Title 9 Part 166

The purpose of this Subpart is to set forth regulations and procedures for the protection of youth from child abuse and maltreatment in division-operated residential facilities and programs.

The Division for Youth shall establish, subject to and consistent with any applicable collective bargaining agreement(s) and provisions of the Civil Service Law, a written procedure to review, evaluate and verify the backgrounds of and information supplied by all applicants for employment or voluntary work. This procedure shall include provisions for receiving, at a minimum, the following information from each applicant:

The Division for Youth shall develop, and maintain on a current basis, a plan for adequate supervision of staff and volunteers in each residential facility or program, taking into consideration the population served and the type, size and physical layout of the facility or program, to assure appropriate care of youth and the prevention of child abuse and maltreatment. The plan shall be submitted to the deputy director of program operations for review and approval. The plan shall include, but not be limited to, the following:

Subject to the amounts appropriated therefor, child abuse prevention training shall be provided to all administrators, employees and volunteers on a regular basis, but at least annually. Priority shall be given to the training of administrators, employees and volunteers who have the potential for regular and substantial contact with the youth in residential care.

Subject to the amounts appropriated therefor, instruction shall be provided to all youth in techniques and procedures which will enable such youth to protect themselves from abuse and maltreatment.

All residential facilities operated by the Office of Children and Family Services for juvenile delinquents or juvenile offenders placed in the custody of the Commissioner of the Office of Children and Family Services shall be subject to and must comply with the requirements as set forth in 18 NYCRR Part 433 and any other applicable regulations including, but not limited to, 14 NYCRR Parts 703-704.

The purpose of this Subpart is to set forth regulations and procedures governing the availability of records of the Division for Youth, pursuant to the provisions of article 6 of the Public Officers Law, known as the Freedom of Information Law.

Records, reports and files of children who are or who have been under the care or supervision of the Division for Youth, other than those exceptions set forth in section 168.7 of this Subtitle, entitled “Confidentiality of Division for Youth records,” may not be disclosed in whole or in part to any person, agency or institution, other than the Division for Youth and the New York State Family Courts.

The Director of the Division for Youth designates the following person as the records access officer:

General Counsel

New York State Division for Youth

84 Holland Avenue

Albany, NY 12208

The director of personnel of the Division for Youth is hereby designated as the fiscal officer responsible for certifying the payroll of the Division for Youth for the purposes of this Part and in order to comply with section 88(1)(g) of the Public Officers Law.

Records shall be available for public inspection and copying in the following locations:

84 Holland Avenue

Albany, NY 12208

Adam Clayton Powell, Jr. State Office Building

163 West 125th Street

14th Floor

New York, NY 10027

Requests for public access to records shall be accepted and records shall be produced between the hours of 8:30 a.m. and 5 p.m. on all days when such locations are regularly open for business.

Payroll records may be inspected under the supervision of the aforesaid fiscal officer's office and only in the fiscal officer's office during regular working hours and regular working days or at such other place as may be convenient to the fiscal officer.

When the records access officer denies a request for a record in whole or in part, the denial:

Failure to respond to or to acknowledge a request within the time limitations set forth herein shall be deemed a denial of the request. When the records access officer has denied a request in whole or in part, the requestor may appeal such denial to the Director of the Division for Youth.

The appeal of a denial of access to records shall be in writing and shall include the following information:

The director or his designated representative shall forward to the Committee on Open Government a copy of the appeal immediately upon receipt. The Director of the Division for Youth or his designated representative will act upon the appeal within 10 business days of its receipt. The decision shall be in writing. Upon making a determination, a copy of the decision and the reasons set forth shall also be forwarded to the Committee on Open Government.

If any provision of this Subpart or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Subpart or the application thereof to other persons and circumstances.

This Subpart is adopted pursuant to the Personal Privacy Protection Law (Public Officers Law, article 6-A).

Director of Human Resources Management

New York State Division for Youth

84 Holland Avenue

Albany, NY 12208

The personal privacy protection officer is responsible for ensuring that the agency complies with the provisions of the Personal Privacy Protection Law and the regulations set out herein.

