CJS-37-11-00018-EP Probation State Aid Block Grant Funding

9/14/11 N.Y. St. Reg. CJS-37-11-00018-EP

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 37

September 14, 2011

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-37-11-00018-EP

Filing No. 772

Filing Date. Aug. 30, 2011

Effective Date. Sept. 04, 2011

Probation State Aid Block Grant Funding

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

Proposed Action:

Repeal of Part 345; and addition of new Part 345 to Title 9 NYCRR.

Statutory authority:

Executive Law, sections 243 and 246; L. 2011, chs. 53 and 57

Finding of necessity for emergency rule:

Preservation of public safety.

Specific reasons underlying the finding of necessity:

In order to promote public safety, probation State aid block grant monies must be readily available to local governments for probation department operations to ensure continuity of probation services to the criminal justice and juvenile justice system and timely implementation of Chapters 53 and 57 of the Laws of 2011 with respect to probation State aid grants. Funding of probation services is viewed as a critical component to promote the effective application of the probation system. As the existing state aid rule has been rendered obsolete, new emergency regulations will avoid potential disruption of probation services caused by delayed funding. This emergency regulation will help maintain and improve service delivery to the criminal and juvenile justice systems with respect to the probation population in general, as well as for specialized high-risk populations for which targeted grant monies have been statutorily earmarked for distribution.

Subject:

Probation State Aid Block Grant Funding.

Purpose:

To conform probation state aid rule with new statutory provisions with respect to block grant funding.

Text of emergency/proposed rule:

Part 345 of 9 NYCRR is REPEALED and a new Part 345 is added to read as follows:

Part 345 - Probation State Aid Block Grant

Section 345.1 Objective.

To provide for the distribution of State aid to county probation services and to the probation services of New York City and to provide State financial assistance to local governments for regular and/or specialized probation programming to promote offender accountability, rehabilitation, and enhance public safety.

Section 345.2 Definitions.

When used in this Part:

(a) "Division" shall mean the Division of Criminal Justice Services.

(b) "Commissioner" shall mean the Commissioner of the Division of Criminal Justice Services.

(c) "Office" shall mean the Office of Probation and Correctional Alternatives located within the Division of Criminal Justice Services.

(d) "Director" shall mean the Director of the Office of Probation and Correctional Alternatives within the Division.

(e) "Department" shall mean a county probation department or the City of New York probation department.

Section 345.3 State Aid Plan Application Submission and Eligibility for State Aid.

Every county outside of the City of New York and the City of New York shall annually file a probation state aid plan application with the Office pursuant to the format, timeframe and schedule prescribed by the Commissioner in consultation with the Director.

(a) Applications shall include a detailed plan with cost estimates covering probation services for the fiscal year or portion thereof for which aid is requested. Included in such estimates shall be clerical costs, maintenance and operation costs, salaries of probation personnel and other pertinent information including an overview of probation program services relating to staff training, investigation, supervision, and intake.

(b) An approved plan and compliance with standards relating to the administration of probation services, promulgated by the Commissioner in consultation with the Director, shall be a prerequisite to eligibility for State Aid.

(c) A county outside of the City of New York and the City of New York may apply for additional state aid as part of a block grant award for enhanced program services with respect to specific populations, including aid for the Intensive Supervision Program (ISP), Enhanced Specialized Services for Sex Offenders (ESSO), Juvenile Risk Intervention Coordination Services (J-RISC) or any other specific population determined by the Commissioner.

(d) The Commissioner shall allocate block grant monies based upon a review of all approved plans and their respective budgets and pursuant to a plan prepared by the Commissioner and approved by the Director of the Division of the Budget. All state aid shall be granted by the Commissioner after consultation with the State Probation Commission and the Director.

(e) State aid monies received by the Division during 2011 shall be, to the greatest extent possible, distributed in a manner consistent with the prior year distribution amounts and thereafter as authorized by law.

Section 345.4 Plan approval, funding, and reporting.

(a) State aid grants shall not be used for expenditures for capital additions or improvements, or for debt service costs for capital improvements.

