TDA-06-16-00016-E Emergency Shelters for the Homeless
7/13/16 N.Y. St. Reg. TDA-06-16-00016-E
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 28
July 13, 2016
RULE MAKING ACTIVITIES
OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE
EMERGENCY RULE MAKING
I.D No. TDA-06-16-00016-E
Filing No. 617
Filing Date. Jun. 23, 2016
Effective Date. Jun. 23, 2016
Emergency Shelters for the Homeless
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 352.37 to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 17(a)-(b), (i), 20(2)-(3), 34, 460-c and 460-d; Executive Law, section 43(1); General Municipal Law, section 34; State Finance Law, section 109(4); New York City Charter, section 93; Buffalo City Charter, ch. C, art. 7, section 7-4
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The Office of Temporary and Disability Assistance (OTDA) finds that immediate adoption of the rule is necessary for the preservation of the public health, public safety, and general welfare and, specifically, to assure that residents of emergency shelters are not subject to unhealthy or imminently dangerous conditions. The emergency regulation continues protections for residents of emergency shelters by clarifying OTDA’s authority, pursuant to the Social Services Law and State regulations, to take immediate emergency measures to address emergency shelters determined to be dangerous, hazardous, or imminently detrimental to the health, safety, and general welfare of residents. Recent inspections and visits conducted at a significant number of emergency shelters by officials from OTDA have confirmed that dangerous, hazardous, or unhealthy conditions have existed at some of these placements for sustained periods of time. Failing to continue OTDA’s oversight in this area would endanger the health, safety and welfare of such residents. The emergency regulation helps ensure that emergency shelters are maintained in safer, healthy conditions, and that the welfare of residents is better protected than under current requirements. In the absence of this emergency regulation, inspections have revealed that some operators have permitted their emergency shelters to deteriorate to a point where dangerous, hazardous, or unhealthy conditions exist. Under these circumstances, OTDA asserts that proposing this rule only as a “regular rule making” as provided by the State Administrative Procedure Act (SAPA) should not be required because to do so would be detrimental to the health and general welfare of the residents of these emergency shelters while permitting public funds to be expended to maintain conditions that are dangerous, hazardous, and unhealthy. Recent investigations have confirmed such conditions and have underscored the imperative of acting quickly to assure that residents of these placements are safe and protected from dangerous, hazardous, or unhealthy conditions. Without this emergency regulation, some emergency shelters will simply maintain the status quo, thereby endangering individuals, families and children.
Subject:
Emergency shelters for the homeless.
Purpose:
Emergency measures concerning shelters for the homeless.
Text of emergency rule:
§ 352.37 Emergency measures concerning shelters for the homeless.
(a) When the Office of Temporary and Disability Assistance (the office) has knowledge, or has been advised, by announced or unannounced inspections, audits, or other methods with respect to emergency shelters made by any State or local entity authorized to conduct inspections or audits, including the office and State or local comptrollers, that there exists a violation of law, regulation, or code with respect to a building that provides emergency shelter to homeless persons, in which there are conditions that are dangerous, hazardous, imminently detrimental to life or health, or otherwise render the building not fit for human habitation, the office may take immediate emergency measures, including, but not limited to, one or more of the following: (1) issuing an order directing the facility to take immediate measures to rectify any defi- ciencies, violations, or conditions, requiring additional security, or directing the transfer of the facility's residents to other temporary emergency housing; or (2) temporarily suspending the facility's operating certificate or directing closure of the facility. For purposes of this section, "emergency shelter" shall mean any facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter to recipients of temporary housing assistance.
(b) Any order of the office issued with respect to any emergency shelter pursuant to paragraph (2) of subdivision (a) of this section shall be subject to the notice and expedited hearing process set forth in section 493.8 of this Title.
(c) Nothing in this section shall be construed as limiting the office from taking additional enforcement action authorized under the Social Services Law or any State regulation.
