tion (Part 200.18) required municipalities and the board of education in
the city of New York that choose to perform audits pursuant to EducationLaw section 4410 to do so in accordance with audit standards establishedby the commissioner.
COMPLIANCE COSTS:None required. The proposed amendment simply serves to clarify what
the Commissioner and the Department’s discretion is in accepting thefinal report in an audit in setting tuition rates, a process which the Depart-ment is also already engaged in.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:The proposed amendment does not impose any additional costs or new
technological requirements on local governments. The proposed amend-ment does not impose any adverse economic impact, reporting, recordkeeping or any other compliance requirements on local governments;municipalities and the board of education of the city of New York are notrequired to perform new functions pursuant to the proposed amendment.
MINIMIZING ADVERSE IMPACT:The proposed amendment is necessary to clarify that the Education
Department maintains discretion in establishing tuition rates based on afinancial audit, specifically in deciding whether or not to adopt all of therecommended audit fiscal disallowances and/or whether to take furtherdisallowances as deemed warranted upon internal review and desk audits.Because the statute upon which the proposed amendment is based appliesto all affected municipalities and all approved special education programsin the State, it is not possible to establish differing compliance or reportingrequirements or timetables or to exempt them from the provisions of theproposed amendment.
LOCAL GOVERNMENT PARTICIPATION:Comments on the proposed rule were solicited from school districts
through the offices of the district superintendents of each supervisorydistrict in the State, from the chief school officers of the five big cityschool districts and from charter schools.
INITIAL REVIEW OF RULE (SAPA § 207):Pursuant to State Administrative Procedure Act section 207(1)(b), the
State Education Department proposes that the initial review of this ruleshall occur in the fifth calendar year after the year in which the rule isadopted, instead of in the third calendar year. The justification for a fiveyear review period is that, following the decision of the New York StateSupreme Court, Appellate Division, Third Department's decision in MidIsland Therapy Associates, LLC v. New York State Dep't of Educ., 99A.D.3d 1082, 1084 (3d Dept. 2012), the proposed amendment is neces-sary to clarify that the Education Department maintains discretion inestablishing tuition rates based on a financial audit, specifically in decid-ing whether or not to adopt all of the recommended audit fiscal disallow-ances and/or whether to take further disallowances as deemed warrantedupon internal review and desk audit, and therefore changes to the substan-tive provisions of the proposed amendment are dependent on subsequentjudicial interpretation. Accordingly, there is no need for a shorter reviewperiod. The Department invites public comment on the proposed five yearreview period for this rule. Comments should be sent to the agency contactlisted in item 10. of the Notice of Proposed Rule Making published here-with, and must be received within 45 days of the State Register publica-tion date of the Notice.
—————————— —
1For purposes of this regulation, approved programs include programs
that provide special education to students with disabilities requiring theestablishment of a tuition rate, in accordance with sections 4003, 4401,4403, 4405, 4408 and 4410 of the Education Law. These includepreschool and school-age special education private providers, SpecialAct School Districts, BOCES, and school-districts.
