TDA-06-16-00016-ERP Emergency Shelters for the Homeless
5/11/16 N.Y. St. Reg. TDA-06-16-00016-ERP
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 19
May 11, 2016
RULE MAKING ACTIVITIES
OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE
NOTICE OF EMERGENCY ADOPTION AND REVISED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. TDA-06-16-00016-ERP
Filing No. 433
Filing Date. Apr. 25, 2016
Effective Date. Apr. 25, 2016
Emergency Shelters for the Homeless
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action Taken:
Amendment of section 352.37 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 17(a)-(b), (i), 20(2)-(3), 34, 460-c and 460-d; Executive Law, section 43(1); General Municipal Law, section 34; State Finance Law, section 109(4); New York City Charter, section 93; and Buffalo City Charter, ch. C, art. 7, section 7-4
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The Office of Temporary and Disability Assistance (OTDA) finds that immediate adoption of the rule is necessary for the preservation of the public health, public safety, and general welfare and, specifically, to assure that residents of emergency shelters are not subject to unhealthy or imminently dangerous conditions. The regulatory amendments establish protections for residents of emergency shelters by clarifying OTDA’s authority, pursuant to the Social Services Law and State regulations, to take immediate emergency measures to address emergency shelters determined to be dangerous, hazardous, or imminently detrimental to the health, safety, and general welfare of residents. Recent inspections and visits conducted at a significant number of emergency shelters by officials from OTDA have confirmed that dangerous, hazardous, or unhealthy conditions have existed at some of these placements for sustained periods of time. Failing to expand OTDA’s oversight in this area would endanger the health, safety and welfare of such residents. The rule helps ensure that emergency shelters are maintained in safer, healthy conditions, and that the welfare of residents is better protected than under current requirements. In the absence of this new rule, inspections have revealed that some operators have permitted their emergency shelters to deteriorate to a point where dangerous, hazardous, or unhealthy conditions exist. Under these circumstances, OTDA asserts that proposing this rule only as a “regular rule making” as provided by the State Administrative Procedure Act (SAPA) should not be required because to do so would be detrimental to the health and general welfare of the residents of these emergency shelters while permitting public funds to be expended to maintain conditions that are dangerous, hazardous, and unhealthy. Recent investigations have confirmed such conditions and have underscored the imperative of acting quickly to assure that residents of these placements are safe and protected from dangerous, hazardous, or unhealthy conditions. Without this emergency regulation, some emergency shelters will simply maintain the status quo, thereby endangering individuals, families and children.
Subject:
Emergency shelters for the homeless.
Purpose:
Emergency measures concerning shelters for the homeless.
Text of emergency/revised rule:
Section 352.37 of Title 18 NYCRR is amended to read as follows:
352.37 Emergency measures concerning shelters for the homeless.
(a) When the Office of Temporary and Disability Assistance (the office) has knowledge, or has been advised, by announced or unannounced inspections, audits, or other methods with respect to emergency [shelter] shelters made by any [state] State or local entity authorized to conduct inspections or audits, including the office and State or local comptrollers, that there exists a violation of law, regulation, or code with respect to a building that provides emergency shelter to homeless persons, in which there are conditions that are dangerous, hazardous, imminently detrimental to life or health, or otherwise render the building not fit for human habitation, the office may [impose, with respect to all emergency shelters,] take immediate emergency measures, including, but not limited to, one or more of the following: [requiring] (1) issuing an order directing the facility to take immediate measures to rectify any deficiencies, violations, or conditions[;], requiring additional security[;], or directing the transfer of [its] the facility’s residents to other temporary emergency housing[; directing the social services district to cancel its operating contract and retain a new operator]; or (2) temporarily suspending the facility’s operating certificate [seeking a receivership;] or directing closure of the facility. For purposes of this section, “emergency shelter” shall mean any facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter to recipients of temporary housing assistance.
(b) Any order of the office issued with respect to any emergency shelter pursuant to paragraph (2) of subdivision (a) of this section shall be subject to the notice and expedited hearing process set forth in section 493.8 of this Title.
