TDA-39-15-00016-P Temporary Housing Placements  

  • 9/30/15 N.Y. St. Reg. TDA-39-15-00016-P
    NEW YORK STATE REGISTER
    VOLUME XXXVII, ISSUE 39
    September 30, 2015
    RULE MAKING ACTIVITIES
    OFFICE OF TEMPORARY AND DISABILITY ASSISTANCE
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. TDA-39-15-00016-P
    Temporary Housing Placements
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    Amendment of sections 352.8(b)(1) and 352.3(h); and addition of section 352.3(m) to Title 18 NYCRR.
    Statutory authority:
    Social Services Law, sections 20(2), (3)(d), 34 and 131-v(4)
    Subject:
    Temporary Housing Placements.
    Purpose:
    Adjust the rate approval process for temporary housing placements and expand the scope of inspections for such placements.
    Text of proposed rule:
    Paragraph (1) of subdivision (b) of section 352.8 of Title 18 NYCRR is amended to read as follows:
    (1) An allowance for each recipient or family purchasing room and/or board to cover the cost of board, room rent and other expenses, except where such items and services are furnished by a legally responsible relative or a recipient of public assistance. This allowance, including but not limited to rates set for entities governed by section 352.3(e) of this Part, is subject to review and approval by the Office of Temporary and Disability Assistance (the office) pursuant to a timetable established by the office in accordance with paragraph (2) of this subdivision. For each recipient or family purchasing room and/or board from an individual, family or from a commercially operated boarding house, such allowance cannot exceed the sum of the statewide monthly grant and allowance, the statewide monthly home energy payments, the statewide monthly supplemental home energy payments and the local agency monthly shelter allowance schedule without children as contained in section 352.3(a)(1) of this Part.
    Subdivision (h) of section 352.3 of Title 18 NYCRR is amended to read as follows:
    (h) Inspection. Local social services districts which make hotel/motel referral must inspect at least once every six months the hotels/motels in which families are placed. In addition to verifying that the hotel/motel meets the requirements set forth in subdivision (g) of this section, the local district shall make appropriate inquiries to determine whether the hotel/motel is in compliance with all applicable State and local laws, regulations, codes and ordinances. Any violation found during the on-site inspection shall be reported to appropriate authorities. Further, each inspection shall at least review arrangements for hygiene, vermin control, security, furnishings, cleanliness and maintenance and shall include a review of any applicable documents pertaining to compliance with any local laws or codes. A written report shall be made of each such inspection and shall be maintained at the office of the local district together with such other information as the district may maintain concerning the families placed in the hotel/motel. A copy of any such inspection report shall be provided to the Office of Temporary and Disability Assistance within thirty days of its completion.
    A new subdivision (m) is added to section 352.3 of Title 18 NYCRR to read as follows:
    (m) Inspection of Shelter Placements. Social services districts that make referrals for temporary emergency shelter for eligible homeless households to dwelling units, which will be paid for by public funds, that are not otherwise governed by section 460 of the Social Services Law, Parts 900 and 491 of this Title, or section 352.3(h) of this Part, shall submit for approval by the Office of Temporary and Disability Assistance health and safety standards for those units which comport with all applicable State and local laws, regulations, codes and ordinances. Additionally, social services districts shall be responsible for the inspection of such dwelling units at least once every 12 months to confirm that such standards are satisfied. A written report shall be made of each such inspection and shall be maintained at the office of the social services district together with such other information as the social services district may maintain concerning the households placed in the dwelling unit. A copy of any such inspection report shall be provided to the Office of Temporary and Disability Assistance within thirty days of its completion.
    Text of proposed rule and any required statements and analyses may be obtained from:
    Jeanine Behuniak, New York State Office of Temporary and Disability Assistance, 40 North Pearl Street, 16C, Albany, New York 12243, (518) 474-9779, email: Jeanine.Behuniak@otda.ny.gov
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    45 days after publication of this notice.
    This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
    Regulatory Impact Statement
    1. Statutory Authority:
    Social Services Law (SSL) § 20(2) provides, in part, that the Office of Temporary and Disability Assistance (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 state in connection with said work.” Pursuant to SSL § 20(3)(d), OTDA is authorized to promulgate regulations and policies to fulfill its powers and duties under the SSL.
    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 social services districts (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.
    SSL § 131-v(4), which governs temporary emergency shelters operated by a not-for-profit or charitable entity under contract with the SSD, requires the SSDs to submit for OTDA’s approval health and safety standards that such units must satisfy, and SSDs must inspect such units regularly to ensure that such standards are satisfied.
