CFS-07-16-00014-P Casework Contacts for Foster Children

2/17/16 N.Y. St. Reg. CFS-07-16-00014-P

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 7

February 17, 2016

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-07-16-00014-P

Casework Contacts for Foster Children

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 428.3, 430.11, 430.12 and 441.21 of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 398(6)(a), 20(3)(d) and 34(3)(f)

Subject:

Casework contacts for foster children.

Purpose:

To implement federal standards which require monthly face-to-face, in person casework contact with foster children.

Text of proposed rule:

Subparagraph (iv) of paragraph (2) of subdivision (b) of section 428.3 is repealed, subparagraph (v) is amended and renumbered as subparagraph (iv) and subparagraph (vi) is renumbered as subparagraph (v) as follows:

(iv) [ if the child has been placed in foster care outside of the state, a report prepared every six months by a caseworker employed by either the authorized agency with case management and/or case planning responsibility for the child, the state in which the placement home or facility is located, or a private agency under contract with either the authorized agency or other state, documenting the caseworker’s visit(s) with the child at his or her placement home or facility within the six-month period; and

(v)] the child’s transition plan prepared in accordance with the standards set forth in section 430.12(j) of this Title[.]; and

[(vi)] (v) the foster child’s consumer report provided in accordance with section 430.12(k)of this Title.

Subparagraph (x) of paragraph (2) of subdivision (c) of section 430.11 is repealed and subparagraphs (viii) and (ix) are amended to read as follows:

(viii) if the child has been placed in a foster care placement a substantial distance from the home of the parents of the child or in a state different from the state in which the parent’s home is located, the uniform case record must contain documentation why such placement is in the best interests of the child; and

(ix) show in the uniform case record that efforts were made to keep the child in his or her current school, or where distance was a factor or the education setting was inappropriate, that efforts were made to seek immediate enrollment in a new school and to arrange for timely transfer of school records[; and

(x) if the child has been placed in foster care outside of the state in which the home of the parents of the child is located, the uniform case record must contain a report prepared every six months by a caseworker employed the authorized agency with case management and/or case planning responsibility over the child, the state in which the home is locate, or a private agency under contract with either the authorized agency or other state documenting the caseworker’s visit to the child’s placement within the six-month period].

Paragraph (3) of subdivision (c) of section 430.12 is amended to read as follows:

(3) Casework contacts. (i) Standard. Casework contacts with the child, the child’s caretakers, the child’s parents or relatives, if any, must adhere to the standards mandated in section 441.21 [431.16] of this Title. [Notwithstanding any other provisions of this paragraph, the standards concerning casework contacts with the child are deemed to be met by the district for any child] When a foster child [who has been] is placed in a facility operated or supervised by the Office of Mental Health, Office [of Mental Retardation and] for People with Developmental Disabilities, Office of Alcoholism and Substance Abuse Services or the Department of Health, casework contacts required by this paragraph may be made by appropriate staff from the above referenced state agencies or by appropriate staff who perform like or similar functions under contract with such state agencies where such contacts otherwise satisfy the frequency, location and content requirements set forth in section 441.21 of this Title.

(ii) Documentation. The progress notes shall show the extent to which these contacts are occurring pursuant to section 441.21 of this Title [department regulations], the location of the contacts and the content of the contacts. [Information concerning services which are provided to children in facilities operated or supervised by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities and which is forwarded by such facilities to the social services district responsible for maintaining the uniform case record shall be included in the uniform case record and shall be deemed to fulfill the documentation requirements of this subparagraph.] If such contact is made by appropriate state or contract staff, in accordance with subparagraph (i) of this paragraph, information concerning the date, location, content of the contact and services provided to the foster child must be forwarded by such state or contract staff in the month the contact occurs to the social services district or the voluntary authorized agency case manager, case planner or case worker responsible for maintaining the foster child’s uniform case record. This information must then be included in the foster child’s uniform case record in accordance with Part 428 of this Title.

