By Mary Boo
In February 2018, Congress passed and the president signed the Family First Prevention Services Act into law. Advocates, including NACAC, had been promoting the bill for the last couple of years, but its passage this year was a surprise to many.
Although the bill has many components, one of its primary goals is to increase federal funding to states and eligible tribes for services to prevent children from having to enter foster care. It also seeks to ensure children have the best chance to be in a family placement if they have to enter care. Below we outline some key provisions.
Expands Federal Financing for Family Preservation Services
Starting with federal fiscal year (FY) 2020, which begins October 1, 2019, the new law permits states and eligible tribes to receive federal reimbursement under Title IV-E of the Social Security Act to support family preservation services for children at risk of entering care. The services must be promising or supported or well-supported by evidence; must be trauma-informed; and must be in one of the following areas:
- mental health and substance abuse prevention and treatment services provided by a qualified clinician
- in-home parent skill-based services, including parent education or training and family counseling
To be eligible for IV-E funding, the services must be provided to children at imminent risk of entering foster care or to their parents—birth or adopted—or relatives in an effort to help the children remain safely at home or with kin. The state or tribe must have a specific plan for the child, outlining the services to be provided to prevent foster placement. Services for pregnant or parenting teens are also eligible.
Services for a particular child will be eligible for federal reimbursement for up to 12 months. If, at a later date, the child is again considered at risk for entering care, she can receive more federally supported services.
By October 1, 2018, the US Department of Health and Human Services (HHS) will prepare a list of approved services that can be funded under this provision. This list will be updated as necessary over time.
The Congressional Budget Office estimates that this provision will result in additional funding to states and tribes of $1.48 billion over the next 10 years.
Eligibility for federal reimbursement for these services is delinked, meaning it is not connected to whether the child’s birth parents would have been eligible for Aid to Families with Dependent Children in 1996. (Eligibility for federal funding for foster care services continues to have this outdated link to birth parent income.)
Through FY 2026, the reimbursement rate to states and tribes for these eligible prevention services (and associated training and administrative costs) will be at 50 percent. Beginning October 1, 2026, the reimbursement rate will be the state’s Federal Medicare Assistance Percentage (FMAP) rate.
To access these funds, states and tribes must document how they will evaluate services and ensure children’s safety. At least half of each state’s or tribe’s services reimbursed by the federal government must be in the category of well-supported by the evidence. In addition, jurisdictions must not use these funds to replace existing family preservation services. Under this “maintenance of effort” requirement, they cannot spend less on prevention than they did in a particular prior fiscal year.
Beginning in FY 2021, HHS will publicly report on prevention services expenditures and outcomes.
Limits Federal Funding for the Use of Group Care
The second major tenet of the law seeks to reduce the number of children who are placed in non-family settings while in foster care. The law limits federal Title IV-E reimbursement to states and tribes for maintenance payments—also known as room-and-board payments—for children placed in group settings. (States and eligible tribes can continue to receive Title IV-E administrative reimbursement related to these group placements.)
For children in non-family settings in foster care, states and tribes can receive IV-E reimbursement of maintenance payments for only 14 days unless the placement is one of the following:
- a “qualified residential treatment program” (To be a qualified program, the facility must have onsite nursing and clinical staff or contractors to address the child’s needs in their treatment plan. It must also meet specific case review and other requirements.)
- a specialized setting that provides prenatal, postpartum, or parenting supports for youth
- a supervised independent living setting for those aged 18 and older
- a licensed residential family-based treatment center where the child is placed with the parent and has been in the setting for less than 12 months
- a setting providing high-quality residential care and supportive services to children and youth who have been found to be, or who are at risk of becoming, sex trafficking victims
This provision goes into effect in FY 2020 (October 1, 2019), although states and tribes may choose to delay implementation for up to two years. If they do so, they must also postpone receiving IV-E reimbursement for the family preservation services outlined earlier for the same length of time.
The law also requires that states certify in their state plan that they will not implement policies or practices that result in a significant increase in the number of young people entering the juvenile justice system as a result of this provision. By December 31, 2025, the Government Accountability Office (GAO) will submit a report that evaluates the impact on juvenile justice placements of this provision seeking to limit group care.
Regardless of when a jurisdiction decides to implement this provision, they must—beginning October 1, 2018—develop procedures to conduct background checks on all adults working in group settings where children in foster care are placed.
Reauthorizes and Updates Key Child Welfare Programs
The Family First Act reauthorized and made some modifications to several core child welfare funding streams.
The law reauthorized through FY 2021 the following Title IV-B programs—the Stephanie Tubbs Jones Child Welfare Services Program (Title IV-B, Subpart 1) and the Promoting Safe and Stable Families Program (Title IV-B, Subpart 2). The Court Improvement Program grants and Regional Partnership Grants are also reauthorized under IV-B, as are funds for monthly caseworker visits. Changes to some of these programs are outlined below.
