These emergency regulations strengthen the Office’s ability to monitor the local department of social services’ (LDSS) oversight of such youth and provide LDSSs with appropriate standards for the conditional release, revocation and duration of placement of youth in care. In addition, the regulations set appropriate standards for authorized agencies caring for Raise the Age youth and other youth as it related to youth leaving their program without permission, youth privacy rights, searches and contraband.

There are currently 11 programs across the state serving youth placed by the court on a delinquency due to Raise the Age and over 30 programs in New York City serving youth placed on delinquencies. In October 2019, the second phase of the legislation goes into effect and with it authorized agencies, including Close to Home programs, will need these tools and resources to best serve their populations.

Social Services Law (SSL) § 398(3-a)(a)(1), enacted as part of the Close to Home legislation, (see L. 2012, c. 57, pt. G, subpt. B, § 7; see also SSL § 404), authorizes the conditional release of youth that are adjudicated juvenile delinquents and placed with an LDSS in aftercare provided the conditional release is made in accordance with the Office’s regulations. Moreover, SSL § 398(3-a)(a)(4) authorizes LDSSs, pursuant to the Office’s regulations, to revoke a youth’s release to the community from care and return the youth to an LDSS facility. Presently, the Office does not have regulations governing the release and revocation of such youth. Adoption of these regulations on an emergency basis is needed to prevent inconsistent standards among LDSSs in the release and revocation of delinquent youth and to promote consistent methods in the calculation of the duration of placement of delinquent youth.

The regulatory proposals are needed to provide guidance to authorized agencies to address the treatment of youth placed in care and who are residing with authorized agencies when those children are absent from the program without consent; the circumstances under which an adjudicated juvenile delinquent may be conditionally released; the circumstances under which searches of persons and property may occur; define contraband; and provide terms and conditions to be imposed on conditional release to promote and enhance the chances for success for youth. The proposed regulations are needed to promote consistent outcomes for youth and the fundamental interests of youth, such as due process and the right to a hearing when a youth’s conditional release is revoked, as well as the prevention of wrongful placement due to the miscalculation of the duration of placement for a delinquent youth.

Amends subdivision (f) by adding a new subparagraph (2) and renumbering the subsequent subparagraphs. References new regulatory sections 431.19 and 431.20 regarding release calculations and placement time and includes youth who are adjudicated delinquent and are over the age of 16 at the time of the delinquent act who may stay in custody through age 23; adds new language to clarify the mechanisms under which youth can be discharged from care if absent and are unable to be found; and makes conforming language changes reflecting the state system of record, CONNECTIONS.

431.19 Conditional Release of Youth Placed Pursuant to a Delinquency Adjudication

This section is added to the foster care regulations that are required by legislation to create the framework for conditional release of youth placed pursuant to a delinquency adjudication by the Close to Home legislation. These regulations are required now due to an increased number of youth anticipated to be placed in LDSS custody due to Raise the Age, and a new model of delinquency placement which requires a period of supervised release prior to the expiration of the delinquency placement order. This part provides for the following:

Conditions under which a youth may be conditionally released; limits on those releases relative to time out of program due to absence; appropriate release resources; required conditions of release; actions required to be taken by youth, release resource, case worker and DSS case manager; conditions under which a youth’s conditions of release may be modified; conditions for revocation of release; required documentation for revocation; the process for revocation of release including requirements of a revocation hearing and; conditions for a voluntary return to placement.

431.20 Interruption of Placement Time

This section is added to address interruptions in placement and effects on calculating placement time.

431.21 Placement Calculation for Youth Placed Pursuant to a Delinquency Adjudication

This section is added to provides requirements to calculate the time in placement, including provisions for any time credit due to time served in detention.

441.2 Definitions

Subdivision (a) is amended to add the term “youth” as part of the definitions for foster care; references article 10-B of the Family Court Act (FCA) for youth reentering care after age 18; allows youth over the age 21 to stay in care if they come into care on an Article 3 of the FCA and were over the age of 16 at the time of the act. Subdivision (p) is added to define “office” the Office of Children and Family services.

