The proposed amendment of 18 NYCRR 441.17 would eliminate the authority of child care agencies to use room isolation, mechanical restraints, pharmacological restraints, and prone holding techniques as a form of restraint of children in foster care. The proposed amendment would require that children cared for in an institution licensed by OCFS receive a post restraint health review. In addition, the proposed amendment would require a specified notification of designated persons and agencies of the physical restraint of a child.

The proposed amendment of 18 NYCRR 441.22 would conform the process for HIV testing of children in foster care to the standards set forth in Article 27-f of the Public Health Law and the regulations of the New York State Department of Health set forth 10 NYCRR Part 63. Additional amendments would require child care agencies to provide comprehensive behavioral health services to children in foster care who are cared for in a congregate facility (an institution, group residence, group home or agency-operated boarding home). The proposed amendment would require the timely development of an individualized crisis intervention plan for each such child. In addition, the proposed amendment would require the timely development and update of a treatment plan for children in foster care placed in congregate settings. Such plan would be subject to development and review by a designated treatment team and consultation with other professionals. The proposed amendment would require that child care agencies, where indicated, provide mental, behavioral and substance use/abuse services to children in foster care placed in congregate facilities on a regular basis.

The proposed amendment of 18 NYCRR 442.2 would preclude a child care institution from maintaining or operating an isolation room. The proposed amendment would authorize a child care institution to establish and operate a de-escalation room for the purpose of calming a child in foster care and averting the need for greater intervention. Use of the de-escalation room would require the child’s consent. The proposed amendment would establish standards for the operation of the de-escalation room, including frequency, staffing, and the composition of the de-escalation room.

1. Statutory Authority:

Section 20(3) (d) of the Social Services Law (SSL) authorizes the Office of Children and Family Services (OCFS) to establish rules and regulations to carry out its powers and duties pursuant to the provisions of the SSL.

Section 34(3) (f) of the SSL requires the Commissioner of OCFS to establish regulations for the administration of public assistance and care within New York State.

Section 462(1)(a) of the SSL requires OCFS to promulgate regulations concerning standards of care, treatment and safety applicable to all facilities exercising care or custody of children.

2. Legislative Objectives:

Chapter 436 of the Laws of 1997, created OCFS to take on the functions, powers, duties and obligations in the SSL concerning foster care, adoption services, adoption assistance, child protective services, preventive services for children and families, services for pregnant adolescents, day services, and other services and programs identified in article 6 of the SSL regarding the care and protection of children and under the structure and authority of article 2 of the SSL. This proposed rule enhances that responsibility by addressing the issue of risk of physical and psychological harm. The policy of the State is to require comprehensive behavioral health services for each foster child placed in a congregate foster care placement through the creation of individualized crisis intervention plans and treatment plans. The provisions cited above clearly provide the Office with the authority to create this regulation.

3. Needs and Benefits:

The proposed regulations recognize the risk of trauma of foster children when placed in foster care and the ongoing need to address that risk while preparing the child for discharge from foster care. Children frequently experience physical and psychological trauma before entering foster care and often react in an individualized manner to trauma experienced while in foster care.

The proposed regulations would establish standards for the development of the timely creation and review of a crisis intervention plan for each foster child placed in either an institution, group residence, group home or agency-operated boarding home. Such plan must be child-specific and consider the child’s behavioral history and needs. The crisis intervention plan must include de-escalation and other intervention strategies to address potential acute physical behavior of the child to reduce the risk of harm. The proposed regulations would also require the development of a treatment plan for each foster child placed in a congregate placement intended not only to address issues the child may experience while in care but also to prepare the child for a safe and appropriate discharge. The treatment plan would be developed by a treatment team comprised of agency staff, clinicians, medical personnel, the child’s primary discharge resource and others. A component of the treatment plan includes a review of any medications the foster child receives, in consultation with the prescribing psychiatrist or other medical professional.

The proposed regulations would require that, where indicated, the agency caring for the foster child must provide mental, behavioral and substance use/abuse services to such foster child on a regular basis.

The proposed regulations would eliminate the ability of a child care agency to involuntarily place a foster child in room isolation as a means of restraint. The authority of a child care agency to maintain an isolation room would be eliminated. In the alternative, the proposed regulations would authorize a child care agency operating an institution to permit a foster child, consistent with the child’s treatment plan, to be cared for with the consent of the foster child in a room to calm escalating behavior. The proposed regulations would establish standards for the staffing, duration of placement, supervision and physical makeup of the de-escalation room. The proposed regulations would also require the assessment of any foster child placed in a de-escalation room for more than two hours by either a medical or mental health professional.

