N.Y. Social Services Law § 398-a: Standards of payment for foster care

§ 398-a. Standards of payment for foster care. (1) For purposes of

this section, notwithstanding any other provisions of law, the term

foster child shall mean a person who is cared for away from his or her

home under conditions prescribed by regulations of the department and

who is: (a) under the age of eighteen years, (b) under the age of

twenty-one years if a student attending a school, college or university

or regularly attending a course of vocational or technical training

designed to fit him or her for gainful employment or (c) between the

ages of eighteen and twenty-one who lacks the skills or ability to live

independently and consents to continue in care.

* (2) The office of children and family services shall promulgate,

subject to consultation with appropriate state agencies, the approval of

the director of the budget and certification to the chairmen of the

senate finance and assembly ways and means committees, regulations

establishing standards of payment for care provided foster children when

the care of such children is subject to public financial support, when

such care is provided by relatives, authorized agencies, family boarding

homes, or state agencies. Such standards of payment shall include the

care required to be provided for foster children and the cost of such

care. When the office of children and family services has established

such standards, reimbursement under subdivision two of section one

hundred fifty-three-k of this chapter, for the care of foster children

shall be limited in accordance with such standards.

* NB Effective until June 30, 2027

* (2) The department shall promulgate, subject to consultation with

appropriate state agencies, the approval of the director of the budget

and certification to the chairmen of the senate finance and assembly

ways and means committees, regulations establishing standards of payment

for care provided foster children when the care of such children is

subject to public financial support, when such care is provided by

relatives, authorized agencies, family boarding homes, or state

agencies. Such standards of payment shall include the care required to

be provided for the foster child and the cost of such care. When the

department has established such standards, reimbursement under section

one hundred fifty-three of this chapter, for the care of foster children

shall be limited in accordance with such standards.

* NB Effective June 30, 2027

(2-a) Those social services districts that as of January first, two

thousand five were paying at least one hundred percent of the applicable

rates published by the office of children and family services for the

two thousand four--two thousand five rate year for care provided to

foster children in institutions, group residences, group homes and

agency boarding homes and/or the applicable administrative/services

rates published by the office for the operations of authorized agencies

for care provided to foster children in therapeutic, special needs and

emergency foster boarding homes must pay for the two thousand five--two

thousand six rate year and for each subsequent rate year thereafter at

least one hundred percent of the applicable rates published by the

office for that rate year. Those social services districts that as of

January first, two thousand five were paying less than the applicable

rates published by the office for the two thousand four--two thousand

five rate year for care provided to foster children in institutions,

group residences, group homes and agency boarding homes and/or the

applicable administrative/services rates published by the office for the

operations of authorized agencies for care provided to foster children

in therapeutic, special needs and emergency foster boarding homes must

increase their rates of payment so that: effective July first, two

thousand five, the difference between the percentage of the applicable

rates published by the office for the two thousand five--two thousand

six rate year and the rates such districts are paying is at least

two-thirds less than the difference between the percentage of the

applicable rates published by the office for the two thousand four--two

thousand five rate year and the rates that such districts were paying

for such programs on January first, two thousand five; and effective

July first, two thousand six for the two thousand six--two thousand

seven rate year and for each subsequent year thereafter all social

services districts shall pay at least one hundred percent of the

applicable rates published by the office for the applicable rate year.

(2-b) Payments made directly by social services districts to foster

boarding homes for foster care pursuant to this section may be made by

direct deposit or debit card, as elected by the recipient, and

administered electronically, and in accordance with such guidelines as

may be set forth by regulation of the office of children and family

services. The office of children and family services may enter into

contracts on behalf of social services districts for such direct deposit

or debit card services in accordance with section twenty-one-a of this

chapter.

(2-c) Those social services districts that as of July first, two

thousand twenty-two were paying at least one hundred percent of the

applicable rates published by the office of children and family services

for the two thousand twenty-two--two thousand twenty-three rate year for

care provided to foster children in regular, therapeutic, special needs,

and emergency foster boarding homes shall pay for the two thousand

twenty-two--two thousand twenty-three rate year and for each subsequent

rate year thereafter at least one hundred percent of the applicable

rates published by the office of children and family services for that

rate year. Those social services districts that as of July first, two

thousand twenty-two were paying less than the applicable rates published

by the office of children and family services for the two thousand

twenty-two--two thousand twenty-three rate year for care provided to

foster children in regular, therapeutic, special needs and emergency

foster boarding homes shall increase their rates of payment so that:

effective July first, two thousand twenty-two the difference between the

percentage of the applicable rates published by the office of children

and family services for the two thousand twenty-two--two thousand

twenty-three rate year and the rates such districts are paying is at

least one-half less than the difference between the percentage of the

applicable rates published by the office of children and family services

for the two thousand twenty-two--two thousand twenty-three rate year and

the rates that such districts were paying for such programs on July

first, two thousand twenty-two; and effective July first, two thousand

twenty-three for the two thousand twenty-three--two thousand twenty-four

rate year and for each subsequent year thereafter all social services

districts shall pay at least one hundred percent of the applicable rates

published by the office of children and family services for the

applicable rate year.

