective date of the regulations. ities will necessarily have to reconfigure current utilization of staff and 6. Small business and local government participation: duties. The enhancement of services for the protections of Vulnerable Potential changes to the regulations governing the protection of people Persons will incur additional costs. with special needs will be thoroughly addressed through statewide train- To the extent a change to the run away and homeless youth regulations ings and guidance documentation distributed to local representatives of is a technical change, there is no anticipated cost. social services, authorized agencies and facilities. 5. Local government mandates: Rural Area Flexibility Analysis The proposed regulations will not impose any additional mandates on 1. Types and estimated number of rural areas: social services districts. Local Districts have been provided with an Social services districts in rural areas and voluntary authorized agencies amended model contract for use in securing out of state residential ser- contracting with such social services districts to provide residential foster vices for children in foster care. This model contract replaced a model care services to children, authorized agencies providing juvenile detention contract already in existence and used by Local Districts. services, runaway and homeless youth shelters and adult family type To the extent a change to the run away and homeless youth regulations homes will be affected by the proposed regulations, as well as state oper- is a technical change, there are no additional mandates. ated juvenile justice facilities. 6. Paperwork: 2. Reporting, recordkeeping and compliance requirements and profes- The proposed regulations do not require any additional paperwork. sional services: Requirements regarding documentation are currently in regulation. These Prior to Chapter 501 of the Laws of 2012, authorized agencies, facilities regulations will require sharing such documentation with the Justice and mandated reporters employed by the same were required reporters of Center. suspected child abuse or maltreatment to the New York Statewide Central 7. Duplication: Register of Child Abuse and Maltreatment. Pursuant to the statutory The proposed regulations do not duplicate any other State or Federal requirements of Social Services Law Sections 490 and 491, those requirements. mandated reporters are now required to report all reportable incidents, 8. Alternatives: which will include but not be limited to those things previously falling These regulations are required to comply with Chapter 501 of the Laws within the definitions of abuse and neglect of a child in residential care, to of 2012 and add a technical change to 9 NYCRR 182-1.5. the Vulnerable Persons Central Register. Authorized Agencies and facili- 9. Federal standards: ties will be required to maintain the same level of practice as it relates to The regulatory amendments do not conflict with any federal standards. recordkeeping, and prevention and remediation plans. Authorized agen-

14 NYS Register/April 1, 2015 Rule Making Activities cies and facilities will be required to comply with investigations and infor- previously printed under a notice of proposed rule making, I.D. No. CVS- mation requests as required by the Justice Center for the Protection of 01-15-00005-P, Issue of January 7, 2015. People with Special Needs, as defined in Article 20 of the Executive Law. The proposed regulations and amendments alter practice to conform to Rural Area Flexibility Analysis statutory obligations set forth in Chapter 501 of the Laws of 2012. A rural area flexibility analysis is not submitted with this notice because 3. Costs: this rule is subject to a consolidated rural area flexibility analysis that was To the extent a change to the run away and homeless youth regulations previously printed under a notice of proposed rule making, I.D. No. CVS- is a technical change, there is no anticipated cost. An authorized agency or 01-15-00005-P, Issue of January 7, 2015. facility is currently subject to requirements governing reporting, record keeping, management of approved procedures and policies, so the Job Impact Statement proposed regulations should not impose any additional costs associated A job impact statement is not submitted with this notice because this rule with those functions. The statutory and regulatory requirements will nec- is subject to a consolidated job impact statement that was previously essarily require a reconfiguration of the current utilization of administrative costs to conform and comply with the requirements of the new law printed under a notice of proposed rule making, I.D. No. CVS-01-15- and conforming regulations. The statutory scheme provides for the 00005-P, Issue of January 7, 2015. enhancement of services for the protections of Vulnerable Persons, which will have added costs. PROPOSED RULE MAKING 4. Minimizing adverse impact: The proposed changes to the regulations require authorized agencies NO HEARING(S) SCHEDULED and facilities approved, licensed, certified or operated by the Office of Children and Family Services to protect Vulnerable Persons as defined by Jurisdictional Classification Social Services Law Section 488. The regulations are in direct response to the need to strengthen and standardize the protection of vulnerable people I.D. No. CVS-13-15-00004-P in residential care. The Protection of People with Special Needs Act creates uniform standards across systems to be implemented and monitored PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- by the Justice Center. 5. Rural area participation: cedure Act, NOTICE is hereby given of the following proposed rule: Potential changes to the regulations governing implementation of the Proposed Action: Amendment of Appendix 1 of Title 4 NYCRR. statute regarding the protection of people with special needs will be ad- Statutory authority: Civil Service Law, section 6(1) dressed through trainings and guidance documentation distributed to representatives of socials services districts, authorized agencies, including Subject: Jurisdictional Classification. those that serve rural communities. Purpose: To delete a subheading and positions from and classify positions Job Impact Statement in the exempt class. The proposed regulations are not expected to have a negative impact on Text of proposed rule: Amend Appendix 1 of the Rules for the Classified jobs or employment opportunities in either public or private sector service Service, listing positions in the exempt class, in the Department of Mental providers. A full job statement has not been prepared for the proposed Hygiene, by deleting therefrom the subheading “New York State Develop- regulations as it is not anticipated that the proposed regulations will have mental Disabilities Planning Council,” and the positions of Assistant Pub- any adverse impact on jobs or employment opportunities. lic Information Officer, Executive Director, Secretary and Special Assis- tant; and, in the Department of Mental Hygiene under the subheading “Office for People with Developmental Disabilities,” by deleting there- Department of Civil Service from the positions of Assistant Counsel (in the Long Island Developmental Center) and Assistant Counsel (Valley Ridge Center), by adding thereto the position of Executive Director and by increasing the number of posi- PROPOSED RULE MAKING tions of Assistant Counsel from 8 to 10, Assistant Public Information Of- ficer from 4 to 5, Associate Commissioner for County Services from 2 to NO HEARING(S) SCHEDULED 3, Secretary from 2 to 3 and Special Assistant from 8 to 9. Jurisdictional Classification Text of proposed rule and any required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire I.D. No. CVS-13-15-00003-P State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: [email protected] PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYS cedure Act, NOTICE is hereby given of the following proposed rule: Department of Civil Service, Empire State Plaza, Agency Building 1, Proposed Action: Amendment of Appendix 1 of Title 4 NYCRR. Albany, NY 12239, (518) 473-2624, email: [email protected] Statutory authority: Civil Service Law, section 6(1) Public comment will be received until: 45 days after publication of this Subject: Jurisdictional Classification. notice. Purpose: To classify a position in the exempt class. Regulatory Impact Statement Text of proposed rule: Amend Appendix 1 of the Rules for the Classified A regulatory impact statement is not submitted with this notice because Service, listing positions in the exempt class, in the Executive Department under the subheading ”Office of Indigent Legal Services,” by increasing this rule is subject to a consolidated regulatory impact statement that was the number of positions of Assistant Counsel from 4 to 5. previously printed under a notice of proposed rule making, I.D. No. CVS- Text of proposed rule and any required statements and analyses may be 01-15-00005-P, Issue of January 7, 2015. obtained from: Jennifer Paul, NYS Department of Civil Service, Empire Regulatory Flexibility Analysis State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, A regulatory flexibility analysis is not submitted with this notice because email: [email protected] this rule is subject to a consolidated regulatory flexibility analysis that was Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYS previously printed under a notice of proposed rule making, I.D. No. CVS- Department of Civil Service, Empire State Plaza, Agency Building 1, 01-15-00005-P, Issue of January 7, 2015. Albany, NY 12239, (518) 473-2624, email: [email protected] Rural Area Flexibility Analysis Public comment will be received until: 45 days after publication of this notice. A rural area flexibility analysis is not submitted with this notice because Regulatory Impact Statement this rule is subject to a consolidated rural area flexibility analysis that was A regulatory impact statement is not submitted with this notice because previously printed under a notice of proposed rule making, I.D. No. CVS- this rule is subject to a consolidated regulatory impact statement that was 01-15-00005-P, Issue of January 7, 2015. previously printed under a notice of proposed rule making, I.D. No. CVS- Job Impact Statement 01-15-00005-P, Issue of January 7, 2015. A job impact statement is not submitted with this notice because this rule Regulatory Flexibility Analysis is subject to a consolidated job impact statement that was previously A regulatory flexibility analysis is not submitted with this notice because printed under a notice of proposed rule making, I.D. No. CVS-01-15- this rule is subject to a consolidated regulatory flexibility analysis that was 00005-P, Issue of January 7, 2015.

15 Rule Making Activities NYS Register/April 1, 2015

PROPOSED RULE MAKING Public comment will be received until: 45 days after publication of this NO HEARING(S) SCHEDULED notice. Regulatory Impact Statement Jurisdictional Classification A regulatory impact statement is not submitted with this notice because this rule is subject to a consolidated regulatory impact statement that was I.D. No. CVS-13-15-00005-P previously printed under a notice of proposed rule making, I.D. No. CVS- 01-15-00005-P, Issue of January 7, 2015. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Regulatory Flexibility Analysis cedure Act, NOTICE is hereby given of the following proposed rule: A regulatory flexibility analysis is not submitted with this notice because Proposed Action: Amendment of Appendix 2 of Title 4 NYCRR. this rule is subject to a consolidated regulatory flexibility analysis that was Statutory authority: Civil Service Law, section 6(1) previously printed under a notice of proposed rule making, I.D. No. CVS- Subject: Jurisdictional Classification. 01-15-00005-P, Issue of January 7, 2015. Purpose: To classify a position in the non-competitive class. Rural Area Flexibility Analysis Text of proposed rule: Amend Appendix 2 of the Rules for the Classified A rural area flexibility analysis is not submitted with this notice because Service, listing positions in the non-competitive class, in the Department this rule is subject to a consolidated rural area flexibility analysis that was of Corrections and Community Supervision, by increasing the number of previously printed under a notice of proposed rule making, I.D. No. CVS- positions of øDeputy Superintendent of Correctional Mental Health Care Facility from 1 to 2. 01-15-00005-P, Issue of January 7, 2015. Text of proposed rule and any required statements and analyses may be Job Impact Statement obtained from: Jennifer Paul, NYS Department of Civil Service, Empire A job impact statement is not submitted with this notice because this rule State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, is subject to a consolidated job impact statement that was previously email: [email protected] printed under a notice of proposed rule making, I.D. No. CVS-01-15- Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYS 00005-P, Issue of January 7, 2015. Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-2624, email: [email protected] PROPOSED RULE MAKING Public comment will be received until: 45 days after publication of this NO HEARING(S) SCHEDULED notice. Regulatory Impact Statement Jurisdictional Classification A regulatory impact statement is not submitted with this notice because this rule is subject to a consolidated regulatory impact statement that was I.D. No. CVS-13-15-00007-P previously printed under a notice of proposed rule making, I.D. No. CVS- 01-15-00005-P, Issue of January 7, 2015. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Regulatory Flexibility Analysis cedure Act, NOTICE is hereby given of the following proposed rule: A regulatory flexibility analysis is not submitted with this notice because Proposed Action: Amendment of Appendix 1 of Title 4 NYCRR. this rule is subject to a consolidated regulatory flexibility analysis that was Statutory authority: Civil Service Law, section 6(1) previously printed under a notice of proposed rule making, I.D. No. CVS- 01-15-00005-P, Issue of January 7, 2015. Subject: Jurisdictional Classification. Rural Area Flexibility Analysis Purpose: To classify positions in the exempt class. A rural area flexibility analysis is not submitted with this notice because Text of proposed rule: Amend Appendix 1 of the Rules for the Classified this rule is subject to a consolidated rural area flexibility analysis that was Service, listing positions in the exempt class, in the Executive Department previously printed under a notice of proposed rule making, I.D. No. CVS- under the subheading “Office of Information Technology Services,” by 01-15-00005-P, Issue of January 7, 2015. increasing the number of positions of Special Assistant from 11 to 17. Job Impact Statement Text of proposed rule and any required statements and analyses may be A job impact statement is not submitted with this notice because this rule obtained from: Jennifer Paul, NYS Department of Civil Service, Empire is subject to a consolidated job impact statement that was previously State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, printed under a notice of proposed rule making, I.D. No. CVS-01-15- email: [email protected] 00005-P, Issue of January 7, 2015. Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, PROPOSED RULE MAKING Albany, NY 12239, (518) 473-2624, email: [email protected] NO HEARING(S) SCHEDULED Public comment will be received until: 45 days after publication of this notice. Jurisdictional Classification Regulatory Impact Statement I.D. No. CVS-13-15-00006-P A regulatory impact statement is not submitted with this notice because this rule is subject to a consolidated regulatory impact statement that was PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- previously printed under a notice of proposed rule making, I.D. No. CVS- cedure Act, NOTICE is hereby given of the following proposed rule: 01-15-00005-P, Issue of January 7, 2015. Proposed Action: Amendment of Appendix 2 of Title 4 NYCRR. Regulatory Flexibility Analysis Statutory authority: Civil Service Law, section 6(1) A regulatory flexibility analysis is not submitted with this notice because this rule is subject to a consolidated regulatory flexibility analysis that was Subject: Jurisdictional Classification. previously printed under a notice of proposed rule making, I.D. No. CVS- Purpose: To classify a position in the non-competitive class. 01-15-00005-P, Issue of January 7, 2015. Text of proposed rule: Amend Appendix 2 of the Rules for the Classified Service, listing positions in the non-competitive class, in the Department Rural Area Flexibility Analysis of Taxation and Finance, by increasing the number of positions of øTax A rural area flexibility analysis is not submitted with this notice because Policy Analyst 3 from 8 to 9. this rule is subject to a consolidated rural area flexibility analysis that was Text of proposed rule and any required statements and analyses may be previously printed under a notice of proposed rule making, I.D. No. CVS- obtained from: Jennifer Paul, NYS Department of Civil Service, Empire 01-15-00005-P, Issue of January 7, 2015. State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, Job Impact Statement email: [email protected] A job impact statement is not submitted with this notice because this rule Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYS is subject to a consolidated job impact statement that was previously Department of Civil Service, Empire State Plaza, Agency Building 1, printed under a notice of proposed rule making, I.D. No. CVS-01-15- Albany, NY 12239, (518) 473-2624, email: [email protected] 00005-P, Issue of January 7, 2015.

16 NYS Register/April 1, 2015 Rule Making Activities

PROPOSED RULE MAKING and weekend training and other activation, a new category of leave was established, entitled “training leave at reduced pay.” Eligible employees NO HEARING(S) SCHEDULED receive the greater of 22 work days or 30 calendar days of training leave at reduced pay following qualifying military duty in response to the war on Supplemental Military Leave Benefits terror, and after depleting the annual Military Law grant of leave with pay and any leave credits (other than sick leave) that they elect to use. Train- I.D. No. CVS-13-15-00014-P ing leave at reduced pay may then be used for any ordered military duty during the calendar year that is not related to the war on terror. Employees PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- who have already utilized leave at reduced pay receive the same compen- cedure Act, NOTICE is hereby given of the following proposed rule: sation for any periods of training leave at reduced pay. Employees who Proposed Action: This is a consensus rule making to amend sections 21.15 have not used leave at reduced pay prior to their initial use of training and 28-1.17 of Title 4 NYCRR. leave at reduced pay are paid according to the employee’s regular State Statutory authority: Civil Service Law, section 6(1) salary as of his or her last day in full pay status reduced by military pay received from the United States or New York State for military service, if Subject: Supplemental military leave benefits. the former exceeds the latter. Employees on training leave at reduced pay Purpose: To extend the availability of supplemental military leave benefits retain the same leave accrual benefits as apply to leave at reduced pay. for certain New York State employees until December 31, 2015. The proposed rule extends the availability of supplemental military Substance of proposed rule: The proposed rule amends sections 21.15 leave with pay, leave at reduced pay and training leave at reduced pay and 28-1.17 of the Attendance Rules for Employees in New York State through December 31, 2015. Employees must establish eligibility for Departments and Institutions to continue the availability of the single supplemental military leave (provided they have not already depleted the grant of supplemental military leave with pay and further leave at reduced single grant of such leave), leave at reduced pay and training leave at pay through December 31, 2015, and to provide for separate grants of the reduced pay during 2015 by performing qualifying military service. greater of 22 working days or 30 calendar days of training leave at reduced Employees on leave at reduced pay or training leave at reduced pay on pay during calendar year 2015. Union represented employees already January 1, 2015, have their rate of pay calculated from their base State pay receive these benefits pursuant to memoranda of understanding (MOUs) as of January 1, 2015, reduced by the military pay rate applied to their negotiated with the Governor’s Office of Employee Relations (GOER). most recent period in either reduced pay category prior to 2012. For em- The proposed rule merely amends section 21.15 of the Attendance Rules ployees who have used leave at reduced pay or training leave at reduced consistent with the current MOUs, and amends section 28-1.17 to extend pay prior to year 2015, their pay for either type of reduced pay leave at equivalent benefits to employees serving in positions designated manage- any point between January 1, 2015 and December 31, 2015, will be rial or confidential (m/c). calculated from their base State pay as of their last day in full pay status Under current statute, section 242 of the New York State Military Law after January 1, 2012, prior to their initial use of leave of reduced pay or provides that public officers and employees who are members of the training leave at reduced pay, offset by the rate of military pay from their organized militia or any reserve force or reserve component of the armed most recent period of reduced pay leave, prior to 2015. Employees whose forces of the United States may receive the greater of 22 working days or initial use of either reduced pay leave category occurs during 2015 will 30 calendar days of leave with pay to perform ordered military duty in the have their pay rate determined by their base State pay on their last day of service of New York State or the United States during each calendar year full pay status, minus military pay. For all employees receiving leave at or any continuous period of absence. reduced pay or training leave at reduced pay in 2015, the initial pay Following the events of September 11, 2001, certain State employees calculation will apply to all subsequent periods of reduced pay leave. have been ordered to extended active military duty, or frequent periods of The proposed amendment provides that in no event shall supplemental intermittent active military duty. These employees faced the loss of State military leave, leave at reduced pay or training leave at reduced pay be salary, with attendant loss of benefits for their dependents, upon exhaus- granted for military service performed after December 31, 2015, nor shall tion of the annual grant of Military Law paid leave. Accordingly, such leaves be available to employees who have voluntarily separated supplemental military leave, leave at reduced pay and training leave at from State service or who are terminated for cause. reduced pay were made available to such employees pursuant to MOUs Text of proposed rule and any required statements and analyses may be negotiated with the employee unions. Corresponding amendments to the obtained from: Jennifer Paul, NYS Department of Civil Service, Albany, Attendance Rules were adopted extending equivalent military leave NY 12239, (518) 473-6598, email: [email protected] benefits to employees in m/c designated positions. While these benefits are intended to expire upon a date certain, the benefits described herein Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYS have been repeatedly renewed in the wake of the continuing war on terror, Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: including homeland security activities, and the armed conflicts in Afghan- [email protected] istan and Iraq. Public comment will be received until: 45 days after publication of this With respect to supplemental military leave, eligible State employees notice. federally ordered, or ordered by the Governor, to active military duty Consensus Rule Making Determination (other than for training) in response to the war on terror receive a single, Section 6(1) of the Civil Service Law authorizes the State Civil Service non-renewable grant of the greater of 22 working days or 30 calendar days Commission to prescribe and amend suitable rules and regulations of supplemental military leave with full pay. concerning leaves of absence for employees in the Classified Service of With respect to military leave at reduced pay, upon exhaustion of the the State. military leave benefit conferred by the Military Law, and the single grant Since September 11, 2001, certain State employees have been federally of supplemental military leave with pay, and any available accruals (other ordered, or ordered by the Governor, to active military duty. The New than sick leave) which an employee elects to use, employees who continue York State Military Law provides for the greater of 22 working days or 30 to perform qualifying military duty are eligible to receive military leave at calendar days of military leave at full (State) pay for ordered service dur- reduced pay. Compensation for such leave is based upon the employee’s ing each calendar year or continuous period of absence. Employees regular State salary as of his/her last day in full pay status (defined as base ordered to prolonged active duty, or repeatedly ordered to intermittent pay, plus location pay, plus geographic differential) reduced by military periods of active duty, faced exhaustion of the Military Law leave with pay (defined as base pay, plus food and housing allowances) received pay benefit. Further periods of military service would then subject these from the United States or New York State for military service, if the for- employees to economic hardship from the loss of their regular State mer exceeded the latter. While in leave at reduced pay status, employees salaries and deprive their dependents of needed benefits derived from are eligible to receive leave days due upon his/her personal leave anniver- State employment. sary if such anniversary date falls during a period of military leave at To support State employees called to military duty after September 11, reduced pay, and can accumulate biweekly vacation and sick leave credits 2001, the Governor’s Office of Employee Relations (GOER) executed for any pay period in which they remain in full pay status for at least seven memoranda of understanding (MOUs) with the employee unions to out of ten days (or a proportionate number of days for employees with provide for a supplemental grant of military leave with pay and leave at work weeks of less than 10 days per bi-weekly pay period.) These leave reduced pay. Subsequent MOUs established a new benefit entitled train- benefits are available even for employees who do not receive supplemental ing leave at reduced pay. These military leave benefits have been repeat- pay because their military salaries (as defined) exceed their regular State edly renewed in the wake of the ongoing War on Terror, including pay. homeland security activities and military operations in Afghanistan and With respect to training leave at reduced pay, many employees ordered Iraq. to military duty in response to the war on terror also continue to perform The Governor’s Office of Employee Relations has executed new MOUs other required military service unrelated to the war on terror. To support with the Classified Service employee unions extending the availability of employees performing other military duty, including mandatory summer the single grant of supplemental military leave with pay and leave at

17 Rule Making Activities NYS Register/April 1, 2015 reduced pay, and training leave at reduced pay through December 31, tery and scores are based on physical fitness models developed by the 2015. The State Civil Service Commission shall amend the Attendance Cooper Institute. This proposal merely clarifies that the physical fitness Rules in accordance with the MOUs and extend equivalent benefits to em- test provides an objective, verifiable measure of the candidate’s physical ployees serving in m/c designated positions. fitness, and is properly focused on job-related skills and aptitudes, in ac- The Civil Service Commission has received no public comments after cordance with Title VII of the Civil Rights Act of 1964 (42 U.S.C § 2000e publication of prior amendments to the Attendance Rules establishing or et seq.). Given the ministerial nature and purpose of the proposal, which re-authorizing the benefits now put forward for renewal. Previous re- was unanimously approved by the Municipal Police Training Council, the adoptions of the proposed amendments have been proposed and adopted Division of Criminal Justice Services has determined that no person is as consensus rules. As no person or entity is likely to object to the rule as likely to object to the rule as written. written, the proposed rule is advanced as a consensus rule pursuant to Job Impact Statement State Administrative Procedure Act (SAPA) § 202(1)(b)(i). The proposal merely clarifies the statement of purpose for physical fitness Job Impact Statement standards and procedures for police officer candidates as set forth in By amending Title 4 of the NYCRR to extend the availability of supple- subdivision (b) of section 6000.2 of Title 9 NYCRR. As such, it is appar- mental military leave, leave at reduced pay and training leave at reduced ent from the nature and purpose of the proposal that it will have no impact pay for eligible employees subject to the Attendance Rules for Employees on jobs and employment opportunities. in New York State Departments and Institutions, these rules will positively impact jobs or employment opportunities for eligible employees, as set forth in section 201-a(2)(a) of the State Administrative Procedure Act (SAPA). Therefore, a Job Impact Statement (JIS) is not required by sec- Education Department tion 201-a of such Act. EMERGENCY Division of Criminal Justice RULE MAKING Services Student Enrollment I.D. No. EDU-52-14-00014-E Filing No. 166 PROPOSED RULE MAKING Filing Date: 2015-03-16 NO HEARING(S) SCHEDULED Effective Date: 2015-03-16 Statement of Purpose for Medical and Physical Fitness Standards and Procedures for Police Officer Candidates PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: I.D. No. CJS-13-15-00023-P Action taken: Amendment of section 100.2(y) of Title 8 NYCRR. Statutory authority: Education Law, sections 207(not subdivided), 305(1), PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- (2), (20), 3202(1), 3205(1), 3713(1) and (2) cedure Act, NOTICE is hereby given of the following proposed rule: Finding of necessity for emergency rule: Preservation of general welfare. Proposed Action: This is a consensus rule making to amend section Specific reasons underlying the finding of necessity: The proposed 6000.2(b) of Title 9 NYCRR. amendment is designed to: (1) address reports that districts are denying Statutory authority: Executive Law, sections 837(13) and 840(2) enrollment of unaccompanied minors and undocumented youths if they Subject: Statement of purpose for medical and physical fitness standards are unable to produce documents sufficiently demonstrating age, guardian- and procedures for police officer candidates. ship, and/or residency in a district; and (2) provide clear requirements for school districts regarding enrollment of students, particularly as it pertains Purpose: To clarify the purpose for the physical fitness standards for po- to procedures for unaccompanied minors and other undocumented youths. lice officer candidates. Many school districts across the State have experienced an influx of Text of proposed rule: 1. Subdivision (b) of section 6000.2 of Title 9 of unaccompanied minors and other undocumented youths. It has been the New York Codes, Rules and Regulations is amended to read as reported that some school districts are refusing to enroll unaccompanied follows: minors and undocumented youths if they, or their families or guardians, (b) In accordance with Title VII of the Civil Rights Act of 1964 (42 are unable to produce documents sufficiently demonstrating guardianship U.S.C. § 2000e et seq.), [The] the council also recognized the need to and/or residency in a district. These enrollment policies, as well as highly revise the physical fitness screening practice so that the test employed restrictive requirements for proof of residency, may impede or prevent provides an objective, verifiable measure of physical fitness that is many unaccompanied minors and undocumented youths from enrolling or properly focused on job-related skills and aptitudes and provides an ac- attempting to enroll in school districts throughout the State. The proposed curate assessment of a candidate's physiological capacity to learn and amendment is necessary to ensure that all children are enrolled in school, perform the essential job functions of an entry-level police officer. Pursu- regardless of immigration status, pursuant to New York State and Federal ant to the statewide job task analysis, a battery of physical screening ele- law and to ensure that all school districts understand and comply with ments was developed[,] based upon the model formulated by the Cooper their obligation to enroll all resident students regardless of their immigra- Institute for Aerobics Research. The analysis recommended the adoption tion status. of such elements for physical fitness screening and determined that such The proposed amendment was adopted as an emergency action at the elements do not adversely impact a candidate based upon his/her sex. The December 15-16, 2014 Regents meeting, effective December 16, 2014. A physical fitness screening elements of the tests are job-related, consistent Notice of Emergency Adoption and Proposed Rule Making was published with business necessity and do not discriminate against qualified persons. in the State Register on December 31, 2014. Because the Board of Regents Each of the physical fitness screening elements of the tests were validated meets at scheduled intervals, the earliest the proposed amendment could and correlated to the performance of essential job functions. be presented for regular (non-emergency) adoption, after publication in Text of proposed rule and any required statements and analyses may be the State Register and expiration of the 45-day public comment period obtained from: Rosemarie Hewig, Division of Criminal Justice Services, provided for in State Administrative Procedure Act (SAPA) section 202(1) 80 South Swan Street, Albany, New York 12210, (518) 457-2409, email: and (5), is the March 16-17, 2015 Regents meeting. Furthermore, pursuant [email protected] to SAPA section 203(1), the earliest effective date of the proposed amend- Data, views or arguments may be submitted to: Same as above. ment, if adopted at the March meeting, would be April 1, 2015, the date a Notice of Adoption would be published in the State Register. However, Public comment will be received until: 45 days after publication of this the December emergency rule will expire on March 15, 2015, 90 days notice. from its filing with the Department of State on December 16, 2014. A Consensus Rule Making Determination lapse in the rule's effective date could disrupt enrollment of students, This proposal revises the statement of purpose for physical fitness stan- particularly unaccompanied minors and other undocumented youths, in dards and procedures for police officer candidates as set forth in subdivi- potential violation of federal and State laws regarding access to a free pub- sion (b) of section 6000.2 of Title 9 NYCRR. The physical fitness test bat- lic education system.

18 NYS Register/April 1, 2015 Rule Making Activities

Emergency action is therefore necessary for the preservation of the gen- (2) income tax form; eral welfare to ensure that the proposed rule adopted by emergency action (3) utility or other bills; at the December 2014 Regents meeting remains continuously in effect (4) membership documents (e.g., library cards) based upon until the effective date of its permanent adoption. residency; It is anticipated that the proposed amendment will be presented for (5) voter registration document(s); adoption as a permanent rule at the March 16-17, 2015 Regents meeting, (6) official driver’s license, learner’s permit or non-driver which is the first meeting scheduled after expiration of the 45-day period identification; for public comment pursuant to the State Administrative Procedure Act. (7) state or other government issued identification; (8) documents issued by federal, state or local agencies (e.g., Subject: Student enrollment. local social service agency, federal Office of Refugee Resettlement); or Purpose: Clarify requirements on student enrollment, particularly as to (9) evidence of custody of the child, including but not limited procedures for unaccompanied minors and other undocumented youth. to judicial custody orders or guardianship papers. Text of emergency rule: Subdivision (y) of section 100.2 of the Regula- (ii) Documentation of Age. In accordance with Education Law tions of the Commissioner of Education is amended, effective March 16, § 3218: 2015, as follows: (a) where a certified transcript of a birth certificate or record of (y) Determination of student residency and age. [The board of educa- baptism (including a certified transcript of a foreign birth certificate or record of baptism) giving the date of birth is available, no other form of tion or its designee shall determine whether a child is entitled to attend the evidence may be used to determine a child’s age; schools of the district.] (b) where the documentation listed in clause (a) of this subpara- (1) Each school district shall make publicly available its enrollment graph is not available, a passport (including a foreign passport) may be forms, procedures, instructions and requirements for determinations of used to determine a child’s age; and student residency and age in accordance with this subdivision. Such (c) where the documentation listed in both clauses (a) and (b) of publicly available information shall include a non-exhaustive list of the this subparagraph are not available, the school district may consider forms of documentation that may be submitted to the district by parents, certain other documentary or recorded evidence in existence two years or persons in parental relation or children, as appropriate, in accordance more, except an affidavit of age, to determine a child’s age. Such other ev- with the provisions of this subdivision. Such list shall include but not be idence may include but not be limited to the following: limited to all examples of documentation listed in this subdivision. By no (1) official driver’s license; later than January 31, 2015, such information shall be included in the (2) state or other government issued identification; district’s existing enrollment/registration materials and shall be provided (3) school photo identification with date of birth; to all parents, persons in parental relation or children, as appropriate, (4) consulate identification card; who request enrollment in the district, and shall be posted on the school (5) hospital or health records; district’s website, if one exists. (6) military dependent identification card; (2) When a child’s parent(s), the person(s) in parental relation to the (7) documents issued by federal, state or local agencies (e.g., child or the child, as appropriate, requests enrollment of the child in the local social service agency, federal Office of Refugee Resettlement); school district, such child shall be enrolled and shall begin attendance on (8) court orders or other court-issued documents; the next school day, or as soon as practicable. Within three business days (9) Native American tribal document; or of such initial enrollment, the board of education or its designee must (10) records from non-profit international aid agencies and review all documentation submitted by the child’s parent(s), the person(s) voluntary agencies. in parental relation to the child or the child, as appropriate, and make a (d) With respect to the documentation listed in clause (c) of this residency determination in accordance with the following: subparagraph, if the documentary evidence presented originates from a (i) Documentation Regarding Enrollment and/or Residency. foreign country, a school district may request verification of such (a) The district shall not request on any enrollment/registration documentary evidence from the appropriate foreign government or form(s) or in any meeting or other form of communication any of the fol- agency, consistent with the requirements of the federal Family Educational lowing documentation and/or information at the time of and/or as a condi- Rights and Privacy Act (20 USC § 1232g), provided that the student must tion of enrollment: be enrolled within in accordance with paragraph (2) of this subdivision (1) Social Security card or number; or and such enrollment cannot be delayed beyond the period specified in (2) any information regarding or which would tend to reveal paragraph (2) of this subdivision while the district attempts to obtain such the immigration status of the child, the child’s parent(s) or the person(s) verification. in parental relation, including but not limited to copies of or information (iii) School districts are required to comply with Public Health concerning visas or other documentation indicating immigration status. Law § 2164(7) and all other applicable provisions of the Public Health (b) The district may require that the parent(s) or person(s) in Law and its implementing regulations, including orders issued by a state parental relation submit documentation and/or information establishing or local health department pursuant to such laws or regulations, that physical presence of the parent(s) or person(s) in parental relation and impact a student’s admission to or attendance in school. Nothing in this the child in the school district. Such documentation may include but shall subdivision shall be construed to require the immediate attendance of an not be restricted to: (1) a copy of a residential lease or proof of ownership enrolled student lawfully excluded from school temporarily pursuant to of a house or condominium, such as a deed or mortgage statement; (2) a Education Law § 906 because of a communicable or infectious disease statement by a third-party landlord, owner or tenant from whom the that imposes a significant risk of infection of others, or an enrolled student parent(s) or person(s) in parental relation leases or with whom they share whose parent(s) or person(s) in parental relation have not submitted proof property within the district, which may be either sworn or unsworn; or (3) of immunization within the periods prescribed in Public Health Law such other statement by a third party establishing the parent(s)’ or § 2164(7)(a), or an enrolled student who is suspended from instruction for person(s) in parental relation’s physical presence in the district. If the disciplinary reasons pursuant to Education Law § 3214. Nothing in this documentation listed in this clause is not available, the district shall subdivision shall be construed to interfere with the recordkeeping and consider other forms of documentation and/or information establishing reporting requirements imposed on school districts participating in the physical presence in the district, in lieu of those described in this clause, federal Student and Exchange Visitor Program (SEVP) in grades 9-12 which may include but not be limited to those listed in clause (d) of this pursuant to applicable federal laws and regulations concerning nonim- subparagraph. migrant alien students who identify themselves as having or seeking (c) The district may also require the parent(s) or person(s) in nonimmigrant student visa status (F-1 or M-1), and nothing herein shall parental relation to provide an affidavit either: (1) indicating that they are be construed to conflict with such requirements or to relieve such nonim- the parent(s) with whom the child lawfully resides; or (2) indicating that migrant alien students who have or seek an F-1 or M-1 visa from fulfilling they are the person(s) in parental relation to the child, over whom they their obligations under federal law and regulations related to enrolling in have total and permanent custody and control, and describing how they grades 9-12 in SEVP schools. obtained total and permanent custody and control, whether through (3) Within three business days of a child’s initial enrollment, the guardianship or otherwise. A district may also accept other proof, such as board of education or its designee shall determine whether a child is documentation indicating that the child resides with a sponsor with whom entitled to attend the schools of the district. For purposes of this para- the child has been placed by a federal agency. A district may not require graph, prior to making a determination of entitlement to attend the schools submission of a judicial custody order or an order of guardianship as a of the district, the board or its designee shall afford the child’s parent, the condition of enrollment. person in parental relation to the child or the child, as appropriate, an op- (d) The district shall consider other forms of documentation portunity to submit information concerning the child’s right to attend produced by the child, the child’s parent(s) or person(s) in parental rela- school in the district, which shall be the information submitted by the tion, including but not limited to the following: parent(s) or person(s) in parental relation pursuant to paragraph (2) of (1) pay stub; this subdivision.

19 Rule Making Activities NYS Register/April 1, 2015

(4) At any time during the school year, the board of education or its NEEDS AND BENEFITS: designee may determine, in accordance with paragraph (6) of this subdivi- Many school districts across the State have experienced an influx of sion, that a child is not a district resident entitled to attend the schools of unaccompanied minors and other undocumented youths. It has been the district. reported that some school districts are refusing to enroll unaccompanied (5) Determinations regarding whether a child is entitled to attend a minors and undocumented youths if they, or their families or guardians, district’s schools as a homeless child or youth must be made in accor- are unable to produce documents sufficiently demonstrating guardianship dance with subdivision (x) of this section. and/or residency in a district. These enrollment policies, as well as highly (6) Any decision by a school official, other than the board or its restrictive requirements for proof of residency, have impeded or prevented designee, that a child is not entitled to attend the schools of the district many unaccompanied minors and undocumented youths from enrolling in shall include notification of the procedures to obtain review of the deci- school districts throughout the State. sion within the school district. Prior to making a determination of entitle- Under federal and State law, all children have a right to a free public ment to attend the schools of the district, the board or its designee shall af- education, regardless of immigration status. The New York Education ford the child's parent, the person in parental relation to the child or the Law entitles each person over five and under twenty-one years of age, child, as appropriate, the opportunity to submit information concerning who has not received a high school diploma, to attend a public school in the child's right to attend school in the district except as otherwise the district in which such person resides. Furthermore, school districts provided in paragraph (3) of this subdivision. When the board of educa- must ensure that all resident students of compulsory school age attend tion or its designee determines that a child is not entitled to attend the schools of such district because such child is [neither] not a resident of upon full-time instruction [see Educ. Law §§ 3202(1), 3205]. Under such district [nor entitled to attend its schools pursuant to subdivision (x) federal law, school districts may not deny resident students a free public of this section], such board or its designee shall, within two business days, education on the basis of their immigration status. The United States provide written notice of its determination to the child's parent, to the Supreme Court has held that allowing undocumented students to be denied person in parental relation to the child, or to the child, as appropriate. Such an education would, in effect, “deny them the ability to live within the written notice shall state: structure of our civic institutions, and foreclose any realistic possibility [(1)] (i) that the child is not entitled to attend the public schools of that they will contribute in even the smallest way to the progress of our the district; Nation.” Plyler v. Doe, 457 U.S. 202, 223 (1982). Under established law, [(2)] (ii) the specific basis for the determination that the child is the undocumented or non-citizen status of a student (or his or her parent or [neither] not a resident of the school district [nor entitled to attend its guardian) is irrelevant to such student's entitlement to an elementary and schools pursuant to subdivision (x) of this section], including but not secondary public education (See, e.g., 42 U.S.C. §§ 2000c-6, 2000-d; 28 limited to a description of the documentary or other evidence upon which C.F.R. § 42.104(b)(2); 34 C.F.R. § 100.3(b)(2) (Titles IV and VI of the such determination is based; Civil Rights Act of 1964 and associated federal regulations, prohibiting [(3)] (iii) the date as of which the child will be excluded from the discrimination on the basis of, inter alia, race, color, or national origin by schools of the district; and public elementary and secondary schools). Moreover, unaccompanied [(4)] (iv) that the determination of the board may be appealed to minors and undocumented youth may also be entitled to the protections of the Commissioner of Education, in accordance with Education Law, sec- the federal McKinney-Vento Homeless Education Assistance Improve- tion 310, within 30 days of the date of the determination, and that the ments Act, 42 U.S.C. § 11431, et seq., and implementing State law and instructions, forms and procedures for taking such an appeal, including regulations concerning the education of homeless children. Together, these translated versions of such instructions, forms and procedures, may be federal and State laws are driven by the dual purposes of ensuring student obtained from the Office of Counsel at www.counsel.nysed.gov, or by access to, and continuity within, a free public education system. mail addressed to the Office of Counsel, New York State Education In late October 2014, the New York Civil Liberties Union released a Department, State Education Building, Albany, NY 12234 or by calling study (See http://www.nyclu.org/news/nyclu-survey-ny-school-districts- the Appeals Coordinator at (518) 474-8927. illegally-denying-education-immigrant-children) indicating that as many as 20% of school districts in New York State may maintain facially This notice is intended to serve only as a notice of emergency adoption. impermissible enrollment policies, and noting the following findings: This agency intends to adopt the provisions of this emergency rule as a D 73 school districts require birth certificates for enrollment, 19 of permanent rule, having previously submitted to the Department of State a which specify they require a student’s “original” birth certificate; notice of proposed rule making, I.D. No. EDU-52-14-00014-EP, Issue of D 16 school districts require a student’s immigration status for enroll- December 31, 2014. The emergency rule will expire May 14, 2015. ment; Text of rule and any required statements and analyses may be obtained D 10 school districts require Social Security cards for enrollment; from: Kirti Goswami, State Education Department, Office of Counsel, D 6 districts ask students whether they are a “migrant worker” at enroll- State Education Building Room 148, 89 Washington Ave., Albany, NY ment; and 12234, (518) 474-6400, email: [email protected] D 9 school districts ask students whether or not they are U.S. citizens in Regulatory Impact Statement enrollment. STATUTORY AUTHORITY: In addition, SED and the New York State Attorney General have Education Law section 207 empowers the Regents and Commissioner received inquiries from districts across the State regarding their obliga- to adopt rules and regulations to carry out the State laws regarding educa- tions under federal and State law. These inquiries make clear the need for tion and the functions and duties conferred on the State Education Depart- more comprehensive action to address the lack of clarity among districts ment (SED). regarding lawful enrollment and registration policies. Education Law section 305(1) and (2) provide the Commissioner, as The proposed amendment will codify applicable federal and State laws, chief executive officer of the State education system, with general supervi- as well as existing SED guidance to districts, in order to ensure that unac- sion over schools and institutions subject to the provisions of education companied minors and undocumented youths are provided their constitu- law, and responsibility for executing Regents policies. Section 305(20) tional right to a free public education. Specifically, the proposed amend- authorizes the Commissioner with such powers and duties as are charged ment will establish: by the Regents. (1) Clear and uniform requirements, which comply with federal and Education Law section 3202(1) specifies the school district in which State laws and SED guidance on enrollment of students, particularly for children over five and under twenty-one years of age, who have not yet unaccompanied minors and undocumented youths; received a high school diploma and who are residing in New York State, (2) Prohibited enrollment application policies which are unlawful are entitled to attend school without the payment of tuition, and is intended and/or have had a disparate impact on unaccompanied minors and undoc- to assure that each child residing within the State is able to attend school umented youths; on a tuition-free basis. (3) Flexible enrollment requirements, which allow districts to accept Education Law section 3205(1) requires each child of compulsory additional forms of proof beyond the highly restrictive forms listed in the school age to attend upon full time day instruction. enrollment instructions/materials of school districts under review to date; Education Law section 3713(1) and (2) authorizes the State and school and districts to accept Federal law making appropriations for educational (4) Ensure there is clear guidance to parents and guardians, and that purposes and authorizes the Commissioner to cooperate with Federal agen- enrollment instructions are provided publicly, in both paper and electronic cies to implement such law. forms. LEGISLATIVE OBJECTIVES: COSTS: Consistent with the above statutory authority, the proposed amendment Costs to State: none. will codify applicable federal and State laws, as well as existing State Costs to local governments: none. Education Department (SED) guidance to school districts, in order to Costs to private regulated parties: none. ensure that unaccompanied minors and undocumented youths are provided Costs to the regulating agency for implementation and continued their constitutional right to a free public education. administration of the rule: none.

20 NYS Register/April 1, 2015 Rule Making Activities

The proposed amendment merely codifies applicable federal and State It is anticipated regulated parties will be able to achieve compliance laws, as well as existing SED guidance to school districts, in order to with the rule by its effective date. The proposed amendment merely codi- ensure that unaccompanied minors and undocumented youths are provided fies applicable federal and State laws, as well as existing SED guidance to their constitutional right to a free public education. In general, the school districts, in order to ensure that unaccompanied minors and undoc- proposed amendment will not impose any additional costs beyond those umented youths are provided their constitutional right to a free public inherent in such applicable laws. There may be costs associated with mak- education. The proposed amendment will not impose any additional ing publicly available a district’s enrollment forms, procedures, instruc- compliance requirements or costs beyond those inherent in such applicable tions and requirements for determinations of student residency and age. laws. However, any such costs are believed to be minimal and capable of being Regulatory Flexibility Analysis absorbed using existing district staff and resources. Small Businesses: LOCAL GOVERNMENT MANDATES: The proposed amendment relates to student enrollment, and will codify Each school district shall make publicly available its enrollment forms, applicable federal and State laws, as well as existing State Education procedures, instructions and requirements for determinations of student Department guidance to school districts, in order to ensure that unac- residency and age, including a non-exhaustive list of the forms of companied minors and undocumented youths are provided their constitu- documentation that may be submitted to the district, as specified in the tional right to a free public education. The proposed amendment does not regulation. By no later than January 31, 2015, such information shall be impose any adverse economic impact, reporting, record keeping or other included in the district’s existing enrollment/registration materials and be compliance requirements on small businesses. No further steps were provided to all parents/persons in parental relation or children, as appropri- needed to ascertain that fact and none were taken. Accordingly, a regula- ate, who request enrollment in the district, and be posted on the district’s tory flexibility analysis for small businesses is not required and one has website, if one exists. not been prepared. When a child’s parent(s)/person(s) in parental relation or the child, as Local Governments: appropriate, requests enrollment of the child in the school district, such 1. EFFECT OF RULE: child shall be enrolled and begin attendance on the next school day, or as The proposed amendment applies to each school district in the State. soon as practicable. Within three business days of initial enrollment, the There are presently 689 school districts in the State. board of education or its designee must review all documentation submit- 2. COMPLIANCE REQUIREMENTS: ted by the child’s parent(s), the person(s) in parental relation to the child The proposed amendment merely codifies applicable federal and State or the child, as appropriate, and make a residency determination in accor- laws, as well as existing SED guidance to school districts, in order to dance with the regulation. Prior to making a determination of entitlement ensure that unaccompanied minors and undocumented youths are provided to attend the schools of the district, the board or its designee shall afford their constitutional right to a free public education. The proposed amend- the child’s parent/person in parental relation or the child, as appropriate, ment will not impose any additional compliance requirements beyond an opportunity to submit information concerning the child’s right to attend those inherent in such applicable laws. school in the district, as specified in the regulation. At any time during the Each school district shall make publicly available its enrollment forms, school year, the board of education or its designee may determine, in ac- procedures, instructions and requirements for determinations of student cordance with the regulation, that a child is not a district resident entitled residency and age, including a non-exhaustive list of the forms of to attend the schools of the district. Determinations regarding whether a documentation that may be submitted to the district, as specified in the child is entitled to attend a district’s schools as a homeless child or youth regulation. By no later than January 31, 2015, such information shall be must be made in accordance with section 100.2(x) of the Commissioner’s included in the district’s existing enrollment/registration materials and be Regulations. provided to all parents/persons in parental relation or children, as appropri- School districts are required to comply with Public Health Law ate, who request enrollment in the district, and be posted on the district’s § 2164(7) and all other applicable provisions of the Public Health Law website, if one exists. and its implementing regulations, including orders issued by a state or lo- When a child’s parent(s)/person(s) in parental relation or the child, as cal health department pursuant to such laws or regulations, that impact a appropriate, requests enrollment of the child in the school district, such student’s admission to or attendance in school. child shall be enrolled and begin attendance on the next school day, or as PAPERWORK: soon as practicable. Within three business days of initial enrollment, the The regulation provides that the district may require parents/persons in board of education or its designee must review all documentation submit- parental relation or the child, as appropriate, to submit documentation/ ted by the child’s parent(s), the person(s) in parental relation to the child information establishing physical presence in the school district, as speci- or the child, as appropriate, and make a residency determination in accor- fied in the regulation. If the documentation is not available, the district dance with the regulation. Prior to making a determination of entitlement shall consider other forms of documentation/information establishing to attend the schools of the district, the board or its designee shall afford physical presence in the district, as specified in the regulation. The district the child’s parent/person in parental relation or the child, as appropriate, may also require the parent(s)/person(s) in parental relation to provide an an opportunity to submit information concerning the child’s right to attend affidavit either: (1) indicating that they are the parent(s) with whom the school in the district, as specified in the regulation. At any time during the child lawfully resides; or (2) indicating that they are the person(s) in school year, the board of education or its designee may determine, in ac- parental relation to the child, over whom they have total and permanent cordance with the regulation, that a child is not a district resident entitled custody and control, and describing how they obtained total and perma- to attend the schools of the district. Determinations regarding whether a nent custody and control, whether through guardianship or otherwise. A child is entitled to attend a district’s schools as a homeless child or youth district may also accept other proof, such as documentation indicating that must be made in accordance with section 100.2(x) of the Commissioner’s the child resides with a sponsor with whom the child has been placed by a Regulations. federal agency. A district may not require submission of a judicial custody School districts are required to comply with Public Health Law order or an order of guardianship as a condition of enrollment. § 2164(7) and all other applicable provisions of the Public Health Law DUPLICATION: and its implementing regulations, including orders issued by a state or lo- The proposed amendment does not duplicate existing State or federal cal health department pursuant to such laws or regulations, that impact a requirements, but merely codifies applicable federal and State laws, as student’s admission to or attendance in school. well as existing SED guidance to school districts, in order to ensure that The regulation provides that the district may require parents/persons in unaccompanied minors and undocumented youths are provided their parental relation or the child, as appropriate, to submit documentation/ constitutional right to a free public education. information establishing physical presence in the school district, as speci- ALTERNATIVES: fied in the regulation. If the documentation is not available, the district The proposed amendment is necessary to codify applicable federal and shall consider other forms of documentation/information establishing State laws, as well as existing SED guidance to school districts, in order to physical presence in the district, as specified in the regulation. The district ensure that unaccompanied minors and undocumented youths are provided may also require the parent(s)/person(s) in parental relation to provide an their constitutional right to a free public education. There are no signifi- affidavit either: (1) indicating that they are the parent(s) with whom the cant alternatives to the proposed amendment and none were considered. child lawfully resides; or (2) indicating that they are the person(s) in FEDERAL STANDARDS: parental relation to the child, over whom they have total and permanent The proposed amendment is necessary to codify applicable federal and custody and control, and describing how they obtained total and perma- State laws, as well as existing SED guidance to school districts, in order to nent custody and control, whether through guardianship or otherwise. A ensure that unaccompanied minors and undocumented youths are provided district may also accept other proof, such as documentation indicating that their constitutional right to a free public education. The proposed amend- the child resides with a sponsor with whom the child has been placed by a ment will not impose any additional compliance requirements beyond federal agency. A district may not require submission of a judicial custody those inherent in such applicable laws. order or an order of guardianship as a condition of enrollment. COMPLIANCE REQUIREMENTS: 3. PROFESSIONAL SERVICES:

21 Rule Making Activities NYS Register/April 1, 2015

The proposed rule does not impose any additional professional service an opportunity to submit information concerning the child’s right to attend requirements on local governments. school in the district, as specified in the regulation. At any time during the 4. COMPLIANCE COSTS: school year, the board of education or its designee may determine, in ac- The proposed amendment merely codifies applicable federal and State cordance with the regulation, that a child is not a district resident entitled laws, as well as existing SED guidance to school districts, in order to to attend the schools of the district. Determinations regarding whether a ensure that unaccompanied minors and undocumented youths are provided child is entitled to attend a district’s schools as a homeless child or youth their constitutional right to a free public education. In general, the must be made in accordance with section 100.2(x) of the Commissioner’s proposed amendment will not impose any additional costs on local govern- Regulations. ments beyond those inherent in such applicable laws. There may be costs associated with making publicly available a district’s enrollment forms, School districts are required to comply with Public Health Law procedures, instructions and requirements for determinations of student § 2164(7) and all other applicable provisions of the Public Health Law residency and age. However, any such costs are believed to be minimal and its implementing regulations, including orders issued by a state or lo- and capable of being absorbed using existing district staff and resources. cal health department pursuant to such laws or regulations, that impact a 5. ECONOMIC AND TECHNOLOGICAL FEASIBILTY: student’s admission to or attendance in school. The proposed amendment does not impose any additional technological The regulation provides that the district may require parents/persons in requirements. Economic feasibility is addressed above under compliance parental relation or the child, as appropriate, to submit documentation/ costs. information establishing physical presence in the school district, as speci- 6. MINIMIZE ADVERSE IMPACT: fied in the regulation. If the documentation is not available, the district The proposed amendment is necessary to codify applicable federal and shall consider other forms of documentation/information establishing State laws, as well as existing SED guidance to school districts, in order to physical presence in the district, as specified in the regulation. The district ensure that unaccompanied minors and undocumented youths are provided may also require the parent(s)/person(s) in parental relation to provide an their constitutional right to a free public education. The proposed amend- affidavit either: (1) indicating that they are the parent(s) with whom the ment will not impose any additional compliance requirements on local child lawfully resides; or (2) indicating that they are the person(s) in governments beyond those inherent in such applicable laws. parental relation to the child, over whom they have total and permanent 7. LOCAL GOVERNMENT PARTICIPATION: custody and control, and describing how they obtained total and perma- Copies of the proposed amendment have been provided to District nent custody and control, whether through guardianship or otherwise. A Superintendents with the request that they distribute them to school district may also accept other proof, such as documentation indicating that districts within their supervisory districts for review and comment. Copies the child resides with a sponsor with whom the child has been placed by a were also provided for review and comment to the chief school officers of federal agency. A district may not require submission of a judicial custody the five big city school districts. order or an order of guardianship as a condition of enrollment. 8. INITIAL REVIEW OF RULE (SAPA § 207): The rule does not impose any additional professional service require- Pursuant to State Administrative Procedure Act section 207(1)(b), the ments on rural areas. State Education Department proposes that the initial review of this rule 3. COMPLIANCE COSTS: shall occur in the fifth calendar year after the year in which the rule is The proposed amendment merely codifies applicable federal and State adopted, instead of in the third calendar year. The justification for a five laws, as well as existing SED guidance to school districts, in order to year review period is that the proposed rule is necessary to codify ap- ensure that unaccompanied minors and undocumented youths are provided plicable federal and State laws, as well as existing SED guidance to school their constitutional right to a free public education. In general, the districts, in order to ensure that unaccompanied minors and undocumented proposed amendment will not impose any additional costs on rural areas youths are provided their constitutional right to a free public education. beyond those inherent in such applicable laws. There may be costs associ- Changes to such federal and State laws would be necessary before the ated with making publicly available a district’s enrollment forms, proposed rule may be revised. Accordingly, there is no need for a shorter procedures, instructions and requirements for determinations of student review period. residency and age. However, any such costs are believed to be minimal The Department invites public comment on the proposed five year and capable of being absorbed using existing district staff and resources. review period for this rule. Comments should be sent to the agency contact 4. MINIMIZING ADVERSE IMPACT: listed in item 16. of the Notice of Emergency Adoption and Proposed Rule The proposed amendment is necessary to codify applicable federal and Making published herewith, and must be received within 45 days of the State laws, as well as existing SED guidance to school districts, in order to State Register publication date of the Notice. ensure that unaccompanied minors and undocumented youths are provided their constitutional right to a free public education. The proposed amend- Rural Area Flexibility Analysis ment will not impose any additional compliance requirements on rural ar- 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: eas beyond those inherent in such applicable laws. The proposed rule has The proposed rule applies to all school districts in the State, including been carefully drafted to ensure that such State and federal requirements those located in the 44 rural counties with less than 200,000 inhabitants are met. Since these requirements apply to all school districts in the State, and the 71 towns in urban counties with a population density of 150 per it is not possible to adopt different standards for those located in rural square mile or less. areas. 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE 5. RURAL AREA PARTICIPATION: REQUIREMENTS; AND PROFESSIONAL SERVICES: The proposed rule was submitted for review and comment to the The proposed amendment merely codifies applicable federal and State Department’s Rural Education Advisory Committee, which includes laws, as well as existing SED guidance to school districts, in order to representatives of school districts in rural areas. ensure that unaccompanied minors and undocumented youths are provided 6. INITIAL REVIEW OF RULE (SAPA § 207): their constitutional right to a free public education. The proposed amend- Pursuant to State Administrative Procedure Act section 207(1)(b), the ment will not impose any additional compliance requirements beyond State Education Department proposes that the initial review of this rule those inherent in such applicable laws. shall occur in the fifth calendar year after the year in which the rule is Each school district shall make publicly available its enrollment forms, adopted, instead of in the third calendar year. The justification for a five procedures, instructions and requirements for determinations of student year review period is that the proposed rule is necessary to codify ap- residency and age, including a non-exhaustive list of the forms of plicable federal and State laws, as well as existing SED guidance to school documentation that may be submitted to the district, as specified in the districts, in order to ensure that unaccompanied minors and undocumented regulation. By no later than January 31, 2015, such information shall be youths are provided their constitutional right to a free public education. included in the district’s existing enrollment/registration materials and be Changes to such federal and State laws would be necessary before the provided to all parents/persons in parental relation or children, as appropri- proposed rule may be revised. Accordingly, there is no need for a shorter ate, who request enrollment in the district, and be posted on the district’s review period. website, if one exists. The Department invites public comment on the proposed five year When a child’s parent(s)/person(s) in parental relation or the child, as review period for this rule. Comments should be sent to the agency contact appropriate, requests enrollment of the child in the school district, such listed in item 16. of the Notice of Emergency Adoption and Proposed Rule child shall be enrolled and begin attendance on the next school day, or as Making published herewith, and must be received within 45 days of the soon as practicable. Within three business days of initial enrollment, the State Register publication date of the Notice. board of education or its designee must review all documentation submitted by the child’s parent(s), the person(s) in parental relation to the child Job Impact Statement or the child, as appropriate, and make a residency determination in accor- The proposed amendment relates to student enrollment, and will codify dance with the regulation. Prior to making a determination of entitlement applicable federal and State laws, as well as existing State Education to attend the schools of the district, the board or its designee shall afford Department guidance to school districts, in order to ensure that unac- the child’s parent/person in parental relation or the child, as appropriate, companied minors and undocumented youths are provided their constitu-

22 NYS Register/April 1, 2015 Rule Making Activities tional right to a free public education. The proposed amendment does not It is anticipated that the proposed rule will be presented for adoption as impose any adverse economic impact, reporting, record keeping or any a permanent rule at the March 16-17, 2015 Regents meeting, which is the other compliance requirements on small businesses. Because it is evident first scheduled meeting after expiration of the 45-day public comment pe- from the nature of the proposed amendment that it does not affect small riod prescribed in the State Administrative Procedure Act for State agency businesses, no further measures were needed to ascertain that fact and rule makings. none were taken. Accordingly, a regulatory flexibility analysis for small Subject: Profession of Applied Behavior Analysis. businesses is not required and one has not been prepared. Purpose: To implement chapter 554 of the Laws of 2013 and chapter 8 of the Laws of 2014. EMERGENCY Substance of emergency rule: At their February 9-10, 2015 meeting, the RULE MAKING Board of Regents readopted as an emergency action, effective March 16, 2015, the emergency rule adopted at the December 15-16, 2014 Regents meeting, to keep the rule continuously in effect until it can be presented Profession of Applied Behavior Analysis and take effect as an emergency rule. The emergency rule amends section I.D. No. EDU-52-14-00015-E 29.2 of the Rules of the Board of Regents, adds sections 52.44 and 52.45 to the Regulations of the Commissioner of Education, amends section Filing No. 167 59.14 of the Regulations of the Commissioner of Education, and adds Filing Date: 2015-03-16 Subparts 79-17 and 79-18 to the Regulations of the Commissioner of Effective Date: 2015-03-16 Education, relating to the licensure of behavior analysts and certification of behavior analyst assistants under Article 167 of the Education Law as added by Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- 2014. The following is a summary of the substance of the emergency rule: cedure Act, NOTICE is hereby given of the following action: Subdivisions (a) and (b) of section 29.2 of the Rules of the Board of Action taken: Amendment of sections 29.2, 52.44, 52.45, 59.14, Subparts Regents are amended to add the profession of applied behavior analysis to the list of health care professions that are subject to its unprofessional 79-17 and 79-18 of Title 8 NYCRR. conduct provisions. Statutory authority: Education Law, sections 207(not subdivided), Section 52.44 is added to the Regulations of the Commissioner of 6503-a, 6504(not subdivided), 6507(2)(a), 6509(9), 8800, 8801, 8802, Education to establish the requirements for licensed behavior analyst 8803, 8804, 8805, 8806, 8807 and 8808; L. 2013, ch. 554; L. 2014, ch. 8 education programs. These requirements include registration and curricu- Finding of necessity for emergency rule: Preservation of public health lum requirements for programs offered in New York State that lead to and general welfare. licensure as a licensed behavior analyst. Section 52.44 further requires licensed behavior analyst education programs to be a program in applied Specific reasons underlying the finding of necessity: The proposed rule behavior analysis leading to a master’s degree or higher degree, which is necessary to implement Chapter 554 of the Laws of 2013 and Chapter 8 must require at least one year of full-time study or the equivalent; or a of the Laws of 2014, which took effect on July 1, 2014. This amendment program in applied behavioral analysis leading to an advanced certificate to the Education Law establishes and defines the practice of the profession which ensures that each student holds a master’s or higher degree in of applied behavior analysis. Pursuant to Chapter 554, the purpose of ap- subject areas, including, but not limited to, psychology, education or other plied behavior analysis is to provide behavioral health treatment for subject areas that address learning and behavioral change as determined persons with autism and autism spectrum disorders and related disorders. by the Department. It also establishes the requirements for licensed behavior analyst and certi- Section 52.45 is added to the Regulations of the Commissioner of fied behavior analyst assistant education programs, which include registra- Education to establish the requirements for certified behavior analyst as- tion and curriculum requirements for programs offered in New York State sistant education programs. These requirements include registration and that lead to licensure as a licensed behavior analyst or certification as a curriculum requirements for programs offered in New York State that lead certified behavior analyst assistant. In addition, this amendment to the to certification as a certified behavior analyst assistant. Section 52.45 fur- Education Law establishes a waiver of the licensure requirement for ther requires certified behavior analyst assistant education programs to be certain specified entities that provide applied behavior analysis services as a program in applied behavior analysis leading to a bachelor’s or higher degree; or a program in applied behavior analysis leading to a certificate defined in Article 167 of the Education Law. It further establishes require- which ensures that each student holds a bachelor’s degree or a higher ments for the licensure of licensed behavior analysts and certified behavior degree in subject areas, including, but not limited to, psychology, educa- analyst assistants, which include, but are not limited to, professional tion or other subject areas that address learning and behavioral change as education, experience, examination and limited permit requirements. This determined by the Department. amendment to the Education Law also provides a grandparenting licensure/ Paragraph (1) of subdivision (a) of section 59.14 of the Regulations of certification pathway, which the Department is referring to as Pathway the Commissioner of Education is amended to implement that portion of One, for individuals who are certified or registered by a national certifying Chapter 554 of the Laws of 2013 which includes applied behavior analysis body and submit an attestation of moral character and an application to the among the professions for which a waiver of certain corporate practice State Education Department within two years of the January 10, 2014 ef- restrictions is available. fective date of this provision of the statute. Although Pathway One will Subpart 79-17 is added to the Regulations of the Commissioner of expire on January 9, 2016, the licenses and certifications issued under it Education to establish the requirements for licensure as a licensed behavior will not. Additionally, this amendment adds the profession of applied analyst, which include, but are not limited to, professional education, ex- behavior analysis to the list of health care professions that are subject to perience, examination, limited permit requirements and reiterates the the Education Laws’ unprofessional conduct provisions. exemptions to the practice of applied behavior analysis set forth in section The proposed amendment was adopted as an emergency action at the 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 December 15-16, 2014 Regents meeting, effective December 16, 2014. A and Chapter 8 of the Laws of 2014. Notice of Emergency Adoption and Proposed Rule Making was published Subpart 79-18 is added to the Regulations of the Commissioner of in the State Register on December 31, 2014. Since the Board of Regents Education to establish the requirements for certification as a certified meets at fixed intervals, the earliest the proposed rule can be presented for behavior analyst assistant, which include, but are not limited to, profes- adoption by regular action, after expiration of the required 45-day public sional education, experience, examination, limited permit requirements comment period provided for in the State Administrative Procedure Act and reiterates the exemptions to the practice of applied behavior analysis (SAPA) sections 201(1) and (5), would be the March 16-17, 2015 Regents set forth in section 8807 of the Education Law, as added by Chapter 554 meeting. Furthermore, pursuant to SAPA section 203(1), the earliest ef- of the Laws of 2013 and Chapter 8 of the Laws of 2014. fective date of the proposed rule, if adopted at the March meeting, would be April 1, 2015, the date a Notice of Adoption would be published in the This notice is intended to serve only as a notice of emergency adoption. State Register. However, the December emergency rule will expire on This agency intends to adopt the provisions of this emergency rule as a March 15, 2015. If the rule were to lapse, it could disrupt the licensure permanent rule, having previously submitted to the Department of State a process for applicants, who do not meet the requirements for licensure notice of proposed rule making, I.D. No. EDU-52-14-00015-EP, Issue of and/or certification under Pathway One, which could temporarily reduce December 31, 2014. The emergency rule will expire May 14, 2015. the potential number of licensed professionals qualified to practice applied Text of rule and any required statements and analyses may be obtained behavior analysis. from: Kirti Goswami, State Education Department, Office of Counsel, Therefore, emergency action is necessary at the February Regents meet- State Education Building, Room 148, 89 Washington Ave., Albany, NY ing for the preservation of the public health and general welfare to ensure 12234, (518) 474-6400, email: [email protected] that the emergency rule adopted at the December 2014 Regents meeting Regulatory Impact Statement remains continuously in effect until the effective date of its permanent 1. STATUTORY AUTHORITY: adoption. Section 207 of the Education Law grants general rule-making authority

