PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 450 to Title 18 NYCRR.
Statutory authority:
Social Services Law, sections 20, 34 and 404
Subject:
Limited secure regulations.
Purpose:
To establish regulations for residential facilities providing limited secure care within a social services district.
Substance of proposed rule (Full text is posted at the following State website:http://ocfs.ny.gov):
The proposed regulations would add 18 NYCRR Part 450.
Proposed section 450.1 provides that Part 450 would apply to limited secure facilities operated as part of a juvenile justice close to home initiative.
Proposed section 450.2 provides definitions of terms as used in Part 450.
Proposed section 450.3 describes the approval process and the means by which a social service district or voluntary authorized agency would obtain an operating certificate for a limited secure facility from the Office of Children and Family Services (OCFS), cross-referencing to 18 NYCRR Parts 476 and 477.
Proposed section 450.4 provides standards and requirements related to the placement or transfer of a youth placed in the custody of a local social service commissioner for placement in a limited secure facility.
Proposed section 450.5 sets forth physical plant requirements for buildings used for a limited secure facility. Such buildings would be required to meet specific requirements pertaining to applicable federal, State and local laws, ordinances, rules and regulations. The proposed regulations would prescribe criteria for living spaces, personal hygiene, living area aesthetics, and physical plant suicide prevention precautions. In addition the bedroom, recreation, and food service areas and their size, content, and service capacity are specified by this section. The section also provides specific criteria pertaining to health service provision.
Proposed section 450.6 delineates the building security requirements for limited secure facilities, including:
• security of the perimeter, which would require lighting or motion sensors, and measures to prevent youth from leaving the facility without authorization,
• designated secured entries and exit points for all persons and the ability to prevent access by the general public,
• the option to use fences,
• the issuance and of numbered keys for staff only, their return at a centralized location, and a record of all key transactions; and
• the use of closed circuit video for certain parts of the facility, with the capacity to retrieve, download and review the video as necessary and maintain the video as needed for investigation of incidents reported to the Justice Center for the Protection of People with Special Needs.
Proposed section 450.7 restricts the use of restraint and room isolation, prohibits prone restraints, and requires the use of behavior support plans to address means by which restraint can be avoided or best applied as per medical, clinical, and developmental considerations. The section regulates the use of mechanical restraints, permitting their use only after all other means of intervention are attempted and failed. There would be specific time frames and standards for the actual application of the mechanical restraint, requirements regarding authorization to use mechanical restraints, medical restrictions on the use of such restraints, and requirements for reporting the use of mechanical restraints to OCFS. The section also provides standards and requirements for the use of room isolation.
Proposed section 450.8 specifies the criteria for approval of and conducting personal searches of youth and facility area searches. It also requires confiscation of any contraband found and documentation requirements.
Proposed section 450.9 identifies other applicable standards that would apply to limited secure facilities, including:
• Applicable provisions of Family Court Act;
• Section 404 of the Social Services Law (SSL);
• 18 NYCRR Part 441;
• 18 NYCRR Part 443;
• As applicable to the type of facility, 18 NYCRR Part 442, 447 or 448; and
• Section 372 of the SSL as it pertains to youth records and confidentiality.
Proposed section 450.10 provides the process for local social service districts and voluntary authorized agencies requesting waivers to regulations applicable to limited secure facilities.
Text of proposed rule and any required statements and analyses may be obtained from:
Public Information Officer, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer NY 12144, (518) 473-7793
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:
Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office of Children and Family Services (OCFS) to establish rules and regulations to carry out its powers and duties pursuant to the provisions of the SSL.
Section 34(3)(f) of the SSL requires the Commissioner of OCFS to establish regulations for the administration of public assistance and care within the State.
Section 404(10) of the SSL requires OCFS to promulgate regulations governing the operation of limited secure facilities under a close to home program.
Section 462(1)(a) of the SSL requires the Commissioner of OCFS to promulgate regulations concerning standards of care and treatment provided by residential programs for children.