Paragraph (2) of subdivision (c) of section 441.21 is amended and a new paragraph (3) is added to read as follows:

(2) During the first 30 days of placement, casework contacts are to be held with the child as often as is necessary to implement the services tasks in the family and children’s services plan but must occur at least twice. At least one of the two contacts must be held at the child’s placement location. The focus of the initial contacts with the child must include, but need not be limited to, determining the child’s reaction to the separation and his/her adjustment to the out-of-home placement and arranging for services necessary to meet his/her needs. After the first 30 days of placement, casework contacts are to be held with the child at a minimum of once a month. At least two of the monthly contacts every 90 days must be at the child’s placement location. [If the youth is age 18 or older and is attending an educational or vocational program 50 miles or more outside the local social services district, the casework contacts may be made by telephone or mail]

(3) (i) Where a foster child is placed in a home or facility located outside of the State of New York, the monthly casework contact requirements set forth in paragraph (2) of this subdivision apply to such child. Such contacts must be made either by the authorized agency with case management and/or case planning responsibility for the child, a public agency in the state in which the foster home or facility is located or a private agency under contract with either the authorized agency or the other public agency.

(ii) Casework contacts required by this paragraph must be recorded in the child’s uniform case record in accordance the requirements of Part 428 of this Title.

Text of proposed rule and any required statements and analyses may be obtained from:

Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

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 establish regulations for the administration of public assistance and care within the State.

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 are necessary in order for New York State to comply with federal statutory mandates relating to caseworker visits (contacts) with foster children, in particular foster children placed outside of New York State. The federal mandates are set forth in Title IV-B, subpart 1 of the Social Security Act (SSA), specifically in section 422(b)(17) and 424(f) of the SSA [42 USC §§ 622(b)(17) and 624(f)].

Enhanced casework contact standards support the overall legislative goal that children be served by the child welfare system in settings where they are safe and receiving appropriate care and supervision, and that such children reside in permanent homes as soon as reasonably can be accomplished. Frequent casework contacts with foster children are important to assess and maintain the children’s safety and well-being.

3. Needs and benefits

The proposed regulations would impose new requirements on social services districts and voluntary authorized agencies in relation to making casework contacts for foster children who are placed outside of the State of New York. Currently, casework contacts with foster children placed out-of-state must be made every 6 months. The proposed regulations would require that casework contacts must be made on a monthly basis for all foster children who are placed out of state. The proposed regulations will adopt the current regulatory requirement for monthly casework contacts in place for foster children placed in a home or facility in the State of New York. Expanding the monthly casework contact requirements to include all foster children placed out-of-state will provide a consistent, statewide standard that reflects the generally accepted good child welfare practice regarding the frequency of such contacts.

Because of guidance recently received from the federal Administration for Children and Families of the Department of Health and Human Services (DHHS), the proposed regulations would repeal the current standard for casework contacts of foster children placed in-state who are over the age of 18 and who attend an educational or vocational program 50 miles or more outside the local social services district. Currently, such contacts may be made by telephone or mail. DHHS has informed the states that such contacts must be made face-to-face and in person.

DHHS has indicated that a correlation exists between the number of casework contacts and positive outcomes for foster children, including: achieving reunification or other permanent placements; preserving the foster child’s connections and relationship with family members; and involving children and parents or relatives in case planning. In addition, the Child Welfare League of America recommends monthly visits as a protective measure.

4. Costs

The proposed regulation will assist New York State to avoid exposure to federal fiscal sanctions for non-compliance with federal caseworker visit (contact) requirements that impact the State’s federal Title IV-B, subpart 1 funding. Although Title IV-B, subpart 1 funding does not support foster care costs, this is where DHHS has decided to assess the penalty.

The most recent Title IV-B, subpart 1 grant award received by New York is for the fiscal FFY 2015-2016 in the amount of $11,778,784. Using this amount, the penalties for non-compliance with the federal casework contact requirements would be as follows:

Percentage	Funding Reduction
1 Percent	$117,784
3 Percent	$353,351
5 Percent	$588,918

5. Local government mandates

The social services districts or voluntary authorized agencies that are not already conducting or arranging for monthly casework contacts with foster children placed out-of-state will have to increase these contacts or arrange for these contact requirements to be met by comparable staff in the state where the foster child is placed. As of September 30, 2015, there were 345 foster children placed out-of-state. Monthly face to face contacts will also have to be made for in-state placements of foster care youth over the age of 18.

6. Paperwork

All casework contacts must be documented in the child’s Uniform Case Record in accordance with 18 NYCRR Part 428. The proposed regulations would allow comparable staff in the state where the foster child is placed to make the contact, record the information about such contact and send it to the responsible social services district or voluntary authorized agency where the child’s case manager, case planner or foster child’s caseworker is employed. Such documentation must be recorded electronically in the Progress Notes dialog in CONNECTIONS.

