TDA-39-16-00006-P Operational Plans for Uncertified Shelters for the Homeless

9/28/16 N.Y. St. Reg. TDA-39-16-00006-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 39

September 28, 2016

RULE MAKING ACTIVITIES

OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. TDA-39-16-00006-P

Operational Plans for Uncertified Shelters for the Homeless

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

Proposed Action:

Addition of section 352.39 to Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 17(a)-(b), (j), 20(2)-(3), 34, 460-c and 460-d

Subject:

Operational Plans for Uncertified Shelters for the Homeless.

Purpose:

Require social services districts to submit to the Office of Temporary and Disability Assistance for review and approval operational plans and closure reports for each publicly-funded emergency shelter that currently does not fall within the scope of section 352.3(e)-(h), Part 491 or Part 900 of Title 18 NYCRR.

Text of proposed rule:

New section 352.39 of Title 18 of the NYCRR is added to read as follows:

§ 352.39. Operational Plans for Uncertified Shelters for the Homeless

(a) For purposes of this section, “emergency shelter” shall mean any facility with overnight sleeping accommodations, the primary purpose of which is to provide temporary shelter to recipients of temporary housing assistance, including but not limited to shelters for adults as defined in section 491.2 of this Title and shelters for families, either with or without children, as defined in section 900.2 of this Title.

(b) This section shall apply to emergency shelters for which social services districts receive reimbursement which do not otherwise fall within the scope of section 352.3(e)-(h), Part 491 or Part 900 of this Title and emergency shelters operated by social services districts which do not otherwise fall within the scope of section 352.3(e)-(h), Part 491 or Part 900 of this Title.

(c) A social services district may be reimbursed for costs incurred for emergency shelters and services provided by emergency shelters subject to this section only when the emergency shelters are operated pursuant to operational plans that have been approved by the Office of Temporary and Disability Assistance (the “Office”). A separate operational plan must be submitted by the social services district for each emergency shelter for which the district seeks reimbursement, or for each portfolio of emergency shelters where the emergency shelters within the portfolio are operated by a single operator and are comprised of individual apartment units within residential apartment buildings, and the operators are reimbursed by the social services district on a per diem basis.

(d) Operational Plan: For emergency shelters within the scope of this section, the operational plan must provide all of the following information concerning the facility:

(1) name and location of the facility;

(2) name and address of the entity which will operate the facility;

(3) names, addresses and occupations of the members of the board of directors, if the operator is a corporation;

(4) name and address of the owner of the land and premises, if other than the operator;

(5) financial resources and sources of future revenue of the facility;

(6) a financial statement for the shelter's most recently completed fiscal year, if any;

(7) a proposed one year budget, including estimated income and expenditures, on forms and in a manner prescribed by the Office. Such proposed budget must set forth the amount reasonable and necessary to operate and maintain the shelter;

(8) the emergency shelter’s policies and procedures;

(9) admissions policies;

(10) policies ensuring access by legal representatives and legal counsel to their clients who are residents of the facility;

(11) in shelters for families with children, policies and procedures for providing needed care, services and support of children and families consistent with applicable regulations;

(12) in shelters for families with children, arrangements for facilitating school attendance by school-age children residing in the facility, including any necessary transportation arrangements;

(13) plan for health services, including evidence of any arrangement with a fully accredited medical institution or clinic for the referral of resident families for emergency treatment. In addition, if medical supplies are to be stored at the facility or refrigeration is to be provided for personal medical supplies of residents, the arrangements for safekeeping and refrigeration of such medical supplies must be specified;

(14) procedures for assisting residents in making application for public benefits such as, but not limited to, public assistance, medical assistance, the supplemental nutrition assistance program, Supplemental Security Income, title XX or child welfare or unemployment benefits;

(15) facility staffing schedules and a description of each position, including job duties, and qualifications;

(16) plan for staff training including training concerning the emergency and disaster plan for the facility and fire safety;