All requests for access to, or correction or amendment of records shall be in writing and shall describe the record with reasonable specificity. Requests shall be accepted during the regular business hours of the division (8:30 a.m.-5 p.m., Monday-Friday, excluding holidays) at the offices of the division at 84 Holland Avenue, Albany, NY 12208. All requests shall be referred to the personal privacy protection officer. No request shall be complete until verified as follows:

Within 15 business days of the receipt of an advisory opinion issued by the committee, the general counsel to the division shall respond in writing to the committee stating:

The personal privacy protection officer shall annually prepare a report for submission to the committee on or before September 1st which shall summarize for the preceding year the number of requests for access to, or correction or amendment of, records which were granted and denied in whole or in part.

The purpose of these rules is to ensure equitable treatment of persons employed in positions the principal duty of which is the teaching or instruction of patients or inmates, or the direct supervision of such teaching or instruction, and to provide uniformity in matters of attendance and leave for such persons, insofar as practicable and consistent with the efficient conduct of the division's business, who are employed on the basis of an annual school calendar year adopted by the division which shall be consistent with the school calendar year of public school teachers in New York State.

The basic workweek for annual salaried employees of State departments, agencies and institutions, other than those employed on a part-time basis only and other than employees excluded from the application of overtime compensation under the rules of the Director of the Budget adopted pursuant to section 134 of the Civil Service Law, shall be 40 hours; provided, however, that where a shorter workweek would not interfere with the proper performance of government functions an appointing authority may establish a basic workweek of not less than 37½ hours and five days for any employees under its appointive jurisdiction as may be designated by it with the approval of the Division of the Budget; provided, however, that this section shall not be construed to increase the workweek of any employee for whom a workweek of less than 40 hours was prescribed by law, rule or administrative regulation as of January 2, 1957.

All employees are required to maintain a daily record of absences and time and leave credits earned and used in accordance with these rules. A daily record of attendance shall be maintained during the period covered by the school calendar and for any periods during which an employee may receive compensation which is in addition to his regular salary.

Overtime shall not be earned for time worked in excess of the basic workweek during the 10-month period an employee is paid his regular salary. An employee who is required to work in his position or in any other position allocated to a salary grade in section 130 of the Civil Service Law for the two-month period during which his regular salary is not paid shall receive additional compensation for such service.

Except as provided by these rules and except as provided by the division's annual calendar for the school year, employees shall not be entitled to any leave of absence with pay during the school year; provided, however, that the division may grant time off with pay for religious observance, teacher conferences and other appropriate professional meetings, and for extraordinary or emergency absences. Employees may be required to make up such time off by appropriate adjustments in their daily or weekly work schedules.

The division may, in its discretion, grant sick leave at half pay for personal illness to a permanent employee having not less than a year of service after all of his sick leave credits have been used; provided, however, that the cumulative total of all sick leave at half pay granted to any employee after January 2, 1957 shall not exceed one pay period for each complete six months of his State service.

On proof of the necessity of jury service or appearance as a witness pursuant to subpoena or other order of a court or body, an employee shall be granted a leave of absence with pay with no charge against leave credits; provided, however, that this subdivision shall not apply to any absence by an employee occasioned by such an appearance if he is a party.

Employees shall be allowed leave with pay to take New York State Civil Service examinations at the appropriate center provided that due notice is given by the employee to the division.

If an employee who is not ill himself is required to remain absent because of quarantine and presents a written statement of the attending physician or local health officer proving the necessity of such absence, he shall be granted leave with pay for the period of his required absence, without charge against accumulated sick leave credits. Prior to return to duty, such employee may be required to submit a written statement from the local health officer having jurisdiction that his return to duty will not jeopardize the health of other employees.

The division shall grant any leave of absence, with pay, required by law.

Upon certification by the State Director of Civil Defense of the necessity for the participation in State or local civil defense drills of an employee enrolled as a civil defense volunteer and required to perform civil defense duties pursuant to the State Defense Emergency Act, the division may allow such employee to absent himself from his position, without loss of pay or charge against leave credits, for such time as is necessary for participation in such drills, but not exceeding cumulatively five workdays per calendar year.

Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (a) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months, immediately preceding the subsequent leave of absence.

These rules may be suspended in whole or in part, in an emergency, for the duration of same and to the extent made necessary by the nature of the emergency, on approval by the State Civil Service Commission of a written request by the division.