23 Rule Making Activities NYS Register/April 1, 2015 to the Board of Regents to carry into effect the laws and policies of the The purpose of the proposed rule is to increase access to needed applied State relating to education. behavior analysis services to provide behavioral health treatment for Section 6503-a of the Education Law authorizes the State Education persons with autism and autism spectrum disorders and related disorders, Department to issue a waiver of certain corporate practice restrictions for while protecting the public, by establishing licensure requirements for specified professions. behavior analysts and certification requirements for behavior analyst Section 6504 of the Education Law authorizes the Board of Regents to assistants. The proposed rule is necessary to conform the Rules of the supervise the admission to and regulation of the practice of the professions. Board of Regents and the Regulations of the Commissioner of Education Subparagraph (a) of subdivision (2) of section 6507 of the Education to Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. Law authorizes the Commissioner of Education to promulgate regulations As required by statute, the proposed rule is also needed to establish the in administering the admission to and the practice of the professions. program registration requirements for behavior analyst and behavior Section 6509(9) of the Education Law authorizes the Board of Regents analyst assistant education programs offered in New York State that lead to define unprofessional conduct in the professions. to licensure or certification. Additionally, the proposed rule is needed to Section 8800 of the Education Law, as added by Chapter 554 of the subject licensed behavior analysts and certified behavior analyst assistants Laws of 2013, establishes the new profession of applied behavior analysis. to the general unprofessional conduct provisions for the health professions. Section 8801 of the Education Law, as added by Chapter 554 of the The proposed rule is further needed to include applied behavior analysis Laws of 2013, defines the profession of applied behavior analysis. among the professions for which a waiver of certain corporate practice Section 8802 of the Education Law, as added by Chapter 554 of the restrictions is available and reiterate the exemptions to the practice of ap- Laws of 2013, defines the practice of applied behavior analysis by licensed plied behavior analysis set forth in statute. behavior analysts and certified behavior analyst assistants. 4. COSTS: Section 8803 of the Education Law, as added by Chapter 554 of the (a) Costs to State government: The proposed rule implements statutory Laws of 2013, establishes protection for the titles “licensed behavior requirements and establishes standards as directed by statute, and will not analyst” and “certified behavior analyst assistant.” impose any additional costs on State government beyond those imposed Section 8804 of the Education Law, as added by Chapter 554 of the by the statutory requirements. Laws of 2013, establishes the education, experience, examination, age, (b) Costs to local government: There are no additional costs to local and moral character requirements for applicants seeking licensure as a governments. licensed behavior analyst assistant and certification as a certified behavior (c) Cost to private regulated parties: The proposed rule does not impose analyst assistant. any additional costs to regulated parties beyond those imposed by statute. Section 8805 of the Education Law, as added by Chapter 554 of the As required by Education Law section 8804(1)(g), applicants for certifica- Laws of 2013, establishes a time limited licensure and certification tion as a certified behavior analyst assistant must pay a fee to the Depart- pathway for individuals who meet the requirements for licensure or certi- ment of $150 for their initial license and a triennial registration fee of $75. fication as a licensed behavior analyst or certified behavior analyst, except Additionally, as required by Education Law section 8804(2)(g), applicants for the examination, experience and education requirements, if they are for licensure as a licensed behavior analyst must pay a fee to the Depart- certified or registered by a national certifying body having certification or ment of $200 for their initial license and a triennial registration fee of registration standards that are acceptable to the Commissioner of Educa- $100. Higher education institutions that seek to register behavior analyst tion, and submit an application to the State Education Department within and/or behavior analyst assistant education programs with the Depart- two years of the January 10, 2014 effective date of this provision of the ment, including those in rural areas, may incur costs related to the develop- statute. ment and maintenance of such education programs and their registration. Section 8806 of the Education Law, as added by Chapter 554 of the It is anticipated that such costs will be minimal because several higher Laws of 2013, establish the requirements for limited permits for applicants education institutions are already offering courses that would or could, for licensure as licensed behavior analysts and certification as certified with adjustments, meet the registration requirements for a behavior analyst behavior analyst assistants. and/or behavior analyst assistant education programs, and that higher Section 8807 of the Education Law, as added by Chapter 554 of the education institutions should be able to use their existing staffs and re- Laws of 2013 and amended by Chapter 8 of the Laws of 2014, establishes sources to revise their courses and curricula to meet the licensed behavior exemptions from the applied behavior analysis licensure and certification analyst and/or certified behavior analyst assistant requirements. requirements. (d) Cost to the regulatory agency: The proposed rule does not impose Section 8808 of the Education Law, as added by Chapter 554 of the any additional costs on the Department beyond those imposed by statute. Laws of 2013, authorizes the Board of Regents, upon the recommendation Any associated costs to the Department will be offset by the fees charged of the Commissioner of Education, to appoint a State Board for Applied to applicants and no significant cost will result to the Department. Behavior Analysis to assist on matters of licensing and professional 5. LOCAL GOVERNMENT MANDATES: conduct. The proposed rule implements the requirements of Article 167 of the 2. LEGISLATIVE OBJECTIVES: Education Law, as added by Chapter 554 of the Laws of 2013 and The proposed rule implements Chapter 554 of the Laws of 2013, which amended by Chapter 8 of the Laws of 2014, by establishing the standards added Article 167 to the Education Law, by establishing the requirements for individuals to be licensed to practice as licensed behavior analysts and for licensure as a licensed behavior analyst and certification as a certified certified to practice as certified behavior analyst assistants and standards behavior analyst assistant which include, but are not limited to, profes- for behavior analyst and behavior analyst assistant education programs sional education, experience, examination and limited permit require- provided by institutions of higher education to ensure that only those ments and reiterates the exemptions to the practice of applied behavior properly educated and prepared to be licensed behavior analysts and certi- analysis set forth in section 8807 of the Education Law, as added by fied behavior analyst assistants hold themselves out as such. It does not Chapter 554 of the Laws of 2013 and amended by Chapter 8 of the Laws impose any program, service, duty, or responsibility upon local of 2014. Chapter 8 of the Laws of 2014 amended Chapter 554 to make governments. changes necessary to the implementation of Chapter 554. The proposed 6. PAPERWORK: rule also implements the statute by subjecting licensed behavior analysts The proposed rule imposes no new reporting or other paperwork and certified behavior analyst assistants to the general unprofessional requirements beyond those imposed by the statute. conduct provisions for the health professions. In addition, the proposed 7. DUPLICATION: rule implements the statute by establishing the program registration The proposed rule is necessary to implement Chapter 554 of the Laws requirements for licensed behavior analyst and certified behavior analyst of 2013 and Chapter 8 of the Laws of 2014. There are no other state or assistant education programs, which include registration and curriculum federal requirements on the subject matter of this proposed rule. Therefore, requirements for programs offered in New York State that lead to licensure the proposed rule does not duplicate other existing state or federal or certification. The proposed rule further implements the statute by requirements. including applied behavior analysis among the professions for which a 8. ALTERNATIVES: waiver of certain corporate practice restrictions is available. The proposed rule is necessary to conform the Rules of the Board of Finally, Chapter 554 of the Laws of 2013 also provides a grandparent- Regents and the Regulations of the Commissioner of Education to Chapter ing licensure/certification pathway, which the State Education Depart- 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. There are no ment is referring to as Pathway One, for individuals who are certified or significant alternatives to the proposed rule and none were considered. registered by a national certifying body and submit an attestation of moral 9. FEDERAL STANDARDS: character and an application to the State Education Department within two Since, there are no applicable federal standards for behavior analysts years of the January 10, 2014 effective date of this provision of the statute. and behavior analyst assistants and behavior analyst and behavior analyst Although Pathway One will expire on January 9, 2016, the licenses and assistant education programs, the rule does not exceed any minimum certifications issued under it will not. federal standards for the same or similar subject areas. 3. NEEDS AND BENEFITS: 10. COMPLIANCE SCHEDULE:

24 NYS Register/April 1, 2015 Rule Making Activities

The proposed rule is necessary to conform the Rules of the Board of Education Law, as added by Chapter 554 of the Laws of 2013 and Regents and the Regulations of the Commissioner of Education to Chapter amended by Chapter 8 of the Laws of 2014, applies to their employees, 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. With the the proposed rule will require small businesses and local governments to exception of the Pathway One licensure provisions described above, which use only licensed behavior analysts and/or certified behavior analyst as- became effective January 10, 2014, all the Education Law provisions of sistants to provide applied behavior services. Sections 8804(1)(g) and Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014 (2)(g) of the Education Law, as added by Chapter 554 of the Laws of 2013, became effective July 1, 2014. The proposed rule was adopted by the require a fee of $150 for an initial license and a triennial registration fee of Board of Regents on an emergency basis effective December 16, 2014 and $75 for certified behavior analyst assistants and a fee of $200 for an initial is expected to be presented for permanent adoption at the March 16-17, license and a triennial registration fee of $100 for each triennial registra- 2015 Regents meeting with an effective date of April 1, 2015. It is tion period for licensed behavior analysts. Section 8806(3) of the Educa- anticipated that applicants for licensure or certification will be able to tion Law, as added by Chapter 554 of the Laws of 2013, imposes a limited comply with the proposed rule by the effective date. permit fee of $70 to allow an individual who meets all the requirements Regulatory Flexibility Analysis for licensure, except the examination and/or experience requirements, to 1. EFFECT OF RULE: practice under supervision for one year. The purpose of the proposed rule is to implement Chapter 554 of the 5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY: Laws of 2013, which establishes and defines the practice of the profession The proposed rule will not impose any technological requirements on of applied behavior analysis (ABA) and Chapter 8 of the Laws of 2014, regulated parties, including those that are classified as small businesses, which amended Chapter 554 to make changes necessary to the implemen- and the proposed rule is economically feasible. See above ‘‘Compliance tation of Chapter 554. Costs’’ for the economic impact of the regulation. Chapter 554 also provides a grandparenting licensure/certification 6. MINIMIZING ADVERSE IMPACT: pathway, which the State Education Department is referring to as Pathway The proposed rule is necessary to implement the provisions of Chapter One, for individuals who are certified or registered by a national certifying 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which body and submit an attestation of moral character and an application to the established the new profession of applied behavior analysis and the State Education Department within two years of the January 10, 2014 ef- requirements for licensure as a licensed behavior analyst and certification fective date of this provision of the statute. Although Pathway One will as a certified behavior analyst assistant. These requirements include, but expire on January 9, 2016, the licenses and certifications issued under it are not limited to, professional education, experience, examination and will not. limited permit requirements. Chapter 554 and Chapter 8 authorize the As of November 2014, the Behavior Analyst Certification Board listed State Education Department to define, in regulation, the standards to be 1,014 residents of New York State who possess a certification that may met for licensure as a licensed behavior analyst and certification as a certi- enable them to be licensed by New York State under the grandparenting fied behavior analyst assistant. Individuals seeking licensure to practice in provisions of the law that will remain in effect until January 9, 2016. The New York State will be required to submit an application with the State number of applicants who have been licensed in New York State under Education Department and meet all the requirements for licensure, which these grandparenting provisions as of December 4, 2014 is 551, including include, but are not limited to, the professional study, experience, and ex- 104 persons who are also licensed in other professions in New York State, amination requirements specified in the proposed rule. Individuals seek- and 64 who reside outside the State. The number of persons who are certi- ing to work in New York State after completing all requirements for fied as teachers in New York State who also hold this national certifica- licensure except the examination and/or experience requirements will be tion is 173. As of December 1, 2014, the number of persons who have ap- required to submit a limited permit application to the State Education plied for licensure to whom the current regulations would apply is Department as specified in the proposed rule. The proposed fee structure approximately 20. These 20 individuals are not eligible for licensure under was determined by the legislature to be the minimum needed to support Pathway One. additional costs. It is on a par with fee structures in other professions. It Additionally, the number of individuals who are providing applied was determined that the licensure of behavior analysts and certification of behavior analysis services and activities and employed by a small business behavior analyst assistants who meet minimum requirements established or local government in New York State is currently not available and is in the proposed rule best ensures the protection of the health and safety of unknown. Some of these unknown individuals may further fall under one the public. of the exemptions to the licensure and certification requirements set forth 7. SMALL BUSINESS AND LOCAL GOVERNMENT in section 8807 of the Education Law, as added by Chapter 554 of the PARTICIPATION: Laws of 2013 and amended by Chapter 8 of the Laws of 2014. However, Statewide organizations representing all parties having an interest in the the number of these exempted individuals is not available and is unknown. practice of applied behavior analysis, including the State Board for Ap- 2. COMPLIANCE REQUIREMENTS: plied Behavior Analysis, behavior analyst and behavior analyst assistant The proposed rule implements Chapter 554 of the Laws of 2013 and professional associations, psychological professional associations Chapter 8 of the Laws of 2014, which establish the new profession of ap- (because applied behavior analysis is encompassed in the practice of plied behavior analysis and the requirements for licensure as a licensed psychology), and applied behavior analysis educators, which include behavior analyst and certification as a certified behavior analyst assistant. members who have experience in a small business environment, were These requirements include, but are not limited to, professional education, consulted and provided input into the development of the proposed rule experience, examination and limited permit requirements. The proposed and their comments were considered in its development. rule also reiterates the exemptions to the practice of applied behavior anal- Rural Area Flexibility Analysis ysis set forth in section 8807 of the Education Law, as added by Chapter 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: 554 of the Laws of 2013 and amended by Chapter 8 of the Laws of 2014. The proposed rule will apply to all individuals seeking licensure as Individuals seeking licensure to practice in New York State will be licensed behavior analysts or certification as a certified behavior analyst required to submit an application with the State Education Department assistant and to higher education institutions that seek to register behavior and meet all the requirements for licensure, which include, but are not analyst and/or behavior analyst assistant education programs with the limited to, the professional study, experience, and examination require- State Education Department, including those located in the 44 rural coun- ments specified in the proposed rule. Individuals seeking to work in New ties with less than 200,000 inhabitants and the 71 towns in urban counties York State after completing all requirements for licensure except the ex- with a population density of 150 per square mile or less. amination and/or experience requirements will be required to submit a 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE limited permit application to the State Education Department as specified REQUIREMENTS; AND PROFESSIONAL SERVICES: in the proposed rule. As required by Chapter 554 of the Laws of 2013 and Chapter 8 of the 3. PROFESSIONAL SERVICES: Laws of 2014, which both became effective July 1, 2014 (with the excep- Unless one of the exemptions to the licensure and certification require- tion of the grandfathering provisions set forth below), the proposed rule ments apply to their employees, who provide applied behavior analysis establishes the new profession of applied behavior analysis and the services in the course of their employment, the proposed rule will require requirements for licensure as a licensed behavior analyst and certification small businesses and local governments to use only licensed behavior as a certified behavior analyst assistant which include, but are not limited analysts and/or certified behavior analyst assistants to provide applied to, professional education, experience, examination and limited permit behavior services. It is not anticipated that small businesses or local requirements and reiterates the exemptions to the practice of applied governments will need professional services to comply with the proposed behavior analysis set forth in section 8807 of the Education Law, as added rule. by Chapter 554 of the Laws of 2013 and amended by Chapter 8 of the 4. COMPLIANCE COSTS: Laws of 2014. Chapter 8 amended Chapter 554 to make changes neces- The proposed rule does not impose any direct costs on small business or sary to the implementation of Chapter 554. local governments. As stated above, unless one of the exemptions to the Chapter 554 of the Laws of 2013 also provides a grandparenting licensure and certification requirements set forth in section 8807 of the licensure/certification pathway, which the State Education Department is

25 Rule Making Activities NYS Register/April 1, 2015 referring to as Pathway One, for individuals who are certified or registered 3. COSTS: by a national certifying body and submit an attestation of moral character With respect to individuals seeking licensure as a licensed behavior and an application to the State Education Department within two years of analyst or certification as a certified behavior analyst assistant from the the January 10, 2014 effective date of this provision of the statute. Al- State Education Department, including those in rural areas, the proposed though Pathway One will expire on January 9, 2016, the licenses and rule does not impose any additional costs beyond those required by statute. certifications issued under it will not. As required by Education Law section 8804(1)(g), applicants for certifica- The proposed amendment to section 29.2 of the Rules of the Board of tion as a certified behavior analyst assistant must pay a fee to the Depart- Regents and section 59.14 of the Regulations of the Commissioner of ment of $150 for their initial license and a triennial registration fee of $75. Education and addition of sections 52.44, 52.45 and Subparts 79-17 and Additionally, as required by Education Law section 8804(2)(g), applicants 79-18 of the Regulations of the Commissioner of Education implement for licensure as a licensed behavior analyst must pay a fee to the State the licensure requirements for licensed behavior analysts and the certifica- Education Department of $200 for their initial license and a triennial tion requirements for certified behavior analyst assistants of Chapter 554. registration fee of $100. The proposed amendment to subdivisions (a) and (b) of section 29.2 of Moreover, after the expiration Pathway One on January 9, 2016, ap- the Rules of the Board of Regents adds the profession of applied behavior plicants for licensure as a licensed behavior analyst will incur the cost of a analysis to the list of health care professions that are subject to its unprofes- master’s degree-level or higher degree-level education and applicants for sional conduct provisions. certification as a certified behavior analyst assistant will incur the cost of a The proposed amendment to section 52.44 of the Regulations of the bachelor’s degree-level or higher degree-level education. Commissioner of Education establishes the program registration require- The proposed rule will not require higher education institutions to offer ments for licensed behavior analyst education programs. These require- education programs that prepare individuals for licensure as a licensed ments include registration and curriculum requirements for programs of- behavior analyst or certification as a certified behavior analyst assistant. fered in New York State that lead to licensure as a licensed behavior However, higher education institutions that seek to register behavior analyst. The proposed amendment requires licensed behavior analyst analyst and/or behavior analyst assistant education programs with the education programs to be a program in applied behavior analysis leading Department, including those in rural areas, may incur costs related to the to a master’s degree or higher degree, which must require at least one year development and maintenance of such education programs and their of full-time study or the equivalent; or a program in applied behavior anal- registration. It is anticipated that such costs will be minimal because sev- ysis leading to an advanced certificate which ensures that each student eral higher education institutions are already offering courses that would holds a master’s or higher degree in subject areas, including, but not or could, with adjustments, meet the registration requirements for a limited to, psychology, education or other subject areas that address learn- behavior analyst and/or behavior analyst assistant education programs, ing and behavioral change as determined by the Department. and that higher education institutions should be able to use their existing The proposed amendment to section 52.45 of the Regulations of the staffs and resources to revise their courses and curricula to meet the Commissioner of Education establishes the requirements for certified licensed behavior analyst and/or certified behavior analyst assistant behavior analyst assistant education programs. These requirements include requirements. registration and curriculum requirements for programs offered in New 4. MINIMIZING ADVERSE IMPACT: The proposed rule is necessary to implement the provisions of Chapter York State that lead to certification as a certified behavior analyst assistant. 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014, which estab- The proposed amendment requires certified behavior analyst assistant lish the new profession of applied behavior analysis and the licensure education programs to be a program in applied behavior analysis leading requirements for licensed behavior analysts and certification requirements to a bachelor’s or higher degree; or a program in applied behavior analysis for certified behavior analyst assistants, which include education, experi- leading to a certificate which ensures that each student holds a bachelor’s ence, examination, age, moral character and fee requirements. The statu- degree or a higher degree in subject areas, including, but not limited to, tory requirements do not make exceptions for individuals who live or psychology, education or other subject areas that address learning and work in rural areas. Nor do they make exceptions for higher education behavioral change as determined by the Department. institutions located in rural areas. Thus, the State Education Department The proposed amendment to paragraph (1) of subdivision (a) of section has determined that the proposed rule’s requirements should apply to all 59.14 of the Regulations of the Commissioner of Education implements individuals seeking licensure as a licensed behavior analyst or certifica- that portion of Chapter 554 of the Laws of 2013 which includes applied tion as a certified behavior analyst assistant and all higher education behavior analysis among the professions for which a waiver of certain institutions seeking to register behavior analyst and/or behavior analyst corporate practice restrictions is available. assistant education programs with the Department, regardless of the Additionally, the proposed addition of Subpart 79-17 of the Regula- geographic location to help insure continuing competency across the State. tions of the Commissioner of Education establishes the requirements for The Department has also determined that uniform standards for the licensure as a licensed behavior analyst, which include, but are not limited Department’s review of prospective registered behavior analyst and/or to, professional education, experience, examination and limited permit behavior analyst assistant education programs are necessary to ensure requirements and reiterates the exemptions to the practice of applied quality behavior analyst and behavior analyst assistant education in all behavior analysis set forth in Education Law 8807, as added by Chapter parts of the State. Because of the nature of the proposed rule, alternative 554 and Chapter 8. approaches for rural areas were not considered. The proposed addition of Subpart 79-18 of the Regulations of the Com- 5. RURAL AREA PARTICIPATION: missioner of Education establishes the requirements for certification as a Comments on the proposed rule were solicited from statewide organiza- certified behavior analyst assistant, which include, but are not limited to, tions representing all parties having an interest in the practice of applied professional education, experience, examination and limited permit behavior analysis. These organizations included the State Board for Ap- requirements and reiterates the exemptions to the practice of applied plied Behavior Analysis and behavior analyst and behavioral analyst as- behavior analysis set forth in Education Law section 8807, as added by sistant professional associations, psychological professional associations Chapter 554 and Chapter 8. because applied behavior analysis is encompassed in the practice of The proposed rule will not require any higher education institution to psychology and applied behavior analysis educators. These groups have offer an education program that leads to licensure for behavior analysts members who live or work or provide applied behavior analysis education and/or certification for behavior analyst assistants. The proposed rule will in rural areas. not impose any reporting, recordkeeping or other compliance require- 6. INITIAL REVIEW OF RULE (SAPA § 207): ments on higher education institutions in rural areas, unless they seek to Pursuant to State Administrative Procedure Act section 207(1)(b), the register a behavior analyst and/or a behavior analyst assistant education State Education Department proposes that the initial review of this rule program(s) with the Department. Such higher education institutions will shall occur in the fifth calendar year after the year in which the rule is have reporting and record keeping obligations related to the development adopted, instead of in the third calendar year. The justification for a five and maintenance of their behavior analyst and/or behavior analyst assis- year review period is that the proposed rule is necessary to implement the tant education programs, as well as the registration of such programs with statutory requirements of Chapter 554 of the Laws of 2013 and Chapter 8 the Department. of the Laws of 2014, and, therefore, the substantive provisions of the Individuals seeking licensure to practice in New York State will be proposed rule cannot be repealed or modified unless there is a further required to submit an application to the State Education Department and statutory change. Accordingly, there is no need for a shorter review period. meet all the requirements for licensure, which include, but are not limited The Department invites public comment on the proposed five year review to, the professional study, experience and examination requirements speci- period for this rule. Comments should be sent to the agency contact listed fied in the proposed rule. Individuals seeking to work in New York State in item 16 of the Notice of Emergency Adoption and Proposed Rule Mak- after completing all requirements for licensure except the examination ing published herewith, and must be received within 45 days of the State and/or experience requirements will be required to submit a limited permit Register publication date of the Notice. application to the State Education Department. Job Impact Statement The proposed rule will not impose any additional professional service The proposed rule is required to implement Chapter 554 of the Laws of requirements on entities in rural areas. 2013 and Chapter 8 of the Laws of 2014, which establish and define the

26 NYS Register/April 1, 2015 Rule Making Activities practice of applied behavior analysis. The proposed amendment to in the State Register. However, emergency action to adopt the proposed subdivisions (a) and (b) of section 29.2 of the Rules of the Board of rule is necessary now for the preservation of the general welfare to im- Regents adds the profession of applied behavior analysis to the list of mediately adopt technical amendments to: (1) clarify the requirements for health care professions that are subject to its unprofessional conduct earning a Regents Diploma with advanced designation by students who provisions. The proposed amendments to sections 52.44 and 52.45 of the elect to meet the requirements for a Regents diploma through the Regulations of the Commissioner of Education establish the program mathematics or science pathway options; and (2) allow students to earn a Regents diploma through the humanities pathway by passing either an ad- registration requirements for behavior analyst and behavior analyst assis- ditional Regents assessment or Department approved alternative in a dif- tant education programs. These requirements include registration and cur- ferent course in Social Studies or in English; and thereby allow for their riculum requirements for programs offered in New York State that lead to timely implementation in the 2014-2015 school year. licensure as a licensed behavior analyst or certification as a certified It is anticipated that the emergency rule will be presented to the Board behavior analyst assistant. The proposed amendment to paragraph (1) of of Regents for adoption as a permanent rule at the June 15-16, 2015 subdivision (a) of section 59.14 of the Regulations of the Commissioner Regents meeting, which is the first scheduled meeting after expiration of of Education implement that portion of Chapter 554 of the Laws of 2013 the 45-day public comment period mandated by the State Administrative which includes applied behavior analysis among the professions for which Procedure Act for proposed rulemakings. a waiver of certain corporate practice restrictions is available. The Subject: Pathways to Graduation and Regents Diploma Advanced proposed addition of Subparts 79-17 and 79-18 establish the education, Designation. experience, examination, age and moral character requirements for ap- Purpose: (1) to clarify requirements for earning a Regents Diploma with plicants seeking licensure as a licensed behavior analyst or certification as advanced designation by students who elect to meet the requirements for a a certified behavior analyst from the State Education Department and Regents diploma through the mathematics or science pathway options; reiterate the exemptions to the practice of applied behavior analysis set and (2) to allow students to earn a Regents diploma. forth in section 8807 of the Education Law, as added by Chapter 554 of Text of emergency/proposed rule: 1. Clause (f) of subparagraph (i) of the Laws of 2013 and amended by Chapter 8 of the Laws of 2014. It is not paragraph (5) of subdivision (a) of section 100.5 of the Regulations of the anticipated that the proposed rule will increase or decrease the number of Commissioner of Education is amended, effective March 17, 2015, as jobs to be filled because, among other things, Chapter 554 of the Laws of follows: 2013 provides for a grandparenting licensure/certification pathway, which (f) Requirements for pathway assessments: the State Education Department is referring to as Pathway One, for (1) In addition to the requirements of clauses (a), (b), (c), (d) individuals who are certified or registered by a national certifying body and (e) of this subparagraph, students who first enter grade nine in and submit an attestation of moral character and an application to the State September 2011 and thereafter or who are otherwise eligible to receive a Education Department within two years of the January 10, 2014 effective high school diploma pursuant to this section in June 2015 and thereafter, date of this provision of the statute. Although Pathway One will expire on must also pass any one of the following assessments: January 9, 2016, the licenses and certifications issued under it will not. (i) one additional [social studies] Regents examination in a Additionally, the proposed additions of Subparts 79-17 and 79-18 of the different course in social studies or a department-approved alternative; or Regulations of the Commissioner of Education contain special provisions (ii) one additional Regents examination in a different that exempt certain specified individuals from the licensure and certifica- course in mathematics or science or a department-approved alternative; or tion requirements. Because it is apparent from the nature of the proposed (iii) one additional examination in a different course in En- glish selected from the list of department-approved alternatives; or rule that it will not adversely impact the number of jobs or employment [(iii)] (iv) a pathway assessment (e.g., languages other than opportunities, a job impact statement is not required and one has not been English) approved by the commissioner in accordance with section prepared. 100.2(f)(2) of this Part; or [(iv)] (v) a career and technical education (CTE) pathway EMERGENCY/PROPOSED assessment, approved by the commissioner in accordance with section RULE MAKING 100.2(mm) of this Part, following successful completion of a CTE program approved pursuant to paragraph (6) of subdivision (d) of this sec- NO HEARING(S) SCHEDULED tion; or [(v)] (vi) an arts pathway assessment approved by the com- Pathways to Graduation and Regents Diploma Advanced missioner in accordance with section 100.2(mm) of this Part. Designation 2. Subparagraph (v) of paragraph (7) of subdivision (b) of section 100.5 of the Regulations of the Commissioner of Education is amended, effec- I.D. No. EDU-13-15-00022-EP tive March 17, 2015, as follows: Filing No. 177 (v) Earning a Regents diploma with advanced designation. To earn Filing Date: 2015-03-17 a Regents diploma with an advanced designation a student must complete, Effective Date: 2015-03-17 in addition to the requirements for a Regents diploma: (a) additional Regents examinations in mathematics as determined by the commissioner or approved alternatives pursuant to section PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- 100.2(f) of this Part. cedure Act, NOTICE is hereby given of the following action: (1) Beginning with the 2011-2012 school year and thereafter, Proposed Action: Amendment of section 100.5 of Title 8 NYCRR. students must pass two or three commencement level Regents examina- Statutory authority: Education Law, sections 101(not subdivided), tions in mathematics through one of the following combinations: 207(not subdivided), 208(not subdivided), 209(not subdivided), 305(1), [(1)] (i) Two examination combination. A student must (2), 308(not subdivided), 309(not subdivided) and 3204(3) pass: [(i)] (a) Mathematics A and Mathematics B; or Finding of necessity for emergency rule: Preservation of general welfare. [(ii)] (b) Mathematics A and Algebra 2/Trigonometry; Specific reasons underlying the finding of necessity: The proposed or amendment is necessary to: (1) clarify the requirements for earning a [(iii)] (c) Mathematics B and Integrated Algebra; or Regents Diploma with advanced designation by students who elect to [(2)] (ii) Three examination combination. A student must meet the requirements for a Regents diploma through the mathematics or pass: science pathway options; and (2) allow students to earn a Regents diploma [(i) Mathematics A, Geometry and Algebra through the humanities pathway by passing either an additional Regents 1/Trigonometry; or assessment, or Department approved alternative, in a different course in (ii) Integrated Algebra, Geometry and Mathematics B; Social Studies or in English. or Because the Board of Regents meets at scheduled intervals, the earliest (iii) Integrated Algebra, Geometry and Algebra the proposed amendment could be presented for regular (non-emergency) 2/Trigonometry] adoption, after publication in the State Register and expiration of the 45- (a) Mathematics A or Integrated Algebra or Algebra I day public comment period provided for in State Administrative Proce- (common core); and dure Act (SAPA) section 202(1) and (5), is the June 15-16, 2015 Regents (b) Geometry or Geometry (common core); and meeting. Furthermore, pursuant to SAPA section 203(1), the earliest ef- (c) Mathematics B or Algebra 2/Trigonometry or fective date of the proposed amendment, if adopted at the June meeting, Algebra II (common core); and would be July 1, 2015, the date a Notice of Adoption would be published (2) for students who elect to meet the requirements for a

27 Rule Making Activities NYS Register/April 1, 2015

Regents diploma through the mathematics pathway assessment in students who satisfactorily pass such examinations; and requires the 100.5(a)(5)(i)(f)(1)(ii), such students must also pass one additional as- admission to these examinations of any person who shall conform to the sessment in mathematics in a different course selected from the list of rules and pay the fees prescribed by the Regents. Department approved alternatives pursuant to 100.2(f) in addition to those Education Law section 305 (1) and (2) provide that the Commissioner, specified in item (i) or (ii) of subclause (1) of this clause; and as chief executive officer of the State system of education and of the (b) additional Regents examinations in science as determined by Regents, shall have general supervision over all schools and institutions the commissioner or approved alternatives pursuant to section 100.2(f) of subject to the provisions of the Education Law, or of any statute relating to this Part. education, and shall execute all educational policies determined by the (1) one additional Regents examination in science or a Regents. department-approved alternative, for a total of two Regents examinations, Education Law section 308 authorizes the Commissioner to enforce and with at least one in life science and at least one in physical science; or give effect to any provision in the Education Law or in any other general (2) for students who elect to meet the requirements for a or special law pertaining to the school system of the State or any rule or Regents diploma through the science pathway assessment in direction of the Regents. 100.5(a)(5)(i)(f)(1)(ii), such students must also pass one additional Education Law section 309 charges the Commissioner with the general Regents examination in science or a department-approved alternative, for supervision of boards of education and their management and conduct of a total of three Regents examinations, provided that the total number of all departments of instruction. science examinations passed include [with] at least one in life science and Education Law section 3204 (3) provides for required courses of study at least one in physical science; and in the public schools and authorizes SED to alter the subjects of required (c)... instruction. 3. Paragraph (2) of subdivision (g) of section 100.5 of the Regulations 2. LEGISLATIVE OBJECTIVES: of the Commissioner of Education is amended, effective March 17, 2015, The proposed amendment is consistent with the authority conferred by as follows: the above statutes and is necessary to implement policy enacted by the (2) Earning a Regents diploma with advanced designation. Notwith- Regents relating to State learning standards, State assessments, graduation standing the provisions of this section, to earn a Regents diploma with an and diploma requirements, and higher levels of student achievement. advanced designation a student must complete, in addition to the require- 3. NEEDS AND BENEFITS: ments for a Regents diploma, additional Regents examinations in math- In January 2015, the Board of Regents amended sections 100.2 and ematics as determined by the commissioner or approved alternatives pur- 100.5 of the Commissioner’s Regulations to implement the 4+1 Pathways suant to section 100.2(f) of this Part. to graduation option allowing students to meet the requirements for a di- (i) Beginning with the 2011-12 school year and thereafter, students ploma in different ways. must pass two or three commencement level Regents examinations in The amendment created graduation pathways assessments in the mathematics through one of the following combinations: Humanities, STEM, Biliteracy, CTE and the Arts and requires that, in ad- [(i)] (a) two examination combination. A student must pass: dition to the four Regents Exams or department-approved alternative as- [(a)] (1) mathematics A and mathematics B; or sessments required of all students in each of the areas of English, [(b)] (2) mathematics A and algebra 2/trigonometry; or mathematics, science, and social studies, students may pass any one of the [(c)] (3) mathematics B and integrated algebra; or following to meet the fifth assessment requirement: [(ii)] (b) three examination combination. A student must pass: 1. one additional social studies Regents examination or Department- [(a)] (1) mathematics A or integrated algebra or algebra I approved alternative (Humanities Pathway); or (common core); and 2. one additional Regents examination in a different course in mathemat- [(b)] (2) geometry or geometry (common core); and ics or science or a Department-approved alternative (STEM Pathway); or [(c)] (3) mathematics B or algebra 2/trigonometry or algebra 3. a pathway assessment approved by the Commissioner in accordance II (common core); and with § 100.2(f) of the Commissioner’s regulations (which could include a (ii) for students who elect to meet the requirements for a Regents Biliteracy [LOTE] Pathway); or diploma through the mathematics pathway assessment in 4. a career and technical education (CTE) pathway assessment, ap- 100.5(a)(5)(i)(f)(1)(ii), such students must also pass one additional as- proved by the Commissioner in accordance with proposed § 100.2(mm) sessment in mathematics in a different course selected from the list of following successful completion of a CTE program approved pursuant to Department approved alternatives pursuant to 100.2(f) in addition to those § 100.5(d)(6) of the regulations (CTE Pathway); or specified in clause (a) or (b) of subparagraph (i) of this paragraph; 5. an arts pathway assessment approved by the Commissioner in accor- This notice is intended: to serve as both a notice of emergency adoption dance with proposed § 100.2(mm). and a notice of proposed rule making. The emergency rule will expire As a result of adopting the pathways to graduation regulations, it is nec- June 14, 2015. essary to clarify how this provision impacts students who wish to earn the Text of rule and any required statements and analyses may be obtained Regents Diploma with advanced designation. In addition, the proposed from: Kirti Goswami, State Education Department, Office of Counsel, amendment would provide options for students who wish to pursue a State Education Building, Room 148, 89 Washington Ave., Albany, NY pathway in the humanities, by allowing students to earn a Regents di- 12234, (518) 474-6400, email: [email protected] ploma through the humanities pathway by passing an additional Regents Data, views or arguments may be submitted to: Ken Wagner, Deputy assessment, or a Department approved alternative, in a different course in Commissioner, Office of Curriculum, Assessment and Educational either Social Studies or in English. Technology, EBA Room 875, 89 Washington Ave., Albany, NY 12234, Currently, students who wish to earn a Regents diploma with advanced (518) 474-5915, email: [email protected] designation must meet the Regents diploma requirements (5 assessments) and pass 2 additional mathematics Regents exams and 1 additional science Public comment will be received until: 45 days after publication of this Regents exam for a total of 8 exams. In light of the new pathways options, notice. students who elect to meet the Regents diploma requirements using a This rule was not under consideration at the time this agency submitted mathematics pathway, would not be able to meet the advanced diploma its Regulatory Agenda for publication in the Register. requirements because the Department does not offer enough mathematics Regulatory Impact Statement Regents exams for 2 additional tests to be completed. The proposed 1. STATUTORY AUTHORITY: amendment would allow students to meet the additional mathematics as- Education Law section 101 continues the existence of the State Educa- sessment requirements with both Regents examinations in math, and/or an tion Department (SED), with the Board of Regents at its head and the examination in a different course selected from the list of Department ap- Commissioner of Education as the chief administrative officer, and proved alternatives in math. The proposed amendment would also clarify charges SED with the general management and supervision of public the requirements for students electing to meet the diploma requirements schools and the educational work of the State. with a science pathway. They also would have to pass a total of 8 examina- Education Law section 207 empowers the Regents and the Commis- tions, and if electing a science pathway, would have to pass a total of 3 sioner to adopt rules and regulations to carry out laws regarding education science assessments rather than the previously required 2 science and the functions and duties conferred on SED by law. assessments. Education Law section 208 authorizes the Regents to establish examina- The pathway options in humanities adopted by the Board in January tions as to attainments in learning and to award and confer suitable certifi- provide only for additional assessments in social studies to meet the cates, diplomas and degrees on persons who satisfactorily meet the humanities requirement. The proposed amendment would allow a student requirements prescribed. to meet the humanities pathway requirement by passing either an ad- Education Law section 209 authorizes the Regents to establish second- ditional Regents assessment or Department approved alternative in a dif- ary school examinations in studies furnishing a suitable standard of gradu- ferent course in Social Studies or in English. ation and of admission to colleges; to confer certificates or diplomas on 4. COSTS:

28 NYS Register/April 1, 2015 Rule Making Activities

(a) Costs to State government: none. designation by students who elect to meet the requirements for a Regents (b) Costs to local government: none. diploma through the mathematics or science pathway options; and (c) Costs to private regulated parties: none. provides options for students who wish to pursue a pathway in the humani- (d) Costs to regulating agency for implementation and continued ties, by allowing students to earn a Regents diploma through the humani- administration of this rule: none. ties pathway by passing an additional Regents assessment, or a Depart- The proposed amendment does not impose any additional costs on the ment approved alternative, in a different course in either Social Studies or State, school districts, charter schools or SED. The amendment clarifies in English. the requirements for earning a Regents Diploma with advanced designa- Currently, students who wish to earn a Regents diploma with advanced tion by students who elect to meet the requirements for a Regents diploma designation must meet the Regents diploma requirements (5 assessments) through the mathematics or science pathway options; and provides options and pass 2 additional mathematics Regents exams and 1 additional science for students who wish to pursue a pathway in the humanities, by allowing Regents exam for a total of 8 exams. In light of the new pathways options, students to earn a Regents diploma through the humanities pathway by students who elect to meet the Regents diploma requirements using a passing an additional Regents assessment, or a Department approved mathematics pathway, would not be able to meet the advanced diploma alternative, in a different course in either Social Studies or in English. requirements because the Department does not offer enough mathematics 5. LOCAL GOVERNMENT MANDATES: Regents exams for 2 additional tests to be completed. The proposed The proposed amendment does not impose any additional program, ser- amendment would allow students to meet the additional mathematics as- vice, duty or responsibility upon local governments. The amendment clari- sessment requirements with both Regents examinations in math, and/or an fies the requirements for earning a Regents Diploma with advanced examination in a different course selected from the list of department ap- designation by students who elect to meet the requirements for a Regents proved alternatives in math. The proposed amendment would also clarify diploma through the mathematics or science pathway options; and the requirements for students electing to meet the diploma requirements provides options for students who wish to pursue a pathway in the humani- with a science pathway. They also would have to pass a total of 8 examina- ties, by allowing students to earn a Regents diploma through the humani- tions, and if electing a science pathway, would have to pass a total of 3 ties pathway by passing an additional Regents assessment, or a Depart- science assessments rather than the previously required 2 science ment approved alternative, in a different course in either Social Studies or assessments. in English. The pathway options in humanities adopted by the Board in January 6. PAPERWORK: provide only for additional assessments in social studies to meet the The amendment does not impose any specific additional recordkeeping, humanities requirement. The proposed amendment would allow a student reporting or other paperwork requirements. to meet the humanities pathway requirement by passing either an ad- 7. DUPLICATION: ditional Regents assessment or Department approved alternative in a dif- The amendment does not duplicate existing State or federal ferent course in Social Studies or in English. requirements. 3. PROFESSIONAL SERVICES: 8. ALTERNATIVES: The proposed amendment does not impose any additional professional There are no significant alternatives to the rule and none were services requirements. considered. The amendment clarifies the requirements for earning a 4. COMPLIANCE COSTS: Regents Diploma with advanced designation by students who elect to The proposed amendment does not impose any additional costs on meet the requirements for a Regents diploma through the mathematics or school districts or charter schools. The amendment clarifies the require- science pathway options; and provides options for students who wish to ments for earning a Regents Diploma with advanced designation by pursue a pathway in the humanities, by allowing students to earn a Regents students who elect to meet the requirements for a Regents diploma through diploma through the humanities pathway by passing an additional Regents the mathematics or science pathway options; and provides options for assessment, or a Department approved alternative, in a different course in students who wish to pursue a pathway in the humanities, by allowing either Social Studies or in English. students to earn a Regents diploma through the humanities pathway by 9. FEDERAL STANDARDS: passing an additional Regents assessment, or a Department approved There are no related federal standards. alternative, in a different course in either Social Studies or in English. 10. COMPLIANCE SCHEDULE: 5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY: It is anticipated regulated parties will be able to achieve compliance The proposed amendment does not impose any new technological with the rule by its effective date. requirements or costs on school districts or charter schools. Regulatory Flexibility Analysis 6. MINIMIZING ADVERSE IMPACT: Small Businesses: The proposed amendment does not impose any additional compliance The proposed amendment implements Regents policy to establish requirements or costs on school districts or charter schools. The amend- criteria for multiple, comparably rigorous assessment pathways for high ment clarifies the requirements for earning a Regents Diploma with school graduation and college and career readiness, including pathways advanced designation by students who elect to meet the requirements for a that utilize career-focused integrated course and programs. Specifically, Regents diploma through the mathematics or science pathway options; the amendment clarifies the requirements for earning a Regents Diploma and provides options for students who wish to pursue a pathway in the with advanced designation by students who elect to meet the requirements humanities, by allowing students to earn a Regents diploma through the for a Regents diploma through the mathematics or science pathway op- humanities pathway by passing an additional Regents assessment, or a tions; and provides options for students who wish to pursue a pathway in Department approved alternative, in a different course in either Social the humanities, by allowing students to earn a Regents diploma through Studies or in English. the humanities pathway by passing an additional Regents assessment, or a 7. LOCAL GOVERNMENT PARTICIPATION: Department approved alternative, in a different course in either Social Copies of the rule have been provided to District Superintendents with Studies or in English. the request that they distribute them to school districts within their The proposed amendment relates to State learning standards, State as- supervisory districts for review and comment. Copies were also provided sessments, graduation and diploma requirements and higher levels of for review and comment to the chief school officers of the five big city student achievement, and does not impose any adverse economic impact, school districts and to charter schools. reporting, record keeping or any other compliance requirements on small 8. INITIAL REVIEW OF RULE (SAPA § 207): businesses. Because it is evident from the nature of the proposed amend- Pursuant to State Administrative Procedure Act section 207(1)(b), the ment that it does not affect small businesses, no further measures were State Education Department proposes that the initial review of this rule needed to ascertain that fact and none were taken. Accordingly, a regula- shall occur in the fifth calendar year after the year in which the rule is tory flexibility analysis for small businesses is not required and one has adopted, instead of in the third calendar year. The justification for a five not been prepared. year review period is that the proposed amendment is necessary to imple- Local Governments: ment long-range Regents policy to establish criteria for multiple, compara- 1. EFFECT OF RULE: bly rigorous assessment pathways for high school graduation and college The proposed amendment applies to each of the 689 public school and career readiness, including pathways that utilize career-focused districts in the State, and to charter schools that are authorized to issue integrated course and programs. The 4+1 pathway option would apply Regents diplomas with respect to State assessments and high school gradu- beginning with students who first enter grade nine in September 2011 and ation and diploma requirements. At present, there are 34 charter schools thereafter, or who are otherwise eligible to receive a high school diploma authorized to issue Regents diplomas. in June 2015 or thereafter. Accordingly, there is no need for a shorter 2. COMPLIANCE REQUIREMENTS: review period. The proposed amendment does not impose any additional compliance The Department invites public comment on the proposed five year requirements on school districts and charter schools. The amendment clari- review period for this rule. Comments should be sent to the agency contact fies the requirements for earning a Regents Diploma with advanced listed in item 16. of the Notice of Emergency Adoption and Proposed Rule

29 Rule Making Activities NYS Register/April 1, 2015

Making published herewith, and must be received within 45 days of the State Education Department proposes that the initial review of this rule State Register publication date of the Notice. shall occur in the fifth calendar year after the year in which the rule is Rural Area Flexibility Analysis adopted, instead of in the third calendar year. The justification for a five 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: year review period is that the proposed amendment is necessary to imple- The proposed amendment applies to each of the 689 public school ment long-range Regents policy to establish criteria for multiple, compara- districts in the State, including those located in the 44 rural counties with bly rigorous assessment pathways for high school graduation and college less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. The proposed amend- and career readiness, including pathways that utilize career-focused ment also applies to charter schools in such areas, to the extent they offer integrated course and programs. The 4+1 pathway option would apply instruction in the high school grades and issue Regents diplomas. At pres- beginning with students who first enter grade nine in September 2011 and ent, there is one charter school located in a rural area that is authorized to thereafter, or who are otherwise eligible to receive a high school diploma issue Regents diplomas. in June 2015 or thereafter. Accordingly, there is no need for a shorter 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE review period. REQUIREMENTS; AND PROFESSIONAL SERVICES: The Department invites public comment on the proposed five year The proposed amendment does not impose any additional compliance review period for this rule. Comments should be sent to the agency contact requirements on school districts and charter schools that are located in ru- listed in item 16. of the Notice of Emergency Adoption and Proposed Rule ral areas. The amendment clarifies the requirements for earning a Regents Making published herewith, and must be received within 45 days of the Diploma with advanced designation by students who elect to meet the State Register publication date of the Notice. requirements for a Regents diploma through the mathematics or science pathway options; and provides options for students who wish to pursue a Job Impact Statement pathway in the humanities, by allowing students to earn a Regents di- The proposed amendment implements Regents policy to establish ploma through the humanities pathway by passing an additional Regents criteria for multiple, comparably rigorous assessment pathways for gradu- assessment, or a Department approved alternative, in a different course in ation and college and career readiness, including pathways that utilize either Social Studies or in English. career-focused integrated course and programs. Specifically, the amend- Currently, students who wish to earn a Regents diploma with advanced ment clarifies the requirements for earning a Regents Diploma with designation must meet the Regents diploma requirements (5 assessments) advanced designation by students who elect to meet the requirements for a and pass 2 additional mathematics Regents exams and 1 additional science Regents diploma through the mathematics or science pathway options; Regents exam for a total of 8 exams. In light of the new pathways options, and provides options for students who wish to pursue a pathway in the students who elect to meet the Regents diploma requirements using a humanities, by allowing students to earn a Regents diploma through the mathematics pathway, would not be able to meet the advanced diploma humanities pathway by passing an additional Regents assessment, or a requirements because the Department does not offer enough mathematics Department approved alternative, in a different course in either Social Regents exams for 2 additional tests to be completed. The proposed Studies or in English. amendment would allow students to meet the additional mathematics as- The proposed amendment relates to State learning standards, State assessment requirements with both Regents examinations in math, and/or an examination in a different course selected from the list of department ap- sessments, graduation and diploma requirements, and higher levels of proved alternatives in math. The proposed amendment would also clarify student achievement, and will not have an adverse impact on jobs or the requirements for students electing to meet the diploma requirements employment opportunities. Because it is evident from the nature of the with a science pathway. They also would have to pass a total of 8 examina- amendment that it will have a positive impact, or no impact, on jobs or tions, and if electing a science pathway, would have to pass a total of 3 employment opportunities, no further steps were needed to ascertain those science assessments rather than the previously required 2 science facts and none were taken. Accordingly, a job impact statement is not assessments. required and one has not been prepared. The pathway options in humanities adopted by the Board in January provide only for additional assessments in social studies to meet the NOTICE OF ADOPTION humanities requirement. The proposed amendment would allow a student to meet the humanities pathway requirement by passing either an ad- Local High School Equivalency Diplomas Based Upon ditional Regents assessment or Department approved alternative in a dif- Experimental Programs ferent course in Social Studies or in English. 3. COMPLIANCE COSTS: I.D. No. EDU-52-14-00012-A The proposed amendment does not impose any additional costs on Filing No. 174 school districts or charter schools that are located in rural areas. The amendment clarifies the requirements for earning a Regents Diploma with Filing Date: 2015-03-17 advanced designation by students who elect to meet the requirements for a Effective Date: 2015-04-01 Regents diploma through the mathematics or science pathway options; and provides options for students who wish to pursue a pathway in the humanities, by allowing students to earn a Regents diploma through the PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- humanities pathway by passing an additional Regents assessment, or a cedure Act, NOTICE is hereby given of the following action: Department approved alternative, in a different course in either Social Action taken: Amendment of section 100.8 of Title 8 NYCRR. Studies or in English. Statutory authority: Education Law, sections 101 (not subdivided), 207 4. MINIMIZING ADVERSE IMPACT: (not subdivided), 208 (not subdivided), 209 (not subdivided), 305(1), (2), The proposed amendment does not impose any additional compliance 309 (not subdivided) and 3204(3) requirements or costs on school districts or charter schools that are located in rural areas. The amendment clarifies the requirements for earning a Subject: Local high school equivalency diplomas based upon experimen- Regents Diploma with advanced designation by students who elect to tal programs. meet the requirements for a Regents diploma through the mathematics or Purpose: To extend until 6/30/17 the provision for awarding local high science pathway options; and provides options for students who wish to school equivalency diplomas based upon experimental programs. pursue a pathway in the humanities, by allowing students to earn a Regents Text or summary was published in the December 31, 2014 issue of the diploma through the humanities pathway by passing an additional Regents Register, I.D. No. EDU-52-14-00012-P. assessment, or a Department approved alternative, in a different course in either Social Studies or in English. Final rule as compared with last published rule: No changes. Because the Regents policy upon which the proposed amendment is Text of rule and any required statements and analyses may be obtained based applies to all school districts and BOCES in the State and to charter from: Kirti Goswami, State Education Department, Office of Counsel, schools authorized to issue Regents diplomas, it is not possible to estab- State Education Building Room 148, 89 Washington Ave., Albany, NY lish differing compliance or reporting requirements or timetables or to 12234, (518) 474-6400, email: [email protected] exempt schools in rural areas from coverage by the proposed amendment. Initial Review of Rule 5. RURAL AREA PARTICIPATION: As a rule that requires a RFA, RAFA or JIS, this rule will be initially Comments on the proposed amendment were solicited from the reviewed in the calendar year 2018, which is no later than the 3rd year af- Department's Rural Advisory Committee, whose membership includes school districts located in rural areas. ter the year in which this rule is being adopted. 6. INITIAL REVIEW OF RULE (SAPA § 207): Assessment of Public Comment Pursuant to State Administrative Procedure Act section 207(1)(b), the The agency received no public comment.

30 NYS Register/April 1, 2015 Rule Making Activities

NOTICE OF ADOPTION sional education, experience, examination, limited permit requirements and reiterates the exemptions to the practice of applied behavior analysis Profession of Applied Behavior Analysis set forth in section 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. I.D. No. EDU-52-14-00015-A Final rule as compared with last published rule: Nonsubstantive changes Filing No. 176 were made in sections 79-17.3(c) and 79-18.3(c). Filing Date: 2015-03-17 Text of rule and any required statements and analyses may be obtained from: Kirti Goswami, State Education Department, Office of Counsel, Effective Date: 2015-04-01 State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: [email protected] PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Revised Regulatory Impact Statement cedure Act, NOTICE is hereby given of the following action: Since the publication of a Notice of Emergency Action and Proposed Action taken: Amendment of sections 29.2, 52.44, 52.45, 59.14, Subparts Rule Making in the State Register on December 31, 2014, a nonsubstantial 79-17 and 79-18 of Title 8 NYCRR. revision was made to the proposed regulation, as follows: Statutory authority: Education Law, sections 207(not subdivided), In subdivision (c) of section 79-17.3 and subdivision (c) of section 79- 6503-a, 6504(not subdivided), 6507(2)(a), 6509(9), 8800, 8801, 8802, 18.3, the term “passing score” was replaced with the term “converted pass- 8803, 8804, 8805, 8806, 8807 and 8808; L. 2013, ch. 554; L. 2014, ch. 8 ing score” in order to clarify the text of the proposed regulation. The above nonsubstantial revision does not require any changes to the Subject: Profession of Applied Behavior Analysis. previously published Regulatory Impact Statement. Purpose: To implement chapter 554 of the Laws of 2013 and chapter 8 of Revised Regulatory Flexibility Analysis the Laws of 2014. Since publication of a Notice of Emergency Adoption and Proposed Substance of final rule: At their March 16-17, 2015 meeting, the Board Rule Making in the State Register on December 31, 2014, a nonsubstantial of Regents amended section 29.2 of the Rules of the Board of Regents, revision was made to the proposed regulation as set forth in the Statement added sections 52.44 and 52.45 to the Regulations of the Commissioner of Concerning the Regulatory Impact Statement submitted herewith. Education, amended section 59.14 of the Regulations of the Commis- The above nonsubstantial revision does not require any changes to the sioner of Education, and added Subparts 79-17 and 79-18 to the Regula- previously published Regulatory Flexibility Analysis for Small Businesses tions of the Commissioner of Education, effective April 1, 2015, relating and Local Governments. to the licensure of behavior analysts and certification of behavior analyst Revised Rural Area Flexibility Analysis assistants under Article 167 of the Education Law as added by Chapter Since publication of a Notice of Emergency Adoption and Proposed 554 of the Laws of 2013 and Chapter 8 of the Laws of 2014. Since publi- Rule Making in the State Register on December 31, 2014, a nonsubstantial cation of the Notice of Emergency Adoption and Proposed Rule Making revision was made to the proposed regulation as set forth in the Statement in the State Register on December 31, 2014, non-substantial revisions Concerning the Regulatory Impact Statement submitted herewith. were made to the proposed rule as set forth in the Statement Concerning The above nonsubstantial revision does not require any changes to the the Regulatory Impact Statement filed herewith. The following is a sum- previously published Rural Area Flexibility Analysis. mary of the substance of the revised rule: Subdivisions (a) and (b) of section 29.2 of the Rules of the Board of Revised Job Impact Statement Regents are amended to add the profession of applied behavior analysis to Since publication of a Notice of Emergency Adoption and Proposed the list of health care professions that are subject to its unprofessional Rule Making in the State Register on December 31, 2014, a nonsubstantial conduct provisions. revision was made to the proposed regulation as set forth in the Statement Section 52.44 is added to the Regulations of the Commissioner of Concerning the Regulatory Impact Statement submitted herewith. Education to establish the requirements for licensed behavior analyst The revised proposed rule is necessary to implement Chapter 554 of the education programs. These requirements include registration and curricu- Laws of 2013, which establishes and defines the practice of the new lum requirements for programs offered in New York State that lead to profession of applied behavior analysis and establishes the licensure licensure as a licensed behavior analyst. Section 52.44 further requires requirements for licensed behavior analysts and certified behavior analyst licensed behavior analyst education programs to be a program in applied assistants to provide behavior health treatment for persons with autism, behavior analysis leading to a master’s degree or higher degree, which autism spectrum disorders and related disorders. The revised proposed must require at least one year of full-time study or the equivalent; or a rule is also necessary to implement Chapter 8 of the Laws of 2014 which program in applied behavioral analysis leading to an advanced certificate amended Chapter 554 to make changes necessary to the implementation which ensures that each student holds a master’s or higher degree in of Chapter 554. subject areas, including, but not limited to, psychology, education or other The revised proposed rule will not have a substantial impact on jobs subject areas that address learning and behavioral change as determined and employment opportunities. Because it is evident from the nature of by the Department. the revised proposed rule that it will not affect job and employment op- Section 52.45 is added to the Regulations of the Commissioner of portunities, no affirmative steps were needed to ascertain that fact and Education to establish the requirements for certified behavior analyst as- none were taken. Accordingly, a job impact statement is not required, and sistant education programs. These requirements include registration and one has not been prepared. curriculum requirements for programs offered in New York State that lead Initial Review of Rule to certification as a certified behavior analyst assistant. Section 52.45 fur- As a rule that requires a RFA, RAFA or JIS, this rule will be initially ther requires certified behavior analyst assistant education programs to be reviewed in the calendar year 2020, which is the 4th or 5th year after the a program in applied behavior analysis leading to a bachelor’s or higher year in which this rule is being adopted. This review period, justification degree; or a program in applied behavior analysis leading to a certificate for proposing same, and invitation for public comment thereon, were which ensures that each student holds a bachelor’s degree or a higher contained in a RFA, RAFA or JIS: degree in subject areas, including, but not limited to, psychology, educa- An assessment of public comment on the 4 or 5-year initial review pe- tion or other subject areas that address learning and behavioral change as riod is not attached because no comments were received on the issue. determined by the Department. Assessment of Public Comment Paragraph (1) of subdivision (a) of section 59.14 of the Regulations of Since publication of a Notice of Emergency Adoption and Proposed the Commissioner of Education is amended to implement that portion of Rule Making in the December 31, 2014 State Register, 17 comments were Chapter 554 of the Laws of 2013 which includes applied behavior analysis received. Several responses commended the State Education Department among the professions for which a waiver of certain corporate practice (SED) for quickly establishing the ABA Board and developing proposed restrictions is available. regulations. Support was expressed for the proposed rule’s 1,500 hours of Subpart 79-17 is added to the Regulations of the Commissioner of supervised experience requirement for licensed behavior analysts (LBA) Education to establish the requirements for licensure as a licensed behavior applicants. Concerns expressed were: analyst, which include, but are not limited to, professional education, ex- D Experience requirements may create a barrier to licensure for perience, examination, limited permit requirements and reiterates the individuals who obtained their experience outside of N.Y. and should be exemptions to the practice of applied behavior analysis set forth in section amended to recognize experience obtained under supervisors “certified by 8807 of the Education Law, as added by Chapter 554 of the Laws of 2013 a national entity whose certification is accredited by the National Com- and Chapter 8 of the Laws of 2014. mission for Certifying Agencies” or to allow “equivalent” experience ap- Subpart 79-18 is added to the Regulations of the Commissioner of propriately supervised from other jurisdictions. Education to establish the requirements for certification as a certified DEPARTMENT RESPONSE: SED disagrees. Education Law § 8805 behavior analyst assistant, which include, but are not limited to, profes- provides a grandparenting licensure/certification pathway (Pathway One)

31 Rule Making Activities NYS Register/April 1, 2015 for individuals who are certified or registered by a national certifying vices to this vulnerable population. Section 79-17.2 provides applicants body, submit an attestation of moral character, and apply by January 9, with the option of completing their supervised experience as part of a 2016. Sections 79-17.2(e)(1)(ii) and 79-18.2(e)(1)(i) allow individuals master’s degree program or advanced certificate program. Education Law who gained their experience in states without ABA licensure to use such § 8805 provides Pathway One for those who are certified or registered by experience towards licensure in N.Y. if their supervisor was licensed in a a national certifying body, like BACB, and apply by January 9, 2016. profession (e.g., psychology) that is authorized to provide ABA services Thus, individuals, who are in the process of completing BACB’s super- within its scope of practice in that state. vised experience requirements and obtain their BCBA certification, prior D The rule should be revised to make Behavior Analyst Certification to the expiration of this grandparenting period, can use such certification Board (BACB) certification the main/permanent requirement for licensure/ to apply for licensure. After January 9, 2016, if SED determines there is a certification or match BACB standards to ensure equivalent treatment. barrier to licensure for those already in the process of completing their The proposed rule should not limit licensure to those who provide supervised experience under BACB requirements, it may consider such behavioral health treatment to individuals with autism, autism spectrum experience as satisfying the experience requirements for licensure/ disorders and related disorders but should be extended to those outside the certification. scope of an autism diagnosis. D Section 79-17.2(e)(1)(i)(b), which permits supervision by an autho- DEPARTMENT RESPONSE: Education Law § 8805 recognizes certi- rized health care practitioner, is too broad in scope. BACB’s supervised fication from a national certifying body, like BACB, for licensure purposes experience requirements should be adopted instead. The Department and ABA Board should use their statutory discretion to revise the experience for a limited time. Article 167 of the Education Law (which established requirement to only permit supervision by an LBA or other licensed the ABA profession) does not recognize BACB certification for any other professional whose scope of practice, training and competence include purpose. Pathway One provides for appropriate access to ABA services designing, delivering and overseeing ABA services, rather than merely while appropriate licensing occurs. Article 167 gives the Regents and prescribing or ordering such services. Confusion may arise if the new SED the authority to implement education, experience, supervision, ex- regulations do not reference the BACB and its relationship to N.Y. amination, and moral character requirements for applicants for licensure. DEPARTMENT RESPONSE: Under Education Law § 8807’s exemp- The proposed rule is consistent with the legislative intent. Education Law tions, if ABA services are provided within the scope of practice of a par- §§ 8802(1) and (2) limit the licensure of licensed behavior analysts (LBA) ticular profession, a licensed individual can provide ABA services and and certification of certified behavior analysts assistants (CBBAs) to supervise applicants for licensure without being an LBA or BACB individuals who provide ABA services to individuals with autism, autism certified. The supervisor qualification provisions are consistent with this spectrum disorders and related disorders. Absent a statutory change, the statute. Under §§ 29.1(b)(9) and 29.2(a)(5), it is professional misconduct proposed rule cannot expand the scope of practice to include the provision for a licensed professional to fail to exercise appropriate supervision over of ABA services to individuals who have a diagnosis other than autism, a supervisee. SED may issue guidance if it determines there is confusion autism spectrum disorders and related disorders. SED disagrees that clients in the field or among consumers. of professionals not formally trained in ABA will be at risk because D The rule should be revised to adopt the BACB examination for §§ 29.1(b)(9) and 29.2(a)(5) provide that it is professional misconduct for licensure/certification as there are no other psychometrically and legally a licensed professional to accept and perform professional responsibilities validated exams in the practice of behavioral analysis and it will save the the licensee knows, or has reason to know, he or she is not competent to expense of developing and managing alternative examinations. perform. Education Law § 8807 establishes exemptions to the ABA DEPARTMENT RESPONSE: SED is reviewing its examination op- licensure requirements such that if the provision of ABA services is within tions and will issue a Request for Proposals for the examination which the scope of practice of another profession, the licensed professional can will require a proper job analysis be conducted and the examination be provide those services without ABA licensure or BACB’s certification. properly validated before use. SED does not believe the BACB test cur- D The proposed rule might interfere with graduates’ ability to apply for rently tests all competencies needed for N.Y. licensure. both the BACB designation and licensure in N.Y. as it is inconsistent with D Including a passing score is unnecessary and may restrict the ABA BACB’s standards and rules. Board and SED as they investigate options for examinations. Further study DEPARTMENT RESPONSE: The proposed rule’s educational require- is recommended to develop procedures and criteria for identifying an “ac- ments which require coursework in autism, autism spectrum disorders and ceptable” licensing examination. related disorders, differ from BACB’s educational requirements which DEPARTMENT RESPONSE: Sections 79-17.3(c) and 79-18.3(c) do focus on the general application of ABA. Higher education institutions not establish a passing score. These provisions establish a converted score seeking to offer educational programs leading to licensure as an LBA or of at least 75 as determined by the ABA Board. To address this misunder- certification as a CBAA must be registered under §§ 52.44 and 52.45 of standing, SED made non-substantial revisions in §§ 79-17.3(c) and 79- the regulation. However, nothing precludes them from seeking to have 18.3(c) to replace “passing score” with “converted passing score.” their coursework accepted by BACB or impairs an applicant’s ability to D Under the regulation, after completion of only 150 hours of supervised apply for both the BACB designation and licensure in N.Y. SED provided experience and completion of a degree, the supervisee is eligible to sit for the proposed rule’s education requirements to all higher education institu- the licensing exam, which is in direct conflict with BACB’s requirement tions with ABA programs so they have the information needed to develop that all supervision hours (up to 1,500) be completed prior to sitting for programs that comply with the proposed regulation. the exam. D If the narrow scope of practice of ABA and narrow training require- DEPARTMENT RESPONSE: The statute provides the Regents and ments take effect, fewer students will come to N.Y. for their training; SED with the discretion to permit applicants to sit for the licensure/ limiting the ability of institutions to recruit nationally and internationally certification examination prior to completing all of the supervised experi- and exacerbating the shortage of these professionals. ence requirements. This is consistent with other professions (e.g., psychol- DEPARTMENT RESPONSE: SED disagrees, finding that approxi- ogy and mental health) and SED is unaware of any issues. mately 50 college and university programs provide degrees, certificates D The limited permit provisions of § 79-17.4 are in direct conflict with and courses in ABA. All would be eligible to be registered as licensure- the international standard of practice in which persons who have not qualifying. Other than this commenter, no programs have expressed passed the BACB exam cannot use the titles LBA or CBAA. concern that their graduates may leave N.Y. to practice elsewhere. DEPARTMENT RESPONSE: Limited permits to practice are autho- D There will be confusion among practitioners and consumers if an rized by Education Law § 8806 and individuals are subject to supervision acknowledgement is not made of behavior analysts working with popula- under § 79-17.2. Section 79-17.2(c)(3) provides that the setting must tions other “persons with autism and autism spectrum disorders.” provide titles which clearly indicate unlicensed individuals’ training status DEPARTMENT RESPONSE: SED may issue guidance if this needs to under Education Law § 8807(4). Thus, applicants with limited permits be clarified in the future. will not be using the title LBA or CBAA while gaining experience. These D The proposed rule’s two hours of weekly supervision would create a provisions are similar to the limited permit provisions in other profes- barrier to licensure by increasing time, workload and financial commit- sions, including psychology. ments on the part of agencies, supervisors, and applicant for licensure. D Sections 52.44(a) and 52.45(a), which establish college and university SED should accept BACB supervision requirements or permit a grandpar- program registration requirements for programs leading to licensure, enting period to allow individuals already in the process of obtaining should be changed to make them consistent and clear that the subject areas supervised experience to complete BACB supervision requirements include education and psychology. instead. DEPARTMENT RESPONSE: These provisions are intended to estab- DEPARTMENT RESPONSE: BACB’s supervision requirement for a lish the curricular requirements solely for the registration of programs in BCBA is 5% of the total hours spent in supervised experience (i.e., 40 Applied Behavior Analysis. Under §§ 79-17.1(b)(2) and 79-18.1(b)(2), hours of experience would require two hours of supervision). The individuals who complete registered programs in the professions of proposed rule’s requirement of two hours of supervision would equate to psychology or education could seek licensure/certification in the profes- 5% for those completing 40 hours of experience. Applicants should bene- sion of ABA and meet the education requirements for such licensure/ fit from intensive supervised experience to provide the best possible ser- certification.

