New York Register, Volume 37, Issue 12, March 25, 2015

• Jurisdiction: New York
• Library: New York Register
• Published date: 25 March 2015
• Year: 2015

RULE MAKING

ACTIVITIES

Each rule making is identified by an I.D. No., which consists

of 13 characters. For example, the I.D. No.

AAM-01-96-00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency

01 -the State Register issue number

96 -the year

00001 -the Department of State number, assigned upon

receipt of notice.

E -Emergency Rule Making—permanent action

not intended (This character could also be: A

for Adoption; P for Proposed Rule Making; RP

for Revised Rule Making; EP for a combined

Emergency and Proposed Rule Making; EA for

an Emergency Rule Making that is permanent

and does not expire 90 days after filing.)

Italics contained in text denote new material. Brackets

indicate material to be deleted.

Office of Children and Family

Services

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

Implementation of Legislation for Destitute Children

I.D. No. CFS-12-15-00010-P

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action: Amendment of sections 420.1, 421.1, 422.1, 427.2,

428.2, 430.10, 430.11, 431.17, 431.18, 436.1, 436.5, 441.2, 441.22, 443.1,

443.7 and 628.3 of Title 18 NYCRR.

Statutory authority: Social Services Law, sections 20(3)(d) and 34(3)(f);

L. 2012, ch. 3

Subject: Implementation of legislation for destitute children.

Purpose: To implement legislation for destitute children, re-entry into

foster care and to make other technical amendments.

Substance of proposed rule (Full text is posted at the following State

website:http://ocfs.ny.gov ): The proposed regulations would amend 18

NYCRR 420.1(a) to add juvenile delinquents, Persons in Need of Supervi-

sion (PINS) and destitute children to the definition of legally freed chil-

dren where all parents who would be entitled to notice of the child’s adop-

tion are deceased in regard to the standards relating to the photo listing of

children freed for adoption.

The proposed regulations would amend 18 NYCRR 421.1(i) to add ju-

venile delinquents, PINS and destitute children to the definition of a

legally free child where all parents who would be entitled to notice of the

child’s adoption are deceased relating to the standards for adoption

services.

The proposed regulations would amend 18 NYCRR 422.1(a) to add

destitute children and children who re-enter foster care to the definition of

a parent relating to the standards for parental support of children in foster

care.

The proposed regulations would amend 18 NYCRR 427.2(b) to add

destitute children and children who re-enter foster care to the definition of

a foster child relating to the standards of payment for foster care of

children.

The proposed regulations would amend 18 NYCRR 428.2(a) to add

destitute children and children who re-enter foster care to the definition of

case initiation date or day 1 relating to the standards for uniform case re-

cords and family and child assessments and service plans.

The proposed regulations would amend 18 NYCRR 430.10(d) to add

destitute children and children who re-enter foster care to court ordered

placements relating to the standards for the necessity of foster care

placements.

The proposed regulations would amend 18 NYCRR 430.11(c) to add

destitute children and children who re-enter foster care to the standards for

continuity of the environment of a child entering foster care where the

child is an Indian child.

The proposed regulations would amend 18 NYCRR 431.17 to add

destitute children and children who re-enter foster care, add a reference to

a surrender of a child in foster care in accordance with section 383-c of the

Social Services Law and update the name of a state agency in regard to the

standards for the care and custody of foster children placed in facilities

operated or supervised by the Office of Mental Health or the Office for

People With Developmental Disabilities.

The proposed regulations would amend 18 NYCRR 431.18(c)-(e) to

add references to PINS and destitute children to the categories of child

custody proceedings for which an Indian child’s parent or Indian custodian

and the Indian child’s tribe must receive notice of the proceeding. The

proposed regulations would require that active efforts be made to alleviate

the need for removal of the Indian child from his or her home and would

apply such requirement to destitute children and children who re-enter

foster care. In addition, the proposed regulations would add PINS, destitute

children and children who re-enter foster care to the cases were the social

services official must inquire whether a child is an Indian child. Such

proposed amendments reflect standards set forth in the federal Indian

Child Welfare Act (25 U.S.C. §§ 1901 et seq.).

The proposed regulations would amend 18 NYCRR 436.1(b) to add

destitute children to the definition of a child in regard to the kinship

guardianship assistance program.

The proposed regulations would amend 18 NYCRR 436.5(c) to address

when the income of a prospective kinship guardian would be disregarded

for the purpose of calculating the payment rate the prospective kinship

guardian would be eligible for to conform with standards in place for adop-

tion subsidy.

