PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 442.25(a) of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d), 34(3)(f) and 462(1)
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
To prevent the disruption of the placement of infants with their mothers. Because of the imminent closing of a previously available facility caring for mothers with their infants, existing regulation 18 NYCRR 442.25 must be amended to grant to the Office of Children and Family Services the authority to grant exceptions for the operation of mother/baby residential facilities pursuant to 18 NYCRR 442.17. Should the Office of Children and Family Services not have the authority to grant exceptions for the opening of a new otherwise suitable program to receive the mothers and infants from the imminently closing program, the mothers and infants will not have a suitable program available to them. This will result in a further disruption in placement and services to the detriment of the mothers and their infants.
Subject:
Regulatory standards for the operation of a mother/baby facility.
Purpose:
To grant to the Office of Children and Family Services the authority to grant to authorized agencies an exception to the regulatory standards for the operation of mother/baby facilities.
Text of emergency rule:
Subdivision (a) of section 442.25 is amended to read as follows:
(a) The [department] Office of Children and Family Services may grant an exception to compliance with one or more of the provisions of section 442.4, 442.5, [or] 442.15 and 442.17 of this Part upon finding that compliance will result in undue hardship upon an institution. The authorized agency applying for the exception must demonstrate that, aside from the exception, the facility is in substantial compliance with the provisions of this Part and that granting the exception will not create any hazardous conditions which could impair the health or safety of the children. An institution must comply with any alternative requirements the [department] Office of Children and Family Services may consider necessary for the protection of the health or safety of the children. All exceptions must be requested by the authorized agency in writing and approved by the [department] Office of Children and Family Services in writing.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously published a notice of proposed rule making, I.D. No. CFS-52-06-00012-P, Issue of December 27, 2006. The emergency rule will expire April 1, 2007.
Text of emergency 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, (518) 473-7793
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 462(1)(a) of the SSL authorizes OCFS to promulgate regulations concerning standards for care and treatment and fiscal, administrative, nutritional architectural and safety standards which apply to all facilities exercising care or custody of children or providing care or shelter to unmarried mothers.
Chapter 436 of the Laws of 1997 granted to OCFS the functions, powers, duties and obligations performed by the former Department of Social Services concerning foster care and other services and programs identified in Article 6 of the SSL.
2. Legislative objectives:
The regulation implements the authority bestowed on OCFS by section 462(1)(a) of the SSL and Chapter 436 of the Laws of 1997 in regard to the establishment, certification and regulation of residential programs for children, including facilities for mothers and their infants.
Residential program for dependent, neglected, abused, abandoned or delinquent children are subject to the inspection and supervision of OCFS pursuant to section 460-c of the SSL. Section 460-b(1) of the SSL provides that no facility subject to the inspection and supervision of OCFS, except one administered or licensed by another state agency, may operate unless it has been issued and operating certificate from OCFS. In order for a facility to provide residential care for mothers and their infants, such program must comply with the regulatory standards established by OCFS and must obtain an operating certificate from OCFS.
The regulatory standards for the operation of a child care institution, which includes the care of 13 or more residents, are set forth in 18 NYCRR Part 442. The regulatory standards that specifically address the operation of mother and baby facilities are set forth in 18 NYCRR 442.17.
3. Needs and benefits:
The regulation amends 18 NYCRR 442.25 to authorize OCFS to grant to authorized agencies, either a social services district or a voluntary authorized agency, an exception to the regulatory standards for the operation of mother and baby facilities in accordance with 18 NYCRR 442.17. In order for an authorized agency to request an exception, the authorized agency must make a written request to OCFS. The authorized agency must demonstrate that the residential program is in substantial compliance with OCFS regulations in regard to the operation of child care institution, with the exception of the standard that is the subject to the request for the exception. The authorized agency must also demonstrate that granting the exception will not create any hazardous conditions which could impact the health or safety of the children in the residential program. OCFS may impose alternative requirements on the requesting authorized agency that OCFS considers necessary for the protection of the health or safety of the children in the residential program. OCFS regulation 18 NYCRR 442.25 also authorizes OCFS to grant an exception to standards for buildings and equipment (442.4), fire protection (442.5) and accident protection (442.15).
A mother and baby facility is a residential program that cares for a mother, who is also in foster care, and her infant. Such care is provided either by a social services district or a voluntary authorized agency. OCFS regulation 18 NYCRR 442.17 sets forth regulatory standards that address such subjects as capacity, plant and equipment, sleeping accommodations, day room and nursery and safety.
The regulation will add the regulation for the operation of a mother and baby facility to the list of regulations in 18 NYCRR Part 442 for which OCFS may grant an exception. The regulation will not change the current process for the seeking or granting of an exception. The addition of the regulatory standards for mother and baby facilities to the exception authority of OCFS will permit greater flexibility to the opening and operation of such programs, while maintaining the heath and safety of the residents. The failure to afford OCFS such authority will preclude OCFS from approving otherwise safe and suitable residential programs. This may result in the disruption in care and services to mothers and their infants, which the possibility that the child may be separated form his or her mother.
