CFS-48-07-00008-P Supervised Independent Living Programs

11/28/07 N.Y. St. Reg. CFS-48-07-00008-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 48

November 28, 2007

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-48-07-00008-P

Supervised Independent Living Programs

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

Proposed action:

Amendment of sections 427.2, 441.2 and 447.7 and addition of Part 449 to Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), 34(3)(f), 374-b and 462(1)(a)

Subject:

Supervised independent living programs (SILPS).

Purpose:

To establish standards for the approval and operation of supervised independent living programs and supervised independent livings units, as authorized by sections 374-b and 462 of the SSL. These programs provide a transitional experience to assist older youth in making a successful transition from foster care to self-sufficiency.

Substance of proposed rule (Full text is posted at the following State website: www.ocfs.state.ny.us):

Section 427.2 (Definitions)

The proposed regulations add definitions of a supervised independent living program and a supervised independent living unit.

Section 441.2 (Definitions)

The proposed regulations amend the definition of an agency boarding home and add definitions of a supervised independent living program and a supervised independent living unit.

Sections 447.7 (Supervised Independent Living) and 447.8 (Waivers)

The proposed regulations repeal the existing regulations relating to supervised independent living programs.

Part 449 (Supervised Independent Living Programs)

The proposed regulations create a new Part dedicated exclusively to the creation, approval and operation of supervised independent living programs and supervised independent living units.

Section 449.1 (Definitions)

The proposed regulations establish definitions of: authorized agency, OCFS, supervised independent living program authorization, supervised independent living program, supervised independent living unit, supervised independent living program certification, youth and adult permanency resource.

Section 449.2 (Conditions for Application and Approval of a Supervised Independent Living Program)

The proposed regulations establish standards an authorized agency must follow to apply to the Office of Children and Family Services (OCFS) for approval to operate a supervised independent living program.

Section 449.3 (Conditions for Operation of a Supervised Independent Living Program)

The proposed regulations establish standards an authorized agency for the operation of a supervised independent living program by an authorized agency approved by OCFS. These standards include the responsibility of the authorized agency to inspect, monitor and supervise all supervised independent living units operated by the authorized agency.

The proposed regulations also establish standards for the supervision of youth cared for in supervised independent living units and the frequency and purpose of visitation of youth in such units. The proposed regulations establish reporting requirements to OCFS by the authorized agency relating to the operations of supervised independent living units.

Section 449.4 (Requirements or Each Supervised Independent Living Unit)

The proposed regulations establish personnel, physical plant and services standards; along with other conditions for participation in supervised independent living programs.

The personnel standards include criteria for background checks of prospective employees of the supervised independent living program. The physical plant standards address fire safety, sanitation and other living condition related standards. The proposed regulations establish what services must be provided by the supervised independent living program to foster children cared for in a supervised independent living unit that are intended to provide youth with opportunities to achieve positive outcomes and make successful transitions to self-sufficiency. Additional conditions relate to eligibility for a foster child to participate in a supervised independent living program, the limitations on the capacity of supervised independent living units, compliance with other State and local laws and ordinances and standards relating to the education, health and clothing needs of the foster child.

Section 449.5 (Notification of Municipality)

The proposed regulations set forth the requirement for the authorized agency to notify municipalities of plans to open supervised independent living units.

Section 449.6 (Required Documentation)

The proposed regulations establish record retention standards for supervised independent living programs. In addition, the proposed regulations establish recordkeeping standards for youth cared for in such programs.

Section 449.7 (Waivers)

The proposed regulations establish the authority and procedures for OCFS to grant waivers of regulatory standards to authorized agencies for the operation of supervised independent living programs and units.

449.8 (Discontinuance)

The proposed regulations impose a requirement on an authorized agency to give 90 days prior written notice to OCFS of the intent to discontinue a supervised independent living program.

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

Public Information Office, Office of Children and Family Services, 52 Washington St., 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.

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 requires the Commissioner of OCFS to promulgate regulations for the administration of public assistance and care within the State.

