Individuals experiencing homelessness are at much higher risk than the general population for suffering exposure-related conditions such as hypothermia and frostbite. These risks are exacerbated by other chronic problems often facing the homeless, including, but not limited to, inadequate clothing, malnutrition, fatigue and various underlying illnesses and infections. Many individuals facing homelessness also struggle with alcohol and/or drug addictions that can substantially increase their susceptibility to exposure-related conditions and thereby pose immediate and longer-term threats to their health, safety, and general welfare.

The rule will help ensure that individuals experiencing homelessness are protected from inclement winter weather and exposure-related conditions such as hypothermia and frostbite by requiring SSDs to work with police agencies, including the New York State Police, and State agencies to take necessary steps to identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for protection of their safety and health in inclement winter weather, and to direct and offer to move such homeless individuals to appropriate shelters in accordance with relevant law. The rule also directs SSDs to: take necessary steps to extend shelter hours so that homeless individuals may remain indoors longer; instruct homeless service outreach workers to work with other relevant personnel and with police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries for assessment consistent with the provisions of § 9.41 of the Mental Hygiene Law; work in coordination with the State Police and local police agencies to ensure that homeless individuals receive assistance as needed to protect them from inclement winter weather and exposure-related conditions such as hypothermia and frostbite; and ensure that all facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives, and guidelines.

Given the dangers faced by individuals experiencing homelessness when exposed to inclement winter weather, OTDA asserts that proposing this rule only as a “regular rule making” as provided by the State Administrative Procedure Act (“SAPA”) should not be required because to do so would be detrimental to the health, safety, and general welfare of those individuals.

(1) work with police agencies, including the New York State Police, and state agencies to take all necessary steps to identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for safety and health in inclement winter weather, and to direct and offer to move such individuals to the appropriate sheltered facilities;

(2) take all necessary steps to extend, or to have providers extend, shelter hours, to allow individuals experiencing homelessness to remain indoors;

(3) instruct homeless service outreach workers to work with other relevant personnel and to work with local police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries to appropriate facilities for assessment consistent with the provisions of section 9.41 of the Mental Hygiene Law;

(4) work in coordination with the State Police and all police agencies to ensure that individuals facing homelessness receive assistance as needed to protect their health and safety; and

(5) ensure that all facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, and well-maintained and supervised, as required by state and local laws, regulations, administrative directives, and guidelines including local building and fire codes.

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 [S]tate 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)(b) 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 state in connection with said work.” Pursuant to SSL § 20(3)(d), OTDA is authorized to promulgate rules, 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 [S]tate who lack or are threatened with the deprivation of the necessaries of life and of all matters pertaining thereto.” In addition, pursuant to SSL § 34(3)(d), OTDA’s Commissioner must exercise general supervision over the work of all social services districts (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.”

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 individuals.

3. Needs and Benefits:

The rule is necessary to protect homeless individuals from inclement winter weather in which air temperatures are at or below 32 degrees Fahrenheit, including National Weather Service calculations for windchill. The rule will ensure that homeless individuals are directed to shelter during inclement winter weather which can cause hypothermia, serious injury and death. The State will assist SSDs lacking facilities, resources or expertise.

Individuals experiencing homelessness are at much higher risk than the general population for suffering exposure-related conditions such as hypothermia and frostbite. These risks are exacerbated by other chronic problems often facing the homeless, including, but not limited to, inadequate clothing, malnutrition, fatigue and various underlying illnesses or infections. Furthermore, many individuals facing homelessness also struggle with alcohol and/or drug addictions that can substantially increase their susceptibility to exposure-related conditions and thereby pose immediate and longer-term threats to their health, safety, and general welfare.

The rule will help ensure that individuals experiencing homelessness are protected from inclement winter weather and exposure-related conditions such as hypothermia and frostbite by requiring SSDs to work with police agencies, including the New York State Police, and State agencies to take necessary steps to identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for protection of their safety and health in inclement winter weather, and to direct and offer to move such homeless individuals to appropriate shelters in accordance with relevant law. The rule further directs SSDs to take necessary steps to extend shelter hours of operation to and allow homeless individuals to remain indoors, to instruct homeless service outreach workers to work with other relevant personnel and with police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries for assessment consistent with the provisions of § 9.41 of the Mental Hygiene Law (MHL), and to work in coordination with the State Police and local police agencies to ensure that homeless individuals receive assistance as needed to protect them from inclement winter weather and exposure-related conditions such as hypothermia and frostbite. Finally, the rule helps to ensure that facilities used for temporary housing assistance placements are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives, and guidelines.

