PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of Part 351; and addition of new Part 351 to Title 9 NYCRR.
Statutory authority:
Executive Law, sections 243(1) and 257(4)
Subject:
Probation Supervision.
Purpose:
To reflect newly emerging offender supervision principles/practices and provide mandate relief to probation departments.
Substance of final rule:
The proposed rule repeals existing Part 351 and adds a new Part 351 governing probation supervision.
Section 351.1 is the definitional section. This section defines over thirty key operational terms to ensure consistency statewide with respect to language interpretation. Among these are the definition of “active case” and various types of “contact” with respect to supervision to clarify what is meant by specific contact terminology. New definitions of “administrative case” and “contact substitution” set forth parameters by which departments are afforded additional supervision flexibility in certain regulatory requirements. Further, there are added several new definitional terms to reflect latest principles and practices in managing offenders in the community. For example, the terms “graduated sanctions”, “merit credit”, “merit credit activities”, and “pro-social community activities” are defined to ensure there is universal understanding of what is meant by these terms in New York State, and to encourage these new supervisory approaches.
Section 351.2 sets forth the Objective which is twofold: (1) to provide local probation departments with procedures for persons who receive a probation sentence or are placed on probation supervision or under interim probation supervision by the courts, and (2) to promote evidence-based practices in the field of probation to promote public safety by holding the offender accountable, improving offender competencies, restoring victims, and reducing recidivism.
Section 351.3 governs applicability and establishes that it shall be applicable to all probation departments for family and criminal court probation supervision as well as interim supervision cases.
Section 351.4 establishes parameters relative to case assignment, in terms of timeframes, review of pertinent material, verification, and assignment where applicable to specialized caseloads.
Section 351.5 governs assessment and case planning, and delineates timeframes and critical procedures that must be undertaken to determine an individual offender’s appropriate probation supervision classification level. For example, this section requires completion of the risk and need assessment if not already done at the time of investigation, recognizes a department may complete other specialized assessments, where available, and delineates specific confirmation of applicable legal case requirements are met, including DNA sample obtained, Sex Offender Registration Act status compliance, fingerprints obtained, and where ordered, a restitution account is established for collection.
Section 351.6 entitled “Probation Supervision” contains the main supervision standards to be followed. It distinguishes between “active” and “administrative” cases and delineates the various differential supervision classification levels and supervision contact requirements that must be met along with setting forth parameters by which probation departments may utilize greater flexibility in the area of certain contact provisions. A chart summarizing minimum contact provisions by classification level and merit credit/activities, where applicable is incorporated to foster better understanding and promote compliance. Additionally this section sets forth parameters governing periodic reassessments/case reviews.
Section 351.7 governs probation supervision practices relative to victim services, probationer referrals, risk management, risk reduction, technology, and supervisory directives/instructions.
Section 351.8 governs interstate and intrastate transfer cases and compliance requirements which must be met.
Section 351.9 sets forth criteria surrounding probation departments requesting termination of a sentence in accordance with statutory law.
Section 351.10 enumerates the types of probation case closing options.
Section 351.11 reiterates regulatory reporting parameters to the Division of Criminal Justice Services which is similar to existing regulations.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 351.6(c) and 351.8.
Text of rule and any required statements and analyses may be obtained from:
Linda J. Valenti, Assistant Counsel, NYS Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, (518) 457-8413, email: linda.valenti@dcjs.ny.gov
Revised Regulatory Impact Statement
1. Statutory authority:
Pursuant to Chapter 56 of the Laws of 2010, the former Division of Probation and Correctional Alternatives (DPCA) was merged within the Division of Criminal Justice Services (DCJS) and is now the Office of Probation and Correctional Alternatives (OPCA). Section 8 of Part A of this Chapter specifically transferred all rules and regulations of DPCA to DCJS and provided that such shall continue in full force and effect until duly modified or abrogated by the Commissioner of DCJS. Additionally, section 17 of Part A of this Chapter amended Executive Law Section 243(1) to make conforming changes and establish in pertinent part that the DCJS Commissioner has authority to adopt “general rules which shall regulate methods and procedure in the administration of probation services, including … supervision… so as to secure the most effective application of the probation system and the most effective enforcement of the probation laws throughout the state.” Further, Executive Law Section 257(4) requires that probation officers contact probationers “at least once a month” pursuant to rules promulgated by the Commissioner. Such rules are binding with the force and effect of law.
2. Legislative objectives:
In general, these regulatory amendments, which replace the existing rule in this area, are consistent with legislative intent regarding critical probation functions and the promotion of professional standards which govern administration and delivery of probation supervision services for both family court and criminal court persons receiving a probation disposition or sentence. By vesting the DCJS Commissioner with rule-making authority, the Legislature authorized DCJS to set minimum probation supervision standards.
