TDA-28-09-00006-P Temporary Housing Assistance for Certain Sex Offenders

7/15/09 N.Y. St. Reg. TDA-28-09-00006-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 28

July 15, 2009

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TDA-28-09-00006-P

Temporary Housing Assistance for Certain Sex Offenders

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

Proposed Action:

Addition of section 352.36 to Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), (8), 34(3)(f) and 131(1); and L. 2008, ch. 568

Subject:

Temporary housing assistance for certain sex offenders.

Purpose:

To implement chapter 568 of the Laws of 2008 concerning factors that social services districts must consider when making determinations about the location of temporary housing for level two and three sex offenders, when advance notice has been received.

Text of proposed rule:

A new section 352.36 is added to Title 18 NYCRR to read as follows:

Section 352.36 Factors when providing temporary housing assistance to certain sex offenders

(a) Statement of purpose

(1) Chapter 568 of the laws of 2008 requires the Division of Parole (DOP), the Division of Probation and Correctional Alternatives (DPCA), and the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations to provide guidance concerning the placement and/or approval of housing for certain sex offenders.

(2) The State has previously enacted laws concerning sex offenders, including the Sex Offender Registration Act, the Sex Offender Management and Treatment Act, the Electronic Security and Targeting of On-Line Predators Act (e-STOP) and laws restricting certain sex offenders who are under probation or parole supervision from entering school grounds. Chapter 568 of the laws of 2008 continues the State's efforts in the area of sex offender management and specifically in the area of the placement and housing of sex offenders. Sex offender management, and the placement and housing of sex offenders, are areas that have been, and will continue to be, matters addressed by the State. These regulations further the State's coordinated and comprehensive policies in these areas, and are intended to provide further guidance to relevant state and local agencies in applying the State's approach.

(3) Public safety is a primary concern, and these regulations are intended to better protect children, vulnerable populations and the general public from sex offenders. The State's coordinated and comprehensive approach also recognizes the necessity to provide emergency shelter to individuals in need, including those who are sex offenders, and the importance of stable housing and support in allowing offenders to live in and re-enter the community and become law-abiding and productive citizens. These regulations are based upon, and are intended to further, best practices and effective strategies to achieve these goals.

(4) In implementing this statute and the State's comprehensive approach, DOP, DPCA, OTDA and the Division of Criminal Justice Services' Office of Sex Offender Management (DCJS/OSOM) recognize that:

(i) Not all sex offenders are equally dangerous. Some sex offenders may pose a high risk of committing a new sexual crime; others may pose only a low risk.

(ii) All reasonable efforts should be made to avoid an ill-advised concentration of sex offenders in certain neighborhoods and localities. What constitutes such a concentration will depend on many factors, and may vary depending on housing availability and the locality and community. In addition, it is sometimes safer to house sex offenders together. Law enforcement, probation, and parole officers may more effectively monitor offenders, and service providers may more easily offer transitional services to offenders in these congregate settings. Further, some social service officials and departments rely on congregate housing for sex offenders who seek emergency shelter because of the limited, or lack of other housing options available for this population. All public officials who are responsible for finding or approving housing for sex offenders should recognize that an over-concentration of sex offenders may create risks and burdens on the surrounding community, and that their responsibility is to make judgments that are reasonable under the circumstances.

(iii) All social service districts are required by statute, regulation and directive to arrange temporary housing assistance for eligible homeless individuals, including those who are sex offenders.

(iv) To reduce recidivism it is important that offenders be able to re-enter society and become productive and law-abiding citizens whenever possible. A stable living situation and access to employment and support services are important factors that can help offenders to successfully re-enter society.

