CJS-49-10-00004-A Preliminary Procedure for Article 3 Juvenile Delinquency Intake; Intake

6/22/11 N.Y. St. Reg. CJS-49-10-00004-A

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 25

June 22, 2011

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

NOTICE OF ADOPTION

 

I.D No. CJS-49-10-00004-A

Filing No. 508

Filing Date. Jun. 07, 2011

Effective Date. Sept. 01, 2011

Preliminary Procedure for Article 3 Juvenile Delinquency Intake; Intake

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

Action taken:

Addition of new Part 356; and amendment of Part 354 of Title 9 NYCRR.

Statutory authority:

Executive Law, section 243(1)

Subject:

Preliminary Procedure for Article 3 Juvenile Delinquency Intake; Intake.

Purpose:

Establishes new procedures for Article 3 Juvenile Delinquency Intake to promote consistent application of law and best practices.

Substance of final rule:

Pursuant to Chapter 56 of the Laws of 2010, the Division of Probation and Correctional Alternatives (DPCA) was renamed the Office of Probation and Correctional Alternatives (OPCA) and was merged with the Division of Criminal Justice Services (DCJS). All DPCA rules and regulations were transferred to DCJS and are to continue in full force and effect until duly modified or abrogated by the Commissioner of DCJS. These regulatory amendments would delete past references as to Article 3 cases in Part 354 and add a new Part 356 so that there will be one rule related to Juvenile Delinquency (JD) Intake services. The new Part 356 was developed by an OPCA working committee comprised of OPCA staff and local probation department representation across the state of all Council of Probation Administrators (COPA) regions, and including all levels of probation staff, including director, deputy director, supervisor, senior probation officer, and probation officer. The existing regulations regarding JD intake provisions were last amended in 1982. In drafting new rule language, the committee’s primary objectives have been to: 1) reflect best practice as it has evolved over the past 20 years; 2) incorporate evidence-based practice that has come to the forefront of probation practices in recent years; and 3) integrate statute and best probation practice into a single document organized according to the flow of cases through preliminary procedure similar to what OPCA adopted in 2008 with respect to probation intake services surrounding Persons In Need of Supervision (PINS). In this way, both populations of youth will benefit from state of the art probation services and increase effective diversion of such youth from Family Court.

Section 356.1 Definitions.

These regulatory amendments define numerous terms not previously defined under the old JD Intake rule. Some of these terms have come into widespread use in probation practice over the past 20 years, others are anchored in the 2008 OPCA PINS Intake Rule revision, and others originate from evidence-based practice. To improve the system’s ability to communicate about and distinguish among different types of services, the new Part 356 rule contains new definitions for intervention service, accountability measure, and control measure. Other new definitions have been developed for: actuarial risk, case plan, conference, evidence-based practice, potential respondent, referred for petition, risk assessment, and successfully adjusted.

Section 356.2 Objective.

This section has been strengthened to encourage successful adjustment of alleged JD youth and for probation services to be more reflective of evidence-based practices.

Section 356.3 and 356.4 Applicability and Jurisdiction.

These rule sections reaffirm all probation departments’ statutory duty to provide JD intake services and provide guidance regarding cases where the child lives in one county but the JD act occurred in a different county, and provides a mechanism in such instances in order to address provision of services for moderate and high risk youth by ensuring access to such services in the county of residence.

Section 356.5 General Requirements for JD Preliminary Procedure.

This rule section reinforces the importance and necessity of establishing, maintaining, and disseminating written policies and procedures for the uniform provision of preliminary procedure services for JD matters and addressing particular areas. It further refers to key statutory and Uniform Rules for the Family Court requirements regarding eligibility, suitability and parameters relative to timeframes to promote probation compliance. Additional provisions relate to screening and assessment for diversion, investigation, and supervision purposes utilizing validated actuarial tools approved by the Commissioner of DCJS and is consistent with OPCA’s aforementioned recently adopted PINS Intake Rule.

Section 356.6 Probation Intake.

This rule section refers to eligibility and exclusionary criteria and establishes minimum suitability criteria. It further clarifies that the Family Court Act allows probation to provide JD intake services to eligible and suitable youth in pre-petition detention.

Section 356.7 Adjustment Services.

This rule section identifies minimum salient provisions with respect to adjustment services based in large part upon best practices and reaffirms a key statutory requirement that the inability to make restitution cannot be a factor in determining eligibility of services.

Section 356.8 Assessment, Case Planning, and Reassessment.

