[Federal Register Volume 63, Number 181 (Friday, September 18, 1998)]
[Proposed Rules]
[Pages 50058-50098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24944]
[[Page 50057]]
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Part IV
Department of Health and Human Services
_______________________________________________________________________
Administration for Children and Families
_______________________________________________________________________
45 CFR Parts 1355 and 1356
Title IV-E Foster Care Eligibility Reviews and Child and Family
Services State Plan Reviews; Proposed Rule
Federal Register / Vol. 63, No. 181 / Friday, September 18, 1998 /
Proposed Rules
[[Page 50058]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 1355 and 1356
RIN 0970-AA97
Title IV-E Foster Care Eligibility Reviews and Child and Family
Services State Plan Reviews
AGENCY: Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), Department of Health
and Human Services (DHHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Administration for Children and Families is proposing to
amend the current regulations for Child and Family Services by adding
new requirements governing the review of a State's conformity with its
State plan under titles IV-B and IV-E of the Social Security Act (the
Act). This Notice of Proposed Rulemaking (NPRM) implements the
provisions of the Social Security Act Amendments of 1994 (Pub. L. 103-
432), the Multiethnic Placement Act (MEPA) as amended by Pub. L. 104-
188, and certain provisions of the Adoption and Safe Families Act
(ASFA) of 1997 (Pub. L. 105-89).
In addition, this NPRM proposes to set forth regulations that
clarify certain eligibility criteria that govern the title IV-E foster
care eligibility reviews which the Administration on Children, Youth
and Families conducts to ensure a State agency's compliance with
statutory requirements under the Act.
The publication of a Notice of Proposed Rulemaking often engenders
confusion in the field regarding its applicability to existing policy.
The existing regulations and policy remain in full force and effect.
Regulations published in the final rule will be effective prospectively
from the date of publication and have no bearing on the application of
policy that was in effect prior to the publication of the final rule.
DATES: In order to be considered, written comments on this proposed
rule must be received on or before December 17, 1998.
ADDRESSES: Please address comments to Carol W. Williams, Associate
Commissioner, Children's Bureau, Administration on Children, Youth and
Families, 330 C Street, SW, Washington, DC 20447. Comments will be
accepted electronically at http://www.acf.dhhs.gov/hypernews. Comments
will not be accepted by telephone or fax.
Beginning 14 days after the close of the comment period, comments
will be available for public inspection in Room 2068, 330 C Street, SW,
Washington, DC, Monday through Friday, between the hours of 9:00 a.m.
and 4:00 p.m.
In order to ensure that public comments have maximum effect in
developing the final rule, please cite the section and paragraph number
of the proposed regulation that relates to each comment. Comments that
concern information collection requirements must be sent to the Office
of Management and Budget at the address listed in the Paperwork
Reduction Act section of this preamble. A copy of these comments also
may be sent to the Department representative cited above.
FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director of Policy,
Children's Bureau, Administration on Children, Youth and Families,
(202) 401-5789.
SUPPLEMENTARY INFORMATION: The preamble to this Notice of Proposed
Rulemaking (NPRM) is organized as follows:
I. Summary of Proposed Review Processes
II. Introduction to the title IV-E eligibility and child and family
service reviews
A. Key features of the new reviews
B. Consultation with the field and pilot reviews
C. Reinventing the review process
III. Background
A. Legislative history
B. Interrelationship of titles IV-B and IV-E
IV. Overview of title IV-E eligibility reviews
A. Development of the reviews
B. Summary of the title IV-E eligibility review process
V. Overview of child and family service reviews
A. Development of the reviews
B. Summary of the child and family service reviews
VI. Interethnic Adoption Provisions of the Small Business Job
Protection Act of 1996 and the Multiethnic Placement Act of 1994
VII. Welfare reform legislation and title IV-E eligibility
VIII. The Adoption and Safe Families Act of 1997
IX. Strategy for Regulating the Adoption and Safe Families Act of
1997
X. Section-by-section discussion of the NPRM
XI. Impact analysis
I. Summary of Proposed Review Processes
This Notice of Proposed Rulemaking (NPRM) presents a revised
framework for reviews of Federally-assisted child and family services
and for reviews of related eligibility determinations for Federally-
assisted foster care programs. The revised review procedures for these
programs were developed in response to concerns expressed by the
Congress and the States regarding the effectiveness of the current
review procedures and the benefits to the States relative to the
efforts required of them. ACF had begun revising the review procedures
when Congress, through the Social Security Amendments of 1994 (Pub. L.
103-432), mandated changes in the Federal monitoring of State child and
family service programs funded under titles IV-B and IV-E. This
legislation directed the Department of Health and Human Services, in
consultation with State agencies, to promulgate regulations for child
and family service programs which will:
Determine whether these programs are in substantial
conformity with applicable State plan requirements and Federal
regulations;
Develop a timetable for conformity reviews; and
Specify the State plan requirements subject to review, and
the criteria to be used in determining a State's substantial conformity
with these requirements.
Since ACF was already revising its approach to monitoring
eligibility requirements for title IV-E foster care maintenance
payments at the time the legislation was enacted, we have also included
the proposed title IV-E eligibility review process in this NPRM. While
Pub. L. 103-432 also permits a program improvement process for
compliance issues associated with the Adoption and Foster Care Analysis
and Reporting System (AFCARS), we intend to propose an AFCARS program
improvement protocol in a separate NPRM.
The revised review processes, including the instruments used in the
reviews, grew out of extensive consultation with interested groups,
individuals and experts in the field of child welfare and related
areas. A series of focus groups related to the child and family service
reviews was conducted with representatives of State programs and
national organizations, as well as with family and child advocates.
Review teams consisting primarily of Federal and State agency staff
have conducted 20 pilot reviews of child and family services and foster
care programs using the proposed processes. We have taken seriously the
comments and suggestions received during the consultations, focus
groups and pilot reviews and have incorporated them in the development
and refining of the new monitoring approaches that are proposed in this
NPRM.
The revised review framework reflects the basic purposes of
publicly-supported child and family services: to
[[Page 50059]]
assure safety for all children; to assure permanent, nurturing homes
for these children; and to enhance the well-being of children and their
families. In support of these goals, this proposal is designed to
achieve the following objectives:
Reviews of child and family services programs will focus
on the results these programs achieve. In the past, review procedures
have focused almost entirely on review of the accuracy and completeness
of case files and other records to determine that required legal
processes and protections were being carried out. This proposal
provides for reviews that determine that child welfare practices,
procedures and requirements are achieving desired outcomes for children
and families. Reviews to assure eligibility for Federally-assisted
foster care will not only address conformity with key requirements, but
will assist States in improving their systems, thereby enhancing their
capacity to serve children needing foster care placements.
The revised framework for conducting reviews of both child
and family services and eligibility for Federal foster care payments
will promote partnerships between States and the Federal government. It
will strengthen Federal-State collaboration in achieving improvements
in child welfare systems. Joint reviews, with peer involvement, will
identify strengths and weaknesses, define corrective actions, and make
it possible to craft specific technical assistance plans that support
program improvements.
This proposed revision will promote greater public support
and collaboration for child and family services within each State. The
proposal for participation of interested and committed individuals and
organizations in the State self-assessment process, in the conduct of
on-site reviews, and in the development and evaluation of program
improvement plans will accommodate broader perspectives on the degree
to which the desired results are being achieved and encourage greater
commitment within the State to address areas where improvements are
needed.
The revised approach will shift the focus of reviews to
program improvement and away from financial penalties imposed on those
States that do not ``pass'' their reviews. States that do not achieve
expected results in areas related to child safety, permanency and well-
being may have a portion of their Federal funds withheld, but only if
the State's program improvement plan does not effectively correct the
identified problem(s).
The proposed new framework for reviews will be
comprehensive. It will address not only foster care and adoption but
the full range of child and family services, including family
preservation and support services, child protective services, and
independent living services.
The revised review procedures will generate a significant
amount of useful information on the State's child welfare system,
enabling policy makers, program managers, Federal program officials,
and concerned citizens to understand better the full range of issues
related to the State's child and family services. The dynamic process--
involving interviews with children, parents, judges, social workers,
foster parents, and other major service providers--will yield findings
of higher quality which will lead to improved outcomes in a way that
the previous reviews of case files could not.
II. Introduction to the Title IV-E Eligibility and Child and Family
Service Reviews
A. Key Features of the New Reviews
Both of the proposed review processes reflect significant
departures from the existing reviews. We have intentionally proposed
measures that will reduce the burden on States while balancing the need
to review for protections that are critical to the safety and well-
being of a vulnerable population of children and families. Wherever the
statute has permitted flexibility, we have attempted to reduce our
reliance on the paperwork and documentation requirements that
characterized prior reviews in favor of a more comprehensive
examination of the results of a State's efforts to alleviate the
problems of families and children. While the two procedures have unique
features and concerns, some key features are common to both:
The procedures have moved from a focus on total compliance
with statutory requirements to a determination of ``substantial
conformity'' or ``substantial compliance'' in an effort to avoid
penalizing States whose systems are generally performing well;
Both proposed processes now include a stage where program
improvement measures will be undertaken to correct areas of
nonconformity and noncompliance and strengthen State programs;
Both reviews provide opportunities for States to receive
technical assistance from the Federal government in implementing
program improvement plans;
The reviews operationalize partnership concepts through
joint Federal/State participation in the on-site reviews and in
developing and evaluating program improvement plans;
The reviews rely on existing sources of data, such as the
Adoption and Foster Care Analysis and Reporting System (AFCARS) and the
National Child Abuse and Neglect Data System (NCANDS), for information
needed in the reviews, rather than requiring States to duplicate
efforts in data collection and submissions;
Both reviews propose to focus attention on recent
practices in an effort to evaluate fairly the current status of child
and family services in the States;
The proposed regulations include various provisions for
flexibility and individualizing the reviews to States.
B. Consultation With the Field and Pilot Reviews
ACF has sought extensive consultation from the child welfare field
in a variety of ways. Experts in the field and representatives of
legal, advocacy, educational and research institutions provided
information to the teams on issues related to both reviews. A series of
focus groups related to the child and family service reviews was
conducted with representatives of State programs, national
organizations, family and child advocates, National Resource Centers,
child welfare experts and others. Drafts of instruments and procedures
were reviewed by similar individuals and organizations throughout the
developmental process. On-site review teams, composed primarily of
Federal and State agency staff, conducted 10 full child and family
service pilot reviews and two partial pilots in fiscal years 1995
through 1997 using the proposed process. Pilots of the title IV-E
eligibility reviews were conducted in 12 States during fiscal years
1995 through 1998.
C. Reinventing the Review Process
In 1994, the Administration for Children and Families commissioned
a team to develop recommendations for reinventing the review process
across the range of child and family services programs. Later, two
separate teams were established in the Administration on Children,
Youth and Families' Children's Bureau to identify ways that the Federal
process of reviewing State programs could be redesigned or
restructured.
In commissioning two teams to reinvent the review process, the ACF
leadership recognized that both the section 427 reviews and the title
IV-E eligibility reviews had led to a number
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of improvements in child and family services, including written case
plans as a routine component of child welfare casework, periodic
judicial and administrative reviews of children in foster care,
increased capacity among States to identify and track children in
foster care, and an increased focus on permanency planning for children
in foster care. Other contributions included the establishment of
procedural protections for vulnerable children against remaining in
unsafe homes or in non-permanent placements, increased involvement of
the courts in making judicial determinations about removals of children
from their homes and the need to continue foster care placements, and
enhanced stewardship by ensuring that Federal funds were expended in
accordance with statutory requirements.
Along with these accomplishments, the ACF also recognized the
validity of a number of criticisms about the reviews. Because the
reviews relied heavily on case documentation and process, States that
provided and documented all the required protections were able to pass
compliance reviews without necessarily having practices and procedures
in place culminating in satisfactory outcomes for the children and
families served by the State. On the other hand, States that might be
achieving desirable outcomes, but whose case record documentation did
not reflect all of the required protections, were penalized through the
loss of incentive funds.
Additionally, the reviews focused only on foster care services and
adoption assistance rather than on the full range of child and family
services; therefore, they did not promote the development and
integration of a continuum of services needed by many of the families
and children served by State agencies. The absence of regulations
governing both review processes also complicated the goal of consistent
application of policies and review procedures across the States.
In June 1994, the Office of Inspector General, Department of Health
and Human Services, reported the findings of a study of oversight of
State child welfare programs that confirmed our concerns. The report
was based on information obtained from interviews with State child
welfare officials in 13 States, and other sources. It addressed a
number of issues about previous section 427 and title IV-E eligibility
reviews, including the following: review reports had not been issued in
a timely fashion; ACF had not provided sufficient technical assistance
to States; severe problems that were identified in successful lawsuits
against States had not surfaced during a review, and reviews focused
more on case record content than how well children were served. The
report delivered a clear message from State officials that the existing
review processes were not adequately meeting their needs and should be
revised substantially.
At the same time that ACF was taking steps to reinvent its review
processes, Pub. L. 103-432, the Social Security Act Amendments of 1994,
was signed by the President on October 31, 1994. The Conference
Committee report for the Social Security Act Amendments of 1994
outlined Congressional concerns with ACF review practices. It pointed
out that the review process did little to address quality of care for
children; that compliance criteria needed to be written clearly and
uniformly; and that review standards needed to be developed in a more
open setting which encouraged discussion and participation among
affected parties. The concerns of State officials, ACF and Congress
presented a clear case for reinventing the review process and form the
basis for the strategies proposed in this NPRM.
III. Background
A. Legislative History
The review structures for section 427 and title IV-E have been in
place since the early 1980s. They were authorized by the Adoption
Assistance and Child Welfare Act (Pub. L. 96-272), passed by Congress
in 1980, which amended sections of title IV-B and provided for
mandatory Federal reviews of State foster care services under section
427 of the Act. The statute also established Part E of title IV of the
Social Security Act, ``Federal Payments for Foster Care and Adoption
Assistance.'' The foster care component of the Aid to Families with
Dependent Children (AFDC) program, which had been an integral part of
the AFDC program under title IV-A of the Act, was transferred to the
new title IV-E, effective October 1, 1982.
The creation of title IV-E and amendments to title IV-B reflected
the perception of Congress and most State child welfare administrators
that the public child welfare agencies responsible for dependent and
neglected children had become holding systems for children living away
from their parents. Congress intended that Pub. L. 96-272 would
mitigate the need for the placement of children into foster care and
encourage greater efforts by State agencies to find permanent homes for
children--either by making it possible for them to return to their own
families or by placing them in adoptive homes. The goals of Pub. L. 96-
272 have not yet been fully realized, however, as evidenced by
continued increases in the numbers of children entering foster care,
increasing lengths of stay in care, and growing concerns about the
safety, permanency and well-being of children served by public
agencies.
In August 1993, under the Omnibus Budget Reconciliation Act of 1993
(Pub. L. 103-66), Congress again amended title IV-B, creating two
subparts and extending the range of child and family services funded
under title IV-B to include specific family preservation and family
support services designed to strengthen and support families and
children in their own homes, as well as children in out-of-home care.
Later, through the Social Security Amendments of 1994, Congress
repealed section 427 of the Act and amended section 422 of the Act to
include, as State plan assurances, the protections formerly required in
section 427. As a result, ACF is no longer conducting ``427'' reviews
to confirm whether (or not) a State is eligible to receive additional
title IV-B, subpart 1 funds. In addition to mandating the Secretary,
DHHS, to promulgate regulations for reviews of State child and family
service programs, the amendments to the Act also required the
Department to make technical assistance available to the States, and
afforded States the opportunity to develop and implement corrective
action plans designed to ameliorate areas of nonconformity before
Federal funds are withheld due to the nonconformity.
In 1994, Congress passed the Multiethnic Placement Act, Pub. L.
103-382, (MEPA) to address excessive lengths of stay in foster care
experienced by children of minority heritage. One factor contributing
to these excessive lengths of stay in foster care was State agencies'
attempts to place children of minority heritage in foster and adoptive
homes of similar racial or ethnic background. The MEPA forbids the
delay or denial of a foster or adoptive placement solely on the basis
of the race, color, or national origin of the prospective foster
parent, adoptive parent, or child involved. At the same time, Congress
added a title IV-B State plan requirement, section 422(b)(9), which
compels States to make diligent efforts to recruit and retain
prospective foster and adoptive parents who reflect the racial and
ethnic diversity of the children in the State for whom foster and
adoptive homes are needed. The MEPA, in section 553, permitted States
to consider the cultural, ethnic, or racial background of the child and
the capacity of the prospective foster or
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adoptive parent to meet the needs of a child of such background as one
of a number of factors in making foster and adoptive placements. In
1996, through section 1808, ``Removal of Barriers to Interethnic
Adoptions'' (Section 1808), of the Small Business Job Protection Act
(Pub. L. 104-188), Congress repealed section 553 of MEPA, believing
that the ``permissible consideration'' language therein was being used
to obfuscate the intent of MEPA. Section 1808 amended title IV-E by
adding a State plan requirement, section 471(a)(18), which prohibits
the delay or denial of a foster or adoptive placement based on the
race, color, or national origin of the prospective foster parent,
adoptive parent, or child involved. Section 1808 also dictates a
penalty structure and corrective action planning for any State that
violates section 471(a)(18) of the Act.
On November 19,1997, President Clinton signed the first child
welfare reform legislation since Pub. L. 96-272 in 1980. The Adoption
and Safe Families Act (ASFA) seeks to provide States the necessary
tools and incentives to achieve the original goals of Pub. L. 96-272:
safety; permanency; and child and family well-being. The impetus for
the ASFA was a general dissatisfaction with the performance of the
child welfare system in achieving these goals for children and
families. This dissatisfaction came as a result of:
(1) A number of high profile child deaths across the country, the
occurrence of which was often attributable to confusion and
misinterpretation over the reasonable efforts provision. This confusion
stems from the notion that there is a lack of clarity about the
relationship between reasonable efforts and child safety;
(2) growth in the foster care caseload. We are now slightly in
excess of a half-million children in foster care on any one day. This
number has almost doubled since the mid-eighties. More children are
coming into foster care each year than are exiting;
(3) increased costs of foster care; and,
(4) a need for greater emphasis on individual responsibility by
parents and accountability by States for moving children to permanency
in a timely manner.
The ASFA seeks to strengthen the child welfare system's response to
children's need for safety and permanency at every point along its
continuum of care. In this NPRM, we propose regulations for those
provisions in the ASFA which strengthen the child welfare system's
response to safety and certain provisions which address permanency.
B. Interrelationship of Titles IV-B and IV-E
Titles IV-B and IV-E are closely related parts of the Act. Each
title provides funds to States to serve large numbers of children and
families who are among the most vulnerable to harm and separation in
our society. The two programs help finance services to the almost
3,000,000 children who are reported annually as alleged victims of
maltreatment (data from 1994 NCANDS), and the approximately 469,000
children who are in foster care placements on a given day (estimates
from 1994 Voluntary Cooperative Information System (VCIS)/AFCARS).
Title IV-B, subpart 1 makes funds available to States for services
directed toward protecting children, strengthening families, preventing
unnecessary separation of parents and children, providing care and
services to children and families when separation occurs, and working
with parents and children to reunify families or achieve an alternate
permanent plan for the child. Subpart 2 initially provided funding for
family preservation and family support services. Under the ASFA,
subpart 2 funds must now also be used to provide time-limited
reunification services and services to promote and support adoption.
Title IV-E foster care funds enable States to provide foster care
for children who were or would have been eligible for assistance (Aid
to Families With Dependent Children) under a State's approved title IV-
A plan (as in effect on July 16, 1996) but for their removal from home.
The Act includes requirements which define the circumstances under
which a State shall make foster care maintenance payments (section
472(a)), and mandates a child's placement in an approved or licensed
facility (section 472(b)). The eligibility review is focused on these
requirements, so that ACF can verify that children in foster care for
whom Federal financial participation is being claimed (or can be
claimed) are eligible and are being placed with eligible foster care
providers.
Titles IV-E and IV-B are linked not only by common goals but by
numerous cross-references to detailed protections or safeguards for
children in foster care, e.g., a case review system which includes
periodic case reviews and permanency hearings. Further, while title IV-
E requires that reasonable efforts be made to prevent removal of
children from their homes when it is safe to do so, to safely reunify
children in foster care with their families, and to make and finalize
permanent placements for children who cannot return home, the services
needed to provide reasonable efforts are not funded by title IV-E, but
are made available in many circumstances through title IV-B and other
sources of State and Federal funds. While title IV-B requires States to
deliver child welfare services in order to be eligible for Federal
funds, title IV-E tests both the eligibility of each child on whose
behalf a payment is made and the eligibility of the foster home or
child-care institution in which the child is placed.