(d) The office is authorized to conduct unannounced inspections at any hour, without prior knowledge by or notification to the emergency shelter, the operator, or the social services district. Interference with an inspection, refusal to allow admission, delay in allowing admission, or refusal to provide complete access to the facility will be deemed to be a violation, and the office may take immediate enforcement action authorized under the Social Services Law or any State regulation. State and local comptrollers, in inspecting, auditing, or reviewing with respect to emergency shelters shall inform the office of any proposed violations of law, regulation, or code and shall provide recommendations as to any enforcement action.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. TDA-06-16-00016-EP, Issue of February 10, 2016. The emergency rule will expire August 21, 2016.
Text of rule and any required statements and analyses may be obtained from:
Richard P. Rhodes, Jr., New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, NY 12243-0001, (518) 486-7503, email: richard.rhodesjr@otda.ny.gov
Regulatory Impact Statement
1. Statutory Authority:
Social Services Law (SSL) § 17(a)-(b) and (i) provide, in part, that the Commissioner of the Office of Temporary and Disability Assistance (OTDA) shall “determine the policies and principles upon which public assistance, services and care shall be provided within the [S]tate both by the [S]tate itself and by the local governmental units …”, shall “make known his policies and principles to local social services officials and to public and private institutions and welfare agencies subject to his regulatory and advisory powers …”, and shall “exercise such other powers and perform such other duties as may be imposed by law.”
SSL § 20(2) provides, in part, that the OTDA shall “supervise all social services work, as the same may be administered by any local unit of government and the social services officials thereof within the state, advise them in the performance of their official duties and regulate the financial assistance granted by the state in connection with said work.” Pursuant to SSL § 20(3)(d) and (e), OTDA is authorized to promulgate rules, regulations, and policies to fulfill its powers and duties under the SSL and “to withhold or deny State reimbursement, in whole or in part, from or to any social services district [SSD] or any city or town thereof, in the event of their failure to comply with law, rules or regulations of [OTDA] relating to public assistance and care or the administration thereof.”
SSL § 34(3)(c) requires OTDA’s Commissioner to “take cognizance of the interests of health and welfare of the inhabitants of the [S]tate who lack or are threatened with the deprivation of the necessaries of life and of all matters pertaining thereto.” Pursuant to SSL § 34(3)(f), OTDA’s Commissioner must establish regulations for the administration of public assistance and care within the State by the SSDs and by the State itself, in accordance with the law. In addition, pursuant to SSL § 34(3)(d), OTDA’s Commissioner must exercise general supervision over the work of all SSDs, and SSL § 34(3)(e) provides that OTDA’s Commissioner must enforce the SSL and the State regulations within the State and in the local governmental units. Pursuant to SSL § 34(6), OTDA’s Commissioner “may exercise such additional powers and duties as may be required for the effective administration of the department and of the [S]tate system of public aid and assistance.”
SSL § 460-c confers authority upon OTDA to “inspect and maintain supervision over all public and private facilities or agencies whether [S]tate, county, municipal, incorporated or not incorporated which are in receipt of public funds,” which includes emergency shelters. SSL § 460-d confers enforcement powers upon the OTDA Commissioner, or any person designated by the OTDA Commissioner, to “undertake an investigation of the affairs and management of any facility subject to the inspection and supervision provision of this article, or of any person, corporation, society, association or organization which operates or holds itself out as being authorized to operate any such facility, or of the conduct of any officers or employers of any such facility.”
Executive Law § 43(1) provides that "[w]henever the comptroller may deem it necessary to enable him to perform the duties imposed upon him by law with regard to the inspection, examination and audit of the fiscal affairs of the state or of the several officers, departments, institutions, public corporations or political subdivisions thereof, he may assign the work of such inspection, audit and examination to any examiner or examiners appointed by him pursuant to law.” The authority to "inspect, examine and audit" the fiscal affairs of political subdivisions would include investigating where and how funds administered by county agencies are spent.
General Municipal Law § 34 specifically provides that the comptroller has the authority to examine the financial affairs of every municipal corporation. Under General Municipal Law § 2, the term "municipal corporation" includes a county, a town, a city or a village.
