CJS-32-13-00014-P Probation Case Record Management

8/7/13 N.Y. St. Reg. CJS-32-13-00014-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 32

August 07, 2013

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-32-13-00014-P

Probation Case Record Management

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

Proposed Action:

Amendment of Part 348 of Title 9 NYCRR. This rule is proposed pursuant to SAPA § 207(3), 5-Year Review of Existing Rules.

Statutory authority:

Executive Law, section 243(1)

Subject:

Probation Case Record Management.

Purpose:

To establish minimum state standards regarding probation case record management.

Substance of proposed rule (Full text is posted at the following State website:www.criminaljustice. ny.gov ):

The proposed rule amendments revise Part 348 governing Case Record Management of probation department records governing probation service delivery. Below is a brief summary of the regulatory provisions.

Section 348.1 is the definitional section. It deletes unnecessary language and clarifies that records may be written and/or electronic.

Sections 348.2-348.4 have been renumbered Sections 348.4-348.6 respectively.

New Section 348.2 sets forth the Objective which is to establish minimum state standards regarding probation case record management.

New Section 348.3 governs applicability and provides that Part 348 is applicable to all probation departments in New York State.

Section 348.4 governs content of case records. Clarified is that records may be maintained and an index filing system established in an automated case management system. Other provisions provide more specificity as to minimum information and/or documents which should be in the case record. Additional language emphasizes that appropriate protections shall be instituted to safeguard records, electronic or otherwise prepared, transmitted, and stored.

Section 348.5 sets forth supervision recordkeeping requirements and has been updated to remove obsolete language and replace it with terminology in the new DCJS Supervision rule which took effect June 1, 2013.

Section 348.6 governs accessibility of case records. It has been expanded to clarify additional instances when certain probation case records must be made accessible pursuant to law and other times when probation records may be legally accessible and parameters governing such access. Specific changes reflect recent statutory laws and/or are being incorporated to address confusion. Overall changes in this section should foster greater probation understanding of when record sharing is mandatory or permissible, terms and conditions with respect to access, lead to greater collaboration where authorized, and maintain safeguards to protect confidentiality and guarantee against inappropriate access. Further, greater flexibility in the area of research, by recognizing bona fide research provided by a private entity, should lead to additional research in the area of probation services which can prove helpful to probation management in terms of assessing their current program services and/or needs and planning future service delivery.

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

Linda J. Valenti, Assistant Counsel, New York State Division of Criminal Justice Services, A.E. Smith Building, 80 South Swan Street, Room 832, Albany, New York 12210, [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.

Review of Existing Rules:

There exist various state and federal laws governing confidentiality, access and release of information which are typically contained in probation case records. These proposed regulatory amendments to 9 NYCRR Part 348 conform with existing laws governing confidentiality of certain case record information and provide probation departments with greater flexibility to communicate more effectively and better manage those under their supervision. Public safety and the general welfare of the public will be served by adoption of these regulatory amendments.

These regulatory amendments clarify rule language governing mandatory sharing of probation case record information in an effort to assist practitioners in fulfilling their responsibilities under law. Further, additional rule language clarifies discretionary sharing of probation case record information authorized in existing law and also expands upon probation’s ability to share and/or otherwise disclose certain case record information to particular individuals or entities for public safety and/or case management purposes. Additional flexibility in the area of research will foster greater collaboration and assessment between probation and academia to assist them in analysis of probation needs and programmatic changes that will improve service delivery.

Moreover, these regulatory amendments address a need to promote community corrections by affording probation departments the ability to authorize greater probation record access to assist them in carrying out their official duties. The amendments retain necessary language to guard against inappropriate access to records which are otherwise sealed or not accessible under state or federal law. The regulatory changes in this area are consistent with good professional practice, are in the best interest of the state and local government since they address and optimize public and victim safety, promote greater offender accountability, facilitate better communication by probation departments, clarify certain constraints in law and establish appropriate safeguards to guarantee more uniform application.

