PRO-10-08-00002-A Preliminary Procedure for PINS Probation Intake and Diversion Services

7/2/08 N.Y. St. Reg. PRO-10-08-00002-A

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 27

July 02, 2008

RULE MAKING ACTIVITIES

DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES

NOTICE OF ADOPTION

 

I.D No. PRO-10-08-00002-A

Filing No. 599

Filing Date. Jun. 17, 2008

Effective Date. Oct. 01, 2008

Preliminary Procedure for PINS Probation Intake and Diversion Services

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

Action taken:

Repeal of Part 357, addition of new Part 357 and amendment of Part 354 of Title 9 NYCRR.

Statutory authority:

Executive Law, art. 12, sections 243(1) and 256(1); Family Court Act, section 735(a); Social Services Law, section 34-a(4)(b)

Subject:

Preliminary procedure for PINS probation intake and diversion services.

Purpose:

To reflect statutory changes and promote consistent application of law and best practices.

Substance of final rule:

These regulatory amendments would replace the former Part 357 Intake for Article 7 and delete references as to Article 7 cases in Part 354 so that there will be one rule related to Persons In Need of Supervision (PINS). These regulatory amendments to Part 357 were developed by a DPCA working committee comprised of DPCA staff and local probation department representation across the state of all COPA regions, and including all levels of probation staff, including director, deputy director, supervisor, senior probation officer, and probation officer. The existing Part 357 Intake for Article 7 was last revised in 1986, and was in effect made defunct by the repeal and reenactment of Family Court Act Section 735 effective April 2005. This rule was applicable to jurisdictions with approved PINS plans and Part 354 governed jurisdictions without an approved PINS plan. In light of recent statutory changes creating one procedural process for handling of PINS, the work of the subcommittee was significant, requiring a near complete rewriting of Part 357. In drafting new rule language, the committee's primary objectives has been to: 1) ensure conformity with all current laws, most notably the 2000 and 2001 PINS to 18 laws and the 2005 PINS Diversion and Detention Reform law (specifically Chapter 596 of the Laws of 2000, Chapter 383 of the Laws of 2001, and Chapter 57 of the Laws of 2005); 2) reflect best practice as it has evolved over the past 20 years; 3) incorporate evidence based practice that has come to the forefront of probation practices in recent years; and 4) integrate statute and best probation practice into a single document organized according to the flow of cases through preliminary procedure.

In meeting statutory requirements of Family Court Act Article 7, these regulatory amendments eliminate former suitability language, given that all PINS cases are now considered to be suitable for diversion services. Amendments articulate the requirements of these aforementioned PINS laws revising Article 7 of the Family Court Act, and require directors to issue policies and procedures that address statutory requirements, including timeframes for case initiation and criteria for determining “diligent efforts” and “no substantial likelihood” standards. Other statute requirements specified include: the provision of information at the first point of contact with the parties; diligent attempts to engage the youth and family, including documentation; providing an immediate response to families in crisis; identifying and utilizing appropriate alternatives to detention; and attempting to divert youth from Family Court. For school based complaints, these amendments articulate the requirement to review steps taken by the school and attempt to engage the school in further attempts if deemed beneficial to the youth. These regulatory amendments incorporate language regarding termination of diversion efforts, and the ability to continue to provide diversion services after filing of a petition where it is determined that the youth and family will benefit from further attempts to prevent the youth from entering foster care. Statutory requirements for referral for petitions are incorporated, including the “no substantial likelihood” standard. The pre-requisites of parental cooperation and participation are delineated for instances where the case has been terminated because of the failure of the parent(s)/guardian(s).

Section 357.1 Definitions.

These regulatory amendments eliminate most of the definitions of the old Part 357 rule, and define nineteen terms not previously defined under the old Intake rule. Some of these terms have come into widespread use in probation practice over the past 20 years, others are anchored in the 2005 PINS law, and others originate from evidence-based practice. For example, more and more counties are involved in pre-diversion services, and so a new definition for pre-diversion services distinguishes these services from “information only” and “diversion services” work. To improve the system's ability to communicate about and distinguish among different types of services, the revised Part 357 rule contains new definitions for intervention service, accountability measure, and control measure. Other new definitions have been developed for: actuarial risk, case plan, complainant, conference, diligent efforts, diversion services, evidence-based practice, no substantial likelihood, Person In Need of Supervision (PINS), potential respondent, services, referred for petition, risk assessment, successfully diverted, runaway, and youth at risk of placement.

