Specifically, this rule would authorize reimbursement for residential CSE maintenance where there has been an absence in excess of 15 days and such absence was directly related to a state of emergency and determined by the local department of social services to be necessary for the health and safety of a child. Residential CSE providers receive tuition and maintenance reimbursement for the cost of the special education programs. The maintenance reimbursement attendant to the residential component of CSE placement are regulated by the Office and are made on a per-diem basis for the present year’s care days but are reflective of the prior year’s operating costs of the programs.

Sufficient capacity at residential CSE programs is crucial to maintain the availability of these placements for children who are determined by a CSE to need these services to receive a free and appropriate public education. This rule is required on an expedited basis to preserve the availability of residential CSE placements and to remove existing regulatory barriers to receiving reimbursement that the programs may rely on to continue to operate, as a result of an absence resulting from a state of emergency where the absence was necessary for the health and safety of a particular child.

(4) Reimbursement of expenditures for care of a child in either direct or indirect care shall not include per diem costs of absences, except as follows:

(i) all weekend visits;

(ii) all school and religious holidays;

(iii) vacation--up to 15 days per calendar year, excluding weekend visits;

(iv) all organized school trips;

(v) detention--up to seven consecutive days;

(vi) running away--up to seven consecutive days;

(vii) home on trial--up to seven consecutive days;

(viii) absences due to hospitalization--up to 15 days per calendar year, except that in cases in which a child is diagnosed as having acquired immune deficiency syndrome (AIDS) or AIDS related complex (ARC) or has tested positive for human immune deficiency virus (HIV) or any infection with the probable causative agent of AIDS, the maximum number of absences per each episode of hospitalization for which reimbursement shall be available is as follows:

(a) up to 30 days of absence for children residing in a group home, group residence, agency boarding home, institution or approved residential school for the handicapped prior to the hospitalization; and

(b) up to 60 days of absence for children residing in a foster family boarding home prior to the hospitalization. Reimbursement in such cases shall include both administrative expenses and the pass-through payment to the foster parent;

(ix) visits to potential foster or adoptive parents--up to seven consecutive days per visit; [and]

(x) respite care and service provided pursuant to Part 435 of this Title[.]; and

(xi) in relation to absence of a child with a disability placed by a school district pursuant to section forty-four hundred five of the Education Law, where such absence was after April 1, 2020, and directly resulting from an emergency where a declaration of emergency has been issued by the state or federal government, and such absence is necessary for the health and safety of any child, as determined by the relevant local department of social services.

1. Statutory authority:

The Office of Children and Family Services (OCFS) has the authority to regulate rates for residential placements of children through Social Services Law section 153. The regulatory change adds a limited additional consideration for when an absence from such residential placement would be reimbursable by the local department of social services (LDSS) and the applicable school district.

2. Legislative objectives:

The legislative objectives in enacting Social Services Law section 153 was to establish requirements to govern appropriate claiming, reimbursements, advances and disallowances of specified expenditures by LDSSs, including, among other things, maintenance costs for residential Committee on Special Education (CSE) placements.

3. Needs and benefits:

The purpose of this rule is to amend a specific provision in regulation that has created an impediment for non-profit providers that provide residential educational programs for children with disabilities in seeking reimbursement from LDSSs and school districts for services provided to these children throughout the pandemic. These children are determined to be in need of these highly specialized educational residential services due to the intensity of their mental health, developmental or behavioral health needs by local school districts’ CSEs.

When the Governor issued the state of emergency in March, several parents made the decision to take their child home out of fear of them contracting the virus in the residential education setting. The majority of the not for profits continued providing remote services to the children and their families understanding that the children would be returning to their campuses when safe to do so. Due to OCFS’s regulation limiting absences to 15 days, providers have been unsuccessful in their attempts to seek reimbursement resulting in an estimated $12M loss that continues to accrue, according to data provided by the Council of Family and Child Caring Agencies (COFCCA).

Payment for these residential educational placements are made by the LDSS in the first instance and then the applicable local school district reimburses the LDSS a portion of these costs (approximately 47%). Because OCFS is not a party to the reimbursement, but rather merely the agency that sets and approves the reimbursement rate, OCFS proposes to amend the regulation such that a reimbursement for residential placement during this state of emergency may be authorized, but is not expressly mandated. The proposal would remove the barrier created by the previously narrow set of exceptions and allow the programs to seek reimbursement.

4. Costs:

This rule would not mandate any new costs or payments on the State, local governments, OCFS or regulated entities, but instead would remove barriers that would preclude payment for absences that have resulted from COVID-19 where failure to make these payments may result in an unanticipated savings for a LDSS or a local school district.

5. Local government mandates:

This change enacts no new mandates on local governments. Instead, this regulatory package will allow flexibility for the LDSS when faced with a state of emergency.

6. Paperwork:

It is anticipated that this rule, would at most, result in minimal new paperwork related to claiming requirements, if at all.

7. Duplication:

No duplication of requirements is associated with this rule.