(17) bathroom arrangements, including the number of toilets, sinks, showers and bathtubs and, where appropriate, the facility's provision for the bathing and changing of infants and young children;

(18) food service arrangements. If a food service provider is used, written evidence of such arrangement must be included. If food is prepared onsite provide the number of refrigerators, stoves, and microwaves. A description of the dining area and the number of chairs, tables and seating must also be included;

(19) physical structure, including land, buildings and equipment, certificate of occupancy and building descriptions including type of construction, planned renovations, and room layouts with dimensions;

(20) fire safety measures and emergency and disaster plan;

(21) resident capacity;

(22) resident rules and rights;

(23) procedures for handling involuntary discharges or transfers;

(24) description of any other programs that are operating in the building and copies of the applicable licenses and certifications;

(25) procedures and environmental safeguards designed to ensure the well-being and safety of residents if the shelter facility is located in the same building or on the same premises where another program is or will be operated; such procedures must indicate the circumstances under which common staff or joint services will be utilized; and procedures for safeguarding the confidentiality of medical records concerning residents of the shelter;

(26) procedures for informing residents of their rights as residents and a listing of said rights;

(27) facility leave and absence policy;

(28) a description of the community services available to the shelter population including public transportation, parks and recreation areas, medical and mental health services, restaurants and stores;

(29) procedures for advising residents of the conduct or activities for which temporary housing assistance may be discontinued as provided in section 352.35 of this Part;

(30) procedures which describe the facility's responsibilities in relation to the social services district's requirements for discontinuing temporary housing assistance, including notification to the social services district of acts which may be grounds for the discontinuance of temporary housing assistance;

(31) procedures for providing shelter residents with services which include at a minimum: necessary medical referrals; assistance with obtaining permanent housing; assistance with securing necessary supportive social and mental health services including but not limited to psychiatric and alcohol abuse services; assistance with securing employment assessments, job training placements, educational opportunities; and information and referral services for community agencies and programs whose services might assist residents to return to permanent housing. If any of these services are provided off site, the name, location, contact information, and description of the service provider must be included;

(32) a plan for the shelter to provide security and help ensure the physical safety of residents and staff, as required by section 352.38 of this Part;

(33) procedures for handling and documenting individual emergencies, including arranging for medical care or other emergency services, maintaining records of any special medical needs or conditions, the prescribed regimens to be followed, and the names and phone numbers of medical doctors to contact should an emergency arise concerning these conditions;

(34) procedures for handling resident complaints and grievances; and

(35) such other information as may be requested by the Office.

(e) Submission and approval:

(1) The social services district must submit a proposed operational plan for each emergency shelter addressed by this section in writing to the Office no less than 45 days before planned use of a facility as an emergency shelter or 120 days from the date this regulation becomes effective for emergency shelters currently in operation.

(2) An operational plan will be approved only when it is established that the facility will be operated in accordance with the operational plan and all applicable laws and regulations.

(f) An operational plan approved by the Office under this section will remain in effect for a maximum period of five years. No later than 60 days prior to the expiration of an operational plan, the social services district must submit on forms and in the manner prescribed by the Office, a request to renew the approval of the operational plan. Such request must include appropriate financial data; any proposed new, or changes to existing, contracts; any proposed revisions to leases or rental agreements; documentation that the facility is in compliance with applicable State and local laws, regulations, and codes; and information regarding any other changes being proposed to the current operational plan. The social services district may request an extension of the 60-day period in order to submit appropriate financial data, and the Office may grant one extension, not to exceed six months. If an extension is granted, the Office may either continue reimbursement at the approved rate or establish an interim per diem rate. State reimbursement may not exceed these per diem rates, and will continue until such time as either the appropriate financial data is submitted and the operational plan is approved, or operational plan approval by the Office is withdrawn or expired.

