The proposed 18 NYCRR 444.2 provides for relevant definitions of terms such as “parent”, “child”, “host family home agency”, and “host family home”.

The proposed addition of 18 NYCRR 444.3 would establish a prohibition against discrimination or harassment of children or their parents by the host family home agency on the basis of race, creed, color, national origin, age, sex, religion, sexual orientation, gender identity or expression, marital status or disability.

The proposed addition of 18 NYCRR 444.4 would address the responsibility of the host family home agency to provide information to the parent regarding host family homes, services and resources to meet the needs of the family.

The proposed addition of 18 NYCRR 444.5 would address the execution of the designation of person in parental relation and the host family home agency’s responsibility in reviewing the document with the parent and engagement of youth 14 years of age or older regarding initial care and any subsequent extensions.

The proposed addition of 18 NYCRR 444.6 would address the prohibition against any abuse or maltreatment of a child cared for in a host family home and the reporting obligations of staff of the host family home agency where there is reasonable cause to suspect abuse or maltreatment of a child in a host family home.

The proposed addition of 18 NYCRR 444.7 would address the privacy rights of children cared for in a host family home in relation to mail and telephone access and use.

The proposed addition of 18 NYCRR 444.8 would establish limitations on the forms and conditions for the discipline of children cared for in a host family home.

The proposed addition of 18 NYCRR 444.9 would address requirements on the administration of a host family home agency in relation to policies, manuals and clearances of staff.

The proposed addition of 18 NYCRR 444.10 would address the Office of Children and Family Services’ (OCFS) oversight and monitoring of the host family home program.

The proposed addition of 18 NYCRR 444.11 would address the duties and responsibilities of an approved host family home agency in relation to the process for the recruitment and approval of host family homes.

The proposed addition of 18 NYCRR 444.12 would address the conditions for approval of a host family home agency by OCFS.

The proposed addition of 18 NYCRR 444.13 would address the duties and responsibilities of an approved host family home in relation to the care of children cared for in such home.

The proposed addition of 18 NYCRR 444.14 would address the responsibility of the host family home agency to provide specified information on the child and the child’s family to the host family home when a child is cared for in the host family home.

The proposed addition of 18 NYCRR 444.15 would address the standards and criteria for the home study of applicants for approval by a host family home agency as a host family home.

The proposed addition of 18 NYCRR 444.16 would establish health and safety standards required for the approval of a host family home.

The proposed addition of 18 NYCRR 444.17 would address the supervision of responsibilities of the host family home agency in regard to children cared for in an approved host family home.

The proposed addition of 18 NYCRR 444.18 would address the process for the nonrenewal or revocation of the approval of a host family home by the host family home agency.

The proposed amendment of 18 NYCRR 444.19 would address exceptions that may be permissible upon approval of OCFS.

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the New York State 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 New York State.

2. Legislative objectives:

The proposed regulations would establish regulatory standards to address the authority for a voluntary authorized agency to arrange for the free care of a child in a family other than that of the child’s parent, stepparent, grandparent, brother, sister, uncle, aunt or legal guardian and not for adoption, as authorized by section 374 of the SSL.

3. Needs and benefits:

The proposed regulations would establish standards for the approval and administration of host family homes. Host family homes would care for children placed by the parents of the children with a host family home who have been vetted by a host family home agency. Host family home agencies must be nonprofit corporations approved by OCFS. The children cared for in host family homes would not be freed for adoption and would not be in the legal custody of a social services district. The parents of children cared for in host family homes would continue to have financial responsibility for such children.

The host family home and the host family home agency would be subject to the terms and conditions of the regulations established in a new Part 444 of Title 18. The host family home agency would be subject to the approval, inspection and supervision of OCFS.

The proposed regulations would afford parents the ability to obtain short-term care for their children without the need to place the child in public foster care. The care would be provided in an approved host family home, which must comply with specific health, safety and clearance standards. The proposed regulations also establish standards relating to the rights of children and the parents of the children placed in host family homes.