32 NYS Register/April 1, 2015 Rule Making Activities

D The time for colleges and universities to register programs should be NOTICE OF ADOPTION extended one additional year, from September 1, 2019 to September 1, 2020, to allow sufficient time to develop program requirements and allow Epinephrine Auto-Injectors for SED approval. SED should consider grandfathering programs at N.Y. colleges and universities containing course sequences that have been ap- I.D. No. EDU-01-15-00011-A proved by BACB and, in states that do not have licensure of LBAs or Filing No. 175 CBAAs, recognize college or university programs already approved by Filing Date: 2015-03-17 BACB. SED and the ABA Board could allow those programs containing Effective Date: 2015-04-01 course sequences currently approved by BACB to be considered automatically registered by SED. The proposed regulations appear to permit education requirements to be met by colleges and universities in other states PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- only for programs leading to licensure. cedure Act, NOTICE is hereby given of the following action: DEPARTMENT RESPONSE: SED’s Office of Comparative Education Action taken: Addition of section 136.6 to Title 8 NYCRR. and Office of Professional Education Program Review and several Statutory authority: Education Law, sections 207(not subdivided), 305(1), universities have advised that the deadline is achievable, however, SED (2), 921(1) and (2); L. 2014, ch. 424 may consider extending it, if necessary. It is not accurate to say that the Subject: Epinephrine auto-injectors. proposed regulations permit education requirements to be met by ap- Purpose: Prescribe standards for provision, maintenance, and administra- plicants from colleges and universities in other states only for programs tion of epinephrine auto-injectors in the event of an emergency. leading to licensure. Under the rule, applicants who have completed a Text or summary was published in the January 7, 2015 issue of the Regis- master’s degree or advanced certificate programs in ABA in all jurisdic- ter, I.D. No. EDU-01-15-00011-P. tions that include curricular content required for licensure/certification in N.Y. may have this education accepted to meet the education require- Final rule as compared with last published rule: No changes. ments for licensure. Applicants would be able to remedy deficiencies and Text of rule and any required statements and analyses may be obtained would need to take coursework not required for BCBA certification in from: Kirti Goswami, State Education Department, Office of Counsel, autism, autism spectrum disorders and related disorders. State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: [email protected] D SED should support a legislative extension of Pathway One to September 1, 2020. Initial Review of Rule DEPARTMENT RESPONSE: This is unnecessary as 738 LBAs are As a rule that requires a RFA, RAFA or JIS, this rule will be initially currently licensed and there should be enough LBAs to provide services reviewed in the calendar year 2020, which is the 4th or 5th year after the by the time Pathway One expires. year in which this rule is being adopted. This review period, justification for proposing same, and invitation for public comment thereon, were NOTICE OF ADOPTION contained in a RFA, RAFA or JIS: An assessment of public comment on the 4 or 5-year initial review period is not attached because no comments were received on the issue. Certification Requirements for Teaching Assistants Assessment of Public Comment I.D. No. EDU-52-14-00028-A Since publication of a Notice of Proposed Rule Making in the State Filing No. 178 Register on January 7, 2015, the State Education Department received the following comments: Filing Date: 2015-03-17 1. COMMENT: Effective Date: 2015-04-01 Mandating a specific training program before permitting someone from administering emergency medication, WILL have a monetary effect on districts because it will mean that school functions, sports and trips will PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- require a trained person (of which there will be very few voluntarily cedure Act, NOTICE is hereby given of the following action: trained people for at least the early years of this ruling) meaning that Action taken: Amendment of sections 80-1.1 and 80-5.6 of Title 8 districts will need to send a nurse to fill the training requirement, and not NYCRR. the willing parent or trained volunteer as is now allowed. Statutory authority: Education Law, sections 207(not subdivided), 305(1), DEPARTMENT RESPONSE: Pursuant to the statute, this regulation is merely permissive and now al- (2), 3001(2), 3004(1), 3006(1)(b) and 3009(1) lows school districts, board of cooperative educational services, county Subject: Certification requirements for teaching assistants. vocational education and extension boards, charter schools, and non-public Purpose: To provide extensions in one year increments on the validity of elementary and secondary schools to provide and maintain on-site in each a Level II teaching assistant certificate for candidates pursuing citizenship. instructional school facility epinephrine auto-injectors for use during It also defines “school year” for the purposes of calculating experience to emergencies in accordance with Public Health Law section 3000-c. If a meet the certification requirements for a Level I, II or III teaching assis- school chooses to participate and provides epinephrine pursuant to a col- tant certificate. It further provides a technical amendment to eliminate the laborative agreement for use during emergencies, the regulation, in con- words “without fee” in the definition of internship certificate in order to be formance with the statute, requires that personnel be properly trained by consistent with other regulations which require a fee for an internship completing a course approved by the Department of Health prior to administration in an emergency situation. The proposed training course certificate. will be available online at no cost to schools for those who choose to Text or summary was published in the December 31, 2014 issue of the provide and maintain epinephrine auto-injectors on-site in instructional Register, I.D. No. EDU-52-14-00028-P. school facilities. Final rule as compared with last published rule: No changes. 2. COMMENT: Text of rule and any required statements and analyses may be obtained The proposed rule will require that many individuals be trained for diverse situations. For example, a physical education teacher may be trained from: Kirti Goswami, State Education Department, Office of Counsel, because he is a coach, but he will not be accompanying a group on a social State Education Building, Room 148, 89 Washington Ave., Albany, NY studies field trip. The social studies trip will then require another person to 12234, (518) 474-6400, email: [email protected] be trained. Schools will probably end up not having field trips in order to Initial Review of Rule comply. It is also possible that students will not mention their allergic As a rule that requires a RFA, RAFA or JIS, this rule will be initially condition if they feel they could be disqualified from attending an event or reviewed in the calendar year 2020, which is the 4th or 5th year after the preventing their classmates from doing so. This could have devastating year in which this rule is being adopted. This review period, justification consequences. for proposing same, and invitation for public comment thereon, were DEPARTMENT RESPONSE: contained in a RFA, RAFA or JIS: Both the statute and regulation govern the provision of epinephrine An assessment of public comment on the 4 or 5-year initial review pe- auto-injectors on-site in instructional school facilities. Instructional school riod is not attached because no comments were received on the issue. facility is defined by the regulation to only include those buildings or other facilities maintained by a school district, board of cooperative Assessment of Public Comment educational services, a county vocational education and extension board, The agency received no public comment. charter school, or non-public elementary and secondary school where

33 Rule Making Activities NYS Register/April 1, 2015 instruction is provided to students pursuant to its curriculum. Therefore, (2) On or after July 1, 2018, candidates seeking a certificate the situations described above would not be impacted by this rule allowing for teaching English to speakers of other languages, the candidate shall for the provision of epinephrine auto-injectors. Additionally the current have completed six semester hours of coursework in methods of second State Education Department policy that permits certain licensed health language teaching in the elementary and secondary grades and six semes- professionals to train an unlicensed person to administer epinephrine via ter hours in teaching literacy skills, as prescribed in the pedagogical core auto-injector to a student with a health care provider order for such, will for the initial certificate in this certificate title, set forth in section 80-3.7 continue to be permitted. of this part. Text of proposed rule and any required statements and analyses may be PROPOSED RULE MAKING obtained from: Kirti Goswami, State Education Department, Office of NO HEARING(S) SCHEDULED Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: [email protected] Supplementary Teaching Certificates in Bilingual Education and Data, views or arguments may be submitted to: Peg Rivers, State Educa- English to Speakers of Other Languages (ESOL) tion Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: I.D. No. EDU-13-15-00021-P [email protected] Public comment will be received until: 45 days after publication of this PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- notice. cedure Act, NOTICE is hereby given of the following proposed rule: This rule was not under consideration at the time this agency submitted Proposed Action: Amendment of sections 80-4.3 and 80-5.18 of Title 8 its Regulatory Agenda for publication in the Register. NYCRR. Regulatory Impact Statement Statutory authority: Education Law, sections 207 (not subdivided), STATUTORY AUTHORITY: 305(1), (2), 3001(2), 3004(1), 3006(1)(b) and 3009(1) Education Law section 207 empowers the Board of Regents and the Subject: Supplementary Teaching Certificates in Bilingual Education and Commissioner of Education to adopt rules and regulations to carry out the English to Speakers of Other Languages (ESOL). laws of the State regarding education and the functions and duties Purpose: To provide additional pathways for teacher certification conferred on the State Education Department by law. candidates to obtain supplementary bilingual education extension and the Education Law section 305(1) and (2) provide that the Commissioner, ESOL supplementary certificate, for a three year period to conclude on as chief executive officer of the State system of education and of the Board June 30, 2018. of Regents, shall have general supervision over all schools and institutions Text of proposed rule: subject to the provisions of the Education Law, or of any statute relating to 1. Clause (c) of subparagraph (iii) of paragraph (4) of subdivision (a) of education, and shall execute all educational policies determined by the section 80-4.3 of the Regulations of the Commissioner of Education is Board of Regents. amended, effective July 1, 2015, to read as follows: Education Law section 3001(2) establishes certification by the State (c) [The] (1) Except as otherwise provided in this clause, the Education Department as a qualification to teach in the State's public candidate shall be matriculated in a registered program leading to a bilin- schools. gual extension of a certificate as a teacher in the classroom teaching ser- Education Law section 3004(1) authorizes the Commissioner to pre- vice, as prescribed in section 52.21(b)(4) of the Title, provided that such scribe, subject to the approval of the Regents, regulations governing the program must require the candidate to pass an assessment of proficiency examination and certification of teachers employed in the State's public in the language of the bilingual education extension sought as a condition schools. for entry into the program. Education Law section 3006(1)(b) provides that the Commissioner may (2) Candidates seeking a bilingual extension of a certificate issue any certificates that the Regents prescribe. as a teacher in the classroom teaching service during the time period of Education Law section 3009(1) provides that no part of the school July 1, 2015 through June 30, 2018, may: (i) submit evidence of having moneys apportioned to a district shall be applied to the payment of the sal- achieved a satisfactory level of performance on the New York State ary of an unqualified teacher, nor shall his salary or part thereof, be col- Teacher Certification Examination bilingual extension assessment, or (ii) lected by a district tax except as provided in the Education Law. submit evidence of having at least two years of satisfactory bilingual LEGISLATIVE OBJECTIVES: teaching experience, in lieu of being matriculated in a registered program The proposed amendment is consistent with the above statutory author- leading to a bilingual extension of a certificate as a teacher in the ity in that it will provide additional pathways to obtain the supplementary classroom teaching service as otherwise required by this clause. bilingual education extension and the English to Speakers of Other Lan- 2. Subclause (1) of clause (d) of subparagraph (4) of subdivision (a) of guages (ESOL) supplementary certificate for a limited period and thereby section 80-4.3 of the Regulations of the Commissioner of Education is ensure that there are sufficient numbers of certified ESOL teachers and amended, effective July 1, 2015, to read as follows: certified content area teachers with bilingual education extensions to meet (1) The candidate shall have completed three semester hours the educational needs of students who are English Language Learners pur- in bilingual education as prescribed in the requirements for a bilingual suant to Commissioner’s Regulations Part 154. extension, set forth in this section, including study in theories of bilingual NEEDS AND BENEFITS: education and multicultural perspectives, provided however, that on and Over the past 10 years, New York State ELL student enrollment has after July 1, 2015 until June 30, 2018, candidates who submit evidence of increased by 20 percent. According to the U.S. Department of Education, having achieved a satisfactory level of performance on the New York State ELL student enrollment has increased by 18 percent nationally. Currently Teacher Certification Examination bilingual extension assessment, as in the State, over 230,000 ELLs make up 8.9 percent of the total public provided for in clause (c) of this subparagraph, may meet this coursework student population. Students in the State speak over 140 languages, with requirement by submitting evidence of being enrolled in a course 61.5 percent of ELL students having Spanish as their home language. In satisfactorily meeting the requirements of this subclause, and further addition, 41.2 percent of ELL students were born outside of the United provided that the coursework requirement shall not be applicable to States. candidates who have submitted evidence of having at least two years of In the landmark 1974 decision, Lau v. Nichols, the United States satisfactory bilingual teaching experience and having achieved a satisfac- Supreme Court established the right of ELL students to have “a meaning- tory level of performance on the New York State Teacher Certification Ex- ful opportunity to participate in the educational program.” That same year, amination bilingual extension assessment, as provided for in clause (c) of an agreement between the New York City Board of Education and this subparagraph. ASPIRA of New York (called the ASPIRA Consent Decree) assured that 3. Clause (f) of subparagraph (ii) of paragraph (4) of subdivision (c) of ELL students would be provided bilingual education. As such, ELL section 80-5.18 of the Regulations of the Commissioner of Education is students must be provided with equal access to all school programs and amended, effective July 1, 2015, to read as follows: services offered to non-ELL students, including access to programs (f) [For] (1) For candidates seeking a certificate for teaching required for graduation. Education Law § 3204 and Commissioner’s English to speakers of other languages on and after July 1, 2015 until Regulations Part 154 contain standards for educational services provided June 30, 2018, the candidate may meet the requirements of this clause by to ELL students in the State. either: At its September 2014 meeting, the Board of Regents adopted a number (i) completing, or being enrolled in, a course leading to of changes to Commissioner’s Regulations Part 154, including the addi- three semester hours in methods of second language teaching in the tion of a Section 154-2 which establishes standards for English language elementary and secondary grades; or learner (“ELL”) programs beginning with the 2015-2016 school year in (ii) by submitting evidence of at least two years of satisfac- school districts and BOCES to assure that such students are provided op- tory experience teaching English to speakers of other languages portunities to achieve the same educational goals and standards that have

34 NYS Register/April 1, 2015 Rule Making Activities been established by the Board of Regents for all students. In order to meet June 30, 2018. If an extension of the time period for these changes the requirements of this regulation, some districts and BOCES may need becomes necessary, the Department will make a subsequent recommenda- to hire additional certified ESOL teachers and certified content area teach- tion to the Board to extend the availability of these pathways prior to ers with bilingual education extensions. expiration of these changes. School districts have expressed concern that they will not be able find COSTS: teachers that hold ESOL certification or teachers with Bilingual Education (a) Costs to State government: The amendment will not impose any ad- Extensions due to a shortage in these certificate titles. ditional costs on State government including the State Education Teachers with ESOL certification are certified to teach English to Department. The Department will use existing staff and resources to pro- students who speak languages other than English as their first language. cess applications for supplementary bilingual education extensions and Teachers who have a supplemental bilingual education extension are the ESOL supplementary certificates. teachers certified in a specific content area who have separately demon- (b) Costs to local government: The amendment will not impose any strated an ability to speak, read and write in a particular foreign language direct costs on local governments, including school districts and BOCES. sufficient to teach that specific content area to English language learners. (c) Cost to private regulated parties. The proposed amendment will not Commissioner’s Regulations section 80-4.3 currently allows certified impose costs on private regulated parties, over and above existing costs teachers in the classroom teaching service to obtain a supplementary bilin- for a supplementary bilingual education extension and/or a supplementary gual education extension to authorize such teachers to teach bilingual ELL certificate in ESOL. students where there is a demonstrated shortage while the teacher is (d) Costs to regulating agency for implementation and continued matriculated in a program at an institution of higher education leading to administration of this rule: As stated above in ‘‘Costs to State Govern- an extension in bilingual education. The supplementary bilingual educa- ment,’’ the amendment will not impose any additional costs on the State tion extension currently requires demonstrated Languages Other Than En- Education Department. glish (LOTE) proficiency and three semester hours of coursework in bilin- LOCAL GOVERNMENT MANDATES: gual education, including study in theories of bilingual education and The proposed amendment does not impose any program, service, duty multicultural perspectives. or responsibility on school districts beyond those already imposed by State Commissioner’s Regulations section 80-5.18 currently allows a certi- law or regulation. The proposed amendment provides additional pathways fied teacher in the classroom teaching service to obtain a supplementary for candidates to obtain the supplementary bilingual education extension certificate in English as a Second Language to allow these teachers to and the ESOL supplementary certificate, for a three year period to teach English to speakers of other languages while meeting the require- conclude on June 30, 2018. ments for the Initial or Professional ESOL certificate. Currently, a supple- PAPERWORK: mentary certificate in ESOL requires six semester hours of content in the 1. With respect to the supplementary bilingual education extension: area of the certificate title and six hours in literacy. The supplementary A candidate choosing to proceed under Pathway I, who has completed certificate is valid for three years as long as the teacher holds a valid per- or is currently enrolled in a course leading to three semester hours in bilin- manent, initial or professional certificate. gual education, including study in theories of bilingual education and Both the supplementary bilingual education extension and the supple- multicultural perspectives, shall submit evidence of having achieved a sat- mentary ESOL certificate require a certification signed by the superinten- isfactory level of performance on a bilingual extension assessment in lieu dent, attesting to the fact that there is a demonstrated shortage of such cer- of the current requirement to be matriculated in a registered preparation tified teachers. In addition, the school district or BOCES will provide program. appropriate support to the candidate to ensure the maintenance of quality A candidate choosing to proceed under Pathway II shall submit evi- instruction for students, and the district will require the teacher to be dence of having two years of satisfactory bilingual teaching experience enrolled in study at an institution of higher education leading to the Initial and evidence of a satisfactory level of performance on the bilingual exten- of Professional certificate. sion assessment in lieu of the current requirement to be matriculated in a The Department is recommending changes, to be effective for a three registered preparation program. year period, from July 1, 2015 until June 30, 2018, to the supplementary 2. With respect to the ESOL supplementary certificate: bilingual education extension and the ESOL supplementary certificate to A candidate choosing to proceed under Pathway I, who has achieved a allow more teachers to be eligible for these certificates. This will assist satisfactory level of performance on the ESOL CST, and who has school districts and BOCES in finding certified ESOL teachers and bilin- completed, or is currently enrolled in, a course leading to three semester gual teachers to instruct these students. hours in methods of second language teaching in the elementary and sec- With respect to the supplementary bilingual education extension, the ondary grades will be eligible for the ESOL supplementary certificate. proposed amendment presents two additional pathways in lieu of matricu- The candidate would have three years to complete the balance of the cur- lation in a registered program to the Board for its consideration. rently required coursework, which includes three additional semester Pathway I allows a candidate who has completed, or is currently hours in methods of second language teaching in the elementary and sec- enrolled in, a course leading to three semester hours in bilingual educa- ondary grades, and six semester hours of coursework in teaching literacy tion, including study in theories of bilingual education and multicultural skills. perspectives, to submit evidence of having achieved a satisfactory level of A candidate choosing to proceed under Pathway II, who has achieved a performance on a bilingual extension assessment in lieu of the current satisfactory level of performance on the ESOL CST, shall submit evi- requirement to be matriculated in a registered preparation program. dence of having two years of satisfactory experience teaching English to Pathway II allows a candidate to submit evidence of having two years speakers of other languages in lieu of the coursework requirements in of satisfactory bilingual teaching experience and evidence of a satisfactory methods of second language teaching in the elementary and secondary level of performance on the bilingual extension assessment in lieu of the grades, and in teaching literacy skills. The candidate would have three current requirement to be matriculated in a registered preparation program. years to complete the balance of the currently required coursework. With respect to the ESOL supplementary certificate, the proposed DUPLICATION: amendment presents two additional pathways. The proposed amendment does not duplicate existing State or federal Pathway I allows a candidate who has achieved a satisfactory level of requirements. performance on the ESOL CST, and who has completed, or is currently ALTERNATIVES: enrolled in, a course leading to three semester hours in methods of second No significant alternatives were considered. language teaching in the elementary and secondary grades to be eligible FEDERAL STANDARDS: for the ESOL supplementary certificate. The candidate would have three There are no Federal standards that address the certification require- years to complete the balance of the currently required coursework, which ments for teaching assistants in New York. includes three additional semester hours in methods of second language COMPLIANCE SCHEDULE: teaching in the elementary and secondary grades, and six semester hours It is anticipated that parties will be able to achieve compliance with the of coursework in teaching literacy skills. rule by its effective date. Pathway II allows a candidate who has achieved a satisfactory level of Regulatory Flexibility Analysis performance on the ESOL CST to submit evidence of having two years of satisfactory experience teaching English to speakers of other languages in The purpose of the proposed amendment is to provide additional pathways lieu of the coursework requirements in methods of second language teach- for teacher certification candidates to obtain the supplementary bilingual ing in the elementary and secondary grades, and in teaching literacy skills. education extension and the ESOL supplementary certificate, for a three The candidate would have three years to complete the balance of the cur- year period to conclude on June 30, 2018. The proposed amendment is ap- rently required coursework, as outlined above. plicable to certain specified candidates for teacher certification and does The Department is recommending that these additional pathways for not impose any reporting, recordkeeping or other compliance require- the supplementary bilingual education extension and the ESOL supple- ments on small businesses or local governments, and will not have an mentary certificate be available for a three year period, to conclude on adverse economic impact, on small businesses. Because it is evident from

35 Rule Making Activities NYS Register/April 1, 2015 the nature of the rule that it does not affect small businesses or local and the English to Speakers of Other Languages (ESOL) supplementary governments, no further steps were needed to ascertain that fact and one certificate, for a three year period to conclude on June 30, 2018, and were taken. Accordingly, a regulatory flexibility analysis for small busi- thereby ensure that there are sufficient numbers of certified ESOL teach- nesses and local governments is not required and one has not been ers and certified content area teachers with bilingual education extensions prepared. to meet the educational needs of students who are English Language Rural Area Flexibility Analysis Learners pursuant to Part 154 of the Commissioner’s Regulations. Because 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: it is evident from the nature of the proposed amendment that it will have The proposed amendment will affect all teacher certification candidates no impact on the number of jobs or employment opportunities in New throughout the State who are seeking either a supplementary bilingual York State, no further steps were needed to ascertain that fact and none education extension or an English to Speakers of Other Languages (ESOL) supplementary certificate, including those candidates located in the 44 ru- were taken. Accordingly, a job impact statement is not required and one ral counties with fewer than 200,000 inhabitants and the 71 towns and has not been prepared. urban counties with a population density of 150 square miles or less. 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE PROPOSED RULE MAKING REQUIREMENTS; AND PROFESSIONAL SERVICES: NO HEARING(S) SCHEDULED The purpose of the proposed rule is to provide additional pathways for teacher certification candidates to obtain the supplementary bilingual education extension and the ESOL supplementary certificate, during a Special Education Itinerant Services (SEIS) three year period to conclude on June 30, 2018, and thereby ensure that I.D. No. EDU-13-15-00030-P there are sufficient numbers of certified ESOL teachers and certified content area teachers with bilingual education extensions to meet the educational needs of students who are English Language Learners pursu- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- ant to Commissioner’s Regulations Part 154. cedure Act, NOTICE is hereby given of the following proposed rule: With respect to the supplementary bilingual education extension, the Proposed Action: Amendment of section 200.9 of Title 8 NYCRR. proposed amendment presents two additional pathways in lieu of matricu- lation in a registered program. Statutory authority: Education Law, sections 101(not subdivided), Pathway I allows a candidate who has completed, or is currently 207(not subdivided), 305(1), (2), (20), 4003(1), (2), 4401(5), 4405(4) and enrolled in, a course leading to three semester hours in bilingual educa- 4410(10); and L. 2014, ch. 56, part A, section 11 tion, including study in theories of bilingual education and multicultural Subject: Special Education Itinerant Services (SEIS). perspectives, to submit evidence of having achieved a satisfactory level of Purpose: To revise the SEIS tuition reimbursement methodology to performance on a bilingual extension assessment in lieu of the current provide that reimbursement is to be paid upon the actual provision of SEIS requirement to be matriculated in a registered preparation program. to the student, in conformity with Chapter 56 of the Laws of 2014; allow Pathway II allows a candidate to submit evidence of having two years flexibility in how the minimum billable units of service adjustment are ap- of satisfactory bilingual teaching experience and evidence of a satisfactory plied; and clarify that consultation with a student’s regular early childhood level of performance on the bilingual extension assessment in lieu of the provider is expressly included as a potential function of a special educa- current requirement to be matriculated in a registered preparation program. tion itinerant teacher. With respect to the ESOL supplementary certificate, the proposed Text of proposed rule: Subparagraph (ix) of paragraph 2 of subdivision (f) amendment presents two additional pathways. of section 200.9 of the Regulations of the Commissioner of Education is Pathway I allows a candidate who has achieved a satisfactory level of amended, effective July 1, 2015, as follows: performance on the ESOL CST, and who has completed, or is currently (ix) The tuition rate for programs for preschool students with dis- enrolled in, a course leading to three semester hours in methods of second abilities receiving special education itinerant services pursuant to section language teaching in the elementary and secondary grades to be eligible 4410(1)(k) of the Education Law, shall be established using the reimburse- for the ESOL supplementary certificate. The candidate would have three ment methodology as set forth in paragraph (1) of this subdivision and years to complete the balance of the currently required coursework, which subparagraphs (i) through (viii) of this paragraph, with the following includes three additional semester hours in methods of second language modifications: teaching in the elementary and secondary grades, and six semester hours (a) … of coursework in teaching literacy skills. (b) … Pathway II allows a candidate who has achieved a satisfactory level of (c) Rates for the certified special education teacher providing performance on the ESOL CST to submit evidence of having two years of special education itinerant services shall be published as half hour rates satisfactory experience teaching English to speakers of other languages in and billing by providers to municipalities must be done in half hour blocks lieu of the coursework requirements in methods of second language teach- of time. Billable time includes time spent providing direct and/or indirect ing in the elementary and secondary grades, and in teaching literacy skills. special education itinerant services as defined in section 200.16(i)(3)(ii) of The candidate would have three years to complete the balance of the cur- this Part in accordance with the student's individualized education rently required coursework, as outlined above. program (IEP). The difference between the total number of hours 3. COMPLIANCE COSTS: employed in the special education itinerant teacher's standard work week The proposed amendment will not impose costs on private regulated minus the hours of direct and/or indirect special education itinerant ser- parties located in rural areas, over and above existing costs for certification. vice hours must be spent on required functions. Such functions include but The proposed amendment will not impose any additional costs on are not limited to: coordination of service when both special education candidates above those required for a supplementary bilingual education itinerant services and related services are provided to a student pursuant to extension and/or a supplementary certificate in ESOL. The amendment section 4410(1)(j) of the Education Law; preparation for and attendance at will not impose any direct costs on local governments, including school committee on preschool special education meetings; conferencing with districts and BOCES. the student's parents; consultation with the student’s regular early child- 4. MINIMIZING ADVERSE IMPACT: hood provider, classroom observation; and/or travel for the express The proposed amendment does not impose any additional compliance purposes of such functions as stated above. For the purpose of this requirements or costs on entities in rural areas beyond those already subparagraph, parent conferencing may include parent education for the imposed by State law or regulation. The proposed amendment provides purpose of enabling parents to perform appropriate follow-up activities at additional pathways for teacher certification candidates to obtain the sup- home. Billable time shall not be less than 66 percent [or more than 72 plementary bilingual education extension and the ESOL supplementary percent] of any special education itinerant teacher's total employment certificate, for a three year period to conclude on June 30, 2018. The State hours; provided that the approved reimbursement methodology, developed Education Department does not believe that establishing different stan- by the commissioner and approved by the Director of the Budget, may dards for candidates who live or work in rural areas is warranted. A adjust this billable time threshold. Providers shall maintain adequate re- uniform standard ensures the quality of certified teachers in all parts of the cords to document direct and/or indirect service hours provided as well as State. time spent on all other activities related to each student served. 5. RURAL AREA PARTICIPATION: (d) Special education itinerant service rates will be calculated so The proposed amendment was submitted for review and comment to that reimbursable expenditures shall be divided by the product of the the Department’s Rural Education Advisory Committee, which includes number of days in session for which the program operates times the representatives of school districts in rural areas. number of direct and/or indirect special education itinerant service hours Job Impact Statement per day times two. In instances where the special education itinerant ser- The purpose of the proposed amendment is to provide additional pathways vices are provided in a group session, i.e., two or more students with a dis- for candidates to obtain the supplementary bilingual education extension ability within the same block of time, the half hour rate must be prorated

36 NYS Register/April 1, 2015 Rule Making Activities to each student receiving services. Special education itinerant service rates In order to allow for individual factors to be considered when applying shall be paid [on the basis of enrollment as defined in section 175.6(a)(1) the billable time adjustment, section 200.9(f)(2)(ix)(c) would be amended and (2) of this Title for the period of enrollment as defined by the student’s to provide that the approved tuition reimbursement methodology, IEP] based on the number of half hour units delivered, provided that the developed by the Commissioner and approved by the Director of the total number of units delivered shall not exceed the recommendations for Budget, may alter the billable time threshold. such services in the student’s IEP. The SEIS rate reimburses the employment hours of a special education (e) … itinerant teacher. These hours include billable time, defined in Text of proposed rule and any required statements and analyses may be 200.9(f)(2)(ix)(c) as “time spent providing direct and/or indirect special obtained from: Kirti Goswami, State Education Department, Office of education itinerant services” and other functions not limited to “coordina- Counsel, State Education Building Room 148, 89 Washington Ave., tion of service when both special education itinerant services and related Albany, NY 12234, (518) 474-6400, email: [email protected] services are provided to a student…preparation for and attendance at com- Data, views or arguments may be submitted to: James P. DeLorenzo, As- mittee on preschool special education meetings; conferencing with a sistant Commissioner P-12, State Education Department, Office of Special student’s parents; classroom observation; and/or travel…” The proposed Education, State Education Building, Room 309, 89 Washington Ave., amended regulations would clarify that “consultation with the student’s Albany, NY 12234, (518) 402-3353, email: regular early childhood provider” is an expected function of a special [email protected] education itinerant teacher. Public comment will be received until: 45 days after publication of this 4. COSTS: notice. a. Costs to State government: None. Regulatory Impact Statement b. Costs to local governments: None. 1. STATUTORY AUTHORITY: c. Costs to regulated parties: None. Education Law section 101 continues the existence of the Education d. Costs to the State Education Department of implementation and Department and charges the Department with the general management continuing compliance: None. and supervision of public schools and the educational work of the State. The proposed amendment is necessary to implement § 11 of Part A of Education Law 207 grants general rule-making authority to the Board Chapter 56 of the Laws of 2014 and does not impose any additional costs of Regents to carry into effect the laws and policies of the State relating to on the State, local governments, private regulated parties or the State education. Education Department beyond those inherent in the statute. Consistent Education Law 305(1) and (2) provide the Commissioner, as chief ex- with § 11 of Part A of Chapter 56 of the Laws of 2014, which requires that ecutive officer of the State education system, with general supervision SEIS be reimbursed based on actual attendance, section 200.9(f)(2)(ix)(d) over schools and institutions subject to the provisions of education law, would be amended to require SEIS rates be paid for each unit of service and responsibility for executing Regents policies. Section 305(20) delivered, not to exceed the recommendations for such services in the authorizes the Commissioner with such powers and duties as are charged student’s individualized education program (IEP). The proposed amend- by the Regents. ment would also allow flexibility in how the minimum billable units of Education Law sections 4003 and 4405(4) authorize the Commissioner service adjustment are applied, and clarify that consultation with a of Education to develop a tuition reimbursement methodology for child student’s regular early childhood provider is expressly included as a care institutions, approved private programs and special act school potential function of a special education itinerant teacher. districts. The sections establish that reimbursement rates be effective July 5. LOCAL GOVERNMENT MANDATES: first through June thirtieth and subject to approval by the Director of the The proposed amendment is necessary in part to implement § 11 of Part Budget. A of Chapter 56 of the Laws of 2014 and does not impose any additional Education Law section 4401(5) establishes the basis for calculating tu- program, service, duty or responsibility upon local governments beyond ition rates. those inherent in the statute. Consistent with § 11 of Part A of Chapter 56 Education Law section 4410(10) authorizes the Commissioner to annu- of the Laws of 2014, which requires that SEIS be reimbursed based on ally determine tuition rates for approved special services or programs actual attendance, section 200.9(f)(2)(ix)(d) would be amended to require provided to preschool children in conformance with the methodology SEIS rates be paid for each unit of service delivered, not to exceed the established pursuant to Education Law section 4405(4) and subject to the recommendations for such services in the student’s individualized educa- approval of the Director of the Budget. tion program (IEP). The proposed amendment would also allow flexibility Section 11 of Part A of Chapter 56 of the Laws of 2014 amended Educa- in how the minimum billable units of service adjustment are applied, and tion Law § 4410(10)(a)(i) to provide that, commencing with the 2015-16 clarify that consultation with a student’s regular early childhood provider school year, approved programs providing SEIS must be reimbursed based is expressly included as a potential function of a special education itiner- on the actual attendance of preschool children receiving SEIS services. ant teacher. 2. LEGISLATIVE OBJECTIONS: 6. PAPERWORK: The proposed amendment is consistent with the above authority and is The proposed amendment does not impose any specific additional necessary to conform the Commissioner’s Regulations to Education Law recordkeeping, reporting or other paperwork requirements. § 4410(10)(a)(i), as amended by § 11 of Part A of Chapter 56 of the Laws 7. DUPLICATION: of 2014. The proposed amendment is necessary in part to implement § 11 of Part 3. NEEDS AND BENEFITS: A of Chapter 56 of the Laws of 2014 and will not duplicate, overlap or Currently, pursuant to Commissioner’s Regulation section conflict with any other State or federal statute or regulation. 200.9(f)(2)(ix)(d), SEIS rates are paid on the basis of enrollment as defined 8. ALTERNATIVES: in section 175.6(a)(1) and (2). Chapter 56 of the Laws of 2014 amended There are no significant alternatives to the rule and none were Education Law § 4410(10)(a)(i) to provide that, commencing with the considered. The proposed amendment is necessary to implement § 11 of 2015-16 school year, approved programs providing SEIS must be Part A of Chapter 56 of the Laws of 2014. The proposed amendment would reimbursed based on the actual attendance of preschool children receiving also allow flexibility in how the minimum billable units of service adjust- SEIS services. According to the legislative intent contained in the 2014-15 ment are applied, and clarify that consultation with a student’s regular Executive Budget Briefing Book, this provision was recommended by the early childhood provider is expressly included as a potential function of a Executive in order to limit “payment to program operators only for ser- special education itinerant teacher. vices that are actually provided, incentivizing delivery of these mandated 9. FEDERAL STANDARDS: services to children.” The proposed amendment does not exceed any minimum standards of In order to effectuate the statutory requirement that SEIS be reimbursed the federal government for the same or similar subject areas and is not based on actual attendance, section 200.9(f)(2)(ix)(d) would be amended required by federal law or regulations, but will ensure consistency with to require SEIS rates be paid for each unit of service delivered, not to recent changes to State statute. exceed the recommendations for such services in the student’s IEP. 10. COMPLIANCE SCHEDULE: Section 200.9(f)(2)(ix)(c) currently requires that that SEIS billable time It is anticipated that regulated parties will be able to achieve compli- may not be less than 66 percent or more than 72 percent of any special ance with the proposed amendment by its effective date. The proposed education itinerant teacher’s total employment hours in order to ensure amendment is necessary in part to implement § 11 of Part A of Chapter 56 that a certain percentage of teacher time is spent directly providing of the Laws of 2014 and does not impose any additional compliance instructional services to students. Data analysis and stakeholder discus- requirements or costs beyond those inherent in the statute. Consistent with sions conducted as part of a preschool tuition reimbursement study issued § 11 of Part A of Chapter 56 of the Laws of 2014, which requires that by the Department in December 2014 demonstrated that there are certain SEIS be reimbursed based on actual attendance, section 200.9(f)(2)(ix)(d) circumstances in which meeting this billable time threshold may be dif- would be amended to require SEIS rates be paid for each unit of service ficult, for example depending on varying travel time that may be required delivered, not to exceed the recommendations for such services in the in certain regions of the State. student’s individualized education program (IEP). The proposed amend-

37 Rule Making Activities NYS Register/April 1, 2015 ment would also allow flexibility in how the minimum billable units of The proposed amendment is necessary to implement § 11 of Part A of service adjustment are applied, and clarify that consultation with a Chapter 56 of the Laws of 2014 and does not impose any additional student’s regular early childhood provider is expressly included as a compliance requirements or costs. Consistent with § 11 of Part A of potential function of a special education itinerant teacher. Chapter 56 of the Laws of 2014, which requires that SEIS be reimbursed Regulatory Flexibility Analysis based on actual attendance, section 200.9(f)(2)(ix)(d) would be amended 1. EFFECT OF RULE: to require SEIS rates be paid for each unit of service delivered, not to The proposed amendment is applicable to approved providers of Special exceed the recommendations for such services in the student’s individual- Education Itinerant Services (SEIS) to students with disabilities. Approved ized education program (IEP). The proposed amendment would also allow providers include public school districts, boards of cooperative educational flexibility in how the minimum billable units of service adjustment are ap- services (BOCES), municipalities, Article 28 hospitals, and private agen- plied, and clarify that consultation with a student’s regular early childhood cies (for-profit or not-for-profit) approved by the Commissioner to provide provider is an expected function of a special education itinerant teacher. SEIS. There are 334 approved SEIS programs. Of that number, 236 are 7. LOCAL GOVERNMENT PARTICIPATION: private agencies, 73 are public school districts, 16 are BOCES, 6 are Copies of the rule have been provided to District Superintendents with municipalities, 2 are Article 28 hospitals, 1 is a State-operated school the request that they distribute them to school districts within their (School for the Deaf). The Department does not keep data regarding the supervisory districts for review and comment. Copies were also provided number of SEIS providers that are small businesses, but of the 213 SEIS for review and comment to the chief school officers of the five big city providers that submitted financial reports for the 2012-13 year, 96 identi- school districts. fied themselves as proprietary, partnership, or for-profit. Rural Area Flexibility Analysis 2. COMPLIANCE REQUIREMENTS: 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: The proposed amendment does not impose any additional compliance The proposed amendment applies to all of the 334 approved providers requirements. Currently, pursuant to Commissioner’s Regulation section of Special Education Itinerant Services (SEIS) in the State, including those 200.9(f)(2)(ix)(d), SEIS rates are paid on the basis of enrollment as defined located in the 44 rural counties with less than 200,000 inhabitants and the in section 175.6(a)(1) and (2). Section 11 of Part A of Chapter 56 of the 71 towns in urban counties with a population density of 150 per square Laws of 2014 amended Education Law § 4410(10)(a)(i) to provide that, mile or less. The Department collects data with respect to the county where commencing with the 2015-16 school year, approved programs providing the provider is located. Of the 334 approved SEIS providers, 84 are lo- SEIS must be reimbursed based on the actual attendance of preschool chil- cated in a county will less than 200,000 inhabitants and 67 are located in a dren receiving SEIS services. According to the legislative intent contained county that has a township with population densities of 150 persons or less in the 2014-15 Executive Budget Briefing Book, this provision was recom- per square mile. mended by the Executive in order to limit “payment to program operators 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE only for services that are actually provided, incentivizing delivery of these REQUIREMENTS; AND PROFESSIONAL SERVICES: mandated services to children.” In order to effectuate the statutory require- The proposed amendment does not impose any additional compliance ment that SEIS be reimbursed based on actual attendance, section requirements on entities in rural areas. Currently, pursuant to Commis- 200.9(f)(2)(ix)(d) would be amended to require SEIS rates be paid for sioner’s Regulation section 200.9(f)(2)(ix)(d), SEIS rates are paid on the each unit of service delivered, not to exceed the recommendations for basis of enrollment as defined in section 175.6(a)(1) and (2). Section 11 of such services in the student’s IEP. Part A of Chapter 56 of the Laws of 2014 amended Education Law Section 200.9(f)(2)(ix)(c) currently requires that that SEIS billable time § 4410(10)(a)(i) to provide that, commencing with the 2015-16 school may not be less than 66 percent or more than 72 percent of any special year, approved programs providing SEIS must be reimbursed based on the education itinerant teacher’s total employment hours in order to ensure actual attendance of preschool children receiving SEIS services. Accord- that a certain percentage of teacher time is spent directly providing ing to the legislative intent contained in the 2014-15 Executive Budget instructional services to students. Data analysis and stakeholder discus- Briefing Book, this provision was recommended by the Executive in order sions conducted as part of a preschool tuition reimbursement study issued to limit “payment to program operators only for services that are actually by the Department in December 2014 demonstrated that there are certain provided, incentivizing delivery of these mandated services to children.” circumstances in which meeting this billable time threshold may be dif- In order to effectuate the statutory requirement that SEIS be reimbursed ficult, for example depending on varying travel time that may be required based on actual attendance, section 200.9(f)(2)(ix)(d) would be amended in certain regions of the State. In order to allow for individual factors to be to require SEIS rates be paid for each unit of service delivered, not to considered when applying the billable time adjustment, section exceed the recommendations for such services in the student’s IEP. 200.9(f)(2)(ix)(c) would be amended to provide that the approved tuition Section 200.9(f)(2)(ix)(c) currently requires that that SEIS billable time reimbursement methodology, developed by the Commissioner and ap- may not be less than 66 percent or more than 72 percent of any special proved by the Director of the Budget, may alter the billable time threshold. education itinerant teacher’s total employment hours in order to ensure The SEIS rate reimburses the employment hours of a special education that a certain percentage of teacher time is spent directly providing itinerant teacher. These hours include billable time, defined in instructional services to students. Data analysis and stakeholder discus- 200.9(f)(2)(ix)(c) as “time spent providing direct and/or indirect special sions conducted as part of a preschool tuition reimbursement study issued education itinerant services” and other functions not limited to “coordina- by the Department in December 2014 demonstrated that there are certain tion of service when both special education itinerant services and related circumstances in which meeting this billable time threshold may be dif- services are provided to a student…preparation for and attendance at com- ficult, for example depending on varying travel time that may be required mittee on preschool special education meetings; conferencing with a in certain regions of the State. In order to allow for individual factors to be student’s parents; classroom observation; and/or travel…” The proposed considered when applying the billable time adjustment, section amended regulations would clarify that “consultation with the student’s 200.9(f)(2)(ix)(c) would be amended to provide that the approved tuition regular early childhood provider” is an expected function of a special reimbursement methodology, developed by the Commissioner and ap- education itinerant teacher. proved by the Director of the Budget, may alter the billable time threshold. 3. PROFESSIONAL SERVICES: The SEIS rate reimburses the employment hours of a special education The proposed amendment does not impose any additional professional itinerant teacher. These hours include billable time, defined in services requirements. 200.9(f)(2)(ix)(c) as “time spent providing direct and/or indirect special 4. COMPLIANCE COSTS: education itinerant services” and other functions not limited to “coordina- The proposed amendment is necessary to implement § 11 of Part A of tion of service when both special education itinerant services and related Chapter 56 of the Laws of 2014 and does not impose any additional costs services are provided to a student…preparation for and attendance at com- on small businesses or local governments beyond those inherent in the mittee on preschool special education meetings; conferencing with a statute. Consistent with § 11 of Part A of Chapter 56 of the Laws of 2014, student’s parents; classroom observation; and/or travel…” The proposed which requires that SEIS be reimbursed based on actual attendance, sec- amended regulations would clarify that “consultation with the student’s tion 200.9(f)(2)(ix)(d) would be amended to require SEIS rates be paid for regular early childhood provider” is an expected function of a special each unit of service delivered, not to exceed the recommendations for education itinerant teacher. such services in the student’s individualized education program (IEP). The proposed amendment does not impose any additional professional The proposed amendment would also allow flexibility in how the mini- services requirements. mum billable units of service adjustment are applied, and clarify that 3. COMPLIANCE COSTS: consultation with a student’s regular early childhood provider is an The proposed amendment is necessary to implement § 11 of Part A of expected function of a special education itinerant teacher. Chapter 56 of the Laws of 2014 and does not impose any additional costs 5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY: on the State, local governments, private regulated parties or the State The proposed amendment does not impose any new technological Education Department beyond those inherent in the statute. Consistent requirements or costs. with § 11 of Part A of Chapter 56 of the Laws of 2014, which requires that 6. MINIMIZING ADVERSE IMPACT: SEIS be reimbursed based on actual attendance, section 200.9(f)(2)(ix)(d)

38 NYS Register/April 1, 2015 Rule Making Activities would be amended to require SEIS rates be paid for each unit of service necessary to reduce harvest of striped bass and to allow New York to delivered, not to exceed the recommendations for such services in the remain in compliance with the Atlantic States Marine Fisheries Commis- student’s individualized education program (IEP). The proposed amend- sion (ASMFC) Interstate Fishery Management Plan (FMP) for Striped ment would also allow flexibility in how the minimum billable units of Bass. Non-compliance with the FMP risks a total closure of all of New service adjustment are applied, and clarify that consultation with a York’s striped bass fisheries. student’s regular early childhood provider is an expected function of a The promulgation of this regulation on an emergency basis is necessary special education itinerant teacher. because the normal rule making process would not allow the rule to take 4. MINIMIZING ADVERSE IMPACT: effect before the start of the 2015 striped bass fishing season. New The proposed amendment is necessary to implement § 11 of Part A of management measures adopted by ASMFC require that striped bass Chapter 56 of the Laws of 2014 and does not impose any additional harvests be reduced by at least 25 percent, and that new regulations be compliance requirements or costs on entities in rural areas beyond those enacted before the start of the state’s 2015 fishing seasons, as specified in inherent in the statute. Consistent with § 11 of Part A of Chapter 56 of the Addendum IV to Amendment 6 of the ASMFC Interstate FMP for Striped Laws of 2014, which requires that SEIS be reimbursed based on actual attendance, section 200.9(f)(2)(ix)(d) would be amended to require SEIS Bass. Current regulations allow the recreational season for striped bass on rates be paid for each unit of service delivered, not to exceed the recom- the Hudson River to open on March 16. The new regulations will delay mendations for such services in the student’s individualized education the opening until April 1. This proposed rule must be in effect before program (IEP). The proposed amendment would also allow flexibility in March 16. how the minimum billable units of service adjustment are applied, and In addition this rule will open the commercial striped bass season one clarify that consultation with a student’s regular early childhood provider month earlier and require commercial striped bass harvesters to renew is an expected function of a special education itinerant teacher. their permits one month earlier. The rule will also suspend the 2015 full Because the statute and Regents policy upon which the proposed share tag allocation requalification process. amendment is based applies to all SEIS providers in the State, it is not It is in the best interests of the general welfare of New York State’s possible to establish differing compliance or reporting requirements or recreational and commercial fishing interests not to delay the implementa- timetables or to exempt providers in rural areas from coverage by the tion of these regulations. proposed amendment. Subject: To amend 6 NYCRR Parts 10 and 40 pertaining to commercial 5. RURAL AREA PARTICIPATION: and recreational regulations for striped bass. Comments on the proposed amendment were solicited from the Purpose: Reduce fishing mortality of striped bass to promote stable fish Department's Rural Advisory Committee, whose membership includes populations, and to remain in compliance with the ASMFC FMP. school districts located in rural areas. Text of emergency/proposed rule: Part 10 of 6 NYCRR is amended to Job Impact Statement read as follows: The proposed amendment relates to modifications of the reimbursement Existing paragraph 10.1(b)(18) is amended to reads as follows: methodology for preschool Special Education Itinerant Services (SEIS), (b) Table A. Sportfishing regulations and will not have an adverse impact on jobs or employment opportunities. The proposed amendment is necessary to conform the Commissioner’s Regulations with § 11 of Part A of Chapter 56 of the Laws of 2014, which Species Open Minimum Daily limit amended Education Law § 4410 to require that SEIS be reimbursed based Season length on actual attendance. Consistent with the statute, the proposed amendment (18) Striped [March 16 ] [18’’ TL] 1 requires SEIS rates be paid for each unit of service delivered, not to exceed Bass (in the April 1 18” to 28” the recommendations for such services in the student’s individualized Hudson through TL or > education program (IEP). The proposed amendment would also allow River and November 40” TL flexibility in how the minimum billable units of service adjustment are ap- tributaries 30 (total plied, and clarify that consultation with a student’s regular early childhood north of the length see provider is an expected function of a special education itinerant teacher. George ECL § 13- Because it is evident from the nature of the amendment that it will have a Washington 0339[4]) positive impact, or no impact, on jobs or employment opportunities, no Bridge and further steps were needed to ascertain those facts and none were taken. all inland Accordingly, a job impact statement is not required and one has not been waters) prepared. Subparagraph 10.2(j)(2)(f) is amended to read as follows: (2) Table D: Fishing regulations for Delaware River and its West Department of Environmental Branch bordering Pennsylvania Conservation Species Open Minimum Daily limit Season length EMERGENCY/PROPOSED (‘f’) Striped All year 28” [2] 1 bass RULE MAKING NO HEARING(S) SCHEDULED Subdivision 40.1(f) is amended to read as follows: To Amend 6 NYCRR Parts 10 and 40 Pertaining to Commercial and Recreational Regulations for Striped Bass Species Open Season Minimum Possession I.D. No. ENV-13-15-00031-EP length Limit Filing No. 180 Striped Bass April 15 – Dec. [Licensed [2] 1 Filing Date: 2015-03-17 (except the 15 Party/Charter [1] Hudson River Boat anglers] [1] Effective Date: 2015-03-17 north of the 28” TL George [All other PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Washington anglers 28” to cedure Act, NOTICE is hereby given of the following action: Bridge) 40” TL] Proposed Action: Amendment of Parts 10 and 40 of Title 6 NYCRR. [>40” TL(Total length)] * Statutory authority: Environmental Conservation Law, sections 11-0303, 11-1521, 13-0339, 13-0347 and 13-0105 Finding of necessity for emergency rule: Preservation of general welfare. Species Red drum through Atlantic menhaden remain the same. Specific reasons underlying the finding of necessity: This rule making is Paragraph 40.1(g)(4) is repealed.

39 Rule Making Activities NYS Register/April 1, 2015

Subdivision 40.1(i) is amended to read as follows: intrinsic value to the marine ecosystem and to optimize resource use for commercial and recreational harvesters while remaining compliant with marine fisheries conservation and management policies and interstate Species Open Season Minimum Trip Limit fishery management plans. 3. Needs and benefits: length This rule making is necessary for New York State to remain in compli- Striped Bass [Jul] June 1- Not less than See Subdivi- ance with fishery management plans adopted by the Atlantic States Marine (the area east Dec 15# [24] 28”TL sion (j) of this Fisheries Commission (ASMFC). All member states and jurisdictions of of a line drawn nor greater than section ASMFC must comply with the provisions of FMPs and management due north from [36] 38”TL measures adopted by ASMFC. These FMPs and management measures the mouth of are designed to promote the long-term sustainability of managed marine Wading River species, preserve the States’ marine resources, and protect the interests of Creek & east of both commercial and recreational fishermen. All member states must a line at 73 promulgate any regulations necessary to implement the provisions of the degrees 46 FMPs and remain compliant with the FMPs. New York State must amend 6 NYCRR Parts 10 and 40 to ensure that the State’s regulations are consis- minutes west tent with recently adopted Addendum IV to Amendment 6 of the ASMFC longitude, Interstate Fishery Management Plan for Atlantic Striped Bass. Failure to which is near adopt these regulations may result in New York State being found non- the terminus of compliant with the recommendations of the FMP and subject to the East Rockaway imposition of a moratorium on the harvest of striped bass in New York Inlet.) State. More than ninety (90) percent of boat operators who hold a party and charter license also have a striped bass party and charter permit. The Species Red drum through Anadromous river herring remain the same. striped bass party and charter permit allows customers to harvest two Subparagraph 40.1(j)(8)(v) is amended to read as follows: striped bass, and requires operators to maintain trip-level fishing records (v) Beginning in 2005, and continuing at five year intervals, each of catch and effort expended. The regular party and charter license also striped bass commercial harvesters permit holder in the full share category requires operators to maintain trip level fishing records of catch and effort must file with the department a complete copy of his or her federal or state expended. Repeal of the striped bass party and charter permit ensures all income tax records from one of the preceding three years. Such tax re- recreational fishers harvest only one striped bass, to remain in compliance cords must be filed before the June 1 deadline for receipt of applications. with the ASMFC FMP. Such tax records must demonstrate that the permit holder has, as stated in The proposal suspends the commercial striped bass harvesters’ tag al- subparagraph (ii) above, maintained the 50 percent earned income level in location requalification process for 2015, pending an alternative system order to remain a participant in the full share category. Failure to file a for determining shares and qualifications, in accordance with the recom- timely and complete copy of federal or state income tax records which mendations of the Marine Resources Advisory Council (MRAC). MRAC demonstrate that the permit holder has maintained the 50 percent earned has recommended procedures to make the commercial striped bass income level will result in the permit holder being placed into the partial harvesters permits transferable. The transfer process is expected to be share category. Thereafter, the rules pertaining to partial share permit enacted in 2016, and the tag allocation process is likely to be replaced holders provided in subparagraph (iv) above apply. This requirement shall with an alternate system of determining allocations and harvester be suspended in 2015, until either reinstituted upon notification by the qualifications. Thus, the current 2015 tag allocation process is likely to be department or replaced with an alternate system of determining shares and rendered obsolete in the near future. qualifications for shares. The proposal will open the commercial striped bass season one month Paragraph 40.1(j)(9) is amended to read as follows: earlier and require commercial striped bass harvesters to renew their (9) Applications for striped bass commercial harvesters permits will permits one month earlier. The earlier opening of the commercial striped be accepted until close of business [June] May 1. Any application for a bass harvest season may offset raising the new minimum size limit, and striped bass commercial harvesters permit received after close of business provide increased opportunities for fishers to harvest striped bass when [June] May 1 will not be entertained by the department. they are in the bays. The commercial quota would remain as specified in This notice is intended: to serve as both a notice of emergency adoption the FMP. and a notice of proposed rule making. The emergency rule will expire 4. Costs: June 14, 2015. The proposed rule does not impose any costs to DEC, local municipali- Text of rule and any required statements and analyses may be obtained ties, or the regulated public. from: Carol Hoffman, NYSDEC, Bureau of Marine Resources, 205 N 5. Local government mandates: Belle Mead Road - Suite 1, East Setauket, NY 11733, (631) 444-0476, The proposed rule does not impose any mandates on local governments. email: [email protected] 6. Paperwork: Data, views or arguments may be submitted to: Same as above. None. 7. Duplication: Public comment will be received until: 45 days after publication of this The proposed amendment does not duplicate any state or federal notice. requirement. Additional matter required by statute: Pursuant to the State Environmental 8. Alternatives: Quality Review act, a negative declaration is on file with the department. “No action” alternative: Under this alternative New York State would Regulatory Impact Statement not amend 6 NYCRR Parts 10 and 40. This alternative was rejected 1. Statutory authority: because of New York State’s obligations to comply with the ASMFC FMP Environmental Conservation Law (ECL) section 13-0105 stipulates for Atlantic striped bass. that the management of the state’s anadromous species, such as striped The ASMFC Interstate Fishery Management Plan for Atlantic striped bass, shall be consistent with interstate or state-federal fishery manage- bass has been amended to provide further protection to the species. DEC ment plans (FMP). ECL sections 11-0303 and 13-0339 authorize New must amend 6 NYCRR Sections 10.1, 10.2, and 40.1 to be compliant with York State Department of Environmental Conservation (DEC) to establish the provisions of the ASMFC FMPs. by regulation measures for the management of striped bass, including size The “No Acton” alternative would also mean that New York State limits, catch and possession limits, open and closed seasons, closed areas, would not suspend the 2015 commercial tag allocation requalification. restrictions on the manner of taking and landing, and other management This alternative was rejected, because, if the requalification were to occur measures. ECL sections 11-1521 and 13-0347 establish additional provi- in 2015, commercial striped bass harvesters would have the burden of sions for striped bass management in the Hudson River and marine district, submitting tax records to DEC for review, only to have the process respectively. rendered obsolete in the near future. Regulations adopted by DEC must be consistent with the requirements The “No Acton” alternative would also mean that New York State of applicable fishery management plans adopted by the Atlantic States would not open the commercial striped bass season one month earlier and Marine Fisheries Commission and with applicable provisions of FMPs require commercial striped bass harvesters to renew their permits one adopted pursuant to the Atlantic Coastal Fishery Cooperative Manage- month earlier. This would deny commercial fishers increased opportuni- ment Act. ties to harvest striped bass when the fish are in the bays. 2. Legislative objectives: 9. Federal standards: It is the objective of the above-cited legislation that DEC manages The amendment to 6 NYCRR Parts 10 and 40 is in compliance with the marine fisheries in such a way as to protect this natural resource for its recently adopted addendum to the ASMFC FMP for Atlantic striped bass.