(g) Proposed revisions to an approved operational plan must be submitted by the social services district to the Office for approval prior to implementation. Proposed revisions are subject to the requirements of subdivision (d) of this section.

(h) In the event that an operator elects to close an emergency shelter falling within the scope of this section:

a. the social services district shall notify the Office in writing at least 120 days prior to the anticipated closure;

b. such written notice shall include a proposed plan for closure. The plan shall be subject to Office approval and shall include timetables and shall describe the procedures and actions the operator will take to:

i. notify residents of the closure, including provisions for termination of admission agreements and involuntary discharge;

ii. assess the needs and preferences of the individual residents;

iii. assist residents in locating and transferring to appropriate alternative settings; and

iv. maintain compliance with the Office’s regulations until all residents have relocated.

(i) For costs incurred by a facility that begins operation after the effective date of this Part, reimbursement may be available from the date the social services district submits its proposed operational plan provided:

(1) the facility is operational at the time the plan is submitted or within 45 days after the date of submittal;

(2) if the Office has requested additional information, the social services district submits such information within 30 days; and

(3) the operational plan is fully approved no later than one year from the date the social services district submits its proposed operational plan or a lesser time period as specified by the Office.

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

Richard P. Rhodes, Jr., New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243, [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:

Social Services Law (SSL) § 17(a)-(b) and (j) provide, in part, that the Commissioner of the Office of Temporary and Disability Assistance (“OTDA”) shall “determine the policies and principles upon which public assistance, services and care shall be provided within the state both by the [S]tate itself and by the local governmental units …”, shall “make known his policies and principles to local social services officials and to public and private institutions and welfare agencies subject to his regulatory and advisory powers …”, and shall “exercise such other powers and perform such other duties as may be imposed by law.”

SSL § 20(2) provides, in part, that the OTDA shall “supervise all social services work, as the same may be administered by any local unit of government and the social services officials thereof within the state, advise them in the performance of their official duties and regulate the financial assistance granted by the [S]tate in connection with said work.” Pursuant to SSL § 20(3)(d) and (e), OTDA is authorized to promulgate rules, regulations, and policies to fulfill its powers and duties under the SSL and “to withhold or deny State reimbursement, in whole or in part, from or to any social services district [(“SSD”)] or any city or town thereof, in the event of [their] failure… to comply with law, rules or regulations of [OTDA] relating to public assistance and care or the administration thereof.”

SSL § 34(3)(c) requires OTDA’s Commissioner to “take cognizance of the interests of health and welfare of the inhabitants of the state who lack or are threatened with the deprivation of the necessaries of life and of all matters pertaining thereto.” Pursuant to SSL § 34(3)(f), OTDA’s Commissioner must establish regulations for the administration of public assistance and care within the state by the SSDs and by the State itself, in accordance with the law. In addition, pursuant to SSL § 34(3)(d), OTDA’s Commissioner must exercise general supervision over the work of all SSDs, and SSL § 34(3)(e) provides that OTDA’s Commissioner must enforce the SSL and the State regulations within the state and in the local governmental units. Pursuant to SSL § 34(6), OTDA’s Commissioner “may exercise such additional powers and duties as may be required for the effective administration of the department and of the [S]tate system of public aid and assistance.”

SSL § 460-c (1) confers authority upon OTDA to “inspect and maintain supervision over all public and private facilities or agencies whether [S]tate, county, municipal, incorporated or not incorporated which are in receipt of public funds,” which includes emergency shelters. SSL § 460-d confers enforcement powers upon the OTDA Commissioner, or any person designated by the OTDA Commissioner, to “undertake an investigation of the affairs and management of any facility subject to the inspection and supervision provision of this article, or of any person, corporation, society, association or organization which operates or holds itself out as being authorized to operate any such facility, or of the conduct of any officers or employers of any such facility.”

2. Legislative Objectives:

It is the intent of the Legislature in enacting the above-referenced statutes that OTDA establish rules, regulations and policies to provide for the health, safety and general welfare of vulnerable families and individuals who are placed in emergency homeless shelters.