IV. Overview of Title IV-E Eligibility Reviews
A. Development of the Reviews
The title IV-E eligibility review process proposed in this NPRM
reflects a number of important lessons learned in the pilot reviews,
including the following:
Pilot reviews conducted jointly by a team of Federal and
State staff fostered working partnerships and assisted the States in
identifying strategies for corrective action where indicated in the
reviews and increased the knowledge of State staff on eligibility
requirements for title IV-E foster care maintenance payments.
Examining a sub-sample of non-IV-E cases during the
reviews, along with the IV-E cases, increased the potential for States
to receive Federal funding to which they are entitled by statute and
demonstrated the fairness of the reviews to States.
The emphasis on program improvement planning in the
reviews led to specific recommendations for improving title IV-E error
rates and the quality of services to children in such critical areas as
foster home licensing and services to prevent removal of children from
their families and reunify children in foster care with their families.
Examination of cases involving more recent foster care
entries linked the reviews and potential disallowances to current
practices and policies that impact both eligibility for services and
the quality of services provided, rather than focusing on older
practices inherent to the previous reviews.
The revised title IV-E review strategy incorporates these important
lessons learned from the pilots, while ensuring compliance with key
requirements of the statute regarding eligibility for funds. The
requirements are designed to enhance child safety, permanency and well-
being, and they provide a specific framework for reviewing State
compliance through the title IV-E eligibility reviews.
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We believe that the proposed changes to the review process will
produce results which are more meaningful and helpful to States which
undergo a title IV-E eligibility review with the intention of improving
their State systems. Additional changes in the title IV-E eligibility
review process are included in the section-by-section discussion of the
NPRM.
B. Summary of the Title IV-E Eligibility Review Process
We are proposing to conduct title IV-E eligibility reviews in
States at three-year intervals. The review process includes an initial
review of foster care cases for the title IV-E eligibility requirements
defined in the statute. States determined to be in substantial
compliance based on the review will not be subject to another review
for three years. States that are determined not to be in compliance
will develop and implement a program improvement plan designed to
correct the areas of non-compliance, and a follow-up review will be
conducted after completion of the program improvement plan.
The reviews will be conducted by a joint team of Federal and State
staff in order to promote working partnerships through the review
process. In contrast to prior reviews, the sample for the reviews will
be drawn from the AFCARS data base, reducing the burden on the State to
select the sample.
The threshold error rate for a determination of non-compliance is
proposed at 15 percent in the first round of reviews following
publication of the final rule, and 10 percent for subsequent years.
States with error rates within the threshold will receive disallowances
only on the ineligible cases. Further, if the number of ineligible
cases in the review that follows the program improvement plan is within
the threshold, disallowances will be assessed only on those cases. If
the number exceeds the threshold in the review following the program
improvement plan, disallowances will be extrapolated to the universe.
V. Overview of Child and Family Service Reviews
A. Development of the Reviews
The child and family service reviews proposed in this NPRM are the
result of extensive piloting and consultation. Among the chief lessons
learned from the developmental process are the following:
Reviewing for outcomes, as opposed to procedural
indicators alone, is more likely to lead to improvements in State
programs;
Three outcome areas of safety, permanency, and child and
family well-being were identified and agreed upon as the areas in which
almost all outcomes associated with Federally-funded child and family
services fit;
Reviewing for documentation alone in case records is
insufficient for evaluating outcomes and the quality of services;
The pilots indicated that a smaller sample of cases
reviewed more intensely yielded more information about outcomes than
larger samples that involved only case record reviews;
The pilots indicated that State self-assessment is a
viable approach for identifying programmatic strengths and needs, for
building on the community planning process begun through implementation
of the Child and Family Services Plan (CFSP) planning requirements, and
for enhancing Federal/State partnerships (The final rule on Foster Care
Maintenance Payments, Adoption Assistance, and Child and Family
Services published November 18, 1996, contains the requirements
governing the CFSP (61 FR 58632).);
The review process is an effective means of assisting
States in examining the effects of practice innovations and technical
assistance and refining the indicators used to measure progress over
time; and,
A review team that includes State representatives from
outside the State agency helps broaden the perspective of the review,
supports locally-based partnerships between the State agency and the
communities it serves, increases the likelihood that the review will be
relevant to all populations served by the agency, and helps identify
training needs in the State.
With these lessons in mind, our primary goal in revising the
reviews for child and family services is to assist States in improving
outcomes for children and families by identifying the strengths and
needs within State programs and those areas where technical assistance
can lead to program improvements. Supporting goals include: (1)
reviewing for the actual outcomes of services as well as the procedures
that support desirable outcomes; and (2) using the reviews to promote
the integration of the range of Federally-funded child and family
services programs.
In developing the NPRM, we have followed the statutory requirements
closely when the statute has provided specific parameters for the
reviews. Where we were required to make decisions about issues, such as
the State plan requirements subject to review and the criteria for
determining substantial conformity, we have focused on the emphasis the
statute places on program improvements. We have integrated the proposed
review requirements with other requirements related to data collection
and the CFSPs in order to reduce the burdens on States whenever
possible. Finally, in emphasizing the importance of outcomes over
procedure, we are proposing a review process that States can adapt to
their ongoing self-evaluation and integrate into their own quality
assurance efforts, apart from periodic Federal reviews.
We chose not to emphasize the penalty structure associated with the
child and family services reviews. Rather, we have designed a review
process that will lead to meaningful improvements in the outcomes of
services delivered to children and families and will strengthen State
and Federal collaboration. We have purposefully crafted the regulation
to encourage States to make the necessary program improvements.
B. Summary of the Child and Family Service Reviews
We are proposing to review State programs in two areas: (1)
outcomes for children and families in the areas of safety, permanency,
and child and family well-being; and (2) systemic factors that directly
impact the State's capacity to deliver services leading to improved
outcomes.
The process we are proposing includes two stages: a State self-
assessment and an on-site review. The State self-assessment will be
completed by the State members of the review team, including staff of
the State agency and community representatives, in collaboration with
ACF Regional Offices. In the second phase, a representative team of
Federal, State and community reviewers will review a small ``discovery
sample'' of cases selected randomly and stratified by type of cases,
based on the findings of the self-assessment. The reviews will examine
cases which reflect a wide range of services provided by the State,
e.g., child protective services, out-of-home and in-home services, but
more emphasis will be placed on those cases reflecting State-specific
issues identified in the self-assessment. Information on each case will
be gathered from the case records as well as interviews with the
children, parents, social worker, foster parent and service providers
in the case. Systemic issues will be reviewed on-site, primarily
through interviews with State and community stakeholders from within
and outside the State agency.
[[Page 50063]]
As explained in the section-by-section discussion of the preamble,
we are proposing to make ``substantial conformity'' determinations for
each outcome and systemic factor reviewed, rather than an overall
determination of conformity for the State's entire title IV-B and IV-E
program. To be determined to be in ``substantial conformity,'' each
outcome reviewed on-site must be rated ``substantially achieved'' in at
least 90% of the cases examined in the first review, and 95% in the
subsequent reviews. To be determined to be in ``substantial
conformity'' for the systemic factors reviewed, each factor must be
operating in accordance with applicable statutory requirements. Federal
funds may be withheld from States that are determined to be in
nonconformity. However, States first will be required to implement
program improvement plans to correct areas of nonconformity and, if the
plans are implemented successfully, funds will not be withheld.
We propose that States determined to be operating in substantial
conformity be reviewed at five-year intervals and States not in
substantial conformity be reviewed at three-year intervals.
VI. Interethnic Adoption Provisions of the Small Business Job
Protection Act of 1996 and the Multiethnic Placement Act of 1994
On August 20, 1996, President Clinton signed the Small Business Job
Protection Act of 1996. Section 1808 of this Act (section 1808),
``Removal of Barriers to Interethnic Adoption,'' repeals and replaces
the nondiscrimination provision of the Multiethnic Placement Act of
1994 (MEPA). Section 1808 prohibits denial of or delay in the placement
of a child for adoption or foster care on the basis of race, color, or
national origin of the adoptive parent, foster parent, or child
involved. It also prohibits denying to any person the opportunity to
become an adoptive or foster parent, on the basis of the race, color,
or national origin of the person or child involved. This provision
became a new title IV-E State plan requirement, section 471(a)(18) of
the Act, effective January 1, 1997. Noncompliance with section
471(a)(18) constitutes a violation of title IV-E as well as a violation
of title VI of the Civil Rights Act of 1964.
The diligent recruitment requirement at section 422(b)(9) of the
Act in no way mitigates the prohibition on denial or delay of placement
based on race, color or national origin. However, the statute is clear
that the section 1808 prohibitions against delaying or denying
placement based on race, color, or national origin have no effect on
the application of the Indian Child Welfare Act of 1978.
In implementing the provisions of section 1808, we will identify
potential violations during the conduct of child and family services
reviews. We will refer cases so identified, as well as cases brought to
our attention by any other means, to the Department's Office for Civil
Rights (OCR) for investigation. Based on the OCR investigation in any
such case, we will determine whether a violation of section 471(a)(18)
has occurred. Under section 474(d) of the Act, States and other
entities receiving title IV-E funding are subject to financial
penalties and corrective action for such violations.
VII. Welfare Reform Legislation and Title IV-E Eligibility
On August 22, 1996, the Personal Responsibility and Work
Opportunity Reconciliation Act of 1996 (PRWORA) was signed into law
(Pub. L. 104-193). This law repealed the Aid to Families with Dependent
Children (AFDC) program and replaced it with the Temporary Assistance
for Needy Families (TANF) block grant. This change has implications for
the title IV-E foster care program since title IV-E eligibility is
predicated, in part, on the child's eligibility for AFDC. The PRWORA,
as amended by the Balanced Budget Act of 1997 (Pub. L. 105-33),
requires States to apply the AFDC eligibility requirements that were in
effect in the State on July 16, 1996, when determining whether children
are financially eligible for Federal foster care. Consistent with this
approach, we continue to use references which predate the passage of
TANF, but are to be applied as they were in effect on July 16, 1996.
VIII. The Adoption and Safe Families Act of 1997
On November 19, 1997, the President signed into law the Adoption
and Safe Families Act (ASFA) of 1997, Pub. L. 105-89. This legislation,
passed by the Congress with overwhelming bipartisan support, represents
an important landmark in Federal child welfare law. Its passage affords
us an unprecedented opportunity to build on the reforms of the child
welfare system that have begun in recent years in order to make the
system more responsive to the multiple, and often complex, needs of
children and families. The Adoption and Safe Families Act embodies a
number of key principles that must be considered in order to implement
the law:
The safety of children is the paramount concern that must
guide all child welfare services. The new law requires that child
safety be the paramount concern when making service provision,
placement and permanency planning decisions. The law reaffirms the
importance of making reasonable efforts to preserve and reunify
families, but also now clarifies instances in which States are not
required to make efforts to keep children with their parents, when
doing so places children's safety in jeopardy.
Foster care is a temporary setting and not a place for
children to grow up. To ensure that the system respects a child's
developmental needs and sense of time, the law includes provisions that
shorten the time frame for making permanency planning decisions, and
that establish a time frame for initiating proceedings to terminate
parental rights. The law also strongly promotes the timely adoption of
children who cannot return safely to their own homes.
Permanency planning efforts for children should begin as
soon as a child enters foster care and should be expedited by the
provision of services to families. The enactment of a legal framework
requiring permanency decisions to be made more promptly heightens the
importance of providing quality services as quickly as possible to
enable families in crisis to address problems. It is only when timely
and intensive services are provided to families that agencies and
courts can make informed decisions about parents' ability to protect
and care for their children.
The child welfare system must focus on results and
accountability. The law is clear that it is no longer enough to ensure
that procedural safeguards are met. It is critical that child welfare
services lead to positive results. The law contains a number of tools
for focusing attention on results, including an annual report on State
performance; the creation of an adoption incentive payment for States,
designed to support the President's goal of doubling the annual number
of children who are adopted or permanently placed by the year 2002; and
a requirement to study and make recommendations regarding additional
performance-based financial incentives in child welfare.
We are proposing regulations in this NPRM for the following
provisions in the ASFA:
Section 471(a)(15) of the Act regarding reasonable
efforts;
Section 471(a)(20) of the Act regarding criminal records
checks;
Section 475(1)(E) of the Act regarding documentation of
the State's
[[Page 50064]]
efforts to make and finalize a child's placement when the permanency
goal is adoption, guardianship, or some other permanent arrangement;
Section 475(5)(C) of the Act regarding permanency
hearings;
Section 475(5)(E) of the Act regarding requirements to
file or join a petition to terminate parental rights.
Section 475(5)(F) of the Act regarding the date a child
has entered foster care; and,
Section 475(5)(G) of the Act regarding notice of reviews
and hearings and an opportunity to be heard for foster parents,
relative caregivers, and preadoptive parents.
The proposed title IV-E review only monitors eligibility for foster
care maintenance payments. Therefore, those provisions in the ASFA
which amend title IV-B, subpart 2, and the Adoption Assistance program
will be regulated in a subsequent NPRM. We will propose regulations for
the following ASFA provisions in the next NPRM:
Title IV-B, subpart 2 of the Act regarding the Promoting
Safe and Stable Families program;
Section 471(a)(21) of the Act regarding health insurance
coverage for children with special needs for whom an adoption
assistance agreement is in effect; and,
Section 473(a)(2)(C) of the Act regarding a child's
continued title IV-E eligibility for adoption assistance in cases where
an adoption disrupts or the adoptive parent(s) die.
ACF does not intend to issue regulations to implement the adoption
incentive bonuses at section 473A of the Act because of the time-
limited nature of the provision. Rather, we have provided guidance
through policy issuance.
IX. Strategy for Regulating the Adoption and Safe Families Act of
1997
We have decided to regulate the provisions of ASFA and other recent
statutory amendments through two NPRMs. This, the first NPRM, transmits
ACF's proposed review systems for child and family services and title
IV-E eligibility, proposes an enforcement strategy for the statutory
prohibitions regarding race preference in foster and adoptive
placements, and addresses those provisions in the ASFA related to the
foster care maintenance program. The second NPRM will propose
codification of the remaining ASFA amendments to the Social Security
Act. Clarification and interpretation required by the field to
implement the time sensitive provisions in the ASFA will be addressed
by policy issuances prior to codification in a final rule.
We considered issuing a single comprehensive NPRM which would
encompass technical and programmatic changes to titles IV-B and IV-E
and the review processes, but rejected that approach in favor of the
alternative strategy for the following reasons:
(1) ACF is required by statute to promulgate regulations to
implement State plan compliance reviews. After extensive consultation
with the field to develop these proposed review procedures and several
years of pilot testing, it is critical that the field receive guidance
on the proposed review processes without further delay;
(2) The proposed review processes can easily accommodate revisions
to program operation and policy; and,
(3) ACF has a statutory obligation to enforce the provisions of
section 471(a)(18) of the Act.
Soon after the enactment of the ASFA, we held focus groups in
Washington, DC and in each of the 10 Federal regions to obtain input
from the field on the implementation of the new law. We learned a great
deal about the provisions in the law that require clarification and
guidance. The section-by-section discussion in the preamble offers
guidance on the intent of the ASFA and its implementation.
We want to be very clear about the effective dates in the ASFA. The
provisions in the ASFA were effective on the date of enactment,
November 19, 1997, except for those provisions which require action on
the part of the State legislature. The ASFA establishes a delayed
effective date (the first day of the calendar quarter following the
first legislative session which follows the enactment of the ASFA) for
States that must pass legislation to implement certain provisions.
States may not wait until final regulations are promulgated to come
into compliance with the ASFA provisions. States must adhere to the
effective dates in the statute.
X. Section-by-Section Discussion of the NPRM
A. Child and Family Service Reviews
Part 1355--General
Section 1355.20 Definitions
We have amended 45 CFR 1355.20 to include definitions of new terms
relevant to monitoring, including full review, partial review, and
State self-assessment. We have added a definition of the National Child
Abuse and Neglect Data System, since the term is not defined in other
regulations (See Part X.B. for other definitional revisions in
Sec. 1355.20.)
Section 1355.31 Elements of the Review System
Section 1355.31 is added to specify the scope of the reviews
covered in the NPRM.
Section 1355.32 Timetable for the Reviews
This section specifies the review timetable for the initial and
subsequent reviews as required by Section 1123A of the Social Security
Act.
In paragraph (a), we are proposing a six-month period following
publication of the final rule and prior to the commencement of Child
and Family Service reviews so that States can become knowledgeable
about the review process before the initial reviews begin in each
State. The extended time period proposed for completing the initial
reviews takes into account that: (1) States will need time to become
familiar with and prepare for these new reviews; and (2) the ACF
Regional Offices must schedule these reviews in all of the States
within each region, in conjunction with separate scheduling for the
newly revised title IV-E eligibility reviews. We learned from our pilot
reviews that approximately six months is required to prepare for and
conduct a review that examines the quality of services and outcomes.
In paragraph (b), we describe the timetable for reviews following
the initial review, in accord with the statutory requirement for less
frequent reviews of States that are determined to be in substantial
conformity. We propose that full reviews be conducted at five-year
intervals in States found to be in substantial conformity. We also
propose that the State self-assessment portion of the review be
completed three years after a review in which a State is found to be in
substantial conformity.
In addition, we propose that reviews for States determined not to
be in substantial conformity occur at three-year intervals. This
proposal is based on the recognition that many States have technical
assistance needs that will extend beyond a year or two in order for
them to implement program improvement plans designed to correct the
areas of nonconformity in their child and family services program.
In paragraph (c), we implement the provision at section
1123A(b)(1)(C) of the Act regarding the reinstatement of more frequent
reviews of States and also provide examples of information that might
indicate that the State is not operating in substantial conformity. We
propose that when information is received suggesting the possibility of
[[Page 50065]]
nonconformity, ACF will conduct detailed inquiries prior to initiating
an unscheduled review. We do not wish to pursue more frequent reviews
than are necessary and will conduct detailed inquiries prior to
initiating an unscheduled review. If the State, however, does not
provide the additional information requested, we will proceed with a
review. When a full review is not deemed necessary or appropriate, we
propose that a targeted partial review be conducted of the areas
indicated to be in nonconformity.
Section 1355.33 Procedures for the Review.
In paragraph (a), we propose a two-phase review process and suggest
that the joint State-Federal review team have multiple representation,
including individuals and organizations outside the State agency with
whom the State was required to consult in developing its State plan
(external members). Federal review team members will consist primarily
of staff from ACF, but may also include staff from other agencies
within HHS, including the Office for Civil Rights (OCR).
We received positive feedback from participants in the pilot
reviews that this approach encourages Federal-State collaboration
during the review, as well as during the development and implementation
of program improvement plans. We found that a team with a more diverse
composition:
Had a broader perspective of the extent to which outcomes
were being achieved, and was more comprehensive in its identification
of areas needing improvement within a State;
Would be better able to integrate the proposed review
process with the CFSP planning process by including the external
representatives in both processes and building on the existing
consultation requirements in place;
Satisfied a repeatedly expressed need on the part of the
focus group participants for a broad base of community involvement in
the new review process, including representatives other than staff of
the State agency; and
May lead to increased opportunities for technical
assistance from those involved in identifying the State's strengths and
needs.
In paragraph (b), we describe the proposed State self-assessment
process which is based on data, provided by ACF to the States in report
format, from their own most recent submissions to the AFCARS and NCANDS
systems. State review team members will review and analyze the data to
evaluate the strengths and needs of the child and family services
systems in the State. ACF will conduct an independent analysis of the
AFCARS and NCANDS data and provide consultation to the State during the
development of the self-assessment to ensure that it is complete and
accurate. In promoting the principles of State flexibility and program
improvement through the reviews, the analysis of the self-assessment
will provide the focus for the on-site review by identifying particular
aspects of State programs that need further review. This approach is
proposed as an alternative to conducting standard reviews on similar
populations in every State, absent any recognition of individual State
needs. State self-assessments were used successfully to structure the
on-site reviews around specific outcome areas, service areas, and
systemic issues. We think this approach will promote a more efficient
use of State and Federal resources.
In paragraph (c), we describe the proposed on-site review process.