40 NYS Register/April 1, 2015 Rule Making Activities

10. Compliance schedule: 6. Minimizing adverse impact: Regulated parties will be notified by mail, through appropriate news The promulgation of this regulation is necessary for New York to releases and via DEC’s website of the changes to the regulations. The remain in compliance with the FMP for striped bass. The regulations are proposed regulations will take effect upon filing with the Department of intended to protect the striped bass resource and avoid the adverse impacts State. that would be associated with closure of the fishery due to non-compliance Regulatory Flexibility Analysis with the FMP. Ultimately, the maintenance of long-term sustainable 1. Effect of rule: fisheries will have a positive effect on employment, as well as wholesale The Atlantic State Marine Fisheries Commission (ASMFC) facilitates and retail outlets and other support industries. These regulations are being cooperative management of marine and diadromous fish species among adopted in order to stabilize the stocks spawning stock biomass and to al- the fifteen Atlantic Coast member states. The principal mechanism for low for rebuilding to the target level. implementation of cooperative management of migratory fish is the 7. Small business and local government participation: ASMFC’s Interstate Fishery Management Plans (FMPs) for individual New York hosted two ASMFC public hearings on Addendum IV to species or groups of fish. The FMPs are designed to promote the long- which recreational and commercial fishers were invited. There was no term health of these species, preserve resources, and protect the interests special effort to contact local governments because the proposed rule does of both commercial and recreational fishers. not affect them. DEC is proposing amendments to 6 NYCRR in order to remain in 8. For rules that either establish or modify a violation or penalties as- compliance with Addendum IV to Amendment 6 of the Striped Bass FMP. sociated with a violation: The amendment of 6 NYCRR Parts 10 and 40 revises the size and pos- Pursuant to SAPA 202-b (1-a) (b), no such cure period is included in session limits for the striped bass recreational fishery, in both the marine the rule because of the potential adverse impact on the resource. Cure and coastal district, and inland waters, including the Hudson and Dela- periods for the illegal taking of fish or wildlife are neither desirable nor ware Rivers and their tributaries; as well as new open season dates for the recommended. Immediate compliance is required to ensure the general Hudson River and its tributaries. It will also implement new size limits welfare of the public and the resource is protected. and a new open season date for the marine commercial fishery, temporar- 9. Initial review of the rule, pursuant to SAPA § 207 as amended by L. ily suspend the tag allocation requalification process for 2015, repeal the 2012, ch. 462: DEC will conduct an initial review of the proposed rule striped bass party and charter boat permit, and require commercial striped within three years, as required by SAPA section 207. bass harvesters to renew their permits one month earlier. Rural Area Flexibility Analysis Specifically, for the Delaware River, the proposal is for one fish at 28 1. Types and estimated numbers of rural areas: inches Total Length for recreational fisheries. For the Hudson River (north There are no rural areas within the marine and coastal district. Secondly, of the George Washington Bridge), the proposal is for one fish, either be- the marine and coastal district striped bass fisheries directly affected by tween 18 and 28 inches total length OR one “trophy” fish of at least 40 the proposed rule are not located adjacent to any rural areas of the State. inches total length. Additionally, the start date of the open season will be Five Hudson River watershed (includes the Hudson Valley) counties fall approximately two weeks later, from the current March 16, to the proposed into the rural area category: Columbia, Greene, Putnam, Rensselaer, and April 1 for the recreational fishery. For the Marine and Coastal Waters, Ulster counties. Two Delaware River counties are also in the rural area (including Hudson River south of the George Washington Bridge), the category: Delaware and Sullivan counties. The proposed regulations will proposal is for one fish at 28 inches Total Length for all recreational affect individuals who participate in the Atlantic striped bass fishery, and fishers. The proposal also repeals the striped bass party and charter permit may also have an indirect effect on supporting industries. that allows customers to possess two striped bass. For-hire vessels will 2. Reporting, recordkeeping and other compliance requirements; and still need to have a regular party and charter license in order to be able to professional services: operate. There is no commercial fishing allowed for striped bass in rural inland For the commercial fishery: the proposal is for a change in the current waters of New York State. Party and charter boat businesses that target slot size limit of 24-36 inches Total Length to a proposed slot of 28-38 striped bass on the Hudson River are not required to submit fishing reports inches Total Length; as well as a proposal to suspend the commercial to DEC. This proposed rule will not impose any reporting, recordkeeping, striped bass harvesters tag allocation requalification process for 2015, or other compliance requirements on public or private entities in rural pending an alternative system for determining tag shares and areas. qualifications. Also, this rule will open the commercial striped bass season 3. Costs: one month earlier and require commercial striped bass harvesters to renew There will be no initial capital or annual costs to comply with the new their permits one month earlier. This rule making may have an impact on regulations. the commercial and recreational fisheries, including private recreational 4. Minimizing adverse impact: fishers, and party and charter boat operators. It may also have an indirect The promulgation of this regulation is necessary in order for DEC to effect on their supporting industries. These proposals are intended to comply with the Atlantic States Marine Fisheries Commission Addendum reduce the catch for commercial and recreational fishers as required by IV to Amendment 6 of the Atlantic Striped Bass Interstate Fishery ASMFC. In 2014, DEC issued 457 striped bass commercial harvesters Management Plan. The regulations are intended to create a sustainable permits, 490 party and charter boat licenses, and 444 striped bass party fishery in New York water and avoid the adverse economic and social and charter boat permits, in the marine and coastal district. 367 striped impacts that would be associated with closure of the fishery. Ultimately, bass commercial harvesters received a Full share individual quota alloca- the maintenance of long-term sustainable fisheries will have a positive ef- tion of striped bass tags; 90 received a Part share allocation. There are ap- fect for the fisheries in question, as well as wholesale and retail outlets and proximately 515 bait licenses sold state-wide each year; an unknown other support industries. These regulations are being adopted in order to number of these license holders sell bait used to harvest striped bass. The provide the appropriate level of protection and allow for harvest consistent total number of bait and tackle shops in NY is also unknown. In addition, with the capacity of the resource to sustain such effort. approximately 200 Hudson River marine permit gear licenses are sold an- River herring are harvested in the Hudson River and its tributaries, and nually; most of these permits are used for taking river herring to be used used for striped bass bait. Opening the Hudson River striped bass for striped bass bait. recreational season at a later date will likely not affect many commercial The regulations do not apply directly to local governments, and will not river herring fishers or bait shops. Harvest data reported to DEC show that have any direct effects on local governments. less that 3% of the total harvest of river herring occurs before April 1st. 2. Compliance requirements: 5. Rural area participation: All commercial licensed fishers, as well as party and charter boat license DEC staff met with the affected parties of inland waters at two public holders, as part of their mandatory reports to DEC, are already required to hearings, to inform them of the striped bass stock status and initiate discus- maintain daily or trip level fishing records of catch and effort expended. sions of potential fishing restrictions necessary to protect the stock and to 3. Professional services: maintain acceptable fishing mortality. DEC has also been advised by the None. Hudson River Estuary Management Advisory Committee to gain their 4. Compliance costs: input on the regulation change. Marine and Coastal District fishers were This rule making will not impose any costs to DEC or local also informed of proposed changes at the November 18, 2014 and January governments. There are no initial capital costs that will be incurred by a 13, 2015 Marine Resources Advisory Council (MRAC) meetings. DEC regulated business or industry to comply with the proposed rule. The pro- has maintained a regular dialogue with fishermen by phone and e-mail posal may reduce harvests for an unknown number of commercial and regarding the issue. Moreover, DEC has and will continue to provide no- recreational fishers. tice to affected fishers through mailings, newspapers and other media 5. Economic and technological feasibility: outlets, including those in rural counties and towns. The proposed regulations do not require any expenditure on the part of 6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. affected businesses in order to comply with the changes. There is no ad- 2012, ch. 462: ditional technology required for small businesses, and this action does not DEC will conduct an initial review of the proposed rule within three apply to local governments. years, as required by SAPA section 207.

41 Rule Making Activities NYS Register/April 1, 2015

Job Impact Statement sustainable fisheries will have a positive effect on employment for the 1. Nature of impact: The promulgation of this regulation is necessary in fisheries in question, as well as wholesale and retail outlets and other sup- order for DEC to comply with the Atlantic States Marine Fisheries Com- port industries. mission Addendum IV to Amendment 6 of the Atlantic Striped Bass Inter- River herring are used for striped bass bait. Opening the Hudson River state Fishery Management Plan. striped bass recreational season at a later date will likely not affect many Amendments to 6 NYCRR Parts 10 and 40 will implement possession commercial river herring fishers or bait shops. Harvest data reported to and size limits for the recreational striped bass fishery, in both the marine DEC show that less that 3% of the total harvest of river herring occurs and coastal district, and inland waters, including the Hudson and Dela- before April 1. ware Rivers and their tributaries, as well as new open season dates for the Commercial striped bass fishers must tag every fish they harvest. Each Hudson River and its tributaries. It will also implement new size limits for fisher is issued an individual quota of either a full share of tags or a part the commercial marine fishery, open the commercial season one month share of tags, depending on the percentage of their earned income that earlier; and require commercial striped bass harvesters to renew their comes from fishing. . Full share quota fishers would have had to submit permits one month earlier. The rule will also temporarily suspend the tax records to DEC in 2015, to verify that they still qualify to receive a full striped bass commercial harvester tag allocation requalification process share of tags. Suspending the striped bass commercial harvesters requalifi- for 2015. cation process for 2015 is not expected to have a large impact on com- Specifically, the proposed rule decreases the recreational striped bass mercial fishers. Those in the part share category can still be upgraded to daily possession limit from two fish to one fish for the Delaware River, full share in 2015 by submitting their tax records to DEC. Those in the full including both its West Branch bordering Pennsylvania and East Branch share category will remain full share for 2015. in New York and changes the opening recreational striped bass season Opening the commercial fishing season date on June 1 instead of July 1 date for the Hudson River and tributaries north of the George Washington may help offset economic hardships imposed by raising the minimum size Bridge from March 16 to April 1. The rule changes the minimum length limit, and would allow fishers to harvest striped bass when they are inside for recreational striped bass for the Hudson River and tributaries north of marine and coastal district bays. The annual pound quota would remain as the George Washington Bridge, from 18 inches, to either one fish of 18 to specified in the FMP. 28 inch slot size, or one fish greater than 40 inches. It changes the marine For-hire vessels in the marine and coastal district are required to have a recreational fishing regulations for striped bass from two fish with a mini- party and charter boat license. Those who fish for striped bass are ad- mum length of 28 inches for licensed party and charter boat fishers, and ditionally required to have a striped bass party and charter boat permit. one fish of 28 to 40 inch slot size, plus one fish greater than 40 inches, for More than 90 per cent of those who have a party and charter license also private fishers, to one fish at 28 inches for all recreational anglers and have a striped bass party and charter permit. The striped bass party and repeals the marine and coastal district striped bass party and charter boat charter permit allows customers to harvest two striped bass. The current permit that allows customers to possess two striped bass. The proposed proposal allows all recreational fishers to only harvest one striped bass. If rule changes the minimum length for commercial striped bass from a 24 to striped bass regulations are again changed in the future, all party and 36 inch slot size, to a 28 to 38 inch slot size. In addition, the proposed rule charter boast license holders will be able to harvest the same possession will open the commercial striped bass season one month earlier and require limit. commercial striped bass harvesters to renew their permits one month 5. Self-employment opportunities: Most commercial fishers are self- earlier. The rule will also temporarily suspend the 2015 tag allocation employed. A few individuals may work with or for local bait supply shops requalification process for striped bass commercial harvesters. or marinas. The party and charter boat businesses, the bait and tackle This rule making may have an impact on the commercial and recre- shops, and the marinas are mostly small businesses that are self-owned ational fisheries, including private recreational fishers, and party and and operated. Some members of the recreational fishing industry are also charter boat operators. It may also have an indirect effect on their support- self-employed. ing industries. These proposals may reduce the catch for commercial and 6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. recreational fishers. 2012, ch. 462: DEC will conduct an initial review of the rule within three 2. Categories and numbers affected: In 2014, DEC issued 457 striped years, as required by SAPA section 207. bass commercial harvesters permits, 490 party and charter boat licenses, and 444 striped bass party and charter boat permits, in the marine and coastal district. 367 striped bass commercial harvesters received a full share individual quota allocation of striped bass tags; 90 received a part Department of Financial Services share allocation. There are approximately 515 bait licenses sold state-wide each year; an unknown number of these license holders sell bait used to harvest striped bass. The total number of bait and tackle shops in New NOTICE OF EMERGENCY York is also unknown. In addition, approximately 200 Hudson River marine permit gear licenses are sold annually; most of these permits are ADOPTION used for taking river herring to be used for striped bass bait. AND REVISED RULE MAKING Recreational and commercial fishing is a major generator of revenue in New York. According to the National Marine Fisheries Service, the 2013 NO HEARING(S) SCHEDULED dockside value of the striped bass commercial fishery in New York was $3,393,905. In 2014, the National Marine Fisheries Service also reported Independent Dispute Resolution for Emergency Services and 1,079,265 recreational angler trips targeting striped bass in New York. Surprise Bills According to the US Fish and Wildlife Service, in 2011, there were 1.9 million recreational anglers in all waters of New York, generating an I.D. No. DFS-52-14-00009-ERP estimated 2 billion dollars in total expenditures Filing No. 162 3. Regions of adverse impact: The proposed rule will affect striped bass Filing Date: 2015-03-12 fishers in both marine and coastal district and inland waters, including the Hudson and Delaware Rivers and their tributaries. Effective Date: 2015-03-31 4. Minimizing adverse impact: The promulgation of this regulation is necessary in order for DEC to comply with the ASMFC Addendum IV to PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Amendment 6 of the striped bass FMP. The regulations are intended to cedure Act, NOTICE is hereby given of the following action: optimize resource use for commercial and recreational harvesters consis- Action Taken: Addition of Part 400 to Title 23 NYCRR. tent with fisheries conservation and management policies and interstate fishery management plans. These regulations are being adopted to provide Statutory authority: Financial Services Law, sections 202, 301, 302 and the appropriate level of protection and allow for harvest consistent with art. 6; Insurance Law, section 301; L. 2014, ch. 60, part H the capacity of the resource to sustain such effort. Finding of necessity for emergency rule: Preservation of general welfare. If the ASMFC determines a state to be in non-compliance with a Specific reasons underlying the finding of necessity: Long sought and specific FMP, the state may be subject to a complete prohibition on all much needed legislation to address the issue of unexpected and sometimes fishing for the associated species in the waters of that state until the state excessive bills for emergency services and surprise bills was enacted as does come into compliance with the FMP. The proposed regulations are Part H of Chapter 60 of the New York Laws of 2014, which was signed intended to avoid the adverse economic and social impacts that would be into law by the Governor on March 31, 2014. Part H of Chapter 60 will associated with closure of the fishery. take effect on March 31, 2015. A moratorium on the harvest of striped bass would have a severe The Department has been aware for several years that consumers, who adverse impact on the commercial and recreational fisheries, as well as did their best to stay in-network, nonetheless received large bills for unex- their supporting industries. Ultimately, the maintenance of long-term pected out-of-network services. In 2012, the Department released “An

42 NYS Register/April 1, 2015 Rule Making Activities

Unwelcome Surprise,” a report detailing the issues that lead to consumers or that both the health care plan’s payment and the non-participating receiving unexpected medical bills from out-of-network providers. The physician’s or non-participating referred health care provider’s fee repre- report stated that unexpected and sometimes excessive medical bills from sent unreasonable extremes, the IDRE may direct both parties to attempt a out-of-network providers contribute to the growing problem of consumer good faith negotiation for settlement. The IDRE shall have the dispute medical debt, which continues to be a significant cause of personal reviewed by a neutral and impartial reviewer with training and experience bankruptcy. Chapter 60 of the Laws of 2014 added a new Article 6 to the in health care billing, reimbursement, and usual and customary charges. Financial Services Law to address this problem. Article 6 provides that All determinations shall be made in consultation with a neutral and consumers must be held harmless for out-of-network emergency bills and impartial licensed reviewing physician in active practice in the same or surprise bills, and directs the provider and the health plan to work out pay- similar specialty as the physician providing the service that is subject to ment for these bills. Article 6 establishes an independent dispute resolu- the dispute. To the extent practicable, the reviewing physician shall be tion process, by which a dispute involving a bill for emergency services or licensed in this State. An IDRE shall make a determination within 30 days of receiving the request for the dispute resolution. For disputes involving a a surprise bill may be resolved. health care plan, the IDRE must choose as the reasonable fee either the The Department has worked diligently with stakeholders to develop the health care plan’s payment or the non-participating physician’s or non- rule necessary to implement the independent dispute resolution process. A participating referred health care provider’s fee. For disputes that do not proposed rule was published in the State Register on December 31, 2014. involve a health care plan, the IDRE must determine the reasonable fee. In Extensive comments were received from many stakeholders, which the determining a reasonable fee, the IDRE must use the conditions and fac- Department considered in formulating this rulemaking being promulgated tors set forth in Financial Services Law Section 604. on an emergency basis. The Department intends to publish a revised Section 400.9 establishes IDRE record retention and compliance proposed regulation, which will again permit stakeholders to submit com- requirements. An IDRE shall retain case records in accordance with 11 ments, before the regulation is finalized. NYCRR 243 (Insurance Regulation 152) for audit and examination It is critical for the protection of the public that the appropriate regula- purposes for a period of six years from the date of the IDRE’s tions are in place on and after the effective date of Chapter 60 to allow determination. An IDRE shall provide any information as required or health plans, providers, and as applicable, patients, to dispute payments requested by the superintendent within two business days or such other for emergency services or surprise bills. Therefore, it is necessary to period acceptable to the superintendent. promulgate the rule on an emergency basis for the furtherance of the gen- Section 400.10 establishes payment responsibility for the IDRE. If an eral welfare. IDRE determines the health care plan’s payment is reasonable, payment Subject: Independent Dispute Resolution for Emergency Services and for the dispute resolution process shall be the responsibility of the non- Surprise Bills. participating physician or as applicable, non-participating referred health Purpose: To establish a dispute resolution process for emergency services care provider. If an IDRE determines the non-participating physician’s or and surprise bill and standards for that process. non-participating referred health care provider’s fee is reasonable, pay- Substance of emergency/revised rule: Section 400.0 is the preamble. ment for the dispute resolution process shall be the responsibility of the Section 400.1 describes the applicability of the regulation and states health care plan. If good faith negotiations directed by the IDRE results in that the regulation is applicable to health care services provided in New a settlement between the health care plan and the non-participating physi- York State. cian or non-participating referred health care provider, the health care plan Section 400.2 provides definitions. and the non-participating physician or non-participating referred health Section 400.3 establishes the independent dispute resolution entity care provider shall evenly divide and share the prorated cost for dispute (IDRE) certification requirements. IDREs apply for certification to the su- resolution. For disputes that are rejected as ineligible or due to the request- perintendent and must demonstrate that they are able to review disputes ing non-participating physician, non-participating referred health care involving payment for emergency services and surprise bills. IDREs must provider or health care plan’s failure to submit information, an IDRE may ensure that reviews are completed in the required timeframes, and must charge an application processing fee, which shall be the responsibility of have a network of reviewers, including physicians. the requesting physician, health care provider or health care plan. Section 400.4 details prohibited conflicts of interest. IDRE and IDRE This notice is intended to serve as both a notice of emergency adoption reviewers may not have a prohibited affiliation with a health care plan, and a notice of revised rule making. The notice of proposed rule making provider, facility, developer of a health care service or patient involved in was published in the State Register on December 31, 2014, I.D. No. DFS- the dispute. 52-14-00009-P. The emergency rule will expire June 9, 2015. Section 400.5 details the responsibilities of health care plans for Emergency rule compared with proposed rule: Substantial revisions were disputes regarding emergency services and surprise bills. Health care plans made in sections 400.2, 400.4, 400.5, 400.6, 400.7, 400.8 and 400.9. must pay the claim and may attempt to negotiate the amount. Health care Text of rule and any required statements and analyses may be obtained plans must provide the insured with notice that the insured shall incur no from: Colleen Rumsey, New York State Department of Financial Ser- greater out-of-pocket costs for the services than the insured would have vices, One Commerce Plaza, Albany, NY 12257, (518) 474-0154, email: incurred with a participating physician or health care provider. Health care [email protected] plans are also required to provide information on their websites about surprise bills. Data, views or arguments may be submitted to: Same as above. Section 400.6 details the responsibilities of non-participating physi- Public comment will be received until: 30 days after publication of this cians and non-participating referred health care providers for disputes notice. regarding emergency services and surprise bills. Non-participating physi- Revised Regulatory Impact Statement cians and non-participating referred health care providers must hold 1. Statutory authority: The authority of the Superintendent of Financial insured patients that complete an assignment of benefits form harmless for Services (“Superintendent”) to promulgate new Part 400 to 23 NYCRR surprise bills. Non-participating physicians must also include a claim form derives from Financial Services Law Sections 202, 301, 302 and Article 6 and an assignment of benefits form with a bill to an insured. and Insurance Law Section 301. Section 400.7 establishes the process to submit disputes regarding emer- Section 202 of the Financial Services Law establishes the office of the gency services or surprise bills. Health care plans, non-participating physi- Superintendent and designates the Superintendent as the head of the cians, non-participating referred health care providers and patients may Department of Financial Services (“Department”). submit disputes involving payment for emergency services and surprise Section 301 of the Financial Services Law authorizes the Superinten- bills to an IDRE. The parties must complete an application in the form and dent to take such action as the Superintendent deems necessary to protect manner determined by the superintendent and the parties must provide in- and educate users of financial products and services. formation about the dispute. Section 302 of the Financial Services Law and Section 301 of the Insur- Section 400.8 establishes the responsibilities of an IDRE. Within three ance Law authorize the Superintendent to effectuate any power accorded business days of receipt of an application submitted by a health care plan, to the Superintendent by the Insurance Law, the Banking Law, the non-participating physician, non-participating referred health care Financial Services Law or any other law of this state and to prescribe provider or a patient, an IDRE shall screen the application for any conflicts regulations interpreting the Insurance Law. of interest, eligibility and request any additional information. If the Article 6 of the Financial Services Law establishes an independent requested information is not received within five business days, the IDRE dispute resolution (“IDR”) process through which a dispute involving a shall make a determination based on the information available to the bill for emergency services or a surprise bill may be resolved. This law IDRE. If the IDRE determines, in a case involving a health care plan, grants the Superintendent the power to certify entities performing the IDR based on the health care plan’s payment and the non-participating and authorizes the Superintendent to promulgate regulations establishing physician’s or non-participating referred health care provider’s fee, that a standards for the IDR process. settlement between the health care plan and the non-participating physi- 2. Legislative objectives: In 2012, the Department released “An cian or non-participating referred health care provider is reasonably likely, Unwelcome Surprise,” a report detailing the issues that lead to consumers

43 Rule Making Activities NYS Register/April 1, 2015 receiving unexpected medical bills from out-of-network providers. The and patients will need to submit an application in order to pursue a dispute. report stated that unexpected and sometimes excessive medical bills from This rule also requires an IDRE to retain case records in accordance with out-of-network providers contribute to the growing problem of consumer 11 NYCRR 243 for audit and examination for a period of six years from medical debt, which continues to be a significant cause of personal the date of the IDRE’s determination. The IDRE must maintain on file bankruptcy. The report found that consumers have experienced surprise each attestation required to be submitted under the rule for six years from bills when they do everything they can to stay in-network, yet receive bills the date of the determination. The rule further requires an IDRE to provide from non-participating providers. The report also found that there are the Superintendent data, information and reports as the Superintendent often high and unexpected bills for emergency care. Chapter 60 of the determines necessary to evaluate the dispute resolution process within two Laws of 2014 added a new Article 6 to the Financial Services Law to ad- business days or such other period acceptable to the superintendent. dress this problem. Article 6 provides that consumers must be held harm- 7. Duplication: This rule will not duplicate any existing state rule. less for out-of-network emergency bills and surprise bills, and directs the 8. Alternatives: This rule implements the IDR process for bills for emer- provider and the health plan to work out payment for these bills. Article 6 gency services and surprise bills. The Department met with stakeholders establishes an IDR process by which a dispute involving a bill for emer- during the development of the rule. Alternatives were suggested during gency services or a surprise bill may be resolved. The statute also gives these meetings regarding the reviewer of the dispute. Suggested alterna- the Superintendent the authority to grant and revoke certifications of inde- tives included to have the dispute reviewed solely by a physician reviewer, pendent dispute resolution entities (“IDREs”) and to adopt rules necessary solely by a non-physician reviewer, solely by a retired physician, solely by an in-network physician and solely by an out-of-network physician. in order to implement the IDR process. Financial Services Law Section 601 requires that IDREs use licensed 3. Needs and benefits: Article 6 establishes an IDR process by which a physicians in active practice in the same or similar specialty as the physi- dispute for a bill for emergency services or a surprise bill may be resolved. cian providing the service that is the subject of the dispute. The Depart- This rule is necessary in order to implement the IDR process required ment decided that IDREs must use a non-physician reviewer to render a under the statute. determination in consultation with a physician reviewer. The regulation This rule details certification requirements for IDREs, and requires also includes standards to prohibit conflicts of interest. The Department each proposed IDRE to demonstrate that it meets these requirements. The believes this approach is consistent with the law, will ensure fair deci- rule prohibits a proposed IDRE and its reviewers from having affiliations sions, and will help to minimize the costs of the review. with entities involved in the dispute because of a potential conflict of The Department also considered alternatives regarding the notice that interest. the health plan must send to the insured and non-participating provider The rule sets forth the responsibilities of health care plans, providers, when a claim for a surprise bill is received. The Department originally patients and IDREs in relation to the IDR process and details the process considered requiring health plans to send a detailed notice upon receipt of to submit disputes regarding emergency services and surprise bills. The a potential surprise bill to both the insured and the non-participating rule provides that once a dispute is submitted for review by an IDRE, the provider. Stakeholders indicated that, without an assignment of benefits parties must provide certain information specified by the statute. Within form, health plans would be unable to determine whether a claim may be three days of receipt of a dispute, the IDRE shall screen the application for for a surprise bill upon receipt and that it would be cumbersome to send conflicts of interest, review the application to determine if the dispute is the notice in response to all claims involving the services of non- eligible for the IDR process and, if necessary, contact the parties for ad- participating providers. Therefore, the rule requires health plans to provide ditional information needed to determine eligibility. Within three days of detailed notice to the insured and non-participating provider only when an determining that the dispute is eligible, the IDRE shall send notification of assignment of benefits form is submitted with the claim or the health plan the assignment to the parties and ask for all information to be submitted otherwise determines that the claim is for a surprise bill. When the health within five business days. The IDRE may direct the parties to attempt a plan receives a claim that may be a surprise bill but is not submitted with good faith negotiation for settlement and the IDRE must have the dispute an assignment of benefits form, the health plan must send an abbreviated reviewed by a neutral and impartial reviewer with knowledge of billing notice to the insured directing the insured to contact the health plan or visit and usual, customary, and reasonable rates, in consultation with a licensed its website for information regarding surprise bills. physician in active practice. The IDRE must make a determination within A suggested alternative was to require the IDRE to divulge the name of 30 days of receipt of the request for independent dispute resolution, choos- the reviewer and reviewing physician. As with the current External Ap- ing either the provider bill or the health plan payment. peal process for independent review of utilization review denials by health The rule establishes requirements for record retention and compliance plans, anonymity provides the reviewer and the reviewing physician the by IDREs and describes how payment for the independent dispute resolu- ability to independently determine the dispute without the concern that tion process will work. The losing party pays the cost of the dispute reso- they could be contacted by a party involved in the dispute. The IDREs lution with an exception for a patient who brings a dispute, does not may have difficulty attracting reviewers and physicians to their panels if prevail, and for whom payment would pose a hardship. their identity is revealed. The IDRE will provide a biography of the 4. Costs: Insurers and providers should incur minimal additional costs reviewer and the reviewing physician in order to show that they meet the to comply with the requirements of the rule. This rule implements the IDR required qualifications. process required by Financial Services Law Article 6. The minimal costs A suggestion was made to permit IDRE determinations to be for physicians may include costs to provide an assignment of benefits reconsidered. Financial Services Law Sections 605(c) and 607(c) provide form with bills for out-of-network services, although some physicians that the determination of the IDRE is binding but admissible in court may have similar processes already. If a physician or other provider proceedings and reconsideration is not contemplated. submits a dispute for resolution, the person or persons who already handle A suggestion was made to prohibit information from being submitted to billing for the physician or provider would most likely be able to submit the IDRE regarding in-network rates, Medicare and Medicaid rates. the dispute. Other costs include the cost of the IDR process, which is paid Financial Services Law Section 604 sets forth the criteria that the IDRE by the losing party to the dispute as required by Financial Services Law must consider, which includes UCR and does not include other rates. Article 6. The Department will contract with IDREs and approve the fees However, the Law does not prohibit any other information from being the IDREs charge for the IDR process. The minimal costs for insurers may submitted. Nevertheless, the IDRE is not bound by any other additional also include costs to provide insureds with notice about a surprise bill and information submitted. information how to proceed. However, insurers currently provide an 9. Federal standards: Public Health Service Act Section 2719A (42 explanation of benefits to insureds and the requisite notice may be U.S.C. § 300gg-19a) requires health care plans to cover emergency contained within the existing explanation of benefits or accompany it in services. Federal regulations implementing this law (45 CFR § order to mitigate costs. 147.138(b)) require health care plans and insurers to reimburse out-of- The Department will incur costs to implement the independent dispute network providers of emergency services the greatest amount of the fol- resolution process as the Department is responsible for overseeing the pro- lowing three amounts: (1) the amount negotiated with in-network provid- cess and certifying the IDREs. However, these costs will be incurred due ers for the emergency service, excluding any in-network copayment or to the statute. Moreover, the costs to the Department should be minimal as coinsurance; (2) the amount for the emergency service calculated using the independent dispute resolution entities will conduct the actual review the same method the plan generally uses to determine payments for out- of the disputes. There are no costs to any other state government agency or of-network services, excluding any in-network copayment or coinsurance; local government. or (3) the amount that would be paid under Medicare (Part A or B of Title 5. Local government mandates: The rule imposes no new programs, XVIII of the Social Security Act) for the emergency service, excluding services, duties or responsibilities on any county, city, town, village, any in-network copayment or coinsurance. Health care plans must reim- school district, fire district or other special district. burse out-of-network providers of emergency services at least the amount 6. Paperwork: This rule implements the IDR process by which a dispute described in the federal rule but may pay the out-of-network provider ad- for a bill for emergency services or a surprise bill may be resolved and ditional amounts. The IDR process established under this rule will allow identifies the information that must be submitted to the IDRE, as required health care plans and providers to dispute amounts above the federal pursuant to Financial Services Law Article 6. Health care plans, providers requirement.

44 NYS Register/April 1, 2015 Rule Making Activities

10. Compliance schedule: The rule will take effect on March 31, 2015 Because Article 6 requires the IDRE to utilize licensed physicians for and will affect health care services provided on and after March 31, 2015. the IDR process, this rulemaking is likely to promote job and employment Revised Regulatory Flexibility Analysis opportunities in the State. 1. Effect of the rule: This rule affects all health maintenance organiza- Assessment of Public Comment tions (“HMOs”) and insurers authorized to do business in New York State The Department of Financial Services (“Department”) received com- that use the independent dispute resolution (“IDR”) process set forth in the ments from ten interested persons in response to its proposed new Part 400 regulation to resolve disputes for bills for emergency services and surprise to 23 NYCRR, some of which were incorporated into the emergency and bills. Based upon information that those HMOs and insurers have provided revised rulemaking, discussed below. in their annual statements and filed with the Department of Financial Ser- Comments: vices (“Department”), they are not “small businesses” as defined in State Commenters requested that 23 NYCRR Section 400.1 apply to cover- Administrative Procedures Act Section 102(8) because they are not inde- age in the New York State of Health (NYSOH) and to certain out-of-state pendently owned and operated and do not employ 100 or fewer employees. services, and questioned whether the regulation applies to dental coverage. Small businesses that may be impacted by this rule include physicians Response: and certain other health care providers that participate in the IDR process. The independent dispute resolution (IDR) process applies to NYSOH The Department does not maintain records of the number of physicians coverage. The IDR process is not applicable to stand-alone dental and health care providers licensed in this state. However, the Department coverage. Dental services do not meet the definition of “surprise bill” has established no reporting requirements with respect to those small because a participating physician would not be providing the referral or businesses. The rule is likely to have a favorable economic impact on services and dental coverage would not typically cover emergency ser- small businesses that opt to utilize the IDR process to resolve disputes vices as defined in Financial Services Law Section 603. with insurers, rather than retain attorneys to resolve those disputes on their A service associated with a surprise bill need not be provided in its en- behalf in court. tirety in New York to be subject to the IDR process. E.g., an insured is This rule does not apply to or affect local governments. covered under an HMO or insurance policy or contract that is issued for 2. Compliance requirements: This regulation will not impose any delivery in New York and has blood drawn in New York by a participat- reporting, recordkeeping, or other compliance requirements on small busi- ing physician. The participating physician sends the sample to an out-of- nesses or local governments. The regulation only implements the IDR state laboratory that regularly conducts business with the New York process for bills for emergency services and surprise bills as required pur- provider. In such cases, the laboratory may be providing services in New suant to Financial Services Law Article 6. York and subject to the IDR process. The intent of the legislation is to 3. Professional services: This regulation does not require any small protect patients from surprise bills when they receive services from their business affected by this rule to use any professional services to comply participating physicians in New York. with this regulation. Local governments are not affected by the rule, and Comments: thus will have no need for such services. Commenters requested revision of the 23 NYCRR Section 400.2 defini- 4. Compliance costs: This rule will have no impact on compliance costs tions of “reviewer” to remove the requirement for experience with usual for local governments, and may only have a minimal impact on compli- and customary costs, “reviewing physician” to add conflict of interest ance costs for small businesses. Those costs may include costs to provide standards, and “usual and customary cost”. an assignment of benefits form with bills for out-of-network services, al- Response: though some physicians may have similar processes already. Other costs The definition of “reviewer” was not revised because Financial Ser- include the cost of the IDR, which is paid by the losing party to the dispute. vices Law Section 604 requires the IDRE to consider the usual and cus- However, the rule only establishes standards for an IDR process that is tomary cost. The definition of “reviewing physician” was not revised prescribed by statute. Furthermore, any costs to small businesses to partic- because conflict of interest prohibitions are in 23 NYCRR Section ipate in the IDR process should be much less than costs to litigate a bill 400.4(d). The definition of “usual and customary cost” was revised to mir- dispute in court. ror the definition in Financial Services Law Section 603(i). The database 5. Economic and technological feasibility: Small businesses and local referenced in the definition of “usual and customary cost” is not expected governments should not incur any economic or technological impact as a to include all charges for each health care service. It is understood that result of the regulation. some charges may not be reported to the database. 6. Minimizing adverse impact: This rule should have no adverse impact Comments: on small businesses or local governments because it only establishes stan- Commenters requested revisions to 23 NYCRR Sections 400.3 and dards for an IDR process prescribed by statute, and participation in the 400.4 to (1) prohibit IDREs from reviewing disputes when they acquire or IDR process is voluntary. The rule may have a positive economic impact become controlled by an advocacy group or association of providers or on providers who obtain favorable determinations with respect to disputes health plans; (2) include officers, directors, or managers of a physician’s with insurers regarding reimbursement for emergency services and medical group, independent practice association, or health care facility surprise bills. when determining conflicts of interests for IDREs; (3) prohibit a reviewer 7. Small business and local government participation: Interested par- or physician from reviewing a dispute when they have a conflict with an ties, including small businesses, were afforded the opportunity to com- affiliate of the health plan involved in the dispute when all IDREs have ment on this regulation, and the Department held numerous meetings with disqualifying conflicts of interest; (4) prohibit the reviewing physician stakeholders to discuss the regulation. Interested parties were also given from contracting to participate with the health plan that is a party to the an opportunity to comment on the proposed rulemaking that was published dispute; (5) require the reviewing physician to be retired or prohibited in the State Register on December 31, 2014. from providing out-of-network services; and (6) remove the control test Revised Rural Area Flexibility Analysis for determining IDRE conflicts of interest. The Department of Financial Services (“Department”) finds that this Response: rule does not impose any additional burden on persons located in rural ar- The regulation incorporates the changes requested in (1) – (3). eas and that it will not have an adverse impact on rural areas. This rule ap- The regulation does not incorporate the changes requested in (4) – (6). plies uniformly to regulated parties that do business in rural and non-rural Financial Services Law Section 601 requires IDREs to use licensed physi- areas of New York State. cians in active practice in the same or similar specialty as the physician Interested parties, including those located in rural areas, were given an providing the service and, to the extent practicable, the physicians must be opportunity to comment on the drafting of this rule and the Department licensed in New York. Including retired physicians in the IDRE panel is held several meetings with HMOs, insurers, physicians, other providers not permitted. Prohibiting reviewing physicians from providing out-of- and consumer groups. Interested parties were also given an opportunity to network services would limit the IDRE’s ability to attract physicians to its comment on the proposed rulemaking that was published in the State Reg- panel. The reviewing physician may not review disputes involving a health ister on December 31, 2014. plan when the reviewing physician has a material familial, financial or Revised Job Impact Statement professional affiliation with the health plan. The control test is necessary The Department of Financial Services finds that this rule should have to identify what constitutes a conflict of interest. no substantial adverse impact on job or employment opportunities in New Comments: York. The rule implements Article 6 of the Financial Services Law, which Commenters requested revisions to 23 NYCRR Section 400.5 to (1) establishes an independent dispute resolution (“IDR”) process by which only require the health plan to provide the insured with IDRE information health maintenance organizations, insurers, physicians, and in certain when it pays less than the provider’s charge; (2) remove the reference to a cases, patients and other health care providers may submit a dispute substantially similar assignment of benefits form; (3) set a timeframe for involving bills for emergency services and surprise bills for IDR. Article 6 payment to the physician or provider when the IDRE finds in their favor; provides that the Superintendent shall select and certify an independent (4) remove the requirement for health plans to provide notice describing dispute resolution entity (“IDRE”) to oversee the IDR process. Serving as how to initiate the IDR process when the non-participating physician an IDRE is voluntary. submits the claim; (5) remove the requirement for health plans to provide

45 Rule Making Activities NYS Register/April 1, 2015 notice to insureds when health plans determine a bill is a surprise bill physician’s and provider’s obligation to submit the usual and customary before receipt of the assignment of benefits form; (6) limit the health plan’s cost. obligation to notify the insured that the claim could be a surprise bill to The regulation requires health plans to provide the usual and customary claims from providers likely to have surprise bills; and (7) reiterate that cost since they likely have access to the information. If the IDRE gains ac- the IDR process is not applicable to certain emergency services specifi- cess to the usual and customary cost data in a cost efficient manner, the cally exempted by law. Commenters also questioned the applicability of Department will consider removing the requirement. the hold harmless protection to surprise bills, and the effective dates for Financial Services Law Section 604 requires the IDRE to consider the hold harmless protections for emergency services. specifically enumerated factors, including the usual and customary cost Response: but not including other rates. The law does not prohibit any other informa- The regulation incorporates the changes requested in (1) – (2), and also tion from being submitted. However, the IDRE is not bound by additional requires the health plan to pay additional amounts to the provider within information submitted. 30 days of the IDRE’s determination. With respect to the health plan providing the names and contact The requirement to send the non-participating physician notice was not numbers for the physicians who received the payments, the regulation changed, as it is important that physicians be informed of the IDR process provides that the IDRE may request any information it needs from the par- during the claim adjudication process. ties to the IDR. The provision requiring notice when a health plan otherwise determines The IDRE must consider the criteria found in Financial Services Law that a bill is a surprise bill was not removed. Some health plans are able to Section 604 to determine a gross disparity. identify surprise bills upon claim submission and the regulation does not Comments: impose an obligation on health plans that are unable to identify a surprise The Department received comments requesting revisions to 23 NYCRR bill without an assignment of benefits form. The requested change to limit Section 400.8 of the regulation to (1) state that the IDRE must choose ei- notice only when the claim involves a provider likely to have surprise bills ther the health plan’s payment or the provider’s charge; (2) require the was not made. Consumers must be informed of their protections, and the IDRE to divulge the name of the reviewer and reviewing physician; and notification requirements are not burdensome. (3) permit an appeal of a dispute in cases of gross negligence or abuse of 23 NYCRR Section 400.1 states that the regulation does not apply to discretion by an IDRE. emergency services subject to Financial Services Law Section 602(b). Response: The requested change regarding the hold harmless protection for The regulation was changed to reference requirements in Financial Ser- surprise bills was not made. The intent of the legislation was to remove vices Law Sections 605 and 607 that the IDRE choose either the health insureds from payment disputes between health plans and providers. The plan’s payment or the provider’s charge. legislation requires health plans to provide coverage for surprise bills and Changes were not made to require the IDRE to divulge the reviewer or specifically provides that the insured cannot be subject to any greater out- reviewing physician. Anonymity provides the reviewer and the reviewing of-pocket costs than the insured would have incurred with a participating physician the ability to independently determine the dispute without the physician or provider. concern that they could be contacted by the parties involved in the dispute. The regulation was revised to address the varying effective dates for the IDREs may have difficulty attracting reviewers and physicians to their hold harmless provisions for emergency services. panels if their identity is revealed. IDREs will provide biographies to show Comments: the reviewers meet the qualifications required to review disputes. Commenters requested changes to 23 NYCRR Section 400.6 to (1) Finality of the IDR is important for the process to run effectively and remove the requirement that non-participating referred health care provid- the law states that the decision is binding but admissible in court ers include a claim form and an assignment of benefits form when they proceedings. bill patients; (2) permit a non-participating physician to have “at least” Comment: seven business days to respond to a health plan’s offer, except when the A commenter recommended revising 23 NYCRR Section 400.9(e) to seven business days would cause the health plan to violate Insurance Law require IDREs to comply with privacy and confidentiality requirements. Section 3224-a; and (3) prohibit physicians from seeking payment for Response: emergency services beyond the health plan’s payment once a claim has The Department added a requirement that the IDRE comply with Parts been submitted to the IDRE. 420 and 421 of 11 NYCRR with respect to confidentiality of information. Response: Comments: The regulation incorporates the change requested in (1). The regulation Commenters requested (1) dispute information be made available upon was also revised to allow the non-participating physician or provider “at request to the Department; (2) the cost of the IDR process should be low; least” seven business days to respond to a health plan’s offer. This provi- (3) the penalties for violating Insurance Law Section 2601(a)(7) be added; sion is intended to allow the provider time to respond but was never (4) the IDR process favor the physician’s bill; and (5) the effective date be intended to permit the health plan to delay payment. changed to April 1, 2015. Once an IDRE renders a determination, the parties are bound by the de- Response: termination and insureds are only responsible for their in-network cost- (1) Requests made to the Department for dispute information will be sharing. individually reviewed and determined in accordance with applicable law. Comments: (2) The regulation does not address actual costs of the IDR process; Commenters requested changes to 23 NYCRR Section 400.7 to (1) only the party responsible to pay the costs. require the fees submitted by the health plan to represent the final payment (3) The regulation does not specify the penalties for violating Insurance to the physician; (2) extend the period of time for fee information to 24 Law Section 2601(a)(7) because they are specified in Insurance Law Sec- months; (3) permit multiple CPT codes to be submitted if more than one is tion 109. applicable to a patient; (4) delete the references to “if applicable” and “if (4) The IDR process was intended to provide an independent, unbiased available” after “usual and customary cost”; (5) prohibit health plans from review for physician and health plan billing disputes. submitting Medicaid, Medicare, or other network fee data to the IDRE; (6) (5) An effective date set by law cannot be changed by regulation. remove the usual and customary cost from the information that health plans and providers submit; (7) require health plans to provide the names NOTICE OF ADOPTION and numbers for the physicians who received the listed payments; and (8) clarify the criteria used to determine a gross disparity when determining a Life Insurance Reserves reasonable fee. Response: I.D. No. DFS-04-15-00005-A The regulation was revised to (1) provide that the fee information must Filing No. 179 reflect the final payment; and (2) permit fee examples from the last 24 Filing Date: 2015-03-17 months, because physicians and health plans may not have three examples from the previous 12 months for services that are infrequently provided. Effective Date: 2015-04-01 The IDR process will review the services provided to the patient, which may consist of one or many procedure codes. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- The language “if applicable” was intended to address when the usual cedure Act, NOTICE is hereby given of the following action: and customary cost does not exist. The Department added language that the usual and customary cost is to be provided when the benchmarking Action taken: Amendment of Parts 98 and 100 of Title 11 NYCRR. database contains the usual and customary cost for the service. Statutory authority: Financial Services Law, sections 202 and 302; Insur- The intent of the term “if available” was to permit physicians to submit ance Law, sections 301, 1304, 1308, 4217, 4218, 4221, 4224, 4240 and the usual and customary cost if they have access to the information, but 4517 not require them to submit it. The regulation was revised to remove the Subject: Life insurance reserves.

46 NYS Register/April 1, 2015 Rule Making Activities

Purpose: To modernize the current regulatory scheme with respect to uni- protections include reduced risk of being cared for by staff with a history versal life insurance with secondary guarantee reserves. of inappropriate actions such as physical, psychological or sexual abuse Text or summary was published in the January 28, 2015 issue of the Reg- towards persons with special needs. Perpetrators of such abuse often seek ister, I.D. No. DFS-04-15-00005-P. legitimate access to children so it is critical to camper safety that individuals who that have committed such acts are kept out of camps. The regula- Final rule as compared with last published rule: No changes. tion provides an additional mechanism for camp operators to do so. The Text of rule and any required statements and analyses may be obtained regulations also reduce the risk of incidents involving physical, psycho- from: Amanda Fenwick, New York State Department of Financial Ser- logical or sexual abuse towards persons with special needs by ensuring vices, One Commerce Plaza, Albany, New York 12257, (518) 474-7929, that such occurrences are fully and completely investigated, by ensuring email: [email protected] that camp staff are more fully trained and aware of abuse and reporting Initial Review of Rule obligations, allowing staff and volunteers to better identify inappropriate staff behavior and provide a mechanism for reporting injustice to this As a rule that requires a RFA, RAFA or JIS, this rule will be initially vulnerable population. Early detection and response are critical compo- reviewed in the calendar year 2018, which is no later than the 3rd year af- nents for mitigating injury to an individual and will prevent a perpetrator ter the year in which this rule is being adopted. from hurting additional children. Finally, prompt enactment of the Assessment of Public Comment proposed regulations will ensure that occurrences are fully investigated Sixth Amendment to Insurance Regulation 147 (11 NYCRR 98) and evaluated by the camp, and that measures are taken to reduce the risk The Department of Financial Services (“Department”) received one of re-occurrence in the future. Absent emergency adoption, these benefits public comment on the proposed sixth amendment to 11 NYCRR 98 (In- and protections will not be available to campers with special needs until surance Regulation 147). The commenter asked the Department to confirm the formal rulemaking process is complete, with the attendant loss of ad- that the proposed amendment encompasses products with shadow ditional protections against abuse and neglect, including physical, accounts. The Department confirms that products with shadow accounts psychological, and sexual abuse. are included. No changes were made to the text of the amendment. Subject: Children's Camps. Fourth Amendment to Insurance Regulation 179 (11 NYCRR 100) Purpose: To include camps for children with developmental disabilities as The Department of Financial Services (“Department”) received one a type of facility with in the oversight of the Justice Center. public comment on the proposed fourth amendment to 11 NYCRR 100 Substance of emergency rule: The Department is amending 10 NYCRR (Insurance Regulation 179). The commenter asked the Department to Subpart 7-2 Children’s Camps as an emergency rulemaking to conform confirm that the proposed amendment encompasses products with shadow the Department’s regulations to requirements added or modified as a result accounts. The Department confirms that products with shadow accounts of Chapter 501 of the Laws of 2012 which created the Justice Center for are included. No changes were made to the text of the amendment. the Protection of Persons with Special Needs (Justice Center). Specifi- cally, the revisions: D amend section 7-2.5(o) to modify the definition of “adequate supervision,” to incorporate the additional requirements being imposed on camps Department of Health otherwise subject to the requirements of section 7-2.25 D amend section 7-2.24 to address the provision of variances and waivers as they apply to the requirements set forth in section 7-2.25 EMERGENCY D amend section 7-2.25 to add definitions for “camp staff,” “Depart- ment,” “Justice Center,” and “Reportable Incident” RULE MAKING With regard to camps with 20 percent or more developmentally disabled children, which are subject to the provisions of 10 NYCRR section Children's Camps 7-2.25, add requirements as follows: I.D. No. HLT-13-15-00008-E D amend section 7-2.25 to add new requirements addressing the reporting of reportable incidents to the Justice Center, to require screening of Filing No. 163 camp staff, camp staff training regarding reporting, and provision of a Filing Date: 2015-03-13 code of conduct to camp staff Effective Date: 2015-03-13 D amend section 7-2.25 to add new requirements providing for the disclosure of information to the Justice Center and/or the Department and, under certain circumstances, to make certain records available for public PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- inspection and copying cedure Act, NOTICE is hereby given of the following action: D amend section 7-2.25 to add new requirements related to the investiga- Action taken: Amendment of Subpart 7-2 of Title 10 NYCRR. tion of reportable incidents involving campers with developmental dis- Statutory authority: Public Health Law, section 225 abilities Finding of necessity for emergency rule: Preservation of public safety. D amend section 7-2.25 to add new requirements regarding the establishment and operation of an incident review committee, and to allow an Specific reasons underlying the finding of necessity: Chapter 501 of the exemption from that requirement under appropriate circumstances Laws of 2012 established the Justice Center for the Protection of People D amend section 7-2.25 to provide that a permit may be denied, revoked, with Special Needs (“Justice Center”), in order to coordinate and improve or suspended if the camp fails to comply with the regulations, policies or the State's ability to protect those persons having various physical, other requirements of the Justice Center developmental, or mental disabilities and who are receiving services from various facilities or provider agencies. The Department must promulgate This notice is intended to serve only as a notice of emergency adoption. regulations as a “state oversight agency.” These regulations will assure This agency intends to adopt this emergency rule as a permanent rule and proper coordination with the efforts of the Justice Center. will publish a notice of proposed rule making in the State Register at some Among the facilities covered by Chapter 501 are children's camps hav- future date. The emergency rule will expire June 10, 2015. ing enrollments with 20 percent or more developmentally disabled Text of rule and any required statements and analyses may be obtained campers. These camps are regulated by the Department and, in some cases, from: Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs by local health departments, pursuant to Article 13-B of the Public Health Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473- Law and 10 NYCRR Subpart 7-2. Given the effective date of Chapter 501 7488, email: [email protected] and its relation to the start of the camp season, these implementing regula- Regulatory Impact Statement tions must be promulgated on an emergency basis in order to assure the Statutory Authority: necessary protections for vulnerable persons at such camps. Absent emer- The Public Health and Health Planning Council is authorized by Sec- gency promulgation, such persons would be denied initial coordinated tion 225(4) of the Public Health Law (PHL) to establish, amend and repeal protections until the 2015 camp season. Promulgating these regulations on sanitary regulations to be known as the State Sanitary Code (SSC), subject an emergency basis will provide such protection, while still providing a to the approval of the Commissioner of Health. Article 13-B of the PHL full opportunity for comment and input as part of a formal rulemaking sets forth sanitary and safety requirements for children’s camps. PHL Sec- process which will also occur pursuant to the State Administrative tions 225 and 201(1)(m) authorize SSC regulation of the sanitary aspects Procedures Act. The Department is authorized to promulgate these rules of businesses and activities affecting public health including children’s pursuant to sections 201 and 225 of the Public Health Law. camps. Promulgating the regulations on an emergency basis will ensure that Legislative Objectives: campers with special needs promptly receive the coordinated protections In enacting to Chapter 501 of the Laws of 2012, the legislature to be provided to similar individuals cared for in other settings. Such established the New York State Justice Center for the Protection of People

47 Rule Making Activities NYS Register/April 1, 2015 with Special Needs (Justice Center) to strengthen and standardize the within the definition of mandated reporters under section 488 of the Social safety net for vulnerable people that receive care from New York’s Hu- Services Law receive training related to mandated reporting to the Justice man Services Agencies and Programs. The legislation includes children’s Center, and the obligations of those staff who are required to report camps for children with developmental disabilities within its scope and incidents to the Justice Center. The costs associated with such training requires the Department of Health to promulgate regulations approved by should be minimal as it is expected that the training material will be the Justice Center pertaining to incident management. The proposed provided to the camps and will take about one hour to review during rou- amendments further the legislative objective of protecting the health and tine staff training. Camps must also ensure that the telephone number for safety of vulnerable children attending camps in New York State (NYS). the Justice Center reporting hotline is conspicuously posted for campers Needs and Benefits: and staff. Cost associated with such posting is limited, related to making The legislation amended Article 11 of Social Services law as it pertains and posting a copy of such notice in appropriate locations. to children’s camps as follows. It: The camp operator must also provide each camp staff member, and oth- D included overnight, summer day and traveling summer day camps for ers who may have contact with campers, with a copy of a code of conduct children with developmental disabilities as facilities required to comply established by the Justice Center pursuant to Section 554 of the Executive with the Justice Center requirements. Law. The code must be provided at the time of initial employment, and at D defined the types of incident required to be reported by children’s least annually thereafter during the term of employment. Receipt of the camps for children with developmental disabilities to the Justice Center code of conduct must be acknowledged, and the recipient must further ac- Vulnerable Persons’ Central Registry. knowledge that he or she has read and understands it. The cost of provid- D mandated that the regulations pertaining to children’s camps for chil- ing the code, and obtaining and filing the required employee acknowledg- dren with developmental disabilities are amended to include incident ment, should be minimal, as it would be limited to copying and distributing management procedures and requirements consistent with Justice Center the code, and to obtaining and filing the acknowledgments. Staff should guidelines and standards. need less than 30 minutes to review the code. D required that children’s camps for children with developmental dis- Camps will also be required to establish and maintain a facility incident abilities establish an incident review committee, recognizing that the review committee to review and guide the camp's responses to reportable Department could provide for a waiver of that requirement under certain incidents. The cost to maintain a facility incident review committee is dif- circumstances. ficult to estimate due to the variations in salaries for camp staff and the D required that children’s camps for children with developmental dis- amount of time needed for the committee to do its business. A facility abilities consult the Justice Center’s staff exclusion list (SEL) to ensure incident review committee must meet at least annually, and also within that prospective employees are not on that list and to, where the prospec- two weeks after a reportable incident occurs. Assuming the camp will tive employee is not on that list, to also consult the Office of Children and have several staff members participate on the committee, an average sal- Family Services State Central Registry of Child Abuse and Maltreatment ary of $50.00 an hour and a three hour meeting, the cost is estimated to be (SCR) to determine whether prospective employees are on that list. $450.00 dollars per meeting. However, the regulations also provide the D required that children’s camps for children with developmental dis- opportunity for a camp to seek an exemption, which may be granted abilities publicly disclose certain information regarding incidents of abuse subject to Department approval based on the duration of the camp season and neglect if required by the Justice Center to do so. and other factors. Accordingly, not all camps can be expected to bear this The children’s camp regulations, Subpart 7-2 of the SSC are being obligation and its associated costs. amended in accordance with the aforementioned legislation. Camps are now explicitly required to obtain an appropriate medical ex- Costs: amination of a camper physically injured from a reportable incident. A Cost to Regulated Parties: medical examination has always been expected for such injuries. The amendments impose additional requirements on children’s camp Finally, the regulations add noncompliance with Justice Center-related operators for reporting and cooperating with Department of Health requirements as a ground for denying, revoking, or suspending a camp investigations at children’s camps for children with developmental dis- operator's permit. abilities (hereafter “camps”). The cost to affected parties is difficult to Cost to State and Local Government: estimate due to variation in salaries for camp staff and the amount of time State agencies and local governments that operate children’s camps for needed to investigate each reported incident. Reporting an incident is children with developmental disabilities will have the same costs described expected to take less than half an hour; assisting with the investigation in the section entitled “Cost to Regulated Parties.” Currently, it is will range from several hours to two staff days. Using a high estimate of estimated that five summer day camps that meet the criteria are operated staff salary of $30.00 an hour, total staff cost would range from $120 to by municipalities. The regulation imposes additional requirements on lo- $1600 for each investigation. Expenses are nonetheless expected to be cal health departments for receiving incident reports and investigations of minimal statewide as between 40 and 50 children’s camps for children reportable incidents, and providing a copy of the resulting report to the with developmental disabilities operate each year, with combined reports Department and the Justice Center. The total cost for these services is dif- of zero to two incidents a year statewide. Accordingly, any individual ficult to estimate because of the variation in the number of incidents and camp will be very unlikely to experience costs related to reporting or amount of time to investigate an incident. However, assuming the typi- investigation. cally used estimate of $50 an hour for health department staff conducting Each camp will incur expenses for contacting the Justice Center to these tasks, an investigation generally lasting between one and four staff verify that potential employees, volunteers or others falling within the def- days, and assuming an eight hour day, the cost to investigate an incident inition of “custodian” under section 488 of the Social Services Law (col- will range $400.00 to $1600. Zero to two reportable incidents occur lectively “employees”) are not on the Staff Exclusion List (SEL). The ef- statewide each year, so a local health department is unlikely to bear such fect of adding this consultation should be minimal. An entry level staff an expense. The cost of submitting the report is minimal, limited to copy- person earning the minimum wage of $7.25/hour should be able to compile ing and mailing a copy to the Department and the Justice Center. the necessary information for 100 employees, and complete the consulta- Cost to the Department of Health: tion with the Justice Center, within a few hours. There will be routine costs associated with printing and distributing the Similarly, each camp will incur expenses for contacting the Office of amended Code. The estimated cost to print revised code books for each Children and Family Services (OCFS) to determine whether potential em- regulated children’s camp in NYS is approximately $1600. There will be ployees are on the State Central Registry of Child Abuse and Maltreat- additional cost for printing and distributing training materials. The expen- ment (SCR) when consultation with the Justice Center shows that the pro- ses will be minimal as most information will be distributed electronically. spective employee is not on the SEL. The effect of adding this consultation Local health departments will likely include paper copies of training should also be minimal, particularly since it will not always be necessary. materials in routine correspondence to camps that is sent each year. An entry level staff person earning the minimum wage of $7.25/hour Local Government Mandates: should be able to compile the necessary information for 100 employees, Children’s camps for children with developmental disabilities operated and complete the consultation with the OCFS, within a few hours. Assum- by local governments must comply with the same requirements imposed ing that each employee is subject to both screens, aggregate staff time on camps operated by other entities, as described in the “Cost to Regulated required should not be more than six to eight hours. Additionally, OCFS Parties” section of this Regulatory Impact Statement. Local governments imposes a $25.00 screening fee for new or prospective employees. serving as permit issuing officials will face minimal additional reporting Camps will be required to disclose information pertaining to reportable and investigation requirements, as described in the “Cost to State and Lo- incidents to the Justice Center and to the permit issuing official investigat- cal Government” section of this Regulatory Impact Statement. The ing the incident. Costs associated with this include staff time for locating proposed amendments do not otherwise impose a new program or respon- information and expenses for copying materials. Using a high estimate of sibilities on local governments. City and county health departments staff salary of $30.00 an hour, and assuming that staff may take up to two continue to be responsible for enforcing the amended regulations as part hours to locate and copy the records, typical cost should be under $100. of their existing program responsibilities. Camps must also assure that camp staff, and certain others, who fall Paperwork:

48 NYS Register/April 1, 2015 Rule Making Activities

The paperwork associated with the amendment includes the completion Consideration was given to including a cure period to afford camp and submission of an incident report form to the local health department operators an opportunity to correct violations associated with this rule; and Justice Center. Camps for children with developmental disabilities however, this option was rejected because it is believed that lessening the will also be required to provide the records and information necessary for department’s ability to enforce the regulations could place this already LHD investigation of reportable incidents, and to retain documentation of the results of their consultation with the Justice Center regarding whether vulnerable population at greater risk to their health and safety. any given prospective employee was found to be on the SEL or the SCR. Small Business and Local Government Participation: Duplication: No small business or local government participation was used for this This regulation does not duplicate any existing federal, state, or local rule development. The amendments to the camp code are mandated by regulation. The regulation is consistent with regulations promulgated by law. Ample opportunity for comment will be provided as part of the pro- the Justice Center. cess of promulgating the regulations, and training will be provided to af- Alternatives: fected entities with regard to the new requirements. The amendments to the camp code are mandated by law. No alternatives were considered. Rural Area Flexibility Analysis Consideration was given to including a cure period to afford camp Types and Estimated Number of Rural Areas: operators an opportunity to correct violations associated with this rule; There are between 40 and 50 regulated children’s camps for children however, this option was rejected because it is believed that lessening the with development disabilities (38% are expected to be overnight camps department’s ability to enforce the regulations could place this already and 62% are expected to be summer day camps) operating in New York vulnerable population at greater risk to their health and safety. State, which will be affected by the proposed rule. Currently, there are Federal Standards: seven day camps and ten overnight camps operating in the 44 counties that Currently, no federal law governs the operation of children’s camps. Compliance Schedule: have population less than 200,000. There are an additional four day camps The proposed amendments are to be effective upon filing with the Sec- and three overnight camps in the nine counties identified to have town- retary of State. ships with a population density of 150 persons or less per square mile. Regulatory Flexibility Analysis Reporting and Recordkeeping and Other Compliance Requirements; Types and Estimated Number of Small Businesses and Local and Professional Services: Governments: Reporting and Recordkeeping: There are between 40 and 50 regulated children’s camps for children The obligations imposed on camps in rural areas are no different from with development disabilities (38% are expected to be overnight camps those imposed on camps generally, as described in “Cost to Regulated and 62% are expected to be summer day camps) operating in New York Parties” and “Paperwork” sections of the Regulatory Impact Statement. State, which will be affected by the proposed rule. About 30% of summer day camps are operated by municipalities (towns, villages, and cities). Other Compliance Requirements: Typical regulated children’s camps representing small business include The obligations imposed on camps in rural areas are no different from those owned/operated by corporations, hotels, motels and bungalow colo- those imposed on camps generally, as described in “Cost to Regulated nies, non-profit organizations (Girl/Boy Scouts of America, Cooperative Parties” and “Paperwork” sections of the Regulatory Impact Statement. Extension, YMCA, etc.) and others. None of the proposed amendments Professional Services: will apply solely to camps operated by small businesses or local Camps with 20 percent or more developmentally disabled children are governments. now explicitly required to obtain an appropriate medical examination of a Compliance Requirements: camper physically injured from a reportable incident. A medical examina- Reporting and Recordkeeping: tion has always been expected for such injuries. The obligations imposed on small business and local government as Compliance Costs: camp operators are no different from those imposed on camps generally, Cost to Regulated Parties: as described in “Cost to Regulated Parties,” “Local Government Man- dates,” and “Paperwork” sections of the Regulatory Impact Statement. The costs imposed on camps in rural areas are no different from those The obligations imposed on local government as the permit issuing of- imposed on camps generally, as described in “Cost to Regulated Parties” ficial is described in “Cost to State and Local Government” and “Local and “Paperwork” sections of the Regulatory Impact Statement. Government Mandates” portions of the Regulatory Impact Statement. Economic and Technological Feasibility: Other Affirmative Acts: There are no changes requiring the use of technology. The obligations imposed on small business and local government as The proposal is believed to be economically feasible for impacted camp operators are no different from those imposed on camps generally, parties. The amendments impose additional reporting and investigation as described in “Cost to Regulated Parties” “Local Government Man- requirements that will use existing staff that already have similar job dates,” and “Paperwork” sections of the Regulatory Impact Statement. responsibilities. There are no requirements that that involve capital Professional Services: improvements. Camps with 20 percent or more developmentally disabled children are Minimizing Adverse Economic Impact on Rural Area: now explicitly required to obtain an appropriate medical examination of a camper physically injured from a reportable incident. A medical examina- The amendments to the camp code are mandated by law. No alterna- tion has always been expected for such injuries. tives were considered. The economic impact is already minimized, and no Compliance Costs: impacts are expected to be unique to rural areas. Cost to Regulated Parties: Consideration was given to including a cure period to afford camp The obligations imposed on small business and local government as operators an opportunity to correct violations associated with this rule; camp operators are no different from those imposed on camps generally, however, this option was rejected because it is believed that lessening the as described in “Cost to Regulated Parties” and “Paperwork” sections of department’s ability to enforce the regulations could place this already the Regulatory Impact Statement. vulnerable population at greater risk to their health and safety. Cost to State and Local Government: Rural Area Participation: The obligations imposed on small business and local government as No rural area participation was used for this rule development. The camp operators are no different from those imposed on camps generally, amendments to the camp code are mandated by law. Ample opportunity as described in the “Cost to Regulated Parties” section of the Regulatory for comment will be provided as part of the process of promulgating the Impact Statement. The obligations imposed on local government as the routine regulations, and training will be provided to affected entities with permit issuing official is described in “Cost to State and Local Govern- regard to the new requirements. ment” and “Local Government Mandates” portions of the Regulatory Impact Statement. Job Impact Statement Economic and Technological Feasibility: No Job Impact Statement is required pursuant to Section 201-a (2)(a) of There are no changes requiring the use of technology. the State Administrative Procedure Act. It is apparent, from the nature of The proposal is believed to be economically feasible for impacted the proposed amendment that it will have no impact on jobs and employ- parties. The amendments impose additional reporting and investigation ment opportunities, because it does not result in an increase or decrease in requirements that will use existing staff that already have similar job current staffing level requirements. Tasks associated with reporting new responsibilities. There are no requirements that that involve capital improvements. incidents types and assisting with the investigation of new reportable Minimizing Adverse Impact: incidents are expected to be completed by existing camp staff, and should The amendments to the camp code are mandated by law. No alterna- not be appreciably different than that already required under current tives were considered. The economic impact is already minimized. requirements.

