Interplay of SSL §409‑h and FCA §1055‑c Clarified: Courts Must Prove Actual Unavailability of Less Restrictive Placements Before Approving QRTPs

Introduction

This commentary analyzes the Appellate Division, Second Department’s opinion in Matter of Joseph D.L. (Keisha T.M.), 2025 NY Slip Op 04178 (July 16, 2025), a case of first impression in New York addressing what a court must consider before approving a child’s placement in a Qualified Residential Treatment Program (QRTP) under New York’s codification of the federal Family First Prevention Services Act (FFPSA).

The case concerns a child born in 2016, diagnosed with autism spectrum disorder, who had been in foster family settings since 2019 and was freed for adoption in 2022. After a non-serious incident (a small bump on the forehead) in January 2024, the foster agency (SCO Family of Services) removed the child from a foster home and placed him in a QRTP specializing in developmental disabilities. The child, through counsel, moved to disapprove the QRTP placement and to compel a family-based placement. The New York City Administration for Children’s Services (ACS) sought court approval for the QRTP under Family Court Act (FCA) §1055‑c. The Family Court approved the QRTP; the child appealed.

At the heart of the appeal were two questions: (1) How should courts apply the FFPSA framework—particularly the statutory requirement that QRTPs be used only when truly necessary and least restrictive? and (2) Do courts consider the “availability” of family-based placements—despite a statutory clause barring the qualified assessor from relying on a shortage of foster homes?

Summary of the Judgment

The Second Department reversed the Family Court’s order, denied ACS’s motion to approve the QRTP, granted the child’s motion to disapprove the QRTP, and remitted the matter for prompt proceedings under FCA §1055‑c(3) to arrange a family-based placement.

Key holdings:

Issue of first impression: The court clarified the factors and statutory interplay governing approval of QRTP placements under New York law post‑FFPSA.
Statutory interplay: Although Social Services Law (SSL) §409‑h(1)(c) prohibits the qualified individual from relying on “a shortage or lack of foster family homes” to conclude that a child’s needs cannot be met in a foster home, FCA §1055‑c(2)(c)(i)(B) expressly requires the court—when asked to approve a QRTP despite a non‑recommendation—to determine whether “there is not an alternative setting available” that can meet the child’s needs in a less restrictive environment. In short, the assessor may not rely on shortage, but the court must address actual availability.
Record sufficiency: The Family Court’s approval was unsupported by the record. Conclusory testimony that SCO lacked suitable foster homes, coupled with unexplained delays in convening a “step‑up” conference to access therapeutic or developmental‑disability foster homes (including through other agencies), did not prove that no alternative less restrictive placement was available.
Disposition: Because the statutory prerequisite in FCA §1055‑c(2)(c)(i)(B) (“no alternative setting available”) was not met, the appellate court did not reach the other two required findings—necessity and best interests—and ordered disapproval of the QRTP placement.

Detailed Analysis

Precedents and Authorities Cited

FFPSA statutory framework: 42 USC §§ 672, 675a (federal funding hinges on limiting congregate care to the most appropriate, least restrictive settings subject to ongoing judicial review).
Legislative history: HR Rep 114‑628, 114th Cong, 2d Sess. The report underscores that while congregate care has a role, it should be short‑term and exceptional, because children—especially young children—are best served in family settings.
New York enactments: L 2021, ch 56, §1, part L; SSL §409‑h (qualified individual assessment within 30 days; “shortage or lack” clause limits the assessor), FCA §1055‑c (judicial review within 60 days; specific written findings required to approve QRTP over a non‑recommendation).
Matter of Malachi B. (Administration for Children’s Servs.), 228 AD3d 570, 571: Cited for the FFPSA’s purpose—funneling children to family placements and restricting congregate care.
Matter of Felpie R. [Iris C.], 76 Misc 3d 373, 376 (Fam Ct, Bronx County); Matter of Trevon G. [Natova G.], 77 Misc 3d 1211[A], 2022 NY Slip Op 51188[U] (Fam Ct, Bronx County): Cited consistently with the principle that QRTP approvals require robust, specific findings supported by the record and should be narrowly justified.

How these shaped the decision: The FFPSA authorities and the cited cases frame QRTPs as a limited, last‑resort measure. The court’s reading of New York’s statutory scheme aligns with federal intent: rigorous judicial scrutiny, preference for family‑based settings, and robust factual showings before any court validates a congregate care placement.

