[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
CHILD PROTECTION REVIEW SYSTEM
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HUMAN RESOURCES
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
FEBRUARY 17, 2000
__________
Serial 106-84
__________
Printed for the use of the Committee on Ways and Means
U.S. GOVERNMENT PRINTING OFFICE
67-409 CC WASHINGTON : 2001
_______________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC
20402
COMMITTEE ON WAYS AND MEANS
BILL ARCHER, Texas, Chairman
PHILIP M. CRANE, Illinois CHARLES B. RANGEL, New York
BILL THOMAS, California FORTNEY PETE STARK, California
E. CLAY SHAW, Jr., Florida ROBERT T. MATSUI, California
NANCY L. JOHNSON, Connecticut WILLIAM J. COYNE, Pennsylvania
AMO HOUGHTON, New York SANDER M. LEVIN, Michigan
WALLY HERGER, California BENJAMIN L. CARDIN, Maryland
JIM McCRERY, Louisiana JIM McDERMOTT, Washington
DAVE CAMP, Michigan GERALD D. KLECZKA, Wisconsin
JIM RAMSTAD, Minnesota JOHN LEWIS, Georgia
JIM NUSSLE, Iowa RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas MICHAEL R. McNULTY, New York
JENNIFER DUNN, Washington WILLIAM J. JEFFERSON, Louisiana
MAC COLLINS, Georgia JOHN S. TANNER, Tennessee
ROB PORTMAN, Ohio XAVIER BECERRA, California
PHILIP S. ENGLISH, Pennsylvania KAREN L. THURMAN, Florida
WES WATKINS, Oklahoma LLOYD DOGGETT, Texas
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
SCOTT McINNIS, Colorado
RON LEWIS, Kentucky
MARK FOLEY, Florida
A.L. Singleton, Chief of Staff
Janice Mays, Minority Chief Counsel
______
Subcommittee on Human Resources
NANCY L. JOHNSON, Connecticut, Chairman
PHILIP S. ENGLISH, Pennsylvania BENJAMIN L. CARDIN, Maryland
WES WATKINS, Oklahoma FORTNEY PETE STARK, California
RON LEWIS, Kentucky ROBERT T. MATSUI, California
MARK FOLEY, Florida WILLIAM J. COYNE, Pennsylvania
SCOTT McINNIS, Colorado WILLIAM J. JEFFERSON, Louisiana
JIM McCRERY, Louisiana
DAVE CAMP, Michigan
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
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C O N T E N T S
__________
Page
Advisory of February 10, 2000, announcing the hearing............ 2
WITNESSES
U.S. Department of Health and Human Services, Hon. Olivia A.
Golden, Ph.D., Assistant Secretary for Children and Families... 12
______
Connecticut Department of Children and Families, Susan Hamilton.. 36
Courtney, Mark E., School of Social Work, University of
Wisconsin-Madison.............................................. 42
Greenwood, Hon. James C., a Representative in Congress from the
State of Pennsylvania.......................................... 6
National Association of Foster Care Reviewers, Jerry R. Foxhoven. 29
Oregon Services to Children and Families, Ramona L. Foley........ 32
SUBMISSION FOR THE RECORD
National Center for Youth Law, Oakland, CA, William Grimm,
statement...................................................... 55
CHILD PROTECTION REVIEW SYSTEM
----------
THURSDAY, FEBRUARY 17, 2000
House of Representatives,
Committee on Ways and Means,
Subcommittee on Human Resources,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 9:07 a.m. in
room B-318, Rayburn House Office Building, Hon. Nancy L.
Johnson (Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY
FROM THE COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON HUMAN RESOURCES
CONTACT: (202) 225-1025
FOR IMMEDIATE RELEASE
February 10, 2000
No. HR-15
Johnson Announces Hearing on Child Protection Review System
Congresswoman Nancy L. Johnson (R-CT), Chairman, Subcommittee on
Human Resources of the Committee on Ways and Means, today announced
that the Subcommittee will hold a hearing on the new Federal system for
monitoring and enforcing the implementation by States of Federal child
protection laws. The hearing will take place on Thursday, February 17,
2000, in room B-318 Rayburn House Office Building, beginning at 9:00
a.m.
In view of the limited time available to hear witnesses, oral
testimony at this hearing will be from invited witnesses only.
Witnesses will include a representative from the Administration,
representatives of State departments of children and family services,
researchers, legal scholars, and advocates. However, any individual or
organization not scheduled for an oral appearance may submit a written
statement for consideration by the Committee and for inclusion in the
printed record of the hearing.
BACKGROUND:
In the early 1980s, the U.S. Department of Health and Human
Services (HHS) established and operated a system for monitoring child
protection systems and determining whether they comply with Federal
requirements. Knowledgeable observers came to view the monitoring
system as inadequate. In 1989, Congress suspended the collection of
penalties resulting from the monitoring system. In the Social Security
Act Amendments of 1994 (P.L. 103-387), Congress mandated that HHS
establish a new integrated child protection review system that
monitored compliance with State plans under Title IV-B and Title IV-E
of the Social Security Act. The system was also required to allow for
corrective action and to impose penalties. Regulations were required to
be final by July 1995. The Administration published proposed
regulations on September 18, 1998, and entertained public comments for
90 days. Final regulations were published in the Federal Register on
January 25, 2000, and will officially take effect on March 27, 2000.
The child protection regulations establish reviews of the State
child and family services activities and of the criteria States use to
determine IV-E eligibility. In addition, the final regulations
establish enforcement procedures for certain provisions of the 1996
interethnic adoption amendments (sec. 1808 of P.L. 104-188) and of the
Adoption and Safe Families Act of 1997 (P.L. 105-89).
In announcing the hearing, Chairman Johnson stated: ``We must have
a child protection system that will adequately protect children and
promote permanent placements in loving homes. After waiting a long time
for the Administration's final proposal, I am looking forward to
learning from knowledgeable sources whether this plan will get the job
done.''
FOCUS OF THE HEARING:
The focus of the hearing will be on the State child and family
services reviews and benchmarks used to determine State progress.
DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:
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and hearing date noted on a label, by the close of business, Thursday,
March 2, 2000, to A.L. Singleton, Chief of Staff, Committee on Ways and
Means, U.S. House of Representatives, 1102 Longworth House Office
Building, Washington, D.C. 20515. If those filing written statements
wish to have their statements distributed to the press and interested
public at the hearing, they may deliver 200 additional copies for this
purpose to the Subcommittee on Human Resources office, room B-317
Rayburn House Office Building, by close of business the day before the
hearing.
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2. Copies of whole documents submitted as exhibit material will not
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3. A witness appearing at a public hearing, or submitting a
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4. A supplemental sheet must accompany each statement listing the
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The above restrictions and limitations apply only to material being
submitted for printing. Statements and exhibits or supplementary
material submitted solely for distribution to the Members, the press,
and the public during the course of a public hearing may be submitted
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Note: All Committee advisories and news releases are available on
the World Wide Web at ``http://waysandmeans.house.gov''.
The Committee seeks to make its facilities accessible to persons
with disabilities. If you are in need of special accommodations, please
call 202-225-1721 or 202-226-3411 TTD/TTY in advance of the event (four
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materials in alternative formats) may be directed to the Committee as
noted above.
Chairman Johnson of Connecticut. Good morning, everyone.
Let me start by thanking our guests and welcoming you all. I am
particularly grateful that our guests are here today and have
provided actually very interesting and thought-provoking
testimony on rather short notice. We regret that, but since the
regulations go into effect March 27th, it did seem important to
have the hearing as far in anticipation of that date as
possible, and since we will be gone next week, here we are. So
thank you very much for making it possible to have very good
testimony and the kind of thoughtful attention to these
regulations that is appropriate.
First of all, let me just comment about the concept of
Federal oversight. I am a firm advocate of State flexibility,
and those of you who have worked with me know that. But that
does not in any way relieve us of our responsibility to know
whether the law is being implemented and whether the resources
that we have provided are being used effectively.
So oversight is extremely important. Sometimes, it is more
important where there is more flexibility. So I look at these
regulations and this opportunity to hold a hearing on them with
great interest, and consider it one of our most serious
responsibilities.
It is particularly interesting when there is no conflict,
no difference of opinion on the goals of the law. Clearly,
child safety, child permanency, and child and family well-being
are accepted by virtually everyone as appropriate goals, the
right goals. So this hearing is really not about goals. It is
about looking at and gathering a wide array of opinions as to
whether the regulations are going to enable us to understand
what States are doing in a timely fashion and whether they are
going to enable us to develop a more creative and responsive
and effective partnership with the States than we had under the
old law.
First, let me say that I really appreciate the tremendous
improvement in the regulations since their proposed form. I
thank HHS for making many, many changes and being very
responsive to the thoughts and concerns of this Committee.
In addition, as I learn more about the new review system
and how it works, it seems evident that a great deal of thought
and work has gone into its development, both to assure that we
have accurate information that directs itself to children and
their lives and the outcomes of our actions in their lives, and
also to system development and quality issues.
Certainly, I cannot base my judgments just on the
experience of myself and my staff, as it is too limited. So
that is why this hearing is very important for us to get a
better grasp of what a variety of opinions in the community
are, what the intentions were of the administration, what kind
of partnership these regulations are going to enable us to
develop in the years ahead, and most importantly the degree to
which they are going to enable us to focus more effectively on
children and how we are addressing the problems in their lives
and how we are helping or not helping to promote positive
change in their lives.
[The opening statement follows:]
Opening Statement of Hon. Nancy L. Johnson, a Representative in
Congress from the State of Connecticut
I begin by welcoming and thanking all our guests. We did
not give you much notice. Nonetheless, your statements are
exceptionally interesting and thought provoking. Thank you.
We were in a rush to plan this hearing because the
important regulation on, among other topics, federal oversight
of child protection programs, will go into effect on March 27.
As all of you know, there has been no effective federal
oversight of child protection programs for over a decade. After
this long and unfortunate hiatus, I want to be certain that
this regulation takes us a long way toward an efficient and
effective child protection review system.
Let me dispense quickly with a nonissue that is often
raised when Republicans start talking about federal oversight.
I am a firm advocate of state flexibility. In fact, I would
like to find ways to provide states with more flexibility in
the child protection program this year.
But giving states flexibility does not mean surrendering
federal responsibility. The decision to give states more
flexibility simply reflects my belief that states and
localities can do a better job of solving social problems than
any highly prescriptive law we might write here in Washington.
Even so, we are responsible for making sure that states
spend federal money on the problems we specify and that they
mount effective programs. In a system of highly competitive
states and an informed public, federal publicity that programs
are failing will inevitably lead to change by the state -
especially when their federal dollars are on the line.
Our oversight role is especially straightforward when we
have nearly universal agreement about the goals of the program
in question. In the case at hand, I believe the goals of child
safety, child permanency, and child and family well-being are
accepted by virtually everyone. In fact, if any of our
witnesses believe there are other major goals, please let us
know in your testimony.
My purpose in calling this hearing is to get as wide an
array of opinions as possible on a very straightforward
question: Will the new review system provide Congress and
others with accurate information about the extent to which
states are achieving the three goals of safety, permanency, and
well-being?
I believe the final regulation is a great improvement over
the proposed regulation and I thank HHS for making a host of
very good changes. In addition, as I learn more about how the
new review system works, it seems evident that a great deal of
thought and work has gone into its development. More important,
it seems to me that the system holds solid promise for
providing accurate information.
But I would be very uncomfortable basing my judgments on
merely my own knowledge and experience and that of my staff.
That is why this hearing is so important. We can begin to build
a public record that can be consulted by all interested parties
to determine whether the proposed review system will do the
job.
In addition, no matter how good the final regulation might
be, I am certain that we will hear things today that most of us
agree should be incorporated into the review. The tone I want
to set is that the new system holds great promise, but we
should all be committed to improving the system as we go along.
I already have a few ideas that I believe would strengthen the
system, and I plan to use today's hearing to see how our superb
group of expert witnesses respond to my suggestions. And
without doubt, our witnesses will have suggestions of their
own.
So let me complement HHS for publishing a good regulation.
But let me also implore you to keep an open mind about your
product, to listen to states and advocates, and to work with
Congress to improve the review system. We are off to a good
start, but we have a long way to go.
Mr. Cardin.
Mr. Cardin. Well, thank you, Madam Chair. This Subcommittee
has no greater responsibility than ensuring the protection of
our children who have been removed from homes because of abuse
or neglect. Therefore, I commend you for holding this hearing
on the regulations that were recently published by HHS to
monitor State child welfare programs.
Those regulations were issued pursuant to a congressional
mandate of 1994, so they have been a long time in coming.
However, the final result appears to be a good one--a
comprehensive, performance-based evaluation system for services
provided to at-risk children. This results-oriented monitoring
system will be three-tiered.
First, it will track aggregate statewide performance data
on several key issues, including the safety of children in the
child welfare system and the median length of stay for children
in foster care. Second, it will conduct on-site, intensive
reviews of a small sample of child welfare cases to confirm the
statewide data. And, third, it will assess whether States have
implemented specific services for foster children.
Since this new review system and the corresponding Federal
standards are rightly ambitious, I imagine there will be some
concerns expressed by States on their ability to comply with
these new regulations. In this regard, I think it is very
important to understand that our objective is to get
compliance, not to assess penalties. And that is very clear in
the regulations that have been issued and I think there is
really a new focus on that, that our effort is to help the
States to comply with these standards and not to impose
penalties.
I look forward to hearing from Olivia Golden, the Assistant
Secretary for Children and Families, regarding her vision for
the implementation of this new regulation. One particular
question I would like to hear her address is whether she has
adequate staff in order to implement this regulation.
Conducting on-site reviews, determining State compliance
with national standards, or providing technical assistance to
the States in attempting to improve their systems will
certainly be very demanding on the Department's staff. Of
course, I cannot think of any more deserving use for additional
resources than creating a system to ensure the system of our
children at risk.
Madam Chair, I look forward to hearing all the witnesses
today, including our colleague from Pennsylvania.
Chairman Johnson of Connecticut. Well, thank you.
Now, I would like to invite our colleague, Mr. Greenwood,
to come forward. Your experience before you were elected to
Congress makes your opinion and your thoughts around these
issues very valuable to us. Thank you for being with us.
STATEMENT OF HON. JAMES C. GREENWOOD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Greenwood. Thank you very much, and thank you for
holding this hearing and thank you for giving me the
opportunity to testify, and good morning.
I am here for two reasons. As Mrs. Johnson just referred
to, I am a former child worker, caseworker, with the Bucks
County, Pennsylvania, children and youth agency. In fact, when
I first ran for the legislature, I was at a candidates event
and someone stood up and said, why should we elect you? You
have been a social worker all your life. And I said, after 5
years of working with acting-out adolescents, I think I am
perfectly prepared to go to Harrisburg. And it has stood me
well coming here as well.
The other reason I am here is because there was a very
disturbing incident that occurred in my district recently and I
wanted to take the opportunity to talk with you briefly about
it and ask you and your staff to review the new regulations in
view of these events to see that these regulations do
everything that they possibly can to prevent this kind of an
occurrence.
There was a fellow who moved from the State of New York
into my district a few years ago, and with him he had 13
children that had been placed in his care, some of them
adopted, some of them foster children, most of them special-
needs children who had been difficult to place.
He was originally a resident of the State of New York. An
adoption and placement agency had placed these children with
him. It turns out that when he was 19 years of age, he received
his first adopted child. He was single. A 9-year-old
emotionally dependent child was placed in his care, and I can
tell you as a former foster care worker and as someone who
reviewed potential foster parents and potential adoptive
parents for placement of children, a red flag should go up
immediately when a single 19-year-old male says I would like to
adopt a child. There is nothing that should preclude that from
happening, but that should receive considerable scrutiny.
Over the course of the time when this individual was 19
years old and 47 years old, he had 29 children in his care,
some of them adopted, some of them foster children. And he was
arrested for sexually molesting most of the children in his
care over these years. He will go on trial later on this month.
What is at issue here, I think, is this. We correctly have
taken great pains to try to find homes for children who are
difficult to adopt and difficult to find foster homes. These
are kids with special needs, physical challenges, mental
challenges, sibling groups, all of which are older children
hard to place. And we have created financial incentives for the
placement of these children, and we have moved to an era of
greater and greater reliance upon private agencies to do this
work.
There was a time when only public agencies did the home
studies, made the decisions about placement, and we have
privatized a good bit of that out to agencies and much of that
is working well. We also have an interstate compact process
where States rely on one another to do the initial home studies
and then to do the follow-up case work service where they are
required to send caseworkers out periodically to check on these
foster children, to check on the foster children, not the
adopted children. Once a home is approved for adoption, there
is essentially no further home study.
But for children in foster care, there should be ongoing,
periodic, regular review of the situation. The children should
be--and I used to do this--the children should be interviewed;
they should be interviewed out of the presence of their foster
parents to make sure that they feel free to talk.
Clearly, the system broke down here. Clearly, what happened
here was that the State of New York contracted with a private
agency headquartered in Massachusetts to find placements for
these special-needs children. They appear to have accepted this
individual virtually sight unseen as an appropriate foster
parent, placed a myriad of children with him over the years,
and then were involved in very little oversight.
We haven't been able to ascertain yet the extent of that
oversight. I have written to Governor Pataki, of New York, to
ask for a full review and I expect to have that, but clearly
something didn't work here. In our desire to make sure that we
find permanent homes for these special-needs children, we have
perhaps erred on the side of financial incentives and erred on
the side of any foster home is better than none.
What I am simply here to do this morning is to ask that
you, Members of the Subcommittee and your staff, make sure that
these new regulations do everything that they can to prevent
this kind of occurrence in the future.
Thank you for the opportunity.
[The prepared statement follows:]
Statement of Hon. Jim Greenwood, a Representative in Congress from the
State of Pennsylvania
Madam Chairwoman and Members of the Subcommittee:
I appreciate the opportunity to testify today about an
alarming incidence of abuse in my district and about the
federal government's role in protecting children as we provide
assistance to States for foster care and adoption. As a former
Children and Youth Social Services caseworker and a legislator
who has strongly advocated children and adoption issues in both
the Pennsylvania Legislature and the Congress, I was horrified
this past November to learn that Mr. Thomas Cusick, a resident
of Bucks County in my district who moved from Staten Island in
January 1998, was arrested on charges that he sexually molested
a number of foster and adopted special needs boys in his home.
On February 28, Mr. Cusick will be tried on 37 counts of
indecent assault, endangering the welfare of a child,
involuntary deviant sexual intercourse, and corruption of
minors. At the time of his arrest, Mr. Cusick was 47 years-old,
unmarried, and did not appear to have a job. However, he did
have custody of thirteen foster and adopted children with
emotional and physical problems. Bucks County Children and
Youth Services estimates that he has had custody of roughly 28
youngsters over the past 29 years. He is reported to have
adopted his first child, a nine year-old boy, when he was only
age eighteen.
Mr. Cusick assumed custody of some or all of these children
in Staten Island through Downey Side Families For Youth, a
private adoption agency that claims to be exclusively devoted
to locating homes for special needs children who prove
difficult to be placed. As I understand the circumstances, the
New York City Regional Office of Children and Families
contracted Downey Side to examine Mr. Cusick's home and to
place these children on the agency's behalf. Mr. Cusick, by
anyone's standards, was not an appropriate parent for all of
these children. In response to this unfortunate incident, I
wrote to Governor George Pataki of New York in January to
request that his office investigate Mr. Cusick's foster and
adoption-related case histories and share his conclusions with
me. Fortunately, the Governor informed me on February 11 that
he has directed the Commissioner of Children and Family
Services to thoroughly review the placements and I expect to
hear from his office in the very near future. While this
tragedy may prove to be an anomaly, I believe we can safely
conclude in the meantime that our child welfare system, which
is designed to protect children, failed to do so in these
instances.
When I was a caseworker who found suitable homes for
troubled kids, part of my responsibility was to examine the
home to determine if the family offered a healthy and loving
environment where these children could develop to live happy
and productive lives. So I know that many foster kids run into
barriers to timely placement in permanent homes because they
are older, in sibling groups, or have traumatic histories and
associated emotional and physical problems. Therefore, I
strongly supported the Adoption and Safe Families Act (ASFA) in
1997 because I empathized with those children who languish in
foster care unnecessarily long and I understood the unique
challenges that caseworkers face to place these children.
I have come before the Subcommittee today to discuss two
broad concerns about the federal government's attention to
states' child protection systems. First, during the years that
these children were placed in Mr. Cusick's home, I think the
federal government did not do enough to monitor cases of
children in States' foster care systems. Second, I believe
current child welfare procedures may be obstructing the timely
and safe placement of special needs children.