The overarching goal of these amendments is to reflect newly emerging and recognized evidence-based offender supervision principles and practices for effective interventions and better outcomes to reduce recidivism, and to afford additional flexibility to probation departments relative to certain supervisory management decision-making in an effort to provide mandate relief. Specifically, the new rule will incorporate evidence-based practices around case assessment, case planning, and reassessment, encourage the use of technology, where appropriate, promote the use of effective risk management and risk reduction strategies, provide greater flexibility in terms of supervision levels and how, when, and where supervision contacts can be made, and reduce unnecessary paperwork. Through modernization of minimum supervision standards, this rule will advance statewide application of best supervision practices throughout all probation departments in New York State (NYS).
3. Needs and benefits:
Since the last major revision of the rule occurred over 20 years ago, model contemporary probation practices have been incorporated into this rule to guarantee statewide utilization of sound supervision strategies that promote probationer accountability, rehabilitation and behavioral change. These amendments emphasize the importance of actuarial risk and need assessments, recognize case planning protocols which research indicates help achieve better outcomes, and incorporate the protocol of reassessing cases on a regular periodic basis, which have proven to be an effective method to measure how an offender is progressing, or not, toward the goals of their conditions of probation and case plan. These amendments reflect nationally recognized evidence-based practice principles demonstrated in research to reduce risk of recidivism by addressing needs underlying the presenting delinquent or criminal behaviors. Through screening and assessment and case planning and reassessment protocols, probation departments will have greater insight into individual risks and needs and responsivity to supervision strategies in order to more effectively implement changes as the case progresses. Recognizing greater utilization of technology, with a strong emphasis on core principles surrounding effective risk and needs strategies, also will benefit probation departments to structure their supervisory caseloads according to risk and need, supervise accordingly, and achieve probation supervisory management in a more efficient manner. While certain amendments are more prescriptive, special care and attention was paid to provide enhanced flexibility for departments to develop and implement policies and procedures that meet their local needs and resource capacities.
Finally, these amendments update the existing rule consistent with recent statutory changes relative to interstate/intrastate transfers and interim probation supervision, and embrace several key terms and strategies consistent with other adopted DCJS rules relative to community corrections and programmatic initiatives to reduce recidivism, positively change behavior, and assist victims.
4. Costs:
DCJS anticipates no additional costs beyond what is currently required in law and regulation. Good assessments at the beginning of each case, case plans based on the dynamic risk factors, and meaningful reassessments will achieve more effective probation supervision and efficiency of staff supervisory deployment and concomitantly facilitate offender capacity to lead productive, law-abiding lives. DCJS believes such efforts can optimally avoid, or at a minimum reduce, short-term and long-term state and local incarceration and/or placement costs for offenders at risk of continued involvement with the juvenile justice or criminal justice system and associated court costs involved. Notably, probation population and individual risks and needs are not static in nature and vary across the State, the scope of enhanced probation services differs among jurisdictions, and in recent years numerous probation departments have experienced reduced local fiscal aid, yet increased workload. Consequently, DCJS cannot definitively quantify governmental cost savings. However, it is anticipated that changes will help departments better manage their finite resources in a more efficient manner.
Significantly, DCJS has made available, at no cost to jurisdictions, the Youth Assessment and Screening Instrument (YASI) tools and software for youth and the Correctional Offender Management Profiling for Alternative Sanctions (NY COMPAS) for adults. Fifty-seven counties currently use YASI and COMPAS. Consistent application and sharing of screening, assessment, case planning, and reassessment protocols and results will avoid duplication of efforts within and across probation departments.
As part of the State’s efforts to streamline recordkeeping, prevent duplication, and achieve cost savings, OPCA supported the deployment of web-based case management software, known as Caseload Explorer (CE) to standardize probation information and reporting in a more efficient manner. Currently, 47 departments are implementing this software and it is anticipated that several other departments will participate in the near future.
As to any anticipated in-service costs of educating staff, DCJS believes orientation can be readily accomplished through memoranda, statewide trainings via Live Meeting technology, OPCA technical assistance on an as-needed basis, and director/supervisory oversight without incurring any direct costs. Overall, any minimal costs are outweighed by the benefits of avoiding or lessening unnecessary reliance on jail or State incarceration and/or juvenile placement, reducing attendant costs associated therewith, and serving the best interests of youth and adult offenders.
5. Local government mandates:
While this regulatory reform requires specific attention to key areas, including slightly greater minimum supervisory contact with greatest risk and high risk probationers, amendments provide considerable flexibility and appropriate contact substitution consistent with public safety. It acknowledges certain operational policy and resource differences among departments.
Importantly, former DPCA always had agency rules governing probation supervision, and current DCJS regulations are consistent with its statutory authority. Therefore continuance of DCJS supervisory rules does not anticipate that any new supervisory requirements will be burdensome. DCJS already requires actuarial risk and needs assessments along with case planning tools and protocols approved by the Commissioner. DCJS has made assessment software available to all jurisdictions free of charge. As the state oversight agency with respect to administration of probation services, State approval of any assessment tool is appropriate.
