Foster Care: Challenges Faced in Implementing the Multiethnic Placement
Act (Testimony, 09/15/98, GAO/T-HEHS-98-241).

Federal law prohibits consideration of race in making decisions about
where to place children in foster care. As a result, caseworkers have
had to set aside their personal views, which in many cases hold that
eliminating race as a factor will lead to placements that are not in the
best interests of children. GAO found lingering confusion among state
and local officials and caseworkers about allowable actions under the
law. GAO notes that all levels of government face three significant
challenges in changing placement practices. First, agencies need to
continue changing long-standing social work practices, such as the
beliefs of some officials and caseworkers that the interests of children
are best served when race is considered. Second, agencies need to
translate legal principles into practical advice for caseworkers.
Although officials and caseworkers GAO spoke with understood that the
law prohibits them from delaying or denying placement on the basis of
race, they also voiced confusion about allowable actions under the law.
Third, agencies need to develop information systems to monitor
compliance with restrictions on race in placement decisions. This
testimony summarizes the September 1998 report, GAO/HEHS-98-204.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  T-HEHS-98-241
     TITLE:  Foster Care: Challenges Faced in Implementing the 
             Multiethnic Placement Act
      DATE:  09/15/98
   SUBJECT:  Foster children
             Child adoption
             State law
             Racial discrimination
             Child custody
             Federal/state relations
             Families
             Civil rights law
             Minorities
IDENTIFIER:  California
             Alameda County (CA)
             San Diego County (CA)
             
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Cover
================================================================ COVER


Before the Subcommittee on Human Resources, Committee on Ways and
Means, House of Representatives

For Release on Delivery
Expected at 11:00 a.m.
Tuesday, September 15, 1998

FOSTER CARE - CHALLENGES FACED IN
IMPLEMENTING THE MULTIETHNIC
PLACEMENT ACT

Statement of Mark V.  Nadel, Associate Director
Income Security Issues
Health, Education, and Human Services Division

GAO/T-HEHS-98-241

GAO/HEHS-98-241T


(116022)


Abbreviations
=============================================================== ABBREV

  AFCARS - Adoption and Foster Care Analysis and Reporting System
  HHS - Department of Health and Human Services

FOSTER CARE:  CHALLENGES FACED IN
IMPLEMENTING THE MULTIETHNIC
PLACEMENT ACT
============================================================ Chapter 0

Mr.  Chairman and Members of the Subcommittee: 

I am pleased to be here today to discuss implementation of the
Multiethnic Placement Act of 1994, as amended by the interethnic
adoption provisions in 1996.  As you know, this legislation sought to
decrease the length of time that children wait to be adopted by
eliminating race-related barriers to placement in permanent homes. 
At least one-third of the estimated 500,000 children currently in
foster care will never return to their birth parents, leaving those
children in need of permanent homes.  Minority children--who made up
over 60 percent of those in foster care nationwide in 1994--waited
twice as long for permanent homes as did other foster children. 
Historically, the delays in placing minority children may have been
due in part to the common practice of matching the race of a child
with that of a foster or adoptive parent--a practice that was
customary and required in many areas for the last 20 years. 

Whereas the 1994 act explicitly permitted race to be considered as
one of a number of factors when making a placement, the 1996
amendment removed that provision.  The amendment clarified that race,
color, or national origin may be considered only in rare
circumstances when making placement decisions.  Under the amended
law, agencies can no longer routinely assume that placing children
with parents of the same race is in the best interests of a child. 
The amended legislation also put child welfare agencies on notice
that they are subject to civil rights principles banning racial
discrimination when making placement decisions. 

Today, I would like to discuss (1) the actions taken by three levels
of government--the U.S.  Department of Health and Human Services
(HHS), the California Department of Social Services, and two of that
state's larger counties, Alameda and San Diego--to implement the 1994
act; (2) the actions taken by these agencies to implement the 1996
amendment to the act; and (3) the challenges all levels of government
face to change placement practices.  My testimony is based on our new
report, Foster Care:  Implementation of the Multiethnic Placement Act
Poses Difficult Challenges (GAO/HEHS-98-204, Sept.  14, 1998).  In
that work, we focused our review on foster care and adoption
placement policy and guidance; and technical assistance, including
training.  We selected California for review because it has the
largest foster care population in the nation and minority children
made up 64 percent of its foster care caseload as of September 30,
1996. 

