2005 Session
Accomplishments: Regulatory Issues
One of the most important activities of ARRC is to review the rules and regulations of state agencies
and to speak out when they become overly bureaucratic or burdensome or don’t make sense. The
Assembly Chair of ARRC frequently comments on proposed rules that are felt to be illegal or that do
not serve the public interest. Although in most cases agencies do not have to make the changes ARRC
recommends, many times agency heads realize that their proposals can be improved if they listen to
public input.
For example, the last ARRC update reported that Assemblyman Diaz and Assemblyman Pete Grannis
commented to the Insurance Department on proposed rules that could let insurers force health care
providers to supply voluminous documentation of their education and experience as a way of delaying
payment of valid claims. The Department withdrew the proposed language in favor of further study.
Comments from Assemblyman Diaz also helped persuade the Health Department to add provisions for
provisional hiring of nursing home staff when it adopted final rules on criminal history checks for nurse’s
aides. Similarly, the Office of Temporary and Disability Assistance agreed with comments Assemblyman
Diaz submitted with Assemblymember Deborah Glick, and exempted the earnings of students attending
college part-time from eligibility determinations for public assistance. This change will encourage young
people to continue to learn and work to achieve upward mobility.
Here are some of the regulatory issues addressed since the last ARRC update:
Safety of Camp Vehicles
Last year, the Health Department proposed changes to its regulations on children’s camps. Assemblyman
Diaz and Assembly Health Committee Chair Richard Gottfried objected to the proposed elimination of the
requirement that all camp vehicles must bear a valid safety inspection sticker. They felt that this could
jeopardize the safety of campers who might be transported in unsafe vehicles. The Department agreed to
retain the requirement for inspection stickers.
Medicaid Utilization Thresholds
In January of this year, Assemblyman Diaz questioned the Health Department on its proposed reductions
in Medicaid utilization thresholds. The thresholds set limits on health services that a Medicaid recipient can
obtain without special authorization. The Department proposed to reduce the number of visits to doctors’
offices or clinics from 10 to 5 a year. Annual lab tests would be cut from 18 to 10, and visits to mental health
clinics would be limited to 30 per year (instead of 40). These proposed reductions seemed to be motivated
by political considerations, and not sound medical practice, and could harm the elderly and infirm. At this
writing, the Department has not yet acted on these rule changes, which were originally planned to take effect
October 1, 2005.
Cable Television
In January, the Public Service Commission proposed numerous changes in its cable television regulations.
Assemblyman Diaz commented along with Assemblyman James Brennan, the Chair of the Assembly
Committee on Oversight, Analysis & Investigation, on several changes that would undermine consumer
protections. For example, companies would no longer have to issue credits for service outages that resulted
from severe weather conditions. The Assemblymembers pointed out that nearby states such as Rhode Island
and Massachusetts require refunds to consumers for storm-related loss of signal. Regrettably, the regulations
adopted by the agency included these anti-consumer provisions.
Voice Dialing
Early in 2005, it was brought to Assemblyman Diaz’s attention that New York’s largest telecommunications
provider was withdrawing its voice dialing service. This service was widely utilized by people who by virtue of age,
visual impairment or other physical condition found it difficult or impossible to manually dial phone numbers.
Assemblyman Diaz questioned whether the Public Service Commission had ensured adequate outreach to
people with disabilities and whether substitution of another optional calling feature was the appropriate solution
for those who had chosen a calling plan with voice dialing as a necessity, not an option. Unfortunately, the agency
was not responsive to these concerns, and Assemblyman Diaz introduced legislation (A.8029) to promote
telecommunications technologies that facilitate accessibility.
Admission to Residential Treatment Facilities
In March, Assemblyman Diaz and Assembly Mental Health Committee Chair Peter Rivera wrote to the Office
of Mental Health about proposed rules on pre-admission certification to residential treatment facilities (RTFs)
for children and youth. The Assemblymembers were concerned that the proposal could make it easier to
inappropriately remove children from waiting lists for RTF admission, and could allow parents or guardians
to override the decision of a Family Court judge that RTF admission was appropriate. The agency agreed to
add language authorizing the pre-admission certification committee to review all documentation and seek more
information before removing a child from the waiting list, and indicated that parental statements that RTF
admission is no longer desired would be reviewed on a case-by-case basis.
Immigrant Status in Foster Care Cases
In March, the Office of Children & Family Services proposed revisions to its foster care rules. One new
provision would have mandated submission of official documents relating to the identification and history of
the child and his or her family, including “documentation of immigration status.” This change was questioned
by Assemblyman Diaz and Assemblyman Adriano Espaillat, who chaired the Assembly Task Force on New
Americans. They pointed out that this provision was broader than Federal regulations required and that the
potential for irrelevant inquiries could create barriers to services and family reunification. The agency agreed
and limited the final regulatory language to addressing documentation of the foster child’s immigration status.