The law states that Court Improvement Programs will need to provide training for judges, attorneys, and other legal staff involved in child welfare about the new limits on federal support for children in non-family-based settings.
For the Promoting Safe and Stable Families program, the law removed time limits on how long states could use funds for family reunification services. Beginning October 1, 2018, states can continue to use federal funds to support reunification efforts, regardless of how long the child has been in care. The law will also allow family reunification services to be funded for up to 15 months after a child returns home.
The law also permits, for the first time, the use of Promoting Safe and Stable Families funds to support foster families so that children do not have to move unnecessarily.
Adoption and Guardianship Incentive Payment Program
The Adoption and Legal Guardianship Incentive Payment program was extended through FY 2021. This program provides financial incentives to states that increase the rate of adoption or guardianship for children in foster care. The law authorizes funding for the program at $43 million, although how much is actually appropriated may be different. (The appropriation has been lower than the authorization—$38 million—in recent years.)
Also extended through FY 2021 is the Chafee program, which provides funds for services for young people who had been in foster care. With the reauthorization, certain independent living programs can now serve youth up to age 23 (was up to 21), and education and training vouchers can be provided to youth ages 14 to 26 (was 18 to 23). The program has been renamed the John H. Chafee Foster Care Program for Successful Transition to Adulthood.
Supports Relative Caregivers
The law allows states to use Title IV-E funding to offer evidence-based kinship navigator programs. The programs help connect caregivers with supports to ensure they are able to meet the needs of the children they are caring for. The federal reimbursement will be 50 percent of the state’s total cost.
The law also requires states to review their foster family licensing provisions, with a specific attention to any barriers for relative caregivers. By October 1, 2018, HHS will publish model licensing standards for family foster homes. States will have until April 1, 2019 to submit a review of their standards, identifying how they differ from the model. They will need to report on whether they grant waivers for relative caregivers on certain provisions and, if they do not grant waivers, why not.
- Establishes an electronic interstate case-processing system — Designed to help states more quickly process the interstate placement of children in foster care, adoption, or guardianship, the system must be in place by the beginning of FY 2028. Family First provides $5 million in grants, available through FY 2022, to help states make necessary changes to implement this provision.
- Creates an $8 million grant program, beginning in FY 2018 and continuing through FY 2022, to enable states and tribes to recruit and retain high-quality foster families — This provision is designed to ensure that there are families available to care for children as the government seeks to reduce reliance on group care. The grants are to be prioritized for those jurisdictions with a higher percentage of children placed in group care.
- Requires oversight of children’s diagnoses — As part of health care oversight plans, states will need to develop and report methods for making sure that children in foster care are not improperly diagnosed with mental illnesses or disabilities in an effort to enable their placement in group care. HHS will issue a report on these methods by January 1, 2020.
- Requires reporting on deaths of children due to maltreatment by October 1, 2018 — As part of their Title IV-B plans, states will need to report how they are tracking and preventing child maltreatment fatalities.
- Requires reporting on the use of group care — Beginning this year, states will need to provide data on the placement of children in non-family-based settings.
Re-Links Federal Title IV-E Adoption Assistance Eligibility to Birth Parent Income
Unfortunately, one of the ways the law is funded takes a step backward. In order to fund some of the new provisions, the law temporarily re-links eligibility for federal IV-E adoption assistance to birth parent income for children under age two. The 2008 Fostering Connection to Success Act had delinked a child’s eligibility for federal adoption assistance reimbursement from their birth parents’ income, with the changes phasing in over a 10-year period by age. On October 1, 2017, the phase-in was finally complete, and the link to 1996 AFDC income standards was completely eliminated for adoption assistance.
The Family First Act reinstates the eligibility link for children under age 2 whose adoptions are finalized between January 1, 2018 and June 30, 2024. After that date, the full delink would be back in effect.
Congress estimated that this delay would save about $505 million. The re-link will have minimal impact on children’s access to adoption assistance because most will be eligible for state-funded adoption assistance. It will, however, have an impact on funding for post-adoption services. With the Strengthening Families and Preventing Sex Trafficking Act of 2014, the federal government required states to spend at least 20 percent of the funds saved as a result of the adoption assistance delink to provide post-adoption and post-guardianship support services. If the $505 million estimate is correct, this would mean that states will have $101 million less that they are required to invest in support for adoptive and guardianship families across the US.
It is important to note that the adoption assistance delink remains in effect for children two and older, and states are still required to spend 20 percent of resulting savings to support adoptive and guardianship families. The Family First Act requires GAO to study and report on how states are reinvesting delink savings in support services.
Given the complexity of the law, advocates will need to pay attention to their states or tribes implementation efforts, including what services they will provide to preserve birth and adoptive families.