Home » 2015 Issues » June 17, 2015 » CFS-11-15-00011-A Implementation of the Federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183)
CFS-11-15-00011-A Implementation of the Federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183)
6/17/15 N.Y. St. Reg. CFS-11-15-00011-A
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 24
June 17, 2015
RULE MAKING ACTIVITIES
OFFICE OF CHILDREN AND FAMILY SERVICES
NOTICE OF ADOPTION
I.D No. CFS-11-15-00011-A
Filing No. 449
Filing Date. Jun. 02, 2015
Effective Date. Sept. 01, 2015
Implementation of the Federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183)
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 441.25; and amendment of sections 428.3, 428.5, 428.6, 428.9, 430.11, 430.12, 431.8, 443.2 and 443.3 of Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20(3)(d) and 34(3)(f); and L. 1997, ch. 436
Subject:
Implementation of the federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183).
Purpose:
Implementation of the federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183).
Substance of final rule:
The additions of 18 NYCRR 428.3(i) and 428.6(d) and the amendment to 18 NYCRR 430.12(c)(2)(i)(a) require that the Family Assessment and Service Plan be developed in consultation with a child in foster care who is 14 years of age or older, and at the option of the child, with up to two members of the “case planning team” who are chosen by the child and who are neither the child’s foster parent(s), case manager, case planner nor caseworker. The agency with case management responsibility would have the ability to reject an individual selected by the child to be on the case planning team if there is good cause to believe that the individual would not act in the child’s best interests. One individual selected by the child could be designated as the child’s advisor and could advocate with respect to the application of reasonable and prudent parenting.
The amendments to 18 NYCRR 428.5(c) and 428.9(c) address the P.L. 113-183 requirements to what the agency must document for submission at each permanency hearing where APPLA is the requested permanency planning goal. This includes a demonstration of intensive, ongoing and unsuccessful efforts to secure an alternative permanency plan to APPLA.
The amendment to 18 NYCRR 428.6(c) requires that a case plan for a child in foster care who is 14 years or older include a document that describes the rights of the child concerning such matters as education, documents and the “right to stay safe and avoid exploitation”. In addition, the case plan must contain an acknowledgment executed by the child that the child was provided with a copy of the rights and that the rights were explained to the child. Also for a child in foster care who has attained 14 years of age, the case plan must include a written description of the programs and services which will help the child prepare for the transition from foster care to successful adulthood.
The amendment to 18 NYCRR 428.9(b)(1) requires that each child in foster care 14 years of age or older be a participant in their case consultation, as well as the two members of the case planning team that were chosen by the child, if applicable.
The amendment to 18 NYCRR 430.11(c)(4) expands the relative identification and notification requirements involving a child removed from home to include all parents of a sibling of the child where such parent has legal custody of such sibling.
The amendments to 18 NYCRR 430.12(c)(2)(i)(d) address the requirement that the child’s service plan address the steps taken by the authorized agency to see that the child’s foster parents or child care facility are following the reasonable and prudent parent standard and to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities, including consulting with the child.
The amendment of 18 NYCRR 430.12(f)(1)(i) raises the age for establishing the permanency goal of another planned living arrangement ( APPLA) from 14 to 16 years of age.
The amendment to 18 NYCRR 430.12(k) changes the age at which the child receives a copy of any consumer report on them from ages 16 and over to ages 14 and over. The child must continue to receive these reports until the child is discharged from foster care.
The amendment to 18 NYCRR 430.12(1) adds additional documents to the medical and educational records that children in foster care are required to receive when they are discharged from foster care. The regulation applies to children who have been in foster care for six or more months and who are leaving foster care by reason of attaining the age of 18 years or older. Agencies are required to provide each youth exiting foster care at age 18 or older with an official or certified copy of their United States birth certificate, social security card, medical records, health insurance information and state issued ID card (or driver’s license), if eligible to receive such documentation.