Immigrants’ Drivers Licenses
In March, Assemblyman Diaz wrote to the Commissioner of Motor Vehicles to object to a new policy that required
people seeking new or renewed driver’s licenses to prove that they were either U.S. citizens or in full compliance
with all immigration laws. Assemblyman Diaz pointed out that the agency’s own regulations provided only that an
applicant must submit a social security number or proof that he or she was not eligible for a social security number.
However, the new policy was resulting in unfair denials of licenses in many instances. For example, no license
would be issued to a person who had less than six months remaining on a work visa – even though these
documents are commonly extended.
Assemblyman Diaz complained that motorists were at the mercy of untrained motor vehicles clerks who frequently
made errors in evaluating complicated immigration documents, and that the policy was causing hardship to
families and employers who relied on immigrant drivers. In May, a judge enjoined the Department from enforcing
its policy, and the case is still proceeding towards a final decision.
UCCFs
In December of 2004, the Department of Environmental Conservation (DEC) proposed to change the permit
requirements for utility-generated hazardous wastes. Instead of requiring permits for locations where wastes
contaminated with toxins such as lead, benzene and PCBs were stored, DEC proposed to allow the operation
of “Utility-Owned Central Collection Facilities” (UCCFs) without a permit and after only limited public review.
Assemblyman Diaz and Assembly Environmental Conservation Committee Chair Tom DiNapoli wrote to DEC
to point out that this change would undercut the agency’s environmental justice policy. The Assemblymembers
pointed out the likelihood that many UCCFs would be sited in low-income and minority neighborhoods, without
triggering the enhanced public participation that a permit application would require. DEC failed to address this
issue in adopting the rule, but efforts are ongoing to ensure that the environmental justice policy is applicable
to UCCFs.
Public Access to Records
In July, DEC proposed changes to its regulations implementing the Freedom of Information Law (FOIL) that
raised concerns from Assemblyman Diaz, Assembly Environmental Conservation Committee Chair Tom DiNapoli
and Assembly Oversight, Analysis and Investigation Chair James Brennan. Part of the proposal asserted that,
although DEC had allowed oral requests for records in the past, this had to cease because FOIL requires that
all request must be in writing. The Assemblymembers pointed out that the Committee on Open Government’s
FOIL regulations explicitly permit agencies to accept oral requests.
A second proposed change would allow DEC to prepare updates of its FOIL subject matter list “periodically”
instead of not less than twice per year. As recounted below in the section on special reports, the Committee
on Open Government had originally proposed to change its regulations to allow updates of subject matter lists
“periodically” but had changed the frequency to “annually.” The Assemblymembers asked DEC to defer any action
until the Committee had finalized its own legally-binding rules.
Community Reinvestment Act Reviews
In June, Assemblyman Diaz and Assembly Banking Committee Chair Catherine Nolan commented on proposed
Banking Department rules to establish streamlined forms and procedures for branch and public accommodation
offices and electronic facilities. They objected to a portion of the proposal that would allow banks to open electronic
branches with only an after-the-fact notice to the Department. The Assemblymembers noted that this change
violated the Banking Law, and cut the public out of any opportunity to weigh in on whether a bank proposing an
electronic branch was satisfactorily meeting community credit needs. Since the rule was proposed as a consensus
rule, the objections required the agency to withdraw this provision from further consideration.
Overdraft Protection Fees
In November, another banking issue was addressed by Assemblymembers Diaz and Nolan, along with Assembly
Small Business Committee Chair Mark Weprin. The Banking Department proposed to allow state-chartered banks
to offer overdraft protection on the same terms as their Federally-chartered counterparts. The Assemblymembers
questioned why recommendations that the Superintendent of Banks had made to Federal regulators “to protect
consumers from abusive practices” were omitted from the Department’s own regulations. The agency also
proposed to raise the maximum fee on returned items from $10 to $20, and to allow banks to charge even higher
fees for small businesses. The Assembly Chairs pointed out that these changes lacked legal and factual
justification.
Rent Control/Rent Stabilization
In June, the Division of Housing & Community Renewal proposed revisions to its rules on major capital
improvements in rent controlled and rent stabilized buildings. Assemblyman Diaz commented to point out
confusing and inconsistent language in the rulemaking documents and to recommend that consumer protections
be added to prevent sudden and substantial increases in rents. The agency rectified the erroneous language but
made no other changes to the rules.
Guidance Documents
Last year, Assemblyman Diaz’s legislation to improve public access to the many guidance documents used by
state agencies was signed into law as Chapter 730. The law requires agencies to provide lists of all guidance
documents they rely on for publication in the State Register. In March, the Department of State proposed rules to
spell out how agencies should comply, including a provision allowing an agency to seek a one-year exemption
from publication on the basis that it does not currently rely on any guidance documents. Assemblyman Diaz
commented that this provision was only useful if the Department publishes a list of agencies that receive this
exemption: otherwise, the public would have no way of knowing whether the agency had been exempted or had
merely failed to submit its list. The agency is still considering the final form of this regulation.
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