|Sheldon Silver, Speaker Ruben Diaz, Jr., Chair August 2004|
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.
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.
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
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.
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.
Emergency Backup Power
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
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
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
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
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
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 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.
Assemblyman Ruben Diaz, Jr.
Administrative Regulations Review Commission
Room 419 LOB Albany, New York 12248
New York State Assembly
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