(v) Maintaining and/or finding suitable housing for sex offenders is an enormous challenge that impacts all areas of the State. Offenders reside in all regions of the state and may have long-established residences in their respective communities. Even offenders who do not have such long-established relationships are often discharged from prison to the community where they previously lived. As a result, it is not appropriate for any one community or county to bear an inappropriate burden in housing sex offenders because another community has attempted to shift its responsibility for those offenders onto other areas of the State. The proliferation of local ordinances imposing residency restrictions upon sex offenders, while well-intentioned, have made it more challenging for the State and local authorities to address the difficulties in finding secure and appropriate housing for sex offenders.

(vi) Decisions as to the housing and supervision of sex offenders should take into account all relevant factors and no one factor will necessarily be dispositive. These factors should include, but not be limited to, the factors enumerated in the statute, the risk posed by the offender, the nature of the underlying offense, whether housing offenders together or apart is safer and more feasible, the most effective method to supervise and provide services to offenders, and the availability of appropriate housing, employment, treatment and support.

(b) Applicability and factors

(1) When a social services district has received advance written notice, pursuant to section 259-c (17) of the Executive Law, that an inmate who is designated a level two or level three sex offender pursuant to the sex offender registration act is likely to seek to access local social services for homeless persons, and such individual is determined by the social services district to be in immediate need of shelter, the local social services officials shall consider the following factors when making a determination in regard to the placement of such individual in shelter, provided that the individual is otherwise eligible for temporary housing assistance:

(i) the location of other sex offenders required to register pursuant to the sex offender registration act, specifically whether there is a concentration of registered sex offenders in a certain residential area or municipality;

(ii) the number of registered sex offenders residing at a particular property;

(iii) proximity of the entities with vulnerable populations;

(iv) accessibility to family members, friends or other supportive services, including but not limited to locally available sex offender treatment programs with preference for placement of such individuals into programs that have demonstrated effectiveness in reducing sex offender recidivism and increasing public safety; and

(v) investigation and approval of such placement by the state Division of Parole.

(2) When one or more of the factors set forth in paragraph 1 of this subdivision are not relevant or not practicable in determining a placement for such individual, within the timeframe necessary to meet the immediate need for shelter, the local social services officials shall place the individual in the most appropriate available shelter.

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

Jeanine Stander Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street 16C, Albany, New York 12243-0001, [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:

Social Services Law (SSL) § 20(3)(d) authorizes the Office of Temporary and Disability Assistance (OTDA) to promulgate regulations and policies to carry out its powers and duties.

SSL § 34(3)(f) requires the Commissioner of OTDA to establish regulations for the administration of public assistance and care within the State.

Chapter 568 of the Laws of 2008, effective January 23, 2009, requires the Division of Parole (DOP), the Division of Probation and Correctional Alternatives (DPCA) and OTDA to promulgate rules and regulations regarding housing for certain sex offenders who are under parole or probation supervision or who are being released from State prison after completing their maximum sentences.

SSL § 20(8), effective January 23, 2009, requires OTDA to promulgate regulations concerning Chapter 568 of the Laws of 2008. This section also sets forth factors which social services districts are to consider when making determinations in regard to the placement of certain sex offenders.

SSL § 131(1) requires social services districts, insofar as funds are available for that purpose, to provide adequately for those unable to maintain themselves, in accordance with the provisions of the SSL.

2. Legislative objectives:

It is the intent of the Legislature in enacting the above statutes that OTDA establish rules, regulations and policies so that adequate provision is made for those persons unable to provide for themselves so that, whenever possible, such persons can be restored to a condition of self-support and self-care.

This regulatory amendment supports the Legislature's intent to address the challenge to social services districts of considering the needs and concerns of the community while locating an appropriate temporary housing placement when certain sex offenders are released from prison without a place to live. These are individuals for whom a social services district will receive advance written notice pursuant to Executive Law § 259-c(17).

3. Needs and benefits:

At the present time, Article 6-C of the Correction Law, known as the Sex Offender Registration Act (SORA), requires anyone on parole or probation or imprisoned for a sex offense on or after January 21, 1996, to register and provide certain information including their residency location to the state Division of Criminal Justice Services.

