CFS-41-10-00023-P Removal of the Requirement to Report an Alien Receiving Referral Services and Protective Services to US Homeland Security

10/13/10 N.Y. St. Reg. CFS-41-10-00023-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 41

October 13, 2010

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-41-10-00023-P

Removal of the Requirement to Report an Alien Receiving Referral Services and Protective Services to US Homeland Security

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

Proposed Action:

Amendment of section 403.7(b) of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), 34(3)(f) and 427(1)

Subject:

Removal of the requirement to report an alien receiving referral services and protective services to US Homeland Security.

Purpose:

To remove the requirement to report an alien receiving referral services and protective services to US Homeland Security.

Text of proposed rule:

Subdivision (b) of section 403.7 is amended to read as follows:

(b) An alien who is unlawfully residing in the United States or who fails to furnish evidence that he/she is lawfully residing in the United States, shall not be eligible for any social services except information and referral services and protective services for adults and children. [In the case of protective services, the social services district may provide such services considering the nature of the problem and the degree of its emergency and, at the same time, shall report the cases to the United States Immigration and Naturalization Service or nearest consulate of the country of the applicant or recipient for its appropriate action. The provision of protective services is limited until such time when an appropriate consulate or Immigration and Naturalization Services assumes its responsibilities for such cases.]

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

Public Information Office, NYS Office of Children and Family Services, 52 Washington Street, Rensselaer, NY 12144, [phone]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Regulatory Impact Statement

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office of Children and Family Services (OCFS) to establish rules and regulations to carry out its duties pursuant to the provisions of the SSL.

Section 34(3)(f) of the SSL authorizes the commissioner of OCFS to establish regulations for the administration of public assistance and care within New York State, both by state and by local government units.

Section 427(1) of the SSL authorizes the commissioner of OCFS to adopt regulations necessary to implement Title 6 of Article 6 of the SSL relating to child protective services.

2. Legislative objectives:

Sections 122(2) and 398-e of the SSL provide that an alien, including a non-qualified alien as defined by applicable federal statute, who sometimes is referred to as an undocumented alien, is eligible for protective services for adults or children to the extent that such person is otherwise eligible for such services pursuant to the SSL and OCFS regulations.

3. Needs and benefits:

The proposed regulation clarifies that a person residing unlawfully in the United States or who can not produce evidence that he or she is lawfully residing in the United States is eligible for adult protective services and child protective services, and repeals the reporting requirement currently imposed on social services districts in cases involving such persons. Under the current regulatory language, when an individual involved in an adult or child protective case is determined to be an alien unlawfully residing in the United States or when such individual cannot produce evidence of lawful residence, the social services district is to report such person either to the United States Immigration and Naturalization Service (now the United States Citizenship and Immigration Services of the Department of Homeland Security) or to the nearest consulate of the country of the applicant or recipient for appropriate action. The proposed regulation repeals this notice requirement. In addition, the proposed regulation repeals the current limitation on the provision of adult or child protective services to the person upon assumption of responsibility for the case by either the federal government or the consulate.

Neither federal nor state statute requires notification of the federal government in such cases. The proposed regulation does not preclude a social services district, in appropriate cases, from seeking assistance from a foreign consulate on behalf of its national.

The proposed regulation addresses safety concerns regarding children and family members involved in adult and child protective services cases. The concerns addressed by the proposed regulation include the ability of the social services district to focus on the safety of the person(s) involved in the case.

4. Costs:

The proposed regulation does not impose any additional costs on local social services districts. Districts report that the current regulation is rarely used as there have been a very small number of cases where districts have been providing protective services to this population. Where they have been providing protective services to this population, when needed, neither federal authorities nor foreign consulates have been assuming responsibility in such cases. Therefore no additional services will be provided by local social services districts as a result of the proposed regulations. There is no adverse fiscal impact to OCFS or the State related to the regulatory amendment.

5. Local government mandates:

The proposed regulation eliminates the mandate currently imposed on social services districts to report persons involved in adult protective services or child protective services cases who are unlawfully residing in the United States or who are not able to produce evidence of lawful residence to either the federal government or the nearest appropriate consulate.

6. Paperwork:

No additional paperwork requirements are required by the proposed regulation.

7. Duplication:

The proposed regulation does not duplicate other state or federal requirements.

8. Alternatives:

A regulatory amendment is required to repeal the current regulatory standard. There are no other alternatives.

9. Federal standards:

Federal statute requires that the State notify the United States Citizenship and Immigration Services of individuals who are not lawfully present in the United States when the State determines an individual's status as part of an eligibility determination in connection with an application for specified federal benefits. (See sections 404(b) and 408 of the Personal Responsibility and Work Opportunity Reconciliation Act [P.L. 104-193, as amended by P.L. 105-55].) The specified federal benefits to which the federal mandate applies do not include protective services for adults or children. (See Federal Interagency Notice, 65 Fed. Reg. 58302 [September 28, 2000.]) Therefore, there is no federal requirement that social services districts report persons who are not lawfully residing in the United States or who are not able to produce evidence of lawful residence in adult or child protective cases to either the federal government or a foreign consulate.

