JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. JCP-12-13-00011-P
Use of Social Security Numbers
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 702 to Title 14 NYCRR.
Statutory authority:
Protection of Special Needs Act, L. 2012, ch. 501
Subject:
Use of Social Security Numbers.
Purpose:
To assist in verifying the identity of persons vis a vis their presence on the Staff Exclusion List.
Text of proposed rule:
A new Part 702 is added to Title 14, NYCRR, to read as follows:
§ 702.1 Background and Intent
(a) The Protection of People with Special Needs Act (the “Act”), enacted as Chapter 501 of the Laws of 2012, seeks to prevent persons responsible for egregious or repeated acts of abuse or neglect of a vulnerable person from being engaged as employees, administrators, consultants, interns, volunteers or contractors, and from obtaining licenses, certificates or other approvals, for positions where they have the potential for regular and substantial contact with vulnerable persons or other individuals whom the Act seeks to protect.
(b) To accomplish this goal, the Act provides that all custodians who have been found by a preponderance of the evidence, after an opportunity for a fair hearing, to have engaged in an act of abuse or neglect of sufficient severity or with sufficient frequency, shall be placed on the register of substantiated category one cases of abuse or neglect, also known as the “staff exclusion list.”
(c) This regulation outlines the procedures for obtaining and using social security numbers to assist in verifying the identity of subjects of reports in the vulnerable persons central register (“VPCR”); individuals placed on the staff exclusion list and those individuals who must be screened against the staff exclusion list.
§ 702.2 Applicability
This regulation applies to all facilities and provider agencies as defined in subdivision (4) of section 488 of the Social Services Law and to all other entities that must screen individuals against the staff exclusion list pursuant to subdivision (2) of section 495 of the Social Services Law.
§ 702.3 Legal authority
(a) The Act provides for the creation of a Justice Center for the Protection of Persons with Special Needs (“Justice Center”).
(b) Section 492 of the Social Services Law mandates that the Justice Center establish a VPCR in which findings of whether alleged acts of abuse or neglect are substantiated or unsubstantiated shall be entered.
(c) Section 492 of the Social Services Law mandates that upon accepting a report of a reportable incident, an investigation must be initiated that includes the determination of whether the subject of the report is currently the subject of an open or substantiated report in the VPCR.
(d) Sections 493, 494 and 495 of the Social Services Law provide for the creation of a register of substantiated category one cases of abuse or neglect (“the staff exclusion list”), and describe the circumstances and due process requirements for placing a custodian on that register.
(e) Section 495 of the Social Services Law provides that a custodian placed on the staff exclusion list is subject to termination of employment from a facility or provider agency, provided that for state entities bound by collective bargaining, action established by collective bargaining shall govern.
(f) Subdivision (2) of section 495 of the Social Services Law requires a screening agency, as defined in this Part, to check the staff exclusion list before determining whether to hire or otherwise allow any person as an employee, administrator, consultant, intern, volunteer or contractor who will have the potential for regular and substantial contact with a service recipient or other applicable individual and before approving an applicant for a license, certificate, permit or other approval to provide care to a service recipient or other applicable individual.
(g) Paragraph (e) of subdivision (1) of section 96 of the Public Officers Law permits a state agency to disclose personal information incident to a “routine use,” which means any use of such record or personal information relevant to the purpose for which it was collected, and which use is necessary to the statutory duties of the agency that collected or obtained the record or personal information, or necessary for that agency to operate a program specifically authorized by law.
(h) Paragraph (c) of subdivision (1) one of section 94 of the Public Officers Law permits a state agency to obtain the social security number of an individual for purposes of a quasi-judicial determination.
(i) Paragraph (b) of subdivision (3) of section 399ddd of the General Business Law permits firms, partnerships, associations or corporations to require an individual to disclose or furnish his or her social security account number, when required by state or local law or regulation.
§ 702.4 Definition
Whenever used in this Part:
(a) “Custodian” shall mean a director, operator, employee or volunteer of a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by such a facility or provider agency.
(b) “Delegate investigatory entity” shall have the same meaning as expressed in subdivision (7) of section 488 of the Social Services Law.
