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December 8, 1997
Bill Analysis of P.L. 105-89
Adoption and Safe Families Act of 1997
TABLE OF CONTENTS
Legislative History
Adoption and Safe Families Act of 1997
NCSL Contacts for Further Information
Legislative History of P.L. 105-89
The Adoption and Safe Families Act of 1997
Prior to adjourning for the year, the U.S. Congress passed a final conference agreement on child welfare and adoption legislation. H.R. 867/H. Res. 327 was overwhelmingly agreed to in the House of Representatives by a vote of 406-7 and by unanimous consent in the Senate. The Adoption and Safe Families Act was signed into law by the President on November 19, 1997 as Public Law 105-89. The final legislation was the cumulative result of numerous proposals and many months of negotiations in the House and Senate. (The Administration had also weighed in with the President's Adoption 2002 proposal.)
The Senate introduced the Safe Adoptions and Family Environments Act (S. 511-"S.A.F.E.") Act in March, which eventually stalled due to a lack of consensus. In April, the House passed the Adoption Promotion Act of 1997 (H.R. 867) sponsored by Representatives Dave Camp (MI) and Barbara B. Kennelly (CT). The original sponsors of S. 511, Senators John H. Chafee (RI) and John D. Rockefeller (WV) then formed a bipartisan working group of Senators which introduced a second Senate bill in September, the Promotion of Adoption, Safety, and Support for Abused and Neglected Children (S. 1195--"P.A.S.S."). Several controversial provisions again stalled the Senate bill, particularly a provision to use state food stamp and Medicaid administrative funds to finance its provisions. In a last attempt to resuscitate child welfare and adoption legislation prior to adjournment, the House and Senate negotiated an agreement and passed H.R. 867/H. Res. 327, the Adoption and Safe Families Act of 1997.
This new law will assist state efforts to balance family preservation and reunification with the health and safety of a child. However, the legislation contains significant mandates in addition to fiscal incentives for states. Many states will need legislation to conform current state adoption and child welfare statutes to the new federal law. Key provisions of the law include:
- a clarification of "reasonable efforts," including a provision that reasonable efforts to reunify a child with their birth parent(s) are not required if a court has determined that there are aggravated circumstances;
- a requirement that states initiate termination proceedings for all children who have been in foster care for 15 out of the most recent 22 months;
- the reauthorization and expansion of the Family Preservation and Support Services program;
- adoption incentive payments to states that increase the number of adoptions of children in foster care as compared with a base year--$4,000 per child plus an additional $2,000 per special needs adoption;
- a requirement that states provide health insurance coverage for all special needs children in subsidized adoptions, regardless of whether they are Title IV-E adoptions;
- a requirement that a permanency planning hearing be held at 12 months after a child enters foster care, rather than 18 months as in current statute; and
- a requirement that states have procedures for criminal records checks for prospective foster or adoptive parents before a child eligible for federal subsidies is placed with the prospective parents. States can opt out of this provision through state law enacted by the legislature or through written notification of the Governor to the Secretary of HHS.
Adoption and Safe Families Act of 1997
(P.L. 105-89)
This analysis describes the major provisions of the Adoption and Safe Families Act of 1997 and its impact on states. Wherever possible, fiscal penalties for state noncompliance are noted. However, federal regulations will be promulgated by the United States Department of Health and Human Services to further clarify and interpret the law. Section numbers referencing the public law citation are noted.
Defines and Clarifies "Reasonable Efforts" in Family Reunification (Section 101)
- Clarifies that a child's health and safety is paramount in determining reasonable efforts to reunify.
- Reasonable efforts must be made to preserve and reunify families prior to the placement of a child in foster care (to prevent or eliminate the need for removing the child from their home or to make it possible for a child to return home safely).
- Reasonable efforts are not required if a court has determined that there are aggravated circumstances. Aggravated circumstances must be defined in state law. The federal legislation provides an illustrative list which includes abandonment, torture, chronic abuse and sexual abuse.
- Reasonable efforts are not required if the parent has murdered or committed voluntary manslaughter of another sibling (of the child), has aided, abetted, attempted, conspired or solicited to commit such a murder or voluntary manslaughter, or if the parent has committed felony assault resulting in serious bodily injury to the child or another sibling. These provisions are already mandated by CAPTA, the Child Abuse Prevention and Treatment Act of 1996 (P.L. 104-235).