The amendments to 18 NYCRR 431.8(b)(3) and 431.8(h) address protocols for locating and responding to children who run away from foster care; including determining and documenting in the child’s case record the primary reasons that contributed to the child running away or otherwise being absent without consent, and responding to those factors in the child’s current and subsequent foster care placements. Upon return to care, the child will also have to be screened for sex trafficking as defined in Federal law. In addition, the regulations implement the requirement that agencies report the absence immediately, and in no case later than 24 hours after receiving information on missing or abducted children or youth, to the law enforcement authorities for entry in to the National Crime Information Center (NCIC) database of the Federal Bureau of Investigation, and to the National Center for Missing and Exploited Children (NMEC). This standard applies to all children in foster care and to children for whom the social services district has an open services case or supervisory responsibility, which includes children who have not been removed from their home.
The amendment to 18 NYCRR 431.8 (3)(iii) implements the requirement that an agency who receives information that a child in foster care or whom the social services district has an open services case or supervisory responsibility of, has been identified as a sex trafficking victim, as defined by applicable federal law, must immediately and in no case later than 24 hours after receiving the information report the child to law enforcement.
The addition of 18 NYCRR 441.25 addresses the new reasonable and prudent parent standard requirements that must be applied by foster parents and child care facility staff. They include the knowledge and skills relating to the reasonable and prudent parent standard for the participation of the foster child in age or developmentally appropriate activities. The regulation requires that each child care facility have on-site presence of at least one person who is designated to be the caregiver authorized to apply the reasonable and prudent standard to decisions involving the foster child’s participation in these activities.
The amendment to 18 NYCRR 443.2(e) (1) reflects the training requirement of the reasonable and prudent parent standard for foster parents. The training must include knowledge and skills relating to the child’s developmental stages of cognitive, emotional, physical and behavioral capabilities and the skills relating to decision making.
The amendment to 18 NYCRR 443.3(b)(1) adds to the agreement a foster parent must execute to include the foster parent will apply the reasonable and prudent parent standard referenced in the new 18 NYCRR 441.25.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 428.5, 428.6 and 431.8.
Text of rule and any required statements and analyses may be obtained from:
Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, (518) 473-7793, email: info@ocfs.ny.gov
Revised 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.
2. Legislative objectives:
The regulations implement Federal statutory changes to Title IV-E of the Social Security Act (SSA) due to the enactment of the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183) on September 29, 2014. The Act’s intent is to prevent child sex trafficking and to improve the lives of youth in foster care. In addition to adding requirements regarding the identification, documentation, and response to child sex trafficking victims, or those at risk of becoming victims, within the child welfare system, this law affects many different areas of child welfare; including empowering children age 14 and older in the development of their own case plan and transition plan for a successful adulthood, encouraging the placement of children in foster care with siblings, improving another planned permanent living arrangement as a permanency option locating and responding to children who run away from foster care, and supporting normalcy for children in foster care and congregate care.
OCFS is the single state agency responsible for the administration of the Title IV-E foster care, adoption assistance and kinship guardianship assistance programs in New York, along with local departments of social services. The Act’s amendments to Title IV-E of the SSA require amendments to New York’s Title IV-E State Plan. OCFS is responsible for the preparation and submission of Title IV-E State Plan amendments.
3. Needs and benefits:
The regulations implement P.L. 113-183 by making conforming changes to New York State regulations. The amendments are necessary for New York to continue to have a compliant Title IV-E State Plan which is a condition for New York to receive federal funding for foster care, adoption assistance and the administration of those programs. New York State through an amendment to its Title IV-E State Plan will have to demonstrate to the federal Department of Health and Human Services that it has implemented the various provisions of the Act by the effective date of the individual provisions. The provisions addressed by the regulations must be in effect by September 29, 2015 in order for New York to continue to have a compliant Title IV-E State Plan. The regulations will take effect on September 1, 2015 to correspond to the effective date of statutory changes to the Family Court Act enacted by Part L of Chapter 56 of the Laws of 2015 that implemented several requirements of the Act.
The regulations will enhance permanency of children in foster care by expanding the involvement of the children in permanency planning and in the preparation for final discharge.