4. Costs:

Costs associated with the proposed regulations include criminal background checks and SCR clearances. The cost of the SCR clearances would be the responsibility of the Host Family Agency and would be considered part of their operating costs. In the absence of any dedicated funding source to support Host Family Agencies, these costs would have no impact on the state.

5. Local government mandates:

The proposed regulations would not impose any additional mandates on social services districts or social services.

6. Paperwork:

The requirements imposed by the proposed regulations would be recorded by the newly created host family home agencies.

7. Duplication:

The proposed regulations would not duplicate other state or federal requirements.

8. Alternatives:

Many public comments were received, and changes were made to the regulations in response. OCFS amended the regulations to clarify this is a primary prevention community-based program that affords parents the opportunity to engage with an OCFS approved host family home agency for the purpose of identifying volunteer host families who are willing and able to care for a child upon the execution of a designation of person in parental relation by a parent as provided for in Section 5-1551 of the NYS General Obligations Law. Additional changes included requiring the child’s input when developmentally appropriate; limiting the time a child can be in a host home and clarifying who will be responsible for the financial care of the child.

9. Federal standards:

The proposed regulations would not conflict with current federal standards. There are no comparable federal programs.

10. Compliance schedule:

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

1. Effect of Rule:

The proposed regulations will not affect local departments of social services in New York State because the program established by the proposed regulations may not be administered by a local department of social services, the children served by a host family home agency are not in the legal custody of a local department of social services, and local departments of social services have no legal obligation to purchase the services afforded by a host family home program. The proposed regulations could affect the approximately 83 voluntary authorized agencies in New York State. The edits made to the Express Terms in this revised rule making do not require any changes to the RFA.

2. Compliance Requirements:

The proposed regulations would establish standards for the approval and administration of host family homes. Host family homes would care for children placed by the child’s parent(s) with a host family home through the execution of a designation of person in parental regulation. Host family homes would be vetted by an agency that is a nonprofit corporation with the authority to place out children and approved by the New York State Office of Children and Family Services (OCFS). The children who are cared for by host family homes are not in public foster care. Financial responsibility for the children remains with the child’s parent(s).

The host family home and the host family home agency would be subject to the terms and conditions of the regulations established by a new Part 444 of Title 18. The host family home agency would be subject to the approval, inspection and supervision of OCFS.

The proposed regulations would establish recordkeeping and reporting requirements imposed on the host family home agency in relation to the administration of a host family home program. The proposed regulations would preclude a host family home from receiving a child for care unless and until the host family home is approved following a home study and required clearances. The proposed regulations would establish compliance standards on the host family home and the host family home agency in relation to the care of children and the rights of such children and their parents.

3. Professional Services:

These proposed regulations would not create the need for additional professional services.

4. Compliance Costs:

Costs associated with the proposed regulations include criminal background checks and Statewide Central Register (SCR) clearances. The cost for SCR clearances would be the responsibility of the host family agency and would be considered part of their operating costs.

5. Economic and Technological Feasibility:

These proposed regulations would not have an adverse economic impact on local departments of social services and would not require the hiring of additional staff.

6. Minimizing Adverse Impact:

It is not anticipated that the proposed regulations would result in an adverse impact on local government agencies or small businesses.

7. Small Business and Local Government Participation:

OCFS has been in contact with Safe Families for Children, a national organization that administers programs similar to those to be established by the proposed regulations.

8. For Rules That Either Establish or Modify a Violation or Penalty:

The proposed regulations would not establish or modify an existing violation or penalty.

1. Types and estimated numbers of rural areas:

The proposed regulations will not affect the 44 local departments of social services that are in rural areas because the programs established by the proposed regulation may not be administered by local departments of social services, the children served by such programs may not be in the legal custody of a local department of social services, and local departments of social services are under no obligation to purchase the services of programs administered a host family home program. The proposed regulations may affect the 35 voluntary authorized agencies that are in rural areas. The edits made to the Express Terms in this revised rule making do not require any changes to the RAFA.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The proposed regulations would establish standards for the approval and administration of host family homes. Such homes would care for children placed by parents through the execution of a designation of person in parental relation with a host family home, which has been vetted by a host family home agency for a temporary period of time. A host family home agency would be a nonprofit corporation with the authority to place out children and approved by the New York State Office of Children and Family Services (OCFS). The children who are cared for by a host family home are not public foster children in the legal custody of a local department of services. Financial responsibility for the children would remain with the parents of the children.

