(n) The term Person In Need of Supervision (PINS) means a person less than 18 years of age who does not attend school in accordance with Article 65 of the Education Law or who is [incorrigible,] ungovernable, or habitually disobedient, and is beyond the lawful control of the parent(s) or other person(s) legally responsible for his/her care, or other lawful authority, [or who violates the provisions of Penal Law Section 221.05] or who appears to be a sexually exploited child, but only if the child consents to the filing of a petition under this article pursuant to Penal Law Section 230.00. A pattern of behavior must be documented for complaints involving PINS behavior other than running away or, staying away [, or marijuana possession].

2. Subdivisions (b), (c) and (d) of section 357.5 of 9 NYCRR are amended to read as follows:

(b) Probation shall provide intake and diversion services, which shall include diligent efforts to engage the youth and family in appropriately targeted community-based services. Such diligent efforts shall:

(1) Be clearly documented in the case record;

(2) Be designed to provide an immediate response to families in crisis;

(3) Identify and utilize appropriate alternatives to pre-dispositional placement;

(4) Attempt to divert youth from being the subject of a petition in family court;

(5) Include screening and assessment using a state-approved risk and needs assessment instrument;

(6) Include assessing for the sexual exploitation of youth using a state-approved instrument, ensure that youth identified as sexually exploited are referred to available and appropriate services including but not limited to safe house services in accordance with the Safe Harbour Act; and

(7) Include conducting a mental health screening at the initial conference using a state-approved instrument for cases opened for [adjustment] diversion services and where consent has been provided.

(c) Where the youth is not attending school and is beyond the compulsory education age, a parental complaint may be made based on [incorrigible/] ungovernable behavior.

(d) Where the matter involves truancy and or [incorrigible/] ungovernable and/or habitually disobedient behavior in school and the youth is a special education student, probation shall gather information from the Committee on Special Education regarding the youth’s behaviors and any relationship to the youth’s disability. Probation may require a Manifestation Determination before accepting a school-filed complaint.

3. Subdivision (c) of section 357.7 of 9 NYCRR is amended to read as follows:

(c) Electronic monitoring may only be used with probation director consent and upon specific court order. Absent a directive from the Court, Probation shall ensure the cumulative application of electronic monitoring not exceed 90 days for each diversion case.

4. Paragraph (4) of subdivision (b) of section 357.8 of 9 NYCRR is amended to read as follows:

(4) Review and update the case plan on an ongoing basis to document any changes in priority areas, goals, action steps, roles and responsibilities, and progress; case notes should reflect progress in meeting the goals included in the caseplan.

5. Subdivision (d) of section 357.9 of 9 NYCRR is amended to read as follows:

(d) Where the matter involves truancy and/or [incorrigible] ungovernable behavior at school and the youth is a special education student, probation shall not refer the matter for petition unless a Manifestation Determination hearing has been held by the Committee on Special Education (CSE) and the school has provided such documentation to the probation department and the court that the student’s behaviors are not related to the student’s disability, thereby warranting court action;

1. Statutory authority:

Executive Law § 243(1) directs the Director of the Office of Probation and Correctional Alternatives, after consultation with the State Probation Commission, to recommend to the Commissioner of the Division of Criminal Justice Services, general rules that “regulate methods and procedure in the administration of probation services.” Further, Executive Law § 256(1), requires probation agencies to perform intake services assigned to them pursuant to law.

Family Court Act (FCA) § 735(a) requires:

“[E]ach county and any city having a population of one million or more shall offer diversion services…to youth who are at risk of being the subject of a person in need of supervision petition. Such services shall be designed to provide an immediate response to youth in crisis, to identify and utilize appropriate alternatives to detention and to divert youth from being the subject of a petition in family court. Each county and such city shall designate either the local social services district or the probation department as lead agency for the purposes of providing diversion services.”

Additionally, Social Services Law § 34-a(4)(b) requires every jurisdiction to submit a multi-year consolidated services plan which includes diversion services for Persons In Need of Supervision (“PINS”).

