NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7554A
SPONSOR: Hevesi TITLE OF BILL: An act to amend the social services law, in relation
to eligibility of children for subsidized kinship guardianship assist-
ance to expedite permanency for foster children before the family court
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.
The enactment of the subsidized kinship guardianship assistance program
("KinGAP") in 2010 marked a milestone in adding a valuable permanency
alternative to the menu of options available to expedite the exodus of
children from foster care into permanent families. Experience with the
program, especially in New York City where it is frequently utilized,
has demonstrated its enormous value, not only for the children and fami-
lies who are its beneficiaries, but also for the State in its constant
quest to improve its record in achieving timely permanency for the chil-
dren in its care. And the need for improvement cannot be overstated.
Both the second and third "Child and Family Service Reviews (CFSR's),"
conducted by the Administration for Children and Families of the United
States Department of Health and Human Services (HHS) in 2008 and 2015,
respectively, concluded that New York's score ranked among the lowest in
the • nation and demonstrated how far the State needs to progress in
order to achieve Federal time to permanency targets. This measure would
enhance the reach and efficacy of this cost-effective, valuable perman-
ency option.
First, the measures makes two changes to fill significant gaps in the
definition of individuals eligible to be appointed as kinship guardians
of children in foster care. It would amend the definition of "prospec-
tive relative guardian" in subdivision three of section 458-a of the
Social Services Law to include prospective guardians who are related to
only one of a sibling group, thereby allowing sibling groups to continue
to be placed together. Thus, the half-sibling of a child could be placed
with that child's prospective kinship guardian even though the half-si-
bling is not related by blood, marriage or adoption to the prospective
guardian. Further, it would add as prospective guardians those "with a
positive relationship with the child, including, but not limited to, a
step-parent, godparent, neighbor or family friend." Both of these chang-
es are consistent with practices and definitions used for foster care,
thus allowing continuity of care by authorizing a permanency option
consistent with children's prior placements and, importantly, preventing
the breakup of sibling groups. Under Federal law and under section 458-a
of the Social Services Law, in fact, a prospective guardian must have
cared for a child for six months as a foster parent, underscoring the
importance of utilizing consistent definitions. Similar to this measure,
regulations of the State Office of Children and Family. Services define
prospective kinship foster parents to include, but not be limited to, "a
child's godparent, neighbor, family friend or an adult with a positive
relationship with the child." See 18 NYCRR § 443.7(a)(2).
Both of these changes are clearly permissible and thus reimbursable
under Federal law, since the law authorizing KinGAP specifically deleg-
ates to the states the authority to define prospective guardian
relationships and does not use the term "relative" or "kinship." See
Fostering Connections to Success and Increasing Adoptions Act of 2008
(Public Law 110-351; 42 U.S.C. § 675(7)).* The Federal Act specifically
authorizes states to include half- siblings who may not be related to
the prospective guardian,-a feature explicitly contained in the laws of
the following eight states: Idaho, Michigan, Minnesota, Nevada, North
Dakota, Rhode Island, Tennessee and Wisconsin. Current New York law, in
limiting prospective guardians to those who are related by blood,
adoption or marriage, uses a far narrower definition than that which is
used in the vast majority of states that receive federal guardianship
assistance. As of 2015, the following 31 jurisdictions utilized a more
expansive definition that includes "fictive kin," many of which utilize
factors similar to the instant measure: Alaska, Arkansas, California,
Colorado, District of Columbia, Georgia, Hawaii, Kansas, Louisiana,
Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska,
New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont,
Washington, West Virginia and Wisconsin. Among states not including
"fictive kin," some nonetheless utilize a definition broader than that
used in New York; Illinois, for example, includes god-parents and step-
relatives and spouses of relatives and step-relatives, while Michigan
includes putative fathers.
Second, this measure would rectify an anomaly in section 458-a of the
Social Services Law, i.e., that continued KinGAP assistance under
current law is only available beyond the age of 18 if the Guardianship
Assistance Agreement did not commence until the child was already 16
years of age or older. This means that a child 14 or 15 (or younger),
who may want to go to college or participate in a vocational program
while living in the guardian's home, would be foreclosed from a perman-
ency option that may be the best, and often the only, option available.
Such children are faced with an untenable choice: to delay permanency
until they reach the age of 16 (thus costing the State and county
continued foster care assistance), to limit the assistance available
only until they age out at 18, or to sacrifice the kinship guardianship
permanency option altogether. The original justification for the age
limitation was that Federal reimbursement for extended KinGAP assistance
is only available for youth whose KinGAP agreement commenced on or after
their 16th birthdays, pursuant to 42 U.S. § 675(8)(B)(i)(III). However,
even if Federal reimbursement is foreclosed for a limited number of
youth, it would clearly be cost-effective to make the KinGAP permanency
option available to the youth in order to expedite permanency for them
and permit their exit from foster care. In fact, Bryan Samuels, former
Commissioner of the Administration on Children, Youth and Families of
the United States Department of Health and Human Services, the Federal
agency charged with oversight over State KinGAP programs, cautioned that
a state policy restricting KinGAP to children over a certain age "may
not serve an individual child's best interests." For these reasons, the
instant measure would eliminate the age restriction.