49 Rule Making Activities NYS Register/April 1, 2015

EMERGENCY D amend sections 487.9 and 488.9 to add a requirement for staff training in the identification of reportable incidents and facility reporting proce- RULE MAKING dures, and to add a requirement for certain facilities regarding the provision of a code of conduct to employees, volunteers, and others providing Standards for Adult Homes and Adult Care Facilities Standards services at the facility who could be expected to have resident contact; for Enriched Housing D amend sections 487.9 and 488.9 to add a requirement that certain facilities consult the Justice Center’s staff exclusion list with regard to pro- I.D. No. HLT-13-15-00020-E spective employees, volunteers, and others, and that when such person is Filing No. 173 not on the staff exclusion list, that such facilities also consult the State Filing Date: 2015-03-17 Central Registry, with regard to such persons. The facility must maintain documentation of such consultation. The amendments also address the Effective Date: 2015-03-17 hiring consequences associated with the outcome of those consultations; D amend sections 487.9 and 488.9 to specifically include investigation PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- of reportable incidents to the administrative obligations of facilities, and cedure Act, NOTICE is hereby given of the following action: to the duties of a case manager; Action taken: Amendment of Parts 487 and 488 of Title 18 NYCRR. D amend sections 487.9 and 488.9 to require the operator of a facility to Statutory authority: Social Services Law, sections 20, 34, 131-o, 460, designate an additional employee to be a designated reporter; 460-a—460-g, 461 and 461-a—461-h D amend sections 487.10 and 488.10 to add a new requirement that Finding of necessity for emergency rule: Preservation of public safety. certain facilities provide certain information to the Justice Center, and make certain information public, at the request of the Justice Center, and Specific reasons underlying the finding of necessity: Chapter 501 of the Laws of 2012 established the Justice Center for the Protection of People to allow sharing of information between the Department and the Justice with Special Needs (“Justice Center”), in order to coordinate and improve Center; the State's ability to protect those persons having various physical, D add new sections 487.14 and 488.13 to address reporting of certain developmental, or mental disabilities and who are receiving services from incidents; and various facilities or provider agencies. The Department must promulgate D add new sections 487.15 and 488.14 to address the investigation of regulations, as a “state oversight agency” of some of the covered facilities, reportable incidents involving facilities subject to the Justice Center. in order to assure proper coordination with the efforts of the Justice Center This notice is intended to serve only as a notice of emergency adoption. Chapter 501 which took effect on June 30, 2013, and the Justice Center This agency intends to adopt this emergency rule as a permanent rule and becomes operational. will publish a notice of proposed rule making in the State Register at some Among the facilities covered by Chapter 501 are adult homes and future date. The emergency rule will expire June 14, 2015. enriched housing programs having a capacity of eighty or more beds, and Text of rule and any required statements and analyses may be obtained in which at least 25% (twenty-five percent) of the residents are persons from: Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs with serious mental illness as defined by section 1.03(52) of the mental Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473- hygiene law, but not including an adult home which is authorized to oper- 7488, email: [email protected] ate 55% (fifty-five percent) or more of its total licensed capacity of beds Summary of Regulatory Impact Statement as assisted living program beds. Given the effective date of Chapter 501, The Department believes that the proposed regulatory amendments these implementing regulations must be promulgated on an emergency enhance the health and safety of those served by adult homes and enriched basis in order to assure the necessary protections for vulnerable persons at housing programs. such adult homes and enriched housing programs for an additional period Adult homes and enriched housing programs subject to the Justice likely extending several months. Absent emergency promulgation, such Center will be required to consult the Justice Center's register of substanti- persons would be denied initial coordinated protections for several ad- ated category one cases of abuse or neglect as established pursuant to sec- ditional months, creating an unacceptable risk to residents. Promulgating tion 495 of the Social Services Law prior to hiring certain employees, and these regulations on an emergency basis will provide such protection, where the person is not on that list, the facility will also be required to while still providing a full opportunity for comment and input as part of a check the Office of Children and Family Services' Statewide Central Reg- formal rulemaking process which will be implemented subsequently, as istry of Child Abuse and Maltreatment. The facility could not hire a person required by the State Administrative Procedures Act. The Department is on the Justice Center's list, but would have the discretion to hire a person authorized to promulgate these rules pursuant to Sections 20, 34, 131-o, who was only on Office of Children and Family Services' list. Reporting 460, 460-a—460-g, 461, 461-a—461-h of the Social Services Law; and L. and investigation obligations for all facilities would be expanded to cover 1997, ch. 436; and and L. 2012, ch. 501. “reportable incidents” which, are slightly more inclusive than what is Subject: Standards for Adult Homes and Adult Care Facilities Standards covered by current reporting and investigation obligations. The amend- for Enriched Housing. ments also add specific provisions addressing reporting and investigation Purpose: Revisions to Parts 487 and 488 in regards to the establishment of procedures, to require the posting the telephone number of the Justice the Justice Center for Protection of People with Special Needs. Center's reporting hotline, and to require the case manager to be capable Substance of emergency rule: The Department proposes to amend 18 of reporting and investigating incidents. Those amendments should not NYCRR Parts 487 and 488 to address the creation of the Justice Center for require any significant change in current practice or impose anything be- the Protection of Persons with Special Needs (Justice Center) pursuant to yond nominal additional expense to facilities. Requirements imposed on Chapter 501 of the Laws of 2012, and to conform the Department’s regula- facilities generally are limited to an obligation to train staff in the tions to requirements added or modified as a result of that Chapter Law. identification and reporting of reportable incidents. With regard to facili- Specifically, the amendments: ties subject to the Justice Center, that obligation, as well as the others D add definitions specific to facilities subject to the Justice Center of imposed by the regulations, are required by virtue of Chapter 501 of the “abuse,” “mistreatment,” “neglect,” “misappropriation of property,” “rea- Laws of 2012. The costs imposed by the amendments are expected to be sonable cause,” “reportable incident,” “Justice Center,” “significant minimal. In many cases, particularly with regard to the investigation incident,” “custodian,” “facility subject to the Justice Center,” “psycho- requirements, the amendments generally reflect existing practice, so logical abuse,” “Department,” and “ unlawful use or administration of a should neither impose any significant new costs or require any significant controlled substance” at sections 487.2(d)(1)-(13) and 488.2(c)(1)-(13); change in practice. D amend sections 487.5 and 488.5 to add occurrences which would con- Regulatory Flexibility Analysis stitute a reportable incident to the list of occurrences which residents Effect on Small Businesses and Local Governments: should not experience, and to require the operator of certain facilities to This rule imposes some new obligations and administrative costs on conspicuously post the telephone number of the Justice Center incident regulated parties (adult homes and enriched housing programs). Some of reporting hotline; the changes to Sections 487 and 488 apply to all adult home and enriched D amend sections 487.7 and 488.7 to clarify a facility’s obligations housing facilities; other only apply to those adult homes and enriched regarding what incidents must be investigated, how they must be investi- housing facilities which fall under the purview of the Justice Center. None gated and who must investigate them; of the requirements imposed by the amendments would impose different, D amend sections 487.7 and 488.7 to replace outdated references to the or unique, burdens on small businesses or local governments; the require- State Commission on Quality of Care for the Mentally Disabled with ref- ments apply equally statewide. The costs and obligations associated with erences to the Justice Center; the amendments are fully described in the “Costs to Regulated Parties” D amend sections 487.7 and 488.7 to add a requirement addressing when section of the Regulatory Impact Statement. reports must be provided to the Justice Center, and requiring such reports Most of the five-hundred twenty-two (522) certified adult homes in to conform to the requirements of the Justice Center; New York State, including the forty-seven (47) which fall under the

50 NYS Register/April 1, 2015 Rule Making Activities purview of the Justice Center, are operated by small businesses as defined Center), six (6) are located in rural counties, as follows: Allegany County, in Section 102 of the State Administrative Procedure Act. Those entities Cayuga County, Greene County, Genesee County, Monroe County and would be subject to all of the above additional requirements. Rensselaer County. Of the 522 adult homes and enriched housing Of the six (6) facilities operated by local governments, two (2) are programs statewide, including those not under the purview of the Justice scheduled to close within the next year. Of the four (4) remaining homes, Center, 160 are in rural areas. none fall within the scope of the Justice Department required reporting Reporting and Recordkeeping and Other Compliance Requirements: facilities. Accordingly, the only additional cost imposed on those four (4) Reporting and Recordkeeping: homes would be those nominal costs associated with obligations ap- Reporting, recordkeeping and other compliance requirements are ad- plicable to all adult homes and enriched housing facilities, as described in dressed in the “Costs to Regulated Parties” and “Paperwork” sections of the “Costs to Regulated Parties” and “Paperwork” sections of the Regula- the Regulatory Impact Statement. None of the requirements imposed by tory Impact Statement. the amendments would impose different, or unique, burdens on rural ar- Compliance Requirements: eas; the requirements apply equally statewide. As the facilities operated by local governments are not among those Other Compliance Requirements: within the purview of the Justice Center for the Protection of Persons with Compliance requirements are discussed in the “Costs to Regulated Par- Special Needs (Justice Center), the only impact upon facilities operated by ties” and “Paperwork” sections of the Regulatory Impact Statement. None local governments will be those resulting from obligations applicable to of the requirements imposed by the amendments would impose different, all adult homes and enriched housing facilities, as described in the “Costs or unique, burdens on rural areas; the requirements apply equally to Regulated Parties” and “Paperwork” sections of the Regulatory Impact statewide. Statement. Professional Services: The four (4) affected facilities run by local governments will experi- There are no additional professional services required to comply with the proposed amendments. ence minimal additional regulatory burdens in complying with the Compliance Costs: amendment’s requirements, as functions related to Justice Center activi- Cost to Regulated Parties: ties will not cause a need for additional staff or equipment. Compliance requirements and associated costs are discussed in the Those facilities which constitute small businesses would be subject to “Costs to Regulated Parties” and “Paperwork” sections of the Regulatory additional requirements, as they include facilities both subject to, and not Impact Statement. None of the requirements imposed by the amendments subject to, the purview of the Justice Center. The scope of the impact upon would impose different, or unique, burdens on rural areas; the require- any given facility depends on whether it falls within the Justice Center's ments apply equally statewide. purview. Such obligations and impacts are fully described in the “Costs to Economic and Technological Feasibility: Regulated Parties” and “Paperwork” sections of the Regulatory Impact There are no changes requiring the use of technology. The proposal is Statement. The amendments are not expected to create a need for any ad- believed to be economically feasible for impacted parties. The amend- ditional staff or equipment for those facilities. ments impose additional reporting and investigation requirements that will The Department expects that regulated parties will be able to comply use existing staff that already have similar job responsibilities. There are with these regulations as of their effective date, upon filing with the Secre- no requirements that will involve capital improvements. tary of State. Minimizing Adverse Economic Impact on Rural Area: Professional Services: Department efforts to consider minimizing the impact of the amend- No need for additional professional services is anticipated. Existing ments, and its consideration of alternatives to the amendments, are discussed in the “Alternatives” section of the Regulatory Impact professional staff are expected to be able to assume any increase in Statement. workload resulting from the additional requirements. Rural Area Participation: Compliance Costs: Of the forty-seven (47) current facilities that will fall under the purview This rule imposes limited new administrative costs on regulated parties of the Justice Center, six (6) are located in rural counties, as follows: Al- (adult homes and enriched housing programs), as described in the “Costs legany County, Cayuga County, Greene County, Genesee County, Monroe to Regulated Parties” and “Paperwork” sections of the Regulatory Impact County and Rensselaer County. The Department will notify all New York Statement. The changes to Sections 487 and 488 add additional administra- State-certified adult care facilities (ACFs) by a Dear Administrator Letter tive responsibilities for those adult home and enriched housing facilities (DAL) informing them of this expansion of requirements to protect people within the Justice Center’s jurisdiction. None of the requirements imposed with special needs. Regulated parties in rural areas are expected to be able by the amendments would impose different, or unique, burdens on small to participate in requirements of the Justice Center on the effective date of businesses or local governments; the requirements apply equally statewide. this amendment. Economic and Technological Feasibility: Job Impact Statement The proposed regulation would present no economic or technological No Job Impact Statement is required pursuant to Section 201-a (2)(a) of difficulties to any small businesses and local governments affected by this the State Administrative Procedure Act. It is apparent, from the nature of amendment. The infrastructure for contacting the Justice Center, and the proposed amendment that it will have no impact on jobs and employ- establishing an Incident Review Committee, are already in place. ment opportunities, because it does not result in an increase or decrease in Minimizing Adverse Impact: current staffing level requirements. Tasks associated with reporting new Department efforts to consider minimizing the impact of the amend- incidents types, reporting to the Justice Center for the Protection of People ments, and its consideration of alternatives to the amendments, are with Special Needs (Justice Center), as opposed to the Commission on the discussed in the “Alternatives” section of the Regulatory Impact Quality of Care and Advocacy for People with Disabilities, making public Statement. certain information as directed by the Justice Center and assisting with the These amendments will not have an adverse impact on the ability of investigation of new reportable incidents are expected to be completed by small businesses or local governments to comply with Department require- existing facility staff. Similarly, the need for a medical examination of the ments, as full compliance would require minimal enhancements to present patient in the course of investigating reportable incidents is similarly not hiring and follow-up practices. appreciably different from the current practice of obtaining such examina- Consideration was given to including a cure period to afford adult home tion under such circumstances. Accordingly, the amendments should not and enriched housing programs an opportunity to correct violations as- have any appreciable effect on employment as compared to current sociated with this rule; however, this option was rejected because it is requirements. believed that lessening the Department’s ability to enforce the regulations for violations could expose this already vulnerable population to greater risk to their health and safety. Small Business and Local Government Participation: State Liquor Authority The Department will notify all New York State certified ACFs by a Dear Administrator Letter (DAL) informing them of this Justice Center expansion of the protection of vulnerable people. Regulated parties that PROPOSED RULE MAKING are small businesses and local governments are expected to be prepared to participate in required Justice Center activities on the effective date of this NO HEARING(S) SCHEDULED amendment because the staff and infrastructure needed for performance of these are already in place. Updated Application Processes for Various Licenses and Permits Rural Area Flexibility Analysis Types and Estimated Number of Rural Areas: I.D. No. LQR-13-15-00002-P This rule applies uniformly throughout the state, including rural areas. Of the forty-seven (47) current facilities that will fall under the purview of PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- the Justice Center for the Protection of People with Special Needs (Justice cedure Act, NOTICE is hereby given of the following proposed rule:

51 Rule Making Activities NYS Register/April 1, 2015

Proposed Action: This is a consensus rule making to amend sections 30.2, (“Authority”) Notice of Proposed Rulemaking seeking to amend Parts 32.2, 33.2, 35.5 and 40.1; and repeal section 40.2 of Title 9 NYCRR. 30.2, 32.2, 33.2, 35.5, 40.1 and to repeal Part 40.2 of Title 9, Subtitle B, of Statutory authority: Alcohol Beverage Control Law, sections 93-a(3), the Official Compilation of Codes, Rules and Regulations of the State of 93(4), 99-b(2), 99(3) and 109(1) New York (N.Y.C.R.R.) Subject: Updated application processes for various licenses and permits. It is apparent from the nature and purpose of these proposed amend- Purpose: To update permit filing procedures and contact information at ments that no person is likely to object to their adoption as written. Part the authority. 30.2 sets forth filing information for Broker’s Permits. Part 32.2 sets forth filing information for Annual Temporary Solicitor’s Employment Permits. Text of proposed rule: Title 9, Subtitle B, of the Official Compilation of Part 33.2 sets forth filing information for several Miscellaneous Permits. Codes, Rules and Regulations of the State of New York (NYCRR), is Part 35.5 sets forth the review process for applications for Special Permits hereby amended to include amendments to parts 30.2, 32.2, 33.2, 35.5, to Remain Open During Certain Hours of the Morning. Parts 40.1 and and 40.1. In addition, Part 40.2 is hereby repealed. 40.2 set forth the filing process for Renewal Applications. All of said ap- § 30.2 Place of filing plications are now filed electronically, and as a result, the references to fil- Applications for such permits shall be filed [at the zone office of the Li- ing processes for these applications are outdated. The proposed amend- quor Authority for the zone in which the applicant's place of business is ments to Parts 30.2, 32.2, 33.2, 35.5, 40.1 and proposed deletion of Part located] on a form and in a manner as designated by the Authority. 40.2 corrects these outdated references. § 32.2 Place of filing Consistent with the definition of “consensus rule” as set forth in section Applications for temporary solicitor's employment permits should be 102(11) of the State Administrative Procedure Act, the Authority has filed [in the zone office of the Liquor Authority for the zone where the ap- determined that this proposal, which updates multiple incorrect references plicant's place of business is located] on a form and in a manner as to application processes, is non-controversial in nature and, therefore, no designated by the Authority. person is likely to object to its adoption as written. § 33.2 Place of filing (a) An application for a permit to purchase alcoholic beverages[, except Job Impact Statement a plenary permit,] shall be filed [with the zone office of the Liquor Author- This statement is being submitted pursuant to subdivision (2) of section ity at Albany, Buffalo, or New York City, whichever is nearest to the busi- 201-a of the State Administrative Procedure Act and in support of the ness address of the applicant] on a form and in a manner as designated by New York State Liquor Authority’s (“Authority”) Notice of Proposed the Authority. Rulemaking seeking to amend Parts 30.2, 32.2, 33.2, 35.5, and 40.1 and to (b) An application for a permit to sell alcoholic beverages[, except a repeal Part 40.2 of Title 9, Subtitle B, of the Official Compilation of plenary permit,] shall be filed [with the zone office of the Liquor Author- Codes, Rules and Regulations of the State of New York (N.Y.C.R.R.) ity at Albany, Buffalo, or New York City, whichever is nearest to the It is apparent from the nature and purpose of these proposed amend- premises where the sale will be held] on a form and in a manner as ments that they have no impact on jobs or employment opportunities in designated by the Authority. New York. These proposed amendments merely update filing processes (c) An application for a negotiator's permit shall be filed [with the zone for various applications to update and allow for the current practice of office of the Liquor Authority at Albany, Buffalo, or New York City, electronic filing. As a result, the Authority has determined that these whichever is nearest the licensed premises of the wholesaler in this State proposed amendments will have no substantial adverse impact on any with whom negotiations will be had] on a form and in a manner as private or public sector jobs or employment opportunities and therefore a designated by the Authority. full Job Impact Statement is not warranted. (d) An application for a plenary permit under subdivision (j) of section 33.1 hereof shall be filed [with the New York City office of the Liquor Authority] on a form and in a manner as designated by the Authority. (e) An application for a permit by a summer licensee to store alcoholic Office of Mental Health beverages shall be filed [with the zone office of the Liquor Authority at Albany, Buffalo, or New York City, whichever has jurisdiction over the county in which the licensed premises are located] on a form and in a EMERGENCY manner as designated by the Authority. (f) An application for a special events permit shall be filed on a form RULE MAKING and in a manner as designated by the Authority. § 35.5. Review process Implementation of the Protection of People With Special Needs (a) Applications shall be reviewed by the Licensing Bureau. A determi- Act and Reforms to Incident Management nation on an application shall be made within 10 business days of the authority's receipt of the application. I.D. No. OMH-13-15-00001-E (b) In the event that the application is disapproved, the licensee may Filing No. 160 seek reconsideration of the determination by the members of the authority. Filing Date: 2015-03-11 (c) Requests for reconsideration shall be submitted in writing to the Effective Date: 2015-03-11 [Office of Counsel] Chairman’s Office, 80 South Swan Street, Suite 900, Albany, NY 12210-8002. Such requests shall then be reviewed by a member of the authority. A determination on the request shall be made PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- within 10 business days after receipt of the request. cedure Act, NOTICE is hereby given of the following action: (d) A decision by a member of the authority on a request for reconsid- Action taken: Amendment of Parts 501 and 550; repeal of Part 524; and eration shall be considered a final determination of the authority. addition of new Part 524 to Title 14 NYCRR. § 40.1 Application forms Statutory authority: Mental Hygiene Law, sections 7.07, 7.09 and 31.04 The Liquor Authority will prescribe the form and manner of filing of applications for renewal of licenses. [An original and duplicate form of re- Finding of necessity for emergency rule: Preservation of public health, newal application will be mailed to each licensee, together with instruc- public safety and general welfare. tions governing the execution and filing of the application with the Liquor Specific reasons underlying the finding of necessity: The immediate Authority.] No application will be accepted except on the forms and in the adoption of these amendments is necessary for the preservation of the manner prescribed by the Liquor Authority and unless accompanied by health, safety, and welfare of individuals receiving services. the documents hereinafter prescribed. In December, 2012, the Governor signed the Protection of People with Text of proposed rule and any required statements and analyses may be Special Needs Act (PPSNA). This new law created the Justice Center for obtained from: Paul Karamanol, Senior Attorney, State Liquor Authority, the Protection of People with Special Needs (Justice Center) and estab- 80 South Swan Street, Suite 900, Albany, NY 12210, (518) 474-3114, lished many new protections for vulnerable persons, including a new email: [email protected] system for incident management in services operated or licensed by OMH and new requirements for more comprehensive and coordinated pre- Data, views or arguments may be submitted to: Same as above. employment background checks. Public comment will be received until: 45 days after publication of this The amendment of OMH regulations is necessary to implement many notice. of the provisions contained in the PPSNA. Consensus Rule Making Determination The promulgation of these regulations is essential to preserve the health, This statement is being submitted pursuant to subparagraph (i) of safety and welfare of individuals with mental illness who receive services paragraph (b) of subdivision (1) of section 202 of the State Administrative in the OMH system. If OMH did not promulgate regulations on an emer- Procedure Act and in support of the New York State Liquor Authority’s gency basis, many of the protections established by the PPSNA vital to the

52 NYS Register/April 1, 2015 Rule Making Activities health, safety and welfare of individuals with mental illness would not be Part 524, and also add and revise provisions of Parts 501 and 550 to imple- implemented or would be implemented ineffectively. Further, protections ment Chapter 501 of the Laws of 2012. Known as “The Protection of for individuals receiving services would be threatened by the confusion People with Special Needs Act,” this new law requires the establishment resulting from inconsistent requirements. For example, the emergency of comprehensive protections for vulnerable persons, including persons regulations change the categories of incidents to conform to the categories with mental illness, against abuse, neglect and other harmful conduct. established by the PPSNA. Without the promulgation of these amend- The Act created a Justice Center with responsibilities for effective ments, agencies would be required to report incidents based on one set of incident reporting and investigation systems, fair disciplinary processes, definitions to the Justice Center and incidents based on a different set of informed and appropriate staff hiring procedures, and strengthened moni- definitions to OMH. Requirements for the management of incidents would toring and oversight systems. The Justice Center operates a 24/7 hotline also be inconsistent. Especially concerning regulatory requirements re- for reporting allegations of abuse, neglect and significant incidents in ac- lated to incident management and pre-employment background checks, it cordance with Chapter 501’s provisions for uniform definitions, manda- is crucial that OMH regulations be changed to support the new require- tory reporting and minimum standards for incident management programs. ments in the PPSNA so that this initiative is implemented in a coordinated In collaboration with OMH, the Justice Center is also charged with fashion. developing and delivering appropriate training for caregivers, their For all of the reasons outlined above, this rule is being adopted on an supervisors and investigators. Additionally, the Justice Center is respon- Emergency basis until such time as it has been formally adopted through sible for conducting criminal background checks for applicants, including the SAPA rule promulgation process. those who will be working in the OMH system. Subject: Implementation of the Protection of People with Special Needs Chapter 501 of the Laws of 2012 also created a Vulnerable Persons’ Act and reforms to incident management. Central Register (VPCR). This register contains the names of custodians Purpose: To enhance protections for people with mental illness served in found to have committed substantiated acts of abuse or neglect using a the OMH system. preponderance of evidence standard. All custodians found to have com- Substance of emergency rule: The emergency regulations are intended to mitted such acts have the right to a hearing before an administrative law conform regulations of the Office of Mental Health (OMH) to Chapter judge to challenge those findings. Custodians having committed egregious 501 of the Laws of 2012 (Protection of People with Special Needs Act or or repeated acts of abuse or neglect are prohibited from future employ- PPSNA). The primary changes include: ment in providing services for vulnerable persons, and may be subject to D 14 NYCRR Part 501 is amended by adding a new Subdivision (a) to criminal prosecution. Less serious acts of misconduct are subject to pro- Section 501.5, “Obsolete or Outdated References,” that replaces any refer- gressive discipline and retraining. Job applicants with criminal records ence throughout OMH regulations to the Commission on Quality of Care who seek employment serving vulnerable persons will be individually and Advocacy for Persons with Disabilities with a reference to the Justice evaluated as to suitability for such positions. Center for the Protection of People with Special Needs. Pursuant to Chapter 501 of the Laws of 2012, the Justice Center is D 14 NYCRR Part 524 (Incident Management) has been repealed and charged with recommending policies and procedures to OMH for the revised to incorporate categories of “reportable incidents” as established protection of persons with mental illness. This effort involves the develop- by the PPSNA and includes enhanced provisions regarding incident ment of requirements and guidelines in areas including but not limited to investigations. The amendments make changes related to definitions, incident management, rights of people receiving services, criminal reporting, investigation, notification and committee review of events and background checks, and training of custodians. In accordance with Chapter situations that occur in providers of mental health services licensed or 501, these requirements and guidelines must be reflected, wherever ap- operated by OMH. It is OMH’s expectation that implementation of these propriate, in OMH’s regulations. Consequently, the amendments incorpo- amendments will enhance safeguards for persons with mental illness, rate the requirements in regulations and guidelines recently developed by which, in turn, will allow individuals to focus on their recovery. The the Justice Center. amendments also require distribution of the Code of Conduct, developed The amendments make changes to OMH’s incident management pro- by the Justice Center, to all employees. Providers must maintain signed cess to strengthen the process and to provide further protection to people documentation from such employees, indicating that they have received, receiving services from harm and abuse. For example, the amendments and understand, the Code. make changes related to definitions, reporting, investigation, notification, D Revisions to 14 NYCRR Part 550 are intended to facilitate and imple- and committee review of events and situations that occur in providers of ment the consolidation of the criminal background check function in the mental health services licensed or operated by OMH. It is OMH’s expecta- Justice Center, and to make other conforming changes to the criminal tion that implementation of the amendments will enhance safeguards for background check function established by the PPSNA. persons with mental illness, which will in turn allow individuals to focus on their recovery. This notice is intended to serve only as a notice of emergency adoption. 4. Costs: This agency intends to adopt this emergency rule as a permanent rule and (a) Costs to the Agency and to the State and its local governments: will publish a notice of proposed rule making in the State Register at some OMH will not incur significant additional costs as a provider of services. future date. The emergency rule will expire June 8, 2015. While the regulations impose some new requirements on providers, OMH Text of rule and any required statements and analyses may be obtained expects that it will comply with the new requirements with no additional from: Sue Watson, NYS Office of Mental Health, 44 Holland Avenue, staff. There may be minimal one-time costs associated with notification Albany, NY 12229, (518) 474-1331, email: [email protected] and training of staff. Regulatory Impact Statement Any costs or savings will have no impact on Medicaid rates, prices or 1. Statutory Authority: Chapter 501 of the Laws of 2012, i.e., “The fees. Therefore, there is no impact on New York State in its role paying Protection of People with Special Needs Act,” establishes Article 20 of for Medicaid services. the Executive Law, Article 11 of the Social Services Law, and makes a There are no costs to local governments as there are no changes to number of amendments in other statutes, including the Mental Hygiene Medicaid reimbursement. Law. (b) Costs to private regulated parties: It is difficult to estimate the cost Section 7.07 of the Mental Hygiene Law, charges the Office of Mental impact on private regulated parties; however, OMH expects that costs to Health with the responsibility for seeing that persons with mental illness providers will be minimal. OMH already requires the reporting and are provided with care and treatment, that such care, treatment, and reha- investigation of incidents. The implementation of these reforms in general bilitation are of high quality and effectiveness, and that the personal and will not result in costs. There may also be additional costs associated with civil rights of persons with mental illness receiving care and treatment are the need for medical examinations in cases of alleged physical abuse or adequately protected. clinical assessments needed to substantiate a finding of psychological Sections 7.09 and 31.04 of the Mental Hygiene Law grant the Commis- abuse. Again, OMH is not able to estimate these cost impacts. There are sioner of the Office of Mental Health the authority and responsibility to no costs associated with a check of the Staff Exclusion List. Other amend- adopt regulations that are necessary and proper to implement matters under ments made in the rule making merely clarify existing requirements or his or her jurisdiction. interpretive guidance, or can be implemented without cost to the provider. 2. Legislative Objectives: These regulatory amendments further the OMH anticipates that generally any potential costs incurred will be legislative objectives embodied in the Protection of People with Special mitigated by savings that the provider will realize from the improvements Needs Act, as well as Sections 7.07, 7.09, and 31.04 of the Mental Hygiene to the incident management process. OMH expects that in the long term, Law. The amendments incorporate a number of reforms to regulations of the amendments will ultimately reduce incidents and abuse in its system the Office of Mental Health (OMH) in order to increase protections and and increase efficiency and quality in the reporting, investigation, notifica- improve the quality of services provided to persons receiving services tion, and review of such events. OMH is not able to quantify the minor from mental health providers operated or licensed by OMH. potential costs or the savings that might be realized by the promulgation of 3. Needs and Benefits: The amendments include new and modified these amendments. requirements for incident management programs, codified at 14 NYCRR 5. Local Government Mandates: There are no new requirements

53 Rule Making Activities NYS Register/April 1, 2015 imposed by the rule on any county, city, town, village; or school, fire, or providers associated with these amendments. There may be nominal costs other special district. for providers to comply with the expanded notification requirements, but 6. Paperwork: The new regulations require additional paperwork to be OMH is unable to determine the cost impact. Furthermore, providers may completed by providers. Examples of additional paperwork are found in experience savings if the Justice Center or OMH assumes responsibility new requirements pertaining to reporting reportable incidents to the Justice for investigations that were previously conducted by provider staff. In the Center and making additional notifications. However, the Justice Center long term, compliance activities associated with the implementation of will likely predominantly utilize electronic format for incident reporting. these amendments are expected to reduce future incidents and abuse, 7. Duplication: The amendments do not duplicate any existing State or resulting in savings for providers as well as benefits to the wellbeing of Federal requirements that are applicable to services for persons with individuals receiving services. mental illness. In some instances, the regulations reiterate current require- 5. Economic and technological feasibility: The amendments may ments in New York State law. impose the use of new technological processes on small business providers. 8. Alternatives: Current definitions of incidents in OMH regulations Providers have already been reporting incidents and abuse in NIMRS, and that require reporting and investigation exceed the criteria in the new statu- that technology will continue to be used. However, statutory requirements tory definitions in Chapter 501. OMH considered reducing or eliminating to report reportable incidents to the Justice Center in the manner specified requirements applying to events and situations that do not meet the criteria by the Justice Center may impose new technology requirements if that is in the statutory definitions for “reportable incidents.” However, OMH the manner specified by the Justice Center. However, this is not a direct chose to propose the continuation of protections associated with these impact caused by the regulations. events and situations. 6. Minimizing adverse economic impact: The amendments may result 9. Federal Standards: The amendments do not exceed any minimum in an adverse economic impact for small business providers due to ad- standards of the federal government for the same or similar subject areas. ditional compliance activities and associated compliance costs. However, as stated earlier, OMH expects that compliance with these new regulations 10. Compliance Schedule: The regulations will be effective im- will result in savings in the long term and there may be some short term mediately upon filing to ensure compliance with Chapter 501 of the Laws savings as a result of the conduct of investigations by the Justice Center. of 2012. OMH intends thereafter to continue to develop and transmit OMH has reviewed the regulations to determine if there were any vi- implementation guidance to regulated parties to assist them with able approaches for minimizing adverse economic impact as suggested in compliance. section 202-b(1) of the State Administrative Procedure Act; none were Regulatory Flexibility Analysis readily identified. However, OMH did not consider the exemption of small 1. Effect on small business: OMH has determined, through its Bureau businesses from these amendments or the establishment of differing of Inspection and Certification, that approximately 732 agencies provide compliance or reporting requirements since OMH considers compliance services which are certified or licensed by OMH. OMH is unable to with the amendments to be crucial for the health, safety, and welfare of the estimate the portion of these providers that may be considered to be small individuals served by small business providers. businesses (under 100 employees). 7. Small business participation: Chapter 501 of the Laws of 2012 was However, the amendments have been reviewed by OMH in light of originally a Governor’s Program Bill which received extensive media their impact on small businesses. The regulations make revisions to attention. Providers have had the opportunity to become familiar with its OMH’s requirements for incident management which will necessitate provisions since it was made available on various government websites some changes in compliance activities and may result in additional costs last June. Furthermore, in accordance with statutory requirements, the rule and savings to providers, including small business providers. However, was presented to the Mental Health Services Council for review and OMH is unable to quantify the potential additional costs and savings to recommendations. providers as a result of these amendments. In any event, these changes are 8. For rules that establish or modify a violation or penalties associated required by statute and OMH considers that the improvements in protec- with a violation: The amendments include a penalty for violating the tions for people served in the OMH system will help safeguard individuals regulations of a fine not to exceed $1,000 per day or $15,000 per violation from harm and abuse; thus, the benefits more than outweigh any potential in accordance with section 31.16 of the Mental Hygiene Law and/or may negative impact on providers. suspend, revoke, or limit an operating certificate or take any other ap- 2. Compliance requirements: The regulations add several new require- propriate action, in accordance with applicable law and regulations. ments with which providers must comply. Amendments associated with However, due process is available to a provider via 14 NYCRR Part 503. the implementation of Chapter 501 include a requirement that providers Rural Area Flexibility Analysis report “reportable incidents” and deaths to the Justice Center. In addition, 1. Description of the types and estimation of the number of rural areas the regulations impose an obligation on providers to obtain an examina- in which the rule will apply: OMH services are provided in every county tion for physical injuries; however, OMH anticipates that providers are al- in New York State. Forty-three counties have a population of less than ready obtaining examinations of physical injuries. While Chapter 501 also 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, establishes an obligation to obtain a clinical assessment to substantiate a Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, charge of psychological abuse, it is not immediately clear who will be Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Living- responsible for obtaining, and paying for, that assessment. ston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Current OMH regulations require reporting and investigation of Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, incidents, and that providers request criminal background checks. While Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, the amendments incorporate some changes and reforms, the basic require- Wyoming and Yates. Additionally, 10 counties with certain townships ments are conceptually unchanged. OMH, therefore, expects that ad- have a population density of 150 persons or less per square mile: Albany, ditional compliance activities (except as noted above) will be minimal. Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, There is no associated cost with checking the Staff Exclusion List. The and Saratoga. cost to check the Statewide Register of Child Abuse and Maltreatment is The amendments have been reviewed by OMH in light of their impact $25 per check; providers serving children are already incurring this cost. on rural areas. The regulations make revisions and in some cases enhance However, this would represent a new cost for providers who previously OMH’s current requirements for incident management programs, which did not request such checks, though this cost could be passed by the will necessitate some changes in compliance activities and result in ad- provider to the applicant. ditional costs and savings to providers, including those in rural areas. Providers subject to these regulations are already responsible for However, OMH is unable to quantify the potential additional costs and complying with incident management regulations. The regulations savings to providers as a result of these amendments. In any event, OMH enhance some of these requirements, e.g., providers must comply with the considers that the improvements in protections for people served in the new requirement to complete investigations within a 45-day timeframe. OMH system will help safeguard individuals from harm and abuse and Providers must also comply with new requirements to enhance the inde- that the benefits more than outweigh any potential negative impacts on all pendence of investigators and incident review committees. However, providers. OMH expects that additional compliance activities associated with these The geographic location of any given program (urban or rural) will not enhanced requirements will be minimal. be a contributing factor to any additional costs to providers. 3. Professional services: There may be additional professional services 2. Compliance requirements: The regulations add some new require- required for small business providers as a result of these amendments. The ments with which providers must comply. Amendments associated with definition of psychological abuse references a need to determine specific the implementation of Chapter 501 include a requirement that providers impacts on an individual receiving services by means of a clinical assess- report “reportable incidents” and deaths to the Justice Center. In addition, ment, but it is not immediately clear at what stage in the process that as- the regulations impose an obligation on providers to obtain an examina- sessment must be maintained or who is responsible for obtaining and pay- tion for physical injuries, and there is a requirement that, for a finding of ing for it. The amendments will not add to the professional service needs psychological abuse to be substantiated, a clinical assessment is needed in of local governments. order to demonstrate the impact of the conduct on the individual receiving 4. Compliance costs: There may be modest costs for small business services.

54 NYS Register/April 1, 2015 Rule Making Activities

Current OMH regulations require reporting and investigation of NOTICE OF ADOPTION incidents, and that providers request criminal background checks. While the amendments incorporate some changes, the basic requirements are Clinic Treatment Programs conceptually unchanged. OMH therefore expects that additional compliance activities associated with these changes will be minimal. However, I.D. No. OMH-02-15-00003-A there will be additional compliance activities associated with checking the Filing No. 161 Staff Exclusion List. Filing Date: 2015-03-11 Providers must comply with the new requirement to complete investiga- Effective Date: 2015-04-01 tions within a 45-day timeframe. Providers must also comply with new requirements to enhance the independence of investigators and incident PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- review committees. However, OMH expects that additional compliance cedure Act, NOTICE is hereby given of the following action: activities will be minimal since providers are already required to comply Action taken: Amendment of Part 599 of Title 14 NYCRR. with existing incident management program requirements; these revisions Statutory authority: Mental Hygiene Law, sections 7.09, 31.04, 43.01, primarily enhance current requirements. 43.02 and 43.02(b) 3. Professional services: There may be additional professional services Subject: Clinic Treatment Programs. required for rural providers as a result of these amendments. The amend- Purpose: Amend reimbursement structure for delivery of psychotherapy ments will not add to the professional service needs of rural providers. services; eliminate utilization threshold for court-mandated services. 4. Compliance costs: There may be modest costs for rural providers as- Text or summary was published in the January 14, 2015 issue of the Reg- sociated with the amendments. There also may be nominal costs for rural ister, I.D. No. OMH-02-15-00003-P. providers to comply with the expanded notification requirements. Final rule as compared with last published rule: No changes. However, all providers may experience savings if the Justice Center or Text of rule and any required statements and analyses may be obtained OMH assumes responsibility for investigations that were previously from: Sue Watson, NYS Office of Mental Health, 44 Holland Avenue, conducted by provider staff. Albany, NY 12229, (518) 474-1331, email: [email protected] In the long term, compliance activities associated with the implementa- Initial Review of Rule tion of these amendments are expected to reduce future incidents and As a rule that does not require a RFA, RAFA or JIS, this rule will be abuse, resulting in savings for both urban and rural area providers as well initially reviewed in the calendar year 2020, which is no later than the 5th as benefits to the wellbeing of individuals receiving services. year after the year in which this rule is being adopted 5. Minimizing adverse impact: The amendments may result in an Assessment of Public Comment adverse economic impact for rural providers due to additional compliance The agency received no public comment. activities and associated compliance costs. However, as stated earlier, OMH expects that compliance with these enhanced regulations will result in savings in the long term and there may be some short-term savings as a result of the conduct of investigations by the Justice Center. Department of Motor Vehicles OMH has reviewed the regulations to determine if there were any vi- able approaches for minimizing adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act; none were PROPOSED RULE MAKING readily identified. However, OMH did not consider the exemption of rural area providers from the amendments or the establishment of differing NO HEARING(S) SCHEDULED compliance or reporting requirements, since OMH considers compliance with the amendments to be crucial for the health, safety, and welfare of the Registration of Pick Up Trucks individuals served by rural area providers. I.D. No. MTV-13-15-00011-P 6. Participation of public and private interests in rural areas: Chapter 501 of the Laws of 2012 was originally a Governor’s Program Bill which PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- received extensive media attention. Providers have had the opportunity to cedure Act, NOTICE is hereby given of the following proposed rule: become familiar with its provisions since it was made available on various government websites last June. Furthermore, in accordance with statutory Proposed Action: Amendment of section 106.6 of Title 15 NYCRR. requirements, the rule was presented to the Mental Health Services Statutory authority: Vehicle and Traffic Law, sections 215(a), 401(7) and Council for review and recommendations. (15) Subject: Registration of pick up trucks. Job Impact Statement Purpose: To allow the registration of pick up trucks in the passenger class A Job Impact Statement for these amendments is not being submitted up to 6,000 pounds. because OMH does not anticipate a substantial adverse impact on jobs and Text of proposed rule: Subdivision (b) of Part 106.6 is amended to read as employment opportunities. follows: The amendments incorporate a number of reforms to improve the qual- (b) A pickup truck which is used exclusively for non-commercial ity and consistency of incident management activities throughout the purposes with an unladen weight of [five] six thousand [and five hundred] OMH system. However, it is not anticipated that these reforms will nega- pounds or less, and with no business advertising may receive a passenger tively impact jobs or employment opportunities. The amendments that registration, at the registrant's option. This subdivision shall also apply to impose new requirements on providers, such as additional reporting pick-up trucks weighing [five] six thousand [and five hundred] pounds or requirements and the timeframe for completion of investigations, will not less that are leased and rented, provided that the lessee or renter of the result in an adverse impact on jobs. OMH anticipates that there will be no pickup truck certifies on a form, provided by the leasing or rental effect on jobs as agencies will utilize current staff to perform the required company, that the pickup truck shall be used exclusively for non- compliance activities. commercial purposes. No rental or leasing company shall permit the registration of a pickup truck if the renter or lessee fails to complete the Chapter 501 of the Laws of 2012 and these implementing regulations certification required by this subdivision or if such company knows or has will also mean that some functions that are currently performed by OMH reason to know that the renter or lessee is operating a pickup truck for staff will instead be performed by the staff of the Justice Center. OMH commercial purposes. expects that the volume of incidents and occurrences investigated will be Text of proposed rule and any required statements and analyses may be roughly similar. To the extent that the Justice Center performs investiga- obtained from: Heidi Bazicki, Department of Motor Vehicles, 6 Empire tions, oversees the management of reportable incidents, and manages State Plaza, Rm. 522A, Albany, NY 12228, (518) 474-0871, email: requests for criminal history record checks, the result is expected to be [email protected] neutral in that positions lost by OMH will be gained by the Justice Center. Data, views or arguments may be submitted to: Ida L. Traschen, Same as It is therefore apparent from the nature and purpose of the rule that it above. will not have a substantial adverse impact on jobs and employment Public comment will be received until: 45 days after publication of this opportunities. notice.

55 Rule Making Activities NYS Register/April 1, 2015

Regulatory Impact Statement 7. Duplication: This proposal does not duplicate, overlap or conflict 1. Statutory authority: Vehicle and Traffic Law section 215(a) provides with any relevant rule or legal requirement of the State and federal that the Commissioner of Motor Vehicles may enact rules and regulations governments. that regulate and control the exercise of the powers of the Department. 8. Alternatives: The Department canvassed the State Department of VTL section 401(7) provides the registration fee schedule for vehicles Transportation, the Division of State Police, the Palisades Interstate Parks “constructed or specially equipped for the transportation of goods, wares Commission, and the Office of Parks, Recreation and Historic Preserva- and merchandise, commonly known as auto trucks…” Section 401(15) tion about the proposed rulemaking. None of the agencies had an objec- specifically authorizes the Commissioner of Motor Vehicles to promulgate tion to raising the registration threshold to 6,000 pounds. The Superinten- regulations “…for the proper enforcement of the provisions of this section dent of State Police suggested that the DMV also consider using vehicle with respect to the registration of auto trucks…” height and length in determining the suitability for parkway infrastructure. 2. Legislative objectives: The proposal is consistent with the legislative Although this is a valid point, incorporating height and length into the objectives underlying the registration requirements for motor vehicles: to DMV’s registration process would pose substantial administrative identify vehicles as belonging to a particular class, to insure that appropri- obstacles. We also canvassed the NYC Department of Transportation but ate fees are paid and, indirectly, to authorize or prohibit the use of particu- received no response. A no action alternative was considered but not lar roadways by particular types of vehicles. adopted due to the benefits to consumers. 3. Needs and benefits: In 2000, the Department adopted amendments to 9. Federal standards: The proposal does not exceed any minimum stan- Part 106.6 to provide: dards of the federal government for the same or similar subject areas. A pickup truck which is used exclusively for non-commercial purposes 10. Compliance schedule: The Department will be able to achieve with an unladen weight of five thousand pounds or less, and with no business advertising may receive a passenger registration, at the registrant's compliance with the proposed amendment as soon as it is adopted. option. Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job In 2000, the Department explained in its Regulatory Impact Statement Impact Statement that sales of light duty trucks, including pickup trucks, had increased A regulatory flexibility analysis for small business and local govern- substantially. More and more, pickup trucks were being sold to customers ments, a rural area flexibility analysis, and a job impact statement are not who intended to use them for daily transportation and other personal uses, required for this rulemaking proposal because it will not adversely affect rather than in connection with a commercial enterprise. Despite that, DMV small businesses, local governments, rural areas, or jobs. regulations and procedures required that “unmodified” pickups be issued This proposal sets forth criteria for the registration of pickup trucks in commercial class license plates. As a result, such vehicles were prohibited the passenger class. Due to its narrow focus, this rule will not impose an from using many of the State’s parkways and other roadways, on which adverse economic impact or reporting, record keeping, or other compli- the regulating jurisdictions prohibit the use of “commercial” vehicles. ance requirements on small businesses in rural or urban areas or on While those jurisdictions are not required to use a vehicle’s registration employment opportunities. No local government activities are involved. classification as the sole or primary determinant of a vehicle’s status under their particular regulations, they often do. In fact, particularly given the PROPOSED RULE MAKING trend in the vehicle population toward SUV’s and “modified” pickup trucks, which are issued passenger registrations, the unmodified pickup is NO HEARING(S) SCHEDULED not substantially different in terms of construction, size or usage than other vehicles which are permitted to use these roadways under current Off Premise Sales of Motor Vehicles regulations of the responsible jurisdictions. In DMV’s view, this need- I.D. No. MTV-13-15-00012-P lessly glorified form over substance, and should be rectified. Section 401(7) has been relied upon by DMV to mandate issuance of commercial plates for pickups. While we believe that this statute would PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- still require the payment of the 401(7) fee for unmodified pickups, which cedure Act, NOTICE is hereby given of the following proposed rule: are constructed to transport “goods, wares and merchandise,” it does not Proposed Action: Amendment of section 78.8 of Title 15 NYCRR. mandate the issuance of any particular license plate, which rests with the Statutory authority: Vehicle and Traffic Law, sections 215(a) and 415 Commissioner’s regulatory authority under Section 401(15). Since the adoption of the regulation in 2000, the Department has Subject: Off premise sales of motor vehicles. received numerous requests from citizens encouraging DMV to raise the Purpose: Provides guidance of off premise sales of motor vehicles by threshold for registering pickups with passenger plates. These citizens pri- registered dealers. marily argue that since many SUV’s weigh more than 5,000 pounds and Text of proposed rule: Paragraph (2) of subdivision (c) of section 78.8, operate freely on the parkways, pickup trucks, which are not significantly and such subdivision are amended to read as follows: different in size and weight than many SUV’s, should also be allowed to (c) A dealer may conduct a maximum of two (2) sales per calendar year operate on parkways. The Department found this argument persuasive in at additional locations if: 2004 and raised the weight limit for pickups registered as passenger (2) the dealer [mans] staffs, for the entire duration of the sale, a booth vehicles to 5,500 pounds. This applied to all pickups, including leased and or desk at the away-from-premises location which has the dealer's name, rented vehicles, as well as those purchased outright by the consumer. registered street address, registration number and telephone number Recently, several members of the State Legislature and the New York [prominently] displayed proportionate to the size of the sign or in letters at State Automobile Dealers Association (NYSADA) have asked the DMV least [two] four inches high[.] with a stroke of three-fourths of one inch on to again raise the weight threshold for the registration of pickup trucks in a sign at least 18 square feet in size. All sales must take place at the booth the passenger class, particularly due to the changing configurations and or desk; weights of both pickup trucks and passenger vehicles. Paragraphs (1), (2), (3), (4), (5) and (6) of subdivision (d) of section NYSADA points out that certain pickup trucks exceed the 5,500 pound 78.8 are amended to read as follows: threshold by simply adding options. For example, the 2014 Toyota Tundra (1) a written request from a dealer, [a dealer association or a Platinum, in two wheel drive, has a curb weight of 5,560 pounds, while manufacturer] on a form prescribed by the commissioner, is received at the Toyota Tundra Limited has a curb weight of 5,375 pounds. Popular ac- least [fifteen] twenty days before the sale is to begin; cessories, such as bed liners and running boards add to the weight. (2) the sale location is within twenty (20) miles of the dealer’s NYSADA also points out that heavy non-commercial vehicles such as the registered location, provided, however, in the counties of Westchester, Chevrolet Suburban, the Cadillac Escalade and Ford Expedition, all of Rockland, Bronx, New York, Kings, Queens, Richmond, Nassau and Suf- which weigh more than 5,500 pounds, are registered as passenger vehicles folk, the sale location is within six (6) miles of the dealer’s registered lo- and may operate on our State’s parkways. cation; and Increasing the weight threshold from 5,500 to 6,000 pounds for the (3) the sale is to be of ten consecutive days duration or less; [and] registration of pickup trucks in the commercial class will benefit consum- (4) neither the dealer nor the away-from-premises location has a his- ers who purchase such vehicles and wish to operate them on our State’s tory of violations[.] ; and parkways. (5) all third party participants in such sale are identified at the time 4. Costs: There are no costs to consumers, state agencies or local of the request, and, in the case of banks and/or credit lenders, are certified governments. As indicated, the fee for registration for unmodified pickups by the New York State Department of Financial Services to operate in will continue to be imposed under Section 401-7 of the VTL, and is not, New York State, therefore, impacted by the proposal. (6) the sale location complies with all applicable local zoning 5. Local government mandates: The proposal does not impose any requirements and, if required, all necessary permits have been acquired mandates on local governments. and are maintained at the dealer’s registered location. 6. Paperwork: The proposal does not impose any additional paper Subdivision (e) is relettered (g) and new subdivisions (e) and (f) are requirements on the Department. added to section 78.8 to read as follows:

56 NYS Register/April 1, 2015 Rule Making Activities

(e) The provision of subdivision (c) of this section regarding the letter to the DMV. The dealer associations that reviewed the proposed rule maximum number of sales per calendar year and the provision of recommended that the DMV collect the information required on the new paragraph (2) of subdivision (d) of this section regarding the location of form. sales shall not apply to sales of recreational vehicles. For the purpose of 7. Duplication: This proposed regulation does not duplicate or conflict this section, the term ‘‘recreational vehicle’’ shall have the same meaning with any State or Federal rule. as ‘‘house coach’’ as such term is defined in section one hundred nineteen 8. Alternatives: The Department sought comments from the New York of the Vehicle and Traffic Law. State Automobile Dealers Association, the Greater New York Automobile (f) All advertising for sales away from the dealer’s registered location Dealers Association, the Eastern New York Coalition of Automotive shall include the dealer’s name, registered street address, facility registra- Retailers, the Rochester Automobile Dealers Association, the Syracuse tion number and telephone number. Automobile Dealers Association, and the Niagara Frontier Automobile (g) A display of a vehicle at which the dealer has no sales personnel or Dealers Association, regarding the proposed regulation. As a result of employee present shall be considered a display and not a sale and is permit- those comments the Department made some changes to our initial ted without compliance with this section. A display of a vehicle at which proposal. New language was added to provide that compliance with sec- the dealer has a sales person or employee present requires the dealer to tion 78.8 does not apply to the display of vehicles at an event, such as an comply with this section[.]; provided, however, that a display of vehicles auto show, in which numerous manufacturers participate. Additionally, the proposed rule will require applicants for off-premise sales to complete at an event, such as an auto show, in which numerous manufacturers par- a form prescribed by the Commissioner. Such applicant will be required to ticipate and which is for the purpose of display is permitted without submit information suggested by the dealer associations, such as the name compliance with this section. of the dealer’s employees/salespersons, so that such employees are identi- Text of proposed rule and any required statements and analyses may be fied as NYS employees subject to NYS labor laws, worker’s compensa- obtained from: Heidi Bazicki, Department of Motor Vehicles, 6 Empire tion laws, benefits, and tax liabilities. Some of the dealers recommended State Plaza, Rm. 522A, Albany, NY 12228, (518) 474-0871, email: that a $50,000 bond be posted by those conducting off-premise sales. We [email protected] rejected this proposal due to the undue burden it would impose on used car Data, views or arguments may be submitted to: Ida L. Traschen, Same as dealers. 9. Federal standards: The rule does not exceed any Federal standards. above. 10. Compliance schedule: The Department expects that all regulated Public comment will be received until: 45 days after publication of this parties will be in compliance upon adoption of the regulation. notice. Regulatory Flexibility Analysis Regulatory Impact Statement 1. Effect of rule: There are currently over 11,800 dealers in New York 1. Statutory authority: Vehicle and Traffic Law (VTL) section 215(a) State, the majority of which are small businesses. This proposed regula- provides that the Commissioner of Motor Vehicles may enact rules and tion would have no impact on local governments. regulations that regulate and control the exercise of the powers of the 2. Compliance requirements: Dealers who wish to conduct off-premise Department. VTL section 415 controls the registration, rights and respon- sales would be required to comply with the proposed rule. Such require- sibilities of dealers. ments include signage standards, limitations on the distance a sale can be 2. Legislative objectives: VTL 415(1)(c) provides that a dealer must conducted from the dealer’s place of business, notification of third party have a “place of business,” which “means a designated location at which participants, compliance with local zoning requirements, and submitting a the business of the dealer is conducted, and, in relation to a retail dealer, form, prescribed by the Commissioner, when applying to conduct an off- premise sale. facilities for displaying new or used motor vehicles.” However, under the 3. Professional services: This regulation would not require dealers to Commissioner’s broad regulatory, authority, Section 78.8 establishes the obtain new professional services. parameters for conducting off-premise sales. The purpose of the proposed 4. Compliance costs: Dealers may need to construct or purchase a new regulation is to provide more specific guidance for off-premise sales by sign that comports with the regulation, but such cost will be de minimus. dealers. 5. Economic and technological feasibility: The proposal is economi- 3. Needs and benefits: The proposed rule is necessary to provide cally and technologically feasible for dealers to comply with as it does not specific guidance for the conduct of off-premise sales in New York State. impose any new technological requirements. Over the past several years, an increasing number of dealerships have 6. Minimizing adverse impact: The Department sought comments from exploited loopholes in the current regulation by using third-party promo- the New York State Automobile Dealers Association, the Greater New tional companies to sell vehicles, instead of the dealer’s own employees, York Automobile Dealers Association, the Eastern New York Coalition of selling vehicles far from their relevant market area, and conducting almost Automotive Retailers, the Rochester Automobile Dealers Association, the constant off-premise sales, making it a part of their every-day business Syracuse Automobile Dealers Association, and the Niagara Frontier model, rather than a “special event” conducted periodically. These amend- Automobile Dealers Association, regarding the proposed regulation. As a ments are intended to control these excesses. result of those comments the Department made some changes to our initial Specifically, the proposed regulation provides that: a dealer may proposal. New language was added to provide that compliance with sec- conduct a maximum of two off-premise sales per calendar year, more tion 78.8 does not apply to the display of vehicles at an event, such as an auto show, in which numerous manufacturers participate. Additionally, prominent signage must be displayed at the off-premise site, the Commis- the proposed rule will require applicants for off-premise sales to complete sioner must be given at least 20 days’ notice before the sale, on a form to a form prescribed by the Commissioner. Such applicant will be required to be prescribed by the Commissioner, sales must be held within a designated submit information suggested by the dealer associations, such as the name distance from the dealer’s registered place of business, all third party of the dealer’s employees/salespersons, so that such employees are identi- participants must be identified at the time of the request, and the place of fied as NYS employees subject to NYS labor laws, worker’s compensa- sale must comply with local zoning requirements. The rule provides that tion laws, benefits, and tax liabilities. Some of the dealers recommended the maximum number of off-premise sale events shall not apply to the that a $50,000 bond be posted by those conducting off-premise sales. We sales of recreational vehicles. rejected this proposal due to the undue burden it would impose on used car This proposed regulation provides the necessary regulatory framework dealers. for the conduct of off-premise sales, while permitting such sales to 7. Small business and local government participation: See response to continue, particularly since they benefit both the dealers who conduct number 6 above. such sales and the customers who purchase motor vehicles at such sales. Rural Area Flexibility Analysis and Job Impact Statement 4. Costs: a. to regulated parties: A rural area flexibility analysis and a job impact statement are not Dealers may need to purchase a new sign to comport with the regulation. required for this rulemaking proposal because it will not adversely affect The cost will be de minimus. rural areas or job creation. b. cost to the State, the agency and local governments: This proposed This proposal concerns the off-site sales by motor vehicle dealers. Due rule will have no fiscal impact on the DMV. In addition, it will not impact to its narrow focus, this rule will not impose an adverse economic impact local governments, since the regulation concerns the regulation of off- on rural areas or on employment opportunities. premise sales by dealers. c. source: The Department’s Office of Vehicle Safety provided this PROPOSED RULE MAKING information. NO HEARING(S) SCHEDULED 5. Local government mandates: The proposed rule will not impact local governments, since it concerns the regulation of off-premise sales by Montgomery County Motor Vehicle Use Tax dealers. 6. Paperwork: The proposed rule will require a dealership to request I.D. No. MTV-13-15-00013-P permission to conduct an off-premise sale using a new DMV form, on which the dealership would certify its compliance with all relevant DMV PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- requirements and restrictions. Currently, dealers request permission in a cedure Act, NOTICE is hereby given of the following proposed rule:

57 Rule Making Activities NYS Register/April 1, 2015

Proposed Action: This is a consensus rule making to amend section 29.12 of Title 15 NYCRR. Office for People with Statutory authority: Vehicle and Traffic Law, sections 215(a) and 401(6)(d)(ii); Tax Law, section 1202(c) Developmental Disabilities Subject: Montgomery County motor vehicle use tax. EMERGENCY Purpose: To impose a Montgomery County motor vehicle use tax. RULE MAKING Text of proposed rule: Section 29.12 is amended by adding a new subdivi- Implementation of the Protection of People with Special Needs sion (am) to read as follows: Act and Reforms to Incident Management (am) Montgomery County. The Montgomery County Legislature I.D. No. PDD-13-15-00009-E adopted a local law on January 9, 2015 to establish a Montgomery County Filing No. 164 Motor Vehicle Use Tax. The County Executive of the Montgomery County Legislature entered into an agreement with the Commissioner of Motor Filing Date: 2015-03-13 Vehicles for the collection of the tax in accordance with the provisions of Effective Date: 2015-03-15 this Part, for the collection of such tax on original registrations made on and after July 1, 2015 and upon the renewal of registrations expiring on PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- and after September 1, 2015. The County Treasurer is the appropriate fis- cedure Act, NOTICE is hereby given of the following action: cal officer, except that the County Attorney is the appropriate legal officer Action taken: Amendment of Parts 624, 633, 687; and addition of Part of Montgomery County referred to in this Part. The tax due on passenger 625 to Title 14 NYCRR. motor vehicles for which the registration fee is established in paragraph Statutory authority: Mental Hygiene Law, sections 13.07, 13.09(b) and (a) of subdivision (6) of Section 401 of the Vehicle and Traffic Law shall 16.00; L. 2012, ch. 501 be $5.00 per annum on such motor vehicles weighing 3,500 lbs. or less Finding of necessity for emergency rule: Preservation of public health, and $10.00 per annum for such motor vehicles weighing in excess of 3,500 public safety and general welfare. lbs. The tax due on trucks, buses and other commercial motor vehicles for which the registration fee is established in subdivision (7) of Section 401 Specific reasons underlying the finding of necessity: The immediate adoption of these amendments is necessary for the preservation of the of the Vehicle and Traffic Law used principally in connection with a busi- health, safety, and welfare of individuals receiving services. ness carried on within Montgomery County, except for vehicles used in In December 2012, the Governor signed the Protection of People with connection with the operation of a farm by the owner or tenant thereof Special Needs Act (PPSNA). This new law created the Justice Center for shall be $10.00 per annum. the Protection of People with Special Needs (Justice Center) and established many new protections for vulnerable persons, including a new Text of proposed rule and any required statements and analyses may be system for incident management in services operated or certified by obtained from: Heidi Bazicki, Department of Motor Vehicles, 6 Empire OPWDD and new requirements for more comprehensive and coordinated State Plaza, Rm. 522A, Albany, NY 12228, (518) 474-0871, email: pre-employment background checks. [email protected] OPWDD filed emergency regulations effective June 30, 2013 through September 25, 2013, and replacement emergency regulations effective Data, views or arguments may be submitted to: Ida L. Traschen, Depart- September 26, 2013; December 25, 2013; March 24, 2014; June 22, 2014; ment of Motor Vehicles, 6 Empire State Plaza, Rm. 522A, Albany, NY September 17, 2014; and December 15, 2014 to implement many of the 12228, (518) 474-0871, email: [email protected] provisions contained in the PPSNA. The December 15, 2014 replacement emergency regulations are now expiring. New emergency regulations are Public comment will be received until: 45 days after publication of this necessary to continue implementing regulations that are in conformance notice. with the PPSNA. If OPWDD did not file new emergency regulations effective March 15, 2015, regulatory requirements would revert to the Consensus Rule Making Determination regulations that were in effect prior to June 30, 2013. The promulgation of these regulations is essential to preserve the health, This proposed regulation would create a new 15 NYCRR Part 29.12(am) safety and welfare of individuals with developmental disabilities who to provide for the collection of a Montgomery County motor vehicle use receive services in the OPWDD system. If OPWDD did not promulgate tax by the Department of Motor Vehicles. Pursuant to the authority regulations on an emergency basis, many of the protections established by contained in Tax Law section 1202(c) and Vehicle and Traffic Law sec- the PPSNA vital to the health, safety, and welfare of individuals with tion 401(6)(d)(ii), the Commissioner must collect a motor vehicle use tax developmental disabilities would not be implemented or would be if a county has enacted a local law requiring the collection of such tax. implemented ineffectively. Further, protections for individuals receiving services would be threatened by the confusion resulting from inconsistent On January 9, 2015, the Montgomery County Legislature enacted a lo- requirements. For example, the emergency regulations change the catego- cal requiring that a motor vehicle use tax be imposed on passenger and ries of incidents to conform to the categories established by the PPSNA. commercial vehicles. Pursuant to this local law, the Commissioner is Without the promulgation of these amendments, agencies would be required to collect the tax on behalf of the county and transmit the revenue required to report incidents based on one set of definitions to the Justice to the County, minus the administrative costs required to process the tax. Center and incidents based on a different set of definitions to OPWDD. The tax is five dollars per annum on a passenger vehicle weighing 3,500 Requirements for the management of incidents would also be inconsistent. pounds or less, ten dollars per annum on a passenger vehicle weighing Especially concerning regulatory requirements related to incident manage- more than 3,500 pounds, and ten dollars per annum on all commercial ment and pre-employment background checks, it is crucial that OPWDD vehicles. There are certain exempt vehicles, such as vehicles used by non- regulations are changed to support the new requirements in the PPSNA so profit religious, charitable, or educational organizations, and vehicles used that this initiative is implemented in a coordinated fashion. only in connection with the operation of a farm by the owner or tenant of OPWDD was not able to use the regular rulemaking process established the farm. by the State Administrative Procedure Act because there was not sufficient time to develop and promulgate regulations within the necessary This is a consensus rule because the Commissioner has no discretion timeframes. OPWDD is making only one revision in the new emergency about whether to collect the tax, i.e., it must be collected per the mandate regulations, compared with the December 15, 2014 regulations, based on of the Montgomery County local law. The merits of the tax may have been input from the field and experience with the new systems and require- debated before the Montgomery County Legislature, but are no longer the ments gained over the past year and eighteen months. By filing new emer- subject of debate—it is now the law. DMV is merely carrying out the will gency regulations, OPWDD is able to revise the regulations to reflect expressed by the County Legislature. recent input and current needs. Subject: Implementation of the Protection of People with Special Needs Job Impact Statement Act and reforms to incident management. A Job Impact Statement is not submitted with this rule because it will not Purpose: To enhance protections for people with developmental dis- have an adverse impact on job creation or development. abilities served in the OPWDD system.