- Reasonable efforts are not required if the parental rights of the parent to a sibling have been involuntarily terminated.
- Does not preclude state courts from exercising their discretion to protect the health and safety of children in individual cases, including cases other than those described above.
- This provision is a state plan requirement; states which do not have an approved state plan under this part could be found by HHS to be out of compliance and potentially lose federal funding.
New "Reasonable Efforts" Requirement to Move Children Towards Adoption or Other Permanent Homes (Sections 101, 107)
- If continuing reasonable efforts to reunify is inconsistent with the permanency plan for the child, reasonable efforts to place the child in a timely manner in a permanent placement according to the permanency plan must be made.
- If reasonable efforts to reunify are determined by a court to be unnecessary, a permanency hearing must be held within 30 days after the court's determination.
- Reasonable efforts to place a child for adoption or with a legal guardian may be made concurrently with reasonable efforts to reunify.
- Defines legal guardianship as a judicially created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person and decisionmaking. A child's "legal guardian" refers to the caretaker in such a relationship. The term "self-sustaining" is undefined and may be subsequently defined in regulations.
- States must document the steps taken to find an adoptive family or other permanent living arrangement for a child, to place the child with an adoptive family or other permanent living arrangement (including relative care or legal guardianship), and to finalize the adoption or legal guardianship. This must include child specific recruitment efforts, such as the use of state, regional and national adoption exchanges.
Permanency Hearings (Sections 101, 302)
- Requires a permanency hearing at 12 months after a child enters foster care, rather than 18 months as in the current statute.
- Clarifies that the permanency plan for a child include whether and when the child will be returned to the parent or placed for adoption.
- If reasonable efforts to reunify are determined by a court to be unnecessary, a permanency hearing must be held within 30 days after the court's determination.
Termination of Parental Rights (Section 103)
Requires states to file a petition to terminate parental rights in the following circumstances:
- a child (of any age) has been in foster care for 15 of the most recent 22 months;
- if a court determines the child to be an abandoned infant;
- if the court determines that the parent has committed murder or voluntary manslaughter of another sibling of the child or has aided, abetted, attempted, conspired or solicited to commit such murder or voluntary manslaughter;
- if the court determines that the parent has committed a felony assault that has resulted in serious bodily injury to the child or a sibling.
This is not a requirement that states terminate parental rights in these circumstances, but states must initiate termination proceedings by filing a petition. This provision is a state plan requirement; states which do not have an approved state plan under this part could be found by HHS to be out of compliance and potentially lose federal funding.
States are not required to file a petition to terminate in the following situations:
- at state option, the child is being cared for by a relative;
- the state agency has documented a compelling reason why filing a termination petition would not be in the best interest of the child; or
- the state has not provided services consistent with the case plan that the state deems necessary for the safe return of the child to their home.
This provision will impact many states' current termination statutes. Additionally, if a termination petition has been filed by another party, the state must seek to join the petition. Concurrent with the filing of a termination petition, the state must identify, recruit, process and approve a qualified family for adoption.
- For determining the length of time that a child has been in foster care, the entry date is the earlier of the date of the first judicial finding that the child has been subjected to abuse or neglect or 60 days after the child has been removed from the home.
- For those children who enter care after November 19, 1997, a petition must be filed when a child is in care for 15 months or, if action cannot be taken because of the need for state legislation, within 3 months after the end of the first regular session of the legislature that begins after November 19, 1997.
- For children already in foster care on November 19, 1997, states can phase in the filing of termination petitions. At least 1/3 of children already in care on November 19, 1997 must have petitions filed within 6 months after the first regular session of the legislature (giving priority to children for whom the permanency plan is adoption and children who have been in foster care the longest). At least 2/3 of the children already in care on November 19, 1997 must have petitions filed within 12 months and all such children must have petitions filed within 18 months.
Adoption Across State and County Jurisdictions (Section 202)
- States are required to develop plans to effectively utilize cross-jurisdictional resources to facilitate timely adoptive or permanent placements.
