Rule Making Activities

RULE MAKING ACTIVITIES

Each rule making is identified by an I.D. No., which consists Assessment of Public Comment The Department received comments on amendments of sections 68.1, of 13 characters. For example, the I.D. No. 68.2, 68.3, 68.5, 68.7 and 68.8 of 1 NYCRR, which would help prevent AAM-01-96-00001-E indicates the following: the introduction and spread of chronic wasting disease (CWD) in captive cervids in New York State. A hearing was held on December 19, 2013. AAM -the abbreviation to identify the adopting agency The Department received comments during the hearing and the public 01 -the State Register issue number comment period. Comments Supporting the Amendments: 96 -the year Comment: One commenter urged an import ban on all cervids since 00001 -the Department of State number, assigned upon there are too many unknown variables about CWD and its impact on cap- receipt of notice. tive cervids and wildlife. Comment: One commenter contended that the ban should be in place E -Emergency Rule Making—permanent action until a live test is developed. not intended (This character could also be: A Comment: One commenter indicated that the import ban is the only ef- for Adoption; P for Proposed Rule Making; RP fective way to protect the wild deer population. Two other commenters stated that the importation of cervids into the State could put other wild for Revised Rule Making; EP for a combined animals at risk. Emergency and Proposed Rule Making; EA for Comment: One commenter commented that white-tailed deer are an an Emergency Rule Making that is permanent important ecological, recreational and economic resource which could be devastated by the reintroduction of CWD into New York. and does not expire 90 days after filing.) Comment: One commenter observed that the wild white-tail deer Italics contained in text denote new material. Brackets population generates approximately $780-million by hunting and associated businesses and $290-million in State and local taxes. indicate material to be deleted. Comment: One commenter noted that recent cases of CWD in other states have shown that currently used precautions -- such as “closed herds,” “certified herds” and “double fencing” – have not prevented the spread of CWD. Comment: One commenter urged a ban on all cervid imports, noting Department of Agriculture and that CWD may pose a risk to the health of other captive cervids and wildlife. Markets Comment: One commenter noted that white-tail deer have an economic impact of nearly $800-million dollars, which would be threatened if CWD were to emerge. Comment: One commenter observed that because CWD is not fully NOTICE OF ADOPTION understood, a “hardline” approach should be taken to control the disease. Comment: One commenter asserted that disease transmission from cap- Captive Cervids tive to free-ranging cervids is a major threat to hunting and wildlife I.D. No. AAM-44-13-00007-A management. Comment: One commenter noted that allowing the import of animals Filing No. 265 increases the chance of spreading CWD and other diseases. Filing Date: 2014-04-01 Comment: One commenter noted that the health and well being of Effective Date: 2014-04-16 animals in zoos is of importance to accredited members of the Association of Zoos and Aquariums (AZA). Response: The Department recognizes the factual support, concerns PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- and opinions offered in comments described above, many of which cedure Act, NOTICE is hereby given of the following action: provide the basis for the proposed amendments designed to help prevent Action taken: Amendment of sections 68.1, 68.2, 68.3, 68.5, 68.7 and the introduction and spread of chronic wasting disease (CWD) in captive 68.8 of Title 1 NYCRR. cervids in New York State. Statutory authority: Agriculture and Markets Law, sections 18, 72 and 74 Comments Opposing the Amendments: Issue/Concern: One commenter argued that the State does not know Subject: Captive cervids. enough about CWD to make a “drastic decision.” Purpose: To prevent the reintroduction and spread of chronic wasting dis- Response: CWD is an incurable and deadly disease. Our lack of knowl- ease in New York State. edge on modes of transmission, incubation periods and live animal testing Text or summary was published in the October 30, 2013 issue of the Reg- requires us to be more, not less, restrictive. ister, I.D. No. AAM-44-13-00007-EP. Issue/Concern: One commenter suggested that CWD existed for many Final rule as compared with last published rule: No changes. years and its spread cannot be explained by the importation of infected deer. The commenter noted that if CWD lives in the soil, the imposition of Text of rule and any required statements and analyses may be obtained burdens on captive deer farmers is wrong. from: David Smith, DVM, Director, Division of Animal Industry, NYS Response: CWD spreads slowly naturally but it has emerged hundreds Department of Agriculture and Markets, 10B Airline Drive, Albany, New of miles away from any known infection in New Mexico, Wisconsin, West York 12235, (518) 457-3502 Virginia, and New York. The emergence in these areas is best explained Initial Review of Rule by movement of deer and elk. The “survivability” of CWD in the soil As a rule that does not require a RFA, RAFA or JIS, this rule will be argues for more restrictive measures to prevent its introduction. initially reviewed in the calendar year 2019, which is no later than the 5th Issue/Concern: One commenter noted that there has been only one case year after the year in which this rule is being adopted of CWD in New York State since 2001 and the deer in question did not

1 Rule Making Activities NYS Register/April 16, 2014 come from a monitored farm; and many commenters opposing the injurious to deer farms and would hurt the economy since farms may be proposed amendments expressed the view that the current regulations are put out of business resulting in job losses. Other commenters opposed the working. regulation because they believe it will increase the price of New York Response: There were seven CWD positive white-tailed deer discovered bred and raised deer. in New York in 2005. Five CWD positive animals were found in two herds, four in the index herd and one which was moved from the index herd to the second herd. Both herds were enrolled in one of the two CWD Response: The Department is mindful of the economic impact claimed herd programs offered by the Department. The other two CWD positive by some commentators opposing the regulations. Significantly, however, animals were wild white-tailed deer which were harvested within 10 miles no industry group or farmer has provided any financial data of any kind to of the two infected captive deer herds. In other states with regulations sim- support the general and conclusory allegations. Moreover, only a small ilar to New York’s (prior to the adoption of the emergency regulations) percentage of cervid farmers actually imports animals. CWD has been discovered in certified herds. Issue/Concern: Several commenters indicated that CWD cannot be On the other hand, in-state farmers involved in breeding could benefit transmitted to other animals or people. from increased demand, which may prompt them to expand their herds Response: A paper has just been published that presents evidence that and hire additional workers to care for their animals and maintain their while transmission of CWD to other species appears to be unlikely, there fences. is no biochemical mechanism to prevent it from happening. Issue/Concern: One commenter argued that CWD is not the “massive Issue/Concern: One commenter stated that the regulation would be contagion” that some claim it is. costly to small businesses, citing the requirement for a restraint system Response: We don’t know how extensive an outbreak of CWD would which could cost as much as $15,000. This commenter observed that anes- be if it were left unchecked. thesia is much less expensive and just as effective. Issue/Concern: One commenter questioned why there is an emergency now when CWD was first discovered in 1967. The commenter also Response: Repeated handling and darting of animals have substantial questioned the science behind prohibiting imports until 2018. risk of harm to both the animals and the handlers. Further, regulations at Response: Recent outbreaks in West Virginia, Maryland, Virginia, section 68.2(e) already require adequate handling facilities. While it is Pennsylvania and Missouri are a concern. We believe the risk of introduction is rising. There is a provision for review of this regulation to be done possible that proper facilities could cost as much as the commenter claims, no later than August 2018. With the increase of scientific knowledge about a less complex system can be built for much less money. CWD, the risk of CWD may be reduced by then. Issue/Concern: Two commenters suggested that rather than implement- Issue/Concern: Many commenters indicated that the interstate move- ing the new regulations, the Department should strengthen the current ment of deer is needed to improve the genetics and bloodlines of their deer ones. After five years, the increased restrictions could be reevaluated. herds. One commenter pointed out that without the ability to import deer, Response: Recent new cases of CWD in other states show that even farmers would be unable to breed and produce distinctive and unique these restrictions would be inadequate. Requiring captive cervids to be animals desired by patrons of the deer and elk farming industry. imported only from those facilities more than 100 miles from any known CWD case will decrease the chance of exposure of captive cervids to CWD Response: The Department still permits the importation of semen and infected wild cervids near the facility of origin. However, this requirement embryos from susceptible species, so there will still be means of introduc- cannot guarantee the herd of origin from unknowingly having or acquiring ing new bloodlines to New York captive deer herds, other than live animal an infected captive cervid. importations. Issue/Concern: Two commenters suggested that adequate fencing to prevent the comingling of wild and captive deer would prevent the Issue/Concern: One commenter stated that the regulations may result in potential spread of CWD from wild to captive deer. deer farmers being unable to find out-of-state markets for their deer, since Response: There have been many incidents in New York and elsewhere out-of-state farmers may not deal with farmers who cannot purchase deer in which poor quality fence construction, inadequate maintenance, gates outside of New York State. left open, vandalism and accidents have resulted in captive cervids escap- ing from enclosures. Response: The commenter provided no factual support for this claim. Issue/Concern: One commenter suggested that the State follow the stan- Even before 2012, there weren’t large numbers of deer and elk leaving the dards under the federal rule, since New York is one of six states approved for the federal CWD program. state. Response: New York is one of 23 states with a USDA Approved State CWD Herd Certification Program (HCP) which meets the minimum In 2013 two white-tailed deer breeders in New York sold 39 high qual- requirements of the national CWD HCP. The federal standards give states ity shooter bucks to hunt park facilities in three other states because no the latitude to enact/enforce standards that exceed the federal minimum preserve owners in New York were interested in purchasing their product standards, so in essence, the Department is following the federal program. for their asking price. Issue/Concern: One commenter suggested that it would be better to test and monitor deer than prohibit importation. Issue/Concern: One commenter said that preventing the movement of Response: This would mean dealing with an incurable, insidious dis- semen from out-of-state to New York State would undermine the deer ease after it has been brought it into the State. farmer’s ability to improve their herd’s genetics and bloodlines. Another Issue/Concern: One commenter indicated that monitoring and inspec- commenter said that the importation of semen should be allowed since tion of deer carcasses is needed, since one case of CWD entered New there is no proof that CWD is transmitted through semen. York State through carcass scrapings. Response: The most likely explanation of the 2005 detection of CWD Response: The importation of deer and elk semen is not prohibited in in Oneida County is that the prions arrived with taxidermy materials this regulation. imported from a state where CWD is endemic. Issue/Concern: Two commenters expressed the view that the State Sufficient genetic diversity can be maintained through males and chose regulating deer farms as the cheaper alternative to testing wild deer. females already in New York and through imported semen during the five Response: The Department of Agriculture and Markets has jurisdiction year period covered by this regulation. over domestic livestock. The Department does not regulate wild animal health and has no power to test or regulate wild cervids. The Department, Issue/Concern: A number of commenters questioned why zoos are however, does have a responsibility to protect the commonly held wild exempt from the requirements of the regulations. animal resources of this state from diseases that may be present in captive wildlife and domestic livestock. Issue/Concern: A number of commenters expressed the view that deer Response: AZA (Association of Zoos and Aquariums) zoos are an farms are not responsible for the spread of CWD; rather, officials should entirely different level of risk than the average captive deer business. AZA look to wild deer and hunted deer as sources for the disease. zoos have smaller collections of CWD susceptible species, the animals are Response: There are probably several ways for CWD to be spread to monitored throughout the day, escapes are extremely rare, there is a new areas. This Department has control of one way which allows the dis- perimeter fence in addition to the animals’ primary enclosure, the amount ease to spread hundreds of miles. To neglect trying to control this risk of primary enclosure fence that must be maintained is much less, there is because there are other risks we can’t directly control is not viable. careful veterinary oversight, there are post mortem exams on nearly all Issue/Concern: Many commenters said that the regulations would be mortalities, and CWD sampling opportunities are very seldom missed.

2 NYS Register/April 16, 2014 Rule Making Activities

REGISTERED FAMILY DAY CARE Office of Children and Family AGE OF CHILD

Services Under 11/2 11/2-2 3-5 6-12 WEEKLY $275 $250 $250 $250 DAILY $56 $55 $50 $50 EMERGENCY PART-DAY $37 $37 $33 $33 RULE MAKING HOURLY $10.00 $10.00 $10.00 $10.00 Child Care Market Rates GROUP FAMILY DAY CARE I.D. No. CFS-15-14-00002-E AGE OF CHILD Filing No. 264 1 1 Filing Date: 2014-04-01 Under 1 /2 1 /2-2 3-5 6-12 Effective Date: 2014-04-01 WEEKLY $285 $275 $275 $275 DAILY $60 $60 $59 $55 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PART-DAY $40 $40 $39 $37 cedure Act, NOTICE is hereby given of the following action: HOURLY $10.00 $10.00 $10.00 $10.00 Action taken: Amendment of section 415.9(j)(1); repeal of section 415.9(j)(3); and addition of new section 415.9(j)(3) to Title 18 NYCRR. (Group 1 Counties) Statutory authority: Social Services Law, sections 20(3)(d), 34(3)(f) and SCHOOL-AGE CHILD CARE title 5-C AGE OF CHILD Finding of necessity for emergency rule: Preservation of public health, public safety and general welfare. Under 11/2 11/2-2 3-5 6-12 Specific reasons underlying the finding of necessity: The adoption of WEEKLY $0 $0 $0 $283 these regulations on an emergency basis is necessary to protect the health, DAILY $0 $0 $0 $57 safety and welfare of families and children receiving subsidized child care in New York State. Federal statute, section 658E(c)(4)(A) of the Social PART-DAY $0 $0 $0 $38 Security Act, and federal regulation, 45 CFR 98.43(a), require that the HOURLY $0 $0 $0 $10.00 State establish payment rates for federally-funded child care subsidies that are sufficient to ensure equal access for eligible children. The market rates LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD that are being replaced are based on a survey conducted in 2011 and as a CARE STANDARD RATE result, continuing to maintain the existing rates could result in subsidized AGE OF CHILD families losing equal access for eligible children to child care arrange- ments, or being unable to find appropriate child care. Under 11/2 11/2-2 3-5 6-12 Subject: Child Care Market Rates. WEEKLY $179 $163 $163 $163 Purpose: To revise the child care market rates. Text of emergency rule: Paragraph (1) of subdivision (j) of section 415.9 DAILY $36 $36 $33 $33 is amended to read as follows: PART-DAY $24 $24 $21 $21 (1) Effective [October 1, 2011] April 1, 2014, the following are the lo- HOURLY $6.50 $6.50 $6.50 $6.50 cal market rates for each social services district set forth by the type of provider, the age of the child and the amount of time the child care ser- LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD vices are provided per week. CARE ENHANCED RATE Paragraph (3) of subdivision (j) of section 415.9 is repealed in its en- AGE OF CHILD tirety and re-enacted as follows:

(3) The market rates are established in five groupings of social ser- 1 1 vices districts. The rates established for a group apply to all districts in Under 1 /2 1 /2-2 3-5 6-12 the designated group. The district groupings are as follows: WEEKLY $193 $175 $175 $175 CHILD CARE MARKET RATES DAILY $39 $39 $35 $35 Market rates are established in five groupings of social services districts as follows: PART-DAY $26 $26 $23 $23 GROUP 1: Nassau, Putnam, Rockland, Suffolk, Westchester HOURLY $7.00 $7.00 $7.00 $7.00 GROUP 2: Columbia, Erie, Monroe, Onondaga, Ontario, Rensselaer, Saratoga, Schenectady, Tompkins, Warren GROUP 2 COUNTIES: GROUP 3: Allegany, Broome, Cattaraugus, Cayuga, Chautauqua, Columbia, Erie, Monroe, Onondaga, Ontario, Rensselaer, Saratoga, Chemung, Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Schenectady, Tompkins and Warren Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Living- DAY CARE CENTER ston, Madison, Montgomery, Niagara, Oneida, Orleans, Oswego, Otsego, AGE OF CHILD Schoharie, Schuyler, Seneca, St. Lawrence, Steuben, Sullivan, Tioga, Washington, Wayne, Wyoming, Yates 1 1 GROUP 4: Albany, Dutchess, Orange, Ulster Under 1 /2 1 /2-2 3-5 6-12 GROUP 5: Bronx, Kings, New York, Queens, Richmond WEEKLY $246 $231 $215 $200 GROUP 1 COUNTIES: DAILY $52 $49 $44 $40 Nassau, Putnam, Rockland, Suffolk, and Westchester DAY CARE CENTER PART-DAY $35 $33 $29 $27 AGE OF CHILD HOURLY $8.50 $8.25 $8.50 $7.00 REGISTERED FAMILY DAY CARE Under 11/2 11/2-2 3-5 6-12 AGE OF CHILD WEEKLY $340 $311 $285 $283

DAILY $68 $62 $57 $57 Under 11/2 11/2-2 3-5 6-12 PART-DAY $45 $41 $38 $38 WEEKLY $175 $175 $170 $160 HOURLY $9.50 $9.25 $10.00 $10.00 DAILY $40 $38 $35 $32

3 Rule Making Activities NYS Register/April 16, 2014

PART-DAY $27 $25 $23 $21 HOURLY $4.75 $4.50 $4.50 $5.00 HOURLY $5.50 $5.75 $5.75 $5.75 GROUP FAMILY DAY CARE GROUP FAMILY DAY CARE AGE OF CHILD AGE OF CHILD Under 11/2 11/2-2 3-5 6-12

Under 11/2 11/2-2 3-5 6-12 WEEKLY $150 $150 $148 $140 WEEKLY $190 $180 $175 $170 DAILY $35 $33 $32 $30 DAILY $38 $40 $38 $35 PART-DAY $23 $22 $21 $20 PART-DAY $25 $27 $25 $23 HOURLY $5.00 $5.00 $5.00 $5.00 HOURLY $6.00 $6.00 $6.00 $6.00 (Group 3 Counties) SCHOOL-AGE CHILD CARE (Group 2 Counties) AGE OF CHILD SCHOOL-AGE CHILD CARE AGE OF CHILD Under 11/2 11/2-2 3-5 6-12 WEEKLY $0 $0 $0 $160 Under 11/2 11/2-2 3-5 6-12 WEEKLY $0 $0 $0 $200 DAILY $0 $0 $0 $35 DAILY $0 $0 $0 $40 PART-DAY $0 $0 $0 $23 PART-DAY $0 $0 $0 $27 HOURLY $0 $0 $0 $6.25 HOURLY $0 $0 $0 $7.00 LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD CARE STANDARD RATE LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD AGE OF CHILD CARE STANDARD RATE AGE OF CHILD Under 11/2 11/2-2 3-5 6-12 WEEKLY $98 $91 $91 $91 Under 11/2 11/2-2 3-5 6-12 DAILY $20 $20 $20 $19 WEEKLY $114 $114 $111 $104 PART-DAY $13 $13 $13 $12 DAILY $26 $25 $23 $21 HOURLY $3.09 $2.93 $2.93 $3.25 PART-DAY $18 $16 $15 $14 HOURLY $3.58 $3.74 $3.74 $3.74 LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD CARE ENHANCED RATE LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD AGE OF CHILD CARE ENHANCED RATE AGE OF CHILD Under 11/2 11/2-2 3-5 6-12 WEEKLY $105 $98 $98 $98 Under 11/2 11/2-2 3-5 6-12 DAILY $21 $21 $21 $20 WEEKLY $123 $123 $119 $112 PART-DAY $14 $14 $14 $13 DAILY $28 $27 $25 $22 HOURLY $3.33 $3.15 $3.15 $3.50 PART-DAY $19 $18 $16 $15 HOURLY $3.85 $4.03 $4.03 $4.03 GROUP 4 COUNTIES: Albany, Dutchess, Orange, and Ulster GROUP 3 COUNTIES: DAY CARE CENTER Allegany, Broome, Cattaraugus, Cayuga, Chautauqua, Chemung, AGE OF CHILD Chenango, Clinton, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Mad- ison, Montgomery, Niagara, Oneida, Orleans, Oswego, Otsego, Schoha- Under 11/2 11/2-2 3-5 6-12 rie, Schuyler, Seneca, St. Lawrence, Steuben, Sullivan, Tioga, Washington, WEEKLY $252 $240 $220 $211 Wayne, Wyoming, and Yates DAILY $58 $55 $49 $43 DAY CARE CENTER AGE OF CHILD PART-DAY $39 $37 $33 $29 HOURLY $8.50 $8.25 $8.00 $8.25

Under 11/2 11/2-2 3-5 6-12 REGISTERED FAMILY DAY CARE WEEKLY $190 $180 $170 $160 AGE OF CHILD DAILY $42 $40 $38 $35

PART-DAY $28 $27 $25 $23 Under 11/2 11/2-2 3-5 6-12 HOURLY $6.75 $6.75 $6.25 $6.25 WEEKLY $200 $199 $190 $188 DAILY $44 $40 $40 $40 REGISTERED FAMILY DAY CARE AGE OF CHILD PART-DAY $29 $27 $27 $27 HOURLY $7.00 $7.00 $7.00 $7.00

Under 11/2 11/2-2 3-5 6-12 GROUP FAMILY DAY CARE WEEKLY $150 $140 $140 $140 AGE OF CHILD DAILY $30 $30 $30 $29

PART-DAY $20 $20 $20 $19 Under 11/2 11/2-2 3-5 6-12

4 NYS Register/April 16, 2014 Rule Making Activities

SCHOOL-AGE CHILD CARE WEEKLY $225 $204 $200 $200 AGE OF CHILD DAILY $45 $45 $41 $38 1 1 PART-DAY $30 $30 $27 $25 Under 1 /2 1 /2-2 3-5 6-12 HOURLY $8.75 $8.00 $8.00 $8.00 WEEKLY $0 $0 $0 $215 DAILY $0 $0 $0 $43 (Group 4 Counties) SCHOOL-AGE CHILD CARE PART-DAY $0 $0 $0 $29 AGE OF CHILD HOURLY $0 $0 $0 $10.75 LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD Under 11/2 11/2-2 3-5 6-12 CARE STANDARD RATE WEEKLY $0 $0 $0 $211 AGE OF CHILD DAILY $0 $0 $0 $43 1 1 PART-DAY $0 $0 $0 $29 Under 1 /2 1 /2-2 3-5 6-12 HOURLY $0 $0 $0 $8.25 WEEKLY $114 $104 $98 $98 DAILY $21 $21 $20 $20 LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD PART-DAY $14 $14 $14 $13 CARE STANDARD RATE AGE OF CHILD HOURLY $10.40 $7.80 $8.61 $8.45 LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD Under 11/2 11/2-2 3-5 6-12 CARE ENHANCED RATE WEEKLY $130 $129 $124 $122 AGE OF CHILD DAILY $29 $26 $26 $26 1 1 PART-DAY $19 $18 $18 $18 Under 1 /2 1 /2-2 3-5 6-12 HOURLY $4.55 $4.55 $4.55 $4.55 WEEKLY $123 $112 $105 $105 DAILY $23 $22 $22 $21 LEGALLY-EXEMPT FAMILY CHILD CARE AND IN-HOME CHILD PART-DAY $15 $15 $15 $14 CARE ENHANCED RATE HOURLY $11.20 $8.40 $9.28 $9.10 AGE OF CHILD SPECIAL NEEDS CHILD CARE Under 11/2 11/2-2 3-5 6-12 The rate of payment for child care services provided to a child WEEKLY $140 $139 $133 $132 determined to have special needs is the actual cost of care up to the statewide limit of the highest weekly, daily, part-day or hourly market rate DAILY $31 $28 $28 $28 for child care services in the State, as applicable, based on the amount of PART-DAY $20 $19 $19 $19 time the child care services are provided per week regardless of the type HOURLY $4.90 $4.90 $4.90 $4.90 of child care provider used or the age of the child. The highest full time market rate in the State is: GROUP 5 COUNTIES: WEEKLY $ 340 Bronx, Kings, New York, Queens, and Richmond DAILY $ 68 DAY CARE CENTER PART-DAY $ 45 HOURLY $ 18.75 AGE OF CHILD This notice is intended to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and Under 11/2 11/2-2 3-5 6-12 will publish a notice of proposed rule making in the State Register at some WEEKLY $330 $255 $233 $215 future date. The emergency rule will expire June 29, 2014. DAILY $56 $53 $47 $43 Text of rule and any required statements and analyses may be obtained from: Public Information Office, NYS Office of Children and Family Ser- PART-DAY $37 $35 $31 $29 vices, 52 Washington Street, Rensselaer, NY 12144, (518) 473-7793 HOURLY $15.75 $17.00 $15.75 $10.75 Regulatory Impact Statement Statutory authority: REGISTERED FAMILY DAY CARE Section 20(3)(d) of the Social Services Law (SSL) authorizes the Com- AGE OF CHILD missioner of the Office of Children and Family Services (Office) to establish rules, regulations and policies to carry out the Office’s powers and duties under the SSL. Under 11/2 11/2-2 3-5 6-12 Section 34(3)(f) of SSL authorizes the Commissioner of the Office to WEEKLY $175 $160 $150 $150 establish regulations for the administration of public assistance and care DAILY $33 $32 $31 $30 within the State. Section 410(1) of the SSL authorizes a social services official of a PART-DAY $22 $21 $21 $20 county, city or town to provide day care for children at public expense and HOURLY $16.00 $12.00 $13.25 $13.00 authorizes the Office to establish criteria for when such day care is to be provided. GROUP FAMILY DAY CARE Title 5-C (sections 410-u through 410-z) of the SSL governs the New AGE OF CHILD York State Child Care Block Grant (NYSCCBG). It includes provisions regarding the use of funds by social services districts, the types of families 1 1 eligible for services, the amount of local funds that must be spent on child Under 1 /2 1 /2-2 3-5 6-12 care services, and reporting requirements. The Office is required to specify WEEKLY $200 $185 $175 $175 certain NYSCCBG requirements in regulation. DAILY $38 $37 $35 $35 Section 410-x(4) of the SSL requires the Office to establish, in regulation, the applicable market-related payment rates that will establish the PART-DAY $25 $25 $23 $23 ceilings for State and federal reimbursement for payments made under the HOURLY $18.75 $16.00 $13.25 $14.00 New York State Child Care Block Grant. Federal statute, 42 U.S.C.A. § 9858-c(c)(4)(A), and federal regulation, (Group 5 Counties) 45 CFR 98.43(a), require that the State establish payment rates for

