JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS
NOTICE OF ADOPTION
I.D No. JCP-12-13-00011-A
Filing No. 626
Filing Date. Jun. 11, 2013
Effective Date. Jun. 30, 2013
Use of Social Security Numbers
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 702 to Title 14 NYCRR.
Statutory authority:
Protection of People with Special Needs Act, L. 2012, ch. 501
Subject:
Use of Social Security Numbers.
Purpose:
To assist in verifying the identity of persons vis a vis their presence on the Staff Exclusion List/VPCR.
Text of final rule:
A new Part 702 is added to Title 14, NYCRR, to read as follows:
Part 702 USE OF SOCIAL SECURITY NUMBERS
§ 702.1 Background and Intent
(a) The Protection of People with Special Needs Act (the “Act”), enacted as Chapter 501 of the Laws of 2012, seeks to prevent persons responsible for egregious or repeated acts of abuse or neglect of a vulnerable person from being engaged as employees, administrators, consultants, interns, volunteers or contractors, and from obtaining licenses, certificates or other approvals, for positions where they have the potential for regular and substantial contact with vulnerable persons or other individuals whom the Act seeks to protect.
(b) To accomplish this goal, the Act provides that all custodians who have been found by a preponderance of the evidence, after an opportunity for a fair hearing, to have engaged in an act of abuse or neglect of sufficient severity or with sufficient frequency, shall be placed on the register of substantiated category one cases of abuse or neglect, also known as the “staff exclusion list.”
(c) This regulation outlines the procedures for obtaining and using social security numbers to assist in verifying the identity of subjects of reports in the vulnerable persons central register (“VPCR”); individuals placed on the staff exclusion list and those individuals who must be screened against the staff exclusion list.
§ 702.2 Applicability
This regulation applies to all facilities and provider agencies as defined in subdivision (4) of section 488 of the Social Services Law and to all other entities that must screen individuals against the staff exclusion list pursuant to subdivision (2) of section 495 of the Social Services Law.
§ 702.3 Legal authority
(a) The Act provides for the creation of a Justice Center for the Protection of Persons with Special Needs (“Justice Center”).
(b) Section 492 of the Social Services Law mandates that the Justice Center establish a VPCR in which findings of whether alleged acts of abuse or neglect are substantiated or unsubstantiated shall be entered.
(c) Section 492 of the Social Services Law mandates that upon accepting a report of a reportable incident, an investigation must be initiated that includes the determination of whether the subject of the report is currently the subject of an open or substantiated report in the VPCR.
(d) Sections 493, 494 and 495 of the Social Services Law provide for the creation of a register of substantiated category one cases of abuse or neglect (“the staff exclusion list”), and describe the circumstances and due process requirements for placing a custodian on that register.
(e) Section 495 of the Social Services Law provides that a custodian placed on the staff exclusion list is subject to termination of employment from a facility or provider agency, provided that for state entities bound by collective bargaining, action established by collective bargaining shall govern.
(f) Subdivision (2) of section 495 of the Social Services Law requires a screening agency, as defined in this Part, to check the staff exclusion list before determining whether to hire or otherwise allow any person as an employee, administrator, consultant, intern, volunteer or contractor who will have the potential for regular and substantial contact with a service recipient or other applicable individual and before approving an applicant for a license, certificate, permit or other approval to provide care to a service recipient or other applicable individual.
(g) Paragraph (e) of subdivision (1) of section 96 of the Public Officers Law permits a state agency to disclose personal information incident to a “routine use,” which means any use of such record or personal information relevant to the purpose for which it was collected, and which use is necessary to the statutory duties of the agency that collected or obtained the record or personal information, or necessary for that agency to operate a program specifically authorized by law.
(h) Paragraph (c) of subdivision (1) one of section 94 of the Public Officers Law permits a state agency to obtain the social security number of an individual for purposes of a quasi-judicial determination.