(b) Each plan shall:

(1) ensure adherence to all applicable laws and rules and regulations governing probation services;

(2) ensure that the Integrated Probation Registrant System will be maintained by the Department in a timely and accurate manner and that the proportion of active but closable adult supervision cases will be maintained at less than five percent of the total active Department caseload and whenever in excess, immediate steps will be undertaken to reduce percentage to less than five percent;

(3) ensure that the Department will timely collect DNA from individuals under their supervision who have not yet submitted DNA as agreed upon pursuant to a plea, as required by law, or as otherwise ordered by the court and routinely review the "DNA Owed" report on the Division's Probation Services Suite for such purposes;

(4) ensure that the Department will facilitate timely Sex Offender Registration Act (SORA) compliance (registration, submission of photographs, completion of annual address verification form, change of address forms, and 48-hour forms) by the Department and by any registered sex offender subject to supervision by the Department and conduct quarterly address checks of registerable sex offenders under probation supervision as requested by the Division to verify compliance;

(5) ensure that probation officers have access to the Division's eJusticeNY;

(6) ensure that the Department uses a Division approved fully validated Risk/Need Assessment instrument for juvenile and adult offender populations;

(7) if application is made for ISP service funding, make the following assurances:

(i) defendants will be screened at the earliest/appropriate stage in the dispositional process for program participation using Division eligibility criteria, and any additional criteria developed by the Department;

(ii) the Department will maintain and update, when applicable, local eligibility criteria that will further limit the unnecessary incarceration of certain high risk offenders. These criteria shall be in accordance with Division rules and regulations and such criteria and any update shall be forwarded to the Division;

(iii) the Department will use an approved Division assessment process or instrument to identify and target those with greatest risk and needs for program participation;

(iv) the Department will reduce the number of defendants who may be unnecessarily incarcerated by diverting them into the program by facilitating a probation sentence with the condition of program participation for suitable high risk defendants who would otherwise have been incarcerated and probationers who violate the original order and conditions of probation who will be continued under probation supervision with the condition of program participation, as an alternative to incarceration;

(v) the Department will complete a full assessment of all probationer program participants' criminogenic risks and needs, using a Division approved instrument and establish a supervision plan in a timely manner;

(vi) the Department will refer all such probationers to appropriate service providers based on the case planning assessment in the supervision plan; and

(vii) the Department will ensure that all such probationer's participate and engage in all service programs, and monitor their progress.

(8) if application is made for ESSO funding, make the following assurances:

(i) the Department will ensure that all SORA Level 2 or 3 registered sex offenders under probation supervision are subject, where applicable, to the mandatory sex offender condition(s) set forth in Penal Law § 65.10(4-a), and court-ordered or interstate authorized specialized sex offender conditions which may include, but are not limited to, the internet restriction condition under Penal Law § 65.10 (5-a);

(ii) the Department will ensure that all such sex offenders are assigned to the caseload of an experienced probation officer/ probation unit who either solely or primarily supervises sex offenders, or has a significant concentration of sex offenders on the caseload, and who has received specialized training on sex offender management;

(iii) the Department will perform enhanced field work (i.e. surveillance, collateral contacts, employment visits, as well as use of electronic monitoring, global positioning systems, computer scanning, internet usage monitoring, and other enforcement initiatives) in supervising such sex offenders;

(iv) the Department will conduct at least one visit to a SORA Level 2 or 3 sex offender's home each quarter during which, at a minimum, a plain view search for prohibited items and/or substances is completed;

(v) the Department will ensure that all such sex offenders are assessed by a probation officer or treatment provider using a sex-offender specific assessment instrument approved by the Division;

(vi) the Department will ensure that all such sex offenders are referred to, participate in, or successfully complete Association for the Treatment of Sexual Abusers (ATSA)-compliant clinical evaluation and/or treatment where available;

(vii) the Department will maintain and implement a policy which provides for collaboration with other law enforcement and service agencies on: warrant execution sweeps, home visits, surveillance, searches, treatment planning, housing, and other activities related to general sex offender management;

(viii) the Department will maintain and implement a policy which provides for officers to independently or in concert with law enforcement execute warrants on Sex Offenders, including apprehending absconders who are found, pursue extradition where appropriate, and secure warrants and retake interstate sex offenders where required and/or necessitated; and

(ix) the Department will utilize polygraph examinations for the management of certain sex offenders consistent with the goals of community safety where available.