2. Legislative objectives:
Youth in placement exhibit a wide array of needs, including physical and mental health, substance abuse and educational and vocational services. In addition, youth adjudicated as juvenile delinquents require assessments involving risk, family dynamics and issues, and the development of pro-social skills. Programs must be equipped to address identified needs of youth in order to promote success. Locating limited secure programs closer to a youth’s home community provides an opportunity to support the youth in building positive relationships within their communities and family. Familial relationships and the development of beneficial community resources require support that is enhanced by professionals that reside in the area of the placement location. Professional services, culturally competent education and interventions, in addition to efforts to improve family relationships by virtue of proximity and increased likelihood of visiting, are absolutely essential for youth to maintain progress made during placement following the end of placement. The proposed regulations provide the requirements of operating, by any local social services district or voluntary agency, a limited secure facility providing residential care for youth requiring a limited secure setting within said district. The proposed regulations support SSL section 404 and the close to home initiative for juvenile delinquents requiring placement in limited secure settings.
3. Needs and benefits:
Limited secure placements provide services that thoroughly assess youth needs, and provide individualized support and comfortable, safe, and therapeutic residential environments that are conducive to positive youth growth, change, and success. The proposed regulations provide the foundations for the ability to care for youth in a developmentally appropriate way in an environment where staff and youth are engaged in therapeutic programming that promote youth success.
The proposed regulations clarify and expand existing requirements given to social service districts concerning the care, protection and treatment of youth adjudicated as juvenile delinquents with a need to be placed in a limited secure setting. This includes the process for applying for operating certificates, youth placement and transfer, enhancing physical plants for safety and protection of youth and staff per the Americans with Disabilities and Prison Rape Elimination Acts, and increasing security elements. In addition, as per the proposed regulations, facility environments are to be aesthetically home-like to the extent reasonably possible, offering age and culturally appropriate activities, ample areas for food service, personal hygiene, and recreation activities. The proposed regulations would also prohibit prone restraint, restrict the use of mechanical restraints and room isolation, and provide rules for conducting youth searches.
4. Costs:
The FY 2016 Executive Budget provides $41.4M in state General Funds to continue providing services to all juvenile delinquents adjudicated by a family court in New York City as needing services or placement other than placement in a secure facility. Services include, but are not limited to: Home-Like Residential Placement, Case Coordination Services, Permanency and Discharge Planning, Aftercare Treatment Planning and Oversight, Medical and Mental Health Care, Alcohol and Substance Abuse Treatment, Education while in placement, Family Engagement and Transition Planning.
5. Local government mandates:
A social service district is not required to establish a juvenile justice close to home initiative. For those districts that opt to do so, such districts must obtain prior approval from OCFS of its plan for establishing and implementing a juvenile justice close to home initiative. The initiative may, but is not required to, include placement of juvenile delinquents in limited secure settings. Those social services districts that opt to include in their close to home initiative youth who require placement in a limited secure setting would be required to comply with the proposed regulations. For those districts, the standards in the proposed regulations are necessary for the protection of the health and safety of the juvenile delinquents in the facility and persons in the surrounding community.
6. Paperwork:
The regulations would require that a social services district or voluntary agency proposing to establish a limited secure facility apply for an operating certificate from OCFS. The district or agency would be required to submit an application form, information on the kinds of care and services to be provided, a description of the facility, a plan for conducting background checks on staff, a staffing plan with descriptions of the duties and qualifications of staff positions, copies of proposed policies, a description of the financial resources and anticipated revenues of the facility, information on the ownership and control of the land and premises if not owned by the district or agency, and (for an agency) information on the board of directors. (These are the same requirements that apply to any district or agency applying for an operating certificate for other than limited secure facilities.) Records concerning the youth in residence will be required to be recorded in CONNECTIONS, which is New York’s automated child welfare record system. Each limited secure facility would be required to have a written procedure governing the issuance of keys to staff and the use and control of keys. A facility seeking a waiver of a regulation would be required to submit a written request for such waiver. The regulations would also require that a local social services commissioner seeking to transfer a youth in a limited secure facility to secure facility operated by OCFS would have to petition the family court seeking an order for such transfer.
7. Duplication:
The proposed regulations do not duplicate other state or federal requirements.
