The Final Rule on Federal Monitoring of State Child Welfare Programs

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Testimony on The Final Rule on Federal Monitoring of State Child Welfare Programs by Olivia A. Golden
Assistant Secretary for Children And Families
U.S. Department of Health and Human Services

Before the House Ways and Means Committee, Subcommittee On Human Resources
February 17, 2000

Madam Chairman and Members of the Subcommittee:

Thank you for the opportunity to appear before you today to discuss the final rule on the monitoring of child welfare programs published by the Department of Health and Human Services (HHS) on January 25, 2000. The issuance of the regulation is another major milestone in furthering our shared commitment to protecting children from abuse and neglect, ensuring that foster care is a temporary setting and not a place for children to grow up, promoting adoption for children who cannot safely be reunified with their own families, and promoting the well-being of all children and families served by the child welfare system.

As we discussed when I appeared before this Subcommittee last April, these last several years have brought about major changes in the laws and procedures governing the delivery of child welfare services. Most recently, thanks particularly to your extraordinary efforts, Madam Chairman and Mr.Cardin, we were successful in passing another important piece of legislation, the Foster Care Independence Act of 1999, which will help to ensure that young people who leave foster care without finding a permanent home, are given the supports, educational and vocational opportunities they need to take on the responsibilities of adulthood on their own. Working together in a bipartisan fashion, the Administration and Congress have enacted other far-reaching pieces of child welfare reform legislation, including the Adoption and Safe Families Act (ASFA) of 1997, the Multiethnic Placement Act of 1994 and the Inter-ethnic Adoption provisions of the Small Business Job Protection Act of 1996. Together these laws make it clear that ensuring child safety must be the paramount concern of child welfare services; that timely decisions about permanency must be made for all children in foster care; and that barriers to adoption, whether based on racial discrimination, geographic boundaries, or simply outmoded assumptions, must be torn down.

One key accomplishment stemming from the changes in law and the increased attention to child welfare issues has been the first ever significant increase in adoptions from the foster care system. As you know, this past September, we made the first awards to 35 States under the Adoption Incentive program, one of the innovative reforms authorized through ASFA. In 1998, 36,000 children were adopted from the foster care system, up from 31,000 in 1997 and 28,000 in 1996.

While we have accomplished much in the past several years, we know that there is much left to do. Allegations of abuse and neglect involving nearly 3 million children are reported to child protective services agencies each year, and nearly 1 million children are found to be victims of maltreatment. Over half a million children are in foster care on any given day over. Over 100,000 children in foster care are awaiting adoptive families, and, on average, these waiting children have been in foster care for more than three years.

As I noted in my testimony before you last spring, it is ultimately State government that has responsibility for carrying out child welfare programs and for protecting children in their care and custody, through a complex system that involves many agencies, organizations and individuals. States retain significant flexibility in designing programs and services to best meet the needs of children and families in their jurisdictions. But the Federal government also plays an important part by creating a common policy framework; sharing in the financing of child welfare services; supporting research, evaluation and innovation; providing technical assistance; and perhaps most importantly, by holding States accountable.

The final rule we have just published makes a critical contribution to these last two roles: technical assistance and accountability. It outlines a new results-oriented child and family services review process that will serve as the Federal government's key tool for finding out how State child welfare programs are doing at ensuring children's safety, permanency and well-being. It also provides a framework for providing States technical assistance and helping them to make needed program improvements, and it provides a tough, but fair way to ensure accountability. Finally, in addition to implementing this new approach to federal monitoring of State child welfare programs, the final rule also clarifies key provisions of ASFA, the Multiethnic Placement Act and Inter-ethnic Adoption provisions; and implements a new title IV-E foster care eligibility review system.

Background and History of the Regulation.

The final rule grows out of a 1994 congressional mandate directing the Department to revamp its system of child welfare monitoring, reflects extensive consultation and field testing, and incorporates key provisions of ground-breaking child welfare legislation passed during the time the new system was being developed. The final rule also reflects serious consideration of comments received on the proposed rule, including several from Members of Congress and this Subcommittee, which were extremely helpful in developing the final approach.

First, in 1994, as a result of widespread dissatisfaction with the prior review process, legislation was enacted that directed the HHS to develop a new monitoring system for child and family services. The Congress had already indicated dissatisfaction with the prior review process by declaring a moratorium on the Department's ability to collect penalties based on it. Specifically, the statute required HHS to regulate the requirements subject to review and the criteria used to measure compliance. In addition, the law also required the Department to provide States an opportunity for corrective action before imposing a penalty and specified that the penalty should be based on the degree of non-compliance.

