NYS Assembly
Review Commission

Sheldon Silver, Speaker • Ruben Diaz, Jr., Chair • August 2004

  From the Chair

Dear Friends:

Turn on the television news or read the papers and you will see stories on the major issues before the Legislature. Budget reform, education funding and changing the Rockefeller drug laws receive a lot of media attention. You don’t hear a lot about some other big decisions made in Albany – the rules and regulations issued by dozens of state agencies – but they can have just as much of an impact on people’s lives.

Unfortunately, unlike elected officials, regulators don’t have to answer to the voters, and sometimes don’t seem to pay much attention to people’s real-world concerns.

My role as Assembly Chairman of the Administrative Regulations Review Commission is to try to make sure that the needs of the public are considered by regulators. Sometimes they listen. When an agency planned to make public assistance recipients pay a fee to replace a lost or stolen EBT card, I objected that this was unfair to crime victims and would end up costing the State more money than it would make. They listened to my reasons and — at least for now — that wrong idea has been dropped.

It is gratifying to be able to help people in my community and throughout New York State by making agencies think twice before imposing policies that will not really benefit the public. I invite you to contact the ARRC office for more information on the issues addressed in this newsletter or to share your views on other regulatory matters of concern to you.

Very truly yours,

Ruben Diaz, Jr.

2004 Session
  Accomplishments: Legislation

Regulatory Reform
The Administrative Regulations Review Commission (ARRC) is charged by law to oversee the rules and regulations adopted by New York State agencies, and to develop and promote legislation to reform the process they use to create rules. These rules and regulations have the force and effect of law, and often significantly impact the lives of New Yorkers.

In 2004, Assemblyman Diaz introduced three new bills to reform the rule-making process:

A.10083 continues and improves the process for publishing semi-annual “regulatory agendas” — listings of regulations that an agency is working on but that have not yet been released for public comment. The “reg agenda” provides an early opportunity for public feedback on whether a regulatory concept has merit and on how its goals can best be achieved. A.10083 extends until 2008 the requirement for a group of major regulatory agencies to publish regulatory agendas, and adds two agencies with substantial regulatory workloads – the Department of Motor Vehicles and the Department of State – to this group. The bill also encourages agencies to include an e-mail address where comments on the rules listed in the agenda can be sent, and allows an agency to skip one of its two annual publications — provided it keeps an up-to-date version posted on the Internet.

A.10083 is sponsored in the other house by the Senate ARRC Chairman, Senator John Flanagan. It has passed both houses and will be soon sent to the Governor for executive action.

A.11236 makes permanent an experimental program the Legislature began in 2001. Chapter 479 of the Laws of 2001 set up a petition process for local governments seeking approval of innovative ways of complying with regulatory mandates. The “alternate methods” law gives cities, counties, school districts and other local governments more operational flexibility, but still contains safeguards to ensure that public health and safety and the needs of public employees are not compromised. The New York State School Boards Association called its initial passage one of the highlights of the 2001 session.

Any program that can make government more effective deserves to be made permanent. A.11236, which was sponsored in the Senate by Senator Mary Lou Rath, has been signed into law as Chapter 125 of the Laws of 2004.

A.10112 would make the rulemaking process more effective by eliminating a required “notice of continuation.” Currently, agencies must file this notice not later than 180 days after proposing the rule or it cannot be adopted. This technicality serves no useful requirement, but only makes it harder for regulators to adopt health and safety protections. For example, earlier this year, major rule changes adopted by the Department of Environmental Conservation to fight air pollution were overturned in court because the agency missed the deadline to file a notice of continuation.

A.10112 also provides that when an agency withdraws a proposed rule from consideration, it must give a brief explanation of the reasons for doing so. This will keep the public from having to guess why a rule change is being dropped from consideration. A.10112 is currently in the Assembly Committee on Governmental Operations.