6. Paperwork:
The rule does not require additional reports or forms. Deployment of CE case management software has streamlined several paper requirements and avoided duplication of efforts. While refinement of certain reports and forms to reflect the revised regulatory content will be necessitated, OPCA convened a specific workgroup of state and local probation professionals which developed specifications and to determine requisite software changes to occur prior to implementation.
7. Duplication:
These amendments do not duplicate any State or Federal law or regulation.
8. Alternatives:
These amendments integrate law, research, and model probation practices to establish specific minimum standards for probation’s provision of supervision for both juvenile and adult offenders who are subject to terms and conditions of probation in the community. Strengthening and supporting consistent application of probation supervision is essential to ensure public safety through risk management and risk reduction approaches. By addressing offenders’ needs within the context of their families and communities and reducing offender recidivism, the State and local government can realize savings in jail, imprisonment, placement, and social costs.
It is OPCA’s statutory responsibility to exercise general supervision over the administration of probation services and DCJS has been empowered with rulemaking authority governing probation services, including but not limited to supervision, to secure the most effective application of the probation system and the most efficient enforcement of probation laws throughout the State. Accordingly, it is necessary to maintain its rule governing probation supervision and this updated rule helps achieve these statutory goals with respect to oversight of probation supervision services.
In the preparation and drafting of regulatory amendments, OPCA was diligent in engaging probation, juvenile justice, and criminal justice professionals from around NYS, as well as reaching out to other states and organizations to become better informed on data and current research. In February 2010, OPCA convened a Supervision Rule Revision Workgroup with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions as well as staff from DCJS. Also included in the workgroup were representatives from the NYS Probation Officers Association (POA) and the NYS Council of Probation Administrators (COPA). Monthly meetings were held throughout 2010 and into early 2011. While monthly meetings were occurring, OPCA reached out to other states and organizations with expertise in the area of community supervision (Colorado; Arizona; Texas; Michigan; Council of State Governments; American Probation and Parole Association) and invited Orbis Partners, author of YASI, Northpointe, author of COMPAS, and the DCJS Research Unit to present NYS probation data to the workgroup. In March 2011, OPCA circulated a refined draft to all probation directors for their informal review and feedback. While in June 2011 OPCA presented the proposed rule at the COPA Summer Institute, OPCA officials also met with probation directors from COPA Area 3 in May, Area 1 in July, and Area 2 in September of 2011 relative to this new rule. In August 2011 OPCA provided probation departments with a draft Practice Commentary to accompany the rule and provide more insight into and guidance surrounding new provisions. In September 2011 the Probation Commission approved the rule. In all, eighteen regulatory drafts were developed, critiqued and debated, and edited to address the feedback from probation and criminal justice professionals from across the State.
Most of the feedback indicated that these amendments reflect current model best probation practices and some sought clarification of language, alternate language, or increased flexibility. The majority of substantive suggestions were incorporated in this final version, and the workgroup clarified issues raised, and increased flexibility in certain instances. Overall, OPCA received favorable support from probation agencies that these amendments are manageable and consistent with good professional practice. For reasons stated throughout this document relative to approval and use of actuarial tools, and while NYC Probation is the sole remaining non-YASI and non-COMPAS jurisdiction and has in the past objected to State approval of their assessment tools, it is essential that DCJS ensure departments are using fully validated instruments. Notably, there exists regulatory flexibility to allow New York City to choose another validated assessment tool, approved by DCJS, and State agency permission previously has been granted in this area.
9. Federal standards:
There are no federal standards governing the provision of probation supervision in NYS.
10. Compliance schedule:
COPA had expressed concern that new rule implementation not occur until CE software changes are made. As noted earlier, a workgroup was established to identify necessary changes. DCJS agreed to defer implementation until changes are completed and such changes will occur on or about the first quarter of 2013. OPCA has already provided regional training throughout the state to departments on the proposed rule. Accordingly, through prompt staff dissemination of the adopted rule, its summary, and the Practice Commentary, local departments should be able to implement and comply with new provisions by June 1, 2013.
Revised Regulatory Flexibility Analysis
1. Effect of Rule:
This proposed rule revises existing regulatory procedures in the area of probation supervision for both family court and criminal court cases and will impact local probation departments which are responsible for the delivery of such services.
These amendments reflect newly emerging and nationally recognized evidence-based offender supervision principles and practices demonstrated in research to reduce risk of recidivism by addressing needs underlying the presenting delinquent or criminal behavior. Specifically, model contemporary probation practices have been incorporated into the proposed rule to guarantee statewide utilization of sound supervision strategies that promote probationer accountability, rehabilitation and behavioral change. Through modernization of minimum supervision standards, this proposed rule will advance statewide application of best supervision practices throughout all probation departments in New York State (NYS).
