CWLA Comments on the HHS Proposed Regulations to Implement the Adoption and Safe Families Act of 1997
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Pursuant to HHS's request for comments on proposed regulations to implement many provisions of the Adoption and Safe Families Act (ASFA), amendments to the Multiethnic Placement Act, and the revised child and family service review system, CWLA submitted the following to the Children's Bureau.
HHS will issue a second notice of proposed rule making in 1999 that will address other ASFA provisions including: the Promoting Safe and Stable Families program; health insurance coverage for children with special needs for whom an adoption assistance agreement is in effect; and, a child's continued Title IV-E eligibility for adoption assistance in cases where an adoption disrupts or the adoptive parent(s) dies. This notice will also include guidance on the 1996 amendments to the Child Abuse Prevention and Treatment Act.
December 17, 1998
Dr. Carol W. Williams
Administration on Children, Youth and Families
U.S. Department of Health and Human Services
330 C Street, SW
Washington, DC 20201
Dear Dr. Williams:
We are pleased to provide comments on the proposed rule for certain provisions of the Adoption and Safe Families Act (ASFA), P.L. 105-89, the new Title IV-E Eligibility Reviews and Child and Family Service Reviews, and the Multiethnic Placement Act, as amended by the Interethnic Placement Amendments.
There are many positive features of the proposal: the focus on outcomes rather than primarily on maintenance of records and procedures; the promotion of collaboration and meeting standards of good practice to achieve the goals of safety and permanence for children; and the importance of timely decisionmaking and the use of such tools as concurrent planning. The following comments will highlight those positive directions as well as several areas of concern where we recommend improvements. Our comments primarily address issues related to reasonable efforts, termination of parental rights, elements of the child and family service reviews, and the implementation of the Multiethnic Placement Act, as amended.
Reaffirm Importance and Requirements of Reasonable Efforts to Preserve and Reunify Families when a Child's Safety Is Not Jeopardized
ASFA clarified that the reasonable efforts determination in P.L. 96-272 (The Adoption Assistance and Child Welfare Act) was not intended to jeopardize safety or permanence for children and that there was nothing in federal law that required that children be left in or returned to homes that threatened their safety. ASFA did not dismantle or undermine the reasonable efforts requirement. In amending the reasonable efforts requirements, Congress made clear that a child's health and safety must be paramount in making reasonable efforts determinations. It also added an explicit provision to emphasize that when reasonable efforts to reunify families were no longer required that reasonable efforts must be made to find a permanent placement for the child. This provision eliminated the misperception that reasonable efforts had to go on forever.
ASFA did not alter the requirement for reasonable efforts to be made to preserve and reunify families when a child's safety was not at risk. However, because the law now speaks extensively to those situations where it would not be reasonable to make efforts to maintain or reunify families, it has, for some, already been misconstrued to weaken the obligation to make reasonable efforts, except in those situations where a court determines that they would be unreasonable because of danger to the child. States, in amending their laws to conform to ASFA, also have concentrated primarily on the situations where reasonable efforts would not be required, adding to the confusion ASFA has created in the field.
The regulations should emphasize clearly for agency staff, judges, court staff, parents, and advocates for children and parents that reasonable efforts are still required by law, except in situations where a court determines that they would jeopardize a child's health or safety [Sec. 471(a)(15) of Title IV-E]. This could effectively be done by inserting into the proposed regulations the language in the preamble that describes the three-fold purpose of the reasonable efforts provision as amended by ASFA [Preamble at 50073, Sec. 1356.21(b)]. Such a change would help clarify that reasonable efforts be made in situations where such efforts are clearly safe and appropriate.