4. Costs:
State reimbursement to local social services districts for foster care costs, including the costs of providing services in a mother and baby facility, is capped by the Foster Care Block Grant pursuant to section 153-k(2) of the Social Services Law. Therefore, there will not be any fiscal impact on the state resulting for the regulations. It also is not anticipated that the implementation of the regulation giving OCFS the authority to grant an exception in regard to the operation of a mother and baby facility will, in and of itself, have local social services district costs associated with it. The costs for a particular mother and baby facility may increase or decrease, on a case-by-case basis, if an exception is granted under this regulatory authority depending on the nature of the regulatory exception and any alternative actions required by OCFS. However, given the unique nature of each request for an exception and the rate setting process for mother and baby facilities, it is not possible to estimate the fiscal impact at this time.
5. Local government mandates:
Local governments are not obligated to operate mother and baby facilities. For those social services districts what currently operate such programs, the regulation will not have any impact. For those social services districts that propose to operate a mother and baby facility, the regulation would give them greater flexibility in the operation and administration of the program.
6. Paperwork:
The regulation will not impose any new record keeping requirements. OCFS regulation 18 NYCRR 442.25 currently requires that all requests for an exception must be in writing.
7. Duplication:
The regulation does not duplicate other State requirements.
8. Alternatives:
Since it is not possible to predict what requests for exceptions may arise in regard to the operation of a mother and baby facility, there is no other viable option to addressing the authority for OCFS to grant an exception to the standards set forth in 18 NYCRR 442.17.
9. Federal standards:
For a foster child to be eligible for federal foster care reimbursement under Title IV-E of the Social Security Act (SSA), the child must be cared for in a foster family home or a child care institution defined by federal law. Section 472(c)(2) of the SSA defines a child care institution (which would include a mother and baby facility) to mean a private child care institution, or a public child care institution which accommodates no more than 25 children, which is licensed by the state in which it is situated or has been approved by the agency of such state responsible for licensing or approval of institutions of this type, as meeting standards for such licensing.
10. Compliance schedule:
Compliance with the regulation will begin immediately upon emergency filing.
Regulatory Flexibility Analysis
1. Effect of Rule:
The regulation will affect social services districts and voluntary authorized agencies that operate mother and baby facilities. There are 58 social services districts 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). There are approximately 180 voluntary authorized agencies in New York, of which 110 operate congregate foster care programs. There are currently eight mother and baby facilities in the State of New York.
2. Compliance Requirements:
In order to operate a mother and baby facility, a social services district or a voluntary authorized agency (authorized agency) must obtain an operating certificate issued by OCFS pursuant to section 460-b of the SSL. As a condition for the issuance of an operating certificate by OCFS, the authorized agency must demonstrate that the program is in compliance with the regulatory standards set forth in 18 NYCRR Part 442, including those set forth in 18 NYCRR 442.17 that includes standards specifically applicable to a mother and baby facility. A mother and baby facility is a residential program that cares for mothers, who are also foster children, and their children. Such care is provided either by a social services district or by a voluntary authorized agency.
The regulation amends 18 NYCRR 442.25 to authorize OCFS to grant an exception to the regulatory standards set forth in 18 NYCRR 442.17 for the operation of a mother and baby facility. In order for an authorized agency to request an exception, the authorized agency must make a written request to OCFS. The authorized agency must demonstrate that the residential program is in substantial compliance with OCFS regulations in regard to the operation of a child care institution, with the exception of the standards that is the subject of the request for an exception. The authorized agency must also demonstrate that granting the exception will not create any hazardous conditions which could impact the health or safety of the children in the residential program. OCFS may impose alternative requirements on the requesting authorized agency that OCFS deems necessary for the protection of the health and safety of the children in the residential program.
3. Professional Services:
The regulation authorizes OCFS to grant an exception for the operation of a mother and baby facility will not require social services districts or voluntary authorized agencies to hire additional staff in order to implement the regulation.
4. Compliance Costs:
State reimbursement to local social services districts for foster care costs, including the costs of providing services in a mother and baby facility, is capped by the Foster Care Block Grant pursuant to section 153-k(2) of the Social Services Law. Therefore, there will not be any fiscal impact on the state resulting for the regulations. It also is not anticipated that the implementation of the regulation giving OCFS the authority to grant an exception in regard to the operation of a mother and baby facility will, in and of itself, have local social services district costs associated with it. The costs for a particular mother and baby facility may increase or decrease, on a case-by-case basis, if an exception is granted under this regulatory authority depending on the nature of the regulatory exception and any alternative actions required by OCFS. However, given the unique nature of each request for an exception and the rate setting process for mother and baby facilities, it is not possible to estimate the fiscal impact at this time.
