430.10 Necessity of placement. (a) General requirements.
(1) For purposes of this section, the placement
of a child in foster care after April 1, 1982, shall be considered necessary if the
standard for necessary activities prior to the placement and the standard for placement,
as set forth in subdivisions (b)-(c) of this section, are met.
(2) The necessity of a child's placement shall
be documented on the forms prescribed by the department in Part 428 of this Title
according to the standards for documentation defined under the standard for necessary
activities prior to placement and the standard for placement as set forth in subdivisions
(b) and (c) of this section. In the absence of documentation in the uniform case record
for the standard for placement, the placement shall be deemed unnecessary. To the extent
permitted by the Mental Hygiene Law and the regulations of the Office of Mental Health and
the Office of Mental Retardation and Developmental Disabilities, social services officials
shall obtain copies of the case records and service plans and any updates to such records
and plans for children whose care and custody have been transferred to such officials and
who are receiving care in facilities operated or supervised by such offices. Such records,
plans and updates shall be made a part of the uniform case record. It shall be the
responsibility of the district to show that the standard for necessary activities prior to
placement has been met, and a failure to provide evidence that this standard has been met
shall be deemed equivalent to a failure to meet the standard.
(b) Standard for necessary activities prior to placement. For each
foster care placement, the district shall:
(1) provide preventive services to the family
and child prior to placement, unless the offer of preventive services has been refused or
the placement is the result of a court order or due to the circumstance described as
health and safety of the child as defined in paragraphs (c)(1) and (d)(2) of this section
or unless the parents or caretakers are dead, their whereabouts unknown, or their absence
is anticipated to be longer than six months or the child has been placed in a facility
operated or supervised by the Office of Mental Health or Office of Mental Retardation and
Developmental Disabilities;
(2) attempt prior to the placement of a child
in foster care to locate adequate alternative living arrangements with a relative or
family friend which would enable the child to avoid foster care placement, unless the
child is placed as a result of a court order or surrender agreement as defined in
paragraphs (d)(2) and (c)(2) of this section or the child has been placed in a facility
operated or supervised by the Office of Mental Health or Office of Mental Retardation and
Developmental Disabilities; and
(3) document in the first uniform case record
form required after the date of authorization for foster care services that preventive
services have been offered and the reasons why they were not able to avert the placement,
except when the placement is the result of a court order or due to the circumstances
described as health and safety of the child, as defined in paragraphs (d)(2) and (c)(1) of
this section, or when a child is placed in a facility operated or supervised by the Office
of Mental Health or Office of Mental Retardation and Developmental Disabilities, or when
the child's parents or caretakers are dead, their whereabouts are unknown, or their
absence is expected to last longer than six months, and that no adequate alternative
arrangements are available except in placements resulting from court orders or surrender
agreements, as defined in paragraphs (d)(2) and (c)(2) of this section or when a child is
placed in a facility operated or supervised by the Office of Mental Health or Office of
Mental Retardation and Developmental Disabilities.
(4) prior to placing in foster care the child
or children of a minor parent who is in foster care, attempt to place such child or
children in the same foster family home or residential facility without assuming care and
custody of the child or children of the minor parent, unless foster care placement is
necessitated by a court order as described in paragraph (d)(2) of this section; and
(5) document in the first uniform case record
form required after the date of authorization for foster care services that it was not
possible to place the child or children of a minor parent in foster care with the minor
parent; or why it was necessary to seek care and custody of such child or children despite
placing the minor parent and his or her child or children in the same foster family home
or residential facility.
(c) Standard for placement. Placement of a child in foster care shall
occur when removal from the home is essential for ensuring the child receives proper care,
nurturance or treatment. The circumstances in which placement may be considered essential
for this purpose are the following:
(1) Health and safety of child.
(i) Circumstance. The
child or a sibling has been subjected by the parents or caretakers, within the 12 months
immediately prior to the date on which the program choice "Placement" is
selected, to serious physical injury by other than accidental means, or to risk of serious
physical injury by other than accidental means, or to serious impairment of their
physical, mental or emotional condition as a result of the failure of the parents or
caretakers to exercise a minimum degree of care.
(ii) Documentation.
(a) The first uniform case record form required after the date of authorization for foster
care services shall contain a description of instances within the 12 months immediately
prior to the date on which the program choice "Placement" is selected in which
the child has been harmed emotionally or physically and the type of harm which has
resulted, or shall indicate that at the time of placement conditions existed which placed
the child or siblings in danger of serious emotional or physical harm which would have
been likely to result from these conditions.
(b) If the child has continued in placement beyond the date the first service plan review
is required, the most recent assessment and service plan required by the uniform case
record shall indicate that conditions persist which, if the child were to be returned
home, would continue to place the child in danger of serious physical or emotional harm.