(9) If application is made for J-RISC funding, make the following assurances:

(i) the Department will use an approved Division risk and needs assessment process or instrument, refer alleged and/or adjudicated Persons In Need of Supervision(PINS) and Juvenile Delinquent (JD) youth who are determined to be high risk and appropriate for program services and conduct reassessments as necessary; and

(ii) the Department will assign juvenile probation officers trained in family intervention and cognitive behavioral techniques, youth supervision and delinquency prevention to perform program services and/or work collaboratively with evidence-based intervention provider(s) to achieve reductions in dynamic risk for J-RISC youth and to achieve successful program completion.

(10) Ensure adherence to other program goals, objectives, and performance target requirements set forth by the Division for additional state aid with respect to special/specific populations other than the populations specified in paragraphs seven, eight and nine of this subdivision.

(c) The Commissioner may require modification of the plan in order to obtain approval. Any modification of a plan requires Commissioner approval.

(d) Vouchers and program reports shall be in a format established by the Division and shall be submitted on a schedule established by the Division.

(e) Division or other governmental findings by audit or program analysis and review which show that the Department has not adhered to the approved plan of operation and/or standards governing probation practice, may be the basis for withholding the payment of State aid or recouping monies. A county or the City of New York may request reconsideration of the decision to withhold payment or recoup monies to the Office and shall submit information as to their respective position and specific details in support of its position and such other information as may be requested by the Director. After consultation with the Director, the Commissioner will render a final determination which may include the steps that are necessary to obtain funding.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire October 28, 2011.

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

Linda J. Valenti, Assistant Counsel, Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203-3764, [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:

Chapters 53 and 57 of the Laws of 2011 continued the provisions of block grant funding for probation services, originally enacted pursuant to Chapters 50 and 56 of the Laws of 2010. These 2010 Chapter laws had renamed the former Division of Probation and Correctional Alternatives (DPCA) to the Office of Probation and Correctional Alternatives (OPCA), merged OPCA within the Division of Criminal Justice Services (DCJS), specifically transferred all rules and regulations of DPCA to DCJS, and established that such rules and regulations shall continue in full force and effect until duly modified or abrogated by the Commissioner of DCJS. Additionally, other conforming statutory changes were made including the amendment of Executive Law Section 243(1) to establish in pertinent part that the Commissioner of DCJS has authority to "adopt general rules which shall regulate methods and procedure in the administration of probation services…" so as to secure the most effective application of the probation system and the most effective enforcement of the probation laws throughout the state." Such rules are binding with the force and effect of law. Further, Executive Law Section 246 was amended to revamp probation state aid funding from approvable expenditures to block grant distribution and authorize within such grant monies funding for other specific enhanced program services related to specific probation populations. State Fiscal Year 2010-2011 and 2011-2012 appropriations were enacted consistent with statutory changes in this area.

2. Legislative objectives:

These regulatory amendments are consistent with legislative intent to maintain State financial assistance to local governments for regular and/or specialized probation programming, continuing a streamlined mechanism for local government to apply for and receive probation state aid block grant monies, and to afford greater flexibility to probation departments with respect to managing probation operations. The amendments will help guarantee the stability of probation service delivery consistent with state law, rules and regulations, and additional specific state programmatic requirements, promote offender accountability and rehabilitation, and enhance public safety.

