(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:

Changes made to the published rule do not necessitate revision to the previously published Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement. In the new subdivision 18 NYCRR § 352.3(m), the term “dwelling unit” was replaced with “temporary housing unit.” This revision was made in response to public comments and merely clarifies the type of units which the amendment is intended to address. The published Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement did not use the term “dwelling unit.”

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2019, which is no later than the 3rd year after the year in which this rule is being adopted.

The Office of Temporary and Disability Assistance (OTDA) received comments regarding the proposed amendments of 18 NYCRR §§ 352.3 and 352.8, which give OTDA rate approval authority over all shelter types; require the local districts to submit reports of the bi-annual inspections of hotels/motels used as temporary housing placements; and require local districts to be responsible for annual inspections of all uncertified shelters and submit reports of those inspections to OTDA.

18 NYCRR § 352.3(h): Submission of Inspection Reports for Hotel/Motel Placements

Currently, per § 352.3, local social services districts (local districts) are required to inspect the hotels/motels to which they make referrals for temporary housing placements. This regulation, which has been in place since 1983, provides a detailed list of items that the inspections must address. This regulation is in place not to limit the number of hotels/motels available for placements, but to ensure that those which are available are in conditions that do not jeopardize the health and safety of the individuals and families inhabiting them. The proposed amendment to this regulation would require that reports created as the result of the inspections are sent to OTDA.

Comments stated that the frequency of the inspections is overly burdensome and will result in fewer hotels/motels conducting business with the local districts. However, existing regulations already require local districts to inspect hotels/motels at least once every six months and report violations to the appropriate authorities. OTDA will not be adjusting the required number of inspections at this time.

Comments state that OTDA has dramatically underestimated the amendment’s impact on local districts in terms of time and manpower. OTDA does not agree with this assertion. The only amendment being made to § 352.3(h) is the requirement that local districts submit their inspection reports to OTDA.

Comments also expressed concern regarding the ability of local agency staff to perform inspections and enforce compliance. Due in part to these comments, OTDA intends to issue administrative guidance that will offer further clarification regarding how existing inspections may be accomplished. OTDA intends to coordinate with the local districts when drafting the guidance so that business practices can be developed that allow for the inspections to be accomplished in the least burdensome manner. OTDA expects that local districts will coordinate with other entities, such as local code enforcement officials, public health officials, etc. to see that these bi-annual inspections are being completed and that the reports are sent to OTDA. One comment suggested that if a district has to conduct an interim inspection to address a complaint or for any other reason, that is to be counted as a bi-annual inspection and reset the six month time clock. OTDA plans to look further into the impact that interim inspections will have on the bi-annual requirement and address this issue in its guidance.

352.3(m): Inspection of Uncertified Shelters

The addition of subdivision (m) to § 325.3 will require local districts to be responsible for annual inspections of all uncertified homeless shelters to which they make referrals and payments. This amendment does not mandate that the local districts conduct the inspections themselves, instead it allows local districts to partner with other entities to ensure inspections are completed. Local districts are encouraged, where possible, to partner with code enforcement officials, public health officials, etc. to ensure that inspections are being completed. Local districts will be required to submit the subsequent inspection report to OTDA.

OTDA maintains that the amendment will help establish a cohesive housing inspection plan, and OTDA will work with local districts to identify uncertified shelters that meet the requirements for certification. For those shelters that meet certification requirements and have submitted an application for certification, OTDA will take over the annual inspection process. Parts 491 and 900 of Title 18 NYCRR are very clear regarding which shelters are eligible for certification and subject to State inspection. Uncertified shelters do not meet those standards and therefore it is the responsibility of the local districts to ensure the safe and healthy administration of those shelters. For shelters that were built with OTDA capital funding through the Homeless Housing Assistance Program, OTDA will conduct the annual inspection of these facilities.

A comment suggested that OTDA alone should be responsible for inspecting all types of shelters throughout the State in order to promote efficiency and consistent standards. OTDA does not agree with this suggestion. The local districts should be responsible for inspecting the uncertified homeless shelters to which they make referrals and payments. Each local district knows its temporary shelter options and works hard to maximize those options to meet the needs of homeless households.

A comment suggested that OTDA should accept the inspection reports of other agencies “as is” because the local districts do not have legal authority to require other agencies to follow OTDA-specific requirements. While OTDA will encourage cooperation between local districts and other agencies to complete the annual inspections, OTDA cannot accept the “as is” recommendation. Temporary housing units need to comport with State and local laws, regulations, codes and ordinances in order to foster a safe, clean environment for persons in need.

OTDA is willing to work with each district to determine the most effective ways that the inspection requirement set forth in § 352.3(m) can be met, ensuring safe and healthy placements for clients while minimizing the additional work for the local districts. To that end, OTDA will be issuing administrative guidance to accompany the amended regulations and would like local district participation in the creation of the guidance. OTDA will offer guidance on how to work with service providers to help obtain compliance with all new requirements. OTDA plans to address the appropriate steps for local districts to take if a shelter provider refuses to participate in an inspection. OTDA agrees with the commenters who asserted that they do not want the new inspection requirements to inadvertently result in the loss of temporary housing units.

A comment indicated that OTDA should identify all existing inspections at all levels for each county. OTDA maintains that a collaborative approach between itself and the local districts will be needed to compile the most beneficial information and to develop strategies for confirming that thorough inspections are completed.

