NY State Senate Bill 2009-S1272

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to children and families
Jan 28, 2009	referred to children and families

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2009-S1272 (ACTIVE) - Details

Current Committee:: Senate Children And Families
Law Section:: Social Services Law
Laws Affected:: Add §394, amd §17, Soc Serv L

2009-S1272 (ACTIVE) - Summary

Relates to the defense and indemnification of foster parents; provides that the office of children and family services shall provide for the legal defense of the foster parent with whom the child is or was placed in any civil action or proceeding, state or federal, brought by or on behalf of such present or former foster child, or by the parent or guardian of such foster child or former foster child for any claim for property damage or personal injury, arising out of any alleged act or omission which occurred or allegedly occurred while the foster parent was acting within the scope of his or her duties.

2009-S1272 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S1272

 TITLE OF BILL :
An act to amend the social services law, in relation to the defense
and indemnification of foster parents


 PURPOSE :
The purpose of this bill is to retain and attract foster parents by
providing legal defense and indemnification for liability incurred as
a consequence of providing services as a foster parent.

 SUMMARY OF PROVISIONS :
Section 1 adds a new section 394 to the social services law, to
require social service districts to defend foster parents when they
are sued by, or on behalf of, a present or former foster child or
their parent or guardian for injuries which occurred while the foster
parent was acting within his or her duties. A foster parent would be
entitled to his or her own counsel if the district determines that a
conflict of interest exists. In such instances reasonable attorney's
fees and expenses would be paid by the State.  The State would not be
required to pay for an injury or damage which resulted from gross
negligence, intentional wrongdoing or recklessness on the part of the
foster parent. Foster parents would be required to fully cooperate in
their defense, and apply for any insurance reimbursement to which they
are entitled. All payments would be audited and paid in the same

manner as other public charges.

Section 2 amends subdivision (d) of section 17 of the Social Services
Law, as amended by chapter 749 of the laws of 1989 by adding a report
on operation of the foster parent defense and indemnification programs
to the annual report submitted to the Governor and the Legislature.

 EXISTING LAW :
Currently, local social service districts are not required to defend
nor indemnify foster parents.

 JUSTIFICATION :
Nationwide there is a crisis in the recruitment and retention of
foster parents, leaving a greater number of children with no placement
alternatives to institutional living. Foster parents are a valuable
resource, providing an important service to the citizens of New York
State. Foster parents have been unable to obtain liability coverage
over and above homeowner's or renter's insurance for actions filed
against them by the foster child, the child's parents, or legal
guardian. Monthly payments made to foster parents are not sufficient
to cover the cost of obtaining extended coverage, therefore putting
their personal resources at risk.

The issue of liability insurance for foster parents has emerged
throughout the country. As of 1999, 25 states have responded to the
problem by either indemnifying their foster parents or purchasing
insurance coverage. These states include: Arizona, Colorado, Delaware,
Georgia, Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maryland,
Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey,
North Dakota, Oklahoma, South Carolina, Vermont, Washington, West
Virginia, Wisconsin, and Wyoming. There are currently two counties in
New York State who provide liability insurance to their foster
parents: Rensselaer and Suffolk counties.

 LEGISLATIVE HISTORY :
2007:  S.3157 - Died in Committee
2006:  S.1301 - Died in Committee
1990: S.821B - Passed Senate, 59-0
1989: S.821A - Passed Senate, 59-0

 FISCAL IMPLICATIONS :
To be determined.

 EFFECTIVE DATE :
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.

2009-S1272 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1272

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 28, 2009
                               ___________

Introduced  by  Sens.  MONTGOMERY, ADAMS, DIAZ, DUANE, HASSELL-THOMPSON,
  KRUEGER, SAMPSON, SCHNEIDERMAN, THOMPSON --  read  twice  and  ordered
  printed, and when printed to be committed to the Committee on Children
  and Families

AN  ACT to amend the social services law, in relation to the defense and
  indemnification of foster parents