5 Rule Making Activities NYS Register/April 16, 2014 federally-funded child care subsidies that are sufficient to ensure such Regulatory Flexibility Analysis equal access to care that is provided to children whose parents/caretakers 1. Effect on small businesses and local governments: are not eligible to receive assistance under federal or state programs. Ad- The adjustments to the child care market rates will affect the 58 social ditionally, federal regulation 45 CFR 98.43(b)(2) requires that payment services districts. There is a potential effect on over 20,000 licensed and rates be based on a local market survey conducted no earlier than two registered child care providers and an estimated 46,000 informal providers years prior to the effective date of the approved State plan for the Child that may provide child care services to families receiving a child care Care and Development Fund. subsidy. 2. Legislative objectives: 2. Compliance requirements: The legislative intent of the child care subsidy program is to assist low Social services districts will be required to make payments for subsi- income families in meeting their child care costs in programs that provide dized child care services based on the actual cost of care up to the ap- for the health and safety of their children. The legislative intent is to have plicable market rates. Social services districts will need to review cases to child care subsidy payment rates that reflect market conditions and that determine whether the payments reflect the actual cost of care up to ap- are adequate to enable subsidized families to access child care services plicable market rates. Payment adjustments will have to be made, as comparable to other families not in receipt of a child care subsidy. appropriate. The regulations support the legislative objectives underlying Sections 3. Professional Services: 332-a, 334, 335 and 410 and Title 5-C of the SSL to provide child care Neither social services districts, nor child care providers, should have to services to public assistance recipients and low income families when nec- hire additional professional staff in order to implement these regulations. essary to promote self-sufficiency and protect children. In addition, the 4. Compliance costs: regulations provide social services districts with greater local flexibility to Under section 410-v(2) of the Social Services Law, the State is provide child care services in the manner that best meets the needs of their responsible for reimbursing social services districts for 75 percent (75%) local communities. of the costs of providing subsidized child care services to public assistance 3. Needs and benefits: recipients; social services districts are responsible for the other 25 percent The State is required under the Federal Child Care and Development (25%) of such costs. In addition, the State is responsible for reimbursing Fund to adjust child care payment rates with each new State Plan based on social services districts for 100 percent (100%) of the costs of providing a current survey of providers. The current State Plan covers the period child care services to other eligible low-income families. The State October 1, 2013 through September 30, 2015. A current survey of provid- reimbursement for these child care services is made from the State and/or ers was conducted from February to July of 2013. These regulations are federal funds allocated to the New York State Child Care Block Grant, needed to adjust existing rates that were established based on a survey and is limited on an annual basis to each district’s State Child Care Block done in 2011. Adjustments to the child care market rates reflect both Grant allocation for that year. increases and decreases in the five groupings of counties. Under the State Budget for SFY 2013-14, social services districts Decreases in the child care market rates reflect the market place and received their allocations of $739,036,409 in federal and State funds under provide comparable access for those families in receipt of a child care the New York State Child Care Block Grant. Social services districts have subsidy to those families that do not receive a child care subsidy, as the option to transfer a portion of their Flexible Fund for Family Services required by federal and State laws. allocations to the New York State Child Care Block Grant to supplement 4. Costs: their Block Grant allocations. Under section 410-v(2) of the SSL, the State is responsible for reimburs- Social services districts will be required to provide an enhanced market ing social services districts for 75 percent (75%) of the costs of providing rate, on behalf of parents for subsidized child care services, to legally- subsidized child care services to public assistance recipients; and social exempt family child care and in-home child providers who have completed services districts are responsible for the other 25 percent (25%) of such ten hours of training annually, as approved by the legally-exempt caregiver costs. In addition, the State is responsible for reimbursing social services enrollment agency. Such an enhanced rate will be at least seventy percent districts for 100 percent (100%) of the costs of providing child care ser- (70%) of the family child care rate. Social services districts have the op- vices to other eligible low-income families. The State reimbursement for tion to pay up to seventy-five percent (75%) of the family child care rate these child care services is made from the State and/or federal funds al- as the enhanced market rate, if the social services district selects this op- located to the New York State Child Care Block Grant, and is limited on tion in its Children and Family Services Plan. an annual basis to each social services district’s New York State Child 5. Economic and technological feasibility: Care Block Grant allocation for that year. The child care providers and social services districts affected by the Under the State Budget for SFY 2013-2014, social services districts regulations have the economic and technological ability to comply with received their allocations of $739,036,409 in federal and State funds under the regulations. the New York State Child Care Block Grant. Social services districts have 6. Minimizing adverse impact: the option to transfer a portion of their Flexible Fund for Family Services The market rates were developed in accordance with federal guidelines allocations to the New York State Child Care Block Grant to supplement for conducting a survey of child care providers and with standard statisti- their Block Grant allocations. In addition, social services districts may use cal methodology to minimize adverse impact. The Office applied standard block grant funds to serve the optional category of eligible individuals set statistical methods to choose a sample of 4,474 licensed and registered forth in these regulations. Social services districts may also use block child care providers so that the survey was representative throughout the grant funds allocated to them to increase the enhanced rate from 70 percent State. The rates were analyzed to establish the market rates at the 69th (70%) up to 75 percent (75%), if social services districts select this option. percentile of the amounts charged. The market rates are clustered into five 5. Local government mandates: distinct groupings of counties based on similarities in rates among the Social services districts will be required to make payments for subsi- counties in each group. As a result, the rates established for counties are dized child care services based on the actual cost of care up to the ap- based on the actual prices for care that were reported in the survey within plicable market rates. Social services districts will need to review cases to the counties. Adjustments to the child care market rates reflect the market determine whether the payments reflect the actual cost of care up to ap- place and provide access comparable to those families not receiving a plicable market rates. Payment adjustments will have to be made, as child care subsidy. appropriate. Adjustments to the child care market rates reflect both increases and 6. Paperwork: decreases in the five groupings of counties. Decreases in the child care Social services districts will need to process any required payment market rates reflect the market place and provide comparable access for adjustments after conducting the necessary case reviews. families receiving a child care subsidy to those families not receiving a 7. Duplication: child care subsidy, as required by federal and State laws. Increases in the The new requirements do not duplicate any existing State or federal rates will enable social services districts to provide temporary assistance requirements. recipients and low-income families receiving subsidized child care ser- 8. Federal standards: vices with access to those child care providers who charge more than the The regulations are consistent with applicable federal regulations. 45 previous market rates. CFR 98.43(a), (b)(2) and (b)(3) require that the State establish payment The market rates for legally-exempt family child care and in-home child rates that are sufficient to ensure equal access to comparable care received care were established based on a 65 percent (65%) differential applied to by unsubsidized families, based on a survey of providers, and consistent the market rates established for family day care. This differential reflects with the parental choice provisions in 45 CFR 98.30. the higher costs associated with meeting the higher regulatory standards to 9. Compliance schedule: become a registered family day care provider. The enhanced market rate These provisions must be implemented effective on April 1, 2014. for legally-exempt family and in-home child care providers is based on a 10. Alternative approaches: 70 percent (70%) differential applied to the child care market rates No alternative approaches were considered because federal regulation established for registered family day care. The 70 percent (70%) reflects requires that payment rates be based on a local market rate survey. an incentive to legally exempt providers to pursue a minimum of ten hours

6 NYS Register/April 16, 2014 Rule Making Activities of approved training. Additionally, the regulation allows local social ser- the counties. Adjustments to the child care market rates reflect the market vices districts, through their Child and Family Services Plans, to increase place and provide access comparable to those families not receiving a the enhanced market rate up to 75 percent (75%) of the applicable child care subsidy. registered family day care market rate. Adjustments to the child care market rates reflect both increases and The regulations recognize that there may be differences in the needs decreases in the five groupings of counties. Decreases in the child care among social services districts. To the extent allowed by statute, the market rates reflect the market place and provide comparable access for regulations provide social services districts with flexibility in designing families receiving a child care subsidy to those families not receiving a their child care subsidy programs in a manner that will best meet the needs child care subsidy, as required by federal and State laws. Increases in the of their communities. rates enable social services districts to provide temporary assistance 7. Small business and local government participation: recipients and low-income families receiving subsidized child care ser- In accordance with federal regulatory requirements, OCFS conducted a vices with access to those child care providers who charge more than the telephone survey of a sample of regulated providers. Prior to conducting previous market rates. the telephone survey, a letter was sent to all regulated child care providers The market rates for legally-exempt family child care and in-home child to inform them that they might be included among the sample of providers care were established based on a 65 percent (65%) differential applied to called to participate in the market rate survey. A copy of the questions was the market rates established for family day care. This differential reflects also sent so that providers could prepare responses. A market research the higher costs associated with meeting the higher regulatory standards to firm conducted the telephone survey in English and in Spanish, as needed, become a registered family day care provider. The enhanced market rate and had the resources available to assist providers in other languages, if for legally-exempt family and in-home child care providers is based on a needed as well. Rate data was collected from 4,474 providers and that in- 70 percent (70%) differential applied to the child care market rates formation formed the basis for the updated market rates. established for registered family day care. The 70 percent (70%) differential reflects an incentive to legally exempt providers to pursue a min- Rural Area Flexibility Analysis imum of ten hours of approved training. Additionally, the regulation al- 1. Types and estimated numbers of rural areas: lows local social services districts, through their Child and Family Services The regulations will affect the 44 social services districts located in ru- Plans, to increase the enhanced market rate up to 75 percent (75%) of the ral areas of the State and the child care providers located in those social applicable registered family day care market rate. services districts. The regulations recognize that there may be differences in the needs 2. Reporting, recordkeeping, and other compliance requirements and among social services districts. To the extent allowed by statute, the professional services: regulations provide social services districts with flexibility in designing The regulations will not result in any new reporting or recordkeeping their child care subsidy programs in a manner that will best meet the needs requirements for social services districts. of their communities. Social services districts will be required to make payments for subsi- 5. Rural area participation: dized child care services based on the actual cost of care up to the new Federal regulation 45 CFR 98.43(b)(2) requires that payment rates be market rates. Social services districts will need to review cases to based on a local market survey conducted no earlier than two years prior determine if the payments reflect the actual cost of care up to the appropri- to the effective date of the approved State plan for the Child Care and ate market rate. Neither social services districts, nor child care providers, Development Fund. In accordance with the federal regulatory require- should have to hire additional professional staff in order to implement ments, OCFS conducted a telephone survey of a sample of regulated these regulations. providers. The sample drawn was representative of the regions across the Social services districts will be required to provide an enhanced market State and, therefore, providers located in rural areas were appropriately rate, on behalf of parents for subsidized child care services, to legally- represented in the survey. Prior to conducting the telephone survey, a let- exempt family child care and in-home child providers who have completed ter was sent to all regulated child care providers to inform them that they ten hours of training annually, as approved by the legally-exempt caregiver might be included among the sample of providers called to participate in enrollment agency. Such an enhanced rate will be at least seventy percent the market rate survey. A copy of the questions was also sent so that (70%) of the family child care rate. Social services districts do have the providers could prepare responses. A market research firm conducted the option to pay up to seventy five percent (75%) of the family child care rate telephone survey in English and in Spanish, as needed, and had resources as the enhanced market rate, if the social services district selects this op- available to assist providers in other languages. Rate data was collected tion in its Children and Family Services Plan. from 4,474 providers and that information formed the basis for the updated 3. Costs: market rates. Under the State Budget for SFY 2013-2014, social services districts Job Impact Statement received their allocations of $739,036,409 in federal and State funds under Section 201-a of the State Administrative Procedure Act requires a job the New York State Child Care Block Grant. Social services districts have impact statement to be filed if proposed regulations will have an adverse the option to transfer a portion of their Flexible Fund for Family Services impact on jobs and employment opportunities in the State. allocations to the New York State Child Care Block Grant to supplement Adjustments to the child care market rates reflect both increases and their New York State Child Care Block Grant allocations. decreases. Decreases in the child care market rates reflect the market place Under section 410-v(2) of the Social Services Law, the State is and OCFS believes that they are not substantial enough to cause the loss responsible for reimbursing social services districts for 75 percent (75%) of jobs in child care programs. of the costs of providing subsidized child care services to public assistance recipients; social services districts are responsible for the other 25 percent (25%) of such costs. In addition, the State is responsible for reimbursing social services districts for 100 percent (100%) of the costs of providing Education Department child care services to other eligible low-income families. The State reimbursement for these child care services is made from the State and/or federal funds allocated to the State Child Care Block Grant, and is limited on an annual basis to each social services district’s State Child Care Block EMERGENCY Grant allocation for that year. RULE MAKING In addition, social services districts may use block grant funds to serve the optional category of eligible individuals set forth in these regulations. Interpretation and Translation Services for Limited English Social services districts may also use block grant funds allocated to them Proficient (LEP) Individuals by Mail Order Pharmacies to increase the enhanced rate from 70 percent (70%) up to 75 percent (75%), if social services districts select this option in its Children and I.D. No. EDU-11-14-00002-E Family Services Plan. Filing No. 260 4. Minimizing adverse impact: The market rates were developed in accordance with federal guidelines Filing Date: 2014-03-28 for conducting a survey of child care providers and with standard statisti- Effective Date: 2014-03-30 cal methodology to minimize adverse impact. The Office applied standard statistical methods to choose a sample of 4,474 licensed and registered PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- child care providers so that the survey was representative throughout the cedure Act, NOTICE is hereby given of the following action: State. The rates were analyzed to establish the market rates at the 69th percentile of the amounts charged. The market rates are clustered into five Action taken: Amendment of section 63.11 of Title 8 NYCRR. distinct groupings of counties based on similarities in rates among the Statutory authority: Education Law, sections 207 (not subdivided), 6504 counties in each group. As a result, the rates established for counties are (not subdivided), 6507(2)(a), 6810(1) and 6829(4); and L. 2012, ch. 57, based on the actual prices for care that were reported in the survey within part V

7 Rule Making Activities NYS Register/April 16, 2014

Finding of necessity for emergency rule: Preservation of public health 3. Paragraph (1) of subdivision (c) of section 63.11 of the Regulations and general welfare. of the Commissioner of Education is amended, effective March 30, 2014, Specific reasons underlying the finding of necessity: The purpose of the as follows: proposed amendment is to implement Education Law section 6829(4), as (1) In accordance with Education Law section 6829(3), each covered added by Section 3 of Part V of Chapter 57 of the Laws of 2012, which pharmacy shall conspicuously post a notice to inform LEP individuals of establishes interpretation and translation requirements for all mail order their rights to free, competent oral interpretation services and translation pharmacies conducting business in New York State. The proposed amend- services. Such notice shall include the following statement in English and ment implements the provisions of section 6829(4) of the Education Law in each of the pharmacy primary languages: ‘‘Point to your language. that, effective March 30, 2014, requires all mail order pharmacies sending Language assistance will be provided at no cost to you.’’ With each initial prescriptions to individuals in New York State to provide interpretation transaction with patients seeking mail order services, mail order pharma- and translation services for Limited English Proficient (LEP) individuals. cies shall provide printed materials in English and in each of the pharmacy It also subjects mail order pharmacies to the same interpretation and primary languages, explaining the availability of competent oral interpre- translation services requirements as are now required for covered pharma- tation services and translation services. In addition, mail order pharmacies within the state. The information for which competent oral interpreta- cies that are nonresident establishments shall provide any required infor- tion and translation services shall be provided will be prescription medica- mation pursuant to section 63.8(b)(6) of this Part in English and in each tion labels, warning labels and other written materials. of the pharmacy primary languages. Because the Board of Regents meets at fixed intervals, the earliest the This notice is intended to serve only as a notice of emergency adoption. proposed amendment can be presented for adoption as a permanent rule, This agency intends to adopt the provisions of this emergency rule as a after expiration of the required 45-day public comment period provided permanent rule, having previously submitted to the Department of State a for in State Administrative Procedure Act (SAPA) section 202(1) and (5), notice of proposed rule making, I.D. No. EDU-11-14-00002-P, Issue of would be the May 19-20, 2014 Regents meeting. Furthermore, pursuant to March 19, 2014. The emergency rule will expire June 25, 2014. SAPA section 203(1), the earliest effective date of the proposed amend- Text of rule and any required statements and analyses may be obtained ment, if adopted at the May meeting, would be June 4, 2014, the date a from: Kirti Goswami, State Education Department, Office of Counsel, Notice of Adoption would be published in the State Register. However, State Education Building, Room 148, 89 Washington Ave., Albany, NY the provisions of Education Law section 6829(4) become effective on 12234, (518) 474-6400, email: [email protected] March 30, 2014. Emergency action is necessary for the preservation of the public health Regulatory Impact Statement and general welfare in order to enable the State Education Department to 1. STATUTORY AUTHORITY: immediately establish requirements to timely implement Education Law Section 207 of the Education Law grants general rule-making authority section 6829(4), as added by Section 3 of Part V of Chapter 57 of the to the Board of Regents to carry into effect the laws and policies of the Laws of 2012, so that LEP individuals can receive competent oral inter- State relating to education. pretation services and translation services from the mail order pharmacies Section 6504 of the Education Law authorizes the Board of Regents to that fill their prescriptions. supervise the admission to and regulation of the practice of the professions. It is anticipated that the proposed amendment will be presented for Subparagraph (a) of subdivision (2) of section 6507 of the Education adoption as a permanent rule at a subsequent Regents meeting, after publi- Law authorizes the Commissioner to promulgate regulations in administer- cation of the proposed amendment in the State Register and expiration of ing the admission to and the practice of the professions. the 45-day public comment period prescribed by the State Administrative Subdivision (1) of section 6810 of the Education Law, as amended by Procedure Act. section 2 of Part V of Chapter 57 of the Laws of 2012, provides that all prescription drug labels shall conform to rules and regulations as Subject: Interpretation and translation services for Limited English promulgated by the Commissioner pursuant to section 6829 of the Educa- Proficient (LEP) individuals by mail order pharmacies. tion Law. Purpose: To implement section 6829(4) of the Education Law, as added Subdivision (4) of section 6829 of the Education Law, as added by sec- by part V of chapter 57 of the Laws of 2012. tion 3 of Part V of Chapter 57 of the Laws of 2012, requires the Commis- Text of emergency rule: 1. Paragraph (7) of subdivision (a) of section sioner, in consultation with the Commissioner of the Department of Health 63.11 of the Regulations of the Commissioner of Education is added, ef- (DOH), to promulgate regulations, effective March 30, 2014, requiring all fective March 30, 2014, to read as follows: mail order pharmacies conducting business in New York State to provide (7) Mail order pharmacy shall mean a pharmacy that dispenses most free, competent oral interpretation services and translation services to of its prescriptions through the United States postal service or other persons filling a prescription through such mail order pharmacies whom delivery system. are identified as Limited English Proficient (LEP) individuals. Specifi- 2. Subdivision (b) of section 63.11 of the Regulations of the Commis- cally, Education Law § 6829(4) requires the regulations to address the sioner of Education is amended, effective March 30, 2014, as follows: concerns of affected stakeholders and reflect the findings of a thorough (b) Provision of competent oral interpretation services and translation analysis of issues including: (a) how persons shall be identified as LEP services. Except as otherwise provided in subdivision (e) of this section: individuals, in light of the manner by which prescriptions are currently (1) For purposes of counseling an individual about his or her pre- received by mail order pharmacies; (b) which languages shall be consid- scription medications or when soliciting information necessary to maintain ered; (c) the manner and circumstances in which competent oral interpre- a patient medication profile, each covered pharmacy and mail order phar- tation services and translation services shall be provided; (d) the informa- macy shall provide free, competent oral interpretation services and translation for which competent oral interpretation services and translation tion services in such individual’s preferred pharmacy primary language to services shall be provided; (e) anticipated utilization, available resources, each LEP individual requesting such services or when filling a prescrip- and cost considerations; and (f) standards for monitoring compliance with tion that indicates that the individual is limited English proficient at such the regulations and ensuring the delivery of quality competent oral inter- covered pharmacy or mail order pharmacy, unless the LEP individual is pretation services and translation services. offered and refuses such services. 2. LEGISLATIVE OBJECTIVES: (2) With respect to prescription medication labels, warning labels The proposed amendment carries out the intent of the aforementioned and other written materials, each covered pharmacy and mail order phar- statutes, particularly section 3 of the Part V of Chapter 57 of the Laws of macy shall provide free, competent oral interpretation services and transla- 2012 that amended Article 137 of the Education Law by adding a new section services to each LEP individual filling a prescription at such covered tion 6829, which, inter alia, requires mail order pharmacies sending pharmacy or mail order pharmacy in such individual’s preferred pharmacy prescriptions to individuals in New York State to provide interpretation primary language, unless the LEP individual is offered and refuses such and translation services to LEP individuals. The proposed amendment services or the medication labels, warning labels and other written materi- subjects mail order pharmacies to the same interpretation and translation als have already been translated into the language spoken by the LEP requirements that have been required for covered pharmacies within New individual. York State since 2013. Specifically, the proposed amendment requires (3) Translation and competent oral interpretation shall be provided in that with each initial transaction with patients seeking mail order pharmacy the preferred pharmacy primary language of each LEP individual, services, in addition to English, mail order pharmacies provide printed provided that no covered pharmacy or mail order pharmacy shall be materials in Chinese, Italian, Russian and Spanish, explaining the avail- required to provide translation or competent oral interpretation of more ability of competent oral interpretation services and translation services. than seven languages. Persons will be identified as LEP individuals when they request such oral (4) The services required by this subdivision may be provided by a interpretation services and translation services or when such mail order staff member of the covered pharmacy or mail order pharmacy or a third- pharmacy fills a prescription that indicates that the individual is a LEP party contractor. Such services shall be provided on an immediate basis individual. The manner and circumstances in which competent oral inter- but need not be provided in-person or face-to-face. pretation services and translation services will be provided is by a staff