3. Needs and Benefits:

New York State’s shelter system includes a variety of homeless shelter types that provide emergency housing for homeless families with children, homeless “adult families” without children, and homeless single adults. All shelters currently are categorized as either certified – meaning they have been approved to operate a certified shelter in accordance with applicable regulations – or uncertified. Certified shelters and their operators undergo a rigorous program review, including budget reviews and supportive services program evaluations. Of the 916 homeless shelters inspected during OTDA’s recent Shelter Inspection Initiative, only 151 were certified.

The proposed regulation will require all publicly-funded uncertified emergency shelters to become certified. Specifically, the regulation will require social services districts (“SSDs”) to submit to OTDA for review and approval an operational plan for each emergency shelter currently not falling within the scope of section 352.3(e)-(h) (hotels and motels when no other suitable housing is available) or Part 491(certified adult shelters), or Part 900 (certified shelters for families) of Title 18 of the New York Codes, Rules and Regulations. However, SSDs that use cluster/scatter sites, (i.e. individual apartment units within residential apartment buildings that are used to provide temporary housing assistance) subject to the qualifications set forth in proposed subdivision § 352.39(c), are required to submit only one operational plan for each portfolio of such sites. The operational plans will include, among other things, the emergency shelter’s plans and procedures to provide security and ensure the physical safety of residents and staff, provide health services, assist residents in making applications for public benefits, and procedures for providing shelter residents with services such as medical referrals; assistance with obtaining permanent housing, assistance with securing necessary supportive social and mental health services including psychiatric and alcohol abuse services, and assistance with securing employment assessments, job training placements, and educational opportunities.

SSDs may be reimbursed for costs incurred for emergency shelters subject to this section only where those emergency shelters are certified, or in other words, operated pursuant to operational plans that have been approved by OTDA.

Expanding the certification requirement across all shelters in New York State will enable OTDA to gather in-depth information regarding uncertified shelters operating within the state, to review and approve all aspects of the operation of those shelters, and most importantly, to assure that residents of those emergency shelters are provided with safe and secure accommodations and access to necessary health and supportive services.

SSDs also will be required to provide written notice to OTDA in the event an operator elects to close the shelter subject to the proposed regulation. Such written notice will include a proposed plan for closure.

The proposed regulation is necessary to protect vulnerable, low-income individuals and families with limited or no housing options, who have placed their trust and well-being in a system that should ensure that they have access to safe and habitable emergency shelter during their difficult times. These individuals and families are being placed in emergency shelters at great expense to the taxpayers of New York, who should expect that their funds are used effectively to provide safe and secure emergency shelter to those in need. It is important for OTDA and the SSDs to be fiscally prudent and to help ensure that State, federal, and local funds are properly used when housing homeless individuals and families.

4. Costs:

For rural governments, the fiscal impact of the new regulations is anticipated to be insignificant because relatively few rural SSDs have any emergency shelters, and the rural SSDs primarily utilize commercial hotels and motels for temporary housing assistance.

For urban local governments, it is estimated that the cost to operationalize this regulation will be approximately $190,000 on an annual basis, statewide.

It is estimated that State costs associated with implementation of this regulation will be approximately $342,000 on an annual basis excluding fringe and indirect costs.

5. Local Government Mandates:

Each SSD will be responsible for preparing a separate operational plan for each emergency shelter operating within the district and submitting the operational plans to OTDA for review and approval. However, SSDs that use cluster/scatter sites, (i.e. individual apartment units within residential apartment buildings that are used to provide temporary housing assistance) subject to the qualifications set forth in proposed subdivision § 352.39(c), are required to submit only one operational plan for each portfolio of such sites. As noted above, SSDs also will be required to provide written notice to OTDA in the event an operator elects to close a shelter subject to the proposed regulation. Such written notice will include a proposed plan for closure.

