CFS-39-16-00002-P Provisions Relating to the Revocation, Suspension, Limitation or Denial of an Operating Certificate for an Adult Care Facility

9/28/16 N.Y. St. Reg. CFS-39-16-00002-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 39

September 28, 2016

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-39-16-00002-P

Provisions Relating to the Revocation, Suspension, Limitation or Denial of an Operating Certificate for an Adult Care Facility

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

Proposed Action:

Amendment of section 485.5 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20(3)(d), 34(3)(f), 460 and 460-b

Subject:

Provisions relating to the revocation, suspension, limitation or denial of an operating certificate for an adult care facility.

Purpose:

To conform the provisions for actions taken on operating certificates for adult care facilities to State law.

Text of proposed rule:

Subdivisions (o) and (p) of section 485.5 of Part 485 are amended to read as follows:

(o)(1) The operating certificate of any facility [shall]may be revoked, suspended[,] or limited, or an application for an operating certificate denied, if an individual operator, or a member of the board of directors, the executive director or chief administrative officer of a not-for-profit operator is or has been within 10 years:

([1]i) convicted of a class A, B or C felony;

([2]ii) convicted, in another state or in Federal court, of a crime which would, if committed in New York State, be considered a class A, B or C felony; or

([3]iii) convicted of a felony or class A misdemeanor related to the provision of care [for]to dependent adults or children.

(2) Such revocation, suspension or limitation of an operating certificate, or denial of an application for an operating certificate, must be preceded by a determination that:

(i) there is a direct relationship between one or more of the criminal convictions and the fitness of the individual to perform related duties or responsibilities; or

(ii) granting the individual a license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

(p) Each of the following factors must be considered in determining whether the findings stated in subparagraphs (i) and (ii) of paragraph (2) of subdivision (o) above apply:

(1) the public policy of the State to encourage the licensure of persons previously convicted of one or more criminal offenses;

(2) the specific duties and responsibilities necessarily related to the license sought or held by the person;

[Notwithstanding subdivision (n) of this section, revocation, suspension or limitation of an operating certificate or denial of an application shall not be automatic if the individual holds a valid certificate of relief from disabilities issued in accord with the State Correction Law. Any decision to take action to deny, revoke, suspend or limit a certificate in such instances shall be based on consideration of the following factors:]

([1]3) the bearing the criminal offense or offenses for which the individual was previously convicted will have on his or her fitness to perform related duties or responsibilities;

([2]4) the time which has elapsed since the occurrence of the criminal offense or offenses;

([3]5) the age of the individual at the time of the occurrence of the criminal offense or offenses;

([4]6) the seriousness of the criminal offense or offenses;

([5]7) any information produced by the individual to demonstrate rehabilitation and good conduct, including but not limited to a valid Certificate of Relief from Disabilities or Certificate of Good Conduct issued in accordance with the State Correction Law; and

([6]8) the interest of the department in protecting the safety and welfare of residents or potential residents of adult care facilities[.], as well as the general public.

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

Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, [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:

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 both by the state itself and by the local governmental units, in accordance with the law.

Section 460 of the SSL among other things establishes comprehensive responsibility of OCFS, the Department of Health (DOH) and the Office of Temporary and Disability Assistance (OTDA) for residential care programs for adults.

Section 460-b of the SSL provides that no facility subject to inspection and supervision by OCFS, DOH or OTDA, except those operated by a State department or agency, or licensed or certified to operate by a State department or agency or authorized agency, shall be operated unless it possesses a valid operating certificate issued pursuant to Article 7 of the SSL.

2. Legislative Objectives:

The purpose of Section 460 of the SSL is to provide for the development and administration of programs, standards and methods of operation, and all other matters of state policy, with respect to residential care programs for adults and children, and all facilities and agencies, whether public or private, subject to the provisions of SSL Article 7, of the highest quality, efficiently produced and properly utilized at a reasonable cost. The purpose of Section 460-b of the SSL is to require that such facilities (except those operated by a state department or agency, or a facility which pursuant to law is licensed or certified to operate by a state department or agency or by an authorized agency) possess a valid operating certificate specifying who the operator of the facility shall be, the kind or kinds of care and services such facility is authorized to provide, the capacity of the facility, the location of the facility and, except in the case of a facility operated by an authorized agency, the duration of the period of its validity. The application shall be approved and an operating certificate shall be issued when it is established that the facility meets, and will be operated in accordance with, the requirements of law and regulations, including requirements as to the premises, equipment, personnel, care and services, rules, by-laws and administrative practices.