State Finance Law § 109(4) provides that “[t]he comptroller shall not approve for payment any expenditure from any fund except upon audit of such vouchers or other documents as are necessary to insure that such payment is lawful and proper."
New York City Charter § 93 provides that the City comptroller has the power to “investigate all matters relating to or affecting the finances of the city, including without limitation the performance of contracts and the receipt and expenditure of city funds”; conduct “audits of entities under contract with the city as expeditiously as possible”; and “audit the operations and programs of city agencies to determine whether funds are being expended or utilized efficiently and economically and whether the desired goals, results or benefits of agency programs are being achieved.”
Section 7-4 of Article 7 of Chapter C of the Buffalo City Charter provides that the City comptroller has “the power to conduct financial and performance audits of all agencies and other entities a majority of whose members are appointed by city officials or that derive at least fifty percent of their revenue, including the provision of goods, services, facilities or utilities, from the city.” The City comptroller also has “the power to conduct performance audits of all bureaus, offices, departments, boards, commissions, activities, functions, programs, agencies and other entities or services of the city… to determine whether their activities and programs are: (i) conducted in compliance with applicable law and regulation; and (ii) conducted efficiently and effectively to accomplish their intended objectives.”
2. Legislative Objectives:
It is the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations, and policies to provide for the health, safety and general welfare of vulnerable families and individuals who are placed in emergency shelters.
3. Needs and Benefits:
In response to numerous problematic reports concerning the health and safety of public assistance recipients residing in New York City’s emergency shelters, OTDA has taken action to inspect these placements and to establish remedial protocols for SSDs so that these health and safety issues can be addressed immediately. The emergency regulation provides clarification by defining “emergency shelter” to mean “any facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter to recipients of temporary housing assistance.” The emergency regulation provides OTDA the authority when it has knowledge, or has been advised by an appropriate source, that there exists a violation of law, regulation, or code with respect to an emergency shelter which is dangerous, hazardous, or imminently detrimental to life or health, or otherwise renders the building not fit for human habitation, to take immediate emergency measures. Such emergency measures include, but are not limited to, one or more of the following: (1) issuing an order directing the facility to take immediate measures to rectify any deficiencies, violations, or conditions, requiring additional security, or directing the transfer of its residents to other temporary emergency housing; or (2) temporarily suspending the facility’s operating certificate or directing closure of the facility.
The emergency regulation clarifies that OTDA is authorized to conduct unannounced inspections at any hour without prior knowledge by or notification to the shelter, the operator, or the SSD. Interference with an inspection, refusal to allow admission, delay in allowing admission, or refusal to provide complete access to the facility will be deemed to be a violation and a basis upon which OTDA may take immediate enforcement action authorized under the SSL or any State regulation. The emergency regulation also provides that State and local Comptrollers, in inspecting, auditing, or reviewing with respect to emergency shelters, shall inform OTDA of any violations of law, regulation, or code and provide recommendations as to enforcement actions.
The emergency regulation also clarifies that any order issued by OTDA temporarily suspending a facility’s operating certificate or directing closure of a facility pursuant to 18 NYCRR § 352.37(a)(2) shall be subject to the notice and expedited hearing process set forth in 18 NYCRR § 493.8.
The emergency regulation is necessary to protect vulnerable, low-income individuals and families who have limited or no housing options and have placed their trust and well-being in a system that should help ensure that these persons have acceptable accommodations during their difficult times.
Additionally, these individuals and families are being placed in emergency shelters at great expense to the taxpayers of New York, who care about the needs of these people and want to help ensure that funds used to house these individuals and families provide safe, quality housing. It is important for OTDA and the SSDs to be fiscally prudent and to help ensure that State, federal and local funds are properly used when housing homeless individuals and families.
The emergency regulation allows OTDA full authority to take immediate emergency action against facilities and SSDs that are not providing emergency shelters that comport with prescribed standards.