7. Duplication

The proposed regulations do not duplicate other State requirements.

8. Alternatives

The proposed regulations are necessary to improve the health, safety and well-being of foster children, to meet the requirements of federal statute and to avoid penalties imposed by the federal statute, as described below. Therefore, there are no alternatives to the proposed regulations.

9. Federal standards

As a condition to receive federal Tile IV-B, subpart 1 funding, New York State must have a State Plan that satisfies the requirements of section 422 of the SSA. One of the conditions is that New York State must describe the standards for the content and frequency of caseworker visits (contacts) with foster children which, at a minimum, must be monthly. Section 424 of the SSA addresses the standards for payment of federal Title IV-B, subpart 1 funds to the States. Section 424(f) of the SSA requires that States must stake steps to ensure that effective federal fiscal year 2015 the total number of caseworker visits (contacts) is not less than ninety-five percent of the total number of such visits during the fiscal year, with at least fifty present occurring in the residence of the foster child. DHHS issued a Program Instruction ACYF-CB-PI-12-01 on January 6, 2012 clarifying federal policy that the Title IV-B caseworker visit standards noted above applies to foster children placed out of state. Recently, DHHS informed the states that, while the states were not required to report caseworker visit on foster children 18 years of age or older, federal Title IV-B casework contact requirements apply to all foster children placed out of state, including those who are 18 years of age of older. Finally, all casework contacts must be in person and face-to-face.

10. Compliance schedule

Compliance with the proposed regulations must begin immediately upon final adoption.

Regulatory Flexibility Analysis

1. Effect of Rule

The proposed regulations will affect the 58 social services districts and the St. Regis Mohawk Tribe, which is authorized by sections 39 and 371(10)(b) of the Social Services Law (SSL) to provide child welfare services pursuant to its State/Tribal Agreement with the Office of Children and Family Services (OCFS). Voluntary authorized agencies also will be affected by the proposed regulations. There are approximately 111 such agencies.

2. Compliance Requirements

The proposed regulations would impose new requirements on social services districts and voluntary authorized agencies in relation to making casework contacts with foster children who are placed out-of-state. These compliance requirements stem from sections 422(b)(17) and 424(f) of the Social Security Act (SSA) [42 USC §§ 622(b)(17) and 624(f)] and guidance received from the federal Department of Health and Human Services (DHHS) relating to caseworker visits (contacts) with foster children. Federal law requires that in order to continue to receive Title IV-B, subpart 1 funding, New York State must annually provide to DHHS data on the percentage of foster children who were visited on a monthly basis and the percentage of visits that occurred in the residence of the child. New York State, in consultation with DHHS, established an outline of the steps to be taken to so that beginning by October 1, 2011 at least ninety percent of children in foster care are visited on a monthly basis and that the majority of the visits occur in the residence of the child. Effective federal fiscal year 2012, at least fifty percent of the monthly caseworker visits (contacts) must occur in the residence of the foster child. Effective federal fiscal year 2015 and thereafter, the total number of caseworker visits (contacts) made on a monthly basis to children in foster care during the fiscal year must not be less than at least ninety-five percent of the total number of such visits that would occur during the fiscal year if each such child were so visited one every month while in care.

If DHHS determines that the above referenced percentages are not achieved, the following penalties will be assessed:

• Percentage not met by less than 10%, Title IV B, subpart 1 funds are reduced by 1%;

• Percentage not met by between 10 and 20%, Title IV-B, subpart 1 funds are reduced by 3%;

• Percentage not met by 20% or more, Title IV-B subpart 1 funds are reduced by 5%.

OCFS regulations currently meet the above referenced federal monthly casework contact requirement except for foster children who are placed out-of-state and certain in-state placements.

Current OCFS regulations require contact with a foster child placed in a home or facility outside of the State of New York every 6 months. Following the enactment of the federal Act, New York State directly inquired of DHHS regarding the applicability of the standards noted above to foster children placed outside of the State of New York, including foster children over the age of 18. This was done because of an apparent conflict between the monthly casework contact requirements of Title IV-B (sections 422(b)(17) and 424(f) of the SSA) and a Title IV-E casework contact requirement that specifically references out-of-state placements (section 475(5)(A)(ii) of the SSA) that imposes a six month casework contact requirement. DHHS issued a Policy Instruction, ACYF-CB-PI-12-01 on January 6, 2012 which confirmed that the federal monthly caseworker visit (contact) standards applied to foster children placed out of state. DHHS also informed the states that, at this time, DHHS was not requiring states to report caseworker visits of foster children who are 18 years of age or older. However, recently, DHHS confirmed that the above referenced monthly casework contact provisions of Tile IV-B applied to all out-of-state foster care placements, including foster children who are 18 years of age or older.