299 A.D.3d at 1084-85.
Rural Area Flexibility Analysis
TYPES AND ESTIMATED NUMBER OF RURAL AREAS:The proposed amendment applies to municipalities, defined in Educa-
tion Law section 4410(1)(g) as a county outside of the city of New Yorkor the city of New York in the case of a county contained within the city ofNew York, and the board of education of the city school district of the cityof New York, that choose to perform a fiscal audit of Education Law sec-tion 4410 preschool special education programs and services for which themunicipality bears fiscal responsibility, and all other preschools subject toaudit by the New York State Comptroller pursuant to Education Law sec-tion 4410-c. The proposed amendment also applies to fiscal auditsperformed by the New York State Education Department, the Office ofthe State Comptroller, other State agencies or agencies of other states ofschool-age providers operated by private providers, special act schooldistricts, boards of cooperative educational services and public schooldistricts receiving public funds for the education of students with dis-abilities who have been enrolled pursuant to articles 81 and 89 of theEducation Law. This proposed amendment impacts all counties includingthe 44 rural counties with less than 200,000 inhabitants.REPORTING, RECORDKEEPING AND OTHER COMPLIANCE
REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed amendment clarifies that the Education Department
maintains discretion in establishing tuition rates based on a financial audit,specifically in deciding whether or not to adopt all of the recommendedaudit fiscal disallowances and/or whether to take further disallowances asdeemed warranted upon internal review and desk audits. Pursuant to theproposed amendment, the Department would establish tuition rates basedon an audit to the extent that the Commissioner determines the audit find-ings and recommendations are warranted and consistent with applicablefederal and state Education Law, Commissioner’s regulations, and tuitionreimbursement guidelines and requirements. Upon a determination that aparticular finding or recommendation is not warranted, or is not consistentwith applicable state and federal Education Law, Commissioner’s regula-tions, or tuition reimbursement guidelines and requirements, discretionwill be exercised in establishing a rate based on audit, subject to the ap-proval of the Director of the Budget.
The proposed amendment does not impose any additional professional
services requirements.
COSTS:None required. The proposed amendment simply serves to clarify what
the Commissioner and the Department’s discretion is in accepting thefinal report in an audit in setting tuition rates, a process which the Depart-
ment is also already engaged in.
MINIMIZING ADVERSE IMPACT:The proposed amendment is necessary to clarify that the Education
Department maintains discretion in establishing tuition rates based on afinancial audit, specifically in deciding whether or not to adopt all of therecommended audit fiscal disallowances and/or whether to take furtherdisallowances as deemed warranted upon internal review and desk audits.Because Education Law section 4410-c requires the New York StateComptroller to audit all preschool special education providers by March31, 2018, and because the proposed amendment applies to all preschooland school-age approved special education programs, it was not possibleto establish different requirements for entities in rural areas, or to exemptthem from the amendment's provisions.
RURAL AREA PARTICIPATION:The proposed rule was submitted for review and comment to the
Department’s Rural Education Advisory Committee, which includesrepresentatives of school districts in rural areas.
Job Impact Statement
The proposed amendment is necessary to clarify that the Education
Department maintains discretion in establishing tuition rates based on afinancial audit, specifically in deciding whether or not to adopt all of therecommended audit fiscal disallowances and/or whether to take furtherdisallowances as deemed warranted upon internal review and desk audits.Because it is evident from the nature of the proposed amendment that itwill have a positive impact, or no impact, on jobs or employment op-portunities, no further steps were needed to ascertain those facts and nonewere taken. Accordingly, a job impact statement is not required and onehas not been prepared.
State Board of Elections
NOTICE OF ADOPTION
Routine Testing of Voting Systems
I.D. No. SBE-17-16-00009-A
Filing No. 931
Filing Date: 2016-10-03
Effective Date: 2016-10-19
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Amendment of section 6210.2 of Title 9 NYCRR.
Statutory authority: Election Law, sections 3-102(1), 7-202(3) and
7-206(3)
Subject: Routine testing of voting systems.
Purpose: To provide for testing of voting machines not less than once per
year.
Text of final rule: Part 6210.2 of Subtitle V of Title 9 of the Official
Compilation of Codes, Rules and Regulations of the State of New York isamended to read as follows:NYS Register/October 19, 2016 Rule Making Activities
5§ 6210.2 Routine [maintenance and] testing of voting systems
(a) Testing of all voting systems shall be conducted by the county board
before the use of the system in any election and at such other times of theyear as prescribed by these regulations. Testing procedures shall be ap-proved by the State Board. The voting system shall be tested to determinethat the system is functioning correctly and that all system equipment,including but not limited to hardware, memory, and report printers, areproperly integrated with the system and are capable of properly perform-ing in an election. Testing, other than pre-qualification testing, shall be
conducted by casting manual votes and may include the casting ofsimulated votes.