These rules may not be amended except on approval by the State Civil Service Commission of a written request by the division.

Section 501(5) of the Executive Law, and section 508 of the Not-for-Profit Corporation Law.

No less than 75 percent of the covered operating expenses of a covered provider paid for with State funds or State-authorized payments shall be program services expenses rather than administrative expenses. This percentage shall increase by five percent each year until it shall be no less than 85 percent in 2015 and for each year thereafter. In determining whether an expense is a program service expense or an administrative expense, a covered provider may allocate a portion of the expense to each type if such allocation is supported by the nature of the expense. Such allocation may include allocation of portions of an employee’s time and compensation to administrative or program services. Commencing on July 1, 2013, the limits on allowable administrative expenses pursuant to this Subpart shall be effective and applicable to each covered provider on the first day of each provider’s respective covered reporting period.

The restriction on allowable administrative expenses in subdivision (a) of this section and the reporting requirements in section 166-5.7 of this Subpart shall apply to subcontractors and agents of covered providers if and to the extent that such a subcontractor or agent has received State funds or State-authorized payments from the covered provider to provide program or administrative services during the reporting period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds or State-authorized payments from the covered provider rather than directly from a governmental agency. A covered provider shall incorporate into its agreement with such a subcontractor or agent the terms of these regulations by reference to require and facilitate compliance. Upon request, covered providers shall promptly report to the funding or authorizing agency the identity of such subcontractors and agents, along with any other information requested by that agency or by the office or its designee. A covered provider shall not be held responsible for a subcontractor’s or agent’s failure to comply with the requirements of this Subpart.

The office or its designee, rather than the county or local unit of government or an entity contracting on behalf of such government, shall be responsible for obtaining the necessary reporting from and compliance by such covered providers, and shall issue guidance to affected county and local governments to set forth the procedures by which the office or its designee shall do so.

If a covered provider receives State funds or State-authorized payments from multiple sources, the provider’s compliance with the restriction on allowable administrative expenses in subsection A shall be determined based upon the total amount of program services expenses and administrative expenses paid for by such funding received from all of such sources. As set forth in section 409.8 of Title 18, the covered provider shall report all of such State funds and State-authorized payments, and the expenses paid for by such funding, in the form and at the time specified by the office or its designee.

If the contract, grant, or other agreement is subject to more stringent limits on administrative expenses, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by these regulations. However, the definition and interpretation of terms in this Subpart shall not be affected or limited by the definition or interpretation of terms in other regulations or agreements.

Except if a covered provider has obtained a waiver pursuant to section 166-5.6 of this Subpart, a covered provider as defined in this Subpart shall not use State funds or State-authorized payments for executive compensation given directly or indirectly to a covered executive in an amount greater than $199,000 per annum, provided, however, that the office shall review this figure annually to determine whether adjustment is necessary based on appropriate factors and subject to the approval of the Director of the Division of the Budget. Commencing on July 1, 2013, the limits on executive compensation pursuant to this Subpart shall be effective and applicable to each covered provider on the first day of each covered provider’s respective covered reporting period. Violation of this subdivision shall subject the covered provider to the penalties set forth in section 166-5.8 of this Subpart. To determine whether a covered provider may be subject to penalties, such provider shall provide, upon request by the office or its designee, contemporaneous documentation in a form and level of detail sufficient to allow such determination to be made.

The limit on executive compensation pursuant to this section shall not be applied to limit reimbursement with State funds or State-authorized payments for reasonable compensation paid to a covered executive for program services, including but not limited to supervisory services performed to facilitate the covered provider’s program services, rendered by the executive outside of his or her managerial or policy-making duties. Documentation of such program services rendered shall be used by the covered provider to determine that percentage, if any, of the covered executive’s compensation that is attributable to program services and that compensation shall not be considered in the calculation of his or her executive compensation. Such documentation shall be maintained and provided to the office or its designee upon request. Clinical and program personnel in a hospital or other entity providing program services, including chairs of departments, heads of service, chief medical officers, directors of nursing, or similar types of personnel fulfilling administrative functions that are nevertheless directly attributable to and comprise program services shall not be considered covered executives for purposes of limiting the use of State funds or State-authorized payments to compensate them.

