TDA-03-16-00001-P Referrals of Human Trafficking Victims from Established Providers of Social or Legal Services

1/20/16 N.Y. St. Reg. TDA-03-16-00001-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 3

January 20, 2016

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TDA-03-16-00001-P

Referrals of Human Trafficking Victims from Established Providers of Social or Legal Services

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 765.1 and 765.2(d)-(e); renumbering of section 765.2(f)-(g) to section 765.2(g)-(h); and addition of section 765.2(f) to Title 18 NYCRR.

Statutory authority:

Social Services Law, section 20(3)(d); L. 2015, ch. 368; L. 2011, ch. 24; L. 2007, ch. 74

Subject:

Referrals of human trafficking victims from established providers of social or legal services.

Purpose:

Conform State regulations to referral requirements of chapter 368 of the Laws of 2015.

Text of proposed rule:

Section 765.1 is amended to read as follows:

§ 765.1 Scope.

The provisions of this Part shall govern the process and protocols for the Office of Temporary and Disability Assistance in assessing, and the social services districts in identifying, an individual as a State-confirmed human trafficking victim in New York State. In conjunction with the Division of Criminal Justice Services and Part 6174 of Title 9 NYCRR, the Office of Victim Services, and the Office for the Prevention of Domestic Violence, this Part shall also include defining the participant parties, the victim, the nature of the consultative role in the confirmation and appeal processes, and the process for required notifications, referrals and assistance to the prescribed parties.

§ 765.2 Definitions.

Subdivision (d) of § 765.2 is amended to read as follows:

(d) The term subject of referral shall mean a human trafficking victim referred by a statutory referral source under section [483-CC(A)] 483-cc(a) of the Social Services Law to the division and the office for assessment as a State-confirmed human trafficking victim.

Subdivision (e) of § 765.2 is amended to read as follows:

(e) The term statutory referral source shall mean either (i) the law enforcement agency or district attorney's office, or (ii) an established provider of social or legal services designated by the office, the Office for the Prevention of Domestic Violence, or the Office of Victim Services that, as soon as practicable after a first encounter with a person who reasonably appears to be a human trafficking victim, refers such human trafficking victim to the division and the office for assessment as a State-confirmed human trafficking victim.

Subdivisions (f) and (g) of § 765.2 are re-lettered subdivisions (g) and (h), and a new subdivision (f) is added to § 765.2 to read as follows:

(f) The term established provider of social or legal services shall include public agencies, county or municipal governments, or any subdivisions thereof; not-for-profit corporations, including charitable organizations incorporated, registered and in good standing with the charities bureau of the New York State Attorney General’s Office; faith-based organizations; and educational institutions.

(g) The term State-confirmed human trafficking victim shall mean a human trafficking victim referred by a statutory referral source who appears to meet the criteria for certification as a victim of a severe form of trafficking in persons pursuant to the federal Trafficking Victims Protection Act set forth in section 7105 of 22 U.S.C. (United States Code Annotated, Title 22, section 7105; Thomson West, West Headquarters, 610 Opperman Drive, Eagan, MN 55123. Copies may be obtained from the Office of Temporary and Disability Assistance, Public Information Office, 40 North Pearl Street, Albany, New York 12243-0001) or appears to be otherwise eligible for any Federal, State, or local benefits and services, in the judgment of the division, in consultation with the office and statutory referral source.

(h) The term case management provider shall mean [and] an entity under contract with the office pursuant to section [483-BB(B)] 483-bb(b) of the Social Services Law to provide services to certain State-confirmed human trafficking victims.

Text of proposed rule and any required statements and analyses may be obtained from:

Richard P. Rhodes, Jr., New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16-C, Albany, NY 12243-0001, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Social Services Law (SSL) § 20(3)(d) authorizes the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to carry out its powers and duties.