This rule section sets forth key provisions with respect to assessment, case planning, and reassessment. It requires an initial case plan to be developed within 30 calendar days of case initiation, and periodic reassessments during the adjustment period, including at case closure. Case plans must be based initially on assessment results, updated periodically in accordance with reassessment results, and focus on the priority areas for intervention to resolve the presenting problem. Further, these amendments require that referrals for service incorporate the results of the actuarial risk assessment to target the specific underlying dynamic risk factors related to the JD complaint. They also clarify that in addition to intervention services, accountability and control measures may be applied as part of adjustment services and that electronic monitoring may be used only with director consent and upon specific court order.

Similar to OPCA’s PINS Intake Rule, this section emphasizes the importance for actuarial risk screening at intake in order to triage cases, and consideration for prompt termination of adjustment efforts with minimal probation intervention services where youth present as low risk for re-offending. Consistent with the actuarial screening and triage functions at intake, the rule language requires as part of adjustment services a full assessment of all youth who are at moderate or high risk for continued JD behavior, and directs that adjustment services be prioritized to higher risk youth.

Section 356.9 Referral To Presentment Agency.

This rule section in general delineates statutory responsibilities with respect to probation referral to presentment agencies when adjustment services are not appropriate or successful in order to promote compliance. Additionally, it reinforces the option that probation can recommend a referral back to probation for adjustment services in appropriate cases. This clarification will allow greater prosecutorial and judicial consideration of adjustment services for suitable cases.

Section 356.10 Return From Court.

This rule section outlines particular probation duties with respect to cases returned from the court for adjustment services.

Sections 356.11 and 356.12 Case Closing Requirements, and Case Recordkeeping Requirements.

These rule sections clarify the three case closing options with respect to JD adjustment services and situations where probation may discontinue the adjustment process, and, in the interest of consistency, outlines case recordkeeping requirements based in large part on OPCA’s PINS Intake Rule. However, it does reflect specific case recordkeeping distinctions for excluded or sealed cases.

Part 354.

Necessary amendments have been made to Part 354 to delete reference to Article 3 cases or JD language since there is now one new proposed rule (Part 356) governing these matters. Other minor technical amendments are further made as necessitated by removal of such language.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 356.1(i), 356.5(l), 356.6(c)(2), (d)(2), (e)(3), 356.8(a)(2), 356.9, 356.11 and 356.12(d).

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

Linda J. Valenti, NYS Division of Criminal Justice Services, 4 Tower Place - 3rd Floor, Albany, New York 12203, [phone], email: [e-mail]

Revised Regulatory Impact Statement

1. Statutory authority:

Pursuant to Chapter 56 of the Laws of 2010, the former Division of Probation and Correctional Alternatives (DPCA) was merged within the Division of Criminal Justice Services (DCJS) and is now the Office of Probation and Correctional Alternatives (OPCA); hereinafter, all reference will be to OPCA. Section 8 of Part A of this Chapter specifically transferred all rules and regulations of OPCA to DCJS and provided that such shall continue in full force and effect until duly modified or abrogated by the Commissioner of DCJS. Additionally, section 17 of Part A of this Chapter amended Executive Law § 243(1) to make conforming changes and establish in pertinent part that the Commissioner of DCJS has authority to adopt “general rules which shall regulate methods and procedure in the administration of probation services, including investigation of … children prior to adjudication, supervision, casework, recordkeeping…program planning and research so as to secure the most effective application of the probation system and the most effective enforcement of the probation laws throughout the state.” Such rules are binding with the force and effect of law. Further, Article 12-A of such law, specifically section 256(1) and (6)(a), requires probation agencies to perform intake services pursuant to law.

2. Legislative objectives:

These regulatory amendments are consistent with legislative intent regarding critical probation functions and the promotion of professional standards which govern administration and delivery of probation services in the area of intake (preliminary procedure) for family court involving any alleged Juvenile Delinquent (JD) matter. The overarching goal of these amendments is to reduce unnecessary and costly reliance on detention and residential placement with local commissioners of departments of social services or the Office of Children and Family Services (OCFS). By vesting the Commissioner of DCJS with rule-making authority, the Legislature authorized DCJS to set minimum standards in this area.

These amendments are necessary to: 1) recognize good probation practice in the area of preliminary probation procedures involving youth; 2) incorporate contemporary evidence-based (research-supported) practice principles for effective interventions; 3) ensure consistent statewide application of such key intervention strategies to any youth regardless of receiving JD or Persons in Need of Supervision (PINS) intake services.

3. Needs and benefits:

In accordance with Family Court Act (FCA) article 3, probation is responsible for conducting JD preliminary procedures. OPCA has always had rules and regulations governing JD intake; however, there have not been significant revisions since statutory laws in this area have remained the same. However, as practice has nationally evolved in this area with emphasis on evidence-based principles, regulatory amendments are appropriate at this time.