We recommend that HHS add to Sec. 1356.21(b) of the proposed regulations the language from the preamble that describes the three purposes of reasonable efforts [Preamble at 50073, Sec. 1356.21(b)]. A sentence should be inserted at the beginning of the section that states:
The reasonable efforts provision requires that services be provided to:
Provide Guidance for Courts in Making Reasonable Efforts Determinations
- Maintain the family unit and prevent the unnecessary removal of a child from his/her home, when it can be done without jeopardizing the child's safety;
- Effect the expeditious reunification of the child and family when temporary out-of-home placement is necessary and reunification is the appropriate permanency goal or plan; and
- Effect an alternate permanency goal in a timely fashion when reunification is not appropriate or possible.
We are concerned that the courts, charged with making reasonable efforts determinations, will not be aware of the changes, or when aware will not have the capacity to comply given caseloads and other increasing demands. Courts need training, technical assistance and additional resources to increase their capacity to comply with these and other requirements modified or added by ASFA. We are concerned that if courts are not helped to increase their capacity that states will be penalized for their inaction and the subsequent loss of federal funds will harm the very children these protections were intended to help. The preamble suggests some guidance for courts in making reasonable efforts determinations that help to translate the principle of case-by-case decisions into more practical advice [Preamble at 50073, Sec. 1356.21(b)]. Such guidance is particularly important given the new tasks being imposed on courts and should be included in the actual regulations.
While we agree that it would not be useful to define "reasonable efforts" at this time, we do recommend that the language at 50073, be added at the end of Sec. 1356.21(b) (with changes in bold) to provide further guidance to agencies and the courts.
In the absence of a definition, courts may entertain actions such as the following in determining whether reasonable efforts were made:
Clarify and Amend Timing of Judicial Determinations
- Would the child's health or safety have been compromised had the agency attempted to maintain him/her at home or return him/her home?
- Was the service plan customized to the individual needs of the family or was it a standard package of services?
- Did the agency provide services to ameliorate factors present in the child or parent, i.e. physical, emotional, or psychological, that would inhibit a parent's ability to maintain the child safely at home or to return the child?
- Do limitations exist with respect to services availability, including transportation issues? If so, what efforts did the agency undertake to overcome these obstacles?
- Are the State agency's activities associated with making and finalizing an alternate placement consistent with the permanency goal? ...Congress provided a list of circumstances in which reasonable efforts are not required.
We applaud HHS's decision to clarify the need for individual judicial determinations for ensuring reasonable efforts at different stages of a case. However, we are concerned that the timetables for these determinations described in the proposed regulations [Secs. 1356.21(b)(2)-(4)] are inconsistent with the emphasis on expedited permanency decisions that is central to ASFA and may slow down decisionmaking in individual cases.
The proposed regulations at Sec. 1356.21(b)(2) require that the judicial determination of reasonable efforts to prevent removal in emergency situations must be made at the first full hearing pertaining to removal of the child or no later than 60 days after a child has been removed from the home, whichever is first.
We recommend that Sec. 1356.21(b)(2) be changed to make clear that the determination must occur by the first full hearing, but not later than 60 days after a child has been removed from the home. The 60 day time frame should be an outside limit and every effort should be made to make this determination very soon after the child comes into care.
The proposed regulations also require that the determination of reasonable efforts to reunify be made "within twelve months of the date the child enters foster care... and at least once every twelve months thereafter as long as the permanency plan or goal is reunification" [Sec. 1356.21(b)(3)]. Allowing 12 months to make this determination seems inconsistent with the provision in the definition of permanency hearing stating that one purpose of the permanency hearing, which also must occur at 12 months, is to determine whether and when the child is to be returned to the parent [Sec. 1355.20(a)]. It is extremely important, when the goal for a child is reunification, that there be an earlier determination that reasonable efforts to reunify are being made to ensure that services are being provided. Then at the time of the permanency hearing the court or administrative body can assess the progress made with the services and determine whether continued efforts at reunification are appropriate. The proposed regulation at Sec. 1356.21(b)(4) also requires that the subsequent judicial determination regarding reasonable efforts to make and finalize a permanent placement be made within 12 months of the date the permanency goal of adoption, guardianship, or some other permanent living arrangement is established, and 12 months thereafter.