    2. Legislative Objectives:
    It is the intent of the Legislature in enacting the above 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 temporary housing accommodations.
    3. Needs and Benefits:
    The State regulations at 18 NYCRR § 352.8(b) presently authorize SSDs to negotiate and establish rates for the provision of room and board, including temporary housing. Currently, room and board rates are set without OTDA participation, and SSDs have wide flexibility in setting and adjusting these rates. The proposed amendments would adjust the rate setting process and authorize review and approval by OTDA of the room and board rates prior to their implementation by the SSDs. With this authority, OTDA would be able to help ensure that rates for temporary housing negotiated between SSDs and temporary housing providers are fair and affordable, and that they include services necessary to assist vulnerable families and individuals in their transitions out of homelessness. Such requirement for OTDA review and approval would facilitate reimbursements to SSDs that reflect the provision of services necessary to transitioning out of homelessness as required by law and regulation.
    State regulations presently contain inspection requirements. For instance, 18 NYCRR § 352.3(h) requires SSDs that make hotel/motel referrals to inspect at least once every six months the hotels/motels in which families are placed. Additionally, pursuant to 18 NYCRR Parts 900 and 491, OTDA inspects certified temporary housing family shelters and shelters for adults, respectively. However, there is no existing requirement that uncertified shelters be inspected. The proposed amendments would require such inspections.
    Specifically, the proposed amendments would require SSDs to be responsible for annual inspections of temporary housing placements, confirming that standards are satisfied, and to submit to OTDA reports of the inspections performed. This requirement would promote greater accountability by SSDs for the quality of the temporary housing that is utilized. It is anticipated that SSDs may utilize other county agencies or contractors to conduct the inspections, provided they follow regulatory standards. The proposed amendments would also require that the inspection reports for hotel/motels be provided to OTDA within thirty days of their completion.
    4. Costs:
    It is estimated that the cost to the State for implementation of these proposed amendments would be approximately $1.49 million annually for personal and non-personal service expenses, excluding fringe benefits and indirect costs. This cost consists of the need for additional OTDA staffing both in the Center for Specialized Services (CSS) and in the Office of Budget, Finance, and Data Management (OBFDM). An additional 17 OTDA staff would be required, consisting of 16 CSS staff members to review inspection reports submitted by SSDs, provide on-site monitoring for some of the inspections, and directly inspect those sites that have deficiencies that could jeopardize the health and safety of the individuals and families in temporary housing placements, and one OBFDM staff member to support the additional review and reconciliation of the increased number of shelter budgets. In addition, CSS inspection staff would have to review documentation that deficiencies have been addressed, and make site visits to visually inspect the remediation and repairs when necessary. One of the additional staff members in CSS and the one in OBFDM would assist with reviewing the budgets of and per diem rates for the additional facilities that would be required to submit budgets and rates as the result of the proposed regulation. The proposed regulation would triple the amount of budgets reviewed by the two offices, which is why additional staff are required.
    It is anticipated that the costs to the SSDs would be manageable as many counties already complete these types of inspections and would only need to add the step of submitting the reports to OTDA. Additionally, as many of the smaller, rural counties in the state rely primarily on hotels and motels for temporary housing assistance placements, the only additional requirement imposed by the proposed regulatory changes would be to provide the currently required hotel/motel inspection reports to OTDA. To the extent that some SSDs are not already performing the required inspections, those SSDs would incur additional local costs as a result of compliance.
    The proposed amendments would have a minimal impact on temporary housing placements that are currently in compliance with existing health and safety standards. The regulatory amendments are merely attempting to identify violations under existing health and safety standards so that they can be remedied.
    5. Local Government Mandates:
    SSDs would need to comply with requirements concerning OTDA’s new rate approval process and ensure that additional inspections are conducted consistent with the proposed amendments.
    6. Paperwork:
    SSDs would need to exchange additional paperwork with OTDA to comply with the new rate approval process. In addition, there would be additional reporting requirements for SSDs that use temporary housing placements in uncertified shelters, including hotels and motels.
    7. Duplication:
    The proposed amendments would not duplicate, overlap or conflict with any existing State or federal regulations. OTDA has the statutory authority to establish a new rate approval process, and the regulatory amendments would expand the scope of inspections currently applied in State regulations to additional types of temporary housing.