The amendments clarify JD eligibility requirements, exclusionary and suitability criteria pursuant to FCA article 3. They promote consistent application of statutory requirements through statewide standardization of terms by eliminating obsolete terminology, updating, and adding definitions that: 1) reflect model probation practices, including evidence-based (research-supported) practices; and are 2) consistent with the OPCA's recently adopted PINS Intake rule, specifically Part 357.

To promote consistent application of law and best practices, these amendments address issues and confusion related to applicability, jurisdiction, and legal concerns. For example, where JD behavior occurs in a county other than where the youth resides, a mechanism is provided to ensure access to needed services in the county of residence. In keeping with the aforementioned PINS Intake rule, it is clarified that electronic monitoring may be used only as part of adjustment services where there is director consent and a specific court order.

Consistent with good practice and/or certain legal provisions, these amendments reaffirm probation's need to notify the court of the status at case closing for cases returned from court for adjustment services. The amendments specify documents and other information to be included in case records and provided to the court to satisfy legal filing requirements.

Model probation practices have been incorporated. While some are prescriptive, there is flexibility for jurisdictions to develop policies and procedures that meet local needs and resources. These amendments incorporate nationally recognized evidence-based practice principles demonstrated in research to reduce risk of recidivism (continuing in a JD pattern of behavior), by addressing needs underlying the JD behaviors. These principles include actuarial risk and needs screening and assessment; prompt termination of adjustment efforts with minimal intervention services where youth present as low risk for continuing in JD behaviors; and full assessments for all JD youth at moderate or high risk for continued JD behavior. Adjustment services are to be prioritized for moderate and high risk youth, with a focus on addressing youth criminogenic needs in the community to reduce costly detention and placement outside the home and improve long term outcomes for youth and their families.

4. Costs:

DCJS believes more effective JD adjustment services can reduce long-term state and local governmental costs for youth at risk of continued involvement with the juvenile justice or criminal justice system. We anticipate no additional costs in adhering to these amendments beyond what is currently required in law and regulation. Rather, initial triage at intake and sharing resources, wherever appropriate and feasible, with other agencies and services providers is designed to produce cost savings in the short-term, as well as generate longer-term savings by increasing youth capacity to lead productive, law-abiding lives.

Further, DCJS has made available, at no cost to jurisdictions, the Youth Assessment and Screening Instrument (YASI) tools and software for youth intake, investigation and supervision services. Fifty-seven counties currently use YASI. Consistent application and sharing of screening, assessment, and case planning protocols and results will further add savings by avoiding duplication of efforts within and across probation departments.

As part of the State's efforts to streamline recordkeeping, avoid duplication, and achieve cost savings, OPCA supported the deployment of web-based case management software, known as Caseload Explorer. Currently, 37 departments participate, four additional departments are in the process of implementation, and it is anticipated that several other departments will participate in the near future. As of March 31, 2010, 17 other probation departments use similar software to achieve record-keeping cost efficiencies.

As to any anticipated in-service costs of educating staff, DCJS believes orientation can be readily accomplished through memoranda and supervisory oversight without incurring any direct costs. Any minimal costs are outweighed by significant benefits of meeting the intent of current law and regulatory provisions to serve the best interests of JD youth and their families, and in turn, will reduce monetary costs associated with court processing, detention, and placement.

5. Local government mandates:

OPCA always had agency rules governing JD preliminary procedure, and therefore DCJS does not anticipate that these new requirements will be burdensome. While this regulatory reform requires specific attention to key areas, establishing provisions for effective preliminary procedure consistent with traditional and emerging probation practices, it also provides flexibility and recognizes differences among jurisdictional policies and resources. DCJS requires actuarial risk and needs assessments along with case planning tools and protocols approved by the Commissioner. DCJS has made YASI software available to all jurisdictions free of charge. As the state oversight agency, and consistent with our supervision rule classification process (9 NYCRR section 351.3), our approval of any assessment tool is appropriate.

6. Paperwork:

The State has provided leadership in the development and deployment of Caseload Explorer case management software which is streamlining paper requirements by avoiding duplication of efforts. The status of such implementation and of similar software being utilized is earlier noted.

7. Duplication:

These amendments do not duplicate any State or Federal law or regulation. They clarify and reinforce certain laws regarding provision of preliminary procedure for youth engaged in JD behaviors.