We recommend these sections be amended so that the determination of "reasonable efforts" to reunify, make and finalize a permanent placement be made at least every six months. While this may pose a greater burden on the states, it is necessary if children are to be moved to permanency in a timely manner. It is also important that the regulations be revised to specify, as the statute does, that the reviewing body assess the activities the state is undertaking to complete whatever steps are necessary to finalize permanent placements.
Further Clarify When Reasonable Efforts Are Not Required
ASFA clarifies that reasonable efforts are not required in certain circumstances, but does not prohibit them. The preamble at 50074 , although not the proposed regulations, makes clear that it is incorrect to assume that ASFA "prohibits the State from making reasonable efforts in certain circumstances."
We recommend further clarification as follows:
1) The preamble at 50073 states that "If the assessment indicates that is not reasonable to prevent the child's removal or to reunify the family, the assessment itself satisfies the reasonable efforts requirement." We disagree. An assessment alone is only one of the tools used to determine whether reasonable efforts are required. We recommend that this language in the preamble be eliminated. It should be substituted with a new sentence that reads: "If the assessment indicates that a child's health and safety would be jeopardized by efforts to prevent removal or to reunify, the state agency should ask the court to determine that reasonable efforts are not required."
2) The regulations clarify that ASFA changes do not prohibit reasonable efforts in any cases, although they do specify egregious circumstances where they may not be required. We recommend inserting the language from the preamble at 50074 into the regulations at Sec. 1356.21(5). This language upholds "the State agency's authority to make reasonable efforts to prevent a child's removal from home or to reunify a child with the family even in situations in which it is not required to do so, if the child's health and safety can be assured and it is in his/her best interest."
3) We agree that the felonies specified in the statute do require a criminal conviction. This clarification would still allow a court to make a decision in a case alleging one of these crimes, that other factors in the home weighed against any reasonable efforts from being required. It does not mean that services can only be suspended in such cases after there has been a conviction. We recommend that Sec. 1356.21(b)(5)(ii) of the regulations be amended to make clear that a criminal court must determine that the parent has been criminally convicted of murder, voluntary manslaughter, aiding or abetting, conspiring or soliciting for such purposes, or felony assault.
4) The proposed regulations do not specify when the court must make a determination that reasonable efforts are not required. This omission could be confusing. We recommend adding in the preamble at 50074 that, "we are leaving the precise timing of such a determination to the discretion of the court hearing the case. Consistent with nationally recognized best judicial practices, we recognize that courts have always had the discretion to make such determinations and at least some already have procedures established. We also recognize that the timing of such a determination will vary from case to case, with the availability of necessary information on which to make a judgment that reasonable efforts are not required. In some cases, such a determination might be able to be made at the first full hearing. In others it may be made at a later time when a request is made by the state agency."
5) We support the deferral to each state's definition of "aggravated circumstances" when reasonable efforts are not required [Sec. 1356.21(5)(i)]. As guidance for states, the regulations at that section or the preamble should also make clear that crimes/aggravated circumstances are not limited to what is mentioned in ASFA and that courts have discretion based on the judge's finding and state law. The regulations should also make clear that even though a crime/aggravated circumstance exists, the court does not have to make a determination that reasonable efforts are not required. The regulations also need to clarify the need to make reasonable efforts to reunify, when appropriate, when one parent has been convicted of a crime/aggravated circumstances and the other parent was not involved.
6) Many jurisdictions have interpreted the law to require concurrent planning with all children and families. The preamble at 50074 clarifies that concurrent planning is a tool that can be used to expedite permanency for children but that is not required. We recommend that Sec. 1356.21(b)(6) be amended by adding the language that appears at 50073, "States are not required to use concurrent planning and the decision to do so must be made on a case-by-case basis."