I am concerned that the lack of federal attention to
states' child protection systems in recent years has allowed
the Tom Cusick's of the world to harm our children. Under
current law, States are supposed to continually monitor the
foster and adoptive placements of children. However, I would
argue that the Department of Health and Human Services (HHS)
has failed to enforce federal law and assess State child
welfare performance for many years. I am happy to see that the
Secretary has issued regulations to review states child welfare
performance and I hope the new system will in fact subject
States' to stricter scrutiny from the federal government. But,
I remain skeptical that these regulations may not adequately
address the problem of interjurisdictional placements.
Congress included language in ASFA to encourage child
welfare agencies to place children outside their jurisdiction.
For a variety of personal, cultural, and professional reasons,
many caseworkers tend not to trust other States' standards of
practice as they do their own. For instance, different States
may have similar criteria for home studies, pre-placement
adoptive parent education, and post-placement services; yet,
human services professionals are often reluctant to cross
jurisdictional boundaries because the legal and financial
responsibility remains with their State or county agency after
the child is placed. Ultimately, I believe current practices to
place children across State lines contradicts our
Constitutional principle of ``full faith and credit.'' At a
minimum, I think Republicans and Democrats alike can agree that
the federal government's role in interstate adoptions should be
reexamined.
I can not necessarily conclude at this time that the lack
of federal review or interjurisdictional barriers were the
major factors that allowed these children to be placed in Mr.
Cusick's care. However, we can ask: if New York State's
performance had been subject to scrutiny from the federal
government under the new HHS regulations, would Mr. Cusick have
been able to take in so many troubled kids only to abuse them?
And, if the caseworkers in New York State did not have to
factor in the burdens of interstate placement, would they have
been so willing to place that thirteenth child with Mr. Cusick?
Or the twelfth, the eleventh? I am sure a myriad of errors
contributed to these inappropriate placements and I hope the
new HHS regulations will prevent such occurences in the future,
but I urge the Members of the Subcommittee and the
Administration to remain cautiously skeptical as you proceed
with the new system.
I hope the information about Tom Cusick has been helpful to
my colleagues on the Subcommittee. I look forward to working
with you and the Administration to examine these events more
closely and improve the reliability of foster care and adoption
services. Again, I want to thank Chairwoman Johnson and the
Subcommittee Members for the opportunity to appear today. I
would be happy to answer any questions you may have.
Chairman Johnson of Connecticut. Thank you very much,
Congressman Greenwood. I know you have put a lot of time into
investigating this case and that you came to that investigation
with a lot of experience. Have you been able to get the
information that you felt you needed in a timely fashion or
were there barriers to----
Mr. Greenwood. No, I don't think there have been barriers.
My staff did a number of things, contacted the bureaucracy in
New York. We actually sent them out to Harrisburg,
Pennsylvania, to talk to our foster care folks to look at the
issues involved. I felt that the bureaucracy in New York was
responding fairly slowly, so I wrote directly to the Governor
and that got a little attention. So I think we will hear back
promptly.
So I don't think that is the issue. I don't think getting
answers is the issue. The question is are we, in our
appropriate desire to make sure that these special-needs kids
find good homes, erring on the side of, as I said, any home is
better than no home. And I think that that is the reality right
now.
Chairman Johnson of Connecticut. And are we overseeing
those placements in a way that when we err in our judgment of
what is a good home, we catch it?
Mr. Greenwood. I think we are not. I think that we are
increasingly relying on private agencies to do the placement,
and that is fine, but what should have happened in this case is
that the private agency that made these placements--number one,
I think it is extraordinary that a single man between the ages
of 19 and 47 was able to have 20-some children in his care to
begin with. I think that we all talk a lot about what families
mean--the best families are moms and dads, and if you can do
that, that is best. But there should have been some scrutiny
into this man's motivations, frankly.
Second, the private agency should have sent a caseworker to
this home, and maybe many caseworkers because these children
probably had various caseworkers, and should have been in that
home on a regular basis; I would say a quarterly basis, at
least, to talk to these children, to see how they were doing,
and that seems not to have happened.
And the State agency who contracted with the private agency
should have been querying the private agency with regard to
their home investigations. How frequently are you down there?
What are you finding? And somebody somewhere in this system
should have noticed that 29 children were placed with a single
male individual over the course of these years, and that, I
think, should have, if nothing else, created a situation where
you would have more than the usual scrutiny and not less.
Chairman Johnson of Connecticut. I certainly agree with
all of those comments. I, in addition, am very concerned about
being able to move interstate with foster children because you
distance them from their original family so significantly.
Mr. Greenwood. Right, and this individual apparently picked
up and moved from New York to Pennsylvania, taking all of these
children with him. And having been a foster care worker, I had
90 children in my care at one time and they were all within my
county and I know how difficult it was for me to keep tabs on
all of these children when they were all within 20 miles of my
office.
To think that we are going to have caseworkers from
Massachusetts and New York come down on a regular basis to
Pennsylvania--and the children and youth agency in my county
was completely unaware of the presence of this individual and
these 13 kids in his care until the arrests were made, and then
they had the responsibility of dispersing all of these children
in other homes.
And if you think about what makes this particularly tragic,
if you think about a special-needs child who is born perhaps
mentally retarded with severe physical disabilities and the
first event in his life is that he is abandoned by his
biological parents, placed into care, then he is placed in the
care of a foster parent and then that foster parent is abusive
and there is no one to talk to, no one to watch over him, and
then because of the arrest the child is displaced again into
yet another home, it is really tragic and it is contrary to
everything we are trying to accomplish here.
Chairman Johnson of Connecticut. It is, and it is a
perfect example of all the problems. And as we listen to these
regulations, it will give us a concrete measure of what we need
to address. But the interstate issues are very disturbing.
Mr. Cardin.
Mr. Cardin. Well, Jim, first, thank you for being here. We
very much appreciate the information. It makes it easier for
us, I think, to understand the seriousness of the problem and
the need for these national standards. I agree with Mrs.
Johnson. We want to provide maximum flexibility to our States,
but with the protection of children it is important that we
have national standards.
You have really raised an issue, a real challenge to us.
What happens when one State places the child, but the abuse
happens in a second State? It is not an easy issue for us to
get a handle on and it is something I think this Subcommittee
is going to need to take a look at, working with the
Department, to figure out a way that we can have adequate
supervision and adequate oversight when the child is physically
out of the jurisdiction of the State that made the original
placement.
So thank you, but this won't be the last time we are going
to be calling upon you.
Mr. Greenwood. Thank you, and let me make one other
comment. When I was a foster care worker, children would be
abused and come into care and I would go to court with a
petition to get custody of these children, and then I would go
to our foster care placement director and say, where should I
put these kids?
And she was marvelous and she had a network of foster
parents throughout the county, and even then some of those were
marginal. Some of those, we knew there were problems with the
foster parents; they had their own quirks, and so forth.
One of the things I think we ought to be looking at is what
are the incentives to be a foster parent, because it is still
extraordinary--the reason that this happened, the reason that
29 children were placed with a single male individual who
turned out to be a child molester is because it is very, very
difficult to find appropriate foster homes and adoptive homes
for these kinds.
So I think, again, we need to look at what the incentives
are because we need to have a system in which good, healthy
couples with all the right motivations find it a good deal to
be foster parents, and I think we are still falling short in
that.
Mr. Cardin. Madam Chair, I would ask that our Subcommittee
be informed as to what steps New York is taking in response to
this case because it seems to me the point that Congressman
Greenwood has made cries out for a change in policy in New York
in placing foster children. It is fine for us to implement a
system, but it seems to me there should be some action taken.
So I would appreciate it if you would inform us as to the
response from New York.
Mr. Greenwood. We will do that. Thank you.
Chairman Johnson of Connecticut. Yes, we certainly will be
interested in following this with you. But it is also a very
appropriate case to hear right before we hear testimony about
these new regulations because for the first time they are
moving from paperwork reviews of State activity to really case
reviews and trying to get a better handle on what is happening
to children.
No case review system, since it is just a sample, is going
to also give us confidence that absolutely every home is being
overseen, and so we need to think that through. But I think
also at least my belief is that States are having a harder and
harder time recruiting foster families and training them to
deal with the difficulties of the children that we are placing
with them.
And there are some options. I know in Connecticut we are
developing safe homes where large sibling groups can be put
together for a period of time while their future is thought
out, and they don't then lose their parents and all their
siblings at the same time.
Mr. Greenwood. And that is critical.
Chairman Johnson of Connecticut. Right.
Mr. Greenwood. From personal experience, I know how painful
it is for a sibling group to have experienced abuse at the
hands of one of their biological parents and to be yanked out
of that family, taken to court, and then split up. They need
each other at that time.
Chairman Johnson of Connecticut. And when we had testimony
on the independent living bill, we had some really touching
testimony on that issue. But one of the reasons I am such a big
advocate of flexibility is that States are developing some
group home capabilities for these kinds of children which may
be a better solution than a single family, given our difficulty
in actually training these families to the level of
sophistication they need to care for children with such complex
problems.
Mr. Greenwood. There is a whole other issue here and that
is the issue of institutions, so-called orphanages, versus the
move toward family placements--it was appropriate for us to try
to move children out of the institutional setting into the
family setting. But I think in the course of that, we have in
some cases erred on the side of any family, however you define
that, being better than any institution, and that is not
necessarily the case.
Chairman Johnson of Connecticut. Right.
Mr. Greenwood. These children would have been far better
off had they all been placed in a well-run institution that was
family oriented than any old household that calls itself a
family.
Chairman Johnson of Connecticut. I think we are learning a
lot about those things, but we will be very interested in
following this case with you, making sure you get the right
information, understanding what your judgments are in it, and
working with you and also with the Secretary to make sure that
our changes in law, if they are necessary, or our system does
protect children better than they clearly were protected in
this case.
Thank you very much for being here.
Mr. Greenwood. Thank you for the opportunity.
Chairman Johnson of Connecticut. Now, I would like to
welcome Assistant Secretary Olivia Golden, Assistant Secretary
for Children and Families from the Department of Health and
Human Services.
You have been before us before, Secretary Golden, and we
look forward to your testimony and to working with you on the
issues that were raised by Congressman Greenwood. Welcome.
STATEMENT OF HON. OLIVIA A. GOLDEN, PH.D., ASSISTANT SECRETARY
FOR CHILDREN AND FAMILIES, U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Ms. Golden. Thank you for the opportunity to discuss the
final rule on monitoring of child welfare programs. The
regulation is another major milestone in our shared commitment
to protect children from abuse and neglect, ensure that foster
care is a temporary setting, encourage adoption, and promote
child and family well-being.
The last several years have brought about major changes in
the laws governing child welfare services. Most recently,
thanks particularly to your leadership, Madam Chairman, and Mr.
Cardin, we were successful in passing the Foster Care
Independence Act of 1999, as you just alluded to, the law that
will help to ensure that young people who leave foster care
without finding a permanent home receive the support they need
to take on the responsibilities of adulthood.
Together, the administration and Congress have enacted
other far-reaching pieces of legislation, including the
Adoption and Safe Families Act, ASFA; the Multi-Ethnic
Placement Act; and the Inter-Ethnic Adoption Provisions. One
key accomplishment stemming from these changes has been the
first significant increase in adoptions from the foster care
system. In 1998, 36,000 children were adopted, up from 28,000
in 1996.
While we have accomplished a great deal, we know that there
is much left to do and, of course, we just heard about that. As
I noted in my testimony before you last spring, State
government has ultimate responsibility for carrying out child
welfare programs and for protecting children in their care and
custody. But the Federal Government plays an important role in
providing technical assistance and holding States accountable.
The final rule makes a critical contribution by outlining a
new results-oriented child and family services review process
that will serve as the Federal Government's key tool for
finding out how State child welfare programs are doing and
ensuring children's safety, permanency, and well-being. It also
provides a framework for providing States technical assistance
and helping them make program improvements, and it provides a
tough but fair way to ensure accountability.
We reshaped the reviews entirely, as noted in both opening
statements, with a goal of focusing on outcomes, on the actual
results that child welfare systems were delivering for children
rather than on process. We conducted 13 pilot reviews that have
informed the development of the regulations in fundamental
ways.
While we were developing the new approach to monitoring,
major bipartisan child welfare legislation was enacted, the
Inter-Ethnic Adoption Provisions and ASFA. So we took the
opportunity to clarify provisions in those laws through this
regulation, as well as updating the process for reviewing a
child's eligibility for the Title IV-E Federal foster care
program.
I would now like to focus specifically on the child and
family services reviews. The new reviews look at how a State
performs in ensuring that children are safe, that children in
foster care have the opportunity to achieve timely and
appropriate permanence, and that children and families who are
involved in the child welfare system have their needs met in
ways that promote their well-being. Holding States accountable
for results in these areas is a major positive departure from
prior reviews.
The reviews also examine the functioning of key systemic
factors that affect the ability of State programs to serve
children and families effectively, and the chart as well as my
written testimony provide a full list of the outcomes and
systemic factors covered in the reviews.
In making decisions about States' performance, we will use
both quantitative and qualitative information obtained from a
statewide assessment completed by State staff and external
representatives, and including statewide data indicators that
provide a broad view of how the State is performing; a sample
of cases reviewed on-site in the State by a joint team of State
and Federal staff; interviews with community stakeholders, such
as courts; and interviews with the children and families who
receive services, as well as foster families, caseworkers, and
service providers.
The final regulation responds to many helpful comments we
received in response to the proposed rule. For example, in
response to comments encouraging us to make the process for
determining State compliance more quantifiable, we have
strengthened the objective elements of the regulation while
retaining a focus on quality.
We also received comments on the balance in the regulation
between program improvement and technical assistance on the one
hand, and accountability and the imposition of penalties on the
other. We are confident that States want to improve outcomes
for children and families, and will welcome the opportunities
to receive technical assistance and make program improvements
before we withhold Federal funds. At the same time, we have
strengthened accountability in the regulation, for instance, by
adding provisions for gradually increasing the penalties for
areas of non-compliance that remain uncorrected over time.
We firmly believe that this regulation will result in
positive changes in the lives of vulnerable children and
families. We are currently in the process of identifying the
first group of States to be reviewed and will conduct initial
child and family service reviews in 17 States per year.
In conclusion, I want to thank you for your deep commitment
to this important work, and I would be pleased to answer any
questions.
[The prepared statement follows:]
Statement of Hon. Olivia A. Golden, Ph.D., Assistant Secretary for
Children and Families, U.S. Department of Health and Human Services
Thank you for the opportunity to appear before you today to
discuss the final rule on the monitoring of child welfare
programs published by the Department of Health and Human
Services (HHS) on January 25, 2000. The issuance of the
regulation is another major milestone in furthering our shared
commitment to protecting children from abuse and neglect,
ensuring that foster care is a temporary setting and not a
place for children to grow up, promoting adoption for children
who cannot safely be reunified with their own families, and
promoting the well-being of all children and families served by
the child welfare system.
As we discussed when I appeared before this Subcommittee
last April, these last several years have brought about major
changes in the laws and procedures governing the delivery of
child welfare services. Most recently, thanks particularly to
your extraordinary efforts, Madam Chairman and Mr.Cardin, we
were successful in passing another important piece of
legislation, the Foster Care Independence Act of 1999, which
will help to ensure that young people who leave foster care
without finding a permanent home, are given the supports,
educational and vocational opportunities they need to take on
the responsibilities of adulthood on their own. Working
together in a bipartisan fashion, the Administration and
Congress have enacted other far-reaching pieces of child
welfare reform legislation, including the Adoption and Safe
Families Act (ASFA) of 1997, the Multiethnic Placement Act of
1994 and the Inter-ethnic Adoption provisions of the Small
Business Job Protection Act of 1996. Together these laws make
it clear that ensuring child safety must be the paramount
concern of child welfare services; that timely decisions about
permanency must be made for all children in foster care; and
that barriers to adoption, whether based on racial
discrimination, geographic boundaries, or simply outmoded
assumptions, must be torn down.
One key accomplishment stemming from the changes in law and
the increased attention to child welfare issues has been the
first ever significant increase in adoptions from the foster
care system. As you know, this past September, we made the
first awards to 35 States under the Adoption Incentive program,
one of the innovative reforms authorized through ASFA. In 1998,
36,000 children were adopted from the foster care system, up
from 31,000 in 1997 and 28,000 in 1996.
While we have accomplished much in the past several years,
we know that there is much left to do. Allegations of abuse and
neglect involving nearly 3 million children are reported to
child protective services agencies each year, and nearly 1
million children are found to be victims of maltreatment. Over
half a million children are in foster care on any given day
over. Over 100,000 children in foster care are awaiting
adoptive families, and, on average, these waiting children have
been in foster care for more than three years.
As I noted in my testimony before you last spring, it is
ultimately State government that has responsibility for
carrying out child welfare programs and for protecting children
in their care and custody, through a complex system that
involves many agencies, organizations and individuals. States
retain significant flexibility in designing programs and
services to best meet the needs of children and families in
their jurisdictions. But the Federal government also plays an
important part by creating a common policy framework; sharing
in the financing of child welfare services; supporting
research, evaluation and innovation; providing technical
assistance; and perhaps most importantly, by holding States
accountable.
The final rule we have just published makes a critical
contribution to these last two roles: technical assistance and
accountability. It outlines a new results-oriented child and
family services review process that will serve as the Federal
government's key tool for finding out how State child welfare
programs are doing at ensuring children's safety, permanency
and well-being. It also provides a framework for providing
States technical assistance and helping them to make needed
program improvements, and it provides a tough, but fair way to
ensure accountability. Finally, in addition to implementing
this new approach to federal monitoring of State child welfare
programs, the final rule also clarifies key provisions of ASFA,
the Multiethnic Placement Act and Inter-ethnic Adoption
provisions; and implements a new title IV-E foster care
eligibility review system.
Background and History of the Regulation
The final rule grows out of a 1994 congressional mandate
directing the Department to revamp its system of child welfare
monitoring, reflects extensive consultation and field testing,
and incorporates key provisions of ground-breaking child
welfare legislation passed during the time the new system was
being developed. The final rule also reflects serious
consideration of comments received on the proposed rule,
including several from Members of Congress and this
Subcommittee, which were extremely helpful in developing the
final approach.
First, in 1994, as a result of widespread dissatisfaction
with the prior review process, legislation was enacted that
directed the HHS to develop a new monitoring system for child
and family services. The Congress had already indicated
dissatisfaction with the prior review process by declaring a
moratorium on the Department's ability to collect penalties
based on it. Specifically, the statute required HHS to regulate
the requirements subject to review and the criteria used to
measure compliance. In addition, the law also required the
Department to provide States an opportunity for corrective
action before imposing a penalty and specified that the penalty
should be based on the degree of non-compliance.
We believed that the legislative mandate for change was so
significant that we took the time to re-shape the reviews
entirely, with the goal of focusing on outcomes--on the actual
results that state child welfare systems were delivering for
children in terms of safety, permanence, and well-being -rather
than on process. We engaged in extensive consultation with the
field on the conceptual framework, and we conducted thirteen
pilot reviews that have informed the development of the child
and family service reviews in fundamental ways.
While we were developing the revamped approach to
monitoring, major bipartisan child welfare legislation was
enacted: the Inter-ethnic Adoption provisions and the Adoption
and Safe Families Act. We took the opportunity to clarify
provisions in these laws by incorporating key elements into
this regulation as well. In taking this approach, we have
produced an encompassing rule that provides States with
information on the manner in which their programs will be
reviewed and evaluated, as well as the criteria and
requirements that must guide the administration of their
programs.
Finally, we issued a Notice of Proposed Rulemaking (NPRM)
on September 18, 1998 and invited nationwide comment. We
received 176 letters of comment from Members of Congress, State
and local child welfare agencies, national and local advocacy
groups for children, educational institutions, individual
social workers, providers of child welfare services, State and
local courts, national and State associations representing
groups of practitioners, Indian tribes, and local community
organizations. In analyzing these comments, we adhered to the
following principles: keeping the focus on the goals of safety,
permanency and well-being in State child welfare systems;
moving child welfare systems toward achieving positive child
and family outcomes while maintaining accountability;
maintaining our stewardship role over the use of Federal funds;
enforcing statutory requirements in ways that encourage strong
State/Federal partnerships and program improvements; and using
the lessons learned in the pilot reviews and information
gathered in the consultation.