These regulatory amendments emphasize the importance of actuarial risk and need assessments, recognize case planning protocols which research indicates help achieve better outcomes, and incorporate the protocol of reassessing cases on a periodic basis, which has proven to be an effective method to measure how an offender is progressing, or not, toward the goals of their conditions of probation and case plan. Strengthening and supporting consistent application of probation supervision is essential to ensure effective and efficient risk management and risk reduction as appropriate.
Additional flexibility is afforded to probation departments relative to certain supervisory management decision-making and contact requirements in an effort to provide mandate relief. Recognizing greater utilization of technology, with a strong emphasis on core principles surrounding effective risk and needs strategies, also will benefit probation departments to structure their supervisory caseloads according to risk and need, supervise accordingly, and achieve probation supervisory management in a more efficient manner. While certain amendments are more prescriptive, special care and attention was paid to provide enhanced flexibility for departments to develop and implement policies and procedures that meet their local needs and resource capacities.
By addressing probationer needs within the context of their families, schools, employment, treatment programs, and communities, and reducing offender recidivism, the State and local governments can better realize savings in jail, state imprisonment, placement, and social costs. Such efforts will further assist probation departments in more efficiently and effectively managing their supervisory workload.
No small businesses are impacted by these proposed regulatory amendments.
2. Compliance Requirements:
Importantly, OPCA and its predecessor agency, the Division of Probation, always had agency rules governing probation supervision. The proposed regulatory amendments continue minimum probation supervision requirements to ensure similar service delivery throughout the state. While this regulatory reform requires specific attention to key areas, including slightly greater minimum supervisory contact with greatest risk and high risk probationers, amendments provide considerable flexibility and appropriate contact substitution consistent with public safety. It further acknowledges certain operational policy and resource differences among departments. DCJS does not anticipate that any new supervisory requirements will be problematic in terms of compliance as the agency was diligent in working together with local probation professionals to update the rule to achieve current best supervision practices, afford mandate relief, and guarantee workable provisions that can be met.
DCJS already requires actuarial risk and needs assessments along with case planning tools and protocols approved by the Commissioner and has made assessment software available to probation departments. Therefore, regulatory provisions in this area ought not to be problematic in terms of implementation. As the state oversight agency with respect to administration of probation services, State approval of any assessment tool is appropriate.
With respect to paperwork, the proposed rule does not require additional reports or forms and does not change the monthly workload reporting requirements to DCJS. Additionally, DCJS has made case management software available to all probation departments to promote greater efficiency and facilitate electronic record sharing where appropriate. While refinement of certain reports and forms to reflect the revised regulatory content will be necessitated, OPCA has convened a workgroup of state and local probation professionals to develop necessary specifications and changes will occur prior to implementation.
There are no small business compliance requirements imposed by these proposed rule amendments.
3. Professional Services:
No professional services are required for probation departments to comply with the proposed rule changes. Additionally, as this rule does not impact small businesses, there are no professional services required of small business associated with these proposed rule amendments.
4. Compliance Cost:
DCJS anticipates no additional costs in adhering to these amendments beyond what is currently required in law and regulation. Good assessments at the beginning of each case, case plans based on the dynamic risk factors, and meaningful reassessments will achieve more effective probation supervision and efficiency of staff supervisory deployment and concomitantly facilitate offender capacity to lead productive, law-abiding lives. DCJS believes such efforts can optimally avoid, or at a minimum reduce, short-term and long-term State and local incarceration and/or placement costs for offenders at risk of continued involvement with the juvenile justice or criminal justice system and the associated court costs involved. Notably, probation population and individual risks and needs are not static in nature and vary across the State, the scope of enhanced probation services differs among jurisdictions, and in recent years numerous probation departments have experienced reduced local fiscal aid, yet increased workload. Consequently, DCJS cannot definitively quantify governmental cost savings. However, it is anticipated that changes will help departments better manage their finite resources in a more efficient manner.
Significantly, DCJS has made available, at no cost to jurisdictions, the Youth Assessment and Screening Instrument (YASI) tools and software for youth and the Correctional Offender Management Profiling for Alternative Sanctions (NY COMPAS) for adults. Fifty-seven counties currently use YASI and COMPAS. Consistent application and sharing of screening, assessment, case planning, and reassessment protocols and results will avoid duplication of efforts within and across probation departments.
As part of the State’s efforts to streamline recordkeeping, prevent duplication, and achieve cost savings, OPCA supported the deployment of web-based case management software, known as Caseload Explorer (CE), to standardize probation information and reporting in a more efficient manner. Currently, 44 departments are utilizing the software and it is anticipated that several other departments will participate in the near future.
