Message
  From the Chair

Dear Friends:

When I was named the Assembly Chairman of the Administrative Regulations Review Commission (ARRC) by Speaker Sheldon Silver, I realized that many New Yorkers are not aware of how important a role the rules and regulations of state agencies play in their daily lives. We need effective regulations to ensure the safety of the food we eat, the buildings we live and work in, and the health care facilities we visit. The most critical task facing ARRC is ensuring that when regulatory decisions are made, the public interest is placed first. We do this by developing legislation to make the process of rule-making more open and accountable to the public, and by serving the legislature and the people as a watchdog over the rules that agencies propose and adopt.

I welcome comments on how well we are performing this task and on how well state agencies are carrying out their regulatory missions. Please feel free to contact the ARRC office for more information on the issues addressed in this newsletter or on other regulatory matters of concern to you.

2003 Session
  Accomplishments: Legislation

Regulatory Reform
The Administrative Regulations Review Commission (ARRC) is charged by law with the task of overseeing the rules adopted by New York State agencies, and developing and promoting legislation to reform the process they use to create rules and regulations. These documents have the force and effect of law, and often have significant impacts on the lives of New Yorkers.

In 2003, Assemblyman Diaz introduced three bills to improve the ability of the public to become involved in the regulatory process and make agencies more responsive to the will of the people. All three bills amend the State Administrative Procedure Act, the statute that governs how agencies propose and adopt rules, and all three were introduced in the Senate by ARRC’s Senate Chair, Senator John J. Flanagan.

A.6902 increases the amount of time the public has to comment on longer and more complex proposed rules. The ordinary comment period is 45 days, but ARRC has found that this time is often insufficient for rules that are so lengthy that only a summary of the rule can be published. The State Register, the official source of rule-making information, usually publishes a summary of any rule if the text has more than 2000 words. By the time people receive the Register by mail, request the full text of the rule from the agency and receive the text by mail, as little as 2-3 weeks can remain to review the rule and write comments.

A.6902 increased the comment period for summarized rules to 60 days. In order to get the actual text to interested members of the public as quickly as possible, Assemblyman Diaz added a provision that leaves the comment period at 45 days if the agency publishes the full text of the rule on its website. Whether an agency uses this option or provides the longer 60-day comment period, the public will benefit from greater opportunities to help shape regulatory policies. A.6902 passed both houses and was signed into law as Chapter 429 of the Laws of 2003.

A.8477 also ensures that there is sufficient time provided for the public to comment, this time on agency rule reviews. Several years ago, the Legislature required agencies to begin reviewing every rule they adopt on a five-year cycle. This process allows the public to inform the agency on how well a rule is working, and to comment on whether technological, economic or other changes have made the rule obsolete. The “5-year review” law required agencies to seek public comment, but did not specify a minimum timeframe. While most agencies have provided 45 days or more for public comment, some provided less, and some did not even tell the public how long they had to send their comments in.

A.8477 requires agencies to state the last date they will receive comments on a 5-year review, which must be at least 45 days after the notice is published. This will ensure that an agency must listen to the people’s views, so the agency doesn’t make decisions on keeping or changing a rule in a vacuum. A.8477 passed both houses and was signed into law as Chapter 327 of the Laws of 2003.

A.8478 concerns the issuance of “guidance documents” by state agencies. These documents are the means by which agencies communicate the “nuts and bolts” of how to comply with rules and regulations. They are known by many names – guidelines, memoranda, bulletins, circular letters – but they all have two things in common: they are not adopted in a public process, and they can have a profound affect on anyone affected by an agency’s rules. A.8478 would require agencies to notify the public of new guidance documents by publication in the State Register. Assemblyman Diaz and Senator Flanagan are looking at amendments based on a Virginia law to require an annual notice of all guidance documents relied upon by the agency.

Environmental Justice
When Assemblyman Diaz was appointed to chair the ARRC, his first act was to direct the Commission staff to review the status of environmental justice initiatives in New York State. Too often, polluting facilities are located in or near communities of color or low-income neighborhoods. This is bad policy: facility siting and other environmental decisions should be based on considerations of scientific merit and fairness, not the demographics of particular areas.

New York State’s efforts to make its environmental actions more equitable are still in their infancy. In March of this year, the Department of Environmental Conservation (DEC) adopted a policy on “Environmental Justice and Permitting.” However, residents of minority neighborhoods have pointed out that the DEC policy has no teeth and contains numerous loopholes. A ssemblyman Diaz is also concerned that no similar policies exist at other state agencies and public authorities that contribute to metropolitan pollution, such as the New York Power Authority and the Metropolitan Transportation Authority. These factors led him to introduce significant new legislation on environmental justice.