Overview of the Final Rule
I would now like to provide an overview of the final rule,
which covers four basic areas. First, the regulation outlines
our response to the legislative mandate to re-design Federal
reviews of State programs. The review process described in the
regulation focuses on outcomes, that is, how a State performs
in ensuring that:
Children are safe and free from risks of harm;
Children in foster care have an opportunity to
achieve timely and appropriate permanency in their lives; and
Children and families who are involved with the
child welfare system have their needs met in ways that promote
their well-being and strengthen their opportunities for success
in life.
Holding States accountable for results in these areas is a
major departure from prior reviews and we believe that this
approach to monitoring will have positive consequences for
children.
Second, the rule includes the penalty and corrective action
components of the Inter-ethnic Adoption provisions, which will
assist us in enforcing its provisions.
Third, the rule also implements certain key aspects of the
Adoption and Safe Families Act that are directed at improving
States' efforts to achieve safety and timely permanency for
children.
Finally, we have also updated the reviews of a child's
eligibility for the title IV-E Federal foster care program.
This final rule clarifies the statutory eligibility provisions,
and also incorporates several requirements of the Adoption and
Safe Families Act into the reviews.
I will now provide a more detailed look at each of the four
sections.
Child and Family Service Reviews
By focusing on outcomes, the new reviews will determine
what is actually happening to children and families as a result
of their receipt of child welfare services, including child
protective services, foster care, family preservation and
family support, and adoption services. We will review State
programs on the following seven outcomes:
Children are, first and foremost, protected from
abuse and neglect;
Children are safely maintained in their own homes
whenever possible and appropriate;
Children have permanency and stability in their
living situations;
The continuity of family relationships and
connections is preserved for children;
Families have enhanced capacity to provide for
their children's needs;
Children receive appropriate services to meet
their educational needs; and
Children receive adequate services to meet their
physical and mental health needs.
The reviews also examine the functioning of key systemic
factors that affect the ability of State programs to serve
children and families effectively, including the State's
capacity to generate automated information on the children it
serves; the implementation of a case review system and quality
assurance procedures; staff training and the availability of a
range of services for children and families; the State's
relationship with and responsiveness to the communities it
serves; and the recruitment of foster and adoptive families.
In making decisions about the States' performance in these
areas, we will use both quantitative and qualitative
information that is obtained from several sources:
A statewide assessment completed by State staff
and representatives from outside the State agency in order to
assure accountability and balanced perspectives on the issues;
Statewide data indicators that provide a broad
view of how the State is performing and that are based on the
ASFA outcomes measures, such as repeat maltreatment of
children, length of stay in foster care, and the length of time
it takes for children to achieve adoption or reunification;
A sample of cases selected randomly that is
reviewed on-site in the State by a joint team of State and
Federal staff;
Interviews with community stakeholders, such as
courts, children's legal representatives, foster families, and
other agency representatives; and
Interviews with the children and families who
receive services, as well as the foster families, caseworkers,
and service providers involved with these children and
families.
We are very pleased that we have retained the features of
the child and family service reviews that States and other
commenters supported most strongly in their comments on the
NPRM. These include:
A timely outcome-based approach to reviewing child
and family services, with a focus on the quality of services
A tough but fair accountability process with an
emphasis on program improvements, including opportunities for
the States to have penalties suspended and rescinded if they
make required improvements.
A focus on State and Federal partnerships
resulting from jointly reviewing programs and developing
program improvement plans
The final regulation includes a number of changes that
respond to the many extremely helpful comments we received
about how best to design the process to accomplish these shared
goals. For example, a number of commenters on the NPRM
suggested that we increase the sample of cases reviewed on-
site. However, a key lesson we learned in the pilots was that
an extremely intensive on-site review, including interviews
with key participants such as the child and the foster or
adoptive family rather than just a review of what is already in
the case files, is critical to developing good information
about the real outcomes for children. We also learned in the
pilots that high quality reviews are so time-intensive that we
could not realistically increase the sample and maintain the
quality of review. To balance these competing concerns and
respond fully to the comments, we have kept the small but
intensive sample as one key source of information but at the
same time considerably strengthened a second source of
information--a rigorous statewide assessment that looks at key
statewide performance data. In those cases where the statewide
assessment and the on-site review give different results, we
have incorporated a process for resolving discrepancies between
the statewide assessment and the on-site review, including
giving States the option of going to a larger sample.
Similarly, several comments, including some of the comments
we received from members of Congress, encouraged us to make the
measures by which we determine a State's compliance more
measurable and quantifiable. We found these comments very
helpful and have responded by strengthening the objective
elements of the regulation while at the same time retaining a
focus on necessarily subjective judgments of quality in the
intensive review process. Among the specific statewide data
indicators that we have included are measures of repeat
maltreatment, the length of time children spend in foster care
and the length of time it takes for children in foster care to
achieve permanency, either through adoption or reunification.
We will establish national standards for each of the statewide
data indicators and use the review process to help all States
improve their performance and achieve the standards. Other
steps we have taken to increase objectivity include
strengthening the statewide assessment procedures, defining
more precisely how the States will be rated on the systemic
factors under review, and strengthening the procedure for
resolving discrepancies between information in the statewide
assessment and the on-site review. We believe these steps will
enable us to retain the qualitative focus of the reviews and to
increase objectivity.
Finally, we received comments on the balance in the
regulation between program improvement and technical assistance
on the one hand and accountability and the imposition of
penalties on the other. We are confident that States want to
improve the outcomes for the children and families they serve,
and will welcome the opportunities to engage in program
improvement planning that are a part of this regulation. As
required in the 1994 statute, we have included opportunities
for States to receive technical assistance, to make
improvements where needed, and to correct areas of non-
compliance before we withhold Federal funds.
At the same time, we have strengthened the accountability
provisions in the final regulation. For example, we have added
to our proposed penalty structure for non-compliance provisions
for gradually increasing the penalties for those areas of non-
compliance that remain uncorrected over time. The graduated
penalty provisions demonstrate our seriousness about working
with States to ensure that they undertake program improvement
efforts that lead to lasting changes, not short-term fixes for
problems. Accountability is also enhanced by including
community representatives who are external to the State agency
in completing the statewide assessment and participating in the
on-site reviews.
Multiethnic Placement Act (MEPA) and Inter-ethnic Adoption
Provisions
I would now like to discuss the second part of the
regulation, which addresses the enforcement, penalty, and
corrective action processes for violation of the Inter-ethnic
Adoption Provisions. As you know, the 1996 Inter-ethnic
Adoption Provisions are aimed at preventing discrimination in
foster care and adoptive placements. The law prohibits delaying
or denying the placement of a child with a prospective foster
or adoptive parent on the basis of the child's or the adult's
race or ethnicity. The statute also outlines penalties for
violations of the law.
Both ACF and the Office of Civil Rights (OCR) have been
rigorously enforcing MEPA since its enactment and the Inter-
ethnic Adoption Provisions. For instance, in fiscal year 1999,
OCR conducted over sixty-eight activities including complaint
investigations, compliance reviews, training and technical
assistance. This regulation furthers our efforts by clarifying
how the enforcement process works and the penalties associated
with violations.
The penalty process follows the statute closely. States
found to have discriminated against an individual will be
assessed a penalty consistent with the statute. If there are
violations, not against an individual, but associated with the
State maintaining a policy, statute, or procedure that would
result in a violation against an individual if applied, the
State must take corrective action within six months to avoid
the assessment of a penalty.
The Adoption and Safe Families Act (ASFA)
The third part of this regulation is its implementation of
certain provisions of ASFA. The ASFA made a wide range of
reforms to Federal child welfare law, by emphasizing the
necessity of ensuring children's safety; by shortening the time
frames for making permanency decisions for children in foster
care in recognition of their developmental needs and sense of
time; by ensuring that permanency planning begins the moment a
child enters foster care; by emphasizing the importance of
results and accountability; and by encouraging innovation in
the delivery of child welfare services.
The new regulations further the implementation of ASFA in
two ways. First, we have incorporated the core principles of
ASFA, that the safety and well-being of children must be the
paramount concern in decision-making and that foster care is a
temporary setting and not a place for children to grow up, into
the core procedures and measures of the child and family
services reviews and the title IV-E foster care eligibility
reviews. In addition, the regulation specifically addresses and
clarifies a number of ASFA provisions.
The regulation includes the ASFA requirement that
States file a petition to terminate parental rights for
children who have been in foster care for 15 of the most recent
22 months, abandoned infants, and children of parents who have
committed certain offenses, unless an exception applies. We
have made it clear in the regulation that there are no blanket
exemptions from the termination of parental rights requirement,
and we emphasize that States must make decisions not to pursue
termination on a case-by-case basis. We have provided some
examples of situations in the regulation that may constitute a
compelling reason for not filing a petition to terminate
parental rights, such as a situation involving an unaccompanied
refugee minor.
With regard to the reasonable efforts provisions
in ASFA, the regulation clarifies that States can define in
State law the ``aggravated'' circumstances under which the
State is not required to make reasonable efforts to prevent
removal or to reunify a family due to safety considerations. We
fully supported State flexibility with regard to this
provision.
We also clarified in the regulation that States
are now required to obtain a court order at least every twelve
months to show that the State made reasonable efforts to
finalize a permanent plan for the child in a timely manner,
whether the plan is to reunify the child and parents, or
achieve permanency through adoption or legal guardianship.
Title IV-E Reviews and Other Foster Care Requirements
The fourth major area included in the regulation is the
title IV-E eligibility reviews. In these reviews, we exercise
our stewardship role by ensuring that Federal funds are used
only for eligible children who are placed with eligible
providers. This is a critical review since many of the child
protections included in ASFA, such as reasonable efforts
provisions and criminal background clearances on foster and
adoptive parents, are addressed in the title IV-E foster care
reviews.
Among the foster care provisions we clarify in the
regulation are the requirements relating to licensure of foster
family homes as a prerequisite for the receipt of title IV-E
foster care payments. The regulation clarifies that States must
use the same licensing or approval requirements for all foster
family homes, whether they are relative or non-relative foster
homes. States may make some exceptions for relative homes in
areas that do not affect the safety of children, for example,
waiving a requirement about the minimum square footage of the
home. In order to allow States a period of time to transition
to the new requirements, the regulation allows States six
months to bring all foster family homes into compliance with
their licensing standards before we will withhold funds on that
basis.
Through the regulation, we are also implementing the
requirements for criminal background clearances on foster and
adoptive families prior to a child's placement. Unless a State
opts out of the requirement through the governor's action or
the passage of a State law, the statute requires States to
conduct criminal background clearances on prospective foster
and adoptive parents as a pre-condition for the receipt of
title IV-E Federal foster care funds.
Next Steps
We are very excited to be implementing this regulation as
we believe that it will result in positive changes in the lives
of vulnerable children and families. We are currently in the
process of identifying the first group of States to be
reviewed. Among the criteria that we are using to determine the
order in which States will be reviewed through the child and
family services review process are:
States with identified child safety issues should
be early in the schedule;
States that have indicated a need for technical
assistance to improve their programs should be early in the
schedule; and
States that were reviewed through pilots can be
reviewed later, in the absence of a strong need under the first
two criteria.
We will conduct initial child and family service reviews in
17 States per year, beginning immediately to work with the
group of states that will be completed in FY 2001. We expect
that this group will complete the statewide assessment this
year and be ready for on-site reviews early in FY 2001. We will
also begin conducting the new title IV-E eligibility reviews
and expect to conduct 10 reviews during the current fiscal
year. Over the next four years, we will conduct both types of
reviews in all 50 States.
In addition to implementing the new reviews, we are also,
of course, moving forward in the full range of other activities
needed to further our agenda in the child welfare area. We are
continuing to provide technical assistance to States in the
implementation of ASFA and MEPA and ensuring that their State
laws are in compliance. We will again be working with States to
award additional child welfare waiver demonstrations that can
tell us about new ways to finance or deliver services to
children. We will also be working with States to implement the
provisions of the expanded and improved Independent Living
Program. There is much work remaining, but we are committed to
continuing to do all we can to improve the lives of the
thousands of children and families in our nation's child
welfare system.
In conclusion, I would like to thank all of the members of
this Subcommittee for your efforts and your ongoing commitment
to this important work. I would be pleased to answer any
questions you may have.
Chairman Johnson of Connecticut. Thank you very much,
Secretary Golden. I think this does represent a great leap
forward in Federal oversight regulations and has the potential
to develop a partnership between State agencies, providers, and
the Federal Government that could be very fruitful and very
positive.
Ms. Golden. Thank you.
Chairman Johnson of Connecticut. I was curious as to why
your measure is going to be 95 percent of cases in on-site
review for substantial conformity. What is the logic of 95
percent?
Ms. Golden. Well, let me try to lay out the pieces of the
review and how they fit together to determine a State's
substantial conformity because one of the key features--and we
have a chart up there; I don't know if we have placed it so
that you can see it. But one of the key features of the reviews
is that we use multiple sources of information and bring them
together. I think you are referring to the standard for
substantial conformity for the on-site reviews in the second
and subsequent review cycles, so let me tell you a little bit
about how the multiple pieces come together.
The first element of the child and family service reviews
that is really important to answering that question is that we
don't have an all-or-nothing pass/fail. What we are doing--and
I think the previous testimony really illustrated why it
matters so much--we are looking at multiple outcomes and at
multiple aspects of service delivery.
The list is there and you probably can't see it, but we are
looking at seven outcomes, including safety, including
permanence, and at seven systemic factors like case review
system, quality assurance system, and licensing and recruitment
for foster parents. So the first thing is it is not all-or-
nothing. We are looking at seven outcomes and seven systemic
factors, and we expect that most States will have areas of
strengths and areas they need to improve within that.
The second part of the answer is that we are bringing
together information from a statewide assessment--that is the
first box there--and an on-site review because what we have
learned about looking at outcomes is that no single source of
information tells you everything you need to know about whether
children are safe. So we will be looking at statewide
information and looking at whether States, based on that
information, meet national standards in those areas where we
have good national data. Where we don't have national data, we
will be working with State information. So we will have that
piece.
Then comes the on-site review where we will be intensively
looking at a sample of cases, not only the paper in the folder
but also talking with people. And as you note, as the reviewers
work on those cases, they are going to be looking--and I
believe it is 90 percent of the cases the first time, 95
percent in subsequent reviews--at whether in each of these
areas they see evidence of success. So that is going to be one
of the pieces of information.
If that information is different from the information in
the State standard we have a means to resolve the difference.
Let me just give you an example. On safety, one of the areas
where we have good national data is re-abuse rates for children
who have been abused or neglected. We have good national data,
so we can say to a State, based on State performance, this
counts as substantial conformity or it doesn't.
And supposing we had a State that succeeded based on the
statewide indicator, but we went into the cases in the on-site
review and found fewer cases than the required percent that
were successful. We are trying to put those different pieces of
information together and so we have a discrepancy resolution
step. What we have said is if the statewide information and
what we get in an individual case review aren't the same, if we
find that it is successful statewide but there is a problem in
the individual place, then we would try to resolve that with
the State and understand what was going on.
So, for example, if a State said the reason only half of
our cases were successful in this location is that what you
found is a fluke; it is a particular supervisor or it is a
specific problem, it is not consistent with the State
information, then we would go to a bigger sample or other
information.
So I think that the fundamental answer is that as we went
through the pilots, we concluded that for the intensive reviews
we couldn't say that every case has to demonstrate to us that
it operated consistent with safety. But we need a high standard
and we have a protection against it being a fluke because we
are putting it in the context of this other information.
Is that helpful?
Chairman Johnson of Connecticut. It is helpful, and I
think one of the strengths of this set of regulations is that
you are looking at multi-sources of information, and within
each source you are looking at multi-factors.
Ms. Golden. That is right.
Chairman Johnson of Connecticut. I do worry about 95
percent because it only leaves 5 percent for improvement and
when you have a system like that, you tend to get--I mean, if
it is a very good system, maybe it doesn't work out quite to 95
percent and you are going to have a corrective action plan or
you are going to have an improvement plan.
What we hope will come out of these is even if you are
found in substantial conformance, through this process the
State will have a pretty clear indication of some of the areas
in which it needs to improve. So I see this as a sort of
continuous improvement model, and that is why I like the multi-
sources and all the things we are considering, and the more
flexible penalty process and the technical assistance and all
those things, because in this area there is no State agency--I
don't care how perfect they are, how well-funded they are, how
hard they train their employees. These are difficult kids,
these are difficult situations, and in most instances things
aren't going to work out perfectly.
So it is a strength to look at so many sources of
information and so many aspects within each data set or each
oversight action. And I appreciate that you need some
definition of substantial conformity, but I am troubled by the
95 percent. I think particularly when you look at the number of
States that have been under court order and the minimal impact
that court orders have had on children and the maximum impact
they have had on bureaucracy, we really have a system that has
been under extraordinary pressure from every source and a lot
of outsiders telling it exactly what to do.
I think this is exactly the right approach not only for us
to know what is happening, but also for us to be a good partner
in developing better systems and better oversights and better
outcomes for kids.
Ms. Golden. The one other thing I would say about that
specific percent is that that is about the judgment of
reviewers as they look at cases about whether everything
possible was done to achieve that outcome. Obviously, we
received comments on both sides about whether people were
worried reviewers would be too generous or would be too strict.
And we have tried to work on that by building in some
provisions for them to de-brief.
But I think one thing that might reassure you somewhat is
that we do have that process. We thought about what to do if
the findings in the case review are not consistent with what we
find in the statewide information, either direction--if we find
that there is a problem in the intensive review that doesn't
show up in the statewide information, or the other way around,
we thought about whether we could just pick one of them. And we
realized we couldn't, in good conscience, do that. So we have
built in a way to bring the information together.
So if your concern were to happen and the reviewers to
judge in a very strict way and that standard were to be too
tough and the State did well on the statewide assessment, there
would be the opportunity to bring those pieces of information
together and discuss them. So I am hoping that will be helpful.
Chairman Johnson of Connecticut. Well, I will be
interested in comments on this in the rest of the hearing.
We also in recent legislation have required States to set
up citizen review boards, and by June every State should have
set up at least two citizen review boards. What role will they
play in this whole process of oversight?
Ms. Golden. Well, we got a very useful letter of comments
from the National Association of Foster Care Review Boards, and
there are a number of elements of the rule that I think will be
helpful. We do require in the stakeholder interviews that
administrative review boards are a required entity to be
interviewed.
We also have a number of other opportunities for input into
the process, and we also responded. Their comments, as well as
other people's comments, asked us to make sure there was more
objectivity in the process and that, consistent with
partnership, we also made sure that the process wasn't driven
by people with a stake in it.
So we have in the final rule increased out reliance on the
national information, as well as what is available in the
State. We have built in opportunities for stakeholder
interviews, not only broad community stakeholders, but also
foster families, for example, who would provide services in
individual cases. So we have built in a number of opportunities
for outside interaction, including particularly interviews with
the review boards.
Chairman Johnson of Connecticut. And do you think you have
the resources to carry out these reviews?
Ms. Golden. We are ready to go. We are right now out there
talking with the States and making the choices which we expect
to make this spring about the first cohort. And we are going to
be moving to do the statewide assessment work with them, and we
are then moving to the intensive on-site reviews.
We have a lot of information that will let us plan the on-
site reviews. We know from the pilots that we will need about
25 people in there for a week, a mix of Federal staff, State
staff, and peer reviewers. I do think that one important thing
for you to know is that we are expecting to do that, make the
plans for this year consistent with this year's budget. For
next year, our plans are consistent with the President's
request for our administrative resources in fiscal year 2001.
As an agency, ACF has been getting smaller in terms of our
staffing over the last few years, and we have been seeking to
stop that decline and be able to maintain our staffing. The
President's request for fiscal year 2001 would stop our decline
in staffing and enable us to have some modest increases for
this and other priorities. So we would certainly value your
support in being able to take those modest steps which will
help us.
Chairman Johnson of Connecticut. Have you begun to train
your regional staff people?
Ms. Golden. We have begun to train our regional staff
people, and we also are, as I say, right now in the process
where the regions are talking with the States so we can pick
the 17 States we will start with. My long testimony offers the
criteria that we are using, but we are not waiting. We are
eager to move ahead because I think we share your views and
those of Mr. Cardin that this is really an important step.
Chairman Johnson of Connecticut. And just last on a
slightly different subject, this Committee is responsible for
working as part of the team to implement the Hague Treaty on
Inter-Country Adoption. In the House version, HHS would oversee
the accreditation process of adoption agencies so that they can
facilitate Hague adoptions. In the Senate version, the State
Department would oversee the accreditation process.
Does the administration have a view on which approach
should be taken to accreditation?
