[Federal Register: January 25, 2000 (Volume 65, Number 16)]
[Rules and Regulations]
[Page 4019-4093]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja00-22]
[[Page 4019]]
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Part II
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Parts 1355, 1356 and 1357
Title IV-E Foster Care Eligibility Reviews and Child and Family
Services State Plan Reviews; Final Rule
[[Page 4020]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 1355, 1356 and 1357
RIN 0970-AA97
Title IV-E Foster Care Eligibility Reviews and Child and Family
Services State Plan Reviews
AGENCY: Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), Department of Health
and Human Services (DHHS).
ACTION: Final Rule.
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SUMMARY: This final rule amends existing regulations concerning Child
and Family Services by adding new requirements governing the review of
a State's conformity with its State plan under titles IV-B and IV-E of
the Social Security Act (the Act), and implements the provisions of the
Social Security Act Amendments of 1994 (Pub. L. 103-432), the
Multiethnic Placement Act (MEPA) as amended by Pub. L. 104-188, and
certain provisions of the Adoption and Safe Families Act (ASFA) of 1997
(Pub. L. 105-89).
In addition, this final rule sets forth regulations that clarify
certain eligibility criteria that govern the title IV-E foster care
eligibility reviews which the Administration on Children, Youth and
Families conducts to ensure a State agency's compliance with statutory
requirements under the Act, and makes other technical changes to the
race and ethnicity data elements in the Adoption and Foster Care
Analysis and Reporting System (AFCARS).
EFFECTIVE DATE: March 27, 2000.
FOR FURTHER INFORMATION CONTACT: Kathy McHugh, Director, Policy
Division, Children's Bureau, Administration on Children, Youth and
Families at (202) 401-5789.
SUPPLEMENTARY INFORMATION:
I. Background
II. Approach
A. Consultation With the Field
B. Analysis and Decision-Making
C. Regulation in Context
III. Discussion of Major Changes and Provisions of the Final Rule
A. Definitions
B. Child and Family Service Reviews
C. Enforcement of Section 471(a)(18) of the Act
D. Reasonable Efforts and Contrary to the Welfare Determinations
and Documentation
E. Case Plans and Case Review Requirements
F. Title IV-E Reviews
G. Special Populations
IV. Section-by-Section Discussion of Comments
V. Impact Analysis
Final Rule
I. Background
Titles IV-B and IV-E of the Social Security Act (the Act) are the
primary sources of Federal funds for State child welfare services,
foster care and adoption assistance. The Adoption Assistance and Child
Welfare Act of 1980 (Pub. L. 96-272), amended title IV-B child welfare
services to institute financial incentives for States to provide
certain protections for children in foster care under section 427 of
the Act. Public Law 96-272 also established Part E of title IV of the
Act, ``Federal Payments for Foster Care and Adoption Assistance.'' The
foster care component of the Aid to Families with Dependent Children
(AFDC) program, which had been an integral part of the AFDC program
under title IV-A of the Act, was transferred to the new title IV-E,
effective on October 1, 1982.
In August 1993, under the Omnibus Budget Reconciliation Act of
1993, Public Law 103-66, Congress again amended title IV-B, creating
two subparts and extending the range of child and family services
funded under title IV-B to include family preservation and family
support services. The family preservation and support services were
designed to strengthen and support families and children in their own
homes, as well as children in out-of-home care.
Later, through the Social Security Amendments of 1994, Congress
repealed section 427 and amended section 422 of the Act to include, as
State plan assurances, the protections formerly required in section 427
of the Act. As a result, ACF is no longer conducting ``427'' reviews to
determine if a State is eligible to receive additional title IV-B,
subpart 1 funds. Besides mandating the Secretary to promulgate
regulations for reviews of State child and family service programs, the
amendments to the Act at section 1123A required the Department to make
technical assistance available to the States, and afforded States the
opportunity to develop and implement corrective action plans designed
to ameliorate areas of nonconformity before Federal funds are withheld
due to the nonconformity.
In 1994, Congress passed the Multiethnic Placement Act (MEPA),
Public Law 103-382, to address excessive lengths of stay in foster care
experienced by children of minority heritage. One factor believed to be
contributing to these excessive lengths of stay in foster care was
State agencie' attempts to place children of minority heritage in
foster and adoptive homes with parents of similar racial or ethnic
backgrounds. The MEPA forbids the delay or denial of a foster or
adoptive placement based on the race, color, or national origin of the
prospective foster parent, adoptive parent, or child involved. At the
same time, Congress added a title IV-B State plan requirement to
section 422(b)(9) of the Act, to compel States to make diligent efforts
to recruit prospective foster and adoptive parents who reflect the
racial and ethnic diversity of the children in the State for whom
foster and adoptive homes are needed.
As originally enacted, section 553 of MEPA permitted States to
consider the cultural, ethnic, or racial background of the child and
the capacity of the prospective foster or adoptive parent to meet the
needs of a child of such background, as one of several factors in
making foster and adoptive placements. In 1996, through section 1808,
``Removal of Barriers to Interethnic Adoptions,'' of the Small Business
Job Protection Act (Pub. L. 104-188), Congress repealed section 553 of
MEPA, believing that the ``permissible consideration'' language therein
was being used to obfuscate the intent of MEPA. Section 1808 of Public
Law 104-188 amended title IV-E by adding a State plan requirement,
section 471(a)(18) of the Act, which prohibits the delay or denial of a
foster or adoptive placement based on the race, color, or national
origin of the prospective foster parent, adoptive parent, or child
involved. Section 1808 of Public Law 104-188 also dictates a penalty
structure and corrective action planning for any State that violates
section 471(a)(18) of the Act.
On November 19, 1997, President Clinton signed the first broad-
based child welfare reform legislation since Public Law 96-272 was
enacted in 1980. The Adoption and Safe Families Act (ASFA) of 1997,
Public Law 105-89, seeks to provide States with the necessary tools and
incentives to achieve the original goals of Public Law 96-272: safety;
permanency; and child and family well-being. The impetus for the ASFA
was a general dissatisfaction with the performance of State' child
welfare systems in achieving these goals for children and families. The
ASFA seeks to strengthen the child welfare system's response to a
child's need for safety and permanency at every point along the
continuum of care. In part, the law places safety as the paramount
concern in the delivery of child welfare
[[Page 4021]]
services and decision-making, clarifies when efforts to prevent removal
or to reunify a child with his or her family are not required, and
requires criminal record checks of prospective foster and adoptive
parents. To promote permanency, ASFA shortens the time frames for
conducting permanency hearings, creates a new requirement for States to
make reasonable efforts to finalize a permanent placement, and
establishes time frames for filing petitions to terminate the parental
rights for certain children in foster care.
II. Approach
A. Consultation With the Field
A Notice of Proposed Rulemaking (NPRM) was published in the Federal
Register on September 18, 1998 (63 FR 50058-50098) with a 90-day public
comment period. We received 176 letters within that period from State
and local child welfare agencies, national and local advocacy groups
for children, educational institutions, and individual social workers.
Other commenters on the NPRM included: Members of Congress, providers
of child welfare services, State and local courts, national and State
associations representing groups of practitioners, Indian tribes, and
local community organizations.
Prior to developing the NPRM, we consulted extensively with the
child welfare field. We conducted a series of focus groups related to
the child and family services reviews with representatives of State
programs and national organizations, as well as with family and child
advocates. In addition, State and Federal teams conducted 12 in-depth
on-site pilots of the child and family services reviews that shaped our
development of the regulation. We also conducted pilots of the title
IV-E eligibility reviews in 12 States during the fiscal years 1995
through 1998. Shortly after the enactment of ASFA, we held focus groups
in Washington, D.C. and in each of the 10 Federal regions to obtain
input from the field on the implementation of the new law.
B. Analysis and Decision-Making
We received a wide range of written comments on the NPRM,
representing a multitude of perspectives on Federal monitoring of State
child welfare programs and meeting title IV-E statutory requirements.
We received widespread support for an outcomes-focused approach to the
child and family services reviews and the inclusion of a program
improvement process subsequent to determinations of substantial
nonconformity, and have thus retained these features in the final rule.
We also received comments expressing concerns about other provisions of
the NPRM.
The major concerns from commenters centered around provisional and
two-tiered licensing systems for foster care homes, objectivity and
clarity of substantial conformity determinations in the child and
family services reviews, the enforcement of the Multiethnic Placement
Act (as amended), documentation of reasonable efforts and other
judicial determinations, and exemptions and exceptions from the
termination of parental rights provisions. We amended and clarified
many aspects of the final rule in response to these major issues and to
other comments. To guide us in maintaining an appropriate balance in
our analysis of the comments and decisionmaking for the final rule we
used several principles. Those principles are to:
Focus on Achieving the Goals of Safety, Permanency and Well-being in
State Child Welfare Systems
We believe that the Adoption and Safe Families Act of 1997 clearly
establishes safety, permanency and well-being as the key goals for
State child welfare systems. We were mindful, therefore, to have
regulatory provisions that would support these statutory goals. For
example, in the NPRM we proposed to prohibit provisional, or less than
full licensure of foster care providers for title IV-E purposes. Many
commenters opposed this prohibition for various reasons. Some were
concerned that since relative caregivers were often granted less than
full licensure, disallowing this practice for title IV-E purposes would
reduce kinship care and the stability it can provide in a child's life.
While we encourage States to consider permanency in kinship care
arrangements, the ASFA clearly requires the safety of the child to be
the paramount concern that will guide all child welfare services. In
addition, the statute on its face requires that a home is fully
licensed or approved as meeting the State's licensing standards for the
purpose of title IV-E eligibility. Therefore, we decided to retain the
proposed prohibition on less than full licensure, in part because the
statute as amended by ASFA compels us to ensure that children are in
safe placements.
We also chose to strengthen our focus on safety, permanency and
well-being in the child and family services reviews in a number of
ways. Many commenters were unclear about how we would measure these
outcomes, so we have strengthened our process for measuring and
determining substantial conformity with the safety and permanency
outcomes in particular, through the statewide assessment. We also heard
concerns that one of the safety outcomes was in fact two separate
outcomes, so we have divided the first safety outcome accordingly. We
believe that these modifications will help clarify our expectations for
States to achieve these outcomes.
Another example of strengthening our focus on permanency is in the
termination of parental rights provisions. Many commenters believed
that certain groups of children in foster care should be exempted from
the application of the provision for States to file a petition to
terminate parental rights. Consistent with the statutory framework and
desire for timely permanency for all children in foster care, we have
clarified that no group of children is to be exempted from the TPR
provision and State or tribal agencies may make exceptions to the TPR
requirements only on a case-by-case basis.
Move Child Welfare Systems Toward Achieving Positive Child and Family
Outcomes While Maintaining Accountability
As we noted in the NPRM, we have dramatically changed the focus of
State program reviews by examining the results that child and family
services programs achieve, rather than the accuracy and completeness of
the case file documentation. Most commenters overwhelmingly supported
this approach as one that would improve the provision of child welfare
services for children and families, and we have thus retained a focus
on outcomes in the final rule.
Some of the comments, however, also suggested that the flexibility
that is inherent in an outcomes-based approach must be properly
balanced with sufficient Federal oversight and State accountability. We
agree that flexibility and accountability must be balanced, and have
strengthened several provisions in the final rule in this respect. For
example, for States who were determined to be out of substantial
compliance on a child and family services review, we proposed to allow
States two years, with a possible extension to three years, to complete
a program improvement plan. Some commenters supported this length of
time as sufficiently flexible to address needed areas of improvement,
while others believed the program improvement period to be too long. In
response, we have clarified that we do not expect States to take the
full two
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years to complete program improvement in all cases, and note that a
State will only be able to extend a program improvement plan to three
years in rare circumstances subject to the approval of the Secretary.