Additionally, certain regulatory language has been updated to reflect recent statutory or regulatory changes and to avoid confusion. For example, mandatory and discretionary record sharing provisions have been expanded to reflect new statutory provisions governing access and/or disclosure of certain probation records relative to specific entities. Further, supervision recordkeeping requirements have been updated to remove obsolete language and replace it with terminology in the new DCJS Supervision rule which took effect June 1, 2013.

With respect to technology, revised regulatory language clarifies that probation case records may be written and/or electronic and that records may be maintained and an index filing system established in an automated case management system. Additional language emphasizes that appropriate protections shall be instituted to safeguard records, electronic or otherwise prepared, transmitted, and stored.

Regulatory Impact Statement

1. Statutory authority:

Executive Law section 243(1) empowers the Commissioner of the Division of Criminal Justice Services to promulgate rules “which shall regulate methods and procedure in the administration of probation services”, including but not limited to “supervision, case work, recordkeeping… and research so as to secure the most effective application of the probation system and the most efficient enforcement of the probation laws throughout the state.”

2. Legislative objectives:

These regulatory amendments are consistent with the legislative intent that the Commissioner adopt regulations in areas relating to critical probation functions. They promote consistent professional standards governing the administration and delivery of probation services in the area of case records management.

There exist various state and federal laws governing confidentiality, access and release of information which are typically contained in probation case records. These regulatory amendments conform with existing laws governing confidentiality of certain case record information and provide probation departments with greater flexibility to communicate more effectively and better manage those under their supervision. Public safety and the general welfare of the public will be served by adoption of these regulatory amendments.

3. Needs and benefits:

These regulatory amendments clarify rule language governing mandatory sharing of probation case record information in an effort to assist practitioners in fulfilling their responsibilities under law. Further, additional rule language clarifies discretionary sharing of probation case record information authorized in existing law and also expands upon probation’s ability to share and/or otherwise disclose certain case record information to particular individuals or entities for public safety and/or case management purposes. Additional flexibility in the area of research will foster greater collaboration and assessment between probation and academia to assist them in analysis and programmatic changes that will improve service delivery.

More comprehensive provisions in the area of case record management, including establishment and dissemination of local policies and procedures will prove beneficial in terms of compliance with existing laws, improving professional communication for public safety and/or case management purposes, facilitating probation research, and addressing other areas of public concern.

Moreover, these regulatory amendments address a need to promote community corrections by affording probation departments the ability to authorize greater probation record access to assist them in carrying out their official duties. The amendments retain necessary language to guard against inappropriate access to records which are otherwise sealed or not accessible under state or federal law. The regulatory changes in this area are consistent with good professional practice, are in the best interest of the state and local government since they address and optimize public and victim safety, promote greater offender accountability, facilitate better communication by probation departments, clarify certain constraints in law and establish appropriate safeguards to guarantee more uniform application.

4. Costs:

These changes are procedural in nature and may require some in-service training or instruction to conform with this revised regulation and updated local policies and procedures or in lieu thereof a local memorandum distributed to staff to clarify any changes. However, we do not foresee these regulatory reforms leading to significant additional costs to probation departments. Clearly, any minimal costs are significantly outweighed by increased public safety interests and offender accountability provided by these new provisions.

5. Local government mandates:

These regulatory amendments enhance current regulatory provisions governing release of case records consistent with laws governing access and confidentiality. We do not anticipate these new requirements will be burdensome or costly.

The Division circulated several prior drafts of these regulatory amendments to the Council of Probation Administrators (the statewide professional association of probation administrators), who assigned it to a specific committee for review and the State Probation Commission, the state advisory body to the Division relative to probation operations. All probation directors further received these drafts for review and comment. We incorporated in these amendments certain verbal and written suggestions raised by probation professionals to address problems which they experienced and to clarify certain provisions in law.

Overall, the Division has received support from probation agencies that these amendments are manageable and consistent with good professional practice.

6. Paperwork:

The proposed rule may lead to additional paperwork or electronic recordkeeping, although minimal in content with respect to establishing or expanding local procedures to address new regulatory language. However, the existing index file requirement has been eliminated, thereby mitigating some recordkeeping requirements.