    8. Alternatives:
    An alternative would be to leave the current 18 NYCRR § 352.8(b) intact. However, this alternative is not a viable option because the current regulation does not address all housing situations, nor does it confer upon OTDA overall oversight and authority over conditions and rates. The regulations as they are currently written do not mandate that the SSDs conduct inspections of the temporary housing placements that are not certified by OTDA. Without specific instruction to inspect and to submit subsequent inspection reports to OTDA, there is no way for OTDA to verify those shelters that fall outside of the jurisdiction of the Bureau of Shelter Services are meeting basic standards for habitability. Moreover, inaction would continue to jeopardize the health and safety of the vulnerable families and individuals who are placed in these facilities, by allowing existing infractions and violations to continue unaddressed and by failing to prevent future infractions and violations.
    Another alternative would be for OTDA to directly inspect uncertified shelters. OTDA has not opted to pursue this alternative because: 1) it is the role of SSDs to find placement for homeless individuals and families and render payment for them; therefore, they are better able to identify and inspect local uncertified shelters; 2) inspection of shelters corresponds with the SSDs’ responsibility to provide fraud prevention activities; 3) SSDs are able to make use of linkages with local code enforcement and health departments in performing such inspections; and 4) the proposed regulation is consistent with existing regulations requiring SSDs to inspect hotels and motels used for temporary housing.
    9. Federal Standards:
    The proposed amendments would not conflict with or exceed any minimum standards of the federal government.
    10. Compliance Schedule:
    The regulations would be effective immediately upon adoption. OTDA plans to release administrative guidance to the SSDs regarding the implementation of the proposed amendments. The SSDs would have an opportunity to contact OTDA with any concerns, questions or other issues. The administrative guidance would be posted to OTDA’s internet site.
    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 rule would apply to small businesses, including not-for-profit entities, which provide temporary housing. This rule also would apply to all 58 social services districts (SSDs) in the State.
    2. Compliance requirement:
    SSDs would need to be responsible for the required inspections of temporary housing placements conducted consistent with statutory and regulatory requirements. There would be additional reporting requirements for SSDs using hotel/motel and temporary housing placements. Additionally, SSDs would need to comply with budget development requirements concerning OTDA’s rate approval process and report the rates for temporary housing to OTDA as required.
    The regulatory amendments would have minimal impact on temporary housing placements that are currently in compliance with existing health and safety standards. The regulatory amendments merely attempt to correct violations under existing health and safety standards.
    3. Professional services:
    It is anticipated that the need for additional professional services would be limited. The regulatory amendments would not fundamentally alter the current responsibilities of the SSDs.
    4. Compliance costs:
    The regulatory amendments would require a small amount of local resources to complete additional inspections. At present, OTDA estimates that most counties in the state will not be affected or will be affected in a negligible way by the proposed regulation changes. OTDA estimates that approximately 8-10 counties will be required to inspect an additional 5-10 shelters each year requiring at most 37.5 hours of additional work over the course of the year. Even smaller is the number of counties that will be affected in a negligible way and will be asked to perform an addition 2-5 hours of work per year. The additional work would be performed by current SSD staff and would require a minimal amount of additional, non-technical training.
    The SSDs would need to comply with budget development requirements concerning OTDA’s rate approval process and ensure that additional inspections are conducted consistent with the proposed amendments.
    As noted above, the regulatory amendments would have a minimal impact on temporary housing placements that are currently in compliance with existing health and safety standards. For those shelters that are not in compliance with the approved standards, OTDA would work with the SSDs to submit a Corrective Action Plan that would allow local districts to make repairs according to realistic economic and time constraints.
    5. Economic and technological feasibility:
    SSDs would have the economic and technological abilities to comply with the proposed amendments. The amendments would have a minimal impact on temporary housing placements that are currently in compliance with existing health and safety standards.
    6. Minimizing adverse impact:
    The regulatory amendments attempt to minimize any adverse economic impact on temporary housing placements and SSDs. The regulatory amendments would provide the SSDs flexibility as to how the inspections of temporary housing placements could be conducted. For instance, the SSDs may choose to conduct the inspections themselves, or they may enter contracts to have the inspections completed. The amendments would not provide exemptions, because this would not serve the purposes of helping to ensure that rates for temporary housing are fair and affordable and ensuring that annual inspections of temporary housing placements are completed.
    7. Small business and local government participation:
    At the New York Public Welfare Association (NYPWA) conference held in July 2015, OTDA generally informed SSD Commissioners of the need for the SSDs to conduct their own inspections of shelters. OTDA had a subsequent conference call, which was general in nature, with NYPWA leadership regarding the SSDs’ inspections of hotels/motels pursuant to existing regulations and the possibility of SSD inspections of uncertified shelters. The focus of this conference call was to determine the best way to obtain district input, including the possibility of convening a committee of OTDA staff and interested SSD Commissioners. On September 10, 2015, OTDA had a second conference call with NYPWA leadership and a number of SSD Commissioners to outline the proposed regulatory amendments, to obtain SSD input regarding the proposed changes, and to answer questions raised by the SSDs. During the conference call, OTDA advised the participants that it plans to release administrative guidance to the SSDs regarding the implementation of the proposed amendments. The SSDs will have an opportunity to contact OTDA with any concerns, questions or other issues. The administrative guidance will be posted to OTDA's internet site.