4. Costs:
Approximately $571 million of Title IV-E funding is at risk if New York State fails to comply with the new requirements of the federal Preventing Sex Trafficking and Strengthening Families Act.
An estimated State operation cost of approximately $1.6 million in personal and non-personal services is anticipated for the implementation of the regulations to comply with the federal Act. This estimate covers the cost of:
• Modifications to CONNECTIONS, Data Warehouse Database, and the Juvenile Justice Information System (JJIS).
• Additional personnel for the Bureau of Research, and Bureau of Policy Analysis needed to implement the necessary changes including mandated federal reporting requirements.
• Modifying existing training materials and the creation of new training tools and modules.
An estimated $5.6 million in statewide expenditures could be realized by the local departments of social services to implement the requirements of the Preventing Sex Trafficking and Strengthening Families Act. This includes, but is not limited to:
• Additional data entry needs due to federally mandated reporting requirements.
• Providing consumer reports to youth in foster care, age 14 and 15, and resolving any inaccuracies in the reports.
• Providing youth age 18 years and older, who are being discharged to their own care and who have been in foster care for at least six months, with either a driver’s license or non-driver’s identification card; and
• The cost associated with the implementation of reasonable and prudent parent standard due to the increase in activity participation by children and youth in foster care.
The costs identified for local departments of social services would be supported out of the Foster Care Block Grant.
5. Local government mandates:
As mandated by federal law, the regulations impose additional mandates on social services districts. The regulations expand the content of the training of certified and approved foster parents on how to apply the reasonable and prudent parent standard to decisions involving the child’s participation in age or developmentally appropriate activities. The regulations expand current standards relating to children in foster care who are absent from their placement without permission. The social services district or voluntary authorized agency will be required to complete a screening of the child upon return to determine if the child is a possible sex trafficking victim. In addition, social services districts or voluntary authorized agencies will be required to notify law enforcement authorities immediately, and in no case later than 24 hours of receiving information that a child in the placement, care or supervision of the social services district is missing, and/or identified as being a sex trafficking victim, as defined by applicable federal law. Children who are missing must be entered by law enforcement into the National Crime Information Center database of the Federal Bureau of Investigation and the social services district or voluntary authorized agency must make a report to the National Center for Missing and Exploited Children.
Within 30 days of the removal of a child from his or her home, the social services district will be expressly required to notify all parents of a sibling of the child where such parent has legal custody of such sibling. When a child, 16 or older, has a permanency goal of APPLA the agency with case planning responsibility will be required to demonstrate the intensive, ongoing and unsuccessful efforts to secure an alternative permanency plan. The child’s permanency plan will have to address the steps taken by the agency to see that the child’s foster parents or child care facility are following the reasonable and prudent parent standard and to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities. In addition, the agency will be required to provide to any child in foster care who is 14 years of age or older a document that describes the rights of the child concerning such matters as education, documents and the “right to stay safe and avoid exploitation”, and document receipt of such list in the child’s case record. Also, for a child in foster care who has attained 14 years of age, the case plan must include a written description of the programs and services which will help the child prepare for the transition from foster care to successful adulthood. Social services districts will be required to provide all children in foster care upon attaining the age of 14 with a copy of any consumer reports on them and continue to provide them until the child is discharged from foster care. When a youth who has been in foster care for six or more months and exits foster care because of attaining age 18 or older, the agency will be required to provide the youth with an official or certified copy of their United State birth certificate, social security card, Medical records, health insurance information and state issued ID card (or driver’s license), if the child is eligible to receive such documents.
6. Paperwork:
The requirements imposed by the regulations will be recorded in CONNECTIONS.
7. Duplication:
The regulations do not duplicate other state or federal requirements.
8. Alternatives:
No alternative approaches to implementing the changes to regulation were considered. These amendments are adopted to implement the Federal law P.L. 113-183.
9. Federal standards:
The regulations comply with applicable federal standards. Implementation is required for New York to maintain compliance with federal Title IV-E standards. Failure to do so would jeopardize continued receipt of federal funding for foster care, adoption assistance and kinship guardianship assistance.