- States receiving federal funds may not deny or delay the placement of a child for adoption when an approved family is available outside the jurisdiction responsible for handling the child's case. There is no definition of an "approved" family and this may need to be clarified in regulations.
- The state must grant the opportunity for a fair hearing to any individual who alleges denial of adoption approval as a result of residing outside the jurisdiction responsible for placing the child. States who deny a request for such a fair hearing or do not act with reasonable promptness will lose federal funds. An additional question to be examined during the regulatory process is the definition of an "individual."
- The Comptroller General will conduct a study of interjurisdictional adoption issues and a report to Congress within one year on the results of the study and recommendations on how to improve procedures to facilitate the interjurisdictional adoption of children.
- This is a new state plan requirement; the failure to develop such plans or grant a fair hearing could result in the loss of federal funds.
State Requirement to Provide Health Insurance Coverage for Children with Special Needs (Section 306)
- As part of their state IV-E plan, states are required to provide health insurance coverage for children with special needs (determining factors include age, race, emotional or medical disability, or sibling group status) for whom the state has an adoption assistance agreement with the adoptive parent(s) and who the state has determined cannot be placed for adoption without medical assistance.
- The state may choose to comply with this provision by covering the child under Medicaid.
- This coverage could also be provided through one or more state medical assistance programs, but the state must ensure that the medical benefits provided (including mental health benefits) are equivalent to those provided under Medicaid.
- If a state chooses to provide medical coverage through a state medical assistance program other than Medicaid, and a state exceeds its funding for services under the alternate program, a child would be deemed to be IV-E eligible for purposes of Medicaid.
- In determining cost-sharing requirements, the state must take into consideration the circumstances of the adopting parent(s) and the needs of the child.
- This is a state plan requirement. If a state chooses not to comply with this provision, they could be found out of compliance and lose federal IV-E funding. The state would also be ineligible for the adoption bonuses provided under this law.
Continuing Eligibility for Adoption Assistance Payments for Special Needs Children Whose Initial Adoption is Dissolved (Section 307)
Any special needs child who had previously been eligible for federal adoption assistance payments, and who again becomes available for adoption due to a dissolution of the original adoption or because the child's adoptive parents have died, remains eligible for the assistance as if the prior adoption had never occurred. This provision only applies to children adopted on or after October 1, 1997.
Adoption Incentive Payments (Section 201)
- The Secretary of HHS is authorized to make incentive payments to states in FY 1998-2002 which increase the number of adoptions of children in foster care as compared to the average number of adoptions in FY 1995-1997 with respect to FY 1998. For subsequent fiscal years, the base will be the greatest number of adoptions in any fiscal year, beginning with FY 1997 and ending with the fiscal year preceding the "subsequent" fiscal year. (Based on AFCARS--Adoption and Foster Care Analysis and Reporting System--data; alternative data sources may be used by the Secretary for FY 1995-1997.) Bonus is $4,000 per child plus an additional $2,000 for each special needs adoption ($20 million maximum allocation for each fiscal year).
- States which do not provide health coverage to children with special needs, and for whom there is an adoption assistance agreement between the state and the adoptive parents, in FY 2001 and 2002 are not eligible for adoption bonuses.
- If the total amount of adoption bonus payments in any fiscal year exceeds the annual appropriation for the incentive payments, the bonus will be calculated on a percentage of the incentive otherwise payable for the fiscal year.
- Bonus payments in any given fiscal year remain available to a state for two years.
- States are required to reinvest incentive bonuses back into IV-B or IV-E programs.
- Bonuses cannot count as a state expenditure for purposes of federal matching payments.
State Quality Standards for Out-of-Home Care (Section 308)
As part of a state IV-E plan, states are required to develop and implement standards to ensure that children in foster care placements in public or private agencies are provided quality services that protect the safety and health of the children.
This is a state plan requirement. If a state chooses not to comply with this provision, they could be found out of compliance by HHS and potentially lose federal IV-E funding.
Substance Abuse and Child Welfare (Section 405)
Requires the Secretary of HHS to prepare and submit a report to the House Ways and Means Committee and the Senate Finance Committee within one year on the extent and scope of substance abuse in the child welfare population, the types of services provided to this population and their outcome. The report will be based on information from the Substance Abuse and Mental Health Services Administration and the Administration for Children and Families at HHS. The report will include recommendations for legislation to improve coordination of services to this population. There are no new requirements on states.