Section 357.3 and 357.4 — Applicability and Jurisdiction.

The changes to Part 357 address applicability and jurisdictional issues. They clarify that this Part applies to probation departments responsible for the conducting of preliminary procedure, in whole or in part, either because they are the lead agency, or because they are responsible to provide a portion of preliminary procedure. They also provide guidance regarding cases where the child lives in one county but the behavior 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 357.5 — General Requirements for PINS Preliminary Procedure.

Issues related to school are addressed throughout the revised rule. Under the general requirements section, the revised rule specifies that parent-initiated complaints of ungovernability/incorrigibility may be made for youth who are not attending school and are beyond the compulsory education age. For school complaints, where a parent refuses to cooperate, clarifies that an educational neglect report may be made. For special-education students, the revised rule requires probation to gather information from the Committee on Special Education as part of preliminary procedure, and that, prior to referring the matter for petition, documentation that a Manifestation Determination hearing was held to determine whether a special education youth's behaviors are intentional and ongoing and not related to the youth's disability. Finally, regulatory amendments address the role of probation to establish procedures by which schools report to probation steps taken to improve youth attendance and conduct, and to determine whether acceptable efforts have been made to improve youth attendance and conduct.

Section 357.6 — Probation Intake.

The probation intake section reaffirms eligibility requirements, that is, in order to accept a PINS complaint, the alleged behavior must meet the criteria set forth in Article 7 of the Family Court Act. It recognizes pre-diversion services as an alternative to pursuing a PINS complaint. In cases where the complainant indicates that the youth is a runaway, it requires probation to advise the parent of the need to file a missing person report, and encourages probation to attempt to contact youth for the purpose of engaging the youth in diversion services. It clarifies that, where feasible, at least one joint intake conference in real time with all parties should be held. It underscores that parents need to be advised of a potential bar to filing a petition where there is failure to consent or to participate in diversion services (DPCA plans to develop a model advisement form for use at local option). For school complaints, where a parent refuses to cooperate, it clarifies that an educational neglect report may be made.

Section 357.7 — Diversion Services.

The regulatory amendment requires an initial case plan to be developed within 30 calendar days of case initiation, and reassessment to be conducted 60 days later and every 90 calendar days thereafter. 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 PINS complaint. Further, they clarify that in addition to intervention services, accountability and control measures may be applied as part of diversion services, and that electronic monitoring may be used only with director consent and upon specific court order.

Section 357.8 — Assessment, Case Planning, and Reassessment.

New in these regulatory amendments are requirements for actuarial risk screening at intake in order to triage cases, and consideration for prompt termination of diversion efforts with minimal or no intervention services where youth present as low risk for continuing in the PINS behaviors. Consistent with the actuarial screening and triage functions at intake, the rule language requires as part of diversion services a full assessment of all youth who are at moderate or high risk for continued PINS behavior, and directs that diversion services be prioritized to higher risk youth.

Section 357.9 — Petition To Court.

The regulatory amendments clarify that probation may file a petition in instances where the parent is prohibited from filing after diversion is terminated due to their lack of cooperation and the youth's behavior remains problematic as a result. They also add that once a petition is filed diversion efforts may continue pending court action. New language outlines all of the legal requirements for filing that must be addressed (DPCA and the rule drafting workgroup have developed a model PINS petition report to the court for use at local option).

Section 357.10 — Return From Court.

This section reaffirms that probation is to notify the court of the status at case closing when it closes a diversion case that was returned from the court for diversion services.

Sections 357.11, 357.12, and 357.13 — Pre-Diversion Case Designation Requirements and Criteria, Case Closing Requirements, and Case Record Keeping Requirements.

For pre-diversion services, these regulatory amendments require that at minimum, a record be maintained of the date of receipt of the complaint, and a description of pre-diversion services either referred to or directly provided. Where preliminary procedure was commenced, the case closing options have been modified to reflect the current options under the law. New language delineates the required documents and other information to be included in the case record.

Part 354

Necessary amendments have been made to Part 354 to delete reference to Article 7 cases or PINS language in order that there is now one rule (Part 357) 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 357.1(b), (d), (e), (g), (h), (m), (t), (v), (w), 357.2, 357.4, 357.5(d), (e)(2), 357.6(b)(3), (e), 357.8(a)(1), 357.9(c) and 357.12(e)(4).