Finally, we will apply penalties for nonconformity as soon as a State
fails to improve on an area of nonconformity within the interval noted
in the program improvement plan, rather than at the conclusion of the
entire plan. We believe that these changes to the final rule properly
focus the State on achieving outcomes while maintaining flexibility and
accountability.
We also believe it necessary to ensure State accountability in the
areas of documentation of reasonable efforts and contrary to the
welfare determinations and requirements related to enforcement of
section 471(a)(18) of the Act. Some commenters were concerned that the
documentation requirements and enforcement of section 471(a)(18) of the
Act were too inflexible. However, we believe that State accountability
and Federal oversight in these critical areas of child and family
protections and anti-discrimination consistent with the statute, will
lead to better outcomes for children and families.
Use Non-Regulatory Resources to Support Federal Statutory and
Regulatory Provisions
As we analyzed the comments, we carefully considered whether
Federal regulations were the appropriate vehicle to address certain
comments. We believe that we can better respond to some comments in a
venue separate from the regulatory process, such as through technical
assistance activities or program guidance.
For instance, some commenters requested regulations on title IV-E
training or programs under title IV-B of the Act. We have very limited
authority to expand the scope of the final rule beyond the issues
presented for public comment in the NPRM, but we are now aware of
certain issues that we may consider for future clarification. Other
commenters asked for specific guidance on working to reunify children
with parents who have substance abuse problems, or guidelines for
judges on reasonable efforts, while others requested information about
``best practices'' in concurrent planning. We are committed to
providing practice level guidance and will provide technical assistance
in a variety of forms rather than in regulation. Other commenters
requested Federal funds to subsidize legal guardianships, or train
courts and their staff. Under current authority, title IV-E funds
cannot be used for these purposes. However, we can direct States to our
resource centers who may have information on seeking non-Federal
funding sources for such initiatives.
C. Regulation in Context
This final rule incorporates many provisions of recently enacted
legislation, including the Adoption and Safe Families Act of 1997, the
Multiethnic Placement Act of 1994 as amended, and the Social Security
Act Amendments of 1994. We received some comments that criticized us
for not focusing on the requirements of ASFA and other amending
legislation. We believe that some commenters were unclear that, to a
large extent, provisions of ASFA, MEPA, etc. amend the Social Security
Act (the Act), and that we refer to the requirements by their citation
in the Act, rather than their citations in the amending legislation. We
believe that this final rule does address the requirements of the
amending legislation in the context of the existing requirements of
titles IV-B and IV-E of the Act.
In addition to the guidance provided by this final rule, we
encourage administrators to use the appropriate statutes as references
in implementing Federal requirements. Also, the final rule amends
existing regulations at 45 CFR part 1355 and 45 CFR part 1356.
Therefore, we encourage the reader to examine and implement the rules
herein in conjunction with existing regulations that have not been
amended.
III. Discussion of Major Changes and Provisions of the Final Rule
Discussed below are some of the major changes and provisions of the
final rule. A more thorough response to the individual comments can be
found in the section-by-section discussion.
A. Definitions
Overall, we received comments that requested greater clarity on
several definitions. We frequently encountered comments that noted that
the Federal definitions did not encompass the variety of State
definitions or practice. Where a definition was not essential to the
proper implementation of the program, we chose to be flexible and leave
definitions to the State's discretion. In particular, we deleted
definitions of a ``full hearing'' and a ``temporary custody hearing''
as the comments revealed that they were limiting and not helpful to
States. We also received comments that requested additional definitions
for terminology used in the statute or in the regulation, e.g.,
``compelling reasons,'' ``aggravated circumstances,'' and ``reasonable
efforts.'' In most cases we chose not to regulate additional
definitions as we do not wish to be more prescriptive and restrict
State flexibility.
The proposed definition of the ``date a child is considered to have
entered foster care'' elicited many comments requesting more clarity
and State flexibility. In response, we have revised the definition to
mirror the statutory language more closely. The ``date a child is
considered to have entered foster care'' is no longer different for
children placed in foster care under voluntary placement agreements,
but more consistently applied. We also have clarified that a State can
use a date earlier than the outside Federal limit set in the statute to
begin the ``clock'' for satisfying the requirements for holding
periodic reviews, permanency hearings, and for the termination of
parental rights (TPR).
We received many comments on the definition of a ``foster family
home'' that urged us to allow provisional licensure and a two-tiered
system of licensing and approval. Despite these comments, we are
prohibiting these practices, consistent with the statute, to ensure
that children receiving title IV-E funds are placed safely in licensed
homes. In recognition that some time may lapse between the date when a
foster family home satisfies all requirements for licensure or approval
and the actual date the license is issued, we will allow States to
claim title IV-E reimbursement during this period, not to exceed 60
days. To accommodate those States where current State practice is not
consistent with the requirements for foster family homes, we will allow
a six-month period for States to bring current foster family homes to
the appropriate licensing standards.
B. Child and Family Services Reviews
We received many comments in response to the proposed child and
family services review process that have helped us strengthen it
significantly from that proposed in the NPRM. In the NPRM and in the
early pilot reviews, we relied heavily on the findings from the on-site
reviews to make determinations about substantial conformity. In the
final rule, we believe we have balanced our use of statewide
quantitative indicators with case-specific qualitative observations in
our decision-making about substantial conformity. Among the major
changes we have made in the child and family review process are the
following: We have strengthened the use of the statewide assessment,
selected particular statewide data indicators to use in determining
substantial
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conformity, more clearly defined the process for reviewing the systemic
factors, clarified the criteria for determining substantial conformity,
increased the frequency of full reviews for States not in substantial
conformity, added a discrepancy resolution process, and added graduated
penalties for continuous nonconformity.
Most of the comments we received, particularly from the States,
strongly favored the change to the results-and outcome-based review
process proposed in the NPRM from the prior emphasis on compliance with
procedural requirements. Similarly, we received very strong support for
proposing a review process that provides time for States to improve
programs and enhance services to children and families rather than one
that imposes immediate penalties for nonconformity with certain
requirements. A number of comments also indicated concerns about the
details of the review process and raised issues about the overall
approach that ACF is taking in reinventing the child and family
services reviews.
Since we did not include all of the details of the reviews in the
proposed rule, we would like to explain the procedures in more detail
prior to addressing the major changes we made to the child and family
services review.
We will review State programs in two areas: (1) Outcomes for
children and families in the areas of safety, permanency, and child and
family well-being; and (2) systemic factors that directly impact the
State's capacity to deliver services leading to improved outcomes. The
outcomes are as follows:
Safety Outcomes
1. Children are, first and foremost, protected from abuse and
neglect.
2. Children are safely maintained in their homes whenever possible
and appropriate.
Permanency Outcomes
1. Children have permanency and stability in their living
situations.
2. The continuity of family relationships and connections is
preserved for children.
Child and Family Well-Being Outcomes
1. Families have enhanced capacity to provide for their children's
needs.
2. Children receive appropriate services to meet their educational
needs.
3. Children receive adequate services to meet their physical and
mental health needs. Each outcome is evaluated by using specific
performance indicators and two outcomes are evaluated using data
indicators as well.
State programs will also be reviewed to determine the extent to
which the State agency has implemented State plan requirements that
build the capacity to deliver services leading to improved outcomes. We
describe such State plan requirements as systemic factors. These
systemic factors include: (1) Statewide information systems; (2) case
review system; (3) quality assurance system; (4) staff and provider
training; (5) service array; (6) agency responsiveness to the
community; and (7) foster and adoptive parent licensing, recruitment
and retention. Each of the systemic factors subject to review is based
on specific State plan requirements. Our review and assessment of the
systemic factors will be based on the extent to which the State is in
conformity with those State plan requirements.
We also want to clarify how the various components of the review
process will inform decisions regarding substantial conformity.
Four sources of information are included in the child and family
services reviews in order to make decisions about substantial
conformity:
<bullet> Statewide AFCARS and NCANDS data on foster care, adoption
and child protective services, including the State's performance on
statewide data indicators with respect to the national standards for
such;
<bullet> Narrative information on outcomes and systemic factors;
<bullet> Case-specific qualitative information and family
interviews on outcomes; and
<bullet> Interviews with non-case-specific State and local
community representatives on outcomes and systemic factors.
To complete this review effort, several tools will be used,
including:
<bullet> A field-tested CFSR procedures manual that addresses the
steps to be followed in the reviews and supplements information
included in the rule;
<bullet> A statewide assessment instrument that directs the
utilization of statewide foster care, adoption and child protection
data to complete a narrative discussion of the outcomes and systemic
factors reviewed, and the State's performance in meeting the standards
for the statewide data indicators;
<bullet> An on-site intensive review instrument;
<bullet> Interview protocols for use with State and local
stakeholders; and
<bullet> A summary of findings and recommendations form that
enables the review team to address each outcome and systemic factor
reviewed. This form, when completed, serves as the report of the review
findings to the State.
There are five steps in the review process, from the point of
initiating the review to assessing penalties where determinations of
nonconformity are made:
<bullet> Prior to the State beginning work on the statewide
assessment, ACF prepares and transmits data profiles of the State's
foster care and child protective service populations, using AFCARS and
NCANDS data submitted by the State. Some examples of the data included
in the profiles include the length of stay in foster care, foster care
re-entries, and repeat maltreatment rates of children. The data will
indicate whether or not the State meets the national standards for
those statewide data indicators used to determine substantial
conformity.
<bullet> The State then completes the statewide assessment. This
task requires the State to examine the data relative to the State
programs, goals, and objectives, and consider them in light of the
outcomes for children and families subject to review. The State also
addresses in narrative the systemic issues under review relative to
their influence on the State's capacity to deliver effective services.
Based on the quantitative and qualitative findings of the statewide
assessment, the State and the ACF Regional Office jointly make
decisions about the locations of the on-site review activities and the
types of cases that will be reviewed on-site.
<bullet> The on-site review is conducted by a joint Federal-State
team that combines both the outcomes and the systemic factors being
reviewed. In reviewing for the outcomes, a sample of cases is reviewed
intensively using information from the case record and interviews with
family members, the caseworker, and service providers involved with the
family. The findings from the sample of cases are combined with the
State's performance on selected Statewide data indicators to make
determinations about substantial conformity on the outcomes. In
reviewing for the systemic factors, interviews are conducted with State
and local representatives, e.g., courts, other agencies, foster
families, and foster care review boards. The information from these
stakeholder interviews is combined with information on the systemic
factors in the statewide assessment to make determinations about
substantial conformity on the systemic factors.
<bullet> The review team recommends a determination regarding
substantial conformity, for each of the outcomes and systemic factors
reviewed. The basis for the determinations is a
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combination of quantitative and qualitative information from the
statewide assessment and the on-site review related to each outcome and
systemic factor.
<bullet> States are immediately informed of any penalties
associated with outcome and systemic factors determined not to be in
substantial conformity. Program improvement plans are developed to
address each area of nonconformity and the State has a limited period
of time to successfully complete the program improvement plan before
penalties are actually taken.
A number of the comments we received reflected a need for more
clarity regarding the overall process. As noted earlier, we did not
include all the details of the reviews in the proposed rule, but chose
to regulate only the basic framework of the process, including the
overall approach to the reviews, the standards for substantial
conformity, and the State plan requirements subject to review as
required in section 1123A of the Act. We chose to address specifics
about how the reviews will be conducted, the performance indicators
that will be used to measure outcomes, and some aspects of the process
for determining substantial conformity in a procedures manual we
developed separately from the NPRM. This procedures manual will
supplement the regulation with additional detail that State and Federal
staff will need to conduct the reviews. The procedures manual will be
in final form for the initial reviews to be conducted following
publication of this rule.