The requirement that each child care agency develop a continuous quality improvement policy would help agencies identify existing and potential issues impacting the quality of care provided to foster children and to formulate plans on addressing and ameliorating such issues. The requirement that a child care agency establish a policy on residents’ personal property is consistent with the recognition of the rights of foster children.

4. Costs:

The proposed regulations codify existing practice in agencies. Costs include additional responsibilities for agency administrative and clinical staff. The additional clinical staff responsibilities would be funded through the Residual Medicaid per diem and the administrative responsibilities through the Maximum State Aid Rate for the program. The cost to the state is expected to be negligible.

5. Local Government Mandates:

The proposed regulations would require the development of individualized crisis intervention plans and treatment plans for each foster child placed in a congregate facility. Such plans would either be developed directly by a local department of social services (LDSS) or voluntary authorized agency with which the LDSS contracts.

Regarding the provision of services to foster children in such placements, OCFS regulation 18 NYCRR 441.15 currently requires the provision of psychiatric, psychological, and other essential services to children in foster care.

Regarding the requirement that child care agencies establish policies involving continuous quality improvement and resident’s personal property, several agencies already have such policies and OCFS will assist in their development by providing agencies with best practice guidance.

Regarding the operation of de-escalation rooms, the establishment of such rooms is not required.

Regarding the standards for HIV testing, these provisions are already in law, and this package conforms these regulations with existing legal standards.

6. Paperwork:

The requirements imposed by the proposed regulations in relation to the individualized crisis intervention plan and the foster child’s treatment plan would be recorded in the child’s case record.

7. Duplication:

The proposed regulations would not duplicate other state or federal requirements.

8. Alternatives:

In response to public comments the agency considered alternatives to what was originally proposed in both the first amended proposed regulations and in this version. Changes in this version include:

• Added language to clarify that restraints are an exceptional intervention.

• Changed post restraint “medical exam” to a post-restraint “health review”.

• Changes requirements for post-restraint health review to indicate that when a restraint occurs outside of working hours for medical staff, the post-restraint health review must occur as soon as practicable the next day.

• Changes a requirement for notifications to parents, county, and attorney for child after a restraint from the original proposed change of 2 hours to within 24 hours.

• Clarifies that attempts to contact all required individuals following a restraint (i.e. parent/guardian, attorney for the child, etc.) be documented for instances where such individuals are not immediately reachable.

• Changes the time frame for when a child placed in a congregate care program must receive a screening from a validated instrument to determine at minimum suicidality, chemical dependence requiring immediate medical intervention and prescribed medications from 24 to 72 hours.

• Renames the term “treatment team” to “support team”.

• Provides additional details for requirements regarding frequency for a youth’s support plan by a support team.

• Adds a requirement that the child’s support team include a clinical team member.

• Clarified that de-escalation rooms should not be confused with or treated the same as therapeutic sensory rooms.

• Clarified the terms of use and duration of use of the de-escalation rooms.

• Clarified that after use of the de-escalation room an assessed by a medical or mental health professional must occur as soon as practicable, but no later than the next day if the instance occurred after the close of business.

9. Federal Standards:

The proposed regulations would not conflict with current federal standards.

10. Compliance Schedule:

Compliance with the proposed regulations would begin immediately upon final adoption.

1. Effect of Rule:

The proposed regulations will affect local departments of social services and the approximately 83 voluntary authorized agencies in New York State. The edits made to the Express Terms in this revised rulemaking in response to the public comments do not require any changes to the RFA.

2. Compliance Requirements:

The proposed regulations would require child care agencies operating congregate facilities (institutions, group residents, group homes and agency operated boarding homes) to provide comprehensive behavioral health services to foster children in their care. The child care agency would be required to provide, where indicated, mental, behavioral and substance use/abuse services to foster children in its care on a regular basis.

The proposed regulations would require that each foster child placed in a congregate setting have a timely individualized crisis intervention plan designed to address potential acute physical behavior and identify interventions designed to respond to such behavior reducing risk to the child. In addition, the proposed regulations would require that a specified treatment team develop a treatment plan for each foster child placed in a congregate facility. The treatment plan must be updated periodically in consultation with appropriate professionals.

The proposed regulations would require child care agencies operating residential programs to establish and maintain policies on continuous quality improvement and resident’s personal property.

Where a child care agency operates a de-escalation room, the proposed regulations would require the child care agency to maintain daily records on the foster children placed in the de-escalation room, as well as other methods of intervention that were tried and proven unsuccessful and the steps that will be taken to reduce the time the child remains in the de-escalation room.