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

Linda J. Valenti, Counsel, Division of Probation and Correctional Alternatives, 80 Wolf Rd., Suite 501, Albany, NY 12205, [phone]

Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement

Nonsubstantive changes made in sections 357.1(b), (d), (e), (g), (h), (m), (t), (v), (w), 357.2, 357.4, 357.5(d), (e)(2), 357.6(b)(3), (e), 357.8(a)(1), 357.9(c) and 357.12(e)(4) do not necessitate revision of the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.

Assessment of Public Comment

The Division of Probation and Correctional Alternatives (DPCA) received four written comments relative to the proposed regulatory revision to Parts 354 and 357 governing preliminary procedure for Family Court Act (FCA) Article 7 during the official public comment period and one shortly thereafter, which DPCA also reviewed and considered. These comments were carefully weighed and resulted in DPCA clarifying certain language and incorporating several of their suggestions to improve the content and quality of these proposed regulatory changes, and to achieve better probation practice in this area.

Public comments were received from three Probation Departments: Oneida, Suffolk, and New York City, as well as the Council of Probation Administrators (COPA) and the Office of Children and Family Services (OCFS). All five sought clarification of certain Rule definitions and/or raised particular issues with respect to consistency with other state law provisions.

Four of the five comments proposed specific technical changes with respect to definitional language. DPCA concurred with many of these recommendations and incorporated the suggestions where appropriate. For example, the definitional term of “actuarial risk” removed language providing no intervention services with respect to lower risk cases, as DPCA agreed that state law requires diversion services and in actuality, at a minimum, referrals are made on such cases. However, DPCA disagreed with OCFS' questioning use of the word “re-offending”. Family Court Act Section 712(a) defines PINS to include youth less than 18 years of age who are truant, incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of a parent/other person legally responsible/lawful authority or who violates the provisions of Penal Law Section 221.05 (unlawful possession of marihuana). PINS are viewed as status offenders and re-offending is not exclusive to criminal behavior. As a result of other comments received, references in other Rule sections were similarly modified to be consistent, including the definitional term of “diligent efforts”. While OCFS asserted that the latter term is not helpful, they offer no alternative language and probation departments support our definition and view it providing needed guidance in this area. Additionally the definitional term of “control measure” was modified to reflect that the graduated sanction of electronic monitoring would occur by court order. DPCA also removed the reference to supervision as this rule pertains to preliminary procedure. Further, the definitional term “runaway” has been clarified by incorporating the definition of runaway suggestions of COPA with minor edits. DPCA did not embrace the OCFS suggestion as their proposed language reflects the Runaway and Homeless Youth Act enacted in 1978 and is not viewed sufficient in scope in 2008 to cover what is needed with respect to Family Court Act Article 7. The regulatory definition is more complete and better defines actions giving rise to being considered a runaway for diversion purposes. With respect to other definitions, DPCA also refined the definition of “no substantial likelihood” consistent with COPA's request, clarified the definition of “complainant”, added a new definitional term “complaint” for clarity purposes, and slightly modified the term “protective factor” to be clearer as to our intent. DPCA disagreed with OCFS' suggestion that the term “case plan” address how protective factors will be identified. As this is a definition and the risk assessment instrument itself addresses this and other rule provisions explain how they will be identified and utilized, DPCA believes that it is unnecessary to do so and no probation practitioner has expressed the need to clarify or expand upon this point. Similarly, DPCA did not believe it necessary to modify the term “control measure” to explain how they will be implemented.

