TDA-06-16-00016-EP Emergency Shelters  

  • 2/10/16 N.Y. St. Reg. TDA-06-16-00016-EP
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 6
    February 10, 2016
    RULE MAKING ACTIVITIES
    OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE
    EMERGENCY/PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. TDA-06-16-00016-EP
    Filing No. 127
    Filing Date. Jan. 26, 2016
    Effective Date. Jan. 26, 2016
    Emergency Shelters
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Proposed Action:
    Addition of section 352.37 to Title 18 NYCRR.
    Statutory authority:
    Social Services Law, sections 17(a)-(b), (i), 20(2)-(3), 34, 460-c and 460-d; Executive Law, section 43(1); General Municipal Law, section 34; State Finance Law, section 109(4); New York City Charter, section 93; and Buffalo City Charter, ch. C, art. 7, section 7-4
    Finding of necessity for emergency rule:
    Preservation of public health, public safety and general welfare.
    Specific reasons underlying the finding of necessity:
    The Office of Temporary and Disability Assistance (OTDA) finds that immediate adoption of the rule is necessary for the preservation of the public health, public safety, and general welfare and, specifically, to assure that residents of emergency shelters are not subject to unhealthy or imminently dangerous conditions. The regulatory amendments would establish protections for residents of emergency shelters by clarifying OTDA’s statutory authority to impose immediate emergency measures to address emergency shelters determined to be dangerous, hazardous, or imminently detrimental to the health, safety, and general welfare of residents. Recent inspections and visits conducted at a significant number of emergency shelters by officials from OTDA have confirmed that dangerous or unsanitary conditions have existed at some of these placements for sustained periods of time. Failing to expand OTDA’s oversight in this area would endanger the health, safety and welfare of such residents. The rule will help ensure that emergency shelters are maintained in safer, more sanitary conditions, and that the welfare of residents is better protected than under current requirements. In the absence of this new rule, inspections have revealed that some operators have permitted their emergency shelters to deteriorate to a point where dangerous conditions exist. Under these circumstances, OTDA asserts that proposing this rule only as a “regular rule making” as provided by the State Administrative Procedure Act (SAPA) should not be required because to do so would be detrimental to the health and general welfare of the residents of these emergency shelters while permitting public funds to be expended to maintain conditions that are both dangerous and unhealthy. Recent investigations have confirmed such conditions and have underscored the imperative of acting quickly to assure that residents of these placements are safe and protected from unhealthy and dangerous conditions. Without this emergency regulation, some emergency shelters will simply maintain the status quo, thereby endangering individuals, families and children.
    Subject:
    Emergency shelters.
    Purpose:
    Emergency measures concerning shelters.
    Text of emergency/proposed rule:
    New section 352.37 of Title 18 of the NYCRR is added to read as follows:
    § 352.37 Emergency Measures Concerning Shelters for the Homeless.
    When the Office of Temporary and Disability Assistance (the Office) has knowledge, or has been advised, by announced or unannounced inspections, audits, or other methods with respect to emergency shelter made by any state or local entity authorized to conduct inspections or audits, including the Office and state or local Comptrollers, that there exists a violation of law, regulation, or code with respect to a building that provides emergency shelter to homeless persons, in which there are conditions that are dangerous, hazardous, imminently detrimental to life or health, or otherwise render the building not fit for human habitation, the Office may impose, with respect to all emergency shelters, immediate emergency measures, including, but not limited to: requiring the facility to take immediate measures to rectify any deficiencies, violations, or conditions; requiring additional security; directing the transfer of its residents to other temporary emergency housing; directing the social services district to cancel its operating contract and retain a new operator; seeking a receivership; or directing closure of the facility.
    Nothing shall be construed as limiting the Office from taking additional enforcement action, including, but not limited to: limitation, suspension, or revocation of the facility’s operating certificate; investigation and directing modifications to the operating certificate; appointment of a receiver; imposition of daily fines; legal actions against the social services district; withholding reimbursement of payments made under Part 352 of this Title; and withholding of reimbursement payments pursuant to statute and Parts 485 and 900 of this Title.
    The Office is authorized to conduct unannounced inspections at any hour, without prior knowledge by or notification to either the shelter, operator, or the social services district. Interference with an inspection, refusal to allow admission, delay in allowing admission, or refusal to provide complete access to the facility will be deemed to be a violation and a basis to direct the immediate suspension of the shelter contract and operating agreement and/or immediate cessation of the social services district’s reimbursement and operating authority. State and local Comptrollers, in inspecting, auditing, or reviewing emergency shelters are authorized, as agents of the Office, to take all actions set forth in this section.