While we recognize the need to be clear on the details of the
review process, we also need to maintain the flexibility to make
appropriate changes that support the results-focused approach to
Federal reviews of State programs. Although we have field-tested the
proposed review process extensively in 12 States to date, we believe
that not regulating certain aspects of the review process affords both
the Federal government and the States an ongoing opportunity to benefit
from lessons learned in future reviews and make improvements to the
process where needed.
We have made significant changes to the review protocol in response
to the concerns raised through public comment. The most significant
concerns relate to:
<bullet> The process and specific criteria for determining
substantial conformity with State plan requirements;
<bullet> The degree of subjectivity involved in determining
substantial conformity;
<bullet> The small sample size used in the on-site portion of the
reviews; and,
<bullet> The amount of penalties associated with nonconformity.
The following addresses the major issues noted above that were the
subject of the majority of the comments and changes to the regulation:
Determining Substantial Conformity With State Plan Requirements
Most of the respondents to the NPRM generally supported a
determination of ``substantial conformity,'' rather than requiring a
determination of conformity on each specific title IV-B and IV-E State
plan requirement. Of particular concern to commenters were:
<bullet> The standards used to make determinations of substantial
conformity for outcomes;
<bullet> The process for resolving discrepancies in the aggregate
data from the statewide assessment and the information obtained from
the on-site review; and,
<bullet> The criteria used to determine substantial conformity for
the systemic factors being reviewed.
Standards used to make determinations of substantial conformity for
outcomes. The primary concerns regarding this issue include a lack of
clarity with respect to how substantial conformity is determined and
the standards that States are expected to meet in achieving substantial
conformity. Commenters particularly requested that we set a more
tangible, objective standard for substantial conformity. In response to
these comments, and concerns raised about the sample size for the on-
site portion of the review, statewide data indicators that are measured
against national standards, in combination with the findings of the on-
site review, will be used to determine substantial conformity.
Statewide data indicators. The following statewide data indicators
will be used in combination with findings of the on-site review to
determine substantial conformity with the outcomes.
Outcome S1: Children are, first and foremost, protected from abuse
and neglect. Data indicators: Repeat maltreatment. Of all children who
were victims of substantiated or indicated child abuse and/or neglect
during the period under review, what percentage had another
substantiated or indicated report within a 12-month period?
Maltreatment of children in foster care. Of all children in foster
care in the State during the period under review, what percentage was
the subject of substantiated or indicated maltreatment by a foster
parent or facility staff?
Outcome P1: Children will have permanency and stability in their
living situations. Data indicators: Foster care re-entries. Of all
children who entered care during the period under review, what
percentage re-entered foster care within 12 months of a prior foster
care episode?
Length of time to achieve the permanency plan.
Of all children who were reunified with their parents or caretakers
at the time of discharge from foster care, what percentage was
reunified in less than 12 months from the time of the latest removal
from home?
Of all children who exited care to a finalized adoption, what
percentage exited care in less than 24 months from the time of the
latest removal from home?
Stability of foster care placement. Of all children served who have
been in foster care less than 12 months from the time of the latest
removal from home, what percentage have had no more than two placement
settings?
Length of stay in foster care. For a recent cohort of children
entering foster care for the first time in the State, what is the
median length of stay in care prior to discharge?
The national standard for each statewide data indicator identified
above will be based on the 75th percentile of all State' performance
for that data indicator, as reported in AFCARS and NCANDS. We
considered using the 90th percentile and the median to establish the
national standard and rejected both because these standards,
respectively, were deemed either too high or too low. This is
illustrated, based on 1998b (April 1-September 30) AFCARS data, and
1997 NCANDS data (available for repeat maltreatment only) in the chart
below.
------------------------------------------------------------------------
Measure Median 75th 90th
------------------------------------------------------------------------
% of children with repeat maltreatment within a 11 7 2
12-month period................................
% of children re-entering foster care........... 20 13 6
% of children reunified in less than 12 months 72 80 88
from latest removal............................
% of children adopted in less than 24 months 16 26 43
from the latest removal........................
% of children in care less than 12 months with 63 77 85
no more than 2 placements......................
[[Page 4025]]
Median length of stay in foster care prior to 18 12 10
discharge (months).............................
------------------------------------------------------------------------
Note: Data for maltreatment of children in foster care is not available
for the purposes of this illustration, but will be available when we
calculate the standard.
We recognize that we have set a high standard. However, we think it
is attainable and that our overall approach for moving States to the
standard through continuous improvement is sound.
We anticipate that the standard for each data indicator based on
AFCARS data will be derived from the 1998b, 1999c (complete Federal
fiscal year) and 2000a (October 1-March 31) reporting periods and the
standard for each data indicator based on NCANDS data will be derived
from the 1997 and 1998 reports. However, if we have more current and
complete data available, for example the 1998 and 1999 NCANDS reports,
we will use these data submissions to develop the standard. By using
multiple reporting periods we will increase the number of States that
participate in setting the standard.
As we considered how to develop the national standard, we noticed
that States with smaller caseloads were clustered in the upper
percentiles with respect to performance on the data indicators. We did
not want States with larger caseloads to be disadvantaged, therefore,
we explored setting multiple standards based on caseload size. We
derived the variable ``number of children in foster care per 10,000
children under 18 years old in the general population'' and used it to
test State performance on certain statewide data indicators. We found
no correlation between the variables. In short, caseload size was not
useful in explaining the variation in State performance with respect to
the national standards, so it was not considered in setting the
national standards.
Because this concept of setting a national standard for data and
basing substantial conformity, in part, on a State's ability to meet
such a standard is untested, we purposely limited the number of
outcomes to which we assigned statewide data indicators. For example,
we did not assign data indicators to Safety Outcome #2 or Permanency
Outcome #2, although we will consider adding indicators to those
outcomes at a later time. We will also consider adding to or revising
the data indicators listed above as needed. For example, we will
consider adding timeliness of initiating investigations of child
maltreatment to the safety outcomes later if there is a broad enough
national data base through NCANDS to support that indicator. In
addition, to date, there are no uniform national data indicators
collected through AFCARS or NCANDS that can be used to review for the
Well-being outcomes.
We expect the statewide data indicators to change over time and,
therefore, did not regulate them. We chose to base the first set of
statewide data indicators on the outcome measures that were developed
in accordance with section 203 of the ASFA for two reasons:
<bullet> We received many comments requesting that the section 203
measures and the child and family services reviews be consistent with
one another; and,
<bullet> The section 203 measures were developed in conjunction
with a consultation group and were published in the Federal Register
for public comment.
We would also like to note that many of the data indicators and
performance measures we selected are consistent with and support the
work of ACF in meeting the requirements of the Government Performance
and Results Act of 1993 (GPRA). Under GPRA, Federal agencies are
required to work with the States to establish performance goals and
monitor performance results for all Federal programs. We believe that
the outcomes and data indicators used in the CFSR support one of ACF's
objectives under GPRA to increase the safety, permanency, and well-
being of children and youth.
We have, however, in regulation, retained our authority to add new
data indicators, change existing data indicators, and suspend the use
of data indicators as appropriate. We took a similar approach to
setting the national standards. The standards will not change every
year. Rather, we have retained our authority to periodically review and
revise the standards if experience with the reviews indicates
adjustments are necessary.
Findings from the on-site portion of the review. During the on-site
portion of the review, a set of performance indicators is used to
review the outcome and determine the extent to which the outcome has
been achieved. Since the individual circumstances of each child and
family are unique, the performance indicators serve most effectively as
a guide to help the reviewer gather appropriate information from a
variety of sources. Experience has taught us that reviewing only the
information that is recorded in a written case record is insufficient
for assessing outcome achievement. Therefore, the reviewer explores the
performance indicators through the case record review and through
interviews with the individuals relevant to each case. Some components
of the indicators are quantitative, such as the number of entries into
foster care a child has experienced or the number of reports of
maltreatment that have been received on a child. However, there are
also indicators that are qualitative in nature that help explain the
circumstances behind the numbers, such as reasons for re-entry into
foster care or the nature of the reports of maltreatment received on a
child. Indicators are rated as an area of strength or an area in need
of improvement. For outcomes that have multiple indicators, if all but
one of the indicators are rated as a ``strength,'' the outcome is
determined ``substantially achieved'' in that particular case. We
learned from the pilots that the information gathered in the on-site
review using instruments structured in this way most often led
reviewers to a general consensus regarding the degree of outcome
achievement.
Standard for substantial conformity with the outcomes. For the
outcomes to which statewide data indicators are assigned, a State must
meet both the national standard for the statewide data indicators and
substantially achieve the outcome in 90 percent (95 percent in reviews
subsequent to the initial review) of the cases reviewed on-site to be
considered in substantial conformity. We will resolve any discrepancies
between the Statewide data and the on-site review findings so that
substantial conformity does not rely totally on one or the other
information source. This approach permits on-site exploration of the
reasons why performance with respect to the statewide data indicators
might not be an accurate indicator of statewide performance. Outcomes
for which there are no assigned statewide data indicators must be
substantially achieved in 90 percent (95 percent in reviews subsequent
to the initial review) of the cases reviewed on-site to be considered
in substantial conformity.
Program improvement regarding statewide data indicators. Any State
found not to be in substantial conformity with an outcome must enter
into a program improvement plan. When the national standard is not met
on any of the statewide data indicators used to determine substantial
conformity, States must engage in continuous improvement toward the
national standard in the program improvement plan. This means that ACF
will negotiate with the State to determine how much progress toward
meeting the standard, in terms of absolute percentage points, the State
[[Page 4026]]
will make to successfully complete a program improvement plan. We
retain final authority to determine how much improvement the State must
make. In reviews subsequent to the initial child and family services
review, we will consider prior program improvement efforts, including
continuous improvement in meeting the national standard, when
negotiating the degree of improvement required to successfully complete
a program improvement plan.
Resolving discrepancies in the aggregate data from the statewide
assessment and the information obtained from the on-site review
pertaining to the outcomes. We received a number of comments addressing
this issue, particularly concerning how discrepancies between the two
sets of information will be resolved. New Sec. 1355.33(d) provides more
detailed information on the steps we will take to resolve discrepancies
between the aggregate data and the findings of the on-site portion of
the review. In order to resolve discrepancies between the statewide
assessment and the findings of the on-site portion of the review we
will provide the State the option of either of the following:
<bullet> The submission of additional information by the State that
will explain or resolve the discrepancy, such as additional data or
analysis of the existing data, or
<bullet> ACF and the State will review additional cases, but only
for the indicators with a discrepancy that must be resolved. The total
number of cases reviewed may not exceed 150 cases, and will represent a
statistically significant sample with a 90 percent (or 95 percent in
subsequent reviews) compliance rate, a tolerable sampling error of 5
percent, and a confidence coefficient of 95 percent. The conclusions
made from reviewing the additional cases will form the basis for
determining substantial conformity.
Criteria used to determine substantial conformity for the systemic
factors being reviewed. The concerns related to determining substantial
conformity for the systemic factors: (1) Statewide information systems,
(2) case review system, (3) quality assurance system, (4) staff and
provider training, (5) service array, (6) agency responsiveness to the
community, and (7) foster and adoptive parent licensing, recruitment
and retention were similar to those for the outcome areas: A lack of
clarity on how substantial conformity is determined and on the
standards that States are expected to meet in achieving substantial
conformity. In response to these concerns, we have established a
process for rating the State's conformity with State plan requirements
that is based on information obtained from the statewide assessment and
the on-site stakeholder interviews. Information from the statewide
assessment and interviews with stakeholders on-site must support a
determination of substantial conformity. The review team will rate the
State's performance for each systemic factor using a Likert-type scale,
with criteria attached to each rating, based on the total information
obtained from a variety of stakeholders interviewed on-site.