The proposal that the on-site review be focused in specified geographic
locations in the State, including the State's largest city, reflects an
approach used in all of the pilots. It provided members of the review
team opportunities to speak to local stakeholders and conduct face-to-
face interviews with children and families, service providers, foster
families and staff from various localities. Because the nation's large
metropolitan areas are often characterized by complex social and
organizational issues that affect large numbers of children and
families, we propose that each State's largest metropolitan area be one
of the locations selected for an on-site review.
In paragraph (c)(3), we propose that ACF has final approval if
consensus cannot be reached regarding the selection of programmatic
areas of emphasis for the on-site reviews and the geographic locations
in which the on-site review will occur. However, our experience from
the pilot reviews suggests that, in most cases, the State and ACF will
reach consensus.
The proposed approach of using various sources of information to
determine substantial conformity with the outcomes and systemic factors
is also based on the pilot reviews. The comparative experiences in the
pilots revealed that the reviews yield findings of greater quality and
higher accuracy when they include case reviews and interviews rather
than rely solely on the case records.
The on-site review, by design, is qualitatively focused, reflecting
our belief that a small sample that examines outcomes thoroughly will
best promote the State/Federal partnerships and collaboration necessary
to achieve program improvements through the reviews. We propose that
the sample of cases be randomly selected and that the sampling plan be
approved by the ACF designated official in order to achieve an
objectively selected sample. We have not prescribed a specific number
of cases to be included in the sample, since the number will vary by
State, depending upon the size of the State and the areas under review.
However, we propose to select a relatively small sample, that is, 30-50
cases, and conduct an intense review, including interviews with the
relevant parties in each case.
In some pilot States, we used both the old review method of merely
reading case records and the proposed method of reading case records
and conducting interviews with families and other relevant parties. In
those pilot States where both the old and the proposed review methods
were deployed simultaneously, the review teams reported that the
proposed method provided a more accurate measure of the status of
outcomes in the States. Conducting interviews with families and other
relevant parties resulted in a more balanced approach by the review
team when considering the State's success in achieving outcomes for
families.
In paragraph (d), we propose that partial reviews be jointly
planned and conducted by the State and ACF. Partial reviews will be
targeted to the nature of the concern.
We believe the stated emphasis on program improvement will best be
served through timely feedback to the States on the review findings.
Therefore, in paragraph (e), we propose a time frame of 30 calendar
days in which to notify the State of ACF's determination as to whether
the State is operating in substantial conformity. However, the letter
of notification will not include a detailed report of the review.
Rather, it will summarize and confirm the findings of the review, many
of which will have been assembled and reported to the State at the
conclusion of the on-site review. We propose that the substance of
findings related to a determination of nonconformity be expounded upon
and developed in the context of the program improvement plan, which
will then serve as a guide to the State in achieving substantial
conformity (see section 1355.35).
Section 1355.34 Criteria for Determining Substantial Conformity
This section describes the criteria which will be used to determine
a
[[Page 50066]]
State's degree of conformity with specified State plan requirements for
each outcome and systemic factor of the State's service delivery system
that undergoes review.
We propose to base conformity on the specific outcomes and systemic
factors reviewed, rather than on the State program as a whole.
Accordingly, we have limited the State plan requirements subject to
review to those requirements related specifically to outcomes and the
delivery of improved services. We are, in effect, proposing that
conformity with these requirements constitutes ``substantial
conformity,'' rather than reviewing for and requiring some percentage
of compliance with all of the title IV-B and IV-E State plan
requirements. Also, making determinations of substantial conformity
based on specific outcomes and systemic factors will permit States to
take advantage of technical assistance opportunities to focus on those
aspects of their programs needing improvement.
In paragraphs (a)(1) and (2), we propose to determine the State's
substantial conformity with applicable CFSP requirements based on: (1)
the achievement of the seven outcomes specified in paragraph (b); and
(2) the functioning of seven core systemic factors directly related to
the State's capacity to deliver services leading to improved outcomes,
as specified in paragraph (c). In paragraph (a)(3), we propose that a
review and analysis of the aggregate data in the State self-assessment
should be consistent with, and support, the findings of the on-site
review. Significant discrepancies between the aggregate data and the
on-site review findings may be a contributing factor in determining
that a State is not in substantial conformity.
In paragraph (b)(1), we link substantial conformity to the outcomes
for children and families, and list the seven outcomes that are subject
to review. These outcomes were derived from discussions with numerous
focus groups, consultation with experts in the field, and from an
extensive review of the literature on the outcomes for children and
families served by the programs under review. The pilot reviews have
demonstrated them to be appropriate outcomes to measure.
In paragraph (b)(2), we propose that a State's level of achievement
(i.e., ``substantially achieved,'' ``partially achieved,'' or ``not
achieved'') with regard to each outcome, as determined by the review
team, reflect the extent to which a State has implemented the CFSP
requirements and assurances subject to review. We have specified those
CFSP requirements that are directly related to the outcomes that will
undergo review, including the new title IV-B State plan requirement to
make effective use of cross-jurisdictional resources to place children
in adoptive homes.
While the requirement at section 471(a)(18) of the Act has a direct
impact on permanency for the children affected, we have proposed only
to use the child and family services review as a mechanism for
identifying potential section 471(a)(18) compliance issues rather than
as a mechanism to determine compliance with this provision, hence its
exclusion from this paragraph. The statutory requirements for enforcing
section 471(a)(18) necessitate a different approach from that taken in
the child and family services review. However, the self-assessment and
the instruments for the on-site portion of the review will include
questions designed to probe for potential section 471(a)(18) compliance
issues. Once identified through a child and family services review, or
otherwise, potential noncompliance with section 471(a)(18) will be
addressed through the process proposed at section 1355.38.
In paragraph (b)(2)(vii), the proposed review of the title IV-E
requirement regarding reasonable efforts is not a duplication of the
review of reasonable efforts determinations performed in the title IV-E
foster care eligibility reviews. We are not proposing to review for
reasonable efforts determinations in court orders or other court
documentation, but for the actual services provided to prevent
removals, facilitate reunification, or, in conformance with the ASFA,
to make and finalize alternate permanent placements. This State plan
requirement clearly supports two of the outcomes proposed for review:
(1) children are, first and foremost, protected from abuse and neglect,
and are safely maintained in their homes whenever possible; and (2)
children have permanency and stability in their living situations.
In paragraph (b)(3), we propose that in order for a State to be
determined to be in substantial conformity, each outcome to be examined
must be rated as ``substantially achieved'' in at least 90 percent of
the cases reviewed on-site in the initial review and 95 percent in
subsequent reviews. For example, if 40 cases are reviewed as part of an
initial on-site review, each outcome must have been ``substantially
achieved'' for at least 36 (90%) of these cases as determined by the
review team. The rationale for the phased-in standard of outcome
achievement is that States will need time to focus their resources on
program improvements and the new approach to the reviews and may not be
able to conform to a 95 percent standard initially. However, given the
goal of the proposed review process to support practice improvements
over time, we believe a 95 percent standard better reflects the ongoing
quality of outcomes we are promoting.
The on-site review instruments are designed to guide reviewers in
determining the degree of outcome achievement. Specific items in the
on-site review instruments are indexed to each outcome. These items
will be examined collectively from a case-specific qualitative level in
determining if each outcome has been or is being achieved at a
satisfactory level, that is, ``substantially achieved.'' We have
published the items indexed to the outcomes at Attachment A, at the end
of this preamble, in order to give States a more specific idea of what
is reviewed during the on-site process. We do intend to publish the
self-assessment and on-site review instruments in meeting Paperwork
Reduction Act requirements. These documents provide detail regarding
the information to be collected and reviewed. We want to be clear,
however, that the items will not be published as part of the final rule
because they are subject to change as we learn more about how
particular issues affect outcomes for children and families.
In the pilot reviews, we invested considerable effort in preparing
reviewers to collect and consider the information needed to make
decisions about outcome achievement. In addition, we assembled a cross-
section of representatives from within and outside the State agency and
made numerous revisions to the instrument to increase the likelihood of
objective conclusions. We propose to require that conclusions about
outcomes be made on the basis of several perspectives, including those
of the children, parents, social worker and service providers involved
in the cases reviewed, in order to provide us with more comprehensive
information about each case undergoing review.
We believe that the proposed review of outcomes is necessary to
achieve the goal of improved services. In each of the pilots, reviewers
were able to apply the criteria to the outcomes in a manner that led to
decisions considered by the review team to be valid. Further, the
compilation of findings around outcomes by the review team was
generally consistent with the State agency's perception of the
strengths and needs of its programs which, we think,
[[Page 50067]]
adds further validity to the approach we are proposing.
In paragraph (c), we propose also to link substantial conformity to
a State's implementation of those CFSP requirements clearly related to
delivering child welfare services which lead to improved outcomes, in
addition to the review of the actual outcomes. We have identified the
seven core systemic factors that we propose to examine, along with the
specific criteria that will be reviewed to determine if each systemic
factor is operating in substantial conformity. The factors we have
chosen to examine emerged from a much longer list that was refined over
the course of the pilot reviews. The systemic factors to be reviewed
are those that seemed to most critically influence agency capacity at
both the State and local levels.
The nature of the systemic factors and criteria for determining
substantial conformity does not accommodate measurement at an interval
level, e.g., percentage of achievement. We are, therefore, proposing
that the review team apply specific criteria associated with each
factor and determine whether the State is operating in substantial
conformity with the CFSP requirements related to each factor. In
paragraphs (c)(1) through (7), we have identified the components of
each systemic factor that will be examined. The factors include: (1)
The Statewide information system; (2) the case review system (which
incorporates the new requirements in the ASFA for permanency hearings,
termination of parental rights, and notice of hearings for foster and
preadoptive parents); (3) the quality assurance system (which includes
the new State plan requirement to establish and maintain quality
standards for children in foster care); (4) training; (5) service array
(including the new services that must be provided under title IV-B
subpart 2, i.e., time limited reunification services and post-legal
adoption services); (6) agency responsiveness to the community; and (7)
foster/adoptive parent licensing, recruitment, and retention (which
includes the new State plan requirements for criminal record checks and
plans for effective use of cross-jurisdictional resources for making
adoptive placements).
Since these factors relate to systemic issues within State
agencies, the degree to which they are operating in substantial
conformity with CFSP requirements is a decision made with input from
the entire review team. The decision will be based on information
contained in the State self-assessment, as well as interviews with a
broad cross-section of internal and external stakeholders at the State
and local levels. In proposing the criteria to evaluate each systemic
factor, we have worked to stay within the limits of the statutory and
regulatory language related to the factors.
With regard to the case review system required in section 422 and
defined in section 475 of the Act, we will not base substantial
conformity on the documentation of these requirements for individual
children as was the practice in previous section 427 reviews. Rather,
the extent to which the State has in place a case review system that
effectively promotes desirable safety, permanency, and well-being
outcomes for the children and families served by the State will
determine the degree of conformity.
We propose in paragraph (d) that the review instruments be provided
to all States when the final rule becomes effective. This will ensure
that States are aware of the methodology that will be used to make
determinations related to outcome achievement and the functionality of
systemic factors. We are particularly interested in comments regarding
the most effective method for keeping States informed of the content of
the review instruments.
Section 1355.35 Program Improvement Plans
This section describes the requirements for developing,
implementing and reviewing State program improvement plans and for
providing technical assistance to States in implementing the program
improvement plans. It implements the requirement in section 1123A(b)(4)
of the Act that States found not to be in substantial conformity be
afforded the opportunity to develop and implement a corrective action
plan. We are proposing the term ``program improvement plan'' as an
alternative to corrective action plan, believing that it better
reflects the principles of program improvement and State/Federal
partnerships that we are attempting to cultivate through the reviews.
In paragraph (a)(1) we propose to require that the program
improvement plan be developed jointly between the State and HHS,
consistent with other regulatory requirements that the State plan be
developed jointly, and in keeping with the desire to promote State and
Federal partnerships through the reviews.
In paragraphs (a) (2) through (5), we describe the required content
of the program improvement plans, specifically that the plans address
the areas of nonconformity and identify the activities, time frames,
technical assistance and evaluations needed to achieve substantial
conformity.
In paragraph (b), we propose the option of a voluntary program
improvement plan for States that meet the criteria for substantial
conformity but yet have areas where program improvements are needed,
and we describe the requirements for such voluntary plans.
In paragraph (c)(1), we propose that a State's program improvement
plan be approved in accordance with section 1123A(b)(4)(A) of the Act.
In addition, we propose that a State submit its plan for approval
within 60 days following receipt of the written notice of nonconformity
so that a State found to be in nonconformity may receive prompt
assistance in achieving program improvements.
In paragraph (c)(2), ACF will approve the plan if it meets the
requirements for program improvement plans described in this section.
If the plan does not meet the requirements and is not approved, we
propose in paragraph (c)(3) that the State be given 30 additional days
to revise and re-submit the plan for approval. If the State does not
re-submit the plan, or if the re-submitted plan continues to fail to
meet the requirements and cannot be approved, we propose in paragraph
(c)(4) to initiate withholding of funds in accordance with the
provisions of Sec. 1355.36 of this part. We believe that reasonable
time frames must govern the submission of approvable program
improvement plans, and would appreciate comments as to whether the time
frame for the joint development of the program improvement plan is
adequate as proposed.
In paragraph (d), we are proposing that program improvement plans
be approved for time periods of up to two years, depending upon the
level of nonconformity. We do not expect all program improvements to
take two years to implement and expect States to address areas of
nonconformity expeditiously. States will be required to prioritize
areas needing improvement that pose risks to child safety and complete
the appropriate action steps within a time frame to be determined in
consideration with the level of risk. We do recognize, however, that,
in some circumstances, it will be impossible for the State to address
the areas needing improvement within the two year time frame, even with
technical assistance. In such situations we are, thus, proposing a
three-year period of time as the maximum implementation period for the
plans, consistent with the time frame for the ongoing full reviews.
[[Page 50068]]
In paragraph (e), we propose procedures for evaluating the
implementation of program improvement plans. We propose that the State
members of the review team and the ACF Regional Office determine the
appropriate intervals for evaluating the plans, since the content of
each plan and the needs of individual States will vary significantly.
Our proposal that the evaluations occur no less frequently than
annually is an effort to: (1) assure that delays in evaluation do not
prevent the State from correcting the areas of nonconformity in a
timely manner; (2) integrate the implementation of the plans with the
joint planning process between the State and ACF; and (3) reduce the
burden on States by using the existing annual CFSP progress review and
update as the vehicle for evaluating the plans, rather than create an
additional process.
In paragraph (e)(3), we address evaluation of individual components
of the program improvement plans. We are proposing that the areas of
nonconformity be addressed individually when evaluating the plans, so
that once they are determined to be complete they will not require
further evaluation.
In paragraph (e)(4), we propose the option for the State and ACF to
renegotiate the terms of the program improvement plans, as needed. This
is based on the fact that changes in approach may be needed during the
implementation of a plan, and we want to provide that flexibility for
the States.
In paragraph (f), we elaborate on the proposal that States
integrate their program improvement plans with CFSP planning and
implementation.
To the extent that ACF has the resources and funds available, it
shall make technical assistance available to improve the outcomes or
other factors that are outlined in a State's program improvement plan.
Our goals in this section and in the withholding section (45 CFR
1355.36) include: providing timely feedback on the findings of the
review to the State, based on joint planning, collaboration and
agreement on the strengths and needs of the program; avoiding the
``review and penalize'' approach used in prior reviews; and focusing
the period following the review on program improvement. In the pilot
reviews, we found that the final reports of the reviews, prepared by
ACF in collaboration with the State and the review team, required (at a
minimum) several months to complete and delayed the development of
program improvement plans well beyond the completion of the actual
review. We, therefore, have proposed that ACF develop a concise,
focused report of findings within 30 days of the review. This method
allows us to expeditiously engage the State in developing a program
improvement plan that addresses the mutually agreed upon areas of
nonconformity. We have proposed that program improvement plans be
developed within 60 days of ACF issuing a written confirmation to the
State of the findings of the review.
Section 1355.36 Withholding Federal Funds Due to Failure To Conform
Following the Completion of a State's Program Improvement Plan
This section describes the process for withholding funds due to the
failure of the State to meet the criteria for substantial conformity.
We have addressed statutory requirements by specifying the methods used
to determine the amount of Federal funds to be withheld due to a
State's failure to comply substantially, and the conditions under which
the funds will be withheld. In reviewing this section, the reader
should note that the withholding of funds is suspended during the
implementation period of a program improvement plan. Following the
completion of the program improvement plan, the amount of funds which
will be withheld and collected in arrears is the amount identified in
conjunction with those areas of nonconformity that remain uncorrected.
In paragraphs (a)(1) and (2), we define the pool of funds to which
any penalties should apply. Inasmuch as section 1123A(a) of the Act
requires that the Secretary review a State's conformity with State plan
requirements of both titles IV-B and IV-E, we have deemed it
appropriate and consistent to propose that funds under each of these
titles be subject to withholding. This approach is further supported by
the close linkages we see between both titles, for example, in the
areas of protections for children, the recruitment of foster and
adoptive families, and the development of training strategies. While
greater emphasis is placed on title IV-B State plan requirements in the
reviews of State child and family services programs, the requirements
within the two titles are sufficiently intertwined so as to justify a
pool of both title IV-B and title IV-E funds. However, in recognition
of this greater emphasis, we believe that it is appropriate that the
pool of funds subject to withholding be comprised of a State's total
title IV-B allocation. Since a smaller number of title IV-E State plan
requirements have been included as part of these reviews, we are
proposing that the pool of title IV-E funds subject to withholding be
limited to a State's claims for title IV-E foster care administrative
costs, and not include foster care maintenance payments.
In paragraph (b)(1), we propose that withholding funds based on a
determination that a State is not operating in substantial conformity
be delayed until the State has the opportunity to develop and implement
a program improvement plan.
In paragraph (b)(2), we propose that funds not be withheld from a
State if the determination of nonconformity is caused by the State's
correct use of formal statements of Federal law or policy provided by
DHHS.
In (b)(3), we are proposing that withholding apply to the year
under review and each succeeding year until the failure to conform ends
through the successful completion of the program improvement plan, or
until a subsequent review determines that the State is operating in
substantial conformity. The amount of funds subject to withholding that
we are proposing is relatively modest for a single year. We therefore
believe that for potential withholding to serve as an incentive for
program improvements, it must be applied over the entire period of
nonconformity.
In (b)(4) we address the statutory requirement that the amount of
funds withheld must be proportionate to the extent of nonconformity. In
paragraph (b)(4)(i), we define the pool of funds from which any funds
shall be withheld due to nonconformity. The pool includes the State's
entire title IV-B allocation, subparts 1 and 2, for the years to which
the withholding applies, plus an amount equivalent to 10 percent of the
State's Federal claims for title IV-E foster care administrative costs
(exclusive of training costs matched at 75 percent) for the years to
which the withholding applies. Only 10 percent of the title IV-E foster
care administrative claims is proposed since a smaller number of the
State plan requirements subject to review are specifically title IV-E
related.
In paragraphs (b)(4)(ii) and (iii), we are proposing that equal
weight be given to each of the seven core outcomes, described in
Sec. 1355.34(b)(2) of this part, and the seven core systemic factors,
described in Sec. 1355.34(c)(2) of this part, in determining
substantial conformity. We propose that the amount of funds subject to
withholding for each outcome and systemic factor be one percent of the
pool of the State title IV-B allocation and title IV-E foster care
administrative costs. We propose that funds be withheld only for those
[[Page 50069]]
particular outcomes and systemic factors that are determined not to be
in substantial conformity, whether as a result of a full or partial
review. Therefore, States determined not to be operating in substantial
conformity based on only one outcome would be subject to a one percent
withholding, and States with greater degrees of nonconformity would be
subject to proportionately higher withholding.
We think that our proposal for withholding provides a sufficient
penalty to serve as an incentive for program improvements as needed,
but does not withhold so much as to prohibit States from making
improvements or delivering services. Our definition of the pools of
funds to which penalties will apply is consistent with the extent to
which we will be reviewing State plan requirements for programs
administered under both funding sources. We anticipate that the maximum
penalty proposed for States determined not to be in substantial
conformity on all of the outcomes and systemic factors reviewed will be
less than penalties imposed under the section 427 reviews, on a year-
by-year basis. This is primarily due to our expectation that the
development and implementation of a program improvement plan, along
with the provision of technical assistance, will result in significant
progress by the State in achieving substantial conformity. This
proposal is consistent with our intent to de-emphasize penalties in
favor of efforts to improve services. We particularly invite comments
on this issue.