8 NYS Register/April 16, 2014 Rule Making Activities member of the mail order pharmacy or third-party contractor and services ments that have been required for covered pharmacies within New York will be provided on an immediate basis but need not be provided in-person State since 2013. Within this context, there were no significant alterna- or face-to-face. The information for which competent oral interpretation tives to the proposed amendment and none where considered. and translation services shall be provided will be prescription medication 9. FEDERAL STANDARDS: labels, warning labels and other written materials. With respect to Since, there are no applicable federal standards for the provision of in- anticipated utilization, available resources, and cost considerations, based terpretation and translation services to LEP individuals by mail order upon experience with the existing requirements for translation services in pharmacies, the proposed amendment does not exceed any minimum the New York City metropolitan area, the proposed requirements should federal standards for the same or similar subject areas. prove to be neither costly nor logistically difficult for mail order 10. COMPLIANCE SCHEDULE: pharmacies. Additionally, regarding standards for monitoring compliance The proposed amendment is necessary to conform the Regulations of with the regulations and ensuring the delivery of quality competent oral the Commissioner of Education to Section 3 of Part V of Chapter 57 of the interpretation services and translation services, as in all such matters, Laws of 2012. Mail order pharmacies conducting business in New York complaints of non-compliance will be investigated and since out-of-state State must comply with the interpretation and translation services require- pharmacies require registration with the Department, they are also subject ments for LEP individuals on the effective date of the authorizing statute, to the Department’s professional discipline processes. March 30, 2014. It is anticipated that licensees will be able to comply with 3. NEEDS AND BENEFITS: the proposed rule by the effective date so that no additional period of time The purpose of the proposed rule is to ensure that, similar to covered will be necessary to enable regulated parties to comply. pharmacies, mail order pharmacies that conduct business in New York State provide LEP individuals with specified translation and interpretation Regulatory Flexibility Analysis services. The proposed amendment is necessary to conform the Regula- The purpose of the proposed amendment is to implement the provisions tions of the Commissioner of Education to Section 3 of Part V of Chapter of section 6829(4) of the Education Law, as added by Section 3 of Part V 57 of the Laws of 2012. of Chapter 57 of the Laws of 2012 that, effective March 30, 2014, require As required by statute, the proposed rule is also needed to establish the all mail order pharmacies sending prescriptions to individuals in New requirements for the provision of interpretation and translation services by York State to provide interpretation and translation services for Limited mail order pharmacies that send prescriptions to the LEP individuals English Proficient (“LEP”) individuals. The proposed amendment also within New York State. subjects mail order pharmacies to the same interpretation and translation 4. COSTS: services requirements as are now required for covered pharmacies within (a) Costs to State government. The proposed rule implements statutory the State. Specifically, pursuant to the proposed amendment, with each requirements and establishes standards as directed by statute, and will not initial transaction with individuals seeking mail order pharmacy services, impose any additional costs on State government beyond those imposed in addition to English, mail order pharmacies will provide printed materi- by the statutory requirements. als, in Chinese, Italian, Russian and Spanish, explaining the availability of (b) Costs to local government. There are no additional costs to local competent oral interpretation services and translation services. Persons governments. will be identified as LEP individuals when they request such oral interpre- (c) Cost to private regulated parties. The proposed rule does not impose tation services and translation services or when such mail order pharmacy any additional costs on regulated parties beyond those imposed by statute. fills a prescription that indicates that the individual is a LEP individual. (d) Cost to the regulatory agency. The proposed rule does not impose The manner and circumstances in which competent oral interpretation ser- any additional costs on the Department beyond those imposed by statute. vices and translation services will be provided is by a staff member of the 5. LOCAL GOVERNMENT MANDATES: mail order pharmacy or third-party contractor and services will be The proposed rule implements the requirements of section 6829(4) of provided on an immediate basis but need not be provided in-person or the Education Law, as added by Section 3 of Part V of Chapter 57 of the face-to-face. The information for which competent oral interpretation ser- Laws of 2012. It does not impose any program, service, duty, or responsi- vices and translation services shall be provided will be prescription bility upon local governments. medication labels, warning labels and other written materials. 6. PAPERWORK: The proposed amendment applies the same translation and interpreta- The proposed rule imposes no new reporting requirements. tion requirements to mail order pharmacies that were established for 7. DUPLICATION: covered pharmacies in 2013 and does not impose any additional costs on The proposed amendment is necessary to implement Section 3 of Part regulated parties beyond those required under the statute. Additionally, V of Chapter 57 of the Laws of 2012. There are no other State or Federal based upon experience with the existing requirements for translation ser- requirements on the subject matter of this amendment. Therefore, the vices in the New York City metropolitan area, the proposed amendment proposed amendment does not duplicate other existing State or Federal should prove to be neither costly nor logistically difficult for mail order requirements. pharmacies. 8. ALTERNATIVES: The proposed amendment will affect all mail order pharmacies regis- The 2012 New York State budget legislation included certain amend- tered by the State Education Department (Department). The Department ments to the Education Law which are commonly referred to as the SafeRx estimates that there are 5,044 registered pharmacies in New York State Law (L. 2012, c. 57, Part V). This law, which generally became effective and 535 non-resident pharmacies are also registered to ship prescriptions March 30, 2013, includes provisions to assist LEP individuals who need into New York State. The Department estimates that fewer than 50 of interpretation and translation services when filling prescriptions at covered these registered pharmacies are considered to be mail order pharmacies pharmacies. Effective May 30, 2013, the Board of Regents approved under the statutory definition and, of these pharmacies, none are small regulations affecting those covered pharmacies located within New York businesses. The proposed rule establishes translation and interpretation State. Following a series of open forums and consultations with stakehold- requirements for mail order pharmacies. It will not impose any new report- ers, the Regents accepted the recommendation that the entire State be ing, recordkeeping, or other compliance requirements, or have any adverse considered a single “region.” In accordance with the statutory require- economic impact on small businesses or local governments. Because it is ments and the analysis of census data, this determination resulted in a evident from the nature of the proposed amendment that it will not requirement that interpretation and translation services be provided in four adversely affect small businesses or local governments, no affirmative languages, in addition to English. Other regional determinations were steps were needed to ascertain that fact and none were taken. Accordingly, rejected since most led to fewer languages being covered in almost all up- a regulatory flexibility analysis for small businesses and local govern- state localities. Therefore, covered New York State pharmacies must now ments is not required, and one has not been prepared. provide competent oral interpretation services and translation services in Rural Area Flexibility Analysis Chinese, Italian, Russian and Spanish. 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: The 2012 legislation also required the Commissioner of Education, in The proposed amendment will apply to the 44 rural counties with less consultation with the Commissioner of DOH, to promulgate regulations, than 200,000 inhabitants and the 71 towns in urban counties with a popula- effective March 30, 2014, to establish translation and interpretation tion density of 150 per square mile or less. Of the 5,044 pharmacies requirements for mail order pharmacies. The proposed amendment is registered by the State Education Department (“Department”) and the 535 needed to conform the Regulations of the Commissioner of Education to non-resident registered pharmacies, the Department estimates that fewer Section 3 of Part V of Chapter 57 of the Laws of 2012. than 50 of these registered pharmacies are considered to be mail order Consideration was given to information gathered as part of the afore- pharmacies under the statutory definition. Of these mail order pharmacies, mentioned open forums and consultations with stakeholders, as well as one mail order pharmacy reports its permanent address of record is in a ru- experience with the existing interpretation and translation services require- ral county. ments for covered pharmacies, and ultimately it was decided, consistent 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE with the above rationale for covered pharmacies, that mail order pharma- REQUIREMENTS; AND PROFESSIONAL SERVICES: cies shall be subject to the same interpretation and translation require- The proposed amendment will apply to all mail order pharmacies

9 Rule Making Activities NYS Register/April 16, 2014 conducting business in New York State. The proposed amendment implements as are now required for covered pharmacies within the state. Specifi- ments the provisions of section 6829(4) of the Education Law, as added cally, with each initial transaction with individuals seeking mail order by Section 3 of Part V of Chapter 57 of the Laws of 2012 that, effective pharmacy services, in addition to English, mail order pharmacies will March 30, 2014, requires all mail order pharmacies sending prescriptions provide printed materials in Chinese, Italian, Russian and Spanish, to individuals in New York State to provide interpretation and translation explaining the availability of competent oral interpretation services and services for Limited English Proficient (LEP) individuals. It also subjects translation services. Persons will be identified as LEP individuals when mail order pharmacies to the same interpretation and translation services they request such oral interpretation services and translation services or requirements as are now required for covered pharmacies within the state. when such mail order pharmacy fills a prescription that indicates that the Specifically, with each initial transaction with individuals seeking mail or- individual is a LEP individual. The manner and circumstances in which der pharmacy services, in addition to English, mail order pharmacies will competent oral interpretation services and translation services will be provide printed materials, in Chinese, Italian, Russian and Spanish, provided is by a staff member of the mail order pharmacy or third-party explaining the availability of competent oral interpretation services and contractor and services will be provided on an immediate basis but need translation services. Persons will be identified as LEP individuals when not be provided in-person or face-to-face. The information for which they request such oral interpretation services and translation services or competent oral interpretation and translation services shall be provided when such mail order pharmacy fills a prescription that indicates that the will be prescription medication labels, warning labels and other written individual is a LEP individual. The manner and circumstances in which materials. competent oral interpretation services and translation services will be Because the proposed amendment implements specific statutory provided is by a staff member of the mail order pharmacy or third-party requirements and directives, any impact on jobs and employment op- contractor and services will be provided on an immediate basis but need portunities created by establishing translation and interpretation require- not be provided in-person or face-to-face. The information for which ments for mail order pharmacies sending prescriptions to individuals in competent oral interpretation services and translation services shall be New York State is attributable to the statutory requirement, not the provided will be prescription medication labels, warning labels and other proposed amendment, which simply establishes standards that conform to written materials. the requirements of the statute. In any event, the same translation and in- The proposed amendment will not impose any additional professional terpretation requirements were established for covered pharmacies in services requirements on entities in rural areas. 2013, and the Department is not aware that those requirements signifi- 3. COSTS: cantly affected jobs or employment opportunities in those pharmacies. The proposed amendment does not impose any additional costs on Therefore, the proposed amendment will not have a substantial adverse regulated parties beyond those required under the statute. impact on jobs and employment opportunities. Because it is evident from 4. MINIMIZING ADVERSE IMPACT: the nature of the proposed amendment that it will not affect job and In developing the proposed amendment, the Department obtained input employment opportunities, no affirmative steps were needed to ascertain from representatives of the professions of nursing, medicine, podiatry, that fact and none were taken. Accordingly, a job impact statement is not midwifery and dentistry. In addition, it held public hearings in Buffalo, required and one was not prepared. Albany, and New York City. More than 20 public advocacy groups and representatives of the retail pharmacy chains have commented on the PROPOSED RULE MAKING proposals. Further discussions were then held with representatives of the advocacy groups and of the retail pharmacy chains. The concerns of those NO HEARING(S) SCHEDULED commenting on the proposals were taken into account in modifying the original proposal, and the proposal represented in the proposed regula- Certification As a Clinical Nurse Specialist (CNS) tions was acceptable to both the advocacy groups and the chain retail pharmacies. The proposed regulations make no exception for individuals I.D. No. EDU-15-14-00003-P who live in rural areas, as the legislation did not permit such an exception. Therefore, it is not possible to establish differing compliance or reporting PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- requirements or timetables or to exempt entities in rural areas from cover- cedure Act, NOTICE is hereby given of the following proposed rule: age by the proposed amendment. Proposed Action: Amendment of sections 52.12, 64.4 and 64.8 of Title 8 5. RURAL AREAS PARTICIPATION: NYCRR. Comments on the proposed amendment were solicited from the Depart- ment of Health, statewide organizations representing parties having an Statutory authority: Education Law, sections 207 (not subdivided), interest in providing services to LEP individuals and stakeholders in 212(3), 6504 (not subdivided), 6507(2)(a), 6910(1), (2), (3), (4), (5), providing more clear direction to patients regarding their medication 6911(1) and (2); and L. 2013, ch. 364 regimens. Included in this group were representatives of the State Boards Subject: Certification as a clinical nurse specialist (CNS). of Pharmacy, Medicine, Nursing, Dentistry, Podiatry, and Midwifery, and Purpose: To implement chapter 364 of the Laws of 2013. professional associations representing the pharmacy profession, such as Text of proposed rule: 1. Paragraph (3) of subdivision (b) of section 52.12 the Pharmacists Society of the State of New York and the New York State of the Regulations of the Commissioner of Education is added, effective Council of Health System Pharmacists and the New York Chain Pharmacy September 27, 2014, to read as follows: Association. These groups have representation from rural areas. (3) Clinical nurse specialist education programs. 6. INITIAL REVIEW OF RULE (SAPA § 207): (i) Registration. A clinical nurse specialist education program is a Pursuant to State Administrative Procedure Act section 207(1)(b), the master’s degree, doctoral degree or post master’s certificate program, Department proposes that the initial review of this rule shall occur in the which prepares graduates to practice as a clinical nurse specialist as fifth calendar year after the year in which the rule is adopted, instead of in permitted by section 6911 of the Education Law. No clinical nurse special- the third calendar year. The justification for a five year review period is ist education program shall be offered in this State until such program has that the proposed amendment is necessary to implement statutory require- been registered by the department. ments in section 6829(4) of the Education Law, as added by Section 3 of (ii) Admission. A clinical nurse specialist education program spon- Part V of Chapter 57 of the Laws of 2012, and therefore the substantive sor shall ensure that each student holds a baccalaureate degree in nursing provisions of the proposed amendment cannot be repealed or modified un- and an unrestricted license and current registration as a registered profes- less there is a further statutory change. Accordingly, there is no need for a sional nurse in New York State prior to enrolling the student in any shorter review period. The State Education Department invites public preceptorship, course or other activity that includes clinical practice. comment on the proposed five year review period for this rule. Comments (iii) Curriculum. The curriculum shall include, in addition to the should be sent to the agency contact listed in item 10 of the Notice of requirements of section 52.2(c) of this Title, clinical practice education of Proposed Rule Making published herewith, and must be received within at least five hundred hours which is supervised by a clinical nurse special- 45 days of the State Register publication date of the Notice. ist, nurse practitioner or physician practicing in the specialty area of the Job Impact Statement clinical nurse specialist program. Section 6829(4) of the Education Law, as added by Section 3 of Part V (iv) Credential. Upon satisfactory completion of all components of of Chapter 57 of the Laws of 2012, establishes interpretation and transla- the registered clinical nurse specialist education program, a certificate of tion requirements for all mail order pharmacies conducting business in completion of a course of study for clinical nurse specialists shall be is- New York State. The proposed amendment implements the provisions of sued to each individual by the education program sponsor. section 6829(4) of the Education Law that, effective March 30, 2014, 2. Subdivision (b) of section 64.4 of the Regulations of the Commis- require all mail order pharmacies sending prescriptions to individuals in sioner of Education is amended, effective September 27, 2014, as follows: New York State to provide interpretation and translation services for (b) Professional study. To meet the professional education requirements Limited English Proficient (LEP) individuals. It also subjects mail order for certification as a nurse practitioner in this State, the applicant shall pharmacies to the same interpretation and translation services require- present evidence of:

10 NYS Register/April 16, 2014 Rule Making Activities

(1)…. Section 6910 of the Education Law defines requirements for certifica- (2)…. tion as a nurse practitioner and authorizes the standards for such certifica- 3. Paragraph (1) of subdivision (c) of section 64.4 of the Regulations of tion to be included in regulations promulgated by the Commissioner of the Commissioner of Education is repealed, and paragraphs (2) and (3) of Education. subdivision (c) are renumbered as paragraphs (1) and (2), respectively, ef- Subdivision (1) of section 6911 of the Education Law, as added by fective September 27, 2014. Chapter 364 of the Laws of 2013, establishes the criteria for certification 4. Subdivision (d) of section 64.4 of the Regulations of the Commis- as a clinical nurse specialist, including license and education requirements, sioner of Education is repealed, and subdivision (e) of section 64.4 is re- application filing, and certification fees. lettered as subdivision (d), effective September 27, 2014. Subdivision (2) of section 6911 of the Education Law, as added by 5. Section 64.8 of the Regulations of the Commissioner of Education is Chapter 364 of the Laws of 2013, establishes that only certified persons added, effective September 27, 2014, to read as follows: may use the title “clinical nurse specialist” and/or the designation “CNS.” § 64.8 Clinical nurse specialist certification. 2. LEGISLATIVE OBJECTIVES: (a) Requirements for certification. An applicant for certification as a The proposed rule carries out the intent of Chapter 364 of the Laws of clinical nurse specialist shall: 2013 that amended Article 139 of the Education Law by adding a new sec- (1) submit an application, together with the required fee, to the tion 6911, which establishes the criteria for certification as a clinical nurse specialist and protects the title “clinical nurse specialist” and the designa- department; tion “CNS” to ensure that only those properly educated and properly pre- (2) hold an unrestricted license and current registration to practice pared to be clinical nurse specialists hold themselves out as such. Specifi- as a registered professional nurse in New York State; and cally, the proposed rule establishes the requirements for clinical nurse (3) present evidence, satisfactory to the department, of meeting all specialist education programs, which include registration, admission, cur- applicable professional education and experience requirements for certi- riculum and credential requirements for clinical nurse specialist education fication as a clinical nurse specialist. programs offered in New York State. The proposed rule also establishes (b) Professional education and experience criteria. To meet the profes- requirements for certification as a clinical nurse specialist, which include, sional education and experience requirements for certification as a clini- but are not limited to, professional education and clinical experience cal nurse specialist in this State, the applicant shall present evidence of requirements. The proposed rule requires an applicant for certification as a having met the criteria in one of the four paragraphs below: clinical nurse specialist to submit an application, together with the required (1) completion of a clinical nurse specialist education program fee, to the Department. It further requires the applicant to be currently registered by the department; or licensed and registered in New York State and either a graduate of a clini- (2) completion of an education program determined by the depart- cal nurse specialist education program registered by the Department or ment to be equivalent to a clinical nurse specialist education program able to meet alternative criteria acceptable to the Department relating to registered by the department and current certification as a clinical nurse professional certification, education or clinical experience. specialist by a national certifying body acceptable to the department; or Finally, the proposed amendment will also repeal certain regulatory (3) holding a license or certification as a clinical nurse specialist is- provisions relating to nurse practitioner certification in section 64.4 of the sued by another state or country and meeting the substantial equivalent of Regulations of the Commissioner of Education, as those provisions no the New York State requirements for certification, as determined by the longer have any application. department; or 3. NEEDS AND BENEFITS: (4) submitting an application and the required fee for certification as The purpose of the proposed rule is to ensure that only those registered a clinical nurse specialist to the department prior to September 15, 2015 professional nurses who are properly educated and prepared to be clinical and satisfactorily meeting, as determined by the department, the criteria nurse specialists hold themselves out as such by establishing requirements set forth in subparagraph (i) or (ii) of this paragraph prior to September for clinical nurse specialist certification. The proposed rule is necessary to 15, 2017: conform the Regulations of the Commissioner to Chapter 364 of the Laws (i) completion of a master’s degree program in clinical nursing of 2013. practice, which is determined by the department to be substantially equiv- As required by statute, the proposed rule is also needed to establish the alent to the preparation provided by a registered clinical nurse specialist requirements for clinical nurse specialist education programs. education program, and completion, on or after January 1, 2011, of at 4. COSTS: least three thousand hours of clinical practice as a registered professional (a) Costs to State government: The proposed rule implements statutory nurse in a clinical nurse specialty area in a general hospital licensed pur- requirements and establishes standards as directed by statute, and will not suant to article 28 of the Public Health Law; or impose any additional costs on State government beyond those imposed (ii) current certification as a clinical nurse specialist by a national by the statutory requirements. certifying body acceptable to the department. (b) Costs to local government: There are no additional costs to local (c) Certificates. governments. (1) A clinical nurse specialist certificate issued to a registered profes- (c) Cost to private regulated parties: The proposed rule does not impose sional nurse shall reflect the nurse’s specialty area of clinical nurse any additional costs on regulated parties beyond those imposed by statute. specialist academic preparation. As required by Education Law section 6911(1)(d), those individuals seek- (2) A registered professional nurse may apply for certification as a ing certification as a clinical nurse specialist must pay a fee to the Depart- clinical nurse specialist in more than one specialty area of practice. A ment of $50 for each initial certificate authorizing clinical nurse specialist complete application and fee shall be required for each certificate. practice and a triennial registration fee of $30. Higher education institu- Text of proposed rule and any required statements and analyses may be tions that seek to register clinical nurse specialist education programs with obtained from: Kirti Goswami, State Education Department, Office of the Department, including those in rural areas, may incur costs related to Counsel, State Education Building, Room 148, 89 Washington Ave., the development and maintenance of such education programs and their Albany, NY 12234, (518) 474-6400, email: [email protected] registration. It is anticipated that such costs will be minimal because many higher education institutions are already offering courses that would or Data, views or arguments may be submitted to: Office of the Professions, could, with slight adjustments, meet the registration requirements for a Office of the Deputy Commissioner, State Education Department, State clinical nurse specialist education program, and that higher education Education Building 2M, 89 Washington Ave., Albany, NY 12234, (518) institutions should be able to use their existing staffs and resources to 486-1765, email: [email protected] revise their courses and curricula to meet the clinical nurse specialist certi- Public comment will be received until: 45 days after publication of this fication requirements. notice. (d) Cost to the regulatory agency: The proposed rule does not impose Regulatory Impact Statement any additional costs on the Department beyond those imposed by statute. 1. STATUTORY AUTHORITY: Any associated costs to the Department will be offset by the fees charged Section 207 of the Education Law grants general rule-making authority to applicants and no significant cost will result to the Department. to the Board of Regents to carry into effect the laws and policies of the 5. LOCAL GOVERNMENT MANDATES: State relating to Education. The proposed rule implements the requirements of section 6911 of the Subdivision (3) of section 212 of the Education Law authorizes the Education Law, as added by Chapter 364 of the Laws of 2013, by State Education Department (“Department”) to determine and set fees for establishing standards for individuals to be certified to practice as a clini- certifications and permits. cal nurse specialist and standards for clinical nurse specialist education Section 6504 of the Education Law authorizes the Board of Regents to programs provided by institutions of higher education, and protects the supervise the admission to and regulation of the practice of the professions. title “clinical nurse specialist” and the designation “CNS” to ensure that Paragraph (a) of subdivision (2) of section 6507 of the Education Law only those properly educated and prepared to be clinical nurse specialists authorizes the Commissioner of Education to promulgate regulations in hold themselves out as such. It does not impose any program, service, administering the admission to and the practice of the professions. duty, or responsibility upon local governments.