In order to establish a continuing danger to the child, the assessment and service plan
shall cite one or more of the following factors: the parents' or caretakers' willingness
to maintain regular contact with the child, their behavior during visits, their response
to services offered or provided by the district or other involved agencies, their
expressed willingness to take the child home and to plan for his or her welfare, the
present status of environmental or any other factors which contributed to the original
problems which necessitated the placement, and the overall progress of the parent toward
the accomplishment of the goals established in the most recent service plan required by
the uniform case record.
(2) Parental refusal or surrender.
(i) Circumstance. The
parent or careakers refuse to maintain the child in the home or have voluntarily
surrendered the child for adoption.
(ii) Documentation.
(a) The first uniform case record form required after the date of authorization for foster
care services shall show that, prior to the placement, the local social services district
attempted without success to persuade the parents or caretakers to maintain the child in
the home, and offered services to assist in maintaining the child in the home and that
these services were refused. The most recent assessment and service plan required by the
uniform case record shall show that the district continues to make such efforts, and that
these efforts continue to fail and/or be refused for as long as the child's discharge
objective is "return to parents" or until the parents have signed a surrender
agreement.
(b) If a surrender has been completed, the assessment and service plan required by the
uniform case record shall also:
(1) include a copy of the surrender agreement, or a description of the date and conditions
of the agreement;
(2) indicate whether the agreement of any other putative parent is necessary before the
child can be adopted;
(3) document efforts beginning within 30 days of the date of the surrender agreement to
locate and assess the suitability to care for the child of any other putative parent whose
agreement is necessary before the child can be adopted; and
(4) show efforts, if the parent is suitable, to place the child with the parent, if the
other parent is unsuitable, to obtain a surrender agreement from this person or as soon as
legally appropriate, to initiate an action to terminate this person's parental rights
pursuant to section 384-b of the Social Services Law, or if the parent's whereabouts are
not known and efforts to locate him or her are unsuccessful, to initiate an action to
terminate this parent's rights on the basis of abandonment once he or she has failed to
maintain contact with the child or the child's caretakers for a six-month period, pursuant
to section 384-b of the Social Services Law.
(3) Parent unavailability.
(i) Circumstance. The
child's parents or caretakers are unavailable due to:
(a) hospitalization;
(b) arrest, detainment or imprisonment;
(c) death; or
(d) the fact that their whereabouts are unknown.
(ii) Documentation.
(a) The first uniform case record form required after the date of authorization for foster
care services shall contain the reason for the absence of the parents and the expected
duration of that absence if the parents or caretakers are living and their whereabouts
known, and a summary of the efforts to find an alternative living arrangement for the
child, as defined in subdivision (b) of this section.
(b) If the parents or caretakers are living and their whereabouts known, and if the child
has continued in placement beyond the date the first service plan review is required, the
most recent assessment and service plan required by the uniform case record shall indicate
whether any change has occurred in the reason for the parents' or caretakers' absence or
in the expected duration of that absence. For parents or caretakers whose whereabouts are
unknown, the most recent assessment and service plan required by the uniform case record
shall indicate what progress has been made in attempting to locate them. When parental
rights have been terminated, no further documentation is required to establish necessity
of placement.
(4) Parent service needs.
(i) Circumstance. The
child is placed at risk of serious physical or emotional harm due to an emotional, mental
or physical condition of the parents or caretakers, which seriously impairs the parents'
or caretakers' ability to care for the child.
(ii) Documentation.
(a) The first uniform case record form required after the date of authorization for foster
care services shall contain documentation of the specific type and degree of parental
impairment and a summary of instances in which the parental impairment seriously harms the
child emotionally or physically or has placed the child in danger of such harm.
(b) If the child has continued in care beyond the date the first service plan review is
required, the most recent assessment and service plan required by the uniform case record
shall show that the impairment persists and that it would continue to pose a risk of
serious emotional or physical harm to the child if he or she were to return home. In order
to establish a continuing danger to the child, such assessment and service plan shall cite
one or more of the following factors: the parents' or caretakers' willingness to maintain
regular contact with the child, their behavior during visits, the adequacy of and their
response to services offered or provided by the district or other involved agencies, their
expressed willingness to take the child home and to plan for his or her welfare, the
present status of the condition which necessitated the placement, and the overall progress
of the parent toward the accomplishment of the goals established in the service plan.
(5) Child service needs.
(i) Circumstance. The
child has special needs for supervision or services which cannot be adequately met by the
child's parents or caretakers, even with the aid of intensive services in the home. This
need for services is the result of one of the following:
(a) The child has a diagnosed or diagnosable, physical, mental or emotional condition
which severely impairs the child's ability to carry out daily, age- appropriate activities
and which presents treatment needs which are too extensive or specialized for the child's
parents to be able to maintain the child in the home.