Legal Reasoning

The court’s analysis proceeds in three steps:

Statutory prerequisites when the qualified individual does not recommend a QRTP:
- SSL §409‑h mandates a qualified individual’s assessment identifying the least restrictive appropriate setting; if the assessor finds QRTP inappropriate, the case proceeds to judicial review.
- FCA §1055‑c(2)(c) then allows a court to approve QRTP placement only if it makes three express, written findings with specific reasons:
  1. Circumstances necessitate continued QRTP placement (FCA §1055‑c[2][c][i][A]);
  2. No alternative setting is available that can meet the child’s needs in a less restrictive environment (FCA §1055‑c[2][c][i][B]); and
  3. Continued QRTP placement is in the child’s best interest (FCA §1055‑c[2][c][i][C]).
Interplay between SSL §409‑h and FCA §1055‑c—who may consider “availability”:
- SSL §409‑h(1)(c) restricts the assessor: a “shortage or lack of foster family homes” cannot be a reason to say a child’s needs cannot be met in a foster home.
- But FCA §1055‑c(2)(c)(i)(B) requires the court to determine whether “there is not an alternative setting available” that can meet the child’s needs in a less restrictive environment. Therefore, the court does consider availability—distinct from the assessor’s barred reliance on general shortages.
Application to the record—insufficiency of proof that no alternative was available:
- The qualified individual recommended against QRTP and identified family‑based options (specialized developmental‑disability or therapeutic foster homes) as appropriate and least restrictive.
- SCO’s witness conceded a QRTP was not the least restrictive setting for this child.
- The agency’s justification for QRTP hinged on its own lack of available homes and an unheld “step‑up” conference necessary to access therapeutic/specialized homes, including via other agencies. The witness did not explain why, in two months of QRTP placement, the step‑up conference had not occurred.
- The child’s multi‑year history of having his needs met in foster family homes (2019–January 2024) undermined the claim that no suitable family placement was available.
- Conclusion: Conclusory assertions and internal process delays did not satisfy FCA §1055‑c(2)(c)(i)(B). With that prong unmet, approval was legally untenable; the court declined to reach the remaining two prongs.

What This Decision Establishes (Core Principles)

When a qualified individual recommends against QRTP, a court may approve QRTP only with specific, evidence‑backed findings on necessity, unavailability of less restrictive alternatives, and best interests—each independently required.
The “shortage or lack” limitation in SSL §409‑h applies to the assessor, not the court. Conversely, FCA §1055‑c obliges the court to address actual availability of less restrictive placements.
“Availability” requires more than an agency’s internal assertion that it has no in‑house home. The record must demonstrate diligent, timely efforts across the continuum of care (including inter‑agency options) and a concrete showing that no family‑based setting could meet the child’s needs.
Past successful family placements carry probative weight against a claim of unavailability.
If the “no alternative setting available” finding fails, the court should disapprove QRTP and proceed under FCA §1055‑c(3) to schedule return and direct appropriate family‑based arrangements expeditiously.

Impact and Practical Implications

This ruling will shape New York QRTP litigation and practice in several ways:

Higher evidentiary burden for agencies: Agencies must compile a detailed, documented record of their search for family‑based placements, including:
- Efforts within and beyond the primary agency (cross‑agency referrals, therapeutic/specialized programs);
- Time‑stamped actions (e.g., scheduling and outcomes of “step‑up” meetings);
- Specific reasons why each explored family‑based setting cannot meet the child’s needs.
Judicial findings must be specific and tethered to evidence: Generic statements about scarcity or internal delays are insufficient. Written orders must state particularized reasons under FCA §1055‑c(2)(c)(i)–(ii).
Acceleration toward family placements: The opinion reinforces FFPSA’s family‑first orientation, discouraging QRTP defaulting and promoting expedited movement to family‑based homes compatible with permanency goals (here, adoption).
System‑wide lens on “availability”: Although the opinion does not use the term “system‑wide,” it implicitly requires looking beyond a single provider’s roster, especially where mechanisms exist to access other agencies (e.g., via step‑up conferences).
Litigation strategy for child’s counsel: Effective cross‑examination on agency diligence, timelines, and alternatives can be outcome‑determinative where QRTP approval hinges on §1055‑c(2)(c)(i)(B).
Case management by Family Courts: If QRTP is disapproved, courts must set return schedules and direct concrete arrangements under FCA §1055‑c(3), emphasizing urgency.