6. Paperwork:

The regulatory amendments will require SSDs to prepare a separate operational plan for each emergency shelter operating within the district and submit the operational plan to OTDA for review and approval. As noted above, SSDs that use cluster/scatter sites, (i.e. individual apartment units within residential apartment buildings that are used to provide temporary housing assistance) subject to the qualifications set forth in proposed subdivision § 352.39(c), are required to submit only one operational plan for each portfolio of such sites. OTDA will approve an operational plan only when it is established that the emergency shelter will be operated in accordance with the operational plan and all applicable regulations and provisions of law. SSDs will also need to submit a written notice, including a proposed plan for closure, in the event an operator elects to close a shelter, subject to the proposed regulation.

7. Duplication:

The regulatory amendments would not duplicate, overlap, or conflict with any existing State or federal regulations.

8. Alternatives:

Inaction would jeopardize the health, welfare and safety of vulnerable individuals and families by allowing potentially dangerous conditions to continue to exist at emergency shelters that currently are not subject to OTDA oversight. OTDA does not consider this a viable alternative to the regulatory amendments.

9. Federal Standards:

The regulatory amendments would not conflict with federal statutes, regulations or policies.

10. Compliance Schedule:

The regulatory amendments would be effective on the date the Notice of Adoption is filed with the Department of State. SSDs would have 120 days from the effective date of the amendments to submit a proposed operational plan for each emergency shelter addressed by this new section if the emergency shelter is currently in operation.

Regulatory Flexibility Analysis

1. Effect of rule:

Pursuant to the State Administrative Procedure Act § 102(8), a “small business,” in part, is any business which is independently owned and operated and employs 100 or fewer individuals. This regulation will apply to small businesses that provide emergency shelters, namely approximately 800 shelters administered by not-for-profit agencies that are not heretofore subject to specific Office of Temporary and Disability Assistance (“OTDA”) regulations and reporting requirements. This regulation will also apply to all 58 social services districts (“SSDs”) in the State.

2. Compliance requirement:

The regulation will require that SSDs submit to OTDA the proposed operational plans, the contents of which are set forth in the regulation, for all emergency shelters for which a SSD receives reimbursement or emergency shelters operated by SSDs not falling within the scope of section 352.3(e)-(h), Part 491 or Part 900 of this Title. However, SSDs that use cluster/scatter sites, (i.e. individual apartment units within residential apartment buildings that are used to provide temporary housing assistance) subject to the qualifications set forth in proposed subdivision § 352.39(c), are required to submit only one operational plan for each portfolio of such sites. OTDA will assess the adequacy of the plan and will approve same only if it is established that the facility will be operated in accordance with the operational plan and all applicable regulations and provisions of law. For shelters subject to the proposed regulation, SSDs also will be required to provide written notice to OTDA in the event an operator elects to close the shelter. Such written notice will include a proposed plan for closure.

3. Professional services:

It is anticipated that the need for additional professional services will be limited. The regulation establishes reporting requirements upon SSDs who will likely implement such requirements on operators of emergency shelters which OTDA anticipates should be fulfilled without the need for securing professional services.

4. Compliance costs:

For rural governments, the fiscal impact of the new regulations is anticipated to be insignificant because relatively few rural SSDs have any emergency shelters, and the rural SSDs primarily utilize commercial hotels and motels for temporary housing assistance.

For urban local governments, it is estimated that the cost to operationalize this regulation will be approximately $190,000 on an annual basis, statewide.

5. Economic and technological feasibility:

Operators of emergency shelters and SSDs should already have the economic and technological abilities to comply with the regulation.

6. Minimizing adverse impact:

OTDA does not anticipate that the reporting requirements established by the regulation will adversely impact emergency shelters and SSDs. The regulation should not provide exemptions because this would not serve the purposes of helping to ensure the health and safety of all emergency shelter residents and protecting these vulnerable residents from dangerous conditions.