Ms. Golden. Yes. The administration's position, and also
the administration's proposal has been that HHS, because of our
extensive experience in adoption and child welfare, should
oversee the accreditation function specifically. We would carry
it out through one or more private entities, but we would have
to be responsible for the oversight and for the implementation.
HHS and the State Department are in agreement on that. It is
the administration position, so we would be eager to work with
you on that issue.
Chairman Johnson of Connecticut. Thank you.
Mr. Cardin.
Mr. Cardin. Thank you, Madam Chair.
Secretary Golden, first of all, congratulations, good work.
Ms. Golden. Thank you.
Mr. Cardin. This is, I think, very good news for our
children.
Ms. Golden. Thank you.
Mr. Cardin. You gave a very diplomatic answer to Mrs.
Johnson on resources. It is our responsibility to really
oversee and to at least explore what is necessary resources in
order to implement this regulation. And I applaud you because I
think this process is one that gets maximum input from all of
the constituency groups and allows for changes in a system that
will be much more sensitive to the needs of children.
Ms. Golden. Yes.
Mr. Cardin. But it is very labor-intense, and I am
concerned that with a budget that has been declining and is, as
you said, a modest increase whether you have the resources and
personnel, training dollars, and so forth, in order to
implement this plan in a timely way.
And I would ask that you make available to us what is
necessary in this regard so we can evaluate it and act as
Congress should act in order to at least make these points
known that if we are serious about a Federal role in overseeing
safety of children who are in foster care that we have a budget
that implements that.
Ms. Golden. We will certainly do that. Let me say a little
bit about what it is that gives me confidence, at the same time
obviously that it is a major task. The first is that we are
going into this with more knowledge than we normally have when
we go into something new because we have carried out the pilot
reviews. So we are able to plan around concrete numbers, around
knowing how many people we will need on-site.
It will be a partnership. There will be Federal reviewers,
State reviewers, and peer experts whom we will be bringing to
the table. And on the technical assistance side, we work
primarily through outside experts, our national resource
centers. And for that what we have to have is a core of staff,
not a lot of staff, but a core who are effective and able to
link States up with the technical assistance resources.
So I feel very confident that we are moving forward on it
and planning for it. I do really appreciate your commitment
because I do think that the President's request for 2001 and
the ability to stabilize our past decline and have that modest
increase is really important to us.
Mr. Cardin. Well, let me ask you another question. As you
phase in this regulation, how will you decide what States will
be your initial focus? Is that going to be at all influenced by
your staff support, budget, or what standards will you be using
to determine how the States line up? Are any States
volunteering to come first?
Ms. Golden. States are volunteering, as I am sure you will
hear later in the testimony, and we are having to assess how
the volunteers line up with the criteria. As my long testimony
noted, there are three criteria we are using.
First of all, States with child safety issues that we know
about ought to go early. Second, States that have identified
technical assistance needs ought to go early. And, third,
States that we have been to recently through a pilot we ought
to be able to do later, unless there is kind of an urgent need
under one of the first two criteria. So those are the criteria
we are using. We are now in conversations with the States and
we expect to make decisions this spring. We haven't made them
yet.
Mr. Cardin. Well, again, we appreciate your keeping us
informed as that process unfolds as to how those decisions are
being made.
In response to Mrs. Johnson's question, you indicated that
as you do a sample, if you find a discrepancy, you may do a
larger sample in order to confirm or to find out the
information. In the next panel, there are going to be witnesses
who question whether 30 to 50 cases is an adequate number to do
a sample. And I guess the concern is that, OK, if you do the 30
to 50 sample and you don't find anything unusual, you might
move on when there still might be a problem in that State
because the sample size was inadequate.
How comfortable are you with this 30 to 50? It seems to me
it is a relatively small number.
Ms. Golden. What we do in the reviews, and the reason that
I think we have got the right mix is we bring together
information from different sources. And one of the things that
I found very useful in reading the testimony of the next panel
is that there are both concerns expressed about a small sample
and concerns expressed about statewide data. And the reason we
put them together is that neither works right alone, but when
you put them together you get the best information that you
have.
We received comments about the sample size and we spent a
lot of time considering those. What we concluded was that what
we learned from the pilots is that the intensive on-site
reviews tell you an enormous amount not only about outcomes for
children, because there are some outcomes that we simply can't
get through the statewide data consistently in all States, but
they also tell you a great deal about why.
So, for example, in the statewide indicators let's take the
example of you found a safety problem from the statewide
indicators. Repeat abuse or abuse of children in foster care
was at a level that was a problem, judging by the national
standards. What you could then do when you went into the
intensive interviewing is find out why, get some ideas about is
this because workers aren't trained sufficiently to understand
how to interpret information or they are too swamped to respond
to it or information gets lost between the cracks.
So bringing together the statewide assessment which looks
big-picture and the intensive interviews which really fill out
the picture is going to give you the best picture of what is
really the case.
Mr. Cardin. I agree with that.
Ms. Golden. Right.
Mr. Cardin. The concern is whether 30 to 50 is enough to do
the intense interviews, whether that is enough cases. I like
the mix. I think the mix is----
Ms. Golden. What we tried in our pilots essentially was to
figure out whether you could do more and still have them be
this intensive. And we basically concluded that you couldn't,
that if you do more routinely, that is all the time, you get
back to paper reviews. The reason we are saying 25 reviewers
on-site for a week is that doing the intensive reviews and the
stakeholder interviews, people are really doing two or three
cases in that week. So I think what we have built in is that
discrepancy process where if the two pieces don't fit together,
we can seek additional information to try to sort it out.
Mr. Cardin. Thank you. Thank you, Madam Chair.
Chairman Johnson of Connecticut. I just wanted to pursue
one other question. If you could comment on the data that we
are getting from NCANDS and AFCARS, are all the States
reporting now and is the data going to be adequate to this new
outcomes approach?
Ms. Golden. Yes. I think the results of several years of
investment and work and the commitment that the Committee has
shown and that we in the States have had is paying off. And
what we have done and the regulation is use data from those
sources and national data only in those areas where it is good
enough, which is not every area, but there are a set of
indicators primarily about safety and permanency where the data
are good enough.
Those are indicators like the one I was mentioning, repeat
abuse, or abuse of children in foster care, and then in
permanency indicators about how many children move to adoption
and reunification within particular periods of time, months in
foster care. So what we have done is select the areas where the
data are good enough to use them.
Now, I think that is essentially only for two of our seven
outcomes. In the other areas, for example, are children's
health needs being met while they are in foster care, there
isn't national data available. So States will have to do the
best they can with their State data in the statewide
assessment, in the stakeholder interviews, and then we will
have to look at that in-depth in the interviews.
But I do think there have been enormous strides in the last
several years. I would actually note that the work of the
Committee and the administration in creating the adoption
incentives program which put a great deal of importance for
States on the quality of the adoption data under AFCARS--that
has been a significant part of improvement, as well as just all
of our shared commitment.
Chairman Johnson of Connecticut. It wasn't very many years
ago when we could not say how many kids were in foster care in
America. And so when I look at your permanency outcome section
and the national standards that you have established, the depth
of the data is really startling. Can AFCARS really tell us and
are we beginning to know statewide how many kids entered foster
care in the last 12 months?
The depth of data you are looking for about how long they
have been in foster care, whether it is a second time in,
whether there has been abuse, all of these different issues
which are terribly important for us to know--do we have the
capability of collecting that data through all the 50 States?
Ms. Golden. Yes. I mean, it is a wonderful accomplishment.
Chairman Johnson of Connecticut. It is really amazing.
Ms. Golden. Just two notes. One is that in the regulation
there is a chart showing the numbers that we use in order to
come up with the standards. We are averaging over several years
to make sure we get as many States as possible and have as good
a base of information as possible.
I do want to note that, again, the strategy that I talked
to you about, that we are trying to bring information together
from different sources, that is important here, too, because
all of the sources have weaknesses. Intensive review of
individual cases doesn't reach as many cases as you would want
to. Statewide numbers from these national data sources have the
big advantage of comprehensiveness, but as you note, we are in
the early stages of using them.
So that is why we built a strategy that brings all those
pieces together and has the chance to reconcile because I do
anticipate that, for example, on the percent of children
adopted in less than 24 months, a State could say to us, well,
even since those numbers we have made dramatic improvements,
you are looking at something out of date, and so the fact that
we don't meet that standard doesn't mean we are not in
substantial conformity. And then we would have other
information from the on-site reviews and the interviews that we
could put together to come to a conclusion.
Chairman Johnson of Connecticut. In other words, while we
do have these data systems in place in terms of looking at all
50 States, they are really very recently in place and it will
take us a while to actually mature that data and be able to
rely on it nationwide?
Ms. Golden. Well, they are recently in place, but the ones
we have selected are the ones where we think the data are good
enough. We do hope that it will be possible to expand, and we
have built the possibility here of expanding the use of these
indicators as other portions of the data get stronger. But I
really do think this is something where the Committee should
take enormous credit because there is no way this was possible
5 years ago.
Chairman Johnson of Connecticut. It is really true. It was
just simply incredible that a nation like ours with the
technological sophistication, where you were seeing inventory
management in grocery stores, could not tell you how many kids
were in foster care.
Ms. Golden. Absolutely.
Chairman Johnson of Connecticut. And that is why I was
really impressed with the sort of dimensions of the data that
you are now looking for in that area or feeling able to rely
on.
Ms. Golden. Absolutely.
Chairman Johnson of Connecticut. And we do look forward to
keeping in touch with you about how the AFCARS system and the
other data sets are maturing in their reliability and
comprehensiveness. So thank you very much.
Ms. Golden. Thank you.
Chairman Johnson of Connecticut. It was really a pleasure
to have your testimony. We look forward to working with you and
we hope that you will have someone who will be able to stay and
listen to the comments of others----
Ms. Golden. Yes, we will do that.
Chairman Johnson [continuing]. Because this is a final
opportunity to have a public thought process about these. But I
do want to join Ben Cardin in congratulating you, Secretary
Golden, on your outstanding leadership of this process and your
dedication to making bureaucracy effective and serving
children.
Ms. Golden. Thank you. May I introduce to you some of the
people who did the actual work?
Chairman Johnson of Connecticut. We would like to do that.
Ms. Golden. Kathy McHugh; Jerry Milner; and Joe Semidei,
who is the new Associate Commissioner for the Children's
Bureau.
Chairman Johnson of Connecticut. Well, we thank all of you
very much for the time and effort you put in. It does show in
your result, and you are fortunate to have such an articulate
spokesman and ally.
Ms. Golden. Thank you so much.
[Questions submitted by Mr. Coyne, and Ms. Golden's
responses, follow:]
Mr. Coyne: Often, placing a foster home in provisional
status is a good incentive for the foster parent to meet
licensing requirements. Why do the new regulations require that
states stop making payments to provisionally licensed foster
homes?
Ms. Golden: I would like to clarify that the requirement
that foster family homes be licensed prior to the placement of
children is not a new requirement, rather it is an existing
statutory requirement that we have now incorporated into our
regulations. The Social Security Act, at section 471 (a)(10),
requires States to establish and maintain standards for foster
family homes, and to apply the standards to any foster family
home receiving funds under titles IV-B or IV-E. At section 472
(c), the Act defines foster family homes as those foster family
homes that are licensed by the State as meeting the standards
established for such licensing. The Act does not provide for
different levels of licensure, or less than full licensure, for
foster homes, nor do we have the authority to do so through
regulation. Furthermore, we do not believe that permitting
Federal funds to support foster care services in homes that are
not fully licensed would be consistent with the spirit of the
Adoption and Safe Families Act (ASFA) which requires that the
child's health and safety be paramount considerations in all
decisions regarding placement and reunification. Although
``provisional'' licensure is, at times, a temporary precursor
to full licensure, it also can become an indefinite arrangement
in which children are placed in homes that have not been shown
to meet safety requirements, such as criminal background
clearances. Assuring that vulnerable children who have been
removed from their families due to abuse and neglect are placed
in foster family homes that have met full licensure standards,
including requirements related to child safety, is fundamental
to assuring that child safety is our primary concern.
Mr. Coyne: The new regulations require court determination
of reasonable efforts by the state to prevent removal of the
child from a home. This will swell the backlogs in an already
overburdened court system. S. 708, The Strengthening Abuse and
Neglect Courts Act of 1999 has been introduced to reduce
backlogs in such courts. Can you describe how this law would
help?
Ms. Golden: As you know, the courts play a critical role in
ensuring the safety and permanency of children. The requirement
for a judicial determination of reasonable efforts to prevent
removal of a child from the home is actually not a new
requirement but a longstanding and critical protection for
children. This requirement, found at section 471 (a)(15)(B)(i)
of the Social Security Act, as well as the requirement to make
reasonable efforts to reunify children who are in foster care
with their parents, was made through the Adoption Assistance
and Child Welfare Act of 1980, and has been a part of Federal
policy and State child welfare practice for the past twenty
years. The Adoption and Safe Families Act (ASFA) amended
section 471, at section 471 (a)(15)(c), to add the new
requirement for States to make reasonable efforts to make and
finalize a child's permanency plan. The new final rule puts
into regulation both the longstanding requirements for
reasonable efforts determinations, and the new requirement
contained in the ASFA.
With respect to the legislation you mentioned, the
Strengthening Abuse and Neglect Courts Act of 1999, my
understanding is that the bill includes a number of provisions
to authorize additional grant programs in both the Department
of Justice and the Department of Health and Human Services to
assist courts in meeting their responsibilities for overseeing
cases of child abuse and neglect and foster care. For instance,
one provision would authorize the Secretary of HHS to award 15-
20 grants, totaling $10 million, to State and local child abuse
and neglect courts to:
(1) promote the permanency goals of ASFA; and (2) enable
these courts to reduce their existing backlog of pending cases,
especially with regard to termination of parental rights cases.
Chairman Johnson of Connecticut. And now the panel, if
they would all come forward, Jerry Foxhoven, President of the
National Association of Foster Care Reviewers; Ramona Foley,
the Administrator of Oregon Services to Children and Families;
Sue Hamilton, the Director of the Legal Division of the
Connecticut Department of Children and Families, who has been
so helpful to me and I appreciate it; and Mark Courtney, an
Assistant Professor at the School of Social Work at the
University of Wisconsin, in Madison, who has been a very great
help to this Committee.
Mr. Foxhoven.
STATEMENT OF JERRY R. FOXHOVEN, PRESIDENT, NATIONAL ASSOCIATION
OF FOSTER CARE REVIEWERS, ATLANTA, GEORGIA
Mr. Foxhoven. Thank you, Madam Chair. Thank you for
inviting me to testify in front of you and your Subcommittee
about this important matter. And I also want to commend HHS for
the rules that they have promulgated. You are probably going to
hear that a lot today. I know they have done a lot of work and
this is a great first step, and I think you will know from my
written testimony that we consider it to be a good first step,
but it is not the final step.
The three issues that I wanted specifically to talk to the
Subcommittee about are, one, the independence issue. We must
recognize that some of the information that HHS will get in
these kinds of reviews will not be of an independent nature.
Obviously, the National Association of Foster Care Reviewers is
a child advocacy organization, not a trade association, but one
that advocates that each child should have an independent
review in his case to make sure he doesn't fall through the
cracks.
While there is some input from foster care review boards,
and so forth, a lot of States don't have them and most States
don't have them statewide. So we want to particularly ask this
Subcommittee to consider the importance of at some point having
some form of independent review for every child.
We don't expect that each child be like each chicken in the
country and have a Federal inspector look over their shoulder.
But if we can do some kind of looking at the children from an
independent basis, it will provide some kind of safeguard to
each child to provide them the safety that the Federal law
guarantees them.
One good example that I can give you, for instance, is that
in my home State of Iowa the legislature passed a statute
requiring that each caseworker meet with each child at least
once every 6 months face to face. And as that was beginning to
happen, they tried to move it up to once every 3 months, and in
a county which is the largest county in Iowa, Polk County, the
largest district in Iowa, we don't have citizen review there or
independent review there.
We had it in a neighboring county, and so when we did a
review of a case in a neighboring county, we asked the review
members who were independently reviewing, where do you meet, is
there a big enough space for the meeting? Well, they weren't.
They were what the reviewers now call drive-bys, and that was
that they would drive by the office by an open window and the
worker would wave, see the child, and that met the need. The
paperwork would never have revealed that, and even the State
director didn't realize that that was county-wide. Independent
review is extremely important and can provide the safety net
for every one of the children.
The second concern that we had was the accountability
issue. We do have some concerns about the number of cases
reviewed, but we recognize again that the Federal Government
can't review a broad base of cases. It would just take too much
time to do a good review. The solution for that, again, is to
make sure that every child has some kind of independent review,
somebody looking at each child's case to make sure that they
are provided the permanency that they are being promised.
The last is the accountability versus improvement issue. We
do have some concerns, or at least I personally have some
concerns about the length of time that States are given for the
improvement. We know we want flexibility and we know we want
balance, but also the Federal Government has come to parents
who have had lifetimes of poor experiences, bad traits, and bad
parenting skills, and told them improve those in 12 months
because our kids just aren't willing to wait for you any
longer.
And we commend you for saying that, but we also wonder why
on the same hand we can say to States, but if you are doing the
same thing for kids and aren't doing what is necessary to move
them in the direction, we will give you 3 to 5 years to get
there. We are not saying that immediately, again, that has to
be, but we should rethink the proposition, and you should
rethink the proposition of saying to States that if you are
substantially out of compliance, you have a great deal of time
to get back in. You can work on a plan to get back in in 3 to 5
years. We don't give parents that kind of time.
And, again, whether the failure is on behalf of the State
or the failure is on behalf of the parents is pretty well
irrelevant. The kids aren't getting the safety and permanency
that they need, and we ask that they be granted that just as
soon as possible.
Those are the three issues that we have the biggest
concerns for. The rules, I think, for the most part do provide
a very good step, a very good start for them. We do believe
that every State with some form of independent review would do
much better in every individual case, and then the HHS when
they come around and do their reviews could have information
that they know is accurate because it comes from an independent
source that looks at every case of every child and compares
data and accumulates it both for the Federal and the State to
develop an improvement plan with recommendations.
If you have any questions, I would be glad to answer them.
[The prepared statement follows:]
Statement of Jerry R. Foxhoven, President, National Association of
Foster Care Reviewers, Altanta, Georgia
Madam Chair and members of the Subcommittee of Human
Resources, I am honored to have been asked to appear before you
today to testify about the New Federal System for Monitoring
and Enforcing the Implementation by States of Federal Child
Protection Laws.
My name is Jerry R. Foxhoven, and I am the President of the
National Association of Foster Care Reviewers. I am a
volunteer, citizen reviewer, who has volunteered my time for
over a decade in working with Citizen Reviewers in Iowa and on
a national basis who review individual cases of children in the
foster care system. The National Association of Foster Care
Reviewers is an advocacy organization for children in foster
care. It is an association of people and organizations who
believe that quality independent review can have a tremendous,
positive impact on the outcomes of children in foster care.
Unlike some other national associations, we are not a trade
association for review program administrators.
The final rules developed by Health and Human Services
governing States and the implementation of the recent new laws
in child welfare specifically including the Adoption and Safe
Families Act and the Inter-Ethnic Adoption Provisions are a
great first step. The rules have acknowledged the original
goals of Public Law 96-272 to be safety, permanency, and child
and family wellbeing. Furthermore, these rules acknowledge that
these are the same goals for the Adoption and Safe Families Act
of 1997. Most importantly, the rules have changed the focus of
state program reviews. Rather than simply being a check for the
accuracy and completeness of case file documentation, the focus
is now upon examining the results that child and family
services programs achieve.
The National Association of Foster Care Reviewers will be
submitting written testimony as well which will expand upon my
remarks today, and deal with specific provisions of the final
rules. As I have just stated, these rules are a tremendous
first step because of their stress of the goals to be achieved
(safety, permanency and wellbeing for children and families) as
well as a shift from measuring documentation to measuring
outcomes and results.
Those rules acknowledge that the flexibility that is
inherent in an outcomes-based approach must be properly
balanced with sufficient federal oversight and state
accountability. The National Association of Foster Care
Reviewers is an accountability organization. We believe that
all states, in order to receive the federal funding that they
do, must be willing to hold themselves accountable for
producing results. These final rules take a first step in that
direction.