[(b)] (c) Nothing in this section shall be construed as limiting the office from taking additional enforcement action authorized under the Social Services Law or any State regulation[, including, but not limited to: limitation, suspension, or revocation of the facility's operating certificate; investigation and directing modifications to the operating certificate; appointment of a receiver; imposition of daily fines; legal actions against the social services district; withholding reimbursement of payments made under this Part; and withholding of reimbursement payments pursuant to statute and Parts 485 and 900 of this Title].
[(c)] (d) The office is authorized to conduct unannounced inspections at any hour, without prior knowledge by or notification to [either] the emergency shelter, the operator, or the social services district. Interference with an inspection, refusal to allow admission, delay in allowing admission, or refusal to provide complete access to the facility will be deemed to be a violation, and [a basis to direct the immediate suspension of the shelter contract and operating agreement and/or immediate cessation of the social services district's reimbursement and operating authority] the office may take immediate enforcement action authorized under the Social Services Law or any State regulation. State and local comptrollers, in inspecting, auditing, or reviewing with respect to emergency shelters [are authorized, as agents of the office, to take all actions set forth in this section] shall inform the office of any proposed violations of law, regulation, or code and shall provide recommendations as to any enforcement action.
This notice is intended
to serve as both a notice of emergency adoption and a notice of revised rule making. The notice of proposed rule making was published in the State Register on February 10, 2016, I.D. No. TDA-06-16-00016-EP. The emergency rule will expire June 23, 2016.
Emergency rule compared with proposed rule:
Substantial revisions were made in section 352.37(a), (b), (c) and (d).
Text of rule and any required statements and analyses may be obtained from:
Richard P. Rhodes, Jr., Associate Attorney, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street 16C, Albany, NY 12243-0001, (518) 486-7503, email: richard.rhodesjr@otda.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
1. Statutory Authority:
Social Services Law (SSL) § 17(a)-(b) and (i) provide, in part, that the Commissioner of the Office of Temporary and Disability Assistance (OTDA) shall “determine the policies and principles upon which public assistance, services and care shall be provided within the [S]tate both by the [S]tate itself and by the local governmental units …”, shall “make known his policies and principles to local social services officials and to public and private institutions and welfare agencies subject to his regulatory and advisory powers …”, and shall “exercise such other powers and perform such other duties as may be imposed by law.”
SSL § 20(2) provides, in part, that the OTDA shall “supervise all social services work, as the same may be administered by any local unit of government and the social services officials thereof within the state, advise them in the performance of their official duties and regulate the financial assistance granted by the state in connection with said work.” Pursuant to SSL § 20(3)(d) and (e), OTDA is authorized to promulgate rules, regulations, and policies to fulfill its powers and duties under the SSL and “to withhold or deny State reimbursement, in whole or in part, from or to any social services district [SSD] or any city or town thereof, in the event of their failure to comply with law, rules or regulations of [OTDA] relating to public assistance and care or the administration thereof.”
SSL § 34(3)(c) requires OTDA’s Commissioner to “take cognizance of the interests of health and welfare of the inhabitants of the [S]tate who lack or are threatened with the deprivation of the necessaries of life and of all matters pertaining thereto.” Pursuant to SSL § 34(3)(f), OTDA’s Commissioner must establish regulations for the administration of public assistance and care within the State by the SSDs and by the State itself, in accordance with the law. In addition, pursuant to SSL § 34(3)(d), OTDA’s Commissioner must exercise general supervision over the work of all SSDs, and SSL § 34(3)(e) provides that OTDA’s Commissioner must enforce the SSL and the State regulations within the State and in the local governmental units. Pursuant to SSL § 34(6), OTDA’s Commissioner “may exercise such additional powers and duties as may be required for the effective administration of the department and of the [S]tate system of public aid and assistance.”
