N.Y. Social Services Law § 409-h: Assessment of appropriateness of placement in a qualified residential treatment program

§ 409-h. Assessment of appropriateness of placement in a qualified

residential treatment program. 1. (a) Prior to a child's placement in a

qualified residential treatment program, as defined in subdivision four

of this section, but at least within thirty days of the start of a

placement in a qualified residential treatment program of a child in the

care and custody or the custody and guardianship of the commissioner of

a local social services district or the office of children and family

services that occurs on or after September twenty-ninth, two thousand

twenty-one, a qualified individual as defined in subdivision five of

this section shall complete an assessment as to the appropriateness of

such placement utilizing an age-appropriate, evidence-based, validated,

functional assessment tool approved by the federal government for such

purpose. Such assessment shall be in accordance with 42 United States

Code sections 672 and 675a and the state's approved title IV-E state

plan and shall include, but not be limited to: (i) an assessment of the

strengths and needs of the child; and (ii) a determination of the most

effective and appropriate level of care for the child in the least

restrictive setting, including whether the needs of the child can be met

with family members or through placement in a foster family home, or in

a setting specified in paragraph (c) of this subdivision, consistent

with the short-term and long-term goals for the child as specified in

the child's permanency plan. Such assessment shall be completed in

conjunction with the family and permanency team established pursuant to

paragraph (b) of this subdivision.

(b) The family and permanency team shall consist of all appropriate

biological family members, relatives, and fictive kin of the child, as

well as, as appropriate, professionals who are a resource to the family

of the child, including but not limited to, the attorney for the child

or the attorney for the parent if applicable, teachers, medical or

mental health providers who have treated the child, or clergy. In the

case of a child who has attained the age of fourteen, the family and

permanency team shall include the members of the permanency planning

team for the child in accordance with 42 United States Code section 675

and the state's approved title IV-E state plan.

(c) Where the qualified individual determines that the child may not

be placed in a foster family home, the qualified individual must specify

in writing the reasons why the needs of the child cannot be met by the

child's family or in a foster family home. A shortage or lack of foster

family homes shall not constitute circumstances warranting a

determination that the needs of the child cannot be met in a foster

family home. The qualified individual shall also include why such a

placement is not the most effective and appropriate level of care for

such child. Such determination shall include whether the needs of the

child can be met through placement in:

(i) An available supervised setting, as such term is defined in

section three hundred seventy-one of this article;

(ii) If the child has been found to be, or is at risk of becoming, a

sexually exploited child as defined in subdivision one of section four

hundred forty-seven-a of this article, a setting providing residential

care and supportive services for sexually exploited children;

(iii) A setting specializing in providing prenatal, post-partum or

parenting supports for youth; or

(iv) A qualified residential treatment program.

2. The qualified individual or their designee shall promptly, but no

later than five days following the completion of the assessment, provide

the assessment, determination and documentation pursuant to subdivision

one of this section to the court, the parent or guardian of the child,

and to the attorney for the child and the attorney for the parent, if

applicable, and a written summary detailing the assessment findings

required pursuant to subdivision one of this section to either the local

social services district or the office of children and family services

that has care and custody or custody and guardianship of the child, as

applicable, and the parties to the proceeding, redacting any information

necessary to comply with federal and state confidentiality laws.

3. Where the qualified individual determines that the placement of the

child in a qualified residential treatment program is not appropriate

after the assessment conducted pursuant to subdivision one of this

section, the child's placement shall continue until the court has an

opportunity to hold a hearing to consider the qualified individual's

assessment and make an independent determination required pursuant to

section three hundred ninety-three of this article or sections 353.7,

seven hundred fifty-six-b, one thousand fifty-five-c, one thousand

ninety-one-a or one thousand ninety-seven of the family court act, as

applicable. Provided however, nothing herein shall prohibit a motion

from being filed pursuant to sections 355.1, seven hundred sixty-four or

one thousand eighty-eight of the family court act, as applicable. If the

appropriate party files such motion, the court shall hold a hearing, as

required, and also complete the assessment required pursuant to section

three hundred ninety-three of this article or sections 353.7, seven

hundred fifty-six-b, one thousand fifty-five-c, one thousand

ninety-one-a or one thousand ninety-seven of the family court act, as

applicable, at the same time. The court shall consider all relevant and

necessary information as required and make a determination about the

appropriateness of the child's placement based on standards required

pursuant to the applicable sections.

4. "Qualified residential treatment program" means a program that is a

non-foster family residential program in accordance with 42 United State

Code sections 672 and 675a and the state's approved title IV-E state

plan.

5. "Qualified individual" shall mean a trained professional or

licensed clinician acting within their scope of practice who shall have

current or previous relevant experience in the child welfare field.

Provided however, such individual shall not be an employee of the office

of children and family services, nor shall such person have a direct

role in case management or case planning decision making authority for

the child for whom such assessment is being conducted, in accordance

with 42 United States Code sections 672 and 675a and the state's

approved title IV-E state plan.