8. Alternatives:

These amendments integrate law, research, and model probation practices to establish specific minimum standards for probation's provision of adjustment services to JD youth and their families. Strengthening and supporting consistent application of preliminary procedures is essential to ensure effective adjustment of youth, wherever appropriate, and diversion from the Family Court. By addressing youth needs within the context of their families and communities, the State and local government can realize savings in detention, placement, legal and social costs. Accordingly, it is not a viable alternative to have a seriously outdated probation rule in this area, or no rule, governing preliminary procedure for the JD population.

In the preparation and drafting of the proposed amendments, OPCA was diligent in engaging probation professionals from around the state: 1) In July 2007, OPCA constituted the aforementioned JD rule working committee with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions; 2) In February 2009, OPCA circulated a refined draft to all probation directors/commissioners; 3) In June 2009, OPCA and the aforementioned Workgroup met with a specific committee (known as the Probation Administrators Research Committee, or PARC) of the Council of Probation Administrators (COPA) for their professional association's feedback which has rural county participation; 4) in July 2009, OPCA communicated again with PARC as to content; and 5) subsequently, in August 2009, OPCA circulated a final draft for probation comment.

Most of the feedback indicated that these amendments reflect current model best probation practices. Some feedback sought clarification of language, alternate language, or increased flexibility. The majority of substantive suggestions for change were incorporated, and the workgroup clarified issues raised, and increased flexibility in certain instances. Overall, OPCA received favorable support from probation agencies that these amendments are manageable and consistent with good professional practice. For reasons stated throughout this document relative to approval and use of actuarial tools, and while NYC Probation is the sole remaining non-YASI jurisdiction and has in the past objected to State approval of their assessment tools, it is essential that DCJS ensure departments are using fully validated instruments. Flexibility in policy allows for New York City to choose another validated assessment tool, approved by DCJS, other than utilizing YASI at no cost. Importantly, the OPCA approved the use of NYC's Probation Assessment Tool (PAT) instrument and there has been in the past several months a change in Executive leadership within NYC's probation department. The Director of OPCA recently communicated with the new Probation Commissioner, forwarding the proposed regulations in this area, reaffirming State approval of PAT, soliciting their utilization of YASI and its benefits, and requesting feedback on content of the proposed regulatory reform in this area. At this time, OPCA has not received any renewed NYC objection as to this measure.

9. Federal standards:

There are no federal standards governing the probation intake/preliminary procedure process.

10. Compliance schedule:

Through prompt dissemination to staff of the new rule and its summary, local departments should be able to implement these amendments and comply with the provisions as soon as they are adopted.

Revised Regulatory Flexibility Analysis

1. Effect of Rule:

This proposed rule revises existing regulatory procedures in the area of Juvenile Delinquent (JD) adjustment services and will impact local probation departments which are responsible for the delivery of such services to alleged JD youth.

The Division of Criminal Justice Services (DCJS) does not anticipate that these new requirements will be burdensome upon probation departments. While this regulatory reform requires specific attention to key areas, establishing provisions for effective preliminary procedure consistent with traditional and emerging probation practices, it also provides certain flexibility in recognition of differences among jurisdictional policies and resources.

These amendments integrate law, research and model probation practices to establish specific minimum standards for probation's provision of adjustment services to JD youth and their families. Strengthening and supporting consistent application of preliminary procedures is essential to ensure effective diversion of youth, wherever appropriate. By addressing youth needs within the context of their families and communities, the State and local governments can realize savings in detention, placement, legal and social costs. Accordingly, it is not a viable alternative to have a seriously outdated probation rule, or no rule, governing preliminary procedure for the JD population.

No small businesses are impacted by these proposed regulatory amendments.

2. Compliance Requirements:

While DCJS will require actuarial risk and needs assessments along with case planning tools and protocols approved by the Commissioner of the Division of Criminal Justice Services and consistent with OPCA's PINS Intake and Supervision Rules requiring a classification process to identify risks and needs (9 NYCRR §§ 357.8(a); 351.3), State agency approval of the assessment tools is appropriate.

This rule does not change the monthly workload reporting requirements to DCJS. There are no small business compliance requirements imposed by these proposed rule amendments.

3. Professional Services:

No professional services are required for probation departments to comply with the proposed rule changes. There are no professional services required of small business associated with these proposed rule amendments.

4. Compliance Cost:

DCJS does not foresee these reforms leading to significant additional costs, and does not anticipate that these new requirements will be burdensome or require additional staffing above and beyond current needs. Initial triage at intake and utilizing other community-based resources, wherever appropriate and feasible, with other agencies and services providers should produce cost savings.