Data Reporting (Sections 201, 203, 402)
- Many new federal data reporting requirements.
- States are required to report AFCARS data to be eligible for adoption incentive payments.
- Authorizes the Secretary of HHS to modify the data requirements of AFCARS to meet the needs of the legislation.
- Potential new outcome measures which will be used to assess state child welfare programs and rate state performance (see "State Report Cards").
Criminal Records Checks (Section 106)
- States are required to provide, as part of their Title IV-E plan, procedures for criminal records checks for prospective foster or adoptive parents before a child eligible for federal subsidies is placed with the prospective parents.
- Cases in which a record check reveals a felony conviction for child abuse or neglect, spousal abuse, crimes against children (including child pornography), or for crimes involving violence (including rape, sexual assault, or homicide, but not other physical assault or battery) will not be approved. Cases which reveal a felony conviction for physical assault, battery or a drug-related offense will not be granted if the felony was committed in the past 5 years.
- This is a state plan requirement unless the state opts out of this provision through state law enacted by the legislature or through written notification of the Governor to the Secretary of HHS. If a state does not opt out nor comply, they could be found out of compliance by HHS and potentially lose federal funding.
Technical Assistance (Section 201)
The Secretary of HHS may, either directly or through grants ($10 million maximum annual appropriation, FY 1998-2000), provide technical assistance to states to reach their targets for increased adoptions or alternative permanent placements for children in foster care. This may include, but is not limited to:
- the development of best practice guidelines for expediting termination of parental rights;
- models to encourage the use of concurrent planning;
- the development of expertise in moving children toward adoption as a permanency goal;
- the development of risk assessment tools to facilitate early identification of children who would be at risk if returned home;
- models to encourage fast tracking children under the age of one into pre-adoptive placements;
- the development of programs that place children into pre-adoptive families without waiting for termination of parental rights.
The Secretary of HHS is required to use at least half of the technical assistance funds to provide assistance to the courts.
Independent Living Services (Section 304)
Children who are ineligible for IV-E because their assets exceed $1,000 can still be eligible for independent living services, provided their assets do not exceed $5,000.
Expansion of State Child Welfare Demonstrations (Section 301)
- The Secretary of HHS is authorized to approve up to 10 states in each of FY 1998-2002 to conduct demonstration projects which are likely to promote the objectives of Title IV-B or IV-E.
- If appropriate applications are submitted, the Secretary is required to consider authorizing a demonstration project designed to identify and address barriers that result in adoption delays for children in foster care; parental substance abuse problems that endanger children and result in foster care placements, including through the placement of children with their parents in residential treatment facilities (including facilities for post-partum depression); and kinship care.
- Waivers will only be approved for those states which provide health insurance coverage to any child with special needs for whom the state and the adoptive parents have an adoption assistance agreement.
- The Secretary of HHS has the discretion to waive the current requirement that demonstration projects end after 5 years.
Kinship Care (Section 303)
The Secretary of HHS is required to convene an advisory panel, and submit an initial report to the panel on the extent to which children in foster care are placed in the care of a relative, by June 1, 1998. The Secretary must submit a final report to Congress no later than June 1, 1999.
Notification of Reviews and Hearings (Section 104)
Foster parents and any preadoptive parent or relative providing care must be provided notice of and have an opportunity to be heard in any review or hearing to be held with respect to the child. Does not require that any foster parent, preadoptive parent or relative providing care be made a party to such a review or hearing solely on the basis of this notification.
Case Planning and Case Review (Section 102)
References to the safety of a child must be included in case planning and case reviews for children in foster care.
State Report Cards (Section 203)
The Secretary of HHS, in conjunction with governors, state legislatures, state and local public officials responsible for administering child welfare programs and child welfare advocates are required to develop a set of outcome measures which will be used to assess state child welfare programs and rate state performance. Outcome measures will include length of stay in foster care, number of foster care placements and number of adoptions. State performance will be assessed based on AFCARS (Adoption and Foster Care Analysis and Reporting System) data. Authorizes the Secretary of HHS to issue regulations requiring states to report on performance measures; states must provide this data in order to receive federal funds. HHS will submit annual reports to Congress on state performance beginning on May 1, 1999.