(3) If the commissioner finds that a social services district or a

city containing a social services district has adopted regulations

establishing standards of payment for care provided foster children by

relatives, authorized agencies or family boarding homes, when the care

of such children is subject to public financial support, which standards

are substantially equivalent to those promulgated by the department,

such department standards shall not be applicable in such district or

city.

(4) If and so long as federal aid is available therefor and subject to

the approval of the director of the budget, the department is authorized

to conduct a three year demonstration project to test the effectiveness

of establishing capitated rates for foster care. The demonstration

project shall be entitled the homerebuilders demonstration project. The

goal of the project shall be to demonstrate how innovative methods to

fund foster care programs may result in the discharge of children from

foster care to suitable, permanent homes in a more timely manner, at no

additional costs to state and local governments, through service

continuity, intensified discharge planning, pre-adoption services,

after-care services and/or post-adoption services. Notwithstanding any

inconsistent provision of law, in order to implement a demonstration

project relating to the effectiveness of establishing capitated rates

for foster care, the department may waive provisions set forth in: (a)

section one hundred fifty-three and this section, with regard to

limitations on capitated reimbursement to a social services district for

after-care or post-adoption services to children and families

participating in the homerebuilders demonstration project, where the

child is no longer in the care and custody or custody and guardianship

of the local commissioner of social services; and (b) subparagraph (ii)

of paragraph (e) of subdivision five of section four hundred nine-a of

this title, with regard to limitations on reimbursement for intensive

home based family preservation services to children participating in the

homerebuilders demonstration project who are in the care and custody or

custody and guardianship of a local commissioner of social services; and

(c) the regulations promulgated implementing such provisions of law. The

authority of the department to waive such provisions shall be limited to

the purpose of implementing such demonstration project and shall expire

with the completion of the demonstration project, unless otherwise

authorized by law. The department shall report to the governor and the

legislature on the status of the homerebuilders demonstration project at

least annually after its commencement and shall submit a final report

thereon to the governor and the legislature no later than July first,

nineteen hundred ninety-seven. Such final report shall set forth the

findings of the homerebuilders demonstration project and any

recommendations for statutory or regulatory changes.

(5) (a) The office of children and family services shall establish,

subject to consultation with appropriate state agencies, the approval of

the director of the budget and federal approval, standards of payment

for the capital costs of approved projects for residential institutions

for children which enter into a lease, sublease or other agreement with

the dormitory authority pursuant to subdivision forty of section sixteen

hundred eighty of the public authorities law. The maintenance rate

established by the commissioner of the office of children and family

services for such residential institutions for children shall be

established in two parts, one part of which will be the capital

financing add on rate, which shall be the cost per child of the annual

payment pursuant to such lease, sublease or other agreement. The

applicable social services district or school district responsible for

the maintenance cost of a child placed in such residential institution

for children, must agree to pay and is responsible for paying the

residential institution for children one hundred percent of the capital

financing add-on rate for each such child placed in such institution. To

the extent permissible under federal law and regulation, the capital

financing add-on rate shall not be subject to any cost screens, caps or

parameters limiting or reducing the amount of such cost required by this

subdivision.

(b) The expenditures made by a social services district or school

district for the capital financing add on rate for children placed by a

committee on special education of a school district in a residential

institution for children which has a lease, sublease or other agreement

with the dormitory authority pursuant to subdivision forty of section

sixteen hundred eighty of the public authorities law, shall be subject

to state reimbursement in accordance with subdivision ten of section one

hundred fifty-three of this chapter or article eighty-nine of the

education law, as applicable.

(c) The expenditures of a social services district for the capital

financing add-on rate for foster children placed in a residential

institution for children which has a lease, sublease or other agreement

with the dormitory authority pursuant to subdivision forty of section

sixteen hundred eighty of the public authorities law shall be subject to

fifty percent state reimbursement from the office of children and family

services, net of any available federal funds, for the portion of the

costs that exceed the district's foster care block grant allocation.

* (6) (a) Any federal paycheck protection program loan forgiveness

funding or other extraordinary federal funding, as determined by the

office of children and family services, received by an authorized agency

as defined in subdivision ten of section three hundred seventy-one of

this article, to the extent consistent with federal law, shall be

disregarded when calculating the maximum state aid rate when such

funding is utilized for allowable costs or expenses incurred due to the

state of emergency that was declared in executive order two hundred two

on March seventh, two thousand twenty. Allowable costs or expenses shall

include costs incurred due to the pandemic, as allowable pursuant to the

program through which such funding was received or, to the extent

permitted by federal law, expenses related to offsetting lost revenue

due to a reduction in placements that can be directly attributed to the

novel coronavirus (COVID-19) pandemic.

(b) The office of children and family services shall hold harmless the

prospective maximum state aid rate to the extent that extraordinary

federal revenue was disregarded in accordance with paragraph (a) of this

subdivision for the two thousand twenty-one--two thousand twenty-two

rate year and subsequent applicable rate years.

* NB Repealed April 16, 2026