10. Compliance schedule:
Compliance with the regulations must begin effective September 1, 2015.
Revised Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
Changes made to the last published rule do not necessitate revisions to the previously published regulatory flexibility analysis, rural area flexibility analysis and job impact statement.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The Office of Children and Family Services (OCFS) received comments from the organization representing child caring agencies in New York State, two voluntary authorized agencies, a provider of services to trafficked youth and families and the New York City Administration for Children’s Services. Comments are organized by category and addressed accordingly.
A. Bill of Rights [18 NYCRR 428.6(c)]
A question was asked whether OCFS will be issuing a new document or an addition to the bill of rights from the 2014 Information letter issued by OCFS to comply with the requirements of the federal Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183).
OCFS will be issuing a new policy release on this subject. The regulation was not changed.
A question was asked whether OCFS will issue a more age-appropriate version of the bill of rights for staff to be able to use with younger children or those who would struggle to read or understand the document as it is currently written.
OCFS will consider this comment in regard to its future policy release. The regulation was not changed.
A comment was made that OCFS should develop a parallel Bill of Responsibilities for older youth.
OCFS will review the recommendation. The regulation was not changed.
B. Children Absent without Consent [18 NYCRR 431.8]
A comment was made that OCFS should provide clearer language and definition of “absent without consent” because AWOL can be misleading and perhaps inappropriate. A suggestion was also made that OCFS provide further guidance to staff who will need to determine and document the primary factors that contributed towards a child running away or being absent without consent.
OCFS will provide the recommended guidance in a future policy release. The regulation was not changed.
A comment was made that the timeframes regarding when information must be reported should be clarified and consistent for all categories of youth.
OCFS will make a clarification to the regulation to apply the same standard in the proposed regulation for sex trafficked youth to all of the categories of youth referenced in the regulation. The revision will not expand the time period for which notification must be made.
A request for clarification was made on whether the agency should report the child to law enforcement as though reporting a complaint, or whether they are supposed to report knowledge of a missing child’s status as a trafficking victim as additional information to law enforcement.
OCFS will review the request in regard to future policy releases. The regulation reflects the standards set forth in the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). The regulation was not changed.
A comment was made that voluntary authorized agencies should be able to exercise sound judgment, based on presenting information to determine when it is appropriate to report the absence of a child from foster care to the National Center for Missing and Exploited Children.
OCFS will address this comment in a future policy release. The regulation reflects the standards set forth in the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). The regulation was not changed.
A comment was made that staff of agencies should be provided with further guidance on determining and documenting the primary factors as to why a foster child is absent without consent.
OCFS will consider this comment in regard to future policy releases. The regulation was not changed.
A question was asked whether voluntary authorized agencies will be provided with an appropriate screening tool to determine whether the child was a sex trafficking victim.
OCFS will address this issue in a future policy release. The regulation was not changed.
A comment was made that voluntary authorized agencies will need more guidance in terms of reporting requirements and will need to understand the liability they will be exposed to around identifying and treating victims of sex trafficking.
OCFS will address this comment in a future policy release. The regulation was not changed.
C. The Reasonable and Prudent Parenting Standard [18 NYCRR 428.5, 441.25, 443.2 and 443.3]
A comment was made that the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183) addresses the issue of liability for caregivers when a child participates in an approved activity and the caregiver approving the activity acts in accordance with the reasonable and prudent parent standard and that the proposed regulations did not address the subject.
OCFS will address the subject of liability in future policy releases. OCFS is waiting for guidance from the federal Department of Health and Human Services on this subject and once it received, OCFS will pass on such guidance. The regulations were not changed.
A question was asked whether caregivers are required or recommended to document the decision-making process that goes into applying the reasonable and prudent parenting standard and how caregivers will be protected against various liability concerns inherent in applying the standard.
OCFS will address this question in a future policy release. The regulations were not changed.