8. Alternatives:

The possibility of not adopting any regulatory change was considered. In light of COVID-19, OCFS determined to pursue this path as the existing regulatory language was inflexible and has precluded any maintenance reimbursement for residential CSE placements where the absence exceeded 15 days, creating unique and unforeseeable fiscal challenges for residential CSE providers.

9. Federal standards:

This rule provides for appropriate care and services for children with special needs. This is not in excess of any federal standard.

10. Compliance schedule:

As this rule provides flexibility to existing regulatory requirements, compliance and applicability of the rule is determined by the LDSS on a case by case, as needed, basis.

1. Effect of rule:

This rule will provide flexibility that would allow for the absence of children with disabilities from residential programs during a state of emergency when such absence in is the best interests of the children and approved by the local department of social services.

The local government entities that are impacted are local departments of social services (LDSSs). There are 58 LDSSs in New York State. The small business that may be impacted are the non-profit programs that provide residential committee on special education (CSE) placements in New York State. It is estimated that there are seven residential CSE programs in the state that are small businesses.

The impact this rule will have on these entities is positive as the rule provides flexibility to extend the option to seek reimbursement for absences in the event of a national or state declaration of emergency.

2. Compliance requirements:

It is anticipated that there would be minimal record keeping or reporting associated with this rule.

3. Professional services:

There are no new professional services anticipated to be required as a result of this rule.

4. Compliance costs:

There are no new anticipated compliance costs associated with this rule.

5. Economic and technological feasibility:

There are no economic or technological issues with implementation rule.

6. Minimizing adverse impact:

This rule has been written to minimize adverse economic impacts on LDSSs and local school districts. Specifically, the rule removes a barrier to reimbursement for certain expenditures but does not mandate payment. Any payment a LDSS chooses to pay, pursuant to these regulatory provisions, would reduce unanticipated savings a LDSS or school district may have otherwise realized attendant to COVID-19.

7. Small business and local government participation:

OCFS is in regular communication with the non-profit entities and LDSSs impacted by this rule. The Council on Family and Child Caring Agencies (COFCCA), which is the umbrella organization representing some of the non-profit entities impacted by this rule, has strongly urged OCFS to remove the regulatory barrier that precluded reimbursements for residential CSE placements when a child had been absent for longer than 15 days due as a result of unanticipated absences resulting from COVID-19.

1. Types and estimated numbers of rural areas:

This rule is applicable in all rural areas of the state. It is estimated that there are 34 residential CSE providers in New York State with 9 residential CSE providers estimated to be located in rural areas of the state. This rule does not impact any additional school districts beyond those that are already impacted by the existing statutory and regulatory provisions, which are applicable statewide, including in all rural areas.

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

It is anticipated that there would be minimal new reporting, record keeping, or compliance requirements associated with this rule. There are also no new professional services anticipated to be required as a result of this rule.

3. Costs:

This rule does not mandate any new costs, but would authorize local departments of social services (LDSS) to make reimbursements for maintenance payments for residential Committee on Special Education (CSE) placements when a child has been absent from a program for more than 15 days when the absence was directly related to a state of emergency and determined to be necessary for the health and safety of the child. Any instance where a LDSS chooses to make reimbursement under the flexibility afforded by the rule would be reflective of costs that would have already been budgeted for and would have occurred absent a declared state of emergency. If a local district chooses to reimburse expenditures under the flexibility afforded by the rule, it may impact costs for local school districts, but such expenditures would have already been budgeted for.

4. Minimizing adverse impact:

There is no adverse economic impact for rural areas anticipated with this rule.

5. Rural area participation:

OCFS is in regular communication with the non-profit entities and LDSSs impacted by this rule. The Council on Family and Child Caring Agencies (COFCCA), which is the umbrella organization representing some of the non-profit entities impacted by this rule, has repeatedly and strongly urged OCFS to take regulatory action on this issue to remove the barrier to reimbursement imposed by the existing regulation. OCFS has had several conversations with the State Education Department on these issues to preserve the availability of residential CSE services. This consultation encompasses impacted entities in both rural and non-rural areas of the state.

1. Nature of impact:

It is anticipated that this rule will not have any impact on jobs and employment opportunities attendant to public and non-profit entities.

2. Categories and numbers affected:

It is anticipated that the rule does not impact any employment positions.

3. Regions of adverse impact:

There are no anticipated adverse impacts of this rule for any region of the state.

4. Minimizing adverse impact:

There are no anticipated adverse employment impacts associated with this rule. This rule provides flexibility in providing for additional days of absence from a residential placement when such absence is in the best interests of a child during a state of emergency and approved by the local county department of social services.

5. Self-employment opportunities:

There are no anticipated adverse impacts of this rule on any self-employment opportunities in the state.

The New York State Office of Children and Family Services (OCFS) received 10 comments regarding the CSE regulations. Every commentator professed their support for the CSE regulations in general and thanked OCFS for emergency enactment of the regulations.