    This notice is intended:
    to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire April 24, 2016.
    Text of rule and any required statements and analyses may be obtained from:
    Richard P. Rhodes, Jr., NYS Office of Temporary and Disability Assistance, 40 North Pearl Street, 16-C, Albany, NY 12243-0001, (518) 486-7503, email: richard.rhodesjr@otda.ny.gov
    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) § 17(a)-(b) and (i) provide, in part, that the Commissioner of the Office of Temporary and Disability Assistance (OTDA) shall “determine the policies and principles upon which public assistance, services and care shall be provided within the [S]tate both by the [S]tate itself and by the local governmental units …”, shall “make known his policies and principles to local social services officials and to public and private institutions and welfare agencies subject to his regulatory and advisory powers …”, and shall “exercise such other powers and perform such other duties as may be imposed by law.”
    SSL § 20(2) provides, in part, that the OTDA shall “supervise all social services work, as the same may be administered by any local unit of government and the social services officials thereof within the state, advise them in the performance of their official duties and regulate the financial assistance granted by the state in connection with said work.” Pursuant to SSL § 20(3)(d) and (e), OTDA is authorized to promulgate rules, regulations, and policies to fulfill its powers and duties under the SSL and “to withhold or deny State reimbursement, in whole or in part, from or to any social services district [SSD] or any city or town thereof, in the event of their failure to comply with law, rules or regulations of [OTDA] relating to public assistance and care or the administration thereof.”
    SSL § 34(3)(c) requires OTDA’s Commissioner to “take cognizance of the interests of health and welfare of the inhabitants of the [S]tate who lack or are threatened with the deprivation of the necessaries of life and of all matters pertaining thereto.” Pursuant to SSL § 34(3)(f), OTDA’s Commissioner must establish regulations for the administration of public assistance and care within the State by the SSDs and by the State itself, in accordance with the law. In addition, pursuant to SSL § 34(3)(d), OTDA’s Commissioner must exercise general supervision over the work of all SSDs, and SSL § 34(3)(e) provides that OTDA’s Commissioner must enforce the SSL and the State regulations within the State and in the local governmental units. Pursuant to SSL § 34(6), OTDA’s Commissioner “may exercise such additional powers and duties as may be required for the effective administration of the department and of the [S]tate system of public aid and assistance.”
    SSL § 460-c confers authority upon OTDA to “inspect and maintain supervision over all public and private facilities or agencies whether [S]tate, county, municipal, incorporated or not incorporated which are in receipt of public funds,” which includes emergency shelters. SSL § 460-d confers enforcement powers upon the OTDA Commissioner, or any person designated by the OTDA Commissioner, to “undertake an investigation of the affairs and management of any facility subject to the inspection and supervision provision of this article, or of any person, corporation, society, association or organization which operates or holds itself out as being authorized to operate any such facility, or of the conduct of any officers or employers of any such facility.”
    Executive Law § 43(1) provides that "[w]henever the comptroller may deem it necessary to enable him to perform the duties imposed upon him by law with regard to the inspection, examination and audit of the fiscal affairs of the state or of the several officers, departments, institutions, public corporations or political subdivisions thereof, he may assign the work of such inspection, audit and examination to any examiner or examiners appointed by him pursuant to law.” The authority to "inspect, examine and audit" the fiscal affairs of political subdivisions would include investigating where and how funds administered by county agencies are spent.
    General Municipal Law § 34 specifically provides that the comptroller has the authority to examine the financial affairs of every municipal corporation. Under General Municipal Law § 2, the term "municipal corporation" includes a county, a town, a city or a village.
    State Finance Law § 109 (4) provides that “[t]he comptroller shall not approve for payment any expenditure from any fund except upon audit of such vouchers or other documents as are necessary to insure that such payment is lawful and proper."
    New York City Charter § 93 provides that the City comptroller has the power to “investigate all matters relating to or affecting the finances of the city, including without limitation the performance of contracts and the receipt and expenditure of city funds”; conduct “audits of entities under contract with the city as expeditiously as possible”; and “audit the operations and programs of city agencies to determine whether funds are being expended or utilized efficiently and economically and whether the desired goals, results or benefits of agency programs are being achieved.”