(i) Paragraph (b) of subdivision (3) of section 399ddd of the General Business Law permits firms, partnerships, associations or corporations to require an individual to disclose or furnish his or her social security account number, when required by state or local law or regulation.
§ 702.4 Definition
Whenever used in this Part:
(a) “Custodian” shall mean a director, operator, employee or volunteer of a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law; or a consultant or an employee or volunteer of a corporation, partnership, organization or governmental entity which provides goods or services to a facility or provider agency pursuant to contract or other arrangement that permits such person to have regular and substantial contact with individuals who are cared for by such a facility or provider agency.
(b) “Delegate investigatory entity” shall have the same meaning as expressed in subdivision (7) of section 488 of the Social Services Law.
(c) “Facility” or “provider agency” shall have the same meaning as expressed in subdivision (4) of section 488 of the Social Services Law.
(d) “Screening agency” shall mean a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law; any other provider of services to vulnerable persons in programs licensed, certified or funded by any state oversight agency; and any other provider agency or licensing agency as defined in subdivision (3) or (4) of section 424-a of the Social Services Law.
(e) “Service recipient” shall mean an individual who resides or is an inpatient in a residential facility or who receives services from a facility or provider agency as defined in subdivision (4) of section 488 of the Social Services Law.
(f) “Staff exclusion list” shall mean the register of substantiated category one cases of abuse or neglect, pursuant to sections 493 and 495 of the Social Services Law.
(g) “State oversight agency” shall mean the state agency that operates, licenses or certifies an applicable facility or provider agency; provided however that such term shall only include the following entities: the office of mental health, the office for people with developmental disabilities, the office of alcoholism and substance abuse services, the office of children and family services, the department of health and the state education department.
(h) “Vulnerable person” shall have the same meaning as expressed in subdivision 15 of section 488 of the social services law.
§ 702.5 Verification of Identity
(a) The Justice Center or a delegate investigatory entity responsible for investigating a reportable incident pursuant to paragraph (c) of subdivision (3) of section 492 of the Social Services Law shall be authorized to obtain the social security number of any custodian who is being investigated as a subject of a reportable incident, by consent from the custodian under investigation or from the applicable facility or provider agency, for purposes of verifying the custodian’s identity as the subject of any open or substantiated report in the VPCR and, where applicable, as an individual included on the staff exclusion list.
(b) Any person applying for a position for which such person must be screened against the staff exclusion list pursuant to subdivision (2) of section 495 of the Social Services Law shall provide the applicable screening agency with his or her social security number for submission to the Justice Center for the purpose of verifying the person’s identity to determine whether the individual is included on the staff exclusion list.
(c) An individual’s failure to provide his or her social security number when requested pursuant to this section, after receiving notice of the reason for such request, may preclude the individual from being considered or approved for any such position.
§ 702.6 Confidentiality
The Justice Center shall promulgate policies and procedures regarding corrective actions or penalties for failure to comply with the use, confidentiality and non-disclosure requirements of Sections 89, 94, 95, 96 and 96-a of the Public Officer’s Law.
§ 702.7 Severability
If any provision of this Part or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Part that can be given effect without the invalid provision or applications, and to this end the provisions of this Part are declared to be severable.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 702.5(c).
Text of rule and any required statements and analyses may be obtained from:
Stephan Haimowitz, Justice Center for Protection of People with Special Needs, 161 Delaware Avenue, Delmar, New York 12054, (518) 549-0244, email: stephan.haimowitz@cqc.ny.gov
Revised Regulatory Impact Statement
Non-substantive changes in the text of the proposed rule do not necessitate modification of the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement as published in the State Register on March 20, 2013. Accordingly, a revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not required by any changes in the rule’s text.
However, non-substantive revisions, including the correction of a clerical error, have been made to the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis for this rule to accurately and more fully describe outreach to small business and rural interests subsequent to March 20, 2013. Those updated statements are attached to this Notice of Adoption.