We believe that there are several inadequacies under these
final rules that require second and perhaps third steps. First,
the accountability reviews included in the rules are not
independent. The conductors or convenors of the review process
have a vested interest in the outcome of the reviews. We
believe that this is contrary to the best interest of children
and to the intent of Congress. Our Association has long
advocated for the importance of independence in review of
children and care. We have advocated for the growth of
independent review, whether administrative or citizen in
nature, for all children in foster care. We have developed,
through a joint project with the Children's Bureau, and with
federal funds, a set of guidelines setting forth a best
practices guide for independent review of children in foster
care. Along with that we have developed a curriculum for
training of reviewers and even a curriculum for the training of
the trainers of reviewers. We believe that independent review
can more effectively allow the federal government to evaluate
outcomes for children.
Secondly, we believe that the rules do not provide
sufficient accountability of children and resources. Under the
rules, only a sampling of cases (50-150) every three to five
years is performed. Health and Human Services admits that this
is a costly proposition to review a substantial number of
cases. Our association believes that review of virtually every
case in foster care is not only necessary for the federal
government to review compliance, but is also important to
assure that all children are guaranteed the safety, permanency,
and wellbeing promised by the federal laws.
Finally, we believe the rules fail to balance
accountability with improvement. Of course, improvement is an
important goal. However, the rules allow improvement to
dominate over accountability. If a review shows a substantial
failure to comply with the mandates of federal law, these rules
may require a child to wait anywhere from one to five more
years to see an improvement. The law holds parents accountable
and requires them to remedy problems within twelve (12) months
or risk losing their children. It is hard to understand why
states should not be held accountable at the same level. Just
as children should not have to wait beyond twelve months for
parents to ``get their act together'' the same children should
not have to wait any longer for states to ``get their act
together''.
A good second step to overcome these inadequacies would be
to clarify the requirements for existing foster care review
programs. Good independent foster care review programs have a
two-tiered structure. A state governing board, which is
independent and conducts oversight of the entire review
program, collects and disseminates data which was independently
gathered and makes recommendations for changes. The second tier
is the mechanism to review the individual cases of children in
foster care (whether administrative, citizen, or a
combination). The second tier allows individual review of all
children in foster care.
On behalf of all the children in out of home placement in
the United States, we commend you and the Department of Health
and Human Services for this important first step in achieving
safety, permanency and wellbeing for children. We also
encourage you to consider taking the second and subsequent
steps necessary to provide the independence necessary to assure
compliance, accountability, and success in outcomes.
Thank you again or the opportunity for the National
Association of Foster Care Reviewers to provide input to you on
the Rules for Monitoring and Enforcing the Implementation by
States of the Federal Child Protection Laws.
Chairman Johnson of Connecticut. Thank you very much.
Ms. Foley.
STATEMENT OF RAMONA L. FOLEY, ADMINISTRATOR, DEPARTMENT OF
HUMAN SERVICES, STATE OFFICE FOR SERVICES TO CHILDREN AND
FAMILIES, SALEM, OREGON
Ms. Foley. Thank you. I appreciate the opportunity of being
invited here today to talk about the process. I am currently
Administrator for Child Welfare Services for the State of
Oregon. I have been there since August. Prior to that, I worked
in South Carolina, where I was Child Welfare Director for the
past 5 years, and South Carolina was one of the pilot States.
My confidence in this new system of review led us to
volunteer to be a State to go through this process this year,
starting in Oregon hopefully next month. I am glad to hear what
Assistant Secretary Golden said today about looking also at
States who weren't high performers in this first round. That
was going to be one of my recommendations, and the good thing
about volunteering is my peers will not know if we are going
first because we volunteered or because we have poor outcomes.
The strengths of the new system that I would highlight--the
focus on outcomes, I think, is excellent. Having been a
survivor of the old 427 reviews, we all know what it was like
to count how many times something happened. I commend HHS for
adding the ASFA, the Adoption and Safe Families Act,
performance reports as the major component. To not do that I
think would have been a real shame not to take advantage of
that.
I commend HHS for the recognition that some safeguards
cannot wait for a 2-year corrective action plan. I am one of
the child welfare folks that feels strongest about that. If you
have a State that is not performing in terms of safety, if you
have a State that is not providing due process in terms of
cases going to court, that cannot wait 2 years. That has to
have a quicker corrective action plan, and I think the
revisions in the regulations allow for that.
I also like the idea of permission of the Secretary to
extend to year three, that you can't just not take seriously
what your corrective action plan or your program improvement
plan is going to be. You must get the Secretary's permission to
extend that even in the best of circumstances beyond the 2
years.
Some of the challenges I see that we are still going to be
faced with here. The priority is now being given to the
Adoption and Safe Families Act performance reports. These
reports are coming out to our Governors and to our child
welfare directors. The child welfare agencies saw the previews
of these in September, and in Oregon, for example, we went
ahead and started trying replicating this process for each of
our 39 branches. So we will already have some sense of what
kinds of corrective action or program improvements we need
branch by branch in our State.
A second challenge, I think, will be, as we have talked
about earlier, the 30 to 50 cases to be reviewed. We will be
looking now at potentially a universe of a State's cases in
foster care, child protection and adoption, and trying to
somehow relate the universe to what in Oregon would be \1/2\ of
one percent of our cases read, if we read only 50 cases.
I agree with what was found in the pilots that there has
been little discrepancy between statewide data and the findings
from the small sample. I don't have a solution to that. It is
awful to criticize something and not have the solution. I don't
know what the solution is, but I do think 50 cases being read
may not alter tremendously what you are already finding by the
time you look at the performance measures and the statewide
assessment for a State. High performers may still be high
performers; low performers probably still need a lot of help
quickly.
How substantial compliance will be determined is along that
same line. I think that is going to be a challenge. We have
heard some of that discussed here today. I think that I am
pleased to hear Olivia Golden say that there will be an effort
to look first at how States are performing before they decide
conclusively where they will go for the early review process in
this country.
The resources are an issue. I was also pleased to hear the
testimony that there is a serious look at what the resource
issue will be for the Federal officials. As a State, we will be
investing a lot of resources in this process and we would like
to make sure that our Federal partners are there with us and
are going to be accessible as we go through a process that is
fairly extensive. I think the training of our Federal officials
who come on-site will be critical, and what the resource
centers have to offer.
Again, I commend HHS for the last 5 years of effort. I
think it is never easy to put in place a system that pleases
everyone, and certainly this probably will not please everyone,
but I think it is certainly an advancement for States. And we
are anxious to work with HHS in regard to the three things that
I think have happened over the past 4 years at the same time,
that being the data we now have from AFCARS and NCANDS, how to
blend that into this process; the ASFA and its performance
reports that we are now going to be receiving on a yearly
basis.
And then, third, as part of reform some States have
developed extensive quality assurance systems, and I think we
can take advantage of that. Some of those systems currently are
mandated by State law; some require extensive interviews with
stakeholders. And I think when the statewide assessment is done
in each State, there is an opportunity there to take advantage
of that. So we look forward to going through the review process
and seeing how these things complement each other, as opposed
to contradict each other.
Thank you very much.
[The prepared statement follows:]
Statement of Ramona L. Foley, Administrator, Department of Human
Services, State Office for Services to Children and Families, Salem,
Oregon
Madam Chairman and Members of the Subcommittee on Human
Resources of the Committee on Ways and Means.
My name is Ramona Foley and I appreciate the invitation to
appear before you and to offer testimony on the new federal
child protection review system. I appear on behalf of the
Oregon Department of Human Services where I serve as the
Administrator of the State Office for Services to Children and
Families. I have been in my current position since August,
1999; however, I have more than thirty years of experience in
public social services. For the five years prior to my
appointment in Oregon, I was the Director of Family
Preservation and Child Welfare Services for the South Carolina
Department of Social Services. My knowledge of the new federal
review process dates back to 1996 when South Carolina
volunteered to serve as one of the pilot sites for the review.
Subsequently, I have had the opportunity to participate in many
discussions of the review process, such discussions having been
made possible by Health and Human Services (HHS) and by the
American Public Human Services Association (APHSA). And while I
am not representing APHSA or its affiliate, the National
Association of Public Child Welfare Administrators (NAPCWA), I
should mention that I am the President-elect of NAPCWA and,
therefore, enjoy the opportunity of an ongoing dialogue with my
colleagues around the country.
Finally, in the way of introduction, I consider myself an
advocate for children and their families and am a strong
proponent of accountability in terms of improved outcomes
within our programs and in terms of expenditures of the federal
and state dollars for which we are responsible.
In regards to the final regulations, I want to commend HHS
for continuing in its efforts to emphasize outcomes over
process, to emphasize the desire for program improvement over
immediate sanctions, and for its recognition that program
improvement does not happen overnight, but in fact, takes time
and commitment on the part of the public child and family
services system, as well as all the other key stakeholders
within a state. These are undergirding principles, which I
believe are critical in balancing the desire for improved
outcomes with the desire for improved fiscal accountability.
The requirement for a statewide assessment is a good
example of the improvements over the previous process-driven
427 reviews. While states can perform such assessments without
a mandate, it is often difficult to justify the time and effort
it takes to engage in such a comprehensive effort. When we
piloted the proposed HHS review process in South Carolina, we
found that this part of the review was the most beneficial in
terms of our staff and of our stakeholders identifying the
strengths and the challenges within the state's system. In
fact, my confidence in this comprehensive approach has led my
state to agree to be the first state in Region X to undergo the
new child and family services review. The review is scheduled
to begin next month and as a new state administrator, I
especially welcome the opportunity to assess how we are doing
as a state in providing safety and permanency for our children.
In addition to the statewide assessment, there are two
revisions, which are described in the final regulations and on
which I wanted to commend HHS. The first of these revisions is
its effort to make the new Adoption and Safe Families Act
(ASFA) state performance reports a key component of the
statewide assessment. The child welfare outcomes and measures
used in the performance reports were developed in a different
context than that of the review process, but as many commenters
pointed out, it is essential that a state focus on a set of
outcomes and that the outcomes not contradict each other. While
the outcomes associated with ASFA and those articulated in the
review process are not identical, they are compatible within
the broader goals of safety, permanency and well-being.
Another revision in the final regulations, which I believe
is an improvement to the draft regulations, relates to the
duration of program improvement plans. The new language which
requires a state's improvement in less than two years ``when
there are particularly egregious areas of nonconformity
impacting child safety'' raises the level of a state's
accountability to a higher standard and thus is consistent with
our desire to have safety for all children known to public
child welfare systems. To this end, I also support the
additional requirement that the Secretary must approve any one-
year extension that is requested beyond the two years allowed
for program improvement. I believe that by elevating such a
request to the Secretary's level, there is a strong and clear
message to state officials that successful compliance with
program improvement plans is a top priority and must be treated
as such. And, the message is further enhanced by new language
in which penalties begin if a state fails to participate in
program improvement plans or fails to show improvement in the
plan that has been implemented.
Having mentioned several of the most significant
improvements made in the final regulations, I want to now focus
on those areas which I think will continue to pose the greatest
challenges in the new review process. The first challenge is
giving priority to the new performance reports to the states'
governors and agency heads. While I welcome the compatibility
of these reports with the review outcomes, I believe states
will be responsive to this initial set of performance reports
and will move immediately to make needed program improvements.
They will not want to wait for technical assistance from HHS
pending the completion of the full child and family service
review. In fact, last September states began the review of the
preliminary data for the upcoming performance reports. In
Oregon, for example, we are replicating the statewide
performance reports in a way that will yield individual branch
reports for each of our 39 branches. We will then be able to
set priorities and implement action plans that address not only
a specific outcome, but which also address the priority that
the outcome might have for a specific local branch and its
local community. And while this process will no doubt enhance
our upcoming federal review, in some ways it will mean that our
potential need for technical assistance cannot be delayed until
the completion of our federal review in 2001.
A second challenge we continue to face in the final
regulations is the case review process required in the on-site
review. As the case readings and interviews are still limited
to 30-50 cases (or a maximum of 150), I remain concerned that
the findings represent anecdotal information in the best of
circumstances and a distorted view of a state's casework
practice in the worst of circumstances. With the advent of
improved data from the National Child Abuse and Neglect Data
System (NCANDS) and the Adoption and Foster Care Analysis and
Reporting System (AFCARS) and with the performance outcomes
generated by ASFA, the 30-50 case review would seem to be even
less informative than it was in the pilot review in 1996. In
fact, among the pilots, it was noted by HHS that there was
``little discrepancy between the statewide data and the
findings from the small sample.'' So, I am left with the
question as to the value of the small sample given the past
four years of improvements in our statewide data systems. Some
argument could be made that the quality of service delivery can
only be assessed by reviewing case files and interviewing
stakeholders. But many states have now developed their own
extensive quality assurance systems, some of which provide
annual, statistically valid case reviews for each of their
local offices or others which incorporate extensive interviews
with community stakeholders and yield recommendations for
statewide system improvements.
Related to the case records review, but a different
challenge, is that of the criteria for determining substantial
compliance. I believe it will be difficult to reconcile the
performance report indicators for substantial compliance with
the indicators for substantial compliance based on the on-site
case reviews. To some extent, this will be comparing the
universe of the child welfare services population at a 75%
benchmark with a statistically insignificant review of cases at
the 90-95% benchmark. For a state like Oregon, this is the
comparison of how well we are meeting our federal performance
outcomes for all of our child welfare cases to how well we are
meeting a similar, though not identical, set of outcomes for
\1/2\ of 1% of our child welfare cases. (The \1/2\ of 1% is the
result of comparing 10,000 open cases to 50 cases to be read in
the sample.) And this comparison is further complicated as we
move to the third tier of the child and family service review,
that of determining from individual stakeholders how well we
are complying with the processes of the seven systemic factors.
While each of these levels of review may yield valuable
information, it is also likely that for high performance
systems, these tiers of reviews will continue to indicate
substantial compliance; and that for those systems which are
struggling to meet substantial compliance in their state's
performance measures, the successive tiers of review will
likewise validate their failure to substantially comply.
Still another challenge that warrants mentioning, but for
which there is not an obvious solution, is the issue of
resources. As planned by HHS, all states should have an initial
review within the next four years. Assuming that even one third
of the states will need aggressive program improvement plans,
one must ponder where the Federal resources will come from for
the on-site reviews and for the technical assistance that
states may request to successfully complete their plans. As a
state official, I could take the position that this is not my
problem, but rather is one that belongs to the Administration
on Children and Families (ACF). However, as a state preparing
to go into the new review process, Oregon will be investing
significant time and energy in order to produce a thorough and
high quality statewide assessment. Therefore, we have a vested
interest in knowing that our federal partners will be
accessible to us throughout this review and that the federal
team members who will be a part of our joint team will be
individuals whose knowledge, experience and training related to
child and family services will be evident to our own staff as
well as to our community partners. I respect ACF's position
that the qualifications of the federal reviewers ``is an
important matter for internal ACF consideration.'' However, it
must be included as a challenge in that ACF's ability to have
its staff travel to national meetings or to participate in
regional training events has been greatly curtailed in the past
due to budget restraints. The result of this is that federal
team members who have not had the advantage of staying current
with the field will struggle if called upon to address complex
issues such as those related to child safety. (For example, one
of the issues to be addressed in the on-site reviews relates to
the nature of reports of maltreatment. Given the variation in
state laws in terms of reporting, this measurement of child
safety could pose difficulty for any reviewer who is not
familiar with the state's statutes and accompanying policies
and their application to practice.)
I should also point out that some of the challenges I have
described may in fact be clarified in the forthcoming HHS CFSR
procedures manual. The details of the exact review procedures
and efforts towards ``objective'' review are subjects of this
manual and so I, along with my colleagues in other states who
will be initiating the review process next month, look forward
to reviewing the manual and the review instruments that will be
used in the on-site review.
When HHS conveys in the rule the ``sense of urgency about
the need to implement needed improvements,'' I find this sense
of urgency to be totally consistent with the direction in which
the states themselves wish to proceed and that Congress has
given us with ASFA. And if the states' performance reports
yield outcomes which indicate that this ``sense of urgency''
appears to be greater for some states than for others, I would
encourage HHS to not only consider this, but to exercise
flexibility to adjust its own schedule of states to be reviewed
this year in order to ensure that the states with the greatest
need for help are indeed the ones to which the most attention
can be directed first. After all, if the safety and permanency
of children are values to which we all adhere, none of us would
want to deprive a sister state of having access to resources in
year one rather than having to wait for year four.
I want to acknowledge the enormous effort that HHS has
exerted to provide the states with a review system that is
years ahead of the old 427 audits. I find it helpful, too, to
keep in mind that while HHS has spent the past several years
developing a system that can both inform the states and the
public, the reality is that other positive things have evolved
as well: our NCANDS and AFCARS data are providing us with a
wealth of information, far beyond what most of us thought would
be possible in child welfare ten years ago; ASFA and its focus
on outcomes and dissemination of performance reports will
inform us and will shape our program improvement plans in an
unprecedented way; and our own state quality assurance systems
continue to bring our community partners to the table and thus
open up our child and family services systems to the public's
scrutiny and input.
To take advantage of these three current opportunities, I
hope that HHS will continue in its efforts to gain information
from the review process and to be willing to make adjustments
as we all collectively find better ways of ensuring quality in
our child and family service systems. It is certainly too soon
to judge the new review process, but I commend HHS for
partnering with the states in this critical endeavor.
Thank you.
Chairman Johnson of Connecticut. Thank you.
Ms. Hamilton.
STATEMENT OF SUSAN HAMILTON, DIRECTOR, LEGAL DIVISION,
CONNECTICUT DEPARTMENT OF CHILDREN AND FAMILIES, HARTFORD,
CONNECTICUT
Ms. Hamilton. Good morning, Madam Chairman, Representative
Cardin. My name is Susan Hamilton and I am Director of the
Legal Division at the Connecticut Department of Children and
Families. I am here today on behalf of Commissioner Kristine
Ragaglia and I would like to start by thanking you for giving
us an opportunity to come today to comment on this topic. And I
would also like to extend some sincere appreciation from the
State of Connecticut and Commissioner Ragaglia personally for
your commitment toward children's issues and dedication toward
this topic.
As you may be aware, Connecticut was one of the pilot
States that participated in the early review process back in
1996. That gave us an opportunity to join with ACF in reviewing
our child welfare system. The review process at that time
actually incorporated many of the components that are now part
of the final review that is outlined in the regulations. Again,
the focus at that time was on safety, permanency, and the child
and family well-being outcomes.
The review did, in fact, provide us with a quantitative and
a qualitative assessment of our statewide child welfare system
and was effectively able to identify not only areas in which we
were achieving the desired outcomes, but also areas in which we
needed to work on some improvements. And I think it is
important to note that as a result of that review, we did, in
fact, make some significant program and practice changes that
helped to promote those outcomes and objectives.
For example, in the area of our administrative case
reviews, we decided to incorporate many of the measures and
outcomes that were included in the on-site case review
instrument into our case review process, and that has proved to
be an effective way of measuring on a case-by-case basis
success at achieving those outcomes.
I think overall the feedback from the review that was done
during the pilot was positive. I think there is clear support
in Connecticut for focusing on results and outcomes, as opposed
to the prior process of utilizing more of a checklist and more
of a focus on compliance with mere procedural requirements.
I think we certainly appreciated the opportunity at that
time, and now certainly in connection with the new regulations,
to work in partnership with ACF and doing a team approach to
the review process, and we applauded at that time, and in the
reviews that will be forth coming, the involvement of all the
stakeholders in interviews and case reviews, and the
combination of looking at those issues as well as compliance
with the statewide data indicators.
I would like to talk briefly on some of the key components
of the review process. I did discuss at length in my written
testimony some of the comments Connecticut has with regard to
the outcomes and the criteria that will be measured. I think
that the process will, again, facilitate a more accurate
determination of substantial conformity. We certainly support
the use of the two phases in the process, the statewide
assessment as well as the on-site review.
I would also applaud HHS and the decision to incorporate
the ASFA outcome measures into the outcome measures that will
be used as part of the national standards. In Connecticut, as
you may know, we have developed a rather comprehensive
strategic planning process, and in our efforts to try to
standardize what we are looking at on a statewide basis, it is
certainly helpful to us that some of the Federal requirements
are being standardized as well.
In connection with the on-site review process, again I
think one of the strengths that we wanted to commend HHS for
including is the comprehensive component of looking at the
information from families, children, community providers,
foster parents, and key stakeholders in the process as part of
the review of substantial conformity.
I do share, and Connecticut does share, some of the
concerns that were raised earlier with respect to the
percentage of cases that need to be found in compliance in
order to achieve that level of substantial conformity, although
I can appreciate the importance of having a high standard. And
I think that it makes some sense to have that high standard,
given that there is a discrepancy resolution process in place
in the regulations and that there is an opportunity for States
to develop program improvement plans before financial penalties
are imposed.