SSL § 460-c confers authority upon OTDA to “inspect and maintain supervision over all public and private facilities or agencies whether [S]tate, county, municipal, incorporated or not incorporated which are in receipt of public funds,” which includes emergency shelters. SSL § 460-d confers enforcement powers upon the OTDA Commissioner, or any person designated by the OTDA Commissioner, to “undertake an investigation of the affairs and management of any facility subject to the inspection and supervision provision of this article, or of any person, corporation, society, association or organization which operates or holds itself out as being authorized to operate any such facility, or of the conduct of any officers or employers of any such facility.”
Executive Law § 43(1) provides that "[w]henever the comptroller may deem it necessary to enable him to perform the duties imposed upon him by law with regard to the inspection, examination and audit of the fiscal affairs of the state or of the several officers, departments, institutions, public corporations or political subdivisions thereof, he may assign the work of such inspection, audit and examination to any examiner or examiners appointed by him pursuant to law.” The authority to "inspect, examine and audit" the fiscal affairs of political subdivisions would include investigating where and how funds administered by county agencies are spent.
General Municipal Law § 34 specifically provides that the comptroller has the authority to examine the financial affairs of every municipal corporation. Under General Municipal Law § 2, the term "municipal corporation" includes a county, a town, a city or a village.
State Finance Law § 109(4) provides that “[t]he comptroller shall not approve for payment any expenditure from any fund except upon audit of such vouchers or other documents as are necessary to insure that such payment is lawful and proper."
New York City Charter § 93 provides that the City comptroller has the power to “investigate all matters relating to or affecting the finances of the city, including without limitation the performance of contracts and the receipt and expenditure of city funds”; conduct “audits of entities under contract with the city as expeditiously as possible”; and “audit the operations and programs of city agencies to determine whether funds are being expended or utilized efficiently and economically and whether the desired goals, results or benefits of agency programs are being achieved.”
Section 7-4 of Article 7 of Chapter C of the Buffalo City Charter provides that the City comptroller has “the power to conduct financial and performance audits of all agencies and other entities a majority of whose members are appointed by city officials or that derive at least fifty percent of their revenue, including the provision of goods, services, facilities or utilities, from the city.” The City comptroller also has “the power to conduct performance audits of all bureaus, offices, departments, boards, commissions, activities, functions, programs, agencies and other entities or services of the city… to determine whether their activities and programs are: (i) conducted in compliance with applicable law and regulation; and (ii) conducted efficiently and effectively to accomplish their intended objectives.”
2. Legislative Objectives:
It is the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations, and policies to provide for the health, safety and general welfare of vulnerable families and individuals who are placed in emergency shelters.
3. Needs and Benefits:
In response to numerous problematic reports concerning the health and safety of public assistance recipients residing in New York City’s emergency shelters, OTDA has taken action to inspect these placements and to establish remedial protocols for SSDs so that these health and safety issues can be addressed immediately. The regulatory amendments provide clarification by defining “emergency shelter” to mean “any facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter to recipients of temporary housing assistance.” The regulatory amendments provide OTDA the authority when it has knowledge, or has been advised by an appropriate source, that there exists a violation of law, regulation, or code with respect to an emergency shelter which is dangerous, hazardous, or imminently detrimental to life or health, or otherwise renders the building not fit for human habitation, to take immediate emergency measures. Such emergency measures include, but are not limited to, one or more of the following: (1) issuing an order directing the facility to take immediate measures to rectify any deficiencies, violations, or conditions, requiring additional security, or directing the transfer of its residents to other temporary emergency housing; or (2) temporarily suspending the facility’s operating certificate or directing closure of the facility.
These regulatory amendments clarify that OTDA is authorized to conduct unannounced inspections at any hour without prior knowledge by or notification to the shelter, the operator, or the SSD. Interference with an inspection, refusal to allow admission, delay in allowing admission, or refusal to provide complete access to the facility will be deemed to be a violation and a basis upon which OTDA may take immediate enforcement action authorized under the SSL or any State regulation. The regulation also provides that State and local Comptrollers, in inspecting, auditing, or reviewing with respect to emergency shelters, shall inform OTDA of any violations of law, regulation, or code and provide recommendations as to enforcement actions.