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Title  1-A  of  article  6  of the social services law is
amended by adding a new section 394 to read as follows:
  S 394. DEFENSE AND INDEMNIFICATION OF FOSTER PARENTS. 1. (A)  WHERE  A
SOCIAL  SERVICES DISTRICT HAS, OR HAD, THE CARE, CUSTODY OR GUARDIANSHIP
OF A FOSTER CHILD, PURSUANT TO SECTION THREE HUNDRED EIGHTY-FOUR,  THREE
HUNDRED  EIGHTY-FOUR-A,  OR THREE HUNDRED EIGHTY-FOUR-B OF THIS ARTICLE,
OR ARTICLE THREE, SEVEN OR TEN OF THE FAMILY COURT ACT,  THE  OFFICE  OF
CHILDREN AND FAMILY SERVICES SHALL, UPON COMPLIANCE BY THE FOSTER PARENT
WITH  THE  PROVISIONS  OF SUBDIVISION THREE OF THIS SECTION, PROVIDE FOR
THE LEGAL DEFENSE OF THE FOSTER  PARENT  AS  DEFINED  IN  SECTION  THREE
HUNDRED  SEVENTY-ONE  OF  THIS  ARTICLE,  WITH  WHOM THE CHILD IS OR WAS
PLACED PURSUANT TO SECTION THREE HUNDRED SEVENTY-FOUR OF THIS ARTICLE IN
ANY CIVIL ACTION OR PROCEEDING, STATE  OR  FEDERAL,  BROUGHT  BY  OR  ON
BEHALF OF SUCH PRESENT OR FORMER FOSTER CHILD, OR BY THE PARENT OR GUAR-
DIAN  OF  SUCH  FOSTER  CHILD  OR FORMER FOSTER CHILD, FOR ANY CLAIM FOR
PROPERTY DAMAGE OR PERSONAL INJURY, ARISING OUT OF ANY  ALLEGED  ACT  OR
OMISSION  WHICH  OCCURRED  OR ALLEGEDLY OCCURRED WHILE THE FOSTER PARENT
WAS ACTING WITHIN THE SCOPE OF HIS OR HER DUTIES PURSUANT TO  AN  AGREE-
MENT  BETWEEN  THE  FOSTER  PARENT  AND  THE SOCIAL SERVICES DISTRICT OR
ANOTHER AUTHORIZED AGENCY.
  (B) THE FOSTER PARENT SHALL BE ENTITLED TO BE REPRESENTED  BY  PRIVATE
COUNSEL  OF HIS OR HER CHOICE IN ANY CIVIL ACTION OR PROCEEDING WHENEVER
THE CHIEF LEGAL OFFICER OF THE SOCIAL SERVICES DISTRICT OR OTHER COUNSEL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05559-01-9