58 NYS Register/April 1, 2015 Rule Making Activities

Substance of emergency rule: The emergency regulations conform Exclusion List” of the Vulnerable Persons’ Central Register as a part of OPWDD regulations to Chapter 501 of the Laws of 2012 (Protection of the background check process. People with Special Needs Act or PPSNA) by making a number of D The amendments also include requirements concerning background revisions. The major changes to OPWDD regulations made to implement checks for prospective employees and volunteers to determine if an ap- the PPSNA are: plicant was involved in substantiated abuse or neglect in the OPWDD D Revisions to 14 NYCRR Part 624 (now titled “Reportable incidents system before June 30, 2013. These requirements are added to implement and notable occurrences”) to incorporate categories of “reportable section 16.34 on the Mental Hygiene Law as amended by the PPSNA. incidents” as established by the PPSNA. Programs and facilities certified D In accordance with changes in Section 424-a of the Social Services or operated by OPWDD must report “reportable incidents” to the Vulner- Law, the amendments extend requirements for checks of the Statewide able Persons’ Central Register (VPCR), a part of the Justice Center for the Central Register of Child Abuse and Maltreatment to employees and oth- Protection of People with Special Needs (Justice Center). Part 624 is ers that have the potential for regular and substantial contact with individu- amended to incorporate other revisions related to the management of als receiving services in programs certified or operated by OPWDD. Prior reportable incidents in conformance with various provisions of the to June 30, 2013, providers were only required to request an SCR check PPSNA. for those who have the potential for regular and substantial contact with D Revisions to 14 NYCRR Section 633.7 concern the code of conduct children. adopted by the Justice Center in accordance with Section 554 of the Exec- D Definitions are changed in Parts 624 and 633 to conform to PPSNA utive Law and impose requirements on programs certified or operated by definitions. OPWDD. The code of conduct must be read and signed by custodians D The amendments include revisions to reflect the restructuring of enti- who have regular and direct contact with individuals receiving services as ties within OPWDD and OPWDD’s name change. specified in the regulations. This notice is intended to serve only as a notice of emergency adoption. D Revisions to 14 NYCRR Section 633.22 reflect the consolidation of This agency intends to adopt this emergency rule as a permanent rule and the criminal history record check function in the Justice Center. The will publish a notice of proposed rule making in the State Register at some Justice Center will receive requests for criminal history record checks and future date. The emergency rule will expire June 10, 2015. will process those requests, instead of OPWDD. Text of rule and any required statements and analyses may be obtained D A new 14 NYCRR Section 633.24 contains requirements for background checks (in addition to criminal history record checks). from: Regulatory Affairs Unit, Office for People With Developmental Disabilities, 44 Holland Avenue, 3rd Floor, Albany, NY 12229, (518) D Revisions to Part 687 incorporate changes to criminal history record check and background check requirements in family care homes. 474-7700, email: RAU.Unit@opwdd,ny.gov The regulations include numerous changes associated with incident Additional matter required by statute: Pursuant to the requirements of the management or the implementation of the PPSNA. These changes include: State Environmental Quality Review Act, OPWDD, as lead agency, has D The amendments delete the current categories and definitions of determined that the action described will have no effect on the environ- events and situations that must be reported to agencies and OPWDD. The ment, and an E.I.S. is not needed. amendments add definitions of “reportable incidents.” Types of reportable Regulatory Impact Statement incidents are “abuse,” “neglect,” and “significant incidents.” The amend- 1. Statutory Authority: ments also add definitions of “notable occurrences.” Part 624 includes a. Chapter 501 of the Laws of 2012 (Protection of People with Special requirements for reporting and investigating these types of events. Needs Act), added Article 20 to the Executive Law and Article 11 to the D The requirements of Part 624 are limited to events and situations that Social Services Law and amended other laws including the Mental occur under the auspices of an agency. Hygiene Law. Chapter 501 incorporates requirements for implementing D A new Part 625 contains requirements that apply to events and situa- regulations by “State Oversight Agencies,” which include OPWDD. tions which are not under the auspices of an agency. b. OPWDD has the statutory responsibility to provide and encourage D The amendments mandate the use of OPWDD’s Incident Report and the provision of appropriate programs and services in the area of care, Management Application (IRMA), a secure electronic statewide incident treatment, rehabilitation, education, and training of persons with develop- reporting system, for reporting information about specified events and mental disabilities, as stated in the New York State Mental Hygiene Law situations, and remove the current requirement to submit a paper based Section 13.07. incident report to OPWDD in certain instances. c. OPWDD has the statutory authority to adopt rules and regulations D The amendments make several changes to requirements for necessary and proper to implement any matter under its jurisdiction as investigations. The amendments require that investigations of specified stated in the New York State Mental Hygiene Law Section 13.09(b). events and situations be initiated immediately following occurrence or d. OPWDD has the statutory authority to adopt regulations concerning discovery (with limitations when it is anticipated that the Justice Center or the operation of programs, provision of services and facilities pursuant to the Central Office of OPWDD will conduct the investigation). Investiga- the New York State Mental Hygiene Law Section 16.00. tions conducted by agencies must be completed no later than thirty days 2. Legislative Objectives: These emergency amendments further the after the initiation of an investigation, unless the agency documents an ac- legislative objectives embodied in Chapter 501 of the Laws of 2012 ceptable justification for an extension of the thirty-day time frame. The (Protection of People with Special Needs Act) and sections 13.07, amendments also add new requirements to enhance the independence of 13.09(b), and 16.00 of the Mental Hygiene Law. The emergency amend- investigators, and require agency investigators to use a standardized ments incorporate a number of reforms to OPWDD regulations in order to investigative report format. increase protections and improve the quality of services provided to people D The amendments make several changes regarding Incident Review with developmental disabilities in OPWDD’s system. Committees (IRC). The amendments change requirements concerning 3. Needs and Benefits: The majority of the amendments include membership of the IRC and include specific provisions concerning shared extensive new and modified requirements for OPWDD regulations in 14 committees, using another agency’s committee or making alternative ar- NYCRR Part 624 pertaining to incident management. Additional amend- rangements for IRC review. The amendments also modify the responsibil- ments add and revise requirements in other OPWDD regulations in order ities of a provider agency's IRC when an incident is investigated by the to implement the Protection of People with Special Needs Act (PPSNA). Central Office of OPWDD or the Justice Center. The PPSNA requires the establishment of comprehensive protections D The amendments expand on requirements for notification to service for vulnerable persons, including people with developmental disabilities, coordinators. against abuse, neglect, and other harmful conduct. The PPSNA created a D The amendments contain an explicit requirement that providers must Justice Center with responsibilities for effective incident reporting and comply with OPWDD recommendations concerning a specific event or investigation systems, fair disciplinary processes, informed and appropri- situation or must explain its reasons for not complying with a recommen- ate staff hiring procedures, and strengthened monitoring and oversight dation within a month of the recommendation being made. systems. The Justice Center operates a 24/7 hotline for reporting abuse, D When the Justice Center makes findings concerning matters referred neglect, and significant incidents in accordance with the PPSNA’s provi- to its attention and the Justice Center issues a report and recommendations sions for uniform definitions, mandatory reporting, and minimum stan- to the agency regarding such matters, the agency is required to make a dards for incident management programs. In collaboration with OPWDD, written response to OPWDD within sixty days of receipt of such report, of the Justice Center is also charged with developing and delivering appropri- action taken regarding each of the recommendations in the report. ate training for caregivers, their supervisors, and investigators. Addition- D The amendments add a requirement that agencies retain records ally, the Justice Center is responsible for conducting criminal background pertaining to incidents and allegations of abuse for a minimum time period checks for applicants in the OPWDD system. of seven years. In cases when there is a pending audit or litigation, the The PPSNA creates a Vulnerable Persons’ Central Register (VPCR). pertinent records must be retained throughout the pendency of the audit or This register will contain the names of custodians found to have commit- litigation. The amendments specify what information must be retained. ted substantiated acts of abuse or neglect using a preponderance of evi- D The amendments add requirements that agencies check the “Staff dence standard. All custodians found to have committed such acts have

59 Rule Making Activities NYS Register/April 1, 2015 the right to a hearing before an administrative law judge to challenge those mandate to use IRMA), merely clarify existing requirements or interpre- findings. Custodians having committed egregious or repeated acts of abuse tive guidance, or can be implemented without cost to the agency (e.g. or neglect are prohibited from future employment in providing services restrictions on committee review). for vulnerable persons, and may be subject to criminal prosecution. Less There may be minor costs as a result of other amendments; however, serious acts of misconduct are subject to progressive discipline and OPWDD anticipates that generally any potential costs incurred would be retraining. Applicants with criminal records who seek employment serv- mitigated by savings that the provider will realize from the improvements ing vulnerable persons will be individually evaluated as to suitability for to the incident management process. OPWDD expects that in the long- such positions. term the amendments will ultimately reduce incidents and abuse in its Pursuant to the PPSNA, the Justice Center is charged with recommend- system and increase efficiency and quality in the reporting, investigation, ing policies and procedures to OPWDD for the protection of people with notification, and review of such events. OPWDD is not able to quantify developmental disabilities; this effort involves the development of require- the minor potential costs or the savings that might be realized by the ments and guidelines in areas including but not limited to incident manage- promulgation of these amendments. ment, rights of people receiving services, criminal background checks, 5. Local Government Mandates: There are no new requirements and training of custodians. In accordance with the PPSNA, these require- imposed by the rule on any county, city, town, village, or school, fire, or ments and guidelines must be reflected, wherever appropriate, in OP- other special district. WDD’s regulations. Consequently, these amendments incorporate the 6. Paperwork: The new regulations require additional paperwork to be requirements in regulations and guidelines developed by the Justice completed by providers. Examples of additional paperwork are found in Center. new requirements pertaining to reporting reportable incidents to the Justice The amendments also make numerous changes to OPWDD’s incident Center and making additional notifications. The regulations require that management process to strengthen the process and to provide further all custodians with regular and direct contact in programs certified or protection to people receiving serves from harm and abuse. For example, operated by OPWDD review and sign the Justice Center's code of conduct the amendments make changes related to definitions, reporting, investiga- on an annual basis. In addition, new paperwork is associated with the tion, notification, and committee review of events and situations both requirements for additional background checks (Staff Exclusion List, under and not under the auspices of OPWDD or a provider agency. It is MHL 16.34 and Statewide Central Register of Child Abuse and OPWDD’s expectation that implementation of the emergency amend- Maltreatment). However, the regulations remove paperwork requirements ments will enhance safeguards for people with developmental disabilities, in other ways, such as the deletion of the requirement for the completion which will in turn allow individuals to focus on achieving maximum inde- of a paper based incident report for specified events or situations. pendence and living richer lives. 7. Duplication: The amendments do not duplicate any existing State or The amendments also include requirements addressing background Federal requirements that are applicable to services for persons with checks for prospective employees and volunteers to determine if an ap- developmental disabilities. In some instances, the regulations reiterate plicant was involved in substantiated abuse or neglect in the OPWDD requirements in NYS law. system before June 30, 2013, in accordance with section 16.34 on the 8. Alternatives: Current definitions of incidents in OPWDD regulations Mental Hygiene Law. These requirements, applicable to all programs and that require reporting and investigation exceed the criteria in the new statu- services operated, certified, approved, and/or funded by OPWDD, will tory definitions in the PPSNA. OPWDD considered reducing or eliminat- augment the protections provided to people receiving services by the ing requirements applying to events and situations that do not meet the PPSNA. criteria in the statutory definitions for “reportable incidents,” but OPWDD 4. Costs: decided to include the continuation of protections associated with these a. Costs to the Agency and to the State and its local governments: events and situations as reflected in the definitions of notable occurrences. OPWDD will not incur significant additional costs as a provider of 9. Federal Standards: The emergency amendments do not exceed any services. While the regulations impose new requirements on providers, minimum standards of the federal government for the same or similar OPWDD expects that they will comply with the new requirements with no subject areas. additional staff. Furthermore, OPWDD has already implemented some of 10. Compliance Schedule: The regulations will be effective on March the new requirements contained in the regulations in state-operated ser- 15, 2015 to ensure continued compliance with Chapter 501 of the Laws of vices through implementation of policy/procedure changes. There may be 2012. The emergency regulations replace prior emergency regulations that minimal one-time costs associated with notification and training of staff. were effective December 15, 2014 and expired on March 14, 2015. The PPSNA creates the Justice Center, which will assume designated Regulatory Flexibility Analysis functions that are now performed by OPWDD. The Justice Center will 1. Effect on small business: OPWDD has determined, through a review manage the criminal background check process and will conduct some of the certified cost reports, that most OPWDD-funded services are investigations that had previously been conducted by OPWDD. OPWDD provided by non-profit agencies that employ more than 100 people overall. will experience savings associated with the reduction in staff performing However, some smaller agencies that employ fewer than 100 employees these functions; however, the staff will be shifting to the Justice Center so overall would be classified as small businesses. Currently, there are ap- the net effect will be cost neutral. Minimal additional OPWDD staff will proximately 700 agencies providing services that are certified, authorized be needed to implement some provisions of the PPSNA and implementing or funded by OPWDD. OPWDD is unable to estimate the portion of these regulations, such as staff to coordinate MHL 16.34 background checks. providers that may be considered to be small businesses. Any costs or savings will have no impact on Medicaid rates, prices or The amendments have been reviewed by OPWDD in light of their fees. Therefore, there is no impact on New York State in its role paying impact on small businesses. The regulations make extensive changes to for Medicaid services. OPWDD’s requirements for incident management that will necessitate There are no costs to local governments as there are no changes to significant changes in compliance activities and result in additional costs Medicaid reimbursement and even if there were, the contribution of local and savings to providers, including small business providers. However, governments to Medicaid has been capped. Chapter 58 of the Laws of OPWDD is unable to quantify the potential additional costs and savings to 2005 places a cap on the local share of Medicaid costs and local govern- providers as a result of these amendments. In any event, OPWDD consid- ments are already paying for Medicaid at the capped level. ers that the improvements in protections for people served in the OPWDD b. Costs to private regulated parties: It is difficult to estimate the cost system will help safeguard individuals from harm and abuse and that the impact on private regulated parties, however, OPWDD expects that cost to benefits more than outweigh any potential negative impacts on providers. providers will be minimal. OPWDD already requires the reporting and 2. Compliance requirements: The regulations add a number of new investigation of incidents. The implementation of these reforms in general requirements with which providers must comply. Amendments associated will not result in costs. There may be costs associated with the amendment with the implementation of the PPSNA include a requirement that provid- of Section 424-a of the Social Service Law (as reflected in these regula- ers report “reportable incidents” and deaths to the Justice Center. In additions) which requires background checks of the Statewide Central Regis- tion, the regulations impose an obligation on providers to obtain an exam- ter of Child Abuse and Maltreatment (which cost $25 per check). ination for physical injuries. For psychological abuse, a clinical assessment However, OPWDD cannot estimate how many additional checks will be could be needed in order to demonstrate the impact of suspected psycho- required. There may also be additional costs associated with the need for logical abuse. While OPWDD anticipates that providers are already clinical assessments needed to demonstrate psychological abuse. There obtaining examinations of physical injuries, clinical assessments of may be costs associated with the requirement that agencies conduct a “rea- suspected psychological abuse are not generally obtained. sonably diligent search” for records of past abuse/neglect related to The regulations impose requirements that all new custodians with regu- background checks required in accordance with Section 16.34 of the lar and direct contact in such programs must read and sign the code of Mental Hygiene Law. Again, OPWDD is not able to estimate these cost conduct at the time of employment or affiliation, and that all custodians impacts. Concerning the reforms to Part 624 that are in addition to the with regular and direct contact in such programs must read and sign the changes needed to implement the PPSNA, most of the amendments have code of conduct at on an annual basis. either already been implemented by OPWDD policy directives (e.g. The PPSNA expanded requirements to obtain background checks of the

60 NYS Register/April 1, 2015 Rule Making Activities

Statewide Central Register of Child Abuse and Maltreatment to require with obtaining a clinical assessment in the case of suspected psychological checks of employees (and others) who have the potential for regular and abuse. Additionally, there may be nominal costs for agencies to comply substantial contact with individuals receiving services in programs that are with the expanded notification requirements and requirements for the pro- certified or operated by OPWDD. Prior to June 30, 2013 the statute limited vision of policies and procedures when it is necessary to provide paper this requirement to employees who have the potential for regular and copies of information to the appropriate parties upon request. There are substantial contact with children. The emergency regulations reflect the costs associated with the change to Section 424-a of the Social Services statutory changes to section 424-a of the Social Services Law in the Law and OPWDD regulations which will require agencies to obtain ad- PPSNA. While many providers that also serve children have been obtain- ditional background checks for employees and other individuals associ- ing these checks, the new requirements clearly expand the pool of em- ated with the agencies. These checks cost $25 per check. However, ployees and others who must be checked. Further, OPWDD regulations OPWDD is unable to estimate how many additional checks will be needed require that agencies conduct SCR checks of applicants when the check is and therefore cannot estimate the cost impact. There may be costs associ- permitted by the Social Services Law. ated with new background check requirements in MHL 16.34, including The regulations also include requirements addressing background costs associated with the requirement that agencies conduct a “reasonably checks for potential employees and volunteers to determine if an applicant diligent search” for past records of abuse/neglect. There may also be costs was involved in substantiated abuse or neglect in the OPWDD system associated with requirements that agencies request a search of the “Staff before June 30, 2013, in accordance with section 16.34 on the Mental Exclusion List.” There may be costs associated with the requirement to Hygiene Law. train members of the Incident Review Committee. Prior OPWDD regulations already required reporting and investigation Providers may experience savings if the Justice Center or OPWDD as- of incidents, and that providers request criminal background checks. While sume responsibility for investigations that were previously conducted by the amendments incorporate many changes and reforms, the basic require- provider agency staff. ments are conceptually unchanged. OPWDD therefore expects that ad- In the long term, compliance activities associated with the implementa- ditional compliance activities (except as noted above) will be minimal. tion of these amendments are expected to reduce future incidents and Aside from the provisions related to implementation of the PPSNA, and abuse, resulting in savings for providers as well as benefits to the wellbe- section 16.34 of the Mental Hygiene Law, the amendments have either al- ing of individuals receiving services. ready been implemented by OPWDD policy directives, clarify existing 5. Economic and technological feasibility: The amendments may requirements or interpretive guidance, or can be implemented without cost impose the use of new technological processes on small business providers. to the agency. Providers have already been reporting incidents and abuse in IRMA in ac- Agencies must comply with the new requirement to complete investiga- cordance with an existing OPWDD policy directive so the new require- tions within a 30 day timeframe. Agencies must also comply with new ments related to IRMA do not impose the use of new technological requirements to enhance the independence of investigators and agency processes on small business providers. However, requirements to report incident review committees. However, OPWDD expects that additional reportable incidents to the Justice Center in the manner specified by the compliance activities will be minimal since agencies are already required Justice Center may impose a requirement to use an electronic reporting to comply with existing requirements that prohibit situations which com- system for that purpose, if that is the manner specified by the Justice promise the independence of investigators and committee members. Center. Currently the Justice Center is directing that reports be made ei- The new requirements pertaining to the dissemination of agency poli- ther by telephone or by using a Web form, so the use of the Web form is cies and procedures, OPWDD incident management regulations, and writ- optional. ten information specified by OPWDD add new compliance activities; 6. Minimizing adverse economic impact: The amendments may result however, the regulations minimize compliance activities by requiring that in an adverse economic impact for small business providers due to ad- providers offer to provide such information in electronic format (unless ditional compliance activities and associated compliance costs. However, paper copies are specifically requested) as opposed to requiring the provi- as stated earlier, OPWDD expects that compliance with these new regula- sion of paper copies only. The amendments require that information be tions will result in savings in the long term and there may be some short provided in conjunction with training that is mandated by current regula- term savings as a result of the conduct of investigations by the Justice tions in order to consolidate efforts, increase efficiency, and reduce Center. Further, OPWDD expects that the amendments will provide some compliance activities. relief to providers by the removal of the previous requirement for a paper Enhancements in required notification to service coordinators will also based incident report for reporting serious reportable incidents, allegations add compliance activities for providers because providers will have to of abuse, and all deaths. OPWDD expects that these provisions will miti- make additional notifications and/or provide subsequent information about gate any adverse economic impact that results from complying with other an incident or occurrence to these parties. new requirements. The amendments that add a new requirement that agencies enter OPWDD has reviewed and considered the approaches for minimizing minutes of their incident review committee meetings into IRMA within adverse economic impact as suggested in section 202-b(1) of the State three weeks of the meeting for serious incidents, allegations of abuse, and Administrative Procedure Act. OPWDD modified several requirements to all deaths, may result in a minimal amount of additional clerical work. minimize adverse economic impact. As noted above, OPWDD eliminated OPWDD expects that most agencies have adopted an electronic record- the requirement that agencies complete paper forms when information keeping system to maintain their minutes and that these agencies would about incidents is submitted electronically. In addition, the new regula- only have to copy and paste their minutes into IRMA. Agencies that do tions allow agencies to provide instructions on how to access information not have an electronic recordkeeping system and that maintain handwrit- on incident management electronically to individuals, families and others, ten or typed minutes will have to assign staff to type the minutes into rather than requiring the provision of paper copies in all instances. Agen- IRMA. OPWDD expects that these agencies will add this task to the duties cies are only required to make paper copies available upon request. of clerical staff who are trained and experienced in data entry and who can OPWDD did not consider the exemption of small businesses from the perform this function in an efficient manner. amendments or the establishment of differing compliance or reporting The amendments extend access to information in accordance with requirements since OPWDD considers compliance with the emergency Jonathan's Law and add a new requirement that agencies retain records amendments to be crucial for the health, safety, and welfare of the pertaining to incidents and allegations of abuse for a minimum time period individuals served by small business providers. Related to the requirement of seven years. In cases when there is a pending audit or litigation, the to conduct background checks in accordance with Section 16.34 of the pertinent records must be retained throughout the pendency of the audit or Mental Hygiene Law, OPWDD has implemented several significant litigation. The amendments specify what information must be retained. measures to streamline the process, such as the use of web-based forms. OPWDD considers that the new requirements will not add any additional 7. Small business participation: The PPSNA was originally a Gover- compliance activities for agencies. OPWDD expects that generally most nor’s Program Bill which received extensive media attention. Providers agencies have been implementing agency specific policies on record reten- have had opportunities to become familiar with its provisions since it was tion and that the new required record retention schedule merely standard- made available on various government websites during June 2013. Re- izes existing policies/procedures. The amendments will have no effect on lated to the components of the regulations that are unrelated to implemen- local governments. tation of the PPSNA, draft regulations containing these components were 3. Professional services: There may be additional professional services sent out for review and comment to representatives of providers, including required for small business providers as a result of these amendments. The the New York State Association of Community and Residential Agencies definition of psychological abuse references specific impacts on an indi- (NYSACRA), on March 12, 2012. Some of the members of NYSACRA vidual receiving services that must be supported by a clinical assessment. have fewer than 100 employees. OPWDD carefully considered the com- The amendments will not add to the professional service needs of local ments received and made some suggested changes to the amendments governments. (e.g. eliminated the paper based incident report and allowed for the provi- 4. Compliance costs: There may be modest costs for small business sion of policies and procedures in electronic format). OPWDD also pre- providers associated with the amendments. There may be costs associated sented the reforms at a widely-attended provider training in the fall of

61 Rule Making Activities NYS Register/April 1, 2015

2012. OPWDD also hosted many informational sessions regarding the Agencies must comply with the new requirement to complete investiga- requirements in the prior emergency regulations during the spring and tions within a 30 day timeframe. Agencies must also comply with new summer of 2013, including in-person sessions, webinars and state-wide requirements to enhance the independence of investigators and agency videoconferences. OPWDD informed providers about the new require- incident review committees. However, OPWDD expects that additional ments and invited public comment on the requirements. OPWDD has also compliance activities will be minimal since agencies are already required responded to numerous questions and comments on prior emergency to comply with existing requirements that prohibit situations which com- regulations. Finally, OPWDD has posted extensive information about the promise the independence of investigators and committee members. new requirements on its website. The new requirements pertaining to the dissemination of agency poli- 8. For rules that either establish or modify a violation or penalties as- cies and procedures, OPWDD incident management regulations, and writ- sociated with a violation: The emergency amendments do not establish or ten information specified by OPWDD add new compliance activities; modify a violation or penalties associated with a violation. however, the regulations minimize compliance activities by requiring that Rural Area Flexibility Analysis providers offer to provide such information in electronic format (unless 1. Description of the types and estimation of the number of rural areas paper copies are specifically requested) as opposed to requiring the provi- in which the rule will apply: OPWDD services are provided in every sion of paper copies only. The amendments require that information be county in New York State. 43 counties have a population of less than provided in conjunction with training which is mandated by current regula- 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, tions in order to consolidate efforts, increase efficiency, and reduce Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, compliance activities. Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Living- Enhancements in required notification to service coordinators will also ston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, add compliance activities for providers because providers will have to Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, make additional notifications and/or provide subsequent information about Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, an incident or occurrence to these parties. Wyoming and Yates. Additionally, 10 counties with certain townships The amendments that add a new requirement that agencies enter have a population density of 150 persons or less per square mile: Albany, minutes of their incident review committee meetings into IRMA within Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, three weeks of the meeting for serious incidents, allegations of abuse, and and Saratoga. all deaths, may result in a minimal amount of additional clerical work. The amendments have been reviewed by OPWDD in light of their OPWDD expects that most agencies have adopted an electronic record- impact on rural areas. The regulations make extensive changes to keeping system to maintain their minutes and that these agencies would OPWDD’s requirements for incident management that will necessitate only have to copy and paste their minutes into IRMA. Agencies that do significant changes in compliance activities and result in additional costs not have an electronic recordkeeping system and that maintain handwrit- and savings to providers, including small business providers. However, ten or typed minutes will have to assign staff to type the minutes into OPWDD is unable to quantify the potential additional costs and savings to IRMA. OPWDD expects that these agencies will add this task to the duties providers as a result of these amendments. In any event, OPWDD consid- of clerical staff who are trained and experienced in data entry and who can ers that the improvements in protections for people served in the OPWDD perform this function in an efficient manner. system will help safeguard individuals from harm and abuse and that the The amendments extend access to information in accordance with benefits more than outweigh any potential negative impacts on providers. Jonathan's Law and add a requirement that agencies retain records pertain- The geographic location of any given program (urban or rural) will not ing to incidents and allegations of abuse for a minimum time period of be a contributing factor to any additional costs to providers. seven years. In cases when there is a pending audit or litigation, the 2. Compliance requirements: The regulations add a number of new pertinent records must be retained throughout the pendency of the audit or requirements with which providers must comply. Amendments associated litigation. The amendments specify what information must be retained. with the implementation of the PPSNA include a requirement that provid- OPWDD considers that the new requirements will not add any additional ers report “reportable incidents” and deaths to the Justice Center. In addi- compliance activities for agencies. OPWDD expects that generally most tion, the regulations impose an obligation on providers to obtain an exam- agencies have been implementing agency specific policies on record reten- ination for physical injuries. For psychological abuse, a clinical assessment tion and that the new required record retention schedule merely standard- could be needed in order to demonstrate the impact of suspected psycho- izes existing policies/procedures. The amendments will have no effect on logical abuse. While OPWDD anticipates that providers are already local governments. obtaining examinations of physical injuries, clinical assessments of 3. Professional services: There may be additional professional services suspected psychological abuse are not generally obtained. required for small business providers as a result of these amendments. The The regulations impose requirements that all new custodians with regu- definition of psychological abuse references specific impacts on an indi- lar and direct contact in such programs must read and sign the code of vidual receiving services that must be supported by a clinical assessment. conduct at the time of employment or affiliation, and that all custodians The amendments will not add to the professional service needs of local with regular and direct contact in such programs must read and sign the governments. code of conduct on an annual basis. 4. Compliance costs: There may be modest costs for small business The PPSNA expanded requirements to obtain background checks of the providers associated with the amendments. There may be costs associated Statewide Central Register of Child Abuse and Maltreatment to require with obtaining a clinical assessment in the case of suspected psychological checks of employees (and others) who have the potential for regular and abuse. Additionally, there may be nominal costs for agencies to comply substantial contact with individuals receiving services. Prior to June 30, with the expanded notification requirements and requirements for the pro- 2013 the statute limited this requirement to employees who have the vision of policies and procedures when it is necessary to provide paper potential for regular and substantial contact with children. The emergency copies of information to the appropriate parties upon request. There are regulations reflect the statutory changes to section 424-a of the Social Ser- costs associated with the change to Section 424-a of the Social Services vices Law in the PPSNA. While many providers that also serve children Law and OPWDD regulations which will require agencies to obtain ad- have been obtaining these checks, the new requirements clearly expand ditional background checks for employees and other individuals associ- the pool of employees who must be checked. Further, OPWDD regula- ated with the agencies. These checks cost $25 per check. However, tions require that agencies conduct SCR checks of applicants when the OPWDD is unable to estimate how many additional checks will be needed check is permitted by the Social Services Law. and therefore cannot estimate the cost impact. There may be costs associ- The regulations also include requirements addressing background ated with new background check requirements in MHL 16.34, including checks for prospective employees and volunteers to determine if an ap- costs associated with the requirement that agencies conduct a “reasonably plicant was involved in substantiated abuse or neglect in the OPWDD diligent search” for past records of abuse/neglect. There may also be costs system before June 30, 2013, in accordance with section 16.34 on the associated with requirements that agencies request a search of the “Staff Mental Hygiene Law. Agencies are also required to request a check of the Exclusion List.” There may be costs associated with the requirement to Staff Exclusion List maintained by the Justice Center. train members of the Incident Review Committee. Prior OPWDD regulations already required reporting and investigation Providers may experience savings if the Justice Center or OPWDD as- of incidents, and that providers request criminal background checks. While sumes responsibility for investigations that were previously conducted by the amendments incorporate many changes and reforms, the basic require- provider agency staff. ments are conceptually unchanged. OPWDD therefore expects that ad- In the long term, compliance activities associated with the implementa- ditional compliance activities (except as noted above) will be minimal. tion of these amendments are expected to reduce future incidents and Aside from the provisions related to implementation of the PPSNA, and abuse, resulting in savings for providers as well as benefits to the wellbe- section 16.34 of the Mental Hygiene Law, the amendments have either al- ing of individuals receiving services. ready been implemented by OPWDD policy directives, clarify existing 5. Minimizing adverse impact: The amendments may result in an requirements or interpretive guidance, or can be implemented without cost adverse economic impact for small business providers due to additional to the agency. compliance activities and associated compliance costs. However, as stated

62 NYS Register/April 1, 2015 Rule Making Activities earlier, OPWDD expects that compliance with these new regulations will volume of incidents and occurrences investigated will be roughly similar. result in savings in the long term and there may be some short term sav- To the extent that the Justice Center performs investigations, oversees the ings as a result of the conduct of investigations by the Justice Center. Fur- management of reportable incidents, and manages requests for criminal ther, OPWDD expects that the amendments will provide some relief to history record checks, the result is expected to be neutral in that positions providers by the removal of the previous requirement for a paper based lost by OPWDD will be gained by the Justice Center. OPWDD may add incident report for reporting serious reportable incidents, allegations of minimal new staff to perform functions required by the regulations, such abuse, and all deaths. OPWDD expects that these provisions will mitigate as the requirements for MHL 16.34 checks. any adverse economic impact that results from complying with other new It is therefore apparent from the nature and purpose of the rule that it requirements. will not have a substantial adverse impact on jobs and employment OPWDD has reviewed and considered the approaches for minimizing opportunities. adverse economic impact as suggested in section 202-bb(2)(b) of the State Administrative Procedure Act. OPWDD modified several requirements to minimize adverse economic impact. As noted above, OPWDD eliminated the requirement that agencies complete paper forms when information Public Service Commission about incidents is submitted electronically. In addition, the new regulations allow agencies to provide instructions on how to access information on incident management electronically to individuals, families and others, rather than requiring the provision of paper copies in all instances. Agen- PROPOSED RULE MAKING cies are only required to make paper copies available upon request. Re- NO HEARING(S) SCHEDULED lated to the requirement to conduct background checks in accordance with Section 16.34 of the Mental Hygiene Law, OPWDD has implemented Whether Leatherstocking Should be Permitted to Recover a several significant measures to streamline the process, such as the use of Shortfall in Earnings web-based forms. OPWDD did not consider the exemption of small businesses from the I.D. No. PSC-13-15-00024-P emergency amendments or the establishment of differing compliance or reporting requirements since OPWDD considers compliance with the PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- emergency amendments to be crucial for the health, safety, and welfare of cedure Act, NOTICE is hereby given of the following proposed rule: the individuals served by providers in rural areas. 6. Participation of public and private interests in rural areas: The Proposed Action: The Public Service Commission is considering whether PPSNA was originally a Governor’s Program Bill that received extensive to grant, modify or deny, in whole or in part, the request of Leatherstock- media attention. Providers have had opportunities to become familiar with ing Gas Company, LLC to recover a shortfall in earnings accumulated its provisions since it was made available on various government websites over the seven years ending 2022, prospectively. during June 2013. Related to the components of the regulations that are Statutory authority: Public Service Law, sections 4(1) and 66(12) unrelated to implementation of the PPSNA, draft regulations containing Subject: Whether Leatherstocking should be permitted to recover a these components were sent out for review and comment to representa- shortfall in earnings. tives of providers, including NYSARC, the NYS Association of Com- Purpose: To decide whether to approve Leatherstocking's request to re- munity and Residential Agencies, NYS Catholic Conference, and CP As- cover a shortfall in earnings. sociation of NYS, which represent providers in rural areas, on March 12, 2012. OPWDD carefully considered the comments received and made Substance of proposed rule: In licensing proceedings pursuant to § 68 of some suggested changes to the amendments (e.g. eliminated the paper the Public Service Law (Cases 15-G-0098 and 15-G-0099), Leatherstock- based incident report and allowed for the provision of policies and ing Gas Company, LLC (Leatherstocking) seeks Certificates of Public procedures in electronic format). OPWDD also presented the reforms at a Convenience and Necessity approving the exercise of gas franchises widely-attended provider training in the fall of 2012. OPWDD also hosted granted by the Town and Village of Windsor, Broome County, and the many informational sessions regarding the requirements in the prior emer- construction of gas plant in those municipalities. As part of the licensing gency regulations during the spring and summer of 2013, including in- proceedings, Leatherstocking proposed initial rates to be charged custom- person sessions, webinars, and state-wide videoconferences. OPWDD ers in the various service classes. In testimony accompanying its petitions, informed providers about the new requirements and invited public com- Leatherstocking requested that it be permitted to recover from ratepayers a ment on the requirements. OPWDD has also responded to numerous ques- shortfall in earnings expected to accumulate over the seven years ending tions and comments on the prior emergency regulations. Finally, OPWDD 2022, in a prospective period. The Public Service Commission is consider- has posted extensive information about the new requirements on its ing whether to grant, modify or deny, in whole or in part, this request. website. Text of proposed rule and any required statements and analyses may be Job Impact Statement obtained by filing a Document Request Form (F-96) located on our OPWDD is not submitting a Job Impact Statement for these amend- website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine ments because OPWDD does not anticipate a substantial adverse impact Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New on jobs and employment opportunities. York 12223-1350, (518) 486-2660, email: [email protected] The amendments incorporate a number of reforms to improve the qual- Data, views or arguments may be submitted to: Kathleen H. Burgess, ity and consistency of incident management activities throughout the Secretary, Public Service Commission, 3 Empire State Plaza, Albany, OPWDD system. Most of these reforms have already been implemented New York 12223-1350, (518) 474-6530, email: [email protected] by OPWDD policy directive, such as the mandates to use IRMA and a Public comment will be received until: 45 days after publication of this standardized investigation format. Consequently these amendments will notice. not affect jobs or employment opportunities. Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural The amendments that impose new requirements on providers, such as Area Flexibility Analysis and Job Impact Statement additional reporting requirements, the timeframe for completion of investigations, notification to the service coordinator and other parties of Statements and analyses are not submitted with this notice because the subsequent information about incidents and abuse, retention of records, proposed rule is within the definition contained in section 102(2)(a)(ii) of and the provision of policies and procedures to specified parties, will not the State Administrative Procedure Act. result in an adverse impact on jobs. OPWDD anticipates that there will be (15-G-0098SP1) no effect on jobs as agencies will use current staff to perform the required compliance activities. PROPOSED RULE MAKING The PPSNA and these implementing regulations will require that NO HEARING(S) SCHEDULED providers request additional checks from the Statewide Central Register of Child Abuse and Maltreatment. The regulations also include requirements Whether to Permit the Use of the Quadlogic Controls S-10T addressing background checks for prospective employees and volunteers to determine if an applicant was involved in substantiated abuse or neglect Electric Submeter in the OPWDD system before June 30, 2013, in accordance with section I.D. No. PSC-13-15-00025-P 16.34 on the Mental Hygiene Law. OPWDD anticipates that the requests and checks will be made using current staff. The PPSNA and these implementing regulations will also mean that PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- some functions that are currently performed by OPWDD staff will instead cedure Act, NOTICE is hereby given of the following proposed rule: be performed by the staff of the Justice Center. OPWDD expects that the Proposed Action: The Public Service Commission is considering whether

63 Rule Making Activities NYS Register/April 1, 2015 to approve, deny or modify, in whole or in part, a petition filed by PROPOSED RULE MAKING Quadlogic Controls Corporation for approval to use the Quadlogic S-10T electric submeter in residential applications. NO HEARING(S) SCHEDULED Statutory authority: Public Service Law, section 67(1) Whether to Permit the Use of the Measurlogic DTS 310 Electric Subject: Whether to permit the use of the Quadlogic Controls S-10T Submeter electric submeter. Purpose: To permit the use of the Quadlogic S-10T submeter. I.D. No. PSC-13-15-00027-P Substance of proposed rule: The Public Service Commission is considering whether to grant, deny or modify, in whole or part, the petition filed by PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Quadlogic Controls Corporation to use the S-10T Residential Smart Meter cedure Act, NOTICE is hereby given of the following proposed rule: in residential submetering applications, and any other related matters. Proposed Action: The Public Service Commission is considering whether Text of proposed rule and any required statements and analyses may be to approve, deny or modify, in whole or in part, a petition filed by obtained by filing a Document Request Form (F-96) located on our Measurlogic Incorporated for approval to use the Measurlogic DTS 310 website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine electric submeter in residential applications. Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New Statutory authority: Public Service Law, section 67(1) York 12223-1350, (518) 486-2660, email: [email protected] Subject: Whether to permit the use of the Measurlogic DTS 310 electric Data, views or arguments may be submitted to: Kathleen H. Burgess, submeter. Secretary, Public Service Commission, 3 Empire State Plaza, Albany, Purpose: To permit the use of the Measurlogic DTS 310 submeter. New York 12223-1350, (518) 474-6530, email: [email protected] Substance of proposed rule: The Public Service Commission is consider- Public comment will be received until: 45 days after publication of this ing whether to grant, deny or modify, in whole or part, the petition filed by notice. Measurlogic Corporation to use the DTS 310 electric submeter for use in Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural residential submetering applications. The Commission may also consider Area Flexibility Analysis and Job Impact Statement other related matters. Statements and analyses are not submitted with this notice because the Text of proposed rule and any required statements and analyses may be proposed rule is within the definition contained in section 102(2)(a)(ii) of obtained by filing a Document Request Form (F-96) located on our the State Administrative Procedure Act. website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine (15-E-0125SP1) Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 486-2660, email: [email protected] PROPOSED RULE MAKING Data, views or arguments may be submitted to: Kathleen H. Burgess, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, NO HEARING(S) SCHEDULED New York 12223-1350, (518) 474-6530, email: [email protected] Public comment will be received until: 45 days after publication of this Whether to Permit the Use of the Sensus Smart Point Gas AMR/ notice. AMI Product Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural I.D. No. PSC-13-15-00026-P Area Flexibility Analysis and Job Impact Statement Statements and analyses are not submitted with this notice because the proposed rule is within the definition contained in section 102(2)(a)(ii) of PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- the State Administrative Procedure Act. cedure Act, NOTICE is hereby given of the following proposed rule: (15-E-0136SP1) Proposed Action: The Public Service Commission is considering whether to approve, deny or modify, in whole or in part, a petition filed by PROPOSED RULE MAKING Consolidated Edison and Orange and Rockland Utilities for approval to NO HEARING(S) SCHEDULED use the Sensus Smart Point Gas AMR/AMI product. Statutory authority: Public Service Law, section 67(1) Whether to Permit the Use of the SATEC EM920 Electric Meter Subject: Whether to permit the use of the Sensus Smart Point Gas AMR/ I.D. No. PSC-13-15-00028-P AMI product. Purpose: To permit the use of the Sensus Smart Point Gas AMR/AMI PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- product. cedure Act, NOTICE is hereby given of the following proposed rule: Substance of proposed rule: The Public Service Commission is consider- Proposed Action: The Public Service Commission is considering whether ing whether to grant, deny, or modify, in whole or part, the petition filed to approve, deny or modify, in whole or in part, a petition filed by SATEC by Consolidated Edison Company of New York, Inc. and Orange and Incorporated for approval to use the SATEC EM920 socket type electric Rockland Utilities, Inc., to use the Sensus Smart Point Gas Module AMR/ meter. AMI device in commercial and residential natural gas meter applications, Statutory authority: Public Service Law, section 67(1) and any other related matters. Subject: Whether to permit the use of the SATEC EM920 electric meter. Text of proposed rule and any required statements and analyses may be Purpose: To permit necessary to permit the use of the SATEC EM920 obtained by filing a Document Request Form (F-96) located on our electric meter. website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine Substance of proposed rule: The Public Service Commission is consider- Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New ing whether to grant, deny or modify, in whole or part, the petition filed by York 12223-1350, (518) 486-2660, email: [email protected] SATEC Incorporated for approval to use the SATEC EM920 electric Data, views or arguments may be submitted to: Kathleen H. Burgess, meter in industrial and large commercial accounts, and to determine power Secretary, Public Service Commission, 3 Empire State Plaza, Albany, quality analysis for residential submetering buildings. New York 12223-1350, (518) 474-6530, email: [email protected] Text of proposed rule and any required statements and analyses may be Public comment will be received until: 45 days after publication of this obtained by filing a Document Request Form (F-96) located on our notice. website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural York 12223-1350, (518) 486-2660, email: [email protected] Area Flexibility Analysis and Job Impact Statement Data, views or arguments may be submitted to: Kathleen H. Burgess, Statements and analyses are not submitted with this notice because the Secretary, Public Service Commission, 3 Empire State Plaza, Albany, proposed rule is within the definition contained in section 102(2)(a)(ii) of New York 12223-1350, (518) 474-6530, email: [email protected] the State Administrative Procedure Act. Public comment will be received until: 45 days after publication of this (15-G-0094SP1) notice.

64 NYS Register/April 1, 2015 Rule Making Activities

Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement Statements and analyses are not submitted with this notice because the proposed rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. (15-E-0137SP1) PROPOSED RULE MAKING NO HEARING(S) SCHEDULED

Whether to Permit the Use the Triacta Power Technologies 6103, 6112, 6303, and 6312 Electric Submeters I.D. No. PSC-13-15-00029-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following proposed rule: Proposed Action: The Public Service Commission is considering whether to approve, deny or modify, in whole or in part, a petition filed by Triacta Power Technologies for approval to use the Triacta 6103, 6112, 6303, and 6312 residential electric submeters. Statutory authority: Public Service Law, section 67(1) Subject: Whether to permit the use the Triacta Power Technologies 6103, 6112, 6303, and 6312 electric submeters. Purpose: To permit the use of the Triacta submeters. Substance of proposed rule: The Public Service Commission is considering whether to grant, deny or modify, in whole or part, the petition filed by Triacta Power Technologies for approval to use the Triacta 6103, 6112, 6303, and 6312 electric submeters in residential submetering applications. The Commission may also consider other related matters. Text of proposed rule and any required statements and analyses may be obtained by filing a Document Request Form (F-96) located on our website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 486-2660, email: [email protected] Data, views or arguments may be submitted to: Kathleen H. Burgess, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 474-6530, email: [email protected] Public comment will be received until: 45 days after publication of this notice. Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement Statements and analyses are not submitted with this notice because the proposed rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. (15-E-0133SP1)

65 Rule Making Activities NYS Register/April 1, 2015

HEARINGS SCHEDULED FOR PROPOSED RULE MAKINGS Agency I.D. No. Subject Matter Location—Date—Time People with Developmental Disabilities, Office for PDD-10-15-00005-P ...... Consolidated fiscal report penalty amend- Office for People with Developmental Dis- ments abilities, 44 Holland Ave., 3rd Fl., Counsel’s Office Conference Rm., Albany, NY—April 27 and 28, 2015, 10:30 a.m. Public Service Commission PSC-04-15-00012-P ...... Disposition of tax refunds and other related Department of Public Service, Three Empire matters State Plaza, 3rd Fl. Hearing Rm., Albany, NY—April 8, 2015, 10:30 a.m. (Evidentiary Hearing)* *On occasion there are requests to reschedule or postpone evidentiary hearing dates. If such a request is granted, notification of any subsequent scheduling changes will be available at the DPS website (www.dps.ny.gov) under Case 14-G-0503. PSC-07-15-00005-P ...... Major electric rate increase filing Department of Public Service, Three Empire State Plaza, 3rd Fl. Hearing Rm., Albany, NY—May 4, 2015 and continuing daily as needed, 10:00 a.m. (Evidentiary Hearing)* *On occasion, there are requests to reschedule or postpone evidentiary hearing dates. If such a request is granted, notification of any subsequent scheduling changes will be available at the DPS website (www.dps.ny.gov) under Cases 14-E-0493 and 14-G-0494. PSC-07-15-00007-P ...... Major gas rate increase filing Department of Public Service, Three Empire State Plaza, 3rd Fl. Hearing Rm., Albany, NY—May 4, 2015 and continuing daily as needed, 10:00 a.m. (Evidentiary Hearing)* *On occasion, there are requests to reschedule or postpone evidentiary hearing dates. If such a request is granted, notification of any subsequent scheduling changes will be available at the DPS website (www.dps.ny.gov) under Cases 14-E-0493 and 14-G-0494. PSC-09-15-00003-P ...... Recovery of costs related to a Reliability Department of Public Service, Three Empire Support Services Agreement for services State Plaza, 3rd Fl. Hearing Rm., Albany, from R.E. Ginna Nuclear Power Plant, LLC NY—April 20, 2015 and continuing daily as needed, 10:00 a.m.* *On occasion, there are requests to reschedule or postpone hearing dates. If such a request is granted, notification of any subsequent scheduling changes will be available at the DPS website (www.dps.ny.gov) under Case 14-E-0270.

66 NYS Register/April 1, 2015 Action Pending Index

ACTION PENDING INDEX

The action pending index is a list of all proposed rules which are in the action pending index, use the identification number to currently being considered for adoption. A proposed rule is locate the text of the original notice of proposed rule making. added to the index when the notice of proposed rule making is The identification number contains a code which identifies the first published in the Register. A proposed rule is removed from agency, the issue of the Register in which the notice was printed, the index when any of the following occur: (1) the proposal is the year in which the notice was printed and the notice's serial adopted as a permanent rule; (2) the proposal is rejected and number. The following diagram shows how to read identification withdrawn from consideration; or (3) the proposal's notice number codes. expires. Most notices expire in approximately 12 months if the agency Agency Issue Year Serial Action does not adopt or reject the proposal within that time. The code number published number Code expiration date is printed in the second column of the action pending index. Some notices, however, never expire. Those no- AAM 01 12 00001 P tices are identified by the word “exempt” in the second column. Actions pending for one year or more are preceded by an Action codes: P — proposed rule making; EP — emergency and asterisk(*). proposed rule making (expiration date refers to proposed rule); For additional information concerning any of the proposals listed RP — revised rule making

Agency I.D. No. Expires Subject Matter Purpose of Action

ADIRONDACK PARK AGENCY

APA-05-15-00006-P ...... 03/04/16 Emergency projects The purpose of the proposed rule is to define when jurisdictional land use and development constitutes an emergency project

AGRICULTURE AND MARKETS, DEPARTMENT OF

AAM-05-15-00002-P ...... 02/04/16 Incorporation by reference of the 2013 edition To require certain producers, processors and of the Grade A Pasteurized Milk Ordinance manufacturers of milk and milk products to (‘‘PMO’’) comply with the 2013 edition of the PMO

BATTERY PARK CITY AUTHORITY

BPA-11-15-00018-P ...... 03/17/16 Proposed action is the amendment of the rules To remain consistent with the rules of other and regulations of Battery Park City parks parks in New York City and to incorporate activities previously not addressed

CABLE TELEVISION, COMMISSION ON

*CTV-23-94-00009-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - Aurora system basic service and equipment are justified

*CTV-23-94-00010-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - Chautauqua basic service and equipment are justified system

*CTV-23-94-00011-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - Grand Island basic service and equipment are justified system

*CTV-23-94-00012-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - Riverview system basic service and equipment are justified

*CTV-23-94-00030-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - Long Island/V- basic service and equipment are justified Cable/Shelter Island system

67 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

CABLE TELEVISION, COMMISSION ON *CTV-23-94-00035-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for C-TEC Corp. - C-TEC Cable system basic service and equipment are justified

*CTV-24-94-00013-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - Long Island - basic service and equipment are justified Riverhead system

*CTV-24-94-00026-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - Long Island basic service and equipment are justified system

*CTV-24-94-00034-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision System Corp. - Long Island/V- basic service and equipment are justified Cable system

*CTV-24-94-00037-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - International basic service and equipment are justified system

*CTV-24-94-00042-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications/Resort system basic service and equipment are justified

*CTV-24-94-00043-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - Hoosick system basic service and equipment are justified

*CTV-24-94-00051-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - Long Island/Great basic service and equipment are justified Neck system

*CTV-25-94-00015-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Selectavision of Cazenovia - Cazenovia system basic service and equipment are justified

*CTV-25-94-00021-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - A-R Cable basic and equipment are justified Services-NY, Inc. Lynbrook system

*CTV-25-94-00023-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - Dutchess system basic service and equipment are justified

*CTV-25-94-00026-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications - Harbor Vue system basic service and equipment are justified

*CTV-25-94-00033-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp. - East Hampton basic service and equipment are justified system

*CTV-27-94-00029-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Systems Corp.-Huntington system basic service and equipment are justified

*CTV-27-94-00031-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications-Niagara system basic service and equipment are justified

*CTV-39-94-00017-P ...... exempt Rates for basic service and equipment of Time To determine whether the company's rates for Warner - ATC - ACC Dryden system basic service and equipment are justified

*CTV-39-94-00018-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Adelphia Communications-Aurora, Chautauqua, basic service and equipment are justified Grand Island, Harbor Vue, Hoosick, International, Niagara, Resort and River Valley systems

68 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

CABLE TELEVISION, COMMISSION ON *CTV-39-94-00019-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for C-Tec Cable Corp.-C-Tec Cable system basic service and equipment are justified

*CTV-39-94-00023-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for United Video Cablevision of New York- basic service and equipment are justified Community Cable system

*CTV-39-94-00033-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Simmons Communications-Simmons Cable- basic service and equipment are justified Salamanca system

*CTV-39-94-00035-P ...... exempt Rates for basic service and equipment of TKR To determine whether the company's rates for Cable Company-Ramapo, Rockland and basic service and equipment are justified Warwick systems

*CTV-39-94-00037-P ...... exempt Rates for basic service and equipment of U.S. To determine whether the company's rates for Cable Corp.-Evangola, Westfield and Tri - basic service and equipment are justified County/Arcade systems

*CTV-39-94-00039-P ...... exempt Rates for basic service and equipment of Time To determine whether the company's rates for Warner-Warner Communications/Olean system basic service and equipment are justified

*CTV-45-94-00010-P ...... exempt Rates for basic service and equipment of To determine whether the company's rates for Cablevision Industries, Inc.-Genesee/Tri- basic service and equipment are justified County/Medina system

CHILDREN AND FAMILY SERVICES, OFFICE OF

CFS-11-15-00011-P ...... 03/17/16 Implementation of the federal Preventing Sex Implementation of the federal Preventing Sex Trafficking and Strengthening Families Act (P.L. Trafficking and Strengthening Families Act (P.L. 113-183) 113-183)

CFS-12-15-00010-P ...... 03/24/16 Implementation of legislation for destitute To implement legislation for destitute children, children re-entry into foster care and to make other technical amendments

CIVIL SERVICE, DEPARTMENT OF

CVS-20-14-00003-P ...... 05/21/15 JurisdictionalClassification To classify positions in the non-competitive class

CVS-25-14-00003-P ...... 06/25/15 Jurisdictional Classification To classify a position in the exempt class

CVS-30-14-00001-P ...... 07/30/15 Jurisdictional Classification To classify positions in the exempt class and to delete positions from the non-competitive class

CVS-30-14-00002-P ...... 07/30/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-30-14-00003-P ...... 07/30/15 Jurisdictional Classification To classify a position in the exempt class and to delete positions from and classify positions in the non-competitive class

CVS-30-14-00004-P ...... 07/30/15 Jurisdictional Classification To delete and classify positions in the exempt class and to delete and classify positions in the non-competitive class

CVS-30-14-00005-P ...... 07/30/15 Jurisdictional Classification To classify a position in the non-competitive class

69 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

CIVIL SERVICE, DEPARTMENT OF CVS-30-14-00006-P ...... 07/30/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-30-14-00007-P ...... 07/30/15 Jurisdictional Classification To delete a position from the non-competitive class

CVS-30-14-00008-P ...... 07/30/15 Jurisdictional Classification To classify a position in the exempt class

CVS-30-14-00009-P ...... 07/30/15 Jurisdictional Classification To classify a position in the exempt class

CVS-30-14-00010-P ...... 07/30/15 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-30-14-00011-P ...... 07/30/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-30-14-00012-P ...... 07/30/15 Jurisdictional Classification To classify a position in the exempt class

CVS-30-14-00013-P ...... 07/30/15 Jurisdictional Classification To classify positions in the non-competitive class

CVS-44-14-00005-P ...... 11/05/15 Jurisdictional Classification To classify a position in the exempt class

CVS-44-14-00006-P ...... 11/05/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-44-14-00007-P ...... 11/05/15 Jurisdictional Classification To classify a position in the exempt class

CVS-44-14-00008-P ...... 11/05/15 Jurisdictional Classification To classify a position in the exempt class

CVS-44-14-00009-P ...... 11/05/15 Jurisdictional Classification To classify positions in the exempt class

CVS-44-14-00010-P ...... 11/05/15 Jurisdictional Classification To classify positions in the exempt class

CVS-44-14-00011-P ...... 11/05/15 Jurisdictional Classification To classify a position in the exempt class

CVS-44-14-00012-P ...... 11/05/15 Jurisdictional Classification To delete a heading and positions from the exempt class

CVS-44-14-00013-P ...... 11/05/15 Jurisdictional Classification To delete a position from and classify positions in the exempt class

CVS-44-14-00014-P ...... 11/05/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-44-14-00015-P ...... 11/05/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-44-14-00016-P ...... 11/05/15 Jurisdictional Classification To classify positions in the non-competitive class

CVS-44-14-00017-P ...... 11/05/15 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-44-14-00018-P ...... 11/05/15 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-47-14-00002-P ...... 11/26/15 Jurisdictional Classification To delete positions from and classify positions in the exempt class

70 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

CIVIL SERVICE, DEPARTMENT OF CVS-47-14-00003-P ...... 11/26/15 Jurisdictional Classification To delete a position from and classify a position in the exempt class

CVS-47-14-00004-P ...... 11/26/15 Jurisdictional Classification To classify a position in the exempt class

CVS-47-14-00005-P ...... 11/26/15 Jurisdictional Classification To classify a position in the exempt class

CVS-47-14-00006-P ...... 11/26/15 Jurisdictional Classification To delete a subheading and positions from the exempt class

CVS-47-14-00007-P ...... 11/26/15 Jurisdictional Classification To classify a position in the non-competitive class

CVS-01-15-00004-P ...... 01/07/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-01-15-00005-P ...... 01/07/16 JurisdictionalClassification To classify a position in the exempt class

CVS-01-15-00006-P ...... 01/07/16 JurisdictionalClassification To delete a position from and classify a position in the exempt class

CVS-01-15-00007-P ...... 01/07/16 JurisdictionalClassification To classify positions in the non-competitive class

CVS-01-15-00008-P ...... 01/07/16 JurisdictionalClassification To delete positions from and classify positions in the exempt class

CVS-01-15-00009-P ...... 01/07/16 JurisdictionalClassification To delete a position from and classify a position in the exempt class

CVS-01-15-00021-P ...... 01/07/16 JurisdictionalClassification To classify a position in the exempt class

CVS-01-15-00022-P ...... 01/07/16 JurisdictionalClassification To delete positions from the non-competitive class

CVS-01-15-00023-P ...... 01/07/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-11-15-00002-P ...... 03/17/16 JurisdictionalClassification To classify a position in the exempt class

CVS-11-15-00003-P ...... 03/17/16 JurisdictionalClassification To classify a position in the exempt class

CVS-11-15-00004-P ...... 03/17/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-11-15-00005-P ...... 03/17/16 JurisdictionalClassification To classify positions in the exempt class

CVS-11-15-00006-P ...... 03/17/16 JurisdictionalClassification To delete positions from and classify positions in the exempt class

CVS-11-15-00007-P ...... 03/17/16 JurisdictionalClassification To delete a position from and classify a position in the non-competitive class

CVS-11-15-00008-P ...... 03/17/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-11-15-00009-P ...... 03/17/16 JurisdictionalClassification To delete a position from and classify positions in the non-competitive class

71 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

CIVIL SERVICE, DEPARTMENT OF CVS-11-15-00010-P ...... 03/17/16 JurisdictionalClassification To delete subheadings and positions from and classify positions in the non-competitive class

CVS-13-15-00003-P ...... 03/31/16 JurisdictionalClassification To classify a position in the exempt class

CVS-13-15-00004-P ...... 03/31/16 JurisdictionalClassification To delete a subheading and positions from and classify positions in the exempt class

CVS-13-15-00005-P ...... 03/31/16 JurisdictionalClassification To classify a position in the non-competitive class.