7. Duplication:

This proposed rule does not duplicate any State or Federal law or regulation. It clarifies and reinforces certain laws with respect to confidentiality and access to probation case record and helps achieve greater flexibility where necessitated.

8. Alternatives:

In view of the need to establish enhanced minimum standards relative to case records to achieve greater offender accountability and probation operational flexibility, to better protect public and victim safety, and facilitate better case management, no other regulatory amendment alternatives were determined appropriate.

9. Federal standards:

There are certain federal standards governing confidentiality and access of certain documents contained in case records and these regulatory amendments are consistent with these requirements.

10. Compliance schedule:

Through prompt dissemination and because amendments are not unduly burdensome, local departments should be able to promptly implement these amendments.

Regulatory Flexibility Analysis

1. Effect of Rule:

The proposed rule amendments revise existing regulatory procedures in the area of Probation Case Record Management.

The proposed amendments will better assist probation departments in carrying out day-to-day operations with respect to case record management. It will afford them with certain additional relief with respect to flexibility of maintenance, reporting, and sharing of probation case records so as to take into consideration local needs, resources, and practices. Proposed regulatory changes will help foster compliance with laws governing mandatory sharing of probation records and those governing confidentiality, yet provide operational flexibility to engage in greater communication on a professional case-by-case and need-to-know basis with respect to certain individual case records and maintain adherence with applicable laws restricting or prohibiting access.

No small businesses are impacted by these proposed regulatory amendments.

2. Compliance Requirements:

Local probation departments should have no problem in complying with the proposed regulatory changes as they afford mandate relief. Through prompt dissemination to staff, local departments will be able to promptly implement these amendments and readily comply. These regulatory amendments shall take effect as soon as they are published in the State Register under a Notice of Adoption. There are no small business compliance requirements imposed by these proposed rule amendments.

3. Professional Services:

No professional services are required upon probation departments to comply with the proposed rule changes. There are no professional services required of small business associated with these proposed rule amendments.

4. Compliance Cost:

DCJS does not anticipate any additional costs or new annual costs required to comply with these regulatory changes. Any minimal costs which a probation department may incur are significantly outweighed by increased public and victim safety interests and offender accountability provided by these new provisions.

5. Economic and Technological Feasibility:

There are no economic or technological issues or problems arising from these proposed regulatory reforms in this area.

6. Minimizing Adverse Impacts:

DCJS foresees that these amendments will have no adverse impact on any jurisdiction. As noted in more detail below, OPCA collaborated with jurisdictions across the state and probation professional associations in soliciting feedback as to the proposed regulatory changes in order to provide sound probation mandate relief. The proposed changes afford greater flexibility in current regulatory requirements with respect to probation case records consistent with public safety and good professional practice.

As the probation case record management rule does not impact upon small business, the proposed changes have no negative impact upon small business operations.

7. Small Business and Local Government Participation:

As this rule does not impact upon small businesses, there was no business involvement with respect to the proposed regulatory changes.

With respect to the proposed regulatory changes upon probation departments and their participation, pursuant to Executive Order No. 17, in October 2009 a review of all rules and regulations was disseminated to all probation departments, the Council of Probation Administrators (COPA) (which is the statewide professional association of probation directors), the New York State Probation Officers Association (NYSPOA), the New York State Association of Counties (NYSAC), the State Probation Commission, and the Division of the Budget (DOB). Additionally, an October 26, 2009 meeting was convened in Albany which over a dozen probation departments (representative of rural, urban, and suburban counties), COPA and NYSPOA Presidents, NYSAC, and DOB representatives attended and where staff went over all rules and regulations and reviewed them individually, discussed proposed regulatory changes, and solicited feedback from the audience. The Director of Probation and Correctional Alternatives previously communicated that there was overwhelming support for the proposed regulatory changes in the area of probation case record management from rural, urban, and suburban jurisdictions.

