Home » 2012 Issues » February 15, 2012 » CFS-07-12-00002-EP Foster Children - Educational Stability and Identity Theft Prevention
CFS-07-12-00002-EP Foster Children - Educational Stability and Identity Theft Prevention
2/15/12 N.Y. St. Reg. CFS-07-12-00002-EP
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 7
February 15, 2012
RULE MAKING ACTIVITIES
OFFICE OF CHILDREN AND FAMILY SERVICES
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. CFS-07-12-00002-EP
Filing No. 55
Filing Date. Jan. 25, 2012
Effective Date. Jan. 25, 2012
Foster Children - Educational Stability and Identity Theft Prevention
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of sections 428.3(b)(2)(v) and 430.11(c)(1)(i); and addition of sections 428.3(b)(2)(vi) and 430.12(k) to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d) and 34(3)(f)
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
On December 12, 2011, OCFS was first informed by the federal Department of Health and Human Services that all states must submit an amendment of their Title IV-E state plans no later than January 31, 2012 to reflect how states have implemented the educational stability and consumer report amendments to Title IV-E, as enacted by the federal Child and Family Services Improvement and Innovation Act of 2011 (p.l. 112-34).
In order for New York State to have a compliant Title IV-E State Plan, it must be able to demonstrate to the federal government that it has enacted the provisions reflected in the emergency and proposed regulations by January 31, 2012. As per section 471(a) of the Social Security Act, a compliant Title IV-E state plan is a condition for the State of New York to continue to receive funding for foster care, adoption assistance and the administration of those programs.
The failure to comply with the federal mandate, and not have a compliant Title IV-E state plan, exposes the State of New York to the potential loss of significant federal funding. Any loss or delay in the availability of such funding will have a serious impact on the delivery of necessary child welfare programs in the State of New York. The timing of the federal directive did not afford the State of New York with sufficient time to promulgate the proposed regulations through any other means other than on an emergency basis.
Subject:
Foster Children - Educational Stability and Identity Theft Prevention.
Purpose:
To implement the federal requirements relating to educational stability and identity theft prevention involving foster children.
Text of emergency/proposed rule:
Subparagraph (v) of paragraph (2) of subdivision (b) of section 428.3 is amended and a new subparagraph (vi) is added to read as follows:
(v) the child's transition plan prepared in accordance with the standards set forth in section 430.12(j) of this Title; and
(vi) the foster child's consumer report provided in accordance with section 430.12(k) of this Title.
Subparagraph (i) of paragraph (1) of subdivision (c) of section 430.11 is amended to read as follows:
(1)(i) Standard. Whenever possible, a child shall be placed in a foster care setting which permits the child to retain contact with the persons, groups and institutions with which the child was involved while living with his or her parents, and to which the child will be discharged. It shall be deemed inappropriate to place a child in a setting which conforms with this standard only if the child's service needs can only be met in another available setting at the same or lesser level of care. The initial placement of the child into foster care and all subsequent placements must take into account the appropriateness of the child's existing educational setting and the proximity of such setting to the child's placement location. When it is in the best interest of the foster child to continue to be enrolled in the same school in which the child [was] is currently enrolled [when placed into foster care], the agency with case management, case planning or casework responsibility for the foster child must coordinate with applicable local school authorities to ensure that the child remains in such school. When it is not in the best interests of the foster child to continue to be enrolled in the same school in which the child [was] is currently enrolled [when placed into foster care], the agency with case management, case planning or casework responsibility for the foster child must coordinate with applicable local school authorities where the foster child is placed in order that the foster child be provided with immediate and appropriate enrollment in a new school; and the agency with case management, case planning or casework responsibility for the foster child must coordinate with the applicable local school authorities where the foster child previously attended in order that all of the applicable school records of the child can be provided to the new school.