7) We recommend that the language in the preamble at 50074-50075 be added to the regulations at Sec. 1356.21(b)(7) to clarify that the use of the Federal Parent Locator Service is a, "tool for locating absent parents early in the case planning process as a potential permanency option... as a tool for the States in completing termination of parental rights proceedings." We also recommend that the regulations contain more information about how this service can be used so that the child support enforcement agency can work with the child welfare agency.
8) We recommend that the regulations at Sec. 1356.21(e) clarify if the timetable for reviews changes when a child goes home on a trial visit and comes back into care in less than six months.
9) We also suggest that the language in the preamble regarding assessment at 50073 also be added to the regulations to provide additional context for deciding whether reasonable efforts have been/or should be made. The following language should be added at 1356.21(b) (changes in bold): "The state agency should make reasonable efforts to prevent the child's removal from home or to reunify the family commensurate with an initial and ongoing assessment of the child's and family's needs and circumstances."
Retain Joint Development of Case Plan with Parents or Guardians of the Child
We applaud HHS for amending the current case plan requirements to specify that the case plan must be "developed jointly with the parent(s) or guardians of the child in foster care" [Sec. 1356.21(g)(1)]. Such a change is consistent with the thrust of ASFA to move children to permanent settings in a timely fashion. The expedited timelines in ASFA make it imperative that services be provided as soon as a child enters care. We believe that the likelihood that this will happen is increased when the parent(s) or guardians of the child have a role in the development of the case plan. Early engagement of the parent is essential so services can be provided and a decision can then be made within the first twelve months of care about the most appropriate permanent plan for the child. We urge retention of this provision in the final rule.
Specify Steps to Finalize Adoption or Other Permanency Goals
ASFA amended the reasonable efforts requirement already in law to make clear that once reasonable efforts to return home were no longer required that reasonable efforts "shall be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child" [Sec. 471(a)(15)(C), as added by P.L. 105-89, Sec. 101(a)]. Elsewhere ASFA went further and required that the case plan specifically include "documentation of the steps the agency is taking to find an adoptive family or other permanent living arrangement for the child, to place the child with an adoptive family, a fit and willing relative, a legal guardian, or in another planned permanent living arrangement, and to finalize the adoption or legal guardianship" [Sec. 475(1)(E), as amended by P.L. 105-89, Sec. 107]. It also states in Sec. 475(1)(E) that "[a]t a minimum, such documentation shall include child specific recruitment efforts such as the use of State, regional, and national adoption exchanges including electronic exchange systems." At a minimum, we believe this specific requirement should also be included in the case plan requirements in Sec. 1356.21(g) of the proposed regulations.
We recommend that Sec. 1356.21(g)(4) should be amended by adding a sentence at the end that says that, "if adoption is the plan for the child, at a minimum there must be documentation in the case plan that includes the child specific recruitment efforts used, such as the use of State, regional, or national adoption exchanges including electronic exchange systems." HHS should also add several other sentences giving illustrative examples of specific action steps that might be taken in exploring other permanency options, like legal guardianship.
Require Permanency Hearings for All Children
The proposed regulations [Sec. 1356.21(h)(2)] and the preamble  state that the requirement for a permanency hearing in Sec. 475(5)(c) does not apply to a "child with special needs or circumstances which prevent his or her return to the home or being placed for adoption." The original Adoption Assistance and Child Welfare Act did not exempt anyone from the first permanency hearing and that does not change in ASFA. We do not believe that any child should be exempted from the original permanency hearing. We recommend that Sec. 1356.21(h)(2) be modified: "The provisions of this paragraph and Sec. 475(5)(c) of the Act apply to all children under the responsibility of the Title IV-E State agency for placement and care." The corresponding preamble language at 50076 should be modified accordingly.
TERMINATION OF PARENTAL RIGHTS PROCEEDINGS
The regulations should be clear about the need for case-by-case decisions regarding the filing of a termination of parental rights petition. We do not believe that there should be any blanket exceptions to this requirement. This decision should be made on a case-by-case basis. We recommend that the proposed regulations be amended at subsection 1356.21(i)(2) by adding the following at the end of the first phrase in the section: "...if, on a case-by-case basis, determined by the individual needs of a child..."