We believed that the legislative mandate for change was so significant that we took the time to re-shape the reviews entirely, with the goal of focusing on outcomes B on the actual results that state child welfare systems were delivering for children in terms of safety, permanence, and well-being B rather than on process. We engaged in extensive consultation with the field on the conceptual framework, and we conducted thirteen pilot reviews that have informed the development of the child and family service reviews in fundamental ways.

While we were developing the revamped approach to monitoring, major bipartisan child welfare legislation was enacted: the Inter-ethnic Adoption provisions and the Adoption and Safe Families Act. We took the opportunity to clarify provisions in these laws by incorporating key elements into this regulation as well. In taking this approach, we have produced an encompassing rule that provides States with information on the manner in which their programs will be reviewed and evaluated, as well as the criteria and requirements that must guide the administration of their programs.

Finally, we issued a Notice of Proposed Rulemaking (NPRM) on September 18, 1998 and invited nationwide comment. We received 176 letters of comment from Members of Congress, State and local child welfare agencies, national and local advocacy groups for children, educational institutions, individual social workers, providers of child welfare services, State and local courts, national and State associations representing groups of practitioners, Indian tribes, and local community organizations. In analyzing these comments, we adhered to the following principles: keeping the focus on the goals of safety, permanency and well-being in State child welfare systems; moving child welfare systems toward achieving positive child and family outcomes while maintaining accountability; maintaining our stewardship role over the use of Federal funds; enforcing statutory requirements in ways that encourage strong State/Federal partnerships and program improvements; and using the lessons learned in the pilot reviews and information gathered in the consultation.

Overview of the Final Rule:

I would now like to provide an overview of the final rule, which covers four basic areas. First, the regulation outlines our response to the legislative mandate to re-design Federal reviews of State programs. The review process described in the regulation focuses on outcomes, that is, how a State performs in ensuring that:

Children are safe and free from risks of harm;
Children in foster care have an opportunity to achieve timely and appropriate permanency in their lives; and
Children and families who are involved with the child welfare system have their needs met in ways that promote their well-being and strengthen their opportunities for success in life.

Holding States accountable for results in these areas is a major departure from prior reviews and we believe that this approach to monitoring will have positive consequences for children.

Second, the rule includes the penalty and corrective action components of the Inter-ethnic Adoption provisions, which will assist us in enforcing its provisions.

Third, the rule also implements certain key aspects of the Adoption and Safe Families Act that are directed at improving States' efforts to achieve safety and timely permanency for children.

Finally, we have also updated the reviews of a child's eligibility for the title IV-E Federal foster care program. This final rule clarifies the statutory eligibility provisions, and also incorporates several requirements of the Adoption and Safe Families Act into the reviews.

I will now provide a more detailed look at each of the four sections.

Child and Family Service Reviews

By focusing on outcomes, the new reviews will determine what is actually happening to children and families as a result of their receipt of child welfare services, including child protective services, foster care, family preservation and family support, and adoption services. We will review State programs on the following seven outcomes:

Children are, first and foremost, protected from abuse and neglect;
Children are safely maintained in their own homes whenever possible and appropriate;
Children have permanency and stability in their living situations;
The continuity of family relationships and connections is preserved for children;
Families have enhanced capacity to provide for their children's needs;
Children receive appropriate services to meet their educational needs; and
Children receive adequate services to meet their physical and mental health needs.

The reviews also examine the functioning of key systemic factors that affect the ability of State programs to serve children and families effectively, including the State's capacity to generate automated information on the children it serves; the implementation of a case review system and quality assurance procedures; staff training and the availability of a range of services for children and families; the State's relationship with and responsiveness to the communities it serves; and the recruitment of foster and adoptive families.

In making decisions about the States' performance in these areas, we will use both quantitative and qualitative information that is obtained from several sources:

A statewide assessment completed by State staff and representatives from outside the State agency in order to assure accountability and balanced perspectives on the issues;
Statewide data indicators that provide a broad view of how the State is performing and that are based on the ASFA outcomes measures, such as repeat maltreatment of children, length of stay in foster care, and the length of time it takes for children to achieve adoption or reunification;
A sample of cases selected randomly that is reviewed on-site in the State by a joint team of State and Federal staff;
Interviews with community stakeholders, such as courts, children's legal representatives, foster families, and other agency representatives; and
Interviews with the children and families who receive services, as well as the foster families, caseworkers, and service providers involved with these children and families.