Revised Regulatory Flexibility Analysis
1. Effect of rule:
Small businesses include not for profit, volunteer or other types of non-state agencies and providers of services to vulnerable persons under Justice Center jurisdiction. Local governments that operate detention centers for juveniles will be affected.
2. Compliance requirements:
The proposed Rule has been reviewed in consideration of its impact on small business and local government service providers. Because existing small business providers are presently engaged in fielding employment, volunteer and consultant applications, and applicants for licenses, certificates permits or approvals are handled by the state agencies, there is no anticipated additional burden on small businesses or local government. The activity required by this rule is limited, in any event, to the transmission of information that can be provided electronically in a secure fashion, and based on forms provided by the Justice Center.
3. Professional services:
It is not anticipated than any new professional services will be needed as a result of the proposed rule-making.
4. Compliance costs:
Any recurring costs are subsumed in regular operating costs of all entities affected, and are represented in the cost of telephone, fax and electronic communications. As a consequence, no additional cost for compliance is anticipated.
5. Economic and technological feasibility:
Electronic mail and facsimile transmissions are general available technologies that can be used to transmit the information required under this rule.
6. Minimizing adverse impact:
This rule is designed to promote efficiency, promptness and accuracy, thus avoiding any potential adverse impacts from fulfilling the statutory requirement expressed through this rule.
7. Small business and local government participation:
We sought input during the public comment period regarding the effect of this rule on small businesses. As noted previously, representatives of those types of entities participated in formulating the legislation under which this rule is being promulgated (see “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons www.governor.ny.gov/assets/documents/justice4specialneeds.pdf). Subsequent to publication of the proposed rule, members of the Justice Center Leadership Team received input from small businesses at more than a dozen trade association conferences and service providers meetings. These sessions included executives and care givers from programs across the state which are under the jurisdiction of the NYS Justice Center for People with Special Needs.
Revised Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The rule will apply to every county in New York State that has facilities or providers under the Justice Center’s jurisdiction.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
There are no professional services required for compliance with this rule. The compliance requirements are no different than those of a type already being carried out by the facilities or providers in each of New York’s counties, as comprehended under the human resources, staffing and licensing, certification or approval activities of each of these entities.
3. Costs:
No capital costs are required. The annual costs are included in the existing human resources, staffing, licensing, and certification or approval activities of those affected.
4. Minimizing adverse impact:
There are no adverse impacts on rural areas.
5. Rural area participation:
We sought input during the public comment period regarding the effect of this rule on rural areas. As noted previously, representatives of rural entities participated in formulating the legislation under which this rule is being promulgated (see “The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities against Abuse and Neglect” report prepared by Clarence J. Sundram, the Governor’s Special Advisor on Vulnerable Persons www.governor.ny.gov/assets/documents/justice4specialneeds.pdf). Subsequent to publication of the proposed rule and to date, members of the Justice Center Leadership Team received input at more than a dozen trade association conferences and service providers meetings. These sessions included executives and care givers from programs across the state under the jurisdiction of the NYS Justice Center for People with Special Needs, including those in rural areas.
Revised Job Impact Statement
Non-substantive changes in the text of the proposed rule do not necessitate modification of the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement as published in the State Register on March 20, 2013. Accordingly, a revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement are not required by any changes in the rule’s text.
However, non-substantive revisions, including the correction of a clerical error, have been made to the Regulatory Flexibility Analysis and Rural Area Flexibility Analysis for this rule to accurately and more fully describe outreach to small business and rural interests subsequent to March 20, 2013. Those updated statements are attached to this Notice of Adoption.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2016, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The proposed rules under comment concern the Justice Center for the Protection of People with Special Needs, [Justice Center]. They include the Justice Center’s administrative adjudications procedure (Part 700); criminal background check requirements and procedures (Part 701); use of social security numbers (Part 702); and, the rule governing Justice Center responses to requests for disclosure of facility or provider agency records relating to the abuse or neglect of vulnerable persons (Part 703). These regulations comprise 14 NYCRR Parts 700-703. These rules are authorized under the statutory mandate of the Protection of People with Special Needs Act [PPSNA], Chapter 501 Laws of 2012, which creates the Justice Center. This Assessment of Comment pertains to 14 NYCRR Part 702.