The proposed regulations outline a process to ensure that termination of parental rights petitions are filed in a timely manner in appropriate cases. The permanency hearing must specify whether, and when, "the child should be placed for adoption, with the state filing a petition for termination of parental rights" [Sec. 1355.20]. Sec. 1356.21(i) then specifies an outside time limit for filing the petition and specifies some circumstances in which such a filing would not be appropriate. If parental rights are not terminated during that time period, permanency plans for the child will continue to be scrutinized. The court must continue to make a determination that reasonable efforts to move a child toward permanence are being made [Sec. 1356.21(b)(4)] and that subsequent permanency hearings must also be held every twelve months [Sec. 1355.20]. Therefore, we agree with HHS that it seems unnecessary to have to reset the clock again for another 15 months. In fact, establishing a new 15 month timetable might result in further delays in moving toward permanency for the child. It might give the agency the sense that it is starting over again and has more than a year to plan, when in fact the pressure should come from the fact that once the first deadline is missed, diligent efforts must continue to move a child to the most appropriate permanency placement promptly. The goal always should be a permanent home for the child in a timely fashion.
Add Examples of Compelling Reasons
We agree with the decision by HHS to give examples of situations in which compelling reasons are present and termination of parental rights petitions need not be filed, rather than a restrictive definition of "compelling reason." We recommend that those examples given in the preamble at 50077 should be included in the regulations at Sec. 1356.21(i)(2)(ii). We also recommend that the following examples be added: (1) the state agency and the tribe have identified another permanency plan for the child pursuant to the Indian Child Welfare Act; and (2) the permanent plan for the child is to return home and the state determines that the parent has made significant measurable progress and continues to make diligent efforts to complete the requirements in the case plan, but needs more than the allotted time to do so.
ASFA stresses the termination of parental rights as the primary mechanism for achieving permanency when children cannot be reunified with their families. There are other non-adversarial methods for achieving permanency for children who cannot return to their parents, including mediation, cooperative adoption agreements, relinquishment counseling, and family group decision making. The regulations should include an additional example of a compelling reason which encourages states to consider the range of methods. We suggest adding a third example at Sec. 1356.21(i)(2)(ii): "The parent(s) have agreed to a permanency plan for the child other than voluntary relinquishment or the guardianship proceedings have been initiated."
Parental Rights of Both Parents
In order to free children for adoption and to move them promptly to adoptive families, the parental rights of both the child's parents need to be terminated. This is not reflected in the proposed regulations. We recommend that a section be added to the preamble for Sec.1356.21(i) at 50076 reinforcing the importance of terminating the rights of both parents when adoption is the plan for the child and a determination is made that the child cannot be returned safely to either parent.
Removal from the Home of a Specified Relative
We support the overall policy changes at Secs. 1356.21(k)(l) that expands Title IV-E eligibility for children living with specified relatives. This is a much needed expansion for the support of these children.
Incorporate Notice and Opportunity to be Heard for Foster Parents and Relatives
We recommend that the language in the preamble at 50079 also be incorporated in the regulations at Sec. 1356.21(o) to make clear that "this provision, does not preclude the court from awarding foster parents, preadoptive parents, and relative caregivers standing at the court hearing." States should also be encouraged to provide training for foster parents and caregivers in preparation for court hearings. We also recommend that the regulations at Sec. 1356.21(o) add that the states can add eligibility criteria for getting standing such as the child having to be with the foster parent for a year or more. The regulations should also make clear that either the state or the court may provide the notice depending on the jurisdiction and type of hearing.
Provide Protections for Voluntary Placements
Children voluntarily placed by their parents in foster care under the supervision and responsibility of the state have always been subject to the basic protections in the federal Titles IV-B and IV-E Programs. These children should also be offered the protections provided in ASFA.