Additionally, the Secretary of HHS, in consultation with state and local welfare administrators and child welfare advocates, will study, develop and recommend to Congress an incentive system to provide payments under IV-B and IV-E of the Social Security Act to states based on their performance under such a system. The final report must be submitted to the House Ways and Means Committee and the Senate Finance Committee within 15 months.
Federal Parent Locator Service (Section 105)
Authorizes child welfare agencies to use the Federal Parent Locator Service to assist in locating absent parents.
Sense of Congress on Standby Guardianship (Section 403)
Sense of Congress that states have laws and procedures that permit any parent who is chronically ill or near death, without surrendering parental rights, to designate a standby guardian for the parent's minor children, whose authority would take effect upon the death or mental incapacity of the parent, or with the parent's consent if the parent becomes physically debilitated. This provision does not have the weight of law.
Reauthorization, Expansion and Renaming of the Current Family Preservation and Support Services Program (Title IV-B, subpart 2) (Section 305)
- Reauthorizes the Family Preservation and Support Services Act for three years at $65 million above the current funding level ($275 million in FY1999; $295 million in FY2000; $305 million in FY2001), renaming the program "Promoting Safe and Stable Families."
- Existing allocation formula provisions, including a 1 percent set-aside for Indian tribes, remain intact. Set-asides for court improvement grants and for evaluation and research are also reauthorized.
- States cannot spend more than 10 percent of their allotment for administrative costs.
- States are required to devote significant portions of their expenditures to community-based family support services, family preservation services, time-limited family reunification services and adoption promotion and support services. The definition of "significant portion" will be addressed in regulations. Currently, the definition of "significant portion" requires states to spend at least 25 percent of the funds on both family preservation and family support. Some states have received waivers of this requirement. Whether waivers will still be allowed will also be determined in regulations.
- Time-limited family reunification services are defined as services and activities that are provided to a child that has been removed from their home and placed in foster care (and their family) to facilitate the reunification of the child in a safe and timely manner, but limited to the 15-month period beginning on the date the child enters foster care. Applicable services and activities are individual, group and family counseling; inpatient, residential or outpatient substance abuse treatment centers; mental health services; assistance to address domestic violence; temporary child care and therapeutic services; and transportation to or from these services and activities. Adoption promotion and support services are defined as those which encourage more adoptions out of the foster care system (when in the best interest of the child).
- Maintenance of effort provisions in current law are clarified to define nonfederal funds as state funds or, at state option, state and local funds.
Decrease in TANF Contingency Fund as Funding Mechanism (Section 404)
The $2 billion federal contingency fund for the Temporary Assistance for Needy Families created by the 1996 welfare reform law is reduced by a total of $40 million over 5 years (1998-2002) to fund the provisions of this legislation. The legislation also requires the Secretary of HHS to make recommendations to Congress by March 1, 1998 for improving the operation of the contingency fund for state welfare programs.
Preservation of Reasonable Parenting (Section 401)
Nothing in the legislation is intended to disrupt the family unnecessarily or intrude inappropriately into family life, to prohibit the use of reasonable methods of parental discipline, or to prescribe a particular method of parenting.
Purchase of American-made Equipment and Products (Section 406)
Sense of the Congress that to the extent possible, all equipment and products purchased with funds provided under this legislation should be American-made. This provision does not carry the weight of law.
Effective Date for Passage of State Legislation (Section 501)
- The effective date of this law is the date of enactment, November 19, 1997.
- If a state plan under IV-B or IV-E is determined by the Secretary of HHS to require state legislation in order to meet the requirements imposed by this Act (other than legislation appropriating funds), the state plan would not be considered out of compliance solely because it fails to meet the new requirements until after the close of the next regular session of the State Legislature. In states with a 2-year legislative session, each year would be deemed a separate regular session.
For further information contact:
Sheri Steisel
Senior Committee Director
Human Services Committee
Kirsten Rasmussen
Policy Associate
Human Services Committee
444 N. Capitol Street, NW, Suite 515
Washington, D.C. 20001
(202) 624-5400
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