In paragraph (b)(5), we propose the maximum amount of funds to be
withheld if the State cannot achieve substantial conformity through the
implementation of a program improvement plan.
In paragraph (c), consistent with section 1123A(b)(4)(C) of the
Act, we propose that the amount of funds withheld not be deducted from
a State's allocation during the implementation period of the program
improvement plan, provided the plan conforms to the requirements in the
final rule.
The statute also requires that the Secretary rescind the
withholding of funds if the State's failure to conform is resolved by
successful completion of a corrective action plan. We have addressed
this requirement in paragraph (d), and also propose that the Secretary
not withhold any portion of funds that applies to individual outcomes
or systemic factors that are brought into substantial conformity
through partial completion of the program improvement plan.
In paragraph (e)(1), we propose that the statutory requirement that
ACF notify the State no later than 10 days following a final
determination of substantial failure to conform be interpreted as 10
business days. Although each State will be notified of whether it is,
or is not, operating in substantial conformity following the on-site
review, this earlier determination shall not be considered final for
States which are determined not to be in conformity. These States will
be notified of the final determination following the successful or
unsuccessful completion of a program improvement plan.
In paragraph (e)(2), we clarify when and under what circumstances
the actual withholding of funds will occur. The decision to withhold
funds from a State will be directly related to its progress in
implementing a program improvement plan. At the completion of the
program improvement plan, the amount of funds associated with any
remaining areas of nonconformity will be withheld by the Department for
the time period beginning with the year under review in which the
initial determination of nonconformity was made to the date of the
final determination of nonconformity, and from that date forward until
substantial conformity is achieved. In paragraph (e)(3), we propose
that the amount of funds withheld be computed to the end of the quarter
in which substantial conformity is achieved.
In paragraph (e)(4), we propose the penalty structure for States
that fail to participate in the development of a program improvement
plan, or in the implementation of a plan, as required by ACF.
Section 1355.37 Opportunity for Public Inspection of Review Reports
and Materials
In this section, consistent with the requirements for State plans
at 45 CFR 1355.21(c), we propose that the State make reports and
materials related to the child and family services reviews available
for public inspection. We think it is critical that States obtain the
broadest public involvement in the implementation of child welfare
programs. We are particularly interested in comments regarding the
method of dissemination of these materials in order to accomplish this
goal.
Section 1355.38 Enforcement of Section 471(a)(18) of the Act Regarding
the Removal of Barriers to Interethnic Adoption
In this section, we implement the provisions of sections 474(d)(1)
and (2) of the Act. Section 474(d) contains enforcement provisions
applicable to section 471(a)(18) of the Act, which requires the removal
of barriers to interethnic adoption. We have chosen to codify the
section 1808 enforcement procedures in regulations in conjunction with
the 1123A review process because the statute specifically identifies
the 1123A review process as a mechanism for assuring State compliance
with section 471(a)(18) of the Act. While the 1123A review process is
an appropriate mechanism for detecting possible violations of section
471(a)(18) of the Act, the corrective action and penalty structure
required by section 474(d) of the Act does not fit within the
``substantial conformity'' standard by which other title IV-B and title
IV-E State plan requirements are measured in the 1123A review process.
Therefore, ACF has developed a separate process for addressing
violations of section 471(a)(18), once identified.
After considering a number of options, we determined that
implementing section 474(d) of the Act requires collaboration with OCR
because it has significant expertise in investigating alleged civil
rights violations. Moreover, a State's noncompliance with section
471(a)(18) of the Act is also a violation of title VI of the Civil
Rights Act of 1964. OCR and ACF will collaborate throughout the process
of bringing the State into compliance with section 471(a)(18) of the
Act which includes consultation during the development, approval,
implementation, and evaluation of corrective action plans.
In paragraph (a)(1), we propose that ACF refer all cases involving
potential violations of section 471(a)(18) of the Act to OCR for
investigation. Such cases may come to our attention during the course
of a child and family services review or by other means, such as a
letter of complaint. Violations based on a court finding will not be
referred to OCR for investigation. Rather, ACF will invoke the
appropriate penalty and corrective action procedures described in the
regulation.
In paragraph (a)(2), we propose that after OCR completes its
investigative procedure, it will make its file available to ACF, which
will then make a determination, based on the OCR file, whether there
has been a violation of section 471(a)(18). In paragraphs (a)(2)(i) and
(a)(2)(ii), consistent with statutory language, we propose that a
violation of section 471(a)(18) occurs with respect to a person if the
agency delays or denies placement based on race, color, or national
origin. In paragraph (a)(2)(iii), we have included as a violation of
[[Page 50070]]
section 471(a)(18) of the Act a State's maintenance of any statute,
regulation, policy, procedure, or practice that would result in the
delay or denial of placement based on race, color, or national origin.
The statute requires immediate penalties for violations with respect to
a person while providing States the opportunity to implement corrective
action to avoid penalties in unspecified circumstances. Logically,
circumstances in which States should first have an opportunity for
corrective action prior to receiving a penalty include those that have
the potential to cause a violation of section 471(a)(18) with respect
to a person.
In paragraph (a)(3), we propose that ACF provide written
notification to the State or entity of its determination regarding
alleged section 471(a)(18) violations.
In paragraph (a)(4), we propose that if ACF determines that no
violation has occurred, it will take no further action. However, if ACF
determines that a violation has occurred, it will invoke the
enforcement process outlined in section 474(d) of the Act, which
includes penalties and corrective action. Penalties will be issued in
the form of disallowances and will thus be appealable to the
Departmental Appeals Board (DAB) under the procedures prescribed in 45
CFR Part 16.
In paragraph (a)(5), we make clear that the implementation of
section 471(a)(18) is to have no impact on the State's compliance with
the requirements of the Indian Child Welfare Act of 1978.
In paragraph (b)(1), we explain that, in accordance with section
474(d)(1) of the Act, an immediate penalty will be levied against a
State found to be in violation of section 471(a)(18) with respect to a
person or as the result of a court finding (see paragraph (g)(4) of the
proposed regulation and the corresponding preamble language). The
penalty will be imposed for the fiscal quarter in which the State
receives notification from ACF that it is in violation of section
471(a)(18), and for every subsequent quarter in that fiscal year, or
until the State successfully completes a corrective action plan. While
penalties resulting from violations of section 471(a)(18) are
appealable to the DAB, States that voluntarily engage in corrective
action may do so without prejudice during the appeal process in order
to correct deficiencies and come into compliance expeditiously. If the
violation occurs as a result of a court finding and the State is
appealing the court's decision, ACF will notify the State that the
violation has occurred and of the appropriate penalty structure,
however, it will not impose the penalty until there is a final
determination through the appeal process. The State may engage in a
corrective action plan during the judicial appeal process if it so
chooses.
Paragraphs (b)(2) and (b)(3) describe the approval process for
corrective action plans submitted in response to violations of section
471(a)(18) with respect to a person or as the result of a court
finding. Approval of such plans is at the sole discretion of ACF. We
did not prescribe time lines for submission of corrective action plans.
Clearly, it is in a State's best interest to come into compliance in a
timely fashion in order to minimize the length of time the penalty is
imposed.
In paragraph (c)(1), we explain that any State with a statute,
regulation, policy, procedure, or practice in place that, if applied,
would likely result in a violation of section 471(a)(18) of the Act
with respect to a person will be found in violation of section
471(a)(18). In conformance with the statute, a State will have up to
six months from the date it receives notification of the violation from
ACF to implement a corrective action plan for complying with section
471(a)(18). We chose to interpret the term ``implement'' to mean
``begin'' rather than ``complete.'' We think this interpretation is
consistent with Congress' intent to resolve noncompliance with section
471(a)(18) in a timely fashion and affords States sufficient time to
develop and implement corrective action. A State that fails to
implement a corrective action plan within the six months allotted, will
be assessed a penalty in accordance with section 474(d)(1) of the Act.
Paragraphs (c)(2) and (c)(3) describe the approval process for
corrective action plans submitted in response to violations of section
471(a)(18) caused by a statute, regulation, policy, procedure, or
practice that could result in a violation with respect to a person.
Approval of such plans is at the sole discretion of ACF. We did not
prescribe time lines for submission of corrective action plans, but
note that it is in a State's best interest to submit the plan at the
earliest possible date in order to effect implementation within the six
months allotted.
In paragraph (c)(4), we describe what constitutes ``implementing''
a corrective action plan. A corrective action plan will be considered
``implemented'' when a State begins to carry out the action step(s) in
the plan. ACF's approval of a corrective action plan is not considered
implementation of the plan.
In paragraph (c)(5), once the corrective action plan is
implemented, we propose to levy a penalty against a State that fails to
complete the corrective action plan within the time allotted in the
plan. Although the statute does not specifically address the completion
of corrective action plans, Congress clearly intended all States to
comply with section 471(a)(18) of the Act. Therefore, States that fail
to complete a corrective action plan within the time specified in the
plan will be subjected to a penalty in accordance with section
474(d)(1) of the Act.
Subsection (d) proposes requirements for corrective action plans
developed in response to a violation of section 471(a)(18).
In paragraph (e), we propose that the evaluation of a State's
corrective action plan be completed solely by HHS staff. We believe
that a joint evaluation would be inappropriate when a State has been
found to be in violation of this title IV-E State plan requirement. We
propose to evaluate the State's corrective action plan within 30
calendar days of the latest projected completion date specified in the
plan. We think this is a sufficient amount of time since ACF can
evaluate action steps as they are completed. Within the 30 days, ACF
will determine if the State has completed the corrective action plan.
If the corrective action plan has not been completed, ACF will
calculate the amount of reduction in the State's title IV-E payment and
notify the State agency accordingly.
In paragraph (f), we define ``title IV-E funds'' as the Federal
share of all expenditures made under title IV-E.
Paragraph (g)(1) reiterates the circumstances in which a State's
title IV-E funds may be reduced as the result of a violation of section
471(a)(18): the delay or denial of a foster or adoptive placement based
on race, color, or national origin; or, failure to implement or
complete a corrective action plan of the type described in subsection
(c).
In paragraph (g)(2), in accordance with section 474(d)(1) of the
Act, we propose to reduce the title IV-E funds of a State that has
violated section 471(a)(18) with respect to a person for the fiscal
quarter in which the State received notification of this violation and
for each succeeding quarter that fiscal year or until the State
completes a corrective action plan, whichever is sooner.
In paragraph (g)(3), for States that fail to implement or complete
a corrective action plan of the type described in subsection (c), we
propose to reduce the State's title IV-E funds for the fiscal quarter
in which the State received
[[Page 50071]]
notification of this violation. The reduction will continue for each
succeeding quarter within that fiscal year or until the State completes
the corrective action plan, whichever is sooner.
In paragraph (g)(4), a State determined to be in violation of
section 471(a)(18) on the basis of a court finding will have its title
IV-E funds reduced in accordance with section 474(d)(1) for the fiscal
quarter in which the court finding was made, and for each succeeding
quarter within that fiscal year or until the State completes a
corrective action plan, whichever is sooner.
In paragraph (g)(5), we propose that a State determined not to be
in compliance with section 471(a)(18) undergo a reduction in its title
IV-E funds for a period not to exceed the four fiscal quarters in the
fiscal year in which the State was notified of its noncompliance.
Should the State fail to come into compliance with section 471(a)(18)
of the Act during the fiscal year in which it was notified of its
violation, ACF will treat the violation as a new finding at the
beginning of the subsequent fiscal year and impose the penalty and
corrective action process accordingly.
In paragraph (h)(1), in accordance with section 474(d)(1) of the
Act, we propose the penalty structure for States that violate section
471(a)(18) with respect to a person or fail to implement or complete a
corrective action plan of the type described in subsection (c).
In paragraph (h)(2), we address the penalty structure for an entity
that has received title IV-E funds from a State and has been determined
to have violated section 471(a)(18) with respect to a person. We
propose that all title IV-E funds received by that entity from a State
agency for the quarter in which the entity receives a notification from
ACF that it is in violation of section 471(a)(18) be remitted directly
to the Secretary by the entity in accordance with section 474(d)(2) of
the Act. The penalty against the entity will be calculated based on the
State's documentation of expenditures.
Pursuant to section 474(d)(1) of the Act, in paragraph (h)(3) we
propose that the reduction of title IV-E funds due to a State's failure
to conform to section 471(a)(18) shall not exceed five percent of that
State's fiscal year title IV-E payment.
In paragraph (h)(4), we propose holding States or entities liable
for any interest accrued on the amount of funds reduced by the
Department, in accordance with the provisions of 45 CFR 30.13.
Section 1355.39 Administrative and Judicial Review
In this section, we implement the statutory provisions (section
1123A(c)(2) and (3) of the Act) under which States may appeal decisions
made by the Department with regard to determinations of substantial
conformity and the subsequent withholding of funds. We propose that
States be afforded the same opportunities for appeal upon being
notified by ACF of a violation of section 471(a)(18) of the Act.
In paragraph (c), we propose that no appeal be available to a State
when it has been determined to be in violation of section 471(a)(18) of
the Act based on a court finding.
B. Title IV-E Eligibility Reviews
Part 1355--General
Section 1355.20 Definitions
1355.20 is being revised to define terms used throughout the
proposed rule.
The definition of child care institution is primarily a reiteration
of the statutory definition at section 472(c)(2) of the Act.
The definition of original foster care placement has been removed
from Sec. 1356.21, moved to this section, and replaced with date the
child enters foster care to comply with the ASFA. The date the child
enters foster care determines when the case review system requirements
in section 475 of the Act have to be met, such as: administrative
reviews, permanency hearings, the new requirement for filing or joining
a petition for termination of parental rights, and the requirements for
providing ``time-limited reunification services'' funded under title
IV-B, subpart 2. This term has no significance for claiming Federal
financial participation for foster care maintenance payments. The rules
for obtaining Federal reimbursement for foster care maintenance
payments have not changed. This term should not be confused with the
date the child is physically removed from home.
We understand, through our consultation process, that there is a
need for clarification of the ``judicial finding of child abuse or
neglect'' language. We are interpreting this language as referring to
the hearing at which the court finds that the child has been abused or
neglected and gives placement and care responsibility to the State
agency; this usually takes place at what we refer to as the ``full
hearing.'' A finding of abuse or neglect does not occur at a shelter or
emergency placement hearing where the State is given temporary custody
of the child.
We propose that the date the child entered foster care on the basis
of a voluntary placement agreement be the date the agreement is signed
by all relevant parties.
We are proposing a revised definition of foster care which will
change the term ``family foster homes'' to ``foster family homes'', so
that it is consistent with the definition of ``foster family home'' in
this section. It also clarifies the status of a child as being in
foster care, even though an adoption subsidy payment has been made
prior to the finalization of the adoption.
The definition of foster care maintenance payments is derived from
section 475(4)(A) of the Act. In this definition, we elaborate upon the
meaning of ``daily supervision'' consistent with a policy
interpretation issued by ACYF (ACYF-CB-PIQ-97-01). States may claim
reimbursement under title IV-E foster care maintenance for child care
provided to title IV-E eligible children during the foster parent's
working hours while the child is not in school and in those situations
when a foster parent must participate in activities that are beyond the
scope of ``ordinary parental duties,'' but consistent with parenting a
child in foster care. According to the legislative history of Public
Law 96-272, `` * * * payments for the costs of providing care to
foster children are not intended to include reimbursement in the nature
of a salary for the exercise by the foster family parent of ordinary
parental duties * * *'' Since foster care maintenance payments are not
salaries, foster parents must often work outside the home; hence the
interpretation that licensed child care that provides daily supervision
during a foster parent's working hours when the child is not in school
is an allowable expenditure under title IV-E. Examples of other
allowable activities include licensed child care while the foster
parent is attending foster parent training, case conferences, or case
review hearings.
States have requested clarification regarding disbursement of funds
for allowable child care. States may include the cost of allowable
child care in the basic foster care maintenance payment or may make a
separate maintenance payment directly to the licensed provider. For
example, if, in a particular foster family, both parents work, the
State may include the cost of child care in the maintenance payment
made to that family or may pay the licensed provider directly.
Regardless of the payment method chosen, the State must be able to
provide documentation to verify allowable expenditures.
[[Page 50072]]
The definition of foster family home has been amended to clarify
that the statute makes no distinction between approved and licensed
foster homes. Consequently, approved foster homes must meet the same
standards as licensed homes. To date, there has been confusion in the
field regarding the statutory terminology of ``licensed or approved.''
Some States have interpreted this language to allow a type of two-
tiered system for approving foster family homes. This is an incorrect
interpretation of the statute. The terms ``licensed'' and ``approved''
are treated equally in the statute. Irrespective of the terminology,
licensure or approval for foster homes must be based on the same
standards. This clarification does not repeal the policy at ACYF-PIQ-
85-11 which permits States to waive certain licensing requirements,
such as square footage, for relative foster family homes.
Provisional licensure or approval is insufficient for meeting title
IV-E eligibility requirements. States may not claim reimbursement until
final licensure or approval is granted. The State may, however, claim
reimbursement back to the first of the month in which all title IV-E
eligibility criteria are met.
The definitions of full hearing and temporary custody proceeding
are being added to clarify the meaning of these terms as used by ACF in
these regulations.
We have added a definition of legal guardianship which reiterates
the statutory language found at new section 475(7) of the Act. In our
initial consultations on the implementation of the ASFA, questions were
raised regarding the applicability of this term to ``long-term foster
care.'' The statute no longer recognizes long-term foster care as a
permanency goal. A State is not precluded from establishing placement
in a permanent foster family home as a permanency goal if it has a
compelling reason to do so. However, placement in a permanent foster
family home does not fall within the definition of ``legal
guardianship,'' for the obvious reason that foster parents are not
granted the rights associated with guardianship.
The definition of permanency hearing recognizes the statutory
changes in terminology, timing, and purpose of these hearings contained
in the ASFA. Since the intent of the law, both prior and subsequent to
the ASFA, is to provide judicial oversight for children whom a State
has yet to place in a permanent setting, we propose to limit the court-
appointed or approved body for the conduct of permanency hearings to
one which is not a part of or under the supervision or direction of the
State agency. We also propose to exclude any hearings that do not
provide parents and other interested parties an opportunity to be
heard, as was the legislative intent (Congressional Record-Senate,
August 3, 1979, S. 11710).
In order to meet children's permanency needs and to create a child
welfare system that is responsive to a child's sense of time, Congress
moved the timing for the ``dispositional hearing'' to 12 months,
renamed it the ``permanency hearing,'' and clarified its purpose to
unequivocally establish that States must set and act on permanency
plans for children in foster care without delay. In our early
consultation with the field regarding the implementation of the ASFA,
we repeatedly heard that it was critical that the field understand that
permanency hearings must occur within 12 months of the child entering
foster care, but may occur sooner if reunification is appropriate or it
becomes clear that an alternate permanency plan must be established.
During the focus groups, we also learned that the language at
section 475(5)(C) is being misunderstood as requiring States to cease
reunification efforts at the permanency hearing. The State is not
obliged to set an alternate permanency plan at the permanency hearing
if the child and family are not able to reunify at that time. However,
the intent of the ASFA in shortening the time line for holding a
permanency hearing was to place greater accountability and
responsibility on parents for making their home ready and safe for the
child's return. Congress understood that families often present very
complicated issues that must be resolved prior to reunification. For
example, parents dealing with substance abuse issues may require more
than 12 months to resolve those issues. However, a parent must be
complying with the established case plan, making significant measurable
progress toward achieving the goals established in the case plan, and
diligently working toward reunification in order to maintain it as the
permanency plan at the permanency hearing. Moreover, the State and
court must expect reunification to occur within a time frame that is
consistent with the child's developmental needs. If this is not the
situation, the State is obliged to establish and act on an alternate
permanency plan for the child at the permanency hearing. Too often,
reunification is retained as the permanency goal when a parent is
negligent in complying with the requirements of the case plan until the
months or weeks immediately prior to the permanency hearing. A parent's
resumption of contact or overtures toward participating in the case
plan in the months or weeks immediately preceding the permanency
hearing are insufficient grounds for retaining reunification as the
permanency plan. In such situations, the parent must demonstrate a
genuine, sustainable investment in completing the requirements of the
case plan in order to retain reunification as the permanency goal.
The shortened time frames and increased accountability for parents
makes it incumbent on the State to begin providing services to families
as soon as it receives responsibility for the child's placement and
care. Ideally, the State will begin delivering services to resolve
those parental issues which lead to the removal as soon as the child is
removed from home.