The Legislature also passed two other significant regulatory reform measures. A.345-A (Christensen) allows small businesses and local governments to pay any fees or civil penalties they owe amounting to more than $300 on an installment basis. This bill has strong support from the State’s small business community. A.2645-A (McLaughlin) aims to prevent agencies from abusing their ability to bypass public comment and issue rules immediately as “emergency rules”. A.2645-B tightens the standards for emergency rules to apply to only situations that constitute an “imminent and substantial threat” to public health, safety or welfare. These bills will also be sent to the Governor for his action.

Another regulatory reform bill introduced by Assemblyman Diaz is moving through the legislative process. Many state agencies issue guidelines, memoranda and other “guidance documents” that provide details on how to comply with rules and regulations. A.8478-A requires agencies to either post such documents on the Internet, or to publish a list of them along with information on how to obtain copies. It also requires each agency to involve the public in a process to review and update guidance documents at least once every five years.

This bill has already passed the Senate and is currently in the Assembly Governmental Operations Committee. Action by the full Assembly may occur later this year.

Environmental Justice
Communities of color have all too often been used as convenient dumping grounds for toxic pollution. “Environmental Justice” is a movement to stop this practice and ensure that all segments of society share equally in environmental benefits and burdens. Assemblyman Diaz, who represents Bronx neighborhoods like Soundview and Mott Haven, knows all too well the need to build environmental justice into the process of environmental regulation, and has pushed the issue as the Assembly ARRC Chair. In addition to seeking passage of legislation, this has involved questioning permits for polluting facilities, such as the Title V air pollution permits for the New York Power Authority’s Hell Gate and Harlem River Yards power plant complexes.

This session, the Assembly once again passed A.7862-A, Assemblyman Diaz’s bill to use cutting-edge computer technology to help resolve environmental justice issues. The bill requires the Department of Environmental Conservation (DEC) to analyze data on pollution and identify the communities that are currently exposed to the highest toxic burden. This bill has been sent on to the Senate Environmental Conservation Committee.

Assemblyman Diaz also introduced A.8805-A, requiring every state agency that has an impact on the environment to have a formal policy to promote environmental justice. The DEC adopted such a policy last year, but other state agencies operate programs that are not covered by this or any other “EJ” policy. Assemblyman Diaz amended his bill to also require an environmental justice interagency coordinating council, an innovation used at the Federal level. A.8805-A passed the Assembly and is now in the Senate Rules Committee.

Public Assistance Eligibility
Public assistance applicants are required to be present at multiple screenings, assessments and other interviews when applying for assistance, and again when recertifying their eligibility. In New York City, the Human Resources Administration has taken the inflexible approach that families who miss even one appointment will automatically have their cases closed. Such actions entitle the applicant or recipient to a fair hearing, at which he or she usually prevails and has the public assistance grant restored. This whole process is burdensome and time-consuming and wastes funds that could be better spent on assistance.

To rectify this situation, Assemblyman Diaz introduced A.11078-A. It would provide an applicant or recipient with a 15 day window to complete all required interviews and assessments. This approach would save money and would be preferable to the costly practice of prematurely closing cases. A.11078-A is before the Assembly Social Services Committee.

2004 Session
  Accomplishments: Regulatory Issues

To bring you up-to-date on issues addressed in the first half of 2003:

Assemblyman Diaz and his colleagues objected to the imposition of a replacement fee that a public assistance recipient would have to pay each time an electronic benefits transfer (EBT) card was stolen or lost. They stated that this fee would be unfair to recipients who were victims of robbery or burglary, and that the amount collected by social services districts would not even recoup the costs of running the fee collection program. In March of this year, the Office of Temporary & Disability Assistance allowed this ill-conceived proposal to expire.

Assemblyman Diaz and Oversight Committee Chair Assemblyman Jeff Klein reviewed proposed changes to the rules for cable television service. While there were a few positive changes in the proposal, for the most part they were anti-consumer. The proposed rules reduced the credits paid to customers when cable service goes out, curtailed notice to customers of “rates and rights,” and reduced cable company accountability for meeting service standards (such as missed service appointments and constant busy signals when you call the cable company). The Assemblymembers suggested that the Public Service Commission scrap the proposal – and, in November, the agency did just that.

The Assembly ARRC Chair also advocated for the public on several new regulatory issues in 2003 and 2004.