    It is anticipated that small businesses and SSDs will be dedicated to implementing the regulatory amendments and protecting the health, safety and general welfare of residents of temporary housing placements.
    Rural Area Flexibility Analysis
    1. Types and estimate numbers of rural areas:
    The regulatory amendments would apply to the 44 rural social services districts (SSDs) and small businesses, including not-for-profit entities that provide temporary housing placements in those areas.
    2. Reporting, recordkeeping and other compliance requirements; and professional services:
    Rural SSDs would need to be responsible for the required inspections of temporary housing placements and that such inspections are conducted consistent with statutory and regulatory requirements. There would be additional reporting requirements for rural SSDs that use hotel/motel and temporary housing placements. However, as the majority of rural SSDs do not use emergency shelters, but instead make temporary housing placements in hotels/motels, they would be less impacted than urban districts by the addition of 18 NYCRR § 352.3(m).
    Pursuant to the proposed amendments, rural SSDs would need to comply with new requirements concerning OTDA’s rate approval process and report the rates for temporary emergency housing to OTDA as required.
    It is anticipated that the need for additional professional services would be limited. The regulatory amendments would not fundamentally alter the responsibilities of the rural SSDs. In addition, the regulatory amendments would not add new health and safety standards to the State regulations; instead, they would require that all temporary housing placements, including those in rural areas, comply with existing requirements to provide safe housing in accordance with local health and safety standards and State regulations.
    3. Costs:
    The regulatory amendments will likely require some local resources. It is anticipated that the SSDs will have new reporting and budget development requirements. The regulatory amendments will have a minimal fiscal impact on temporary housing placements in rural areas that are currently in compliance with existing health and safety standards.
    Rural SSDs primarily utilize hotels/motels for temporary housing assistance placements, which under current regulations are required to be inspected. The reporting costs are not expected to be significant.
    4. Minimizing adverse impact:
    The regulatory amendments attempt to minimize any adverse economic impact on temporary housing placements and SSDs in rural areas. The regulations should not provide exemptions, because this would not serve the purposes of ensuring the health and safety of all temporary housing residents and protecting these vulnerable residents from dangerous conditions. As noted above, the fiscal impact of the regulatory amendments is anticipated to be insignificant in rural areas.
    5. Rural area participation:
    At the New York Public Welfare Association (NYPWA) conference held in July 2015, OTDA generally informed SSD Commissioners of the need for the SSDs to conduct their own inspections of shelters. The NYPWA conference included SSDs in rural areas. OTDA had a subsequent conference call, which was general in nature, with NYPWA leadership regarding the SSDs’ inspections of hotels/motels pursuant to existing regulations and the possibility of SSD inspections of uncertified shelters. The focus of this conference call was to determine the best way to obtain district input, including the possibility of convening a committee of OTDA staff and interested SSD Commissioners. On September 10, 2015, OTDA had a second conference call with NYPWA leadership and a number of SSD Commissioners, including those from rural areas, to outline the proposed regulatory amendments, to obtain SSD input regarding the proposed changes, and to answer questions raised by the SSDs. During the conference call, OTDA advised the participants that it plans to release administrative guidance to the SSDs regarding the implementation of the proposed amendments. The SSDs will have an opportunity to contact OTDA with any concerns, questions or other issues. The administrative guidance will be posted to OTDA's internet site.
    It is anticipated that small businesses and SSDs in rural areas will be dedicated to implementing the regulatory amendments 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 rule. The purpose of the rule is to revise the current regulations to adjust the rate setting process for temporary housing placements by amending 18 NYCRR § 352.8(b), to require that hotel/motel inspection reports be submitted to the Office of Temporary and Disability Assistance by amending 18 NYCRR § 352.3(h), and to expand inspection requirements for certain placements by adding 18 NYCRR § 352.3(m). It is apparent from the nature and the purpose of the proposed amendments that they would not have a substantial adverse impact on jobs and employment opportunities in the private sector, in the social services districts (SSDs), or in the State. To the contrary, the proposed amendments would have a positive impact on jobs and employment opportunities, because additional persons may need to be hired.
    Thus, the proposed amendments would not have any adverse impact on jobs and employment opportunities in New York State.

Document Information