11 Rule Making Activities NYS Register/April 16, 2014

6. PAPERWORK: applicant to be currently licensed and registered in New York State and ei- The proposed rule imposes no new reporting or other paperwork ther a graduate of a clinical nurse specialist education program registered requirements beyond those imposed by the statute. by the Department or able to meet alternative criteria acceptable to the 7. DUPLICATION: Department relating to professional certification, education or clinical The proposed rule is necessary to implement Chapter 364 of the Laws experience. of 2013. There are no other state or federal requirements on the subject In addition, the proposed amendment will repeal certain regulatory pro- matter of this proposed rule. Therefore, the proposed rule does not visions relating to nurse practitioner certification in section 64.4 of the duplicate other existing state or federal requirements. Regulations of the Commissioner of Education, as those provisions no 8. ALTERNATIVES: longer have any application. The proposed rule is necessary to conform the Regulations of the Com- The proposed rule will not require any higher education institution to missioner of Education to Chapter 364 of the Law of 2013 and repeal offer an education program that prepares registered professional nurses to certain regulatory provisions in section 64.4 of the Regulations of the practice as clinical nurse specialists. The proposed rule will not impose Commissioner of Education, as those provisions no longer have any any reporting, recordkeeping or other requirements on higher education application. There are no significant alternatives to the proposed rule and institutions in rural areas, unless they seek to register a clinical nurse none were considered. specialist education program with the Department. Such higher education 9. FEDERAL STANDARDS: institutions will have reporting and record keeping obligations related to Since, there are no applicable federal standards for clinical nurse the development and maintenance of their clinical nurse specialist educa- specialist certification and clinical nurse specialist education programs, tion programs, as well as the registration of such programs with the the proposed rule does not exceed any minimum federal standards for the Department. same or similar subject areas. The proposed rule will not impose any additional professional services 10. COMPLIANCE SCHEDULE: requirements on entities in rural areas. The proposed rule is necessary to conform the Regulations of the Com- 3. COSTS: missioner of Education to Chapter 364 of the Laws of 2013. Registered The proposed rule will not require any registered professional nurse to professional nurses seeking certification as clinical nurse specialists from become certified as a clinical nurse specialist. With respect to registered the Department must comply with the certification requirements on the ef- professional nurses seeking certification from the Department as clinical fective date of the authorizing statute, September 27, 2014. It is anticipated nurse specialists, including those in rural areas, the proposed rule does not that registered professional nurses seeking such certification will be able impose any additional costs beyond those required by statute. As required to comply with the proposed rule by the effective date so that no additional by Education Law section 6911(1)(d), those individuals seeking certifica- period of time will be necessary to enable regulated parties to comply. tion as a clinical nurse specialist must pay a fee to the Department of $50 Regulatory Flexibility Analysis for each initial certificate authorizing clinical nurse specialist practice and The proposed rule implements the requirements of section 6911 of the a triennial registration fee of $30. Education Law, as added by Chapter 364 of the Laws of 2013, by The proposed rule will not require higher education institutions to offer establishing standards for individuals to be certified to practice as a clini- education programs that prepare registered professional nurses to practice cal nurse specialist and standards for clinical nurse specialist education as clinical nurse specialists and does not impose any costs on them. programs provided by institutions of higher education, and protects the However, higher education institutions that seek to register clinical nurse title “clinical nurse specialist” and the designation “CNS” to ensure that specialist education programs with the Department, including those in ru- only those properly educated and prepared to be clinical nurse specialists ral areas, may incur costs related to the development and maintenance of hold themselves out as such. The proposed rule will not impose any report- such education programs and their registration. It is anticipated that such ing, recordkeeping, or other compliance requirements or costs, or have an costs will be minimal because many higher education institutions are al- adverse impact, on small businesses or local governments. Because it is ready offering courses that would or could, with slight adjustments, meet the registration requirements for a clinical nurse specialist education evident from the nature of the proposed rule that it will not affect small program, and that higher education institutions should be able to use their businesses or local governments, no affirmative steps were needed to existing staffs and resources to revise their courses and curricula to meet ascertain that fact and none were taken. Accordingly, a regulatory flex- the clinical nurse specialist certification requirements. ibility analysis is not required and one has not been prepared. 4. MINIMIZING ADVERSE IMPACT: Rural Area Flexibility Analysis The proposed rule implements the clinical nurse specialist certification 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: requirements of Chapter 364. The statutory requirements do not make The proposed rule will apply to registered professional nurses, who vol- exceptions for individuals who live or work in rural areas. Nor do they untarily apply to the State Education Department (Department) for certifi- make exceptions for higher education institutions located in rural areas. cation as clinical nurse specialists and to higher education institutions that Thus, the Department has determined that the proposed rule’s require- seek to register clinical nurse specialist education programs with the ments should apply to all registered professional nurses seeking certifica- Department, including those located in the 44 rural counties with less than tion as clinical nurse specials and all higher education institutions seeking 200,000 inhabitants and the 71 towns in urban counties with a population to register clinical nurse specialist education programs with the Depart- density of 150 per square mile or less. Of the approximately 282,000 ment, regardless of geographic location, to help ensure continuing registered professional nurses who are registered to practice in New York competency across the State. The Department has also determined that State, approximately 30,100 reported their permanent address of record is uniform standards for the Department’s review of prospective registered in a rural county of the State. Additionally, advanced degree granting clinical nurse specialist education programs are necessary to ensure qual- nurse education programs are located in many, but not all, rural counties. ity clinical nurse specialist education in all parts of the State. Because of 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE the nature of the proposed rule, alternative approaches for rural areas were REQUIREMENTS; AND PROFESSIONAL SERVICES: not considered. As required by Chapter 364 of the Laws of 2013, which will become ef- 5. RURAL AREAS PARTICIPATION: fective September 27, 2014, the proposed rule establishes certification for Comments on the proposed rule were solicited from statewide organiza- clinical nurse specialists to protect the title “clinical nurse specialist” and tions representing all parties having an interest in the practice of registered the designation “CNS” by ensuring that only those properly educated and professional nursing. These organizations included the State Board for prepared to be clinical nurse specialists hold themselves out as such. The Nursing and professional associations representing the nursing profession proposed amendment to 52.12 of the Regulations of the Commissioner of and nursing educators. These groups have members who live or work or Education and addition of section 64.8 to the Regulations of the Commis- provide nursing education in rural areas. sioner of Education implement the clinical nurse specialist certification 6. INITIAL REVIEW OF RULE (SAPA § 207): requirements of Chapter 364. Pursuant to State Administrative Procedure Act section 207(1)(b), the The proposed amendment to section 52.12 of the Regulations of the State Education Department proposes that the initial review of this rule Commissioner establishes the requirements for clinical nurse specialist shall occur in the fifth calendar year after the year in which the rule is education programs. These requirements include registration, admission, adopted, instead of in the third calendar year. The justification for a five curriculum and credential requirements for clinical nurse specialist educa- year review period is that the proposed rule is necessary to implement tion programs offered in New York State. statutory requirements in section 6911 of the Education Law, as added by The proposed addition of section 64.8 to the Regulations of the Com- Chapter 364 of the Laws of 2013, and therefore the substantive provisions missioner establishes requirements for certification as a clinical nurse of the proposed rule cannot be repealed or modified unless there is a fur- specialist, which include, but are not limited to, professional education ther statutory change. Accordingly, there is no need for a shorter review and clinical experience requirements. The proposed rule requires an ap- period. The Department invites public comment on the proposed five year plicant for certification as a clinical nurse specialist to submit an applica- review period for this rule. Comments should be sent to the agency contact tion, together with the required fee, to the Department. It also requires the listed in item 10 of the Notice of Proposed Rule Making published here-

12 NYS Register/April 16, 2014 Rule Making Activities with, and must be received within 45 days of the State Register publica- Subject: Implementation of rules pertaining to gaming facility request for tion date of the Notice. application and gaming facility license application. Job Impact Statement Purpose: To facilitate a fair and transparent process for applying for a Section 6911 of the Education Law, as added by Chapter 364 of the license to operate a gaming facility. Laws of 2013, effective September 27, 2014, establishes certification for Substance of emergency rule: This addition of Part 5300 of Subtitle T of clinical nurse specialists and protects the title “clinical nurse specialist” Title 9 NYCRR will add new Sections 5300.1 through 5300.5 to allow the and the designation “CNS” to ensure that only those properly educated New York State Gaming Commission (“Commission”) to prescribe the and prepared to be clinical nurse specialists hold themselves out as such. form of the applications for a gaming facility license. The proposed amendment to section 52.12 of the Regulations of the Com- The new Part of the Gaming Commission regulations describes the form missioner and addition of section 64.8 to the Regulations of the Commis- of application for applicants seeking a gaming facility license and the in- sioner of Education implement Chapter 364 of the Laws of 2013 by formation the applicant must provide. Section 5300.1 sets forth the form establishing criteria for certification as a clinical nurse specialist, of the application including disclosure of identifying information, finance including: registration, admission, curriculum and credential requirements and capital structure of the proposed gaming facility, economic and market analysis, proposed land and design of facility space, assessment of lo- for clinical nurse specialist education programs; an application filing cal support and plans to address regional tourism, problem gambling, requirement; and license and education requirements. workforce development and resource management. Section 5300.2 The proposed amendment would also repeal certain regulatory provi- describes the scope of background information the applicant and related sions relating to nurse practitioner certification in section 64.4 of the parties must provide in three disclosure forms, the Gaming Facility Regulations of the Commissioner of Education, as those provisions no License Application Form, the Multi-Jurisdictional Personal History longer have any application. Disclosure Form and the Multi-Jurisdictional Personal History Disclosure The proposed amendment to section 52.12 of the Regulations of the Supplemental Form. Section 5300.3 describes the process by which all ap- Commissioner and addition of section 64.8 of the Regulations to the Com- plicants for a gaming facility license shall submit fingerprints as part of a missioner of Education implement specific statutory requirements and background investigation. Section 5300.4 describes the applicant’s duty to directives. Therefore, any impact on jobs and employment opportunities update its application with any updates following submission of the created by establishing certification requirements for clinical nurse application. Section 5300.5 describes the application fee and procedure specialists is attributable to the statutory requirement, not the proposed for refunding a portion of such fee in certain circumstances. amendment and rule, which simply establish standards that conform to the This notice is intended to serve only as an emergency adoption, to be requirements of the statute. valid for 90 days or less. This rule expires June 28, 2014. The proposed rule will not have a substantial adverse impact on jobs and employment opportunities. Because it is evident from the nature of Text of rule and any required statements and analyses may be obtained the proposed rule that they will have no adverse impact on jobs or employ- from: Kristen Buckley, New York State Gaming Commission, 1 Broadway ment opportunities attributable to their adoption or only a positive impact, Center, P.O. Box 7500, Schenectady, New York 12301-7500, (518) 388- no affirmative steps were needed to ascertain these facts and none were 3407, email: [email protected] taken. Accordingly, a job impact statement is not required and one was not Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural prepared. Area Flexibility Analysis and Job Impact Statement A Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not submitted, but will be published in the Register within 30 days of the rule's effective New York State Gaming date. Commission PROPOSED RULE MAKING NO HEARING(S) SCHEDULED

EMERGENCY Prohibited Substances and Out of Competition Drug Testing for RULE MAKING Harness Racing

Implementation of Rules Pertaining to Gaming Facility Request I.D. No. SGC-15-14-00005-P for Application and Gaming Facility License Application PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- I.D. No. SGC-15-14-00001-E cedure Act, NOTICE is hereby given of the following proposed rule: Filing No. 263 Proposed Action: Amendment of section 4120.17 of Title 9 NYCRR. Filing Date: 2014-03-31 Statutory authority: Racing Pari-Mutuel Wagering and Breeding Law, Effective Date: 2014-03-31 sections 103(2), 104(1), (19), 122 and 902(1) Subject: Prohibited substances and out of competition drug testing for PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- harness racing. cedure Act, NOTICE is hereby given of the following action: Purpose: To enhance the integrity and safety of standardbred horse racing. Action taken: Addition of sections 5300.1-5300.5 to Title 9 NYCRR. Text of proposed rule: Section 4120.17 of 9 NYCRR would be amended as follows: Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law, § 4120.17. Out-of-competition testing. sections 104(19), 1305(20) and 1307(2) (a) Out-of-competition collection of samples. Finding of necessity for emergency rule: Preservation of general welfare. (1) The commission may at a reasonable time on any date take a Specific reasons underlying the finding of necessity: The Commission blood, urine or other biologic sample from a horse that is on a nomination has determined that immediate adoption of these rules is necessary for the list or [(a) Any horse on the grounds of a racetrack under the jurisdiction preservation of the general welfare. On March 31, 2014, the Gaming Fa- of the commission or stabled off track grounds is subject to testing without cility Location Board, which the Commission established pursuant to sec- advance notice for blood doping, gene doping, protein and peptide-based tion 109-a of the Racing, Pari-Mutuel Wagering and Breeding Law (the drugs, including toxins and venoms, and other drugs and substances while] “PML”), will issue a Request for Applications (“RFA”) for applicants under the care or control of a trainer or owner who is licensed by the com- seeking a license to develop and operate a gaming facility in New York mission, in order to enhance the ability of the commission laboratory to State pursuant to the Upstate New York Gaming Economic Development detect or confirm the impermissible administration of a drug or other Act of 2013, as amended by Chapter 175 of the Laws of 2013 (the “Act”). substance to the horse. The Act authorizes four upstate destination gaming resorts to enhance (2) Horses to be tested may be selected at random, for cause or as economic development in upstate New York. The immediate adoption of determined by a commission judge or executive official. these rules is necessary to prescribe the form of the RFA and the informa- [(b) Horses to be tested shall be selected at the discretion of the State tion required to be submitted therewith, as required by subdivision 2 of judges or any commission representative.] section 1307 of the PML, to enable the Gaming Facility Location Board to (3) A selected horse that is not made available for sampling is ineli- carry out its statutory duties. Standard rule making procedures would gible to race for 180 days, unless the commission determines that circum- prevent the Gaming Facility Location Board from commencing the fulfill- stances unavoidably prevented the owner and trainer from making the ment of its statutory duties. horse available for sampling.

13 Rule Making Activities NYS Register/April 16, 2014

(4) If a selected horse is not involved in activities related to racing in used off-track in an accepted veterinary treatment to assist a disabled New York, then the trainer or owner may represent this to the commission horse to become healthy, without producing analgesia or potentially and the commission will not sample the horse. If the trainer makes such a enhancing the performance of the horse beyond its natural ability, representation and the managing owner has previously provided the com- provided that such use is documented in the contemporaneous veterinary mission with a means for the commission to give immediate telephonic records of the horse.[;] notification to the managing owner that the trainer made such a represen- [(3)] (iii) Any other protein- [and] or peptide[-] based agent or tation, then the commission shall transmit such notification to the manag- drug[s,] that may produce analgesia or enhance the performance of a ing owner and the eligibility of the horse shall be preserved if the manag- horse beyond its natural ability, including but not limited to toxins, [and] ing owner is able to make the horse available for immediate sampling. venoms and allosteric effectors. [Horses to be tested shall be selected from among those anticipated to (iv) The substances described in this Paragraph are prohibited compete at New York tracks within 180 days of the date of testing or regardless of any of the provisions of section 4120.2 of this Part. demand for testing.] (2) No person shall possess or use the prohibited substances (b) Sampling procedure. described in Paragraph (1) of this subdivision on the premises of any (1) Samples shall be taken under the supervision and direction of a licensed racetrack. person who is employed or designated by the commission and is qualified (3) It shall be an affirmative defense to a violation of this section that to safeguard the health and safety of the horse. A veterinarian shall col- the person used the prohibited substance only in a time, place and manner lect all blood samples. specifically permitted in writing by the commission before the administra- (2) The person who takes samples for the commission shall provide tion of such substance, for a recognized therapeutic use, and subject to identification and disclose the purpose of the sampling to the trainer or such appropriate limitations as the commission shall place on the return designated attendant of the horse. of the horse to running races. (3) The owner, trainer and/or their designees shall cooperate with [(f) The presence of any substance at any time described in paragraphs the person who takes samples for the commission by immediately assisting (1), (2) or (3) of subdivision (e) of this section is a violation of this section in the location and identification of the horse, making the horse available for which the horse may be declared ineligible to participate until the at a stall or other safe location to collect the samples and witnessing the horse has tested negative for the identified substance, and for which the taking of the samples. trainer shall be responsible pursuant to section 4120.4 of this Part.] (4) The commission, if requested and in its sole discretion, may [(g) The trainer, owner, and/or their designees and any licensed or permit the owner or trainer to present an off-track horse for sampling at a franchised racing corporation shall cooperate with the commission and the time and licensed racetrack designated by the commission. commission’s representatives and designees by:] (5) An owner or trainer does not consent to a search of the premises [(1) assisting in the immediate location and identification of the horse by making a horse available for sampling at an off-track location. selected for out-of-competition testing;] (6) The commission may arrange for the sampling of an out-of-state [(2) providing a stall or safe location to collect the samples;] horse by the racing commission or other designated person in the jurisdic- [(3) assisting in properly procuring the samples; and] tion where the horse is located. Such racing commission or other [(4) obeying any instruction necessary to accomplish the provisions designated person shall follow the relevant provisions of this rule and the of this section.] test results shall be available to the jurisdiction in which the horse is lo- [The failure or refusal to cooperate in the above by any franchisee, li- cated for its regulatory use. The commission, if requested and in its sole censee or other person shall subject the franchisee, licensee or person to discretion, may permit the owner or trainer instead to present the horse penalties, including license suspension or revocation, the imposition of a for sampling in New York State at a time and place designated by the fine and exclusion from tracks or facilities subject to the jurisdiction of the commission. commission.] (7) A commission judge or executive official [(c) The State judges or (d) Penalties any commission representative] may require any horse of a licensed trainer (1)[(h)] A[ny] horse [which is not made available for testing as or owner to be brought promptly to a racetrack under the jurisdiction of directed, including the failure to grant access on a timely basis, shall in the the commission for out-of-competition testing when: absence of acceptable mitigating circumstances,] found to be in violation (i) the commission has reasonable grounds to believe that the of this rule shall be ineligible to participate in racing until it is certain that horse might have been impermissibly administered a drug or other sub- the horse is no longer affected by the prohibited substance and for not less stance; than 180 [for one hundred twenty] days, after which the horse must qualify (ii) the commission has no other practical means to collect such in a workout satisfactory to the judges and test negative for doping agents samples without reducing the ability of the commission laboratory to and drugs. The minimum fixed period of ineligibility for a horse in viola- detect or confirm the impermissible administration of a drug or other tion of this rule shall be reduced from 180 to 30 days if the trainer had substance to a horse; and never violated this rule or similar rules in other jurisdictions and had, for (iii) the horse is stabled out-of-state but [at a site located] within a any violations of Part 4120 or similar rules in other jurisdictions, fewer radius not greater than 100 miles from such [a] New York State racetrack. than 180 days in lifetime suspensions or revocations and fewer than two The trainer is responsible to have the horse or horses available at the suspensions or revocations of 15 days or more in the preceding 24 months. designated time and location. (2) A person who is found responsible for a violation of paragraph [(d) A commission veterinarian or any licensed veterinarian authorized (1) of subdivision (c) of this section shall, in [(i) In] the absence of by the State judges or any commission representative may at any time take extraordinary mitigating circumstances, incur a minimum penalty of a 10- a urine or blood sample from a horse for out-of-competition testing.] year suspension in addition to any other penalties authorized in this (8) No person shall knowingly interfere with or obstruct a sampling. Article. [will be assessed for any violation set forth in subdivision (f).] (9) A licensed racetrack at which a horse may be located shall coop- (e) A buyer who was not aware that a horse is or may be determined in- erate fully with a person who is authorized to take samples. The person eligible under this section may void the purchase, provided that the buyer who collects samples for the commission on track may require that the does so within 10 days after receiving notice of the horse’s ineligibility. collection be done at the test barn. (f) [(j)] An application to the commission for an occupational license (c) [(e)] Prohibited substances. [are:] shall be deemed to constitute consent for access to any off-track premises (1) The presence in or administration to a horse of the following dop- on which horses owned and/or trained by the individual applicant are ing agents or drugs, in the absence of extraordinary mitigating circum- stabled. The applicant shall take any steps necessary to authorize access stances that excuse the owner and trainer from their failure to fulfill their by commission representatives to such off-track premises. duties and responsibilities, is prohibited at any time: Text of proposed rule and any required statements and analyses may be (i) Blood [blood] doping agents [including, but not limited to,]: obtained from: Kristen Buckley, New York State Gaming Commission, 1 any substance, including a protein- or peptide-based agent or drug, that is Broadway Center, P.O. Box 7500, Schenectady, New York 12301, (518) capable of abnormally enhancing the oxygenation of body tissues, includ- 388-3407, email: [email protected] ing but not limited to erythropoietin (EPO), darbepoetin (e.g., Aransep), Oxyglobin, aminoimidazole carboxamide ribonucleotide (“AICAR”), Data, views or arguments may be submitted to: Same as above. Myo-Inositol Trispyrophosphate (“ITTP”) and Hemopure[, Aransep, or Public comment will be received until: 45 days after publication of this any substance that abnormally enhances the oxygenation of body tissues;]. notice. [(2)] (ii) Gene [gene] doping agents: [or the nontherapeutic use of] Regulatory Impact Statement a gene[s], genetic element[s], [and/] or cell[s] that alters the expression of 1. Statutory authority: The New York State Gaming Commission genes for normal physiological functions and that may [have the capacity (“Commission”) is authorized to promulgate these rules pursuant to Rac- to enhance athletic performance or] produce analgesia or enhance the per- ing Pari-Mutuel Wagering and Breeding Law (“Racing Law”) Sections formance of a horse beyond its natural ability, including but not limited to 103(2), 104(1), (19), 122, and 902(1). Under Section 103(2), the Commis- thymosin beta-4 (“TB500”). This shall not apply to such agents when sion is responsible to supervise, regulate, and administer all horse racing