A new subdivision (k) of section 430.12 is added to read as follows:
(k) Consumer Reports (i) Standard. Upon attaining the age of 16 years and each year thereafter until discharged from foster care, each foster child must receive a copy of a consumer report on such child, at no cost to the child. The agency with case management, case planning or casework responsibility for the child, as determined by the social services district with legal custody of the foster child, must provide or arrange for the provision of assistance to the foster child, including, where feasible, from any court-appointed advocate, in interpreting and resolving any inaccuracies in the report. For the purpose of this subdivision, a consumer report means information by a consumer reporting agency bearing on the consumer's credit worthiness, credit standing, credit capacity, character, general reputation, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for:
a) credit or insurance to be used primarily for personal, family, or household purposes;
b) employment purposes; or
any other purpose authorized by federal law.
(ii) Documentation. Documentation must include that the consumer report was provided to the foster child annually and any assistance provided by the agency to the foster child in interpreting the consumer report or resolving any inaccuracies in such report.
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 23, 2012.
Text of rule and any required statements and analyses may be obtained from:
Public Information Office, NYS Office of Children and Family Services, 52 Washington Street, Rensselaer, N.Y. 12144, (518) 473-7793
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 powers and duties pursuant to the provisions of the SSL.
Section 34(3)(f) of the SSL requires the Commissioner of OCFS to establish regulations for the administration of public assistance and care within the State.
Section 398(6)(a) of the SSL requires the local commissioners of social services to determine what assistance and care, supervision or treatment foster children require.
2. Legislative objectives:
The proposed regulations are necessary in order for New York State to comply with the federal Child and Family Services Improvement and Innovation Act of 2011 (P.L. 112-34) [the federal Act] that was signed by the President on September 29, 2011 and went into effect on October 1, 2011.
3. Needs and benefits:
The proposed regulations will reduce disruption experienced by foster children when a foster child is changing foster care placements.
The proposed regulations would implement section 106 of the federal Act that amended section 475(1)(G) of the Social Security Act [42 U.S.C. 675(1)(G)] relating to the educational stability of children placed into foster care. The proposed regulations address the need to minimize disruption by requiring that each placement of a foster child take into account the proximity of the foster care placement to the school the foster child currently attends and the appropriateness of the foster child remaining in that school. Where it is not in the best interests of the foster child to remain in such school, the proposed regulations require the agency with case management, case planning or casework responsibility to work with the appropriate school officials to see that the foster child is immediately enrolled in a new school. Prior to the enactment of the federal Act, the above referenced requirement only applied in regard to the initial placement following the child's entry into foster care.
The proposed regulations will assist in the protection of the prevention of the theft of the identity of foster children and support the transition of older children from foster care.
The proposed regulations implement the requirement enacted in section 106 of the federal Act that added a section 475(5)(H) of the Social Security Act dealing with the issue of foster child identification theft. As required by the federal Act, the proposed regulations mandate that each child in foster care who reaches the age of 16 years, and annually thereafter as long as the youth remain in foster care, must receive a copy of the foster child's consumer report. Consistent with the federal Act, the proposed regulations' definition of a consumer report reflects the definition of a consumer report in section 603(d) of the federal Fair Credit Reporting Act (15 U. S.C. § 1681a). The consumer report must be provided to the foster child at no cost to the foster child. The social services district or the voluntary authorized agency acting at the direction of such district must provide or arrange for assistance to the foster child in interpreting the information contained in the consumer report and in resolving any inaccuracies in the report.
4. Costs:
It is estimated that there will be no fiscal impact to the State as a result of the implementation of the proposed regulations.
Any costs related to the transportation of foster children between school districts would be the responsibility of either the social services district or the school district.
Additionally, individuals are entitled to receive one free credit report annually from each of the three major credit reporting agencies.
5. Local government mandates:
The proposed regulations will impose additional mandates on social services districts, as required by federal statute. A social services district may transfer the obligations imposed by the proposed regulations to a voluntary authorized agency under contract with such district.
Current OCFS regulation 18 NYCRR 430.11(c)(1)(i) requires addressing the issue of educational stability only in regard to the initial placement of the child into foster care. There is currently no regulatory requirement that the foster child must be provided with a copy of the foster child's consumer report.
