NYS Assembly
Review Commission

Sheldon Silver, Speaker • Ruben Diaz, Jr., Chair • January 2006

Assemblyman Ruben Diaz, Jr.
From the Chair

Dear Friends:

When people think of what a legislator does, they naturally think of passing laws and helping constituents in their dealings with government agencies. Another critically important activity that is less well-known is legislative oversight. To represent the people who elect us, we need to monitor how well government agencies carry out their responsibilities – this includes watching over finances, blowing the whistle on government corruption, and overseeing the adoption of rules and regulations.

As the Assembly Chairman of the Administrative Regulations Review Commission, it is my duty to keep an eye on agencies’ regulatory activities and try to ensure that their policies make sense and serve the interests of the public. Administrative rules can have a profound impact on our daily lives, our jobs and our neighborhoods. I am always gratified when I can help persuade a state agency to change a rule that was on the wrong track initially, or can point out a smarter way to proceed.

This newsletter discusses some of the issues we have been involved with over the past year, along with some recent legislation to make state regulators more open and accountable. I invite you to contact the ARRC office for more information on these topics or to share your views on other regulatory matters of concern to you.

Very truly yours,
Ruben Diaz, Jr.

2005 Session
Accomplishments: Legislation

Regulatory Reform

The Administrative Regulations Review Commission (ARRC) is charged by law with oversight of the rules and regulations adopted by New York State agencies, and with developing and promoting new laws to reform the process used to create rules. Rules and regulations have the force and effect of law, and can have a major impact on the lives of New Yorkers.

In 2005, two of Assemblyman Diaz’s regulatory reform bills were signed into law:

A.4186 will make the rulemaking process more effective. Currently, unless an agency files a “notice of continuation” within 180 days after proposing a rule, it must start the whole process over from the beginning. This technicality serves no useful purpose, but only makes it harder to adopt detailed health and safety protections. For example, last year major “clean air” rules of the Department of Environmental Conservation were overturned in court because the agency missed the deadline to file a notice of continuation. A. 4186 eliminates the notice of continuation and gives agencies a full year to act on a proposed rule.

A.4186 also requires an agency withdrawing a proposed rule from consideration to give the public a brief explanation of the reasons for doing so. This will eliminate the need to guess why an agency abandoned a proposed rule change. A.4186 was signed into law as Chapter 441 of the Laws of 2005.

A.4189 makes technical changes to 2004 legislation developed by Assemblyman Diaz that became Chapter 730 of 2004. Chapter 730 required state agencies to publish a listing of all sub-regulatory “guidance documents” that they rely on to interpret rules and regulations. These documents are generally known by such names as guidelines, bulletins or policy memoranda. Instead of publishing a printed list, an agency could comply by posting a listing on its website. This year’s legislation makes additional progress in making the guidance documents used by state agencies more visible. It was signed into law as Chapter 253 of the Laws of 2005.

In addition to these new laws, Assemblyman Diaz introduced new legislation to address the impact of proposed rules on consumer prices.

A.8061 requires that, when proposing a rule, the agency shall assess the extent to which the rule is likely to result in changes in the prices paid by consumers for goods or services, and the probable amount or range of such price changes.

Environmental Justice

Communities of color are often prime targets for pollution-creating activities. “Environmental Justice” is a movement to provide these communities with the resources to advocate effectively against inappropriate siting of facilities and for cleanup measures — thereby ensuring that all segments of society share equally in environmental benefits and burdens. Assemblyman Diaz has led efforts to build environmental justice into the process of environmental regulation.

In addition to seeking passage of legislation and commenting on environmental regulations, this has involved questioning New York City’s commitment relating to environmental quality in school buildings. In 2005, Assemblyman Diaz has joined with members of the community to demand improvements in air quality in and around the Soundview Educational Campus. This school building is on the site of a former defense contractor and has been plagued by toxic dust from adjacent lots. This case is also expected to lead to a wider review of state school siting policies.

On the legislative front, 2005 saw the Assembly once again pass Assemblyman Diaz’s legislation to apply cutting-edge computer technology to help resolve environmental justice issues. A.5982 calls on the Department of Environmental Conservation (DEC) to analyze pollution data and identify those communities that are currently exposed to the highest toxic burden. This bill has been sent on to the Senate Environmental Conservation Committee.

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.

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.

2005 Session
Accomplishments: Special Reports

The Freedom of Information Law (FOIL) is a well-known tool for the public to gain access to government documents. The law requires state and local agencies to respond in a timely manner to requests for records they maintain. It also places a number of other responsibilities on agencies, including the duty to maintain an up-to-date listing by subject matter of all categories of records in their possession.

Over the past several years, ARRC has been involved in an on-going review of how well state agencies comply with the “subject matter list” requirement. This project has been a shared effort with the Assembly Committee on Legislative Oversight, Analysis and Investigation, currently chaired by Assemblyman James Brennan of Brooklyn. In August, the findings were released in a report entitled Needle in a Haystack - FOIL’s Subject Matter List: Are Agencies Complying?

The study found that of the dozens of state agencies surveyed, many were not maintaining current and reasonably detailed subject matter lists. The Committee on Open Government, whose FOIL regulations apply to all agencies, has required for decades that lists of records be updated not less than twice each year. However, some lists were woefully outdated – the Thruway Authority had last updated its in 1988. Other agencies provided only cursory one-page lists that omitted many major categories of records. Some agencies – such as the Insurance Department and the Division of Parole – flat-out refused to maintain any subject matter list.

The report recommended new legislation to address the deficiencies in agencies’ compliance efforts. Bills will be introduced in the 2006 legislative session to provide for general guidance to state agencies on how to develop and maintain informative lists, require subject matter lists to be posted on agency websites and provide for online posting of other useful information on FOIL (e.g., names and addresses of records access officers, how to request records).

The report also recommended that, with better oversight and accountability, the requirement for agencies to update their lists could be changed from twice each year to once a year. This recommendation helped influence the Committee on Open Government’s FOIL regulations. The Committee had proposed in July to change its regulations from requiring semi-annual updates to requiring such updates “periodically.” However, the report’s findings helped convince the Committee to provide in its regulations for annual updates of subject matter lists.

The full Needle in a Haystack report can be accessed via the “Publications” link on Assemblyman Diaz’s Assembly web page (http://assembly.state.ny.us/mem/?ad=085&sh=postings).

For Additional
Information, Contact:
Assemblyman Ruben Diaz, Jr.
Assembly Chair
Administrative Regulations Review Commission
Room 419 LOB • Albany, New York 12248
518.455.5514 • diazr@assembly.state.ny.us

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