(c) “Facility” or “provider agency” shall have the same meaning as expressed in subdivision (4) of section 488 of the Social Services Law.
(d) “Screening agency” shall mean a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law; any other provider of services to vulnerable persons in programs licensed, certified or funded by any state oversight agency; and any other provider agency or licensing agency as defined in subdivision (3) or (4) of section 424-a of the Social Services Law.
(e) “Service recipient” shall mean an individual who resides or is an inpatient in a residential facility or who receives services from a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law.
(f) “Staff exclusion list” shall mean the register of substantiated category one cases of abuse or neglect, pursuant to sections 493 and 495 of the Social Services Law.
(g) “State oversight agency” shall mean the state agency that operates, licenses or certifies an applicable facility or provider agency; provided however that such term shall only include the following entities: the office of mental health, the office for people with developmental disabilities, the office of alcoholism and substance abuse services, the office of children and family services, the department of health and the state education department.
(h) “Vulnerable person” shall have the same meaning as expressed in subdivision 15 of section 488 of the social services law.
§ 702.5 Verification of Identity
(a) The Justice Center or a delegate investigatory entity responsible for investigating a reportable incident pursuant to paragraph (c) of subdivision (3) of section 492 of the Social Services Law shall be authorized to obtain the social security number of any custodian who is being investigated as a subject of a reportable incident, by consent from the custodian under investigation or from the applicable facility or provider agency, for purposes of verifying the custodian’s identity as the subject of any open or substantiated report in the VPCR and, where applicable, as an individual included on the staff exclusion list.
(b) Any person applying for a position for which such person must be screened against the staff exclusion list pursuant to subdivision (2) of section 495 of the Social Services Law shall provide the applicable screening agency with his or her social security number for submission to the Justice Center for the purpose of verifying the person’s identity to determine whether the individual is included on the staff exclusion list.
(c) An individual’s failure to provide his or her social security number when requested pursuant to this section, after receiving notice of the reason for such request, may preclude the individual from being considered or approved for, or retained in, any such position.
§ 702.6 Confidentiality
The Justice Center shall promulgate policies and procedures regarding corrective actions or penalties for failure to comply with the use, confidentiality and non-disclosure requirements of Sections 89, 94, 95, 96 and 96-a of the Public Officer’s Law.
§ 702.7 Severability
If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.
Text of proposed rule and any required statements and analyses may be obtained from:
Stephan Haimowitz, Justice Center for the Protection of People with Special Needs, Empire State Plaza, Concourse Level, Room 116, Albany, NY 12242, (518) 486-5698, email: stephan.haimowitz@cqc.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:
The Protection of People with Special Needs Act (Chapt. 501, Laws of 2012, hereafter the “Act”), provides for the creation of a Vulnerable Persons Central Register comprised of accepted reports alleging abuse or neglect in facilities or provider agencies under the oversight of the newly-created Justice Center for the Protection of People with Special Needs. Abuse or neglect is defined in subdivision one of section 488 of the Social Services Law. Investigations of all accepted cases are required, and part of that investigation is verifying whether the custodian under investigation is currently the subject of an open or substantiated report in the Vulnerable Persons Central Register. Sections 492 and 493 of the Social Services Law further establish that the investigation must result in a finding of either substantiated by the preponderance of evidence or unsubstantiated, where an individual responsible custodian is identified.
Subdivision five of section 493 of the Social Services Law together with sections 494 and 495 of the Social Services Law, authorize the creation of a Register of Substantiated Category One Cases of Abuse or Neglect, also known as the Staff Exclusion List. They describe the process by which a custodian may be placed on that list and the consequences of such an outcome. Where a case of abuse or neglect against a custodian is found to be of a certain level of seriousness, it will be classified as a category one, requiring the placement of the responsible custodian on the Staff Exclusion List. As indicated by the enabling legislation, category one cases of abuse or neglect represent the most egregious or repeated acts of abuse or neglect.