Except for ``information system capacity,'' all of the systemic
factors reviewed have more than one State plan requirement associated
with them that are included in the review process. A State's conformity
with each systemic factor will be rated on a scale of 1-4, based on the
extent to which there are processes in place which meet the State plan
requirements associated with that systemic factor. For example:
----------------------------------------------------------------------------------------------------------------
Not in substantial conformity Substantial conformity
----------------------------------------------------------------------------------------------------------------
1 2 3 4
----------------------------------------------------------------------------------------------------------------
None of the State plan requirements Some or all of the All of the State plan All of the State plan
is in place. State plan requirements are in requirements are in
requirements are in place, and no more place and functioning
place, but more than than one of the as described in each
one of the requirements fails to requirement.
requirements fails to function as described
function at the level in each requirement *.
described in each
requirement *.
----------------------------------------------------------------------------------------------------------------
* For the systemic factor, ``information system capacity,'' if it is determined that a system is in place but
not functioning at the level described in the one State plan requirement reviewed, that factor is rated a
``2'', rather than a ``3''.
The statewide assessment requires the State to evaluate each of the
State plan requirements. Information from that source is used in part
to determine how the State is complying with each State plan
requirement. During the on-site review, selected local and statewide
stakeholders will be interviewed and asked a series of questions that
relate to the State plan requirements. Not every stakeholder
interviewed will be able to address each systemic issue thoroughly.
Thus, for each systemic factor, the review team must use the total
information obtained from all the interviews to evaluate the extent to
which the requirements are being met. Both the information from the
statewide assessment and the stakeholder interviews must indicate that
the State should receive a ``3'' rating or better for that systemic
factor in order for the State to be found in substantial conformity. To
ensure objectivity in the information gathered through stakeholder
interviews, we have amended the regulation at Sec. 1355.33(c)(4)(iv) to
set minimum requirements with respect to the selection of stakeholders
who must be interviewed.
Subjectivity in Determining Substantial Conformity
Many respondents to the NPRM indicated that we needed to strengthen
the rule to assure increased objectivity in making determinations of
substantial conformity. Given the focus of the reviews on qualitative
measures and degrees of outcome achievement, concerns raised included
reviewers making subjective judgments on outcome achievement, holding
States accountable for these judgments, and a lack of clarity on the
standards used to make decisions.
We agree that the need to insure objectivity in the decision-making
process is extremely important. In fact, we realized early in the
design process of the reviews that proposing a results-focused review,
as opposed to the checklist-style reviews of documentation conducted in
the past, would raise concerns about the level of objectivity in the
reviews. However, to design a review process that focuses on results
and outcomes we must evaluate not only what happens to children and
families as a result of the State' interventions, but the circumstances
and mitigating factors that affect both the interventions and the
results. To accomplish this, our review process must utilize both
quantitative and qualitative assessments. We also realize that
determinations regarding outcome
[[Page 4027]]
achievement in the areas of safety, permanency and well-being require
judgments based on the specific circumstances of individual children
and families, and that we need to standardize the criteria for making
those judgments in order to ensure objectivity.
As noted in the NPRM, we included several criteria and procedures
in the pilot reviews that were designed to make the reviews as
objective as possible and to result in consistency among reviewers and
across States in making critical judgments about outcome achievement.
Those measures include:
<bullet> Using statewide aggregate data and qualitative information
from the statewide assessment to understand and interpret the status of
outcomes and systemic factors;
<bullet> Applying uniform criteria or performance indicators that
guide reviewers to an accurate conclusion about the extent to which the
outcome is being achieved in each case;
<bullet> Training State and Federal reviewers in the use of
standardized review instruments and protocols; and,
<bullet> Using a quality assurance procedure during the course of
the review by requiring local team leaders to review case ratings and
debrief daily with reviewers to ensure that criteria are applied
consistently.
In piloting the reviews, we also determined that the objectivity
and uniformity of the process could be strengthened in several areas.
For example, we learned that the Statewide assessment was prepared
differently among the pilot States and that the manner of collecting
the data for the safety and permanency profiles was not uniform,
particularly in States where AFCARS or NCANDS data were unavailable.
These factors made it difficult to rely upon information in the
statewide assessment.
In regard to case selection, we found that the manner of selecting
cases for the on-site review varied among States in ways that made it
difficult to assure randomness. Through the pilots and the comments we
received on the instruments, we became aware that the protocols used to
review cases could be improved to reflect, more objectively, those
factors that determine conformity with State plan requirements.
In response to these lessons and others, we have strengthened the
provisions for objectivity in the reviews by adding a number of
measures to the final rule and the CFSR procedures manual. We are also
making substantial changes to the content of the instruments used in
the reviews that will assist in making objective determinations and
addressing the relevant areas of State plan conformity.
Most of the comments regarding subjectivity were related to the on-
site review. The comments we received concerning subjectivity in the
review process arise from genuine concerns that States be held
accountable to an objective set of criteria. We also have learned from
the pilot reviews that we must be willing to accept the professional
judgment of reviewers in determining substantial conformity. Where
there are adequate procedures in place to assure consistency and
accuracy in decision-making, as we have described above, we believe
professional judgments will be objective.
We recognize that it is much more difficult to determine whether or
not a child is safe than it is to determine, for example, that a date
on a court order meets specified time frames. Reviewing for outcomes
requires gathering both qualitative and quantitative information,
examining the information within an appropriate context and,
ultimately, making a judgment about how well the outcome is or is not
being achieved. Caseworkers in the field must make these judgments
every day, and children's lives depend upon the accuracy of that
process. A review process that only checks for procedural requirements
and does not evaluate the quality of the decision-making process and
service delivery that we expect of caseworkers is not likely to yield
findings that will help States improve those processes where needed.
Sample Size for On-Site Reviews
In the NPRM, we proposed to review a sample of 30-50 cases. Most of
the comments we received indicated strong concerns that reviewing only
30-50 cases may not be representative of the State' service populations
and would not lead to credible judgments of substantial conformity. A
number of commenters questioned how such a small sample could be
statistically valid and expressed concern over imposing penalties based
on a small sample of cases. Some respondents indicated a fear that we
would be basing decisions about substantial conformity on ``anecdotal''
information in the absence of a much larger sample.
Clearly, to many of the commenters, sample size is a major issue,
and we wish to explain our rationale for making only modest changes to
this feature of the review in the final rule, based on the lessons we
learned in the course of piloting the new review process. We want to
emphasize that two changes also address these concerns about the sample
size: Adding the statewide data indicators and a process to resolve
discrepancies that may include reviewing additional cases.
<bullet> We found little discrepancy between the statewide data and
the findings from the small sample. We should note that we experienced
minimal disagreement among reviewers (State and Federal) and between
the statewide data and the findings made on the basis of the small
samples in the pilot reviews. The findings of the pilots were similar
to those noted in State quality assurance systems, where those systems
were in place in pilot States. In most situations, the findings
provided State officials with sufficient details about the functioning
of their programs to make improvements where needed and to build on
existing strengths in their programs.
<bullet> We learned that we cannot make accurate decisions in a
results-focused review by only reviewing documentation in records. We
began by pulling a large sample in the first four pilot States. We
conducted a record review in all the cases, similar to prior reviews,
except we were attempting to capture both qualitative outcome and
quantitative information from the records. In a smaller subsample of
the larger sample, we interviewed the relevant parties and focused less
on record documentation and more on what was actually occurring in each
case. Inevitably, the review team found that the small sample and the
strategy of in-depth analysis through interviews was a more reliable
source of information on outcomes and conformity with applicable
requirements. The information obtained solely from the case records was
often incomplete, not current, and left information gaps. Basically, we
learned that we cannot apply traditional checklist-type reviews of
documentation to determine the quality of decision-making and service
delivery.
<bullet> We learned that reviewing cases intensely, including all
the relevant interviews, requires a large number of staff resources and
is an extremely time-consuming process. The process of reviewing case
records and conducting multiple interviews in each case reviewed,
combined with other review team activities, allows a reviewer time for
only two cases, possibly three, in one week. Even with a sample size of
50 cases, the process requires a team of approximately 25 reviewers in
order to complete the on-site review in one week. Increasing the sample
to 150 cases or more would mean that either a team of 75 reviewers
would be needed to review a State in one week, or 25
[[Page 4028]]
reviewers would have to remain on-site for three weeks to complete the
review. Either option creates unreasonable expectations for States and
the Federal government in terms of staff resources and cost and,
therefore, does not constitute a cost-effective approach to the
reviews.
As originally proposed in the NPRM, the sample would be comprised
of both in-home and foster care cases. In-home cases do not provide
insight into the State's performance with respect to the permanency
outcomes, meaning that not every case in the sample would inform
decisions regarding substantial conformity for the permanency outcomes.
On the other hand, we need to assure that the sample accurately
captures information on in-home service cases in order to examine the
safety outcomes based on recent practice and for children who never
entered the foster care system.
Therefore, in certain circumstances, the sample size may be
increased to assure that all program areas identified in the statewide
assessment for further review are adequately represented. In addition,
we are requiring, in regulation, that the sample of 30-50 cases include
children who entered foster care in the State during the year under
review.
We have also added provisions to the rule for resolving
discrepancies between the aggregate data and the findings of the on-
site review that address the sample of cases reviewed. We are providing
States the option of resolving such discrepancies through the
submission of additional information, or by ACF and the State reviewing
additional cases that, in combination with the 30-50 cases reviewed on-
site, will be a sufficient number to comprise a statistically
significant sample. ACF and the State will determine jointly the exact
number of additional cases to be reviewed, however, the total number of
cases may not exceed 150. We chose a maximum of 150 cases because it
exceeds the highest number of cases necessary to review a sample that
will be statistically significant with a compliance rate of 90 percent
(or 95 percent for subsequent reviews), a tolerable sampling error of 5
percent and a confidence coefficient of 95 percent. In order to assure
that the sample of cases reviewed in the on-site review and the
additional cases actually comprise one random sample, we will randomly
select the oversample of 150 cases for the on-site review, from which a
subsample of 30-50 cases will be drawn. If the State chooses a review
of additional cases to resolve a discrepancy, those cases will be
selected from the same oversample. In this manner, we believe we will
address concerns about the size of the sample, particularly in cases
where discrepancies in the findings exist and must be resolved.
We recognize that the sample size does not represent a faultless
approach to reviewing State programs, and we fully understand the
varying perspectives on this issue. We must emphasize, however, that
the quality of information gathered from the overall process, and not
the on-site sample in isolation, will benefit children and families by
tracking their outcomes and allowing States to focus on program
improvements where needed.
Penalties Associated With Nonconformity
We have made an important change in the final rule regarding
withholding of funds in situations where States remain in nonconformity
continuously on the same outcomes or systemic factors, and for States
that elect not to engage in a program improvement plan. The final rule
provides for graduated penalties in successive reviews if areas of
nonconformity remain uncorrected. We have also applied the maximum
withholding to those States that do not implement program improvement
plans to correct the areas of nonconformity.
The comments we received on the imposition of penalties raised a
number of issues that we considered in making this change to the rule.
Some comments indicated concerns that the Federal government is not
meeting its stewardship responsibilities by not taking a more
aggressive approach to penalizing States found not to be in substantial
conformity. Other comments indicated that the potential for penalties
is substantial and could have a serious effect on the capacity of
States to administer their programs. We also were encouraged to use the
process for imposing penalties to assure that program improvements are
made when and where they are needed.