441.18 Children’s Privacy Rights

Subdivision (d) is repealed and replaced to provide the circumstances under which a youth’s property and person may be searched congregate care settings, setting out a “reasonable cause” standard. It provides limitations on where and how searches shall be conducted including requirements for the child care facility to have a search policy; grounds for facility searches; use of metal detectors or dogs; sets forth parameters for personal searches of a youth limited to pat searches except in programs that serve only youth placed on an Article 3 which allows pat frisks; provides a definition of contraband; requires agencies to have a contraband policy which includes procedures for documenting and disposing of contraband.

441.23 Tobacco Product and Non-Prescribed or Non-Approved Inhaling Device Use Prohibition

Is amended to prohibit use of non-prescribed or non-approved inhaling devices by staff, youth and visitors; and to define unauthorized inhaling devices as contraband for youth and requiring confiscation.

1. Statutory authority:

Section 20(3) of the Social Services Law authorizes the Department (Office of Children and Family Services – OCFS) to establish rules, regulations and policies to carry out the OCFS’s powers and duties under the Social Services Law.

Section 34(3)(f) of the Social Services Law authorizes the Commissioner of the OCFS to establish regulations for administration of public assistance and care within the state.

Section 398(3-a)(a)(1) of the Social Services Law authorizes the conditional release of any juvenile delinquent placed with a district to aftercare provided that such conditional release shall be made in accordance with OCFS regulations.

2. Legislative objectives:

Enactment of “Raise The Age” (RTA) (Chapter 59 or the Laws of 2017) legislation was an initiative of Governor Andrew Cuomo as New York was one of only two states left that still considered all 16 and 17 year olds automatically criminally responsible. Consistent with adolescent developmental needs and the Prison Rape Elimination Act, the RTA recognizes the potential vulnerability and treatment needs of young persons who are charged with criminal conduct. The RTA law raised the presumptive age of juvenile accountability to 16 year olds as of 10/1/2018 and for 17 year-olds effective 10/1/2019, and the vast majority of cases for 16 and 17 year olds will either originate in or be transferred to Family Court from the new Youth Part of the adult criminal court. Youth whose cases are in Family Court, if the youth is to be detained (pretrial or during the pendency of trial), or if placed (post-trial as a disposition), will be housed in OCFS-operated or OCFS-licensed authorized agencies.

3. Needs and benefits:

The proposed regulations provide uniform guidance to clarify the Raise the Age law as it applies to authorized agencies and county Departments of Social Services.

The regulatory proposals which add provisions to Part 431 of the Social Services regulations for the “Care and Protection of Children” are needed to provide guidance to authorized agencies to address the circumstances under which an adjudicated juvenile delinquent may be conditionally released and provides for terms and conditions to be imposed on such a conditional release so as to promote and enhance the chances for success for the youth. There is also a provision for a hearing for the youth where the conditional release is revoked. Other regulations are proposed for Part 431 to address the calculation of a placement for a youth placed on a delinquency adjudication and the effect of an interruption of that placement.

The regulatory proposals in Article 3 – “Child Care Agencies” in the Part 441 General provisions of the Social Services regulations expands the definition of a “child or youth” to comply with the language in the Raise The Age law. A new subdivision is added to provide guidance to authorized agencies for circumstances in which searches of a child’s or youth’s property or person may be searched and requires agencies to have written policies about searches that must be in accord with the regulations. Another proposed regulation adds a prohibition of non-prescribed or non-approved inhaling devices.

4. Costs:

The authorized child care agencies may have increased staffing needs due to more, older youth being placed pursuant to juvenile delinquency adjudications, resulting in higher costs for the agencies. Also, any youth whose conditional release is revoked is entitled to a revocation hearing and as such, there may be an increase in hearing of this nature. This may result in increased costs for the counties, however, these costs are likely to be covered by the Raise The Age law appropriation at 100% provided that the county is within the tax cap or proves hardship.