3. Needs and Benefits:

State Correction Law Article 23-A provides that it is the public policy of the State to encourage the employment and licensure of people with criminal convictions, consistent with public safety. Pursuant to that policy, as specified in State Correction Law Sections 752 and 753, a State agency, commission, board, department or other entity issuing occupational licenses with discretionary authority is required to issue a license, certification, registration or other official approval to work or practice an occupation or operate a business to an otherwise qualified applicant with prior criminal convictions unless (i) there is a direct relationship between one or more of the previous convictions and the duties required of the specific license; or (ii) granting the individual a license would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public. The existing 18 NYCRR § 485.5 provides for a mandatory revocation, suspension, limitation or denial of an operating certificate for an adult care facility, based on a criminal conviction of an individual operator, or a member of the board of directors, the executive director or chief administrative officer of a not-for-profit operator, unless such individual holds a valid certificate of relief from disabilities, in which case a decision can be based on certain factors. This revision conforms and clarifies the provisions of § 485.5 consistent with State Correction Law Article 23-A by limiting a revocation, suspension, limitation or denial of an operating certificate for an adult care facility based on a criminal conviction of the cited persons to those instances in which there is a direct relationship between one or more of the previous criminal offenses and duties required of the certificate, or certifying the applicant would involve an unreasonable risk to property or the safety or welfare of a specific individual or the general public. In determining whether each of these apply, agencies are to consider each of the factors set out in State Correction Law § 753, which are listed for expediency’s sake in § 485.5(p).

4. Costs:

Costs for the Implementation of and Continuing Compliance with these Regulations to the Regulated Entity:

To the extent that an operating certificate for an adult care facility may previously have, based on a criminal conviction of an individual operator, or a member of the board of directors, the executive director or chief administrative officer of a not-for-profit operator, been subject to a mandatory denial, revocation, suspension or limitation, this revision will provide such an applicant an opportunity to provide materials to establish that an operating certificate should not be denied, revoked, suspended or limited. There may be an additional unquantifiable cost to such applicants to gather and provide the materials to the department.

Cost to State and Local Government:

There will be no additional cost to the general public, state and local government, other than to the extent that potential applicants, who may have previously not applied for an operating certificate because of anticipated denial due to a mandatory bar, may now be more likely to submit applications to local social services districts.

Cost to the Department of Health, Office of Children and Family Services and Office of Temporary and Disability Assistance:

There will be no cost to the Department and Offices, other than to the extent that they could previously have taken automatic actions based on a criminal conviction but may now have to devote staff time to consider whether certain factors weigh against the presumption that a criminal conviction does not require denial, revocation, suspension or limitation of an operating certificate.

5. Local Government Mandates:

This revision does not create any additional mandates upon local governments.

6. Paperwork:

This revision does not create any new reporting or paperwork requirements.

7. Duplication:

This measure does not duplicate, overlap or conflict with a State or federal statute or rule.

8. Alternatives:

There are no other viable alternative approaches. This revision will more completely articulate the policy of encouraging employment and licensure of persons with prior criminal convictions, consistent with State Correction Law Article 23-A.

9. Federal Standards:

This regulatory amendment does not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance Schedule:

This proposed rule will go into effect upon publication of a Notice of Adoption in the State Register.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Business and Local Governments is not included in accordance with Section 202-b of the State Administrative Procedure Act (SAPA). This regulation does not impose an adverse economic impact, or reporting, recordkeeping or other compliance requirements on small businesses or local governments, other than to the extent that applications may be submitted by some who would not have previously applied because of anticipated automatic disqualification.

Cure Period

A cure period was not included in this rule. This proposal removes mandatory revocation, suspension, limitation or denial of an operating certificate for an adult care facility, thus offering opportunities for an operating certificate that were previously unavailable. A cure period would not be appropriate.

Rural Area Flexibility Analysis

Pursuant to section 202-bb of the State Administrative Procedure Act (SAPA), a rural area flexibility analysis is not required. These provisions apply uniformly throughout New York State, including all rural areas. The proposed rule will not impose any adverse economic impact on rural areas, nor will it impose any additional reporting, record keeping or other compliance requirements on public or private entities in rural areas.

Job Impact Statement

A Job Impact Statement is not included in accordance with Section 201-a (2) of the State Administrative Procedure Act (SAPA), because as is apparent from its nature and purpose, this revision will not have a substantial adverse impact on jobs and employment opportunities.