    Section 7-4 of Article 7 of Chapter C of the Buffalo City Charter provides that the City comptroller has “the power to conduct financial and performance audits of all agencies and other entities a majority of whose members are appointed by city officials or that derive at least fifty percent of their revenue, including the provision of goods, services, facilities or utilities, from the city.” The City comptroller also has “the power to conduct performance audits of all bureaus, offices, departments, boards, commissions, activities, functions, programs, agencies and other entities or services of the city… to determine whether their activities and programs are: (i) conducted in compliance with applicable law and regulation; and (ii) conducted efficiently and effectively to accomplish their intended objectives.”
    2. Legislative Objectives:
    It is the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations, and policies to provide for the health, safety and general welfare of vulnerable families and individuals who are placed in emergency shelters.
    3. Needs and Benefits:
    In response to numerous problematic reports concerning the health and safety of public assistance recipients residing in New York City’s emergency shelters, OTDA has taken action to inspect these placements and to establish remedial protocols for SSDs so that these health and safety issues can be addressed immediately. These regulatory amendments would provide OTDA the authority when it has knowledge, or has been advised by an appropriate source, that there exists a violation of law, regulation, or code with respect to an emergency shelter which is dangerous, hazardous, or imminently detrimental to life or health, or otherwise renders the building not fit for human habitation, to impose immediate emergency measures. OTDA may take, but is not limited to, the following actions: requiring the facility to take immediate measures to rectify any deficiencies, violations, or conditions; requiring additional security; directing the transfer of its residents to other temporary emergency housing; directing the SSD to cancel its operating contract and retain a new operator; seeking a receivership; or directing closure of the facility.
    These regulatory amendments clarify that OTDA is authorized to conduct unannounced inspections at any hour without prior knowledge by or notification to either the shelter, operator, or the SSD. Interference with an inspection, refusal to allow admission, delay in allowing admission, or refusal to provide complete access to the facility will be deemed to be a violation and a basis to direct the immediate suspension of the shelter contract and operating agreement and/or immediate cessation of the SSD’s reimbursement and operating authority. State and local Comptrollers, in inspecting, auditing, or reviewing emergency shelters are authorized, as agents of OTDA, to take all actions set forth in this section.
    These regulatory amendments are necessary to protect vulnerable, low-income individuals and families who have limited or no housing options and have placed their trust and well-being in a system that should help ensure that these persons have acceptable accommodations during their difficult times.
    Additionally, these individuals and families are being placed in emergency shelters at great expense to the taxpayers of New York, who care about the needs of these people and want to help ensure that funds used to house these individuals and families provide safe, quality housing. It is important for OTDA and the SSDs to be fiscally prudent and to help ensure that State, federal and local funds are properly used when housing homeless individuals and families.
    The regulatory amendments will allow OTDA full authority to take immediate action against facilities and SSDs that are not providing emergency shelters that comport with prescribed standards.
    4. Costs:
    An additional 25 Center for Specialized Services staff members will be needed to implement these regulations. It is estimated that the cost to the State will be approximately $2,181,473, not including fringe benefits or indirect costs.
    The regulatory amendments will have a minimal impact on emergency shelters that are currently in compliance with existing health and safety standards. The regulatory amendments are merely attempting to correct violations under existing health and safety standards. Therefore, the cost to local governments will depend on their abilities to comply with these standards.
    5. Local Government Mandates:
    Local governments will be responsible for ensuring that the emergency shelters operating within their localities are in compliance with existing health and safety standards. If they are not, the local governments will be required to identify and/or provide suitable alternative emergency shelters.
    6. Paperwork:
    No additional paperwork is anticipated.
    7. Duplication:
    The regulatory amendments would not duplicate, overlap, or conflict with any existing State or federal regulations.
    8. Alternatives:
    Inaction would continue to jeopardize the health and safety of these vulnerable individuals and families by allowing existing infractions and violations to continue unaddressed and by failing to prevent future infractions and violations. OTDA does not consider this a viable alternative to the regulatory amendments.
    9. Federal Standards:
    The regulatory amendments would not conflict with federal statutes, regulations or policies.
    10. Compliance Schedule:
    To protect the public health, safety and general welfare of emergency shelter residents, these regulations would be effective immediately on their filing date.