In recent months, OPCA circulated for comment several prior drafts of this regulatory reform to all probation directors and the State Probation Commission as well as COPA, and other professional associations. The current amendments incorporate many verbal and written suggestions from probation professionals across the state to address problems which probation departments experience in the area of case records and supervision and to clarify certain procedural provisions and existing laws governing confidentiality and access to probation case records. More flexibility in disclosing certain case record information was sought, along with a clearer explanation of the circumstances under which case record information must and in other instances can be disclosed. The Division did not find significant differences between urban, rural, and suburban jurisdictions as to issues raised or suggestions for change.

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty-four local probation departments are located in rural areas and will be affected by the amendments.

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

The proposed changes impose no new reporting, recordkeeping, other compliance requirements nor any professional services with respect to probation management operations. Rural counties will benefit from the proposed regulatory changes as it will afford their respective probation departments greater flexibility in managing probation operations consistent with local practice and resources. These regulatory amendments strengthen procedural requirements and improve probation practice, yet should not impose significant additional costs. There are no professional services needed in any rural area to comply with these regulatory changes. These regulatory amendments retain one current reporting requirement with respect to a probation department approving a bona fide research project. When this occurs, which is infrequently, a copy of the final research project must be submitted to the Division of Criminal Justice Services (DCJS). This requirement is not onerous. Additionally, the retention of language specifying written policies and procedures governing release of case records may require some minor refinement, but it is normal business activities of any agency and in keeping with good professional practice.

These case record rule amendments will improve compliance with state laws governing access to records, enhance probation communications, achieve greater offender accountability and help promote public and victim safety.

3. Costs:

DCJS does not anticipate any additional costs or new annual costs required to comply with these regulatory changes. Any minimal costs which a probation department may incur are significantly outweighed by increased public and victim safety interests and offender accountability provided by these new provisions.

4. Minimizing adverse impact:

DCJS foresees that these regulatory amendments will have no adverse impact on any jurisdiction, including rural areas. As noted in more detail below, OPCA collaborated with jurisdictions across the state, including rural areas, and probation professional associations with rural membership in soliciting feedback as to the proposed regulatory changes in order to provide sound probation mandate relief. The proposed changes afford greater flexibility in current regulatory requirements with respect to probation case records consistent with public safety and good professional practice.

5. Rural area participation:

With respect to the proposed regulatory changes governing probation management, pursuant to Executive Order No. 17, an initial Internal Rule Review Finding was prepared in October 2009 of all rules and regulations and disseminated to all probation departments, the Council of Probation Administrators (COPA) (which is the statewide professional association of probation directors), the New York State Probation Officers Association (NYSPOA), the New York State Association of Counties (NYSAC), the State Probation Commission, and the Division of the Budget (DOB). Additionally an October 26, 2009 meeting was convened in Albany which over a dozen probation departments (representative of rural, urban, and suburban counties), COPA and NYSPOA Presidents, NYSAC, and DOB representatives attended and where staff went over all rules and regulations and reviewed them individually, discussed proposed regulatory changes, and solicited feedback from the audience. The Director of Probation and Correctional Alternatives previously communicated that there was overwhelming support for the proposed regulatory changes in the area of probation case record management from rural, urban, and suburban jurisdictions.

In recent months, OPCA circulated for comment several prior drafts of this regulatory reform to all probation directors and the State Probation Commission as well as COPA, and other professional associations. The current regulatory amendments incorporate many verbal and written suggestions from probation professionals, including rural entities, across the state to address problems which probation departments experience in the area of case records and supervision and to clarify certain procedural provisions and existing laws governing confidentiality and access to probation case records. More flexibility in disclosing certain case record information was sought, along with a clearer explanation of the circumstances under which case record information must and in other instances can be disclosed. The Division did not find significant differences between urban, rural, and suburban jurisdictions as to issues raised or suggestions for change.

Job Impact Statement

A job impact statement is not being submitted with these regulations because it will have no adverse effect on private or public jobs or employment opportunities. The revisions are procedural in nature and clarify laws governing confidentiality and case records and provides for certain additional flexibility where permissible and appropriate. These changes are not onerous in nature and can be implemented through correspondence, in-service training, or instruction to probation staff.