We wish to note that we have not proposed an ``all or nothing''
approach to penalizing States. We have been faithful to the statutory
mandate that applicable penalties be commensurate with the extent of
nonconformity. Further, we have designed a review process that is based
on substantial conformity with the requirements, rather than total
compliance without exception, to be consistent with the statutory
mandate. Penalties are attached to each outcome and systemic factor
determined to be in nonconformity. We are providing time-limited
opportunities for States to make needed program improvements prior to
withholding of Federal funds for nonconformity. Only when States fail
to take advantage of program improvement opportunities or complete a
plan successfully will they be faced with an actual loss of Federal
funding as a result of the child and family services reviews.
At the same time, we have taken seriously the stewardship
responsibilities of the Federal government in enforcing conformity with
State plan requirements. These responsibilities are clear and we have
not abandoned them. We intend to withhold Federal funds where States
are not using those funds to achieve their designated purpose. To
clarify that the need to make program improvements will be strongly
enforced, we are strengthening sections of the final rule to assure
that penalties will be taken in a timely and certain manner.
We do not wish to impose penalties in a manner that will impair a
State's ability to provide essential services to children and families.
However, we have a responsibility to assure that State plan
requirements are met and that children and families are served in ways
that will provide for their safety, permanency, and well-being.
C. Enforcement of Section 471(a)(18) of the Act
We received a large response to the section of the regulation that
enforces the Multiethnic Placement Act, as amended. Several commenters
sought practice guidance on how to implement the law. We believe that
we have addressed these issues in other forums through policy issuances
and HHS-funded technical assistance and guides. Other commenters were
concerned that we were not maintaining the partnership approach
exemplified in the child and family services reviews. We have made no
changes to the regulation in response to these comments, since we find
that the statute is definitive in the manner in which we are to
implement corrective action and enforce compliance with section
471(a)(18) of the Act.
In response to other comments, we have:
<bullet> Clarified that we will consider a State in violation of
section 471(a)(18) when it maintains a policy, practice, law or
procedure that, on its face, clearly violates section 471(a)(18) of the
Act;
<bullet> Required States to notify ACF upon a final court finding
that the State has violated section 471(a)(18) of the Act;
<bullet> Allowed States up to 30 days to develop a corrective
action plan to respond to a violation of section 471(a)(18) of the Act
resulting from a
[[Page 4029]]
State's statute, regulation, policy, procedure or practice, and six
months in which to complete the plan;
<bullet> Clarified which title IV-E funds will be reduced in the
event of a violation of section 471(a)(18) of the Act; and
<bullet> Added a definition of the term ``entity.''
D. Reasonable Efforts and Contrary to the Welfare Determinations and
Documentation
Many commenters believed that the requirements for reasonable
efforts and contrary to the welfare determinations as proposed were
inconsistent with current State practice. In some instances we agree
that the regulation was unnecessarily restrictive, and have made the
following changes to preserve State flexibility while keeping within
the statute and maintaining the integrity of the program:
<bullet> Removed the distinction between emergency and non-
emergency removals in the sections of the rule on contrary to the
welfare and reasonable efforts to prevent removal. This change is in
response to concerns that the distinction was artificial.
<bullet> Allowed States up to 60 days to obtain a judicial
determination with regard to reasonable efforts to prevent removal of a
child from home. This responds to concerns that our proposed policy
restricted the timing for obtaining such a determination to a specific
date rather than within a specified time frame.
<bullet> Consolidated the requirements regarding reasonable efforts
to reunify the child with the family and efforts to make and finalize
alternate permanent placements into a single requirement to be more
consistent with actual State practice. Within 12 months of the date the
child is considered to have entered foster care, the State is to obtain
a judicial determination that the State agency made reasonable efforts
with respect to the permanency plan that is in effect.
In other areas, we explained why we are maintaining our policy
position rather than changing the regulation in response to commenter'
concerns. We affirmed that judicial determinations regarding contrary
to the welfare and reasonable efforts are inextricably linked to a
child's eligibility for title IV-E. The statute makes these judicial
determinations eligibility requirements which we cannot change despite
the many opposing comments. We also retained the requirement for the
State to make a contrary to the welfare determination in the first
court order sanctioning the removal of the child from the home, because
it is a longstanding critical protection for children and families.
Finally, we are not relaxing the documentation requirements or allowing
nunc pro tunc orders because we wish to preserve the certainty that
these determinations are made in accord with the statute.
E. Case Plans and Case Review Requirements
To clarify our existing policy with regard to the timing of the
case plan, we have amended the regulation to allow States up to 60 days
from a child's removal from the home to develop the case plan. We also
made a significant policy shift in the requirements for subsequent
permanency hearings. We are now requiring subsequent permanency
hearings for all children, including children placed in a permanent
foster home or a preadoptive home. We believe that the ASFA compels us
to ensure, through the protection of a permanency hearing, that
permanency will be achieved for these children.
We received a significant number of requests to limit the TPR
provision to only certain groups of the foster care population. We are
unable to make this change in the regulation, as no statutory authority
exists for doing so, and the clear intent of ASFA was to speed critical
decision-making for all children in foster care. We clarify in the
final rule that the exceptions to the requirement to file a petition
for TPR must be done on a case-by-case basis and added additional
examples of a compelling reason. We also clarify that States must begin
the process of finding and approving an adoptive family for a child
when the State files a petition for TPR.
F. Title IV-E Reviews
We made several changes to strengthen and clarify the title IV-E
reviews. The title IV-E reviews are designed to review the eligibility
of children in foster care and providers receiving title IV-E funds.
Those changes to the final rule include:
<bullet> Clarifying that when using an alternate sampling
methodology when AFCARS data are unavailable, we will review a six-
month period that coincides with the AFCARS reporting period;
<bullet> Allowing all State' initial primary reviews to be held at
a 15 percent threshold of ineligible cases regardless of whether or not
the review occurs within the first three years of the final rule;
<bullet> Providing, on a case-by-case basis, an extension of a
program improvement plan when a legislative change is necessary for the
State to achieve substantial compliance; and
<bullet> Increasing the initial amount of time to develop a program
improvement plan from 60 days to 90 days for States found not to be in
substantial conformity as a result of a title IV-E foster care
eligibility review.
G. Special Populations
Several issues of note recurred as themes throughout the comments
and the regulation. One was the application of the rules to certain
populations, such as Indian tribal children, adjudicated delinquent
children, and unaccompanied refugee minors. We clarify how in
particular the provisions of the final rule apply to these populations
of children, but also emphasize that overall the statute must apply to
these children as they would any other child in foster care. We have no
statutory authority to exempt any group from provisions such as the
safety requirements or termination of parental rights requirements.
Furthermore, we strongly believe that, while these requirements must
apply to all children, the statute affords the State agency the
flexibility to engage in appropriate individual case planning.
For Indian tribes, numerous other issues were raised with regard to
how title IV-E requirements and, more specifically, the recent
amendments made by the Adoption and Safe Families Act apply to Indian
tribes as sovereign nations. While we are committed to the government-
to-government relationship between the Federal government and Indian
tribes, the foster care program under title IV-E is statutorily
targeted to State agencies, and Indian tribes cannot receive title IV-E
funds directly. Indian tribes can gain access to title IV-E funds on
behalf of title IV-E eligible children if they enter into agreements
with State agencies. Accordingly, Indian tribes must operate within the
parameters of a particular State plan and the specifics of the
agreement. Some commenters also requested that we explain how the
requirements of the Indian Child Welfare Act work in the context of the
ASFA. Although we can affirm that States must comply with ICWA and that
nothing in this regulation supersedes ICWA requirements, we cannot
expound on ICWA requirements since they fall outside of our statutory
authority.
[[Page 4030]]
IV. Section-by-Section Discussion of Comments
Part 1355--General
Section 1355.20 Definitions
This section amends 45 CFR 1355.20 to revise the definitions of
foster care and foster family home and to define new terms used
throughout the regulation.
Child care institution. Comment: Some commenters requested that we
provide more specific guidance or parameters to determine whether a
facility is a ``child care institution'' and offered a variety of
suggestions and recommendations. For example, one commenter asked that
we confirm whether the definition of ``child care institution''
precludes group child care programs from taking steps to assure safety
for foster children, including locking facility doors at night and
taking other reasonable measures to prevent foster children from
leaving the facility without consent.
Response: We understand the desire for more expansive guidance for
determining whether a facility is appropriate for title IV-E eligible
children. We strongly believe that any such guidance should be
developed with input from the field. We have begun this consultation
process by inviting comments on a notice published in the Federal
Register on December 7, 1998 (63 FR 67484). That notice specifically
requested comments on defining appropriate child care facilities in
which children adjudicated delinquent may be placed. Taking into
account the comments received on the Federal Register notice, we are
considering our options for setting forth more expansive guidance for
identifying child care institutions that are appropriate for title IV-E
eligible children.
Comment: One commenter suggested that language such as ``or tribal
licensing authorities'' be inserted after ``State'' to clarify the
definition of ``child care institutions'' on Indian reservations.
Response: We concur with the commenter and have revised the
definition in the final rule to reflect the tribal licensing authority.
Comment: One commenter noted that many ``child care institutions''
care for more than 25 children.
Response: The limit of 25 children, by statute, specifically
applies to public child care institutions and not private facilities.
Therefore, no changes to the final rule are warranted.
Date a child is considered to have entered foster care.
Comment: We received a great number of comments and suggestions
regarding how to define the date a child is considered to have entered
foster care in accordance with section 475(5)(F) of the Act (the date
the State is to use in calculating when to hold periodic reviews in
accordance with section 475(5)(B) of the Act, permanency hearings in
accordance with section 475(5)(C) of the Act, and for complying with
the termination of parental rights (TPR) provision under section
475(5)(E) of the Act). Some commenters wanted us to define the term by
using the date on which the child actually enters foster care and the
agency assumes responsibility for the placement and care of the child.
Others suggested that we define the term based on a variety of other
points in time, such as: The date of a judicial determination that it
was contrary to the child's welfare to remain at home; the date of the
full hearing; the date of the initial shelter care hearing; the date of
removal; or, the date a petition for removal is filed. Many commenters
observed that, by linking the date the child is considered to have
entered foster care to a finding of abuse or neglect and the agency
receiving responsibility for placement and care of the child, we
incorrectly implied that the aforementioned decisions occur at the same
hearing when, in fact, these judicial decisions are often made at
separate hearings.
Response: The time frames for considering when a child has entered
foster care, i.e., the earlier of a judicial finding of abuse or
neglect or 60 days from the date the child is removed from the home,
are statutory. However, nothing precludes a State from using a point in
time that is earlier than that required by statute or regulation, such
as the date the child is physically removed from the home. We have
changed the regulation to reflect this option. Clearly, if a State uses
the date a child is physically removed from the home, the requirements
for holding periodic reviews, permanency hearings, and complying with
the TPR provision within the time frames prescribed would be satisfied.
We also have removed to the reference to the agency's
responsibility for the placement and care of the child so that the
definition more closely follows the statutory language and is
consistent with actual practice.
Comment: One commenter suggested that the time a child spends in
shelter care not be factored into calculating the timing for holding
periodic reviews, permanency hearings, and for complying with the TPR
provision.
Response: Under long-standing Departmental policy, shelter care is
considered a form of foster care (see the definition of ``foster care''
at 45 CFR 1355.20). Shelter care is one of many possible settings in
which children in foster care are placed. Therefore, time spent in
shelter care counts in determining when to hold periodic reviews,
permanency hearings, and for complying with the TPR provision. We have
made no changes to the final rule in response to this comment.