Additionally, the Office of Probation and Correctional Alternatives (OPCA) within DCJS provided leadership in the development and deployment of Caseload Explorer case management software, which is streamlining paper requirements by avoiding duplication of effort. Currently, 37 probation departments currently participate, an additional four departments are in the process of implementation, and it is anticipated that several other departments will participate in the near future. As of March 31, 2010, 17 other probation departments use similar software to achieve record-keeping cost efficiencies.

5. Economic and Technological Feasibility:

Local probation departments should have no problem in complying with this rule as DCJS is providing the YASI software free of charge for 57 participating jurisdictions which enables them to have a validated DCJS approved risk and needs assessment tool and DCJS has supported the development and deployment of Caseload Explorer case management software for interested probation departments. DCJS does not anticipate any economic problems experienced by probation departments as a result of these rule changes. There are no economic or technological issues faced by small businesses as these proposed rules do not affect them.

6. Minimizing Adverse Impacts:

In the preparation and drafting of the proposed amendments, OPCA was diligent in engaging probation professionals from around the state: 1) In July 2007, OPCA constituted the aforementioned JD rule working committee with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions; 2) In February 2009, OPCA circulated a refined draft to all probation directors/commissioners; 3) In June 2009, OPCA and the aforementioned Workgroup met with a specific committee (known as the Probation Administrators Research Committee, or PARC) of the Council of Probation Administrators (COPA) for their professional association's feedback which has rural county participation; and 4) in July 2009, OPCA communicated again with PARC as to content; and 5) subsequently, in August 2009, OPCA circulated a final draft for probation comment.

Most of the feedback indicated that these amendments reflect current model best probation practices. Some feedback sought clarification of language, alternate language, or increased flexibility. The majority of substantive suggestions for change were incorporated, and the workgroup clarified issues raised, and increased flexibility in certain instances. Overall, OPCA received favorable support from probation agencies that these amendments are manageable and consistent with good professional practice. For reasons stated throughout this document relative to approval and use of actuarial tools, and while New York City, the sole non-YASI jurisdiction, in the past has objected to State approval of its assessment tools, it is essential that DCJS ensure departments are using fully validated instruments. Flexibility in policy allows for New York City to choose another validated assessment tool, approved by DCJS, other than utilizing YASI at no cost. Importantly, OPCA approved the use of NYC's Probation Assessment Tool (PAT) instrument and there has been, in the past few months, a change in Executive leadership within NYC's probation department. The Director of OPCA has recently communicated with the new Probation Commissioner, forwarding the proposed regulations in this area, reaffirming OPCA approval of PAT, soliciting their utilization of YASI and its benefits, and requesting feedback on content of the proposed regulatory reform in this area. At this time, OPCA has not received any renewed NYC objection as to this measure.

These proposed regulatory reforms require specific attention to key areas, establishing provisions for effective preliminary procedure consistent with traditional and emerging probation practices, yet provides flexibility and recognizes differences among jurisdictional policies and resources.

7. Small Business and Local Government Participation:

As noted earlier, OPCA previously sought to engage probation departments from across the State on the development of and refinement of the proposed regulatory changes.

Revised Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty-four local probation departments are located in rural areas and will be affected by the proposed rule amendments.

2. Reporting, recordkeeping, and other compliance requirements; and professional services:

The Division of Criminal Justice Services (DCJS) continues the existing regulatory requirement previously adopted by the former Division of Probation and Correctional Alternatives (DPCA), which has been renamed the Office of Probation and Correctional Alternatives (OPCA) and merged with DCJS pursuant to Chapter 56 of the Laws of 2010, that probation directors maintain local written policies and procedures governing preliminary procedure (intake) for juvenile delinquency (JD), and specifies key areas to be covered regarding timeframes, adjustment services, and case record documentation. These key areas for local policy development are consistent with best professional practices surrounding delivery of juvenile services and grant certain flexibility that takes into account local needs and resources.

There are no additional professional services necessitated in any rural area to comply with this rule. DCJS does not believe that these regulatory changes will prove difficult to achieve. Through prompt dissemination to staff of this new rule and its summary, local probation departments should be able to implement these amendments and comply with the provisions as soon as they are adopted.

This rule does not change the monthly workload reporting requirements to our state agency, DCJS.

3. Costs:

Fifty-seven counties currently use, at no cost, the DCJS approved actuarial Youth Assessment Screening Instrument (YASI) which promotes consistent application of screening assessment and case planning protocols for youth intake, investigation, and supervision services.