The host family home and the host family agency would be subject to the terms and conditions of the regulations established by a new Part 444 of Title 18. The host family agency would be subject to the approval, inspection and regulation of OCFS.

The proposed regulations would establish recordkeeping and reporting requirements imposed on host family home agencies in relation to the administration of host family home programs.

3. Costs:

Costs associated with the proposed regulations include criminal background checks and Statewide Central Register (SCR) clearances. The cost for SCR clearances would be the responsibility of the host family agency and would be considered part of their operating costs. In the absence of any dedicated funding source to support host family agencies, these costs would have no impact on the state.

4. Minimizing adverse impact:

It is not anticipated that the proposed regulations will result in an adverse impact on local departments of social services or small businesses that are in rural areas.

5. Rural area participation:

OCFS has been in contact with Safe Families for Children, a national organization that administers programs similar to those anticipated by the proposed regulations in several locations in the United States.

The proposed amendments to 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. The edits made to the Express Terms in this revised rule making do not require any changes to the Job Impact Statement.

This assessment responds to comments received by the Office of Children and Family Services (OCFS) on proposed regulations adding Part 444 of Title 18 of the New York State of Codes, Rules and Regulations. The Notice of Proposed Rule Making was contained in the State Register issued on January 29, 2020.

OCFS received 137 comments during the public comment period, which ended on June 15, 2020. Comments were received from the Uniformed Court System, the New York State (NYS) Permanent Judicial Commissioner on Justice for Children, attorneys for children and families, defender services, national and state advocacy agencies, parents impacted by the child welfare system, survivors and child witnesses of domestic violence, voluntary agencies, volunteers for home visiting programs, staff from church organizations, parishioners from churches, a teacher, a licensed social worker from a hospital, college professors, a chief executive officer from an organization, and community-based organizations. Many included comments on more than one provision of the proposed regulations. Every comment was reviewed and considered by OCFS in this assessment.

This summary will provide an overview of the issues receiving the most public comment. In this assessment, OCFS has combined similar comments from numerous commenters for the purpose of the assessment, and response thereto. The consolidated comments and OCFS responses are grouped in categories into the following topic areas: creation of a quasi-foster care system, child and parent representation, youth protections and youth voice, court oversight, concerns related to the parent – host family home agency agreement, proximity of the host family home to the child’s parents or relatives, visitation (parenting time), the child’s education, siblings being cared for together, parent and child reunification, financial expectations, host home volunteer requirements and concerns, need for respite services, use of section 5-1551 of the General Obligations Law, mandatory child protective reporting guidelines, monitoring of host family homes, services to parents, the child’s mental and health care, kinship, and future fiscal implications for the state, and compliance with the federal Indian Child Welfare Act (ICWA).

The majority of comments interpreted the proposed regulations to represent a quasi-foster care system, and as such felt that children and parents should be afforded attorney representation, and each case should enjoy the review and oversight by the Family Court. Commenters stated that each youth should have a voice in their placement, as do children age 14 and older placed in foster care. OCFS reviewed these comments and wants to clarify that the intent of the proposed regulations was not to build a quasi-foster care system, but rather the proposed regulations are intended to provide a primary prevention community-based program that affords parents the opportunity to engage with an OCFS-approved host family home agency for the purpose of identifying volunteer host families who are willing and able to care for a child.

Commenters in favor of the proposed regulations noted that this primary prevention model is greatly needed in New York State as a resource to parents who have limited child care options and social networks. These families are at risk of being separated and further burdening the child welfare system. Not only does this hosting model prevent child removal in a crisis situation, but it also provides meaningful relationships for the family that will sustain and strengthen them after the crisis.

