Human Services Committee
Issue Brief
NEW FEDERAL RULES GOVERNING STATE FOSTER CARE, ADOPTION AND CHILD WELFARE PROGRAMS---
MAJOR CHANGES FOR STATES
May 16, 2000
HHS issued final federal regulations governing foster care, adoption and child welfare programs. These regulations took effect on March 25, 2000. Titles IV-B and IV-E of the Social Security Act are the primary sources of federal funds for state foster care, adoption assistance and child welfare services. Legislators should be aware of the implications of the Final Rule for the Title IV-B and Title IV-E programs in their states. The new rules guide states in implementing two recent federal laws, the 1997 Adoption and Safe Families Act (ASFA) and the 1994 Multiethnic Place Act (MEPA) as amended in 1996. NCSL and other organizations commented on the proposed rules, which were published on September 18, 1998. HHS considered those comments in preparing the Final Rule. The Final Rule stresses an outcome-oriented approach to child and family services. Major provisions are described below.
Reviews
State programs will be judged in two areas: outcomes for children and families in the areas of safety, permanency, and child and family well being; and systemic factors that have an impact on the state's capacity to deliver services. The review consists of a statewide assessment and an on-site review. It will determine whether a state is in compliance with federal requirements. The Final Rule includes a program improvement process for states that are found to be in substantial non-conformity through the review.
The review process has five steps:
- The Administration for Children and Families prepares data profiles of the state's foster care and child protective services. The data sources are the National Child Abuse and Neglect Data Center (NCANDS) and the Adoption and Foster Care Analysis and Reporting System (AFCARS). ACF will transmit this data to the state. The data profiles will show if a state has met a national standard set by the federal Department of Health and Human Services for certain indicators such as length of stay in foster care and rates of repeat maltreatment of children.
- A state will complete the statewide review by reviewing the data on the outcomes of its child welfare system. It addresses systemic factors in a narrative form. The qualitative and quantitative findings of the statewide assessment allow the state and the regional ACF office to decide on the locations for the on-site reviews and the cases that will be examined.
- A joint state and federal team will conduct the on-site review. To examine outcomes, a sample of 30-50 cases is intensively reviewed, using case records and interviews with family members, the caseworker and service providers. This information is combined with state performance on selected data indicators to determine whether a state is in compliance regarding outcomes. To examine systemic factors, interviews are conducted with state and local representatives (such as courts and foster care review boards). This information is combined with information on the systemic factors in the statewide assessment to make determinations regarding state compliance on systemic factors. The on-site review may be done in several areas of the state, but the largest metropolitan area in the state must be included.
- The review team recommends a determination regarding substantial conformity for each one of the outcomes and systemic factors reviewed.
- States are immediately informed of any penalties. Program improvement plans are developed to address each area of nonconformity. A state found to be not in compliance will have the opportunity to develop and complete a program of improvements before having federal funds withheld from Title IV-B or Title IV-E administrative funds.
In order to be in substantial conformity, states will have to meet a standard initially based on the 75th percentile of state performance on the outcome indicators based on data submitted in previous years. All states must conduct both a child and family services review and a Title IV-E eligibility review within four years following the publication of this final review. States determined to be in compliance will be reviewed every four years and will complete a statewide assessment every three years. States determined not to be in compliance will reviewed two years after the approval of the program improvement plan.
Issues for policymakers
- Both state and federal reviewers must be well trained.
- Many aspects of the review process will be specified in a procedures manual to be developed separately. Some details about the review process are not available at this time.
- Potentially, major administrative changes could be needed for states to come into compliance.
New Rules for Kinship Care/Relative Foster Care
For the federal foster care program, states are required to have the same licensing or approval requirements for relative foster homes as they do for non-relative homes, although there are some exceptions for requirements not related to safety. A state cannot receive federal reimbursement for foster care expenses for children placed in temporarily licensed homes or in foster homes that fail to meet all licensing or approval requirements.
Issues for policymakers
- Some states have established different standards for relative caretakers as a group; under this law, relatives must meet the same licensing/approval standards as non-relative foster family homes.
- States will need to review their foster care licensing and approval system.
- There may be financial considerations for the states.
- TANF funds are not restricted in the same way as Title IVB funds. States are using TANF funds for child only cases, and for services to relative caregivers.
ASFA Requirements
The new regulations require a state to obtain a court order demonstrating that the State provided services to prevent the child's removal from the home and to reunify the family, or that reasonable efforts to keep or return the child home were not required due to safety concerns. States can define in state law the circumstances in which a state is not required to make reasonable efforts to preserve or reunify a family.
Consistent with ASFA, the regulations require the state to petition to terminate parental rights for children who have been in foster care for 15 out of the most recent 22 months. The regulations state that there are no automatic exceptions for groups of children, but that decisions regarding exceptions must be made on a case-by-case basis.
States are required to conduct criminal record checks for prospective foster and adoptive parents who receive federal funds, unless they opt out of this requirement by the action of the Governor or a state law. The Final Rule requires that if a state opts out of this provision, it must still document the safety of a child's placement.
States are required to present a report on ASFA compliance annually to Congress. The Administration for Children and Families has stated that it will keep the outcomes measures in the new review process consistent with the information required in the report.
Issues for Policymakers
- Exceptions from the requirement to petition to terminate parental rights must be done on a case-by-case basis. States cannot exempt whole groups of children (such as unaccompanied refugee minors) from this requirement.
- The clock for all the hearings and reviews required by ASFA starts when a child enters foster care. According to the statute, that date is the earlier of judicial finding of abuse or neglect or 60 days from the date a child is removed from the home. The regulations make it clear that nothing precludes a state from using a point of time earlier than that required in the statute for considering when a child has entered foster care.
Enforcement of the Multiethnic Placement Act (MEPA)
The Interethnic Adoption Provisions, passed as part of the Small Business Job Protection Act in 1996, prohibited discrimination based on race, color, or national origin in the placement of children for foster care and adoption. As clarified in the new regulations, states that are determined to have discriminated against an individual will be assessed a penalty immediately, consistent with the law. If an individual was not discriminated against, but HHS finds that a state policy or practice violates the law, the state must correct it within six months before the penalty takes effect.
Issues for Policymakers
- HHS will determine on a case-by-case basis whether a violation has occurred.
- MEPA violations result in immediate penalties, and there is no opportunity for corrective action before a penalty is imposed.
References
The text of the regulations can be found in PDF format at: http://www.acf.dhhs.gov/programs/cb/policy/0970_aa97.pdf
The Children's Bureau has posted some questions and answers about the regulations at: http://www.acf.dhhs.gov/programs/cb/policy/qsset1.htm
For additional information, please contact:
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