Part 1356--Requirements Applicable to Title IV-E
Section 1356.20(e)(4) State Plan Document and Submission Requirements
Effective October 16, 1994, the Assistant Secretary of ACF
delegated the authority to the Commissioner, ACYF, to disapprove title
IV-E State plans which provide for foster care and adoption assistance
under section 471 of the Act. Accordingly, we have deleted the
pertinent language in this NPRM to conform with the revised delegation.
Section 1356.21 Foster Care Maintenance Payments Program
Implementation Requirements
In this section, we have clarified certain existing policies and
modified others which have a direct impact on determining the
eligibility of children in the title IV-E foster care program. We have
proposed additional foster care maintenance payment requirements, which
are consistent with the law and intent of Congress, that will apply to
States as they implement their title IV-E State plans.
Section 1356.21(a)
This paragraph remains unchanged from the current regulation.
Section 1356.21(b) Reasonable Efforts
We are amending the language at this section of the regulation to
implement the ASFA requirement that the State hold the child's health
and safety as its paramount concern when making reasonable efforts. The
reasonable efforts provision, as amended by the ASFA, has a threefold
purpose:
(1) To maintain the family unit and prevent the unnecessary removal
a child
[[Page 50073]]
from his/her home, when it can be done so without jeopardizing the
child's safety;
(2) If temporary out-of-home placement is necessary to ensure the
immediate safety of the child, to effect the expeditious reunification
of the child and family when reunification is the appropriate
permanency goal or plan; and,
(3) When reunification is not appropriate or possible, to effect an
alternate permanency goal in a timely manner.
During our consultation with the field, some recommended that we
define reasonable efforts in implementing the ASFA. We do not intend to
define ``reasonable efforts.'' To do so would be a direct contradiction
of the intent of the law. The statute requires that reasonable efforts
determinations be made on a case-by-case basis. We think any regulatory
definition would either limit the courts' ability to make
determinations on a case-by-case basis or be so broad as to be
ineffective. In the absence of a definition, courts may entertain
actions such as the following in determining whether reasonable efforts
were made:
Would the child's health or safety have been compromised
had the agency attempted to maintain him or her at home?
Was the service plan customized to the individual needs of
the family or was it a standard package of services?
Did the agency provide services to ameliorate factors
present in the child or parent, i.e., physical, emotional, or
psychological, that would inhibit a parent's ability to maintain the
child safely at home?
Do limitations exist with respect to service availability,
including transportation issues? If so, what efforts did the agency
undertake to overcome these obstacles?
Are the State agency's activities associated with making
and finalizing an alternate permanent placement consistent with the
permanency goal? For example, if the permanency goal is adoption, has
the agency filed for termination of parental rights, listed the child
on State and national adoption exchanges, or implemented child-specific
recruitment activities?
In order to strengthen the child welfare system's response to child
safety, Congress provided a list of circumstances in which reasonable
efforts are required. It also provided States the authority to identify
a list of aggravated circumstances in which reasonable efforts are not
required. Typically, State child welfare agencies and the courts
encounter cases in which it is appropriate to make reasonable efforts
to prevent a child's removal from home or to reunify the family. Quite
frequently, though, States are faced with circumstances in which it is
unclear how much effort is reasonable. At the initial stage of and
throughout its involvement with a family, the child welfare agency
assesses the family's needs and circumstances. The State agency should
make reasonable efforts to prevent the child's removal from home or to
reunify the family commensurate with the assessment . If the assessment
indicates that it is not reasonable to prevent the child's removal or
to reunify the family, the assessment itself satisfies the reasonable
efforts requirement, if the court makes such a determination. In such
cases, the court is not determining that reasonable efforts are not
required. Rather, the court is determining that it is not reasonable to
make efforts, beyond completing the assessment, to prevent the child's
removal from home or to reunify the family.
In proposing the application of the reasonable efforts requirements
for title IV-E eligibility determinations, this proposed rule effects a
significant change from existing policy. Under current ACF policy,
either a judicial determination regarding the reasonable efforts made
prior to the placement of a child or a determination to reunite the
child and parents, but not both, has been required for Federal
financial participation (FFP). Consistent with the statutory language
at section 472(a)(1) of the Act, we propose that, in order to satisfy
title IV-E eligibility requirements, there must be a judicial
determination that: (1) Reasonable efforts were made to prevent a child
from being removed from home; (2) reasonable efforts were made to
reunify the child with his/her family if the removal could not be
prevented; (3) if reasonable efforts were not made to prevent the
child's removal from home or to reunify the child with his or her
family, that reasonable efforts are/were not required; and (4) if the
permanent plan for the child is adoption, guardianship, or some other
permanent living arrangement other than reunification, that reasonable
efforts were made to make and finalize that alternate permanent
placement.
Section 1356.21(b)(1) Judicial Determination of Reasonable Efforts To
Prevent Removal in Non-emergency Situations
We propose to clarify the requirement that judicial determinations
of reasonable efforts to prevent removal in non-emergency situations
must be made prior to the removal of the child from home. If the
circumstances of the case were such that reasonable efforts were not
required, there must be a judicial determination to that effect.
Section 1356.21(b)(2) Judicial Determinations of Reasonable Efforts to
Prevent Removal in Emergency Situations
We propose new requirements regarding judicial determinations of
reasonable efforts to prevent removal in emergency situations in order
to take into account the fact that many children are removed from their
homes in emergency circumstances, primarily because of safety issues.
We are permitting State flexibility in the timing of this
determination in emergency situations, up to a maximum of 60 days,
recognizing that the initial proceeding leading to the removal may not
have been a full hearing. Additionally, the agency may not have had
time to prepare information regarding its reasonable efforts prior to
the emergency proceeding, nor would the judge have had time to make a
careful evaluation of such evidence. We think a 60-day period of time
is sufficient for involved persons to perform the appropriate duties,
while ensuring that a child is afforded the protection of the judicial
determination within a reasonable amount of time, irrespective of the
emergent circumstances leading to the removal.
While we recognize that concern for the child's safety may preclude
efforts to prevent removal, the court must make a reasonable efforts
determination. Even when children are removed in emergency
circumstances, the court must consider whether appropriate services
were or should have been provided. When the court determines that it
was reasonable for the agency to make no effort to provide services to
prevent removal in light of the exigent circumstances discovered
through the assessment of the family, such as the safety or protection
of the child, there must be a judicial determination to that effect.
If, at the time the court determines that reasonable efforts to prevent
a child's removal from home were not required, the court also
determines that reasonable efforts are not required to reunify the
child with his or her family, there must be a separate judicial
determination to that effect.
Section 1356.21(b)(3) Judicial Determination of Reasonable Efforts to
Reunify the Child and Family
We are proposing that a judicial determination of reasonable
efforts to
[[Page 50074]]
reunify be made at any time within a 12 month period following the date
the child enters foster care when the case plan goal is reunification,
and at least once every 12 months thereafter. Since the permanency
hearing must be held over the same 12 month interval, States may want
to consider seeking a judicial determination of reasonable efforts to
reunify at that hearing. Moreover, making reasonable efforts to reunify
the child and family affords the State the opportunity to assess the
appropriateness of reunification as a case plan goal and determine an
alternate permanency goal if necessary. Making reasonable efforts
typically provides the State the evidence it needs to support a
decision that an alternate permanency plan is appropriate. The State is
not precluded from seeking this determination at an earlier point in
time if it so chooses.
If the judicial determination regarding reasonable efforts to
reunify is not made within the proposed time frame, we propose that the
child become ineligible once 12 months has elapsed since the date the
child entered foster care or the most recent judicial determination of
reasonable efforts to reunify was made, and until such time as the next
reasonable efforts to reunify determination is made. We think this is
consistent with statutory intent to ensure that a State is continuing
to make reasonable efforts, subject to judicial review, to return a
child home as soon as it is safe and appropriate to do so.
If there is a judicial determination that reasonable efforts to
reunify the child with his or her family are not required and the State
has determined that it is not appropriate to attempt to reunify the
child with his or her family, a permanency hearing must be held within
30 days to establish an alternate permanent plan for the child. The
alternate permanency plan may be established at the same time the court
determines that reasonable efforts to reunify are not required.
Section 1356.21(b)(4) Judicial Determination of Reasonable Efforts to
Make and Finalize Placements When the Permanency Goal is Not
Reunification
We are proposing that the judicial determination regarding
reasonable efforts to make and finalize a permanent placement be made
within 12 months of the date the permanency goal of adoption,
guardianship, or some other permanent living arrangement is
established, and every 12 months thereafter. We considered requiring
this type of reasonable efforts determination to occur every six months
in response to the timeliness language in the statute but were
concerned about the burden this would impose on the State agency and
the courts. We would appreciate comments on the proposed time frame for
making judicial determinations of reasonable efforts to make and
finalize permanent placements.
If a judicial determination regarding reasonable efforts to make
and finalize a permanent placement is not made within the time frame
proposed, the child becomes ineligible under title IV-E from the end of
the twelfth month following the date the alternate permanency goal is
established, or the date of the most recent judicial determination of
reasonable efforts to make and finalize a permanent placement, and will
remain so until such a determination is made.
Section 1356.21(b)(5) Circumstances in Which Reasonable Efforts to
Prevent a Removal or to Reunify a Child With His or Her Family Are Not
Required
In this paragraph, we propose that the court that has
responsibility for hearing child welfare dependency cases must make the
determination that reasonable efforts to prevent a child's removal from
home or to reunify a child and family are not required. Depending on
the circumstances, this determination may be based on the findings of
another court or the findings of the court that is determining whether
reasonable efforts are required.
In subparagraph (i), the court that hears child welfare dependency
cases may find that the child has been subjected to aggravated
circumstances, if it has the authority to do so, and that reasonable
efforts are not required because the statutory language at section
471(a)(15)(D)(i) of the Act regarding aggravated circumstances does not
require a criminal conviction.
In subparagraph (ii), the court's determination that reasonable
efforts are not required must be based on the findings of a criminal
court. The statutory language at section 471(a)(15)(D)(ii) requires a
criminal conviction of one of the felonies identified therein. In
circumstances in which the criminal proceedings have not been completed
or are under appeal, the court that hears child welfare dependency
cases must determine whether reasonable efforts are required based on
the developmental needs of the child and the length of time associated
with completion of the criminal proceedings or the appeals process.
In subparagraph (iii), when the determination that reasonable
efforts are not required is based on a previous involuntary termination
of parental rights, that determination is clearly based on the findings
of another court decision.
During our consultation process, we heard that States wanted to
know if their laws must specifically use the ``aggravated
circumstances'' language in the ASFA and if we plan to provide a
definition of or parameters for defining ``aggravated circumstances.''
We do not think it is necessary or appropriate to be so prescriptive as
to require States to adopt the specific ASFA language in identifying
aggravated circumstances in which reasonable efforts are not required.
The ASFA clearly provides States the authority to determine what
``aggravated circumstances'' are. If a State already has laws that
would serve to define aggravated circumstances, it would not need to
amend or change those laws. We will not, therefore, define ``aggravated
circumstances,'' nor will we provide examples beyond those in the
statute.
States have expressed concern that the language at section
471(a)(15)(D) of the Act prohibits the State from making reasonable
efforts in certain circumstances. This is an incorrect interpretation.
The ASFA identifies when reasonable efforts are not required. The ASFA
upholds the State agency's authority to make reasonable efforts to
prevent a child's removal from home or to reunify a child with the
family even in situations in which it is not required to do so, if the
child's health and safety can be assured and it is in his/her best
interests.
Section 1356.21(b)(6) Concurrent Planning
This paragraph reiterates the statutory provision at section
471(a)(15)(F), affording States the option of making reasonable efforts
to make and finalize an alternate permanent placement concurrently with
reasonable efforts to reunify a child with his/her family. Concurrent
planning can be an effective tool for expediting permanency, and
Congress intended to offer it as such. However, since it may not be an
appropriate approach for every child or family, States are not required
to use concurrent planning and the decision to do so must be made on a
case-by-case basis. We urge States to obtain technical assistance and
provide appropriate training and supervision to agency workers prior to
deploying a concurrent planning strategy.
Section 1356.21(b)(7) Federal Parent Locator Service
The ASFA amended section 453 of the Act to specifically provide for
the
[[Page 50075]]
use of the Federal Parent Locator Service (FPLS) in expediting
permanency. We have included the use of the FPLS in the reasonable
efforts section of the regulation because Congress intended the FPLS to
be used as a tool for locating absent parents early in the case
planning process as a potential permanency option. Congress also
intended the FPLS as a tool for the States in completing termination of
parental rights proceedings.
Section 1356.21(c)(1) Contrary to the Welfare Determination--Non-
emergency Situations
We propose that in non-emergency situations the ``contrary to the
welfare'' determination must be made prior to the removal of the child
from home, and documented in the initial removal court order to enable
the child to be eligible for title IV-E foster care. The ``contrary to
the welfare'' determination is an important protection to safeguard the
rights of the child and his/her parents and to ensure appropriate
action by the State agency.
Section 1356.21(c)(2) Contrary to the Welfare Determination--Emergency
Situations
With regard to emergency situations, we propose that the ``contrary
to the welfare'' determination be included in the first court ruling
(including a temporary custody order, whether or not there was a
hearing) pertaining to removal.
The ``contrary to the welfare'' determination requirement in
section 472(a)(1) was a title IV-A provision dating back to 1961 which
was carried over into the title IV-E program. Congress included this
requirement in the belief that judicial oversight would prevent
unnecessary removal of children from their homes. It relied on the
courts to protect children and families, and to provide an important
safeguard against potential inappropriate agency action. The purpose of
the requirement is to minimize the number of children inappropriately
placed in foster care, and increase efforts at keeping families
together.
We do not intend to second guess the States as to when an emergency
exists and will, therefore, in the absence of contradictory
information, presume that there is an emergency when a child is removed
without a previously-issued court order (excluding those for previous
removals of the child, or in-home supervision orders). However, the
reasonable efforts determination must be made within a specified time
thereafter.
Section 1356.21(d) Documentation of Judicial Determinations
We have proposed modification of current documentation requirements
in paragraph (d) based on ACF's review of States' documentation of
judicial determinations over the past years. Consistent with language
in section 472(a)(1) of the Act, in paragraph (d)(1) we propose that
the judicial determinations regarding ``contrary to the welfare'' and
``reasonable efforts'' be stated specifically in the court orders
identified in Sec. 1356.21, paragraphs (b) and (c) and must include the
evidentiary basis for that determination. The judicial determinations
themselves need not necessarily include the exact terms ``contrary to
the welfare'' and ``reasonable efforts'', but must convey that the
court has determined that reasonable efforts have been made or are/were
not required (as described in section 471(a)(15) of the Act), and that
it would be contrary to the welfare of a child to remain at home. A
transcript of the court proceedings which verifies that the court
considered the facts of the case and made a finding with respect to the
reasonable efforts and contrary to the welfare requirements is the only
other form of documentation that will be accepted.
Given the fundamental importance of the protection of children as
required by the Act, we propose in paragraph (d)(2) that affidavits and
nunc pro tunc orders not be accepted as documentation of ``reasonable
efforts'' or ``contrary to the welfare'' findings for eligibility
purposes. Considering the large number of children for whom State
agencies are responsible, and the large number of cases that go before
the courts, affidavits or depositions created months or years after the
fact cannot be considered as reliable evidence of prior compliance with
Federal requirements. We believe that a prohibition on the use of
affidavits and nunc pro tunc orders is necessary in order to assure
children in foster care of the protections to which they are entitled
in a timely fashion.
In light of the significance of the judicial determinations, we are
proposing in paragraph (d)(3) that explicit evidence be provided that
the judge has made an individual determination which is to be stated in
the court order and not merely incorporated by reference to a State
law. We believe that judicial determinations should be as meaningful as
possible, and should be child-specific in order to ensure that the
circumstances of each child are reviewed individually. In the past, it
has been our experience that State laws often permit removal of a child
from home in a number of circumstances and not solely, for example,
based on a determination that remaining in the home would be contrary
to the child's welfare. When State law cites a number of circumstances
under which a child may be removed, it is not possible for a reviewer
to determine for which reason the judge authorized that removal.
However, even if State law allows only one reason for removal which
does meet Federal requirements, we are still proposing to require an
explicit determination.
Section 1356.21(e) Trial Home Visits
We believe that six months is a reasonable period of time for
States to determine the appropriateness of a child remaining at home or
returning to foster care, absent a court order that extends or shortens
the period of time. This is consistent with the statutory requirement
for the status of the child to be reviewed every 6 months. During the
period of time in which the child is on a trial home visit, no title
IV-E foster care maintenance payments are made since she/he is not
placed in a foster home or child care facility. However, administrative
costs may be incurred on behalf of the child and claimed subsequently
by the State agency. If the child is returned to foster care within the
six month period, the placement is considered continuous and title IV-E
foster care maintenance payments may resume, assuming all eligibility
requirements continue to be met.
Section 1356.21(f) Case Review System
Paragraph (c) in this section of the current regulation has been
re-designated paragraph (f).
Section 1356.21(g) Case Plan Requirements
Paragraph (d)(1)-(4) in this section of the current regulation has
been re-designated paragraph (g)(1)-(4). In paragraph (g)(1), we
propose that case plans be developed jointly with parents. We believe
this language serves the goal of the ASFA to begin the permanency
planning process and service delivery as soon as possible following a
child's removal from home. If the parent is not able or willing to
participate in the development of the case plan, it should be so noted
in the plan. We have also amended paragraph (g)(3) to include the ASFA
case plan requirement for States to include a discussion of the
reasonable efforts made to make and finalize a permanent placement for
the child in the case plan when the permanency goal is adoption or any
other permanent arrangement. A State must document its
[[Page 50076]]
efforts to make and finalize permanent placements for all permanency
goals. States should not interpret the statutory reference to adoption
exchanges as meaning this provision only applies to adoptions. The
statutory reference to the use of adoption exchanges was an example of
the types of efforts a State should make to make and finalize permanent
placements. Although placement in a permanent foster family home is not
a preferred permanency goal, it can be an appropriate one for some
children. Prior to establishing such a goal for a child, the State
should exhaust all efforts to place that child in an adoptive home,
with a legal guardian, or some other permanent arrangement outside the
foster care system.
Section 1356.21(h) Application of Permanency Hearing Requirements
We have redesignated paragraph (e) as paragraph (h), revised it to
recodify existing language, added four new provisions, and changed the
name to permanency hearing, consistent with ASFA.
In redesignated paragraph (h)(2), language has been added to
clarify that the exception to the requirement for permanency hearings
applies only to children placed in a court-specified long-term,
permanent foster family home placement (not in an institution or other
group living arrangement). We also propose that a permanency hearing be
conducted within three months of any change in a court-sanctioned long-
term, permanent foster family care placement. Under the existing
regulations, this exception also applies to children who were legally
freed for adoption and placed in a preadoptive home. Consistent with
the intent of the ASFA, children in such circumstances must be afforded
the protection of permanency hearings until the adoption is finalized.
In new paragraph (h)(3) we describe the requirement of amended
section 471(a)(15)(E) of the Act to hold a permanency hearing within 30
days of a judicial determination that reasonable efforts are not
required. We have written the regulation to clarify that States need
not hold a permanency hearing within 30 days if the court finds that
reasonable efforts to prevent a child's removal from home are not
required. A determination that reasonable efforts to prevent the
child's removal are not required does not negate the State's obligation
to make reasonable efforts to reunify the child. Only a judicial
determination that reasonable efforts to reunify a child with his or
her family are not required relieves the State of that obligation.
Consequently, the permanency hearing must be held within 30 days of the
determination that reasonable efforts to reunify the family are not
required.
The statute allows the State to set an alternate permanency goal of
placement in a permanent foster family home only if it demonstrates to
the court a compelling reason not to place the child in an adoptive
home, with a relative, or with a legal guardian. In new paragraph
(h)(4), we follow the statute in requiring the State to document, to
the State court, the compelling reason for placement in a permanent
foster family home.
In new paragraph (h)(5) we clarify that if an administrative body,
appointed or approved by a court, holds a permanency hearing,
procedural safeguards extended to parents in court hearings must also
be extended to the parents by the administrative body.
