April 1, 2005

Kathleen McHugh
Director, Division of Policy
Children’s Bureau
Administration on Children and Families
U.S. Department of Health and Human Services
330 C St. S.W.
Washington, DC 20447

Re: Administrative Costs for Children in Title IV-E Foster Care, Proposed Rule

Dear Ms. McHugh:

The Child Welfare League of America (CWLA), representing nearly 1,000 child welfare agencies, urges the U.S. Department of Health and Human Services (HHS) to reconsider proposed rule changes, issued by the Administration for Children and Families on January 31, 2005. The implementation of Title IV-E foster care eligibility and administrative cost provisions in sections 472 and 474 of the Social Security Act and incorporation of the previously issued policy announcement, ACYF-CB-PA-01-02 will negatively impact foster care providers and children.

CWLA requests modifications in proposed Section 1356.60(c)(6) and Section 1356.60(c)(7). With regard to 1356.60(c)(6), CWLA urges the Department to continue to allow states to claim Title IV-E administrative costs for a child placed in an unlicensed relative home. This will continue to support States to meet the best practice provisions of the Adoption and Safe Families Act of 1997 (P.L. 105-89) (ASFA), and to pursue permanency with relative/kin providers as encouraged in the Act.

In implementing ASFA, states have increasingly turned to relatives as a resource for children who cannot be with their birth parents due to abuse or neglect. Studies show that kinship care broadens the permanency options for children who are in the child welfare system. Kinship care allows abused or neglected children to live with people they know and trust, and provides a safe and stable household.

Permanency with relatives encompasses a variety of living arrangements, including licensed foster care, unlicensed or informal care, custody arrangements in lieu of foster care, legal guardianship (subsidized and unsubsidized) and adoption. Implementation of the proposed rules will narrow this range of sound alternatives by requiring states to impose licensing standards on situations for which they were never envisioned.

HHS acknowledges that the statute seems to create “competing priorities for state agencies” by directing states to give preference to relatives in making placement decisions, and at the same time requiring placement in licensed family foster homes. In response HHS suggests harmonizing these two provisions of the law by creating this regulation. We suggest that HHS not simply “harmonize” or split this difference, but instead recognize the increasingly important role of kinship placements and assess the impact this limitation will create.

CWLA shares the administration’s commitment to ensuring basic protections, including physical safety, for all children served by child welfare agencies. However, licensure, by itself, does not assure safety. Relatives should not be compelled to become licensed in order to receive equitable federal funding while caring for children who would otherwise be in non-familial homes.

The CWLA Standards of Excellence for Kinship Care Services, which provides guidance to child welfare agencies and the field as they develop and implement kinship care policies and programs, states that kinship families should be assessed, as should all caregiver families, for their ability to provide safe, quality care. The Standards also emphasize, however, that the assessment should also incorporate recognition of the pre-established relationships unique to kinship care. The traditional foster care licensing process was developed for non-related placement and licensure, and is often not well suited to the complex situations that exist for relatives caring for their kin’s children. In these and all kinship placements, a proper assessment must include questions of basic health and safety, but it must also have the capacity to weigh the family relationships that exist in kinship care, including bonds between child and caregiver.

To address the clear differences between relative and non-relative care, and to encourage the appropriate use of kinship care, CWLA urges HHS to permit states to conduct a separate relative foster care approval process. Such a process would address basic child development and safety needs, but would not permit the individual to care for unrelated children. States could claim FFP for both the administrative activity and the maintenance payment for children in approved, as well as licensed, relative homes.

In some jurisdictions, alternative approval processes are already being used in lieu of licensing to ensure that safety concerns are addressed and to facilitate access to family services and supports that improve permanency outcomes. Using kinship care supports, agencies are able to provide greater continuity of contact with siblings, with fathers and paternal family members, along with continued cultural and community connections-all associated with improved outcomes for children.

In addition, States have made significant progress in their efforts to achieve permanency for children in relative care who cannot return to their birth parents by assisting relative families to adopt or assume legal guardianship of the child (ren). This important work done by State agencies and their designees with kinship families-both licensed and unlicensed-includes legitimate and critical administrative tasks that States should continue to be allowed to claim. These tasks cannot be completed in the relatively short period of time that precedes licensing nor should they be contingent upon the relative obtaining a foster care license.

With regard to Section 1356.60(c)(7), CWLA urges the Department to allow States to continue in considering children placed in unlicensed relative homes as “candidates” for foster care for purposes of claiming Title IV-E administrative costs. It is appropriate for children within the foster care system, either in the past or currently, to receive IV-E subsidized case management activities regarding the out of home care experience. This continues even though Title IV-E may not be reimbursing the cost of care at that time. Again, this provides States with the flexibility they need to identify a willing and fit relative to care for the child and to proceed to provide support and supervision, whether or not the family is licensed, until permanency through reunification, adoption, or guardianship is achieved.

State efforts to ensure the best possible outcomes for children in relative care and to effectively support the kin who care for them will be weakened through implementation of these sections of the proposed rule. Instead we need straightforward best practice guidance, tailored to the unique issues of kinship care and supported by administrative procedures designed for this purpose. CWLA would be pleased, and willing, to work with the Children’s Bureau to convene a group of experts and state officials to develop comprehensive best practice assessment tools and related protocols, including, but not limited to licensure, that would be suitable for ensuring safety, permanency, and well-being for children in kinship care.

Shay Bilchik