8. Alternatives:
The option for a social services district to apply for approval to operate a close to home initiative including limited secure facilities is in statute. No significant alternative approaches to implementing the statutory provision were considered.
9. Federal standards:
The proposed regulations comply with applicable federal standards.
10. Compliance schedule:
The proposed regulations would take effect immediately upon adoption. Because the regulations require that a social services district have an approved close to home plan before a district or voluntary agency could apply for an operating certificate for a limited secure facility, compliance would become necessary for those districts opting to operate a close to home initiative that includes limited secure placements at such time as they receive OCFS approval of their plan and the limited secure facilities seek operating certificates.
Regulatory Flexibility Analysis
1. Effect on Small Businesses and Local Governments:
The statutory authority for operation of a close to home initiative in section 404 of the Social Services Law currently restricts operation of close to home initiatives to New York City. Accordingly, the proposed regulations will have an impact only upon the New York City social services district. If the underlying statute is amended to extend the option of operating a close to home initiative Statewide, the regulations would affect all social service districts and authorized voluntary agencies. In New York State there are 58 social service districts and approximately 83 voluntary authorized agencies.
2. Compliance Requirements:
The proposed regulations would require that a social services district seeking to transfer a youth in a limited secure facility to a secure facility operated by OCFS notify OCFS of the intent to petition the family court seeking an order authorizing such transfer.
The proposed regulations would require that a social services district or voluntary agency proposing to establish a limited secure facility apply for an operating certificate from OCFS. The district or agency would be required to submit an application form, information on the kinds of care and services to be provided, a description of the facility, a plan for conducting background checks on staff, a staffing plan with descriptions of the duties and qualifications of staff positions, copies of proposed policies, a description of the financial resources and anticipated revenues of the facility, information on the ownership and control of the land and premises if not owned by the district or agency, and (for an agency) information on the board of directors. (These are the same requirements that apply to any district or agency applying for an operating certificate for other than limited secure facilities.) Records concerning the youth in residence will be required to be recorded in CONNECTIONS, which is New York’s automated child welfare record system. Each limited secure facility would be required to have a written procedure governing the issuance of keys to staff and the use and control of keys. A facility seeking a waiver of a regulation would be required to submit a written request for such waiver. The regulations would also require that a local social services commissioner seeking to transfer a youth in a limited secure facility to secure facility operated by OCFS would have to petition the family court seeking an order for such transfer.
3. Professional Services:
These proposed regulations would not create the need for additional professional services for small businesses or local governments.
4. Compliance Costs:
The FY 2016 Executive Budget provides $41.4M in state General Funds to continue providing services to all juvenile delinquents adjudicated by a family court in New York City as needing services or placement other than placement in a secure facility. Services include, but are not limited to: Home-Like Residential Placement, Case Coordination Services, Permanency and Discharge Planning, Aftercare Treatment Planning and Oversight, Medical and Mental Health Care, Alcohol and Substance Abuse Treatment, Education while in placement, Family Engagement and Transition Planning.
5. Economic and Technological Feasibility:
Operation of a close to home initiative is not mandated, so any social services district can avoid any costs by opting to not operate such an initiative. For those districts that seek, and are approved, to operate a close to home initiative that includes limited secure facilities, the proposed regulations should not have an adverse economic impact, as the operation of close to home initiative may reduce the cost of care of youth in limited secure settings.
The proposed regulations would require that social services districts maintain case records on youth in limited secure facilities in CONNECTIONS, which is the Statewide child welfare records system. Since CONNECTIONS is maintained by the State, there would be no technological issues with this requirement. The proposed regulations would also require that limited secure facilities have closed circuit video coverage of parts of the facility. The necessary technology exists and is readily available.
6. Minimizing Adverse Impact:
Operation of a close to home initiative is not mandated, so any social services district can avoid any costs by opting to not operate such an initiative. For those districts that seek, and are approved, to operate a close to home initiative that includes limited secure facilities, the proposed regulations should not have an adverse economic impact, as the operation of close to home initiative may reduce the cost of care of youth in limited secure settings. Nothing in the proposed regulations would adversely affect small businesses. Accordingly, it is not anticipated that the proposed regulations will result in an adverse impact on local government agencies or small businesses.
