PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed action:
Amendment of Part 171 of Title 9 NYCRR.
Statutory authority:
Executive Law, sections 500, 501 and 504 of article 19-G; L. 1997, ch. 436
Subject:
Amendment of internal regulations pertaining to the operation of the Office of Children and Family Services (OCFS) residential youth facilities relating to resident mail, telephone and visitors.
Purpose:
To permit resident mail, telephone calls and visitors to OCFS residential youth facilities; expands the definitions of persons who may visit, permits unrestricted access by ombudsmen and legal counsel, clarifies mail and phone privileges, expands potential for waivers for correspondence with family members who may be incarcerated or who are otherwise restricted under the current regulations.
Substance of proposed rule (Full text is posted at the following State website: www.ocfs.state.ny.us):
This proposal amends Title 9 NYCRR subparts 171-1.7 (Visitors), 171-2 (Resident Mail) and 171-4 (Resident Telephone Calls), governing the operations of the Office of Children and Family Services (OCFS) residential youth facilities and the rights of resident youth to receive visitors, to send and receive mail, and to place and receive telephone calls.
The residents of OCFS facilities have been court ordered into the care and custody of OCFS for purposes of treatment, housing, guidance, education and rehabilitation. Under NYS Executive Law Article 19-G, OCFS is required to operate and maintain facilities for the care and custody of such youth, and is further authorized to promulgate such regulations as are necessary to carry out its statutory functions.
The proposed amendments to the regulation add a definition of “authorized visitor” to section 171-1.7 of 9 NYCRR. The facility staff, in consultation with the resident and the resident's parents or guardian, must develop an authorized visitors list for each resident. The visitor regulation is amended to permit unrestricted visits by the resident's legal counsel or law guardian and the Office of the Ombudsman. The regulation is clarified to state that the facility may refuse a visitor under the age of 18 unless the visitor is accompanied by the resident's parent, legal guardian or other suitable person. Each resident must receive a copy of the facility visitation policy.
The proposed amendments to subpart 171-2 of 9 NYCRR affect the sending and receiving of mail by residents. Language is added to clarify that “privileged mail” is defined and addressed in subpart 171-3 of 9 NYCRR and is not affected by subpart 171-2. The regulation provides that resident mail is private and outgoing mail is not to be read, censored or rejected except in limited and specified circumstances. If the facility director determines that mail must be withheld from a resident for any reason, the amendments require that the resident be notified in writing. The proposed amendments permit delayed notice if the delay is necessary because of an on-going investigation. The proposed amendments add definitions of the terms “inspection” and “immediate family member”. The facility director may waive the prohibition on receipt of correspondence from an incarcerated person where such person is an immediate family member of the resident and a waiver is in the resident's best interests. The proposal clarifies existing policy and procedure by stating that residents may seal outgoing mail, subject to the exception that a facility director may authorize reading of a resident's mail under specified circumstances and requires notification to the resident of such action. Finally, the provision for appeal (section 171-2.7) is repealed. A separate appeal provision for this subpart is not necessary. There is an existing resident grievance and appeals process which is used for all resident matters.
The proposed amendment adds subpart 171-4 to 9 NYCRR and affects telephone calls to and from residents of OCFS operated facilities. The proposed amendments permit a resident to make and receive telephone calls from a custodian, guardian, foster parent, or a person who has demonstrated a parental or sibling relationship with the resident, in addition to immediate family members. The proposed amendments permit the facility director to waive the prohibition on telephone calls to or from an incarcerated person, where the incarcerated person is an immediate family member of the resident and a waiver is in the resident's best interests. The amendments clarify that telephone contacts between youth in OCFS custody at the same facility also are prohibited. The amendments require actual notice to the resident that telephone calls may be monitored with the exception of telephone calls with legal counsel and the Office of the Ombudsman. The proposed amendments clarify that residents are permitted to receive one telephone call a day in addition to any calls from a legal representative or the Office of the Ombudsman, subject to the physical capacity of the telephone equipment of a particular facility to accommodate the resulting volume of calls. The proposed amendments state that residents are permitted to make telephone calls at State expense to the Office of the Ombudsman.
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, (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:
Sections 500 and 501 of the Executive Law (EL) authorize the Office of Children and Family Services (OCFS), formerly the New York State Division for Youth, to promulgate regulations necessary to carry out the functions of Article 19-G of the Executive Law.
Section 504(1) of Article 19-G of the EL requires the OCFS to operate and maintain facilities for the care, custody, treatment, housing, education, rehabilitation and guidance of youth in OCFS custody.
Chapter 436 of the Laws of 1997 transfers to the OCFS all functions, powers, duties and obligations of the New York State Division for Youth.