We recommend that Sec. 1356.22(a) be amended (changes in bold) to read, "...under a voluntary placement agreement the State must provide the children and families involved with written notice of their rights to basic protections such as the requirements for regular and periodic reviews and a case plan, and other requirements in the law such as the requirements for a permanency hearing within 12 months of a child entering care and for filing a termination of parental rights petition when a child is in foster care for 15 out of 22 months or specific circumstances apply, unless certain exceptions are application. Specifically, the State must meet the requirement of..."
Encourage Broader Safety Requirements for Foster Care and Adoptive Home Providers
Criminal background checks should be completed for caregivers and any adult over the age of 18 who will reside in the caregiver's home. For those persons who have a felony conviction within the last five years, those cases should be reviewed on a case-by-case basis. The nature and the situation surrounding the incident should be explored as it relates to the safety of the child. There should be an assessment as to whether it was a single incident or part of a pattern of conduct, how the incident impacts on the child's safety, etc. State administrators should be responsible for reviewing the assessment and assisting in making any recommendation that the child remain in the home.
We recommend that states be encouraged to complete background checks or provide other documentation with respect to safety considerations that would include any resident adult over the age of 18, not just the caregiver(s).
CHILD AND FAMILY SERVICES REVIEW SYSTEM
We welcome the promise of a new review system that seeks to assess and improve outcomes and to hold agencies accountable for failures to perform or to correct poor performance. The previous processes did not work. When the former review process was suspended, there was widespread agreement that it was cumbersome and uninformative about anything that really mattered. It failed to inform us about the status of children and families, or whether any improvements had occurred for them or in the systems responsible for their care.
We believe the proposed child and family services review system provides good direction to states and others to increase the involvement and collaboration of those who are key to making a positive difference for children and families in the child welfare system¾
the state agency; private providers; birth, foster and adoptive parents; HHS; the courts; and advocates. The reviews also promote a process of assessment and program improvements that can correct deficiencies and enhance outcomes. At the same time, the new reviews importantly emphasize meeting outcomes of child safety and permanence and make it clear that penalties will be imposed if agencies fail to meet them.
To strengthen the reviews and increase the likelihood that they will achieve the desired results, we offer the following suggestions:
Shorten Timeframe for Full Reviews for States in Substantial Conformity
The proposed regulations at Sec. 1355.32(b) call for full reviews at five-year intervals for states found in substantial conformity. The complexity of issues and rapid changes in child and family circumstances as well as in system dynamics (e.g., child welfare waiver demonstrations, adaptation of managed care approaches) necessitate more frequent reviews to keep apprised of positive developments, as well as negative ones before they become critical.
We recommend revising the full review schedule to every four years for states found to be operating in substantial conformity during an initial or subsequent review.
Reinforce Need for Adequate Sample for On-Site Review
Although the proposed rule states that "the number of cases reviewed must be sufficient to evaluate the qualitative issues agreed upon by the ACF Regional Office and the State as the focus of the on-site review based on analysis of the State self-assessment and any other relevant data available to the State," the preamble [Sec. 1355.33 at 50065] suggests 30-50 cases as sufficient. Given the wide variation among the states in size, in the operations of their child welfare agencies (e.g., state vs. county-administered), and in their respective courts by jurisdiction and practice, we recommend sampling be expanded to include virtually all child welfare court jurisdictions in the state and expand sample size as necessary depending on the numbers of children in care and different types of operations within state. Given the wide variation in rates that we have seen within states on a wide variety of measures, a realistic assessment need to include a broad sample.
Expand Guidance on Criteria Related to Outcomes for Determining Substantial Conformity
ASFA directed HHS, in consultation with governors, state legislatures, state and local public child welfare officials, and advocates, to develop a set of outcome measures that can be used to assess the performance of states in operating child protection and child welfare programs (first annual report due May 1999). ASFA also called on HHS to study and recommend an incentive system to provide payments under Titles IV-B and IV-E of the Social Security Act (final report due to Congress February 1999). These activities relate directly and should serve to inform the data and criteria for outcomes assessment as described in Sec. 1355.34(b) of the proposed rule. Already existing nationally recognized standards should also inform the assessment.