14 NYS Register/April 16, 2014 Rule Making Activities and pari-mutuel wagering activities in the State. Subdivision (1) of Sec- mission in that jurisdiction. In the rare instances when another racing com- tion 104 confers upon the Commission general jurisdiction over all such mission or a designee of the Commission cannot readily collect a sample gaming activities within the State and over the corporations, associations, from an out-of-state racehorse, new paragraph (a)(7) authorizes the Com- and persons engaged in such activities. Subdivision (19) of Section 104 mission to require that the horse be shipped (no more than 100 miles) to a authorizes the Commission to promulgate any rules and regulations that it New York racetrack for sampling. The amendment explicitly states the deems necessary to carry out its responsibilities. Section 122 continues Commission policy to order this only if there is reasonable cause to believe previous rules and regulations of the legacy New York State Racing and such racehorse might have been doped. Although the delay in waiting for Wagering Board, subject to the authority of the Commission to modify or a racehorse to arrive in New York is disadvantageous for the Commission, abrogate such rules and regulations. Section 902(1) prescribes that a state this authority will continue to help prevent out-of-state racehorses from college within New York with an approved equine science program shall being insulated from OCT. conduct equine drug testing to assure public confidence in and to continue If a horse is made available on track, then new paragraph (b)(9) will al- the high degree of integrity at pari-mutuel race meetings, and authorizes low the person who takes samples to require that the racehorse be brought the Commission to promulgate any rules and regulations necessary to to a central area, the test barn. This minimizes the burden on racetracks, implement such equine drug testing program and to impose substantial which are required to facilitate the sampling process, when the Commis- administrative penalties for racing a drugged horse. sion is unable to deploy its inspectors and veterinarians throughout the 2. Legislative objectives: To enable the Commission to preserve the in- racetrack. The amendments to subdivision (c) will improve the description of sub- tegrity of pari-mutuel racing while generating reasonable revenue for the stances that are prohibited. The general prohibition of peptide- or protein- support of government. based substances is limited, in paragraph (c)(1)(iii), to those that produce 3. Needs and benefits: This rule making proposes amendments to the analgesia or enhance a horse’s performance beyond its natural abilities. Commission’s harness racing out-of-competition testing (“OCT”) rule to This removes an apparent conflict with certain provisions in other Com- clarify the existing rule, incorporate enforcement protocols of the Com- mission rules. In paragraph (c)(1)(i) of the rule, the prohibition of blood mission, and make it more uniform with the Commission’s OCT rule for doping agents is broadened to include any substances that can abnormally thoroughbred racing. The proposal would also reorganize the existing rule oxygenate bodily tissues. Paragraph (c)(1)(ii) expressly permits the use of into new subdivisions. gene-doping therapies for treating disabled racehorses when it cannot pro- The Commission’s OCT program requires New York licensed owners duce analgesia or enhance a horse’s performance beyond its natural and trainers to allow their racehorses to be sampled on request. The pri- abilities. Such therapies may be used off-track without advance permis- mary reason for OCT is to detect the administration of doping agents that sion, and under paragraph (c)(3), any substance that an owner, trainer, or unnaturally change the physiology of the horse, can be administered many veterinarian is concerned might be prohibited by section 4120.17(c) can weeks or even months before racing in New York, powerfully affect the be used at any location by first getting the written permission of the Com- speed of horses as they are about race, are not required to provide mission (e.g., presiding judge). veterinary care, and cannot be detected in samples collected from a race- Paragraph (d)(1) sets forth the period of the ineligibility of a racehorse horse on race day. Out-of-competition testing also makes it possible to after testing positive for prohibited substances. There will be a fixed pe- detect “drug cocktails.” A drug cocktail is the administration of various riod of ineligibility, which depends in part on the trainer’s record for drugs in sub-clinical doses, thus creating laboratory results in race-day equine drugging, and a period of ineligibility equivalent to a substance’s samples that are consistent with being administered too long before race withdrawal period. day to affect the race but which are efficacious because of drug Finally, new subdivision (e) allows a buyer who has learned after the interactions. Such purposes for OCT are set forth in paragraph (a)(1) of purchase that the racehorse was ineligible to race 10 days to void the sale. the rule. 4. Costs: Out-of-competition testing is needed because the Commission does not (a) Costs to regulated parties for the implementation of and continuing require that the racehorses be stabled on the grounds of the New York compliance with the rule: These amendments will not add any new racetracks. Rather, the owners and trainers who are in the business of rac- mandated costs to the existing rules, and the cost of making a horse avail- ing their horses in New York harness races may do so no matter where able for sampling may be reduced in some instances. The new rule gives they stable and train their harness horses or engage in other horse racing the owner or trainer the option to ask for permission to produce the horse activities in preparation for racing in New York. The only requirement for at a nearby racetrack, including one located in the horse’s home state, and such owners and trainers is that they must have an occupational license sets forth the limited circumstances in which the Commission would direct granted to them by the Commission. Such persons are engaged in New a person to bring a horse, stabled out-of-state but within 100 miles of a York racing activities when their racehorses are not yet entered to race, as New York racetrack, to such racetrack for sampling. this generally occurs only a few days before race day, and regardless of (b) Costs to the agency, the state and local governments for the where their racehorses are located. implementation and continuation of the rule: None. The amendments will The existing OCT testing rule provides that the Commission will not not add any new costs. The new rule will potentially reduce administrative select racehorses for testing that are not anticipated to race in New York costs by encouraging horsepersons to bring their horses to a licensed rac- for 180 days. Paragraphs (a)(1) and (a)(4) of the rule clarify that this means etrack’s test barn for sampling. The cost of samples taken by sister states the Commission may select any horse that is under the care or control of a from out-of-state horses will remain constant, as the owner or trainer will New York licensed owner or trainer, but that such licensees may excuse make the horse available during normal training or racing hours when from sampling a racehorse that is not involved in activities related to rac- staff is available to collect samples, and the cost of collections by one state ing in New York. Pursuant to new paragraph (a)(3) of the rule, such horse will be offset by collections obtained for it by its sister state. The cost to would then not be permitted to race in New York for at least 180 days. An comply for a horseperson to transport a horse to New York from a nearby innocent owner or trainer would have no reason to object to sampling. state could be reduced, although the Commission has never required such This period of exclusion serves to deter guilty parties from misrepresent- transport because of the general availability of out-of-state surrogates that ing their intentions, solely to evade sampling, by imposing a substantial collect samples much more promptly for the Commission. Both states will period of ineligibility before such horse may race in New York. New be able to use a single laboratory test to enforce their own state rules, paragraph (a)(4) also provides a safeguard for a racehorse owner whose which will cost less than the normal practice of each state conducting its trainer refuses to permit a sampling. The Commission would attempt to own laboratory tests. The samples require separate shipping whether col- reach the owner by telephone, if it has the contact information, so the lected in or out of state. owner could countermand the trainer and cause the horse to be sampled. There will be no costs to local government because the Commission is Subdivisions (a) and (b) of the rule have been revised to set forth or the only governmental entity authorized to regulate pari-mutuel harness clarify a number of the Commission’s existing OCT protocols and racing. procedures that ensure that OCT does not unreasonably burden owners (c) The information, including the source(s) of such information and and trainers. Paragraph (b)(2) provides that persons collecting samples the methodology upon which the cost analysis is based: The Commission will present their credentials and disclose the purpose of the sampling. relied on its experience in collecting samples for collaborating states and Paragraph (b)(4) states that the owner and trainer may request permission on the studies and/or advice provided by the Director of the New York to bring an off-track horse to a licensed racetrack for its sample to be State Drug Testing and Research Program, Dr. George A. Maylin. taken. Paragraph (b)(5) states that when an owner or trainer allows a horse 5. Local government mandates: None. The Commission is the only to be sampled at an off-track location, this does not constitute consent to a governmental entity authorized to regulate pari-mutuel harness racing search of the premises. Paragraph (a)(1) states that samples shall be col- activities. lected at a reasonable time, which is obviously necessary if the Commis- 6. Paperwork: There will be no additional paperwork. The Commission sion is going to obtain the assistance of the racehorse’s caretaker to locate will utilize the existing documents for its chain-of-custody protocol and and identify the horse, provide a safe location, and witness the sampling. memorandums of understanding with other state racing commissions, as When a horse is located out-of-state, paragraph (b)(6) states that the Com- well as administrative adjudication to determine whether a violation has mission will have samples collected by a designee or the state racing com- occurred and what sanctions may be appropriate.

15 Rule Making Activities NYS Register/April 16, 2014

7. Duplication: None. submit an application in response to the RFA and to enable the Board to 8. Alternatives. The Commission considered as an alternative a require- have hearing procedures in place before any potential public hearing ment that the trainer of a horse must be notified by certified mail and re- occurs. Standard rule making procedures would prevent the Board from spond to such notice before any selected horse could be sampled by the commencing the fulfillment of its statutory duties. Commission. This alternative was rejected because it would involve sig- Subject: Rules pertaining to gaming facility request for application and re- nificant delay and could readily be manipulated by a guilty party to delay lated fees and related hearings. or even preclude any attempt by the Commission to collect a timely sample Purpose: To facilitate a fair and transparent process for applying for a from a racehorse. The Commission also considered a suggestion by a rep- license to operate a gaming facility. resentative of a horseperson’s group that the Commission require all off- Text of emergency rule: Subtitle R of Title 9, Executive, of the NYCRR track stables in New York to be licensed and subject to inspection by the is amended to name such Subtitle “Gaming Facility Location Board” and Commission. This alternative was rejected because the administrative add new Parts 600 and 601 as follows: costs would be prohibitive and the alternative was far more intrusive than PART 600 necessary to address the concerns that underlie the out-of-competition PUBLIC HEARINGS program. § 600.1. Public Hearings. 9. Federal standards: None. (a) If the New York Gaming Facility Location Board conducts a public 10. Compliance schedule: The Commission believes that regulated persons will be able to achieve compliance with the rule upon adoption of hearing, it shall cause the New York Stare Gaming Commission to post a this rule. notice of such hearing on the Gaming Commission’s website a reasonable period of time before such meeting. Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job (b) Any member of the New York Gaming Facility Location Board may Impact Statement A regulatory flexibility analysis for small business and local govern- preside over a public hearing as chair of the meeting. The conduct of the ments, a rural area flexibility analysis, and a job impact statement are not meeting shall be in the sole and absolute discretion of the chair, who may required for this rule making proposal because it will have no adverse ef- decide whom to recognize to speak and limit the time allowed to any fect on small businesses, local governments, rural areas, or jobs. speaker and the number of speakers. The chair of the meeting may receive The proposed amendments serve to narrow and simplify the Commis- written testimony in the discretion of the chair. sion’s existing out-of-competition equine drug testing rule for harness rac- PART 601 ing by codifying the protections afforded to horse owners and trainers and GAMING FACILITY LICENSE FEES clarifying both the definition of prohibited substances and the rights of § 601.1. Gaming Facility License Fees. owners and trainers whose horses have been selected for sampling. These (a) The license fee for a gaming facility license issued by the Gaming amendments do not expand the scope of the existing regulatory framework, Commission pursuant to subdivision 4 of section 1315 of the Racing, Pari- but merely revise ministerial aspects within the existing out-of-competition Mutuel Wagering and Breeding Law shall be as follows, unless a gaming rule. This rule will not impose an adverse economic impact on reporting, facility licensee has agreed to pay an amount in excess of the fees listed record keeping or other compliance requirements on small businesses in below: rural or urban areas or on employment opportunities. Due to the straight- forward nature of the rulemaking, there is no need for the development of (1) in Zone Two, Region One (Counties of Columbia, Delaware, a small business regulation guide to assist in compliance. These provi- Dutchess, Greene, Orange, Sullivan and Ulster), as such zone and region sions are clear as to what equine drugs are impermissible, when they are are defined in section 1310 of the Racing, Pari-Mutuel Wagering and impermissible, how the Commission’s program will be implemented, and Breeding Law, the following fees will apply to counties as designated what is necessary to comply with the rule. below: (i) $70,000,000 for a gaming facility in Dutchess and Orange Counties; (ii) $50,000,000 for a gaming facility in Columbia, Delaware, New York Gaming Facility Location Greene, Sullivan and Ulster Counties, if no license is awarded for a gaming facility located in Dutchess or Orange Counties; and Board (iii) $35,000,000 for a gaming facility in Columbia, Delaware, Greene, Sullivan and Ulster Counties, if a license is awarded for a gaming facility located in Dutchess or Orange Counties. EMERGENCY (2) $50,000,000 in Zone Two, Region Two (Counties of Albany, Fulton, Montgomery, Rensselaer, Saratoga, Schenectady, Schoharie and RULE MAKING Washington), as such zone and region are defined in section 1310 of the Racing, Pari-Mutuel Wagering and Breeding Law; Rules Pertaining to Gaming Facility Request for Application and (3) in Zone Two, Region Five (Counties of Broome, Chemung (east of Related Fees and Related Hearings State Route 14), Schuyler (east of State Route 14), Seneca, Tioga, I.D. No. GFB-15-14-00010-E Tompkins, and Wayne (east of State Route 14)), as such zone and region are defined in section 1310 of the Racing, Pari-Mutuel Wagering and Filing No. 266 Breeding Law, the following fees will apply to counties as designated Filing Date: 2014-03-31 below: Effective Date: 2014-03-31 (i) $35,000,000 for a gaming facility in Broome, Chemung, Schuyler, Tioga or Tompkins Counties; PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- (ii) $50,000,000 for a gaming facility in Wayne or Seneca Coun- cedure Act, NOTICE is hereby given of the following action: ties; and (iii) $20,000,000 for a gaming facility in Broome, Chemung, Action taken: Addition of Parts 600 and 601 to Title 9 NYCRR. Schuyler, Tioga and Tompkins Counties, if a license is awarded for a Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law, gaming facility located in Wayne or Seneca Counties. sections 1306(4), (9) and 1319 (b) A gaming facility licensee shall pay the required license fee by Finding of necessity for emergency rule: Preservation of general welfare. electronic fund transfer according to directions issued by the Gaming Specific reasons underlying the finding of necessity: The New York Commission. State Gaming Facility Location Board (the “Board”) has determined that This notice is intended to serve only as an emergency adoption, to be immediate adoption of these rules is necessary for the preservation of the valid for 90 days or less. This rule expires June 28, 2014. general welfare. On March 31, 2014, the Board, which was established by the New York State Gaming Commission, will issue a Request for Ap- Text of rule and any required statements and analyses may be obtained plications (“RFA”) for applicants seeking a license to develop and operate from: Heather McArn, New York State Gaming Commission, 1 Broadway a gaming facility in New York State pursuant to the Upstate New York Center, P.O. Box 7500, Schenectady, New York 12301-7500, (518) 388- Gaming Economic Development Act of 2013, as amended by Chapter 175 3408, email: [email protected] of the Laws of 2013 (the “Act”). The Act authorizes four upstate destina- Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural tion gaming resorts to enhance economic development in Upstate New Area Flexibility Analysis and Job Impact Statement York. The immediate adoption of these rules is necessary to prescribe A Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural required fee information for applicants considering whether or not to Area Flexibility Analysis and Job Impact Statement are not submitted, but

16 NYS Register/April 16, 2014 Rule Making Activities will be published in the Register within 30 days of the rule's effective section 201(1)(v) provide that the Department is the single state agency date. responsible for supervising the administration of the State’s medical assistance (“Medicaid”) program and for adopting such regulations, not incon- sistent with law, as may be necessary to implement the State’s Medicaid program. Department of Health Legislative objective: These proposed regulations further the legislative objectives embodied in section 363-a of the Social Services Law and section 201(1)(v) of the Public Health Law. The proposed regulations concern changes in the PROPOSED RULE MAKING methodology for reimbursement of residential habilitation services NO HEARING(S) SCHEDULED delivered in Community Residences (CRs) and Individualized Residential Alternatives (IRAs), and for day habilitation services. Rate Rationalization-Community Residences (CRs)/ Needs and benefits: Individualized Residential Alternatives (IRAs) Habilitation and The Office for People With Developmental Disabilities (OPWDD) and Day Habilitation the Department of Health (DOH) are seeking to implement a new reimbursement methodology which complements existing OPWDD I.D. No. HLT-15-14-00011-P requirements concerning residential and day habilitation services, and satisfies commitments included in OPWDD’s transformation agreement with the federal Centers for Medicare and Medicaid Services (CMS). PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- The methodology, which combines regional average cost components, cedure Act, NOTICE is hereby given of the following proposed rule: provider specific cost experiences, and other factors, including the needs Proposed Action: Addition of Subpart 86-10 to Title 10 NYCRR. of individuals served, is expected to result in rates that are consistent with Statutory authority: Social Services Law, section 363-a; and Public efficiency and economy, and that lead to quality outcomes for individuals Health Law, section 201(1)(v) receiving services. The purpose of the methodology change is to move Subject: Rate Rationalization-Community Residences (CRs)/ from budget to cost-based reimbursement, to provide a clear and transpar- Individualized Residential Alternatives (IRAs) Habilitation and Day ent method of reimbursement, to move toward consistency in rates across Habilitation. the system, and to provide a more stable system of reimbursement. Costs: Purpose: To establish new rate methodology effective July 1, 2014. Costs to the Agency and to the State and its local governments: Substance of proposed rule (Full text is posted at the following State The proposed regulations will be cost neutral to the state as the monies website:www.health.ny.gov): This regulation establishes a new reimburse- appropriated for such services will remain constant and only the distribu- ment methodology for Supervised and Supportive Community Residences tion of such monies will be subject to change. (including Individualized Residential Alternatives) and Day Habilitation The new methodologies do not apply to the state as a provider of programs which will be effective July 1, 2014. services. The methodology for these programs will include the following There will be no savings or costs to local governments as a result of elements: these regulations because pursuant to Social Services Law sections 365 1) The use of a base period Consolidated Fiscal Report (CFR) for the and 368-a, either local governments incur no costs for these services or the period of January 1, 2011 – December 31, 2011 for calendar year filers or State reimburses local governments for their share of the cost of Medicaid the period of July 1, 2010 through June 30, 2011 for fiscal year filers. funded programs and services. 2) The assignment of geographic location, based on CFR information Costs to private regulated parties: and consistent with Department of Health regions. The proposed regulations will implement a new reimbursement 3) Operating, facility and capital components. The operating component methodology for residential habilitation delivered in CRs and IRAs and recognizes a blend of actual provider costs and average regional costs. day habilitation. Application of the new methodology is expected to result The facility component recognizes actual provider costs. The methodol- in increased rates for some non-state operated providers and decreased ogy for the capital component has not been significantly changed from rates for others. However, overall reimbursement to providers will not be that of the previous reimbursement methodology. One adjustment to the changed. methodology for the capital component is that initial reimbursement will Local government mandates: only remain in the rate for two years from the date of site certification un- There are no new requirements imposed by the rule on any county, city, less actual costs are verified with the Office for People With Developmen- town, village, school, fire or other special district. tal Disabilities. The other adjustment to the methodology is that the Paperwork: thresholds identified are the maximum allowable amounts and will not be The proposed amendments will require additional paperwork be exceeded. completed by providers. The proposed regulations change the unit of ser- 4) Wage Equalization factors. vice for residential habilitation in supervised CRs and supervised IRAs 5) A Budget Neutrality factor. from a monthly to a daily unit of service. The monthly unit of service 6) A three year phase-in period for transition to the methodology. required documentation of service delivery on at least twenty-two days For Supervised and Supportive Community Residences (including each month; the new methodology will require daily documentation. In IRAs) only, the methodology will include: addition, providers will need to bill for each day that services are delivered, An acuity factor developed through a regression analysis and based on rather than billing on a monthly basis. In addition, the regulations require Developmental Disabilities Profile information. that providers determine and report retainer days, therapeutic leave days, For Supervised Community Residences (including IRAs) only, the and vacant bed days. methodology will incorporate: Duplication: 1) A change in the unit of service from monthly to daily. Commensurate The proposed regulations do not duplicate any existing State or federal with that change, the methodology will recognize retainer days, therapeutic requirements that are applicable to services for persons with developmental leave days and vacant bed days. disabilities. 2) The recognition of an evacuation score factor. Alternatives: For Day Habilitation programs only, the methodology will include: OPWDD developed the methodology in collaboration with DOH and The recognition of actual provider to-from transportation costs. discussed the methodology with representatives of provider associations Text of proposed rule and any required statements and analyses may be and with CMS. A variety of factors, including alternate transition plans, obtained from: Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. were considered; however, the proposed regulations represent the results Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) of decisions made from those discussions and collaboration with DOH. 473-7488, email: [email protected] Federal standards: Data, views or arguments may be submitted to: Same as above. The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas. Public comment will be received until: 45 days after publication of this Compliance schedule: notice. OPWDD and DOH are planning for the regulations to be effective July This rule was not under consideration at the time this agency submitted 1, 2014. All necessary information, training, and guidance regarding the its Regulatory Agenda for publication in the Register. new service documentation requirements and billing procedures will be Regulatory Impact Statement provided to agencies in advance of the effective date of regulations. The Statutory authority: planned provider training will explain all components, calculations, and Social Services Law (SSL) section 363-a and Public Health Law (PHL) provisions of these regulations.

17 Rule Making Activities NYS Register/April 16, 2014

Regulatory Flexibility Analysis which the rule will apply: OPWDD services are provided in every county Effect of Rule: in New York State. Forty three counties have a population of less that The proposed rule will shift resources across agencies, resulting in some 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, agencies obtaining a higher reimbursement rate and others a lower Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, reimbursement rate. The Department will determine actual costs of such agencies and to appropriately reflect such costs in agency reimbursement Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Living- rates. The proposed rule primarily affects the operating cost component of ston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, agency reimbursement; however, there are changes to the capital cost Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, component as well. Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, The new operating cost component will reflect actual costs of services Wyoming and Yates. Additionally, 10 counties with certain townships to individuals receiving day and residential habilitation services. Such have a population density of 150 persons or less per square mile: Albany, costs will be averaged according to region and across the State. The vari- Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange ous averages will be adjusted and weighted for maximum accuracy. The and Saratoga. methodology incorporated an acuity adjustment for residential habilitation The proposed amendments have been reviewed by the Department in services. The final operating rate will incorporate actual costs of an light of their impact on rural areas. The proposed amendments establish agency, the average regional costs of all agencies in such region and the standards for the provision and funding of residential and day habilitation average statewide costs for such services. service under the Home and Community Based Services (HCBS) waiver The capital cost component of the rate will be the lesser: actual costs, and make minor technical changes in existing regulations. fair market value and threshold rates. Threshold rates will now be the Reporting, Recordkeeping and Other Compliance Requirements and maximum allowable reimbursement costs. The Department will retain the Professional Services: system of prior property approval and attendant system of estimated costs There are technical issues related to units of service that will be man- and cost verification processes. However, estimated costs will not exceed two years and the cost verification process shall be amended to place the aged during the transition to the new methodology. Previously, providers onus of verification upon the provider agency. The Department recom- of residential habilitation services used a monthly billing system that mends such changes as an incentive for such agencies to comply with the required twenty-two days of service delivery. Agencies will now provide cost verification process, where such compliance has been difficult to the Department with data regarding therapeutic leave days, service days obtain. A further consequence of the failure to submit actual cost data and retainer days provided to individuals. The proposed rule provides two within the two years prescribed by this rule will be the reduction of the transition periods, the first transitions the monthly unit of service to a capital cost component to zero until such time as the agency complies. daily unit of service while the second transitions the old methodology to Compliance Requirements: the new regional/cost based approach. The Department does not anticipate The proposed regulations change the unit of service for residential ha- that regulated entities will require new professional services as a result of bilitation for supervised IRAs from a monthly to a daily unity of service, this new rule. effective July 1, 2014. The monthly unit of service required documenta- Costs: tion of service delivery on at least twenty-two days each month; the new The proposed rule imposes no new costs on regulated entities. methodology will require daily documentation. In addition, providers will Minimizing Adverse Impact: need to bill for each day that services are delivered, rather than billing on a The transition from rates to rates set according to a standardized monthly basis. Providers must also determine and report retainer days and methodology may involve significant disruptions to certain providers. therapeutic leave days. Rate rationalization will provide a clear, transparent method of reimburse- The proposed rule does not require any additional paperwork requirements for the capital cost component, but changes the consequences of ment that will normalize rates across the industry and make for a more non-compliance. stable system of reimbursement across the services affected. Professional Services: The proposed regulations minimize adverse economic impact in several No new professional services are required as a result of this amendment. ways. First, there is a multi-year phase-in period for transition to the new Compliance Costs: methodology. For providers that will experience a decrease in reimburse- The proposed rule imposes no new costs on regulated entities. ment, this will help to smooth the effects of the reduction in revenue. In Economic and Technological Feasibility: addition, the inclusion of several factors in the methodology, such as the There are technical issues related to units of service that will be man- acuity factor and the E-score factor, will enhance reimbursement for aged during the transition to the new methodology. Previously, providers providers who serve individuals with greater needs and/or who require of residential habilitation services used a monthly billing system that richer staffing than would otherwise be warranted. OPWDD has also been required twenty-two days of service delivery. Agencies will now provide working with providers to develop strategies to assist providers in achiev- the Department with data regarding therapeutic leave days, service days ing efficiencies in service provision. This will help providers accom- and retainer services provided to individuals. The proposed rule provides modate a reduction in revenue without compromising the quality of ser- two transition periods. The first transitions the monthly unit of service to a vices provided. daily unit of service, while the second transitions the old methodology to Rural Area Participation: the new regional/cost based approach. The Department does not anticipate The Department has conveyed its objective to promulgate these amend- that regulated entities will require new professional services as a result of ments to providers, at six meetings/conferences between August 2013 and this new rule. January 2014. The methodology was discussed with representatives of Minimizing Adverse Impact: providers, including providers in rural areas, such as NYSARC, the NYS The transition to the new methodology may involve significant disrup- Association of Community and Residential Agencies, NYS Catholic tions to certain providers. Rate rationalization will provide a clear, trans- Conference and CP Association of NYS, some who have fewer than 100 parent method of reimbursement that will normalize rates across the employees, at numerous meetings and conferences. Further, the depart- industry and make for a more stable system of reimbursement across the ment is committed to the transparency of this methodology by posting the services affected. The proposed regulations minimize adverse economic results by provider on its website. impact in several ways. First, there is a multi-year phase-in period for Job Impact Statement transition to the new methodology. For providers that will experience a A job impact statement is not being submitted for these proposed decrease in reimbursement, this will help to smooth the effects of the amendments because the Department determined that they will not cause a reduction in revenue. In addition, the inclusion of several factors in the loss of more than 100 full time annual jobs State wide. The proposed methodology, such as the acuity factor and the E-score factor, will enhance regulations will implement a new reimbursement methodology for resi- reimbursement for providers who serve individuals with greater needs dential habilitation delivered in CRs and IRAs and day habilitation. Ap- and/or who require richer staffing than would otherwise be warranted. plication of the new methodology is expected to result in increased rates Small Business and Local Government Participation: for some non-state operated providers and decreased rates for others. The methodology was discussed with representatives of providers, However, overall reimbursement to providers will not be changed. including those members of New York State Association of Community Some providers will experience a decrease in reimbursement as a result and Residential Agencies (NYSACRA) who have fewer than 100 employ- of these amendments. The Department expects that most providers in this ees, at numerous meetings and conferences. The Department has conveyed situation will be able to accommodate the reduction in revenue by making its objective to promulgate these amendments to providers, at six meetings/ programs more efficient without compromising the quality of services. conferences between August 2013 and January 2014. Further, the depart- However, some providers may effectuate a modest reduction in employment is committed to the transparency of this methodology by posting the ment opportunities as a result of the decrease in revenue. At the same results by provider on its website. time, other providers that experience an increase in reimbursement may Rural Area Flexibility Analysis commensurately increase employment opportunities. Therefore, the Effect on Rural Areas: Department expects that there will be no overall effect on jobs and employ- Description of the types and estimation of the number of rural areas in ment opportunities as a result of these amendments.