In response to public comments received by OTDA, the rule has been amended to clarify that: (a) homeless individuals who are appear to be of sound mind may refuse to enter homeless shelters during periods of inclement winter weather; and (b) only homeless persons who appear to be both mentally ill and at risk for cold-related injuries should be involuntarily transported to appropriate facilities for assessment consistent with the provisions of MHL § 9.41.

4. Costs:

This rule is based on and is substantially similar to Executive Order (EO) 151, which was issued on January 5, 2016. In 2016, OTDA received plans for compliance with EO 151 from 55 SSDs, 38 of which requested reimbursement. In total, the 38 SSDs sought $3,246,100 in funding. New York State approved plans totaling $3.4M in funding, and, at the program’s close on October 31, 2016, a total of $994,333 had been claimed and paid by the State. If the participation level remains similar to last year, OTDA anticipates that the 2017 costs will be indicative of future expenses.

5. Local Government Mandates:

Local governments are required to take steps necessary to expand shelter hours or provide access to alternative facilities to shelter homeless individuals during periods of inclement winter weather, so that persons experiencing homelessness may remain indoors longer to escape the cold. Local governments also are responsible for working with police agencies, including the New York State Police, and State agencies to take necessary steps to engage in outreach and identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for safety and health in inclement winter weather, and to direct and offer to move such individuals to the appropriate sheltered facilities. Local governments are further required to instruct homeless service outreach workers to work with other relevant personnel and local police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries for assessment consistent with the provisions of § 9.41 of the MHL. Finally, local governments must ensure that all facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives, and guidelines.

6. Paperwork:

Compliance plans may need to be submitted if SSDs intend to seek reimbursement for expenditures incurred to comply with this rule. SSDs also will be required to submit budget forms and narratives justifying the need for funds if they seek reimbursement from the State.

7. Duplication:

The rule does not duplicate, overlap, or conflict with any existing State or federal regulations.

8. Alternatives:

Inaction would jeopardize the health, safety, and general welfare of vulnerable homeless individuals by subjecting them to risks of exposure-related conditions such as hypothermia and frostbite; therefore, OTDA does not consider this a viable alternative to the rule. OTDA believes that the rule is necessary to protect homeless individuals from the dangers presented by inclement winter weather.

9. Federal Standards:

The rule does not conflict with federal statutes, regulations or policies.

10. Compliance Schedule:

To protect the public health, safety and general welfare of homeless individuals, the rule will be effective immediately upon its filing date.

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. Some operators of shelters and other facilities used to serve homeless individuals will be asked to extend their operating hours; however, their additional costs will be reimbursed by the social services districts (SSDs). In turn, the SSDs can seek reimbursement from the State for additional costs attributable to implementation of this rule. The rule applies to all 58 SSDs in New York State.

2. Compliance requirements:

The rule requires SSDs to work with police agencies, including the New York State Police, and State agencies to take necessary steps to engage in outreach and identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for safety and health in inclement winter weather in which air temperatures are at or below 32 degrees Fahrenheit including National Weather Service calculations for windchill, and to direct and offer to move such individuals to appropriate shelters in accordance with relevant law. SSDs also are required to instruct homeless service outreach workers to work with other relevant personnel and local police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries for assessment consistent with the provisions of § 9.41 of the Mental Hygiene Law (MHL). SSDs also must take steps to expand shelter hours and provide access to other facilities used to shelter homeless individuals during periods of inclement winter weather. SSDs further must ensure that facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives and guidelines.

In response to public comments received by OTDA, the rule has been amended to clarify that: (a) homeless individuals who are appear to be of sound mind may refuse to enter homeless shelters during periods of inclement winter weather; and (b) only homeless persons who appear to be both mentally ill and at risk for cold-related injuries should be involuntarily transported to appropriate facilities for assessment consistent with the provisions of MHL § 9.41.

3. Professional services:

It is anticipated that the need for additional professional services will be limited. The rule imposes obligations upon SSDs which OTDA anticipates should be fulfilled without the need for securing professional services.

4. Compliance costs:

For SSDs that already have detailed and prescriptive policies to protect the homeless from inclement winter weather, such as New York City’s Department of Homeless Services, there should be only marginal compliance costs. Other SSDs will incur costs, but may seek reimbursement from the State.

5. Economic and technological feasibility:

SSDs already should have the economic and technological abilities to comply with the rule.

6. Minimizing adverse impact:

The rule should not provide exemptions, because this would not serve the purposes of protecting vulnerable homeless persons from inclement winter weather that can cause hypothermia, serious injury, and death.

7. Small business and local government participation:

It is anticipated that some operators of shelters and other facilities used to serve homeless individuals will be asked to extend their operating hours. As discussed above, SSDs are required to coordinate with police and State agencies to engage in outreach to vulnerable homeless individuals and identify individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries. SSDs are also required to ensure that facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives, and guidelines.