(b)All voting equipment owned by a county board of election shall be
tested at least once every calendar year. All other voting equipment thathas not undergone pre-qualification testing prior to use in any election inthe calendar year shall be tested no later than December 31st of thecalendar year. Such tests are in [In] addition to vendor-prescribed mainte-
nance tasks and diagnostic tests, [tests of voting equipment shall be]conducted by the county board [, on each piece of equipment owned bythe county board. Such testing shall be administered periodically and becompleted during the following periods during each year that the equip-ment is in use:
(1) January 15-April 15;(2) April 16-July 15;(3) July 16-September 15; or(4) September 16-November 15].
Whenever a voting system is to be tested for pre-qualification purposes,
such test must be conducted while the voting system is in election mode.Votes cast for pre-qualification test purposes shall be manually cast usingall of the devices available to voters on election day (i.e.: audio, key padsand or pneumatic switches, and/or alternate language displays).
(c) Testing shall include the comparison of software installed on the
delivered system to certified software, via the use of a Secure HashSignature Standard (SHS) Validation Program, as described in Federal In-formation Processing Standards Publication 180-2 issued by the NationalInstitute Standards Technology (This publication is available electroni-cally by accessing [http:// csrc.nist.gov/publications/] the NIST website .
Alternatively, copies of NIST computer security publications are availablefrom: National Technical Information Service (NTIS), 5285 Port RoyalRoad, Springfield, VA 22161.)
Testing shall consist of the re-calibration of equipment, as appropriate,
pursuant to recommendations made in vendor’s maintenance documenta-tion, and the casting of a test deck by voting the minimum number of bal-lots, determined pursuant to the requirements of section 6210.8 of thisPart, to ensure that all voting positions for each ballot configuration aretested. Votes cast for the purposes of this section shall be cumulative bal-lots cast on each piece of equipment [during each of the prescribed periodsoutlined].
(1) If the system does not accurately count the votes from the test
deck cast manually, simulated, or both, (aside from those that weredeliberately designed to fail), or the calibration test, the cause or causesfor the error or errors shall be ascertained and corrected. The voting systemshall be retested until there are two consecutive error-free tests before thesystem is approved for use in the count of actual ballots. The commission-ers of the county board or their designees shall certify that they havereviewed and verified the results of said testing. The summary results ofall tests, including all inaccurate test results, their causes and the actionstaken to correct them, as well as the results of all errorless counts, shall beentered upon the maintenance log. Maintenance logs are to be kept as a
permanent record of the county board. Allother documentation and/or
test decks, simulation cartridges and any test data including but not limitedto copies of ballot programming used for required maintenance tests shallbe maintained in secure locked storage for two years after the election,pursuant to Election Law section 3-222.
[(2) Maintenance logs are to be kept as a permanent record of the
county board.]
(d) [During the period including July 16 - September 15 (and in years
when a presidential primary is conducted, during the January 15 - April 15period),] For pre-qualification testing of a system to be used in a primary
election, the test ballot format for each piece of equipment assigned for
use in said primary election shall consist of each primary ballot configura-
tion as certified by the county board [, if said equipment is to be utilized ina primary election]. The voting system shall be cleared of all votes and aprinted report shall be produced by the system, to verify the correct ballotconfiguration and election configuration, and to confirm that all votingpositions are at zero. Ballots cast for the purposes of this test shall bemanually cast and a printed tabulation report shall be produced. Thesystem shall again be cleared of all votes and a printed report shall beproduced by the system to confirm that all voting positions are at zero.Each officer or board charged with the duty of preparing voting machinesfor use in any election shall give written notice pursuant to Election Lawsection 7-128 and section 7-207, by first class mail, to the State Board and
to all candidates, except candidates for member of the county committee,who are lawfully entitled to have their names appear thereon, of the timewhen, and the place where, they may inspect the voting machines to beused for such election. [Each officer or board charged with the duty of
preparing voting machines for use in any election shall give written no-tice, by first class mail, to the State Board and to all candidates, exceptcandidates for member of the county committee, who are lawfully entitledto have their names appear thereon, of the time when, and the place where,
they may inspect the voting machines to be used for such election.] Thecandidates or their designated representatives may appear at the time andplace specified in such notice to inspect such machines, provided,however, that the time so specified shall be not less than two days prior tothe date of the election.