18 NYS Register/April 16, 2014 Rule Making Activities

PROPOSED RULE MAKING efficiency and economy, and that lead to quality outcomes for individuals receiving services. The purpose of the methodology change is to provide a NO HEARING(S) SCHEDULED clear and transparent method of reimbursement, to move toward consistency in rates across the system, and to provide a more stable system of Rate Rationalization—Intermediate Care Facilities for Persons reimbursement. with Developmental Disabilities (ICF/DDs) Costs: Costs to the Agency and to the State and its local governments: I.D. No. HLT-15-14-00012-P The proposed regulations will be cost neutral to the state as the monies appropriated for such services will remain constant and only the distribution of such monies will be subject to change. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- The new methodologies do not apply to the state as a provider of cedure Act, NOTICE is hereby given of the following proposed rule: services. Proposed Action: Addition of Subpart 86-11 to Title 10 NYCRR. There will be no savings or costs to local governments as a result of Statutory authority: Social Services Law, section 363-a; and Public these regulations because pursuant to Social Services Law sections 365 Health Law, section 201(1)(v) and 368-a, either local governments incur no costs for these services or the State reimburses local governments for their share of the cost of Medicaid Subject: Rate Rationalization—Intermediate Care Facilities for Persons funded programs and services. with Developmental Disabilities (ICF/DDs). Costs to private regulated parties: Purpose: To establish new rate methodology effective July 1, 2014. The proposed regulations will implement a new reimbursement Substance of proposed rule (Full text is posted at the following State methodology for ICFs/DD. Application of the new methodology is website:www.health.ny.gov): This regulation establishes a new reimburse- expected to result in increased rates for some non-state operated providers ment methodology for Intermediate Care Facilities for People with and decreased rates for others. However, overall reimbursement to provid- Developmental Disabilities (ICFs/DD) scheduled to be effective July 1, ers will not be changed. 2014. The methodology for this program will include the following Local Government Mandates: elements: There are no new requirements imposed by the rule on any county, city, 1) The use of a base period Consolidated Fiscal Report (CFR) for the town, village, school, fire or other special district. period of January 1, 2011 – December 31, 2011 for calendar year filers or Paperwork: the period of July 1, 2010 through June 30, 2011 for fiscal year filers. The proposed amendments are not expected to increase paperwork to 2) The assignment of geographic location, based on CFR information be completed by providers. and consistent with Department of Health regions. Duplication: 3) Operating, facility, day services and capital components. The operat- The proposed regulations do not duplicate any existing State or federal ing component recognizes a blend of actual provider costs and average requirements that are applicable to services for persons with developmental regional costs. The facility component recognizes actual provider costs. disabilities. The day services component is based on the existing units of service from Alternatives: the provider rate sheet in effect on June 30, 2014 and the July 1, 2014 rate OPWDD developed the methodology in collaboration with DOH and for the service. The methodology for the capital component has not been discussed the methodology with representatives of provider associations significantly changed from that of the previous reimbursement and with CMS. A variety of factors, including alternate transition plans, methodology. One adjustment to the methodology for the capital compo- were considered; however, the proposed regulations represent the results nent is that initial reimbursement will only remain in the rate for two years of decisions made from those discussions and collaboration with DOH. from the date of site certification unless actual costs are verified with the Federal Standards: Office for People With Developmental Disabilities. The other adjustment The proposed amendments do not exceed any minimum standards of to the methodology is that the thresholds identified are the maximum al- the federal government for the same or similar subject areas. lowable amounts and will not be exceeded. Compliance Schedule: 4) Wage Equalization factors. OPWDD and DOH are planning for the regulations to be effective July 5) A Budget Neutrality factor. 1, 2014. All necessary information, training, and guidance regarding the 6) A three year phase-in period for transition to the methodology. new service documentation requirements and billing procedures will be Text of proposed rule and any required statements and analyses may be provided to agencies in advance of the effective date of regulations. The obtained from: Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. planned provider training will explain all components, calculations, and Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) provisions of these regulations. 473-7488, email: [email protected] Regulatory Flexibility Analysis Data, views or arguments may be submitted to: Same as above. Effect of Rule: The proposed rule will shift resources across agencies, resulting in some Public comment will be received until: 45 days after publication of this agencies obtaining a higher reimbursement rate and others a lower notice. reimbursement rate. The proposed rule primarily affects the operating cost This rule was not under consideration at the time this agency submitted component of agency reimbursement; however, there are changes to the its Regulatory Agenda for publication in the Register. capital cost component as well. Regulatory Impact Statement The new operating cost component will reflect actual costs of services Statutory Authority: to individuals in ICFs/DD. Such costs will be averaged according to region Social Services Law (SSL) section 363-a and Public Health Law (PHL) and across the State. The various averages will be adjusted and weighted section 201(1)(v) provide that the Department is the single state agency for maximum accuracy. The final operating rate will incorporate actual responsible for supervising the administration of the State’s medical assis- costs of an agency, the average regional costs of all agencies in such region tance (“Medicaid”) program and for adopting such regulations, not incon- and the average statewide costs for such services. sistent with law, as may be necessary to implement the State’s Medicaid The capital cost component of the rate will be the lesser: actual costs, program. fair market value and threshold rates. Threshold rates will now be the Legislative Objective: maximum allowable reimbursement costs. The Department will retain the These proposed regulations further the legislative objectives embodied system of prior property approval and attendant system of estimated costs in sections 363-a of the Social Services Law and section 201(1)(v) of the and cost verification processes. However, estimated costs will not exceed Public Health Law. The proposed regulations concern changes in the two years and the cost verification process shall be amended to place the methodology for reimbursement of Intermediate Care Facilities for onus of verification upon the provider agency. The Department recom- Persons with Developmental Disabilities (ICFs/DD). mends such changes as an incentive for such agencies to comply with the Needs and Benefits: cost verification process, where such compliance has been difficult to The Office for People With Developmental Disabilities (OPWDD) and obtain. A further consequence of the failure to submit actual cost data the Department of Health (DOH) are seeking to implement a new within the two years prescribed by this rule will be the reduction of the reimbursement methodology which complements existing OPWDD capital cost component to zero until such time as the agency complies. requirements concerning ICFs/DD, and satisfies commitments included in Compliance Requirements: OPWDD’s transformation agreement with the federal Centers for Medi- The proposed rule does not require any additional paperwork require- care and Medicaid Services (CMS). ments for the capital cost component, but changes the consequences of The methodology, which combines regional average cost components, non-compliance. provider specific cost experiences, and other factors, including the needs Professional Services: of individuals served, is expected to result in rates that are consistent with No new professional services are required as a result of this amendment.

19 Rule Making Activities NYS Register/April 16, 2014

Compliance Costs: rates for some non-state operated providers and decreased rates for others. The proposed rule imposes no new costs on regulated entities. However, overall reimbursement to providers will not be changed. Economic and Technological Feasibility: Some providers will experience a decrease in reimbursement as a result The proposed rule provides a transition period from the old methodol- of these amendments. The Department expects that most providers in this ogy to the new regional/cost based approach. The Department does not situation will be able to accommodate the reduction in revenue by making anticipate that regulated entities will require new professional services as programs more efficient without compromising the quality of services. a result of this new rule. However, some providers may effectuate a modest reduction in employ- Minimizing Adverse Impact: ment opportunities as a result of the decrease in revenue. At the same time, other providers that experience an increase in reimbursement may The transition to this methodology may involve significant disruptions commensurately increase employment opportunities. Therefore, the to certain providers. Rate rationalization will provide a clear, transparent Department expects that there will be no overall effect on jobs and employ- method of reimbursement that will normalize rates across the industry and ment opportunities as a result of these amendments. make for a more stable system of reimbursement across the services affected. The proposed regulations minimize adverse economic impact by utilizing a multi-year phase-in period for transition to the new methodology. For providers that will experience a decrease in reimburse- Long Island Power Authority ment, this will help to smooth the effects of the reduction in revenue. Small Business and Local Government Participation: The methodology was discussed with representatives of providers, including those members of New York State Association of Community NOTICE OF ADOPTION and Residential Agencies (NYSACRA) who have fewer than 100 employees, at numerous meetings and conferences. The Department has conveyed Authority's Tariff for Electric Service (‘‘Tariff’’) its objective to promulgate these amendments to providers, at six meetings/ I.D. No. LPA-51-13-00005-A conferences between August 2013 and January 2014. Further, the department is committed to the transparency of this methodology by posting the Filing Date: 2014-03-28 results by provider on its website. Effective Date: 2014-04-01 Rural Area Flexibility Analysis Effect on Rural Areas: PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Description of the types and estimation of the number of rural areas in cedure Act, NOTICE is hereby given of the following action: which the rule will apply: OPWDD services are provided in every county in New York State. 43 counties have a population of less that 200,000: Al- Action taken: The Authority adopted a proposal to modify its Tariff for legany, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Electric Service to implement changes in connection with the new Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, oversight responsibilities of the New York State Department of Public Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Montgomery, Service. Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Statutory authority: Public Authorities Law, section 1020-f(z) and (u) Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Subject: Authority's Tariff for Electric Service (‘‘Tariff’’). Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. Purpose: To revise the Tariff in connection with the new oversight re- Additionally, 10 counties with certain townships have a population density sponsibilities of the New York State Department of Public Service. of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Text or summary was published in the December 18, 2013 issue of the Monroe, Niagara, Oneida, Onondaga, Orange and Saratoga. Register, I.D. No. LPA-51-13-00005-P. The proposed amendments have been reviewed by the Department in light of their impact on rural areas. The proposed amendments establish Final rule as compared with last published rule: No changes. standards for the provision and funding of ICFs/DD and make minor Text of rule and any required statements and analyses may be obtained technical changes in existing regulations. from: Mark B. Smith, Long Island Power Authority, 333 Earle Ovington Reporting, Recordkeeping and Other Compliance Requirements and Blvd., Suite 403, Uniondale, NY 11553, (516) 719-9883, email: Professional Services: [email protected] There are no additional reporting, recordkeeping and other compliance Revised Regulatory Impact Statement requirements and professional services imposed by these amendments. A revised regulatory impact statement is not submitted with this notice The proposed rule provides a transition period from the old methodol- because the rule is within the definition contained in section 102(2)(a)(ii) ogy to the new regional/cost based approach. The Department does not of the State Administrative Procedure Act. anticipate that regulated entities will require new professional services as a result of this new rule. Revised Regulatory Flexibility Analysis Costs: A revised regulatory flexibility analysis is not submitted with this notice The proposed rule imposes no new costs on regulated entities. because the rule is within the definition contained in section 102(2)(a)(ii) Minimizing Adverse Impact: of the State Administrative Procedure Act. The transition to the new methodology may involve significant disrup- Revised Rural Area Flexibility Analysis tions to certain providers. Rate rationalization will provide a clear, trans- A revised rural area flexibility analysis is not submitted with this notice parent method of reimbursement that will normalize rates across the because the rule is within the definition contained in section 102(2)(a)(ii) industry and make for a more stable system of reimbursement across the of the State Administrative Procedure Act. services affected. The proposed regulations minimize adverse economic impact by utiliz- Revised Job Impact Statement ing a multi-year phase-in period for transition to the new methodology. A revised job impact statement is not submitted with this notice because For providers that will experience a decrease in reimbursement, this will the rule is within the definition contained in section 102(2)(a)(ii) of the help to smooth the effects of the reduction in revenue. State Administrative Procedure Act. Rural Area Participation: Assessment of Public Comment The Department has conveyed its objective to promulgate these amend- An assessment of public comment is not submitted with this notice because ments to providers, at six meetings/conferences between August 2013 and the rule is within the definition contained in section 102(2)(a)(ii) of the January 2014. The methodology was discussed with representatives of providers, including providers in rural areas, such as NYSARC, the NYS State Administrative Procedure Act. Association of Community and Residential Agencies, NYS Catholic NOTICE OF ADOPTION Conference and CP Association of NYS, some who have fewer than 100 employees, at numerous meetings and conferences. Further, the department is committed to the transparency of this methodology by posting the Authority's Tariff for Electric Service (‘‘Tariff’’) results by provider on its website. I.D. No. LPA-51-13-00006-A Job Impact Statement Filing Date: 2014-03-28 A job impact statement is not being submitted for these proposed amendments because the Department determined that they will not cause a Effective Date: 2014-04-01 loss of more than 100 full time annual jobs State wide. The proposed regulations will implement a new reimbursement methodology for ICFs/ PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- DD. Application of the new methodology is expected to result in increased cedure Act, NOTICE is hereby given of the following action:

20 NYS Register/April 16, 2014 Rule Making Activities

Action taken: The Authority adopted a proposal to modify its Tariff for Revised Job Impact Statement Electric Service to authorize the billing of securitization charges, A revised job impact statement is not submitted with this notice because restructure the Energy Efficiency Cost Recovery Rate, update Delivery the rule is within the definition contained in section 102(2)(a)(ii) of the Charges and make miscellaneous changes. State Administrative Procedure Act. Statutory authority: Public Authorities Law, section 1020-f(z) and (u) Assessment of Public Comment Subject: Authority's Tariff for Electric Service (‘‘Tariff’’). An assessment of public comment is not submitted with this notice because Purpose: To authorize the billing of securitization charges; restructure the rule is within the definition contained in section 102(2)(a)(ii) of the and update rates and charges and make miscellaneous changes. State Administrative Procedure Act. Text or summary was published in the December 18, 2013 issue of the Register, I.D. No. LPA-51-13-00006-P. Final rule as compared with last published rule: No changes. Text of rule and any required statements and analyses may be obtained Office for People with from: Mark B. Smith, Long Island Power Authority, 333 Earle Ovington Developmental Disabilities Blvd., Suite 403, Uniondale, NY 11553, (516) 719-9883, email: [email protected] Revised Regulatory Impact Statement PROPOSED RULE MAKING A revised regulatory impact statement is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) HEARING(S) SCHEDULED of the State Administrative Procedure Act. Revised Regulatory Flexibility Analysis Rate Setting for Non-State Providers - IRA/CR Residential A revised regulatory flexibility analysis is not submitted with this notice Habilitation and Day Habilitation because the rule is within the definition contained in section 102(2)(a)(ii) I.D. No. PDD-15-14-00014-P of the State Administrative Procedure Act. Revised Rural Area Flexibility Analysis PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- A revised rural area flexibility analysis is not submitted with this notice cedure Act, NOTICE is hereby given of the following proposed rule: because the rule is within the definition contained in section 102(2)(a)(ii) Proposed Action: Addition of Part 641 and Subpart 641-1 to Title 14 of the State Administrative Procedure Act. NYCRR. Revised Job Impact Statement Statutory authority: Mental Hygiene Law, sections 13.09(b) and 43.02 A revised job impact statement is not submitted with this notice because Subject: Rate Setting for Non-State Providers - IRA/CR residential habil- the rule is within the definition contained in section 102(2)(a)(ii) of the itation and day habilitation. State Administrative Procedure Act. Purpose: To establish a new rate methodology effective July 1, 2014. Assessment of Public Comment Public hearing(s) will be held at: 10:30 a.m., June 4, 2014 at Bernard An assessment of public comment is not submitted with this notice because Fineson, VC Rm. 2, Lower Level, 80-45 Winchester Blvd., Bldg. 80-00, the rule is within the definition contained in section 102(2)(a)(ii) of the Queens Village, NY; and 10:30 a.m., June 3, 2014 at OD Heck, Bldg. 3, State Administrative Procedure Act. 3rd Fl., Rm. 2, 500 Balltown Rd., Schenectady, NY. NOTICE OF ADOPTION Interpreter Service: Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request Authority's Tariff for Electric Service (‘‘Tariff’’) must be addressed to the agency representative designated in the paragraph I.D. No. LPA-01-14-00023-A below. Filing Date: 2014-03-28 Accessibility: All public hearings have been scheduled at places reason- ably accessible to persons with a mobility impairment. Effective Date: 2014-03-28 Substance of proposed rule (Full text is posted at the following State website:www.opwdd.ny.gov): This regulation establishes a new reimburse- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- ment methodology for Supervised and Supportive Community Residences cedure Act, NOTICE is hereby given of the following action: (including Individualized Residential Alternatives (IRAs)) and Day Habil- Action taken: The Authority adopted a proposal to modify its Tariff for itation programs which will be effective July 1, 2014. Electric Service to authorize the purchase of 20 MW of renewable re- The methodology for these programs will include the following sources (other than solar photovoltaic) from customers. elements: Statutory authority: Public Authorities Law, section 1020-f(z) and (u) 1) The use of a base period Consolidated Fiscal Report (CFR) for the period of January 1, 2011 – December 31, 2011 for calendar year filers or Subject: Authority's Tariff for Electric Service (‘‘Tariff’’). the period of July 1, 2010 through June 30, 2011 for fiscal year filers. Purpose: To authorize the purchase of 20 MW of renewable resources 2) The assignment of geographic location, based on CFR information under Service Classification No. 11 — Buy-Back Service. and consistent with Department of Health regions. Text or summary was published in the January 8, 2014 issue of the Regis- 3) Operating, facility and capital components. The operating component ter, I.D. No. LPA-01-14-00023-P. recognizes a blend of actual provider costs and average regional costs. Final rule as compared with last published rule: No changes. The facility component recognizes actual provider costs. The methodol- Text of rule and any required statements and analyses may be obtained ogy for the capital component has not been significantly changed from from: Mark B. Smith, Long Island Power Authority, 333 Earle Ovington that of the previous reimbursement methodology. One adjustment to the Blvd., Suite 403, Uniondale, NY 11553, (516) 719-9883, email: methodology for the capital component is that initial reimbursement will [email protected] only remain in the rate for two years from the date of site certification unless actual costs are verified with the Office for People With Developmen- Revised Regulatory Impact Statement tal Disabilities. The other adjustment to the methodology is that the A revised regulatory impact statement is not submitted with this notice thresholds identified are the maximum allowable amounts and will not be because the rule is within the definition contained in section 102(2)(a)(ii) exceeded. of the State Administrative Procedure Act. 4) Wage Equalization factors. Revised Regulatory Flexibility Analysis 5) A Budget Neutrality factor. A revised regulatory flexibility analysis is not submitted with this notice 6) A three year phase-in period for transition to the methodology. because the rule is within the definition contained in section 102(2)(a)(ii) For Supervised and Supportive Community Residences (including of the State Administrative Procedure Act. IRAs) only, the methodology will include: An acuity factor developed through a regression analysis and based on Revised Rural Area Flexibility Analysis Developmental Disabilities Profile information. A revised rural area flexibility analysis is not submitted with this notice For Supervised Community Residences (including IRAs) only, the because the rule is within the definition contained in section 102(2)(a)(ii) methodology will incorporate: of the State Administrative Procedure Act. 1) A change in the unit of service from monthly to daily. Commensurate

21 Rule Making Activities NYS Register/April 16, 2014 with that change, the methodology will recognize retainer days, therapeutic 8. Alternatives: OPWDD developed the methodology in collaboration leave days and vacant bed days. with DOH and discussed the methodology with representatives of provider 2) The recognition of an evacuation score factor. associations and with CMS. A variety of factors, including alternate transi- For Day Habilitation programs only, the methodology will include: tion plans, were considered; however, the proposed regulations represent The recognition of actual provider to-from transportation costs. the results of decisions made from those discussions and collaboration Text of proposed rule and any required statements and analyses may be with DOH. obtained from: Barbara Brundage, Director, Regulatory Affairs Unit, Of- 9. Federal standards: The proposed amendments do not exceed any fice for People With Developmental Disabilities (OPWDD), 44 Holland minimum standards of the federal government for the same or similar Avenue, 3rd floor, Albany, NY 12229, (518) 474-1830, email: subject areas. [email protected] 10. Compliance schedule: OPWDD is planning for the regulations to be effective July 1, 2014. OPWDD recognizes that the timeframes established Data, views or arguments may be submitted to: Same as above. by the State Administrative Procedure Act may preclude the adoption of Public comment will be received until: Five days after the last scheduled final regulations effective on that date. If OPWDD is unable to adopt the public hearing. final regulations effective July 1, it intends to file similar emergency Additional matter required by statute: Pursuant to the requirements of the regulations containing the new methodology that would be in effect from State Environmental Quality Review Act, OPWDD, as lead agency, has July 1 until the final regulations can be adopted. determined that the action described herein will have no effect on the All necessary information, training, and guidance regarding the new environment, and an E.I.S. is not needed. service documentation requirements and billing procedures will be Regulatory Impact Statement provided to agencies in advance of the effective date of regulations. The 1. Statutory authority: planned provider training will explain all components, calculations, and a. OPWDD has the statutory authority to adopt rules and regulations provisions of these regulations. necessary and proper to implement any matter under its jurisdiction as Regulatory Flexibility Analysis stated in the New York State Mental Hygiene Law Section 13.09(b). 1. Effect on small business: OPWDD has determined, through a review b. OPWDD has the statutory responsibility for setting Medicaid rates of the certified cost reports, that most residential habilitation services and fees for other services in facilities licensed or operated by OPWDD as delivered in Individualized Residential Alternatives (IRAs) and Com- stated in section 43.02 of the Mental Hygiene Law. munity Residences (CRs) and most day habilitation services are provided 2. Legislative objective: These proposed regulations further the legisla- by agencies that employ more than 100 people overall. However, some tive objectives embodied in sections 13.09(b) and 43.02 of the Mental smaller agencies that employ fewer than 100 employees overall would be Hygiene Law. The proposed regulations concern changes in the methodol- classified as small businesses. Currently, there are 348 providers of resi- ogy for reimbursement of residential habilitation services delivered in dential habilitation services delivered in IRAs and CRs and day habilita- Community Residences (CRs) and Individualized Residential Alternatives tion services. OPWDD is unable to estimate the portion of these providers (IRAs), and for day habilitation services. that may be considered to be small businesses. 3. Needs and benefits: OPWDD and the Department of Health (DOH) The proposed regulations concern changes in the methodology for are seeking to implement a new reimbursement methodology, which reimbursement of residential habilitation services delivered in IRAs and complements existing OPWDD requirements concerning residential and CRs, and for day habilitation services. The methodology, which combines day habilitation services, and satisfies commitments included in OP- regional average cost components, provider specific cost experiences, and WDD's transformation agreement with the federal Centers for Medicare other factors, including the needs of individuals served, is expected to and Medicaid Services (CMS). result in rates that are economic and efficient and that lead to quality The methodology, which combines regional average cost components, outcomes for individuals receiving services. Application of the new provider specific cost experiences, and other factors, including the needs methodology is expected to result in increased rates for some non-state of individuals served, is expected to result in rates that are consistent with operated providers and decreased rates for others. The overall reimburse- efficiency and economy and that lead to quality outcomes for individuals ment to providers will not change. receiving services. The purpose of the methodology change is to move 2. Compliance requirements: The proposed regulations change the unit from budget to cost-based reimbursement, to provide a clear and transpar- of service for residential habilitation in supervised IRAs and supervised ent method of reimbursement, to move toward consistency in rates across CRs from a monthly to a daily unit of service. The monthly unit of service the system, and to provide a more stable system of reimbursement. required documentation of service delivery on at least twenty-two days 4. Costs: each month (11 days for a half month); the new methodology will require a. Costs to the Agency and to the State and its local governments: The daily documentation. In addition, providers will need to bill for each day proposed regulations will be cost neutral to the state as the monies ap- that services are delivered, rather than billing on a monthly basis. Provid- propriated for such services will remain constant and only the distribution ers must also determine and report retainer days, therapeutic leave days, of such monies will be subject to change. and vacant bed days. The new methodologies do not apply to the state as a provider of 3. Professional services: No additional professional services will be services. required as a result of these regulations and the regulations will not add to There will be no savings or costs to local governments as a result of the professional service needs of local governments. these regulations because pursuant to Social Services Law sections 365 4. Compliance costs: The proposed regulations may require a minor and 368-a, either local governments incur no costs for these services or the amount of additional paperwork to be completed by providers associated State reimburses local governments for their share of the cost of Medicaid with the change in the unit of service for residential habilitation in funded programs and services. supervised IRAs and supervised CRs; however, any compliance costs are b. Costs to private regulated parties: The proposed regulations will expected to be minimal. implement a new reimbursement methodology for residential habilitation 5. Economic and technological feasibility: The proposed amendments delivered in CRs and IRAs and day habilitation. Application of the new do not impose on regulated parties the use of any new technological methodology is expected to result in increased rates for some non-state processes. operated providers and decreased rates for others. However, overall 6. Minimizing adverse economic impact: The proposed regulations min- reimbursement to providers will not be changed. imize adverse economic impact in several ways. First, there is a three year 5. Local government mandates: There are no new requirements imposed phase-in period for transition to the new methodology. For providers that by the rule on any county, city, town, village, or school, fire, or other will experience a decrease in reimbursement, this will help to smooth the special district. effects of the reduction in revenue. In addition, the inclusion of several 6. Paperwork: The proposed amendments will require additional factors in the methodology, such as the acuity factor and the E-score fac- paperwork to be completed by providers. The proposed regulations change tor, will enhance reimbursement for providers who serve individuals with the unit of service for residential habilitation in supervised CRs and greater needs and/or who require richer staffing than would otherwise be supervised IRAs from a monthly to a daily unit of service. The monthly warranted. OPWDD has also been working with providers to develop unit of service required documentation of service delivery on at least strategies to assist providers in achieving efficiencies in service provision. twenty-two days each month; the new methodology will require daily This will help providers accommodate a reduction in revenue without documentation. In addition, providers will need to bill for each day that compromising the quality of services provided. services are delivered, rather than billing on a monthly basis. In addition, OPWDD has also reviewed and considered the approaches for minimiz- the regulations require that providers determine and report retainer days, ing adverse economic impact as suggested in section 202-b(1) of the State therapeutic leave days, and vacant bed days. Administrative Procedure Act. OPWDD determined that the revision to 7. Duplication: The proposed regulations do not duplicate any existing reimbursement proposed in this amendment is the most optimal approach State or federal requirements that are applicable to services for persons to instituting the necessary change in rate methodology while minimizing with developmental disabilities. any adverse impact on providers.