In response to the concerns raised in the comments, OCFS has made significant revisions to the proposed regulations to more closely align them with a primary prevention model, and to highlight that parents maintain legal custody of their child and are the sole decision makers related to who will care for their child; the proximity of that host family home to the child’s home, school and relative; whether the host home can meet the emotional, medical, and mental health needs of their child; and whether it is in the best interest of the siblings to be cared for together. Additionally, the revised regulations note that if a child to be cared for in a host family home is 14 years of age or older, the host family agency should consult with such child regarding such initial care and any subsequent extensions. The intent of the proposed regulations is not and will not be to create a new form of foster care.

Several comments expressed concerns with the terms of the agreement the child’s parent would execute with the host family home agency, especially about the length of time the agreement can be in place, the transfer of legal custody by the parent and the renewal of the agreement. Several felt that children could be separated from their parents for long periods of time and were concerned about reunifying a child their parent. OCFS will revise the proposed regulations to clarify that the initial duration of care would be limited to up to six months, with one additional extension of up to six months upon the written consent of the child’s parent(s) and the host family home. The transfer of legal custody by the parent to the host family home agency would be eliminated as would the agreement between the child’s parent and the host family home agency. By eliminating the transfer of legal custody by the parent and mandating immediate return of the child to the parent upon termination of the designation of person in parental relation, the revised proposed regulation would address the ICWA concerns raised in the comments.

OCFS will revise the proposed regulations to afford greater decision making and control by the child’s parent through the use of existing authority by a parent to execute a designation of a person in parent relation as addressed in Article 15-A of Title 5 of the General Obligations Law. The designation of person in parental relation must address the visitation and contact rights of the child with the parent(s) and other relatives while the child is with the host family home; consents for medical care; education of the child; and the right of the parent(s) to terminate he designation of person in relation at any time for the immediate return of the child to the parent(s). Consistent with section 5-1555 of the General Obligations Law, OCFS will revise the proposed regulations to clarify that the designation of person in parental relation does not impose upon the host family home a duty to support the child pursuant section 413 of the Family Court Act. However, to address comments regarding who will be responsible for the financial care of the child, OCFS will revise the proposed regulations to require that the designation of person in parental support must address the financial arrangements for the care of the child as agreed upon by the child’s parent(s) and the host family home.

OCFS received some questions and concerns related to the host family home volunteers, such as to how they will be recruited, what training will they receive, the limiting to those with financial means and the potential misuse of host family homes, potentially exacerbated by significant race, culture, and privilege issues. OCFS will revise the proposed regulations to clarify that the host family home agency will be responsible for the recruitment of host family home volunteers, and as outlined in the proposed regulations, the training of volunteers and the oversight of the host family home upon entry of a child that the child’s parent has selected as the person in parental relation. The revised proposed regulations will eliminate any reference to the financial means of a volunteer in order to become a host family home.

Comments were received that New York State currently has available to families respite care services and there is no need for host family homes. While respite is available, a parent must sign a service application with the local department of social services, which no longer affords them a primary prevention service. With the provision of child welfare preventive services, there is an implied risk of removal. Several commenters stated that they felt a host family home model was an innovative opportunity to prevent family separation and extend the relational networks of struggling families.

Comments stated concerns with monitoring of host family home agencies and host family homes. Section 444.8 of the proposed regulation outlines the host family home agency’s responsibilities for supervising host family homes, including a visit to the host home within 48 hours of the child entering the host home, and then at a minimum every 30 days or more frequently as necessary. The proposed regulation would require the host family home to allow access by the host family home agency to the host family home for the purpose of the investigation of a complaint regarding the hose family home. The proposed regulations also require staff of the host family home agency to make a report to the Statewide Central Register of Child Abuse and Maltreatment whenever they have reasonable cause to suspect that a child in a host family home is abused or maltreated. OCFS will monitor any and all host family home agencies in the same manner it monitors all OCFS licensed or approved agencies, which is at a minimum annually. No additional revisions to the proposed regulation will be made regarding those comments.