Child welfare experts have long known how critical it is for kids to be raised in a family home. Children raised in institutions and group facilities struggle to be seen and heard, and face more difficulty later in life.
But in the past, there was little in federal law compelling local governments to scale back their reliance on group homes and residential treatment centers for foster children — settings that all too often have become placements of convenience.
Beginning next month, there will be new incentives in New York state: The federal government will chip in far less funding for “congregate care” placements, and the courts will require far greater justification for why a child cannot be placed with a family.
“It’s the right policy to create a more home-like environment for children,” said Judith Gerber, chief attorney of the unit representing children at the Legal Aid Bureau of Buffalo. “It provides a more typical life for a child than a congregate care setting can, and more emotional sustenance.”
Decades of adolescent brain research and a growing awareness in the child welfare field preceded the 2018 Family First Prevention Services Act, which will take effect in New York on Oct. 1. The law, which also opens up new federal funds to help states prevent the use of foster care altogether, is considered the most sweeping federal change to child welfare systems in decades.
Under its provisions, states can receive only two weeks of federal funding for most congregate care placements, with some exceptions, including group housing for pregnant or parenting teens and for survivors of human trafficking. Longer-term funding will also continue for children requiring clinical care, providing they are placed in a qualified residential treatment facility, and a judge approves.
Twelve states and Washington, D.C. have already implemented the federal law’s strict new standards to receive funding for group care. But most, like New York, are making the changes this fall and in some cases adding additional provisions.
Under the law known as Family First, within 30 days of a child being placed in a treatment facility, a licensed clinician must write a detailed review of the child’s case, with a recommendation for the placement that will best meet their needs in the least-restrictive setting possible. Within 60 days, that report must be affirmed or rejected by a judge.
Federal law does not specify how that judicial review should take place, however. And New York law, updated earlier this year, expressly allowed judges to sign off on the paperwork without a formal hearing.
Then last month, in a surprise to many providers within the foster care system, New York’s Office of Court Administration released a new rule that goes above and beyond the oversight called for under federal law. Under its provisions, county foster care agencies must petition the court for a hearing “prior to or no later than five days after” they’ve placed a child in residential treatment.
Within 30 days, a clinician must submit a written report to the court stating “why the needs of the child cannot be appropriately and effectively met in a kinship or non-kinship foster home placement.” The reports must also describe the child’s “strengths and needs,” and provide reasons why a facility is required to meet those needs.
Additional information must include: A description of the facility and its specific form of treatment services offered; short-term and long-term goals for the child and how they will be met; as well as any mental health needs and a summary of diagnostic and treatment records.
The detailed reports must also include a plan to discharge a child from the facility, and offer contributions from caseworkers, mental health professionals and family members, including adults suggested by children who are at least 14 years old.
New York’s new rule requires that these reports don’t just cross a judge’s desk, but that they be presented at a court hearing, with lawyers for the child, parent, county worker and other parties present. Judges will have two months to consider whether the child’s needs are best met in an institutional setting, and whether the placement is the “least restrictive” environment.
Gerber and other legal advocates for foster children say they welcome the stronger judicial oversight, and hope it will help lead to far fewer children unnecessarily housed in group settings simply because the system can find nowhere else to put them. Currently, they say, courts often defer to the wishes of county social service agencies, who up to this point have had few real checks on their authority to place children in group care.
That has left some children “in mediocre to almost substandard settings,” Gerber said.
But with just weeks to go before the stepped-up court reviews will be required, heads of agencies that provide group care to foster youth say the new rule oversteps the court’s powers, and could interfere with a smooth transition to the new standards for congregate care placements.
“The new rule is confusing to everyone involved in implementing this, and to making sure federal law is implemented as seamlessly as possible,” said Kathleen Brady-Stepien, president and CEO of the Council of Family and Child Caring Agencies, a trade group representing residential care providers across the state. Brady-Stepien said because the new rule came through court administrators, it was not sufficiently weighed by elected officials and the public.
A spokesperson for the Office of Court Administration said its administrative board had approved the rule for immediate release because it is “essential for the Court to be able to comply with the strict timeframes of the federal law.”
Janet Fink, deputy counsel of New York State Unified Court System wrote last month of the “harsh consequence of non-compliance” — the loss of significant federal reimbursement for child welfare services.
Still, some foster care providers questioned why the courts had waited until just weeks before the law takes effect to release the new protocol, given that the state has been preparing to adopt the new measures since they were signed into law in February 2018.
“This rule came out of nowhere, so frankly we’re totally shocked,” agreed Bill Gettman, CEO of Northern Rivers, which served over 800 youth in foster and residential care across upstate in 2020. “No one’s opposed to doing this work, but it feels like we’re over-engineering it prematurely, before the law even takes effect.”
In a four-page letter to the court administration sent Sep. 1, Gettman asks for numerous clarifications and amendments to the rule. The hearings that will soon be required, he said, could further “clog” Family Court calendars already backlogged from pandemic-related shutdowns and the sometimes-rocky transition to virtual hearings.
Gettman also said that requiring clinicians to attend court hearings could deter them from being willing to write reviews of a child’s placement. His agency is still working to identify six to eight such clinicians willing to take on the additional task of conducting individual case reviews — in addition to their regular full-time work caring for foster youth.
About 44,000 foster youth lived in congregate care in 2019, the most recent year for which federal data is available. States’ use of this option ranges widely, from as low as 4% of all children in foster care in some states, to as high as 26%.
In New York, 27 agencies have been approved as Qualified Residential Treatment Programs, and an additional 120 agencies are considering applying for the designation, according to the Office of Children and Family Services.
While time-limited residential treatment facilities can be beneficial for some children with a high level of need who require specific treatment, countless studies have found far too many children simply being warehoused, even when staff are abusive and the children’s conditions are worsening. In 2015, the Department of Health and Human Services reported that more than 40% of children in institutions do not have a clinical reason to be there.
“Researchers have documented how institutions often fracture family relationships, rely on shift staff with often inadequate training and high turnover rates, expose youths to negative peer experiences, engage in restrictive placement policies, and mismatch placement decisions based on level of care needed,” the national foster youth advocacy group Think of Us reported in July.
With relatives or in family foster homes, children typically receive more individual attention, greater nurturing and a more normal daily routine. In contrast, life in group homes requires children to bond with rotating shifts of low-paid workers, follow extensive sets of rules, and eat in cafeterias or in groups rather than around a supper table. Children are often quick to take the placement personally — feeling that, unlike other kids, they do not deserve a family.
While some foster youth report positive bonds with staff in congregate care facilities, other workers have been accused of serious neglect or abuse of the children in their care. In May 2020, 16-year-old Cornelius Fredericks died by asphyxiation after he was pinned face down by several workers at a Michigan group home run by the for-profit company Sequel — the subject of a recent Imprint investigation. Cornelius’ death spurred Michigan, New York and several other states to restrict the use of physical restraints on youth, and a national movement to end for-profit foster care.
In the recent survey conducted by Think of Us, foster youth reported a wide range of serious complaints about group homes, ranging from overmedication and racial discrimination to inedible food and poor access to education.
“You are almost seen as someone not deemed to function out in society,” an unidentified youth told surveyors. “This is very problematic because many youth age out of these facilities. How can someone be successful outside after being institutionalized for so long?”
Another foster youth described the lasting trauma of being sent to an institution:
“Every year I still get a little weird around the time they sent me away. That memory is fresh as day. It never gets fuzzy. I’m never going to forget it.”