Section 14 of Chapter 74 of the Laws of 2007 amended the Penal Law, the Criminal Procedure Law, the Correction Law, the SSL, and the Executive Law relating to human trafficking, and was amended by Chapter 24 of the Laws of 2011. Chapter 368 of the Laws of 2015 (the Trafficking Victims Protection and Justice Act) provides for the addition, amendment and/or repeal of any rule or regulation necessary for the timely implementation of the provisions of Article 10-D of the SSL. Chapter 368 of the Laws of 2015 will become effective on January 19, 2016.

2. Legislative objectives:

It was the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations and policies to improve the State’s response to human trafficking by enhancing the protection of and assistance to victims of human trafficking. These statutes give OTDA the authority to promulgate regulations concerning the scope of entities authorized to refer a person who reasonably appears to be a human trafficking victim to OTDA and the New York State Division of Criminal Justice Services (DCJS) for confirmation as a victim of human trafficking.

3. Needs and benefits:

The proposed regulatory amendments to 18 NYCRR Part 765 would conform State regulations with Chapter 368 of the Laws of 2015, authorizing OTDA and DCJS to accept referrals of apparent human trafficking victims from established providers of social or legal services designated by OTDA, the Office for the Prevention of Domestic Violence (OPDV) or the Office of Victim Services (OVS). State regulations presently limit such referrals to law enforcement agencies and district attorneys throughout the State. The purpose of the proposed regulations is to also clearly define the participant agencies statutorily authorized to participate in the referral process. While the law will authorize referrals of apparent human trafficking victims by designated “established providers of social and legal services”, the law lacks a statutory definition of the term. The proposed regulatory amendments would not only define the term “established provider of social or legal services” in State regulations, but would also clarify the rules for the designation of such providers.

4. Costs:

OTDA costs for personnel would remain the same as those currently in place ─ one Trafficking Coordinator staff position and one Program Manager staff position.

Costs to the social services districts (SSDs) would reflect the number of human trafficking victims served. Adult human trafficking victims who are United States (U.S.) citizens or nationals, qualified aliens, or persons residing under color of law (PRUCOL) would be eligible for benefits and services to the same degree as any other U.S. citizen or national, qualified alien, or PRUCOL, if otherwise eligible; unfortunately, however, it is impossible to cite definitively reliable estimates of the status of human trafficking victims who may be ultimately served by the SSDs. Therefore, the cost of additions to the local adult or family caseload resulting from implementation of the proposed regulatory amendments would be equivalent to additions to the caseload of any other citizen or qualified alien adult or families.

The appropriate SSD will be notified of all minors referred for confirmation, whether they are unaccompanied or are with their families, in accordance with current procedures. Unaccompanied minors will continue to be assessed by the SSD for services and benefit eligibility under current guidelines. As with adults, child welfare costs for minors placed in care resulting from the implementation of the proposed regulatory amendments would be equivalent to the costs for any other minor placed in a corresponding level of care.

5. Local government mandates:

The proposed regulatory amendments would not impose any new programs or requirements on the SSDs.

6. Paperwork:

The proposed regulatory amendments would not produce new form or reporting requirements, insofar as OTDA will continue to receive referrals via facsimile on the prescribed form. However, the prescribed form will be revised to include the newly-added statutory referral sources. Upon State confirmation of a human trafficking victim, the OTDA program office, the Bureau of Refugee and Immigrant Assistance (BRIA), will mail written notifications of confirmation to the referral source, the human trafficking victim, and the provider of services and benefits; these written notifications will be similar to each other, with only slight variations in the addressees. OTDA anticipates that, due to new referral sources, there may be an increase in the number of written notifications of confirmation upon implementation of the proposed regulatory amendments. These written notifications will serve to alert the locality that there is a person who may qualify for services in the SSD or under the State’s Response to Human Trafficking Program. The proposed regulatory amendments would not impose additional obligations upon the SSDs.