(e) For the period between ballot certification and seven days before the
general election, the test ballot format for each piece of equipment shallconsist of each general election ballot configuration as certified by thecounty board. The voting system shall be cleared of all votes and a printedreport shall be produced by the system, to verify the correct ballotconfiguration and election configuration, and to confirm that all votingpositions are at zero. Ballots cast for the purposes of this test shall bemanually cast and a printed tabulation report shall be produced. Thesystem shall again be cleared of all votes and a printed report shall beproduced by the system to confirm that all voting positions are at zero.Each officer or board charged with the duty of preparing voting machinesfor use in any election shall give written notice pursuant to Election Lawsection 7-128 and section 7-207, by first class mail, to the State Board andto all candidates, except candidates for member of the county committee,who are lawfully entitled to have their names appear thereon, of the timewhen, and the place where, they may inspect the voting machines to beused for such election. The candidates or their designated representativesmay appear at the time and place specified in such notice to inspect suchmachines, provided, however, that the time so specified shall be not lessthan two days prior to the date of the election.
(f) In addition to any vendor provided training, the State Board shall
provide training on routine maintenance and testing of voting systems tocounty board personnel responsible for voting systems. The State Boardshall provide sample tests to be utilized by each county board. The StateBoard may revise said testing format, based upon its audit and review.
(g) All results of [each] any testing [routine maintenance, test and/or] in
addition to pre-qualification test ing, including the final errorless test, shall
be certified as accurate by the county board commissioners or theirdesignees, and such certification shall be entered upon the maintenancelog for each such piece of equipment, together with any other informationprescribed in said log by the State Board.
(h) The county board shall certify to the State Board, the completion of
any [each routine maintenance], testing [and/or] including pre-
qualification test ing. All documentation and/or test decks, simulation car-
tridges and any test data including but not limited to copies of ballotprogramming used for required maintenance tests shall be maintained insecure locked storage for two years after the election, pursuant to ElectionLaw section 3-222. Such certification shall be on a form prescribed andfurnished by the State Board, and shall be accompanied by copies of eachmaintenance log.
(i) Each county shall keep a detailed log of maintenance performance
and testing procedures. Such logs shall be in a format provided by theState Board and the same shall have been reviewed by the vendor.
(j) Such logs shall be provided upon completion of any testing, includ-
ing pre-qualification testing [quarterly to] or as requested by the State
Board, for their review and inspection, and shall be made available to thepublic, upon request .
(k) The State Board may, upon review of the maintenance logs, require
further testing of any such piece of equipment or may remove a piece ofequipment from use in an election until further examination and testinghas been completed, or may rescind certification pursuant to section6209.8 of the State Board regulations.
(1) The State Board may reinstate the certification if the equipment
passes these further tests, and a review of the maintenance logs supportssuch reinstatement.
(2) County boards shall make the system or equipment available to
the State Board for any such additional testing and shall provide such as-sistance as may be deemed necessary.
(l) During the initial time period in which such system or equipment is
used, to include a primary election and a general election, the State Boardshall assist in the routine maintenance, testing and the operation of thevoting machines or systems. Such assistance shall include but not belimited to:
(1) election configuration and ballot configuration related to voting
system testing and use;
(2) pre-qualification and post-election tests;
NYS Register/October 19, 2016 Rule Making Activities
6(3) election day support, via phone, email, facsimile or on-site, as
necessary;
(4) post-election support, to include recanvass, challenges, and audit
conducted pursuant to Election Law section 9-211;
(5) staff training;(6) defining personnel requirements and tasks;(7) defining procedures for pre-qualification, post-election, and main-
tenance tests; and
(8) defining procedures for canvassing and recanvassing votes cast in
an election.