DCJS believes that more effective JD adjustment services can reduce long term state and local governmental costs for those youth who are at risk of continued involvement with the juvenile justice or criminal justice system. DCJS anticipates no additional costs in adhering to these regulatory amendments beyond what is currently required in law and regulation. Initial triage at intake and sharing resources, wherever appropriate and feasible, with other agencies and services providers will produce cost savings. Consistent application and sharing of screening, assessment, and case planning protocols and results will further add savings by avoiding duplication of efforts within and across probation departments.

As part of the State's efforts to streamline recordkeeping, avoid duplication and achieve cost savings, OPCA supported the deployment of a web-based case management software, known as Caseload Explorer. Currently, 37 probation departments currently utilize and an additional four departments are in the process of implementation of this software, and many rural counties benefit from this software. As of March 31, 2010, 17 other probation departments use similar software to achieve record-keeping cost efficiencies. Many rural counties are and will continue to benefit from this deployment.

Any anticipated in-service costs of educating staff, can be readily accomplished through memoranda and supervisory oversight without incurring any direct costs. Any minimal costs are outweighed by significant benefits of meeting the intent of current law and regulatory provisions to serve the best interests of JD youth and their families, and in turn will reduce monetary costs associated with court processing, detention, and placement.

4. Minimizing adverse impact:

DCJS foresees that these regulatory amendments will have no adverse impact on rural areas. As noted in more detail below, OPCA collaborated with jurisdictions across the state, including rural areas, and probation professional associations with rural membership in developing the proposed rule and incorporated numerous suggestions to clarify or address issues raised and to reflect good probation practice across the state. To OPCA's knowledge, no adverse impact on rural areas were identified, and DCJS embraced flexibility where it was found to be consistent with good probation practice.

5. Rural area participation:

These revisions were developed by an OPCA working committee comprised of OPCA staff and several local probation departments representing all geographic regions of the state, including rural, and involving all levels of probation staff, including director, deputy director, supervisor, senior probation officer, and probation officer. Additionally, the Office of Children and Family Services and the Council on Children and Families services were represented. OPCA circulated initial and final drafts to all probation directors/commissioners, the Council of Probation Administrators or COPA (the statewide professional association of probation administrators), which assigned it to a specific committee for review, with rural representation. After the initial draft comment period ended, OPCA convened the Workgroup with COPA's representatives to address feedback. The proposed regulatory amendments incorporate verbal and written suggestions gathered from probation professionals, including rural entities, across the state to address problems which probation departments have experienced in the area of JD preliminary procedure.

In the preparation and drafting of the proposed amendments, OPCA was diligent in engaging probation professionals from around the state: 1) In July 2007, OPCA constituted the aforementioned JD rule working committee with representatives across the state from small, medium, and large jurisdictions representing urban and rural jurisdictions; 2) In February 2009, OPCA circulated a refined draft to all probation directors/commissioners; 3) In June 2009, OPCA and the aforementioned Workgroup met with a specific committee (known as the Probation Administrators Research Committee, or PARC) of COPA for their professional association's feedback which has rural county participation; 4) in July 2009, OPCA communicated again with PARC as to content; and 5) subsequently, in August 2009, OPCA circulated a final draft for probation comment.

Moreover, DCJS did not find significant differences among urban, rural, and suburban jurisdictions as to issues raised or suggestions for change. DCJS is confident that these regulatory changes have the flexibility to accommodate rural jurisdictional needs.

Revised Job Impact Statement

A job impact statement is not being submitted with these adopted regulations because the amendments will have no adverse effect on private or public jobs or employment opportunities. While these regulatory changes address out-of-date requirements and reflect up-to-date best practices in the area of probation services, these changes are not onerous and can be implemented through correspondence and in-service training of probation staff.

Assessment of Public Comment

The Division of Criminal Justice Services (DCJS) received three written comments¹ regarding the proposed regulatory revision to 9 NYCRR Part 354 (Intake) and the addition of a new Part 356 governing preliminary procedure for Family Court Act (FCA) Article 3 Juvenile Delinquency (JD) Intake. These comments were carefully weighed and resulted in DCJS clarifying certain regulatory language and incorporating several suggestions to improve the content and quality of changes and to achieve better probation practice in this area.

Broome County Probation Department indicated that they did not have specific policies regarding referral to services or with respect to sealed records being made available to the respondent or designated agent. However, these rule revisions do not expressly require any such local policies. Regulatory language establishing that adjustment services shall include making referrals for service "as needed" is consistent with probation's existing statutory and regulatory intake function to attempt to adjust suitable JD cases in lieu of formal JD petitions. Broome's comments that their case recordkeeping policy does not reflect referral to service is not registered as an objection. Inclusion of regulatory language regarding sealed records was kept to remind probation departments of current law in this area, specifically, Family Court Act § 375.1(3). Finally, Broome sought clarification as to what the term "assessment service" means within the "case plan" regulatory definition. While assessment service refers to whatever protocol a jurisdiction may utilize to assess youth for risks and needs, DCJS does not believe further explanation is needed because the "case plan" definition is consistent with the Article 7 PINS Intake rule and "assessment service" terminology is long-standing and existed for several years in former Executive Law § 243-a, which governed enhanced funding for specialized PINS adjustment services.