7. Small business and local government participation:

It is anticipated that small businesses and SSDs will be dedicated to implementing the regulation and protecting the health, safety, and general welfare of residents and staff of emergency shelters.

Rural Area Flexibility Analysis

1. Types and estimate numbers of rural areas:

The regulation will apply to all social services districts (“SSDs”), which includes 44 rural SSDs and the emergency shelters located in those areas. The regulation would also apply to small businesses, including not-for-profit entities that are considered uncertified emergency shelters and which provide temporary shelter to recipients of temporary housing in those rural counties.

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

Rural SSDs will be responsible for producing and submitting the required operational plans to the Office of Temporary and Disability Assistance (“OTDA”) for emergency shelters for which rural SSDs receive reimbursement or emergency shelters operated by rural SSDs, which do not otherwise fall within the scope of section 352.3(e)-(h), Part 491 or Part 900. The rural SSDs will be responsible for verifying that the operational plans are consistent with statutory and regulatory requirements. As a result, there would be additional reporting requirements for rural SSDs that have uncertified emergency shelters in their districts. However, since many of the uncertified shelters are in urban districts, the rural SSDs will be less impacted by the addition of the regulation. The rural SSDs also will be required to provide written notice to OTDA when a shelter subject to the proposed regulation is to be closed.

Pursuant to the proposed regulation, rural SSDs would need to comply with new requirements concerning the submission to, and approval by, OTDA of operational plans for uncertified emergency shelters, and the submission of required closing plans. The reporting costs are not expected to be significant because rural SSDs primarily utilize commercial hotels and motels for temporary housing assistance placements and will not be required to submit operational plans for those hotels and motels.

3. Costs:

The proposed regulation will likely require some local resources as rural SSDs will have new reporting and budget development requirements. The reporting costs are not expected to be significant because, as discussed above, rural SSDs primarily utilize commercial hotels and motels for temporary housing assistance placements and will not be required to submit operational plans.

4. Minimizing adverse impact:

The proposed regulation attempts to minimize any adverse economic impact on emergency shelters in rural counties and in rural SSDs. The regulations should not provide exemptions relating to the required submission of operational plans because this would not serve the purposes of ensuring the health and safety of all residents in rurally-located emergency shelters and protecting these vulnerable individuals from dangerous conditions. As noted above, the fiscal impact of the regulation is anticipated to be insignificant in rural SSDs.

Rural area participation:

It is anticipated that small businesses and rural SSDs will be dedicated to implementing the proposed regulation and protecting the health, safety and general welfare of residents of temporary housing placements.

Job Impact Statement

A Job Impact Statement is not required for this regulation. The purpose of the regulation is to require social services districts (“SSDs”) to submit to the Office of Temporary and Disability Assistance (the “Office”) an operational plan for each emergency shelter within the SSD that does not fall within the scope of Section 352.3(e)-(h), Part 491, or Part 900 of Title 18 of the New York Code of Rules and Regulations. SSDs will be reimbursed for costs incurred for emergency shelters and services provided by emergency shelters subject to this section only where those emergency shelters are operated pursuant to operational plans that have been approved by OTDA. A separate operational plan must be submitted by a SSD for each emergency shelter for which a SSD seeks reimbursement. However, SSDs that use cluster/scatter sites, (i.e. individual apartment units within residential apartment buildings that are used to provide temporary housing assistance) subject to the qualifications set forth in proposed subdivision § 352.39(c), are required to submit only one operational plan for each portfolio of such sites. SSDs also will be required to provide written notice to OTDA in the event an operator elects to close a shelter subject to the proposed regulation. Such written notice will include a proposed plan for closure. It is apparent from the nature and the purpose of the regulation that it will not have a substantial adverse impact on jobs and employment opportunities in the private sector, in the SSDs, or in the State. Thus, the regulatory amendments will not have an adverse impact on jobs and employment opportunities in New York State.