5. Local government mandates:

Proposed regulation 18 NYCRR § 431.19 imposes the following mandates on a local social services district (LDSS):

1. Subdivision (e) requires the LDSS to remain responsible for a youth conditionally released pursuant to a delinquency adjudication; and

2. Subdivision (g)(4) requires that any proposed modification to the conditions of release must be reviewed and approved by the aftercare worker supervisor in consultation with the LDSS case manager; and

3. Subdivision (j)(2) requires that a written recommendation of a youth’s conditional release revocation to be reviewed by the youth’s LDSS case manager, and

4. Subdivision (k) requires the LDSS to provide the youth with timely notice and an opportunity to be heard when there is a revocation of the youth’s conditional release.

6. Paperwork:

There will be paperwork generated in order to comply with the above-stated mandates for notices required to be given by the LDSS.

Proposed regulation 18 NYCRR § 441.18 pertaining to searches will require authorized agencies to have written policies for searches and each search conducted and/or contraband confiscated as a result thereof will have to be documented pursuant to the regulation.

Proposed regulation 18 NYCRR § 431.19 requires all conditions of a conditional release, as well as any modifications or revocations thereof to be written. There is likely paperwork associated with any revocation hearing.

7. Duplication:

These proposed regulations do not duplicate any existing State or federal requirements.

8. Alternatives:

There were no significant alternative proposals to these regulations considered.

9. Federal standards:

The proposed rules do not exceed federal standards.

10. Compliance schedule:

These provisions should be complied with upon filing of the emergency and adoption of the final rule.

1. Effect of rule:

Small businesses and local (other than county) governments are not impacted by this rule. County government probation departments and departments of social services must comply with the rules.

2. Compliance requirements:

These regulations add no additional requirements on small businesses or local governments. These rules clarify the requirements in statute and add no additional burdens beyond the statutory requirements.

3. Professional services:

No additional professional services are necessary for compliance with these rules.

4. Compliance costs:

The proposed rule imposes no additional costs on local government or small businesses because it clarifies the statutory requirements of the Raise the Age law.

5. Economic and technological feasibility:

Small business and local government will have no additional economic or technological burden due to this rulemaking.

6. Minimizing adverse impact:

The proposed rule minimizes adverse impact by providing 100% reimbursement for qualified expenses under Raise the Age.

7. Small business and local government participation:

There has been extensive outreach and local work by OCFS, DCJS and other key participants to educate persons on the law and to listen to concerns from those impacted. Additionally, the regulatory proposal will be available to affected parties for comment and will be thoroughly addressed through statewide trainings and guidance documentation distributed to affected parties and counties, including those that serve rural communities, departments of social services, authorized agencies and facilities.

1. Types and estimated numbers of rural areas:

The proposed rulemaking will have minimal impact on rural areas. Potentially each rural area could be home to youth impacted by Raise the Age. However, State estimates of youth likely to be placed do not indicate that there is likely to be a large flow of youth into the system, therefore the impact is expected to be a minimal.

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

These regulations impose no new requirements but clarify requirements in statute. As is currently required, the county departments of social service and voluntary authorized agencies impacted by Raise the Age will use the CONNECTIONS system and the Juvenile Justice Information Systems-Child Welfare (JJIS-CW). State estimates of youth likely to be placed do not indicate that there is likely to be a large flow of youth into the foster care system, therefore the impact is expected to be a minimal increase.

3. Costs:

There are some costs associated with these requirements however costs for youth who are in placement in a Raise the Age program are 100% reimbursable provided the county is within the tax cap or is approved for a hardship and includes those costs in their approved Raise the Age plan. There may be a cost to county government associated with hearings that may be needed if a youth’s conditional release is being revoked.

4. Minimizing adverse impact:

It is anticipated that rural counties will have relatively low numbers of youth placed in foster care on delinquency based on historical data and current arrest and placement trends.

5. Rural area participation:

There has been extensive outreach and local work by OCFS, DCJS and other key participants to educate persons on the law and to listen to concerns from those impacted. Additionally, the regulatory proposals will be available to affected parties for comment and will be thoroughly addressed through statewide trainings and guidance documentation distributed to affected parties and counties, including those that serve rural communities.

The changes to the regulations are not expected to have a negative impact on the job market. The Raise the Age law may result in some small positive impact resulting from the possible need to have additional hearing officers or additional staff for voluntary authorized agency programs to serve the older population.