Holding Pattern in Senate

Last week efforts to adopt the House version of the Family First Prevention Services Act, (HR 5456) (Conference Report 114-628) continued but success has stalled—at least temporarily.  By week’s end the only thing that was clear is that they had not yet reached unanimous support for the bill and passing it.  Senate unanimous consent is the only option to move the bill before the end of the congressional summer session this Friday.

When Congress leaves this week they will not return until after Labor Day.  If they can’t get a deal this week there are several options and none offer a simple path forward.  House and Senate supporters are reluctant to make changes, especially ones that may requires a new budget score, that would require another vote by the unpredictable House especially since a new vote would take place against a backdrop of a pending election with members worried about their own political futures.  If Senate leadership decided to make changes they could take quick action through the Senate Finance Committee which has not considered the bill but that would take even more limited time in September.  Significant changes could also require a new budget score.

No action means the two Title IV-B programs would be set to expire on October 1.  They could be extended (along with programs like TANF) for a few months until after the election.  A failure to reauthorize would not threaten the current funding for the Child Welfare Services (IV-B part 1) since appropriators have included the same flat funding level of $269 million in their current appropriations bills.  The impact on Title IV-B part 2, Promoting Safe and Stable Families, funded through a combination of discretionary and mandatory funds, is less certain.  Part of the funding, $20 million for the Court Improvement Program, would lapse.  In fact, both appropriations bills do not include that funding for FY 2017 due to an expiring authorization.  The adoption/kinship incentive fund would likely continue as it has in the past with an expired formula.

Concerns have been raised by California advocates and government officials and the potential impact of the bill on that state’s current reform initiatives.  Some of those concerns have been echoed by some other parties in other parts of the country.

The California concerns include the bills impact on future Title IV-E foster care funding for some otherwise eligible children.  IV-E eligibility is based on the law’s requirement that state’s assess eligibility based on the child’s “home of removal’ during the past six months.   A child in a services plan for more than six months who then needs to be placed into a foster care placement may not meet that test.  They have also raised questions about the bill’s impact on how the new foster care definitions would impact current juvenile justice placements and the impact on California programs that use IV-E funding for youth transitioning out of foster care at 16.

Some states are also holding out hope for an extension of the current Title IV-E waiver authority, which has never been under consideration and is opposed by several congressional offices.  The Committee report allows HHS to extend waivers through 2019 to align with the startup of the new services/treatment provisions.

There were also concerns raised about the maintenance of effort (MOE) that is part of the conditions attached to drawing down the new services/treatment funding.  That provision requires states to continue to spend the same prevention funds they allocated in 2014.  The committee report makes clear that the MOE refers only to funds spent on the prevention of foster care placements not broader child abuse prevention funding.

The bill also amends current definitions of foster care within Title IV-E to include a definition for family foster care homes limited to homes of six or fewer children (with state ability to waive the definition for sibling placements, children with special relationships to the foster parent, and children with disabilities).  It also establishes a new definition of child care institutions by creating a definition of qualified residential treatment program (QRTP). Some of the requirements here regarding the specific staffing and screening requirements have also raised concerns.  As a result, there have been assurances that there would be a colloquy—an on the record conversation or dialogue in a publication of record such as the Congressional Record—between Senator Orrin Hatch (R-UT) and Senator Ron Wyden (D-OR) regarding how there is flexibility in how some of the on-sight nurse requirements are interpreted by HHS.

History of Action

Much of this legislation’s history started with the introduction of a bill by Senator Ron Wyden (D-OR), S 1964, that extended the use of Title IV-E funding to services.  That introduction, after several weeks of feedback from advocates, resulted in a further negotiation between Senator Wyden and Senator Hatch.  Those negotiations resulted in the Families First Act and was released as a five-page description last fall but did not include legislative text.

Negotiations between key House and Senate staff started up this spring with an initial goal to extend the two expiring Title IV-B programs with the possibility of adding some new elements. Those discussions resulted in a House bill, Family First Prevention Services Act, (HR 5456) released in mid-June.  It was approved by the House Ways and Means Committee shortly after introduction and later by a voice vote on the House floor on June 21.

The legislation endorsed by CWLA and by several groups was introduced as a Senate bill, S 3065, on Friday, June 17 by Senators Hatch (R-UT), Wyden (D-OR), Bennett (D-CO) and Grassley (R-IA).  Since the House vote there have been a number of behind the scenes discussions involving key staff and Administration representatives with some key stakeholders including state and local government officials, advocates and other parties on a number of concerns.

The Budget Costs

The Congressional Budget Office (CBO) score or cost calculation indicates that the cost of expansion is more than offset and actually results in $66 million in federal savings over the ten-year required budget scoring time-period.  The cost is offset by the restrictions in residential/group care and the delay in the adoption assistance delink.  The cost includes $1.3 billion in up-front services which start in FY 2020.  The ten-year cost calculation is for the entire ten-year period but most of the federal costs is incurred between the 2020 to 2026-time period.  Additional costs of the legislation are a continuation of the Court Improvement Program (CIP) at $20 million a year for five years, funding for evidence-based Kinship Navigator programs costing $3 million next year rising to the $15 to $17 million range by 2022 and a one-time grant of $8 million for grants to states to promote foster parent recruitment. Almost all savings are from the restrictions and new definitions of institutional care ($910 million) and the delay in the adoptions assistance de-link for children 3 through infancy ($720 million)

Key Factors For Passage

Supporters of the legislation see the biggest benefit of the legislation is the potential expansion and access to Title IV-E entitlement funding for tested and approved mental health, substance use and in-home services not tied to the outdated link to the 1996 AFDC program.  Instead of an income-based eligibility there would be an eligibility based on whether or not the child is at-risk of a foster care placement and considered a “candidate for foster care.”