New York City Department of Probation (NYCDOP) commented on rule definitions and other regulatory language and some of their suggestions were incorporated. Specifically, within rule section 356.1, the definition of "conference" was expanded to recognize other electronic means. In rule section 356.8, DCJS substituted certain regulatory language to avoid concerns that NYCDOP had regarding case plan expectations that they would be responsible for "resolving" a youth's presenting problems rather than "remediate" during adjustment. In rule section 356.11, the language governing case closing requirements was also restructured to be clearer regarding intent.

Other NYCDOP regulatory suggestions were not incorporated in the final rule after a thorough discussion of their necessity and impact if rewording or deletion were to occur. DCJS has chosen not to amend the definition of "case plan" for reasons noted above and because of a misperception on NYCDOP's part that DCJS expects complete resolution of all of the youth's presenting problems during the adjustment period. While NYCDOP is opposed to utilization of electronic monitoring for JD Intake, the regulatory reference ought not be viewed as an endorsement of this practice. Instead, the reference has been added consistent with the PINS Intake rule to clarify that it should be used only as part of adjustment services where there is director consent and a specific court order. Additionally, the definitional term of "control measure" was similarly modified to reflect that the graduated sanction of electronic monitoring would only occur by court order. The use of electronic monitoring was carefully considered during both JD and PINS Intake Workgroup meetings of a cross-section of probation practitioners throughout the State, including NYCDOP representatives and two professional probation associations. It was widely endorsed that regulatory language with respect to electronic monitoring should be added but that it was preferable to limit its utilization only upon a local probation director's consent and upon a specific court order. Because electronic monitoring within the criminal justice system can only occur upon court order or releasing authority determination, an alleged JD or PINS should be similarly protected. However, DCJS is cognizant that some jurisdictions see merit in utilizing electronic monitoring in limited instances, for example, as an alternative to detention, while others disagree. Accordingly, DCJS carefully worded language in this area to fairly balance different viewpoints, but place the ultimate control within the probation director's authority, and only upon a court order. This proposed electronic monitoring regulatory language sends a message that it should not be commonly utilized, affords probation directors the legal ability to approve or disapprove its use, and better ensures that youth will not be subject to such usage without due process protection and an opportunity to challenge its appropriateness. Thus, DCJS left this unchanged. Finally, regarding the definition of "control measure," DCJS does not want to encourage any harsher sanctions on alleged JDs during adjustment, especially without probation department consent. Therefore, we disagree with NYCDOP's suggestion to add "other court-ordered sanctions" to this definition. This substantive regulatory change likely would not be well-received by other probation departments across the State. Finally, although NYCDOP suggested rewording of the definition of "arrest," it was subsequently determined by DCJS that this definition was not necessary and therefore removed from the rule text.

The LASNYC noted that the "proposed regulatory amendments represent a significant positive step towards improving the probation intake process by employing evidence-based practices and other measures to insure that only those youth who truly need to enter the juvenile justice system do so." Further, LASNYC voiced support for the overarching goals of the JD Intake rule and cited as an example regulatory language to attempt to adjust with minimal intervention services those cases of low risk youth. However, LASNYC raised several concerns as to specific regulatory content. After examination, DCJS concurred with many of these recommendations and incorporated the suggestions where appropriate. For example, DCJS restructured language in rule section 356.6(d) to avoid confusion with respect to certain detention language to ensure its applicability only to probation departments which oversee detention services. rule section 356.6(e) was modified by incorporating additional suggested LASNYC wording. Furthermore, in rule section 356.9, DCJS removed objectionable language as to "written records which support the complaint" furnished to the presentment agency. However, DCJS kept specific language as to probation making "a recommendation regarding adjustment to provide such information, including any arresting officer's report and the youth's records of previous adjustments and arrests as probation deems relevant…" This regulatory language is consistent with FCA § 308.1(6) and LASNYC's recommendation in this area to limit content, while well-intended to promote further adjustment, would be unduly restrictive and at odds with statutory language which recognizes probation's ability to provide at a minimum, records of previous adjustments and arrests, the officer's arrest report, and also any other relevant information, not otherwise prohibited by other statutory language. Significantly, statutory language clearly infers that probation may make a favorable or unfavorable recommendation regarding adjustment. As to LASNYC concerns, there exists certain legal prohibitions with respect to probation communicating particular information concerning the adjustment process to a presentment agency, which have been incorporated within this same rule section to foster compliance and not be unfairly prejudicial to any youth.