In summary, HHS and the state of California initiated a variety of
efforts to inform agencies and caseworkers about the Multiethnic
Placement Act of 1994.  HHS issued policy guidance to the states and
began a range of technical assistance efforts, including training for
state officials and efforts to ensure that state laws were consistent
with the act.  These actions were a joint effort of HHS' Children's
Bureau and the Office for Civil Rights.  The state revised its state
law and adoption regulations and collaborated with county child
welfare officials to develop a strategy to implement the act.  The
two California counties we reviewed trained their caseworkers on the
provisions of the act.  In contrast, when implementing the 1996
amendment, HHS and the state of California were slower to take action
and provided less help.  As a consequence, HHS has done little to
address casework practice issues--a step necessary for successful
implementation--and the state has yet to make formal changes, such as
revision of state law and regulations. 

All levels of government face three significant challenges in
changing placement practices.  First, agencies need to continue
changing long-standing social work practices, such as some officials'
and caseworkers' beliefs that the interests of children are best
served when race is considered.  Second, agencies need to translate
legal principles into practical advice for caseworkers.  While
officials and caseworkers we spoke with understand that the law
prohibits them from delaying or denying placements on the basis of
race, they also voiced confusion about allowable actions under the
law.  Third, agencies need to develop information systems to monitor
compliance with the amended act's restrictions on race in placement
decisions. 


   BACKGROUND
---------------------------------------------------------- Chapter 0:1

The guiding principle in foster care and adoption placement decisions
is "the best interests of the child." When considering what is in the
child's best interests, factors of both physical and emotional
well-being are taken into consideration.  Historically, these factors
have included maintaining a child's cultural heritage.  While a
caseworker may have few or many homes to consider when making a
placement decision, historically the pool of available foster and
adoptive parents has contained fewer minority parents than there were
minority children needing homes.  Thus, while attempts to match the
race of a child with that of a foster or adoptive parent may have
delayed the placement of minority children, it was a common practice. 

As originally enacted, the Howard M.  Metzenbaum Multiethnic
Placement Act of 1994 provided that the placement of children could
not be denied or delayed solely because of the race, color, or
national origin of the child or of the prospective foster or adoptive
parents.\1 However, the act expressly permitted consideration of the
racial, ethnic, or cultural background of the child and the capacity
of prospective parents to meet the child's needs--if such a
consideration was one of a number of factors used to determine a
child's best interests.  As a result of the act, HHS and some states
needed to change their foster care and adoption policies.  Some
states also needed to change state law and the casework practices of
their workers to comply with the federal law. 

The 1996 amendment clarified that race, color, or national origin may
be considered only in rare circumstances.\2 It did so, in part, by
removing language that allowed consideration of these factors as part
of a group of factors in assessing both the best interests of the
child and the capacity of prospective foster or adoptive parents to
meet the needs of a child.  Thus, under the law, "the best interests
of a child" is now defined on a narrow, case-specific basis, whereas
child welfare agencies have historically assumed that same-race
placements are in the best interests of all children.  After passage
of the 1996 amendment, HHS and some states again needed to change
their foster care and adoption policies.  Some states also needed to
again change state law and the casework practices of their workers to
comply with the federal law. 


--------------------
\1 P.L.  103-382, secs.  551-553, 108 stat.  3518, 4056-57. 

\2 P.L.  104-188, sec.  1808, 110 stat.  1755, 1903-04. 


   HHS AND CALIFORNIA BEGAN
   IMPLEMENTATION EFFORTS PROMPTLY
   AFTER PASSAGE OF THE 1994 ACT
---------------------------------------------------------- Chapter 0:2

In implementing the 1994 act, HHS recognized that the restriction on
the use of race in placement decisions would require significant
changes of child welfare agencies in order to end discriminatory
placement practices.  In response, HHS launched a major effort to
provide policy guidance and technical assistance on the 1994 act. 
(The app.  shows a timeline of major federal and state implementation
actions.) Between enactment and the effective date of the act, HHS

  -- issued a memorandum to states that summarized the act and
     provided its text;

  -- issued policy guidance based on existing civil rights
     principles;

  -- issued a monograph on the new law that provided additional
     guidance for states; and

  -- provided technical assistance to states that included discussing
     the law with state child welfare directors; providing training
     to state officials; reviewing each state's statutes,
     regulations, and policies to ensure that the District of
     Columbia and the 28 states that were not in conformance with the
     act completed corrective actions; investigating complaints of
     discrimination that were filed with the agency; and making
     available other information and resources from its contracted
     Resource Centers, including assistance to individual states. 