Comment: One commenter requested that we delete the word
``physically'' from the regulatory definition of the date a child is
considered to have entered foster care to adhere strictly to the
statutory language which provides no qualification of the term
``removal.''
Response: While we have deleted the word ``physically'' from the
definition, we have retained the policy on physical removals because it
is consistent with the intent of ASFA regarding expedited permanency.
Linking the definition of the date a child is considered to have
entered foster care to a physical removal ensures that children do not
languish in care awaiting a judicial order that says that the child is
removed from the home.
We have, however, created an exception. Under Sec. 1356.21(k), we
permit constructive removals (i.e., paper removals) to equalize the
situation in relative and nonrelative foster family homes. If a child
is constructively removed from the home, the date he or she is
considered to have entered foster care, absent a finding of abuse or
neglect, is the date that is 60 days from the date of the constructive
removal. We have amended the regulatory text by cross-referencing
Sec. 1356.21(k), which sets the parameters for the acceptable forms of
removals.
Comment: One commenter was concerned about what appeared to be an
inconsistency between the date a child is considered to have entered
foster care and the timing for developing case plans. The outside limit
for considering a child to have entered foster care is 60 days from the
date of removal, while Sec. 1356.21(g)(2) requires case plans to be
developed within 60 days of the State agency `` * * * assuming
responsibility for providing services including placing the child * *
*''
Response: We understand the confusion and have amended the
regulatory language at Sec. 1356.21(g)(2) to state clearly that case
plans must be developed within 60 days of the date the child is removed
from the home.
Comment: We received several comments opposing the manner in which
we applied this definition to
[[Page 4031]]
voluntary placement agreements. In the NPRM, we set the date a child is
considered to have entered foster care for a child placed via a
voluntary placement agreement as the date the voluntary placement
agreement is signed by all relevant parties. Many commenters wanted to
be able to use the date the child actually is placed in foster care
since the child may not enter foster care the same day the agreement is
signed. Some commenters believed we lacked a statutory basis for not
applying section 475(5)(F) of the Act to all children, irrespective of
how they enter foster care.
Response: We concur that it is more appropriate to adopt a
consistent application of section 475(5)(F) of the Act for all
children. We have amended the definition of the date a child is
considered to have entered foster care so that it makes no distinction
for children who enter foster care via a voluntary placement agreement.
Therefore, children placed in foster care via a voluntary placement
agreement will be considered to have entered foster care no later than
60 days after the child is removed from the home.
We want to take this opportunity, however, to note that the purpose
of the 60-day limit at section 475(5)(F) of the Act is to ensure that
periodic reviews, permanency hearings, and application of the TPR
provision are not delayed as a result of contested involuntary
removals. The danger of such a delay often does not exist when children
are removed from their homes pursuant to a voluntary placement
agreement. When children are removed from home via a voluntary
placement agreement, we encourage States to use the date the child is
placed in foster care (rather than 60 days later) as the date for
calculating when to hold periodic reviews, permanency hearings, and for
complying with the TPR provision.
Comment: A few commenters requested guidance on how to apply the
definition to children who are voluntarily relinquished by their
parents for adoption.
Response: The date a child is considered to have entered foster
care according to the statute is the earlier of a judicial finding of
abuse or neglect or 60 days from the date the child was removed from
the home. Typically, there is no finding of abuse or neglect in a
voluntary relinquishment, so the date of entry into foster care would
be no later than 60 days from the date the child was removed from the
home.
Comment: One commenter requested that we specifically clarify, in
regulation, that the date the child is considered to have entered
foster care does not affect the date Federal financial participation
(FFP) may be claimed for foster care maintenance payments. One
commenter observed that there is a connection between maintaining
eligibility for title IV-E funding and the date a child is considered
to have entered foster care.
Response: Both commenters are correct. Establishing initial
eligibility for title IV-E funding and initial claiming for FFP have no
relationship to the date the child is considered to have entered foster
care defined at section 475(5)(F) of the Act. The purpose of that
provision is to set the ``clock'' for determining when to satisfy the
requirements for holding periodic reviews, permanency hearings, and the
TPR provision. A child's initial eligibility for title IV-E funding is
not related to this time frame. We have amended the regulation at
Sec. 1355.20 accordingly.
The date a child is considered to have entered foster care is,
however, related to maintaining a child's eligibility for title IV-E
funding. Under Sec. 1356.21(b)(2), we require the State to use the date
the child is considered to have entered foster care in determining when
to obtain a judicial determination that it made reasonable efforts to
finalize a permanency plan. We intentionally linked the timing for
obtaining this judicial determination to the date the child is
considered to have entered foster care so that such determinations
could occur at the permanency hearing, the logical time for making such
determinations.
Comment: Several commenters requested guidance for applying the
statutory definition of the date a child is considered to have entered
foster care to children who are adjudicated delinquent, particularly
for those children who enter foster care subsequent to placement in a
detention facility.
Response: In general, a date that is no later than 60 days from the
date the child was physically removed from his or her home should be
used in calculating when to satisfy the requirements for holding
periodic reviews, permanency hearings, and for complying with the TPR
provision, because judicial determinations regarding abuse or neglect
are not typically made for children who are adjudicated delinquent. For
children who enter foster care subsequent to placement in a detention
facility, States should follow existing policy as stated in ACYF-PA-87-
02 in calculating when to develop case plans, hold periodic reviews and
permanency hearings, and comply with the TPR provision.
ACYF-PA-87-02 requires States to satisfy the requirements for
developing case plans, holding periodic reviews and permanency hearings
(the requirements at section 427 of the Act at the time ACYF-PA-87-02
was written) for all children supervised by or under the responsibility
of another public agency with which the title IV-B/IV-E agency has an
agreement under title IV-E, and on whose behalf the State makes title
IV-E foster care maintenance payments. Since the State cannot claim
Federal financial participation under title IV-E for children in
detention facilities, the ``clock'' for calculating when to comply with
the requirements for developing case plans, holding periodic reviews
and permanency hearings, and the TPR provision begins when the child is
placed in foster care.
Although the ASFA was passed long after ACYF-PA-87-02 was issued,
we think that the existing policy is an appropriate interpretation of
section 475(5)(F) with respect to adjudicated delinquents who enter
foster care subsequent to placement in a detention facility.
Comment: A few commenters suggested that we adjust the date a child
is considered to have entered foster care for Indian children to
accommodate the time involved in tribal identification and notification
required by the Indian Child Welfare Act.
Response: We are sensitive to the fact that tribal identification
and notification may take time and limit the amount of time the tribe
or State has in making reasonable efforts to finalize a permanency plan
prior to the permanency hearing. However, we have no authority to set a
different ``date of entry into foster care'' for a particular group of
the foster care population. Nothing precludes the agency and court at
the permanency hearing from taking into consideration the amount of
time it took the State to comply with tribal identification and
notification requirements when determining appropriate permanency plans
for Indian children.
Comment: Several commenters did not want the definition of the date
a child is considered to have entered foster care to apply to the six-
month periodic reviews. The commenters are concerned that, if the
definition were so applied, children could potentially be in foster
care for eight months before a review is held.
Response: We chose to apply section 475(5)(F) of the Act to the
six-month periodic reviews, permanency hearings, and the TPR provision,
for two reasons. First, nothing prohibits the State from holding six-
month periodic reviews
[[Page 4032]]
based on the date the child is physically removed from the home.
Second, setting different ``clocks'' for calculating when to hold
periodic reviews and permanency hearings, and for complying with the
TPR provision would add administrative burdens on States.
For example, we believe that we would encumber State systems by
requiring a State to hold six-month periodic reviews based on the date
the child is removed from the home while holding permanency hearings
based on section 475(5)(F) of the Act. In that situation, the State
would be obliged to hold two periodic reviews prior to the permanency
hearing, the second of which would have to be held two months before
the permanency hearing if the date of entry into foster care were 60
days from the date the child is removed from the home. Therefore, we
have not made any changes to the final rule as a result of this
comment.
Foster care. No comments were received on this definition and
therefore no changes are being made to the language proposed in the
NPRM.
Foster care maintenance payments. Comment: One commenter questioned
our ability to revise the definition of foster care maintenance
payments to include travel for visits with workers, which is currently
covered as a title IV-E administrative expense. Another commenter
recommended that a revision to the definition be made to include the
travel costs for a parent to visit his/her child(ren) as an allowable
title IV-E foster care maintenance payment cost.
Response: The first commenter's observation is correct. Including
the phrase ``agency workers * * * '' in the definition goes beyond the
statute and was an error on our part. The statute clearly allows
reasonable travel by the child for visitation with family. We have
revised the definition in the final rule, deleting the words ``agency
workers,'' to conform to the statute. ACYF-PIQ-97-01 addresses the
second commenter's request to expand foster care maintenance payments
to include travel by the parent(s). Such costs are service related and
may be charged to title IV-B, title XX or the State. No change has been
made to expand foster care maintenance payments to include other
travel.
Comment: We received several requests to expand the definition of
foster care maintenance payments to cover a variety of items. For
example, one commenter recommended that a State be able to claim child
care when the foster parent is attending a school meeting or medical
and mental health staffings for another foster child in his/her care.
Response: The definition of foster care maintenance payments cited
in the NPRM mirrors the statutory language at section 475(4) of the
Act. We do not have the authority to extend the definition beyond the
statute. Furthermore, ACYF-PIQ-97-01 explains that child care provided
to a foster child when a foster parent is attending activities that go
beyond the scope of ``ordinary parental duties'' are reimbursable under
title IV-E. The PIQ provides a thorough discussion on the child care
costs that can be included in the title IV-E foster care maintenance
payment.
Comment: One commenter asked if the State could seek foster care
maintenance payments for appropriate child care costs if the State has
a two-tiered licensing system, ``licensed'' for center-based and
``regulated'' for home-based child care.
Response: A State's use of specific terminology or type of child
care licensing system has no bearing on whether the costs of child care
can be included in title IV-E foster care maintenance payments. As long
as the child care facility or individual (in the case of home-based
child care) is licensed, or otherwise officially authorized or approved
by the State as meeting the requirements for a child care facility, the
State may claim the costs of allowable child care as part of a foster
care maintenance payment.
Comment: Two commenters requested that the language in the preamble
to the NPRM which stated that payments for child care could be a
separate payment to the child care provider or included in the basic
maintenance payment be inserted in the regulatory text of the final
rule.
Response: We agree and have amended the regulation accordingly.
Foster family home. Comment: We received many comments on the
definition of ``foster family home'' and related concerns regarding
title IV-E eligibility and reimbursement. Several commenters noted that
in some States, the terms ``approved'' and ``licensed'' are
interchangeable, while in other States there are separate standards for
each of these categories. States sometimes establish separate
standards, i.e., approval and provisional licensure, as opposed to full
licensure, for relative caretakers. Some commenters suggested that we
allow States to claim title IV-E for eligible children placed with
relative caretakers who meet the State standards for approval or
provisional licensure, rather than the State's higher standards for
full licensure. Some commenters noted that relative placements
encourage continuity in a child's life, allowing the child to maintain
a sense of identity and minimize separation and attachment issues. One
commenter expressed a belief that the statutory language of ``licensed
or approved'' implies that different standards are acceptable. Another
commenter suggested that to require that approval and licensure be held
to the same standard is an extremely problematic higher standard than
has been required in the past.
Response: We have given considerable thought to these comments and
have tried to balance the integrity of the requirement, the safety of
the child and existing State licensing practices. We did not change the
requirements: (1) That approved foster family homes must meet the same
standards as licensed foster family homes; or (2) that relatives must
meet the same licensing/approval standards as nonrelative foster family
homes for the reasons below.