5. Economic and Technological Feasibility:
The regulation will not impose additional economic or technological burdens on social services districts or voluntary authorized agencies.
6. Minimizing Adverse Impact:
The regulation will not change the current process for the seeking of an exception as set forth in 18 NYCRR 442.25. There is no obligation imposed on a social services district or a voluntary agency to operate a mother and baby facility. OCFS will continue to work with authorized agencies that seek to operate such a program to be aware of the options available to the authorized agency in regard to the seeking of an exception, if necessary.
7. Small Business and Local Government Participation:
OCFS consulted with the New York City Administration for Children's Services and the New York Foundling in the development of this regulation. The Administration for Children's Services has foster children who are cared for in such programs and the New York Foundling, a voluntary authorized agency, operates a mother and baby program.
Rural Area Flexibility Analysis
1. Types and Estimated Numbers at Rural Areas:
The regulation will affect social services districts and voluntary authorized agencies that operate mother and baby facilities. There are 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). There are approximately 80 voluntary authorized agencies that contract with social services districts to provide foster care services. There are currently eight mother and baby facilities in operation in New York and the majority are operated in urban settings.
2. Reporting, Recordkeeping and Other Compliance Requirements:
In order to operate a mother and baby facility, a social services district or a voluntary authorized agency (authorized agency) must obtain an operating certificate issued by OCFS pursuant to section 460-b of the SSL. As a condition for the issuance of an operating certificate by OCFS, the authorized agency must demonstrate that the program is in compliance with the regulatory standards set forth in 18 NYCRR Part 442, including those set forth in 18 NYCRR 442.17 that includes standards specifically applicable to a mother and baby facility. A mother and baby facility is a residential program that cares for mothers, who are also foster children, and their children. Such care is provided either by a social services district or a voluntary authorized agency.
The regulation amends 18 NYCRR 442.25 to authorize OCFS to grant an exception to the regulatory standards set forth in 18 NYCRR 442.17 for the operation of a mother and baby facility. In order for an authorized agency to request an exception, the authorized agency must make a written request to OCFS. The authorized agency must demonstrate that the residential program is in substantial compliance with OCFS regulations in regard to the operation of a child care institution, with the exception of the standards that is the subject of the request for an exception. The authorized agency must also demonstrate that granting the exception will not create any hazardous conditions which could impact the health or safety of the children in the residential program. OCFS may impose alternative requirements on the requesting authorized agency that OCFS deems necessary for the protection of the health and safety of the children in the residential program.
3. Professional Services:
The regulation authorizing OCFS to grant an exception for the operation of a mother and baby facility will not require social services districts or voluntary authorized agencies to hire additional staff in order to implement the regulation.
4. Costs:
State reimbursement to local social services districts for foster care costs, including the costs of providing services in a mother and baby facility, is capped by the Foster Care Block Grant pursuant to section 153-k(2) of the Social Services Law. Therefore, there will not be any fiscal impact on the state resulting for the regulations. It also is not anticipated that the implementation of the regulation giving OCFS the authority to grant an exception in regard to the operation of a mother and baby facility will, in and of itself, have local social services district costs associated with it. The costs for a particular mother and baby facility may increase or decrease, on a case-by-case basis, if an exception is granted under this regulatory authority depending on the nature of the regulatory exception and any alternative actions required by OCFS. However, given the unique nature of each request for an exception and the rate setting process for mother and baby facilities, it is not possible to estimate the fiscal impact at this time.
5. Minimizing Adverse Impact:
The regulation will not change the current process for seeking an exception as set forth in 18 NYCRR 442.25. There is no obligation imposed on a social services district or a voluntary authorized agency to operate a mother and baby facility. OCFS will continue to work with authorized agencies that seek to operate such a program to be aware of the options available to the authorized agency in regard to the exception process, if necessary.
6. Rural Area Participation:
OCFS consulted with the New York City Administration for Children's Services and the New York Foundling in the development of this regulation. The Administration for Children's Services has foster children who are cared for in such programs and the New York Foundling is a voluntary authorized agency that operates a mother and baby program.
Job Impact Statement
A full job statement has not been prepared for the regulation amending 18 NYCRR 442.25 to authorize the Office of Children and Family Services (OCFS) to grant an exception to the regulatory standards for the operation of a mother and baby facility. The regulation will not have a substantial adverse impact on jobs or employment opportunities and will not result in the loss of any jobs. The regulation will not impact any current programs. OCFS regulation 18 NYCRR 442.17 does not specify staffing/resident ratios. In fact, where an exception to one of the other criteria for the operation of a mother and baby facility is requested, it is possible that OCFS may require enhanced staffing as a condition to approve the request for the exceptions.