4. Costs:
An additional 25 Center for Specialized Services staff members will be needed to implement the emergency regulation. It is estimated that the cost to the State will be approximately $2,181,473, not including fringe benefits or indirect costs.
The emergency regulation will have a minimal impact on emergency shelters that are currently in compliance with existing health and safety standards. The emergency regulation is merely attempting to correct violations under existing health and safety standards. Therefore, the cost to local governments will depend on their abilities to comply with these standards.
5. Local Government Mandates:
Local governments will be responsible for ensuring that the emergency shelters operating within their localities are in compliance with existing health and safety standards. If they are not, the local governments will be required to identify and/or provide suitable alternative emergency shelters.
6. Paperwork:
No additional paperwork is anticipated.
7. Duplication:
The emergency regulation would not duplicate, overlap, or conflict with any existing State or federal regulations.
8. Alternatives:
Inaction would continue to jeopardize the health and safety of these vulnerable individuals and families by allowing existing infractions and violations to continue unaddressed and by failing to prevent future infractions and violations. OTDA does not consider this a viable alternative to the emergency regulation.
9. Federal Standards:
The emergency regulation would not conflict with federal statutes, regulations or policies.
10. Compliance Schedule:
To protect the public health, safety and general welfare of emergency shelter residents, the emergency regulation would be effective immediately upon its filing date.
Regulatory Flexibility Analysis
1. Effect of rule:
Pursuant to the State Administrative Procedure Act § 102(8), a “small business,” in part, is any business which is independently owned and operated and employs 100 or fewer individuals. This rule will apply to small businesses that provide emergency shelters. This rule will also apply to all 58 social services districts (SSDs) in the State.
2. Compliance requirement:
The emergency regulation will have a minimal impact on emergency shelters that are currently in compliance with existing health and safety standards.
3. Professional services:
It is anticipated that the need for additional professional services will be limited. The emergency regulation is not adding new health and safety standards to the State regulations; instead, it is requiring that emergency shelters comply with existing obligations to provide safe housing in accordance with health and safety standards.
4. Compliance costs:
For local governments, the impact of the emergency regulation will be insignificant as long as they are in compliance with existing health and safety standards. The emergency regulation is merely attempting to correct violations under existing health and safety standards.
5. Economic and technological feasibility:
Emergency shelters and SSDs should already have the economic and technological abilities to comply with existing standards.
6. Minimizing adverse impact:
The emergency regulation attempts to minimize any adverse economic impact on emergency shelters and SSDs by implementing existing standards. The emergency regulation should not provide exemptions, because this would not serve the purposes of ensuring the health and safety of all emergency shelter residents and protecting these vulnerable residents from dangerous conditions.
7. Small business and local government participation:
It is anticipated that small businesses and SSDs will be dedicated to implementing the emergency regulation and protecting the health, safety, and general welfare of residents of emergency shelters.
8. For rules that either establish or modify a violation or penalties associated with a violation:
The emergency regulation clarifies that that any order issued by OTDA temporarily suspending a facility’s operating certificate or directing closure of a facility pursuant to 18 NYCRR § 352.37(a)(2) shall be subject to the notice and expedited hearing process set forth in 18 NYCRR § 493.8. Certain other orders are not subject to 18 NYCRR § 493.8 because the dangerous, hazardous conditions targeted by the emergency regulation are imminently detrimental to the health, safety, and general welfare of emergency shelter residents.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The emergency regulation will apply to the 44 rural social services districts (SSDs) and the emergency shelters located in those areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The emergency regulation will have a minimal impact on emergency shelters in rural areas that are currently in compliance with existing health and safety standards.
It is anticipated that the need for additional professional services will be limited. The emergency regulation is not fundamentally altering the responsibilities of the rural SSDs. In addition, the emergency regulation is not adding new health and safety standards to the State regulations; instead, it is requiring that all emergency shelters, including those in rural areas, comply with existing obligations to provide safe housing in accordance with health and safety standards.
