(a) General requirements. A social services district will be reimbursed for [75] 65 percent of the costs of mandated, non-mandated, and community optional preventive services provided pursuant to section 409-a of the Social Services Law [to children and their families] when the following conditions are met:

(1) [such] children and their families receiving such preventive services meet the client eligibility criteria as defined in sections 423.3 and 430.9 of this Title or a community optional preventive services program approved by the Office of Children and Family Services (“OCFS”) under subdivision (3) of section 409-a of the Social Services Law;

(2) the social services district receives approval of its county's child and family services [multi-year service] plan pursuant to section 34-a of the Social Services Law;

(3) the social services district certifies that it will not be using these funds to supplant other state and local funds and that it will not submit claims for reimbursement for the same type and level of services that the district previously provided and claimed under any contract in existence on October 1, 2002 as other than child protective, preventive, independent living, or after care services or adoption administration and services, other than adoption subsidies provided pursuant to title 9 of article 6 of the Social Services Law and implementing regulations;

(4) for a district to receive an increase in funding for child protective, preventive, independent living, or after care services, or adoption administration and services over the amount the district received for such services that were reimbursable in state fiscal year 2004–05:

(i) the amount of funds that the district expends on such services from its flexible fund for family services allocation and any flexible fund for family services funds transferred at the district's request to the title XX social services block grant must, to the extent that families are eligible therefore, be equal to or greater than the amount the district spent for such services that were reimbursed during state fiscal year 2004–05 with temporary assistance to needy families block grant funds for families eligible for emergency assistance to families and with temporary assistance to needy families block grant funds transferred to the title XX social services block grant; or

(ii) the district must increase the gross amount of such funds above the amount claimed for state fiscal year 2004–05, in which case, the increase in funding will only be available for 65 percent of the claims that exceed the gross amount claimed in state fiscal year 2004–05;

(5) beginning January 1, 2008, such preventive services, whether purchased or provided directly by the district, include performance or outcome-based provisions.

(i) For purposes of complying with this requirement, performance means quantifiable and verifiable interim changes in, or maintenance of, the conditions or behaviors of the target population resulting from the provision of services that indicate progress towards an outcome, and outcome means the anticipated change in, or maintenance of, conditions or behaviors of a targeted population as a result of the provision of services.

(ii) In the absence of the required performance or outcome-based provisions, OCFS may limit up to 100% of a district's state reimbursement for preventive services expenditures related to any increases in the amount of the district's gross claims for such expenditures that are otherwise reimbursable during state fiscal year 2007–08 and thereafter that exceed the amount of its gross claims for the period October 1, 2005 through September 30, 2006 that were claimed through March 31, 2007. However, OCFS may determine, in its discretion, not to reduce a district's reimbursement in this manner if the district is able to demonstrate, in a form and manner determined by OCFS, that the absence of the required performance or outcome-based provisions is due to extenuating circumstances beyond the district's control including, but not limited to, the inability to amend a contract for the purchase of preventive services that was in effect on April 9, 2007 that extends past January 1, 2008.

[(3) the social services district expends an amount on child protective services equal to or greater than its child protective services maintenance of effort amount as published annually by the office based on expenditures and rate of child protective services reporting and indicators. In the event that the social services district does not meet its child protective services maintenance of effort amount, preventive services expenditures up to such an amount will be reimbursed as child protective services expenditures; and

(4) expenditures of the social services district are in excess of its title XX ceiling and total preventive services expenditures of such district exceed the preventive services maintenance of effort amount as specified in section 409-b of the Social Services Law unless otherwise specified in the State's annual aid to localities budget.]

(b) In-kind or indirect services and donated funds.

[(1) Up to one half of the social services district's total annual share of the cost of mandated preventive services may be met by in-kind or indirect services or by nontax levy funds, including, but not limited to, privately donated funds. However, this limitation does not apply to that amount equal to the total reimbursable preventive services expenditures, the local share of which was met by privately donated funds and subject to State reimbursement, during the State fiscal year ending March 31, 1981.

(2) A social services district's share of the costs of nonmandated preventive services provided pursuant to subdivision (2) of section 409-a of the Social Services Law or of the costs of community preventive services provided pursuant to subdivision (3) of section 409-a of the Social Services Law may be met in whole or in part by in-kind or indirect services or by nontax levy funds, including, but not limited to, privately donated funds.]