22 NYS Register/April 16, 2014 Rule Making Activities

These amendments impose modest compliance response on regulated 6. Participation of public and private interests in rural areas: The parties, associated with the conversion of the unit of service for residential proposed regulations were discussed at meetings with representatives of habilitation in supervised CRs and supervised IRAs from monthly to daily. providers held between August 2013 and January 2014, including provid- OPWDD considers that these compliance activities are needed to imple- ers in rural areas, such as NYSARC, the NYS Association of Community ment the change in the unit of service and cannot be further minimized. and Residential Agencies, NYS Catholic Conference, and CP Association 7. Small business participation: The proposed regulations were of NYS. OPWDD also included information on its plans to change the discussed with representatives of providers at meetings held between methodology in information about the Transformation Agreement posted August 2013 and January 2014, including the New York State Association on its website. of Community and Residential Agencies (NYSACRA) (which represents OWPDD will be mailing these proposed regulations to all providers, some providers who have fewer than 100 employees). OPWDD also included information on its plans to change the methodology in informa- including providers from rural areas, and will be holding public hearings tion about the Transformation Agreement posted on its website. on the proposed regulations. OWPDD will be mailing these proposed regulations to all providers, Job Impact Statement including providers that are small businesses, and will be holding public A job impact statement is not being submitted for these proposed hearings on the proposed regulations. amendments because OPWDD determined that they will not cause a loss Rural Area Flexibility Analysis of more than 100 full time annual jobs State wide. The proposed regula- 1. Description of the types and estimation of the number of rural areas tions will implement a new reimbursement methodology for residential in which the rule will apply: OPWDD services are provided in every habilitation delivered in CRs and IRAs and day habilitation. Application county in New York State. 43 counties have a population of less than of the new methodology is expected to result in increased rates for some 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, non-state operated providers and decreased rates for others. However, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, overall reimbursement to providers will not be changed. Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Living- Some providers will experience a decrease in reimbursement as a result ston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, of these amendments. OPWDD expects that most providers in this situa- Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, tion will be able to accommodate the reduction in revenue by making Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, programs more efficient without compromising the quality of services. Wyoming and Yates. Additionally, certain townships in 10 other counties However, some providers may effectuate a modest reduction in employ- have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, ment opportunities as a result of the decrease in revenue. At the same and Saratoga. time, other providers that experience an increase in reimbursement may The proposed regulations concern changes in the methodology for commensurately increase employment opportunities. Therefore, OPWDD reimbursement of residential habilitation services delivered in Community expects that there will be no overall effect on jobs and employment op- Residences (CRs) and Individualized Residential Alternatives (IRAs), and portunities as a result of these amendments. for day habilitation services. The methodology, which combines regional average cost components, provider specific cost experiences, and other PROPOSED RULE MAKING factors, including the needs of individuals served, is expected to result in NO HEARING(S) SCHEDULED rates that are economic and efficient and that lead to quality outcomes for individuals receiving services. Application of the new methodology is Rate Setting for Non-State Providers: ICF/DD expected to result in increased rates for some non-state operated providers and decreased rates for others. The overall reimbursement to providers I.D. No. PDD-15-14-00013-P will not change. 2. Compliance requirements: The proposed regulations change the unit PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- of service for residential habilitation in supervised IRAs and supervised cedure Act, NOTICE is hereby given of the following proposed rule: CRs from a monthly to a daily unit of service. The monthly unit of service required documentation of service delivery on at least twenty-two days Proposed Action: Addition of Subpart 641-2 to Title 14 NYCRR. each month (11 days for a half month); the new methodology will require Statutory authority: Mental Hygiene Law, sections 13.09(b) and 43.02 daily documentation. In addition, providers will need to bill for each day Subject: Rate Setting for Non-State Providers: ICF/DD. that services are delivered, rather than billing on a monthly basis. Provid- Purpose: To establish a new rate methodology effective July 1, 2014. ers must also determine and report retainer days, therapeutic leave days, and vacant bed days. Substance of proposed rule (Full text is posted at the following State The amendments will have no effect on local governments. website:www.opwdd.ny.gov): This regulation establishes a new reimburse- 3. Professional services: No additional professional services will be ment methodology for Intermediate Care Facilities for People with required as a result of these regulations and the regulations will not add to Developmental Disabilities (ICFs/DD) scheduled to be effective July 1, the professional service needs of local governments. 2014. 4. Compliance costs: The proposed regulations may require a minor The methodology for this program will include the following elements: amount of additional paperwork to be completed by providers associated 1) The use of a base period Consolidated Fiscal Report (CFR) for the with the change in the unit of service for residential habilitation in period of January 1, 2011 – December 31, 2011 for calendar year filers or supervised IRAs and supervised CRs; however, any compliance costs are the period of July 1, 2010 through June 30, 2011 for fiscal year filers. expected to be minimal. 2) The assignment of geographic location, based on CFR information 5. Minimizing adverse economic impact: The proposed regulations min- and consistent with Department of Health regions. imize adverse economic impact in several ways. First, there is a three year 3) Operating, facility, day services and capital components. The operat- phase-in period for transition to the new methodology. For providers that ing component recognizes a blend of actual provider costs and average will experience a decrease in reimbursement, this will help to smooth the regional costs. The facility component recognizes actual provider costs. effects of the reduction in revenue. In addition, the inclusion of several The day services component is based on the existing units of service from factors in the methodology, such as the acuity factor and the E-score fac- the provider rate sheet in effect on June 30, 2014 and the July 1, 2014 rate tor, will enhance reimbursement for providers who serve individuals with for the service. The methodology for the capital component has not been greater needs and/or who require richer staffing than would otherwise be significantly changed from that of the previous reimbursement warranted. OPWDD has also been working with providers to develop methodology. One adjustment to the methodology for the capital compo- strategies to assist providers in achieving efficiencies in service provision. nent is that initial reimbursement will only remain in the rate for two years This will help providers accommodate a reduction in revenue without from the date of site certification unless actual costs are verified with the compromising the quality of services provided. Office for People With Developmental Disabilities. The other adjustment OPWDD has also reviewed and considered the approaches for minimiz- to the methodology is that the thresholds identified are the maximum al- ing adverse economic impact as suggested in section 202-bb(2)(b) of the lowable amounts and will not be exceeded. State Administrative Procedure Act. OPWDD determined that the revi- 4) Wage Equalization factors. sion to reimbursement proposed in this amendment is the most optimal ap- 5) A Budget Neutrality factor. proach to instituting the necessary change in rate methodology while 6) A three year phase-in period for transition to the methodology. minimizing any adverse impact on providers. Text of proposed rule and any required statements and analyses may be These amendments impose modest compliance response on regulated obtained from: Barbara Brundage, Director, Regulatory Affairs Unit, Of- parties, associated with the conversion of the unit of service for residential fice for People With Developmental Disabilities (OPWDD), 44 Holland habilitation in supervised IRAs and supervised CRs from monthly to daily. Avenue, 3rd floor, Albany, NY 12229, (518) 474-1830, email: OPWDD considers that these compliance activities are needed to imple- [email protected] ment the change in the unit of service and cannot be further minimized. Data, views or arguments may be submitted to: Same as above.

23 Rule Making Activities NYS Register/April 16, 2014

Public comment will be received until: 45 days after publication of this The proposed regulations concern changes in the methodology for notice. reimbursement of ICFs/DD. The methodology, which combines regional Additional matter required by statute: Pursuant to the requirements of the average cost components, provider specific cost experiences, and other State Environmental Quality Review Act, OPWDD, as lead agency, has factors, including the needs of individuals served, is expected to result in determined that the action described herein will have no effect on the rates that are consistent with efficiency and economy and that lead to qual- environment, and an E.I.S. is not needed. ity outcomes for individuals receiving services. Application of the new Regulatory Impact Statement methodology is expected to result in increased rates for some non-state 1. Statutory authority: operated providers and decreased rates for others. The overall reimburse- a. OPWDD has the statutory authority to adopt rules and regulations ment to providers will not change. necessary and proper to implement any matter under its jurisdiction as 2. Compliance requirements: There are no new compliance activities stated in the New York State Mental Hygiene Law Section 13.09(b). imposed by these amendments. b. OPWDD has the statutory responsibility for setting Medicaid rates 3. Professional services: No additional professional services will be and fees for other services in facilities licensed or operated by OPWDD, required as a result of these regulations and the regulations will not add to as stated in section 43.02 of the Mental Hygiene Law. the professional service needs of local governments. 2. Legislative objective: These proposed regulations further the legisla- 4. Compliance costs: There are no compliance costs since there are no tive objectives embodied in sections 13.09(b) and 43.02 of the Mental new compliance activities imposed by these amendments. Hygiene Law. The proposed regulations concern changes in the methodol- 5. Economic and technological feasibility: The proposed amendments ogy for reimbursement of Intermediate Care Facilities for Persons with do not impose on regulated parties the use of any new technological Developmental Disabilities (ICFs/DD). processes. 3. Needs and benefits: OPWDD and the Department of Health (DOH) 6. Minimizing adverse economic impact: The proposed regulations min- are seeking to implement a new reimbursement methodology, which imize adverse economic impact in several ways. First, there is a three year complements existing OPWDD requirements concerning ICFs/DD, and phase-in period for transition to the new methodology. For providers that satisfies commitments included in OPWDD's transformation agreement will experience a decrease in reimbursement, this will help to smooth the with the federal Centers for Medicare and Medicaid Services (CMS). effects of the reduction in revenue. OPWDD has also been working with The methodology, which combines regional average cost components, providers to develop strategies to assist providers in achieving efficiencies provider specific cost experiences, and other factors, including the needs in service provision. This will help providers accommodate a reduction in of individuals served, is expected to result in rates that are consistent with revenue without compromising the quality of services provided. efficiency and economy and that lead to quality outcomes for individuals OPWDD has also reviewed and considered the approaches for minimiz- receiving services. The purpose of the methodology change is to provide a ing adverse economic impact as suggested in section 202-b(1) of the State clear and transparent method of reimbursement; to move toward consis- Administrative Procedure Act. OPWDD determined that the revision to tency in rates across the system, and to provide a more stable system of reimbursement proposed in this amendment is the most optimal approach reimbursement. to instituting the necessary change in rate methodology while minimizing 4. Costs: any adverse impact on providers. a. Costs to the Agency and to the State and its local governments: The 7. Small business participation: The proposed regulations were proposed regulations will be cost neutral to the state as the monies ap- discussed with representatives of providers at meetings held between propriated for such services will remain constant and only the distribution August 2013 and January 2014, including the New York State Association of such monies will be subject to change. of Community and Residential Agencies (NYSACRA) (which represents The new methodologies do not apply to the state as a provider of some providers that have fewer than 100 employees). OPWDD also services. included information on its plans to change the methodology in informa- There will be no savings or costs to local governments as a result of tion about the Transformation Agreement posted on its website. these regulations because pursuant to Social Services Law sections 365 OPWDD will be mailing these proposed regulations to all providers, and 368-a, either local governments incur no costs for these services or the including providers that are small businesses. State reimburses local governments for their share of the cost of Medicaid Rural Area Flexibility Analysis funded programs and services. 1. Description of the types and estimation of the number of rural areas b. Costs to private regulated parties: The proposed regulations will in which the rule will apply: OPWDD services are provided in every implement a new reimbursement methodology for ICFs/DD. Application county in New York State. 43 counties have a population of less than of the new methodology is expected to result in increased rates for some 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, non-state operated providers and decreased rates for others. However, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, overall reimbursement to providers will not be changed. Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Living- 5. Local government mandates: There are no new requirements imposed ston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, by the rule on any county, city, town, village, or school, fire, or other Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, special district. Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, 6. Paperwork: The proposed amendments are not expected to increase Wyoming and Yates. Additionally, certain townships in 10 other counties paperwork to be completed by providers. have a population density of 150 persons or less per square mile: Albany, 7. Duplication: The proposed regulations do not duplicate any existing Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, State or Federal requirements that are applicable to services for persons and Saratoga. with developmental disabilities. The proposed regulations concern changes in the methodology for 8. Alternatives: OPWDD developed the methodology in collaboration reimbursement of services delivered in ICFs/DD. The methodology, which with DOH and discussed the methodology with representatives of provider combines regional average cost components, provider specific cost expe- associations and with CMS. A variety of factors, including alternate transi- riences, and other factors, including the needs of individuals served, is tion plans, were considered; however, the proposed regulations represent expected to result in rates that are consistent with efficiency and economy the results of decisions made from those discussions and collaboration and that lead to quality outcomes for individuals receiving services. Ap- with DOH. plication of the new methodology is expected to result in increased rates 9. Federal standards: The proposed amendments do not exceed any for some non-state operated providers and decreased rates for others. The minimum standards of the federal government for the same or similar overall reimbursement to providers will not change. subject areas. 2. Compliance requirements: There are no new compliance activities 10. Compliance schedule: OPWDD expects to finalize the proposed imposed by these amendments. regulations effective July 1, 2014. All necessary information, training, and The amendments will have no effect on local governments. guidance regarding the new service documentation requirements and bill- 3. Professional services: No additional professional services will be ing procedures will be provided to agencies in advance of the effective required as a result of these regulations and the regulations will not add to date of regulations. The planned provider training will explain all the professional service needs of local governments. components, calculations, and provisions of these regulations. 4. Compliance costs: There are no costs associated with compliance Regulatory Flexibility Analysis activities, as no new compliance activities are imposed by these 1. Effect on small business: OPWDD has determined, through a review amendments. of the certified cost reports, that ICFs/DD are operated by agencies that 5. Minimizing adverse economic impact: The proposed regulations min- employ more than 100 people overall. However, some smaller agencies imize adverse economic impact in several ways. First, there is a three year that employ fewer than 100 employees overall would be classified as small phase-in period for transition to the new methodology. For providers that businesses. Currently, there are 108 providers of ICFs/DD. OPWDD is will experience a decrease in reimbursement, this will help to smooth the unable to estimate the portion of these providers that may be considered to effects of the reduction in revenue. OPWDD has also been working with be small businesses. providers to develop strategies to assist providers in achieving efficiencies

24 NYS Register/April 16, 2014 Rule Making Activities in service provision. This will help providers accommodate a reduction in (04-W-0502SA1) revenue without compromising the quality of services provided. OPWDD has also reviewed and considered the approaches for minimiz- NOTICE OF ADOPTION ing adverse economic impact as suggested in section 202-bb(2)(b) of the State Administrative Procedure Act. OPWDD determined that the revi- Authorizing Antlers of Raquette Lake, Inc. to Abandon Its Water sion to reimbursement proposed in this amendment is the most optimal approach to instituting the necessary change in rate methodology while System and Discontinue Its Provision of Service minimizing any adverse impact on providers. These amendments do not impose any new compliance activities. I.D. No. PSC-51-11-00017-A 6. Participation of public and private interests in rural areas: The Filing Date: 2014-03-31 proposed regulations were discussed at meetings with representatives of Effective Date: 2014-03-31 providers held between August 2013 and January 2014, including providers in rural areas, such as NYSARC, the NYS Association of Community and Residential Agencies, NYS Catholic Conference, and CP Association PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- of NYS. OPWDD also included information on its plans to change the cedure Act, NOTICE is hereby given of the following action: methodology in information about the Transformation Agreement posted Action taken: On 3/27/14, the PSC adopted an order approving the peti- on its website. tion of Antlers of Raquette Lake, Inc. to abandon its water system. OPWDD will be mailing these proposed regulations to all providers, including providers from rural areas. Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1), (10) and 89-h Job Impact Statement A job impact statement is not being submitted for these proposed Subject: Authorizing Antlers of Raquette Lake, Inc. to abandon its water amendments because OPWDD determined that they will not cause a loss system and discontinue its provision of service. of more than 100 full time annual jobs State wide. The proposed regula- Purpose: To authorize Antlers of Raquette Lake, Inc. to abandon its water tions will implement a new reimbursement methodology for ICFs/DD. system and discontinue its provision of service. Application of the new methodology is expected to result in increased Substance of final rule: The Commission, on March 27, 2014, adopted an rates for some non-state operated providers and decreased rates for others. order approving a petition of Antlers of Raquette Lake, Inc. to abandon its However, overall reimbursement to providers will not be changed. Some providers will experience a decrease in reimbursement as a result water system and discontinue its provision of service, subject to the terms of these amendments. OPWDD expects that most providers in this situa- and conditions set forth in the order. tion will be able to accommodate the reduction in revenue by making Final rule as compared with last published rule: No changes. programs more efficient without compromising the quality of services. Text of rule may be obtained from: Deborah Swatling, Public Service However, some providers may effectuate a modest reduction in employ- Commission, Three Empire State Plaza, Albany, New York 12223, (518) ment opportunities as a result of the decrease in revenue. At the same 486-2659, email: [email protected] An IRS employer ID no. time, other providers that experience an increase in reimbursement may or social security no. is required from firms or persons to be billed 25 commensurately increase employment opportunities. Therefore, OPWDD cents per page. Please use tracking number found on last line of notice in expects that there will be no overall effect on jobs and employment op- requests. portunities as a result of these amendments. Assessment of Public Comment An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the Public Service Commission State Administrative Procedure Act. (11-W-0600SA1) NOTICE OF ADOPTION NOTICE OF ADOPTION

Authorizing Antlers of Raquette Lake, Inc. to Abandon Its Water Approving, in Part, AET's and Seneca's Petition for Rehearing System and Discontinue Its Provision of Service I.D. No. PSC-15-13-00012-A I.D. No. PSC-19-04-00010-A Filing Date: 2014-03-31 Filing Date: 2014-03-31 Effective Date: 2014-03-31 Effective Date: 2014-03-31 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: cedure Act, NOTICE is hereby given of the following action: Action taken: On 3/27/14, the PSC adopted an order approving, in part, Action taken: On 3/27/14, the PSC adopted an order approving the peti- Alliance Energy Transmission, LLC's (AET) and Seneca Power Partners, tion of Antlers of Raquette Lake, Inc. to abandon its water system. L.P.'s (Seneca) petition for rehearing. Statutory authority: Public Service Law, section 89-h Statutory authority: Public Service Law, sections 66(1), (2), (3), (5), (8), Subject: Authorizing Antlers of Raquette Lake, Inc. to abandon its water (9), (10), (12) and 72 system and discontinue its provision of service. Subject: Approving, in part, AET's and Seneca's petition for rehearing. Purpose: To authorize Antlers of Raquette Lake, Inc. to abandon its water Purpose: To approve, in part, AET's and Seneca's petition for rehearing. system and discontinue its provision of service. Substance of final rule: The Commission, on March 27, 2014, adopted an Substance of final rule: The Commission, on March 27, 2014, adopted an order approving, in part, Alliance Energy Transmission, LLC’s and Seneca order approving a petition of Antlers of Raquette Lake, Inc. to abandon its Power Partners, L.P.’s petition for rehearing, subject to the terms and water system and discontinue its provision of service, subject to the terms conditions set forth in the order. and conditions set forth in the order. Final rule as compared with last published rule: No changes. Final rule as compared with last published rule: No changes. Text of rule may be obtained from: Deborah Swatling, Public Service Text of rule may be obtained from: Deborah Swatling, Public Service Commission, Three Empire State Plaza, Albany, New York 12223, (518) Commission, Three Empire State Plaza, Albany, New York 12223, (518) 486-2659, email: [email protected] An IRS employer ID no. 486-2659, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 or social security no. is required from firms or persons to be billed 25 cents per page. Please use tracking number found on last line of notice in cents per page. Please use tracking number found on last line of notice in requests. requests. Assessment of Public Comment Assessment of Public Comment An assessment of public comment is not submitted with this notice because An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. State Administrative Procedure Act. (12-G-0256SA2)

25 Rule Making Activities NYS Register/April 16, 2014

NOTICE OF ADOPTION NOTICE OF ADOPTION

Approving Snow Lake's Transfer of Stocks to a New Owner Authorizing Surcharge for Costs for Infrastructure Maintenance and Access I.D. No. PSC-47-13-00011-A Filing Date: 2014-03-31 I.D. No. PSC-53-13-00008-A Filing Date: 2014-03-27 Effective Date: 2014-03-31 Effective Date: 2014-03-27

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: cedure Act, NOTICE is hereby given of the following action: Action taken: On 3/27/14, the PSC adopted an order approving a petition Action taken: On 3/27/14, the PSC adopted an order approving a petition of the Snow Lake Utilities Corporation (Snow Lake) to transfer its stock of the City of New Rochelle to have costs for infrastructure maintenance to a new owner. and access be included in the rates charged to all customer classes within Statutory authority: Public Service Law, sections 89-c(1), (10) and 89-h the City of New Rochelle. Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1) Subject: Approving Snow Lake's transfer of stocks to a new owner. and (10) Purpose: To approve Snow Lake's transfer of stocks to a new owner. Subject: Authorizing surcharge for costs for infrastructure maintenance Substance of final rule: The Commission, on March 27, 2014, adopted an and access. order approving the transfer of Snow Lake Utilities Corporation from Purpose: To authorize surcharge for costs for infrastructure maintenance Richard B. Purdue to Nathan E. Kullman, subject to the terms and condi- and access. tions set forth in the order. Substance of final rule: The Commission, on March 27, 2014, adopted an Final rule as compared with last published rule: No changes. order approving the petition of the City of New Rochelle authorizing Text of rule may be obtained from: Deborah Swatling, Public Service United Water New Rochelle, Inc. to recover a surcharge for infrastructure Commission, Three Empire State Plaza, Albany, New York 12223, (518) maintenance and access from each class of customers within the City of 486-2659, email: [email protected] An IRS employer ID no. New Rochelle, subject to the terms and conditions set forth in the order. or social security no. is required from firms or persons to be billed 25 Final rule as compared with last published rule: No changes. cents per page. Please use tracking number found on last line of notice in Text of rule may be obtained from: Deborah Swatling, Public Service requests. Commission, Three Empire State Plaza, Albany, New York 12223, (518) Assessment of Public Comment 486-2659, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 An assessment of public comment is not submitted with this notice because cents per page. Please use tracking number found on last line of notice in the rule is within the definition contained in section 102(2)(a)(ii) of the requests. State Administrative Procedure Act. Assessment of Public Comment (13-W-0485SA1) An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the NOTICE OF ADOPTION State Administrative Procedure Act. Approval of the Emergency Action on a Permanent Basis (13-W-0548SA1) I.D. No. PSC-50-13-00002-A NOTICE OF ADOPTION Filing Date: 2014-03-28 Approval of the Amended Electric Emergency Response Plans Effective Date: 2014-03-28 for NYSEG, RG&E, Con Ed, O&R, Central Hudson and National Grid PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- I.D. No. PSC-53-13-00009-A cedure Act, NOTICE is hereby given of the following action: Filing Date: 2014-03-28 Action taken: On 3/27/14, the PSC adopted an order approving on a permanent basis, an emergency action allowing Helios Power Capital LLC to Effective Date: 2014-03-28 assume from Dynegy Danskammer LLC, the responsibility of notification of the retirement of the 530 MW Danskammer Generation Station. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Statutory authority: Public Service Law, sections 5(1)(b), 65(1), (2), (3), cedure Act, NOTICE is hereby given of the following action: 66(1), (3), (5), (8), (10) and 70 Action taken: On 3/27/14, the PSC adopted an order approving the Subject: Approval of the emergency action on a permanent basis. amended Electric Emergency Response Plans as filed by the electric utilities' (NYSEG, RG&E, Con Ed, Orange and Rockland, National Grid and Purpose: To approve the emergency action on a permanent basis. Central Hudson). Substance of final rule: The Commission, on March 27, 2014, adopted an Statutory authority: Public Service Law, sections 5 and 66(21) order approving the emergency action on a permanent basis to substitute Subject: Approval of the amended electric emergency response plans for Dynegy Danskammer, LLC with Helios Power Capital, LLC as the entity NYSEG, RG&E, Con Ed, O&R, Central Hudson and National Grid. responsible for filing notice that the retirement of the 530 MW Danskam- Purpose: To approve the amended electric emergency response plans for mer Generation Station, and established further procedures, subject to the NYSEG, RG&E, Con Ed, O&R, Central Hudson and National Grid. terms and conditions set forth in the order. Substance of final rule: The Commission, on March 27, 2014, adopted an Final rule as compared with last published rule: No changes. order approving the amended Electric Emergency Response Plans filed by Text of rule may be obtained from: Deborah Swatling, Public Service Central Hudson Gas & Electric Corporation, Consolidated Edison Commission, Three Empire State Plaza, Albany, New York 12223, (518) Company of New York, Inc., New York State Electric & Gas Corporation, 486-2659, email: [email protected] An IRS employer ID no. Niagara Mohawk Power Corporation d/b/a National Grid, Orange & or social security no. is required from firms or persons to be billed 25 Rockland Utilities, Inc., and Rochester Gas and Electric Corporation, cents per page. Please use tracking number found on last line of notice in subject to the terms and conditions set forth in the order. requests. Final rule as compared with last published rule: No changes. Assessment of Public Comment Text of rule may be obtained from: Deborah Swatling, Public Service An assessment of public comment is not submitted with this notice because Commission, Three Empire State Plaza, Albany, New York 12223, (518) 486-2659, email: [email protected] An IRS employer ID no. the rule is within the definition contained in section 102(2)(a)(ii) of the or social security no. is required from firms or persons to be billed 25 State Administrative Procedure Act. cents per page. Please use tracking number found on last line of notice in (13-E-0012EA1) requests.

