Nearly fifty New York state lawmakers have signed a letter describing “significant legal, policy, and fiscal concerns” with a new court rule increasing oversight of group homes for foster children, concerns echoed by the state’s largest local child welfare agency.
The rule taking effect today was issued in response to tighter restrictions from the federal government on funding for congregate care and requires a more intensive review process before a foster child can be housed in an institution or facility. New York courts are now requiring additional court hearings, and specific clinical recommendations stating how a child’s needs are best served outside of a family home.
Responding to a mounting number of critics, a spokesperson for the Office of Court Administration stated Tuesday that it “fully stands by” the new rule, describing it as necessary to uphold the rights of vulnerable children.
“Constitutional due process and liberty interests of children and their parents must be protected, which is what the rule does by providing that all parties and the courts receive needed complete and timely information,” wrote spokesman Lucian Chalfen.
But the detailed requirements to place a child in group care have prompted considerable pushback. Although they did not list specific objections, in a Monday letter addressed to the state’s chief administrative judge, the legislators described the new rule as “inconsistent with and contrary to” recently passed state law and urged the Office of Court Administration to revise it.
Kathleen Brady-Stepien, the president and CEO of Council of Family and Child Caring Agencies, a statewide trade group for congregate care providers, detailed more specific objections in a letter to the state court earlier this month. She said requiring a formal court hearing any time a child is placed in a Qualified Residential Treatment Program (QRTP) could overburden the courts and delay needed care. She also said the new rule asks too much of clinicians working with foster children — for example, it requires that they not only recommend that a child be placed in a facility, but state specifically which one.
On Wednesday, New York City’s Administration for Children’s Services stated similar concerns.
“We are disappointed that the court rule created procedures and requirements that were not in the state statute, will not benefit children and families, and could create additional court backlogs,” a spokesperson for the agency wrote to The Imprint. “On behalf of New York children in foster care, it is our hope that these concerns are resolved in a timely fashion.”
Last week, Chief Administrative Judge Lawrence Marks forcefully defended the new rule, stating in a letter to Brady-Stepien that “the court rule is in complete harmony with the federal and state statutes on which it is based,” and is “absolutely essential” in order to receive federal reimbursement for foster children placed in congregate care.
Marks stated that formal court hearings required when foster children are placed in group care can be waived if all parties agree, as long as it is explained to older youth that they have a right to a hearing.
Legal advocates for foster children have also praised the stricter oversight process, which was prompted by the federal Family First Prevention Services Act, known as Family First. Every state is adjusting local practice to accommodate the law’s stricter demands.
“These court rules will help realize the promise of Family First by requiring that the courts and the children and families they serve are provided with the information needed to hold agencies to the high standard of care necessary to keep children safe and enable them to thrive,” Karen Freedman, executive director of New York City-based Lawyers for Children, wrote in a statement.
Assemblymember Andrew Hevesi (D), who chairs the Assembly Committee on Children and Families, has led elected officials critiquing the rule. State Sen. Jabari Brisport (D), who heads a similar committee in the Senate, did not sign the letter and did not respond to follow-up inquiries by The Imprint. The Office of Children and Family Services declined to comment.
The dispute has intensified just days before New York must comply with the requirements of Family First, which as of Friday will restrict the use of federal funding to pay for congregate care placements to just two weeks, unless a judge approves placement in a QRTP. The federal law also includes exceptions for qualified centers housing foster youth who are over 18, pregnant or parenting, or at risk of sex trafficking.
Federal funds for such placements can be used only with a clinician’s written recommendation and a judge’s approval. Within 30 days of a child’s placement in a congregate setting, a clinician must submit a written report to the court stating why a child can’t be served in a foster home or with relatives, and provide reasons why a facility is required to meet the child’s needs.
A judge must also rule within 60 days on whether the child’s needs are best met in the facility, and whether it is the “least restrictive” environment.
Last month, in a surprise to foster care providers, the New York court administration took steps that observers saw as going above and beyond the federal law, leading to this week’s pushback.
The court’s new rule requires clinicians to recommend a facility and describe its specific form of treatment. They must also describe short-term and long-term goals for the child, and how they will be met, as well as provide the court with a summary of diagnostic and treatment records. The detailed reports must include a plan to discharge a child from the treatment facility, with additional information from caseworkers, mental health professionals and family members.
Legal advocates for foster youth across the state have praised the stepped-up oversight, saying they anticipate it will lead to fewer children being sent to live in institutions simply because a family home — the most desirable outcome for the vast majority of children — isn’t readily available.
But group care providers disagree, pointing to costly new administrative burdens for their agencies and clinical staff and new hurdles to securing timely placements for children.
In her Sept. 6 letter to Judge Marks, Brady-Stepien said clinicians cannot be expected to recommend specific facilities for a child, given that they may not know about capacity issues, or whether there are other foster youth placed there who could pose a threat.
Judge Marks stated in response that judges need detailed and specific information in order to make sure their rulings are in the best interests of the children and best suit their needs in foster care. Judges reviewing recommendations, he emphasized, must have enough information so they can state their reasons for approving or rejecting a recommendation for congregate care.
His letter referenced standards set by the American Bar Association, the Children’s Defense Fund, and the FosterClub advocacy group.
“Neither the parties nor the Family Court can be expected to simply rubber-stamp a request for a QRTP placement,” Marks wrote, “if the only specificity in the request is a ‘non-secure level of care.’”
Michael Fitzgerald contributed to this report.