S. 1272                             2

DESIGNATED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES OR  THE  SOCIAL
SERVICES  DISTRICT DETERMINES THAT A CONFLICT OF INTEREST EXISTS BETWEEN
THE SOCIAL SERVICES DISTRICT AND THE FOSTER PARENT, OR WHENEVER A COURT,
UPON APPROPRIATE MOTION OR OTHERWISE BY A SPECIAL PROCEEDING, DETERMINES
THAT  A  CONFLICT OF INTEREST EXISTS AND THAT THE FOSTER PARENT IS ENTI-
TLED TO BE REPRESENTED BY COUNSEL OF HIS OR HER CHOICE; PROVIDED, HOWEV-
ER, THAT THE CHIEF LEGAL OFFICER OR  OTHER  COUNSEL  DESIGNATED  BY  THE
OFFICE  OF  CHILDREN AND FAMILY SERVICES OR THE SOCIAL SERVICES DISTRICT
MAY REQUIRE, AS CONDITION TO PAYMENT OF THE FEES AND  EXPENSES  OF  SUCH
REPRESENTATION,  THAT MORE THAN ONE SUCH FOSTER PARENT BE REPRESENTED BY
THE SAME COUNSEL. ANY DISPUTE WITH RESPECT TO REPRESENTATION OF MULTIPLE
FOSTER PARENTS BY A SINGLE COUNSEL SHALL BE RESOLVED BY THE  COURT  UPON
MOTION OR BY WAY OF A SPECIAL PROCEEDING.
  (C) REASONABLE ATTORNEYS' FEES AND LITIGATION EXPENSE SHALL BE PAID BY
THE  OFFICE OF CHILDREN AND FAMILY SERVICES TO SUCH PRIVATE COUNSEL FROM
TIME TO TIME DURING THE PENDENCY OF THE CIVIL ACTION OR PROCEEDING  UPON
REQUEST  OF  THE COMMISSIONER OF SUCH DISTRICT. ANY DISPUTE WITH RESPECT
TO THE AMOUNT OF LITIGATION EXPENSES OR THE REASONABLENESS OF ATTORNEYS'
FEES SHALL BE RESOLVED BY THE COURT UPON MOTION OR BY WAY OF  A  SPECIAL
PROCEEDING.
  (D) WHERE THE FOSTER PARENT DELIVERS PROCESS AND A WRITTEN REQUEST FOR
A  DEFENSE TO A SOCIAL SERVICES DISTRICT UNDER SUBDIVISION THREE OF THIS
SECTION, THE SOCIAL SERVICES DISTRICT SHALL TAKE THE NECESSARY STEPS  ON
BEHALF OF THE FOSTER PARENT TO AVOID ENTRY OF A DEFAULT JUDGMENT PENDING
RESOLUTION OF ANY QUESTION PERTAINING TO THE OBLIGATION TO PROVIDE FOR A
DEFENSE.
  2.  (A)  WHERE A SOCIAL SERVICES DISTRICT WHICH HAS, OR HAD, THE CARE,
CUSTODY OR GUARDIANSHIP OF A FOSTER CHILD,  PURSUANT  TO  SECTION  THREE
HUNDRED  EIGHTY-FOUR,  THREE  HUNDRED  EIGHTY-FOUR-A,  OR  THREE HUNDRED
EIGHTY-FOUR-B OF THIS ARTICLE, OR ARTICLE THREE, SEVEN  OR  TEN  OF  THE
FAMILY  COURT  ACT,  THE  OFFICE  OF  CHILDREN AND FAMILY SERVICES SHALL
INDEMNIFY AND SAVE HARMLESS THE FOSTER PARENT OR PARENTS IN  THE  AMOUNT
OF  ANY  JUDGMENT  OBTAINED  AGAINST  THE FOSTER PARENTS AS SUCH TERM IS
DEFINED IN SECTION THREE HUNDRED SEVENTY-ONE OF THIS ARTICLE  WITH  WHOM
THE  CHILD  WAS PLACED PURSUANT TO SECTION THREE HUNDRED SEVENTY-FOUR OF
THIS ARTICLE, IN A STATE OR FEDERAL COURT,  OR  IN  THE  AMOUNT  OF  ANY
SETTLEMENT OF A CLAIM, BROUGHT BY OR ON BEHALF OF SUCH PRESENT OR FORMER
FOSTER  CHILD,  NOT TO EXCEED ONE HUNDRED THOUSAND DOLLARS PER HOUSEHOLD
FOR ONE OCCURRENCE AND NOT TO EXCEED THREE HUNDRED THOUSAND DOLLARS  PER
HOUSEHOLD IN ANY ONE CALENDAR YEAR, FOR ANY CLAIM FOR PROPERTY DAMAGE OR
PERSONAL  INJURY,  ARISING  OUT  OF  ANY  ALLEGED  ACT OR OMISSION WHICH
OCCURRED OR ALLEGEDLY OCCURRED WHILE THE FOSTER PARENT WAS ACTING WITHIN
THE SCOPE OF HIS OR HER DUTIES PURSUANT  TO  AN  AGREEMENT  BETWEEN  THE
FOSTER  PARENT  AND  THE  SOCIAL SERVICES DISTRICT OR ANOTHER AUTHORIZED
AGENCY.
  (B) THE DUTY TO INDEMNIFY AND SAVE HARMLESS PRESCRIBED BY THIS  SUBDI-
VISION  SHALL   NOT ARISE WHERE THE INJURY OR DAMAGE RESULTED FROM GROSS
NEGLIGENCE, INTENTIONAL WRONGDOING OR RECKLESSNESS ON THE  PART  OF  THE
FOSTER PARENT.
  (C) NOTHING IN THIS SUBDIVISION SHALL AUTHORIZE THE OFFICE OF CHILDREN
AND  FAMILY  SERVICES TO INDEMNIFY OR SAVE HARMLESS A FOSTER PARENT WITH
RESPECT TO PUNITIVE OR EXEMPLARY DAMAGES, FINES OR PENALTIES.
  (D) UPON ENTRY OF A FINAL JUDGMENT AGAINST THE FOSTER PARENT, OR  UPON
THE SETTLEMENT OF THE CLAIM, AND IF NOT INCONSISTENT WITH THE PROVISIONS
OF THIS SECTION, THE AMOUNT OF SUCH JUDGMENT OR SETTLEMENT SHALL BE PAID
BY  THE  OFFICE  OF CHILDREN AND FAMILY SERVICES.  UPON ENTRY OF A FINAL