Executive Law § 259-c(17) requires that prior to release, parole or release to post-release supervision of an inmate designated a level two or level three sex offender pursuant to SORA, the social services district in the county in which the inmate expects to reside be notified when information is available that indicates that the inmate is likely to seek homeless services upon release from State prison. Pursuant to this requirement, the appropriate social services districts are provided information when certain level two or level three sex offenders are likely to seek homeless services upon release from State prison.

Chapter 568 of the Laws of 2008, in part, amends the SSL to set forth factors that social services districts must consider when making determinations about the appropriate location of temporary housing for those level two and level three sex offenders, when written notice has been received pursuant to Executive Law § 259-c(17). The factors to be considered by the social services districts are the following:

(1) the location of other sex offenders required to register pursuant to the sex offender registration act, specifically whether there is a concentration of registered sex offenders in a certain residential area or municipality;

(2) the number of registered sex offenders residing at a particular property;

(3) the proximity of the entities with vulnerable populations;

(4) accessibility to family members, friends or other supportive services, including but not limited to locally available sex offender treatment programs with preference for placement of such individuals into programs that have demonstrated effectiveness in reducing sex offender recidivism and increasing public safety; and

(5) the investigation and approval of such placement by DOP.

As a result of the new statute, OTDA is required to promulgate regulations setting forth these new factors, and the social services districts are required to consider them when assessing placements for certain level two and level three sex offenders. The fifth factor, which is the investigation and approval of placements by DOP, necessitates a coordination of services between the social services districts and DOP. In order to facilitate this process, the districts need to locate appropriate temporary housing taking the first four factors into consideration and then provide information to DOP regarding the placement in order to allow for DOP's investigation and approval.

The general well-being of the public is best safeguarded if sex offenders are placed in appropriate available housing. Chapter 568 of the Laws of 2008 provides that social services districts need to consider concentrations of registered sex offenders and the proximity of available housing to entities with vulnerable populations when assessing housing placements for certain sex offenders. Consideration of the individual's immediate housing needs and these factors are intended to protect the public. Meanwhile, consideration of factors such as the accessibility to family members, friends or other supportive services, including available sex offender treatment programs, is intended to prevent recidivism by providing sex offenders with suitable housing and support. Chapter 568 of the Laws of 2008 was designed to balance the safety interests of the public, the statutory obligations of social services districts in meeting the immediate needs of individuals, and the unique housing needs of sex offenders. It was intended to lead to a comprehensive approach that will protect the public and provide appropriate housing for sex offenders.

4. Costs:

There may be a minimal fiscal impact as a result of the proposed rule. Pursuant to existing OTDA policies, social services districts must meet emergency needs of eligible persons and determine, based upon the particular circumstances, the most appropriate temporary housing assistance for such persons. Since current provisions require that districts receive notification of the release of certain sex offenders that may seek homeless and emergency housing services, districts must already place such individuals in appropriate settings using available information.

Pursuant to Chapter 568 of the Laws of 2008, social services districts will now need to complete certain administrative steps that were not required in the past. For instance, districts will be required to notify DOP of the placements of certain sex offenders so that DOP can conduct an investigation and approve or disapprove such placements, and districts will later review DOP's approval or disapproval of the placements. This will necessitate a coordinated effort between the districts and DOP, which may result in some administrative costs to the districts due to additional processing requirements. The extent of this economic impact is dependent upon the prior practices of each district. The districts, to varying degrees, already coordinate their placement efforts with DOP for certain sex offenders.

It is noted that any increase in administrative costs to the districts is a result of Chapter 568 of the Laws of 2008, and not this proposed regulatory amendment. This proposed rule merely complies with the statutory requirements and makes the required regulatory changes.