We recommend that the final rule incorporate reference to the outcome and related measures developed pursuant to ASFA, as well as existing national standards, such as those set by the Child Welfare League of America and national accrediting bodies, with respect to their applicability and use in the process to determine substantial conformity in the child and family services review system.
Expand Guidance on Criteria to Assess State Agency Capacity to Deliver Services
The basis of assessing the state agency's capacity to deliver services leading to improved outcomes for children and families also requires a broader examination. In addition to the seven criteria described in Sec. 1355.34(c), it is also important to identify other critical capacity indicators, such as per capita spending for child welfare and staff ratios; and to document family service/treatment needs, how much is met and unmet, and what agency or other resources would be required to address unmet needs.
We recommend amending Sec. 1355.34(c)(3)(iii) as follows (change in bold):
"(iii) is able to identify the strengths and needs of the service delivery system it evaluates, by documenting critical capacity indicators, such as per capita spending for child welfare, staff/child ratios and caseload size, how much of the service/treatment need is met or unmet, and resources required to address unmet needs."
Underscore Importance of and Support for Staff Training and Technical Assistance throughout the Process
State agencies, private providers, court workers, and the many others who need to be involved in ensuring safety and permanency for children will require assistance in learning about the changes, understanding and complying with the requirements of the reviews, and building the capacity to provide the services and information to demonstrate improvements in outcomes.
First, we need to make sure that those who are key in making decisions and providing child welfare services receive the training and information they need. These professionals include child day care providers who serve children in foster care, but who now are not included among those who may receive Title IV-E funded training. We recommend that the final rule include licensed and registered center-based and family-based child day care professionals among those eligible for such training.
We recommend amending Sec. 1355.34(v) as follows (change in bold): "provides short-term training for current or prospective foster parents, adoptive parents,
and the staff of State licensed or State-approved child care institutions providing care to foster and adopted children receiving assistance under Title IV-E, and licensed or registered center-based and family-based child care programs that addresses the skills and knowledge base needed to carry out their duties with regard to caring for foster and adopted children."
Second, we also agree that there needs to be specific training for key activities. For example, we concur with the urging of states "to obtain technical assistance and provide appropriate training and supervision to agency workers prior to deploying a concurrent planning strategy" [Sec. 1356.21(b)(6)/Preamble 50074]. The proposed rule does not contain any similar direction. Given the confusion about what concurrent planning is, when it should be employed, etc., we recommend that the regulation at Sec. 1356.21(b)(6) include the suggestion of obtaining assistance in preparation for concurrent planning efforts.
The need for training and technical assistance is not limited to the situation of concurrent planning or any one particular activity. Indeed, throughout the processes of service delivery to service reviews, success will depend on how prepared and able the states, HHS, and other partners at the various levels are to respond. Steps must be taken to ensure that there is the capacity necessary both at the federal level and in the states to carry out the work. To conduct quality child and family service reviews, good data, quality staff and opportunities to obtain assistance necessary to make improvements will be key to the effectiveness of the process and the information it yields.
We also want to raise serious concerns about the current capacity of many of the states, HHS, and its regional offices to meet the new requirements and especially to respond adequately to requests for help. The preamble states that, "To the extent that ACF has the resources and funds available, it will make technical assistance available to improve the outcomes or other factors that are outlined in a State's program improvement plan" [50068, discussion of Sec. 1355.35(f)]. HHS and the public need to know what resources are required to make the process work and whether those funds will be made available that will allow the possibility of success.
Expand Elements of Program Improvement Plan
CWLA strongly supports the development of a mandatory program improvement plan to correct deficiencies or voluntarily to enhance outcomes and program operations. In addition to criteria regarding the development and components of a plan, we submit that there needs to be some assessment of what is required on the part of the state, HHS or other entity, to make corrections and improvements.