Comments on the proposed rulemaking were received from four entities. They are: Service Employees International Union Local 200United (SEIU 200United); New York State ARC (NYSARC), an association of not-for-profit organizations representing providers of services to developmentally disabled persons; the Professional Employees Union (PEF) and the New York State Assembly Chairs of the Standing Committee on Mental Health and the Administrative Regulations Review Commission, Aileen M. Gunther and Kenneth P. Zebrowski, respectively.
Many of the comments received were requests for clarification. Some comments were beyond the scope of this rulemaking or lacked sufficient justification to make requested changes. The responses to comments are as follows:
Part 702: Use of Social Security Numbers
Comment I
Two commenters expressed concerns about confidentiality protections for the personally identifiable information collected under this regulation.
Response
The proposed regulation provides for the issuance of policies and procedures that will enforce the confidentiality provisions of the Public Officers Law restricting the use or disclosure of personally identifiable information by state agencies. Those authorized persons transmitting personally identifiable information to the Justice Center will be required to acknowledge the requirement to comply with state and federal laws concerning the privacy of personally identifiable information, including Labor Law 203-d which applies to employers.
Comment II
“Part 702 is being adopted to prevent persons responsible for egregious or repeated acts of abuse or neglect of vulnerable persons from being engaged as employees in positions where they have the potential for regular and substantial contact with vulnerable persons. The Federal Privacy Act does not authorize the use of social security number for this purpose, thus, 14 NYCRR 702 is not authorized by Section 42 USC 405(c)(2)(C)(i).”
Response
We disagree. The purpose of Part 702 is to help ensure the correct identification of persons who are subjects of reports of abuse or neglect as defined in Section 488(12) of the Social Services Law (SSL), persons placed on the Register of Substantiated Cases of Category One Abuse or Neglect [Staff Exclusion List], and of applicants for employment who require Staff Exclusion List checks. See, § 492, § 493, § 494 and § 495. SSL § 495 provides the statutory authority for preventing custodians who have been convicted of an intentional crime directly related to the abuse or neglect of a vulnerable person, or who have been placed on the Justice Center’s Staff Exclusion List, from having regular and substantial contact with vulnerable persons.
Comment III
“Although prospective applicants possess no “right” to public employment, tenured State employees do possess a “right” to continued employment. Therefore, for existing State employees, the proposed regulations violate section 7 of the Federal Privacy Act. Section 7 of the Privacy Act prohibits a state from denying an individual a right provided by law because of his or her refusal to disclose his or her social security number. We believe that New York State may request that an employee disclose his or her social security number informing him or her that the disclosure is voluntary and providing the other information required by Section 7(b) of the Privacy Act, but the State many not require the disclosure.”
Response
We disagree. The PPSNA provides that an employee be “subject to termination” upon being placed on the Staff Exclusion List. SSL § 495(4). The catalyst event for termination is not the failure to provide a social security number, but rather placement on the Staff Exclusion List. The rule has been clarified by deleting the words, “or retained in” contained in 14 NYCRR § 702.5(c).
Comment IV
Assembly members comment that the Regulatory Flexibility Analysis for Small Businesses and Local Governments contained reference to rural flexibility analysis and did not reflect sufficient efforts at outreach to small businesses or rural areas.
Response
The Regulatory Flexibility Analysis for Small Businesses and Local Government submitted with the proposed rule contained a reference to “rural” instead of small business flexibility analysis in the final paragraph. That clerical error has been corrected. The text of Regulatory Analysis for Small Business and Local Government and Rural Flexibility Analysis has also been modified to more fully reflect Justice Center activities seeking input from small businesses from urban and rural New York State, subsequent to the publication of this proposed rule.