Placement on the Staff Exclusion List is permanent and generates certain consequences, including a bar to that person assuming an employment, volunteer or consultant role that would permit regular and substantial contact with a vulnerable person in settings under Justice Center oversight. It also may bar approval of applicants for a license, certificate, permit or other approval to provide care to a service recipient. Placement on the Staff Exclusion List also subjects a custodian already providing services to vulnerable persons to termination from employment, subject to applicable collective bargaining agreements. Cognizant of the considerable consequences of being placed on the Staff Exclusion List, this rule proposes to ensure the prompt and accurate identification of persons who have been placed on that list, as well as those prospective applicants for employment, volunteer or consultant opportunities, or licenses, certificates, permits or other approvals who must be screened for presence on that list pursuant to subdivision two of section 495 of the Social Services Law.
In conjunction with the legislative mandate of the Act, section 94(1)(c) of the Public Officers Law authorizes a state agency to obtain the social security number of an individual for purposes of a quasi-judicial determination, such as the adjudicatory process required to substantiate category one cases of abuse or neglect against a custodian. Section 399ddd-3(b) of the General Business Law permits firms, partnerships, associations or corporations to require an individual to disclose or furnish his or her social security account number, when required by state or local law or regulation.
The Public Officers Law authorizes an agency “to disclose personal information to those officers and employees of, and to those who contract with, the agency that maintains the record where such disclosure is necessary to the performance of official duties required to be accomplished by statute or necessary to operate a program specifically authorized by law.” Section 96(1)(e) of the Public Officers Law also authorizes disclosure of such information by a state agency for a routine agency use as defined in section 92.10 of the Public Officers Law. These statutory authorizations will permit the Justice Center to use social security numbers to help accurately identify those persons placed on the Staff Exclusion List, or screened for presence on that list, as required by the Act.
2. Legislative objectives:
The public policy objective of the Act is to implement preventive strategies to reduce the instances of abuse and neglect of certain vulnerable persons, by ensuring that facilities or provider agencies under the Act make informed decisions when placing employees, volunteers, interns or contractors in a position to have regular and substantial contact with vulnerable persons receiving services, or when state oversight agencies issue licenses, certificates, permits or other approval to provide care to service recipients. Those responsible for processing such applications will now be required to check whether a potential applicant has a history of egregious or repeated instances of abuse or neglect against vulnerable persons before making decisions about hiring or taking on contractors or volunteers, or issuing permissions.
This proposed rule also includes the requisite protections for the personal information of applicants and custodians placed on the Staff Exclusion List by limiting its use to the purposes for which it is collected and ensuring confidentiality of the information as required by law.
3. Needs and benefits:
This proposed rule is necessary to ensure the accurate and prompt identification of individuals that are either placed on the Staff Exclusion List or screened as to their presence on that list, as authorized by section 495 of the Social Services Law. This rule will help avoid misidentification and permit the prompt screening of applicants for positions, licenses or approvals, thus allowing providers to promptly address staffing and service needs.
4. Costs:
a. Costs to regulated parties for the implementation of and continuing compliance with the rule:
The regulated parties include facilities and provider agencies under the Act, all those applying for employee, volunteer or consultant positions, for licenses, certificates, permits or other approvals who will have the potential for regular and substantial contact with vulnerable people under Justice Center jurisdiction. They are mandated, by subdivision two of section 495 of the social services law, to submit to a screening to verify whether or not they are on the Staff Exclusion List. This rule merely implements that statutory requirement by providing that the screening be carried out using the applicant’s social security number as one of the personal identifiers. The check will be carried out by an immediate search of the Staff Exclusion List electronically. The use of the social security number will make that process immediate, and limit unnecessary delays. Under these circumstances, the request for a screening and the receipt of the response presents no discernible additional cost to the regulated parties.
All of the respective facilities and providers have statutorily created screening processes for their employees that will have regular and substantial unrestricted and unsupervised contact with service recipients. The addition of the Staff Exclusion List screening will reduce the number of more costly criminal history information records checks, where the pre-requisite of a Staff Exclusion List screening can establish, of itself, unsuitability for the position or permitting application.
b. Costs to the agency:
The cost to state agencies is negligible given that they will be able to carry out the Staff Exclusion List screening by electronic means, and receive an almost immediate response by the same means. There is no charge for this screening, and it represents an aspect of the overall operational implementation of the Vulnerable Persons Central Register, provided for by sections 491, 492, 493, 494 and 495 of the Social Services Law, pursuant to which this rule is being promulgated.