S. 1272                             3

JUDGMENT AGAINST THE FOSTER PARENT, OR UPON THE SETTLEMENT OF THE CLAIM,
WHERE THE FOSTER PARENT IS NOT REPRESENTED BY THE CHIEF LEGAL OFFICER OF
THE SOCIAL SERVICES DISTRICT OR OTHER COUNSEL DESIGNATED BY  THE  OFFICE
OF  CHILDREN  AND  FAMILY  SERVICES OR THE SOCIAL SERVICES DISTRICT, THE
FOSTER PARENT SHALL  SERVE  A  COPY  OF  SUCH  JUDGMENT  OR  SETTLEMENT,
PERSONALLY OR BY CERTIFIED OR REGISTERED MAIL, WITHIN THIRTY DAYS OF THE
DATE  OF ENTRY OR SETTLEMENT, UPON THE COMMISSIONER OR CHIEF LEGAL OFFI-
CER OF THE SOCIAL SERVICES DISTRICT WHO SHALL FORWARD SUCH DOCUMENTATION
TO THE OFFICE OF CHILDREN AND FAMILY SERVICES.
  3. THE DUTY TO DEFEND OR INDEMNIFY AND  SAVE  HARMLESS  PRESCRIBED  BY
THIS  SECTION  SHALL  BE  CONDITIONED  UPON:  (A) DELIVERY BY THE FOSTER
PARENT TO THE COMMISSIONER OR CHIEF LEGAL OFFICER OF THE SOCIAL SERVICES
DISTRICT OF A WRITTEN REQUEST TO PROVIDE FOR HIS OR HER DEFENSE TOGETHER
WITH THE ORIGINAL OR A COPY OF ANY SUMMONS, COMPLAINT, PROCESS,  NOTICE,
DEMAND  OR  PLEADING WITHIN TEN DAYS AFTER HE OR SHE IS SERVED WITH SUCH
DOCUMENT, (B) THE FULL COOPERATION OF THE FOSTER PARENT IN  THE  DEFENSE
OF  SUCH  ACTION  OR  PROCEEDING,  AND  IN  THE DEFENSE OF ANY ACTION OR
PROCEEDING AGAINST THE SOCIAL SERVICES DISTRICT BASED UPON THE SAME  ACT
OR  OMISSION  UNLESS SUCH COOPERATION WOULD BE PREJUDICIAL TO THE INTER-
ESTS OF THE FOSTER PARENT IN ANY OTHER ACTION OR PROCEEDING, AND IN  THE
PROSECUTION  OF  ANY  APPEAL, AND (C) THE FULL COOPERATION OF THE FOSTER
PARENT  IN  APPLYING  FOR  AND  OBTAINING  ALL  INSURANCE  BENEFITS   OR
REIMBURSEMENT  AVAILABLE  UNDER ANY EXISTING POLICY REGARDING THE ACT OR
OMISSION.
  4. IN THE EVENT OF ANY PAYMENT UNDER THIS SECTION, THE OFFICE OF CHIL-
DREN AND FAMILY SERVICES SHALL BE SUBROGATED TO ALL  OF  THE  RIGHTS  OF
RECOVERY  THEREFOR  OF THE FOSTER PARENT AGAINST ANY PERSON OR ORGANIZA-
TION, AND THE FOSTER PARENT SHALL EXECUTE AND  DELIVER  INSTRUMENTS  AND
PAPERS AND DO WHATEVER ELSE IS NECESSARY TO SECURE SUCH RIGHTS.
  5.    ALL  PAYMENTS  MADE UNDER THE TERMS OF THIS SECTION, WHETHER FOR
INSURANCE OR OTHERWISE, SHALL BE DEEMED TO BE FOR A PUBLIC  PURPOSE  AND
SHALL BE AUDITED AND PAID IN THE SAME MANNER AS OTHER PUBLIC CHARGES.
  6.  THE  PROVISIONS  OF THIS SECTION SHALL NOT BE CONSTRUED TO IMPAIR,
ALTER, LIMIT OR MODIFY THE RIGHTS AND OBLIGATIONS OF ANY  INSURER  UNDER
ANY POLICY OF INSURANCE.
  7.  THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IN ANY CIVIL ACTION
OR PROCEEDING BROUGHT BY OR AT THE REQUEST OF A SOCIAL SERVICES DISTRICT
OR AUTHORIZED AGENCY AGAINST A FOSTER PARENT.
  S 2. Subdivision (d) of section 17 of  the  social  services  law,  as
amended  by  chapter  749  of  the  laws  of 1989, is amended to read as
follows:
  (d) submit an annual report to the governor and the legislature  prior
to  the fifteenth day of December of each year. Such annual report shall
include the following: the affairs of the department and the  status  of
welfare  programs  in the state with recommendations for the improvement
and development of welfare programs; a report on the  department's  fair
hearing  system,  as  required  by section twenty-two of this article; a
written evaluation report on the delivery of child welfare  services  in
the state, as required by subdivision five of section four hundred seven
of  this chapter; a report of the operations of the state central regis-
ter of child abuse and maltreatment and the various local child  protec-
tive  services,  as  required by section four hundred twenty-six of this
chapter; a report on the number and status and the findings of  investi-
gations  of  deaths  of children pursuant to subdivision five of section
twenty of this [chapter] ARTICLE; a report on the progress of the devel-
opment and operation of the child care review  system,  as  required  by