Section 1356.21(i) Requirements for Filing a Petition to Terminate
Parental Rights per Section 475(5)(E) of the Social Security Act
In this section, we describe the new requirements at section
475(5)(E) of the Act for termination of parental rights (TPR). Congress
passed this provision to compel States to quickly move those children
for whom adoption is the appropriate plan to permanency. It is not
intended to create a pool of legal orphans. Misinterpretation of the
reasonable efforts requirements and other factors have resulted in
children remaining in foster care for extended periods of time while
the State agency works to make the child's home safe for his or her
return. Congress passed this provision to end children's languishing in
foster care.
In paragraph (i)(1), we follow the statute in describing under what
conditions the State, through its authorized attorney, must file or
join a petition for TPR in accordance with section 475(5)(E) of the
Act.
In subparagraph (i)(1)(i), we propose the requirements for filing
or joining a petition to terminate parental rights when a child has
been in foster care for 15 of the most recent 22 months. We are
proposing that in such situations, the State must file the petition for
TPR by the end of the fifteenth month. We think that 15 months is more
than an adequate amount of time for States to assess whether
reunification is possible and if adoption is the most appropriate
permanent plan.
In subparagraph (i)(1)(i)(A), in accordance with the statute, we
propose that States must begin calculating when to file the petition
for TPR beginning on the date the child enters foster care under
section 475(5)(F).
In subparagraph (i)(1)(i)(B), we propose that for the purpose of
implementing the TPR provision for children with multiple foster care
placement episodes within the 22 month period, the State must use a
cumulative method of calculating 15 months in foster care. For example,
a child enters foster care on January 15, 2001 and is discharged from
foster care three months later on April 15, 2001. He remains home for
six months and then enters foster care again on October 15, 2001. The
State must apply the TPR requirement at section 475(5)(E) with respect
to this child based on the date he entered foster care for the first
foster care episode, or January 15, 2001. If this child remains in
foster care for another 12 months, the State will be obliged to comply
with section 475(5)(E) on October 15, 2002, because this child will
have been in foster care for a cumulative total of 15 out of the
previous 22 months. However, the time line for conducting case reviews,
permanency hearings, and providing time-limited reunification services
for the subsequent foster care episode must be based on the date the
child entered foster care for that episode, October 15, 2001.
If the child in the above scenario does not return to foster care
until January 15, 2003, the State must begin calculating a new 15 out
of 22 month period for applying section 475(5)(E), the other case
review requirements, and providing time-limited reunification services
as of January 15, 2003, because this most recent date of entry into
foster care is more than 22 months after the date the child entered
foster care during the prior episode.
In subparagraph (i)(1)(i)(C), we propose that the State not count
time spent on trial home visits or runaway episodes when calculating 15
out of 22 months.
Finally, in subparagraph (i)(1)(i)(D), we propose that States need
only apply section 475(5)(E) to a child once. If, when a child reaches
15 months in foster care, the State does not file a petition for TPR
because one of the exceptions applies, or the State does file such a
petition but the court does not sustain that petition, the State does
not need to begin calculating another 15 out of 22 months in foster
care for that child. We think the requirements at sections
471(a)(15)(C) and (E) and 475(1)(E) of the Act regarding reasonable
efforts to make and finalize alternate permanency placements and the
requirements at section 475(5)(C) of the Act regarding permanency
hearings
[[Page 50077]]
provide children sufficient protections with respect to achieving
permanency, thereby removing the need to require multiple applications
of section 475(5)(E) of the Act. However, this does not preclude the
State from filing, or the court from ordering, a petition for TPR upon
later review if the permanency plan has not been achieved.
In subparagraph (i)(1)(ii), we propose that, once a court of
competent jurisdiction (this could be the court that has responsibility
for hearing child welfare dependency cases) determines that a child is
an abandoned infant, the State has up to 60 days to file a petition for
termination of parental rights. We chose 60 days because this time
frame allows the State ample time to hold a permanency hearing, if
adoption is not established as the permanency goal at the hearing in
which the child is determined to be an abandoned infant, and to
complete the necessary procedures associated with filing a petition for
termination of parental rights. States have asked if we intend to
provide a definition of or parameters for the definition of ``abandoned
infant.'' The statute specifically provides that authority to the
States. If a State already has a statutory definition of
``abandonment,'' it is not necessary to enact statutory language
specific to abandoned infants.
In subparagraph (i)(1)(iii), we propose that the State agency file
a petition to terminate parental rights within 60 days of a judicial
determination that reasonable efforts to reunify the child and family
are not required because the parent has been found by a court of
competent jurisdiction to have committed one of the felonies listed at
paragraph (b)(5)(ii). We believe that 60 days from the judicial
determination that reasonable efforts to reunify the family are not
required is ample time for the State to hold a permanency hearing, if
adoption is not established as the permanency goal at the time the
court determines that reasonable efforts are not required, and to
complete the necessary procedures for filing a petition to terminate
parental rights. We have attempted to interpret the requirements for
filing a petition for TPR when the parent has committed certain
felonies based on how we think these circumstances will present
themselves in actual practice situations and to demonstrate the
relationship between sections 471(a)(15)(D) and (E) of the Act and
section 475(5)(E) of the Act. The following examples illustrate how the
foregoing procedure would operate:
(1) A parent with two children has been convicted of one of the
felonies enumerated at paragraph (b)(5)(ii) with respect to the older
child. The State agency petitions the court for jurisdiction of the
younger child and recommends that it not be required to make reasonable
efforts to reunify the younger child with the parent because of the
criminal conviction against the parent with respect to the older child,
and it does not believe the parent can be rehabilitated. The court
determines, in accordance with section 471(a)(15)(D) of the Act, that
reasonable efforts to reunify the younger child with the parent are not
required. In accordance with section 471(a)(15)(E) of the Act, the
State must hold a permanency hearing within 30 days of the judicial
determination that reasonable efforts to reunify the parent and child
are not required. If adoption becomes the permanency goal, the State
then has 30 days from the permanency hearing to file a petition to
terminate parental rights.
(2) A parent is convicted of one of the felonies listed in
paragraph (b)(5)(ii), serves his/her sentence and is released from
prison, and subsequently comes to the attention of the State agency due
to neglect. The State agency petitions the court for jurisdiction of
the child and recommends a permanency plan of reunification because it
believes the parent can be rehabilitated. The court's approval of
reunification as the permanency plan is the compelling reason for the
State not to file a petition to terminate parental rights in accordance
with section 475(5)(E) of the Act. The State would then be obliged to
hold a permanency hearing within 12 months of the child's entry into
foster care.
In paragraph (i)(2), we follow the statute in identifying the
exceptions to section 475(5)(E) of the Act. The decision to seek
termination of parental rights is one of the most difficult to confront
social workers and State agencies. Section 475(5)(E) of the Act is
intended to be a catalyst for making critical assessments of and
decisions regarding the viability and probability of reunification and
for expediting the adoption process when it is clear that reunification
can not occur and adoption is the appropriate plan. Congress did
recognize that, despite a family's diligent efforts, 15 months may be
an inadequate amount of time to make the home safe for the child's
return. Therefore, it stipulated three exceptions to section 475(5)(E).
In paragraph (i)(2)(i), we propose that the State may exercise its
statutory option to not apply section 475(5)(E) of the Act when a child
is placed with a relative.
In paragraph (i)(2)(ii), we propose that the State does not have to
apply section 475(5)(E) of the Act when there is a compelling reason,
documented in the case file and available for court review, for
determining that the application of section 475(5)(E) is not in the
child's best interests. We have not defined the term ``compelling
reason.'' Rather, we provide two broad examples:
(1) Adoption is not the appropriate plan for the child. This
category could include cases where an older child expresses a wish not
to be adopted and another permanency plan has been identified, a child
has a significant bond with a non-family member who wishes to serve as
legal guardian, the parent and child have a significant bond but the
parent is unable to care for the child because of an emotional or
physical disability and another permanency plan has been identified, or
the State agency and the Tribe have identified another permanency plan
for the child; or,
(2) Insufficient grounds for filing such a petition exist. This
category could include cases where the parent has made significant
measurable progress and continues to make diligent efforts to complete
the requirements of the case plan but needs more than 15 months to do
so, the State agency is working with a non-offending biological parent
to establish a permanent placement, or the State need not join an
existing petition if it does not agree with the arguments presented in
the petition or it believes that the petitioner would not serve as an
appropriate placement option for the child.
In paragraph (i)(2)(iii), we follow the statute in proposing that
the State need not apply section 475(5)(E) when the services identified
in the case plan have not been provided.
We think it is critical that we assess States' implementation of
this new provision for terminating parental rights, particularly the
extent to which States make use of the exceptions discussed above. In
the self-assessment completed for the child and family services
reviews, States will be asked to document the extent to which they make
use of the exceptions provided at section 475(5)(E) of the Act.
During the consultation process we learned of confusion regarding
the requirements for the court with respect to the compelling reason.
We are not interpreting the statutory language which requires that the
documentation of the compelling reason be ``* * * available for court
review * * *'' as a requirement that the court make a determination
with respect to the compelling reason. To interpret this language as
requiring a court
[[Page 50078]]
determination with respect to the compelling reason not to file a TPR
would place an unnecessary additional burden on the State agency and
the courts. We do anticipate, however, that the court will have the
opportunity to review the compelling reason not to file for TPR as part
of its ongoing oversight.
In paragraph (i)(3), we follow the statute in requiring States to
concurrently identify, recruit, process, and approve a qualified
adoptive family for the child when it files for or joins a petition to
terminate parental rights to that child.
Section 1356.21(j) Child of a Minor Parent in Foster Care
In this section, we paraphrase statutory language found in section
475(4)(B) of the Act.
Section 1356.21 (k) and (l) Removal From the Home of, and Living With,
a Specified Relative
In paragraphs (k) and (l), we propose a new policy regarding the
requirements in sections 472(a) (1) and (4) of the Act regarding a
child's removal from the home of a relative and the six month ``living
with'' exception. The purpose of this new policy is to provide a clear
statement about what constitutes a child's home or foster home for the
purpose of title IV-E eligibility and to ensure equitable treatment of
relative and non-relative foster care providers.
Eligibility for foster care under title IV-E, which is based on the
child's eligibility for AFDC (as in effect in the State on July 16,
1996), derives from the title IV-A (AFDC) requirement that the child
must be living in the home of a relative specified in section 406(a) of
the Act (as in effect on July 16, 1996). To be eligible for title IV-E,
the child must have been eligible for AFDC in the month court
proceedings leading to removal were initiated or the month in which a
voluntary placement agreement was signed. If the child had not been
living with a specified relative in the month that removal proceedings
were initiated or the voluntary agreement was signed, s/he must have
been: (1) Living with such a relative at some time within the previous
six months; and (2) AFDC eligible in the month of the initiation of
court proceedings leading to removal or the voluntary agreement if the
child had still been living with such relative in that month.
Obviously, the child must continue to be eligible at the time of entry
into foster care as well as throughout the placement.
In the absence of regulations specific to the foster care program,
we have previously followed the AFDC regulations at 45 CFR
233.90(c)(l)(v)(B). Under the AFDC definition, the child's home is the
family setting maintained or in the process of being established as
evidenced by assumption and continuation of responsibility for the day-
to-day care and control of the child by a relative with whom the child
is living, if the relative is one of specified degree. Under current
policy, if a parent who is eligible for AFDC leaves a child with
another relative and does not return, the child's home is considered to
have shifted to the home of the other relative. If legal custody or
responsibility for placement and care is given to the State agency and
the child remains with the relative, such transfer of responsibility
does not constitute removal, and the child is therefore ineligible for
title IV-E foster care. Thus, current policy does not recognize that
there can be a temporary or indefinite stay with another relative
without that relative's home becoming the child's home.
Under the proposed policy change, an otherwise eligible child who
had been living with a parent or other specified relative within six
months of the initiation of court proceedings or a voluntary placement
agreement would meet the ``living with'' requirement under the title
IV-E foster care program, regardless of the child's relationship to the
interim caretaker and regardless of whether the interim caretaker
becomes the subsequent foster care provider. The removal of the child
from the home of a specified relative within the six-month period can
be either a physical removal or a court-ordered removal of custody.
The following examples illustrate the operation of the proposed
rule:
(1) An AFDC eligible parent leaves the child with either a relative
or a non-relative caretaker for the weekend. Two months later the
parent has not returned. The caretaker contacts the State agency which
petitions the court to remove the child from the parent's custody due
to neglect. The court grants the petition and the State agency assumes
responsibility for placement and care. The agency licenses the same
caretaker's home as a foster home and decides that the child should
remain with this caretaker for the purpose of foster care. The AFDC
eligible child had been living with the parent within six months of the
initiation of court proceedings. Under the proposed regulation
(paragraph (j)(1)(iii) of Sec. 1356.21), the court's authorization of
the removal of the child from the parent's custody would meet the
eligibility requirements in section 472(a)(1) and the fact that the
child had been living with the parent within six months of the date of
petition would meet the eligibility requirements in section
472(a)(4)(B)(ii). Thus, the child, if otherwise eligible, would be
eligible for title IV-E foster care.
(2) The same situation as in (1) above exists, but the caretaker
waits seven months to contact the agency and the agency makes the
caretaker the foster care provider. The child would not be eligible for
title IV-E foster care, regardless of whether the caretaker is or is
not a relative, because she/he had not been living with the parent
within six months prior to the initiation of court proceedings
pertaining to removal. Thus, the requirements of section 472(a)(4)(B)
and subsection (j) of Sec. 1356.21 would not be met.
(3) An AFDC eligible parent leaves the child with a relative and
does not return. The relative, who meets the AFDC eligibility criteria,
keeps the child for seven months, but then requests that the child be
removed and placed in a foster home. The State agency petitions the
court to remove the child from the parent's custody. The court grants
the petition and gives the State agency responsibility for placement
and care. Although the court removes custody from the parent, the child
is physically removed from the caretaker relative's home and is placed
in a licensed foster family home. The child is eligible for title IV-E
foster care because she/he has been physically removed from the home of
a specified relative within six months of initiation of court
proceedings and was eligible for AFDC while living there, and the
``living with'' requirement has been met, thus meeting the requirements
of section 472(a)(1) and 472(a)(4)(B).
(4) The same situation as in (3) above exists, but the child had
been living with a non-relative caretaker for seven months prior to
placement in foster care. She/he would be ineligible for title IV-E
foster care since the ``living with'' requirement of section
472(a)(4)(B) would not have been met.
(5) A parent and child live in the home of the parent's mother, all
of whom are eligible for AFDC. The parent leaves the home and does not
return. Four months later, the child's grandmother contacts the State
agency which petitions the court to remove the child from the parent's
custody due to her neglect. The court grants the petition and gives the
State agency responsibility for placement and care. The agency licenses
the grandmother's home as a foster home and decides that the child
should remain with this relative caretaker for the purpose of foster
care. Since the child had been living with the parent within six months
of the initiation of court proceedings
[[Page 50079]]
and the court authorized removal of the child from the parent's
custody, this would meet the eligibility requirements in sections
472(a)(1) and 472(a)(4)(B) and the otherwise eligible child would be
eligible for title IV-E foster care. If the grandmother had waited
longer than six months to contact the agency, the child would have been
ineligible for title IV-E foster care in her home. However, if the
grandmother had waited longer than six months to contact the agency and
the agency physically removed the child from the grandmother and placed
him/her in another licensed home for the purpose of foster care, the
child would be eligible for title IV-E foster care because the child's
eligibility is then tied to the grandmother.
We think that the proposed policy which expands the circumstances
in which a child may remain with a relative and be eligible for foster
care accords with the statutory purposes. Foster care placement with
relatives can provide continuity during the period of separation from
the parent and enhance the possibility that a child will ultimately be
able to return home.
Section 1356.21 (m) and (n) Review of Payments and Licensing
Standards; Foster Care Goals
Paragraphs 1356.21(g) and (h) in the current regulation have been
re-designated paragraphs (m) and (n), respectively.
Section 1356.21(o) Notice and Opportunity To Be Heard
In this paragraph, we implement the new requirement for the case
review system at section 475(5)(G) of the Act that mandates giving
notice to foster parents, preadoptive parents and relative caregivers
of hearings and reviews and provides them an opportunity to be heard.
While Congress recognizes foster parents, preadoptive parents, and
relative caregivers as a valuable resource in obtaining information
regarding the progress of a case and in permanency planning, it
intended only to provide these individuals an opportunity to provide
input regarding the children in their care. Congress did not intend
giving notice of and an opportunity to be heard to be construed as
providing these individuals standing as a party to the case, as stated
in the statute and proposed regulation. This provision does not,
however, preclude the court from awarding foster parents, preadoptive
parents, and relative caregivers standing. Foster parents, preadoptive
parents, and relative caregivers must receive notice of permanency
planning hearings and reviews that occur while a child is placed with
them. We do not intend to prescribe how this noticing should occur. We
presume that a State will use the same procedure for giving notice to
foster parents, relative caregivers, and preadoptive parents as it does
for parents and others who are parties to the case.
Section 1356.22 Implementation Requirements for Children Voluntarily
Placed in Foster Care
This section has been redesignated and revised by updating the
statutory and regulatory provisions which include the requirements a
State must meet in order to receive title IV-E funds for voluntary
foster care placements. The ASFA requirements, including expedited
termination of parental rights, apply to all children in foster care,
regardless of whether the child entered as a result of a voluntary
placement agreement.
Section 1356.30 Safety Requirements for Foster Care and Adoptive Home
Providers
In paragraph (a), we propose that the State conduct or require
criminal records checks for prospective foster and adoptive parents
unless it elects to ``opt out'' of this provision as provided for at
section 471(a)(20)(B) of the Act. Section 471(a)(20) applies to all
foster parents, including those foster family homes that operate under
the auspices of a child placing agency's license rather than their own
license.
In paragraph (b), we propose that the State may not license or
approve any prospective foster or adoptive parent, nor may the State
claim Federal reimbursement for any foster care maintenance or adoption
assistance payment made on behalf of a child placed in a foster home
operated under the auspices of a child placing agency or on behalf of a
child placed in an adoptive home through a private adoption agency, if
the State finds that the prospective foster/adoptive parent has been
convicted of a felony involving child abuse or neglect, other crimes
against children, spousal abuse, or a violent crime.
In paragraph (c), we propose that the State may not license or
approve any prospective foster or adoptive parent, nor may the State
claim Federal reimbursement for any foster care maintenance or adoption
assistance payment made on behalf of a child placed in a foster home
operated under the auspices of a child placing agency or on behalf of a
child placed in an adoptive home through a private adoption agency, if
the State finds that the prospective foster/adoptive parent has, within
the last five years, been convicted of a felony involving physical
assault, battery, or a drug-related offense.
In paragraph (d), we follow the statute in describing the means by
which the State can elect not to conduct or require criminal records
checks: a letter from the Governor to the Secretary indicating the
State has made such an election or through State legislation. States
should note that, because of the statutory connection to licensing and
reimbursement for foster care maintenance and adoption assistance
expenditures, conducting criminal records checks is an allowable title
IV-E administrative expenditure.
We used the language ``conduct or require'' with respect to the
State agency's role in obtaining criminal records checks because we do
not intend to hold the State responsible for conducting criminal
records checks on the employees of the child placing agencies with
which it contracts for foster family placements. However, the State
must have documentation that these checks have occurred before claiming
title IV-E reimbursement for children placed with contractors.
In paragraph (e), we propose that, for all foster care placements
and prospective adoptive homes where a criminal records check of the
caretaker(s) has not been performed, the State must document, in the
licensing file of that provider, the process or procedures it has
undertaken to meet the safety requirements at section 475(1) of the
Act.
This requirement applies to all foster family homes, adoptive
homes, relative caregivers, and the staff of child care institutions.
Section 475(1), as amended by the ASFA, requires States to ensure the
safety of foster care and adoptive placements. The State may claim the
cost of conducting this procedure as a title IV-E administrative
expenditure, as it would if it elected to conduct criminal records
checks.
During the consultative process we learned that there is confusion
in the field regarding the ``final approval'' language in section
471(a)(20) of the Act. Final approval means full licensure or approval.
Furthermore, States cannot claim Federal financial participation (FFP)
for foster care maintenance and adoption assistance payments until all
title IV-E eligibility criteria are met. Criminal records checks are a
title IV-E eligibility requirement because licensure, in part, is
predicated on such checks. Therefore, the State may not claim FFP until
the criminal record
[[Page 50080]]
check has been completed and the foster or adoptive parent has final
approval. The same holds true in those situations where the State
chooses to comply with section 475(1) through some procedure or process
other than a criminal records check.
We were asked during the consultation process if the ASFA requires
criminal records checks at the State level, Federal level, or both.