3. Needs and benefits:

The need for a new proposed regulation in this area replacing the existing probation state aid rule with a new probation state aid block grant rule is necessitated by statutory changes in the enacted 2010 and 2011 Executive Budget (L. 2010, Chapters 50 and 56 and L. 2011, Chapters 53 and 57) and the recent expiration of a 2010 emergency block grant rule which had replaced the former outdated probation state aid rule. Additionally, certain regulatory changes are sought to particular specialized sex offender funding performance measures in recognition of addressing some local issues which have arisen in complying with terms and conditions of such funding. Immediate regulatory changes must be implemented to ensure the timely distribution of probation funding to local governments to guarantee that there is no disruption of service delivery. This regulation will continue to provide local probation departments mandate relief with respect to the manner which they may apply for state monies for probation management operations. The proposed regulation has been designed to streamline application procedures, reduce program standards to core components in order to achieve fiscal efficiencies, and provide greater flexibility as to local probation department service delivery consistent with law, and good professional practice. Program standards are not new, but instead codify past contractual agreements based upon best practices and ensure the integrity of probation service delivery to the criminal justice and juvenile justice system. For general State aid block grant monies, program standards have retained DNA, Sex Offender Registration Act (SORA), eJusticeNY, and Integrated Probation Registrant System requirements from past years to promote public safety and ensure sound probation management. Probation state aid is no longer based upon detailed regulatory criteria specifying eligible reimbursement expenditures; thus, departments will have greater latitude to utilize monies for probation operations. The singular regulatory restriction mirrors State law. For Intensive Supervision Program (ISP) State aid block grant monies, program standards are consistent with respect to key program operational expectations governing screening, initial and full assessment, advocacy, case planning, referral, and monitoring consistent with existing ISP operational guidelines, policies, and agency regulations and the application is now incorporated within the annual state aid application process. For Enhanced Specialized Services for Sex Offenders (ESSO) State aid block grant monies, the program standards have been reduced to essential program components critical for enhanced supervision of high-risk sex offenders with additional minor modifications in the area of polygraph examinations and referral to treatment services that will greatly assist some departments in adhering to particular terms and conditions. Consistent with 2010 statutory changes, departments are no longer restricted in the amount of monies which can be spent for certain program activities, including those related to specialized caseload, field work, polygraph testing, and retaking or extradition of a SORA Level II or III sex offender under probation supervision. Additionally, in accordance with a change implemented in 2010, specialized ESSO monies earmarked for polygraph testing and retaking and extradition of offenders remain included in total distribution. This will optimize flexibility in utilization of such ESSO monies for program performance in this area. For Juvenile Risk Intervention Services Coordination (J-RISC) grant monies, program standards have continued 2010 funding changes which retained prior year contractual core service delivery expectations based upon evidence-based practices. J-RISC monies may be spent as departments determine appropriate to effectuate program services.

Consistent with 2010 regulatory changes, for ISP, ESSO, and J-RISC State aid block grant monies, the application continues to be incorporated within the annual state aid application process and will not require detailed budgetary information for such specialized monies. As during 2010, no longer will there be a need to seek State approval with respect to changes in local ISP, ESSO, or J-RISC budgets. Further, to receive monies there is a simplified voucher process with less documentation necessitated and due to the block grant distribution, instead of separate quarterly program vouchers previously required, a probation department will submit one voucher on a quarterly basis covering all funded division programmatic services.

4. Costs:

This regulation will not result in increased costs. Greater flexibility in utilization of probation state aid should improve fiscal efficiencies and program operations, and reduce State and local costs associated with contractual processing.

a. This regulation will not impose a cost on probation departments. Prior to 2010, departments had to apply to OPCA for re-imbursement after expenses were incurred. This regulation continues 2010 rule changes which will allow for a single application for funding prior to incurring expenses and will likely result in savings to a probation department by reducing staff effort in securing re-imbursement.

b. Although DCJS must approve each plan, this approval can be accomplished using existing staff and resources. Therefore no additional costs will be incurred. As noted above, it is anticipated that the costs to each local government may be reduced through the streamlined funding plan.

c. This cost analysis is based on the prior experience of OPCA employees in consultation with DCJS.

5. Local government mandates:

The regulatory changes do not impose any new mandates upon probation departments with respect to probation state aid funding. While prior to 2010 probation departments seeking State funding were required to apply to OPCA, since 2010 applications are made directly to DCJS.