A comment stated that OTDA’s assertion that the inspection of shelters corresponds with the local district’s responsibility to provide fraud prevention activities is misdirected and not supported by regulation. In response, OTDA maintains that if local district fraud investigators have received the needed training and possess the required skills, one option for conducting shelter inspections is to have the inspections done by the investigators who might be visiting shelters to determine if those for whom hotel/motel stays that are paid for by the district are actually staying there. This is only a suggestion in order to make use of existing local district resources, and not a requirement.

Comments suggested that the use of the term “dwelling unit” in § 352.3(m) is too broad and could result in confusion. OTDA agrees with this comment and has replaced the term “dwelling unit” with “temporary housing unit” in the text of § 352.3(m) to clarify the type of units that the amendment was intended to address. This change is consistent with the supporting documents, which did not use the term “dwelling unit,” but instead referred to “temporary housing placements.”

18 NYCRR § 352.8(b)(1): Rate Setting

Several entities/organizations commented on the feasibility of OTDA approving all rates and the burdensome process that would be the result of this change. Additionally, several entities/organizations commented that due to their 71% share in Safety Net Assistance, the local districts already have incentives to limit costs. A comment described this amendment as an overreach of OTDA’s authority. In response, it is noted that this amendment simply extends OTDA’s existing rate approval authority for Tier II shelters to all shelter types. OTDA intends to work with the local districts to develop business practices that will make the implementation of these regulations as streamlined as possible. OTDA anticipates that administrative guidance will address such issues as the submission of paperwork, permissible review times and requests for reconsideration.

A comment was received in support of this amendment. OTDA maintains that establishing this rate setting authority at the State level will help prevent temporary housing providers from obtaining excessive rates and thus ultimately help safeguard State and local funds.

Two comments asserted that the term “temporary emergency housing” used in the Rural Area Flexibility Analysis (RAFA) to describe housing subject to the rate approval process is too broad. OTDA maintains that it is not; this section was intended to cover all situations in which a local district enters into a contract with an outside entity to provide shelter, where the cost is charged as public assistance expenditure.

Fiscal impact

Comments took issue with OTDA’s statement that the costs to the local districts for implementation would be manageable. OTDA reaffirms its statement. The amendment to § 352.3(h) does not require additional inspections of hotels/motels, instead it requires that local districts submit their hotel/motel inspection reports to OTDA. OTDA anticipates that local districts will coordinate with other entities that are already conducting periodic inspections to help satisfy the annual inspection requirement set forth in § 352.3(m). Lastly, OTDA plans to coordinate with the local districts and develop streamlined business practices for the review and approval of rates pursuant to § 352.8(b)(1).

OTDA received comments stating that it is counterintuitive for OTDA to say that it needs additional funding and staffing to implement the regulation, but that the counties would require only a small amount of local resources to implement them. While the additional activities engaged in by each local district would be relatively minimal, the staff time involved in reviewing all of the inspection reports submitted on a statewide basis, monitoring the quality of inspections conducted by the local districts, and conducting follow up inspections on facilities found to be in non-compliance is considerable. It should also be noted that the Department of Homeless Services in NYC, which has more than 75% of the uncertified shelters, has voluntarily adopted the practice of inspecting uncertified shelters and submitting them for OTDA review. It is the time involved in monitoring NYC’s compliance with these shelters that is likely to consume the largest percentage of the time of the newly-added OTDA staff.

Local government participation

Comments objected to OTDA’s description of NYPWA’s and the local districts’ participation in the rulemaking process. The comments asserted that there were only two phone conferences, and the local districts’ feedback was not considered. OTDA’s comments in the Regulatory Flexibility Analysis and the RAFA accurately characterized the two conference calls. OTDA did not assert that NYPWA or its members agreed with the proposed regulations, but rather that OTDA informed them of the proposed regulations and its intent to work with local districts in the process of implementing them. It is also noted that OTDA revised its proposal in response to suggestions made during the second conference call.

Additional issues

Comments asserted that the emphasis on inspections directs attention away from the fundamental need for more affordable housing. One comment recommended that instead of adopting these regulations, OTDA should create a competitive grant process to encourage local districts to come up with permanent solutions to homeless. In response, OTDA agrees that additional affordable housing would be very helpful. However, OTDA also maintains that the regulatory amendments are needed to help ensure that temporary housing placements are to safe and healthy environments. Both goals – safe, secure temporary housing placements and additional permanent housing – need to be pursued. It is noted that the suggestion to create a competitive grant process is outside the scope of this regulatory amendment.

One comment indicated that it was unfair that OTDA was penalizing a rural county, which has fewer housing options and places homeless persons in safe, clean housing. Another comment stated that OTDA had underestimated the impact the amendments would have on local districts, particularly large urban districts. This comment asserted that the new requirements would result in fewer homeless shelters in small counties with a resulting increase in persons being encouraged to use hotels/motels in large urban counties. In response, OTDA maintains that the new requirements need to apply equally throughout the State. All temporary housing placements whether in rural areas or urban centers need to be regularly inspected with their conditions documented. The goal is that all placements will provide clean, safe environments for homeless persons.

One comment suggested that a Performance Management Workgroup be formed to develop recommendations and regulatory amendments that would satisfy the goals of both OTDA and the local districts. Comments have suggested that LEAN principles be applied to this process. OTDA feels that collaboration with the local districts will be very helpful. OTDA is planning to work closely with the local districts to develop the most effective means of implementing the regulatory amendments.

Comments suggested that the State should take additional fiscal responsibility for the Safety Net Assistance program and recommended statutory amendments to this effect. A comment also suggested that the State provide additional annual funding to the NYS Supportive Housing Program, the Homeless Housing Assistance Program and the Solutions to End Homeless Program. OTDA maintains that these comments requesting statutory amendments and/or budget appropriations are outside the scope of this regulatory amendment.