Pursuant to public comments received, the regulatory amendments have also been revised to clarify that any order issued by OTDA temporarily suspending a facility’s operating certificate or directing closure of a facility pursuant to 18 NYCRR § 352.37(a)(2) shall be subject to the notice and expedited hearing process set forth in 18 NYCRR § 493.8.
These regulatory amendments are necessary to protect vulnerable, low-income individuals and families who have limited or no housing options and have placed their trust and well-being in a system that should help ensure that these persons have acceptable accommodations during their difficult times.
Additionally, these individuals and families are being placed in emergency shelters at great expense to the taxpayers of New York, who care about the needs of these people and want to help ensure that funds used to house these individuals and families provide safe, quality housing. It is important for OTDA and the SSDs to be fiscally prudent and to help ensure that State, federal and local funds are properly used when housing homeless individuals and families.
The regulatory amendments will allow OTDA full authority to take immediate emergency action against facilities and SSDs that are not providing emergency shelters that comport with prescribed standards.
4. Costs:
An additional 25 Center for Specialized Services staff members will be needed to implement these regulations. It is estimated that the cost to the State will be approximately $2,181,473, not including fringe benefits or indirect costs.
The regulatory amendments will have a minimal impact on emergency shelters that are currently in compliance with existing health and safety standards. The regulatory amendments are merely attempting to correct violations under existing health and safety standards. Therefore, the cost to local governments will depend on their abilities to comply with these standards.
5. Local Government Mandates:
Local governments will be responsible for ensuring that the emergency shelters operating within their localities are in compliance with existing health and safety standards. If they are not, the local governments will be required to identify and/or provide suitable alternative emergency shelters.
6. Paperwork:
No additional paperwork is anticipated.
7. Duplication:
The regulatory amendments would not duplicate, overlap, or conflict with any existing State or federal regulations.
8. Alternatives:
Inaction would continue to jeopardize the health and safety of these vulnerable individuals and families by allowing existing infractions and violations to continue unaddressed and by failing to prevent future infractions and violations. OTDA does not consider this a viable alternative to the regulatory amendments.
9. Federal Standards:
The regulatory amendments would not conflict with federal statutes, regulations or policies.
10. Compliance Schedule:
To protect the public health, safety and general welfare of emergency shelter residents, the regulation would be effective immediately on its filing date.
Revised Regulatory Flexibility Analysis
1. Effect of rule:
Pursuant to the State Administrative Procedure Act § 102(8), a “small business,” in part, is any business which is independently owned and operated and employs 100 or fewer individuals. This rule will apply to small businesses that provide emergency shelters. This rule will also apply to all 58 social services districts (SSDs) in the State.
2. Compliance requirement:
The regulatory amendments will have a minimal impact on emergency shelters that are currently in compliance with existing health and safety standards.
3. Professional services:
It is anticipated that the need for additional professional services will be limited. The regulatory amendments are not adding new health and safety standards to the State regulations; instead, they are requiring that emergency shelters comply with existing obligations to provide safe housing in accordance with health and safety standards.
4. Compliance costs:
For local governments, the impact of the regulatory amendments will be insignificant as long as they are in compliance with existing health and safety standards. The regulatory amendments are merely attempting to correct violations under existing health and safety standards.
5. Economic and technological feasibility:
Emergency shelters and SSDs should already have the economic and technological abilities to comply with existing standards.
6. Minimizing adverse impact:
The regulatory amendments attempt to minimize any adverse economic impact on emergency shelters and SSDs by implementing existing standards. The regulations should not provide exemptions, because this would not serve the purposes of ensuring the health and safety of all emergency shelter residents and protecting these vulnerable residents from dangerous conditions.
7. Small business and local government participation:
It is anticipated that small businesses and SSDs will be dedicated to implementing the regulatory amendments and protecting the health, safety, and general welfare of residents of emergency shelters.