A comment was made that additional language should be added regarding “normalcy” and what that looks like in practice. In addition, it was commented that clarity is needed on the applicability of the reasonable and prudent parent standard because it only tends to be referenced when the goal is another planned permanent living arrangement (APPLA).
OCFS will address this comment in a future policy release. The regulations were not changed.
A comment was made that in order to make the reasonable and prudent parent standard a reality, it will need to be incorporated into the home finding certification process.
This issue will be addressed through training. The regulations were not changed.
A comment was made that foster care agencies will need some funding for training direct care/residential staff, as well as case planners and foster parents, unless the social services district will be offering the requisite training to its contractors.
Training will be addressed in the implementation of the provisions of the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). The regulations were not changed.
A comment was made that that foster parents, designated facility caregivers, and agency staff will need more clarity around what is “age or developmentally appropriate” for children and youth and recommend listing examples of activities for each age group, starting with the kinds of activities that inspired legislative change.
OCFS will address this comment in a future policy release. The regulations were not changed.
D. Case Planning/Service Plan Review [18 NYCRR 428.6(c) and 428.9]
A comment was made that the new standards in proposed 18 NYCRR 428.3(i) should be repeated in 18 NYCRR 428.6, and that the standards should be revised to authorize the foster child’s case planner to also be able to reject an individual selected by the child to be part of the child’s case planning team.
OCFS will repeat the language of 18 NYCRR 428.3(i) in 18 NYCRR 428.6(c). OCFS will not make the other recommended change that the case planner be authorized to reject the individual selected by the foster child because such a change would not conform to the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). However, OCFS will address the ability of the case planner to provide input to the case manager in the selection process in a future policy release.
A comment was made that in the proposed 18 NYCRR 428.6(c) there was a misspelled word.
The misspelling was corrected.
A comment was made that additional amendments should be made to 18 NYCRR 428.9 regarding participation at case consultations.
OCFS will address the issue in a future policy release. The regulation was not changed.
E. Another Planned Permanent Living Arrangement (APPLA) [18 NYCRR 428.5(c), 428.9(c), 430.12(c) and 430.12(f)]
A comment was made that the word “facility” in 18 NYCRR 428.5(c)(13)(ii) should be changed to “designated official for a child care facility”.
OCFS cannot make the requested change because of the mandates of the Preventing Sex Trafficking and Strengthening Families Act (PL 113-183), but will make a minor grammatical correction to this section of the regulation.
The comment was made that the word “ensure” in 18 NYCRR 430.12(c) was too strong of a word to use in regard to evaluating the reasonable and prudent parent standard provided for the child.
The proposed regulation reflects the required federal standard set forth in the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). The regulation was not changed.
A comment was made that youth need to be protected – especially when adults may have conflicting viewpoints about permanency.
OCFS will consider this comment when developing future policy releases. The regulations were not changed.
F. Required documentation [18 NYCRR 430.12(l)]
A comment was made that guidance should be provided on what is expected in circumstances where the youth refuses to consent to remain in care before such documents become available.
OCFS will address this issue in a future policy release. The regulation was not changed.
G. Training and Placement Information [18 NYCRR 441.25 and 443.2(e)]
A comment was made recommending that a new regulation under 18 NYCRR Part 441 be added to address children in congregate foster care settings in addition to the proposed 18 NYCRR 441.25, including the training for the “designated official” who will be making the same type of decisions.
The issue of children in congregate foster care settings is adequately addressed in proposed 18 NYCRR 441.25. Training issues will be dealt with by implementation of the provisions of the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). The regulations were not changed.
A comment was made that the work of identifying family members should begin immediately with the social services district and not be left entirely for contract agencies.
This is a contracting issue that voluntary authorized agencies should address with their social services districts. The regulations were not changed.
A comment was made that voluntary authorized agencies have received no targeted training to help staff identify and work with victims of trafficking, so training is necessary.
Training will be addressed as part of the implementation of the provisions of the Preventing Sex Trafficking and Strengthening Families Act (P.L. 113-183). The regulations were not changed.