CVS-13-15-00006-P ...... 03/31/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-13-15-00007-P ...... 03/31/16 JurisdictionalClassification To classify positions in the exempt class

CVS-13-15-00014-P ...... 03/31/16 Supplemental military leave benefits To extend the availability of supplemental military leave benefits for certain New York State employees until December 31, 2015

CORRECTIONS AND COMMUNITY SUPERVISION, DEPARTMENT OF

CCS-08-15-00002-P ...... 02/25/16 Rochester Correctional Facility To correct the address for Rochester Correctional facility

CRIMINAL JUSTICE SERVICES, DIVISION OF

CJS-13-15-00023-P ...... 03/31/16 Statement of purpose for medical and physical To clarify the purpose for the physical fitness fitness standards and procedures for police standards for police officer candidates officer candidates

ECONOMIC DEVELOPMENT, DEPARTMENT OF

EDV-46-14-00001-EP ...... 11/19/15 Empire State Musical and Theatrical Production Establish application procedures for the Empire Tax Credit Program State Musical and Theatrical Production Tax Credit Program

EDV-03-15-00001-P ...... 01/21/16 Empire State Post Production Tax Credit Establish application procedure for the Empire Program State Post Production Tax Credit Program

EDUCATION DEPARTMENT

EDU-19-14-00009-P ...... 05/14/15 Mandatory reporting of information regarding To establish a mandatory reporting requirement possession, sale, use or manufacture of illegal for school personnel, sanctions for drugs on school property/functions noncompliance, and protection for school personnel who report

EDU-27-14-00013-EP ...... 07/09/15 Elementary and Secondary Education Act Conform regulations to State's ESEA Flexibility (ESEA) Flexibility and school and school Waiver Renewal with respect to school and district accountability district removal criteria

EDU-48-14-00008-P ...... 12/03/15 FieldtestsforState assessments, alternate To clarify that school districts must administer assessments and Regents examinations field tests in the schools for which they are assigned

EDU-52-14-00014-EP ...... 12/31/15 Determination of student residency Clarify requirements on student enrollment, particularly as to procedures for unaccompanied minors and other undocumented youth

72 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

EDUCATION DEPARTMENT EDU-04-15-00007-P ...... 01/28/16 UseofDepartment Facilities in the Cultural To prescribe standards for the use of Cultural Education Center Education Center facilities

EDU-05-15-00008-P ...... 02/04/16 Requirements for teacher certification To provide teacher candidates with additional flexibility to use the safety net for the teacher performance assessment.(edTPA)

EDU-05-15-00009-P ...... 02/04/16 Tuition Assistance Program Establishment of standards for a student to regain good academic standing for the purposes of receiving awards under TAP

EDU-08-15-00006-EP ...... 02/25/16 Appeals process on Regents exams passing To extend ability to graduate with a Local score for English Language Learners (ELLs) Diploma via appeal process to qualifying English Language Learner (ELL) students who satisfy all other graduation requirements (including those who satisfy such requirements via available alternative pathways)

EDU-08-15-00007-EP ...... 02/25/16 Teacher certification To provide for a time extension of up to one- year for an expired initial certificate, transitional certificate and/or a conditional initial certificate to provide time for the revised Content Specialty Test (CST) results to be released by the Department

EDU-10-15-00003-P ...... 03/10/16 Requirements for medical physics education To reflect changes in national accreditation programs and eligibility for limited permits in requirements for medical physics education specialty areas of medical physics programs and repeal obsolete provisions

EDU-10-15-00004-P ...... 03/10/16 Continuing education requirements for To provide more flexibility in satisfying optometrists certified to use therapeutic continuing education requirements by expanding pharmaceutical agents the list of acceptable study methods

EDU-10-15-00011-P ...... 03/10/16 Off-premises delivery of prescription To require pharmacies to obtain patient consent medications by New York resident pharmacies before automatically delivering new or refilled prescriptions

EDU-13-15-00021-P ...... 03/31/16 Supplementary Teaching Certificates in To provide additional pathways for teacher Bilingual Education and English to Speakers of certification candidates to obtain supplementary Other Languages (ESOL) bilingual education extension and the ESOL supplementary certificate, for a three year period to conclude on June 30, 2018

EDU-13-15-00022-EP ...... 03/31/16 Pathways to Graduation and Regents Diploma (1) to clarify requirements for earning a Regents Advanced Designation Diploma with advanced designation by students who elect to meet the requirements for a Regents diploma through the mathematics or science pathway options; and (2) to allow students to earn a Regents diploma

EDU-13-15-00030-P ...... 03/31/16 Special Education Itinerant Services (SEIS) To revise the SEIS tuition reimbursement methodology

ENVIRONMENTAL CONSERVATION, DEPARTMENT OF

ENV-31-14-00006-P ...... 10/14/15 Petroleum Bulk Storage (PBS) and Used Oil To harmonize existing State requirements with Management overlapping Federal requirements

ENV-31-14-00007-P ...... 10/14/15 Chemical Bulk Storage To amend existing CBS rule to be at least as stringent as EPA federal rule (40 CFR 280) and include NYS 2008 statutory changes

73 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

ENVIRONMENTAL CONSERVATION, DEPARTMENT OF ENV-47-14-00001-P ...... 11/26/15 The management of coastal sharks Make state regulations consistent with federal rules and maintain compliance with the ASMFC Interstate FMP for Coastal Sharks

ENV-48-14-00005-P ...... 01/27/16 Waterquality standards for Class I and Class To amend New York's water quality standards SD waters in New York City and Suffolk for Class I and Class SD waters to meet the County “swimmable” goal of the Clean Water Act

ENV-52-14-00027-P ...... 02/09/16 The control of criteria air contaminants and To clearly define the federal and state toxic air contaminants from general process air requirements of the existing Part 212 rule, pollution sources General Process Emission Sources

ENV-04-15-00006-P ...... 01/28/16 Regulationsgoverningtherecreational harvest Extend the recreational winter flounder fishing of winter flounder open season from April 1 - May 30 to March 1 - December 31

ENV-07-15-00002-EP ...... 02/18/16 Revised closed season for the harvest and To implement ASMFC American Lobster Fishery landing of lobster from Lobster Management Management Plan Addendum XVII and allow the Area 4 and repeal of mandatory V-notch rule lobster stock to rebuild

ENV-13-15-00031-EP ...... 03/31/16 Toamend 6 NYCRR Parts 10 and 40 Reduce fishing mortality of striped bass to pertaining to commercial and recreational promote stable fish populations, and to remain in regulations for striped bass compliance with the ASMFC FMP

FINANCIAL SERVICES, DEPARTMENT OF

DFS-29-14-00014-P ...... 07/23/15 Title insurance agents, affiliated relationships, To implement requirements of Chapter 57 of and title insurance business Laws of NY 2014 re: title insurance agents and placement of title insurance business

DFS-29-14-00015-RP ...... 07/23/15 Regulation of the conduct of virtual currency Regulate retail-facing virtual currency business businesses activity in order to protect New York consumers and users and ensure the safety and soundness of New York licensed providers of virtual currency products and services

DFS-46-14-00013-P ...... 11/19/15 Reports to Central Organization To remove an outdated references to “PILR” in the title of section 62-2.2

DFS-52-14-00009-ERP ...... 12/31/15 Independent Dispute Resolution for Emergency To establish a dispute resolution process and Services and Surprise Bills standards for that process

DFS-07-15-00004-P ...... 02/18/16 Mandatory Underwriting Inspection Revise requirements regarding the inspection of Requirement for Private Passenger private passenger automobiles for physical Automobiles damage coverage

GAMING COMMISSION, NEW YORK STATE

SGC-28-14-00006-EP ...... 07/16/15 Implementation of rules pertaining to gaming To facilitate a fair and transparent process for facility request for application and gaming applying for a license to operate a gaming facility license application facility

GENERAL SERVICES, OFFICE OF

GNS-36-14-00001-P ...... 09/10/15 Procurement of New York State food products To provide guidance to State Agencies as to how they procure food

74 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

HEALTH, DEPARTMENT OF

*HLT-14-94-00006-P ...... exempt Payment methodology for HIV/AIDS outpatient To expand the current payment to incorporate services pricing for services

HLT-28-14-00008-RP ...... 07/16/15 Immediate Needs for Personal Care Services To provide for meeting the immediate needs of Medicaid applicants and recipients for personal care services

HLT-28-14-00015-ERP ...... 07/16/15 RateRationalization – Intermediate Care To amend the new rate methodology effective Facilities for Persons with Developmental July 1, 2014 Disabilities

HLT-28-14-00016-ERP ...... 07/16/15 RateRationalization for Community To amend the new rate methodology effective Residences/Individualized Residential July 1, 2014 Alternatives Habilitation and Day Habilitation

HLT-31-14-00002-P ...... 08/06/15 Outpatient Services Licensed Under the Mental Creates methodology for adjusting provider Hygiene Law reimbursement in OPWDD, OHM & OASAS certified clinics based on annual patient visits

HLT-32-14-00001-P ...... 08/13/15 BloodBanks Update practice standards, reflect changes and provide clarification of reg. provisions for blood banks and transfusion services

HLT-35-14-00002-P ...... 09/03/15 Statewide Health Information Network for New To promulgate regulations, consistent with York (SHIN-NY) federal law and policies, that govern the Statewide Health Information Network for NY

HLT-36-14-00012-P ...... 09/10/15 Personal Care Services Program (PCSP) and To establish definitions, criteria and Consumer Directed Personal Assistance requirements associated with the provision of Program (CDPAP) continuous PC and continuous CDPA services

HLT-37-14-00003-RP ...... 09/17/15 Emergency Medical Services To clarify terminology, eliminate vagueness, address legal statutes/crimes & incorp. modern professional, ethical & moral standards

HLT-39-14-00018-P ...... 10/01/15 Medical Records Access Review Committees To designate rather than appoint MRARCs to (MRARCs) hear appeals from the denial of access to patient information

HLT-40-14-00016-P ...... 10/08/15 Inpatient Rate for Language Assistance To establish hospital inpatient payment rate to Services reimburse hospitals for the costs of providing language interpretation services

HLT-40-14-00017-P ...... 10/08/15 Nursing Home (NH) Transfer and Discharge To clarify requirements governing NH transfers Rights and discharges so that facilities will uniformly comply with federal regulations

HLT-40-14-00018-P ...... 10/08/15 Managed Care Organizations To lower the contingent reserve requirement applied to the Medicaid Managed Care, Family Health Plus & HIV SNP Programs

HLT-41-14-00002-P ...... 10/15/15 Certificate of Need (CON) Requirements Simplify CON review requirements for projects involving nonclinical infrastructure, equipment replacement & repair & maintenance

HLT-42-14-00001-P ...... 10/22/15 Audited Financial Statements for Managed To extend audit and reporting standards to all Care Organizations managed care organizations (MCOs), including PHSPs, HIV SNPs and MLTCPs

HLT-43-14-00001-P ...... 10/29/15 HospitalObservationServices To amend current observation services provisions to be in compliance with changes in Public Health Law, Section 2805-v

75 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

HEALTH, DEPARTMENT OF HLT-52-14-00013-P ...... 12/31/15 Medical Use of Marihuana To comprehensively regulate the manufacture, sale and use of medical marihuana

HLT-08-15-00003-P ...... 02/25/16 Supplementary Reports of Certain Congenital To increase maximum age of reporting certain Anomalies for Epidemiological Surveillance; birth defects to the Congenital Malformations Filing Registry

HLT-08-15-00005-EP ...... 02/25/16 Opioid Overdose Programs Modification of the rule consistent with new statutory language and with the emergency nature of opioid overdose response

HLT-11-15-00019-P ...... 03/17/16 Standards for Individual Onsite Water Supply Establishes minimum water quality standards for and Individual Onsite Wastewater Treatment individual onsite water supply systems Systems

HLT-11-15-00020-P ...... 03/17/16 SchoolImmunization Requirements Update regulations to ensure children entering grades kindergarten through 12 receive adequate number of required immunizations

LIQUOR AUTHORITY, STATE

LQR-02-15-00002-P ...... 03/09/16 Signage, Services and Gifts to Retailers To enact business friendly amendments; eliminate interior sign restrictions; and increase annual dollar limits for advertising

LQR-13-15-00002-P ...... 03/31/16 Updated application processes for various To update permit filing procedures and contact licenses and permits information at the authority

LONG ISLAND POWER AUTHORITY

*LPA-08-01-00003-P ...... exempt Pole attachments and related matters To approve revisions to the authority's tariff

*LPA-41-02-00005-P ...... exempt Tariff for electric service To revise the tariff for electric service

*LPA-04-06-00007-P ...... exempt Tariff for electric service To adopt provisions of a ratepayer protection plan

*LPA-03-10-00004-P ...... exempt Residential late payment charges To extend the application of late payment charges to residential customers

LPA-02-15-00006-P ...... exempt The provisions of LIPA's Tariff for adjustment To modify and add to the Tariff in order to to rates and changes of service classifications implement revenue-neutral changes required to maintain the 3-year LIPA rate freeze

LPA-07-15-00003-P ...... exempt The rates and charges set forth in LIPA's Tariff To set rates and charges at the lowest level for Electric Service consistent with sound fiscal and operating practices and safe and adequate service

MENTAL HEALTH, OFFICE OF

OMH-04-15-00002-P ...... 01/28/16 PreventionofInfluenzaTransmission Provide clarification and flexible system for documentation

OMH-10-15-00002-P ...... 03/10/16 Patients Committed to the Custody of the Conform regulatory provisions to statute with Commissioner Pursuant to CPL Article 730 respect to the performance of competency reports

OMH-11-15-00013-P ...... 03/17/16 Medical Assistance Rates of Payment for Amend date of trend factor elimination to Residential Treatment Facilities for Children December 31, 2014 instead of June 30, 2015 and Youth

76 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

MOTOR VEHICLES, DEPARTMENT OF

MTV-08-15-00004-P ...... 02/25/16 Electronic insurance identification cards Authorize insurance companies to issue electronic insurance identification cards

MTV-09-15-00002-P ...... 03/03/16 Signs displayed by dealers Gives dealers more flexibility in the display of required signage

MTV-11-15-00017-P ...... 03/17/16 Commercial learner's permits and commercial Conforms state licensing requirements to federal driver's licenses requirements

MTV-12-15-00009-P ...... 03/24/16 Physician assistants performing medical review To allow physician assistants to perform a after loss of consciousness medical review after a loss of consciousness

MTV-13-15-00011-P ...... 03/31/16 Registrationofpickuptrucks Toallow the registration of pick up trucks in the passenger class up to 6,000 pounds

MTV-13-15-00012-P ...... 03/31/16 Offpremisesales of motor vehicles Provides guidance of off premise sales of motor vehicles by registered dealers

MTV-13-15-00013-P ...... 03/31/16 Montgomery County motor vehicle use tax To impose a Montgomery County motor vehicle use tax

NIAGARA FALLS WATER BOARD

*NFW-04-13-00004-EP ...... exempt Adoption of Rates, Fees and Charges To pay for the increased costs necessary to operate, maintain and manage the system, and to achieve covenants with bondholders

NFW-13-14-00006-EP ...... exempt Adoption of Rates, Fees and Charges To pay for increased costs necessary to operate, maintain and manage the system and to achieve covenants with the bondholders

NIAGARA FRONTIER TRANSPORTATION AUTHORITY

NFT-04-15-00015-P ...... 01/28/16 Smoking To clarify where smoking is prohibited at NFTA locations

PARKS, RECREATION AND HISTORIC PRESERVATION, OFFICE OF

PKR-06-15-00002-P ...... 02/11/16 Resident Curator Program To rehabilitate vacant and unused buildings at no cost to the State by leasing the buildings to private individuals

PEOPLE WITH DEVELOPMENTAL DISABILITIES, OFFICE FOR

PDD-10-15-00005-P ...... 04/27/16 Consolidated Fiscal Report Penalty To change requirements for imposing a penalty Amendments on providers that fail to meet filing deadlines for cost reports

POWER AUTHORITY OF THE STATE OF NEW YORK

*PAS-01-10-00010-P ...... exempt Rates for the sale of power and energy Update ECSB Programs customers' service tariffs to streamline them/include additional required information

PAS-01-15-00012-P ...... exempt Rates for the Sale of Power and Energy To recover the Authority's Fixed Costs

77 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

POWER AUTHORITY OF THE STATE OF NEW YORK PAS-01-15-00013-P ...... exempt Rates for the Sale of Power and Energy To align rates and costs

PAS-11-15-00016-P ...... exempt Rates for the Sale of Power and Energy To improve the net metering services currently offered by the Authority to its New York City and Westchester Customers

PUBLIC SERVICE COMMISSION

*PSC-28-97-00032-P ...... exempt General service by Central Hudson Gas & To limit certain special provisions Electric Corporation

*PSC-34-97-00009-P ...... exempt Collection agency fees by Consolidated Edison To pass collection agency fees on to the Company of New York, Inc. customer

*PSC-04-98-00015-P ...... exempt Interconnection service overcharges by Niagara To consider a complaint by Azure Mountain Mohawk Power Corporation Power Co.

*PSC-19-98-00008-P ...... exempt Call forwarding by CPU Industries Inc./MKL To rehear the petition Net,etal.

*PSC-02-99-00006-EP ...... exempt Intralata freeze plan by New York Telephone To approve the plan Company

*PSC-09-99-00012-P ...... exempt Transfer of books and records by Citizens To relocate Ogden Telephone Company's books Utilities Company and records out-of-state

*PSC-15-99-00011-P ...... exempt Electronic tariff by Woodcliff Park Corp. To replace the company's current tariff with an electronic tariff

*PSC-50-99-00009-P ...... exempt Retail access uniform business practices by To approve a joint petition requesting a waiver The Brooklyn Union Gas Company and extension of a requirement set forth in the KeySpan Gas East Corporation d/b/a commission's order Brooklyn Union of Long Island

*PSC-52-99-00006-P ...... exempt Wide area rate center calling To implement number conservation measures

*PSC-12-00-00001-P ...... exempt Winter bundled sales service election date by To revise the date Central Hudson Gas & Electric Corporation

*PSC-14-00-00004-EP ...... exempt NXX code in the 716 NPA by Broadview To assign an NXX code in Buffalo Networks

*PSC-14-00-00026-P ...... exempt Interconnection agreement between New York To review the terms and conditions of the Telephone Company d/b/a Bell Atlantic-New negotiated agreement York and Media Log, Inc.

*PSC-14-00-00027-P ...... exempt Interconnection agreement between New York To review the terms and conditions of the Telephone Company d/b/a Bell Atlantic-New negotiated agreement York and Pilgrim Telephone, Inc.

*PSC-14-00-00029-P ...... exempt Interconnection agreement between New York To review the terms and conditions of the Telephone Company d/b/a Bell Atlantic-New negotiated agreement York and CoreComm New York, Inc.

*PSC-16-00-00012-P ...... exempt Termination of local telecommunications traffic To determine appropriate compensation levels by Hyperion Communications of New York, Inc.

*PSC-21-00-00007-P ...... exempt Initial tariff schedule by Drew Road Association To set forth the rates, charges, rules and regulations

78 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-31-00-00026-P ...... exempt Water service by Windover Water Works To abandon the water system

*PSC-33-00-00010-P ...... exempt Electric rate and restructuring plan by To evaluate possible modifications Rochester Gas and Electric Corporation

*PSC-36-00-00039-P ...... exempt Steam increase by Consolidated Edison To provide for an annual increase in the first Company of New York, Inc. year of a proposed four-year rate plan

*PSC-37-00-00001-EP ...... exempt Interruptible gas customers To ensure customers have an adequate supply of alternative fuel available

*PSC-39-00-00004-P ...... exempt Blockable central office codes by PaeTec To review the commission's requirements for Communications, Inc. assignment of numbering resources

*PSC-44-00-00014-P ...... exempt Recovery of costs through adjustment To permit the recovery of certain costs mechanisms by Consolidated Edison Company of New York, Inc.

*PSC-49-00-00007-P ...... exempt Gas sales and purchases by Corning Natural To determine whether certain gas sales and Gas Corporation purchases were in the public interest and whether customers should bear the resulting costs

*PSC-01-01-00023-P ...... exempt Installation, maintenance and ownership of To update and clarify the provisions service laterals by Rochester Gas and Electric Corporation

*PSC-06-01-00009-P ...... exempt Uniform system of accounts by Rochester Gas To defer an item of expense beyond the end of and Electric Corporation the year in which it was incurred

*PSC-13-01-00001-P ...... exempt Request for accounting authorization by To defer an item of expense beyond the end of Rochester Gas and Electric Corporation the year in which it was incurred

*PSC-13-01-00002-P ...... exempt Request for accounting authorization by To defer an item of expense beyond the end of Rochester Gas and Electric Corporation the year in which it was incurred

*PSC-13-01-00003-P ...... exempt Request for accounting authorization by To defer an item of expense beyond the end of Rochester Gas and Electric Corporation the year in which it was incurred

*PSC-15-01-00012-P ...... exempt Transfer of a controlling leasehold interest by To approve the transfer Huntley Power LLC

*PSC-22-01-00006-P ...... exempt Con Edison's phase 4 plan for retail access by To review the request for rehearing AES Energy, Inc.

*PSC-26-01-00012-P ...... exempt Interconnection of networks between Sprint To review the terms and conditions of the PCS and Verizon New York Inc. negotiated agreement

*PSC-36-01-00010-P ...... exempt Competitive metering by eBidenergy.com To clarify meter ownership rules and requirements

*PSC-44-01-00005-P ...... exempt Annual reconciliation of gas costs by Corning To authorize the company to include certain gas Natural Gas Corporation costs

*PSC-01-02-00007-P ...... exempt Accounting and rate treatment of proceeds by To consider proceeds from sale of nuclear Consolidated Edison Company of New York, generating facilities Inc.

*PSC-05-02-00005-P ...... exempt Uniform system of accounts by Consolidated To defer expenditures incurred in connection Edison Company of New York, Inc. with emergency response services affected by the World Trade Center disaster

79 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-06-02-00015-P ...... exempt Network reliability performance mechanism by To earn rewards for meeting the targets of the Consolidated Edison Company of New York, network reliability performance mechanism Inc.

*PSC-07-02-00032-P ...... exempt Uniform business practices To consider modification

*PSC-29-02-00014-P ...... exempt Financing by Valley Energy, Inc. To issue a note and allocate costs

*PSC-49-02-00021-P ...... exempt Requests for lightened regulation by PSEG To consider the company's request Power Bellport, LLC

*PSC-08-03-00009-P ...... exempt Provision of gas service to World Kitchen To establish terms and conditions Incorporated

*PSC-09-03-00012-P ...... exempt Incremental service line installations by New To revise the current flat rate per foot charged York State Electric & Gas Corporation

*PSC-09-03-00014-P ...... exempt Deferral accounting by Consolidated Edison To defer expense items beyond the end of the Company of New York, Inc. and Orange and year(s) in which they were incurred Rockland Utilities, Inc.

*PSC-11-03-00012-P ...... exempt Economic development plan by New York To consider the plan State Electric & Gas Corporation

*PSC-18-03-00004-P ...... exempt Lightened regulation by East Hampton Power To provide for lightened regulation and grant and Light Corporation (EHPLC) financing approval

*PSC-22-03-00020-P ...... exempt Inter-departmental gas pricing by Consolidated To revise the method used in steam and steam- Edison Company of New York, Inc. electric generating stations

*PSC-32-03-00020-P ...... exempt Issuance of debt and approval of surcharge by To approve necessary financing Rainbow Water Company

*PSC-34-03-00019-P ...... exempt Issuance of securities by KeySpan East To obtain authorization to issue securities Corporation d/b/a KeySpan Energy Delivery Long Island

*PSC-35-03-00009-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and MCIMetro Access Transmission Services LLC

*PSC-36-03-00010-P ...... exempt Performance assurance plan by Verizon New To consider changes York

*PSC-39-03-00013-P ...... exempt Complaint by State University of New York To consider the complaint (SUNY) regarding a NYSEG operating agreement

*PSC-40-03-00015-P ...... exempt Receipt of payment of bills by St. Lawrence To revise the process Gas Company

*PSC-41-03-00008-P ...... exempt Lightened regulation by Sterling Power To consider granting lightened regulation Partners, L.P.

*PSC-41-03-00010-P ...... exempt Annual reconciliation of gas expenses and gas To consider filings of various LDCs and cost recoveries municipalities

*PSC-41-03-00011-P ...... exempt Annual reconciliation of gas expenses and gas To consider filings of various LDCs and cost recoveries municipalities

80 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-42-03-00005-P ...... exempt Interest rate by the Bath Electric, Gas, and To use an alternate interest rate Water Systems

*PSC-43-03-00036-P ...... exempt Merchant function backout credit and transition To continue the credit and account until May 31, balancing account by KeySpan Gas East 2005 Corporation

*PSC-43-03-00037-P ...... exempt Merchant function backout credit and transition To continue the credit and account until May 31, balancing account by The Brooklyn Union Gas 2005 Company

*PSC-44-03-00009-P ...... exempt Retail access data between jurisdictional To accommodate changes in retail access utilities market structure or commission mandates

*PSC-47-03-00024-P ...... exempt Lightened regulation and financing approval by To consider the requests Medford Energy LLC

*PSC-02-04-00008-P ...... exempt Delivery rates for Con Edison's customers in To rehear the Nov. 25, 2003 order New York City and Westchester County by the City of New York

*PSC-06-04-00009-P ...... exempt Transfer of ownership interest by SCS Energy To transfer interest in Steinway Creek Electric LLC and AE Investors LLC Generating Company LLC to AE Investors LLC

*PSC-10-04-00005-P ...... exempt Temporary protective order To consider adopting a protective order

*PSC-10-04-00008-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and VIC-RMTS-DC, L.L.C. d/b/a Verizon Avenue

*PSC-14-04-00008-P ...... exempt Submetering of natural gas service to industrial To submeter gas service to commercial and commercial customers by Hamburg customers located at the Buffalo Speedway Fairgrounds

*PSC-15-04-00022-P ...... exempt Submetering of electricity by Glenn Gardens To permit submetering at 175 W. 87th St., New Associates, L.P. York, NY

*PSC-21-04-00013-P ...... exempt Verizon performance assurance plan by To clarify the appropriate performance level Metropolitan Telecommunications

*PSC-22-04-00010-P ...... exempt Approval of new types of electricity meters by To permit the use of the PE-1250 electronic Powell Power Electric Company meter

*PSC-22-04-00013-P ...... exempt Major gas rate increase by Consolidated To increase annual gas revenues Edison Company of New York, Inc.

*PSC-22-04-00016-P ...... exempt Master metering of water by South Liberty To waive the requirement for installation of Corporation separate water meters

*PSC-25-04-00012-P ...... exempt Interconnection agreement between Frontier To amend the agreement Communications of Ausable Valley, Inc., et al. and Sprint Communications Company, L.P.

*PSC-27-04-00008-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and various Verizon wireless affiliates

*PSC-27-04-00009-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and various Verizon wireless affiliates

81 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-28-04-00006-P ...... exempt Approval of loans by Dunkirk & Fredonia To authorize participation in the parent Telephone Company and Cassadaga corporation's line of credit Telephone Corporation

*PSC-31-04-00023-P ...... exempt Distributed generation service by Consolidated To provide an application form Edison Company of New York, Inc.

*PSC-34-04-00031-P ...... exempt Flat rate residential service by Emerald Green To set appropriate level of permanent rates Lake Louise Marie Water Company, Inc.

*PSC-35-04-00017-P ...... exempt Application form for distributed generation by To establish a new supplementary application Orange and Rockland Utilities, Inc. form for customers

*PSC-43-04-00016-P ...... exempt Accounts recievable by Rochester Gas and To include in its tariff provisions for the Electric Corporation purchase of ESCO accounts recievable

*PSC-46-04-00012-P ...... exempt Service application form by Consolidated To revise the form and make housekeeping Edison Company of New York, Inc. changes

*PSC-46-04-00013-P ...... exempt Rules and guidelines governing installation of To establish uniform statewide business metering equipment practices

*PSC-02-05-00006-P ...... exempt Violation of the July 22, 2004 order by To consider imposing remedial actions against Dutchess Estates Water Company, Inc. the company and its owners, officers and directors

*PSC-09-05-00009-P ...... exempt Submetering of natural gas service by Hamlet To consider submetering of natural gas to a on Olde Oyster Bay commercial customer

*PSC-14-05-00006-P ...... exempt Request for deferred accounting authorization To defer expenses beyond the end of the fiscal by Freeport Electric Inc. year

*PSC-18-05-00009-P ...... exempt Marketer Assignment Program by Consolidated To implement the program Edison Company of New York, Inc.

*PSC-20-05-00028-P ...... exempt Delivery point aggregation fee by Allied Frozen To review the calculation of the fee Storage, Inc.

*PSC-25-05-00011-P ...... exempt Metering, balancing and cashout provisions by To establish provisions for gas customers taking Central Hudson Gas & Electric Corporation service under Service Classification Nos. 8, 9 and 11

*PSC-27-05-00018-P ...... exempt Annual reconciliation of gas costs by New York To consider the manner in which the gas cost State Electric & Gas Corporation incentive mechanism has been applied

*PSC-41-05-00013-P ...... exempt Annual reconciliation of gas expenses and gas To consider the filings cost recoveries by local distribution companies and municipalities

*PSC-45-05-00011-P ...... exempt Treatment of lost and unaccounted gas costs To defer certain costs by Corning Natural Gas Corporation

*PSC-46-05-00015-P ...... exempt Sale of real and personal property by the To consider the sale Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery New York and Steel Arrow, LLC

*PSC-47-05-00009-P ...... exempt Transferral of gas supplies by Corning Natural To approve the transfer Gas Corporation

82 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-50-05-00008-P ...... exempt Long-term debt by Saratoga Glen Hollow To obtain long-term debt Water Supply Corp.

*PSC-04-06-00024-P ...... exempt Transfer of ownership interests by Mirant NY- To approve of the transfer Gen LLC and Orange and Rockland Utilities, Inc.

*PSC-06-06-00015-P ...... exempt Gas curtailment policies and procedures To examine the manner and extent to which gas curtailment policies and procedures should be modified and/or established

*PSC-07-06-00009-P ...... exempt Modification of the current Environmental To include an attributes accounting system Disclosure Program

*PSC-22-06-00019-P ...... exempt Hourly pricing by National Grid To assess the impacts

*PSC-22-06-00020-P ...... exempt Hourly pricing by New York State Electric & To assess the impacts Gas Corporation

*PSC-22-06-00021-P ...... exempt Hourly pricing by Rochester Gas & Electric To assess the impacts Corporation

*PSC-22-06-00022-P ...... exempt Hourly pricing by Consolidated Edison To assess the impacts Company of New York, Inc.

*PSC-22-06-00023-P ...... exempt Hourly pricing by Orange and Rockland To assess the impacts Utilities, Inc.

*PSC-24-06-00005-EP ...... exempt Supplemental home energy assistance benefits To extend the deadline to Central Hudson's low- income customers

*PSC-25-06-00017-P ...... exempt Purchased power adjustment by Massena To revise the method of calculating the Electric Department purchased power adjustment and update the factor of adjustment

*PSC-34-06-00009-P ...... exempt Inter-carrier telephone service quality To incorporate appropriate modifications standards and metrics by the Carrier Working Group

*PSC-37-06-00015-P ...... exempt Procedures for estimation of customer bills by To consider estimation procedures Rochester Gas and Electric Corporation

*PSC-37-06-00017-P ...... exempt Procedures for estimation of customer bills by To consider estimation procedures Rochester Gas and Electric Corporation

*PSC-39-06-00018-P ...... exempt Order establishing rate plan by Central Hudson To consider the petitions for rehearing Gas & Electric Corporation and the Consumer Protection Board

*PSC-39-06-00019-P ...... exempt Investigation of Richard M. Osborne by Corning To determine the interests, plans and Natural Gas Corporation commitments that will be in place if he is successful in blocking the merger of Corning Gas and C&T Enterprises

*PSC-39-06-00022-P ...... exempt Uniform business practices and related matters To establish a contest period by U.S. Energy Savings Corporation

*PSC-40-06-00005-P ...... exempt Orion Integral automatic meter reading To permit gas utilities in NYS to use the Badger transmitter by New York State Electric and Meter Incorporated Orion Integral transmitters Gas Corporation

83 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-42-06-00011-P ...... exempt Submetering of electricity by 225 5th LLC To submeter electricity at 255 Fifth Ave., New York, NY

*PSC-43-06-00014-P ...... exempt Electric delivery services by Strategic Power To determine the proper mechanism for the Management, Inc. rate-recovery of costs

*PSC-44-06-00014-P ...... exempt Electric power outages in Northwest Queens To review the terms and conditions of the by Consolidated Edison Company of New agreement York, Inc.

*PSC-45-06-00007-P ...... exempt Alleged failure to provide electricity by Robert To assess validity of allegations and Andrews appropriateness of fines

*PSC-01-07-00031-P ...... exempt Enforcement mechanisms by National Fuel Gas To modify enforcement mechanisms Distribution Corporation

*PSC-04-07-00012-P ...... exempt Petition for rehearing by Orange and Rockland To clarify the order Utilities, Inc.

*PSC-06-07-00015-P ...... exempt Meter reading and billing practices by Central To continue current meter reading and billing Hudson Gas & Electric Corporation practices for electric service

*PSC-06-07-00020-P ...... exempt Meter reading and billing practices by Central To continue current meter reading and billing Hudson Gas & Electric Corporation practices for gas service

*PSC-11-07-00010-P ...... exempt Investigation of the electric power outages by To implement the recommendations in the staff's the Consolidated Edison Company of New investigation York, Inc.

*PSC-11-07-00011-P ...... exempt Storm-related power outages by Consolidated To modify the company's response to power Edison Company of New York, Inc. outages, the timing for any such changes and other related matters

*PSC-17-07-00008-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and BridgeCom International, Inc.

*PSC-18-07-00010-P ...... exempt Existing electric generating stations by To repower and upgrade existing electric Independent Power Producers of New York, generating stations owned by Rochester Gas Inc. and Electric Corporation

*PSC-20-07-00016-P ...... exempt Tariff revisions and making rates permanent by To seek rehearing New York State Electric & Gas Corporation

*PSC-21-07-00007-P ...... exempt Natural Gas Supply and Acquisition Plan by To revise the rates, charges, rules and Corning Natural Gas Corporation regulations for gas service

*PSC-22-07-00015-P ...... exempt Demand Side Management Program by To recover incremental program costs and lost Consolidated Edison Company of New York, revenue Inc.

*PSC-23-07-00022-P ...... exempt Supplier, transportation, balancing and To explicitly state in the company's tariff that aggregation service by National Fuel Gas the threshold level of elective upstream Distribution Corporation transmission capacity is a maximum of 112,600 Dth/day of marketer-provided upstream capacity

*PSC-24-07-00012-P ...... exempt Gas Efficiency Program by the City of New To consider rehearing a decision establishing a York Gas Efficiency Program

84 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-39-07-00017-P ...... exempt Gas bill issuance charge by New York State To create a gas bill issuance charge unbundled Electric & Gas Corporation from delivery rates

*PSC-41-07-00009-P ...... exempt Submetering of electricity rehearing To seek reversal

*PSC-42-07-00012-P ...... exempt Energy efficiency program by Orange and To consider any energy efficiency program for Rockland Utilities, Inc. Orange and Rockland Utilities, Inc.'s electric service

*PSC-42-07-00013-P ...... exempt Revenue decoupling by Orange and Rockland To consider a revenue decoupling mechanism Utilities, Inc. for Orange and Rockland Utilities, Inc.

*PSC-45-07-00005-P ...... exempt Customer incentive programs by Orange and To establish a tariff provision Rockland Utilities, Inc.

*PSC-02-08-00006-P ...... exempt Additional central office codes in the 315 area To consider options for making additional codes code region

*PSC-03-08-00006-P ...... exempt Rehearing of the accounting determinations To grant or deny a petition for rehearing of the accounting determinations

*PSC-04-08-00010-P ...... exempt Granting of easement rights on utility property To grant easement rights to Millennium Pipeline by Central Hudson Gas & Electric Corporation Company, L.L.C.

*PSC-04-08-00012-P ...... exempt Marketing practices of energy service To consider modifying the commission's companies by the Consumer Protection Board regulation over marketing practices of energy and New York City Department of Consumer service companies Affairs

*PSC-08-08-00016-P ...... exempt Transfer of ownership by Entergy Nuclear To consider the transfer Fitzpatrick LLC, et al.

*PSC-12-08-00019-P ...... exempt Extend the provisions of the existing electric To consider the request rate plan by Rochester Gas and Electric Corporation

*PSC-12-08-00021-P ...... exempt Extend the provisions of the existing gas rate To consider the request plan by Rochester Gas and Electric Corporation

*PSC-13-08-00011-P ...... exempt Waiver of commission policy and NYSEG tariff To grant or deny Turner's petition by Turner Engineering, PC

*PSC-13-08-00012-P ...... exempt Voltage drops by New York State Electric & To grant or deny the petition Gas Corporation

*PSC-23-08-00008-P ...... exempt Petition requesting rehearing and clarification of To consider whether to grant or deny, in whole the commission's April 25, 2008 order denying or in part, the May 7, 2008 Public Utility Law petition of public utility law project Project (PULP) petition for rehearing and clarification of the commission's April 25, 2008 order denying petition of Public Utility Law Project

*PSC-23-08-00009-P ...... exempt The transfer of certain real property with an To consider the filing for the transfer of certain original cost under $100,000 in the Town of real property in the Town of Throop Throop

*PSC-25-08-00007-P ...... exempt Policies and procedures regarding the selection To establish policies and procedures regarding of regulatory proposals to meet reliability the selection of regulatory proposals to meet needs reliability needs

85 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-25-08-00008-P ...... exempt Report on Callable Load Opportunities Rider U report assessing callable load opportunities in New York City and Westchester County during the next 10 years

*PSC-28-08-00004-P ...... exempt Con Edison's procedure for providing To consider Con Edison's implementation plan customers access to their account information and timetable for providing customers access to their account information

*PSC-31-08-00025-P ...... exempt Recovery of reasonable DRS costs from the To authorize recovery of the DRS costs from the cost mitigation reserve (CMR) CMR

*PSC-32-08-00009-P ...... exempt The ESCO referral program for KEDNY to be To approve, reject or modify, in whole or in part, implemented by October 1, 2008 KEDNY's recommended ESCO referral program

*PSC-33-08-00008-P ...... exempt Noble Allegany's request for lightened To consider Noble Allegany's request for regulation lightened regulation as an electric corporation

*PSC-36-08-00019-P ...... exempt Land Transfer in the Borough of Manhattan, To consider petition for transfer of real property New York to NYPH

*PSC-39-08-00010-P ...... exempt RG&E's economic development plan and tariffs Consideration of the approval of RG&E's economic development plan and tariffs

*PSC-40-08-00010-P ...... exempt Loans from regulated company to its parent To determine if the cash management program resulting in loans to the parent should be approved

*PSC-41-08-00009-P ...... exempt Transfer of control of cable TV franchise To determine if the transfer of control of Margaretville's cable TV subsidiary should be approved

*PSC-43-08-00014-P ...... exempt Annual Reconcilliation of Gas Expenses and The filings of various LDCs and municipalities Gas Cost Recoveries regarding their Annual Reconciliation of Gas Expenses and Gas Cost Recoveries

*PSC-46-08-00008-P ...... exempt Property transfer in the Village of Avon, New To consider a petition for the transfer of street York lighting and attached equipment to the Village of Avon, New York

*PSC-46-08-00010-P ...... exempt A transfer of indirect ownership interests in Consideration of approval of a transfer of nuclear generation facilities indirect ownership interests in nuclear generation facilities

*PSC-46-08-00014-P ...... exempt The attachment of cellular antennae to an To approve, reject or modify the request for electric transmission tower permission to attach cellular antennae to an electric transmission tower

*PSC-48-08-00005-P ...... exempt A National Grid high efficiency gas heating To expand eligibility to customers converting equipment rebate program from oil to natural gas

*PSC-48-08-00008-P ...... exempt Petition for the master metering and To consider the request of Bay City Metering, to submetering of electricity master meter & submeter electricity at 345 E. 81st St., New York, New York

*PSC-48-08-00009-P ...... exempt Petition for the submetering of electricity To consider the request of PCV/ST to submeter electricity at Peter Cooper Village & Stuyvesant Town, New York, New York

*PSC-50-08-00018-P ...... exempt Market Supply Charge A study on the implementation of a revised Market Supply Charge

86 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-51-08-00006-P ...... exempt Commission's October 27, 2008 Order on To consider a Petition for rehearing of the Future of Retail Access Programs in Case Commission's October 27, 2008 Order in Case 07-M-0458 07-M-0458

*PSC-51-08-00007-P ...... exempt Commission's October 27, 2008 Order in To consider Petitions for rehearing of the Cases 98-M-1343, 07-M-1514 and Commission's October 27, 2008 Order in Cases 08-G-0078 98-M-1343, 07-M-1514 and 08-G-0078

*PSC-53-08-00011-P ...... exempt Use of deferred Rural Telephone Bank funds To determine if the purchase of a softswitch by Hancock is an appropriate use of deferred Rural Telephone Bank funds

*PSC-53-08-00012-P ...... exempt Transfer of permanent and temporary Transfer of permanent and temporary easements at 549-555 North Little Tor Road, easements at 549-555 North Little Tor Road, New City, NY New City, NY

*PSC-53-08-00013-P ...... exempt To transfer common stock and ownership To consider transfer of common stock and ownership

*PSC-01-09-00015-P ...... exempt FCC decision to redefine service area of Review and consider FCC proposed redefinition Citizens/Frontier of Citizens/Frontier service area

*PSC-02-09-00010-P ...... exempt Competitive classification of independent local To determine if Chazy & Westport Telephone exchange company, and regulatory relief Corporation more appropriately belongs in appropriate thereto scenario 1 rather than scenario 2

*PSC-05-09-00008-P ...... exempt Revenue allocation, rate design, performance To consider any remaining non-revenue metrics, and other non-revenue requirement requirement issues related to the Company's issues May 9, 2008 tariff filing

*PSC-05-09-00009-P ...... exempt Numerous decisions involving the steam To consider the long term impacts on steam system including cost allocation, energy rates and on public policy of various options efficiency and capital projects concerning the steam system

*PSC-06-09-00007-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Frontier Comm. and WVT Communications for negotiated agreement between Frontier Comm. local exchange service and exchange access and WVT Comm.

*PSC-07-09-00015-P ...... exempt Transfer certain utility assets located in the To consider the request to transfer certain utility Town of Montgomery from plant held for future assets located in the Town of Montgomery to use to non-utility property non-utility assets

*PSC-07-09-00017-P ...... exempt Request for authorization to defer the To allow the company to defer the incremental incremental costs incurred in the restoration costs incurred in the restoration work resulting work resulting from the ice storm from the ice storm

*PSC-07-09-00018-P ...... exempt Whether to permit the submetering of natural To consider the request of Cooper Union, to gas service to an industrial and commercial submeter natural gas at 41 Cooper Square, New customer at Cooper Union, New York, NY York, New York

*PSC-12-09-00010-P ...... exempt Charges for commodity To charge customers for commodity costs

*PSC-12-09-00012-P ...... exempt Charges for commodity To charge customers for commodity costs

*PSC-13-09-00008-P ...... exempt Options for making additional central office To consider options for making additional central codes available in the 718/347 numbering plan office codes available in the 718/347 numbering area plan area

*PSC-14-09-00014-P ...... exempt The regulation of revenue requirements for To determine whether the regulation of revenue municipal utilities by the Public Service requirements for municipal utilities should be Commission modified

87 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-16-09-00010-P ...... exempt Petition for the submetering of electricity To consider the request of AMPS on behalf of Park Imperial to submeter electricity at 230 W. 56th Street, in New York, New York

*PSC-16-09-00020-P ...... exempt Whether SUNY's core accounts should be Whether SUNY's core accounts should be exempt from the mandatory assignment of exempt from the mandatory assignment of local local distribution company (LDC) capacity distribution company (LDC) capacity

*PSC-17-09-00010-P ...... exempt Whether to permit the use of Elster REX2 solid To permit electric utilities in New York State to state electric meter for use in residential and use the Elster REX2 commerical accounts

*PSC-17-09-00011-P ...... exempt Whether Brooklyn Navy Yard Cogeneration Whether Brooklyn Navy Yard Cogeneration Partners, L.P. should be reimbursed by Con Partners, L.P. should be reimbursed by Con Edison for past and future use taxes Edison for past and future use taxes

*PSC-17-09-00012-P ...... exempt Petition for the submetering of gas at To consider the request of Turner Construction, commercial property to submeter natural gas at 550 Short Ave., & 10 South St., Governors Island, NY

*PSC-17-09-00014-P ...... exempt Benefit-cost framework for evaluating AMI To consider a benefit-cost framework for programs prepared by the DPS Staff evaluating AMI programs prepared by the DPS Staff

*PSC-17-09-00015-P ...... exempt The construction of a tower for wireless To approve, reject or modify the petition to build antennas on land owned by National Grid a tower for wireless antennas in the Town of Onondaga

*PSC-18-09-00012-P ...... exempt Petition for rehearing of Order approving the To consider the request of Frank Signore to submetering of electricity rehear petition to submeter electricity at One City Place in White Plains, New York

*PSC-18-09-00013-P ...... exempt Petition for the submetering of electricity To consider the request of Living Opportunities of DePaul to submeter electricity at E. Main St. located in Batavia, New York

*PSC-18-09-00017-P ...... exempt Approval of an arrangement for attachment of To approve, reject or modify the petition for the wireless antennas to the utility's transmission existing wireless antenna attachment to the facilities in the City of Yonkers utility's transmission tower

*PSC-20-09-00016-P ...... exempt The recovery of, and accounting for, costs To consider a filing of the Companies as to the associated with the Companies' advanced recovery of, and accounting for, costs metering infrastructure (AMI) pilots etc associated with it's AMI pilots etc

*PSC-20-09-00017-P ...... exempt The recovery of, and accounting for, costs To consider a filing of CHG&E as to the associated with CHG&E's AMI pilot program recovery of, and accounting for, costs associated with it's AMI pilot program

*PSC-22-09-00011-P ...... exempt Cost allocation for Consolidated Edison's East To determine whether any changes are River Repowering Project warranted in the cost allocation of Consolidated Edison's East River Repowering Project

*PSC-25-09-00005-P ...... exempt Whether to grant, deny, or modify, in whole or Whether to grant, deny, or modify, in whole or in in part, the petition part, the petition

*PSC-25-09-00006-P ...... exempt Electric utility implementation plans for To determine if the proposed web based SIR proposed web based SIR application process systems are adequate and meet requirements and project status database needed for implementation

*PSC-25-09-00007-P ...... exempt Electric rates for Consolidated Edison Consider a Petition for Rehearing filed by Company of New York, Inc Consolidated Edison Company of New York, Inc

88 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-27-09-00011-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Vernon and tw telecom of new york I.p. for negotiated agreement between Vernon and tw local exchange service and exchange access. telecom of new york I.p.

*PSC-27-09-00014-P ...... exempt Billing and payment for energy efficiency To promote energy conservation measures through utility bill

*PSC-27-09-00015-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Oriskany and tw telecom of new york l.p. for negotiated agreement between Oriskany and tw local exchange service and exchange access telecom of new york l.p

*PSC-29-09-00006-P ...... exempt Petition for the submetering of electricity at a To consider the request of Shinda Management residential senior citizen facility Corp. to submeter electricity at 107-37 166th Street, Jamaica, New York

*PSC-29-09-00011-P ...... exempt Consideration of utility compliance filings Consideration of utility compliance filings

*PSC-32-09-00009-P ...... exempt Cost allocation for Consolidated Edison's East To determine whether any changes are River Repowering Project warranted in the cost allocation of Consolidated Edison's East River Repowering Project

*PSC-34-09-00016-P ...... exempt Recommendations made in the Management To consider whether to take action or Audit Final Report recommendations contained in the Management Audit Final Report

*PSC-34-09-00017-P ...... exempt To consider the transfer of control of To allow the Plattsburgh Cablevision, Inc. to Plattsburgh Cablevision, Inc. d/b/a Charter distribute its equity interest in CH Communications to CH Communications, LLC Communications, LLC

*PSC-36-09-00008-P ...... exempt The increase in the non-bypassable charge Considering exemptions from the increase in the implemented by RG&E on June 1, 2009 non-bypassable charge implemented by RG&E on June 1, 2009

*PSC-37-09-00015-P ...... exempt Sale of customer-generated steam to the Con To establish a mechanism for sale of customer- Edison steam system generated steam to the Con Edison steam system

*PSC-37-09-00016-P ...... exempt Applicability of electronic signatures to To determine whether electronic signatures can Deferred Payment Agreements be accepted for Deferred Payment Agreements

*PSC-39-09-00015-P ...... exempt Modifications to the $5 Bill Credit Program Consideration of petition of National Grid to modify the Low Income $5 Bill Credit Program

*PSC-39-09-00018-P ...... exempt The offset of deferral balances with Positive To consider a petition to offset deferral balances Benefit Adjustments with Positive Benefit Adjustments

*PSC-40-09-00013-P ...... exempt Uniform System of Accounts - request for To consider a petition to defer and amortize deferral and amortization of costs costs

*PSC-51-09-00029-P ...... exempt Rules and guidelines for the exchange of retail To revise the uniform Electronic Data access data between jurisdictional utilities and Interchange Standards and business practices eligible ESCOs to incorporate a contest period

*PSC-51-09-00030-P ...... exempt Waiver or modification of Capital Expenditure To allow the companies to expend less funds for condition of merger capital improvement than required by the merger

*PSC-52-09-00006-P ...... exempt ACE's petition for rehearing for an order To consider whether to change the Order regarding generator-specific energy Prescribing Study Methodology deliverability study methodology

89 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-52-09-00008-P ...... exempt Approval for the New York Independent To finance the renovation and construction of System Operator, Inc. to incur indebtedness the New York Independent System Operator, and borrow up to $50,000,000 Inc.'s power control center facilities

*PSC-05-10-00008-P ...... exempt Petition for the submetering of electricity To consider the request of University Residences - Rochester, LLC to submeter electricity at 220 John Street, Henrietta, NY

*PSC-05-10-00015-P ...... exempt Petition for the submetering of electricity To consider the request of 243 West End Avenue Owners Corp. to submeter electricity at 243 West End Avenue, New York, NY

*PSC-06-10-00022-P ...... exempt The Commission's Order of December 17, To reconsider the Commission's Order of 2009 related to redevelopment of Consolidated December 17, 2009 related to redevelopment of Edison's Hudson Avenue generating facility the Hudson Avenue generating facility

*PSC-07-10-00009-P ...... exempt Petition to revise the Uniform Business To consider the RESA petition to allow Practices rescission of a customer request to return to full utility service

*PSC-08-10-00007-P ...... exempt Whether to grant, deny, or modify , in whole or Whether to grant, deny, or modify , in whole or in part, the rehearing petition filed in Case in part, the rehearing petition filed in Case 06-E- 06-E-0847 0847

*PSC-08-10-00009-P ...... exempt Consolidated Edison of New York, Inc. energy To modify approved energy efficiency programs efficiency programs

*PSC-12-10-00015-P ...... exempt Recommendations made by Staff intended to To require that Con Edison implement the Staff enhance the safety of Con Edison's gas recommendations intended to enhance the operations safety of Con Edison's gas operations

*PSC-14-10-00010-P ...... exempt Petition for the submetering of electricity To consider the request of 61 Jane Street Owners Corporation to submeter Electricity at 61 Jane Street, Manhattan, NY

*PSC-16-10-00005-P ...... exempt To consider adopting and expanding mobile Adopt additional mobile stray voltage testing stray voltage testing requirements requirements

*PSC-16-10-00007-P ...... exempt Interconnection of the networks between TDS To review the terms and conditions of the Telecom and PAETEC Communications for negotiated agreement between TDS Telecom local exchange service and exchange access and PAETEC Communications

*PSC-16-10-00015-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Frontier and Choice One Communications for negotiated agreement between Frontier and local exchange service and exchange access Choice One Communications

*PSC-18-10-00009-P ...... exempt Electric utility transmission right-of-way To consider electric utility transmission right-of- management practices way management practices

*PSC-19-10-00022-P ...... exempt Whether National Grid should be permitted to To decide whether to approve National Grid's transfer a parcel of property located at 1 Eddy request to transfer a parcel of vacant property in Street, Fort Edward, New York Fort Edward, New York

*PSC-22-10-00006-P ...... exempt Requirement that Noble demonstrate that its Consider requiring that Noble demonstrate that affiliated electric corporations operating in New its affiliated electric corporations in New York York are providing safe service are providing safe service

*PSC-22-10-00008-P ...... exempt Petition for the submetering of electricity To consider the request of 48-52 Franklin Street to submeter electricity at 50 Franklin Street, New York, New York

90 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-24-10-00009-P ...... exempt Verizon New York Inc. tariff regulations relating To remove tariff regulations relating to retail to voice messaging service voice messaging service from Verizon New York Inc.'s tariff

*PSC-25-10-00012-P ...... exempt Reassignment of the 2-1-1 abbreviated dialing Consideration of petition to reassign the 2-1-1 code abbreviated dialing code

*PSC-25-10-00015-P ...... exempt To allow NYWC to defer and amortize, for Consideration of NYWC's petition to defer and future rate recognition, pension settlement amortize, for future rate recognition, pension payout losses incurred in 2009 payout losses incurred in 2009

*PSC-27-10-00016-P ...... exempt Petition for the submetering of electricity To consider the request of 9271 Group, LLC to submeter electricity at 960 Busti Avenue, Buffalo, New York

*PSC-31-10-00007-P ...... exempt Waiver of the Attachment 23 requirement in To consider the waiver of the requirement that a 2001 Rate Order that NMPC Board of majority of NMPC Board of directors consist of Directors consist of ‘‘outside directors’’ ‘‘outside directors’’

*PSC-34-10-00003-P ...... exempt The modification of Central Hudson Gas & The modification of Central Hudson Gas & Electric Corporation's Enhanced Powerful Electric Corporation's Enhanced Powerful Opportunities Program Opportunities Program

*PSC-34-10-00005-P ...... exempt Approval of a contract for $250,000 in tank To decide whether to approve a contract repairs that may be a financing between the parties that may be a financing of $250,000 for tank repairs

*PSC-34-10-00006-P ...... exempt The modification of Central Hudson Gas & The modification of Central Hudson Gas & Electric Corporation's Enhanced Powerful Electric Corporation's Enhanced Powerful Opportunities Program Opportunities Program

*PSC-36-10-00010-P ...... exempt Central Hudson's procedures, terms and Consideration of Central Hudson's procedures, conditions for an economic development plan terms and conditions for an economic development plan

*PSC-40-10-00014-P ...... exempt Disposition of a state sales tax refund To determine how much of a state sales tax refund should be retained by National Grid

*PSC-40-10-00021-P ...... exempt Whether to permit the submetering of natural To permit the submetering of natural gas service gas service to a commercial customer at to a commercial customer at Quaker Crossing Quaker Crossing Mall Mall

*PSC-41-10-00018-P ...... exempt Amount of hourly interval data provided to Allow Central Hudson to provide less than a Hourly Pricing customers who have not years worth of interval data and charge for installed a phone line to read meter manual meter reading for some customers

*PSC-41-10-00022-P ...... exempt Request for waiver of the individual living unit Request for waiver of the individual living unit metering requirements at 5742 Route 5, metering requirements at 5742 Route 5, Vernon, Vernon, NY NY

*PSC-42-10-00011-P ...... exempt Petition for the submetering of electricity To consider the request of 4858 Group, LLC to submeter electricity at 456 Main Street, Buffalo, New York

*PSC-43-10-00016-P ...... exempt Utility Access to Ducts, Conduit Facilities and To review the complaint from Optical Utility Poles Communications Group

*PSC-44-10-00003-P ...... exempt Third and fourth stage gas rate increase by To consider Corning Natural Gas Corporation's Corning Natural Gas Corporation request for a third and fourth stage gas rate increase

91 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-50-10-00005-P ...... exempt Metered gas deliveries and lost and To allow BEGWS to recover a refund from unaccounted for gas Corning for overcharges of gas deliveries

*PSC-51-10-00018-P ...... exempt Commission proceeding concerning three- Investigate the consistency of the tariff phase electric service by all major electric provisions for three-phase electric service for all utilities major electric utilities

*PSC-11-11-00003-P ...... exempt The proposed transfer of 55.42 acres of land The proposed transfer of 55.42 acres of land and $1.4 million of revenues derived from the and $1.4 million of revenues derived from the rendition of public service rendition of public service

*PSC-12-11-00008-P ...... exempt To allow NYWC to defer and amortize, for Consideration of NYWC's petition to defer and future rate recognition, pension settlement amortize, for future rate recognition, pension payout losses incurred in 2010 payout losses incurred in 2010

*PSC-13-11-00005-P ...... exempt Exclude the minimum monthly bill component Exclude the minimum monthly bill component from the earnings test calculation from the earnings test calculation

*PSC-13-11-00007-P ...... exempt Budget allocations and use of System Benefits To encourage cost effective gas and electric Charge funds to pay State Cost Recovery Fee energy conservation in the State

*PSC-14-11-00009-P ...... exempt Petition for the submetering of electricity To consider the request of 83-30 118th Street to submeter electricity at 83-30 118th Street, Kew Gardens, New York

*PSC-16-11-00011-P ...... exempt The Energy Efficiency Portfolio Standard To promote gas and electricity energy conservation programs in New York

*PSC-19-11-00007-P ...... exempt Utility price reporting requirements related to Modify the Commission's utility electric the Commission's ‘‘Power to Choose’’ website commodity price reporting requirements related to the ‘‘Power to Choose’’ website

*PSC-20-11-00012-P ...... exempt Petition for the submetering of electricity To consider the request of KMW Group LLC to submeter electricity at 122 West Street, Brooklyn, New York

*PSC-20-11-00013-P ...... exempt Determining the reasonableness of Niagara To determine if the make ready charges of Mohawk Power Corporation d/b/a National Niagara Mohawk Power Corporation d/b/a Grid ‘s make ready charges National Grid are reasonable

*PSC-22-11-00004-P ...... exempt Whether to permit the use of the Sensus To permit gas utilities in New York State to use accWAVE for use in residential gas meter the Sensus accWAVE diaphragm gas meter applications

*PSC-23-11-00018-P ...... exempt NYSERDA's energy efficiency program for low- To promote energy conservation in New York income customers State

*PSC-26-11-00007-P ...... exempt Water rates and charges To approve an increase in annual revenues by about $25,266 or 50%

*PSC-26-11-00009-P ...... exempt Petition for the submetering of electricity at To consider the request of by Hoosick River commercial property Hardwoods, LLC to submeter electricity at 28 Taylor Avenue, in Berlin, New York

*PSC-26-11-00012-P ...... exempt Waiver of generation retirement notice Consideration of waiver of generation retirement requirements notice requirements

*PSC-29-11-00011-P ...... exempt Petition requesting the Commssion reconsider To consider whether to grant or deny, in whole its May 19, 2011 Order and conduct a hearing, or in part, Windstream New York's Petition For and petition to stay said Order. Reconsideration and Rehearing.

92 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-33-11-00017-P ...... exempt Petition for the submetering of electricity To consider the request of 56-7th Avenue LLC to submeter electricity at 56-7th Avenue, New York, New York

*PSC-35-11-00011-P ...... exempt Whether to permit Consolidated Edison a Permit Consolidated Edison to conduct a waiver to commission regulations Part 226.8 inspection program in lieu of testing the accuracy of Category C meters

*PSC-36-11-00006-P ...... exempt To consider expanding mobile stray voltage Adopt additional mobile stray voltage testing testing requirements requirements

*PSC-38-11-00002-P ...... exempt Operation and maintenance procedures Adopt modified steam operation and pertaining to steam trap caps maintenance procedures

*PSC-38-11-00003-P ...... exempt Waiver of certain provisions of the electric Consideration of waiver of certain provisions of service tariffs of Con Edison the electric service tariffs of Con Edison

*PSC-40-11-00010-P ...... exempt Participation of regulated local exchange Whether to partially modify its order requiring carriers in the New York Data Exchange, Inc. regulated local exchange carriers' participation (NYDE) NYDE

*PSC-40-11-00012-P ...... exempt Granting of transfer of plant in-service to a To approve transfer and recovery of regulatory asset unamortized plant investment

*PSC-42-11-00018-P ...... exempt Availability of telecommunications services in Providing funding support to help ensure New York State at just and reasonable rates availability of affordable telecommunications service throughout New York

*PSC-43-11-00012-P ...... exempt Transfer of outstanding shares of stock Transfer the issued outstanding shares of stock of The Meadows at Hyde Park Water-Works Corporation to HPWS, LLC

*PSC-47-11-00007-P ...... exempt Remedying miscalculations of delivered gas as Consideration of Con Edison's proposal to between two customer classes address inter-class delivery imbalances resulting from past Company miscalculations

*PSC-48-11-00007-P ...... exempt Transfer of controlling interests in generation Consideration of the transfer of controlling facilities from Dynegy to PSEG interests in electric generation facilities from Dynegy to PSEG

*PSC-48-11-00008-P ...... exempt Petition for the submetering of electricity To consider the request of To Better Days, LLC to submeter electricity at 37 East 4th Street, New York, New York

*PSC-51-11-00010-P ...... exempt The Total Resource Cost (TRC) test, used to Petitioners request that the TRC test and/or its analyze measures in the Energy Efficiency application to measures should be revised Portfolio Standard program

*PSC-52-11-00017-P ...... exempt Reparations and refunds Reparations and refunds

*PSC-01-12-00007-P ...... exempt The New York State Reliability Council's To adopt revisions to various rules and revisions to its rules and measurements measurements of the New York State Reliability Council

*PSC-01-12-00008-P ...... exempt Transfer of real property and easements from Consideration of the transfer of real property NMPNS to NMP3 and easements from NMPNS to NMP3

*PSC-01-12-00009-P ...... exempt Recovery of expenses related to the expansion To determine how and to what extent expenses of Con Edison's ESCO referral program, related to the Expansion of Con Edison's ESCO PowerMove referral program should be recovered

93 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-11-12-00002-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or part, Hegeman's petition for a waiver of part, Hegeman's petition for a waiver of Commission policy and Con Edison tariff Commission policy and Con Edison tariff

*PSC-11-12-00005-P ...... exempt Transfer of land and water supply assets Transfer the land and associated water supply assets of Groman Shores, LLC to Robert Groman

*PSC-13-12-00005-P ...... exempt Authorization to transfer certain real property To decide whether to approve the transfer of certain real property

*PSC-17-12-00007-P ...... exempt Whether a proposed agreement for the Whether the Commission should issue an order provision of water service by Saratoga Water approving the proposed provision of water Services, Inc. is in the public interest service

*PSC-17-12-00008-P ...... exempt Whether a proposed agreement for the Whether the Commission should issue an order provision of water service by Saratoga Water approving the proposed provision of water Services, Inc. is in the public interest service

*PSC-17-12-00009-P ...... exempt Whether a proposed agreement for the Whether the Commission should issue an order provision of water service by Saratoga Water approving the proposed provision of water Services, Inc. is in the public interest service

*PSC-19-12-00019-P ...... exempt EEPS programs administered by New York To modify the C&I sector by combining multiple State Electric & Gas Corporation and approved C&I programs into a single C&I Rochester Gas and Electric Corporation program for each PA

*PSC-19-12-00022-P ...... exempt Approval of a combined heat and power Modify NYSERDA's EEPS programs budget and performance program funding plan targets to fund the CHP program administered by NYSERDA

*PSC-19-12-00023-P ...... exempt Petition for approval pursuant to Section 70 for To consider whether to grant, deny or modify, in the sale of goods with an original cost of less whole or in part, the petition filed by Orange and than $100,000 Rockland Utilities, Inc.

*PSC-21-12-00006-P ...... exempt Tariff filing requirements and refunds To determine if certain agreements should be filed pursuant to the Public Service Law and if refunds are warranted

*PSC-21-12-00011-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or part, the petition for waiver of tariff Rules 8.6 part, the petition for waiver of tariff Rules 8.6 and 47 and 47

*PSC-23-12-00005-P ...... exempt EEPS multifamily programs administered by To redesign the multifamily electric and gas Consolidated Edison Company of New York, programs and modify the budgets and targets Inc.

*PSC-23-12-00007-P ...... exempt The approval of a financing upon a transfer to To consider the approval of a financing upon a Alliance of upstream ownership interests in a transfer to Alliance of upstream ownership generation facility interests in a generation facility

*PSC-23-12-00009-P ...... exempt Over earnings sharing between rate payers To establish an Earnings Sharing Mechanism to and shareholders be applied following the conclusion of Corning's rate plan

*PSC-27-12-00012-P ...... exempt Implementation of recommendations made in a To consider implementation of recommendations Management Audit Report made in a Management Audit Report

*PSC-28-12-00013-P ...... exempt Exemption of reliability reporting statistics for Consideration of Orange and Rockland Utilities the purpose of the 2012 Reliability request for exemption of the 2012 reliability Performance Mechanism reporting statistics

94 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-29-12-00019-P ...... exempt Waiver of 16 NYCRR 894.1 through 894.4 To allow the Town of Hamden to waive certain preliminary franchising procedures to expedite the franchising process.

*PSC-30-12-00010-P ...... exempt Waiver of 16 NYCRR 894.1 through 894.4 To allow the Town of Andes to waive certain preliminary franchising procedures to expedite the franchising process

*PSC-33-12-00009-P ...... exempt Telecommunications companies ability to Consideration of Tech Valley's ability to attach attach to utility company poles to Central Hudson poles

*PSC-35-12-00014-P ...... exempt To implement an abandonment of White To approve the implementation of abandonment Knight's water system of White Knight's water system

*PSC-37-12-00009-P ...... exempt Proposed modification by Con Edison of its Proposed modification by Con Edison of its procedures to calculate estimated bills to its procedures to calculate estimated bills to its customers customers

*PSC-42-12-00007-P ...... exempt Petition for the submetering of electricity To consider the request of 215 West 91st Street Corp. to submeter electricity at 215 West 91st Street, New York, New York

*PSC-42-12-00009-P ...... exempt Regulation of Gipsy Trail Club, Inc.'s long-term To exempt Gipsy Trail Club, Inc. from financing agreements Commission regulation of its financing agreements

*PSC-45-12-00008-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or part, ESHG's petition for a waiver of part, ESHG's petition for a waiver of Commission Commission policy and RG&E tariff policy and RG&E tariff

*PSC-45-12-00010-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or in in part the petition of Con Edison to grant part the petition of Con Edison to grant easements to Millwood Fire District easements to Millwood Fire District

*PSC-50-12-00003-P ...... exempt Affiliate standards for Corning Natural Gas To resolve issues raised by Corning Natural Gas Corporation Corporation in its petition for rehearing

*PSC-04-13-00006-P ...... exempt Expansion of mandatory day ahead hourly To consider the expansion of mandatory day pricing for customers of Orange and Rockland ahead hourly pricing for customers with Utilities with demands above 100 kW demands above 100 kW

*PSC-04-13-00007-P ...... exempt Authorization to transfer certain real property. To decide whether to approve the transfer of certain real property.

*PSC-06-13-00008-P ...... exempt Verizon New York Inc.'s retail service quality To investigate Verizon New York Inc.'s retail service quality

*PSC-08-13-00012-P ...... exempt Filing requirements for certain Article VII To ensure that applications for certain electric electric facilities transmission facilities contain pertinent information

*PSC-08-13-00014-P ...... exempt Uniform System of Accounts - Request for To allow the company to defer an item of Accounting Authorization expense or capital beyond the end of the year in which it was incurred

*PSC-12-13-00007-P ...... exempt Protecting company water mains To allow the company to require certain customers to make changes to the electrical grounding system at their homes

*PSC-13-13-00008-P ...... exempt The potential waiver of 16 NYCRR 255.9221(d) To determine whether a waiver of the timely completion of integrity assessments for certain completion of certain gas transmission line gas transmission lines. integrity assessments should be granted.

95 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-14-13-00005-P ...... exempt Recovery of incremental expense. To consider petition for recovery of incremental expense.

*PSC-17-13-00008-P ...... exempt Provision of historical utility pricing information Provision of historical utility pricing information for comparison purposes for residential ESCO for comparison purposes for residential ESCO customers customers

*PSC-17-13-00010-P ...... exempt Provision of historical pricing information for Provision of historical pricing information for comparison purposes for residential ESCO comparison purposes for residential ESCO customers customers

*PSC-18-13-00007-P ...... exempt Whether Demand Energy Networks energy Whether Demand Energy Networks energy storage systems should be designated storage systems should be designated technologies for standby rate eligibility technologies for standby rate eligibility purposes purposes

*PSC-20-13-00008-P ...... exempt Relief of the exhausting 315 Area Code To reinstate the relief process for the 315 area code region beyond 2015

*PSC-21-13-00003-P ...... exempt To consider policies that may impact consumer To consider and further develop policies that acceptance and use of electric vehicles may impact consumer acceptance and use of electric vehicles

*PSC-21-13-00005-P ...... exempt To implement an abandonment of Windover's To approve the implementation of abandonment water system of Windover's water system

*PSC-21-13-00008-P ...... exempt Rates of National Fuel Gas Distribution To make the rates of National Fuel Gas Corporation Distribution Corporation temporary, subject to refund, if they are found to be excessive

*PSC-21-13-00009-P ...... exempt Reporting requirements for natural gas local To help ensure efficient and economic distribution companies expansion of the natural gas system as appropriate

*PSC-22-13-00009-P ...... exempt On remand from New York State court On remand, to determine the recovery of certain litigation, determine the recovery of certain deferral amounts owed NFG from ratepayers deferred amounts owed NFG by ratepayers

*PSC-23-13-00005-P ...... exempt Waiver of partial payment, directory database Equalize regulatory treatment based on level of distribution, service quality reporting, and competition and practical considerations service termination regulations

*PSC-24-13-00009-P ...... exempt Repowering options for the Cayuga generating To establish whether utility plans should include station located in Lansing, New York, and repowering options for the Cayuga generating alternatives station, or other alternatives

*PSC-24-13-00010-P ...... exempt Repowering options for the Dunkirk generating To establish whether utility plans should include station located in Dunkirk, New York, and repowering options for the Dunkirk generating alternatives station, or other alternatives

*PSC-25-13-00008-P ...... exempt To deny, grant or modify, in whole or in part, To deny, grant or modify, in whole or in part, Central Hudson's rehearing request. Central Hudson's rehearing request.