1. Types and estimated numbers of rural areas:

The rule applies to the 44 rural social services districts (SSDs).

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

Compliance plans may need to be submitted if rural SSDs wish to seek reimbursement for expenditures made to comply with this rule. The rule imposes obligations upon SSDs which OTDA anticipates should be fulfilled without the need for securing professional services.

3. Costs:

For rural SSDs, the fiscal impact of the rule is anticipated to be small because of the relatively small number of homeless persons in those rural SSDs. Moreover, rural SSDs may seek reimbursement from the State for expenditures made to protect vulnerable homeless persons from inclement winter weather which are consistent with this rule.

4. Minimizing adverse impact:

The rule should not provide exemptions, because this would not serve the purposes of protecting vulnerable homeless persons in rural SSDs from inclement winter weather that can cause hypothermia, serious injury and death.

5. Rural area participation:

Rural SSDs are required to coordinate with police and State agencies to engage in outreach to vulnerable homeless individuals and identify individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries. Rural SSDs are also required to ensure that facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives, and guidelines.

A Revised Job Impact Statement is not required for this rule. The purpose of the rule is to mitigate the effects of inclement winter weather ─ specifically, air temperatures at or below 32 degrees Fahrenheit, including National Weather Service calculations for windchill ─ and the resulting impacts of such inclement winter weather on individuals experiencing homelessness.

The rule will help to ensure that homeless individuals are directed to shelter during inclement winter weather that can cause hypothermia, serious injury, and death. The State will assist local social services districts (SSDs) lacking facilities, resources or expertise. The rule will help ensure that individuals experiencing homelessness are protected from inclement winter weather and exposure-related conditions such as hypothermia and frostbite by requiring SSDs to work with police agencies, including the New York State Police, and State agencies to take necessary steps to identify individuals reasonably believed to be homeless and unwilling or unable to find the shelter necessary for protection of their safety and health in inclement winter weather, and to direct and offer to move such homeless individuals to appropriate shelters in accordance with relevant law. The rule also directs SSDs to: take necessary steps to extend shelter hours so that homeless individuals may remain indoors longer; instruct homeless service outreach workers to work with other relevant personnel and with police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries to appropriate facilities for assessment consistent with the provisions of § 9.41 of the Mental Hygiene Law; work in coordination with the State Police and local police agencies to ensure that homeless individuals receive assistance as needed to protect them from inclement winter weather and exposure-related conditions such as hypothermia and frostbite; and ensure that all facilities used to shelter homeless individuals during periods of inclement winter weather are safe, clean, well-maintained and supervised, and fully compliant with existing State and local laws, regulations, administrative directives, and guidelines.

It is apparent from the nature and the purpose of the rule 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.

The Office of Temporary and Disability Assistance (OTDA) received comments relative to the emergency regulation. The comments have been reviewed and are duly considered in this Assessment of Public Comments.

One comment asserted that the intent of the emergency regulation is not consistent with Mental Hygiene Law (MHL) § 9.41 and that the reference to MHL § 9.41 in the emergency regulation “creates the inference that a person who chooses not to come in from the cold is mentally ill, dangerous and in need of involuntary transport to a hospital.” The comment further asserted that “[t]o extend the scope of [MHL § 9.41] to allow a person to be taken into police custody because he or she is homeless and it is cold outside is a misreading of the statute and, despite what might be the good intent of the regulation, could lead to an illegal and unconstitutional result.”

MHL § 9.41 authorizes police officers to take into custody any person who (a) appears to be mentally ill, and (b) is conducting himself or herself in a manner which is likely to result in serious harm to the person or others. The term “likelihood to result in serious harm” is defined in MHL §§ 9.01 and 9.39(a) to include “substantial risk of physical harm to himself as manifested by … other conduct demonstrating that he is dangerous to himself” (Boggs v. New York City Health & Hosps. Corp., 132 AD2d 340, 368 [1st Dept 1987], quoting MHL § 9.39; app. dismissed, 70 NY2d 972 [1988]). It is well settled that refusal to accept medical treatment does not, by itself, establish that a person is dangerous to himself (see Cruzan v. Dir., Missouri Dept. of Health, 497 US 261, 278 [1990]; Schoolcraft v. City of New York, 103 F. Supp 3d 465, 505 [SDNY 2015]). The New York State Court of Appeals has held that “every individual ‘of adult years and sound mind has a right to determine what shall be done with his own body’” (Rivers v. Katz, 67 NY2d 485, 492 [1986], quoting Schloendorff v. Socy. of the New York Hosp., 211 NY 125, 129 [1914]). However, a substantial risk of physical harm can result from a “refusal or inability to meet essential needs for food, clothing or shelter” (see Matter of Carl C., 126 AD2d 640 [2d Dept 1987]; see also Addington v. Texas, 441 US. 418, 426 [1979] [state has legitimate interest, under its parens patriae powers, in providing care to citizens who, because of emotional disorders, are unable to care for themselves]).