The proposed regulations would require that all children cared for in an institution licensed by OCFS receive a post-physical restraint health review.

The proposed regulations require notification of the parent, guardian or other person legally responsible, as applicable, and the authorized agency with legal custody of a child who was physically restrained. Such notification issued by the restraining authorized agency must include that the child was physically restrained, any injures the child experienced as a result of the physical restraint and any contacts with the Justice Center’s Vulnerable Persons’ Central Register.

3. Professional Services:

The proposed regulations would require that the foster child’s treatment team include medical personal if the foster child is prescribed psychiatric medication and the review of the treatment plan with the prescribing psychiatrist or medical professional.

4. Compliance Costs:

Compliance costs for foster care program staff participating in treatment teams are expected to be negligible, though the requirement for follow up each 30 days may be significant to warrant review by the Department of Health for impact of additional clinical staff time funded by Residual Medical per diem rates.

5. Economic and Technological Feasibility:

It is anticipated that the proposed regulations would not have a significant adverse economic impact on local departments of social service or voluntary authorized agencies requiring the hiring of additional staff.

Current OCFS regulation 18 NYCRR 441.15 requires child care agencies to provide psychiatric, psychological and other essential services to foster children in their care. Agency staff, either as case managers, case planners or social workers, are currently assigned to service development and delivery to children in foster care. It is anticipated that such staff will assume the duties enacted by the proposed regulations.

6. Minimizing Adverse Impact:

It is not anticipated that the proposed regulations would result in an adverse impact on local government agencies or small businesses. It is anticipated that the services and planning requirements will have the beneficial effect of reducing the length of stay of children in foster care and aid in preventing return to foster care. The additional policy requirements should be helpful in reducing liability expose and corresponding costs to child care agencies.

7. Small Business and Local Government Participation:

The issues addressed in the proposed regulations have been discussed over the years with child care agencies through several means, including OCFS Regional Office oversight and monitoring, meetings with agency representatives and OCFS mandated corrective action plans.

8. For rules that either establish or modify a violation or penalty:

The proposed regulations would not establish or modify an existing violation or penalty.

1. Types and estimated number of rural areas:

The proposed regulations will affect 44 local departments of social services and the approximately 35 voluntary authorized agencies in rural areas of New York State. The edits made to the Express Terms in this revised rulemaking in response to the public comments do not require any changes to the RFA.

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

The proposed regulations would require child care agencies operating congregate facilities (institutions, group residents, group homes and agency operated boarding homes) to provide comprehensive behavioral health services to foster children in their care. The child care agency would be required to provide, where indicated, mental, behavioral and substance use/abuse services to foster children in its care on a regular basis.

The proposed regulations would require that each foster child placed in a congregate setting have a timely individualized crisis intervention plan designed to address potential acute physical behavior and identify interventions designed to respond to such behavior reducing risk to the child. In addition, the proposed regulations would require that a specified treatment team develop a treatment plan for each foster child placed in a congregate facility. The treatment plan must be updated periodically in consultation with appropriate professionals.

The proposed regulations would require child care agencies operating residential programs to establish and maintain policies on continuous quality improvement and resident’s personal property.

The proposed regulations would require that all children cared for in an institution licensed by OCFS receive a post-physical restraint health review.

The proposed regulations would require notification of the parent, guardian or other person legally responsible, as applicable, and the agency with legal custody of a child who was physically restrained. Such notification by the authorized agency that restrained the child must include that the child was physically restrained, any injuries experienced by the child as a result of the restraint and any contacts with the Justice Center’s Vulnerable Persons’ Central Register.

The behavioral health services provided to foster children are required by the proposed regulation would be recorded in the foster child’s case record as would the individualized crisis intervention plan and the foster child’s treatment plan.

Where a child care agency operates a de-escalation room, the proposed regulations would require the child care agency to maintain daily records on the foster children placed in the de-escalation room, as well as other methods of intervention that were tried and proven unsuccessful and the steps that will be taken to reduce the time the child remains in the de-escalation room.

3. Compliance costs:

The requirements of the regulations appear to codify current practice in child care agencies. Additional program costs for staff participating in treatment teams are expected to be negligible, though the requirement for follow up each 30 days may be significant to warrant review by the Department of Health for impact on the Residual Medical per diem rates.

4. Minimizing adverse impact:

The concept of addressing the behavioral health of foster children is not a new concept to child care agencies serving foster children. Current OCFS regulation 18 NYCRR 441.15 requires child care agencies to provide psychiatric, psychological and other essential services to foster children in their care. Several child care agencies already develop child specific plans for children in care to address potential acute physical behavior. OCFS is developing best practice policies to assist child care agencies develop policies on agency continuous quality improvement and resident’s person property.