6. Paperwork:
The requirements relating to educational stability of foster children will be recorded in New York's statewide automated child welfare information system, CONNECTIONS.
The requirements relating to the providing of a copy of the foster child's consumer report involving communications between the worker and the foster child will be recorded in CONNECTIONS. The social services district or the voluntary authorized agency, at the direction of the local district, will have to provide a copy of the consumer report to the foster child. The copy of the consumer report will be made part of the foster child's uniform case record.
7. Duplication:
The proposed regulations do not duplicate other state requirements. The proposed regulations addressing educational stability build on related requirements.
8. Alternatives:
Given the mandates imposed by the federal Act and the potential adverse financial consequences for non-compliance, there is no viable alternative to implementing the proposed regulations.
9. Federal standards:
The regulatory amendments reflect requirements imposed by the federal Act. The regulatory change relating to educational stability is federally mandated under Title IV-E of the Social Security Act. New York must demonstrate that it has implemented this standard in order to have a compliant Title IV-E State Plan which is a condition for New York to continue to receive federal funding for foster care, adoption assistance and the administration of those programs. The regulatory change relating to providing the foster child with the child's consumer report is federally mandated under Title IV-B, subpart 1 of the Social Security Act. New York must demonstrate that is has implemented such standard in order to have a compliant Title IV-B State Plan which is a condition for New York to continue to receive federal child welfare services funding.
10. Compliance schedule:
Compliance with the proposed regulations must begin immediately upon final adoption.
Regulatory Flexibility Analysis
1. Effect on Small Business and Local Governments:
Social services districts, the St. Regis Mohawk Tribe or voluntary authorized agencies contracted by social services districts to provide foster care will be affected by the proposed regulations in the State of New York. There are 58 social services districts and approximately 160 voluntary authorized agencies.
2. Compliance Requirements:
The proposed regulations implement standards required by the federal Child and Family Services Improvement and Innovation Act of 2011 (P.L. 112 -34) [the federal Act]. The federal Act was signed by the President on September 29, 2011 and took effect on October 1, 2011. Implementation of the proposed regulations is necessary for the State of New York to maintain compliant Title V-B and Title IV-E State Plans which are required for New York to continue to receive federal funding under Title IV-B and Title IV-E of the Social Security Act for foster care, adoption assistance, child welfare services and the administration of those programs.
The proposed regulations address the educational stability of children placed in foster care by requiring whenever a foster child changes foster care placement that there be an assessment of the proximity of the proposed foster care placement to the school the foster child is attending and the appropriateness of the foster child remaining in his or her current school setting. If it is not in the best interests of the foster child to remain in the child's current school setting, the proposed regulations would require that agency staff work with appropriate school officials to see that the foster child is immediately enrolled in a new school.
The proposed regulations also require that for each foster child who reaches the age of 16 years, such foster child must receive a copy of the foster child's consumer report. The foster child must continue to receive a copy of the foster child's consumer report on an annual basis as long as the child remains in foster care. The consumer report must be provided at no cost to the foster child. Assistance must be provided or arranged for the foster child to interpret the consumer report and to resolve any inaccuracies.
The proposed regulations will not impose any new reporting requirements. Compliance with the educational stability and consumer report requirements will be documented in New York's statewide automated child welfare system, CONNECTIONS.
3. Professional Requirements:
It is expected that most social services districts and voluntary authorized agencies will not have to hire additional staff to implement the proposed regulations.
4. Compliance Costs:
It is estimated that there will be no fiscal impact to the State as a result of the implementation of the proposed regulations.
Any costs related to the transportation of foster children between school districts would be the responsibility of either the social services district or the school district.
Additionally, individuals are entitled to receive one free credit report from each of the three major credit reporting agencies.