[(c) Nonmandated preventive services. Expenditures for nonmandated preventive services shall be subject to 50 percent State reimbursement, provided that the Legislature has appropriated sufficient funds for this purpose and that these expenditures are not reimbursed through title XX of the Social Services Act.

(d) Reimbursement by the department to local social services departments for day care, homemaker, housekeeper/chore, home management, transportation, and family planning as mandated preventive services shall not exceed 30 percent of Group I and II local department's and 15 percent of Group III and IV local department's total expenditures for mandated preventive services unless adjusted by a decline in foster care days as set forth in this paragraph. Groups I, II, III and IV as defined in section 679.2 of this Title and are as follows:

(1) Group I. Social services districts having a caseload of less than 1,000 cases;

(2) Group II. Social services districts having a caseload of 1,000, but less than 5,000 cases;

(3) Group III. Social services districts having a caseload of 5,000, but less than 50,000 cases; and

(4) Group IV. Social services districts having a caseload of 50,000 cases and over. Each local social services department's percentage will be increased by one percent for every three percent decline in foster care days. Such percentage will be computed by the department annually for each Federal fiscal year, using the State fiscal year 1979–80 as a base year. This provision will become effective October 1, 1983.

(e) Reimbursement by the department to local social services departments for emergency cash, goods and shelter as preventive services shall not exceed three percent of such local department's total expenditures for mandated preventive services. Such reimbursement shall only be made for those expenditures not eligible for reimbursement under the Emergency Assistance to Needy Families with Children Program pursuant to Part 372 of this Title.]

(c) [(f)] Reimbursement by OCFS [the department] for foster care services, including casework contact requirements pursuant to section 441.21 of this Title and diligence of efforts requirements pursuant to section 430.12 of this Title may not be claimed as preventive services.

(d) [(g)] Reimbursement by OCFS [the department] for child protective services, including activities of receiving and investigating reports and monitoring shall not be claimed as preventive services.

(e) [(h)] Reimbursement by OCFS [the department] to local social services districts [departments] for preventive services expenditures shall be claimed on such forms as designated by OCFS [the department].

(f) [(i)] Notwithstanding any provision of this section, reimbursement by OCFS [the department] to local social services districts [departments] for preventive services expenditures shall not be made unless the local social services districts [departments] explore and use other available funding sources including [emergency assistance to needy families with children and] title XIX of the Social Security Act where applicable.

(g) [(j)] Notwithstanding any provision of this section, reimbursement by OCFS [the department] to local social services districts [departments] for preventive services expenditures shall not be made if OCFS [the department] determines that such local districts [departments] are over-utilizing particular forms or types of preventive services or are not providing balanced preventive services programs based on the identified needs of children and families residing in such local districts [departments].

1. Statutory Authority

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Commissioner of the Office of Children and Family Services (OCFS) to establish rules, regulations and policies to carry out OCFS' powers and duties under the SSL.

Section 409-a of the SSL authorizes social services districts (districts) to provide preventive services to children and families under specified circumstances. Section 409-a(5)(a) of the SSL authorizes OCFS to establish regulations governing preventive services, including reimbursement limitations for such services. Section 153-k of the SSL specifies standards and conditions for state reimbursement of expenditures by districts for preventive and other child welfare services. Additional conditions for state reimbursement are set forth in the Education, Labor and Family Assistance portion of the state budget enacted for Fiscal Year 2007–2008 (Chapter 53 of the Laws of 2007) and in the state budgets enacted for prior fiscal years. The non-supplantation budgetary requirement in section 423.5(a)(3) of the regulation has been in place since April 1, 2003, and the budgetary child welfare threshold requirement in section 423.5(a)(4) of the regulation has been in place since April 1, 2005.

Part H of Chapter 57 of the Laws of 2007 (“the Act”) requires that any preventive services provided pursuant to section 409-a of the SSL include performance or outcome-based provisions beginning January 1, 2008. The Act authorizes OCFS to limit, in accordance with regulations, a social services district's state reimbursement for preventive services expenditures in the absence of the required performance or outcome-based provisions. The Act also directs OCFS to grant a waiver from implementation of the required performance and outcome-based provisions under specified circumstances and to promulgate on an emergency basis no later than August 15, 2007, any regulations necessary to implement the requirements established by the Act.