    Regulatory Flexibility Analysis
    1. Effect of rule:
    Pursuant to the State Administrative Procedure Act § 102(8), a “small business,” in part, is any business which is independently owned and operated and employs 100 or fewer individuals. This rule will apply to small businesses that provide emergency shelters. This rule will also apply to all 58 social services districts (SSDs) in the State.
    2. Compliance requirement:
    The regulatory amendments will have a minimal impact on emergency shelters that are currently in compliance with existing health and safety standards.
    3. Professional services:
    It is anticipated that the need for additional professional services will be limited. The regulatory amendments are not adding new health and safety standards to the State regulations; instead, they are requiring that emergency shelters comply with existing obligations to provide safe housing in accordance with health and safety standards.
    4. Compliance costs:
    For local governments, the impact of the regulatory amendments will be insignificant as long as they are in compliance with existing health and safety standards. The regulatory amendments are merely attempting to correct violations under existing health and safety standards.
    5. Economic and technological feasibility:
    Emergency shelters and SSDs should already have the economic and technological abilities to comply with existing standards.
    6. Minimizing adverse impact:
    The regulatory amendments attempt to minimize any adverse economic impact on emergency shelters and SSDs by implementing existing standards. The regulations should not provide exemptions, because this would not serve the purposes of ensuring the health and safety of all emergency shelter residents and protecting these vulnerable residents from dangerous conditions.
    7. Small business and local government participation:
    It is anticipated that small businesses and SSDs will be dedicated to implementing the regulatory amendments and protecting the health, safety, and general welfare of residents of emergency shelters.
    8. For rules that either establish or modify a violation or penalties associated with a violation:
    Because the dangerous, hazardous conditions targeted by the regulatory amendments are imminently detrimental to life or health, in order to safeguard the health, safety, and general welfare of emergency shelter residents, no cure period is provided.
    Rural Area Flexibility Analysis
    1. Types and estimate numbers of rural areas:
    The regulatory amendments will apply to the 44 rural social services districts (SSDs) and the emergency shelters located in those areas.
    2. Reporting, recordkeeping and other compliance requirements; and professional services:
    The regulatory amendments will have a minimal impact on emergency shelters in rural areas that are currently in compliance with existing health and safety standards.
    It is anticipated that the need for additional professional services will be limited. The regulatory amendments are not fundamentally altering the responsibilities of the rural SSDs. In addition, the regulatory amendments are not adding new health and safety standards to the State regulations; instead, they are requiring that all emergency shelters, including those in rural areas, comply with existing obligations to provide safe housing in accordance with health and safety standards.
    3. Costs:
    For rural governments, the fiscal impact of the regulatory amendments is anticipated to be insignificant because relatively few rural SSDs have any emergency shelters, and the rural SSDs primarily pay for hotel/motel costs. Consequently, the fiscal impact upon the rural SSDs is expected to be insignificant.
    The regulatory amendments will have a minimal impact on emergency shelters in rural areas that are currently in compliance with existing health and safety standards. The regulatory amendments are intended to address violations under existing health and safety standards.
    4. Minimizing adverse impact:
    The regulatory amendments attempt to minimize any adverse economic impact on emergency shelters and SSDs in rural areas by implementing existing health and safety standards. The regulations should not provide exemptions, because this would not serve the purposes of ensuring the health and safety of all emergency shelter residents and protecting these vulnerable residents from dangerous conditions.
    5. Rural area participation:
    It is anticipated that small businesses and SSDs in rural areas will be dedicated to implementing the regulatory amendments and protecting the health, safety, and general welfare of residents of emergency shelters.
    Job Impact Statement
    A Job Impact Statement is not required for this rule. The purpose of the rule is to establish protections for residents of emergency shelters by clarifying the Office of Temporary and Disability Assistance’s (OTDA’s) statutory authority to impose immediate emergency measures to address emergency shelters determined to be dangerous, hazardous, or detrimental to the health, safety, and general welfare of residents. It is apparent from the nature and the purpose of the regulatory amendments that they will not have a substantial adverse impact on jobs and employment opportunities in the private sector, in the social services districts, or in the State. To the contrary, the proposed regulatory amendments would have a positive impact on jobs and employment opportunities, because additional persons may need to be hired to implement the regulatory amendments.
    Thus, the regulatory amendments will not have any adverse impact on jobs and employment opportunities in New York State.

Document Information

Effective Date:
1/26/2016
Publish Date:
02/10/2016