2. Legislative objectives:

These proposed amendments are consistent with the legislative directive that the Director recommend regulations to be adopted by the Commissioner of DCJS relating to critical probation functions and to promote professional standards governing administration and delivery of probation services in the area of intake (preliminary procedure) for family court involving PINS. Passage of recent legislation amended the definition of PINS under Family Court Act (FCA) § 712(1) by removing the violation of Penal Law § 221.05 (unlawful possession of marihuana in the second degree) as a qualifying criterion for PINS, effective March 31, 2021, and repealed Penal Law § 240.37 (loitering for the purpose of engaging in a prostitution offense), effective February 2, 2021. Furthermore, Chapter 97 of Laws of 2021, which took effect on April 6, 2021, removed the terms “incorrigible” and “incorrigibility” from several sections of the Family Court Act. Additionally, these proposed amendments restrict timeframes for the use of electronic monitoring with PINS diversion youth, when absent specific Court directive. These amendments are necessary to provide direction to assist probation departments with conforming to current law and best practice.

3. Needs and benefits:

Probation departments are responsible for conducting the preliminary procedure, in whole or in part, either because they are the designated lead agency in their county or are responsible for providing a portion of preliminary procedure under a PINS Memorandum of Understanding with the local Department of Social Services.

These proposed amendments conform to the amendments made to the Family Court Act and Penal Law in 2021. Specifically, the definition of PINS was amended in 2021 through three separate bills effectively eliminating two PINS criteria: Penal Law § 221.05 (unlawful possession of marihuana in the second degree), and Penal Law § 240.37 (loitering for the purpose of engaging in a prostitution offense) and removing the use of the terms “incorrigible” and “incorrigibility” from the definition of PINS.

Additionally, these proposed amendments provide guidance to probation departments by inserting time parameters when the Family Court had issued an electronic monitoring order, but the Court had remained silent on timeframes for such use.

4. Costs:

Effective PINS diversion services can reduce long term state and local governmental costs for those youth who are at risk of continued involvement with the juvenile justice or criminal justice systems. No additional costs are anticipated in adhering to these amendments beyond what is currently required in law and regulation.

DCJS continues to make available, at no cost to jurisdictions, advisements through memoranda and training webinars.

5. Local government mandates:

DCJS has always had agency rules governing the PINS preliminary procedure and does not anticipate that these new requirements will be burdensome on local governments. While these amendments require attention to specific key areas establishing provisions for effective preliminary procedure, it also provides flexibility and recognizes differences among jurisdictional policies and resources.

6. Paperwork:

These amendments do not appear to lead to any additional significant costs related to paperwork and will not be burdensome.

7. Duplication:

These proposed amendments do not duplicate any State or Federal law or regulation. It clarifies and reinforces certain laws with respect to provision of the preliminary procedure for PINS youth.

8. Alternatives:

These amendments integrate law, research, and model probation practices to establish specific minimum standards for probation’s provision of diversion services to PINS youth and their families. Strengthening and supporting consistent application of the preliminary procedure is essential to ensure effective diversion of youth, wherever appropriate. Accordingly, it is not a viable alternative to have an outdated probation rule that is inconsistent with current law, or no rule, governing the preliminary procedure for the PINS populations.

9. Federal standards:

There are no federal standards governing the probation intake/preliminary procedure process.

10. Compliance schedule:

Local probation departments should be able to promptly implement these amendments and comply with their provisions. These amendments will be effective upon publication of a Notice of Adoption in the New York State Register.

A regulatory flexibility analysis for small businesses is not required by Section 202-a of the State Administrative Procedure Act because the proposed amendments do not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses.

This proposed rule revises existing regulatory procedure in the area of Persons In Need of Supervision (PINS) eligibility for diversion services and guidelines for use of electronic monitoring. These revisions will impact local probation departments which are responsible, in whole or in part, for the determination of eligibility of and delivery of diversion services to alleged PINS.

The Division of Criminal Justice Services (DCJS) always had agency rules governing PINS preliminary procedure and does not anticipate that these new requirements will be burdensome upon probation departments. In preparation and drafting of the proposed amendments, DCJS was diligent in engaging probation professionals from around the state: 1) in June 2021 DCJS’ Office of Probation and Correctional Alternatives (OPCA) circulated State Directors Memorandum #2021-7, providing an update regarding changes in PINS eligibility backed by statutory eliminations of certain criteria; 2) In February 2022, OPCA circulated a draft of the proposed amendments to all probation directors/commissioners; (3) Also in February 2022, the NYS Council of Probation Administrators (COPA) was briefed on this matter in an annual meeting and sent the draft for comment. The very limited feedback that was provided indicated that these amendments reflect current best probation practices.

A rural area flexibility analysis is not being submitted with these proposed regulations because it will have no adverse effect on rural areas.

A job impact statement is not being submitted with these proposed amended regulations because they will have no adverse effect on private or public jobs or employment opportunities.