In terms of the program improvement plans, I think I share
Ramona Foley's concerns with respect to the timeframes. I think
it is important that the regulations do clarify that when there
are egregious areas of non-conformity that specifically relate
to child safety that those must be remedied in under the 2-year
timeframe, and that we do need to keep in mind the complexity
and the seriousness of the remedies that will be required to
address each area of non-conformity in identifying the length
of time that should be permissible to effectuate the plan.
One of the concerns that I think DCF may share with some of
the other States who are operating under consent decrees is the
possibility for conflict between the consent decree mandates
and the program improvement plans.
I understand that the regulations do not require us to
include consent decree mandates into the program improvement
plans, but I think it might be helpful to allow States to
include the relevant consent decree mandates into the program
improvement plans and then allow those program improvement
plans to supersede the individual requirements of the consent
decrees. That may require additional statutory and regulatory
changes which the State of Connecticut would certainly support.
In closing, on behalf of Commissioner Ragaglia, again I
would like to express our thanks for giving us this opportunity
to come today. I hope the comments are helpful, and I do
believe overall that the regulations will provide a more
effective way of measuring States' compliance with the Federal
requirements and will ultimately result in improved services
and outcomes for children and families.
Thank you.
[The prepared statement follows:]
Statement of Susan Hamilton, Director, Legal Division, Connecticut
Department of Children and Families, Hartford, Connecticut
Good morning Representative Johnson, Representative
English, Representative Cardin and members of the Subcommittee
on Human Resources. My name is Susan Hamilton, and I am
Director of the Legal Division at the Connecticut Department of
Children and Families (DCF). I am here today on behalf of
Kristine D. Ragaglia, Esq., Commissioner of DCF, to comment on
the final regulations published in the Federal Register on
January 25, 2000 pertaining to the new integrated child
protection review system for monitoring and enforcing States'
implementation of federal child welfare laws.
As you may be aware, Connecticut participated in a pilot of
this new child welfare review process in 1996 which allowed the
Administration for Children and Families (ACF) to join with the
State in assessing the State's child welfare system. The review
included many of the components of the final child and family
services reviews outlined in the new regulations and focused on
the outcomes of safety, permanency and child and family well-
being. This review process provided both a qualitative and
quantitative assessment of our child welfare system and
identified areas where the State was achieving the desired
outcomes as well as areas in need of improvement.
Based on the results of this review, DCF was able to
develop and implement both policy and practice changes that
promoted the above goals of safety, permanency and child and
family well-being. For example, DCF examined and improved the
quality of its administrative case review (ACR) process and
incorporated some of the measurements and outcomes from the on-
site case review instrument into the ACR process. In addition,
DCF increased and improved the training provided to field
staff, supervisors and managers in areas including, but not
limited to, risk assessment, comprehensive family assessments,
child welfare supervision, and documentation. DCF also
developed and implemented a marketing campaign designed to
increase the number of available licensed foster homes.
The overall feedback received following the pilot review
was favorable, and there is clear support in Connecticut for
focusing on results and outcomes during the review process as
opposed to mere compliance with procedural requirements. In
addition, DCF appreciated the opportunity to work in
partnership with ACF during the review process and applauded
the involvement of all stakeholders, including parents,
children and community providers, in the review process.
I would now like to comment specifically on some of the key
components of the new child and family services reviews:
Timetable for Reviews
(Sec. 1355.32)
As specified in Sec. 1355.32(a), a complete initial review
must be conducted within 4 years after the regulation becomes
effective (3/27/00). This should give States adequate time to
become familiar with the new review process. In addition, the
remaining timetables identified with respect to States which
are found to be operating in substantial conformity, as well as
those States found not to be operating in substantial
conformity, seem appropriate and should ensure that there is
adequate review of each State's child welfare system.
Outcomes and Criteria/Procedures for Reviews
(Sec. 1355.33)
As noted above, DCF supports the partnership between State
and Federal reviewers who comprise the review teams as well as
the comprehensive, outcome-focused nature of the reviews as
outlined in the new regulations. More specifically, the three
outcomes for children and families that have been established
as indicators of States' conformity with federal law (i.e.
child safety, permanency for children, and child and family
well-being) are consistent with what should be measured in
evaluating the performance of a State's child welfare system.
In addition, the seven specific criteria outlined in the
regulation that will be used to measure States' performance
with regard to these outcomes focus appropriately on protecting
children from abuse and neglect, maintaining children in their
own homes whenever possible, providing children with timely
permanency, preserving the continuity of family relationships
and connections for children when appropriate, and providing
appropriate services to children and families.
Along with the outcomes for children and families that will
be used as indicators of States' conformity with federal law,
the new review system also appropriately requires an assessment
of each State's capacity to deliver services leading to
improved outcomes for children and families. The seven systemic
factors reviewed include: statewide information system on
children in foster care, case review system for all children in
foster care, standards to protect the health and safety of
children in foster care and an identifiable quality assurance
system, staff development and training program, service array
for children and families, agency responsiveness to the
community, and foster and adoptive parent licensing,
recruitment, and retention. Review of these systemic factors
along with the outcomes for children and families should
facilitate more accurate determinations of substantial
conformity.
The two-phase review process established by the regulation
seems to provide a comprehensive approach for evaluating
States' performance. The first phase of this process, the
statewide assessment, is appropriately conducted by internal
and external State team members and requires the State to
address both the systemic factors outlined above as well as its
performance in meeting the national standards in the outcome
areas of safety, permanency and child and family well-being
using data from the Adoption and Foster Care Analysis and
Reporting System (AFCARS) and the National Child Abuse and
Neglect Data System (NCANDS).
Although the national standards by which States will be
measured during the statewide assessment are not specified in
the regulations, the preamble of the regulations explains that
standards have been developed for the outcome areas of child
safety and permanency using currently available data. The
national standards related to the child safety outcome
appropriately include the: (1) percent of children with
substantiated abuse or neglect reports for whom a subsequent
abuse or neglect report is substantiated; and (2) the
percentage of foster children who are the subject of
substantiated abuse or neglect by a foster parent or facility
staff.
The national standards related to the child permanency
outcome include the: (1) percent of children who entered foster
care during a review period who re-entered within 12 months of
a prior foster care episode; (2) percent of children reunified
with their parents within 12 months after their latest removal
from home; (3) the percent of foster children adopted in less
than 24 months after their latest removal from home; and (4)
the percent of children in foster care less than 12 months who
had no more than two placement settings; and (5) the median
length of stay in foster care for children entering foster care
for the first time.
These national standards have been established at the 75th
percentile of all States' performance on the particular
outcome, as measured through AFCARS and NCANDS, and are
appropriately based on the outcome measures developed in
accordance with Section 203 of the Adoption and Safe Families
Act (ASFA). Internally, DCF has developed a comprehensive
strategic plan to promote the goals of safety and permanency
for children which incorporates the ASFA outcome measures.
Given the importance of standardizing the measurements we are
using to assess performance at a statewide level, DCF supports
the decision to make the ASFA measures consistent with the
statewide data indicators used in the child and family services
reviews.
While there may be some concerns with the present
reliability and accuracy of the AFCARS and NCANDS data, the
quality of these data sources seems to be improving as a result
of the penalties imposed for non-compliance with AFCARS
submission requirements, the opportunity for States' self-
analysis prior to submission and the financial incentives for
improving AFCARS data. In addition, as noted in the preamble to
the regulations, AFCARS is an appropriate data source to use in
Federal reviews as it is the statutorily-mandated information
collection system for Federal child welfare programs.
The statewide assessment phase of the review must also
include an assessment of the characteristics of the agency that
have the most significant impact on its capacity to deliver
services to children and families and an assessment of the
strengths and areas in need of improvement related to the
State's child and family services programs. Based on the
quantitative and qualitative outcome of the statewide
assessment, the State and the ACF regional office will jointly
decide the location of the on-site reviews and the types of
cases that will be reviewed. Again, this provides an effective,
collaborative process for identifying the structure for the
second phase of the review process.
The second phase of the review process, which consists of
an on-site review with a joint Federal/State team, properly
relies on information from the statewide assessment to
determine areas in need of improvement or further review. As
the regulations set forth, the State's largest metropolitan
area must be included in the locations selected for the on-site
review. While urban areas may include a higher percentage of
families and children who are involved with the child welfare
system, it is important to include these areas in order for the
review to accurately represent statewide issues.
The sources of information collected during the on-site
review, which include case records, interviews with children
and families, interviews with caseworkers, foster parents,
service providers, and key stakeholders both internal and
external to the agency, will likely provide a more
comprehensive and accurate assessment of whether or not the
state is in substantial conformity with federal law using both
qualitative and quantitative performance indicators. The new
review system also seems to have adequately identified an
effective way of resolving discrepancies between the statewide
assessment and the findings of the on-site review by allowing
the State to submit additional data or jointly review
additional cases with ACF. As noted in the preamble of the
regulations, this approach permits on-site exploration of why
performance related to the statewide data indicators might not
be an accurate indicator of statewide performance.
Substantial Conformity
(Sec. 1355.34)
As outlined in the regulations, a State will be considered
in substantial conformity with regard to the three child and
family outcomes (and the seven associated criteria) discussed
earlier if the State's performance has met the national
standard(s) associated with the outcome, if applicable, and if
each outcome is ``substantially achieved'' in 95% of the cases
examined during the on-site review (90% of the cases in an
initial review). The determination of whether an outcome has
been ``substantially achieved'' is appropriately based on
information from various sources including case records and
interviews. In addition to the above measures, a State's level
of achievement related to the child and family outcomes is
properly measured by the extent to which it has implemented
certain identified statutory and regulatory requirements which
relate, in part, to service provision, family preservation,
permanency planning, recruitment of foster and adoptive
parents, effective use of cross-jurisdictional placement
resources, and reasonable efforts.
While the percentage of cases identified above seems high,
this standard is undoubtedly necessary in order promote the
objectives of the child and family services reviews. In
addition, a high threshold makes sense in this new review
system which allows the States to implement a corrective action
plan before financial penalties are imposed if they are found
not to be in substantial conformity.
In addition to the criteria related to outcomes, States
must meet certain criteria related to service delivery in order
to be considered in substantial conformity with federal child
welfare laws. In connection with the capacity to deliver
services leading to improved outcomes (i.e. the seven systemic
factors discussed above), a State will be considered in
substantial conformity if all State plan requirements
associated with that systemic factor are in place and no more
than one of the State plan requirements fails to functions.
This determination appropriately includes a process by which
the Federal/State team rates the State's conformity with State
plan requirements based on information from the statewide
assessment as well as the on-site review and stakeholder
interviews. Information from both phases of the review process
must support the determination of substantial conformity.
It appears that the process for determining substantial
conformity for the systemic factors does include specific
criteria that must be rated numerically to ensure objectivity
and consistency among reviewers and across States in assessing
outcome achievement. However, as recognized in the preamble, it
is equally important to allow for professional judgment in
determining performance with respect to the service delivery
criteria.
Program Improvement Plans
(Sec. 1355.35)
As mentioned earlier, the new child and family services
review process requires States to remedy areas of nonconformity
by developing a program improvement plan (PIP). This allows
States an opportunity to improve programs and services before
financial penalties can be imposed. The PIP, which is developed
jointly by State and Federal staff in consultation with the
review team, must appropriately include goals, action steps,
completion dates, benchmarks for measuring improvement, and any
need for technical assistance to implement the PIP. A State
must submit its PIP within 90 days from receipt of the letter
from ACF informing the State that it is not in substantial
conformity. This seems to be an adequate amount of time to
submit the PIP to ACF for approval. If ACF does not approve the
PIP, the State is given an additional 30 days to revise the
plan which is reasonable assuming that ACF provides the State
with clear guidelines and recommendations regarding what
aspects of the PIP are in need of revision.
States must report quarterly to the Department of Health
and Human Services (HHS) on their progress towards implementing
their PIP and have a specified time in which to complete their
PIP. The time allotted cannot exceed 2 years, except that HHS
may grant a 1-year extension in rare circumstances. It is
important that, as the regulations require, the established
duration of the plan be based upon the seriousness and
complexity of the remedies required to correct the area of
nonconformity. In addition, DCF supports the requirement that
egregious areas of nonconformity impacting child safety be
satisfactorily addressed in less than two years.
In regards to the amount of financial penalties imposed,
and the graduated penalties for continuous nonconformity, the
regulations seem to adequately promote program and practice
improvements, as well as accountability, without impeding the
States' ability to make the necessary improvements by imposing
immediate penalties. In addition, it seems effective to vary
the amount of federal funds withheld depending on the extent of
the State's nonconformity and to calculate the penalties as a
percentage of certain pools of federal funds.
One of the concerns that DCF shares with other State
agencies that are operating under consent decrees is the
possible conflict that might arise between PIPs and consent
decree mandates. While we understand that States are not
required to include the provisions of consent decrees into
PIPs, it would be helpful to permit States to include relevant
consent decree mandates into their PIPs to address areas of
nonconformity and then allow the PIP to supercede the
individual requirements of the consent decree. This could be
clarified in the child and family services reviews procedures
manual referenced in the preamble but might also require other
statutory and/or regulatory changes.
In closing, on behalf of Commissioner Ragaglia, I would
like to thank you for the opportunity to speak with you today
on this important topic, and I hope my comments have been
helpful. Overall, I believe the regulations, along with the
other documents and review instruments that will be used during
the review process, will provide a more effective system for
reviewing States' compliance with federal requirements and will
result in improved services and outcomes for children and
families.
Thank you.
Chairman Johnson of Connecticut. Thank you very much.
Mr. Courtney.
STATEMENT OF MARK E. COURTNEY, ASSISTANT PROFESSOR, SCHOOL OF
SOCIAL WORK, UNIVERSITY OF WISCONSIN-MADISON
Mr. Courtney. Good morning. Thanks for the opportunity to
comment on these regulations. I would like to make three
general observations today about the new review system.
First, whatever its limitations, I believe that the new
system is a vast improvement over what we had before. For the
first time in Federal regulation, Title IV-B and IV-E, will be
overseen in terms of outcomes as opposed to paper compliance
with administrative procedures, which is a great improvement.
The review system appropriately builds on Federal efforts
to support management information systems by using data from
those systems, and as the capability of these systems improves,
so will our knowledge of outcomes for children and families.
And the collaborative Federal-State review process and
mechanisms for allowing timely corrective action, supported by
Federal technical assistance, are also significant improvements
over the previous approach.
Second, I believe that the limitations of the new system
and potential pitfalls result not so much from the design of
the reviews, per se, or from the benchmarks, per se, but from
our poor understanding of how child welfare programs function.
Child welfare management information systems are only
beginning to shed light on the kinds of safety and permanency
outcomes that the benchmarks capture. Moreover, these measures
vary considerably both between and within States. For example,
the median time to discharge, one of the measures, for children
first entering foster care in Iowa is 3 months, in Maryland 13
months, and in Illinois 41 months.
Similarly, the rate of reentry to foster care varied among
States in the Multistate Foster Care Archive from 18 percent in
California to over 26 percent in Wisconsin. Within Wisconsin,
substantiation rates for child neglect vary from less than 10
percent in some counties to over 60 percent in others.
Unfortunately, while we know that these safety and
permanency indicators vary between and within States, we know
very little about why they vary. Without knowing why one State
differs from another on any given outcome, we run the risk of
creating unintended consequences and imposing Federal financial
sanctions on States that don't meet national standards.
For example, one of the national standards pertains to the
percentage of children entering foster care who are, in fact,
reentering care within 1 year of a previous foster care
episode. This makes some sense, since we want to keep foster
care reentry down. Nevertheless, the measure is biased in favor
of States with increasing foster care entries, since children
who reenter care after exiting in a previous year will be
counted against a growing number of entries. In contrast, the
measure is biased against States with declining entry rates, a
consequence that no one would argue is sound policy.
Median length of stay until discharge for children entering
care is also a problematic benchmark in some cases. States
where older children and youth make up the bulk of foster care
entries, for example, my home State of Wisconsin, may generally
fare better under this measure than States with younger entry
cohorts simply because older children's length of stay is cut
short when they age out of care.
The bottom line is that interstate variation in the
proposed benchmarks can be due to a variety of explanations,
only one of which is that States with better outcomes are
actually providing superior services. In short, the poor
knowledge base regarding child welfare populations and programs
calls for considerable caution in routinely applying one-size-
fits-all outcome benchmarks tied to Federal funding.
Until our knowledge base is vastly improved, Federal
reviewers will be wise to carefully explore alternative
explanations for interstate variation in outcomes before
lowering the fiscal boom. The new review system must be
implemented in the context of much greater commitment to
understanding the operation of public child welfare programs.
Third, I believe that the Department of Health and Human
Services should move as quickly as possible to identify and
pilot-test at the State level indicators of child and family
well-being. Child safety and permanence are central to child
welfare practice and policy, but the well-being of children and
families is central to many current child welfare policy
debates.
For some measures of well-being, we will need new data to
do this. But in other cases, the data already exist and are
simply not being put to proper use. For example, Medicaid
claims data can and should be used to examine whether children
being placed in foster care are given required health and
mental health assessments in a timely manner. Children who
enter the child welfare system cannot afford to wait another 10
years for the managers of the system to begin to seriously
assess child well-being.
In summary, I believe that the new child welfare review
system is a vast improvement over the old system and should be
applauded. Nevertheless, our lack of knowledge about child
welfare services and populations and the absence of systematic
measures of child well-being in the review system will limit
the meaningfulness of review findings for some time to come.
[The prepared statement follows:]
Statement of Mark E. Courtney, Assistant Professor, School of Social
Work, University of Wisconsin-Madison
Too-frequent news stories documenting the horrors
associated with failures of our nation's child protection
system attest to the need for federal oversight and support for
child welfare services. The new federal child protection review
system is long overdue. I would like to make three general
observations today about the new review mechanism.
First, whatever its limitations, I believe that the review
system is a major step in the right direction. For the first
time in federal regulation of Title IV-B and IV-E there will be
a greater focus on outcomes for children than on paper
compliance with administrative processes. The review system
appropriately builds on federal efforts to support child
welfare management information systems by relying on AFCARS and
NCANDS data to measure progress. As the capabilities of these
systems are enhanced over time so will the capacity to assess
child and family outcomes. The collaborative federal-state
review process and mechanisms for allowing timely corrective
action, supported by federal technical assistance, are
significant improvements over the previous approach.
Second, I believe that the limitations and potential
pitfalls of the new review system result not so much from the
design of the reviews or the benchmarks per se, but from our
poor understanding of how child welfare programs function.
Child welfare management information systems are only beginning
to shed light on the kinds of child safety and permanency
outcomes that the benchmarks capture. Moreover, these measures
vary considerably both between and within states. For example,
data from the Multistate Foster Care Data Archive indicate that
between 1988 and 1997 the median time to discharge for children
first entering foster care in Iowa was three months, in
Maryland 13 months, and in Illinois 41 months. Similarly, the
rate of reentry to foster care varied among the ten Archive
states from 18 percent in California to over 26 percent in
Wisconsin. Within Wisconsin, the substantiation rate for
reported child neglect varies from less than 10 percent to
nearly 60 percent between counties. Unfortunately, while we
know that these safety and permanency indicators vary between
and within states, we know very little about why they vary.
Without knowing why one state differs from another on any given
outcome, we run the risk of creating unintended consequences in
imposing financial sanctions on states who do not meet national
standards.
For example, one of the national standards pertains to the
percentage of children entering foster care who are in fact
reentering care within one year of a previous foster care
episode. This makes some intuitive sense since we want to
minimize reentry to foster care. Nevertheless, the measure is
biased in favor of states with increasing foster care entries
since children who reenter care after exiting in the previous
year will be counted against a growing number of entries. In
contrast, the measure is biased against states with declining
entry rates, a consequence that no one would argue is sound
policy. Median length of stay until discharge for children
entering foster care is also a problematic benchmark. States
where older children and youth make up the bulk of foster care
entries may generally fare better under this measure than
states with younger entry cohorts simply because older
children's length of stay is cut short when they ``age out'' of
care. The bottom line is that interstate variation in the
proposed benchmarks can be due to a variety of explanations,
only one of which is that the states with ``better'' outcomes
are actually providing superior services.
In short, the poor knowledge base regarding child welfare
populations and programs calls for considerable caution in
routinely applying one-size-fits-all outcome benchmarks tied to
federal funding. Until our knowledge base is vastly improved,
federal reviewers will be wise to carefully explore alternative
explanations for interstate variation in outcomes before
lowering the fiscal boom. The new review system must be
implemented in the context of a much greater commitment to
understanding the operation of public child welfare programs.