Based on these responses, the proposed regulations would expand to monthly the frequency of casework contacts for all foster children who are placed out-of-state. As of September 30, 2015, there were 345 foster children placed out-of-state.

DHHS also informed the states in section 7.3 of the federal Child Welfare Policy Manual that casework contacts must be made face-to-face and in person. Video conferencing or other forms of electronic communication are not federally acceptable. As a result, the proposed regulations would repeal the current provision in 18 NYCRR 441.21(c)(2) that allows for contacts by mail or telephone for certain foster care youth who are 18 years of age or older.

3. Professional Requirements

It is expected that most social services districts and voluntary authorized agencies will not have to hire additional staff to implement the proposed regulations as the requirement will be met by comparable staff in the state where the child is placed. Caseworkers will have to enter the casework contacts required by the proposed regulations into the Progress Notes dialog in the CONNECTIONS system. They have been comprehensively trained to use the system.

4. Compliance Costs

New York State must implement the proposed regulations to avoid penalties for non-compliance with the federal monthly caseworker visit requirements that would that impact the State’s federal Title IV-B, Subpart 1 funding. Although Title IV-B, subpart 1 funding does not support foster care costs, this is where the federal Department of Health and Human Services has decided to assess the penalty.

The most recent Title IV-B, Subpart 1 grant award received by New York is for FFY 2015-2016 in the amount of $11,778,784. Using this amount, the penalty for non-compliance with federal casework contact requirements would be as follows:

Percentage	Funding Reduction
1 Percent	$117,784
3 Percent	$353,351
5 Percent	$588,918

5. Economic and Technological Feasibility

Those social services districts that are not already conducting or arranging for monthly casework contacts with foster children who are placed out-of-state will have to increase these contacts or arrange for these contact requirements to be met by comparable staff in the state where the foster child is placed. The proposed regulations also require face-to-face casework contacts for all foster children placed in New York. Social services districts and voluntary authorized agencies will not need additional computers to perform these regulatory functions beyond those they already have.

6. Minimizing Adverse Impact

The revisions to the casework contact requirements included in the proposed regulations are necessary to better promote the health, safety and well-being of foster children. To minimize potential adverse impact on the social services districts and voluntary authorized agencies, the proposed regulations allow comparable staff in the state where the foster child is placed to make the contact and record the information about such contact and send it to the responsible social services district or voluntary authorized agency where the child’s case manager, case planner or foster child’s caseworker is employed.

7. Small Business and Local Government Participation

OCFS has distributed information about the federal requirements concerning casework contacts with foster children reflected in the proposed regulations to social services districts and voluntary authorized agencies.

Rural Area Flexibility Analysis

1. Effect on Rural Areas

The proposed regulations will affect the 44 social services districts that are in rural areas. The St. Regis Mohawk Tribe is authorized by sections 39 and 371(10)(b) of the Social Services Law (SSL) as a social services district to provide child welfare services pursuant to its State/Tribal Agreement with the Office of Children and Family Services (OCFS). Those voluntary authorized agencies in rural areas contracting with social services districts to provide foster care and adoption services also will be affected by the proposed regulations. Currently, there are approximately 35 agencies.

2. Reporting, Recordkeeping and Compliance Requirements

The proposed regulations would bring New York State into compliance with federal standards relating to caseworker visits (contacts) with foster children placed out of state and reflect existing federal policy on caseworker visits of foster children. The federal compliance requirements are set forth in sections 422(b)(17) and 424(f) of the Social Security Act (SSA). Federal law requires that in order to continue to receive Title IV-B, subpart 1 funding, New York State must annually provide data to the federal Department of Health and Human Services (DHHS) on the percentage of foster children who were visited on a monthly basis and the percentage of visits that occurred in the residence of the child. New York State, in consultation with DHHS, established an outline of the steps to be taken to so that by October 1, 2011, at least ninety percent of children in foster care are visited on a monthly basis and that the majority of the visits occur in the residence of the child. Effective with federal fiscal year 2012, at least fifty percent of the monthly caseworker visits (contacts) must occur in the residence of the foster child. Effective federal fiscal year 2015 and thereafter, the total number of caseworker visits (contacts) made on a monthly basis to children in foster care during the fiscal year must not be less that ninety-five percent of the total number of visit during the fiscal year.