3. Costs:
For rural governments, the fiscal impact of the emergency regulation is anticipated to be insignificant because relatively few rural SSDs have any emergency shelters, and the rural SSDs primarily pay for hotel/motel costs. Consequently, the fiscal impact upon the rural SSDs is expected to be insignificant.
The emergency regulation will have a minimal impact on emergency shelters in rural areas that are currently in compliance with existing health and safety standards. The emergency regulation is intended to address violations under existing health and safety standards.
4. Minimizing adverse impact:
The emergency regulation attempts to minimize any adverse economic impact on emergency shelters and SSDs in rural areas by implementing existing health and safety standards. The emergency regulation should not provide exemptions, because this would not serve the purposes of ensuring the health and safety of all emergency shelter residents and protecting these vulnerable residents from dangerous conditions.
5. Rural area participation:
It is anticipated that small businesses and SSDs in rural areas will be dedicated to implementing the emergency regulation and protecting the health, safety, and general welfare of residents of emergency shelters.
Job Impact Statement
A Job Impact Statement is not required for this rule. The purpose of the emergency regulation is to continue protections for residents of emergency shelters by clarifying the Office of Temporary and Disability Assistance’s (OTDA’s) statutory authority to impose immediate emergency measures to address emergency shelters determined to be dangerous, hazardous, or detrimental to the health, safety, and general welfare of residents. It is apparent from the nature and the purpose of the emergency regulation that it will not have a substantial adverse impact on jobs and employment opportunities in the private sector, in the social services districts, or in the State. To the contrary, the emergency regulation would have a positive impact on jobs and employment opportunities, because additional persons may need to be hired to implement the emergency regulation.
Thus, the emergency regulation will not have any adverse impact on jobs and employment opportunities in New York State.
Assessment of Public Comment
The Office of Temporary and Disability Assistance (OTDA) received comments from one social services district (“SSD”) relative to the emergency regulation. These comments have been reviewed and duly considered in this Assessment of Public Comment.
One comment requested that clarifying language be added to 18 NYCRR § 352.37(a) to identify all the local entities responsible for inspecting emergency shelters for the homeless, and to define the roles of SSDs relative thereto. OTDA notes that the language of the emergency regulation explicitly states that OTDA may be “advised by any State or local entity authorized to conduct inspections or audits, including [OTDA] and State or local comptrollers, that there exists a violation of law, regulation, or code with respect to a building that provides emergency shelter to homeless persons ….” OTDA also asserts that further clarification as to the role of SSDs can be more effectively provided through issuance of an Administrative Directive (ADM), rather than through revision of the emergency regulatory language. Consequently, OTDA maintains that the addition of clarifying language is unnecessary.
One comment requested that 18 NYCRR § 352.37(b) be revised to include language requiring OTDA, when issuing any order with respect to any emergency shelter pursuant to 18 NYCRR § 352.37(a)(2), to provide notice to SSDs in addition to providing notice to the emergency shelters. OTDA believes that the procedures relating to the imposition of emergency measures can be more effectively addressed through the issuance of an ADM, rather than through revision of the emergency regulatory language. Consequently, OTDA maintains that the addition of clarifying language is unnecessary.
One comment requested that clarifying language be added to 18 NYCRR § 352.37(c) to list specific enforcement remedies that OTDA is authorized to take under the Social Services Law (SSL) or State regulations. OTDA notes that the emergency regulatory language already specifically states that OTDA may take “additional enforcement action authorized under the [SSL] or any State regulation,” and asserts that the addition of further language reiterating those enforcement actions already identified in statute and State regulations is unnecessary.
One comment requested that 18 NYCRR § 352.37(d) be revised to require State and local comptrollers to inform SSDs, in addition to informing OTDA, of any proposed violations of law, regulation, or code and recommendations as to enforcement action. OTDA believes that the procedures relating to the imposition of emergency measures, including SSD notification, can be more effectively addressed through the issuance of an ADM, rather than through revision of the emergency regulatory language. Consequently, OTDA maintains that the addition of clarifying language is unnecessary.