26 NYS Register/April 16, 2014 Rule Making Activities

Assessment of Public Comment Commission, Three Empire State Plaza, Albany, New York 12223, (518) An assessment of public comment is not submitted with this notice because 486-2659, email: [email protected] An IRS employer ID no. the rule is within the definition contained in section 102(2)(a)(ii) of the or social security no. is required from firms or persons to be billed 25 State Administrative Procedure Act. cents per page. Please use tracking number found on last line of notice in (13-E-0550SA1) requests. Assessment of Public Comment NOTICE OF ADOPTION An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the Authorizing Surcharge for Costs for Infrastructure Maintenance State Administrative Procedure Act. and Access (13-W-0581SA1) I.D. No. PSC-01-14-00022-A NOTICE OF ADOPTION Filing Date: 2014-03-27 Effective Date: 2014-03-27 Authorizing Surcharge for Costs for Infrastructure Maintenance and Access PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- I.D. No. PSC-03-14-00011-A cedure Act, NOTICE is hereby given of the following action: Filing Date: 2014-03-27 Action taken: On 3/27/14, the PSC adopted an order approving a petition of the Village of Hastings-on-Hudson to have costs for infrastructure Effective Date: 2014-03-27 maintenance and access be included in the rates charged to all customer classes within the Village of Hastings-on-Hudson. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1) cedure Act, NOTICE is hereby given of the following action: and (10) Action taken: On 3/27/14, the PSC adopted an order approving a petition Subject: Authorizing surcharge for costs for infrastructure maintenance of the Village of Dobbs Ferry to have costs for infrastructure maintenance and access. and access be included in the rates charged to all customer classes within Purpose: To authorize surcharge for costs for infrastructure maintenance the Village of Dobbs Ferry. and access. Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1) Substance of final rule: The Commission, on March 27, 2014, adopted an and (10) order approving the petition of the Village of Hastings-on-Hudson Subject: Authorizing surcharge for costs for infrastructure maintenance authorizing United Water New Rochelle, Inc. to recover a surcharge for and access. infrastructure maintenance and access from each class of customers within Purpose: To authorize surcharge for costs for infrastructure maintenance the Village of Hastings-on-Hudson, subject to the terms and conditions set and access. forth in the order. Substance of final rule: The Commission, on March 27, 2014, adopted an Final rule as compared with last published rule: No changes. order approving the petition of the Village of Dobbs Ferry authorizing Text of rule may be obtained from: Deborah Swatling, Public Service United Water New Rochelle, Inc. to recover a surcharge for infrastructure Commission, Three Empire State Plaza, Albany, New York 12223, (518) maintenance and access from each class of customers within the Village 486-2659, email: [email protected] An IRS employer ID no. of Dobbs Ferry, subject to the terms and conditions set forth in the order. or social security no. is required from firms or persons to be billed 25 Final rule as compared with last published rule: No changes. cents per page. Please use tracking number found on last line of notice in Text of rule may be obtained from: Deborah Swatling, Public Service requests. Commission, Three Empire State Plaza, Albany, New York 12223, (518) Assessment of Public Comment 486-2659, email: [email protected] An IRS employer ID no. An assessment of public comment is not submitted with this notice because or social security no. is required from firms or persons to be billed 25 the rule is within the definition contained in section 102(2)(a)(ii) of the cents per page. Please use tracking number found on last line of notice in State Administrative Procedure Act. requests. (13-W-0553SA1) Assessment of Public Comment An assessment of public comment is not submitted with this notice because NOTICE OF ADOPTION the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. Authorizing Surcharge for Costs for Infrastructure Maintenance (13-W-0577SA1) and Access I.D. No. PSC-03-14-00010-A NOTICE OF ADOPTION Filing Date: 2014-03-27 Authorizing Surcharge for Costs for Infrastructure Maintenance Effective Date: 2014-03-27 and Access I.D. No. PSC-03-14-00012-A PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: Filing Date: 2014-03-27 Action taken: On 3/27/14, the PSC adopted an order approving a petition Effective Date: 2014-03-27 of the Village of Ardsley to have costs for infrastructure maintenance and access be included in the rates charged to all customer classes within the PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Village of Ardsley. cedure Act, NOTICE is hereby given of the following action: Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1) Action taken: On 3/27/14, the PSC adopted an order approving a petition and (10) of the Village of Port Chester to have costs for infrastructure maintenance Subject: Authorizing surcharge for costs for infrastructure maintenance and access be included in the rates charged to all customer classes within and access. the Village of Port Chester. Purpose: To authorize surcharge for costs for infrastructure maintenance Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1) and access. and (10) Substance of final rule: The Commission, on March 27, 2014, adopted an Subject: Authorizing surcharge for costs for infrastructure maintenance order approving the petition of the Village of Ardsley authorizing United and access. Water New Rochelle, Inc. to recover a surcharge for infrastructure mainte- Purpose: To authorize surcharge for costs for infrastructure maintenance nance and access from each class of customers within the Village of and access. Ardsley, subject to the terms and conditions set forth in the order. Substance of final rule: The Commission, on March 27, 2014, adopted an Final rule as compared with last published rule: No changes. order approving the petition of the Village of Port Chester authorizing Text of rule may be obtained from: Deborah Swatling, Public Service United Water Westchester, Inc. to recover a surcharge for infrastructure

27 Rule Making Activities NYS Register/April 16, 2014 maintenance and access from each class of customers within the Village Substance of final rule: The Commission, on March 27, 2014, adopted an of Port Chester, subject to the terms and conditions set forth in the order. order approving, with modifications, a petition of Niagara Mohawk Power Final rule as compared with last published rule: No changes. Corporation d/b/a National Grid, to modify its electric Economic Develop- Text of rule may be obtained from: Deborah Swatling, Public Service ment Programs, subject to the terms and conditions set forth in the order. Commission, Three Empire State Plaza, Albany, New York 12223, (518) Final rule as compared with last published rule: No changes. 486-2659, email: [email protected] An IRS employer ID no. Text of rule may be obtained from: Deborah Swatling, Public Service or social security no. is required from firms or persons to be billed 25 Commission, Three Empire State Plaza, Albany, New York 12223, (518) cents per page. Please use tracking number found on last line of notice in 486-2659, email: [email protected] An IRS employer ID no. requests. or social security no. is required from firms or persons to be billed 25 Assessment of Public Comment cents per page. Please use tracking number found on last line of notice in An assessment of public comment is not submitted with this notice because requests. the rule is within the definition contained in section 102(2)(a)(ii) of the Assessment of Public Comment State Administrative Procedure Act. An assessment of public comment is not submitted with this notice because (13-W-0578SA1) the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. NOTICE OF ADOPTION (12-E-0201SA5) Authorizing Surcharge for Costs for Infrastructure Maintenance NOTICE OF ADOPTION and Access Approving, with Modifications, National Grid's Revisions to Its I.D. No. PSC-03-14-00013-A Gas Economic Development Program Filing Date: 2014-03-27 I.D. No. PSC-04-14-00009-A Effective Date: 2014-03-27 Filing Date: 2014-03-28 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Effective Date: 2014-03-28 cedure Act, NOTICE is hereby given of the following action: Action taken: On 3/27/14, the PSC adopted an order approving a petition PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- of the Village of Pelham Manor to have costs for infrastructure mainte- cedure Act, NOTICE is hereby given of the following action: nance and access be included in the rates charged to all customer classes Action taken: On 3/27/14, the PSC adopted an order approving, with within the Village of Pelham Manor. modifications, the petition of Niagara Mohawk Power Corporation d/b/a Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1) National Grid (National Grid) to modify its gas Economic Development and (10) Programs. Subject: Authorizing surcharge for costs for infrastructure maintenance Statutory authority: Public Service Law, sections 4, 5 and 66 and access. Subject: Approving, with modifications, National Grid's revisions to its Purpose: To authorize surcharge for costs for infrastructure maintenance gas Economic Development Program. and access. Purpose: To approve, with modifications, National Grid's revisions to its Substance of final rule: The Commission, on March 27, 2014, adopted an gas Economic Development Program. order approving the petition of the Village of Pelham Manor authorizing Substance of final rule: The Commission, on March 27, 2014, adopted an United Water New Rochelle, Inc. to recover a surcharge for infrastructure order approving, with modifications, a petition of Niagara Mohawk Power maintenance and access from each class of customers within the Village Corporation d/b/a National Grid, to modify its gas Economic Develop- of Pelham Manor, subject to the terms and conditions set forth in the order. ment Programs, subject to the terms and conditions set forth in the order. Final rule as compared with last published rule: No changes. Final rule as compared with last published rule: No changes. Text of rule may be obtained from: Deborah Swatling, Public Service Text of rule may be obtained from: Deborah Swatling, Public Service Commission, Three Empire State Plaza, Albany, New York 12223, (518) Commission, Three Empire State Plaza, Albany, New York 12223, (518) 486-2659, email: [email protected] An IRS employer ID no. 486-2659, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 or social security no. is required from firms or persons to be billed 25 cents per page. Please use tracking number found on last line of notice in cents per page. Please use tracking number found on last line of notice in requests. requests. Assessment of Public Comment Assessment of Public Comment An assessment of public comment is not submitted with this notice because An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. State Administrative Procedure Act. (13-W-0579SA1) (12-G-0202SA3) NOTICE OF ADOPTION NOTICE OF ADOPTION

Approving, with Modifications, National Grid's Revisions to Its Modifying National Grid's PSC 220—Electricity to Implement Electric Economic Development Program the Agricultural Consumer Electricity Cost Discount Program I.D. No. PSC-04-14-00007-A I.D. No. PSC-05-14-00007-A Filing Date: 2014-03-28 Filing Date: 2014-03-27 Effective Date: 2014-03-28 Effective Date: 2014-03-27

28 NYS Register/April 16, 2014 Rule Making Activities

Substance of final rule: The Commission, on March 27, 2014, adopted an Purpose: To modify NYSEG's PSC 120—Electricity to implement the order approving Niagara Mohawk Power Corporation d/b/a National Agricultural Consumer Electricity Cost Discount Program. Grid’s tariff revisions to PSC No. 220—Electricity, regarding ReCharge Substance of final rule: The Commission, on March 27, 2014, adopted an New York Power Program Act, to implement the Agricultural Consumer order approving New York State Electric & Gas Corporation’s tariff revi- Electricity Cost Discount Program. sions to PSC No. 120—Electricity, regarding ReCharge New York Power Final rule as compared with last published rule: No changes. Program Act, to implement the Agricultural Consumer Electricity Cost Text of rule may be obtained from: Deborah Swatling, Public Service Discount Program. Commission, Three Empire State Plaza, Albany, New York 12223, (518) Final rule as compared with last published rule: No changes. 486-2659, email: [email protected] An IRS employer ID no. Text of rule may be obtained from: Deborah Swatling, Public Service or social security no. is required from firms or persons to be billed 25 Commission, Three Empire State Plaza, Albany, New York 12223, (518) cents per page. Please use tracking number found on last line of notice in 486-2659, email: [email protected] An IRS employer ID no. requests. or social security no. is required from firms or persons to be billed 25 Assessment of Public Comment cents per page. Please use tracking number found on last line of notice in An assessment of public comment is not submitted with this notice because requests. the rule is within the definition contained in section 102(2)(a)(ii) of the Assessment of Public Comment State Administrative Procedure Act. An assessment of public comment is not submitted with this notice because (11-E-0176SA13) the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. NOTICE OF ADOPTION (11-E-0176SA12)

Modifying RG&E's PSC 19—Electricity to Implement the PROPOSED RULE MAKING Agricultural Consumer Electricity Cost Discount Program NO HEARING(S) SCHEDULED I.D. No. PSC-05-14-00008-A Whether to Grant, Deny or Modify, in Whole or in Part, the Filing Date: 2014-03-27 Petition for Rehearing by Comverge, Inc., et al Effective Date: 2014-03-27 I.D. No. PSC-15-14-00006-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: cedure Act, NOTICE is hereby given of the following proposed rule: Action taken: On 3/27/14, the PSC adopted an order approving Rochester Proposed Action: The Commission is considering whether to grant, deny Gas and Electric Corporation (RG&E) tariff revisions to its PSC No. 19— or modify, in whole or in part, the petition for rehearing by Comverge, Electricity to implement the Agricultural Consumer Electricity Cost Inc., et al., seeking modification of the Demand Response programs Discount Program. established by the Commission in an Order dated March 13, 2014. Statutory authority: Public Service Law, section 66(12) Statutory authority: Public Service Law, sections 22, 65(1), 66(1) and Subject: Modifying RG&E's PSC 19—Electricity to implement the Agri- (12)(a) cultural Consumer Electricity Cost Discount Program. Subject: Whether to grant, deny or modify, in whole or in part, the peti- Purpose: To modify RG&E's PSC 19—Electricity to implement the Agri- tion for rehearing by Comverge, Inc., et al. cultural Consumer Electricity Cost Discount Program. Purpose: Whether to grant, deny or modify, in whole or in part, the petition for rehearing by Comverge, Inc., et al. Substance of final rule: The Commission, on March 27, 2014, adopted an order approving Rochester Gas and Electric Corporation’s tariff revisions Substance of proposed rule: The Public Service Commission is consider- to PSC No. 19—Electricity, regarding ReCharge New York Power ing whether to grant, deny or modify, in whole or in part, a petition for Program Act, to implement the Agricultural Consumer Electricity Cost rehearing dated March 25, 2014 by Comverge, Inc., EnergyConnect, Discount Program. EnerNOC, Inc., and Innoventive Power, LLC (Petitioners) seeking rehearing of the Commission’s Order Adopting Tariff Revisions With Modifica- Final rule as compared with last published rule: No changes. tions dated March 13, 2014. According to the Petitioners, the Commission Text of rule may be obtained from: Deborah Swatling, Public Service should modify its Order and adopt the Demand Response pricing proposed Commission, Three Empire State Plaza, Albany, New York 12223, (518) by Consolidated Edison Company of New York, Inc. (Con Edison) in its 486-2659, email: [email protected] An IRS employer ID no. original tariff filing. In addition, the Petitioners also request that the Com- or social security no. is required from firms or persons to be billed 25 mission restructure the incentive payment as follows: cents per page. Please use tracking number found on last line of notice in 1. Make the three-year incentive payment contingent upon the customer requests. performing on average of 80% or higher across all hours in each season. Assessment of Public Comment 2. Instead of completely resetting the clock in any season where the An assessment of public comment is not submitted with this notice because customer dropped below 80% on average, simply throw that year out and the rule is within the definition contained in section 102(2)(a)(ii) of the don’t allow it to count toward the three years. State Administrative Procedure Act. 3. Clarify that the same customer can receive a three-year incentive (11-E-0176SA14) payment more than once as long as they meet the Commission requirements. NOTICE OF ADOPTION 4. Eliminate the requirement to pledge an amount of load reduction in years two and three of the three-year incentive period that is equal to or Modifying NYSEG's PSC 120-Electricity to Implement the higher than the first year amount. Agricultural Consumer Electricity Cost Discount Program Text of proposed rule and any required statements and analyses may be obtained by filing a Document Request Form (F-96) located on our I.D. No. PSC-05-14-00012-A website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Filing Date: 2014-03-27 Deborah Swatling, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 486-2659, email: Effective Date: 2014-03-27 [email protected] Data, views or arguments may be submitted to: Kathleen H. Burgess, PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Secretary, Public Service Commission, 3 Empire State Plaza, Albany, cedure Act, NOTICE is hereby given of the following action: New York 12223-1350, (518) 474-6530, email: [email protected] Action taken: On 3/27/14, the PSC adopted an order approving New York Public comment will be received until: 45 days after publication of this State Electric & Gas Corporation's (NYSEG) tariff revisions to its PSC notice. No. 120—Electricity to implement the Agricultural Consumer Electricity Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Cost Discount Program. Area Flexibility Analysis and Job Impact Statement Statutory authority: Public Service Law, section 66(12) Statements and analyses are not submitted with this notice because the Subject: Modifying NYSEG's PSC 120—Electricity to implement the proposed rule is within the definition contained in section 102(2)(a)(ii) of Agricultural Consumer Electricity Cost Discount Program. the State Administrative Procedure Act.

29 Rule Making Activities NYS Register/April 16, 2014

(13-E-0573SP2) Data, views or arguments may be submitted to: Kathleen H. Burgess, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, PROPOSED RULE MAKING New York 12223-1350, (518) 474-6530, email: [email protected] NO HEARING(S) SCHEDULED Public comment will be received until: 45 days after publication of this notice. Petition for Submetering of Electricity Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement I.D. No. PSC-15-14-00007-P 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: (14-G-0107SP1) Proposed Action: The Public Service Commission is considering whether to grant, deny or modify, in whole or part, the petition filed by Durst PROPOSED RULE MAKING Development LLC to submeter electricity at 625 West 57th Street, New NO HEARING(S) SCHEDULED York, New York. Statutory authority: Public Service Law, sections 2, 4(1), 30, 32-48, 52, Revision to Service Classification No. 1 — Street Lighting Service 53, 65(1), 66(1), (2), (3), (4), (12) and (14) Subject: Petition for submetering of electricity. I.D. No. PSC-15-14-00009-P Purpose: To consider the request of Durst Development LLC to submeter electricity at 625 West 57th Street, New York, New York. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Substance of proposed rule: The Public Service Commission is consider- cedure Act, NOTICE is hereby given of the following proposed rule: ing whether to grant, deny or modify, in whole or part, the petition filed by Proposed Action: The Public Service Commission is considering a tariff Durst Development LLC to submeter electricity at 625 West 57th Street, filing by Rochester Gas and Electric Corporation proposing revisions to New York, New York, located in the territory of Consolidated Edison Service Classification No. 1, Street Lighting Service, in P.S.C. No. 18 — Company of New York, Inc. Electricity, to become effective July 1, 2014. Text of proposed rule and any required statements and analyses may be Statutory authority: Public Service Law, section 66(12) obtained by filing a Document Request Form (F-96) located on our Subject: Revision to Service Classification No. 1 — Street Lighting website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Service. Deborah Swatling, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 486-2659, email: Purpose: Street Lighting - addition of metal halide arc lighting to Service [email protected] Classification No. 1. Data, views or arguments may be submitted to: Kathleen H. Burgess, Substance of proposed rule: The Commission is considering whether to Secretary, Public Service Commission, 3 Empire State Plaza, Albany, approve, modify or reject, in whole or in part, a tariff filing by Rochester New York 12223-1350, (518) 474-6530, email: [email protected] Gas and Electric Corporation to add Metal Halide Arc Lighting under Ser- vice Classification No. 1, Street Lighting Service, to P.S.C. No. 18. — Public comment will be received until: 45 days after publication of this Electricity. The proposed filing has an effective date of July 1, 2014. notice. Text of proposed rule and any required statements and analyses may be Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural obtained by filing a Document Request Form (F-96) located on our Area Flexibility Analysis and Job Impact Statement website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Statements and analyses are not submitted with this notice because the Deborah Swatling, Public Service Commission, 3 Empire State Plaza, proposed rule is within the definition contained in section 102(2)(a)(ii) of Albany, New York 12223-1350, (518) 486-2659, email: the State Administrative Procedure Act. [email protected]. (14-E-0104SP1) Data, views or arguments may be submitted to: Kathleen H. Burgess, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, PROPOSED RULE MAKING New York 12223-1350, (518) 474-6530, email: [email protected] NO HEARING(S) SCHEDULED Public comment will be received until: 45 days after publication of this notice. Methodology of Bill Proration in Conformance with the New Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Customer Information System Area Flexibility Analysis and Job Impact Statement Statements and analyses are not submitted with this notice because the I.D. No. PSC-15-14-00008-P proposed rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- (14-E-0106SP1) cedure Act, NOTICE is hereby given of the following proposed rule: Proposed Action: The Commission is considering a tariff filing by National Fuel Gas Distribution Corporation to revise the current methodology of bill proration in conformance with its proposed Customer Informa- tion System in P.S.C. No. 8 — Gas to become eff. 8/18/2014. Statutory authority: Public Service Law, section 66(12) Subject: Methodology of bill proration in conformance with the new Customer Information System. Purpose: To approve the current methodology of bill proration in conformance with the new Customer Information System. Substance of proposed rule: The Commission is considering whether to approve, modify or reject, in whole or in part, a P.S.C. No. 8 - Gas tariff filing submitted by National Fuel Gas Distribution Corporation to revise the current methodology of bill proration in conformance with its proposed Customer Information System. The proposed filing has an effective date of August 18, 2014. 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: Deborah Swatling, Public Service Commission, 3 Empire State Plaza, Albany, New York 12223-1350, (518) 486-2659, email: [email protected]