While two comments requested deletion of language in the definitional term “risk assessment”, which requires a validated protocol be approved by the State Director of Probation and Correctional Alternatives, DPCA insists on its retention. DPCA believes that it is essential that a risk assessment instrument be validated to promote good professional practice and serve the interests of youth, and as the oversight agency of probation services throughout New York State, it is appropriate that DPCA approve usage of any instrument to ensure that the instrument is validated, reliable, and ensures uniformity in terms of what is measured (i.e., risk of recidivism). This guarantees that critical information is collected so that statewide collection of key data is secured and evaluated. While NYC Probation questioned DPCA's “institutional expertise to assess or approve such protocols” DPCA has always recognized the need to have research expertise in this area and has worked extensively with the Division of Criminal Justice Services (DCJS) who provides host agency services to us in the area of research due to merger of agency services several years ago. Through this ongoing interagency collaboration, DPCA previously issued a Request for Proposal reviewed by appropriate research staff of various state agencies to develop and implement a validated risk and needs instrument for New York State's juvenile justice population, including New York City. Feedback was incorporated from local jurisdictions, the instrument piloted in several jurisdictions. As to the final instrument and protocols, preliminary and long-term validation studies were conducted on the instrument, commonly referred to as YASI. YASI has been offered to local probation departments to promote evidence-based practices and has been well-received. Presently fifty-five jurisdictions in New York State are now utilizing YASI, which attests to overwhelming local probation receptivity of YASI meeting their needs. It should be noted that twenty-two other states including large metropolitan jurisdictions (i.e., Chicago, San Francisco, Atlanta) utilize a YASI-like instrument. Therefore probation experience in New York and other state's success refute NYC's contention that different jurisdictions throughout the state have varying needs that often cannot all be met by a single “one size fits all” instrument. With respect to OCFS inquiry on this subject, it should be reiterated that DPCA is not mandating YASI throughout the state, but rather the use of a fully validated risk and need instrument that measures the risk of recidivism.

As to jurisdiction, DPCA incorporated COPA's suggestion with respect to transfer of diversion services to make it discretionary rather than mandatory where the youth resides in one county, but the PINS behavior occurred in another county. However, we retained language that once sought by the sending county transfer shall be accepted by the receiving county to promote diversion efforts and avoid inherent problems caused by making acceptance optional. DPCA revised rule language as to intake actions for school-based complaints where parents refuse to consent. To address some of COPA's concerns, DPCA amended existing language to clarify that probation may request the court to direct either parent/guardian to sign a release of information for school records, however we also added language that the court on its own volition may direct such release. While COPA suggested that language reflect probation's authority to recommend that the school pursue an educational neglect report, in view that this decision should be based on the totality of circumstances and is not always proper solely where consent has not been forthcoming, DPCA refined language that this may be done “where appropriate”. Lastly, DPCA embraced COPA's suggestion with respect to petitions to court to delete extraneous language as to when an educational neglect report may be filed.

While New York City probation voiced that there should be consistency as to “definitions, expectations, agreement for use of actuarial risk screening tools” with respect to PINS matters regardless whether probation or Social Services is the lead agency, they appreciated that DPCA has taken steps in this area to “clean up” our regulations and expressed that DSS “should do the same.” As DPCA rules govern probation departments, our agency has no authority over DSS regulations.

As to other comments made by OCFS, DPCA added language to refer to effective community-based services in the Objective rule section, clarified what was meant by a “complaint” distinguishing it from a petition to avoid confusion, and narrowed language as to incorrigibility/ungovernability behavior to refer to conduct “in school” with respect to a youth who is a special education student and gathering information from the Committee on Special Education. However, DPCA disagreed with OCFS' assertion that reference to community-based in the definition of “intervention services” is in need of revision because this language embraces both private and public agency services within a community and is not viewed as pertaining solely to private not-for-profit providers of services as asserted by OCFS. Further, while DPCA modified its Rule summary to delete language which was not applicable, other remaining issues expressed by OCFS as to rule content did not appear appropriate and/or necessary.

Lastly, Oneida County Probation Department expressed support of Rule changes as being in order with their “current practices” as well as their “philosophy and efforts to reduce inappropriate formal PINS actions in Family Court.” While they expressed their schools have been resistant as to Manifestation hearings on Special Education students undergoing diversion services, any change in educational plan triggers such a hearing and the rights and protections of special education students is necessitated by federal law and state law. Our rule language in this area is discretionary and reflects good probation practice. The probation director forwarded our proposed rule changes to their Children's Coordinated Service Initiative Tier II local partners to reinforce this issue with schools.

In conclusion, many changes were technical Rule amendments which DPCA incorporated or otherwise refined into the final rule. Many helped avoid confusion and clarify certain issues; others were made to reflect statutory law as to delivery of services. None of these changes substantively changed the regulatory content of these Rules. At an April 2008 State Probation Commission meeting, DPCA received support of the Commission members after a presentation was made of the proposed rule and DPCA communicated public comments received as of that date and anticipated changes.