5. Economic and Technological Feasibility:
The proposed regulations would not have an adverse economic impact on social services districts or voluntary authorized agencies. The proposed regulations would not require the hiring of additional staff. Modifications to technology would not be required by the proposed regulations.
6. Minimizing Adverse Impact:
The proposed regulations reflect mandates imposed on the states by the federal Act. Implementation is necessary for New York to continue to be eligible to receive federal funding for foster care, adoption assistance, child welfare services and the administration of those programs under Title IV-B and Title IV-E of the Social Security Act. The proposed regulations do not go beyond the scope of the federal mandates.
7. Small Business and Local Government Participation:
Because of the proximity of the signing of the federal Act into law (September 29, 2011) to its effective date (October 1, 2011), OCFS has had no opportunity to elicit input from small businesses and local governments. We will do so in the public comment period.
Rural Area Flexibility Analysis
1. Types and Numbers of Rural Areas:
Social services districts, the St. Regis Mohawk Tribe and voluntary authorized agencies that have contracts with social services districts to provide foster care will be affected by the proposed regulations. There are 44 social services districts and the St. Regis Mohawk Tribe that are in rural areas. Currently, there are also approximately 100 voluntary authorized agencies in rural areas of New York State.
2. Reporting, Recordkeeping and Compliance Requirements:
The proposed regulations implement standards required by the federal Child and Family Services Improvement and Innovation Act of 2011 (P.L. 112-34) [the federal Act] The federal Act was signed by the President on September 29, 2011 and took effect on October 1, 2011. Implementation of the proposed regulations is necessary for New York State to maintain compliant Title IV-B and Title IV-E State Plans which are required for New York to continue to receive federal funding under Title IV-B and Title IV-E of the Social Security Act for foster care, adoption assistance, child welfare services and the administration of those programs.
The proposed regulations address the educational stability of children placed in foster care by requiring whenever a foster child changes foster care placement that there be an assessment of the proximity of the proposed foster care placement to the school the foster child is attending and the appropriateness of the foster child remaining in his or her current school setting. If it is not in the best interests of the foster child to remain in the child's current school setting, the proposed regulations would require that agency staff work with appropriate school officials to see that the foster child is immediately enrolled in a new school.
The proposed regulations also require that for each foster child who reaches the age of 16 years, such foster child must receive a copy of the foster child's consumer report. The foster child must continue to receive a copy of the foster child's consumer report on an annual basis as long as the child remains in foster care. The consumer report must be provided at no cost to the foster child. Assistance must be provided or arranged for the foster child to interpret the consumer report and to resolve any inaccuracies.
The proposed regulations will not impose any new reporting requirements. Compliance with the education stability and consumer report requirements will be documented in New York's stateside automated child welfare system, CONNECTIONS.
3. Professional Services:
It is expected that most social services districts and voluntary authorized agencies will not have to hire additional staff to implement the proposed regulations.
4. Compliance Costs:
It is estimated that there will be no fiscal impact to the State as a result of the implementation of the proposed regulations.
Any costs related to the transportation of foster children between school districts would be the responsibility of either the local social services district or the school district.
Additionally, individuals are entitled to receive one free credit report annually from each of the three major credit reporting agencies.
5. Minimizing Adverse Impact:
The standards set forth in the proposed regulations reflect mandates imposed on the states by the federal Act. Implementation is necessary for New York to continue to be eligible to receive federal funding for foster care, adoption assistance, child welfare services and the administration of those programs under Title IV-B and Title IV-E of the Social Security Act. The proposed regulations do not go beyond the scope of the federal mandates.
6. Rural Area Participation:
Because of the proximity of the signing of the federal Act into law (September 29, 2011) to its effective date (October 1, 2011), OCFS has had no opportunity to elicit input from agencies operating in rural areas. We will do so in the public comment period.
Job Impact Statement
The proposed regulations will not have a negative impact on jobs or employment opportunities in either public or private child welfare agencies. A full job statement has not been prepared for the proposed regulations as it is assumed that the proposed regulations will not result in the loss of any jobs.
