Administrative Rulemaking Authority to Establish Host Family Home Preventive Child Welfare Services

Introduction

In Matter of Lawyers for Children et al. v. New York State Office of Children and Family Services et al. (2025 NYSlipOp 02115), decided April 10, 2025 by the Appellate Division, Third Department, the Court reviewed a challenge to regulations creating the “Host Family Home” program. Petitioners—legal organizations under contract to represent children in foster-care proceedings—argued that the new program effectively constituted a “shadow foster care” system unauthorized by the Legislature and lacking key statutory safeguards. Respondent OCFS maintained that its general rulemaking power under the Social Services Law and the use of the General Obligations Law mechanism for parental delegation of care provided ample authority.

Facts & Procedural History

Plaintiffs (Lawyers for Children et al.) brought a CPLR Article 78 petition in Rensselaer County Supreme Court (McNally, J.) to annul OCFS’s Host Family Home regulations (18 NYCRR pt. 444).
Those regulations establish a preventive service by which OCFS–designated “host family home agencies” recruit, train, vet and supervise volunteer host families to care for children when parents are temporarily unable to do so.
Parents executing a short‐term “designation of person in parental relation” under General Obligations Law title 15-A relinquish day-to-day care without giving up legal custody; placements are revocable at any time.
Supreme Court dismissed the petition, and petitioners appealed.

Summary of the Judgment

The Appellate Division affirmed. It held that OCFS’s rulemaking power under Social Services Law § 20(3)(d) and its authority to provide “preventive services” (Social Services Law article 6, title 4) and to designate child‐placement agencies (Social Services Law §§ 371, 374) encompass the Host Family Home program. The Court found no conflict with the statutory foster‐care scheme, since participation is voluntary, custody remains with the parent, and the program furthers the Legislature’s goal of averting unnecessary formal foster care. Applying the Boreali v. Axelrod separation‐of‐powers test, the Court concluded that OCFS filled interstices in the Legislature’s policy rather than rewriting or supplanting laws enacted by the Legislature.

Analysis

1. Precedents Cited

Matter of Juarez v. NYS Office of Victim Services (36 NY3d 485 [2021]) – Agencies may adopt regulations “consistent with the statutory language and underlying purpose.”
State Div. of Human Rights v. Genesee Hosp. (50 NY2d 113 [1980]) – Broad congressional delegation allows filling legislative gaps when consistent with primary standards.
Matter of Consol. Edison Co. v. Dept. of Environmental Conservation (71 NY2d 186 [1988]) – Administrative rules must not conflict with statutory text or purpose.
Boreali v. Axelrod (71 NY2d 1 [1987]) and progeny – The four-part separation-of-powers test for agency policymaking.
Greater N.Y. Taxi Assn. v. NYC TLC (25 NY3d 600 [2015]) – Refinement of the Boreali analysis.

2. Legal Reasoning

The Court’s reasoning proceeded along two tracks:

Statutory Authority and Purpose
– Enabling Statute: Social Services Law § 20(3)(d) empowers OCFS to “establish rules, regulations and policies.”
– Preventive Services: Defined to “avert[] an impairment or disruption of a family which will or could result in placement of a child in foster care” (Social Services Law § 409). – Placement Powers: Social Services Law § 371(10) allows OCFS to designate “authorized agencies” to “care for, place out or board out children.” – Parental Delegation: General Obligations Law title 15-A permits up to 12-month delegation of parental decision‐making to caregivers. The regulations bring these statutory provisions together to create a short-term support regime in which parents—rather than government or court—choose the host family, retain ultimate custody, and may revoke the arrangement at will.
Separation of Powers (Boreali Test)
(a) Policy vs. Implementation: The Legislature’s primary policy is to avert foster‐care placements via preventive services. OCFS did not supplant this policy but implemented it. (b) Filling Interstices: OCFS filled gaps by specifying how host families are recruited, trained, supervised and how parental designations operate, rather than creating a comprehensive new code. (c) Legislative Gridlock: No persuasive evidence that the Legislature explicitly debated or rejected such a program. (d) Agency Expertise: OCFS relied on empirical data and models from other states and engaged in extensive notice‐and‐comment rulemaking.

3. Impact on Future Cases and the Law

Affirms agencies’ broad authority to develop preventive child welfare programs beyond traditional foster care, so long as consistent with legislative purpose.
Validates the use of General Obligations Law title 15-A designations as a mechanism for temporary childcare solutions in regulatory settings.
Provides a roadmap for other jurisdictions seeking to implement host‐family models via administrative rulemaking.
Limits separation-of-powers challenges by showing that filling “interstices” and implementing policy is permissible even when details are unprecedented.

Complex Concepts Simplified

Preventive Services: Supportive interventions aimed at helping families stay together and avoid formal foster care.
Rulemaking vs. Legislation: Agencies may create detailed regulations within broad legislative directives; they may not enact brand-new public policies contrary to statutory goals.
Boreali Test: A four-factor analysis (policy vs. implementation; filling interstices vs. clean slate; legislative action or inaction; agency expertise) to decide if rulemaking intrudes on legislative lawmaking.
Designation of Person in Parental Relation: A statutory form by which a parent temporarily entrusts another adult with healthcare, education, and everyday decisions for up to 12 months without surrendering legal custody.

Conclusion

Matter of Lawyers for Children v. OCFS confirms that where the Legislature has articulated a broad goal—here, averting foster‐care removals through preventive services—an administrative agency may craft novel, detailed programs to realize that goal, provided they adhere to the statute’s text and purpose. The Host Family Home regulations, by leveraging parental designations and OCFS oversight, offer a state-sponsored alternative to voluntary foster placements without undermining legislative safeguards. This decision both clarifies and strengthens the scope of administrative rulemaking in the child welfare domain, emphasizing respect for legislative primacy while recognizing the necessity of flexible, community‐based responses to family crises.