2. Legislative Objectives

The regulation carries out the intent of the statutory provisions discussed above, and in particular Part H of Chapter 57 of the Laws of 2007, by establishing rules that define the required performance and outcome-based provisions and specify the circumstances under and the manner in which OCFS may limit a district's state reimbursement in the absence of the required provisions. The regulation also carries out the intent of section 153-k of the SSL and related budget appropriation requirements by revising existing regulation to reflect the current statutory standards for state reimbursement of preventive services expenditures.

3. Needs and Benefits

The legislative requirement that preventive services include performance and outcome-based provisions is intended to promote the efficient use of state and local resources so that resources are used to achieve desired results. To effectuate this legislative intent, the regulation defines performance and outcome-based provisions and specifies the authorized fiscal consequence that may be imposed in the absence of the required provisions.

The regulation also updates regulatory conditions for state reimbursement of district expenditures for preventive services so that they are consistent with existing statutory and budgetary standards.

4. Costs

Because the amendment is necessary to implement Part H of Chapter 57 of the Laws of 2007 and other statutory standards governing state reimbursement for preventive services (SSL 153-k; Chapter 53 of the Laws of 2007), this regulatory amendment will not impose any costs on districts beyond those imposed by these laws. Technical assistance from OCFS, as required by statute, will assist local districts in meeting this statutory requirement. Additionally, based on discussions with districts, OCFS understands that many districts already include performance or outcome measures for the preventive services they provide or for which they contract, and thus many districts already satisfy the minimum standards required by statute and the implementing regulation.

There is no adverse fiscal impact to OCFS or the State related to the regulatory amendment.

5. Local Government Mandates

The requirement that social services districts include performance or outcome-based provisions in directly-provided and contracted-for preventive services and the conditions for state reimbursement implement statutory requirements and conditions. Therefore, the regulation does not impose any additional requirements on local governments.

6. Paperwork

OCFS is mandated by statute to report to the Governor and Legislature on local compliance with respect to performance or outcome-based provisions for preventive services. OCFS has developed a one-page attestation form for local districts to report on initial compliance. Subsequent reporting will be incorporated into existing district reporting procedures.

7. Duplication

This regulation does not duplicate other state or federal requirements.

8. Alternate Approaches

Part H of Chapter 57 of the Laws of 2007 requires OCFS to promulgate any regulations necessary to implement the statutory provisions. The regulation does this by defining the statutorily-required performance or outcome-based provisions for preventive services and by providing a fiscal consequence under certain circumstances if the statutory requirement is not met. Proposed definitions of performance and outcome were shared with representatives of regulated parties (commissioners and staff of local social services districts), their input was given careful consideration and appropriate suggestions were adopted in drafting the final regulation.

Insofar as the regulation codifies other existing statutory standards and conditions for state reimbursement the amendments are technical in nature and there were no significant alternatives to be considered.

9. Federal Standards

These regulations meet but do not exceed any applicable federal standards.

10. Compliance Schedule

Local districts must include performance or outcome-based provisions for preventive services by January 1, 2008. Other technical amendments to the regulation reflect existing statutory standards and conditions for state reimbursement of preventive services expenditures that are already in effect. This regulation is being filed on an emergency basis to comply with the statutory requirement that any necessary regulations be in place by August 15, 2007.

1. Effect on Small Businesses and Local Governments

The regulation implements statutory requirements applicable to all social services districts (districts). Those voluntary agencies contracting with social services districts to provide preventive services also will be affected by the regulation. Currently, there are approximately 200 such agencies.

2. Compliance Requirements

As required by Part H of Chapter 57 of the Laws of 2007 (the Act), the regulation implements the statutory requirement that social services districts include performance or outcome-based provisions in preventive services. OCFS is mandated by the Act to report to the Governor and Legislature on local compliance with this requirement, and the regulation therefore directs local districts to prepare and submit information about compliance in a form and manner specified by OCFS. OCFS has developed a one-page attestation form for local districts to report on initial compliance. Subsequent reporting will be incorporated into existing district reporting procedures.

3. Professional Services

The technical assistance to be provided by OCFS will include professional services to assist local districts in complying with the statutory requirements implemented by the regulation. It is anticipated that this assistance will minimize the need for districts to incur any additional costs for professional services to comply with the regulation.