There is no statutory language that would suggest an answer to this
question. Therefore, the State may exercise its discretion in choosing
whether to conduct criminal records checks at the State or Federal
level.
Section 1356.71 Federal Review of the Eligibility of Children in
Foster Care and the Eligibility of Foster Care Providers in Title IV-E
Programs
Although Federal standards and guidelines for title IV-E
eligibility reviews have been previously issued in different forms of
ACF policy memoranda, this is the first time they have been published
in accordance with the rulemaking process. We have taken the
opportunity to review these standards in the context of ACF's overall
review strategy, and determined that some changes are warranted. The
following paragraphs highlight the significant changes which we are
proposing in this section, and the underlying rationales.
Section 1356.71(b) Composition of Review Team and Preliminary
Activities Preceding an On-Site Review
In paragraph (b)(1), we propose that State agency staff participate
in eligibility reviews as part of the review team. Our experience when
conducting pilot reviews in conjunction with State staff proved to be
an excellent example of how Federal and State staff can work together
as partners. The experience of reviewing case records to ascertain
whether appropriate documentation was in the record was often as useful
and enlightening to State staff as it was to their Federal
counterparts. As a result of their participation, State representatives
could more easily pinpoint deficiencies and plan corrective action
accordingly. Federal staff were able to provide immediate technical
assistance to State staff as issues presented themselves, thereby
increasing their knowledge base.
Paragraph (b)(2) proposes that the State agency provide ACF with
the complete payment history for each of the 88 sample and oversample
cases (or 165 cases, if a second review is warranted) prior to the on-
site review. This information will enable ACF at the exit conference to
provide the State agency with preliminary estimates of the potential
disallowance (if any) of title IV-E funds based on the number of cases
initially determined to be ineligible. Access to this information early
in the review process will also prevent later delays in the calculation
of final disallowances and the preparation of the final report.
Section 1356.71(c) Sampling Guidance and Conduct of Review
We propose that data reported in the Adoption and Foster Care
Analysis and Reporting System (AFCARS) and transmitted to ACF by State
agencies for the most recent reporting period be used by ACYF
statisticians to select the title IV-E foster care sample of children
to be reviewed. The ``period of review'' will coincide with the AFCARS
reporting period, which is currently six months in duration. This
procedure will reduce the burden on States (in the past, some States
had elected to draw their own samples), promote uniformity in sample
selection, and utilize the AFCARS database in a practical and
beneficial way. If the AFCARS data for the most recent reporting period
are not available or are deficient, an alternative sampling frame will
be selected in conjunction with the State agency for the period of time
comparable to the most recent AFCARS reporting period.
In determining the sample size for this new review system, we
elected not to rely on or replicate that used in the prior review
system, 50 cases. We originally planned to use a ``discovery'' sampling
methodology with respect to the initial review. However, by definition,
this would have resulted in a State being in non-compliance if one or
more cases were found to be ineligible by the review team.
Therefore, after deliberating over various combinations of sample
sizes and critical numbers of ineligible cases, a more reasonable
``acceptance'' sampling methodology requiring a sample size of 80 (plus
a 10 percent oversample of eight cases) with a critical number of eight
(ineligible cases) is proposed based on the following information.
According to Appendix D: Table for Determining Minimum Sample Size
and for Evaluating Attributes Sample Results in Practical Statistical
Sampling for Auditors by Arthur J. Wilburn (A copy is reprinted at
Attachment B at the end of this Preamble with permission of the
publisher), there is an 88 percent probability that the population
ineligibility case error rate (case error rate) in a universe size that
exceeds 1000 is less than 15 percent when the number of ineligible
cases is less than or equal to eight. (Wilburn's text is found in a
1984 publication by Marcel Dekker Inc. called STATISTICS: Textbooks and
Monographs series, volume 52). This probability is sufficiently high
for ACF to propose that a case error rate of less than 15 percent be
utilized as the standard by which States will be determined to be in
compliance. We are proposing a higher case error rate than that
previously used in title IV-E reviews (the previous standard was a 10
percent error rate) in recognition of the fact that States will need
some time to modify procedures and/or implement system modifications to
comply with the proposal requiring documentation of judicial
determinations of ``reasonable efforts'' to reunify a child and family,
to make and finalize a permanent placement when the case plan goal is
not reunification, and that reasonable efforts to prevent a removal or
to reunify a child with his or her family are not required. We are
proposing that, after a three-year transition period, the case error
rate threshold revert to less than 10 percent, with the critical number
of ineligible cases equal to four in a sample of 80 cases. Under the
proposed rule, States in which cases were determined to be ineligible
would be subject to disallowances equivalent to the amount of payments
associated with those cases for the entire period of time they have
been determined to be ineligible.
We also propose that States in which ACF has made a final
determination of substantiated ineligibility for nine or more cases
undergo a second eligibility review following the completion of their
program improvement plans (see paragraph (i) of this section). It is
anticipated that the successful implementation of the program
improvement plan will contribute significantly to the correcting of
deficiencies identified during the first review and, as a consequence,
result in smaller disallowances. Upon completion of the subsequent
review consisting of 150 cases, we propose that disallowances be made
based on an extrapolation from the sample to the universe of payments
made during the period reviewed. (This larger sample size is necessary
in order to accommodate the extrapolation procedure and ensure its
statistical validity). Critical values that will determine whether an
extrapolated disallowance will be assessed against the State will be
the same as those utilized in previous eligibility reviews to determine
whether a stage two review would be conducted, that is, both the
[[Page 50081]]
case and dollar error rates will have to exceed 10 percent. (Case and
dollar error rates are determined by dividing the number of cases in
the sample, and the total of their associated payments, by the number
of ineligible cases and the total of their associated payments,
respectively). If either or both of these error rates is less than 10%,
there will be no extrapolation and the disallowance amount will be
computed only on the basis of payments associated with ineligible cases
for the period of time they have been determined to be ineligible.
Section 1356.71(e) Review Instrument
The eligibility review checklist which has been used in past on-
site reviews has undergone significant modification in order to
accommodate policy changes reflected in this proposed rule. It has been
repeatedly tested during pilot reviews conducted by ACF in fiscal years
1995 through 1998.
State agencies and ACF Regional Offices participating in these
reviews were asked to evaluate the checklist and provided comments on
its format, language, and content. ACF will make available to the
States copies of the checklist upon publication of the final rule.
Section 1356.71(f) Eligibility Determination--Child
In this paragraph, we propose that the case record contain proper
and sufficient documentation, in accordance with paragraph (d)(1) to
verify a child's eligibility.
Section 1356.71(g) Eligibility Determination--Provider
In order to ascertain that children are being properly placed in
foster care provider facilities which are in compliance with statutory
requirements contained in sections 472(c), 471(a)(20), and 475(1)(A) of
the Act, we propose that the State agency make available pertinent
licensing files to the review team. These files must contain the
licensing history, including documentation in the form of letters of
approval or certificates of licensure/approval, and substantiate that
for each case being reviewed the facility(ies) in which the child is
placed is(are) licensed or approved (during the period of care under
review) by the agency in the State responsible for this activity. The
licensure or approval must be in accord with standards established by
the State which are consistent with recommended standards of national
organizations for the licensure of foster homes and institutions and
include documentation that safety requirements per Sec. 1356.30 have
been met. If the licensing file does not contain sufficient information
to support a child's placement in a facility, as determined by the
reviewer, then the State agency may provide supplemental information
via access to other resources, for example, a computerized database.
Failure to provide appropriate documentation supporting a child's
placement in a properly licensed or approved facility will result in a
finding of ineligibility for the case for a specified period of time.
In determining the period of ineligibility, any foster care home or
facility that is licensed for a portion of a month will be considered
to have been licensed that entire month.
Section 1356.71(h) Standards of Compliance
In this section, we propose definitions of ``substantial
compliance'' and ``non-compliance'' so that ACF will be able to make
this determination, and so that State agencies will know beforehand the
standard to which they must adhere. When discussing what a reasonable
standard of compliance might be for States to meet, we considered
retaining a 10 percent error rate which had been the standard used in
earlier reviews to determine whether or not a State had to undergo a
stage two review. If we apply this standard in future reviews where we
plan to examine a sample of 80 foster care cases, it means that, in
accordance with ``acceptance'' sampling methodology, a State's case
records could contain no more than four errors (ineligible cases) if it
is to be in ``substantial compliance'' with statutory and regulatory
eligibility requirements. This determination, in conjunction with the
recognition that States in the future will need to document judicial
determinations of ``reasonable efforts'' to reunify a child and his/her
family and to make and finalize alternate permanent placements, leads
us to believe that maintenance of the 10 percent error rate for the
initial review would be too stringent under these circumstances.
Therefore, we propose as a new standard an acceptable error rate of
less than 15 percent, thus permitting a State to have as many as eight
errors (ineligible cases) within a sample of 80 cases and still be in
``substantial compliance'' for its initial review. However, we propose
that three years after the date the final regulation becomes effective,
this error rate decrease to 10 percent based on the expectation that
States will have had sufficient time to modify their procedures to
accommodate the new requirements regarding the documentation of
judicial determinations of ``reasonable efforts'' to reunify the family
and to make and finalize alternate permanent placements.
Section 1356.71(i) Program Improvement Plans
We propose in paragraph (i)(1) to require that States determined
not to be in substantial compliance develop a program improvement plan
designed to correct the areas of non-compliance, and that it be
developed jointly between the State and ACF in keeping with the desire
to promote State and Federal partnerships through the reviews. Under
the former title IV-E review process, ineligible title IV-E payments
were identified and, if claimed by States, were subsequently
disallowed. While this procedure, in most cases, allowed for the
recovery of funds by ACF, it did not necessarily lead to correcting the
deficiencies identified by reviewers. We propose that the program
improvement plan identify action steps to be taken by the State to
correct deficiencies identified by the review team, and that each
action step have a projected completion date which will not extend more
than one year from the date the program improvement plan is approved by
ACF. (When a legislative change is necessary to bring a State into
substantial compliance, an extension of the one-year time frame may be
negotiated between the State agency and ACF). This will assure that
proper attention is given to correcting deficiencies in a timely
manner. In this way, by identifying the problems, proposing solutions,
and implementing corrective action, we expect to remove the basis for
future adverse findings of non-compliance.
Approval of the program improvement plan means that ACF is in
agreement with the information provided within it, and does not mean
that a State can be assured of being in ``substantial compliance''
following a subsequent review of its case records.
In paragraph (i)(2), we propose that the State agency submit a
program improvement plan to ACF within 60 days after receiving
notification that it is not in substantial compliance. We think a
period of 60 days is adequate for a program improvement plan to be
developed, since the on-site review will have identified the reasons
for disallowing certain cases, and it is our intention to convey this
information to the State agency verbally at the exit conference as well
as in the letter of notification following the review. However, if the
State agency and ACF need more time to submit and/or review additional
documentation in support of
[[Page 50082]]
cases determined to be ineligible, a 30-day extension may be granted to
accommodate this task. We would appreciate comments as to whether the
time frame for the joint development of the program improvement plan is
adequate as proposed.
Section 1356.71(j) Disallowance of Funds
We propose that the amount of funds to be disallowed be determined
by the extent to which a State is not in compliance with eligibility
requirements. A State which is in ``substantial compliance'' would have
its disallowance calculated on the basis of the number of actual cases
reviewed and found to be ineligible. We propose that the disallowance
be computed on the basis of payments associated with the ineligible
cases for the entire period of time that each case has been determined
to be ineligible. Thus if, for example, a case was deemed ineligible on
the basis that a judicial determination regarding ``contrary to the
welfare'' had not been properly made at the time a child was removed
from home, all title IV-E payments which were claimed for this case
from the time of removal would be disallowed. For States found to be in
``non-compliance'' after the first review (i.e., not in substantial
compliance), we propose that they have a disallowance calculated on the
same basis, but also be required to develop and implement a program
improvement plan and undergo a second review.
Since the implementation and completion of a program improvement
plan may take as long as one year, we propose that a second review be
conducted during the AFCARS reporting period which immediately follows
the latest projected completion date approved in the program
improvement plan. For example, if there were three action steps
outlined in a program improvement plan with completion dates of January
1, April 1 and July 1, 1998, the second review must be conducted
sometime between October 1, 1998 and March 31, 1999. This should allow
sufficient time for the planning and preparation that needs to take
place by Federal and State agencies prior to an on-site review, as well
as provide an opportunity for the review team to examine cases which
will have been impacted by a State's corrective action. The review will
provide a basis for determining if a State has successfully corrected
deficiencies identified in the program improvement plan and continued
to meet all other eligibility requirements since the first review was
conducted. If the review team determines that a State is in
``substantial compliance'', a second disallowance will be calculated on
the basis of actual cases reviewed and found to be ineligible. We
propose that this disallowance be computed on the basis of payments
associated with the cases from the point in time from which they have
been determined to be ineligible.
If a State remains in non-compliance, we propose that the
disallowance be determined based on extrapolation from the sample to
the universe of claims paid for the duration of the AFCARS reporting
period under review (currently six months). Thus a State should be able
to forestall a potentially significant disallowance by focusing its
efforts on improving specified aspects of operations identified as
needing strengthening. However, in any event, we anticipate that
disallowances resulting from the second review of cases made in States
determined to be in non-compliance will be smaller than those taken in
the past by ACF. This is due to a number of reasons: (1) the required
implementation of a program improvement plan for States that are in
non-compliance; (2) the provision of technical assistance (upon
request) to a State agency by ACF; (3) the State agency's own efforts
to correct the deficiencies identified in its program improvement plan;
and (4) the fact that any extrapolated disallowance will be for a six-
month period of time (corresponding with the reporting period of AFCARS
unless, or until such time as, it changes), rather than a one-year
period of time as has been the case in past years. More important than
the monetary benefits that may accrue to States from ACF's new
monitoring approach, however, is the recognition that the protections
afforded children under title IV-E are likely to be provided and
subsequently documented by States in the future in a more consistent
manner.
In paragraph (j)(3), we specify that the State agency will be
liable for applicable interest on the amount of funds disallowed by the
Department, in accordance with regulations at 45 CFR 30.13.
XII. Impact Analysis
Executive Order 12866
Executive Order 12866 requires that regulations be drafted to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that this
rule is consistent with these priorities and principles. This Notice of
Proposed Rulemaking presents a revised framework for reviews of
Federally-assisted child and family services and for reviews of related
eligibility determinations for Federally-assisted foster care programs.
The revised review procedures for these programs were developed in
response to concerns expressed by the Congress and the States regarding
the effectiveness of the current review procedures and the benefits to
the States relative to the efforts required of them. ACF had begun
revising the review procedures when Congress, through the Social
Security Amendments of 1994 (Public Law 103-432), mandated changes in
the Federal monitoring of State child and family service programs
funded under titles IV-B and IV-E. In conformance with this
legislation, we are proposing regulations for child and family service
programs which will:
determine whether these programs are in substantial
conformity with applicable State plan requirements and Federal
regulations;
develop a timetable for conformity reviews; and
specify the State plan requirements subject to review, and
the criteria to be used in determining a State's substantial conformity
with these requirements.
Regulatory Flexibility Act of 1980
The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the
Federal government to anticipate and reduce the impact of rules and
paperwork requirements on small businesses. For each rule with a
``significant number of small entities'' an analysis must be prepared
describing the rule's impact on small entities. ``Small entities'' are
defined by the Act to include small businesses, small non-profit
organizations and small governmental entities. These regulations do not
affect small entities because they are applicable to State agencies
that administer the child and family services programs and the foster
care maintenance payments program.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies
to prepare an assessment of anticipated costs and benefits before
proposing any rule that may result in an annual expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more (adjusted annually for inflation). This
proposed rule does not impose any mandates on State, local, or tribal
governments, or the private sector that will result in an annual
expenditure of $100,000,000 or more. We anticipate that one-third (17)
of the States will be reviewed under both review procedures
[[Page 50083]]
each year, for an annual cost of $225,420. This estimate was based on
the burden hours associated with each information collection identified
in the ``Paperwork Reduction Act'' section. We did not include State
travel costs in the estimate because these costs will vary
significantly based on how a State chooses to structure its
participation in the reviews.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB) for review and approval any reporting or record-keeping
requirements inherent in a proposed or final rule. This NPRM contains
information collection requirements in certain sections which the
Department has submitted to OMB for its review.
The sections that contain information collection requirements are:
1355.33(b) on State self-assessments, and (c) on submission of data;
1355.35(a) on program improvement plan; 1355.38 (b) and (c) on
corrective action plans; and 1356.71(i) on program improvement plan.
Section 1356 on State plan document and submission requirements (OMB
Number 0980-0141) and case plan requirements (OMB Number 0980-0140)
contains information collections, however, these are approved
collections and no changes are being made at this time.
The respondents to the information collection requirements in this
rule are State agencies. The Department needs to require this
collection of information: (1) in order to review States' compliance
with the provisions of the statute and implementing regulations of
title IV-E of the Act; and (2) effectively implement the statutory
requirement at section 1123A of the Act which requires that regulations
be promulgated for the review of child and family services programs,
and foster care and adoption assistance programs, for conformity with
State plan requirements.
The frequency of State responses will vary. It is known that each
State will have to do self assessments at least once every three years.
States not in substantial conformity must submit a program improvement
plan. Case plans for title IV-E must be done in accordance with the
case review system. The following table provides annual estimates of
the burden hours associated with each collection.
----------------------------------------------------------------------------------------------------------------
Average burden
Collection Number of respondents Number of hours per Total burden
responses response hours
----------------------------------------------------------------------------------------------------------------
1355.33(b)--State Agency Self 17--State Agencies 1 240 4,080
Assessment. Administering the Title IV-
B & E Programs.
1355.33(c)--On-Site Review......... 17--State Agencies 35 8 4,760
Administering the Title IV-
B & E Programs.
1355.35(a)--Program Improvement 17--State Agencies 1 80 1,360
Plan. Administering the Titles
IV-B & IV-E Programs.
1355.38 (b) and (c)--Corrective 5--State Agencies 1 80 400
Action Plan. Administering Titles IV-B
and IV-E.
1356.71(i)--Program Improvement 17--State Agencies 1 63 1,071
Plan. Administering the Title IV-
E Program.
----------------------------------------------------------------------------------------------------------------
When the Department publishes its pre-clearance Notice requesting
approval of this information collection under the Paperwork Reduction
Act, we will publish, in their entirety, the self-assessment and the
on-site review instruments.
The Administration for Children and Families will consider comments
by the public on this proposed collection of information in:
Evaluating whether the proposed collections are necessary
for the proper performance of the functions of ACF, including whether
the information will have practical utility;
Evaluating the accuracy of ACF's estimate of the burden of
the proposed collection of information;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment to the Department on the proposed
regulations. Written comments to OMB for the proposed information
collection should be sent directly to the following: Office of
Management and Budget, Paperwork Reduction Project, 725 17th Street,
NW, Washington, DC 20503, Attn: Desk Officer.
List of Subjects
45 CFR Part 1355
Adoption and foster care, child welfare, grant programs--social
service programs.
45 CFR Part 1356
Adoption and foster care, administrative costs, fiscal requirements
(title IV-E).
Attachment A To The Preamble (For discussion on Sec. 1355.34)--
Index of Performance Indicators to Outcomes
1. Safety Outcome 1: Children are, first and foremost, protected
from abuse and neglect, and are safely maintained in their homes
whenever possible.
Performance Indicators
Services to family to protect child(ren) in home.
Current risk of harm to child.
Child deaths due to maltreatment.
2. Safety Outcome 2: The risk of harm to children will be
minimized.
Performance Indicators
Timeliness of initiating investigations.
Repeat maltreatment.
Current risk of harm to child.
Child maltreatment in foster care.
Child deaths due to maltreatment.
3. Permanency Outcome 1: Children will have permanency and
stability in their living situations.
Performance Indicators
Foster care re-entries.
Stability of foster care placement.
Unachieved permanency goals.
Independent living services for youths >16 y.o.
Use of long term foster care.
Effectiveness of adoption services.
4. Permanency Outcome 2: The continuity of family relationships,
culture and connections will be preserved for children.
Performance Indicators
Proximity of current placement.
Placement with siblings.
Visiting with parents and siblings in foster care.
[[Page 50084]]
Cultural connections and preservation.
Relative placement.
Current relationship of child in care with parents.
5. Well-Being Outcome 1: Families will have enhanced capacity to
provide for their children's needs.