5. Local government mandates:

Social services districts already are under a mandate to provide temporary housing assistance and other emergency and ongoing assistance to eligible individuals, including eligible individuals who are sex offenders. Additionally, social services districts already are notified of the sex offender status of certain individuals pursuant to Executive Law § 259-c(17) when making a temporary housing placement. This amendment codifies the specific factors that must be considered by the social services districts when notified under Executive Law § 259-c(17) and in that sense adds an additional mandate as is required by law.

6. Paperwork:

Pursuant to the new statutory requirements, social services districts will need to provide information to DOP regarding the placement of certain sex offenders for DOP's investigation and approval. To facilitate this process, DOP has developed a one page form titled "DSS Request for Investigation/Approval by DOP." To advise DOP of a placement and to request DOP's investigation and approval, the social services districts simply need to fill in two-thirds of this one page form and forward it to DOP. The form will later be returned to the social services districts by DOP with the remaining one third of the form completed indicating DOP's approval or disapproval of the placement.

7. Duplication:

The proposed amendment does not duplicate, overlap, or conflict with any existing State or federal requirement.

8. Alternatives:

No significant alternatives were considered. Chapter 568 of the Laws of 2008 required that OTDA promulgate regulations setting forth the factors which social services districts are to consider when making determinations in regard to the placement of certain sex offenders.

9. Federal standards:

The proposed amendment does not conflict with any federal standards for temporary housing.

10. Compliance schedule:

The social services districts will be able to comply with the proposed amendment on its effective date, or soon thereafter. OTDA will be issuing an Administrative Directive to the social services districts explaining the statutory and regulatory changes. The Administrative Directive will include the "DSS Request for Investigation/Approval by DOP" as an attachment and provide the name, the telephone number and the e-mail address of a contact person in case the social services districts have questions or concerns. In addition, OTDA plans to make follow up calls to the social services districts to address any issues that may arise during implementation or thereafter.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed amendment will have no effect on small businesses. The proposed amendment will have an effect on local governments since social services districts will be required to consider certain factors when deciding on temporary housing placements for certain sex offenders. However, consideration of the factors is required under Chapter 568 of the Laws of 2008.

2. Compliance requirements:

The proposed amendment will not have any additional compliance requirements for small businesses. As noted above, to comply with Chapter 568 of the Laws of 2008 and the proposed amendment, the social services districts will be required to consider certain factors when deciding on temporary housing placements for certain sex offenders. The local districts also will need to provide information to DOP regarding the placement of certain sex offenders to facilitate DOP's investigation and approval. To facilitate this process, DOP has developed a one page form titled "DSS Request for Investigation/Approval by DOP." To advise DOP of a placement and to request DOP's investigation and approval, the social services districts will need to fill in two-thirds of this one page form and forward it to DOP. The form will later be returned to the social services districts by DOP with the remaining one third of the form completed indicating DOP's approval or disapproval of the placement.

3. Professional services:

The proposed amendment will not require small businesses or local governments to hire additional professional services.

4. Compliance costs:

There may be a minimal fiscal impact on the social services districts as a result of the proposed rule. Pursuant to existing OTDA policies, social services districts must meet emergency needs of eligible persons and determine, based upon the particular circumstances, the most appropriate temporary housing assistance for such persons. Since current provisions require that districts receive notification of the release of certain sex offenders that may seek homeless and emergency housing services, districts must already place such individuals in appropriate settings using available information.

Pursuant to Chapter 568 of the Laws of 2008, social services districts will now need to complete certain administrative steps that were not required in the past. For instance, districts will be required to notify DOP of the placements of certain sex offenders so that DOP can conduct an investigation and approve or disapprove such placements, and districts will later review DOP's approval or disapproval of the placements. This will necessitate a coordinated effort between the districts and DOP, which may result in some administrative costs to the districts due to additional processing requirements. The extent of this economic impact is dependent upon the prior practices of each district. The districts, to varying degrees, already coordinate their placement efforts with DOP for certain sex offenders.