Third, I believe that the Department of Health and Human
Services should move as quickly as possible to identify and
pilot test at the state level indicators of child and family
well-being. Child safety and permanence are central to child
welfare practice and policy, but the well-being of children and
families is at the heart of many current child welfare policy
debates. For some measures of well-being new data will need to
be generated but in other domains data already exist that are
not being put to proper use. For example, Medicaid claims data
can and should be used to examine whether children being placed
in foster care are given required health and mental health
assessments. Children who enter the child welfare system cannot
afford to wait another ten years for the managers of the system
to begin to seriously assess child well-being.
In summary, I believe that the new child protection review
system is a vast improvement over the old system and should be
applauded. Nevertheless, our lack of knowledge about child
welfare services and populations and the absence of systematic
measures of child well-being will limit the meaningfulness of
review findings for some time to come.
Chairman Johnson of Connecticut. Thank you very much.
I would like to ask the two of you who represent States
that were pilot States to comment on Mr. Courtney's testimony
because one of the real problems that you run into particularly
from the Federal level is even when you try to establish this
kind of system that is more case-sensitive, you do get this
one-size-fits-all approach and you get certain unintended
consequences.
I think the issue you brought up--you went through them so
fast and I hadn't thought about them in advance, so it is hard
to grasp them. But the way length of stay could actually
disadvantage States that were doing an excellent job and
advantage States that maybe aren't doing an excellent job is
very concerning.
I know this is also off the top of your head, Ms. Foley and
Ms. Hamilton, but, you know, as you listen to the questions
that he raises that result from our now knowing a lot more data
than we ever knew, but not knowing a lot more ``why's'' than we
ever knew, how would you respond to that?
Ms. Foley. Well, I think for me what Mark points out--these
are accurate observations, and I think that is the reason we
can't simply use the performance report cards to say how well
States are doing. Two other examples of that is you can alter
length of stay by having a lot of children come into care and
go back out quickly. That doesn't mean that that is a good case
work practice, but it can drive down your length of time in
care. So the volume of children coming in per 1,000 children in
your population, I think, is something that has to be taken
into consideration when we do the statewide assessments.
Another example is the reentry into care. What we don't
want to have is an oral history that begins having a chilling
effect on a child who does need to reenter care. And, you know,
you can always practice one direction or the other. We often do
that with media attention to stories about kids either coming
into care or not getting returned home. But I think that has to
be part of this broader evaluation, and I still believe that
the measurements we have are going to at least move us to
having those conversations. Previously, we haven't even been
able to talk about those things because we didn't have any
measurements that would look across the States.
Ms. Hamilton. I think I would share Ms. Foley's comments in
the sense that I think by looking at just the statewide
indicators and the outcomes, although clearly we want to start
being able to look at measurements in those areas, it is very
difficult to identify across States what is the appropriate
length of stay, what is the appropriate time a child should
remain in care.
I mean, I think that we need to balance those statewide
data indicators along with the case reviews and the case-by-
case determinations as to what is in a child's best interest
and what makes sense. I am not sure what the answer is to that.
I think that the new regulations do try to balance that and I
think do identify that, and I think it is a strength that they
are focusing at least right now on the outcomes where they
think those data elements are at least accurate and can move us
along in the direction of measuring data.
Chairman Johnson of Connecticut. In looking at length of
stay, I know in the hospital area, you know, when we look at
DRGs, we take into account the illness. Now, in looking at
length of stay for foster children, is there any
differentiation between children with severe mental health
problems who clearly require a longer length of stay in a
psychiatric setting before moving into what we would normally
think of as the system--is there any differentiation in the
data sought or in the measures for children of different levels
of acuity of need?
Ms. Foley. Currently, there is not. The length of time in
care measures all children in State custody. We do have some
research, though, that is speaking to that. Lynn Usher, at
Chapel Hill, has done some research in regard to some of the
national foundations in which he is looking at cohorts of
children, in other words trying to glean from the data the
importance of looking at children who may have entered care in
the last 2 years versus children who entered care, as Mark
said, 10 years ago or 12 years ago who can be considered
outliers to some extent in these systems. So I think there is
some research in that area. I don't think our research at this
point or our data is fine-tuned to the point that we can
capture that.
Chairman Johnson of Connecticut. Is there any
discrimination as you move into this new system between the
kids who have been there and didn't come in with the kind of
attention that the new kids are coming in with versus the
outcomes for the kids who are coming into essentially a
different system?
Ms. Foley. Definitely, I think we will see a huge
difference.
Chairman Johnson of Connecticut. But do you keep the data
separately or are we going to be able to see that?
Ms. Foley. It can be pulled out separately. You can
actually look now at AFCARS and look at entry dates and you can
have sub-populations with AFCARS. You can look at who entered
within the last year, who entered since the Adoption and Safe
Families Act went into place. You can look at adoption as the
plan versus other compelling reasons. Eventually, you will be
able to look at any reason a child exits and then how long the
child was in care based on when they came in and when they
exited.
Chairman Johnson of Connecticut. Does AFCARS note whether
the child has severe mental health problems?
Ms. Foley. Yes, it does. I believe it does. Yes, it does.
Chairman Johnson of Connecticut. Mr. Courtney is
questioning exactly how well AFCAR does this. I have been
trying to interpret the nodding of your head, which is neither
up and down nor sideways.
Mr. Courtney. It has a field for health problems, but this
is one of the reasons I said I think we need some measures of
well-being because a social worker checking a box saying a
child has a health problem--for example, I know from
California's data, if you look at that field in AFCARS, you
will find that only 5 percent to 6 percent of children have any
kind of health or mental problem. And we know that is a gross
under-estimate of the health and mental health needs of those
children. So the data are there, but whether they are
meaningful is another issue.
I do want to throw one other thing in, with all respect to
Assistant Secretary Golden. The measures of re-abuse--there are
a number of States who cannot generate reliable data on re-
abuse, including my home State of Wisconsin. So it is not the
case that we have data in all States for that particular
measure because there are a number of States that don't keep
identifiers with child abuse reports. And so there is no way to
know that a child who was previously abused has been re-abused.
And the fact that the NCANDS data has an indicator for that
again doesn't mean that that is a reliable indicator.
Chairman Johnson of Connecticut. Thank you.
Mr. Foxhoven, you have had a lot of experience in sort of
reviewing cases from a very different perspective both in terms
of the legal framework within which the departments have to
work and also other aspects of care and options. How do you
respond to the problems associated with one-size-fits-all?
Mr. Foxhoven. Well, first of all, I think the rules let a
State go to HHS and say you shouldn't apply this strictly to us
because we are outside the realm of the norm for this
particular reason, we have cut down the number of kids coming
into care. So I think the rules do anticipate that. I think
they have already intended you to be able to go in and say let
us show you that there is a reason why we don't fit into this
mold, and I think that seems very appropriate.
But I also think that we need to look at some kind of
opportunity to put a bar up for people to reach, as well, and
not just to say, well, maybe you haven't done so well in the
past, but we are not going to make you meet what everybody else
does. It always seems peculiar to me, for instance, that some
of the States that do particularly well do some other things.
And you will talk to States that don't do well and they say,
well, yes, but we can't do that because we have got all these
other problems in our program.
And I like to respond maybe that is why they don't have the
problems in their program is because they are doing that. The
people that hire Ramona Foleys have independent review in their
State. So to say we don't have a great program here so we can't
afford to start with independent review--well, maybe that is
part of it. It is that whole approach of we are going to do
whatever is necessary.
Illinois has turned around not only because they have Jess
McDonald, but because he has added independent review in there
and he is willing to take a look. And so I think that holding a
bar up and saying to States that aren't doing very well maybe
you need to do more of those things to do a better program--I
don't think there is anything wrong with that. A kid that is in
Alabama or California or Nebraska or Kentucky should all have
the same opportunities and have just as much safety,
permanency, and well-being as the ones in the other part of the
country.
Chairman Johnson of Connecticut. Thank you.
I also want to mention that, Ms. Hamilton, I think your
comment about the consent decrees is very, very important for
us to note, and for the Department to think through with us as
well. Once we have a different system in place and we have a
much better information collection capability, and so on and so
forth--I mean, Connecticut is in a very, very different
situation than we were, when was it, 10 years ago when we had
the consent decree, and in a sense constantly serving two
masters with the different things, and a core system that has
some knowledge, but after all this is not their area of
expertise. This does concern me.
And there are a lot of States with consent decrees and
there is a lot of resource waste that is going on in this
situation. And I think we need to come up with a process by
which those States get reintegrated into our system and can
work their way out from under consent decrees. I think it is
sort of too much to ask any judge to say now this department no
longer has any problems and so should be free of the consent
decree. That is just not realistic.
So I am very interested in pursuing that, and hope that we
will have a vehicle this year. I had kind of lost track of that
issue, but it is very important and these regulations give us a
chance to reconsider that.
Mr. Cardin.
Mr. Cardin. Thank you, Madam Chair.
Mr. Foxhoven, I am interested in your assessment that it
could be three to 5 years before we see improvements where a
State has been identified with the need to make mandatory
program improvements.
My understanding--and I was listening to the testimony of
all four of you--is that the regulation requires that there be
quarterly reports on progress and that it cannot be longer than
2 years, and then when child safety is involved it has got to
be much shorter than 2 years. So what is your assessment of
three to 5 years?
Mr. Foxhoven. I come up with that because, first of all, we
know that they are not going to start getting the reviews
tomorrow and so it is going to take some lag before we even get
to these States, and the law has been in effect for a while.
First of all, the law has been out there for States to follow
for a while.
Second, safety, permanency, and well-being are not rocket
scientist ideas that just have been come up with by Congress
last year and everybody said, gee, that is a good idea, we
should have safety for kids. We have known that since we have
taken kids out of home that we should provide safety for them.
And the Federal Government has been telling States to do this
for years and years and years, so now that the law has passed,
even though the regs haven't been in force, the States have
known what they have needed to do.
Mr. Cardin. As I understand it, the standards are not
different under this regulation. They have all been legally
required as far as child safety is concerned. So the seven
standards or goals that are here are not--that is not new by
law. What is new here is a process.
Mr. Foxhoven. Of evaluating whether the States have met
that standard.
Mr. Cardin. Correct. So when that is fully implemented,
when that process is fully implemented, do you still feel that
there will that long of a time before a State can change its
practices?
Mr. Foxhoven. I think there will be a number of States that
will come to HHS and say we can't do it in the 2-year time
period, and will ask for more time.
Mr. Cardin. But if it fundamental for child safety, I am
not sure that HHS is going to be very sympathetic.
Mr. Foxhoven. That might be true, and I guess the question
will be what we mean by child safety. And as to permanency,
permanency is the other issue, too. The Federal Government
doesn't say to parents, as long as the kids are safe, we don't
care how long it takes for you to get your act together. We
want permanency for kids, too, and in a 12-month time period,
if you don't have some hope of providing that permanency for
kids, we tell parents then you are going to lose them because
we are going to give somebody else the opportunity to get the
permanency for the kids.
And the same thing is true with the States. If they can't
provide some permanency for the kids, they need to have a plan
that shortens that time period. They have had quite a bit of
time to be working on them already, and my position is that
when HHS designates that you are substantially out of
compliance, they should be getting a plan that gets them back
in as quickly as possible.
Mr. Cardin. Agreed, and three to 5 years would not be
acceptable for us. As we look at the regulations and the
implementation of the regulations, we are going to be asking
for a lot quicker progress made by States in complying with all
of the major deficiencies. Two years, we think, is an outer
limit to get in compliance. And I appreciate very much your
observations and best intentions sometimes can take a lot
longer than we anticipate.
Mr. Foxhoven. And I will only tell you this. Those of us
that are active advocates for children are never totally happy.
You are never going to make us totally happy because if three
kids are neglected or die in care or don't get permanency, we
want those three kids to be saved, and so you are never going
to make us all happy.
Mr. Cardin. And we don't want to. And this regulation
speaks to that.
Mr. Foxhoven. It is a huge step forward.
Mr. Cardin. We are never going to be happy because, by
definition, 25 percent of the States are going to be out of
compliance with each of the 7 standards because if you are not
in the 75th percentile, you are out of compliance. And being
out of compliance does not mean that you are going to be
subject to a penalty; it means that you need to have a plan to
improve. And each State is different, so we are never going to
be satisfied. I think the regulation incorporates----
Mr. Foxhoven. And I am the first to commend HHS. I think
the regs are a huge step forward.
Mr. Cardin. And I must compliment our two State people here
because it appears like you are agreeing that we should never
be satisfied, even though by definition States will be out of
compliance and have to be because of the percentiles.
Ms. Foley. That is true, and the other thing I keep going
back to is the report cards, the performance measures that are
going to be coming out as a result of ASFA. I am not naive. I
think that child welfare administrators across the country will
have some explaining to do, as we say to Governors. I think
Governors are going to pay attention to what is happening, and
I think quite likely HHS may begin finding States in slightly
better shape by the time they get there for the statewide
assessment than they would have absent those performance
measurements coming out to the Governors.
Mr. Cardin. Mr. Courtney, I very much appreciate your
testimony because I think we all agree with the essence. But it
is important that we have these goals to meet, and during the
process, as I think is your own testimony, the interaction with
HHS will help define these goals in a more sophisticated way so
States aren't going to be penalized because on one factor they
are actually ahead of where other States are. But when you look
at it in conjunction with another statistic, it may not look as
positive. I think it is a very good point, and we expect that
the plans will be very sensitive to that type of an evaluation.
Mr. Courtney. Yes, I hope so. My concern is that I don't
know that the States--for example, the idea that a State would
come forward if it were out of compliance with one or more of
these measures, and the fiscal penalties are very clear in the
regulation. I would assume then that the State would appeal the
fact that they were not in compliance.
My concern is that I believe a number of States would not
really have any idea why they were out of compliance. They
might actually be running their system quite well, but for some
of the reasons I laid out and a number of other reasons I could
lay out, they are not in compliance below the 25th percentile
and they really don't have the technical expertise to even know
why they are out of compliance with that.
And I think that that goes back to my original comment that
I think that we are just now getting the data to begin to
understand how these systems function. And we see a wide
diversity, and some of that diversity is due to systems that
aren't functioning well. Some of that diversity is due to the
fact that we really don't have a national child welfare system.
We have 51 States and the District of Columbia, and then in
county-administered systems we have many counties that operate
very differently.
And when I say substantiation rates differ, I am saying
that that jurisdiction has defined how it is going to respond
to child maltreatment differently than the next jurisdiction.
This is one important explanation for that. And I am somebody
who is actually in favor of having more uniformity in how we
provide child welfare services, but I think one of the
consequences of having these kinds of outcomes is that, over
time, it really will force, I think, States and localities to
come to terms with how different they are in terms of how they
substantiate child maltreatment, how they define child
maltreatment.
I don't know that that was the goal of these regulations
originally, but I think that will be one of the consequences of
them. I am in favor of that. I just wanted to make the
Committee aware that I think that is almost an inevitable
outcome of this process.
Mr. Cardin. It seems like what the regulation has captured
is what Mrs. Johnson said at the beginning of the hearing, and
that is giving maximum flexibility to our States and our local
governments to develop plans that work in your community, but
establishing national accountability. And I don't know if we
can ask for much more than that, and then have an effective way
to enforce that so that we don't have to wait years and what
happened in New York is corrected and it doesn't take 20
children being placed before that happens.
Thank you, Mrs. Johnson.
Chairman Johnson of Connecticut. Thank you.
I do think, though, Mr. Courtney, that your comments raise
an extremely significant issue, and it may be reasonable for us
to develop a small pot of research money that we would be able
to use when we hit those first States whose numbers don't look
very good but whose systems at some level seem right. So we can
go back in and say why, you know, what is really happening
here, because we know we know very little about the ``why's''
of some of this.
And from working, frankly, in the Medicare system where now
we see us doing an individual thing here that looks good and it
is having a terrible effect on the whole system and in the end
costing us more money and not saving us money, I think this
issue of what really are we doing is always hard. And the
diversity in our system may very well be its strength. We don't
even know that and numbers may not tell us that.
So I think we need to think about it, and any thoughts any
of you would have on how we would structure that pot of money
so it will be available when we get a year or two down the road
and whenever we realize that we have to know what is behind the
numbers, because in a sense it is going to be hard to leave a
State holding the bag, in a sense, without any resources to
know how or why. So I think that really is very important and
we will take that under consideration as well.
Also, Mr. Foxhoven, you mentioned that you would like to
write more detailed comments, and we would be interested in
having those, and anyone else who wants to add additional
comments. We also would like to have you answer some questions
in writing because there is not a lot that is known about some
of the aspects of your work.
[Questions submitted by Chairman Johnson, and Mr.
Foxhoven's responses, follow:]
1. Are you familiar with Senator Grassley's proposal which
would have required all states to have independent foster care
review boards to cover all children in foster care? As I
understand this proposal, states would be required to use
foster care review boards to review children in foster care
every six months? Under current law states have this option.
How many states use foster care review boards to review all
cases of children in foster care every six months? How many
states have statewide review boards? Does Iowa?
Response:
I am very familiar with Senator Grassley's proposal. The
Board of Directors of the National Association of Foster Care
Reviewers has voted to support that proposal. Your
understanding of the proposal as well as the background giving
rise to the proposal is partially correct and partially in
error. Current federal law does give the states the option to
use foster care review boards to conduct a review of children
in foster care. However, the idea of review of all children in
foster care is not an option for states who wish to receive
federal funds for foster care services -it is a requirement.
How states elect to conduct case reviews varies. Some states
use judicial review, some citizen review, some administrative
review, and some a combination. There is also some question as
to whether some states are reviewing all children every six
months under any form of review system, even though it is
required. The Grassley proposal requires states to have a two-
tiered structure: a state governing board (State Independent
Foster Care Review Board) and a mechanism to review individual
cases of children in foster care which can be administrative,
judicial, citizen or some combination of these structures. The
goal is not only to insure review of all children in foster
care every six months, but also to provide an independent
collection of data, as well as an independent analysis of that
data for use in improving state practice and policies in a
manner that will improve outcomes for children in care.
A survey conducted by the National Association of Foster
Care Reviewers in 1996 revealed the following about the states'
efforts to meet the federal requirement for 6 month periodic
reviews:
14. 3% of the states use citizen foster care
review boards.
23% of the states use judicial review .
12. 5% of the states use administrative review
structures.
50. 2% of the states use a combination of the
above.
Currently, only about 9 states use foster care review
boards to review all cases of children in foster care every six
months on a statewide basis. In most of the states where foster
care review programs are being used, the program is being
systematically expanded with a goal of eventual statewide
coverage. This is true in Iowa. Iowa's citizen foster care
review board conducts a registry statewide to provide
independent data. The reviews themselves are conducted in only
a portion of the state. A plan is in place for eventual
expansion to all areas of the state. Currently, in some areas
of Iowa, the citizen's foster care review board reviews all
children in care every six months. In the areas where the board
has just recently been expanded, the boards do not yet review
all cases, but will do so in the near future. Cases not
reviewed by the review board are reviewed by one or more of the
other forms of review. I am including a color-keyed map of Iowa
showing the presence and function of the foster care review
board in Iowa at this time.
2. Foster Care review programs are emerging in many states,
but it seems that these programs are varied in size, structure
and scope. Only 25 jurisdictions have foster care review boards
in place, with some operated by the courts, some by non-profit
agencies, and some by the state agencies. Who pays for foster
care review boards? Who pays for the training of volunteers and
staff? How is the National Association of Foster Care Reviewers
funded?
Response:
In the case of the foster care review boards that are
operated by non-profit agencies, the cost of the program is
funded, at least in part, by private resources. As such,
generating the funds necessary is a recurring problem for those
programs. The rest of the programs, like all public child
welfare services, are funded by the taxpayers in one form or
another. Periodic case review in any form is an administrative
function that is eligible for reimbursement under Title IV-E.
States that use an administrative structure, rather than foster
care review boards, to conduct reviews use Title IV-E to cover
the costs associated with the periodic reviews. Likewise, most,
if not all, of the citizen review programs use a combination of
state dollars and IV-E dollars drawn down through their state
child welfare programs. Training of reviewers, whether
administrative and/or citizen volunteers, is part of the cost
of the program. Training of reviewers, which is included in the
state's IV-B plan, is reimbursable under Title IV-E as well.