We are very pleased that we have retained the features of the child and family service reviews that States and other commenters supported most strongly in their comments on the NPRM. These include:

A timely outcome-based approach to reviewing child and family services, with a focus on the quality of services.
A tough but fair accountability process with an emphasis on program improvements, including opportunities for the States to have penalties suspended and rescinded if they make required improvements.
A focus on State and Federal partnerships resulting from jointly reviewing programs and developing program improvement plans.

The final regulation includes a number of changes that respond to the many extremely helpful comments we received about how best to design the process to accomplish these shared goals. For example, a number of commenters on the NPRM suggested that we increase the sample of cases reviewed on-site. However, a key lesson we learned in the pilots was that an extremely intensive on-site review, including interviews with key participants such as the child and the foster or adoptive family rather than just a review of what is already in the case files, is critical to developing good information about the real outcomes for children. We also learned in the pilots that high quality reviews are so time-intensive that we could not realistically increase the sample and maintain the quality of review. To balance these competing concerns and respond fully to the comments, we have kept the small but intensive sample as one key source of information but at the same time considerably strengthened a second source of information -- a rigorous statewide assessment that looks at key statewide performance data. In those cases where the statewide assessment and the on-site review give different results, we have incorporated a process for resolving discrepancies between the statewide assessment and the on-site review, including giving States the option of going to a larger sample.

Similarly, several comments, including some of the comments we received from members of Congress, encouraged us to make the measures by which we determine a State's compliance more measurable and quantifiable. We found these comments very helpful and have responded by strengthening the objective elements of the regulation while at the same time retaining a focus on necessarily subjective judgments of quality in the intensive review process. Among the specific statewide data indicators that we have included are measures of repeat maltreatment, the length of time children spend in foster care and the length of time it takes for children in foster care to achieve permanency, either through adoption or reunification. We will establish national standards for each of the statewide data indicators and use the review process to help all States improve their performance and achieve the standards. Other steps we have taken to increase objectivity include strengthening the statewide assessment procedures, defining more precisely how the States will be rated on the systemic factors under review, and strengthening the procedure for resolving discrepancies between information in the statewide assessment and the on-site review. We believe these steps will enable us to retain the qualitative focus of the reviews and to increase objectivity.

Finally, we received comments on the balance in the regulation between program improvement and technical assistance on the one hand and accountability and the imposition of penalties on the other. We are confident that States want to improve the outcomes for the children and families they serve, and will welcome the opportunities to engage in program improvement planning that are a part of this regulation. As required in the 1994 statute, we have included opportunities for States to receive technical assistance, to make improvements where needed, and to correct areas of non-compliance before we withhold Federal funds.

At the same time, we have strengthened the accountability provisions in the final regulation. For example, we have added to our proposed penalty structure for non-compliance provisions for gradually increasing the penalties for those areas of non-compliance that remain uncorrected over time. The graduated penalty provisions demonstrate our seriousness about working with States to ensure that they undertake program improvement efforts that lead to lasting changes, not short-term fixes for problems. Accountability is also enhanced by including community representatives who are external to the State agency in completing the statewide assessment and participating in the on-site reviews.

Multiethnic Placement Act (MEPA) and Inter-ethnic Adoption Provisions I would now like to discuss the second part of the regulation, which addresses the enforcement, penalty, and corrective action processes for violation of the Inter-ethnic Adoption Provisions. As you know, the 1996 Inter-ethnic Adoption Provisions are aimed at preventing discrimination in foster care and adoptive placements. The law prohibits delaying or denying the placement of a child with a prospective foster or adoptive parent on the basis of the child's or the adult's race or ethnicity. The statute also outlines penalties for violations of the law.

Both ACF and the Office of Civil Rights (OCR) have been rigorously enforcing MEPA since its enactment and the Inter-ethnic Adoption Provisions. For instance, in fiscal year 1999, OCR conducted over sixty-eight activities including complaint investigations, compliance reviews, training and technical assistance. This regulation furthers our efforts by clarifying how the enforcement process works and the penalties associated with violations.

The penalty process follows the statute closely. States found to have discriminated against an individual will be assessed a penalty consistent with the statute. If there are violations, not against an individual, but associated with the State maintaining a policy, statute, or procedure that would result in a violation against an individual if applied, the State must take corrective action within six months to avoid the assessment of a penalty.