6. Paperwork:

No additional paperwork is necessary for implementation of these regulatory changes.

7. Duplication:

These amendments do not duplicate any State or Federal law or regulation.

8. Alternatives:

This regulation is similar to last year's funding rule with respect to probation block grant monies.

Chapter 53 and 57 of the laws of 2011 continued provisions of Chapter 56 of the laws of 2010 and provisions of Executive Law Section 246 which established that state aid block grant funding with respect to regular and certain specialized program services shall be pursuant to DCJS rules and regulations. Eliminated as no longer necessary was funding of such program services pursuant to contractual agreements. DCJS developed a regulation which created a singular streamlined application procedure as to regular State aid and the three new statutorily earmarked block grant specialized services. Further, DCJS chose to simplify and clarify program performance standards with respect to core components and provide greater flexibility as to local probation department service delivery consistent with law and good professional practice. Before finalization of the 2010 emergency regulation, DCJS distributed a draft regulation to the State Probation Commission, which consists of two probation directors and a former probation officer among others appointed by the Governor and which includes the Chief Administrator of the Courts. At the Probation Commission's August 2010 meeting, DCJS received unanimous favorable endorsement from the Commission as to the approach and identification of the core components of the probation standards reflected in the regulation, as well as the manner of distribution of monies which is consistent with Chapter 56 of the Laws of 2010 amendments to Executive Law Section 246 and appropriation language found in Chapter 50 of the Laws of 2010. Regulatory implementation and funding allocation methodology were further discussed with the Council of Probation Administrators, the professional organization of probation directors and deputy directors throughout New York State, which did not raise objection.

9. Federal standards:

There are no federal standards governing probation state aid.

10. Compliance schedule:

This regulation is similar to the 2010 state aid application procedures with respect to state aid probation block grant monies. Dissemination of the new regulation to local probation departments will enable such departments to comply with the regulation and timely secure State funds without delay.

Regulatory Flexibility Analysis

1. Effect of Rule:

This new rule Part sets forth parameters governing probation state aid block grant distribution.

The regulatory changes will better assist probation departments in funding and managing their own probation operations. They will afford relief to probation departments by streamlining state aid plan application procedures with respect to provision of State financial assistance to local governments for probation programming to achieve fiscal efficiencies and provide greater flexibility in usage of state aid monies consistent with Chapters 50 and 56 of the Laws of 2010 and Chapters 53 and 56 of the Laws of 2011 and state aid block grant provisions. Changes will expedite receipt of grant monies as once approved there is no need to enter into formal contractual processing.

The amendments do not affect small business.

2. Compliance Requirements:

In order to comply with this rule, a local probation department will be required to apply to the Division of Criminal Justice Services (DCJS) prior to receiving State financial assistance. This regulation is similar to prior year state aid application procedures with respect to state aid probation monies and the reporting, record keeping and compliance requirements are similar to those of prior years. This regulation has no affect on small businesses.

3. Professional Services:

No professional services are required to comply with this regulation.

4. Compliance Cost:

The regulatory changes will not result in probation departments incurring any compliance costs.

The regulatory amendments mirror 2010 application procedures with respect to probation state aid block grant monies, and continue last year's provision of mandate relief to local probation departments with respect to the manner which they can distribute state monies for probation management operations consistent with other statutory provisions.

5. Economic and Technological Feasibility:

There are no economic or technological issues or problems arising from the proposed rule. A probation department will be able to apply for State financial assistance pursuant to this rule using existing staff and technology.

6. Minimizing Adverse Impacts:

DCJS foresees that these regulatory amendments will have no adverse impact on any local government. As noted in more detail below, the Office of Probation and Correctional Alternatives (OPCA) within DCJS collaborated with jurisdictions across the state, including rural, suburban, and urban counties, and probation professional associations in soliciting feedback as to regulatory changes in order to provide probation mandate relief. As a result of the 2010 enactment of probation state aid block grant funding and continuation of block grant funding in 2011, the proposed regulation is designed to streamline application procedures, reduce program standards to core components, and provide greater flexibility as to local probation department service delivery consistent with law, and good professional practice.