For these candidates, the child, the parent, guardian or adoptive family would be eligible for services for up to 12 months in a spell.  Services could also be available to a foster youth who is pregnant or parenting.  Services would be limited to promising, supported and well-supported programs with an emphasis on well-supported.  There would not be a limit on the number of 12 month spells in a child or family’s lifetime. These funds could also flow to post-permanence placements including children who are reunified and adoptive families who latter are in need of counseling and other interventions.

These new provisions as well as the restrictions regarding institutional care would start in FY 2020 which starts on October 1, 2019.  Programs funded would have to meet promising, supported and well-supported programs as defined in the bill.  By October 1, 2018 HHS would issue guidance on the practices criteria required for services or programs to satisfy the law’s requirements.  HHS would also provide a pre-approved list of services and programs that meet the requirements around promising, supported and well-supported.

A state would have to opt into such funding through an amendment to their five-year state plan outlining services provided, strategies and workforce standards.

Title IV-B Programs Reauthorization

The legislation reauthorizes the two Title IV-B programs which are set to expire by October 1. Child Welfare Services (CWS) is annually appropriated and is now down to $269 million a year.  Promoting Safe and stable families (PSSF), which includes the CIP is set at $345 million in mandatory funds and $69 million in appropriated funds.  The bill extends the two programs and makes some age changes to the Chaffee Independent Living Program.  To extend the court funding requires Congress to find $20 million a year because CBO considers it “new” spending despite the fact it is a continuation of the same program.  Changes include:

  • Extension of the adoption-kinship incentive fund (part of IV-E) continue the same formula for awards set in 2014
  • Extension of the Regional Partnership Grants of $20 million with adjustments including mandated participation by state substance abuse agencies and new funding allocations
  • Continuation of the $20 million caseworker visit-workforce funds
  • Increased eligibility for the Chaffee Independent Living program to age 23 (IV-E),
  • Increased eligibility for Chaffee student voucher eligibility to age 26 (IV-E)
  • Elimination of the 15-month time-limit on the use of PSSF funds for reunification services
  • A $5 million set aside drawn from appropriated funds for a grant to help spread the use of the NEICE Interstate Compact expansion initiative with states required to update their ICPC system by 2026
  • Requirements to include evidence of being in foster care as part of the document package for youth that age out (to assist young people eligible for Medicaid to age 26 if they were in foster care)
  • Continues the Court funding (CIP)
  • A new $8 million to create competitive grants that will address foster parent recruitment


 Some Key Implementation Timelines if Enacted

  • October 1, 2016 (FY 2017)

o   Reauthorization of the Title IV-B part 1 and part 2 programs

o   Allowing PSSF funding for reunification services beyond current 15-month limit

o   Extension of age limits for Chaffee transitional living funds to 23 and education vouchers to 26 in certain circumstances

o   States to include in state plans, planning strategies to prevent child fatalities

o   $5 million set aside from appropriated funds for 5-year ICPC web-based updating

o   Re-vamping some requirements of the regional partnership grants to address substance abuse

o   Continuation of Court Improvement Programs (CIP)

o   Allowing up to 12 months of foster care maintenance payments (without AFDC income test) for children placed with their mother in certain family-based treatment facilities during substance use treatment

o   2 ½ year delay of last two phases of de-linking adoption assistance from the 1996 AFDC eligibility standard

o   Allowing use of Title IV-E administrative funds to support evidence-based kinship-navigator programs

  • October 1, 2017 (FY 2018)

o   $8 million would be available (over 5 years) for HHS—provided competitive grants to support recruitment and retention of high quality foster families

  • April 1, 2018

o   States submit information to HHS on use of licensing standards for foster family homes, including an explanation of waiver of certain non-safety and non-health standards to place children in relative foster care settings

  • October 1, 2018 (FY 2019)

o   HHS provides guidance on meeting the promising, supported and well-supported requirements under the prevention services provisions

o   HHS provides a list of pre-approved services and programs that meet the standards

  • April 1, 2019

o   The final phase-out of the link between adoption assistance and the 1996 AFDC eligibility link restarts

  • October 1, 2019 (FY 2020)

o   States may implement and draw-down Title IV-E funds for foster care prevention services

o   New definitions of family foster care and child care institutions (residential and congregate care) with required screening, monitoring and other limitations

  • October 1, 2020 (FY 2021)

o   HHS provides performance measures based on children receiving foster care prevention services who later enter foster care

  • December 31, 2023

o   GAO Report due to assess whether more children have entered the juvenile justice system due to restrictions in new law