If a covered provider receives State funds or State-authorized payments from multiple sources, the provider’s compliance with the limit on executive compensation in subdivision (a) of this section shall be determined based upon the total amount of such funding received and the reimbursements received from all sources of State funds or State-authorized payments. As set forth in section 166-5.8 of this Subpart, the covered provider shall report all of such State funds and State-authorized payments in the form specified by the office or its designee.

The limit on executive compensation in subdivision (a) of this section and the reporting requirements in section 166-5.7 of this Subpart shall apply to subcontractors and agents of covered providers if and to the extent that such a subcontractor or agent has received State funds or State-authorized payments from the covered provider to provide program or administrative services during the reporting period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds or State-authorized payments from the covered provider rather than directly from a governmental agency. A covered provider shall incorporate into its agreement with such a subcontractor or agent the terms of these regulations by reference to require and facilitate compliance. Upon request, covered providers shall promptly report to the funding or authorizing agency the identity of such subcontractors and agents, along with any other information requested by that agency or by the office or its designee. A covered provider shall not be held responsible for a subcontractor’s or agent’s failure to comply with these regulations.

The office or its designee, rather than the county or local unit of government or an entity contracting on behalf of such government, shall be responsible for obtaining the necessary reporting from and compliance by such covered providers, and shall issue guidance to affected county and local governments to set forth the procedures by which the office or its designee shall do so.

If the contract, grant, or other agreement is subject to more stringent limits on executive compensation, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by these regulations. However, the definition and interpretation of terms in this Subpart shall not be affected or limited by the definition or interpretation of terms in other regulations or agreements.

Whenever it is determined that a covered provider may not be in compliance with the requirements of section 166-5.4 or 166-5.5 of this Subpart and has not obtained a waiver, the provider shall be notified in writing of the basis for that determination. Such notice shall provide the covered provider with an opportunity and a procedure to submit additional or clarifying information within 30 calendar days of the provider’s receipt of such notice to demonstrate compliance with this Subpart. Failure to submit additional or clarifying information within the required time period shall result in the determination of non-compliance becoming final.

If the determination of non-compliance becomes final as set forth in subdivision (a) of this section or if the office or its designee determines, after reviewing and considering any information submitted by the covered provider, that such provider is not in compliance with the requirements of section 166-5.4 or 166-5.5 of this Subpart, the provider shall receive notice of such determination and a notice to cure. Such notice shall allow the covered provider a period of not less than six months to correct the violation(s) identified (the corrective action period) prior to additional enforcement action or penalties being imposed, and shall require that the covered provider submit within 30 calendar days a corrective action plan (CAP) for approval by the office or its designee.

Within 30 calendar days of receipt of the covered provider’s CAP, the office or its designee shall either approve such CAP or request clarification or alterations. The covered provider shall make such alterations to the CAP as may be reasonably required by the office or its designee. Once the CAP has been approved and the covered provider notified, and unless otherwise provided in the approved CAP, the covered provider shall have six months to complete the CAP and comply with this Subpart.

At the conclusion of the period for implementation of an approved CAP, the office or its designee may request information from the covered provider to determine whether the CAP has been fully and properly completed. If it has been so completed, the matter shall be considered closed and no further action on the part of the office or the provider shall be required. If the office or its designee determines that the CAP has not been fully and properly implemented within the designated corrective action period, the office or its designee shall provide written notice to the provider and may take one or more of the following actions, taking into account the seriousness of the violations, the nature of the provider’s services, and the provider’s efforts to correct the violations, if any:

Within 30 calendar days of receipt of a final determination of noncompliance and notice of proposed sanctions, a covered provider may request an administrative appeal by submitting a written request to the name and address set forth in the notice. The request must include a detailed explanation of the legal and factual bases for the provider’s challenge to the determination and all documentation in support of the provider’s position. If a request for an administrative appeal is not made within the required 30 calendar days, the determination of noncompliance shall become final and the proposed sanction shall be imposed. Unless the office seeks to impose a sanction for which an administrative hearing is otherwise required by statute or regulation, covered the provider’s appeal shall be limited to an administrative review of the record. Following the review, the covered provider shall be provided with a final written determination setting forth the findings of fact and conclusions of law that support the determination. If the provider is found to be non-compliant, the proposed sanction may be imposed forthwith.