Foster Care : The Foster Care System

In New York State, the Office of Children and Family Services (OCFS) manages the federal and state foster care regulations. In each county, a county agency and its commissioner manage the foster care system. In New York City, the New York City Administration for Children's Services (ACS) manages foster care. Most of the medical and mental health care financing is through Medicaid.

All children remain under the legal custody of the county social services commissioner. Each child is assigned a caseworker and a court-appointed law guardian, who advocate for their best interests in placement, medical care, and permanency planning. This can include involvement in the reunification process (reuniting the child with biological parents and family), placement with an appropriate relative, or a final termination of parental rights. Many counties have a local Court Appointed Special Advocate (CASA) program which assigns a CASA worker to advocate for a child or sibling group in foster care or at risk of removal.

Each county has the option to place children in:

• Direct care: Managed by county agencies with foster parents or agency staff providing care. 
• Voluntary agencies: Nonprofits contracted to provide foster care services (e.g., Catholic Charities), especially common in NYC. 
• Therapeutic foster care: Specialized placements offering additional mental health support and training.

Regardless of the agency, all children remain in the legal custody of the commissioner of the local social services agency.

The History of Foster Care

The Adoptions and Safe Families Act (ASFA) is a federal law enacted in 1997 to promote safety, permanency, and well-being for children in foster care. While it applies nationwide, each state implements ASFA through its own statutes and regulations, which guide caseworkers, courts, and providers in practice. For more information, see National Council For Adoption Understanding the Adoption and Safe Families Act (ASFA).

The passage of this act dramatically changed the approach to foster care both nationally and statewide. Perhaps the most significant change for families involved with the foster care system was the new regulation that any child in foster care for any 15 months in a 22-month period must either be reunified with the biological parents or have termination of parental rights (TPR). For more information about TPR, see New York State Unified Court System Termination of Parental Rights. Depending upon one’s viewpoint, this change has led to what is sometimes viewed as a process for returning children to their parents too quickly or moving towards TPR too quickly. As a result, the population of children in out-of-home care or foster care has decreased significantly, from almost 47,000 in 2000 to less than 15,000 in 2021 (Kids Count Data Center Children in Foster Care in New York).

The other significant change from ASFA was a new focus on “reasonable efforts and safety requirements” for children in foster care. In other words, child welfare agencies would be held more accountable for proper health care for children in foster care. With rare exceptions, almost all children enter foster care due to neglect and/or abuse. Most of these children have been neglected in multiple domains, including health care. Prior to this regulation, children entering foster care suffered from unmet health care needs which were often not addressed in foster care.

This has resulted in a series of booklets and recommendations, beginning in 2001 with District II (NYS) of the American Academy of Pediatrics creating Fostering Health: Health Care for Children in Foster Care in New York State, A Resource Manual. The American Academy of Pediatrics has updated this resource several times, publishing the newest edition, American Academy of Pediatrics Council on Foster Care, Adoption & and Kinship Care 2025American Academy of Pediatrics Council on Foster Care, Adoption, and Kinship Care. Fostering Health: Health Care for Children and Adolescents in Foster Care, 3rd Edition. American Academy of Pediatrics. 2025. aap.org » , in 2025.  In addition, The New York State Office of Children and Family Services updated its New York State Office of Children and Family Services Working Together: Health Services for Children in Foster Care in 2024.

Consent and Legal Considerations

Children need written consent from parents or legal guardians for many common activities including sports participation, school activities and educational programs, recreational activities, and especially medical care. In almost all instances consent from foster parents is not legally acceptable. Either consent from the biological parent(s) or the Commissioner of Social Services and their designee are acceptable. One exception is Early Intervention. Only the biological parents or surrogate parents (foster parents) can consent for Early Intervention services. Per the Legal Aid Society, “The law prohibits foster care agencies and foster care caseworkers from signing consent for Early Intervention evaluations or services.” For more information, see The Legal Aid Society What You Need to Know About Early Intervention Services.

Consent for medical treatment of foster children is a complex issue governed by state laws. Consent laws vary by state and often by condition (e.g., pregnancy, mental health, etc.). Providers need to learn the local laws governing consent. For more information, see LEGAL ISSUES : Consent by Mature or Emancipated Minors.

There are a number of instances in which an adolescent under 18 years of age can provide consent. These situations are regardless of placement in foster care or remaining with their biological parents or legal guardian. They include:

• Pregnant teens
• Teens seeking care for reproductive health care, including birth control, emergency contraception, pregnancy and prenatal care, testing and treatment for sexually transmitted infections, including HIV
• Teens seeking care for certain mental health services
• Teens seeking care for certain alcohol and drug use services

For more information, see New York Civil Liberties Union Teenagers, healthcare and the law: A guide to the law on minors' rights in New York State, which includes a section on minors in foster care.

Minors who have provided consent for the above medical and mental health services cannot have information related to those services disclosed without their permission.

Medical providers need permission to evaluate children in foster care.

Consent laws vary by state and often by condition (e.g., pregnancy, mental health, etc.). Providers need to learn the local laws governing consent. For more information, see LEGAL ISSUES : Consent by Mature or Emancipated Minors.

In cases of emergency, medical providers can provide services without consent, as covered by the Good Samaritan laws.

In general, permission is required for all routine care. Specific consents include:

• Permission to provide medical care and release of medical information can be granted by the biological parent or the Commissioner of Social Services, but never by the foster care parent. Foster parents should not sign medical consent when taking their child in foster care to a health care professional.
• To avoid participating in medical care without legal consent, systems should be in place.
  • Within ten days of placement, the caseworker should obtain consent from the birth parent or previous legal guardian for all assessments and treatments that will be part of the initial evaluation, including routine medical and/or mental health assessments, immunizations, ongoing routine health care, and emergency medical or surgical care. If consent cannot be obtained, permission from the local Social Services Commissioner or designee is usually necessary. 
  • A teen parent in foster care may give consent for his or her own health care. A teen parent can give consent for his or her child whether or not the child is in foster care.
• Minors may consent to alcohol and substance abuse services if treatment is necessary and the parent/guardian has refused consent or if requiring consent of the parent could have a detrimental effect on the course of treatment.
• Biological parents provide consent for Early Intervention services, and if the parent agrees, foster parents may serve as surrogate parents in order to make decisions regarding the child's early intervention services.

The Medical Home Model for Foster Children

The responsibility for ensuring appropriate health care while in foster care lies with Social Services and voluntary agencies providing foster homes.

The American Academy of Pediatrics recommends that every child have a primary health care provider, who offers an ongoing relationship throughout the child's life until adulthood. This is called a medical home.

For children in foster care:

• A medical home and continuity of care are high priorities.
• Many children entering care have not received recommended pediatric care.
• Movements into foster care and to different homes while in care make this challenging. This includes:
  • Obtaining medical insurance, usually Medicaid
  • Identifying providers with expertise in health care for children in foster care
  • Assisting foster parents in obtaining all primary and specialty care
  • Maintaining proper documentation
• Barriers to continuity and the medical home model include:
  • Frequent placement changes
  • Medicaid complexities
  • Limited access to specialty care
  • Incomplete medical histories
  • Varying caregiver knowledge
• Communication among providers, caseworkers, foster parents, and biological families is crucial for continuity and quality care