Rent Regulation
In June of 2003, the Division of Housing & Community Renewal proposed to change the way rents are recalculated when the building owner converts to individual electric meters. Although the agency said that its proposal was intended to increase energy conservation, Assemblyman Diaz determined that some of the changes would result in a windfall to building owners, and could in fact discourage purchases of new, more efficient appliances. He also pointed out that the rules did not require that when updated electricity cost data becomes available, it must be used to calculate rents. Although it declined to make most of the pro-tenant changes recommended by Assemblyman Diaz, the agency did change the final version of the rules to include an explicit requirement to use updated data.

Emergency Backup Power
Last year’s blackout underscores the need for “911” call centers to have reliable back-up power. When the State’s 911 Board proposed minimum standards for equipment, however, they required that each public safety answering point must have an “engine driven generator” for backup power. Assemblyman Diaz wrote to the Board to suggest that emerging technologies such as fuel cells should also qualify as emergency power sources, and pointed out that a fuel cell had kept the NYPD Central Park Precinct operational during the blackout. The Board did not accept his suggestion when it adopted the rules in September, 2003, but the Assembly ARRC Chair believes that, over time, state bureaucrats will realize that such technology-limiting regulations are not in the public interest.

Dog Attacks
In the fall of 2003, public concern over dog attacks was heightened by the mauling of a 3-year-old boy in the Bronx by a Rottweiler. Assemblyman Diaz responded by introducing several pieces of legislation to address the problem of irresponsible dog owners. He also directed a review of regulations concerning dangerous dogs. One shortcoming he found was the policy of the State Insurance Department allowing homeowners’ insurers to exclude coverage for whole breeds of dogs they deemed to be dangerous. This means that the victim of a mauling may not be able to recover his or her medical expenses.

In February, Assemblyman Diaz and Assemblyman Pete Grannis, who chairs the Assembly Insurance Committee, wrote to the Department to get the facts behind this policy. They pointed out that there was no consistency in the insurer “blacklists” – some banned Airedales, Huskies and other breeds while others insure them. They also advised that other states like Maryland and Michigan had blocked breed-specific insurance bans. Regrettably, the agency chose to ignore their concerns, but Assemblyman Diaz plans to work with consumer groups and responsible dog owners to ensure that victims of dog attacks are not harmed by the arbitrary actions of insurance companies.

Supplemental Security Income (SSI) Cuts
This January, the Office of Temporary & Disability Assistance (OTDA) proposed to change how a public assistance household’s standard of need is determined when it includes a person receiving SSI benefits. The SSI program provides additional benefits to individuals with disabilities that increase their living expenses. For many years, the policy has been to consider these individuals and their benefits “invisible” and calculate the amount needed to support the remaining members of the household. OTDA proposed to change that to prorate the benefits, so that the household would receive less. For example, instead of treating a household of four people with one receiving SSI benefits as a household of three, OTDA would pay only ¾ of the benefits for a household of four.

Assemblyman Diaz commented that this approach was illegal under New York State law and court decisions, would reduce the benefits of many households in New York City to below the poverty line, and could be considered unconstitutional discrimination against households including people with disabilities. Many advocates for public assistance recipients also raised concerns. However, OTDA recently adopted the changes, which may yet be tested in court.

Nursing Home Criminal History Checks
In February, the Health Department proposed rules requiring fingerprinting and criminal history checks of anyone applying for a job as a nurse’s aide in a nursing home or home health care program. Assemblyman Diaz agreed with the need to protect the vulnerable clients of these programs, but found problems with the proposal.

These included using nonexistent sections of law as the penalties for unauthorized disclosure of criminal history records, which would result in breaches of confidentiality going unpunished. There were also no provisions for conditional hiring of care staff that is needed immediately, meaning that nursing homes could find themselves short-handed in taking care of their residents.