As to any anticipated in-service costs of educating staff, DCJS believes orientation can be readily accomplished through memoranda, statewide trainings via Live Meeting technology, OPCA technical assistance on an as-needed basis, and director/supervisory oversight without incurring any direct costs. Overall, any minimal costs are outweighed by the benefits of avoiding or lessening unnecessary reliance on jail or State incarceration and/or juvenile placement, reducing attendant costs associated therewith, and serving the best interests of youth and adult offenders.
5. Economic and Technological Feasibility:
Local probation departments should have no problem in complying with this rule. All departments, with the exception of New York City (NYC), are using both the YASI and COMPAS risk and needs assessment software which enables them to have a validated DCJS approved risk and needs assessment tool. Further, NYC Department of Probation has been granted State permission to utilize other instruments and has recently expressed some interest in YASI and COMPAS. As noted earlier, DCJS also has supported deployment of CE case management software for interested probation departments and the clear majority of probation departments are utilizing this software and additional departments will be participating in the near future. Further, OPCA has recently convened a workgroup of state and local professionals to ensure that CE software changes will be made prior to rule implementation. DCJS does not anticipate any economic or technological problems experienced by probation departments as a result of final adoption of these rule changes. There are no economic or technological issues faced by small businesses as these proposed rules do not affect them.
6. Minimizing Adverse Impacts:
In the preparation and drafting of the proposed amendments, OPCA was diligent in engaging probation, juvenile justice, and criminal justice professionals from around the State, as well as reaching out to other states and organizations to become better informed on data and current research. In February 2010, OPCA convened a Supervision Rule Revision Workgroup with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions as well as staff from DCJS. Also included in the workgroup were representatives from the NYS Probation Officers Association (POA) and the NYS Council of Probation Administrators (COPA). Monthly meetings were held throughout 2010 and into early 2011. While monthly meetings were occurring, OPCA reached out to other states and organizations with expertise in the area of community supervision (Colorado; Arizona; Texas; Michigan; Council of State Governments; American Probation and Parole Association) and invited Orbis Partners, author of YASI, Northpointe, author of COMPAS, and the DCJS Research Unit to present NYS probation data to the workgroup. In March 2011, OPCA circulated a refined draft to all probation directors/commissioners for their informal review and feedback. While in June 2011 OPCA officials presented the proposed rule at the COPA Summer Institute, OPCA officials also met with probation directors from COPA Area 3 in May, Area 1 in July, and Area 2 in September of 2011 relative to this new rule. In August 2011 OPCA provided probation across NYS with a draft Practice Commentary document to accompany the rule and provide more insight into and guidance surrounding proposed regulatory provisions. In September 2011 the Probation Commission approved the rule. In all, eighteen drafts of the proposed rule were developed, critiqued and debated, and edited to address the feedback from probation and criminal justice professionals from across the State.
Most of the feedback indicated that these amendments reflect current model best probation practices. Some feedback sought clarification of language, alternate language, or increased flexibility. The majority of substantive suggestions for change were incorporated in this final version, and the workgroup clarified issues raised, and increased flexibility in certain instances. Overall, OPCA received favorable support from probation agencies that these amendments are manageable and consistent with good professional practice. For reasons stated throughout this document relative to approval and use of actuarial tools, and while NYC Probation is the sole remaining non-YASI and non-COMPAS jurisdiction and has in the past objected to State approval of their assessment tools, it is essential that DCJS ensure departments are using fully validated instruments. Notably, there exists regulatory flexibility to allow New York City to choose another validated assessment tool, approved by DCJS, and State agency permission previously has been granted in this area.
7. Small Business and Local Government Participation:
See Section 6 above with respect to local government participation in reform of this supervision rule and in assisting DCJS finalize necessary specifications of case management software changes.
This proposed rule does not impact small businesses within the state and, therefore, there was no need to involve small businesses across the state in rule reform in this area.
Revised Rural Area Flexibility Analysis
1. Types and estimated number of rural areas:
Forty-four local probation departments are located in rural areas and will be affected by the proposed rule amendments.
2. Reporting, recordkeeping, and other compliance requirements, and professional services:
The newly proposed supervision rule continues current and expands slightly on regulatory requirements that probation directors maintain certain local written policies and procedures governing key aspects of probation supervision functions for both juvenile and adult offenders receiving a disposition or sentence of probation. These key areas for local policy development were carefully vetted with probation departments across the State and are consistent with best professional practices surrounding delivery of probation supervision and ensure departments maintain flexibility that takes into account local needs and resources. Some regulatory amendments establishing minimum timeframes, criteria, and/or contact requirements surrounding assessments, reassessments, case planning, classification level, and case record documentation are consistent with current regulations in this area. Others afford additional flexibility to probation departments or strengthen supervision requirements in accordance with best professional practices surrounding delivery of probation supervision services and to enhance probation supervisory management flexibility cognizant of local needs and resources. With respect to supervision record keeping, the regulatory changes revamp contact requirements and expand somewhat upon recording of key supervision areas to reflect sound minimum supervision standards. While this new rule does not change the monthly workload reporting requirements to DCJS which is integral to maintain current relevant statistical information on probation supervision operations, there has been considerable efforts in recent years to streamline and automate probation record keeping and reporting through software initiatives and further detail of such enhanced measures and the benefits to probation departments across the State are explained in more detail under the Costs section. Overall, regulatory language emphasizes that record keeping governing probation services are to be in accordance with the DCJS Case Record Management rule. Notably, DCJS is in the process of revising this specific rule in terms of affording greater mandate relief and management flexibility and updating provisions to reflect automation of records.
