In July 2010, the Coalition filed a lawsuit against the State of New York to compel the state to reimburse foster parents for the actual costs associated with children placed in their care; as these costs are described in the Child Welfare Act. This federal law requires reimbursement for the for the cost of providing food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, reasonable travel to the child’s home for visitation and reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.

On December 22, 2021, the Coalition and New York state reached a settlement!!!

Under the settlement, New York’s Office of Children and Family Services (OCFS) will, for the first time, determine foster care rates by applying a methodology that accounts for the costs that are delineated in the federal Child Welfare Act.

Families should see increases of up to 46% in the financial support provided to foster parents by New York State. 

Key provisions in the settlement include:

• An initial increase of more than 46% in the monthly reimbursement of expenses for children in foster care in the New York City area.
• An increase of 20%–40% in the monthly reimbursement of expenses for children in foster care in the rest of the state, depending on the child’s age.
• An increase of, on average, 25% in support for the care of children with special needs, and implementation of a new “extraordinary” rate for children who require full-time care, such as those with the most serious medical conditions.
• Annual adjustment of all rates to keep them in line with inflation.
• OCFS-proposed legislation mandating that the state rates are minimums that must be provided to foster parents.
• A meeting between OCFS and plaintiffs one year before the agreement expires to discuss continued use of the new rate-setting methodology.

Before the lawsuit, New York had a hodgepodge of flat rates that vary from county to county and are based on a formula that was developed in 1970s and has been incrementally and arbitrarily adjusted. These flat rates have no relationship to today’s actual cost of living or, even more importantly, the real cost of providing for children in foster care. To continue in this manner is unfair to foster families and to the children they care for and about.

In July 2010, the lawsuit  is filed by the Coalition is based on a similar process in California that was ultimately successful. We are fortunate in our case to be represented by Morrison & Foerster, a firm with offices in Manhattan, Washington D.C. and San Francisco, among other cities.

In July 2014, the United States District Court for the Eastern District of New York issued a decision and order dismissing the Coalition’s complaint. In this decision, they ruled that foster parents do not have the right to sue. The substance of the Coalition’s lawsuit, namely the fair reimbursement of foster parents in compliance with federal law, was not addressed by the court.

Morrison & Foerster, the law firm representing AFFCNY, filed a request for appeal of this ruling. The request was granted.

In June 2015, there was oral argument before the United States Court of Appeals for the Second Circuit in Manhattan. Specifically, the issue before the court was whether or not the Coalition, on behalf of foster parents in New York State has the right to sue the state for relief. Questions from the judges hearing oral argument focused on this issue, but also went beyond standing to question and probe about the content of the Coalition’s claim that the State does not pay rates that adequately reimburse foster parents for their expenses and the State’s response.

On April 19, 2019, the Court of Appeals—following Supreme Court and Second Circuit precedent—ruled in the Coalition’s favor to allow the merits of the lawsuit to be determined. The Court of Appeals also ruled that the Coalition is an appropriate organization to bring the claim on behalf of foster parents.

On August 16th, 2019, the Second Circuit upheld our victory—giving parents of children of foster care the right to enforce federal requirements under the Child Welfare Act.

On January 27, 2020, the U.S. Supreme Court declined to hear New York state’s appeal of a U.S. Court of Appeals for the Second Circuit ruling that the Child Welfare Act created a privately enforceable right for some foster parents to sue states for costs related to child care.

In the meantime, the court has issued another decision out of Connecticut that speaks to similar issues concerning whether or not private plaintiffs can sue to reinforce provisions of the Food Stamp Act – similar in that the Food Stamp Act, like the Child Welfare Act that authorizes foster care reimbursement, is a federal act that outlines benefits provided by states. The judges referenced this case during oral argument about the Coalition’s lawsuit. Their decision in Briggs v Bremby is therefore a positive development.

On December 22, 2021, the Coalition and New York state reached a settlement!!!