Perhaps most troublesome, given the current consensus that the “Rockefeller drug laws” are too harsh and should be reformed, were the proposed periods of disqualifications for persons with felony convictions. The proposed rules bar hiring anyone convicted of a Class D or E felony (which includes many low-level drug offenses) for a period of ten years. Assemblyman Diaz pointed out that this was twice as long as the disqualification period the Governor sought in a program bill just a few years ago. The Assembly ARRC Chair recommended lessening this period to five years and possibly even less if the individual has successfully completed a drug treatment program. The agency is considering the comments it has received on the rule.

Check Cashing Fees
In March, the Banking Department proposed to raise the maximum fees that licensed check cashers could charge from 1.4% to 1.5% of a check’s face value, with the minimum charge increasing from $0.60 to $1.00. In addition, the rules would include an automatic upward adjustment of the permissible fees anytime the Consumer Price Index goes up. Assemblyman Diaz objected that the increase would be a hardship for people who must use check cashers, and that the agency had only looked at the costs of doing business, and not the sizeable increases in check cashers’ gross revenues (from $200 million in 1998 to over $250 million in 2002). He also pointed out that the law did not allow “automatic pilot” fee hikes.

The Department adopted the rules, but did amend them to require that legislative leaders must be notified 45 days before any fee can be increased.

Health Services in No-Fault Cases
In March, the State Insurance Department proposed new restrictions on health care providers treating auto accident victims. The rules are an attempt to limit the ability of unscrupulous providers to defraud the no-fault system, but there is a danger that such actions may also make it easier for insurers to deny or delay payment of valid claims for treatment. Assemblyman Diaz and the Assembly Insurance Committee Chair, Assemblyman Pete Grannis, submitted comments that suggested clarifying the rules to avoid jeopardizing the rights of injured parties.

For example, the proposal allows insurers to verify that any health care provider is in compliance with all licensing, training and experience requirements required under the Education Law. The Assemblymembers questioned whether this authorized an insurer to independently determine whether an already-licensed provider met educational and “good moral character” requirements. They noted that one Federal court had already rejected the use of similar regulatory language, saying that it could even allow insurers to seek proof that a provider is current on child support payments, since delinquency could result in license revocation. They recommended that the agency place limits on the potential for burdensome misuse of the rules.

Military Mobilization of Teacher Candidates
In March, the State Education Department proposed to exempt persons who are called up for active military duty while pursuing their college coursework to become teachers. The Department had recently adopted new and more stringent requirements for coursework and student teaching experience, but felt that those who were serving their country deserved more time to qualify under the previous standards. Assemblyman Diaz agreed but was concerned that the agency had not provided enough time for those returning from service to meet the old requirements.

The Department proposal allowed a period of time equal to the time spent in active duty to complete the educational requirements for teacher certification. In conjunction with several of his Assembly colleagues, Assemblyman Diaz pointed to the “Patriot Plan” legislation enacted last year. It guarantees that all persons whose college studies are interrupted by military service can take up to one year off upon return without being penalized in any way. The Assembly ARRC Chair was concerned that persons who served short hitches, including those who were wounded in action, would not receive their full rights under the Education Department’s proposal.

Apparently, the Department adopted the rules without taking these comments into consideration. Assemblyman Diaz asked that they review the comments to determine whether the Patriot Plan’s requirements could be accommodated, either through administrative flexibility or a future rulemaking.

Exemption of Student Income
In April, the Office of Temporary & Disability Assistance proposed to update its rules on public assistance eligibility to include recent statutory changes. The Legislature had learned that social services districts were viewing the earnings of college students in public assistance households as available family income. The result was that benefits were cut, the students had to leave college, and the chances of the family for upward mobility were destroyed. Consequently, the Legislature exempted the earnings of both full-time and part-time college students from means tests for public assistance.

In putting together the rules, however, the agency only excluded the earnings of full-time students. Recognizing that some teens can only afford to attend college on a part-time basis, Assemblyman Diaz and Assembly Social Services Chair Deborah Glick submitted comments recommending that the agency clarify that the exemption applies to both full-time and part-time students.

For additional
  information, contact:

Assemblyman Ruben Diaz, Jr.
Assembly Chair
Administrative Regulations Review Commission
Room 419 LOB • Albany, New York 12248
518.455.5514 •

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