Section 374-b of the SSL gives authorizes OCFS to promulgate regulations establishing the standards for approval and operation of supervised independent living programs.

Section 462(1)(a) of the SSL authorizes OCFS to promulgate regulations concerning standards of care and treatment and fiscal, administrative, nutritional, architectural and safety standards that apply to all facilities exercising care or custody of children.

2. Legislative Objectives

The proposed regulations would establish standards for the approval and operation of supervised independent living programs and supervised independent living units, as authorized by sections 374-b and 462 of the SSL. Chapter 160 of the Laws of 2004 added a definition of supervised independent living program in section 371(21) of the SSL to mean one or more of a type of agency boarding home operated and certified by an authorized agency in accordance with the regulations of OCFS to provide a transitional experience for older youth who, based upon their circumstances, are appropriate for transition to the level of care and supervision provided in the program. The impact of this statutory change was to enable authorized agencies that operated supervised independent living programs approved by OCFS to certify homes or apartments as supervised independent living units.

3. Needs and Benefits

Supervised independent living programs are a critical component in the continuum of care and services for older foster youth. These programs provide a transitional experience to assist older youth in making a successful transition from foster care to self-sufficiency. The proposed regulations would amend current regulatory standards set forth in 18 NYCRR Part 447 to permit authorized agencies to apply to OCFS for authorization to operate a supervised independent living program. Whether an authorized agency seeks to operate a supervised independent living program is within the discretion of the authorized agency, but if an authorized agency decides to operate such a program, it must first secure the written approval of OCFS. An authorized agency is defined in section 371(10) of the SSL and includes a social services district, a voluntary authorized agency or an Indian tribe with a State/Tribal agreement with OCFS. After receiving approval from OCFS to operate a supervised independent living program, the authorized agency may certify independent living units for occupancy by older foster youth at the certified homes or apartments.

Currently, OCFS issues operating certificates for the operation of each supervised independent living location in homes or apartments owned or leased by authorized agencies. The proposed regulations would shift such responsibility for certification of individual supervised independent living units to the authorized agency approved by OCFS to operate a supervised independent living program. Authorized agencies are presently responsible for the case planning and supervision of youth in such placements and those responsibilities will continue with the proposed regulations.

The proposed regulations would define a supervised independent living unit to mean a home or apartment certified by an authorized agency approved by OCFS to operate a supervised independent living program for the care of up to four youth and their children. Each supervised independent living unit must be located in the community separate from any of the authorized agency's other congregate dwellings. Currently, there is no separate definition of a supervised independent living unit. The current regulatory standards for supervised independent living in 18 NYCRR 447.7(b) (4) provide that no more than three youth may live in a home or apartment.

The benefit of authorized agencies operating supervised independent living programs and certifying supervised independent living units, is to facilitate expanded use of supervised independent living programs and increase the number of older youth having access to and placed in these programs.

The regulatory change would create separate sections for the application and approval process for a supervised independent living program, modeling after the regulations for approving and operating safe home networks (see 18 NYCRR Part 454).

The regulatory change would remove OCFS from being responsible for monitoring supervised independent living program units and make authorized agencies responsible for the inspection, monitoring and supervision of all the supervised independent living units operated by the authorized agency.

The proposed regulations would maintain most of the current standards set forth in 18 NYCRR Part 447 applicable to supervised independent living programs and agency operated boarding homes in regard to physical plant requirements.

The proposed regulations would clarify that a supervised independent living program and the social services district with case management responsibility must comply with existing standards relating to discharge planning and plan amendments for foster care youth.

The regulatory change would give OCFS, and not an authorized agency, the authority to grant waivers to standards applicable to both supervised independent living programs and supervised independent living units and would establish criteria for the granting of such waivers.

4. Costs

The programmatic requirements set forth in the proposed regulations, with the exception of section 449.4(d)(2), are consistent with current regulatory standards for operating a supervised independent living program. There are currently rates in place that have been set for the operation of supervised independent living programs based on the number of youth who occupy each supervised independent living program. The rate setting methodology takes into consideration all aspects of operating a supervised independent living program including, but not limited to, staffing, rent, food and clothing. All proposed regulatory amendments fall within the existing rates that have been set to pay for the operation of supervised independent living programs; therefore, there will be no fiscal impact on OCFS.