2. Legislative objectives:
The proposed amendments are consistent with the legislative and public policy objectives of maintaining family contacts while a youth is in OCFS custody. Residents of OCFS facilities are juvenile delinquents, juvenile offenders and juvenile offenders who have received youthful offender treatment who are placed in or committed to OCFS custody by the courts for the purposes of rehabilitation.
3. Needs and benefits:
These regulations pertain to certain internal operations of OCFS youth facilities, and are not applicable eleswhere. The objective of the proposed amendments to Subpart 171-2 (Resident Mail) of Title 9 of the New York Codes, Rules and Regulations (NYCRR) is to clarify internal procedures for handling resident mail at OCFS facilities. Subpart 171-2 does not apply to child care institutions operated by authorized agencies and licensed by OCFS.
The objective of the proposed amendments to Subpart 171-4 (Resident Telephone Calls) of Title 9 of the NYCRR is to expand access and clarify the internal procedures for telephone calls between residents of OCFS facilities and their families while maintaining the safety, security and good order of OCFS facilities. Subpart 171-4 does not apply to child care institutions operated by authorized agencies and licensed by OCFS.
Section 171-2.2 is amended to state explicitly that resident mail may not be read, censored or rejected except in accordance with the provisions of the Subpart. Youth must be notified in writing when incoming or outgoing correspondence is withheld. The proposed amendment also protects the safety, security and good order of OCFS facilities by permitting the required notification to a resident that his or her mail has been read, censored or rejected to be delayed if notification would interfere with an on-going investigation.
Section 171-2.3 is amended to define additional terms used in Subpart 171-2. The term “inspection” is added and states that “inspection” of mail does not include reading the contents. A definition of “immediate family member” is provided in lieu of listing the applicable family relationships in Sections 171-2.4 (Incoming Mail) and 171-2.5 (Outgoing Mail).
The proposed amendments conform the language in Sections 171-2.4 and 171-2.5 with the language in Subpart 171-4 pertaining to resident telephone usage. Both Subparts set forth the categories of incarcerated persons with whom residents may not have contact in the absence of a determination by the facility director or a court of competent jurisdiction that such contact would be in the best interest of the resident. Section 171-2.4 is reorganized to be clearer. In addition, the amendment to Sections 171-2.4 and 171-2.5 would expand the categories of incarcerated persons for whom a waiver may be granted to include a spouse or child of the resident and a person who has demonstrated a parental or sibling relationship with the resident. Section 171-2.5 is revised to add language to Subdivision (h) stating that writing materials must be made available to residents.
The proposed amendments to Section 171-2.6 pertaining to negative correspondence to correct a reference to the reorganized Section 171-2.4 and specify a timeframe during which the facility director must respond to a resident who has requested that a name be removed from the resident's negative correspondence list. The examples of contraband listed in the current regulation are eliminated, as the list is not comprehensive and may be misleading.
The proposed revision to Section 171-2.7 specifies a timeframe in which the Deputy Commissioner must respond to a resident's appeal of any limitation on the resident's incoming or outgoing mail. In addition, Section 171-2.7 is amended to adopt the resident grievance process as the appeal mechanism for a resident to challenge a decision to limit the resident's incoming or outgoing mail.
The amendments to Subpart 171-4 of Title 9 of the NYCRR expand access and clarify the internal procedures on resident telephone usage while at an OCFS facility.
Section 171-4.2 is amended to incorporate a definition of “immediate family” for the purposes of Subpart 171-4. The definition includes a child of the resident, a relationship that was overlooked in the current regulation. In addition, the proposed amendments add a foster parent, a person who has demonstrated a parental relationship with the resident, and the custodian or guardian of a child of the resident as persons whom the resident may contact by telephone under Subpart 171-4. A new Subdivision (c) of Section 171-4.2 requires that the facility remind residents that telephone calls, other than those to a legal representative or ombudsman, may be monitored by the facility.
The proposed amendments conform the language in Sections 171-4.4 (Incoming calls) and 171-4.5 (Outgoing calls) with parallel provisions in Subpart 171-2 pertaining to resident mail. Both Subparts set forth the categories of incarcerated persons with whom a resident may not have contact in the absence of a determination by the facility director that such contact would be in the best interest of the resident. The amendments to Sections 171-4.4 and 171-4.5 would expand the categories of incarcerated persons for whom a waiver may be granted to include a spouse or child of the resident and a person who has demonstrated a parental or sibling relationship with the resident. Section 171-4.4 is reworded for clarity.
The proposed amendment to Section 171-4.5 clarifies that a resident may call the OCFS Ombudsman at State expense even where the facility has a collect call (only) telephone system for resident use.
Section 171-4.6 pertaining to suspension of telephone privileges is amended to clarify that a violation of rules or procedures by a resident may result in a loss of the resident's privileges with one or more specified person for a specified period of time, or indefinitely.
