ORDERS:
REPORT ON NEED AND REASONABLENESS OF PROPOSED REGULATION
I. Introduction
In accordance with its responsibilities, the Department of Social Services (DSS) is authorized to
promulgate regulations needed to carry out its responsibilities and duties. S.C. Code Ann. § 43-1-80 (Supp.
2000). Within that scope of duties, DSS seeks to amend current Regulation 114-590 addressing the care of
children in group care facilities.
As a result of notice to the public, DSS received a level of comment requiring a public hearing to determine
the need and reasonableness of the changes to the existing regulations. S.C. Code Ann. § 1-23-111 (Supp.
2000). The public hearing was held on March 7, 2002 and March 22, 2002, with testimony and documentation
provided both by DSS, as well as by interested individuals. In particular, interest in the amendments was
expressed by the South Carolina Children's Coalition and the South Carolina Association of Children's
Homes and Family Services (Association). While oral comments were closed on March 22, 2002, the record
remained open until March 29, 2002 for written comments. During the extension period, DSS and the
Association provided written comments by the March 29, 2002 deadline.
II. Need For Proposed Regulations
S.C. Code Ann. § 1-23-111 (Supp. 2000) requires a determination of the need for the regulation under review. The word
"need" is a flexible term whose meaning varies according to the context in which it is used. 65 C.J.S. Need (1966). The
scope of meanings of the word "need" ranges from the stringent standard of a condition "requiring supply or relief" to the
less demanding standard of there being a lack of something useful where the thing lacking is reasonably essential as
opposed to merely desirable. Id.
Here, the proposed regulation satisfies the need requirement. First, the regulation being amended was issued in 1976.
Given a regulation approaching thirty years in existence, DSS explained that the language needed amending to reflect group
home practices pertinent to the twenty-first century. Hence, that which is lacking in the current regulation is modernization.
Curing that deficiency is reasonably essential to the proper operation of group children's homes. Thus, the age of the
current regulation combined with the professed changes in group home practices is a sufficient basis for establishing a need
for the change. Second, and supportive of the first conclusion, no party at the hearing disagreed with DSS's view on the
need to amend the regulations. In fact, general support for the need to amend the regulation was expressed. Accordingly, a
need exists to amend the current regulation.
III. Reasonableness Of Proposed Regulations
A. Introduction
In addition to a need existing for amending the regulation, the amendments to the regulation must also be reasonable. §
1-23-111 (Supp. 2000). Just as with the word "need," the word "reasonable" is "a relative, generic term difficult of
adequate definition." 75 C.J.S. Reasonable 634 (1952). For purposes of reviewing a proposed regulation, "reasonable" is
best defined as that which is agreeable to reason under the facts and circumstances of the matter under review. See Id.; 36
Words and Phrases 405 (1962). In this case, while DSS has presented numerous amendments to the existing regulation,
only one area remains in dispute: the reasonableness of the heightened staffing requirements for emergency shelters when
considered in light of the potential loss of funding.
B. Reasonableness and Funding
Under the proposed regulation at 114-590(C)(2)(h)(iii) and (iv) relating to emergency shelters, the following staffing
requirements are imposed:
(iii) Emergency shelters shall maintain a minimum staffing ratio of one staff for every eight (8) children during the day and
one (1) staff for every sixteen (16) children at night.
(iv) Emergency shelters shall have at least one awake staff at night.
DSS asserts that the new proposed staffing requirements are the minimum required for the safety and security of all
children at emergency shelters.
The Association does not significantly disagree with DSS's conclusion as to the staffing needs at an emergency shelter.
Indeed, DSS and the Association admit that current contracts between DSS and an emergency shelter typically meet the
new heightened staffing requirements. Instead of a dispute over safety or whether the staffing imposed is adequate, the
Association's concern is the impact the changes to the regulation will have upon funding needed to meet the staffing
imposed.
For example, the Association asserts that through a contract with DSS a provider of emergency shelter services receives
between $60 and $80 per diem when the provider furnishes the staffing levels being proposed in the proposed regulation.
However, in the absence of such a contract, the provider would receive only $10 to $14 per diem. The Association is
concerned that if the regulation imposes an absolute staffing level (which level will equal the one heretofore contracted for)
all the contracts could become unnecessary and thereby eliminate the higher funding previously received by the provider of
the higher level of staffing. If such were to happen, a typical emergency shelter services provider would lose funding of at
least $100,000.
In short, the Association does not believe the staffing requirement itself is unreasonable. Rather, the Association argues the
staffing requirement becomes unreasonable if implementing the changes to the regulation will result in the loss of funding
for contracted-for emergency shelter services. After reviewing the information and evidence provided, I conclude that,
unless modified, the existing regulation leads to an unreasonable result for contracted-for emergency shelter services.
Many of the organizations rendering the contracted-for services are charitable organizations for whom the loss of funding
would be a significant factor. Indeed, a 1996 study suggests that these organization have contributed over $20 million to the
group care of children in the foster care system. To enact a regulation that causes a loss of funding to such a significant
contributor will have the unintended result of diminishing the ability of these organizations to continue their same level of
support. Moreover, in the absence of a clear intention that the regulation is designed to reduce such funding, it is
unreasonable to impose a heightened staffing requirement (which staffing is already the norm for the typical shelter
contract) if that requirement will reduce the long standing and well understood per diem rate applicable to contracted-for
services. Indeed, such a reduction is especially inappropriate in light of DSS's explanation that it "anticipates that contracts
will continue in the future as they have in the past."
Thus, DSS's clear intent in promulgating the amended regulation is not to seek a reduction in the per diem funding for
contracted-for services of emergency shelters. Therefore, the regulation is unreasonable if it imposes a staffing requirement
that will reduce the current per diem rate applicable to contracted-for services. Accordingly, a modification is needed to the
proposed regulation to satisfy the reasonableness requirement as to emergency shelters.
IV. Recommendation
Given DSS's intent not to disturb existing contract funding and given the likelihood that the existing proposed amendments
will have the effect of reducing or eliminating funding, the regulation can be made reasonable by modifying the proposed
regulation. Accordingly, the following modifications to 114-590(C)(2)(h)(iii) and (iv) are warranted:
(iii) Emergency shelters that have contracted with the S.C. Department of Social Services for a heightened level of care
shall maintain a minimum staffing ratio of one staff for every eight (8) children during the day and one (1) staff for
every sixteen (16) children at night.
(iv) Emergency shelters that have contracted with the S.C. Department of Social Services for a heightened level of care
shall have at least one awake staff at night.
Under the modifications, existing emergency shelters that previously contracted with DSS will continue to do so in the
future and will do so under the specific heightened staffing requirements set by the regulation. Thus, a minimum and
uniform staffing level is established for the heightened level of care required under the contract. However, for such
contracts, no dispute will exist on how the heightened level of care will be funded. Rather, the same contract mechanism
that has been used in the past will continue to be used in the future. Given these modifications, the amendments to 114-590
will be both needed and reasonable.
AND IT IS SO FOUND AND RECOMMENDED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 4, 2002
Columbia, South Carolina |
