On Thursday, July 25, Senator Ron Wyden (D-OR) released a Senate “Dear Colleague” letter opposing the House Appropriations Aderholt Amendment. The letter was signed by 40 senators. There are some members who did not sign the letter due to their leadership roles on the Appropriations Committee and in the Senate, who are all but certain to oppose the amendment (Senators Murray (D-WA), Leahy (D-VT) on Appropriations and Schumer (D-NY), leadership) as well as some possible Republican members meaning that there are more than the 41 senators required to block the measure from moving forward in the Senate. The Wyden letter said in part:

“We strongly oppose the inclusion of such language in the Senate Bill or final appropriations law. The inclusion of such language would sanction taxpayer-funded discrimination and prevent a significant share of Americans from opening their homes to foster children…

It is never acceptable to use federal funds to discriminate based on religion, sexual orientation, gender identity, family structure, or marital status, but the timing of the House language is particularly egregious given the spike in foster care caseloads across the country brought on by the opioid epidemic. Children across the country are sleeping in hotels, assessment centers, and temporary shelters due to the lack of licensed foster parents. Allowing child welfare agencies to close the door to willingly and fully qualified foster and adoptive parents due to a difference in religious belief opens the door to taxpayer-funded discrimination and deprives vulnerable children of safe and loving homes.”

In addition, over 100 national and state child welfare organizations have issued a letter of opposition which is here. A letter of opposition by CWLA can be read here.

How it Could Hurt
The amendment in question is one that was attached to the House Committee on Appropriation’s version of the Labor-HHS-Education funding bill. Offered by Congressman Robert Aderholt (R-AL) it is similar to language and legislation sponsored by Senator Mike Enzi (R-WY) and Congressman Mike Kelly (R-PA). The Child Welfare Provider Inclusion Act (H.R. 1881). The amendment requires HHS to penalize state child welfare agencies by 15 percent of either the Title IV-B and/or IV-E funds if the state is found in violation in regard to placements in foster care and adoption and the provision of services for child welfare including prevention and child protection. This issue brief calculates what each state may lose in funding as a result of various anti-discrimination child welfare laws already enacted in each state.

The amendment would appear to supersede item 18 under the state plan requirements for foster care and adoption assistance. That requirement bans discrimination in placement and recruitment based on race, color or national origin. Something the child welfare community refers to as “MEPA (Multi-Ethnic Placement Act)” from 1994 and 1996.

One of the issues, and perhaps the motivating force by some, revolve around LGBTQ issues including the selection and recruitment of foster and adoptive parents. There is also the impact on youth in care as noted in the CWLA letter, “we oppose policies that treat youth who identify as LGTBQ unequally and/or subject them to discredited and/or abusive therapeutic techniques.” Proponents of the amendment, at least in some cases, see the new language as a way to deny such placements and decisions even when in the best interest of the child.

But in addition to some of these arguments is the practical matter of how this might impact on current and future funding particularly the new potential of services funding under the Family First Act (FFA).

The language states, “[HHS] shall not discriminate or take adverse action against a child welfare provider on the basis that the provider has declined or will decline to provide, facilitate, or refer for a child welfare service that conflicts with…the providers sincerely held religious beliefs or moral convictions.”

If the FFA is to succeed there will be a range of treatments and services that will be provided to a child and/or family. There could be any number of objections that could be raised in the future as service plans evolve. Note the debates in the 1980s over the promotion of self-esteem with children as a preventive approach to future drug use. Some argued such an approach was a counter to a strategy of shaming a child as a better deterrent. If there were moral objections to an in-home or therapeutic service someone could, at least in theory, reject providing a state approve well-supported program based on an individual provider’s belief.

Next Action
The House has left until after Labor Day so there will be no action in the House until the fall. The Senate is expected to take up a joint Labor-HHS-Education and Defense Department appropriations this week or later in August. To this point both sides have attempted to keep “poison-pill” amendments off Senate appropriations. With a filibuster target such as this (60 votes are required to break a filibuster) it will not be in a Senate bill. That means the next step would be when both sides negotiate a House-Senate compromise. That could happen in September even if the House fails to vote out their bill. The question then would be, will the House majority attempt to get the Alderholt amendment in a final deal—especially if it is an issue that would appeal to some voters in the upcoming November election.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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