5. Local Government Mandates

Whether a social services district operates a supervised independent living program is within the discretion of the social services district. The proposed regulations would require a social services district proposing to operate a supervised independent living program to apply to OCFS for authorization to operate such a program. After receiving approval to operate a supervised independent living program from OCFS, the social services district would be authorized to certify individual supervised independent living program units for the care of up to four youth and their children. The proposed regulations do not mandate social services districts operate such a program.

6. Paperwork

The proposed regulations would require authorized agencies applying to OCFS for authorization to operate a supervised independent living program to include information necessary for OCFS to make a determination on such application. This information includes: a description of the need for the program, a description of the services, the population to be served, proposed staffing, a description of how units will be located and certified, a certification that all supervised independent living units will be operated in compliance with OCFS regulations. In addition, once authorized, the authorized agency would be required to maintain documentation on the following areas for each certified supervised independent living unit: personnel, physical facilities, inquiries to the Statewide Central Register of Child Abuse and Maltreatment and services provided to the youth. Authorized agencies would also be required to provide written notification to the chief executive officer of the municipality in which the authorized agency proposes to establish a supervised independent living unit, as required by section 374-b(2) of the Social Services Law.

7. Duplication

The proposed regulations do not duplicate other requirements. They will supersede requirements currently set forth in 18 NYCRR Part 447.

8. Alternative Approaches

OCFS considered maintaining the current practice of OCFS issuing operating certificates for individual supervised independent living locations but decided to pursue the approach set forth in the proposed regulations given the 2004 amendment to the Social Services Law that empowers authorized agencies to operate the independent living programs along the foster family boarding home and safe home network models.

9. Federal Standards

The proposed regulations comply with applicable federal standards.

10. Compliance Schedule

The proposed amendments will be effective upon the filing of the notice of adoption.

Regulatory Flexibility Analysis

1. Effect on Small Business and Local Governments:

The proposed regulations will affect the 58 social services districts and the St. Regis Mohawk Tribe. Voluntary authorized agencies also will be affected by the proposed regulations. There are approximately 111 such agencies.

2. Compliance Requirements:

Authorized agencies are not required to operate a supervised independent living program. However, if an authorized agency chooses to exercise its discretion to operate such a program, the proposed regulations would require the authorized agency submit an application to OCFS and receive approval to operate a supervised independent living program. After receiving approval from OCFS to operate a supervised independent living program, the authorized agency may certify homes or apartments as supervised independent living program units in accordance with standards established by the proposed regulations. The authorized agency would be responsible for the inspection, monitoring and supervision of all the supervised independent living units. In addition, the authorized agency would be required to maintain documentation on the following areas for each certified supervised independent living unit: personnel; physical facilities; inquiries to the Statewide Central Register of Child Abuse and Maltreatment and services provided to the youth. The authorized agency would also be required to provide written notice to the chief executive officer of the municipality in which the authorized agency is proposing to establish a supervised independent living unit, as required by section 374-b(2) of the Social Services Law.

3. Professional Requirements:

Authorized agencies are not required to operate a supervised independent living program. It is expected that those authorized agencies that presently operate such programs will not have to hire additional staff to implement the proposed regulations as they can be assigned to existing staff. If an authorized agency chooses to commence the operation of a supervised independent living program, if is possible that it may have to hire additional staff.

4. Compliance Costs:

The programmatic requirements set forth in the proposed regulations, with the exception of section 449.4(d)(2), are consistent with current regulatory standards for operating a supervised independent living program. There are currently rates in place that have been set for the operation of supervised independent living programs based on the number of youth who occupy each supervised independent living program. The rate setting methodology takes into consideration all aspects of operating a supervised independent living program including, but not limited to, staffing, rent, food and clothing. All proposed regulatory amendments fall within the existing rates that have been set to pay for the operation of supervised independent living programs; therefore, there will be no fiscal impact on OCFS.