7. Duplication:

The proposed regulatory amendments would not duplicate, overlap, or conflict with any existing State or federal regulations. Chapter 368 of the Laws of 2015 is designed, in part, to address human trafficking victims that have not yet been certified by the federal Office of Refugee Resettlement (ORR) as a victim of a severe form of human trafficking. The addition of “established legal and social service providers” as referral sources is designed to allow human trafficking victims access to vital services through those providers prior to federal certification. Therefore, there would be no duplication with regard to the identification of human trafficking victims or the confirmation or notification processes.

8. Alternatives:

The alternative to the proposed regulatory amendments would be to answer provider questions on the meaning of the “statutory referral source” on a case-by-case basis. However, this is not a viable option, because, under this alternative, the current State regulatory provision will not accurately reflect the statutory amendments contained in Chapter 368 of the Laws of 2015 upon the law’s effective date of January 19, 2016.

9. Federal standards:

The proposed regulatory amendments would not conflict with federal standards governing the provision of services to victims of human trafficking. As indicated above, Chapter 368 of the Laws of 2015 is designed to address the needs of human trafficking victims prior to federal certification. Human trafficking victims whose status is confirmed by the State would be eligible for State benefits and services while they await federal certification, which oftentimes can be a lengthy process. Allowable expenditures by OTDA regional contractors for benefits and services are established at rates equivalent to, but not exceeding, those allowed for cash assistance recipients.

10. Compliance schedule:

The proposed regulatory amendments would be effective on the date the notice of adoption for this regulatory proposal is published in the New York State Register.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed regulatory amendments would not impact small businesses, but they may impact the 58 social services districts (SSDs) in New York State, as the SSDs will receive written notifications of certain individuals who may be eligible for services.

2. Compliance requirements:

While the SSDs may experience slight increases in referrals, the proposed regulatory amendments would not impose any additional compliance requirements upon small businesses or local governments.

3. Professional services:

The proposed amendments would not require SSDs to obtain additional professional services. The number of State-confirmed aliens or citizens who may have been eligible for services and benefits at SSDs since 2007 totals only 234 individuals. While this number may increase slightly upon implementation of the proposed regulatory amendments due to increased referral sources, based on the currently low number of referrals eligible for benefits at SSDs, the Office of Temporary and Disability Assistance (OTDA) believes it would be unlikely that SSDs would need to procure additional professional services and/or additional staffing unless particular SSDs experience significant caseload expansions.

4. Compliance costs:

The proposed regulatory amendments would not require additional compliance costs for small businesses or local governments. There would be no appreciable initial capital costs for SSDs, and continuing capital costs would be limited to those SSDs that experience significant future expansions of their caseloads of human trafficking victims.

5. Economic and technological feasibility:

Due to anticipated small caseloads Statewide, the difficulty in predicting the specific SSDs that may be affected by implementation of the proposed regulatory amendments, and the low technology requirements necessary for compliance with the proposed regulatory amendments upon implementation, OTDA believes that compliance with the proposed regulatory amendments is economically and technologically feasible.

6. Minimizing adverse impact:

OTDA anticipates that the minimal expectations for additional recording and reporting beyond that which is already required of SSDs, combined with the anticipated low caseloads, would minimize the potential adverse impacts on SSDs resulting from implementation of the proposed regulatory amendments.

7. Small business and local government participation:

OTDA plans to provide a General Information System (GIS) message release to the SSDs when Chapter 368 of the Laws of 2015 becomes effective on January 19, 2016. The GIS release will be posted to OTDA’s internet website. SSDs will have an opportunity to provide comments to OTDA relative to the implementation of Chapter 368 of the Laws of 2015 (the Trafficking Victims Protection and Justice Act). OTDA will also provide SSDs with a contact at OTDA’s Bureau of Refugee and Immigrant Assistance (BRIA) who will address any questions, concerns, or other issues relative to the implementation of Chapter 368 of the Laws of 2015 raised by the SSDs.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

Potentially all rural areas of the State may be affected by the proposed regulatory amendments.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

No additional reporting or recordkeeping would be required by the rural social services districts (SSDs). SSDs already must receive written notification of any minor found in the SSD that has been referred to the New York State Division of Criminal Justice Services (DCJS) and the New York State Office of Temporary and Disability Assistance (OTDA) as a human trafficking victim. SSDs already must continue to receive written notification of any State-confirmed human trafficking victims who are United States (U.S.) citizens or nationals, qualified aliens, individuals determined to be persons residing under color of law (PRUCOL), or who have a satisfactory immigration status.