We recommend that Sec. 1355.35(a)(3) be amended to read (change in bold):
"Set for the goals, the action steps required to correct each identified weakness or deficiency, and dates by which each action step is to be completed, and resources needed to improve in the specific areas..."
Expand Funds Subject to Withholding Due to Failure to Conform Following the Completion of a State's Program Improvement Plan
We strongly agree with a process that encourages program improvement and holds off fiscal penalty while program improvements take place. We also support the withholding of funds when a state fails to achieve substantial conformity after the program improvement process. We disagree with designating only Title IV-B and a portion of Title IV-E administrative funds as subject to withholding. These are the very funds needed for pre-placement and ongoing service activities which could seriously undermine further efforts for improvement. Indeed, many services often have been provided because of these very federal resources. The pool of funds subject to penalty excludes the states' federal claims for IV-E Foster Care and Adoption Assistance Maintenance costs. A state's eligibility for IV-E Foster Care and Adoption Assistance is in part dependent upon it satisfying the assurances in the state plan, many of which are the subject of the child and family services reviews, and therefore the foster care and adoption assistance funds should not be excluded. We urge that upon improvement in programs where funds have been withheld, at least some portion of the funds be released back to the state in order to provide incentive for further improvements.
We recommend that Sec. 1355.36(a) and (b)(4) be changed to include the states' federal claims for IV-E Foster Care and Adoption Assistance Maintenance costs in the pool of funds subject to withholding. We further recommend that states have opportunity with program improvement to reclaim some portion of withheld resources.
MULTIETHNIC PLACEMENT ACT, AS AMENDED BY THE INTERETHNIC PLACEMENT PROVISIONS (MEPA/IEP)
MEPA/IEP was enacted to promote more timely adoption of children by preventing the delays or denial of foster or adoptive placements because of race and ethnicity. The proposed rule [Sec. 1355.38] addresses enforcement, corrective actions and penalties under MEPA/IEP and directly reflects the statute. However, the proposed regulations do not include any description about the statutory requirements or examples of allowable or prohibited activities that could help states comply. The proposed rule also fails to mention the second important statutory obligation under MEPA/IEP, that states diligently recruit potential foster and adoptive families that reflect the ethnic and racial diversity of children for whom foster and adoptive homes are needed.
CWLA supports the core notion of MEPA: a child's opportunity for a family should not be delayed or denied based on race. At the same time, race, culture and ethnicity are prominent issues in our society and cannot be categorically ignored, just as they must not be categorically employed, as the basis for decision making, if we are to make those decisions in the best interest of children.
We are very concerned about the confusion that public and private child welfare agencies that provide adoption and foster care services are expressing regarding implementation of MEPA/IEP, including what kinds of decisions are okay and what kinds aren't (in other words, what they can and cannot do).
States and other providers also need to understand the review process itself, including the role of the Office of Civil Rights should ACF become aware of a violation, and the penalties associated with violations. This is an especially critical issue for private providers which, in contrast to a graduated penalty levied on the state, would lose all of their Title IV-E funds for at least the one quarter during which they receive notification of a violation.
We recommend that the final rule on MEPA/IEP clearly describe both the prohibition against discrimination and the affirmative obligation to recruit a pool of prospective foster and adoptive families that reflect the diversity of the population in need, including a requirement that states have in place a plan for diligent recruitment. We also urge HHS to clarify that, on a case-by-case basis, consideration of many factors, including race, ethnicity, and culture, is appropriate if it serves the best interest of the child.
We further recommend that the final rule add a subsection that specifies the provision of training and technical assistance to help states and other entities in understanding and meeting the requirements of the law.
We appreciate your attention to these issues and this opportunity to comment. We look forward to working with you to advance safety and permanence for children and to support and strengthen families.
David S. Liederman
For advocacy/policy information, contact Liz Meitner, CWLA Government Affairs Department at (202) 942-0257 or e-mail: firstname.lastname@example.org.
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