Section 471(a)(10) of the Act requires that a State's title IV-E
plan provide for the establishment or designation of a State authority
that is responsible for establishing and maintaining standards for
foster family homes and child care institutions. This section also
requires that the title IV-E State plan provide for the application of
these standards to ``any'' foster family home or child care institution
receiving either title IV-B or title IV-E funds. Further, the statutory
definition of ``foster family home'' in section 472(c) of the Act
states that a foster family home is a home ``* * * which is licensed by
the State in which it is situated or has been approved (by the State
licensing authority) as meeting the standards established for such
licensing.'' Clearly, the statute did not intend that there be separate
standards for licensing and approval.
The plain language of the statute requires that, to be considered a
foster family home for the purpose of title IV-E eligibility, the home
must be either licensed or approved as meeting State licensing
standards. It also is clear from the language in section 471(a)(10) of
the Act that the State licensing standards must be applied to ``any''
foster family home that receives funding under titles IV-E or IV-B. The
licensing provisions of the Act make no exceptions for different
categories of foster care providers, including relative caretakers.
In past title IV-E foster care eligibility reviews, we have
verified the existence of a license without differentiating among the
types, and we understand State concerns in this regard. We also agree
that placements that meet the
[[Page 4033]]
child's need for attachment and continuity should be encouraged. We
further recognize that, consistent with section 471(a)(19) of the Act,
States must consider giving preference to a relative caregiver,
provided that the relative caregiver meets all relevant State child
protection standards. However, given the emphasis in ASFA on child
safety, and the plain language of the statute with respect to the
licensing requirements, we believe that it is incumbent upon us, as
part of our oversight responsibilities, to fully implement the
licensing and safety requirements specified in the statute by requiring
that foster care homes, whether relative or nonrelative, be fully
licensed by the State.
Comment: In some States, relative caretakers must meet the
standards for full licensure, but the State allows for a waiver of
certain provisions for these specific caretakers. One commenter asked
if the language requiring that ``approved'' and ``licensed'' homes meet
the same standard would restrict the use of these waivers to approve
relative foster family homes. Other commenters requested that we
continue our current policy of allowing certain requirements to be
waived for relatives.
Response: Waivers are not addressed in the regulatory text.
However, as we have explained in ACYF-PIQ-85-11, special situations may
arise with relative caretakers in individual cases where there are
grounds for waiving certain requirements, such as square footage of the
relative's home. The safety standards, however, cannot be waived in any
circumstance. ACYF-PIQ-85-11 has not been withdrawn and, therefore,
continues to reflect current policy. To the extent that waivers are
allowed, they must be granted on a case-by-case basis, based on the
home of the relative and the needs of the child. The State may not
exclude relative homes, as a group, from any requirements.
Comment: Several commenters requested that we reconsider our
position on requiring that a foster family home be fully licensed
before the State is eligible to claim for title IV-E. We were advised
that in some States, a provisional license is issued so that a child
may be placed in a foster home while the State is awaiting criminal
background checks or waiting for the prospective foster parents to
complete required training. In other States, a provisional license is
issued to all new foster homes during a probationary period, even
though the home meets the requirements for a full license or approval.
Response: We considered the commenter' suggestions, but we believe
that the statute requires a foster family home to meet all of the State
requirements for full licensure or approval to be eligible for title
IV-E purposes. Accordingly, if a State issues an interim license
(provisional, emergency, etc.) pending satisfaction of all licensing
standards (e.g., while the State is awaiting the results of a criminal
records check or the completion of training), then the State may not
claim title IV-E funds on behalf of a child in that home.
Since there seems to be some confusion over the nomenclature used
in the draft regulation, we have revised the regulatory language in
Sec. 1355.20 to remove the reference to provisional licensure and to
articulate that before a State may claim title IV-E funds, it must find
that the home meets the State's licensing standards.
Comment: Several commenters offered varying suggestions on the
concept of allowing retroactive payments. Generally, the commenters
suggested that we allow States to claim title IV-E reimbursement back
to the date of placement once the home becomes fully licensed.
Response: The statute predicates foster family home eligibility on
licensure or approval of the home. Allowing retroactive payments to the
child's date of placement would be inconsistent with this requirement.
In addition, we do not wish to provide financial incentives for States
to place children in homes before the safety of the children in those
homes can be assured.
However, we recognize that some time may elapse between the date
that satisfaction of the requirements is received and documented and
the date on which the license is actually issued. We have concluded
that 60 days is an ample period of time to allow between the time the
State receives all the information on a home and the date on which the
full license is issued. Therefore, we are permitting States to claim
title IV-E reimbursement during the period of time between the date a
prospective foster family home satisfies all requirements for licensure
or approval and the date the actual license is issued, not to exceed 60
days.
Comment: One commenter requested that we allow States a six-month
period to grandfather in homes that are currently operating under a
provisional license, so long as the safety of the child is preserved.
Response: We will allow States a grace period to bring homes
currently operating with less than a full license or approval to full
licensure/approval status. Accordingly, if a State is currently
claiming title IV-E foster care for a foster family home that does not
meet fully the State licensing standards, the State has no more than
six months from the effective date of this final rule to grant a full
license or approval for these homes. After that date, a State may not
claim title IV-E funds for any child in a home that does not meet the
State's full licensing or approval standards.
Comment: One commenter suggested that provisional and emergency
licensure be defined, and a distinction be drawn between these two
types of licenses.
Response: The terms provisional licensure and emergency licensure
are not used in the regulation. Thus, we see no reason to impose a
definition of these terms on States.
Comment: One commenter recommended that the definition of ``foster
family home'' begin with a statement indicating that this definition is
for purposes of title IV-E foster care so that it is not wrongly
applied to exclude non-licensed placements from the section 422
requirements.
Response: We concur with the commenter and have revised the
regulation to clarify that the definition relates to title IV-E
eligibility only. It should be noted that section 471(a)(10) of the Act
more broadly requires that a State's title IV-E plan provide that a
State's established licensing standards apply to ``any'' foster family
home or child care institution receiving either title IV-B or IV-E
funds. This is a State plan conformance issue, however, and not a title
IV-E eligibility issue.
Comment: A commenter opposed inclusion of group homes, agency
operated boarding homes and other institutional settings in the
definition of ``foster family home.'' The commenter noted that Congress
clearly has indicated a desire to avoid a child's placement in such
settings unless it is necessitated by repeated extreme disruptions of
the preferred family settings. It was suggested that the definition
include only homes of individuals or families licensed or approved by
the State licensing or approval authorities that provide 24-hour out-
of-home care for children.
Response: Group homes, agency operated boarding homes and other
facilities have been included in the definition of ``foster family
home'' since the title IV-E regulations were issued in 1983. The
purpose of including these facilities has been to assure that all
foster care placements meet the minimum safety requirements by being
licensed or approved under State law or
[[Page 4034]]
rules. We believe this is a safety issue for children and not a
statement of placement preference; therefore, we have retained the
language in the final rule.
Comment: We received some comments concerning the licensing of
homes by tribal authorities. A few commenters suggested that tribes
should have the authority to license tribal homes irrespective of where
they are located, and that the language in the definition of ``foster
family home'' implies that tribes only have the authority to license
homes that are on or near reservations. A couple of commenters
suggested that not to allow tribes this authority would be a violation
of tribal sovereignty and jurisdiction. One commenter suggested that
this is an overreaching of the Federal government rather than a safety
issue. It was suggested that HHS strike ``or with respect to foster
family homes on or near Indian reservations'' from the definition.
Response: The authority of Indian tribes to license homes that are
``on or near Indian reservations'' has been part of the title IV-E
regulations since May 23, 1983. This provision is consistent with the
Indian Child Welfare Act (ICWA) of 1978. Section 1931 of ICWA
authorizes Indian tribes and tribal organizations to establish and
operate child and family services programs ``on or near reservations,''
including a system for licensing or otherwise regulating Indian foster
and adoptive homes. We are maintaining the language to remain
consistent with the ICWA.
Comment: One commenter asked whether the definition of ``foster
family home'' should be interpreted to mean that homes approved through
the tribal process must meet the same standard as homes licensed by the
State.
Response: The definition of ``foster family home'' should not be
interpreted in that manner. The definition of ``foster family home''
gives tribal licensing or approval authorities the jurisdiction to
license or approve homes that are on or near Indian reservations. This
is consistent with ICWA at section 1931(b) which states that for
purposes of qualifying for funds under a federally assisted program,
licensing or approval of foster or adoptive homes or institutions by an
Indian tribe is equivalent to licensing or approval by a State. The
authority to license or approve includes the authority to set
standards.
Comment: One commenter was concerned about the requirement that
approved and licensed homes must meet the same standard. The commenter
noted that States sometimes use waivers to approve Indian foster homes
which may not meet certain criteria, such as square footage
requirements, in order to comply with the ICWA placement preferences.
The commenter recommended that we include language to assure that this
type of waiver continues to be permissible.
Response: Our current policy, set forth in ACYF-PIQ-85-11,
recognizes that there may be exceptional circumstances that arise with
a specific relative caretaker where there are grounds for waiving a
licensing requirement, such as square footage, in order to place a
child. The policy set forth in that issuance applies also to licensing
or approving tribal relative foster homes, either by a State or tribal
licensing authority. This waiver authority does not extend to all
foster homes, but only to relative homes in certain circumstances
delineated in ACYF-PIQ-85-11, as determined by the licensing authority
on a case-by-case basis. We did not address the issue of waivers in the
NPRM or final rule, but clarify here that the existing policy stands.
Full hearing. Comment: Several commenters objected to a definition
for ``full hearing'' because it did not coincide with some States'
terminology. Many commenters requested clarification, while others
recommended changes in the definition that would accommodate the
specific terms and proceedings used in their States.
Response: We defined a full hearing in an attempt to establish a
universal term for the hearing at which the State agency is assigned
responsibility for placement and care of a child who is removed from
home. Given the multiple requests for clarification and the conflicting
nature of the recommendations, it is likely that any definition for
``full hearing'' would be problematic given the variety of State-
specific practices. Therefore, we have deleted this definition from the
final rule.
Full review. No comments were received on this definition and
therefore no changes are being made to the language proposed in the
NPRM.
Legal guardianship. Comment: A few commenters supported the
definition of legal guardianship as written in the proposed rule.
However, some commenters requested clarification that the term
``custody,'' as used in the definition, refers only to physical custody
of the child rather than legal custody. The commenters asserted that
some States retain legal custody of the child in guardianship
situations.
Response: The definition in the final rule is taken directly from
the statute which makes no distinction between physical and legal
custody. We believe that the definition is intended to include all
legal guardianship arrangements that are permanent.
Comment: A commenter wanted to know how the Federal definition for
legal guardianship will be applied to States that do not have the same
definition in their State statutes.
Response: There is no Federal requirement for States to have the
statutory definition of legal guardianship in State law. The statute
requires States to evaluate certain permanency goals, including legal
guardianship, for children during the development of the case plan and
the course of a permanency hearing. We believe that the definition was
developed to clarify that States should consider legal guardianships
that are permanent and self-sustaining as a permanency option for
children in foster care.
Comment: There were several comments on funding legal
guardianships. We received a suggestion that title IV-E funding be made
available for subsidized legal guardianship. Another commenter asked
for clarification on financial and medical assistance available for
children placed in legal guardianship and how to access funding for
legal guardianship. A third commenter requested that we clarify that a
State is not precluded from providing financial assistance in legal
guardianships.
