TDA-17-08-00032-A State-Confirmed Human Trafficking Victims

4/22/09 N.Y. St. Reg. TDA-17-08-00032-A

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 16

April 22, 2009

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

NOTICE OF ADOPTION

 

I.D No. TDA-17-08-00032-A

Filing No. 348

Filing Date. Apr. 03, 2009

Effective Date. Apr. 22, 2009

State-Confirmed Human Trafficking Victims

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Part 765 to Title 18 NYCRR.

Statutory authority:

Social Services Law, art. 10-D

Subject:

State-confirmed human trafficking victims.

Purpose:

To govern the process and protocols for confirming an individual as a human trafficking victim in New York State.

Text of final rule:

A new Subchapter K is added to Title 18 NYCRR to read as follows:

Subchapter K Victims of Human Trafficking

A new Part 765 is added to Subchapter K of Title 18 NYCRR to read as follows:

Part 765 Confirmation as a State-confirmed Human Trafficking Victim

§ 765.1 Scope. The provisions of this Part shall govern the process and protocols for the Office of Temporary and Disability Assistance in assessing, and the social services districts in identifying, an individual as a State-confirmed human trafficking victim in New York State. In conjunction with the Division of Criminal Justice Services and Part 6174 of 9 NYCRR, this part shall also include defining the participant parties, the victim, the nature of the consultative role in the confirmation and appeal processes, and the process for required notifications, referrals and assistance to the prescribed parties.

§ 765.2 Definitions. When used in this Part:

(a) The term "Office" shall mean the Office of Temporary and Disability Assistance.

(b) The term "Division" shall mean the Division of Criminal Justice Services.

(c) The term "human trafficking victim" shall mean a victim of sex trafficking, as defined in section 230.34 of the Penal Law, or a victim of labor trafficking, as defined in section 135.35 of the Penal Law.

(d) The term "subject of referral" shall mean a human trafficking victim referred by a statutory referral source under section 483-CC(A) of the Social Services Law to the Division and the Office for assessment as a State-confirmed human trafficking victim.

(e) The term "statutory referral source" shall mean the law enforcement agency or district attorney's office that, as soon as practicable after a first encounter with a person who reasonably appears to be a human trafficking victim, refers such human trafficking victim to the Division and the Office for assessment as a State-confirmed human trafficking victim.

(f) The term "State-confirmed human trafficking victim" shall mean a human trafficking victim referred by a statutory referral source who appears to meet the criteria for certification as a victim of a severe form of trafficking in persons pursuant to the federal Trafficking Victims Protection Act set forth in section 7105 of 2 U.S.C. (United States Code Annotated, Title 22, § 7105; Thomson West, West Headquarters, 610 Opperman Drive, Eagan, Minnesota 55123. Copies may be obtained from the Office of Temporary and Disability Assistance, Public Information Office, 40 North Pearl Street, Albany, New York 12243-0001) or appears to be otherwise eligible for any federal, state, or local benefits and services, in the judgment of the Division, in consultation with the Office and statutory referral source.

(g) The term "case management provider" shall mean an entity under contract with the Office pursuant to section 483-BB(B) of the Social Services Law to provide services to certain State-confirmed human trafficking victims.

§ 765.3 Minors. If a subject of referral is under the age of 18 at the time of referral to the Division and the Office, the following actions must be taken regardless of whether the subject of referral is deemed a State-confirmed human trafficking victim:

(a) the Office shall, as soon as practicable, notify the social services district in the county where the subject of referral was found; and

(b) the social services district shall provide to such minor any services to which the minor is entitled under applicable law.

§ 765.4 Consultation. Within three business days of receipt of a referral by a statutory referral source, the Office shall notify the Division in writing of its assessment regarding whether a subject of referral is a State-confirmed human trafficking victim.

§ 765.5 Notice of Confirmation. Within three business days of receipt of written notice from the Division, the Office shall notify the subject of referral and statutory referral source in writing that, in the judgment of the Division, in consultation with the Office and statutory referral source, the subject of referral is a State-confirmed human trafficking victim. Such notice shall include a written referral for services from a case management provider or from any other available source.

§ 765.6 Referrals for Assistance. When providing a written referral for services from a case management provider or from any other available source to a State-confirmed human trafficking victim, the Office shall:

(a) refer a State-confirmed human trafficking victim who appears to meet the criteria for certification as a victim of a severe form of trafficking in persons pursuant to the federal Trafficking Victims Protection Act set forth in section 7105 of 22 U.S.C. (United States Code Annotated, Title 22, § 7105; Thomson West, West Headquarters, 610 Opperman Drive, Eagan, Minnesota 55123. Copies may be obtained from the Office of Temporary and Disability Assistance, Public Information Office, 40 North Pearl Street, Albany, New York 12243-0001) to a case management provider, and shall also notify that case management provider of the referral; or

(b) refer a State-confirmed human trafficking victim who appears to be otherwise eligible for any federal, state, or local benefits and services to the social services district in which the person resides and to any other available source of assistance, and shall also notify that social services district and any other available source of assistance of the referral; or

(c) refer a State-confirmed human trafficking victim who is under the age of 18 to the social services district in the county where such minor was found and to any other available source of assistance.

§ 765.7 Appeals. If the Commissioner of the Division reverses a denial of confirmation pursuant to sections 6174.4 (a) and (b) of 9 NYCRR, and notifies the Office of its determination in writing, the Office shall follow the procedures set forth in this part.