(b) The child's behavior, although not dangerous, cannot be managed in the home, the
school, or the community, even with extensive support to the parents and child.
(c) The child's behavior presents a serious danger to other people or to the child
himself.
(d) The child is eligible for admission to a facility operated or supervised by the Office
of Mental Health or the Office of Mental Retardation and Developmental Disabilities.
(ii) Documentation. The
most recent assessment and service plan required by the uniform case record shall show the
services which are to be provided to the child which will assist in alleviating the
child's behavior or condition.
(a) The first uniform case record form required after the date of authorization for foster
care services, shall contain:
(1) a description of behavior patterns which inhibit the child's ability to carry out
everyday activities in school, home or community; diagnosis by a licensed psychiatrist or
psychologist, including a permanently certified school psychologist, or by a certified
social worker other than the case manager or case planner, shall be deemed appropriate
documentation for this subparagraph;
(2) a description of repeated instances of behaviors which cannot be managed in the home,
the school, or the community, and efforts to ameliorate these problems through the
provision of extensive support services; or
(3) a summary of instances within the 12 months immediately prior to the date on which the
program choice "Placement" is chosen in which the child has intentionally harmed
or attempted to harm other persons or himself, or indicate that a licensed psychiatrist or
psychologist, including a permanently certified school psychologist, or a certified social
worker other than the case manager or case planner, has stated, in writing, that the child
presents a serious danger to himself or others.
(b) If the child has continued in placement beyond the date at which the service plan
review is required, the most recent assessment and service plan required by the uniform
case record shall indicate that the behavior or condition continues at the present to
require services at a level sufficient to justify continued placement, including:
(1) examples or a description of the child's recent behavior which illustrates that the
child continues to require the provision of an extensive set of services and that without
these services his behavior would be cause for placement; and
(2) the reasons why necessary services or supervision still cannot be provided in the
child's home.
(c) If the behavior which led to the placement has stopped or greatly diminished over a
six-month period, the most recent assessment and service plan required by the uniform case
record shall show which services needed by the child to prevent or diminish the behavior
cannot be provided in the home and the reasons why they cannot be provided.
(d) If a child has been placed in a facility operated or supervised by the Office of
Mental Health or the Office of Mental Retardation and Developmental Disabilities,
documentation in the uniform case record which indicates that the child has been admitted
to such facility shall be deemed to fulfill the documentation requirements of this
subparagraph.
(6) Pregnancy.
(i) Circumstance. A
woman is pregnant or has given birth, and foster care placement would enable the mother
and child to remain together and would significantly aid the mother in preparing to assume
responsibility to care for her child or in making a decision to surrender the child for
adoption.
(ii) Documentation. The
first uniform case record form required after the date of authorization for foster care
services shall:
(a) indicate whether the woman is pregnant or has given birth; and
(b) contain a description of the parental functions which the woman is unable to perform,
as well as the availability of the woman's parents or other relatives as resources.
(d) Notwithstanding any other provisions of this section, reimbursement
shall not be withheld for any placement undertaken for the following reasons:
(1) Diagnostic evaluation. The child has been
placed in a foster care program for no longer than 90 days specifically for the purpose of
conducting a comprehensive diagnostic evaluation of the child. The first uniform case
record form required after placement in the foster care program shall indicate the
specific questions to be answered by the evaluation, examples of the child's behavior or
problems which necessitate this type of evaluation for this child, the reasons why the
evaluation could not be completed while the child remains at home, and a description of
the evaluation results when they become available.
(2) Court-ordered placement. The child was
placed or remanded to the custody of the Commissioner of Social Services by the Family
Court and foster care placement has been ordered by the court pursuant to article 3, 7 or
10 of the Family Court Act. Documentation shall include a copy of the court order or a
description of the date and condition of the order in the first uniform case record form
required after the court-ordered placement. In the event that a utilization review has
occurred and found the court-ordered placement to be the sole reason for placement, the
district shall request a rehearing of the placement within 30 days of the notification of
such finding and shall present such finding as documentation for the court review.
(e) Notwithstanding any other provisions of this section, reimbursement
cannot be withheld for any placement that is continued beyond 90 days where a
determination has been made by the case manager and documented in the assessment and
service plan required in the uniform case record that the primary factor necessitating
continued placement is the family's lack of adequate housing and that preventive services,
including housing services as defined in subdivision (16) of section 423.2(b) of this
Title, have been authorized to facilitate the child's or children's discharge from care
and the child or children will be or have been discharged within two months of the date of
authorization of such services or the date adequate housing is made available to the
family.