The National Association of Foster Care Reviewers is a not-
for-profit organization. We are not currently funded by any
governmental appropriation. Our funding is currently derived
from the following sources:
70% from training and consultation contracts;
25% from donations from private foundations; and
5% from membership dues.
3. Some foster care review boards have been in existence
for 20 years. Are you aware of any independent evaluation of
the effectiveness of these boards?
Response:
Because the Social Security Act has required periodic
review of all children in foster care at six-month intervals
since 1980 with the passage of P.L. 96-272, theoretically all
foster care review programs should have been in existence since
that time (or 20 years). In the past, the framework of
evaluation of all review programs has been to try to directly
link review and the reduction of length of stay and permanency.
The truth is that there are multiple variables which affect
these child-specific outcomes. Outcomes of review programs have
more to do with supporting effective decision-making of those
who have the authority and responsibility for case practice and
policy and for motivating case and system stakeholders to
perform essential activities which will lead to better outcomes
for children in care. I am aware of six research articles
examining different aspects of periodic reviews. Unfortunately,
none of these had a control group. Those research articles are
as follows:
Wert, Sue E.; Fein, Edith; Haller, Wendy;
``Children in Placement (CIP): A Model for Citizen-Judicial
Review,'' Child Welfare, Volume LXV, Number 2, March-April
1986.
Leashore, Bogart R.; ``Workers' Perceptions of
Foster Care Review in the District of Columbia,'' Child
Welfare, Volume LXV, Number 1, January-February, 1986.
Ross, R. Danforth; Reif, Janice C.; Farie, John
C.; ``Special Report: An Administrative Intercase Review System
That Works,'' Child Welfare, Volume LXVLI, Number 5, September-
October 1987.
Lindsey, Elizabeth; Wodarski, John; ``Foster
Family Care Review by Judicial-Citizen Panels: An Evaluation,''
Child Welfare, Volume LXV, Number 3, May-June 1986.
Gambrill, Eileen; Stein, Theodore J.;
Controversial Issues in Child Welfare, ``Have External Review
Systems Improved the Quality of Care for Children?,'' (Allyn
and Bacon).
The National Association of Foster Care Reviewers is
currently under contract with a review program to develop tools
to assess the process and outcome efficiency as well as the
effectiveness and customer satisfaction of their program, as
well as the role and function of the review program in
supporting and informing case and system decision-makers in
their efforts to make sound decisions. Several foster care
review programs have begun surveying the customers of their
programs (the decision-makers, caseworkers, supervisors,
judges, and policy makers) to determine if and how they use the
information and reports generated by review programs and what
additional information is needed to make better decisions. This
is being done in Arizona, Miami-Florida, and Delaware, as well
as some others.
4. You mention in your testimony that a set of foster care
review guidelines have been developed. How are these guidelines
being disseminated and used? What resources are available to
foster care reviewers for learning about best practices? Are
these guidelines voluntary? Are foster care review boards
accredited? By whom?
Response:
In 1995, the National Association of Foster Care Reviewers
signed a three-year cooperative agreement with the Children's
Bureau, requiring the Association to develop the following:
Guidelines for foster care review administration;
Training materials; and
The capacity to provide technical assistance to
the states for foster care review.
Under the cooperative agreement, the project was completed,
and the Children's Bureau ``signed off'' on the completed
project. The Guidelines are a voluntary ``best-practices
guide'' for review of children in foster care. A copy of the
guidelines, entitled ``Safe Passage to Permanency--Guidelines
for Foster Care Review,'' is enclosed for your review. There
are currently no federal resources being invested in the
dissemination of the products and tools developed through this
cooperative agreement.
The National Association of Foster Care Reviewers is
committed to the dissemination of the guidelines and their
implementation. The Association has sent copies of the
guidelines on a complimentary (free) basis to foster care
review administrators. The Association has also provided the
funding for a monthly roundtable meeting of administrators
which includes an examination of different aspects of the
guidelines. The guidelines are, therefore, being used as a
benchmarking tool for states and foster care review programs.
The administrators are able to ask themselves how they compare
to best practice.
State programs are currently contracting with the National
Association of Foster Care Reviewers for a number of services,
including the following:
An assessment of the state's existing foster care
review program to assist the state and/or community in
improving their review capacity;
Training for foster care reviewers (various levels
of curriculum have been developed);
Technical assistance in data collection, program
assessment, and outcome measures.
Foster Care Review Programs are not currently accredited by
anyone. The National Association of Foster Care Reviewers is
currently exploring the development of a voluntary,
accreditation program to be administered by the Association
that will base accreditation upon compliance with the
guidelines. It is anticipated that this program will not begin
for at least one to two years.
5. How do foster care reviewers define independence from
the state child protection system? Who appoints reviewers? Do
you recommend that boards include a certain number of foster
and adoptive parents? How many?
Response:
The National Association of Foster Care Reviewers believes
that the essential features that insure a review program's
independence are the following:
The foster care review program (regardless of
structure) does not report to the entity or individual who is
directly responsible for child welfare practice;
The individual case reports and aggregate system
reports have uninterrupted access to all system stakeholders,
including the public. There can be no filtering of information.
The foster care review program has an independent
budget that can not be controlled or influenced by an
individual or entity over whom the review program is
responsible for providing oversight or of whom the review
programs recommendations could impact.
The governing board of the foster care review
program is comprised of individuals who have no vested interest
in the outcomes of individual or aggregate review reports (such
as state employees or contractors).
It is important not to confuse the two tiers of the review
program, as explained in the answer to question 1: the state
governing board and the mechanism to conduct reviews. The
guidelines, and hence the National Association of Foster Care
Reviewers, does not recommend who should be a reviewer or who
should appoint the reviewers. The person or persons conducting
the reviews may be citizens, staff or employees of the child
welfare agency, and/or judges. Furthermore, the reviewers may
be appointed by various sources. Currently, reviewers are
appointed by various sources in various states (e.g., the
Judge, the Chief Judge, the Governor, or local officials). The
Association does not take a position on who should conduct the
reviews, who should appoint reviewers, or what the makeup of
the state governing board should be, so long as the review
program meets the independence requirements set forth above.
6. What would it cost to review every case every six
months?
Response:
We assume that the Children's Bureau or the Office of
Management and Budget can give you costs that are currently
expended for the review of children in care. Since the law
already requires that the states review all children in foster
care at least once every six months, there should be relatively
little, if any, additional cost to switch to a different review
system. Of course, a quality review, as described by the
guidelines, would be more expensive than any review that is
more of a guise than an actual review. However, the Association
assumes that the Children's Bureau, in an audit, would require
that all reviews be quality reviews and not a sham. The only
additional cost would be the cost necessary to transform a poor
review program into a quality one, which would have to take
place in any event upon a quality audit by the Children's
Bureau.
Thank you for giving the National Association of Foster
Care Reviewers this opportunity to provide this additional
information to you. We would be more than willing to provide
additional written and/or oral testimony upon request.
[Attachments are being retained in the Committee files.]
Chairman Johnson of Connecticut. I meant to mention this
when Secretary Golden was here, so if you will carry this back
to her. Many of you who have watched the work of this
Committee, including our hearing over in Baltimore last Monday,
but also our work on the fatherhood bill and a number of other
settings--there has been a lot of concern both on my part and
on Ben's part with the distribution rules. And I was pleased to
see that in the President's budget proposal, the Department is
proposing some new approaches to distribution of child support
arrearages and payments.
So we are developing legislation on that. We have a lot of
ideas between us to go forward with that. The administration's
proposals are also being thought about. So we will be moving
forward and I wanted to mention that because the timeframe of
this session is who knows what, but it might be short. And so
we are moving rapidly to get ideas in that area particularly
more solidified because we hope to be able to move forward on
some of those issues.
So thank you very much, those of you who testified. I
appreciate your input and your thoughts, and we look forward to
working with you. And thanks to the Department and those who
worked so hard on these regulations.
Thank you.
[Whereupon, at 10:46 a.m., the hearing was adjourned.]
[A submission for the record follows:]
Statement of William Grimm, National Center for Youth Law, Oakland,
California
On behalf of the National Center for Youth Law, I am
submitting this written statement for the record of the hearing
conducted on February 17th, 2000. In the announcement of the
hearing, Congresswoman Johnson asked if the Child Protection
Review System as set forth in the final regulations published
on January 25, 2000, would ``get the job done.'' Based upon our
more than fifteen years of experience litigating cases against
state child welfare agencies on behalf of abused and neglected
children, we believe that they will not get the job done. While
the system outlined in those regulations is a vast improvement
over the previous 427 reviews conducted by the agency and has
the goals of increasing the scrutiny and accountability of
child welfare systems, it is unlikely that these goals will be
achieved. The process is seriously flawed and its full
implementation is likely to be stymied by any state agency
found out of compliance with the mandates of the statute. In
the following paragraphs, we set forth some of the reasons why
we believe that the new system is flawed.
The National Center for Youth Law (NCYL) is a non-profit
advocacy organization located in the San Francisco Bay Area
which for more than twenty five years has represented the
interests of children living in poverty. For almost twelve
years I have led NCYL's advocacy on behalf of children and
youth who have been abused or neglected and those placed in
foster care. I have been lead counsel in federal civil rights
cases brought in three states on behalf of this population of
vulnerable children and have worked with attorneys involved in
similar cases in many other jurisdictions. As counsel in those
cases, I have conducted extensive discovery--both formal and
informal--related to the operation of state child welfare
agencies and studied their compliance with federal statutory
and constitutional provisions. During the last few years, NCYL
has worked closely with foster parents in several states. Under
a grant from the Packard Foundation, we are providing support
and training for foster parents to help them exercise their
rights to participate in hearings concerning the children
placed in their homes--one of the mandates of the Adoption and
Safe Families Act of 1997. Several months ago, NCYL convened a
meeting of the attorneys in the country who have sought to
enforce the provisions of Titles IV-E and B through a variety
of strategies, including class action litigation.
The regulations establishing a child and family services
review system are long overdue. Under Section 203 of the Social
Security Act Amendments of 1994, Congress directed that HHS
promulgate regulations for the review of state programs funded
through Title IV-B & IV-E. Congress imposed a deadline for the
final regulations of July 1, 1995, with an effective date not
later than April 1, 1996. Four years past the deadline, the
outline of the review system is in place. During this time,
thousands of children have spent their early childhood caught
up in child welfare systems that have not protected them nor
provided them with either stability or permanence. We mention
this history because it is indicative of the lack of priority
placed by HHS upon oversight and monitoring of child welfare
agencies. It is evidence that there has been little sense of
urgency at HHS to resume its role of protecting children
through ensuring that states adhere to the promises implicit in
their acceptance of federal funds. It suggests that any
assumptions that that same agency will now faithfully,
diligently, timely, and aggressively implement the review
system it took so long to devise are not warranted. But there
are other reasons to be cautious in the endorsement and
enthusiasm about the new review system.
Absence of Sufficient Resources to Conduct the Reviews
Child and Family Services Reviews (CFSR) consist of two
phases--a statewide self-assessment and an on-site review. The
on-site review includes a sample of 30-50 cases for which
multiply sources of information must be collected. This
cumulative information about the child, his/her family, agency,
and service providers is then used in determining substantial
conformity. For each case in the sample, the file must be
reviewed and interviews conducted with the child, family,
foster parents(s), caseworkers, and service providers.
Additional non-case specific interviews with key stakeholders
such as children's guardians ad item, court personnel, and
administrative reviewers must be completed.
Prior to the final adoption of the CFSR, HHS conducted
pilot reviews in twelve states. In the preamble to the final
rule, HHS points out that it ``learned that reviewing cases
intensely, including all the relevant interviews, requires a
large number of staff resources and is an extremely time-
consuming process.'' Our experience with similar process used
by court-appointed auditors in Arkansas, one of the state's
operating under a consent decree, confirms the amount of
resources needed to conduct such a review.
We question whether HHS has the staff and resources to
conduct the kind of full reviews it calls for in the
regulations. Even if they presently have adequate resources to
complete the sample of 30-50 cases, in light of their
statements in the preamble, it is a certainty that the agency
does not have the resources to review a larger sample. Under
the existing CFSR scheme, the state may compel HHS to review
triple the number of cases in the original sample in order to
resolve discrepancies amidst the data used to determine
substantial compliance. Assistant Secretary Golden in her
comments before the Committee on February 17th, concedes that
with current resources, increasing the sample size would
inevitably compromise the quality of the review. We also are
concerned that if HHS staff resources are not sufficient, the
agency may respond by reducing the number of federal staff on
the review teams. These concerns about the objectivity of the
teams we address further in a later section.
The Order in Which Reviews are Conducted
Within four years of the effective date of the final rule,
a full (CFSR) review of each state must be completed. Assistant
Secretary Golden told the Committee on February 17th, that the
agency ``will conduct initial child and family service reviews
in 17 States per year, beginning immediately to work with the
group of states that will be completed in FY 2001. We expect
that this group will complete the statewide assessment this
year and be ready for on-site reviews early in FY 2001.''
Nowhere in the regulations or the preamble is there any
suggestion of what criteria will be used to select the first 17
States. Assistant Secretary Golden does suggest that there are
criteria the agency is using to select the States but her
testimony refers only to States ``with identified safety
issues'' without giving a hint of how that determination will
be made.
Within the regulations setting forth the duration of
program improvement plans, there is a requirement that
``particularly egregious areas of non-conformity impacting
child safety must receive priority. . .'' We believe that a
similar principle of prioritizations should apply in
determining which States to include in the first series of
reviews. There are several possible criteria which might be
applied here. Although we point out concerns about AFCARS data
below, it and NCANDS information might be utilized to select
the States for the first reviews. States already operating
under a consent decree or judgment and subject to ongoing
audits and/or oversight might be deferred to a later group.
Since it is not possible to begin all reviews simultaneously,
it is critical that HHS establish some rationale basis for
selecting one State before another. States in which the ASFA
outcome measures suggest greater risks to children and a
failure to achieve the goals of safety, permanency, and child
well-being should be elevated to the top of the list.
Methodology Assures Challenges to Non-Compliance Findings
Although the on-site review must ``cover the State's
programs under titles IV-B and IV-E of the Act, including in-
home services and foster care,'' it calls for a sample of cases
no larger than 50 and as small as 30. HHS points out that there
were ``strong concerns'' about the sample size of 30-50 cases.
Commenters complained that it ``may not be representative of
the State's service populations,'' it ``would not lead to
credible judgements of substantial compliance'', would not be
``statistically valid'', and would generate only ``anecdotal
evidence.''
This summary echoes the comments submitted by the American
Public Human Service Association to the proposed regulations.
APSHA's letter to HHS on behalf of this public agency members
contains multiple references to the sample size. At one point
it wrote that ``the sample size of cases must be representative
of the state-otherwise the information is anecdotal at best,
and we question how a judgment of conformity can be credibly
made.'' Later it cautions that ``the statistical validity of
the sample size. . . [is] inextricably linked to a fair and
effective review system'' and questions again if ``a small
sample size [can] accurately reflect the totality of the
system? ''
These comments provide a good idea of how state
administrators will respond to a finding of non-compliance
which uses this small sample as part of the underlying basis
for the finding. To those of us who have brought lawsuits on
behalf of the children harmed by state child welfare systems,
these are familiar complaints. The refrain is the same. The
named plaintiffs are not representative of children in foster
care. The information in the complaint is only anecdotal. We
believe that the comments criticizing the small sample size are
a warning, a harbinger of the state's challenge to findings of
non-compliance. As HHS seeks to hold agency's accountable for
compliance with the law, they will encounter that same
arguments faced by the plaintiffs in the litigation brought to
enforce those laws.
For any state found out compliance, we foresee automatic
challenges to the findings and a demand for additional case
reviews. These additional case reviews will result in
significant delays in completion of the CFSR and the
development and implementation of any program improvement plan.
While the dispute or discrepancy over a finding of non-
compliance remains unresolved, there is no provision for any
program improvement plan or partial plan to be required during
this time. HHS' hands are tied during this time. The delays
implicit in this system are significant.
Limitations of the AFCARS Data
HHS will use certain statewide data indicators that are
drawn from the ASFA outcome measures in assessing States'
performance. These data indicators, though not set forth in the
regulations, are described in the preamble and mentioned in
Assistant Secretary Golden's testimony. They include such
things as repeat maltreatment of children, length of stay in
foster care, and the number of placements experienced by
children during a 12 month period while in foster care. States'
AFCARS submissions are the data source for many of these
indicators.
The regulations also provide that AFCARS data will be used
to establish the national standard against which state
compliance, in part, will be measured. The ``initial national
standards for the statewide data indicators will be based upon
the 75th percentile of all State performance for that
indicator, as reported in AFCARS or NCANDS.''
We share the concerns of others who expressed a lack of
confidence in the reliability of data drawn from AFCARS. We
cite just a few examples from our work around the country.
One of the performance indicators relates to placement
stability. It asks ``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 not more than two
placement settings?'' From our conversations with foster
parents, our review of records, and our discovery in
litigation, we believe that this data collected and submitted
by the States as part of their AFCARS submission, is
inaccurate. Oftentimes, it appears that shelter care and other
brief placements are not included in the count. Sometimes, if
the agency does not pay foster care maintenance payments for
the placement, it does not show up in the count. A study which
we recently obtained in litigation pending in the State of
Washington raises similar issues about the accuracy of
placement setting data.
Another of the performance indicators relates to repeat
abuse and/or neglect. It asks ``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? '' We are concerned that as more states adopt systems
for diverting some child abuse/neglect reports from the normal
investigative process that the states' data on substantiated
reports will not reflect the true incidence of abuse. For
example, recent statutory amendments to the child protective
services law in Nevada allow the agency, under certain
circumstances, to provide counseling, training, or other
services to the family in lieu of completing an investigation
of the complaint. In these situations, even though abuse or
neglect may have occurred, there is no official finding, no
determination of whether or not the abuse was substantiated.
Several other states have adopted similar dual response
systems. At a recent presentation during the annual conference
of the Child Welfare League of America, the speakers described
an Alternative Response System being developed in California.
In that system, some of the reports called into the hotline
that meet the statutory definition of abuse/neglect are
diverted from the investigative process to contracted
community-based services. No formal investigation is completed
and no finding--substantiated or un-substantiated--is made. As
a consequence, repeat incidents of abuse do not get into the
state's central registry and the data on reabuse of children is
incomplete. We do not mean to suggest that these alternative
responses may not be a suitable innovation. There is, however,
littler independent evaluation of these systems. In any case,
they have an impact upon the accuracy of data concerning the
incidence of abuse.
Finally, we question the utility of measuring the safety
risks to children in foster homes by simply using data on the
percentage of children in care who were the subject of
substantiated or indicated maltreatment by a foster parent or
facility staff. First of all, this measure, by its terms,
excludes incidents in which one child in the home or facility
is mistreated by another child in the facility. Unfortunately,
this is an all too real risk to children in and out of home
placement. Secondly, our discovery in at least one case has
confirmed that while the official reports of abuse or neglect
in foster homes were not substantiated, there were substantial
violations of licensing standards which placed the foster
children at risk. Finally, our interviews with children in
foster care confirm that they often do not report the abuse and
neglect that occurs in out of home placements.
Objectivity in the Review Process
The CFSR requires that the reviews be conducted by a team
with members chosen from four groups. HHS staff are one of the
groups. The three remaining groups include staff of the agency
that is being evaluated, representatives selected by the State,
and other individuals to whom the State must agree.
The objectivity of the persons entrusted with performing
the reviews is critical to the integrity of the process. My own
experience with internal quality assurance programs in several
states has reaffirmed this principle. Congress recognized the
importance of wholly external reviewers with it gave HHS the
authority to grant demonstration waivers but required that the
State obtain an evaluation by an independent contractor of the
effectiveness of the project, using an evaluation design
approved by the Secretary. The importance of having reviews
conducted by persons other than the agency or its appointees is
implicit in other parts of the statute as well. Permanency
hearings must be conducted by the court or an administrative
body appointed or approved by the court. When so much is at
stake, triggered by a finding of non-compliance--mandatory
program improvement, increased federal scrutiny, loss of
federal funds--there is a great impetus to find--there is a
great impetus to find compliance. Insulating the process from
bias is key if there is to be confidence in the results.
Futhermore, we agree with HHS' conclusion that the review
process needs to evaluate the quality of the decision-making
process and service delivery expected of caseworkers. For this
task, HHS points out that we must be willing to accept the
professional judgement of reviewers in determining substantial
conformity. This assessment of quality and its dependence upon
the subjective judgement of reviewers makes the selection of
teams members from outside the agency all the more critical.
We appreciate the opportunity to share our concerns and
suggestions with the Committee.
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