In view of the foregoing, OTDA agrees that only persons who appear to be both mentally ill and at risk for cold-related injuries should be involuntarily transported to hospitals for assessment consistent with the provisions of MHL § 9.41. Accordingly, OTDA revised the emergency regulation to clarify that social services districts (SSDs) shall instruct homeless service outreach workers to work with other relevant personnel and to work with local police in relation to the involuntary transport of individuals who refuse to go inside and who appear to be mentally ill and at-risk for cold-related injuries to appropriate facilities for assessment consistent with the provisions of MHL § 9.41.

One comment asserted that OTDA lacks authority to promulgate regulations interpreting the MHL. OTDA maintains that the emergency regulation does not, in fact, interpret the MHL, but merely directs SSDs to instruct homeless service outreach workers to work with other relevant personnel and local police in relation to the involuntary transport of individuals who appear to be mentally ill and at-risk for cold-related injuries.

Comments asserted that the emergency regulation’s threshold of an air temperature of 32 degrees Fahrenheit with windchill limits the effectiveness of the emergency regulation in achieving the stated goal of reducing the risk of cold-related injuries such as frostbite and hypothermia posed to individuals experiencing homelessness, and therefore should be raised. OTDA maintains that, as a practical matter, it would not be feasible to successfully implement the emergency regulation if the definition of “inclement winter weather” was expanded to include temperatures in excess of 32 degrees Fahrenheit, including windchill.

One comment suggested that the emergency regulation be revised to require that all emergency shelters remain open and accessible to homeless individuals for the entire duration of inclement weather, rather than between certain defined hours – for example, between the hours of 4:00 P.M. and 8:00 A.M. – during a given time period. OTDA notes that the emergency regulation already requires SSDs to “take all necessary steps to extend, or to have providers extend, shelter hours, to allow individuals experiencing homelessness to remain indoors” during periods of inclement winter weather, irrespective of the time of day or night. Consequently, OTDA believes that the suggested revision to the emergency regulation is unnecessary.

One comment asserted that the “regulation does not state for how long, or at what times of the day, the weather forecast must show temperatures of 32 degrees or below, including wind-chill.” OTDA notes that further clarification will be more appropriately provided through issuance of administrative guidance, and maintains that amendment of the emergency regulation to add clarifying language is unnecessary.

One comment contended that the emergency regulation is unclear as to whether an SSD must continue emergency measures in cases when inclement winter weather is initially forecast, resulting in a “Code Blue” alert, but the forecast subsequently changes. OTDA reiterates that further clarification will be more appropriately provided through issuance of administrative guidance, and that amendment of the emergency regulation to add clarifying language is unnecessary.

One comment asserted that the emergency regulation does not specify for how long a period of time following the end of any forecasted “inclement winter weather”' the regulation’s emergency measures are to remain in place. OTDA reiterates that further clarification will be more appropriately provided through issuance of administrative guidance, and that amendment of the emergency regulation to add clarifying language is unnecessary.

One comment asserted that the emergency regulation does not indicate any limitations on a finding of “inclement winter weather” based on the time of year – for example, whether an SSD would be required to implement emergency measures if overnight temperatures were to fall below 32 degrees Fahrenheit, including windchill, during the months of May or September. 18 NYCRR § 304.1(a) clearly defines “inclement winter weather” as “air temperatures at or below 32 degrees Fahrenheit, including National Weather Service calculations for windchill.” This definition takes into account that weather conditions potentially harmful to the safety and health of individuals experiencing homelessness are not necessarily limited to traditional winter months; consequently, the emergency regulation requires the implementation of emergency measures whenever the air temperature is at or below 32 degrees Fahrenheit, including National Weather Service calculations for windchill, irrespective of the calendar month during which the inclement winter weather occurs. In view of the foregoing, OTDA therefore believes that revision of the emergency regulation is unnecessary.

One comment asserted that inclusion of National Weather Service calculations for wind-chill in the determination of “inclement winter weather” increases the number of days on which SSDs are required under the emergency regulation to implement emergency measures. OTDA agrees with this assertion.

Comments requested that the emergency regulation be revised to add language providing that the State fund 100 percent of the costs relating to implementation of the emergency regulation. It is not the purpose of the emergency regulation to address financial reimbursement to the SSDs; rather, the purpose of the emergency regulation is to mitigate the effects and impact of inclement winter weather on individuals experiencing homelessness. Consequently, revision of the emergency regulation is unnecessary.