It is noted that any increase in administrative costs to the districts is a result of Chapter 568 of the Laws of 2008, and not this proposed regulatory amendment. This proposed rule merely complies with the statutory requirements and makes the required regulatory changes.

5. Economic and technological feasibility:

All small businesses and local governments have the economic and technological ability to comply with these regulations.

6. Minimizing adverse impact:

There will be no adverse economic impact on small businesses, and there may be a minimal economic impact on the administrative costs of local governments.

7. Small business and local government participation:

On December 30, 2008, OTDA had a conference call which included participation from the New York State Public Welfare Association (NYPWA), the New York City Human Resources Administration (HRA), the New York City Department of Homeless Services (DHS), and eleven social services districts to discuss the proposal. On January 15, 2009, OTDA had a second conference call which included participation from the New York State Division of Criminal Justice Services (DCJS), DHS, DOP, DPCA and eleven social services districts to discuss the proposal. During the conference calls, these organizations made suggestions regarding implementation of the new law and any policy directives.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The proposed amendment will apply to the 44 rural social services districts in New York State.

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

To comply with Chapter 568 of the Laws of 2008 and the proposed amendment, the rural districts will be required to consider certain factors when deciding on temporary housing placements for certain sex offenders. These districts also will need to provide information to DOP regarding the placement of certain sex offenders to facilitate DOP's investigation and approval. DOP has developed a one page form to facilitate this process. The proposed amendment will not require rural districts to hire additional professional services.

3. Costs:

There may be a minimal fiscal impact on the social services districts, including those in rural areas, as a result of the proposed rule. Pursuant to existing OTDA policies, social services districts must meet emergency needs of eligible persons and determine, based upon the particular circumstances, the most appropriate temporary housing assistance for such persons. Since current provisions require that districts receive notification of the release of certain sex offenders that may seek homeless and emergency housing services, districts must already place such individuals in appropriate settings using available information.

Pursuant to Chapter 568 of the Laws of 2008, social services districts, including those in rural areas, will now need to complete certain administrative steps that were not required in the past. For instance, districts will be required to notify DOP of the placements of certain sex offenders so that DOP can conduct an investigation and approve or disapprove such placements, and districts will later review DOP's approval or disapproval of the placements. This will necessitate a coordinated effort between the districts and DOP, which may result in some administrative costs to the districts due to additional processing requirements. The extent of this economic impact is dependent upon the prior practices of each district. The districts, to varying degrees, already coordinate their placement efforts with DOP for certain sex offenders.

It is noted that any increase in administrative costs to the districts is a result of Chapter 568 of the Laws of 2008, and not this proposed regulatory amendment. This proposed rule merely complies with the statutory requirements and makes the required regulatory changes.

4. Minimizing adverse impact:

To facilitate this process, DOP has developed a one page form titled "DSS Request for Investigation/Approval by DOP." To advise DOP of a placement and to request DOP's investigation and approval, the rural districts will need to fill in two-thirds of this one page form and forward it to DOP. The form will later be returned to the social services districts by DOP with the remaining one third of the form completed indicating DOP's approval or disapproval of the placement.

5. Rural area participation:

On December 30, 2008, OTDA had a conference call which included participation from NYPWA, HRA, DHS and eleven social services districts, including some rural districts, to discuss the proposal. On January 15, 2009, OTDA had a second conference call which included participation from DCJS, DHS, DOP, DPCA and eleven social services districts, including some rural districts, to discuss the proposal. During the conference calls, these organizations made suggestions regarding implementation of the new law and any policy directives.

Job Impact Statement

A Job Impact Statement has not been prepared for the proposed rule. It is evident from the subject matter of the amendment that the jobs of the workers making decisions pursuant to the proposed rule will not be affected in any real way. The proposed amendment formalizes the placement factors which many social services districts already consider and the consultation process with DOP. Thus, the changes will not have any impact on jobs and employment opportunities in the State.