HHS' actions were unique in that the agency brought together two
units within HHS that share responsibility for enforcement of the
law--the Children's Bureau and the Office for Civil Rights--to work
as a team.  As a result, these units provided joint guidance and
technical assistance to states.  Some states believed that HHS'
guidance regarding the use of race in placement decisions was more
restrictive than provided for in the act.  However, in part because
of the internal collaboration and team approach HHS had taken, the
agency was confident that its guidance accurately reflected the
statutory and constitutional civil rights principles involved. 

California also began implementation efforts promptly.  Our work at
the state level indicated that California took four actions before
the date that the state was required to conform with the act.  It

  -- issued an informational memorandum to counties notifying them of
     the change in the federal law;

  -- began a collaborative effort with an association of county child
     welfare officials to devise an implementation strategy;

  -- passed legislation that amended its state law to comply with the
     federal statute;\3

and

  -- revised state adoption regulations. 

State officials told us that it was not necessary to revise
California's existing foster care regulations because those
regulations did not include the discriminatory requirement that
same-race placements be sought for 90 days before transracial
placements could be made. 

In the two California counties we reviewed, one county revised its
foster care and adoption policies in February 1996, while the other
made no change but issued a memorandum to its staff in January 1996
to alert them to the new law.  Both counties included the 1994 act in
their training curriculums for new caseworkers. 


--------------------
\3 Because California's state law would not be in conformance with
the act until January 1, 1996, HHS extended the date by which
California was to comply with the act, postponing compliance from
October 21, 1995, to January 1, 1996. 


   HHS AND CALIFORNIA WERE SLOW TO
   RESPOND TO THE 1996 AMENDMENT
---------------------------------------------------------- Chapter 0:3

When we looked at federal actions to implement the 1996 amendment, we
found that HHS was slower to revise its policy guidance and provided
less technical assistance to states than was the case after the
passage of the 1994 act.  For example, after the passage of the 1994
act, HHS notified states of the new law within 6 weeks of its
passage.  After the 1996 amendment was passed, however, HHS took 3
months to notify states of the change in federal law, even though the
change was effective immediately.  In the 9 months after passage of
the amendment, HHS

  -- notified states of the change in the law;

  -- revised policy guidance; and

  -- provided technical assistance, including reviews of agency
     placement practices in selected locations. 

Although HHS continued to make Resource Center assistance available
to states and to investigate complaints of violations after enactment
of the amendment, it did not repeat other assistance activities
provided after the 1994 legislation.  For example, it did not repeat
the outreach and training to state officials, nor has it updated the
monograph on the act to include information on the amendment. 
Furthermore, HHS officials told us that it was not necessary to
conduct another comprehensive review of state statutes because they
said they would work with states on a case-by-case basis. 

Missing from HHS' implementation efforts for both the 1994 act and
the 1996 amendment was one step necessary for successful
implementation--guidance on casework practice issues.  Such guidance
is distinct from policy guidance in that the former addresses
questions about changes in social work practice needed to make
casework consistent with the act and its amendment, whereas the
latter provides a more general framework for understanding the law. 
It was not until May 1998, when we voiced concerns to HHS that we had
picked up from county officials and caseworkers, that HHS issued
guidance answering practical questions.  This guidance clarified, for
example, that public agencies cannot use race to differentiate
between otherwise acceptable foster care placements, even if such a
consideration does not delay or deny a child's placement. 

Our work on California's efforts to implement the 1996 amendment
indicated that the state has also been slow to undertake important
activities.  Although California began its efforts by notifying its
counties of the 1996 amendment, it has not

  -- passed legislation to make state law consistent with federal
     legislation;

  -- revised foster care and adoption regulations; or

  -- targeted its limited training to staff who are most directly
     responsible for complying with the amended act's provisions: 
     the caseworkers who place children in foster and adoptive homes. 