(m) During successive years, the State Board, whenever it deems neces-
sary, or at the request of a county board, may assist in any or all aspects ofthe operation of the system.
Final rule as compared with last published rule: Nonsubstantive changes
were made in section 6210.2.
Text of rule and any required statements and analyses may be obtained
from: Brian L. Quail, Esq., State Board of Elections, 40 North Pearl Street,
Suite 5, Albany, New York 12207, (518) 474-2063, email:brian.quail@elections.ny.gov
Revised Regulatory Impact Statement, Regulatory Flexibility Analysis,
Rural Area Flexibility Analysis and Job Impact Statement
The only change to such section since publication is the replacement of
the term “pre-election testing” with the term “pre-qualification testing”the latter being defined and used elsewhere in the part, such change beingnon substantive and not requiring republication.
Assessment of Public Comment
The agency received no public comment.
Department of Financial Services
EMERGENCY
RULE MAKING
Workers' Compensation Safe Patient Handling Program
I.D. No. DFS-29-16-00020-E
Filing No. 904
Filing Date: 2016-09-29
Effective Date: 2016-09-29
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Addition of Subpart 151-7 (Regulation 119) to Title 11
NYCRR.
Statutory authority: Financial Services Law, sections 202 and 302; Insur-
ance Law, sections 301 and 2304(j)
Finding of necessity for emergency rule: Preservation of general welfare.
Specific reasons underlying the finding of necessity: Part A of Chapter
60 of the Laws of 2014 added a new Title 1-A to Public Health Law Article29-D to require health care facilities to establish safe patient handlingprograms by January 1, 2017. Part A also added a new Insurance Law§ 2304(j) to require the Superintendent of Financial Services (“Superin-tendent”) to make rules, by July 1, 2016, establishing requirements forhealth care facilities to obtain a reduced workers’ compensation insurancerate for safe patient handling programs implemented pursuant to PublicHealth Law § 2997-(k)(2). Section 2304(j) further requires the Superin-tendent to submit reports to the Legislature by December 1, 2018 andDecember 1, 2020 that evaluate the effects of the reduced rate, includingchanges in claim frequency and costs.
The regulation states that for each workers’ compensation insurance
policy issued or renewed in New York, an insurer must provide a credit toa health care facility that implements and maintains a safe patient handlingprogram that meets the requirements of Public Health Law § 2997-(k)(2).The amount of the credit and the manner in which it is applied must be inaccordance with the approved manual filed by the rate service organiza-tion of which the insurer is a member. The regulation also requires aninsurer to verify that a health care facility has implemented and maintainsa safe patient handling program that meets the requirements of PublicHealth Law § 2997-(k)(2) before providing a credit, and requires everyworkers’ compensation rate service organization to submit an annualreport to the Superintendent regarding policies receiving a credit pursuantto the regulation, including policy year payrolls, indemnity losses,indemnity claim counts, medical losses by classification, and such other
information as the Superintendent may require.
Insurance Law § 2304(j) requires that the regulation be in place by July
1, 2016. Therefore, it is necessary to promulgate the regulation on an emer-gency basis for the furtherance of the general welfare.
Subject: Workers' Compensation Safe Patient Handling Program.
Purpose: To implement part A of chapter 60 of the Laws of 2014.
Text of emergency rule: § 151-7.0 Preamble.
