CFS-25-15-00005-P To Eliminate the Use of Restraint Solely to Prevent Property Damage in Residential Facilities for Children

6/24/15 N.Y. St. Reg. CFS-25-15-00005-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 25

June 24, 2015

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-25-15-00005-P

To Eliminate the Use of Restraint Solely to Prevent Property Damage in Residential Facilities for Children

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

Proposed Action:

Amendment of section 441.17 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d) and 34(3)(f)

Subject:

To eliminate the use of restraint solely to prevent property damage in residential facilities for children.

Purpose:

To eliminate the use of restraint solely to prevent property damage in residential facilities for children.

Text of proposed rule:

Paragraph (2) of subdivision (a) of section 441.17 is amended to read as follows:

(2) Acute physical behavior means only that behavior which clearly indicates the intent to inflict physical injury upon oneself or others or to [destroy property] otherwise jeopardize the safety of any person.

Text of proposed 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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

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.

Section 462 of the SSL authorizes OCFS to promulgate regulations concerning standards for the care and treatment of children in residential facilities under the jurisdiction of OCFS.

2. Legislative objectives:

The proposed change to the regulations governing restraint of children in residential care in facilities licensed by OCFS is necessary in order to further the legislative objective that children in such residential facilities be safe and afforded appropriate care.

3. Needs and benefits:

The proposed change to the regulations governing restraint of children in residential care in facilities licensed by OCFS would revise the provision that defines the circumstances under which restraints could be employed. Currently, the regulations permit the use of restraint when a child’s behavior shows an intent to inflict physical injury on him or herself or others, or to destroy property. The proposed change would eliminate the ability to use restraint where the child’s behavior shows an intent to destroy property, and replace it with permission to use restraint where the child’s behavior shows an intent to otherwise jeopardize the safety of any person.

This change is necessary because the use of a restraint is a significant and potentially dangerous intervention, and should be used only when absolutely necessary. When the regulation at issue was originally written decades ago, the use of restraint to protect property was generally accepted. That view has changed, and the current prevailing view in the child welfare field is that restraint should be used only when necessary to prevent injury or danger to the child or another person. The proposed change would reflect that evolution of approach.

It is important to note that, where the child’s destruction of property results in injury or danger of injury to the child or others, restraint could still be used to prevent that result. The crisis management systems used in facilities that hold operating certificates from OCFS have long prohibited the use of restraint solely to prevent property damage, so the proposed change to the regulations will not cause a change in practice.

4. Costs:

The proposed regulatory changes are not expected to have an adverse fiscal impact on the authorized agencies operating residential facilities for children or on the social services districts. Because the crisis management systems used in facilities that hold operating certificates from OCFS have long prohibited the use of restraint solely to prevent property damage, the proposed change to the regulations will not cause a change in practice and will not result in any change in costs to the residential facilities that would be affected by the change.

5. Local government mandates:

The proposed regulations will not impose any additional mandates on social services districts. Because the crisis management systems used in facilities that hold operating certificates from OCFS have long prohibited the use of restraint solely to prevent property damage, the elimination of the authority to use restraint to avoid property damage would not change practice in such facilities. Only a few social services districts operate such facilities, and no new mandates would be imposed on them.

6. Paperwork:

The proposed regulations would impose no new paperwork requirements.

7. Duplication:

The proposed regulations do not duplicate any other State or federal requirements.

8. Alternatives:

The alternative to removing the authority to restrain children in residential care to prevent property damage would be to continue to allow such authority. In many cases, the activity that results in the danger of property damage would also endanger the child or other persons, so the change would not actually affect many situations. Where the only danger in the child’s activity would be property damage, the potentially dangerous option of restraining the child should no longer be available, so maintaining that option is not consistent with providing the best protection of the safety of children and staff.

9. Federal standards:

The regulatory amendments do not conflict with any federal standards.

10. Compliance schedule:

The proposed rule would be effective upon adoption.

Regulatory Flexibility Analysis

1. Types and estimated number of small businesses and local governments:

Social services districts and voluntary authorized agencies contracting with such social services districts to provide foster care services to children will be affected by the proposed regulations. There are 58 social services districts in New York and approximately 160 voluntary authorized agencies.

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

Authorized agencies are currently required to submit their agency’s restraint policy to OCFS at least once every two years. The proposed changes to the restraint regulations would not change the frequency or content of the reporting requirement or create any new requirements.

3. Costs:

The proposed regulatory changes would not impose additional costs on regulated parties.

4. Economic and technological feasibility:

The proposed regulatory changes would not require any additional technology and should not have any adverse economic consequences for regulated parties.

5. Minimizing adverse impact:

The proposed changes to the regulations addressing when a child in residential care may be restrained would eliminate the threat of property damage as a basis for doing a restraint, but in practice the authorized agencies already refrain from using restraints purely to avoid property damage, so the change should have minimal impact.

6. Small business and local government participation:

Potential changes to the regulations governing use of restraints have been discussed on a number of occasions with representatives of social services districts, authorized agencies, and the Council of Family and Child Caring Agencies. Drafts of earlier versions of proposed changes were shared with them for review and comment. Their input was incorporated into the proposed regulations.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Social services districts in rural areas and voluntary authorized agencies contracting with such social services districts to provide foster care services to children will be affected by the proposed regulations. There are 44 social services districts in rural areas and approximately 100 authorized agencies in rural areas.

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

Authorized agencies are currently required to submit their agency’s restraint policy to OCFS at least once every two years. The proposed changes to the restraint regulations would not change the frequency or content of the reporting requirement or create any new requirements.

3. Costs:

The proposed regulatory changes would not impose additional costs on regulated parties.

4. Minimizing adverse impact:

The proposed changes to the regulations addressing when a child in residential care may be restrained would eliminate the threat of property damage as a basis for doing a restraint, but in practice the authorized agencies already refrain from using restraints purely to avoid property damage, so the change should have minimal impact.

5. Rural area participation:

Potential changes to the regulations governing use of restraints have been discussed on a number of occasions with representatives of social services districts, authorized agencies, including those that serve rural communities, and the Council of Family and Child Caring Agencies. Drafts of earlier versions of proposed changes were shared with them for review and comment. Their input was incorporated into the proposed regulations.

Job Impact Statement

The proposed regulations are not expected to have a negative impact on jobs or employment opportunities in either public or private sector service providers. A full job statement has not been prepared for the proposed regulations as it is not anticipated that the proposed regulations will have any adverse impact on jobs or employment opportunities.