7. Small Business and Local Government Participation:
The statutory authority for operation of a close to home initiative in section 404 of the Social Services Law currently restricts operation of close to home initiatives to New York City. Accordingly, the proposed regulations will have an impact only upon the New York City social services district. Draft versions of the proposed regulations have been shared with the New York City Administration for Children’s Services, and their input was considered in developing the proposed regulations. There was also a discussion with representatives of other social services districts of the concepts and intentions underlying the proposed regulations, which occurred at a meeting of the New York Public Welfare Association.
Rural Area Flexibility Analysis
1. Types and estimated number of rural areas:
The statutory authority for operation of a close to home initiative in section 404 of the Social Services Law currently restricts operation of close to home initiatives to New York City. Accordingly, the proposed regulations have not been shared with rural areas, as rural areas would not be immediately affected by the regulations. In the event that the statute is amended to extend the option of operating a close to home initiative throughout the State, the proposed regulations would affect the 44 social services districts and approximately 35 voluntary authorized agencies that are in rural areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The proposed regulations implement the requirements of the operation of a limited secure facility by any local social service district or voluntary agency.
The proposed regulations would require that a social services district seeking to transfer a youth in a limited secure facility to a secure facility operated by OCFS notify OCFS of the intent to petition the family court seeking an order authorizing such transfer.
The proposed regulations would require that a social services district or voluntary agency proposing to establish a limited secure facility apply for an operating certificate from OCFS. The district or agency would be required to submit an application form, information on the kinds of care and services to be provided, a description of the facility, a plan for conducting background checks on staff, a staffing plan with descriptions of the duties and qualifications of staff positions, copies of proposed policies, a description of the financial resources and anticipated revenues of the facility, information on the ownership and control of the land and premises if not owned by the district or agency, and (for an agency) information on the board of directors. (These are the same requirements that apply to any district or agency applying for an operating certificate for other than limited secure facilities.) Records concerning the youth in residence will be required to be recorded in CONNECTIONS, which is New York’s automated child welfare record system. Each limited secure facility would be required to have a written procedure governing the issuance of keys to staff and the use and control of keys. A facility seeking a waiver of a regulation would be required to submit a written request for such waiver. The regulations would also require that a local social services commissioner seeking to transfer a youth in a limited secure facility to secure facility operated by OCFS would have to petition the family court seeking an order for such transfer.
The proposed regulations would not specifically require any professional services.
3. Costs:
The FY 2016 Executive Budget provides $41.4M in state General Funds to continue providing services to all juvenile delinquents adjudicated by a family court in New York City as needing services or placement other than placement in a secure facility. Services include, but are not limited to: Home-Like Residential Placement, Case Coordination Services, Permanency and Discharge Planning, Aftercare Treatment Planning and Oversight, Medical and Mental Health Care, Alcohol and Substance Abuse Treatment, Education while in placement, Family Engagement and Transition Planning.
4. Minimizing adverse impact:
The operation of a close to home initiative that includes the operation of limited secure facilities is not mandatory. Districts that seek, and are approved, to operate a close to home initiative including limited secure facilities may save some money by lowering the costs of care of youth in limited secure programs. Accordingly, it is not anticipated that the proposed regulations will result in an adverse impact on social service districts in rural areas. The proposed regulations would not adversely affect businesses that are in rural areas.
5. Rural area participation:
The statutory authority for operation of a close to home initiative in section 404 of the Social Services Law currently restricts operation of close to home initiatives to New York City. Accordingly, the proposed regulations have not been shared with rural areas, as rural areas would not be affected by the regulations unless there is a change in the underlying statute. There was, however, a discussion with representatives of other social services districts of the concepts and intentions underlying the proposed regulations, which occurred at a meeting of the New York Public Welfare Association.
Job Impact Statement
The proposed regulations will not have a negative impact on jobs or employment opportunities in either public or private child welfare agencies. Accordingly, a job impact statement has not been prepared for the proposed regulations as the proposed regulations will not result in the loss of any jobs.