The proposed regulations would amend 18 NYCRR 441.2(b) to add

destitute children and children who re-enter foster care to the definition of

a child for the purpose of regulatory standards dealing with children in

residential care.

The proposed regulations would amend 18 NYCRR 441.22(e) and (f)

to add references to destitute children in regard to the standards for health

and medical services for foster children.

The proposed regulations would amend 18 NYCRR 443.1(e) and (f) to

add destitute children, children who re-enter foster care and children who

enter foster care by a surrender pursuant to section 383-c of the Social Ser-

vices Law to the definition of foster family home care and approved home

in the standards for the certification or approval of foster homes.

The proposed regulations would amend 18 NYCRR 443.7(a) to add the

care of destitute children and children who re-enter foster care to those cir-

cumstances in which a foster home may be approved or certified on an

emergency basis.

The proposed regulations would amend 18 NYCRR 628.3(a) and (c) to

add a clarifying reference to section 1092 of the Family Court Act for

1

destitute children in the standards relating to claiming for children in fos-

ter care.

Text of proposed rule and any required statements and analyses may be

obtained from: Public Information Office, Office of Children and Family

Services, 52 Washington Street, Rensselaer, New York 12144-2796, (518)

473-7793

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: 45 days after publication of this

notice.

Regulatory Impact Statement

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Office

of Children and Family Services (OCFS) to establish rules and regulations

to carry out its powers and duties pursuant to the provisions of the SSL.

Section 34(3)(f) of the SSL requires the Commissioner of OCFS to es-

tablish regulations for the administration of public assistance and care

within the State.

Section 398(1) of the SSL requires the local commissioners of social

services to assume charge of and provide support to destitute children who

cannot be properly cared for in their home.

Section 398(6)(a) of the SSL requires the local commissioners of social

services to determine what assistance and care, supervision or treatment

foster children require.

2. Legislative objectives:

The proposed regulations would implement statutory changes in rela-

tion to the definition of destitute children in the Family Court. Chapter

605 of the Laws of 2011 amended the definition of destitute child and cre-

ated procedures for the entry of destitute children into foster care. Chapter

607 of the Laws of 2011 amended the SSL to add destitute children to the

categories of children who may be eligible for the kinship guardianship

assistance program. Chapter 3 of the Laws of 2012 further amended

Chapter 605 of the Laws of 2011. All of the above referenced chapter laws

go into effect once New York’s amendment of its federal Title IV-E State

Plan has been approved by the federal Department of Health and Human

Services (DHHS). On September 18, 2012, DHHS approved New York

State’s amendment to its Title IV-E State Plan adding destitute children to

the category of foster children eligible for Title IV-E reimbursement.

The revised definition of destitute children would provide that a

destitute child is a child under the age of 18 who is in a state of want or

suffering due to the lack of sufficient food, clothing, shelter or medical

care and does not fit the definition of an abused or neglected child and is

without any parent or caretaker available to sufficiently care for the child.

Examples of destitute children include, but are not limited to, orphans,

unaccompanied children, children whose parent, guardian or custodian’s

whereabouts are unknown, and children whose parent or only known or

available parent, guardian or custodian suffers from dementia, or is in a

coma. Children who meet the definition of a destitute child in statute can

enter foster care pursuant to Article 10-C of the Family Court Act (FCA).

The new destitute chapter laws mimic some of the procedures and treat-

ment of children who enter foster care pursuant to Article 10 of the FCA

as an abused and/or neglected child. The proposed regulations add

destitute children to certain areas of the regulations that address Article 10

foster children, when appropriate.

In addition, the proposed regulations would add children who re-enter

foster care pursuant to Article 10-B of the FCA to some of the regulatory

amendments being proposed for destitute children, where appropriate.

Chapter 342 of the Laws of 2010 permits youth who are former foster care

youth between the ages of 18 and 21 to re-enter foster care under certain

circumstances. This law went into effect November 11, 2010.

The proposed regulations would amend regulatory standards that imple-

ment the federal Indian Child Welfare Act (ICWA). The proposed regula-

tions would clarify that notification requirements of ICWA apply to

persons in need of supervision (PINS) and destitute child proceedings and

that social services officials must routinely inquire whether the child is an

Indian child in such proceedings and notify the court if the child is an

Indian child. The proposed regulations also clarify that in any child

custody proceeding, the social services official must demonstrate that ac-

tive efforts were made to alleviate the need for removal, as required by

ICWA.