In March 2014, Governor Andrew M. Cuomo signed into law Part A of
Chapter 60 of the Laws of 2014, which amended the Public Health Lawand Insurance Law with regard to safe patient handling programs. Specifi-cally, Chapter 60 added a new Title 1-A to Public Health Law Article29-D to require health care facilities to establish safe patient handlingprograms, and added a new Insurance Law section 2304(j) to require thedepartment to make rules establishing requirements for health care facili-ties to obtain a reduced workers’ compensation insurance rate for safe
patient handling programs implemented pursuant to Public Health Lawsection 2997-(k)(2).
§ 151-7.1 Definitions.In this Subpart, health care facility shall have the meaning set forth in
Public Health Law section 2997-(h)(1).
§ 151-7.2 Safe patient handling program credits.(a) For each workers’ compensation insurance policy issued or
renewed in this State, an insurer shall provide a credit to a health care fa-cility that implements and maintains a safe patient handling program thatmeets the requirements of Public Health Law section 2997-(k)(2). Theamount of the credit and the manner in which it is applied shall be in ac-cordance with the approved manual filed by the rate service organizationof which the insurer is a member.
(b) An insurer shall verify that a health care facility has implemented
and maintains a safe patient handling program that meets the require-ments of Public Health Law section 2997-(k)(2) before providing a credit.
§ 151-7.3 Reporting requirements.By June 1 of each year, every workers’ compensation rate service orga-
nization shall submit a report to the superintendent regarding policiesreceiving a credit pursuant to this Part, including policy year payrolls,indemnity losses, indemnity claim counts, and medical losses by clas-sification, and such other information as the superintendent may require.Every workers’ compensation rate service organization shall report theinformation, including adjustments, consistent with the comparable clas-sification relativity review.
This notice is intended to serve only as a notice of emergency adoption.
This agency intends to adopt the provisions of this emergency rule as apermanent rule, having previously submitted to the Department of State anotice of proposed rule making, I.D. No. DFS-29-16-00020-EP, Issue ofJuly 20, 2016. The emergency rule will expire November 27, 2016.
Text of rule and any required statements and analyses may be obtained
from: Joana Lucashuk, NYS Department of Financial Services, One State
Street, New York, NY 10004, (212) 480-2125, email:joana.lucashuk@dfs.ny.gov
Regulatory Impact Statement
1. Statutory authority: Financial Services Law §§ 202 and 302 and In-
surance Law §§ 301 and 2304(j).
Financial Services Law § 202 establishes the office of the Superinten-
dent of Financial Services (“Superintendent”). Financial Services Law§ 302 and Insurance Law § 301, in material part, authorize the Superinten-dent to effectuate any power accorded to the Superintendent by theFinancial Services Law, Insurance Law, or any other law, and to prescriberegulations interpreting the Insurance Law.
Insurance Law § 2304(j) requires the Superintendent to make rules
establishing requirements for health care facilities to obtain a reducedworkers’ compensation insurance rate for safe patient handling programsimplemented pursuant to Public Health Law § 2997-k(2). This sectionalso requires the Superintendent to evaluate the results of the reduced rate,including changes in claim frequency and costs, and submit a report to theLegislature by December 1, 2018 and December 1, 2020.
2. Legislative objectives: In March 2014, Governor Andrew M. Cuomo
signed into law Chapter 60 of the Laws of 2014, Part A of which amendedthe Public Health Law and Insurance Law with regard to safe patienthandling programs. Specifically, Part A of Chapter 60 added a new Title1-A to Public Health Law Article 29-D to require health care facilities toestablish safe patient handling programs. Part A also added a new Insur-ance Law § 2304(j) requiring the Superintendent to make rules establish-ing requirements for health care facilities to obtain a reduced workers’compensation insurance rate for safe patient handling programs imple-mented pursuant to Public Health Law § 2997-k(2). It also requires theSuperintendent to evaluate the results of the reduced rate, includingchanges in claim frequency and costs, and submit a report to the Legisla-ture by December 1, 2018 and December 1, 2020.NYS Register/October 19, 2016 Rule Making Activities
7