Complex Concepts Simplified

Qualified Residential Treatment Program (QRTP): A specialized, congregate care setting intended only for children whose needs cannot be met safely and effectively in a family home, and only for as long as necessary. It is more restrictive than foster family care.
Family First Prevention Services Act (FFPSA): Federal law reorienting child welfare funding and practice to prioritize placement in family settings, limiting reimbursement for congregate care unless strictly justified and judicially monitored.
Qualified Individual (QI) Assessment (SSL §409‑h): An independent assessment completed within 30 days of QRTP placement to determine the least restrictive, most appropriate setting consistent with the child’s goals. The QI cannot rely on a general shortage of foster homes to recommend QRTP.
Least Restrictive Environment: The setting that most closely approximates normal family life while still meeting the child’s needs. In child welfare (as in other fields), the principle favors home‑like settings over institutional ones.
Permanency Plan/Goal: The child’s long‑term objective, such as reunification or adoption. Placements must align with and facilitate this plan. For a child freed for adoption, family‑based care typically promotes permanency better than congregate care.
“Step‑Up” Conference: A procedural meeting used here to access specialized or therapeutic foster homes, potentially across agencies. Delays in convening such a conference undermine claims that no alternatives are available.

Precedents Explained in Context

Matter of Malachi B., 228 AD3d 570, 571: Emphasizes FFPSA’s core purpose—more children in family settings, with congregate care limited to cases demonstrably requiring it. The Second Department invoked this to frame QRTP use as exceptional and rigorously reviewed.
Matter of Felpie R., 76 Misc 3d 373, 376, and Matter of Trevon G., 77 Misc 3d 1211[A]: Trial‑level decisions cited to reinforce that courts must make specific, evidence‑based findings before approving QRTP and that the burden of justification lies with the proponent of congregate care.

Application to the Facts

The QI found a QRTP inappropriate and identified family‑based alternatives matching the child’s needs and goals.
SCO’s witness acknowledged QRTP was not the least restrictive option and that family‑based options exist (developmental‑disability or therapeutic foster homes), but cited the lack of a step‑up conference as the reason no alternative was secured.
Given that the child had lived successfully in family homes for years and was making developmental gains, the record did not demonstrate true unavailability of an alternative setting capable of meeting his needs.
The Family Court’s reliance on SCO’s in‑house shortage, without proof of diligent, timely, inter‑agency efforts, failed the statutory requirement in FCA §1055‑c(2)(c)(i)(B).

Practice Guidance and Checklists

For Agencies (ACS/Provider Agencies)

Document every effort to secure family‑based placements, including:
- Internal searches, outreach to specialized and therapeutic foster programs, and cross‑agency referrals;
- Dates and outcomes of step‑up conferences; reasons for any delay; and interim services used to bridge to family care;
- Specific, child‑focused reasons any proposed family‑based option could not meet the child’s needs.
Align placement with permanency goals; for children freed for adoption, prioritize adoptive‑track family settings.
Avoid relying on general scarcity; courts will require concrete, verifiable proof of unavailability.

For Children’s Attorneys

Scrutinize agency diligence: timelines, inter‑agency outreach, and any gaps (e.g., unheld step‑up meetings).
Leverage the child’s history in family settings and specialized program recommendations to rebut claims of unavailability.
Press for FCA §1055‑c(3) relief (return schedules and directives) upon QRTP disapproval.

For Family Courts

Apply the three prongs of FCA §1055‑c(2)(c)(i) strictly and sequentially; specify findings with particular reasons in writing.
Demand evidence of system‑wide efforts, not just a single provider’s internal status.
When disapproving QRTP, promptly set a return schedule and direct alternative arrangements under FCA §1055‑c(3).

Open Questions and Future Litigation

Scope of “availability”: While this decision implies a broad, cross‑agency inquiry, future cases may refine how far courts expect agencies to reach (e.g., statewide or regional searches, timelines, and standards for diligence).
Necessity and best interests prongs: This opinion did not reach FCA §1055‑c(2)(c)(i)(A) and (C). Subsequent decisions may elaborate metrics for “circumstances [that] necessitate” QRTP and how best interests analysis balances clinical needs, permanency timelines, and service availability.

Conclusion

Matter of Joseph D.L. sets an important precedent: it harmonizes SSL §409‑h and FCA §1055‑c by distinguishing the assessor’s prohibition on relying on foster home shortages from the court’s obligation to evaluate actual availability of less restrictive placements before approving a QRTP over a qualified individual’s contrary recommendation. The decision raises the evidentiary bar—agencies must prove, with specific and timely documentation, that no family‑based setting can meet the child’s needs, and courts must make detailed, record‑supported findings. Where that showing is not made, QRTP approval fails, and courts must swiftly move the child back to appropriate family care under FCA §1055‑c(3).

In the broader legal context, the opinion operationalizes FFPSA’s family‑first vision within New York’s statutory scheme, ensuring that congregate care remains truly exceptional, rigorously justified, and tightly aligned with each child’s needs and permanency goals.