5. Local government mandates:
Any facility or provider under the jurisdiction of the Justice Center that is operated by a county, city, town, village, school district or other special district is subject to the terms of the Act, and will therefore be required by this rule to carry out the mandated Staff Exclusion List screening by submitting a request containing the social security number of the applicant. This may be accomplished in electronic form so long as confidentiality is ensured.
6. Paperwork:
The request would be submitted to the Justice Center by facsimile or secure electronic form. The provider or facility would merely be required to transmit the request to the Justice Center. The recordkeeping requirements are limited to the facility or provider agency’s preservation of the notice with regard to presence or absence on the Staff Exclusion List, the respective date of the notice and a record of the hiring decision for purposes of state oversight agency audits. The Justice Center would maintain a record of the requests and responses for screenings in electronic form.
7. Duplication:
There is no known duplication, overlap or conflict with any other state or federal government requirements.
8. Alternatives:
The alternative for accomplishing the Staff Exclusion List screening was to use name, address and date of birth only. However, based on the experience of other agencies, it was determined that the introduction of the social security number would significantly streamline the identity verification process, and provide greater certainty as to the outcome, thus benefitting both the applicants, and the facilities or provider agencies.
9. Federal standards:
This rule meets, but does not exceed federal standards. Not applicable.
10. Compliance schedule:
The provisions of this regulation will take effect on June 30, 2013. Regulated parties will be able to comply with this rule immediately upon its adoption.
Regulatory Flexibility Analysis
1. Effect of rule:
Small businesses include not for profit, volunteer or other types of non-state agencies and providers of services to vulnerable persons under Justice Center jurisdiction. Local governments that operate detention centers for juveniles will be affected.
2. Compliance requirements:
The proposed Rule has been reviewed in consideration of its impact on small business and local government service providers. Because existing small business providers are presently engaged in fielding employment, volunteer and consultant applications, and applicants for licenses, certificates permits or approvals are handled by the state agencies, there is no anticipated additional burden on small businesses or local government. The activity required by this rule is limited, in any event, to the transmission of information that can be provided electronically in a secure fashion, and based on forms provided by the Justice Center.
3. Professional services:
It is not anticipated than any new professional services will be needed as a result of the proposed rule-making.
4. Compliance costs:
Any recurring costs are subsumed in regular operating costs of all entities affected, and are represented in the cost of telephone, fax and electronic communications. As a consequence, no additional cost for compliance is anticipated.
5. Economic and technological feasibility:
Electronic mail and facsimile transmissions are general available technologies that can be used to transmit the information required under this rule.
6. Minimizing adverse impact:
The rule is designed to promote efficiency, promptness and accuracy, thus avoiding any potential adverse impacts from fulfilling the statutory requirement expressed through this rule.
7. Small business and local government participation:
We are seeking comments during the public comment period on rural area participation. However rural areas participated in formulating the legislation under which this rule is being promulgated by virtue of their input into the “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons. See, http://www.governor.ny.gov/assets/documents/justice4specialneeds.pdf.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule will apply to every county in New York State that has facilities or providers under the Justice Center’s jurisdiction.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
There are no professional services required for compliance with this rule. The compliance requirements are no different than those of a type already being carried out by the facilities or providers in each of New York’s counties, as comprehended under the human resources, staffing and licensing, certification or approval activities of each of these entities.
3. Costs:
No capital costs are required. The annual costs are included in the existing human resources, staffing, licensing, and certification or approval activities of those affected.
4. Minimizing adverse impact:
There are no adverse impacts on rural areas.
5. Rural area participation:
We are seeking comments during the public comment period on rural area participation. However rural areas participated in formulating the legislation under which this rule is being promulgated by virtue of their input into the “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons. See, http://www.governor.ny.gov/assets/documents/justice4specialneeds.pdf.
Job Impact Statement
The proposed regulations are not expected to have a negative impact on jobs or employment opportunities in either public or private sector. A full job impact statement has not been prepared for the proposed regulations as it is not anticipated that the proposed regulations will have any adverse impact on jobs or employment opportunities.