For all State-confirmed human trafficking victims referred to SSDs, the SSDs must continue to conduct the routine eligibility determination process that they do for all applicants. For all State-confirmed human trafficking victims, the SSDs must continue to prepare a Human Trafficking Victim Disposition Report and submit it to OTDA through the Bureau of Refugee and Immigrant Assistance (BRIA). For those human trafficking victims determined to be eligible and who are enrolled in services or benefit programs, including child welfare programs, the SSDs must then continue to follow the usual appropriate system reporting requirements.

The estimated number of qualified aliens, U.S. nationals, citizens, individuals determined to be PRUCOL, or individuals having a satisfactory immigration status whom would be confirmed as trafficking victims has been increasing since 2007, but remains comparatively low in rural areas. Minors in rural areas have also not been readily identified.

Rural SSDs may receive several referrals during the course of a year attributable to the additional referral sources, but, due to the comparatively low numbers of human trafficking victims confirmed in rural areas since 2007, OTDA anticipates that the majority of rural SSDs would not experience significant increases in referrals. Consequently, OTDA does not anticipate that implementation of the proposed regulatory amendments would require rural SSDs to procure additional professional services and/or additional staffing unless particular rural SSDs experience significant caseload expansions.

3. Costs:

The regulated parties include OTDA and the SSDs. Costs to the SSDs in rural areas would be reflective of the number of individuals served by the rural SSDs. Adult human trafficking victims who are U.S. citizens or nationals, qualified aliens, or PRUCOL would be eligible for benefits and services to the same degree as any other U.S. citizen or national, qualified alien, or PRUCOL, if otherwise eligible. Therefore, the cost of additions to the local adult or family caseload resulting from implementation of the proposed regulatory amendments would be equivalent to additions to the caseload of any other citizen or qualified alien adult or families.

The appropriate rural SSD will be notified of all minors who are referred for confirmation, whether they are unaccompanied or are with their families, in accordance with current procedures. Unaccompanied minors will continue to be assessed by the rural SSD for services and benefit eligibility under current guidelines. As with adults, child welfare costs for minors placed in care resulting from the implementation of the proposed regulatory amendments would be equivalent to the costs for any other minor placed in a corresponding level of care.

4. Minimizing adverse impact:

OTDA anticipates that the minimal expectations for additional recording and reporting, beyond that already required of rural SSDs, combined with the anticipated low caseloads in rural SSDs, would minimize potential adverse impacts on rural SSDs resulting from the implementation of the proposed regulatory amendments.

5. Rural area participation:

OTDA plans to provide a General Information System (GIS) release to the rural SSDs when Chapter 368 of the Laws of 2015 becomes effective on January 19, 2016. The GIS release will be posted to OTDA’s internet website. Rural SSDs will have an opportunity to provide comments to OTDA relative to the implementation of Chapter 368 of the Laws of 2015. OTDA will also provide rural SSDs with a contact at OTDA BRIA who will address any questions, concerns, or other issues relative to the implementation of Chapter 368 of the Laws of 2015 raised by the rural SSDs.

Job Impact Statement

A Job Impact Statement is not required for the proposed regulatory amendments. It is apparent from the nature and the purpose of the proposed regulatory amendments that they would neither substantially nor adversely impact upon jobs and employment opportunities in the State. Based on the current number of cases Statewide, it is expected that most local areas would not be affected by this rule and that any affected area would have minimal impact on employment. It is noted that the New York State Office of Temporary and Disability Assistance Bureau of Refugee and Immigrant Assistance will continue to employ one Human Trafficking Coordinator and one Human Trafficking Program Manager.