Response: While legal guardianship arrangements may be appropriate
permanency plans, we have no statutory authority to make title IV-E
funding available for subsidized legal guardianships. However, some
States are using title IV-E funds to subsidize legal guardianships
under the terms of a title IV-E demonstration waiver approved by the
Secretary. The statute does not preclude States from subsidizing legal
guardianships with State funds.
Comment: A commenter requested that we make a greater distinction
between legal guardianships and other living arrangements such as
permanent foster care placements and parent-child relationships. The
commenter believed that children placed in legal guardianships often
are not subject to ongoing judicial review, and that in contrast to
parent-child relationships, a child is not entitled to inherit from a
guardian, and vice versa.
Response: The term legal guardianship should be used in reference
to the requirements on reasonable efforts to finalize a permanency
plan, case plans,
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permanency hearings, and TPR. In that context, States determine whether
a legal guardianship is the most appropriate permanency option for a
child. We do not believe it is appropriate for us to regulate the
definition of a legal guardianship further.
Comment: One commenter requested guidance on the use of legal
guardianship as a permanency option. The commenter requested that we
share lessons learned from the title IV-E demonstration waiver States.
Response: Information on the findings from the States with
demonstration waivers will be disseminated when available. This
information will be better provided through our resource centers and
technical assistance activities rather than through regulation.
National Child Abuse and Neglect Data System (NCANDS). No comments
were received on this definition and therefore no changes are being
made to the language proposed in the NPRM.
Partial Review. The Department is responsible for State compliance
with all aspects of the title IV-B and IV-E plan requirements and not
only the elements covered by the child and family service reviews.
Accordingly, we have revised the definition of ``partial review,'' to
clarify its application to title IV-E and title IV-B compliance issues
that are outside the scope of the child and family services review.
This partial review may cover whatever the Secretary considers
necessary to make a determination regarding State plan compliance. An
example of an area which is not subject to the full child and family
services review but subject to a partial review is compliance with
AFCARS. The procedures and standards for AFCARS compliance are set
forth in 45 CFR 1355.40.
Permanency Hearing. Comment: One commenter disagreed with the
requirement that permanency hearings be held within 12 months of the
date a child is considered to have entered foster care. The commenter
felt that it did not give families sufficient time to make their homes
ready for the child to return.
Response: The requirement to conduct permanency hearings no later
than 12 months from when a child enters foster care is statutory. One
of the main purposes of ASFA was to encourage States and parents to
achieve permanency for children in a more timely manner.
Comment: One commenter did not think that permanency hearings
should be conducted by any entity other than a court.
Response: The option for administrative bodies, appointed or
approved by the court, to conduct permanency hearings is expressly
permitted at section 475(5)(C) of the Act.
Comment: Several commenters were opposed to the requirement that
any body that conducts permanency hearings may not be part of or under
the supervision or direction of the State agency. One commenter asked
if this requirement extended to other public agencies with which the
State agency has an agreement.
Response: Critical decisions that have a significant effect on the
lives of children and their families are made at permanency hearings.
The purpose of requiring courts to oversee permanency hearings is to
ensure that these hearings are conducted by an impartial body, which
includes any body appointed or approved by the court to provide this
oversight in its stead. An administrative body that is part of the
State agency or under its direction or supervision would not meet the
test of impartiality.
The requirement does extend to other public agencies with which the
State agency has an agreement. In accordance with ACYF-PIQ-85-2, title
IV-E requirements extend to any other public agency with which the
State agency enters an agreement for the performance of title IV-E
administrative functions, including responsibility for placement and
care of the child.
Comment: One commenter requested that the definition of
``permanency hearing'' be revised to indicate specifically that a
tribal agency is permitted to appear before a tribal court and that the
tribal court has the authority to make all the necessary rulings with
respect to permanency hearings.
Response: The statutory and regulatory language both clearly
indicate that permanency hearings may be held before a tribal court.
The references to State courts in the permanency hearing requirements
in section 475(5)(C) of the Act and in the definition of permanency
hearing at Sec. 1355.20 should be understood to include tribal courts.
Comment: A few commenters requested additional guidance regarding
whether reunification efforts can be extended beyond the permanency
hearing or if an alternate permanency plan must be set at the
permanency hearing if the child and family cannot be reunited at that
time.
Response: A major purpose of ASFA is to promote timely permanency
planning. We recognize, however, that there are situations when
reunification cannot occur within 12 months but it is not appropriate
to abandon it as the permanency plan at the permanency hearing. It is
acceptable to extend reunification efforts past the permanency hearing
if the parent(s) has been diligently working toward reunification and
the State and court expect that reunification can occur within a time
frame that is consistent with the child's developmental needs.
Comment: One commenter wanted to know if the permanency hearing was
similar to a dispositional hearing or an administrative review. This
commenter also wanted to know if the hearing could still be held within
18 months of a child entering foster care.
Response: The ASFA changed the name of the former ``dispositional
hearing'' to ``permanency hearing'' and the timing was changed from 18
months to 12 months (see p. 50072 of the NPRM). No statutory
flexibility exists with respect to the time line in the ASFA for
conducting permanency hearings.
Comment: One commenter asked that we clarify whether the permanency
goal of placement with a fit and willing relative was optional because
the commenter's State had eliminated it as a permanency goal. A few
commenters asked that we specifically identify placement in ``another
planned permanent living arrangement'' as the appropriate permanency
option for all unaccompanied refugee minors. These commenters requested
that, in establishing placement in ``another planned permanent living
arrangement'' as the appropriate permanency option for unaccompanied
refugee minors, this group of the foster care population be exempted
from the requirement to provide a compelling reason for not setting
reunification, adoption, legal guardianship or placement with a fit and
willing relative as the permanency plan.
Response: We do not believe it is appropriate for ACF or States to
exclude any permanency options from consideration or to identify one
permanency goal as the appropriate permanency goal for an entire group
of the foster care population. Permanency planning is based on the best
interests, individual needs, and circumstances of the child. The
requirement to document, to the court, a compelling reason for setting
a permanency plan other than reunification, adoption, legal
guardianship, or placement with a fit and willing relative is statutory
and cannot be waived for any group of the foster care population.
Comment: We had several commenters request that we include
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placement in a permanent foster family home and emancipation in the
list of permanency goals at section 475(5)(C) of the Act that are
exempt from the compelling reason requirement in that section. Some
commenters also asked us to include long term foster care and
emancipation as other planned permanent living arrangements.
Response: Section 475(5)(C) of the Act specifies that the only
permanency options the State may set without a compelling reason to do
so include reunification, adoption, legal guardianship, or placement
with a fit and willing relative. Therefore, ``another planned permanent
living arrangement'' would be any permanent living arrangement that is
not enumerated in statute.
Comment: One commenter suggested that we amend the section of the
definition that describes the decisions to be made at a permanency
hearing. The commenter suggested that the term ``should'' be replaced
with ``will'' in the definition. The commenter thinks the term ``will''
is consistent with ASFA's intent to ensure permanency while ``should''
is noncommittal.
Response: We agree and have amended the language accordingly.
Comment: One commenter was opposed to the prohibition of paper
reviews, ex parte hearings, and agreed orders as satisfying the
requirements of a permanency hearing.
Response: Section 475(5)(C) of the Act requires the State to ensure
``* * * procedural safeguards shall also be applied with respect to
parental rights pertaining to the removal of the child from the home of
his parents, to a change in the child's placement, and to any
determination affecting visitation privileges of parents * * *.'' In
our view, paper reviews, ex parte hearings, and agreed orders fail to
provide these important safeguards. No change was made to the
regulation based on this comment.
Comment: One commenter was opposed to the use of the term
``compelling reason'' for setting another planned permanent living
arrangement as the permanency plan. The commenter feels the term
suggests a legal burden of proof that is not appropriate for
establishing permanency plans.
Response: The term ``compelling reason'' is taken directly from the
statutory language. Moreover, the term was adopted because far too many
children are given the permanency goal of long-term foster care, which
is not a permanent living situation for a child. The requirement is in
place to encourage States to move children from foster care into the
most appropriate permanent situation available.
Comment: We received several comments regarding the preamble
language to paragraph 1356.21(g) in the NPRM which states that States
should exhaust all efforts to place a child in a permanent home outside
the foster care system before placing the child in a permanent foster
care setting. The commenters feel this language has created a standard
above the ``compelling reason'' requirement prescribed in statute.
Response: We want to clarify that the language should not be
interpreted to set a standard above what is set in statute. It was
intended to encourage States to seriously consider placement options
outside of foster care before settling on a permanent foster care
placement as the permanency plan.
Statewide Assessment (formerly State self-assessment). No comments
were received on this definition, so we made no changes to the
definition itself. We did, however, change the name from ``State self-
assessment'' to ``statewide assessment.'' The term ``statewide
assessment'' more accurately reflects the comprehensive nature of the
assessment conducted during the first phase of a child and family
services review.
Temporary custody proceeding. Comment: Several commenters objected
to a definition for a temporary custody proceeding. Some commenters
expressed confusion while others asserted that the definition,
especially in combination with the definition for a ``full hearing,''
did not accurately reflect the variety of State proceedings where
placement and care responsibility is granted to the State agency.
Response: In the proposed rule we defined ``temporary custody
proceeding'' as the first judicial proceeding held at or shortly after
the emergency removal of a child from the home. We intended to clarify
when the State court must make certain reasonable efforts and contrary
to the welfare judicial determinations. However, we concur that a
Federal definition for a temporary custody proceeding is not helpful in
clarifying when the court must make certain title IV-E eligibility
determinations, and we have deleted the definition.
Sections 1355.31-1355.37 The Child and Family Services Reviews
Section 1355.31 Elements of the Child and Family Services Review
System
This section describes the scope of the child and family services
reviews as including programs administered by States under titles IV-B
and IV-E of the Act.
All of the relevant comments on this section are addressed in the
following sections.
Section 1355.32 Timetable for the Reviews
This section specifies the review timetable for the initial and the
subsequent reviews as required by section 1123A of the Act, and sets
forth rules for reinstatement of reviews based on information that a
State is not in substantial conformity.
Section 1355.32(a) Initial Reviews
This section sets forth the timetable for the initial child and
family services reviews.
Comment: We received many comments concerning the time that it will
take for States to become familiar with the new review process. Most of
the commenters indicated that it will take significant time for States
to prepare for the reviews and requested that ACF add to this section a
requirement that we provide an advance six-month, or longer,
notification to States prior to initiating the review process.
Similarly, most of these commenters indicated that the six-month period
proposed between publication of the final rule and initiation of the
new review schedule is necessary and some comments suggested that a
longer time frame to begin reviews is desirable. A small number of
comments dissented on this provision.
Response: We acknowledge that advance notice and preparation are
required for the child and family services reviews. The exact period of
preparation may vary by State and may change as the States and ACF
become more familiar with the process. Taking into consideration that
Federal staff will also require a period of time to prepare adequately
for each review, we do not anticipate lack of advance notice becoming
an issue. Therefore, we do not intend to regulate the notification
period. We have, however, extended the time for completing the initial
reviews to up to 4 years following the effective date of the final
rule.
Comment: We received comments requesting coordination among the
components of the child and family services reviews with other Federal
planning and review functions, i.e., coordinating the statewide
assessment with the CFSP and coordinating the reviews with the title
IV-E reviews.
Response: We have designed the child and family services reviews to
build on and coordinate with the process in place
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for title IV-B State planning as set forth in 45 CFR part 1357. The
timing of the statewide assessments will, in part, be determined by the
timing of the actual reviews which will vary from State to State, and
coordination with the timing of the annual progress and services
reports (APSRs) may not