Although LASNYC recommends that DCJS define "substantial likelihood" under suitability criteria within Rule Section 356.6, this terminology mirrors long-standing language found in FCA § 735 and the Uniform Rules of the Family Court (URFC), specifically 22 NYCRR § 205.22. Because the Office of Court Administration did not find it necessary to provide such rule clarification and it has existed within DCJS' past general Intake Rule governing JD Intake cases for well over two decades and was recently retained in DCJS' PINS Intake Rule, DCJS believes that further refinement is not warranted. Further, LASNYC's recommendation that suitability criteria language delete "whether a proceeding has been or will be instituted against another person for acting jointly with the potential respondent" is directly at odds with the aforementioned long-standing URFC regulatory language, which has existed for many years in DCJS's general Intake Rule governing JD Intake cases.

While LASNYC recommended in rule section 356.12(d) that DCJS either remove examples of types of cases which would be classified as "terminated in favor of the respondent" or include all types, DCJS reexamined this regulatory provision and modified wording by citing the statutory law listing other types and adding language "included but not limited to." This approach better ensures that probation departments are cognizant of types of cases, avoids needless repetition of statutory wording and potential rule modification should statutory language change.

LASNYC's two remaining issues were with respect to risk assessments and concerns regarding usage of electronic monitoring. Specifically, LASNYC is concerned that use of a risk assessment instrument in NYC may lead to net-widening. However, DCJS believes such concerns are misplaced. Evidence-based research supports the use of risk assessment instruments at intake to more accurately target needs areas for intervention services and since all local probation departments outside NYC have consistently utilized such an instrument for over 10 years, there is no data which indicates net-widening. Next, the instrument is not the sole factor in deciding petition or adjustment services and, finally, the RAI instrument which LASNYC recommends, instead of the Youth Assessment Screening Instrument (YASI) used by all other probation departments in New York State, is a brief detention screening instrument, and does not address long-term risk or need. Their assertion that YASI was not validated for NYC youth is only due to the fact that NYC chose not to be part of the original development of YASI and/or had not previously joined others in its utilization. It should be noted that NYCDOP recently expressed interest and is considering the YASI for intake and probation supervision cases, for case planning purposes. As to the validity of the YASI instrument and its protocols, in 2003 preliminary and in 2007 long-term validation studies were conducted, and there has been overwhelming local probation receptivity of YASI meeting their needs and promoting evidence-based practices. Significantly, YASI has been validated by 22 other states including large metropolitan jurisdictions (i.e. Chicago, San Francisco, Atlanta) and there has not been a finding which substantiates that different jurisdictions throughout NYS or other YASI states have varying needs that cannot be met by a single instrument.

Additionally, DCJS internally met on rule content and streamlined a few regulatory provisions to reflect 2011 statutory changes in the area of detention and to be more consistent with efforts to divert youth. Specifically, consistent with Chapter 58 of the Laws of 2011, rule section 356.5(l) was modified to no longer require probation departments operating their local detention facility to use a detention risk assessment instrument approved by DCJS as the Commissioner of the Office of Children and Families has been recently empowered to approve every jurisdictions detention instrument throughout the state. The change to rule section 356.5(c) also now cross references the applicable URFC rule rather than set forth current suitability criteria considerations to encourage more receptivity toward intake services. Rule section 356.5(d)(2), governing issuance of family court appearance tickets by probation department's operating their local detention facility and criteria considered relative to pre-petition diversion of a detained youth, was also abbreviated to parallel criteria within FCA section 320.5(3) with respect to court efforts to divert certain youth from detention post-petition.

In conclusion, DCJS incorporated many suggested technical or clarifying Rule amendments. None of these changes substantively changed the regulatory content of these Rules. At an August 25, 2010 State Probation Commission meeting, DCJS received the support of the Commission members after a presentation was made of the proposed rule and DCJS communicated comments from the probation field which it had received as of that date and changes made. Accordingly, DCJS is adopting these Rule amendments, effective September 1, 2011.

¹ Public comments were received from two Probation Departments: Broome County and New York City. The Legal Aid Society of New York City (LASNYC) also submitted comments. All sought clarification of certain Rule language and/or raised particular issues with respect to some regulatory provisions.