Final rule as compared with last published rule:

Nonsubstantial changes were made in sections 765.2(f) and 765.6(a).

Text of rule and any required statements and analyses may be obtained from:

Jeanine Stander Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street 16C, Albany, New York 12243-0001, [phone], email: [e-mail]

Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement

The nonsubstantive revisions made to sections 765.2(f) and 765.6(a) were merely technical changes concerning the referenced material. These changes do not necessitate revisions to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public Comment

During the public comment period on the proposed rule to govern the process and protocols for confirming an individual as a human trafficking victim in New York State, the Office of Temporary and Disability Assistance (OTDA) received comments from an advocacy group.

Comment: The commentator mentioned that the language defining "human trafficking victim" drew only from the New York State Penal Law and did not include the federal definition under the Trafficking Victims Protection Reauthorization Act (TVPA). The commentator felt that this omission could lead to confusion, as well as to unintended consequences where a victim that meets the federal, but not the State, definition could be excluded from services. They further stated that, as the federal definition is used elsewhere in section 765.2, when defining "State-confirmed human trafficking victim," its inclusion will only clarify the process and ensure that victims of human trafficking are more readily eligible to receive services.

Response: The OTDA disagrees with this comment. The definition of a human trafficking victim is set out explicitly in the statutory language. This language cannot be altered to include a federal definition under the TVPA through the regulatory process. In addition, the purpose of the law is to provide for a victim class under New York State law, the class being defined as a human trafficking victim. This class is not necessarily commensurate with the victim class captured by the federal TVPA. Including a federal definition within the State definition would create additional confusion.

Comment: The commentator expressed concern that the term "as soon as practicable" as used to define the timeframe in which a "statutory referral source" must act when referring a "human trafficking victim" was not clear and gave little guidance at a time when the commentator felt the victim was especially vulnerable. A mandated timeframe for law enforcement to refer a victim was encouraged.

Response: The OTDA disagrees with this comment. After consultation with the Division of Criminal Justice Services (DCJS), a specific timeframe to mandate upon law enforcement was declined because there was a general consensus that some discretion must be provided to law enforcement during on-going investigations. Both the OTDA and the DCJS, however, when working with law enforcement during on-going investigations encourage a referral at the first opportune moment.

In addition, both the DCJS and the OTDA address this issue during their training sessions with law enforcement.

Comment: The commentator sets forth concerns regarding the provisions available for trafficking victims that were minors, and specifically that the language in the proposed regulation gave little guidance as to the steps that should be taken to protect a minor victim. Additionally, the commentator remarked that the proposed regulation did not provide a process of accountability to ensure that services be delivered in the most efficient and effective manner. Thus, the commentator recommended that additional regulatory language be incorporated to mandate the inclusion of an entity under the New York State Office of Children and Family Services (OCFS) to provide a broader range of specialized services to minors to enhance the protections offered under the statute and proposed regulations.

Response: The statutory construct provides that minors referred to the local departments of social services (LDSS's) as trafficked victims can access any services to which the minor is entitled under applicable law. Additional guidance to the LDSS's will be forthcoming in a directive to be jointly issued by the OTDA and the OCFS so that referred child trafficking victims receive those services that they need and are entitled to, including child protective and residential services.

Comment: The commentator raised the issue of translation and language services when addressing the written notice of confirmation that a human trafficking victim receives when he or she has been confirmed under the New York State law as a State-confirmed human trafficking victim. The commentator felt that since these written notices provide important information to human trafficking victims about their status, as well as services available to them under the law, the notices should be written in the State-confirmed victim's native language, or his or her language of fluency.

Response: The OTDA already has existing policy guidance regarding access to benefits, programs and services by Limited English Proficient (LEP) individuals. As such, all State-confirmed victims of human trafficking who receive the notice of confirmation from the OTDA are informed of the notice's contents in compliance with the OTDA's policies and procedures so that they are in a position to access all benefits, programs and services to which they may be eligible.

Comment: While the commentator expressed support for the steps that the State is taking to ensure that trafficked persons receive needed services, the commentator expressed strong concern about the efforts themselves.

In particular, the commentator asserted that the proposed rule did not provide a mechanism for social service providers or advocates to contact the OTDA and/or the DCJS directly to refer an individual they discover and identify as a victim of human trafficking. Additionally, the commentator alleged that there is no mention of protocols to protect the confidentiality of victims' information and recommended that it be addressed.

Response: The proposed regulations regarding the acceptance of referrals only from law enforcement and district attorneys were drafted in compliance with statutory requirements and an expansion beyond law enforcement is not within the scope of the statute. Additionally, the OTDA does not believe that further confidentiality requirements need to be included in this regulation as the OTDA already has policies in place to protect information between agencies and in service utilization, in accordance with State and federal laws and regulations. Further, the services contracts between the OTDA and non-governmental organization service providers for State-confirmed victims of human trafficking contain confidentiality provisions which extend to information obtained and/or provided by a trafficking victim.

Comment: The final comment from the commentator expressed concern regarding outreach and training on trafficking into labor sectors. In particular, the commentator asserted that New York State was focusing its resources largely on trafficking into prostitution. It recommended that the prevalence and criminality of labor trafficking situations be taken seriously by the State by encouraging that substantial resources be focused on outreach and training; identification; data collection; and prevention efforts for labor trafficking.

Response: The OTDA maintains that the proposed regulations address human trafficking and service delivery equally. Despite a statutory penalty differential in regards to labor trafficking versus sex trafficking, all efforts are made to address all types of trafficking during training presentations made by the OTDA.