S. 1272                             4

subdivision  nine  of  section  four  hundred forty-two of this chapter;
commencing before December fifteenth, nineteen hundred  eighty-four  and
terminating  on  December  fifteenth,  nineteen  hundred  eighty-nine, a
progress  report  on  the  planning  and  implementation  of the teenage
services act as required by  the  provisions  of  section  four  hundred
nine-m  of  title  four-B OF ARTICLE SIX of this chapter; an analysis of
the information contained in the registry of  community  facilities,  as
required  by  paragraph  (b)  of subdivision two of section four hundred
sixty-three-a of this chapter; [and] a report on the  operation  of  the
child  support  enforcement  program, as required by chapter six hundred
eighty-five of the laws of nineteen hundred seventy-five; AND  A  REPORT
ON  THE  OPERATION  OF  THE  FOSTER  PARENT  DEFENSE AND INDEMNIFICATION
PROGRAMS;
  S 3. This act shall take effect on the first of January next  succeed-
ing  the  date  on  which  it shall have become a law; provided that the
amendments to title 1-A of article 6 of the social services law made  by
section  one  of  this act shall not affect the repeal of such title and
shall be deemed to be repealed therewith and shall only apply to acts or
omissions occurring after the effective  date  of  this  act;  provided,
however,  that  the  commissioner  of  the office of children and family
services shall, in consultation  with  the  social  services  districts,
promulgate  regulations prior to the effective date of this act, setting
forth the procedures for filing of claims,  including  time  limits  for
such filing and for response by the social services district, the deter-
mination  of  the  fair market value of damaged property, and period for
payment; and provided further, that such commissioner  shall,  prior  to
the  effective  date of this act, publicize his or her provisions to all
foster parents and to prospective foster parents in the state.

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Senate Bill S1272

Sponsored By

Archive: Last Bill Status - In Senate Committee Children And Families Committee

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co-Sponsors

2009-S1272 (ACTIVE) - Details

2009-S1272 (ACTIVE) - Summary

2009-S1272 (ACTIVE) - Sponsor Memo

2009-S1272 (ACTIVE) - Bill Text download pdf

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Sponsored By

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Actions

co-Sponsors

2009-S1272 (ACTIVE) - Details

2009-S1272 (ACTIVE) - Summary

2009-S1272 (ACTIVE) - Sponsor Memo

2009-S1272 (ACTIVE) - Bill Text download pdf

Comments