4. Compliance Costs

Because the regulation is necessary to implement Part H of Chapter 57 of the Laws of 2007 and other statutory standards governing state reimbursement for preventive services (SSL 153-k; Chapter 53 of the Laws of 2007), the regulation will not impose any costs on local social services districts beyond those imposed by these laws. Technical assistance from OCFS will assist local districts, and any private services agencies with which they contract, in meeting this statutory requirement.

5. Economic and Technological Feasibility

It is anticipated that the affected local governmental agencies (social services districts) have the economic and technological feasibility to include performance or outcome-based provisions in preventive services.

6. Minimizing Adverse Impact

It is not anticipated that the regulation will result in an adverse impact on small businesses or local government agencies or instrumentalities. As outlined above, OCFS is offering technical assistance to affected local governmental agencies (social services districts) to assist with compliance. Consistent with State Administrative Procedure Act § 202-b(1), the regulation does not impose design standards or mandate specific types of performance or outcome-based provisions that local districts must include. The regulation also appropriately allows for exemption from fiscal consequences where compliance is not possible due to extenuating circumstances beyond the district's control. Additionally, based on discussions with districts, OCFS understands that many districts already include performance or outcome measures for the preventive services they provide or for which they contract, and thus many districts already satisfy the minimum standards required by statute and the implementing regulation.

7. Small Business and Local Government Participation

OCFS presented a workshop on the implementation of Part H of Chapter 57 of the Laws of 2007, the statutory provision that requires OCFS to develop this regulation, at the New York State Public Welfare Association's summer 2007 conference. Comments on the proposed regulation were received from workshop participants, who included commissioners and staff of local social services districts. OCFS subsequently held a telephone conference on the proposed regulation for all districts during which OCFS received input from district representatives on issues concerning compliance and the types of technical assistance needed by districts.

1. Types and estimated number of rural areas:

The regulation applies to all social services districts (districts), including the 44 districts that contain rural areas. Those voluntary agencies in rural areas contracting with social services districts to provide preventive services also will be affected by the regulation. Currently, there are approximately 84 such agencies.

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

OCFS is mandated by statute to report to the Governor and Legislature on local compliance with respect to performance or outcome-based provisions for preventive services. OCFS has developed a one-page attestation form for local districts to report on initial compliance. Subsequent reporting will be incorporated into existing district reporting procedures.

As provided for in statute, OCFS will be offering technical assistance to local districts to assist with compliance. This technical assistance will minimize the need for additional professional services.

3. Costs:

Because the regulation is necessary to implement Part H of Chapter 57 of the Laws of 2007 and other statutory standards governing state reimbursement for preventive services (SSL 153-k; Chapter 53 of the Laws of 2007), the regulation will not impose any costs on social services districts, including those in rural areas, beyond those imposed by these laws. Technical assistance from OCFS will assist local districts and any private services agencies with which they contract in meeting this statutory requirement.

4. Minimizing adverse impact:

It is not anticipated that the regulation will result in an adverse impact on rural areas. As outlined above, OCFS is offering technical assistance to all affected local governmental agencies to assist with compliance. Consistent with State Administrative Procedure Act § 202-bb(2), the regulation does not impose input or design standards or mandate specific types of performance or outcome-based provisions that local districts must include. The regulation also appropriately allows for exemption from fiscal consequences where compliance is not possible due to extenuating circumstances beyond the district's control. Additionally, based on discussions with districts, OCFS understands that many local districts already include performance or outcome measures for the preventive services they provide or for which they contract, and thus many districts already satisfy the minimum standards required by statute and the implementing regulation.

5. Rural area participation:

OCFS presented a workshop on the implementation of Part H of Chapter 57 of the Laws of 2007, the statutory provision that requires OCFS to develop this regulation, at the New York State Public Welfare Association's summer 2007 conference. Comments on the proposed regulation were received from workshop participants, who included commissioners and staff of social services districts that contain rural areas. OCFS subsequently held a telephone conference on the proposed regulation for all districts during which OCFS received input from district representatives on issues concerning compliance and the types of technical assistance needed by districts, including those districts encompassing rural areas.

A full job impact statement has not been prepared for the regulation. The regulation would not result in the loss of any jobs. It is apparent from the nature and purpose of the rule (implementation of statutory requirements for state reimbursement to social services districts of expenditures for preventive services) that it will not have a substantially adverse impact on jobs and employment opportunities. To the extent that social services districts expand the types of preventive services they currently provide and the private agencies with which they contract in order to comply with the statutory requirement underlying the regulation, the regulation may result in job creation.