If DHHS determines that the above referenced percentages are not achieved, the following penalties will be assessed:

• Percentage not met by less than 10%, Title IV B, subpart 1 funds are reduced by 1%;

• Percentage not met by between 10 and 20%, Title IV-B, subpart 1 funds are reduced by 3%;

• Percentage not met by 20% or more, Title IV-B, subpart 1 funds are reduced by 5%.

OCFS regulations currently meet the above referenced federal monthly casework contact requirement except for foster children who are placed out-of-state and certain in state placements.

Regarding out of state placements, current regulations require contact with a foster child placed in a home or facility outside of the State of New York every 6 months. Following the enactment of the federal Act, New York State directly inquired of DHHS regarding the applicability of the standards noted above to foster children placed outside of the State of New York. This was done because of an apparent conflict between the monthly casework contact requirements of Title IV-B (sections 422(b)(17) and 424(f) of the SSA) and a Title IV-E casework contact requirement that specifically references out-of-state placements (section 475(5)(A)(ii) of the SSA) that imposes a six month casework contact requirement.

DHHS issued Policy Instruction, ACYF-CB-PI-12-01 on January 6, 2012 which confirmed that the federal monthly caseworker visit (contact) standards applied to foster children placed out of state. Also, DHHS informed the States that, at this time, DHHS was not requiring States to report caseworker visits of foster children who are 18years of age or older. However, recently, DHHS confirmed that the above referenced monthly casework contact provisions of Title IV-B applied to all out-of-state placements of foster children, including foster children who are 18 years of age or older.

Based on these responses, the proposed regulations would expand the casework contact requirements for all foster children placed out-of-state. As of September 30, 2015, there were 345 foster children placed out-of-state.

DHHS also informed the states in section 7.3 of the federal Child Welfare Policy Manual that casework contacts must be done face-to-face and in person. Video conferencing or other forms of electronic conferencing is not federally compliant. Therefore, the proposed regulations would repeal the current provision in 18 NYCRR 441.21(c)(2) that allows contacts by mail or telephone for certain foster care youth who are 18 years of age or older.

It is expected that most social services districts and voluntary authorized agencies will not have to hire additional staff to implement the proposed regulations as the requirement will be met by comparable staff in the state where the child is placed. Caseworkers will have to enter the casework contacts required by the proposed regulations into the Progress Notes dialog in the CONNECTIONS system. They have been comprehensively trained to use the system.

3. Professional Services

It is anticipated that most social services districts and voluntary authorized agencies will not have to hire additional staff to implement the proposed amendments to regulations.

4. Compliance Costs

New York State must implement the proposed regulations to avoid penalties for non-compliance with the federal monthly caseworker visit standards that impact the State’s federal Title IV-B, subpart 1 funding. Although Title IV-B, subpart 1 funding does not support foster care costs, this is where the federal Department of Health and Human Services has decided to assess the penalty.

The most recent Title IV-B, subpart 1 grant award received by New York is for FFY 2015-2016 in the amount of $11,778,350. Using this amount, the penalties for non-compliance with the federal casework contact requirements would be as follows:

Percentage	Funding Reduction
1 Percent	$117,784
3 Percent	$353,351
5 Percent	$588,918

5. Minimizing Adverse Impact

The revisions to the casework contact requirements included in the proposed regulations are necessary to better promote the health, safety and well-being of foster children. To minimize potential adverse impact on the social services districts and voluntary authorized agencies, the proposed regulations allow comparable staff in the state where the foster child is placed to make the contact and record the information about such contact and send it to the responsible social services district or voluntary authorized agency where the child’s case manager, case planner or foster child’s caseworker is employed.

6. Rural Area Participation

OCFS has distributed information about the federal requirements concerning casework contacts with foster children reflected in the proposed regulations to social services districts and voluntary authorized agencies.

Job Impact Statement

The proposed regulations will not have a negative impact on jobs or employment opportunities in either public or private child welfare agencies. A full job impact statement has not been prepared for the proposed regulations as it is assumed that the proposed regulations will not result in the loss of any jobs.