*PSC-25-13-00009-P ...... exempt Provision by utilities of natural gas main and To help ensure efficient and economic service lines. expansion of the natural gas system as appropriate.

*PSC-25-13-00011-P ...... exempt Waiver of certain Commission requirements To waive a utility's right to provide information to related to provision of customer information to credit reporting agencies related to customers' credit reporting agencies. payment histories.

96 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-25-13-00012-P ...... exempt To deny, grant or modify, in whole or in part, To deny, grant or modify, in whole or in part, Central Hudson's rehearing request. Central Hudson's rehearing request.

*PSC-27-13-00014-P ...... exempt Columbia Gas Transmission Corporation Cost For approval for temporary waiver of tariff Refund provisions regarding its Columbia Gas Transmission Corporation cost refund.

*PSC-28-13-00014-P ...... exempt Provision for the recovery and allocation of To consider the recovery and allocation of costs costs of transmission projects that reduce of transmission projects that reduce congestion congestion on certain interfaces on certain interfaces

*PSC-28-13-00016-P ...... exempt The request of NGT for lightened regulation as To consider whether to approve, reject, or a gas corporation. modify the request of Niagara gas transport of Lockport, NY LLC.

*PSC-28-13-00017-P ...... exempt The request by TE for waiver of regulations Consider the request by TE for waiver of requiring that natural gas be odorized in certain regulations that gas be odorized in certain lines gathering line segments

*PSC-32-13-00009-P ...... exempt To consider the definition of ‘‘misleading or To consider the definition of ‘‘misleading or deceptive conduct’’ in the Commission's deceptive conduct’’ in the Commission's Uniform Uniform Business Practices Business Practices

*PSC-32-13-00010-P ...... exempt Permission to write off and eliminate record To allow write off and eliminate record keeping keeping for regulatory reserves for Pensions of Pension and Other Post Retirement Benefits and Other Post Retirement Benefits Reserves

*PSC-32-13-00012-P ...... exempt To consider whether NYSEG should be To consider whether NYSEG should be required required to undertake actions to protect its to undertake actions to protect its name and to name and to minimize customer confusion minimize customer confusion

*PSC-33-13-00027-P ...... exempt Waive underground facility requirements for Determine whether Chapin Lumberland, LLC new construction in residential subdivisions to subdivision will be allowed overhead electric allow for overhead electric lines. distribution and service lines.

*PSC-33-13-00029-P ...... exempt Deferral of incremental costs associated with To consider a petition by Con Edison to defer the restoration of steam service following certain incremental steam system restoration Superstorm Sandy. costs relating to Superstorm Sandy.

*PSC-34-13-00004-P ...... exempt Escrow account and surcharge to fund To approve the establishment of an escrow extraordinary repairs account and surcharge

*PSC-37-13-00007-P ...... exempt Dissolution of Garrow Water Works Company, To allow for the dissolution of Garrow Water Inc.. Works Company, Inc.

*PSC-39-13-00010-P ...... exempt NY-Sun initiative within the Customer-Sited To increase the statewide adoption of customer Tier of the RPS Program. sited photovoltaic solar generation through the NY-Sun Initiative.

*PSC-42-13-00013-P ...... exempt Failure to Provide Escrow Information The closure of the Escrow Account

*PSC-42-13-00015-P ...... exempt Failure to Provide Escrow Information The closure of the Escrow Account

*PSC-43-13-00015-P ...... exempt Petition for submetering of electricity To consider the request of 2701 Kingsbridge Terrace L.P. to submeter electricity at 2701 Kingsbridge Terrace, Bronx, N.Y.

*PSC-45-13-00021-P ...... exempt Investigation into effect of bifurcation of gas To consider a Petition for an investigation into and electric utility service on Long Island. effect of bifurcation of gas and electric utility service on Long Island.

97 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-45-13-00022-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4) relating to the content of an application for transmission line siting

*PSC-45-13-00023-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4). relating to the content of an application for transmission line siting

*PSC-45-13-00024-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4); waiver of filing deadlines. relating to the content of an application for transmission line siting

*PSC-45-13-00025-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4). relating to the content of an application for transmission line siting

*PSC-47-13-00009-P ...... exempt Petition for submetering of electricity. To consider the request of Hegeman Avenue Housing L.P. to submeter electricity at 39 Hegeman Avenue, Brooklyn, N.Y.

*PSC-47-13-00012-P ...... exempt Conditioning,restricting or prohibiting the Consideration of conditioning,restricting or purchase of services by NYSEG and RG&E prohibiting the purchase of services by NYSEG from certain affiliates. and RG&E from certain affiliates.

*PSC-49-13-00008-P ...... exempt Authorization to transfer all of Crystal Water To allow Crystal Water Supply Company, Inc to Supply Company, Inc. stocks to Essel Infra transfer all of its issued and outstanding stocks West Inc. to Essel Infra West Inc.

*PSC-51-13-00009-P ...... exempt Consolidated Edison proposing to use data To ensure there is a reasonable basis for data from a test period ending September 30, 2013 submitted in support of a request for a change to support its next rate filing. in rates.

*PSC-51-13-00010-P ...... exempt Consolidated Edison proposing to use data To ensure there is a reasonable basis for data from a test period ending September 30, 2013 submitted in support of a request for a change to support its next rate filing. in rates.

*PSC-51-13-00011-P ...... exempt Consolidated Edison proposing to use data To ensure there is a reasonable basis for data from a test period ending September 30, 2013 submitted in support of a request for a change to support its next rate filing. in rates.

*PSC-52-13-00012-P ...... exempt The development of reliability contingency To address the petition for rehearing and plan(s) to address the potential retirement of reconsideration/motion for clarification of the Indian Point Energy Center (IPEC). IPEC reliability contingency plan(s).

*PSC-52-13-00015-P ...... exempt To enter into a loan agreement with the banks To consider allowing Knolls Water Company to for up to an amount of $94,000. enter into a long-term loan agreement.

*PSC-01-14-00017-P ...... exempt Residential Time-of-Use Rates To establish residential optional time of use delivery and commodity rates

*PSC-03-14-00009-P ...... exempt disposition of tax refunds and other related to determine the disposition of tax refunds and matters other related matters

*PSC-04-14-00005-P ...... exempt National Fuel Gas Corporation's Conservation To modify National Fuel Gas Corporation's Non- Incentive Programs. Residential Conservation Incentive Program.

*PSC-05-14-00010-P ...... exempt The New York State Reliability Council's To adopt revisions to various rules and revisions to its rules and measurements measurements of the New York State Reliability Council

98 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-07-14-00008-P ...... exempt Petition for submetering of electricity To consider the request of Greater Centennial Homes HDFC, Inc. to submeter electricity at 102, 103 and 106 W 5th Street, et al.

*PSC-07-14-00012-P ...... exempt Water rates and charges Implementation of Long-Term Water Supply Surcharge to recover costs associated with the Haverstraw Water Supply Project

*PSC-08-14-00015-P ...... exempt Verizon New York Inc.'s service quality and To improve Verizon New York Inc.'s service Customer Trouble Report Rate (CTRR) levels quality andthe Customer Trouble Report Rate at certain central office entities levels at certain central office entities

*PSC-10-14-00006-P ...... exempt Actions to facilitate the availability of ESCO To facilitate ESCO value-added offerings and to value-added offerings, ESCO eligibility and make changes to ESCO eligibility and to ensure ESCO compliance ESCO compliance

*PSC-11-14-00003-P ...... exempt Provision for the recovery and allocation of To consider the recovery and allocation of costs costs of transmission projects that reduce of transmission projects that reduce congestion congestion on certain interfaces on certain interfaces

PSC-14-14-00016-P ...... exempt Whether to permit the use of the Leviton Pursuant to 16 NYCRR Parts 93 and 96, is Series 8000 electric submeter. necessary to permit the use of the Leviton Series 8000 electric submeter.

PSC-16-14-00014-P ...... exempt Whether to order NYSEG to provide gas To order gas service to customers in the Town service to customers when an expanded CPCN of Plattsburgh after approval of a town wide is approved and impose PSL 25-a penalties. CPCN and to impose penalties.

PSC-16-14-00015-P ...... exempt Whether Central Hudson should be permitted Consideration of the petition by Central Hudson to defer obligations of the Order issued on to defer reporting obligations of the October 18, October 18, 2013 in Case 13-G-0336. 2013 Order in Case 13-G-0336

PSC-16-14-00016-P ...... exempt Waiver of Commission regulations governing Consider United Water New York Inc.'s proposal termination of service. to expand termination of service provisions.

PSC-17-14-00003-P ...... exempt Con Edison's Report on its 2013 performance Con Edison's Report on its 2013 performance under the Electric Service Reliability under the Electric Service Reliability Performance Mechanism Performance Mechanism

PSC-17-14-00004-P ...... exempt To consider certain portions of petitions for To consider certain portions of petitions for rehearing, reconsideration and/or clarification rehearing, reconsideration and/or clarification

PSC-17-14-00007-P ...... exempt To consider petitions for rehearing, To consider petitions for rehearing, reconsideration and/or clarification reconsideration and/or clarification

PSC-17-14-00008-P ...... exempt To consider certain portions of petitions for To consider certain portions of petitions for rehearing, reconsideration and/or clarification rehearing, reconsideration and/or clarification

PSC-19-14-00014-P ...... exempt Market Supply Charge To make tariff revisions to the Market Supply Charge for capacity related costs

PSC-19-14-00015-P ...... exempt Whether to permit the use of the Sensus To permit gas utilities in New York State to use accuWAVE for use in residential and the Sensus accuWAVE 415TC gas meter commercial gas meter applications

PSC-19-14-00018-P ...... exempt Uniform System of Accounts, deferral of an Authorization of a deferral for an expense item expense item beyond the end of the year in which it was incurred

PSC-20-14-00011-P ...... exempt Petitioners request an order approving To enable continued operation of a 51 MW enhanced benefits under the Renewable biomass fueled electric generating facility in Portfolio Standard Program. Niagara Falls, New York.

99 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-22-14-00013-P ...... exempt Petition to transfer and merge systems, To consider the Comcast and Time Warner franchises and assets. Cable merger and transfer of systems, franchises and assets.

PSC-23-14-00010-P ...... exempt Whether to permit the use of the GE Dresser To permit gas utilities in New York State to use Series B3-HPC 11M-1480 rotary gas met for the GE Dresser Series B3-HPC 11M-1480 use in industrial gas meter applications rotary gas meter

PSC-23-14-00012-P ...... exempt Whether to permit the use of the Elster To permit gas utilities in New York State to use Instromet Q.Sonic Plus Ultrasonic meter for the Elster Instromet Q.Sonic Plus Ultrasonic gas use in industrial gas meter applications meter

PSC-23-14-00014-P ...... exempt Waiver of the negative revenue adjustment Consideration of KEDLI's waiver request associated with KEDLI's 2013 Customer pertaining to its 2013 performance under its Satisfaction Performance Metric Customer Satisfaction Metric

PSC-24-14-00004-P ...... exempt Approval of asset transfer. To allow or disallow transfer of assets from Heritage Hills Water Works Corp. to Community Utilities of New York, Inc.

PSC-24-14-00005-P ...... exempt To examine LDC's performance and To improve gas safety performance. performance measures.

PSC-25-14-00015-P ...... exempt Surcharges related to the System Benefits To reduce the public benefit surcharge Charge, Energy Efficiency Portfolio Standard, applicable to large industrial, commercial and Retail Renewable Portfolio Standard institutional energy consumers

PSC-26-14-00010-P ...... exempt Petitioner requests an order authorizing its To enable continued operation of a 21 MW participation in the next Main Tier solicitation biomass fueled electric generating facility in offered under the RPS Program. Chateaugay, New York.

PSC-26-14-00012-P ...... exempt The Commission's framework for regulating To allow energy efficiency and other distributed utilities and methods of ratemaking will be resources to take a primary role in the planning revised. and operation of the grid.

PSC-26-14-00013-P ...... exempt Waiver of RG&E's tariffed definition of To consider waiver of RG&E's tariffed definition emergency generator. of emergency generator.

PSC-26-14-00015-P ...... exempt Whether to order natural gas distribution To improve gas safety by ordering natural gas companies to expand their public education distribution companies to expand their public programs. education programs.

PSC-26-14-00016-P ...... exempt The Commission's regulatory framework will be To allow energy efficiency and other distributed revised to create a flexible platform for new resources to take a primary role in the planning energy products and services. and operation of the grid.

PSC-26-14-00017-P ...... exempt Existing ratemaking and rate design practices To use the Commission's ratemaking authority will be revised with a focus on outcomes and to foster a DER-intensive system. incentives.

PSC-26-14-00018-P ...... exempt Rules regarding ownership and/or operation of To best enable system-wide efficiency and the DSPPs will be created. market-based deployment of distributed energy resources and load management.

PSC-26-14-00019-P ...... exempt Prohibitions or restrictions regarding the To protect against abuses associated with DSPPs ownership of DER will be created. imbalances in market power.

PSC-26-14-00020-P ...... exempt New electric utility backup service tariffs and To encourage development of microgrids that standards for interconnection may be adopted. enhance the efficiency, safety, reliability and resiliency of the electric grid.

100 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-26-14-00021-P ...... exempt Consumer protections, standards and To balance the need for the information protocols pertaining to access to customer necessary to support a robust market with data may be established. customer privacy concerns.

PSC-28-14-00014-P ...... exempt Petition to transfer systems, franchises and To consider the Comcast and Charter transfer assets. of systems, franchise and assets.

PSC-30-14-00019-P ...... exempt Uniform System of Accounts - Request for To allow the company deferred accounting Accounting Authorization treatment for expenses related to the change in corporate leadership.

PSC-30-14-00020-P ...... exempt Uniform System of Accounts - Request for To allow the company deferred accounting Accounting Authorization treatment for expenses related to the change in corporate leadership.

PSC-30-14-00021-P ...... exempt Uniform System of Accounts - Request for To allow the company deferred accounting Accounting Authorization treatment for expenses related to the change in corporate leadership.

PSC-30-14-00023-P ...... exempt Whether to permit the use of the Sensus Pursuant to 16 NYCRR Part 500.3 , it is iPERL Fire Flow Meter. necessary to permit the use of the Sensus iPERL Fire Flow Meter.

PSC-30-14-00025-P ...... exempt Allocation of uncommitted Technology and To consider allocation of uncommitted Market Development Funds to the Combined Technology & Market Development Funds to the Heat & Power Performance Program. Combined Heat & Power Performance Program.

PSC-30-14-00026-P ...... exempt Petition for a waiver to master meter electricity. Considering the request of Renaissance Corporation of to master meter electricity at 100 Union Drive,Albany, NY.

PSC-31-14-00004-P ...... exempt To transfer 100% of the issued and To transfer 100% of the issued and outstanding outstanding stock from Vincent Cross to stock from Vincent Cross to Bonnie and Michael Bonnie and Michael Cross Cross

PSC-32-14-00009-P ...... exempt Refueling options for the Dunkirk generating To address the joint petition for rehearing of the station located in Dunkirk, New York, and Commission's Order related to refueling the alternatives Dunkirk generating station

PSC-32-14-00012-P ...... exempt Whether to grant or deny, in whole or in part, To consider the Connect New York Coalition's the Connect New York Coalition's petition petition seeking a formal investigation and hearings

PSC-32-14-00013-P ...... exempt Petition for submetering of electricity To consider the request of 1 John Street LLC to submeter electricity at 1 John Street, Brooklyn, New York

PSC-32-14-00015-P ...... exempt Revisions to modify and clarify provisions To modify and clarify provisions related to related to electric generators taking electric generators taking transportation service transportation service under SC Nos. 7 and 14 under SC Nos. 7 and 14

PSC-32-14-00017-P ...... exempt Transfer of Franchise or stocks and Issuance To allow or disallow the merger of United Water of Securities Resources and United Water Mid-Atlantic Inc into United Water Works

PSC-32-14-00018-P ...... exempt Modifications to provisions related to electric Revisions related to electric generators and generators and cogeneration facilities cogeneration facilities and align KEDNY's tariff provisions with those of KEDLI

PSC-34-14-00006-P ...... exempt Authorization of long-term loan To allow or disallow Forever Wild Water Company to enter into long-term loan agreement.

101 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-34-14-00009-P ...... exempt Whether to approve the Quadlogic S10N Approval of the Quadlogic S10N Smart Meter residential submeter. for use in residential electric submetering is required by 16 NYCRR Parts 93 and 96.

PSC-35-14-00004-P ...... exempt Regulation of a proposed electricity generation To consider regulation of a proposed electricity facility located in the Town of Brookhaven, NY generation facility located in the Town of Brookhaven, NY

PSC-35-14-00005-P ...... exempt Whether to permit the use of the Sensus Pursuant to 16 NYCRR Parts 92 and 93, iConA electric meter Commission approval is necessary to permit the use of the Sensus iConA electric meter

PSC-35-14-00008-P ...... exempt Whether to approve, modify or reject in whole Whether to approve, modify or reject in whole or or in part an increase in annual revenues of in part an increase in annual revenues of approximately $264,166 or 25% approximately $264,166 or 25%

PSC-36-14-00009-P ...... exempt Modification to the Commission's Electric To consider revisions to the Commission's Safety Standards. Electric Safety Standards.

PSC-36-14-00010-P ...... exempt The procurement of Main Tier renewable To ensure the development of large-scale resources will become the responsibility of the remnewables in New York State to promote fuel State's electric utilities. diversity and reduce carbon emissions.

PSC-36-14-00011-P ...... exempt To defer pension settlement losses associated To resolve the ratemaking of the pension with retirements in the year ended March 31, settlement loss. 2014.

PSC-38-14-00003-P ...... exempt Whether to approve, reject or modify, in whole Whether to approve, reject or modify, in whole or in part a time-sensitive rate pilot program. or in part a time-sensitive rate pilot program.

PSC-38-14-00004-P ...... exempt The study and petition of Con Edison regarding The study and petition of Con Edison regarding use, accounting and ratemaking treatment for use, accounting and ratemaking treatment for 11-23 and 2-28 Hudson Ave. Brooklyn. 11-23 and 2-28 Hudson Ave. Brooklyn.

PSC-38-14-00005-P ...... exempt Action on the report and petition of Con Edison Action on the report and petition of Con Edison regarding the Storm Hardening and Resiliency regarding the Storm Hardening and Resiliency Collaborative, Phase 2. Collaborative, Phase 2.

PSC-38-14-00007-P ...... exempt Whether to expand Con Edison's low income Whether to expand Con Edison's low income program to include Medicaid recipients. program to include Medicaid recipients.

PSC-38-14-00008-P ...... exempt The study and petition of Con Edison regarding The study and petition of Con Edison regarding use, accounting and ratemaking treatment for use, accounting and ratemaking treatment for 11-23 and 2-28 Hudson Ave. Brooklyn. 11-23 and 2-28 Hudson Ave. Brooklyn.

PSC-38-14-00010-P ...... exempt Inter-carrier telephone service quality standard To review recommendations from the Carrier and metrics and administrative changes. Working Group and incorporate appropriate modifications to the existing Guidelines.

PSC-38-14-00012-P ...... exempt Action on the report and petition of Con Edison Action on the report and petition of Con Edison regarding the Storm Hardening and Resiliency regarding the Storm Hardening and Resiliency Collaborative, Phase 2. Collaborative, Phase 2.

PSC-38-14-00018-P ...... exempt New electric utility demand response tariffs To develop mature DER markets by enabling the may be adopted. development and use of DR as an economic system resource.

PSC-38-14-00020-P ...... exempt Various tariff revisions to the rates, charges, For approval to make various tariff revisions to rules and regulations. P.S.C. No. 4 - Steam.

102 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-38-14-00021-P ...... 09/24/15 Service lines, leakage surveys, testing req'ts., To align State gas safety rules with federal gas MAOP, odorization, 16 NYCRR § § 255.3(29); safety requirements. 255.723; 255.507; 255.619, 255.625.

PSC-39-14-00012-P ...... exempt Minor electric rate filing. For approval to increase total annual revenues by about $300,000 or 8.1%.

PSC-39-14-00014-P ...... exempt Whether to permit the use of the SATEC Pursuant to 16 NYCRR Parts 93 and 96, is EM133 electric submeter. necessary to permit the use of the SATEC EM133 electric submeter.

PSC-39-14-00020-P ...... exempt Whether to permit the use of the Mueller Pursuant to 16 NYCRR section 500.3, whether Systems 400 Series and 500 Series of water to permit the use of the Mueller Systems 400, meters and 500 Series of water meters

PSC-40-14-00008-P ...... exempt To consider granting authorization for Buy To consider granting authorization for Buy Energy Direct to resume marketing to Energy Direct to resume marketing to residential residential customers. customers.

PSC-40-14-00009-P ...... exempt Whether to permit the use of the Itron Open Pursuant to 16 NYCRR Parts 93, is necessary Way Centron Meter with Hardware 3.1 for to permit the use of the Itron Open Way Centron AMR and AMI functionality. Meter with Hardware 3.1.

PSC-40-14-00011-P ...... exempt Late Payment Charge. To modify Section 7.6 - Late Payment Charge to designate a specific time for when a late payment charge is due.

PSC-40-14-00013-P ...... exempt Regulation of a proposed natural gas pipeline To consider regulation of a proposed natural gas and related facilities located in the Town of pipeline and related facilities located in the Town Ticonderoga, NY. of Ticonderoga, NY.

PSC-40-14-00014-P ...... exempt Waiver of 16 NYCRR Sections 894.1 through To allow the Town of Goshen, NY, to waive 894.4(b)(2) certain preliminary franchising procedures to expedite the franchising process.

PSC-40-14-00015-P ...... exempt Late Payment Charge. To modify Section 6.6 - Late Payment Charge to designate a specific time for when a late payment charge is due.

PSC-41-14-00009-P ...... exempt Establishment of a Clean Energy Fund and Consideration of proposal by NYSERDA for the related actions establishment of a Clean Energy Fund and related actions

PSC-41-14-00010-P ...... exempt Reallocation of EEPS and SBC funds Consideration of proposal by NYSERDA for reallocation of EEPS and SBC funds

PSC-41-14-00011-P ...... exempt Establishment of annual collections caps and Consideration of proposal by NYSERDA for the collection and spending mechanisms as establishment of annual collections caps and described in the Clean Energy Fund Proposal collection and spending mechanisms

PSC-41-14-00012-P ...... exempt Funding and management of the NY-Sun Consideration of proposal by NYSERDA for the program as described in the Clean Energy funding and management of the NY-Sun Fund Proposal program

PSC-41-14-00013-P ...... exempt Funding and management of the New York Consideration of proposal by NYSERDA for the Green Bank as described in the Clean Energy funding and management of the New York Fund Proposal and NY Green Bank Petition Green Bank

PSC-41-14-00014-P ...... exempt Funding and management of a Market Consideration of proposal by NYSERDA for the Development program as described in the funding and management of a Market Clean Energy Fund Proposal Development program

103 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-41-14-00015-P ...... exempt Funding and management of a Technology and Consideration of proposal by NYSERDA for the Business Innovation program as described in funding and management of a Technology and the Clean Energy Fund Proposal Business Innovation program

PSC-41-14-00016-P ...... exempt Inter-carrier telephone service quality To review recommendations from the Carrier standards and metrics Working Group and incorporate modifications to the existing Guidelines

PSC-42-14-00003-P ...... exempt Annual Reconciliation of Gas Expenses and The filings of various LDCs and municipalities Gas Cost Recoveries regarding their Annual Reconciliation of Gas Expenses and Gas Cost Recoveries

PSC-42-14-00004-P ...... exempt Winter Bundled Sales Service Option To modify SC-11 to remove language relating to fixed storage charges in the determination of the Winter Bundled Sales charge

PSC-44-14-00020-P ...... exempt LDC inspection and remediation plans for Whether to order LDCs to comply with their filed plastic fusions plans that address any safety risks associated with plastic fusions

PSC-44-14-00021-P ...... exempt Define incremental cost of gas To define the incremental cost of gas and to streamline the Definitions and Abbreviations section

PSC-44-14-00023-P ...... exempt Petition for rehearing filed by West Valley Petition for rehearing filed by West Valley Crystal Water Company, Inc. on October 9, Crystal Water Company, Inc. on October 9, 2014 2014

PSC-45-14-00002-P ...... exempt Proposed Public Policy Transmission Needs/ To identify any proposed Public Policy Public Policy Requirements, as defined under Transmission Needs/Public Policy Requirements the NYISO tariff for referral to the NYISO

PSC-45-14-00003-P ...... exempt Notice of Intent to Submeter electricity To consider the request of Bedford-Stuyvesant South One LLC to submeter electricity at 27 Albany Avenue, Brooklyn, NY

PSC-45-14-00004-P ...... exempt Petition for submetering of electricity To consider the request of C B Frontier LLC, to submeter electricity at 200 East 39th Street, New York, New York

PSC-46-14-00008-P ...... exempt Funding and eligibility rules for the Green Bank Consideration of proposal by NYSERDA for the program as described in the Green Bank funding and eligibility rule changes for the Green Petition. Bank program.

PSC-46-14-00009-P ...... exempt Continuation of exemptions from standby rates To continue the exemptions from standby rates for beneficial forms of distributed generation for beneficial forms of distributed generation and and small combined heat and power. small combined heat and power.

PSC-47-14-00012-P ...... exempt Consideration of the National Grid To approve, modify or reject, in whole or in part, Implementation Plan and audit National Grid's Implementation Plan recommendations

PSC-48-14-00010-P ...... exempt Major gas rate increase filing. To establish rates and practices for gas service.

PSC-48-14-00011-P ...... exempt Major electric rate increase filing. To establish rates and practices for electric service.

PSC-48-14-00012-P ...... exempt Authority to update its System Improvement To allow or disallow New York American Water Charge (SIC Mechanism). Company to update its System Improvement Charge (SIC Mechanism).

104 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-48-14-00013-P ...... exempt Petition for submetering of electricity. To consider the request of Albee Tower 1 Owners LLC to submeter electricity at 70 Fleet Street, Brooklyn, New York.

PSC-48-14-00014-P ...... exempt Considering the recommendations contained in To consider the recommendations contained in Staff' s electric outage investigation report for Staff's electric outage investigation report for MNRR, New Haven Line. MNRR, New Haven Line.

PSC-49-14-00002-P ...... exempt Whether to make revisions to Rider S - Whether to make revisions to Rider S - Commercial System Relief Program and Rider Commercial System Relief Program and Rider U U - Distribution Load Relief Program - Distribution Load Relief Program

PSC-51-14-00005-P ...... exempt Petitioner requests an order modifying its To resume operation of a 21 MW biomass existing maintenance tier contract offered fueled electric generating facility in Chateaugay, under the RPS Program New York

PSC-51-14-00006-P ...... exempt The Northeast Power Coordinating Council, To adopt revisions to various rules and Inc's A-Criteria documents and Criteria measurements of the Northeast Power Coordinating Council, Inc.

PSC-52-14-00019-P ...... exempt Petition for a waiver to master meter electricity. Considering the request of 614 South Crouse Avenue, LLC to master meter electricity at 614 South Crouse Avenue, Syracuse, NY..

PSC-52-14-00021-P ...... exempt Requirements and conditions for the net To consider requirements and conditions for the metering of customer-sited generation facilities. net metering of customer-sited generation facilities.

PSC-52-14-00022-P ...... exempt Petition for submetering of electricity. To consider the request of Kingsview Homes, Inc. to submeter electricity at 125 Ashland Place, Brooklyn, New York.

PSC-52-14-00023-P ...... exempt LDC inspection and remediation plans for Whether to order Con Ed and ORU to comply plastic fusions. with their filed plans that address any safety risks associated with plastic fusions.

PSC-52-14-00024-P ...... exempt Distributed Generation (DG), Natural Gas To extend the DG and NGV programs to March Vehicle (NGV) and Prime-WNY programs. 31, 2018 and for authorization of the Prime- WNY program.

PSC-52-14-00025-P ...... exempt Whether to approve, modify or reject in whole Whether to approve, modify or reject in whole or or in part an increase in annual revenues of in part an increase in annual revenues of approximately $24,000 or 48%. approximately $24,000 or 48%.

PSC-52-14-00026-P ...... exempt Community Choice Aggregation. To consider action related to Community Choice Aggregation.

PSC-01-15-00014-P ...... exempt State Universal Service Fund Disbursements To consider Edwards Telephone Company's request for State Universal Service Fund disbursements

PSC-01-15-00015-P ...... exempt NYSEG is seeking waivers from certain NYSEG is seeking waivers because it cannot regulatory requirements contained in an Order certify the existing propane distribution system issued in Case 14-G-0197 on October 6, complies with certain regulations 2014

PSC-01-15-00016-P ...... exempt State Universal Service Fund Disbursements To consider Port Byron Telephone Company's request for State Universal Service Fund disbursements

PSC-01-15-00017-P ...... exempt Reimbursement of costs for construction under To determine proper reimbursement for costs 16 NYCRR 230 related to trenching and construction

105 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-01-15-00018-P ...... exempt State Universal Service Fund Disbursements To consider Township Telephone Company's request for State Universal Service Fund disbursements

PSC-01-15-00019-P ...... exempt Rule 50 - Reliability Support Services (RSS) To make a clarifying revision to Rule 50 - Surcharge. Reliability Support Services (RSS) Surcharge.

PSC-02-15-00005-P ...... exempt Approving the 2014 electric emergency Approving the 2014 electric emergency response plans for New York's six major response plans for New York's six major electric electric utilities. utilities.

PSC-03-15-00002-P ...... exempt Waiver of tariff provisions related to SC 14 To determine whether a waiver is warranted Non-Core Transportation Services for Electric Generation

PSC-03-15-00003-P ...... exempt To allow residential customers to opt out of To allow residential customers to opt out of AMR metering for gas and make other tariff AMR metering for gas and make other tariff changes related to gas metering changes related to gas metering

PSC-03-15-00004-P ...... exempt To allow residential customers a one time To allow residential customers a one time election to opt out of AMR metering and make election to opt out of AMR metering and make other tariff changes related to metering other changes related to metering

PSC-03-15-00005-P ...... exempt Minor electric rate filing For approval to increase annual revenues by about $300,000 or 17.96%

PSC-04-15-00008-P ...... exempt Re-billing SC No. 2 customers from March To determine whether re-billing SC No. 2 2008 through March 2014. customers by the Companies' proposed methodology customers is appropriate.

PSC-04-15-00009-P ...... exempt To start and finish construction of distribution To require NYSEG to start and complete and service lines in certain municipalities in construction of distribution and service lines in Clinton County by dates certain. municipalities in Clinton County.

PSC-04-15-00010-P ...... exempt To modify the retail access program under SC To modify the retail access program to No. 19 - Seller Transportation Aggregation implement Tier 2A – Storage Capacity Release Service. and make other tariff changes.

PSC-04-15-00011-P ...... exempt To modify the retail access program under SC To modify the retail access program to No. 8 - Seller Services. implement Tier 2A - Storage Capacity Release and make other tariff changes.

PSC-04-15-00012-P ...... exempt Disposition of tax refunds and other related To determine the disposition of tax refunds and matters. other related matters.

PSC-04-15-00013-P ...... exempt RiderL-DirectLoad Control Program (DLC) To expand the DLC program, replace failed and Residential Smart Appliance Program control devices, and to expand the RSAP pilot. (RSAP)

PSC-04-15-00014-P ...... exempt Request for waiver of 6 NYCRR Part 501 and To grant, deny or modify a petition for a waiver United Water's tariff provisions governing main of 6 NYCRR Part 501 and related United extensions. Water's tariff provisions.

PSC-05-15-00003-P ...... exempt Whether to grant, deny or modify in whole or in Whether to grant, deny or modify in whole or in part the petition of Consolidated Edison for part the petition of Consolidated Edison for rehearing and clarification rehearing and clarification

PSC-05-15-00004-P ...... exempt Whether to permit the use of the Eaton Power Pursuant to 16 NYCRR Parts 93 and 96, the Xpert Multi-Point Meter for submeter Commission must approve the Eaton Power applications Xpert Multi-Point for electric submetering

106 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-05-15-00005-P ...... exempt Cost recovery surcharge and gas safety To determine issues related to gas safety performance standards surcharge implementation

PSC-06-15-00003-P ...... exempt Petition for submetering of electricity To consider the request of City Point Residential LLC, to submeter electricity at 366 Flatbush Avenue Ext, Brooklyn, New York

PSC-06-15-00004-P ...... exempt Whether to make revisions to Rider S - Whether to make revisions to Rider S - Commercial System Relief Program and Rider Commercial System Relief Program and Rider U U - Distribution Load Relief Program - Distribution Load Relief Program

PSC-07-15-00005-P ...... exempt Major electric rate increase filing To establish rates and practices for electric service

PSC-07-15-00006-P ...... exempt Whether to order a remand regarding Whether to order a remand regarding payphone payphone rates rates and award refunds

PSC-07-15-00007-P ...... exempt Major gas rate increase filing To establish rates and practices for gas service

PSC-08-15-00008-P ...... exempt Approval of a loan, an ownership transfer, and Approval of a loan, an ownership transfer, and continuation of lightened regulation. continuation of lightened regulation.

PSC-08-15-00009-P ...... exempt Approval of a surcharge. To allow or disallow Emerald Green Lake Louise Marie Water Company, Inc. for a surcharge.

PSC-08-15-00010-P ...... exempt Request pertaining to the lawfulness of To grant, deny, or modify URAC Rate National Grid USA continuing its summary Consultants' request that National Grid cease its billing program. summary billing program.

PSC-08-15-00011-P ...... exempt Implementation of community net metering. To consider implementation of community net metering.

PSC-09-15-00003-P ...... exempt The recovery of costs related to a Reliability The recovery of costs related to a Reliability Support Services Agreement for services from Support Services Agreement for services from R.E. Ginna Nuclear Power Plant, LLC R.E. Ginna Nuclear Power Plant, LLC

PSC-09-15-00004-P ...... exempt Refinancing and issuance of long-term debt To authorize New York American Water securities Company, Inc. to refinance up to $22,600,000 and issue up to $45,300,000 of long-term debt

PSC-09-15-00005-P ...... exempt Late Payment Charge To modify Section 6.6 - Late Payment Charge to designate a specific time for when a late payment charge is due

PSC-09-15-00006-P ...... exempt Petition for submetering of electricity To consider the request of 315 East 68th Street Corporation to submeter electricity at 315 East 68th Street, New York, N.Y.

PSC-09-15-00007-P ...... exempt Late Payment Charge To modify Section 7.6 - Late Payment Charge to designate a specific time for when a late payment charge is due

PSC-10-15-00006-P ...... exempt Amendment of submetering order(s) to allow Whether to amend Queens Fresh Meadows LLC Queens Fresh Meadows LLC and others to submetering order and others to allow terminate electric service for failure to pay termination of electric service

PSC-10-15-00007-P ...... exempt Notification concerning tax refunds To consider Verizon New York Inc.'s partial rehearing or reconsideration request regarding retention of property tax refunds

107 Action Pending Index NYS Register/April 1, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-10-15-00008-P ...... exempt Whether to waive Policy on Test Periods in Whether to waive Policy on Test Periods in Major Rate Proceedings and provide authority Major Rate Proceedings and provide authority to to file tariff changes file tariff changes

PSC-10-15-00009-P ...... exempt Contingency Tariffs regarding demand To consider Contingency Tariffs regarding response issues demand response issues

PSC-10-15-00010-P ...... exempt Notification concerning tax refunds To consider Verizon New York Inc.'s request to retain a portion of a property tax refund

PSC-11-15-00021-P ...... exempt Utility gas energy efficiency programs, targets, To encourage the conservation of natural gas budgets and administration

PSC-11-15-00022-P ...... exempt Petition for submetering of electricity To consider the request of 160 Madison Ave LLC to submeter electricity at 160 Madison Avenue, New York, New York

PSC-11-15-00023-P ...... exempt Petition for submetering of electricity To consider the request of Renaissance Corporation of Albany to submeter electricity at 100 Union Drive, Albany, New York

PSC-11-15-00024-P ...... exempt Notice of Intent to submeter electricity To consider the request to submeter electricity at the Island House Apartments at 551, 555, 575 Main Street, N.Y., N.Y.

PSC-11-15-00025-P ...... exempt LED Street Lighting To update tariff leaves to reflect LED lighting options contained in P.S.C. No. 15 - Electricity

PSC-12-15-00005-P ...... exempt Reliability Support Services Agreement for Consideration of an extension of the Reliability electric service reliability Support Services Agreement for electric service reliability

PSC-12-15-00006-P ...... exempt To consider a stock purchase for the cable To allow Adams CATV to purchase 100% of the system and related assets stock of Oquaga Lake Cable System

PSC-12-15-00007-P ...... exempt The Annual Reconciliation of Gas Expenses Examine the Annual Reconciliation of Gas and Gas Cost Recoveries codified at Title 16 Expenses and Gas Cost Recoveries mechanism NYCRR Section 720.6.5

PSC-12-15-00008-P ...... exempt Minor electric rate filing To approve an increase in annual electric revenues by approximately $299,966 or 3.2%

PSC-13-15-00024-P ...... exempt Whether Leatherstocking should be permitted To decide whether to approve Leatherstocking's to recover a shortfall in earnings request to recover a shortfall in earnings

PSC-13-15-00025-P ...... exempt Whether to permit the use of the Quadlogic To permit the use of the Quadlogic S-10T Controls S-10T electric submeter submeter

PSC-13-15-00026-P ...... exempt Whether to permit the use of the Sensus To permit the use of the Sensus Smart Point Smart Point Gas AMR/AMI product Gas AMR/AMI product

PSC-13-15-00027-P ...... exempt Whether to permit the use of the Measurlogic To permit the use of the Measurlogic DTS 310 DTS 310 electric submeter submeter

PSC-13-15-00028-P ...... exempt Whether to permit the use of the SATEC To permit necessary to permit the use of the EM920 electric meter SATEC EM920 electric meter

PSC-13-15-00029-P ...... exempt Whether to permit the use the Triacta Power To permit the use of the Triacta submeters Technologies 6103, 6112, 6303, and 6312 electric submeters

108 NYS Register/April 1, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

STATE, DEPARTMENT OF

DOS-41-14-00001-P ...... 10/20/15 Minimumstandards for code enforcement To establish minimum training standards so as training to increase the level of competency and reliability of code enforcement personnel

DOS-02-15-00004-EP ...... 03/01/16 Useoftrusstype,pre-engineeredwood or To implement the provisions of new section timber construction in residential structures 382-b of the Executive Law, as added by chapter 353 of the Laws of 2014

DOS-04-15-00004-EP ...... 03/19/16 Issuance of an order to remedy a violation of Fix the time for compliance with an order to the Uniform Code remedy any condition found to exist in buildings in violation of the Uniform Code

DOS-05-15-00007-EP ...... 03/23/16 Addition of provisions relating to ‘‘sparkling To amend the Uniform Code to provide devices’’ to the State Uniform Fire Prevention additional requirements applicable to buildings and Building Code and structures where ‘‘sparkling devices’’ are manufactured, stored or used and add other restrictions on the use of ‘‘sparkling devices’’

DOS-09-15-00001-P ...... 03/03/16 Regulations relating to review of original To clarify the Department's review procedures applications for new applicants seeking licensure pursuant to Art. 27 of the GBL

DOS-11-15-00001-P ...... 03/17/16 Realestatebrokers and salespersons To update obsolete and outdated regulations

TAXATION AND FINANCE, DEPARTMENT OF

TAF-08-15-00012-P ...... exempt Fuel use tax on motor fuel and diesel motor To set the sales tax component and the fuel and the art. 13-A carrier tax jointly composite rate per gallon for the period April 1, administered therewith 2015 through June 30, 2015

TEMPORARY AND DISABILITY ASSISTANCE, OFFICE OF

TDA-49-14-00001-P ...... 12/10/15 Local Advisory Councils Repeal the regulatory requirement that social services districts establish and maintain local advisory councils

TDA-12-15-00004-P ...... 03/24/16 Delete regulatory references to the Learnfare Make technical amendments to reflect that the Program statutory authority to operate the Learnfare Program has expired

TRANSPORTATION, DEPARTMENT OF

TRN-11-15-00014-P ...... 03/17/16 Useofrestareas (section 156.3) and safe To update applicable regulations in 17 NYCRR operation of commercial motor vehicles 156.3(c) and 820.14 (section 820.14)

TRN-11-15-00015-P ...... 03/17/16 Safeoperation of commercial motor vehicles To update applicable regulations in 17 NYCRR by motor carriers and drivers Part 820, added 12/12/2004

109

SECURITIES OFFERINGS

STATE NOTICES GoodWorld, Inc. 1133 15th St. NW, Suite 1200, Washington, DC 20005 Published pursuant to provisions of General Business Law State or country in which incorporated — Delaware [Art. 23-A, § 359-e(2)] Happy Inspector Inc. DEALERS; BROKERS 1000 Van Ness Ave., Level 3, San Francisco, CA 94109 State or country in which incorporated — Delaware

13 Lucky Pulpit/Lasting Beauty, LLC Heritage Estates Multifamily Investment, LLC 800 Arbor Dr. N, Louisville, KY 40223 5619 DTC Pkwy., Suite 800, Greenwood Village, CO 80111

AJO Emerging Markets Hedge Fund, L.P. Hotel Common Partners Lake Tahoe, LLC c/o AJO, LP, 100 High St., 25th Fl., Boston, MA 02110 7009 Dr. Phillips Blvd., Suite 220, Orlando, FL 32819 Partnership — AJO Funds, LLC State or country in which incorporated — Delaware

Alchemy India Fund (Cayman) Partners L.P. Investment Managers Series Trust c/o Alchemy Investment Management Pte. Ltd., 120 Telok Ayer St., 235 W. Galena St., Milwaukee, WI 53212 Singapore, Singapore 068589 State or country in which incorporated — Delaware Partnership — Alchemy Investment Management Pte. Ltd. Keefe, Bruyette & Woods, Inc. Analog Capital Fund, L.P. 787 Seventh Ave., 4th Fl., New York, NY 10019 101 California St., 41st Fl., San Francisco, CA 94111 State or country in which incorporated — New York Partnership — Analog Investment Edge, LLC Lake Capital Partners Feeder LP Aracle SPF II, LLC 676 N. Michigan Ave., Suite 3900, Chicago, IL 60611 One Penn Plaza, Suite 2411, New York, NY 10119 Partnership — Lake Capital Investment Feeder LP State or country in which incorporated — Delaware LAV Biosciences Fund I, L.P. Caledonian Royalty Corporation Appleby Trust (Cayman) Ltd., Clifton House, 75 Fort St., PO Box Suite 2200, 300 - 5th Ave. SW, Calgary, Alberta T2P 3C4 1350, Grand Cayman, KY1-1108, Cayman Islands State or country in which incorporated — Canada Partnership — LAV GP I, L.P. Case Wallet Inc. Leonard + Meron Biosciences, Inc. 125 Tech Park Dr., Suite 2190, Rochester, NY 14623 11 Commerce Dr., 1st Fl., Cranford, NJ 07016 State or country in which incorporated — Delaware State or country in which incorporated — Delaware Crosslink Crossover Fund VI, L.P. Two Embarcadero Center, Suite 2200, San Francisco, CA 94111 Lexington Real Foods Community Cooperative, Inc. Partnership — Crossover Fund VI Management, L.L.C. 807 Elmwood Ave., Buffalo, NY 14222 State or country in which incorporated — New York Crosslink Crossover Fund VII-A, L.P. Two Embarcadero Center, Suite 2200, San Francisco, CA 94111 Lily Asia Ventures Fund III, L.P. Partnership — Crossover Fund VII Management, L.L.C. Appleby Trust (Cayman) Ltd., Clifton House, 75 Fort St., PO Box 1350, Grand Cayman, KY1-1108, Cayman Islands Crosslink Crossover Fund VII-B, L.P. Partnership — LAV GP I, L.P. Two Embarcadero Center, Suite 2200, San Francisco, CA 94111 Partnership — Crossover Fund VII Management, L.L.C. Merion Multifamily Fund II, L.P. 308 E. Lancaster Ave., Suite 300, Wynnewood, PA 19096 DCM Cancun, LP Partnership — Merion Multifamily II GP, L.P. 1400 McKinney St., Suite 2904, Houston, TX 77010 Partnership — DCM Cancun GP, LLC, general partner Muirwood Columbus Realty LLC 1465 Monroe Ave., Rochester, NY 14618 DPEC Capital, Inc. 135 Fifth Ave., 10th Fl., New York, NY 10010 Next Play Capital, LLC State or country in which incorporated — Delaware 4180 Elmer Ave., Studio City, CA 91604

111 Securities Offerings NYS Register/April 1, 2015

Next Play Capital I, L.P. Syno Ventures, LP 4180 Elmer Ave., Studio City, CA 91604 c/o Syno Partners, LLC, 122 E. 42nd St., Suite 825, New York, NY Partnership — Next Play Capital GP I, L.P. 10168 Partnership — Syno Partners, LLC North Rock Fund, L.P. 3801 PGA Blvd., Suite 500, Palm Beach Gardens, FL 33410 Syno Ventures (Cayman), L.P. c/o Syno Partners, LLC, 122 E. 42nd St., Suite 825, New York, NY Pennsylvania Pure Distilleries, LLC 10168 1101 William Flynn Hwy., Glenshaw, PA 15116 Partnership — Syno Partners, LLC State or country in which incorporated — Pennsylvania Tartan Holdings, LLC Pomona Investment Fund 98 Hillrise Dr., Penfield, NY 14526 780 Third Ave., 46th Fl., New York, NY 10017 TCF Law Group, PLLC State or country in which incorporated — Delaware 21 Pleasant St., Suite 233, Newburyport, MA 01950

Pravati Capital LLC TIP-1 LLC 4400 N. Scottsdale Rd., Suite 9277, Scottsdale, AZ 85251 400 Park Ave., Suite 610, New York, NY 10022 State or country in which incorporated — Delaware Titan Computer Services, Inc. Pravati Investment Fund I, LLC 92 S. Southgate Dr., Spring Valley, NY 10977 4400 N. Scottsdale Rd., Suite 9277, Scottsdale, AZ 85251 State or country in which incorporated — New York State or country in which incorporated — Delaware U.S. Farming Realty Trust III, LP Private Advisors Small Co Private Equity Fund VI (Cayman), LP 1291 U.S. Hwy. 258 N, Kinston, NC 28504 Riverfront Plaza West, 901 E. Byrd St., Richmond, VA 23219 Partnership — International Farming Corporation GP3, LLC Partnership — PASCPEF VI GP, LLC USFRT Kinston Partners III, LP PTT Distributed Energy Systems, LLC 1291 U.S. Hwy. 258 N, Kinston, NC 28504 96 Chewonki Neck Dr., Wiscasset, ME 04578 Partnership — USFRT Kinston Partners GP3, LLC State or country in which incorporated — Maine Vericred, Inc. 1050 Clifton Rd., Clifton, NJ 07013 RA Capital Healthcare Fund, L.P. State or country in which incorporated — Delaware 20 Park Plaza, Suite 1200, Boston, MA 02116 Partnership — RA Capital Management, LLC Warrior Golf Legends, L.L.C. 15 Mason, Irvine, CA 92618 Radiant Logistics, Inc. State or country in which incorporated — California 405 114th Ave. SE, Third Fl., Bellevue, WA 98004 State or country in which incorporated — Delaware

Rhône Offshore Partners V L.P. 630 Fifth Ave., 27th Fl., New York, NY 10111 Partnership — Rhône Capital V L.P.

Rhône Partners V L.P. 630 Fifth Ave., 27th Fl., New York, NY 10111 Partnership — Rhône Capital V L.P.

Sea Bluff Partners, L.P. 12526 High Bluff Dr., Suite 300, San Diego, CA 92130 Partnership — Sea Bluff Capital, LLC

Sims High Income Portfolio, L.P. 175 Federal St., 5th Fl., Boston, MA 02110 Partnership — Braintree Capital Partners, LLC

Sumeru Equity Partners Fund L.P. 2775 Sand Hill Rd., Suite 100, Menlo Park, CA 94025 Partnership — SEP L.P., general partner

Summit Partners Growth Equity Fund IX-A, L.P. 222 Berkeley St., 18th Fl., Boston, MA 02116 Partnership — Summit Partners GE IX, L.P.

Summit Partners Growth Equity Fund IX-B, L.P. 222 Berkeley St., 18th Fl., Boston, MA 02116 Partnership — Summit Partners GE IX, L.P.

112 NOTICE OF AVAILABILITY OF STATE AND FEDERAL FUNDS

Division of Homeland Security and Emergency Services 1220 Washington Ave. State Office Bldg. Campus, Bldg. 7A Albany, NY 12242 COUNTY GOVERNMENTS Development, Consolidation and/or Improved Operation of Pub- lic Safety Communications to Support and Enhance Statewide Interoperable Communications for First Responders The New York State Office of Interoperable and Emergency Com- munications (OIEC) seeks applications for up to $3,500,000 from New York State County Governments for awards to facilitate the development, consolidation and/or improved operation of public safety communications to support and enhance statewide interoperable communications for first responders. Subject to State appropriation authority, a total of $50 million in funding is available for awards to New York State county governments for the purposes noted above, as outlined in the RFA. Funding for this grant program is supported by the Statewide Public Safety Communications Account. Applications will be accepted from February 12, 2015 through 5:00 p.m. on April 15, 2015 via e-mail to [email protected]. For the Request for Applications (RFA) please visit the Division of Homeland Security and Emergency Services (DHSES) website at http://www.dhses.ny.gov/oiec/grants/ or DHSES’s Grant Hotline at (866) 837-9133.

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MISCELLANEOUS NOTICES/HEARINGS Notice of Abandoned Property described below, which are subject to the consistency provisions of Received by the State Comptroller the Federal Coastal Zone Management Act of 1972, as amended. The U.S. Army Corps of Engineers, New York District (Corps), has Pursuant to provisions of the Abandoned Property Law and related determined that the proposed activity will be undertaken in a manner laws, the Office of the State Comptroller receives unclaimed monies consistent to the maximum extent practicable with the enforceable and other property deemed abandoned. A list of the names and last policies of the New York State Coastal Management Program. The known addresses of the entitled owners of this abandoned property is applicant's consistency determination and accompanying supporting maintained by the office in accordance with Section 1401 of the information and data are available for inspection at the New York Abandoned Property Law. Interested parties may inquire if they ap- State Department of State offices located at One Commerce Plaza, 99 pear on the Abandoned Property Listing by contacting the Office of Washington Avenue in Albany, New York. Unclaimed Funds, Monday through Friday from 8:00 a.m. to 4:30 The proposed action involves the Maintenance Dredging of But- p.m., at: termilk Channel Federal Navigation Project, with placement of ap- 1-800-221-9311 proximately 90,000 cubic yards of the dredged material at a contractor or visit our web site at: furnished, state permitted upland placement site(s). The proposed www.osc.state.ny.us maintenance dredging would involve the removal of approximately Claims for abandoned property must be filed with the New York 90,000 cubic yards of material to depths of 35 feet and 40 feet below State Comptroller's Office of Unclaimed Funds as provided in Sec- mean lower low water (MLLW) plus 2 feet of allowable overdepth in tion 1406 of the Abandoned Property Law. For further information specified areas. Placement of the dredged material is proposed to be at contact: Office of the State Comptroller, Office of Unclaimed Funds, 110 State St., Albany, NY 12236. a suitable contractor-furnished, state-permitted upland placement site(s). Maintenance dredging of the channel will be accomplished by a mechanical dredge, or similar plant. The entire channel will gener- PUBLIC NOTICE ally not require maintenance dredging, only areas where shoaling has Department of Civil Service reduced the depth of the channel will require dredging. PURSUANT to the Open Meetings Law, the New York State Civil The purpose of the proposed dredging is to maintain the authorized Service Commission hereby gives public notice of the following: project dimensions, thereby assuring safe and economical use of the Please take notice that the regular monthly meeting of the State Buttermilk Channel by shipping interests. The proposed dredging for Civil Service Commission for April 2015 will be conducted on April this cycle is anticipated to occur in the summer/fall of 2015. The Corps 14 and April 16 commencing at 10:00 a.m. This meeting will be published a public notice on February 3, 2015 and expired on March conducted at NYS Media Services Center, Suite 146, South Con- 5, 2015. course, Empire State Plaza, Albany, NY. Any interested parties and/or agencies desiring to express their For further information, contact: Office of Commission Opera- views concerning the above proposed activities may do so by filing tions, Department of Civil Service, Empire State Plaza, Agency Bldg. their comments, in writing, no later than 4:30 p.m., 15 days from the 1, Albany, NY 12239 (518) 473-6598 date of publication of this notice, or, April 16, 2015. Comments should be addressed to the Consistency Review Unit, PUBLIC NOTICE New York State Department of State, Office of Planning and Develop- Office of General Services ment, One Commerce Plaza, 99 Washington Avenue, Suite, 1010, Pursuant to Section 30-a of the Public Lands Law, the Office of Albany, New York 12231. Telephone (518) 474-6000; Fax (518) 473- General Services hereby gives notice to the following: 2464. Electronic submission can be made to: [email protected]. Notice is hereby given that the New York State Division of State This notice is promulgated in accordance with Title 15, Code of Police has declared 1569 State Route 332 (Parcel B), Town of Federal Regulations, Part 930. Farmington, County of Ontario, New York State, a vacant lot, with tax identifier Section 41.00, Block 1, Lot 39.100, surplus, no longer PUBLIC NOTICE useful or necessary for State program purposes, and has abandoned the property to the Commissioner of General Services for sale or other Department of State disposition as Unappropriated State Land. F-2015-0143 (DA) For further information, please contact: Thomas Pohl, Esq., Office Date of Issuance – April 1, 2015 of General Services, Legal Services, 41st Fl., Corning Tower, Empire The New York State Department of State (DOS) is required by State Plaza, Albany, NY 12242, (518) 474-8831, (518) 473-4973 fax Federal regulations to provide timely public notice for the activities described below, which are subject to the consistency provisions of PUBLIC NOTICE the Federal Coastal Zone Management Act of 1972, as amended. Department of State The U.S. Army Corps of Engineers, New York District (Corps), has determined that the proposed activity will be undertaken in a manner F-2015-0090 (DA) consistent to the maximum extent practicable with the enforceable Date of Issuance – April 1, 2015 policies of the New York State Coastal Management Program. The The New York State Department of State (DOS) is required by applicant's consistency determination and accompanying supporting Federal regulations to provide timely public notice for the activities information and data are available for inspection at the New York

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State Department of State offices located at One Commerce Plaza, 99 PUBLIC NOTICE Washington Avenue in Albany, New York. Department of State The proposed action involves the Maintenance Dredging of Flush- Notice of Erroneous Inclusion ing Bay and Creek Federal Navigation Project, with placement of ap- In a Proclamation Revoking the Status proximately 150,000 cubic yards of the dredged material at an upland New York Registered Foreign Limited placement facility. The proposed maintenance dredging would involve Liability Partnerships the removal of approximately 150,000 cubic yards of material to Under the provisions of Section 121-1502(f)(I) of the Partnership depths of 15 feet and 12 feet plus 2 feet of allowable overdepth in Law, the Secretary of State hereby provides notice that the following specified areas. Placement of the dredged material is proposed to be at New York registered foreign limited liability partnerships were erro- a suitable contractor-furnished, state-permitted upland placement neously included in a proclamation dated July 30, 2014 declaring that site(s). Maintenance dredging of the channel will be accomplished by the registrations of certain New York registered foreign limited li- a mechanical dredge or similar plant. The entire channel will gener- ability partnerships revoked. The appropriate entries have been made ally not require maintenance dredging; only those areas where shoal- on the records of the Department of State. ing has reduced the depth of the channel will require dredging. PSK LLP The purpose of the proposed dredging is to maintain the authorized [SEAL] WITNESS my hand and the official seal project dimensions, thereby assuring safe and economical use of of the Department of State in its office in Flushing Bay and Creek by shipping interests. The proposed dredging the City of Albany this 10th day of is anticipated to occur in the fall/winter of 2015/2016. The Corps March in the year two thousand fifteen. published a public notice on February 11, 2015 and expired on March CESAR A. PERALES 13, 2015. Secretary of State Any interested parties and/or agencies desiring to express their views concerning the above proposed activities may do so by filing their comments, in writing, no later than 4:30 p.m., 15 days from the PUBLIC NOTICE date of publication of this notice, or, April 16, 2015. Susquehanna River Basin Commission SUMMARY: As part of its regular business meeting held on March Comments should be addressed to the Consistency Review Unit, 5, 2015, in Hershey, Pennsylvania, the Commission took the follow- New York State Department of State, Office of Planning and Develop- ing actions: 1) approved or tabled the applications of certain water re- ment, One Commerce Plaza, 99 Washington Avenue, Suite, 1010, sources projects; 2) accepted a settlement in lieu of penalty from Cabot Albany, New York 12231. Telephone (518) 474-6000; Fax (518) 473- Oil & Gas Corporation; and 3) took additional actions, as set forth in 2464. Electronic submission can be made to: [email protected]. the Supplementary Information below. This notice is promulgated in accordance with Title 15, Code of DATES: March 5, 2015. Federal Regulations, Part 930. ADDRESSES: Susquehanna River Basin Commission, 4423 N. Front Street, Harrisburg, PA 17110-1788. FOR FURTHER INFORMATION CONTACT: Jason E. Oyler, PUBLIC NOTICE Regulatory Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) Department of State 238-2436; e-mail: [email protected]. Regular mail inquiries may be Notice of Erroneous Inclusion sent to the above address. See also Commission website at www.srbc.net. In a Proclamation Revoking the SUPPLEMENTARY INFORMATION: In addition to the actions Registrations of Certain Registered taken on projects identified in the summary above and the listings Limited Liability Partnerships below, the following items were also presented or acted upon at the business meeting: 1) adoption of a final, revised FY2016 budget; 2) Under the provisions of Section 121-1500(g) of the Partnership approval/ratification of one grant, one grant amendment, and one Law, the Secretary of State hereby provides notice that the following contract; 3) adoption of a resolution encouraging the use of dry cool- registered limited liability partnerships were erroneously included in a ing technology as appropriate for power generation and other facilities proclamation dated July 30, 2014 declaring that the registrations of for the conservation of the waters of the Susquehanna River Basin; 4) certain registered limited liability partnerships revoked. The appropri- a report on a delegated settlement with Talisman Energy USA, pursu- ate entries have been made on the records of the Department of State. ant to SRBC Resolution 2014-15, in the amount of $8,000; and 5) postponement to the June 2015 Commission meeting of a Show Cause ASKLIPIOS MEDICAL GROUP, LLP proceeding with Four Seasons Golf Course over its failure to abide by DEBEVOISE & PLIMPTON LLP the terms of the settlement agreement accepted at the September 2014 Commission meeting. FLOMENHAFT & CANNATA, L.L.P. Compliance Matter: FUTTERMAN & LANZA, LLP The Commission approved a settlement in lieu of civil penalty for the following project: SOUTH SHORE CENTER FOR SPEECH, LANGUAGE AND SWALLOWING DISORDERS, LLP 1. Cabot Oil & Gas Corporation (StellitanoA P1 Well Pad), Gibson Township, Susquehanna County, Pa. - $50,000. WESTCHESTER PEDIATRICS, RLLP Project Applications Approved: WOLF & FUHRMAN, ATTORNEYS LLP The Commission approved the following project applications: 1. Project Sponsor and Facility: ADLIB Resources, Inc. (Meshop- [SEAL] WITNESS my hand and the official seal pen Creek), Springville Township, Susquehanna County, Pa. Renewal of the Department of State in its office in and modification to increase surface water withdrawal by an additional the City of Albany this 10th day of 0.251 mgd (peak day), for a total of up to 0.500 mgd (peak day) March in the year two thousand fifteen. (Docket No. 20101206). CESAR A. PERALES 2. Project Sponsor and Facility: Carrizo (Marcellus), LLC (Mos- Secretary of State quito Creek), Karthaus Township, Clearfield County, Pa. Surface water withdrawal of up to 0.720 mgd (peak day).

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3. Project Sponsor and Facility: Chesapeake Appalachia, LLC (Susquehanna River), Braintrim Township, Wyoming County, Pa. Renewal of surface water withdrawal of up to 3.000 mgd (peak day) (Docket No. 20110303). 4. Project Sponsor and Facility: Chief Oil & Gas LLC (Martins Creek), Hop Bottom Borough, Susquehanna County, Pa. Renewal of surface water withdrawal of up to 0.360 mgd (peak day) (Docket No. 20110304). 5. Project Sponsor and Facility: EQT Production Company (West Branch Susquehanna River), Greenwood Township, Clearfield County, Pa. Surface water withdrawal of up to 0.900 mgd (peak day). 6. Project Sponsor and Facility: Keystone Clearwater Solutions, LLC (West Branch Susquehanna River), Curwensville Borough, Clearfield County, Pa. Renewal of surface water withdrawal reduced from originally approved 2.000 mgd (peak day) to up to 1.500 mgd (peak day) (Docket No. 20101204). 7. Project Sponsor and Facility: Linde Corporation (Lackawanna River), Fell Township, Lackawanna County, Pa. Renewal of surface water withdrawal of up to 0.905 mgd (peak day) (Docket No. 20101207). 8. Project Sponsor and Facility: Samson Exploration, LLC (Plum Grove Cameron 5 Strip Mine Pond), Shippen Township, Cameron County, Pa. Renewal of surface water withdrawal of up to 0.090 mgd (peak day) (Docket No. 20110308). 9. Project Sponsor and Facility: Shadow Ranch Resort, Inc. (Tunkhannock Creek), Tunkhannock Township, Wyoming County, Pa. Renewal of surface water withdrawal of up to 0.999 mgd (peak day) (Docket No. 20110310). 10. Project Sponsor and Facility: Southwestern Energy Production Company (Martins Creek), Brooklyn Township, Susquehanna County, Pa. Renewal of surface water withdrawal of up to 0.997 mgd (peak day) (Docket No. 20110312). 11. Project Sponsor and Facility: SWEPI LP (Cowanesque River), Westfield Township, Tioga County, Pa. Renewal of surface water withdrawal of up to 0.375 mgd (peak day) (Docket No. 20101203). 12. Project Sponsor and Facility: Warwick Township Municipal Authority, Warwick Township, Lancaster County, Pa. Groundwater withdrawal of up to 0.288 mgd (30-day average) from Rothsville Well 2. Project Applications Tabled: The Commission tabled action on the following project applications: 1. Project Sponsor and Facility: Keister Miller Investments, LLC (West Branch Susquehanna River), Mahaffey Borough, Clearfield County, Pa. Application for surface water withdrawal of up to 2.000 mgd (peak day). 2. Project Sponsor and Facility: Shrewsbury Borough, York County, Pa. Application for renewal and modification to increase groundwater withdrawal by an additional 0.024 mgd (30-day average), for a total of up to 0.089 mgd (30-day average) from the Blouse Well (Docket No. 19820103). 3. Project Sponsor and Facility: Shrewsbury Borough, York County, Pa. Application for renewal of groundwater withdrawal of up to 0.099 mgd (30-day average) from the Smith Well (Docket No. 19811203). AUTHORITY: Pub.L. 91-575, 84 Stat. 1509 et seq., 18 CFR Parts 806, 807, and 808. Dated: March 12, 2015. Stephanie L. Richardson, Secretary to the Commission.

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