5. Economic and Technological Feasibility:

The local governmental units that may be affected by the proposed regulations would require no new economic or technological ability or capacity to be able to comply with the proposed regulations.

6. Minimizing Adverse Impact:

The proposed regulations would impose no adverse impact on social services districts and voluntary authorized agencies. Operation of a supervised independent living program is within the discretion of the authorized agency. For those authorized agencies that presently operate a supervised independent living program, they are currently responsible for the supervision and case planning of the youth in such placements.

7. Small Business and Local Government Participation:

On March 8, 2005, OCFS held a meeting on the proposed regulations with the New York State Council of Family and Child Caring Agencies and a number of voluntary authorized agencies located around the state. The meeting was also attended by two of the four Adolescent Services Resource Networks, a network of four regionally based centers that are under contract with OCFS to provide training and technical assistance to authorized agencies on adolescent issues. The regulations were reviewed at the meeting and comments were received. The input from these agencies was used in the development of the proposed regulations. The proposed regulations were shared with OCFS regional office staff, including fire safety inspectors, for input that was also incorporated into the proposed regulations.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

The proposed regulations will affect the 44 social services districts that are in rural areas and the St. Regis Mohawk Tribe, which is authorized by section 371(10)(b) of the Social Services Law (SSL) to provide child welfare services pursuant to its State/Tribal Agreement with the Office of Children and Family Services (OCFS). Those voluntary authorized agencies in rural areas providing foster care will also be affected by the proposed regulations. There are approximately 80 such agencies.

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

Authorized agencies are not required to operate a supervised independent living program. If an authorized agency chooses to exercise its discretion to operate such a program, the proposed regulations would require the authorized agency to obtain the prior written approval of OCFS to operate a supervised independent living program. Once approved by OCFS, the authorized agency may then certify each supervised independent living unit. In addition, the authorized agency would be required to maintain documentation on the following areas for each certified independent living unit: personnel, physical facilities, inquiries to the Statewide Central Register of Child Abuse and Maltreatment and services provided to the youth. Authorized agencies would also be required to provide written notification to the chief executive officer of the municipality in which the authorized agency proposes to establish a supervised independent living unit, as required by section 374-b(2) of the Social Services Law.

3. Costs:

The programmatic requirements set forth is the proposed regulations, with the exception of section 449.4(d)(2), are consistent with current regulatory standards for operating a supervised independent living program. There are currently rates in place that have been set for the operation of supervised independent living programs based on the number of youth who occupy each supervised independent living program. The rate methodology takes into consideration all aspects of operating a supervised independent living program, including, but not limited to, staffing, rent, food and clothing. All proposed regulatory amendments fall within the existing rates that have been set to pay for the operation of supervised independent living programs; therefore, there will be no fiscal impact on OCFS.

4. Minimizing adverse impact:

It is anticipated that the proposed regulations will not have an adverse impact on rural areas.

5. Rural area participation:

On March 8, 2005, OCFS held a meeting on the proposed regulations with the New York State Council of Family and Child Caring Agencies (COFCCA) and a number of voluntary authorized agencies located around the state. COFCCA is comprised of representatives of voluntary authorized agencies that serve foster children in all parts of New York, including rural areas. The meeting was also attended by two of the four Adolescent Services Resource Networks, a network of four regionally based centers that are under contract with OCFS to provide training and technical assistance to authorized agencies on adolescent issues, including those in rural areas. Drafts of the proposed regulations were reviewed and commented upon by them. Their input was incorporated into the proposed regulations. The proposed regulations were shared with OCFS regional office staff, including fire safety inspectors, for input that was also incorporated into the proposed regulations.

Job Impact Statement

A full job impact statement has not been prepared for the proposed regulations. The proposed regulations will not have a substantial impact on jobs or employment opportunities in the State. The proposed regulations may result in an increase in jobs in authorized agencies that decide to operate a supervised independent living program.