As the probation state aid block grant rule does not have any impact upon small business, the regulatory changes have no negative impact upon small business operations.

7. Small business and local government participation:

Pursuant to Executive Order No. 17, the OPCA prepared initial Rule Review Findings in October 2009 of all of its rules and regulations and disseminated the findings to all probation departments, the Council of Probation Administrators (COPA) (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, OPCA convened an October 26, 2009 meeting in Albany which was attended by over a dozen probation departments (urban, suburban, and rural counties), COPA and NYSPOA Presidents, NYSAC, and DOB representatives. OPCA staff went over all rules and regulations and reviewed them individually, discussed proposed regulatory changes, and solicited feedback from the audience.

There was considerable interest by probation professionals across the state from rural, urban, and suburban jurisdictions, for legislation which would change the distribution of probation state aid from reimbursed expenditures to probation State aid block grants to achieve greater fiscal efficiencies and provide greater flexibility in probation management operations. This block grant concept was incorporated in the 2010 Public Protection appropriation portion of the Executive Budget and other statutory language which was subsequently signed into law and continued in enactment of 2011 budgetary provisions. During 2010, DCJS disseminated the 2010 emergency rule in this area to all local probation departments. This 2011 emergency rule incorporates a few modifications with respect to funding performance requirements which will assist certain departments in achieving regulatory compliance.

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

Rural Area Flexibility Analysis

1. Types and estimated number of rural areas:

Forty-four local probation departments, which are located in rural areas, will be affected by the proposed rule.

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

The regulation imposes no new reporting, record keeping, other compliance requirements. This regulation is similar to 2010 state aid application procedures with respect to state aid probation block grant monies and the reporting, record keeping and compliance requirements are similar to those of prior years. No professional services will be necessary to comply with the regulation.

3. Costs:

The new regulatory Part will not result in increased costs.

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, the former Division of Probation and Correctional Alternatives (DPCA), now the Office of Probation and Correctional Alternatives (OPCA) within DCJS, collaborated with jurisdictions across the state, including rural areas, and probation professional associations with rural membership in soliciting feedback as to agency regulations in order to provide sound probation mandate relief. The 2010 and 2011 statutory and appropriation language with respect to probation state aid block grant is consistent with recent suggestions raised by many probation departments and communicated by the Council of Probation Administrators, the statewide professional association of probation administrators. The regulatory amendments have been designed to streamline application procedures, reduce program standards to core components, and provide greater flexibility as to local probation department service delivery consistent with law, public safety, and good professional practice.

5. Rural area participation:

Pursuant to Executive Order No. 17, the OPCA prepared initial Rule Review Findings in October 2009 of all of its rules and regulations and disseminated the findings to all probation departments, the Council of Probation Administrators (COPA) (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 OPCA convened an October 26, 2009 meeting in Albany which was attended by over a dozen probation departments (rural, urban, and suburban counties), COPA and NYSPOA Presidents, NYSAC, and DOB representatives. DPCA staff went over all rules and regulations and reviewed them individually, discussed proposed regulatory changes, and solicited feedback from the audience. There was considerable interest by some probation professionals across the state from rural, urban, and suburban jurisdictions, which gained legislative and Executive support, for legislation which would change the distribution of probation state aid from reimbursed expenditures to probation State aid block grant to achieve greater fiscal efficiencies and provide greater flexibility in probation management operations. This block grant concept was incorporated in the 2010 Public Protection appropriation portion of the Executive Budget which was subsequently signed into law and continued in enactment of 2011 budgetary provisions. The proposed regulation, which is similar in content with past expired emergency regulations, and consistent with recent statutory provisions, will achieve greater fiscal efficiencies and provide greater flexibility in probation management operations.

Job Impact Statement

The emergency regulation will have no adverse effect on private or public jobs or employment opportunities. The revisions are technical and procedural in nature and consistent with recently implemented State law probation State aid block grant language.