The Adoption and Safe Families Act (ASFA)

The third part of this regulation is its implementation of certain provisions of ASFA. The ASFA made a wide range of reforms to Federal child welfare law, by emphasizing the necessity of ensuring children's safety; by shortening the time frames for making permanency decisions for children in foster care in recognition of their developmental needs and sense of time; by ensuring that permanency planning begins the moment a child enters foster care; by emphasizing the importance of results and accountability; and by encouraging innovation in the delivery of child welfare services.

The new regulations further the implementation of ASFA in two ways. First, we have incorporated the core principles of ASFA, that the safety and well-being of children must be the paramount concern in decision-making and that foster care is a temporary setting and not a place for children to grow up, into the core procedures and measures of the child and family services reviews and the title IV-E foster care eligibility reviews. In addition, the regulation specifically addresses and clarifies a number of ASFA provisions.

The regulation includes the ASFA requirement that States file a petition to terminate parental rights for children who have been in foster care for 15 of the most recent 22 months, abandoned infants, and children of parents who have committed certain offenses, unless an exception applies. We have made it clear in the regulation that there are no blanket exemptions from the termination of parental rights requirement, and we emphasize that States must make decisions not to pursue termination on a case-by-case basis. We have provided some examples of situations in the regulation that may constitute a compelling reason for not filing a petition to terminate parental rights, such as a situation involving an unaccompanied refugee minor.
With regard to the reasonable efforts provisions in ASFA, the regulation clarifies that States can define in State law the "aggravated" circumstances under which the State is not required to make reasonable efforts to prevent removal or to reunify a family due to safety considerations. We fully supported State flexibility with regard to this provision.
We also clarified in the regulation that States are now required to obtain a court order at least every twelve months to show that the State made reasonable efforts to finalize a permanent plan for the child in a timely manner, whether the plan is to reunify the child and parents, or achieve permanency through adoption or legal guardianship.

Title IV-E Reviews and Other Foster Care Requirements

The fourth major area included in the regulation is the title IV-E eligibility reviews. In these reviews, we exercise our stewardship role by ensuring that Federal funds are used only for eligible children who are placed with eligible providers. This is a critical review since many of the child protections included in ASFA, such as reasonable efforts provisions and criminal background clearances on foster and adoptive parents, are addressed in the title IV-E foster care reviews.

Among the foster care provisions we clarify in the regulation are the requirements relating to licensure of foster family homes as a prerequisite for the receipt of title IV-E foster care payments. The regulation clarifies that States must use the same licensing or approval requirements for all foster family homes, whether they are relative or non-relative foster homes. States may make some exceptions for relative homes in areas that do not affect the safety of children, for example, waiving a requirement about the minimum square footage of the home. In order to allow States a period of time to transition to the new requirements, the regulation allows States six months to bring all foster family homes into compliance with their licensing standards before we will withhold funds on that basis.

Through the regulation, we are also implementing the requirements for criminal background clearances on foster and adoptive families prior to a child's placement. Unless a State opts out of the requirement through the governor's action or the passage of a State law, the statute requires States to conduct criminal background clearances on prospective foster and adoptive parents as a pre-condition for the receipt of title IV-E Federal foster care funds.

Next Steps

We are very excited to be implementing this regulation as we believe that it will result in positive changes in the lives of vulnerable children and families. We are currently in the process of identifying the first group of States to be reviewed. Among the criteria that we are using to determine the order in which States will be reviewed through the child and family services review process are:

States with identified child safety issues should be early in the schedule;
States that have indicated a need for technical assistance to improve their programs should be early in the schedule; and
States that were reviewed through pilots can be reviewed later, in the absence of a strong need under the first two criteria.

We will conduct initial child and family service reviews in 17 States per year, beginning immediately to work with the group of states that will be completed in FY 2001. We expect that this group will complete the statewide assessment this year and be ready for on-site reviews early in FY 2001. We will also begin conducting the new title IV-E eligibility reviews and expect to conduct 10 reviews during the current fiscal year. Over the next four years, we will conduct both types of reviews in all 50 States.

In addition to implementing the new reviews, we are also, of course, moving forward in the full range of other activities needed to further our agenda in the child welfare area. We are continuing to provide technical assistance to States in the implementation of ASFA and MEPA and ensuring that their State laws are in compliance. We will again be working with States to award additional child welfare waiver demonstrations that can tell us about new ways to finance or deliver services to children. We will also be working with States to implement the provisions of the expanded and improved Independent Living Program. There is much work remaining, but we are committed to continuing to do all we can to improve the lives of the thousands of children and families in our nation's child welfare system.

In conclusion, I would like to thank all of the members of this Subcommittee for your efforts and your ongoing commitment to this important work. I would be pleased to answer any questions you may have.