A.7862-A is a program bill from the office of Attorney General Eliot Spitzer. It harnesses the power of cutting-edge computer technology to identify those New York City neighborhoods and upstate communities that beat the highest burden of environmental pollution. DEC would be required to analyze the relative pollution burdens in communities and list the most polluted 5% of zip codes or census tracts. This information could be used in siting or permit decisions to ensure that residents of communities that already suffer from more than their “fair share” of toxic exposures aren’t victimized further. A.7862-A passed the Assembly and was sent on to the Senate.

A.8805 was introduced by Assemblyman Diaz to carry out some of the recommendations of the State’s Environmental Justice Advisory Group. It would require all state agencies and authorities that make decisions related to the environment to adopt an environmental justice policy and appoint an agency coordinator to ensure that the policy is followed. The bill also recreates the advisory group as a permanent part of state government, with fair representation for minority and low-income communities. A.8805 has been referred to the Assembly Committee on Environmental Conservation.

Assemblyman Diaz has pointed out publicly that environmental justice requires more than just “lip service” by the Executive branch. In the coming months, he anticipates a fact-finding review of what actions state agencies and authorities are taking to further the cause of environmental justice.

Medicaid Coverage for Nonprescription Medications
Many Americans are trying to deal with the high cost of medications, and the State of New York is no exception. Earlier this session, the Assembly learned of efforts within the Department of Health to establish prior approval requirements for Medicaid reimbursement of the newer class of second-generation antihistamines, such as Clarinex, Allegra and Zyrtec. Assemblyman Diaz was concerned that this policy should not make cost considerations more important than the health needs of families participating in the Medicaid program.

Along with switching prescriptions for antihistamines to a prior approval list, the Department also announced plans to add new over-the-counter versions of these drugs (such as Claritin and Alavert) to a list of nonprescription drugs that Medicaid will pay for. Ironically, while drugs can be added to the prior authorization list at any time, adding a drug to the over-the-counter list requires the agency to amend its regulations. This process can take anywhere from three months to a year or more to complete, during which time patients could be left without access to either the prescription or nonprescription versions of a drug.

To remedy this, Assemblyman Diaz introduced legislation to speed the process of adding drugs to the regulations listing approved over-the-counter drugs. A.8859 gives the Health Department the ability to “direct file” these additions to the list without going through the ordinary rulemaking process. The normal process would apply to changes and deletions of medication, in order to ensure that patients and providers could have an opportunity to comment on retaining drugs that may still be useful in some cases. Recent developments suggest that the Department may be interested in joining Assemblyman Diaz in seeking changes to speed up the process of authorizing new over-the-counter drugs. A.8859 has been referred to the Assembly Health Committee.

2003 Session
  Accomplishments: Regulatory Issues

In addition to developing legislation to improve the regulatory process, the Administrative Regulations Review Commission also reviews and comments on the rules and regulations of state agencies. In 2003, several concerns with proposed rules were identified by the Assembly ARRC Chair.

Food Stamp/Benefits Issues
Late last year, the Office of Temporary & Disability Assistance (OTDA) proposed changes to its rules governing the use of authorized representatives by applicants for food stamps and public assistance. OTDA proposed to limit the use of a representative to only those cases where the applicant can establish a good cause reason, to limit the types of individuals who may serve as a representative and to limit the number of households a representative may assist. Assemblyman Diaz was concerned that the proposal was inconsistent with Federal rules, both in tone and substance, and that the agency was missing opportunities to improve access to food stamp benefits. Assemblyman Diaz was joined in his comments by Assemblymembers Deborah J. Glick, Chair of the Social Services Committee, and Felix Ortiz, who chairs the Task Force on Food, Farm & Nutrition Policy.

The Assemblymembers noted that the Federal government had just announced a major initiative to increase utilization of food stamps, and had specifically pointed out that under utilization of authorized representatives was a barrier making it more difficult for elderly and disabled individuals to participate. In fact, Federal rules even encourage households that are able to obtain benefits on their own to name a representative in case of illness or other circumstances. The Assemblymembers also pointed out errors in provisions relating to nonprofit organizations, such as drug treatment programs and group homes, whose staff serve as representatives for their clients.

The Commissioner of OTDA, Brian Wing, responded to the letter. He agreed that the Assemblymembers had identified erroneous language in the provisions relating to drug treatment programs and group homes that needed to be corrected. Otherwise, he believed that OTDA’s regulations were adequate and that local social services districts had been sufficiently trained in the role of authorized representatives in the food stamp program. Assemblyman Diaz continues to be concerned that this important nutrition program remains underutilized – it is estimated that only half of the 1.6 million residents of New York City eligible for food stamps actually use them – and will continue to monitor whether changes are needed to OTDA’s regulations to encourage greater access.

In March, OTDA proposed changes to its rules on the electronic benefits transfer (EBT) cards that many individuals use to access their temporary assistance or food stamp benefits. OTDA proposed a $3.00 replacement fee to be imposed whenever an EBT card is lost, stolen or destroyed. The only exception would be for the first replacement card: thereafter, the fee would be charged regardless of the circumstances.