The proposed amendment to Section 171-4.7 deletes an obsolete provision pertaining to waivers by the Deputy Commissioner and adds a new appeal process for a resident whose telephone privileges have been restricted.
The proposed amendments to Section 171-1.7 (Visitors) clarify the classes of persons who may visit a resident. “Authorized visitor” had not been defined previously and under this proposal would be defined as a visitor whose name is included on a list developed cooperatively upon intake by the facility staff, the resident, and the resident's parent or guardian, taking the resident's best interest into account. This will allow for visits by persons who may have no familial relationship and might otherwise have been excluded from contact, but are recognized as having a positive or therapeutic influence on the youth, while at the same time permitting the facility to exclude as visitors unaccompanied minors, most usually peers from home, who may be negative influences upon the resident. Lastly, the proposal carves out a clear and specific exception for the Ombudsman and legal counsel, giving them unrestricted access to the youth/client.
The amendments to these regulations clarify general “outside” contact procedures for residents of OCFS facilities. Separate procedures for privileged correspondence are set forth in Subpart 171-3, and are not affected by these amendments.
4. Costs:
Implementation and compliance with the proposed amendments are expected to have no substantial costs associated with implementation. Residents presently are permitted visitors, phone calls and mail privileges with restrictions; this rulemaking simply amends the specific limitations and restrictions. It is anticipated that no additional staff will be required to implement these changes or monitor compliance by residents.
5. Local government mandates:
The proposed regulations impose no mandates on local government.
6. Paperwork:
OCFS estimates that the paperwork required to implement the proposed revisions to Subpart 171 will be negligible. A resident whose mail is withheld must be so notified in writing. The appeal process for residents utilizes the existing resident grievance process. The telephone regulations contemplate limitations due to the physical capacity of the phone system in a given facility, but are otherwise unremarkable and require no additional paperwork. The visitor regulations provide that a list of approved visitors be created upon intake of a new resident; that procedure is currently being followed pursuant to existing regulations, and any alterations to such list as a result of these amendments will not require any new paperwork.
7. Duplication:
The proposed regulation does not duplicate any other existing legal requirements of the State or federal governments.
8. Alternatives:
No significant alternatives to the current proposal were considered.
9. Federal standards:
There are no relevant federal standards pertaining to the proposed amendments.
10. Compliance schedule:
OCFS facilities will be expected to be in compliance with the requirements of the proposed regulation within 30 days of its adoption.
Regulatory Flexibility Analysis
1. Effect on small businesses and local governments:
None. The proposed amendments to Subpart 171-2 of Volume 9 of the New York Codes, Rules and Regulations will not affect small businesses or local governments. The proposed amendments clarify the internal procedures for handling resident mail in Office of Children and Family Services (OCFS) operated facilities. OCFS operates secure, limited-secure and non-secure residential facilities for juvenile delinquents, juvenile offenders and juvenile offenders with youthful offender status.
2. Compliance requirements:
None. The proposed regulation would not affect small businesses or local governments.
3. Professional services:
None. The proposed regulation would not affect small businesses or local governments.
4. Compliance costs:
None. The proposed regulation would not affect small businesses or local governments.
5. Economic and technological feasibility:
None. The proposed regulation would not affect small businesses or local governments.
6. Minimizing adverse impact:
Not applicable. Since the proposed regulation would not affect small businesses or local governments, this issue was not considered.
7. Small business and local government participation:
None. No input was sought from these since the proposed regulation would not affect small businesses or local governments.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas: Not applicable.
The proposed amendments to Subpart 171-2 of Volume 9 of the New York Codes, Rules and Regulations will affect internal procedures for handling resident mail, telephone calls and visitors in Office of Children and Family Services (OCFS) operated facilities. OCFS operates secure, limited-secure and non-secure residential facilities located in rural, urban and suburban areas for juvenile delinquents, juvenile offenders and juvenile offenders with youthful offender status.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
Not applicable. The reporting, recordkeeping and other compliance requirements of the proposed amendments to Subpart 171-2 of Volume 9 of the New York Codes, Rules and Regulations are negligible and internal to OCFS. Implementation of the proposed amendments will not require professional services.
3. Costs:
Not applicable. Implementation and compliance with the proposed amendments to Subpart 171-2 will have no measurable cost.
4. Minimizing adverse impact:
None. The proposed amendments to Subpart 171-2 will have no adverse impact on rural areas.
5. Rural area participation:
Not applicable. The proposed amendments to Subpart 171-2 govern the internal procedures for resident mail, telephone calls and visitors at OCFS operated youth facilities.
Job Impact Statement
The proposed amendments to Part 171 of Volume 9 of the New York Code, Rules and Regulations are not expected to have any adverse impact on jobs or employment within the Office of Children and Family Services, which is the only entity affected by the proposal. Therefore, a full job assessment has not been submitted.