Although California counties can change their own policies without
state actions, only one of the two counties we visited has begun
incorporating the 1996 amendment into its policies.  In that county,
the adoption unit has begun to update its policies, but the foster
care unit has not done so.  Regarding training activities in the two
counties, one county is in the process of developing written training
material to reflect the 1996 amendment and has provided formal
training on it to some workers.  The other county charged supervisors
with training their staff one-on-one. 


   HHS AND THE STATE FACE
   CONTINUING IMPLEMENTATION
   CHALLENGES
---------------------------------------------------------- Chapter 0:4

Officials at all levels of government face three challenges as they
continue to implement the amended act.  The first challenge is for
agencies to continue to change long-standing social work practices
and the beliefs of some caseworkers.  The belief that race or
cultural heritage is central to a child's best interests when making
a placement is so inherent in social work theory and practice that a
policy statement of the National Association of Social Workers still
reflects this tenet, despite changes in the federal law.  The
personal acceptance of the value of the act and the 1996 amendment
varies among the officials and caseworkers, in our review.  Some told
us that they welcomed the removal of routine race-matching from the
child welfare definition of best interests of a child and from
placement decisions.  Those who held this belief said the act and the
1996 amendment made placement decisions easier.  Others spoke of the
need for children--particularly minority children--always to be
placed in homes that will support a child's racial identity.  For
those individuals, that meant a home with same-race parents. 
Furthermore, some who value the inclusion of race in placement
decisions told us that they do not believe that the past use of race
in the decision-making process delayed or denied placements for
children. 

The second challenge is for agencies to translate legal principles
into practical advice for caseworkers.  State program officials in
California are struggling to understand the amended act in the
context of casework practice issues.  They are waiting for the HHS
Children's Bureau or the federal National Resource Centers to assist
them in making the necessary changes in day-to-day casework
practices.  In particular, the use of different definitions by
caseworkers and attorneys of what constitutes actions in a child's
best interests makes application of the act and the amendment to
casework practice difficult.  Furthermore, while the county
caseworkers we interviewed were aware that the act and the amendment
do not allow denial or delay of placements related to race, color, or
national origin, some caseworkers were unsure how and when, if at
all, they are allowed to consider such factors in making placement
decisions.  Thus, the paucity of practical guidance contributes to
continued uncertainty about allowable actions under the amended act. 

The third challenge we identified is the need for agencies to develop
information systems to monitor compliance with the amended act's
restrictions on the use of race in placement decisions.  Developing
such systems will be particularly difficult because neither federal
administrative data in the Adoption and Foster Care Analysis and
Reporting System (AFCARS) nor case files are likely to contain needed
information related to placement decisions.  AFCARS data are not
sufficient to determine placement patterns related to race that may
have existed before the 1994 act's effective date.  Furthermore, our
examination of the data indicated that future use for monitoring
changes in placement patterns directly related to the amended act is
unlikely.  For example, the database lacks sufficient information on
the racial identity of foster and adoptive children, and their foster
parents, to conduct the type of detailed analysis of foster care and
adoption patterns that would likely be needed to identify
discriminatory racial patterns.  While case files are another source
of information about placement decisions, our review of a very
limited number of case files in one California county, and our
experience reading case files for other foster care studies,
confirmed that it is unlikely the content of placement decisions can
be reconstructed from the case files. 

Even if sufficient data on placement decision-making are obtained,
analysis of them will be hampered by inherent difficulties in
interpreting the results.  Data showing a change in the percentage of
same-race placements would not, alone, indicate whether the amended
act was effective in restricting race-based placement practices.  For
example, an increase in the percentage of same-race placements for
black foster children could indicate that the amended act is not
being followed.  Conversely, the same increase could mean that the
amended act is being followed, but more black foster and adoptive
parents are available to care for children because of successful
recruitment efforts.  If relevant information on changes in the pool
of foster and adoptive parents is not available for analysis--as is
the case with AFCARS data--then it would not be possible to rule out
the success of recruitment efforts as a contributor to an increase in
same-race placements. 


-------------------------------------------------------- Chapter 0:4.1

Mr.  Chairman, this concludes my prepared statement.  I would be
pleased to respond to any questions you or other members of the
Subcommittee may have. 


TIMELINE OF KEY FEDERAL AND STATE
IMPLEMENTATION ACTIONS
=========================================================== Appendix I



   (See figure in printed
   edition.)


*** End of document. ***