Significantly, each of the modifications to the KinGAP statute contained
in this measure is recommended in the New York City Administration for
Children's Services' Foster Care Strategic Blueprint Implementation
Status Report, dated June, 2016, at page 4. Over 300 foster children in
New York City were able to exit foster care via KinGAP in Fiscal Year
2016,** an increase from 119 in Fiscal Year 2013, but a significantly
larger number will be able to do so if this measure is enacted. Adding
needed flexibility to the KinGAP program will also make it more usable
for counties outside New York City, thus providing an important option
to expedite permanency for children in foster care throughout the State.
This measure, which would have no fiscal impact upon the State, shall
take effect 60 days after the U. S. Department of Health and Human
Services has approved a Title IV-E State Plan Amendment for federally
reimbursable expenditures.
2017 LEGISLATIVE HISTORY:
Senate 4833 (Sen. Avella) (ordered to 3rd Rdg., Cal. 1550)
Assembly 7554 (M. of A. Hevesi) (advanced to 3rd Rdg., Cal. 468)
*The statute neither defines kinship nor requires states to do so, as
states are free to define prospective guardians, for example, as in the
instant measure, that is, including individuals with a positive
relationship with the child, such as god-parents or friends. See "Sample
State Legislation Needed to Implement the Federal Kinship Guardianship
Assistance Option Under Title IV-E of the Social Security Act (Chil-
dren's Defense Fund., Jan. 26, 2010). **See Mayor's Management Report
187 (New York City Mayor's Office, Sept., 2016)
available at:
http://wwwl.nyc.gov/assets/operations/dovvnloads/pdf/mrar2016/2016_mm
r.pdf-.
STATE OF NEW YORK
________________________________________________________________________
7554--A
Cal. No. 468
2017-2018 Regular Sessions
IN ASSEMBLY
May 2, 2017
___________
Introduced by M. of A. HEVESI, JAFFEE, HARRIS, FAHY -- (at request of
the Office of Court Administration) -- read once and referred to the
Committee on Children and Families -- reported from committee,
advanced to a third reading, amended and ordered reprinted, retaining
its place on the order of third reading
AN ACT to amend the social services law, in relation to eligibility of
children for subsidized kinship guardianship assistance to expedite
permanency for foster children before the family court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 458-a of the social services law,
2 as added by section 4 of part F of chapter 58 of the laws of 2010, is
3 amended to read as follows:
4 3. "Prospective relative guardian" shall mean a person [or persons]
5 who [is related to the child through blood, marriage, or adoption who]
6 has been caring for the child as a fully certified or approved foster
7 parent for at least six consecutive months prior to applying for kinship
8 guardianship assistance payments and who:
9 (a) is related to the child through blood, marriage, or adoption; or
10 (b) is related to a half-sibling of the child through blood, marriage
11 or adoption and where such person or persons is or are also the prospec-
12 tive or appointed relative guardian or guardians of such half-sibling;
13 or
14 (c) is an adult with a positive relationship with the child, includ-
15 ing, but not limited to, a step-parent, godparent, neighbor or family
16 friend.
17 § 2. Paragraph (a) of subdivision 7 of section 458-b of the social
18 services law, as added by section 4 of part F of chapter 58 of the laws
19 of 2010, is amended to read as follows:
20 (a) Kinship guardianship assistance payments shall be made to the
21 relative guardian or guardians until the child's eighteenth birthday
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10178-02-7
A. 7554--A 2
1 or[, if the child had attained sixteen years of age before the agreement
2 became effective,] until the child attains twenty-one years of age
3 provided the child consented upon attaining the age of eighteen and is:
4 (i) completing secondary education or a program leading to an equivalent
5 credential; (ii) enrolled in an institution which provides post-secon-
6 dary or vocational education; (iii) employed for at least eighty hours
7 per month; (iv) participating in a program or activity designed to
8 promote, or remove barriers to, employment; or (v) incapable of any of
9 such activities due to a medical condition, which incapability is
10 supported by regularly updated information in the case plan of the
11 child.
12 § 3. This act shall take effect immediately; provided however that:
13 (a) the state title IV-E agency shall submit to the United States
14 Department of Health and Human Services, Administration for Children,
15 Youth and Families, an amendment to the state title IV-E state plan
16 regarding the provisions of this act;
17 (b) notwithstanding any other provision of law, this act shall not
18 take effect until sixty days following the date that the United States
19 Department of Health and Human Services, Administration for Children,
20 Youth and Families approves a title IV-E state plan amendment regarding
21 the provisions of this act that are eligible for title IV-E reimburse-
22 ment;
23 (c) the office of children and family services shall notify the legis-
24 lative bill drafting commission upon the occurrence of the approval of
25 the amended plan pursuant to subdivision (b) of this section in order
26 that the commission may maintain an accurate and timely effective data
27 base of the official text of the laws of the state of New York in furth-
28 erance of effectuating the provisions of section 44 of the legislative
29 law and section 70-b of the public officers law; and
30 (d) the addition, amendment or repeal of any rule or regulation neces-
31 sary for the implementation of the kinship guardianship assistance
32 program as authorized under this act on its effective date is authorized
33 to be made and completed on or before such effective date.