5. Rural area participation:

The issues addressed in the proposed regulations have been discussed over the years with child care agencies through several means, including OCFS Regional Office oversight and monitoring, meetings with agency representatives and OCFS mandated corrective action plans.

The proposed amendments to regulation will not have a negative impact on jobs or employment opportunities in either public or private child welfare agencies. A full job impact statement has not been prepared for the proposed regulations as it is assumed that they will not result in the loss of any jobs. The edits made to the Express Terms in this revised rulemaking in response to the public comments do not require any changes to the RFA.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2024, which is no later than the 3rd year after the year in which this rule is being adopted.

General:

• One commenter suggested that regulatory language be added related to which data should be collected/maintained by agencies. OCFS achieves this through our data collection and reporting structures. No changes were made.

• One commenter suggested an elimination of regulations related to costs. This suggestion falls outside of the scope of the amendments made to this regulatory package. No changes were made.

• One commenter suggested regulatory language be added regarding the COVID-19 vaccination priorities and for the use of general tele-medicine and other innovative flexibilities resulting from the COVID-19 pandemic. This suggestion falls outside of the scope of the amendments made to this regulatory package. No changes were made.

441.17:

• Several commenters requested clarification around language pertaining to pharmacological restraints. The language to which they requested changes was stricken from the regs in the first instance. No changes were made.

• Several commenters agreed with the regulation’s prohibition of prone restraints and made additional comments that cannot be addressed in regulatory language. No changes were made.

• One commenter suggested that the prohibition of prone restraints equates to an unfunded mandate due to the perceived requirement for additional staff to perform alternate techniques. We disagree as there are techniques currently available and provided that require the same or fewer staff. Additionally, increased attention around trauma responsive programming should decrease overall necessity for the use of physical interventions. No changes were made.

• Several commenters recommended clarification around the post-restraint medical exams requiring 24/7 medical coverage. We concur, changes were made.

• One commenter suggested the addition of clarifying language related to “post-restraint medical exam” and “post-physical restraint health review.” We concur, changes were made.

• One commenter suggested that language should be added around documentation of efforts made regarding contacting people deemed essential to notify after a restraint. We concur, changes were made.

• Several commenters expressed concern about notifying parents after restraints who were not interested in being contacted regarding their children. Parents are essential partners in a successful system where youth are temporarily in the care and custody of a Commissioner of Social Services and engaging parents around important and traumatic incidents such as those that lead to restraints is critical. The comments are not consistent with the intent of the regulations. No changes were made.

• Several commenters recommended changes to the timeframes in which post-restraint notifications should be made. We concur, changes were made.

• One commenter suggested further changes to the justification for the use of physical interventions. We believe that “acute physical behavior” is well understood in the field. No changes were made.

• One commenter suggested adding language that the use of restraints is an “exceptional intervention.” We concur, changes were made.

• One commenter suggested stronger regulatory language regarding training mandates. Trainings and policies related to training in restraint policies are monitored by OCFS and is more appropriate for internal agency policies which are approved by OCFS. No changes were made.

• Several commenters suggested changes related to costs, specific training requirements, use of video conferencing, and vaccination prioritization. Such details are not best addressed in regulation. No changes are necessary, and none were made.

441.19:

• One commenter suggested changes to 441.19(d). This suggestion falls outside of the scope of the amendments made to this regulatory package. No changes were made.

441.22:

• Several commenters recommended changes to the “treatment team” designation, as well as the scheduled updates. We concur, changes were made.

• Several commenters recommended changes to the treatment plan reviews and alignment with other required reviews. We concur, changes were made.

• One commenter proposed a time frame of 72 hours for the development of an individualized crisis intervention plan. We concur, changes were made.

442.2:

• One commenter suggested adding language related to de-escalation rooms and that they “may only” be used to assist in calming a child’s escalating behaviors. We concur, changes were made.

• One commenter suggested clarification between de-escalation rooms and therapeutic sensory rooms. We concur, changes were made.

• Several commenters suggested adding language elaborating on when a child may be permitted to stay in a de-escalation room longer that two-hours. We concur, changes were made.

• One commenter suggested a change to the language as to when a youth should be assessed by a medical or mental health professional upon being in a de-escalation room for more than two-hours. We concur, changes were made.

• One commenter recommended including risk assessment with high level administrative approval as an exception to the use of de-escalation rooms. We concur, changes were made.