10. Compliance schedule:

The proposed regulation will take effect upon adoption.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed regulation will have no effect on small businesses. Social services districts, which are a unit of local government, will be affected by the proposed regulation. The proposed regulation clarifies that a person residing unlawfully in the United States or who can not produce evidence that he or she is lawfully residing in the United States, is eligible for adult protective services and child protective services. The proposed regulation eliminates the current requirement that social services districts report such persons involved in adult protective services or child protective services cases to either the United States Citizenship and Immigration Services or the nearest appropriate consulate. In addition, the proposed regulation repeals the current limitation on the provision of adult or child protective services to such person upon assumption of responsibility for the case by either the federal government or the consulate.

2. Compliance requirements:

The proposed regulation eliminates the mandate currently imposed on social services districts to report persons involved in adult protective or child protective services cases who are unlawfully residing in the United States or who are not able to produce evidence of lawful residence to either the federal government or the nearest appropriate consulate. Districts advise OCFS that they have been providing protective service to this population and that neither federal authorities nor foreign consulates have been assuming responsibility in such cases and therefore no additional services will be required by social services districts as a result of the proposed regulation.

3. Professional services:

No professional services are needed to comply with the proposed regulation.

4. Compliance costs:

The proposed regulation does not impose any additional costs on local social services districts. Districts report that the current regulation is rarely used as there have been a very small number of cases where districts have been providing protective services to this population. Where they have been providing protective services to this population, when needed, neither federal authorities nor foreign consulates have been assuming responsibility in such cases. Therefore no additional services will be provided by local social services districts as a result of the proposed regulations. There is no adverse fiscal impact to OCFS or the State related to the regulatory amendment.

5. Economic and technological feasibility:

The proposed regulation is economically and technically feasible. The proposed regulation eliminates the requirement that social services districts report persons involved in adult protective services or child protective services cases who are unlawfully residing in the United States or who are not able to produce evidence of lawful residence to either the federal government or the nearest appropriate consulate.

6. Minimizing adverse impact:

The proposed regulation does not affect small businesses and has no adverse impact on social services districts. Therefore, this issue was not considered.

7. Small business and local government participation:

OCFS solicited input from several social services districts (Erie, New York City, Suffolk, Oswego, Wayne and Clinton) regarding the proposed regulation. Responding social services districts indicated that there have been a very small number of cases where a district has been providing protective services to this population and that neither federal authorities nor foreign consulates have been assuming responsibility for such cases.

Nevertheless, those districts responding to OCFS supported the proposed regulation.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The proposed regulation affects all social services districts statewide, including the 44 social services districts located in rural areas. The proposed regulation does not affect small businesses.

2. Reporting, recordkeeping and other compliance requirements:

The proposed regulation clarifies that a person residing unlawfully in the United States or who can not produce evidence that he or she is lawfully residing in the United States, is eligible for adult protective services and child protective services. The proposed regulation eliminates the current requirement that social services districts report such persons involved in adult protective services or child protective services cases to either the United States Citizenship and Immigration Services or the nearest appropriate consulate. In addition, the proposed regulation repeals the current limitation on the provision of adult or child protective services to such person upon assumption of responsibility for the case by either the federal government or the consulate.

The proposed regulation imposes no new reporting or recordkeeping requirements.

3. Costs:

The proposed regulation does not impose any additional costs on local social services districts. Districts report that the current regulation is rarely used as there have been a very small number of cases where districts have been providing protective services to this population. Where they have been providing protective services to this population, when needed, neither federal authorities nor foreign consulates have been assuming responsibility in such cases. Therefore no additional services will be provided by local social services districts as a result of the proposed regulations. There is no adverse fiscal impact to OCFS or the State related to the regulatory amendment.

4. Minimizing adverse impact:

The proposed regulation does not affect small businesses and has no adverse impact on social services districts. Therefore, this issue was not considered.

5. Rural area participation:

OCFS solicited input regarding the proposed regulation from several social services districts, including Oswego, Wayne and Clinton counties, which are rural. Responding social services districts indicated that there have been a very small number of cases where a district has been providing protective services to this population and that neither federal authorities nor foreign consulates have been assuming responsibility for such cases.

Nevertheless, those districts responding to OCFS supported the proposed regulation.

Job Impact Statement

A full job impact statement has not been prepared for the proposed regulation because it does not result in the loss of any jobs. The proposed regulation clarifies that a person residing unlawfully in the United States or who can not produce evidence that he or she is lawfully residing in the United States is eligible for adult protective services and child protective services, and repeals the reporting requirement currently imposed on social services districts in cases involving such persons.