DCJS does not believe that these regulatory changes will prove difficult to achieve. Through prompt dissemination to staff of this new rule and its summary, statewide trainings via Live Meeting technology, OPCA technical assistance on an as-needed basis, and normal director/supervisory oversight of supervision services, local probation departments should be able to promptly implement these amendments and comply with the rule’s provisions ninety days after formal adoption. DCJS has agreed to defer implementation until certain software changes have been made and it has established a workgroup to develop necessary specifications regarding changes necessitated.
As to professional service requirements, there are no additional professional services necessitated in any rural area to comply with this rule.
3. Costs:
DCJS anticipates no additional costs in adhering to these amendments beyond what is currently required in law and regulation. Good assessments at the beginning of each case, case plans based on the dynamic risk factors, and meaningful reassessments will achieve more effective probation supervision and efficiency of staff supervisory deployment and concomitantly facilitate offender capacity to lead productive, law-abiding lives. DCJS believes such efforts can optimally avoid or at a minimum reduce short-term and long-term State and local incarceration and/or placement costs for offenders at risk of continued involvement with the juvenile justice or criminal justice system and associated court costs involved. Notably, probation population and individual risks and needs are not static in nature and vary across the State, the scope of enhanced probation services differs among jurisdictions, and in recent years numerous probation departments have experienced reduced local fiscal aid, yet increased workload. Consequently, DCJS cannot definitively quantify governmental cost savings. However, it is anticipated that changes will help departments better manage their finite resources in a more efficient manner.
Significantly, DCJS has made available, at no cost to jurisdictions, the Youth Assessment and Screening Instrument (YASI) tools and software for youth and the Correctional Offender Management Profiling for Alternative Sanctions (NY COMPAS) for adults. Fifty-seven counties, including every rural jurisdiction’s probation department, currently use YASI and COMPAS. Consistent application and sharing of screening, assessment, case planning, and reassessment protocols and results will avoid duplication of efforts within and across probation departments.
As part of the State’s efforts to streamline recordkeeping, prevent duplication, and achieve cost savings, OPCA supported the deployment of web-based case management software, known as Caseload Explorer (CE) to standardize probation information and reporting in a more efficient manner. Currently, 44 departments utilize this software and it is anticipated that several other departments will participate in the near future. Overall, participating rural counties benefit from this software and none of the remaining rural jurisdictions have voiced concern with any of the supervision reporting or recordkeeping requirements.
As to any anticipated in-service costs of educating staff, DCJS believes orientation can be readily accomplished through memoranda, statewide trainings via Live Meeting technology, OPCA technical assistance on an as-needed basis, and director/supervisory oversight without incurring any direct costs. Any minimal costs are outweighed by the benefits of avoiding or lessening unnecessary reliance on jail or State incarceration and/or juvenile placement, reducing attendant costs associated therewith, and serving the best interests of youth and adult offenders.
DCJS believes that more effective probation supervision in the community can reduce long-term State and local governmental costs for those probationers who are at risk of continued involvement with the juvenile justice or criminal justice system. DCJS anticipates no additional costs in adhering to these regulatory amendments beyond what is currently required in law and regulation.
4. Minimizing adverse impact:
DCJS foresees that these regulatory amendments will have no adverse impact on rural areas. OPCA collaborated with jurisdictions across the state, including rural areas in developing the proposed rule and incorporated numerous suggestions from probation departments representing urban, rural, and suburban areas to clarify or address issues raised and to reflect good probation practice across the State. To our knowledge no adverse impact on rural areas were identified, and the new supervision rule embraced flexibility where it was found to be consistent with good practice.
In the preparation and drafting of the proposed amendments, DCJS was diligent in engaging probation, juvenile justice, and criminal justice professionals from around the State, as well as reaching out to other states and organizations to become better informed on data and current research. In February 2010, OPCA convened a Supervision Rule Revision Workgroup with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions as well as staff from DCJS. Also included in the workgroup were representatives from the NYS Probation Officers Association (POA) and the NYS Council of Probation Administrators (COPA). Monthly meetings were held throughout 2010 and into early 2011. While monthly meetings were occurring, OPCA reached out to other states and organizations with expertise in the area of community supervision (Colorado; Arizona; Texas; Michigan; Council of State Governments; American Probation and Parole Association) and invited Orbis Partners, author of YASI, Northpointe, author of COMPAS, and the DCJS Research Unit to present NYS probation data to the workgroup. In March 2011, OPCA circulated a refined draft to all probation directors for their informal review and feedback. While in June 2011 OPCA presented the proposed rule at the COPA Summer Institute, OPCA officials also met with probation directors from COPA Area 3 in May, Area 1 in July, and Area 2 in September of 2011 relative to this new rule. In August 2011 OPCA provided probation departments with a draft Practice Commentary to accompany the rule and provide more insight into and guidance surrounding proposed regulatory provisions. In September 2011 the Probation Commission approved the rule. In all, eighteen regulatory drafts were developed, critiqued and debated, and edited to address the feedback from probation and criminal justice professionals from across the State.