Assemblyman Diaz raised several concerns over this policy, in a letter that was signed by Assemblyman Ortiz as well. First, the proposed fee failed to recognize that OTDA’s own policies often relegate recipients to housing accommodations in high-crime neighborhoods or in shelters with no secure storage for personal belongings. Placing all the blame on the recipient for not exercising responsibility is insulting. The Assemblymembers urged OTDA to follow Federal rules and include an exception allowing replacement fees to be waived in hardship cases.

The proposal also would let local districts collect fees in a different manner or a different amount than provided in the OTDA rules. Assemblymen Diaz and Ortiz noted that some districts could view this open-ended authority as an opportunity to make this a revenue-producing program. They also pointed out that Federal food stamp rules limit the fee to the cost of replacing the card, which OTDA had pegged at $3.00. Finally, they questioned whether the policy would actually save taxpayers any money, noting that other states like California had declined to assess these fees because their analysis showed it would cost them too much to collect them and would actually be a budgetary drain. It remains to be seen what action will be taken on this proposal.

World Trade Center Memorial Scholarships
In December of 2002 the Higher Education Services Corporation (HESC) issued emergency rules setting forth definitions for the World Trade Memorial Scholarship program. HESC adopted a very narrow eligibility standard that would unfairly limit the eligibility of victims who were severely disabled in the September 11th attacks. Assemblyman Diaz joined with Assembly Speaker Sheldon Silver and the Chair of the Assembly Higher Education Committee, Ron Canestrari, in speaking out against these rules.

This program was created by the Legislature as a tribute to the heroism of the firefighters, police officers, peace officers, emergency medical service workers and people from all walks of life who died or were severely disabled as a result of the September 11, 2001 attacks on the World Trade Center, the Pentagon and United Airlines flight 93, or in rescue and recovery efforts. It provides scholarships to cover the full costs of attending the State University of New York or the City University of New York or an equivalent amount for attending another college. The WTC Memorial scholarships are available to individuals “severely and permanently disabled” in the attacks, to their families and to families of those who died in the attacks.

HESC adopted a definition of “severely and permanently disabled” in its emergency rules that was far more restrictive than definitions used in other government programs, stating that to qualify, an individual must be “unable to engage in any occupation for remuneration or profit.” The Assemblymembers pointed out that in basing its definition on the one used by the Federal Family Education Loan program, HESC was misapplying a standard that, in the Federal program, determines when one is so disabled as to be require a student loan to be written off. They noted that it was doubtful any survivor who was unable to work for any amount of pay in any job could attend and benefit from college coursework, and urged HESC to drop this definition from the regulations. Late in 2003, HESC refiled the emergency rules in question.

Cable Television Regulations
In February, the Public Service Commission (PSC) proposed major changes in the way it regulates cable television service in New York State. Some of these changes were needed to conform to amendments in Federal and state law, but many others were choices made by the PSC to “reduce regulatory requirements for companies.” Assemblyman Diaz and other Assembly offices and consumer organizations determined that many of these changes would also eliminate or relax significant consumer protections. In addition, some changes actually violated the cable laws the PSC is supposed to enforce.

Assemblyman Diaz sent comments to the PSC on the proposed rules. These comments were also signed by Assemblyman Jeff Klein, whose Oversight Committee had recently issued a report on rising cable television prices in New York State, and were also submitted on behalf of Assemblyman Richard L. Brodsky, who chairs the Assembly Committee on Corporations, Authorities & Commissions. Some of the major points made in the comments were:

• The PSC proposal would reduce the amount of credit a cable subscriber would receive when cable service goes out, and would make it more difficult for a subscriber to qualify for a credit. Due to a possible error in the way the PSC drafted the changes, a subscriber could receive only one day’s worth of credit even if the cable outage lasted all month. The Assemblymembers pointed out that New Jersey is moving to strengthen its consumer protections on service outages by requiring credit for any outage of 3 hours or more.
• The PSC wanted to change the requirements for cable companies to notify their customers of rates and programming information from every 6 months to once per year. The requirement for notice every 6 months is explicitly stated in the Public Service Law and the PSC has no power to lessen it. Assemblyman Diaz and his colleagues recommended strengthening requirements for consumer information, since in many cases companies currently fail to provide accurate information on “rates and rights.” They pointed out that at least one company was posting the PSC’s new, consumer-unfriendly service outage proposal on its website as its final policy, as if it was already in effect.
• The Assemblymembers criticized elements of the proposal that would reduce reporting and accountability for meeting service quality standards (e.g., missed service appointments, constant busy signals). They also recommended that the PSC comply with Federal rules and establish a maximum 4-hour window for service appointments.

The Assembly comments included several other concerns on the proposed changes’ impact on the rights of consumers, municipalities and organizations providing public access programming. Because of the numerous anti-consumer provisions, the Assemblymembers urged the PSC to withdraw the proposed rules and start over with an open and inclusive process to modernize cable regulations.