3. Needs and benefits:

The proposed regulations would implement Chapters 605 and 607 of

the Laws of 2011, and Chapter 3 of the Laws of 2012 by making conform-

ing changes to regulation. Historically, local social services districts have

been required to provide services and/or assume charge of destitute chil-

dren; however, prior to the new chapter laws listed above, there was no

specific mechanism in law through which local districts could obtain a

court order placing a destitute child in their care and custody into foster

care. In cases where the court placed a child who satisfied the definition of

a destitute child into foster care, prior law did not set forth a process for

periodic court review of the placement. As a result, local social services

districts often faced difficulties in providing care and services to destitute

children. In addition, local social services districts were unable to obtain

federal Title IV-E reimbursement for the care provided to destitute chil-

dren due to the lack of court involvement. The statutory changes as a result

of the chapter laws named above address these issues and provide clear

procedures for local social services to obtain custody of, provide services

to, and receive federal reimbursement for destitute children in their care.

The proposed regulations add the destitute child category to multiple

areas of regulation that address care, services, and support to children in

foster care under the FCA and the SSL.

In addition, the proposed regulations address the need to add children

who re-enter foster care pursuant to Article 10-B of the FCA to certain

regulations to clarify that those children are also included. These children

were defined under Chapter 342 of the Laws of 2010, and an administra-

tive directive was issued by OCFS on March 3, 2011 informing local

districts and voluntary authorized agencies of the procedures to follow.

The proposed regulations would amend the kinship guardianship assis-

tance program regulations to provide that the income of an applicant is

excluded where the applicant is 62 years of age or older or is within 5

years of mandatory retirement to bring the standard in line with the exist-

ing rule for adoption subsidy, which is a requirement of the statute govern-

ing this program.

The proposed regulations would also amend the definition of a legally

freed child for photo-listing and adoption services purposes to include fos-

ter children who are placed into care in accordance with Article 3 or 7 of

the FCA and whose parents are deceased. Finally, the proposed regula-

tions would make a technical change to add a reference to section 383-c of

the SSL when referring to a child whose guardianship and custody has

been surrendered.

4. Costs:

It is estimated that fewer than 100 children statewide would be impacted

by the proposed regulations. This population is already served by social

services districts and it is estimated that approximately 25% of them would

become Title IV-E eligible as a result of this change to statute and

regulations. Based on data provided by the New York City Administration

for Children’s Services, of the 35 children currently served, 20 do not

meet the citizenship requirements for Title IV-E. At an estimated average

annual cost of $44,000 per foster child, approximately $550,000 of new

Title IV-E reimbursement would be generated for every 100 children who

meet the definition of a destitute child, which would be a cost savings to

social services districts. The cost of care for a Title IV-E eligible foster

child is subject to 50% federal reimbursement.

5. Local government mandates:

The proposed regulations would expand the category of legally freed

children who must be photo-listed to include an additional, but very nar-

row category of PINS and juvenile delinquent youth whose parents are

deceased. The amendments to the ICWA reflect current practice and

federal law. Regarding destitute children, social services districts have had

to deal with the services and care needs of the children who meet the defi-

nition of a destitute child under the new legislation. The proposed regula-

tions reflect the new legislation that provides social services districts with

the mechanisms to address those needs.

6. Paperwork:

The proposed regulations would not create additional paperwork

requirements other than to add destitute children to the regulations that ad-

dress uniform case record documentation in foster care cases.

7. Duplication:

The proposed regulations do not duplicate other state or federal

requirements.

8. Alternatives:

No alternative approaches to implementing the new destitute child laws

were considered. These amendments to regulations are proposed to sup-

port the statutory changes as a result of Chapter 342 of the Laws of 2010,

Chapters 605 and 607 of the Laws of 2011, and Chapter 3 of the Laws of

2012. The other proposed amendments update existing statutory standards.

9. Federal standards:

The proposed regulations comply with applicable federal standards. On

September 18, 2012, the federal Department of Health and Human Ser-

vices, Administration for Children, Youth and Families approved the

amendment to New York’s Title IV-E State Plan adding destitute children

to the categories of foster children who are eligible for Title IV-E

reimbursement. The approval of the amendment to New York’s Title IV-E

State Plan permits local social services districts to qualify for federal Title

IV-E foster care reimbursement.

10. Compliance schedule:

Compliance with the proposed regulations must begin immediately

upon final adoption.

Regulatory Flexibility Analysis

1. Effect on Small Business and Local Governments:

Social services districts, the St. Regis Mohawk Tribe or voluntary au-

NYS Register/March 25, 2015Rule Making Activities

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