5. Rural area participation:
These revisions were developed by an OPCA workgroup comprised of DCJS staff and several local probation departments representing all geographic regions of the state, including rural, and involving all levels of probation staff, including director, deputy director, supervisor, senior probation officer, and probation officer. Additionally, there was representation from the NYS Probation Officers Association and the NYS Council of Probation Administrators. See Section 4 above for details.
Most of the feedback indicated that these amendments reflect current model best probation practices and some sought clarification of language, alternate language, or increased flexibility. The majority of substantive suggestions were incorporated in this final version, and the workgroup clarified issues raised, and increased flexibility in certain instances. Overall, OPCA received favorable support from probation agencies that these amendments are manageable and consistent with good professional practice. For reasons stated throughout this document relative to approval and use of actuarial tools, and while NYC Probation is the sole remaining non-YASI and non-COMPAS jurisdiction and has in the past objected to State approval of their assessment tools, it is essential that DCJS ensure departments are using fully validated instruments. Notably, there exists regulatory flexibility to allow New York City to choose another validated assessment tool, approved by DCJS, and State agency permission previously has been granted in this area.
As OPCA did not find significant differences among urban, rural, and suburban jurisdictions as to issues raised or suggestions for change, and this rule satisfactorily addresses issues raised, DCJS is confident that these regulatory changes have the flexibility to accommodate rural probation department needs.
Revised Job Impact Statement
A job impact statement is not being submitted with these proposed regulations because the Division of Criminal Justice Services (DCJS) believes there will be no adverse effect on private or public jobs or employment opportunities.
These regulatory changes establish new minimum probation supervision standards, yet simultaneously afford greater flexibility to probation departments in performing supervision functions, especially in certain supervisory management decision-making and contact requirements. As noted in other regulatory documents, this rule was developed with considerable input of local probation departments across the state to incorporate nationally recognized evidence-based offender supervision practices and principles, afford mandate relief, and guarantee workable provisions that can be met. A Supervision Rule Revision workgroup was formed by the Office of Probation and Correctional Alternatives (OPCA) with state and local probation professionals across the state from small, medium, and large jurisdictions and also with representatives from the NYS Probation Officers Association and the NYS Council of Probation Administrators to ensure regulatory reform met all the aforementioned goals. Additionally, another workgroup was convened of state and local probation professionals to ensure web-based case management software changes, utilized by the overwhelming majority of departments, will be made prior to rule implementation. Further, through recognition of greater utilization of technology with a strong emphasis on core principles surrounding effective risk and needs strategies, probation departments will have the ability to better structure their supervisory caseloads according to risk and need and achieve probation supervisory management in a more efficient manner.
As to any anticipated in-service costs of educating staff, DCJS believes orientation can be readily accomplished through memoranda, statewide trainings via Live Meeting technology, OPCA technical assistance on an as needed basis, and director/supervisory oversight without incurring any direct costs.
Assessment of Public Comment
The Division of Criminal Justice Services (DCJS) received four written comments relative to the proposed regulatory Part 351 governing probation supervision during the official public comment period. A summary of these comments and our agency analysis and response follows:
The first comment was received from the Greene County Probation Director relative to the definitional term of “positive home contact”, but it was satisfactorily resolved after follow-up agency communication with him as to its rationale.
The second comment, from an Orange County probation officer, registered general concerns as to staffing resources and the ability to timely carry out probation officer supervisory responsibilities. DCJS believes the officer’s concern is unwarranted as this new rule provides for greater flexibility and local probation departmental discretion in reallocating resources as determined by risk level. Further, any specific regulatory timeframes were carefully weighed and consensus reached by DCJS’ Office of Probation and Correctional Alternatives (OPCA) Supervision Rule Revision Workgroup with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions as well as staff from DCJS. Also included in the workgroup were representatives from the NYS Probation Officers Association (NYSPOA) and the NYS Council of Probation Administrators (COPA). Numerous internal regulatory drafts were circulated to local probation directors, NYSPOA, and COPA, In all, eighteen regulatory drafts were developed, critiqued and debated, and edited to address the feedback from probation and criminal justice professionals from across the State. All proposed timeframes and supervision activities reflected in this new rule were carefully vetted and consensus reached by the Workgroup. Notably, certain existing regulatory timeframes were revamped in this new rule to afford probation departments additional time to complete specific actions.