8. For rules that either establish or modify a violation or penalties associated with a violation:
Pursuant to public comments received, the regulatory amendments have been revised to clarify that that any order issued by OTDA temporarily suspending a facility’s operating certificate or directing closure of a facility pursuant to 18 NYCRR § 352.37(a)(2) shall be subject to the notice and expedited hearing process set forth in 18 NYCRR § 493.8. Certain other orders are not subject to 18 NYCRR § 493.8 because the dangerous, hazardous conditions targeted by the regulatory amendments are imminently detrimental to the health, safety, and general welfare of emergency shelter residents.
Revised Rural Area Flexibility Analysis
The Office of Temporary and Disability Assistance has determined that the changes made to the last published rule do not necessitate revision of the previously published RAFA for the regulatory amendments. The changes will not impose a substantial adverse impact or any reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.
Revised Job Impact Statement
The Office of Temporary and Disability Assistance has determined that the changes made to the last published rule do not necessitate revision to the previously published JIS for the regulatory amendments. There continues to be no adverse impact on jobs and employment opportunities in either the public or private sectors in New York State as a result of the regulatory amendments.
Assessment of Public Comment
The Office of Temporary and Disability Assistance (OTDA) received comments from one social services district relative to the emergency regulation. These comments have been reviewed and duly considered in this Assessment of Public Comments.
One comment requested that the emergency regulation provide for procedural protections consistent with the particular provision(s) of the Social Services Law (SSL) from which OTDA derives its authority to take any particular action. OTDA has revised the emergency regulatory text to provide that any order issued by OTDA temporarily suspending a facility’s operating certificate or directing closure of a facility shall be subject to the expedited hearing process set forth in 18 NYCRR § 493.8.
One comment requested that the emergency regulation clarify that OTDA may impose emergency measures related to only those facilities or providers found to have failed to comply with applicable requirements. OTDA agrees with this comment, and has modified the emergency regulatory text to clarify that emergency measures can be taken against offending facilities or operators.
One comment requested that the emergency regulation clarify that State and local Comptrollers are only empowered to take investigation actions. OTDA has added clarifying language to the emergency regulation.
One comment requested that the emergency regulation clarify that any enforcement action would be taken in accordance with OTDA’s existing authority under the SSL. OTDA has added language to the emergency regulation clarifying that enforcement action would be taken in accordance with OTDA’s existing authority under the SSL or any State regulation.
One comment requested that OTDA revise the emergency regulation to remove the provision conferring authority upon OTDA to direct a social services district (SSD) to terminate its contract with an operator. OTDA agrees with the comment and has removed the provision.
One comment requested that OTDA revise the emergency regulation such that the language of the rule describing the conditions that trigger its application should “more closely hew” to the statutory language of the particular provision(s) of the SSL from which OTDA derives its authority to take each enforcement action. OTDA is not adopting this comment because OTDA derives its authority to promulgate the emergency regulation from multiple State statutes and regulations.
One comment requested OTDA to expand the New York City Human Resources Administrations Family Eviction Prevention Supplement (FEPS) eligibility to include domestic violence survivors and increase the FEPS subsidy amount to the HUD Fair Market Rent amount. This comment is beyond the scope of this Assessment of Public Comments, insofar as it does not specifically pertain to the emergency regulation. It is not the purpose of the emergency regulation to reconsider or otherwise amend the provisions regarding FEPS policy in New York State; rather, the purpose of the emergency regulation is to establish protections for residents of emergency shelters by clarifying OTDA’s statutory authority to take immediate emergency measures to address emergency shelters determined to be dangerous, hazardous, or imminently detrimental to the health, safety, and general welfare of emergency shelter residents. Consequently, comments proposing policy changes which fall outside the scope of the emergency regulation are not appropriately addressed in this Assessment of Public Comments.
One comment requested that OTDA develop a system of joint inspection with any SSD that operates or oversees any emergency shelter, with respect to inspection of such SSD’s emergency shelters. This comment is beyond the scope of this Assessment of Public Comments, insofar as it does not specifically pertain to the emergency regulation. Consequently, comments falling outside the scope of the emergency regulation are not appropriately addressed in this Assessment of Public Comments.
