Relates to the authority of the justice center to visit, inspect and appraise the management of out-of-state schools or facilities

Section 2 of the bill would make it effective immediately.

Existing law

Under Executive Law § 553(7)(a), the Justice Center has the authority to visit, inspect and appraise the management of the facilities and provider agencies defined in Social Services Law § 488(4). This includes certain facilities and provider agencies operated, licensed or certified by the Office of Mental Health, the Office for People with Developmental Disabilities, the Office of Alcoholism and Substance Abuse Services, the Office of Children and Family Services, the Department of Health and the State Education Department. Social Services Law § 491 requires mandated reporters to report alleged abuse or neglect of vulnerable persons served by these facilities and provider agencies to the Justice Center.

Allegations of abuse or neglect against New York residents who are served by residential schools or facilities located outside of New York State also are reportable to the Justice Center, and to the applicable state oversight agency, local social services district and/or local educational district, pursuant to Social Services Law § 490(5). However, these schools and facilities are not included within the definition of facilities or provider agencies in Social Services Law § 488(4). Nonetheless, under Social Services Law § 490(5)(b), when the Justice Center receives a report of alleged abuse or neglect of a resident being served by an out-of-state school or facility, the Justice Center is authorized to investigate that allegation, or it may delegate that responsibility to another agency or entity.

Prior legislative history

This is a new bill.

Statement in support

Although Social Services Law § 490(5) expressly authorizes the Justice Center to investigate a report that a New York resident receiving services from a school or facility located outside of New York State was an alleged victim of abuse or neglect, there is no explicit statutory authority for the Justice Center to monitor the management of these out-of-state schools or programs in the absence of an allegation of abuse or neglect. As a result, questions have been raised about whether the Justice Center may visit such a school or facility to determine, for example, whether the school or facility is complying with its obligation to report abuse or neglect.

In order to address this lack of clear authority, the Justice Center has relied on authority delegated to it from state oversight agencies, either through a general agreement or a specific Memorandum of Understanding, in order to conduct monitoring visits to out-of-state schools and facilities. This has allowed the Justice Center to visit some out-of-state programs and to engage in monitoring activities at those programs.

The State Education Department (SED) has, however, raised a concern about its authority to delegate to the Justice Center the ability to access certain types of information that are protected by the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99), a Federal law that protects the privacy of student education records. FERPA authorizes SED to access such records for audit and evaluation purposes, and while SED is comfortable delegating this monitoring authority to the Justice Center, it is concerned about the propriety of delegating its right to access to these records when the Justice Center does not have the explicit statutory authority to conduct monitoring visits. This bill would address SED's concern by clarifying that the Justice Center has the ability to "visit, inspect and appraise" the management of out-of-state residential schools and facilities, and would permit the Justice Center, on SED's behalf and at its request, to conduct a comprehensive audit and evaluation of these out-of-state schools and programs, even in the absence of a report that a New York State resident has been the victim of alleged abuse or neglect.

Budget implications

This bill would be implemented within existing resources.

Local impact

None known.

Effective date

This bill would take effect immediately.