The third comment, from the Suffolk County Probation Officer’s Association, voiced five specific concerns with the new rule. The first which was intended to refer to the term “positive home contact” was critical of the definition itself and expressed workload demands in meeting its requirement, especially for Level 2 or medium risk caseloads. The aforementioned Workgroup debated and discussed at length this term and differentiating between various contact definitions. However, significantly in the end, Workgroup consensus was reached that the proposed “positive home contact” definition which reflects a face-to-face contact with the probationer at his/her residence and any minimum positive home contact reference in the rule were achievable and in keeping with best practice-necessary for public safety and offender accountability. The other type of contact suggested by this Association would count as a collateral contact. It is further noteworthy to clarify that only one positive home contact requirement is required for a Level 2 case during the first forty-five calendar days from assignment, and thereafter only as needed. Moreover, this new rule gives probation department management greater flexibility as to how it can manage its resources and therefore their collective concerns are unwarranted.
With respect to the specific concern with the timeframe in which to conduct the initial interview being eight business days from the date of assignment, the proposed rule provides four additional days than current regulatory requirements and therefore it should not prove burdensome but be viewed as consistent with mandate relief.
As to this Association’s concern with the new rule requirement that there be an in-person contact every week until the supervision case plan is completed pending the classification of the probationer, this requirement is by its very nature limited in duration and clearly in the interest of offender accountability and public safety and notably DCJS has heard no opposition to this from COPA, NYSPOA, the Workgroup, or any local probation director that this new regulatory expectation is burdensome or unreasonable.
Regarding high risk supervision requirements and the minimum requirement of one in-person contact per week and one positive home contact per month, this concern is disconcerting as the regulatory language herein relative to such similar contacts is consistent with current regulatory compliance language. As to the ability of probation officers with caseloads of medium and high risk probationers achieving these contact requirements, it is important and expected that officers utilize the reassessment tool and protocol to regularly reevaluate risk level and DCJS foresees that utilization of merit time allowances with respect to appropriate cases will prove helpful to probation departments in managing their staff resources.
As to the Association’s concerns raised with kiosks and other forms of electronic reporting, DCJS believes that utilization of these supervision tools, where appropriate, in conjunction with effective intervention is what research indicates can help reduce criminal activity. Our current supervision rule has recognized these tools and the new rule incorporates them as well, and both the current and new rule retains discretion and provides flexibility to probation directors as to their usage.
Lastly, the fourth comment, from the New York City Department of Probation (NYCDOP), recommended that language regarding the availability of contact substitutions be broadened to embrace more young probationers given anticipated changes in how New York State will in the future treat young people accused of criminal acts. It appears that this comment is referring to the expectation that New York will soon join forty-nine states which have already raised their Juvenile Delinquency age up to eighteen from sixteen. The NYCDOP proposed language would change language referring “only for Juvenile Delinquent and Persons In Need of Supervision probationers under age 18 at the time of disposition” by striking reference to these two specific Family Court status populations. The remaining parameters regarding contact substitution would be retained. DCJS believes that the new rule language is sufficient in this area as it is already written broad enough should New York raise the maximum juvenile delinquency age to eighteen. In light of this observation and that our rule language was carefully crafted by the aforementioned Workgroup and neither OPCA or DCJS has heretofore heard the need to modify the language from any probation department or professional association during the vetting process, maintaining retention of our regulatory language at this time appears sound.
The only minor technical changes which OPCA recommended and DCJS made in adopting this new supervision rule were with respect to cases classified as Administrative as delineated in Rule Section 351.6(c) and to clarify language in Rule Section 351.8 with respect to interstate cases. Specifically, DCJS added two new administrative case categories to reflect Chapters 347 and 470 of the Laws of 2012 which were both enacted since submission of the proposed new rule to the State Register. As the former authorizes intrastate transfer of an Interim Probation Supervision case, yet establishes that the original court retains jurisdiction and the latter establishes new procedures with respect to family court intrastate probation transfers which will in certain instances lead to the original court retaining jurisdiction or receiving the case back for handling, specific language was added to establish when such cases would be handled administratively by the sending probation department. Two other administrative categories were added with respect to interstate cases to recognize instances when such offenders would not be available for active supervision in New York State. One of these clarifies the intent of certain language under Rule Section 351.8 with respect to interstate cases and the technical changes in Rule Section 351.8 better conforms with Interstate Compact rules relative to supervision responsibilities between the sending and receiving states. For additional input, OPCA had forwarded its recommended new technical amendments to COPA. Subsequently, at COPA’s request, OPCA clarified language regarding one interstate administrative criteria to avoid confusion as to regulatory intent. COPA officials have communicated to OPCA their acceptance of these additional changes.