Performance Indicators
Needs and services of child, parents, foster parents.
Child and family involvement in case planning.
Current relationship of child in care with parents.
Worker visits with child.
Worker visits with parents.
6. Well-Being Outcome 2: Children will receive appropriate
services to meet their educational needs.
Performance Indicators
Educational needs of the child.
7. Well-Being Outcome 3: Children will receive adequate services
to meet their physical and mental health needs.
Performance Indicators
Physical health of the child.
Mental health of the child.
BILLING CODE 4184-01-P
[[Page 50085]]
[GRAPHIC] [TIFF OMITTED] TP18SE98.016
BILLING CODE 4184-01-C
[[Page 50086]]
(Catalog of Federal Domestic Assistance Program Numbers 93.658,
Foster Care Maintenance; 93.659, Adoption Assistance and 93.645,
Child Welfare Services--State Grants)
Dated: April 30, 1998.
Olivia A. Golden,
Assistant Secretary for Children and Families.
Approved: July 8, 1998.
Donna E. Shalala,
Secretary.
For the reasons set forth in the Preamble, 45 CFR Parts 1355 and
1356 are proposed to be amended as follows:
PART 1355--GENERAL
1. The authority citation for Part 1355 continues to read as
follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq., 42
U.S.C. 1302.
2. Section 1355.20 is amended by revising the definition of foster
care and by adding the following definitions to read as follows:
Sec. 1355.20 Definitions.
(a) * * *
Child-care institution means a private child-care institution, or a
public child-care institution which accommodates no more than twenty-
five children, and is licensed by the State in which it is situated or
has been approved by the agency of such State responsible for licensing
or approval of institutions of this type as meeting the standards
established for such licensing.
This definition must not include detention facilities, forestry
camps, training schools, or any other facility operated primarily for
the detention of children who are determined to be delinquent.
* * * * *
Date the child enters foster care means the earlier of: the date of
the first judicial finding that the child has been subjected to child
abuse or neglect and placement and care responsibility is given to the
State by the court; or, the date that is 60 calendar days after the
date on which the child is physically removed from the home. When a
child enters foster care on the basis of a voluntary placement
agreement, the ``date a child enters foster care'' means the date on
which the voluntary placement agreement is signed. This definition
determines the date used in calculating all time period requirements
related to the case review system in section 475 of the Social Security
Act and for providing time-limited reunification services described at
section 431(a)(7) of the Act.
* * * * *
Foster care means 24 hour substitute care for children placed away
from their parents or guardians and for whom the State agency has
placement and care responsibility. This includes, but is not limited
to, placements in foster family homes, foster homes of relatives, group
homes, emergency shelters, residential facilities, child care
institutions, and pre-adoptive homes. A child is in foster care in
accordance with this definition regardless of whether the foster care
facility is licensed and payments are made by the State or local agency
for the care of the child, whether adoption subsidy payments are being
made prior to the finalization of the adoption, or whether there is
Federal matching of any payments that are made.
Foster care maintenance payments are payments made on behalf of a
child eligible for title IV-E foster care to cover the cost of (and the
cost of providing) food, clothing, shelter, daily supervision, school
supplies, a child's personal incidentals, liability insurance with
respect to a child, and reasonable travel for a child's visitation with
family, agency workers, or other caretakers. Local travel associated
with providing the items listed above is also an allowable expense. In
the case of child-care institutions, such term must include the
reasonable costs of administration and operation of such institutions
as are necessarily required to provide the items described in the
preceding sentences. (1) Daily supervision for which foster care
maintenance payments may be made includes:
(i) Foster family care--licensed child care, when work
responsibilities preclude foster parents from being at home when the
child for whom they have care and responsibility in foster care is not
in school, licensed child care when the foster parent is required to
participate, without the child, in activities associated with parenting
a child in foster care that are beyond the scope of ordinary parental
duties, such as attendance at administrative or judicial reviews, case
conferences, or foster parent training; and
(ii) Child-care institutions--routine day-to-day direction and
arrangements to ensure the well-being and safety of the child.
(2) [Reserved]
Foster family home means the home of an individual or family
licensed or approved by the State licensing or approval authority(ies)
(or with respect to foster family homes on or near Indian reservations,
by the tribal licensing or approval authority(ies)), that provides 24-
hour out-of-home care for children. The term may include group homes,
agency operated boarding homes or other facilities licensed or approved
for the purpose of providing foster care by the State agency
responsible for approval or licensing of such facilities. Foster family
homes that are approved must be held to the same standards as foster
family homes that are licensed. Provisional licensure or approval is
insufficient for meeting title IV-E eligibility requirements. States
may not claim title IV-E reimbursement until final licensure or
approval is granted.
Full hearing (often referred to by State courts as the evidentiary
hearing, jurisdictional hearing, fact-finding hearing, merits or
adjudication hearing) is the civil hearing in which the allegations, as
set forth in the petition, of dependency, abuse or neglect concerning a
child are addressed. The hearing enables the court to determine which
allegations of the petition have been proven or admitted, if any, and
whether court or agency intervention should continue. This is the
hearing in which the State agency is assigned responsibility for
placement and care of the child. The full hearing is never a shelter
care hearing or emergency removal hearing (see definition of temporary
custody proceeding).
Full review means the joint Federal and State review of all
federally-assisted child and family services programs in the States,
including family preservation and support services, child protective
services, foster care, adoption, and independent living services, for
the purpose of determining the State's substantial conformity with the
State plan requirements of titles IV-B and IV-E as listed in
Sec. 1355.34 of this part. A full review consists of two phases, the
State self-assessment and a subsequent on-site review, as described in
Sec. 1355.33 of this part.
* * * * *
Legal guardianship means a judicially created relationship between
child and caretaker which is intended to be permanent and self-
sustaining as evidenced by the transfer to the caretaker of the
following parental rights with respect to the child: protection,
education, care and control of the person, custody of the person, and
decision-making. The term ``legal guardian'' means the caretaker in
such a relationship.
National Child Abuse and Neglect Data System (NCANDS) means the
voluntary national data collection and analysis system established by
the Administration for Children and Families in response to a
requirement in the Child Abuse Prevention and
[[Page 50087]]
Treatment Act (Public Law 93-247), as amended.
Partial review means the joint Federal and State review of one or
more Federally-assisted child and family services programs in the
States, including family preservation and support services, child
protective services, foster care, adoption, and independent living
services. A partial review may consist of any of the components of the
full review, as mutually agreed upon by the State and the
Administration for Children and Families as being sufficient to
determine substantial conformity of the reviewed components with the
State plan requirements of titles IV-B and IV-E as listed in
Sec. 1355.34 of this part.
Permanency hearing means: (1) the hearing required by section
475(5)(C) of the Act to determine the permanency plan for a child in
foster care. Within this context, the court (including a Tribal court)
or administrative body determines whether, and if applicable when:
(i) The child will be returned to the parent;
(ii) The child should be placed for adoption, with the State filing
a petition for termination of parental rights;
(iii) The child should be referred for legal guardianship;
(iv) The child should be placed permanently with a fit and willing
relative; or
(v) The child should be placed in another planned permanent living
arrangement, but only in cases where the State agency has documented to
the State court a compelling reason for determining that it would not
be in the best interests of the child to return home, be referred for
termination of parental rights and placed for adoption, placed with a
fit and willing relative, or placed with a legal guardian.
(2) The permanency hearing must be held no later than 12 months
after the date the child enters foster care or within 30 days of a
judicial determination that reasonable efforts to reunify the child and
family are not required. After the initial permanency hearing,
subsequent permanency hearings must be held not less frequently than
every 12 months during the continuation of foster care. The permanency
hearing must be conducted by a family or juvenile court or another
court of competent jurisdiction or by an administrative body appointed
or approved by the court which is not a part of or under the
supervision or direction of the State agency. Paper reviews, ex parte
hearings, agreed orders, or other actions or hearings which are not
open to the participation of the parents of the child, the child (if of
appropriate age), and foster parents or preadoptive parents (if any)
are not considered permanency hearings.
* * * * *
State self-assessment means the initial phase of a full review of
all federally-assisted child and family services programs in the
States, including family preservation and support services, child
protective services, foster care, adoption, and independent living
services, for the purpose of determining, in part, the State's
substantial conformity with the State plan requirements of titles IV-B
and IV-E as listed in Sec. 1355.34 of this part. The self-assessment
refers to the completion of the Federally-prescribed self-assessment
instrument by members of a review team that meet the requirements of
Sec. 1355.33(a)(2) of this part.
Temporary custody proceeding (often referred to as the shelter care
hearing, detention hearing, preliminary protective hearing, or
emergency removal hearing) is the judicial proceeding held at the time
of, or shortly after, the emergency removal of a child from the home.
This proceeding gives the State agency temporary custody of a child
until a full hearing is held.
* * * * *
3. New sections 1355.31 through 1355.39 are added to read as
follows:
Sec. 1355.31 Elements of the child and family services review system.
Scope. Sections 1355.32 through 1355.39 of this part apply to
reviews of child and family services programs administered by States
and Indian Tribes under subparts 1 and 2 of title IV-B of the Act, and
reviews of foster care and adoption assistance programs administered by
States under title IV-E of the Act.
Sec. 1355.32 Timetable for the reviews.
(a) Initial reviews. Each State must complete an initial full
review as described in Sec. 1355.33 of this part during the three-year
period that begins six months after the final rule becomes effective.
(b) Reviews following the initial review. (1) A State found to be
operating in substantial conformity during an initial or subsequent
review, as defined in Sec. 1355.34 of this part, must:
(i) Complete a full review every five years; and
(ii) Submit a completed State self-assessment to ACF three years
after the on-site review. The State self-assessment will be reviewed
jointly by the State and the Administration for Children and Families
to determine the State's continuing substantial conformity with the
State plan requirements subject to review. No formal approval of this
interim State self-assessment by ACF is required.
(2) State programs found not to be operating in substantial
conformity during an initial or subsequent review will:
(i) Be required to develop and implement a program improvement
plan, as defined in Sec. 1355.35 of this part; and
(ii) Complete a full review in the six month period that begins
three years after the approval of the program improvement plan.
(c) Reinstatement of reviews based on information that a State is
not in substantial conformity. (1) ACF may require a full or a partial
review at any time, based on information that indicates the State may
no longer be operating in substantial conformity.
(2) Prior to conducting a full or partial review, ACF will conduct
an inquiry and require the State to submit additional data whenever the
following information indicates that the State may not be in
substantial conformity:
(i) Information included in the State self-assessment (completed
between full reviews) or Annual Progress and Services Reports on the
CFSP;
(ii) Information from reports from data bases, including the
Adoption and Foster Care Analysis and Reporting System (AFCARS) and the
National Child Abuse and Neglect Data System (NCANDS);
(iii) Information from reviews, audits or assessments conducted by
ACF, the Office of Inspector General, or other public or private
organizations;
(iv) The disposition of class action lawsuits brought against a
State, whether such disposition is through the process of litigation or
through settlement of the lawsuit through a consent decree; or
(v) Other information brought to the attention of the Secretary.
(3) If the additional information and inquiry indicate to the
satisfaction of ACF that the State is operating in substantial
conformity, ACF will not proceed with any further review of the issue
addressed by this inquiry at this time.
(4) ACF may proceed with a full or partial review if the State does
not provide the additional information as requested, or the additional
information confirms that the State may not be operating in substantial
conformity.
Sec. 1355.33 Procedures for the review.
(a) The full child and family services reviews will:
[[Page 50088]]
(1) Consist of a two-phase process that includes a State self-
assessment and an on-site review; and
(2) Be conducted by a team of Federal and State reviewers that
includes:
(i) Staff of the State child and family services agency, including
the State and local offices who represent the service areas that are
the focus of any particular review;
(ii) Representatives selected by the State, in collaboration with
the ACF Regional Office, from those with whom State was required to
consult in developing its CFSP, as described and required in 45 CFR
1357.15(l);
(iii) Federal staff of HHS; and
(iv) Other individuals, as deemed appropriate and agreed upon by
the State and ACF.
(b) State self-assessment. The first phase of the full review will
be a State self-assessment conducted by the internal and external State
members of the review team. The self-assessment must assess:
(1) The outcome areas of safety, permanency, and well-being of
children and families served by the State agency;
(2) The characteristics of the State agency that impact most
significantly on the agency's capacity to deliver services to children
and families that will lead to improved outcomes; and
(3) The strengths and areas of the State's child and family
services programs that require further examination through an on-site
review.
(c) On-site review. The second phase of the full review will be an
on-site review.
(1) The on-site review will cover specific areas of the State's
child and family services continuum. It will be jointly planned by the
State and ACF, and guided by information in the completed State self-
assessment that identifies areas thought to be in need of improvement
or further review.
(2) The on-site review may be concentrated in several specific
political subdivisions of the State, as agreed upon by the ACF Regional
Office and the State, provided the State's largest metropolitan
subdivision is one of the locations selected for the on-site review.
(3) ACF has final approval of the selection of specific areas of
the State's child and family services continuum described in paragraph
(c)(1) of this section and selection of the political subdivisions
referenced in paragraph (c)(2) of this section.
(4) Sources of information collected during the on-site review to
determine substantial conformity must include, but are not limited to:
(i) Case records on children and families served by the agency;
(ii) Interviews with children and families whose case records have
been reviewed and who are, or have been, recipients of services of the
agency;
(iii) Social workers, foster parents, and service providers for the
cases selected for the on-site review; and
(iv) Interviews with other individuals, such as those representing
the sources of consultation for the development of the State's CFSP, as
required by 45 CFR 1357.15(l).
(5) The composition of the sample of cases selected for the on-site
review, by number of cases and type of cases, will be jointly
determined by the ACF Regional Office and the State, based on the
findings of the State self-assessment, subject to the following
criteria:
(i) Cases comprising the sample, including any sub-samples, of the
sample must be randomly selected;
(ii) The number of cases reviewed must be sufficient to evaluate
the qualitative issues agreed upon by the ACF Regional Office and the
State as the focus of the on-site review based on analysis of the State
self-assessment and any other relevant data available to the State;
(iii) The sampling plan used to select cases for the on-site review
must be approved by the ACF designated official.
(d) Partial review. A partial review, when required, will be
planned and conducted jointly by ACF and the State agency based on the
nature of the concern.
(e) Within 30 calendar days following either a partial or full
review, ACF will notify the State agency in writing of whether the
State is, or is not, operating in substantial conformity.
Sec. 1355.34 Criteria for determining substantial conformity.
(a) Criteria to be satisfied. A State's substantial conformity with
title IV-B and title IV-E State plan requirements will be based on the
following:
(1) its ability to meet criteria related to outcomes for children
and families;
(2) its ability to meet criteria related to the State agency's
capacity to deliver services leading to improved outcomes;
(3) aggregate data in the State self-assessment used to examine
each outcome and performance indicator which corroborates the findings
of the on-site component of the review, and;
(4) the determination of conformity by the ACF Regional Office
based on the criteria described in paragraphs (a) through (c) of this
section.
(b) Criteria related to outcomes.
(1) A State's substantial conformity will be determined by its
ability to substantially achieve the following child and family service
outcomes:
(i) In the area of child safety:
(A) Children are, first and foremost, protected from abuse and
neglect, and are safely maintained in their homes whenever possible;
and
(B) The risk of harm to children is minimized;
(ii) In the area of permanency for children:
(A) Children have permanency and stability in their living
situations; and
(B) The continuity of family relationships and connections is
preserved for children; and
(iii) In the area of child and family well-being:
(A) Families have enhanced capacity to provide for their children's
needs;
(B) Children will receive appropriate services to meet their
educational needs; and
(C) Children receive adequate services to meet their physical and
mental health needs.
(2) A State's level of achievement with regard to each outcome
reflects the extent to which a State has implemented the following CFSP
requirements or assurances:
(i) The requirements in 45 CFR 1357.15(p) regarding services
designed to assure the safety and protection of children and the
preservation and support of families;
(ii) The requirements in 45 CFR 1357.15(q) regarding the permanency
provisions for children and families in sections 422 and 471 of the
Act;
(iii) The requirements in section 422(b)(9) of the Act regarding
recruitment of potential foster and adoptive families;
(iv) The assurances by the State as required by section
422(b)(10)(C) (i) and (ii) of the Act regarding policies and procedures
for abandoned children;
(v) The requirements in section 422(b)(11) of the Act regarding the
State's compliance with the Indian Child Welfare Act;
(vi) The requirements in section 422(b)(12) of the Act regarding a
State's plan for effective use of cross-jurisdictional resources to
facilitate timely adoptive or permanent placements; and,
(vii) The requirements in section 471(a)(15) of the Act regarding
reasonable efforts to prevent removals of children from their homes, to
make it possible for children in foster care to safely return to their
homes, or, when the child is not able to return home, to place the
child in accordance with the permanency plan and complete the steps
necessary to finalize the permanent placement.
(3) A State will be determined to be in substantial conformity if
each
[[Page 50089]]
outcome listed in paragraph (b)(1) of this section is rated as
``substantially achieved'' in 95 percent of the cases examined during
the on-site review (90 percent of the cases for a State's initial
review). Information from various sources (case records, interviews)
will be examined for each outcome and a determination made as to the
degree to which each outcome has been achieved for each case reviewed.
(c) Criteria related to State agency capacity to deliver services
leading to improved outcomes for children and families.
In addition to the criteria related to outcomes contained in
paragraph (b) of this section, the State agency must also satisfy
criteria related to the delivery of services. Information from the
self-assessment and the on-site review must indicate that the State has
implemented the referenced State plan requirements related to the State
agency's capacity to deliver services leading to improved outcomes, and
actually delivered those services, by meeting each of the criteria
listed for the following core systemic factors:
(1) Statewide information system: The State is operating a
statewide information system that, at a minimum, can readily identify
the status, demographic characteristics, location, and goals for the
placement of every child who is (or within the immediately preceding 12
months, has been) in foster care (section 422(b)(10)(B)(i) of the Act);
(2) Case review system: The State has procedures in place that:
(i) provide, for each child, a written case plan to be developed
jointly with the child's parent(s) that includes provisions: for
placing the child in the least restrictive, most family-like placement
appropriate to his/her needs, and in close proximity to the parents'
home where such placement is in the child's best interests; for visits
with a child placed out of State at least every 12 months by a social
worker of the agency or of the agency in the State where the child is
placed; and for documentation of the steps taken to make and finalize
an adoptive or other permanent placement when the child cannot return
home (section 422(b)(10)(B)(ii) of the Act);
(ii) provide for periodic review of the status of each child no
less frequently than once every six months by either a court or by
administrative review (section 422(b)(10)(B)(ii) of the Act);
(iii) assure that each child in foster care under the supervision
of the State has a permanency hearing in a family or juvenile court or
another court of competent jurisdiction (including a Tribal court), or
by an administrative body appointed or approved by the court, which is
not a part of or under the supervision or direction of the State
agency, no later than 12 months from the date the child entered foster
care (and not less frequently than every 12 months thereafter during
the continuation of foster care) (section 422(b)(10)(B)(ii) of the
Act);
(iv) provide a process for termination of parental rights
proceedings in accordance with section 475(5)(E) of the Act; and,
(v) provide foster parents, preadoptive parents, and relative
caregivers of children in foster care with notice of and an opportunity
to be heard in any review or hearing held with respect to the child.
(3) Quality assurance system: The State has developed and
implemented standards to ensure that children in foster care placements
are provided quality services that protect the safety and health of the
children (section 471(a)(22) and is operating an identifiable quality
assurance system (45 CFR 1357.15(u)) as described in the CFSP that:
(i) is in place in the jurisdictions within the State where
services included in the CFSP are provided;
(ii) is able to evaluate the adequacy and quality of services
provided under the CFSP;
(iii) is able to identify the strengths and needs of the service
delivery system it evaluates;
(iv) provides reports to agency administrators on the quality of
services evaluated and needs for improvement; and (v) evaluates
measures implemented to address identified problems.
(4) Staff training: The State is operating a staff development and
training program (45 CFR 1357.15(t)) that:
(i) supports the goals and objectives in the State's CFSP;
(ii) addresses services provided under both subparts of title IV-B
and the training plan under title IV-E of the Act;
(iii) provides training for all staff who provide family
preservation and support services, child protective services, foster
care services, adoption services and independent living services soon
after they are employed and that includes the basic skills and
knowledge required for their positions;
(iv) provides ongoing training for staff that addresses the skills
and knowledge base needed to carry out their duties with regard to the
services included in the State's CFSP; and,
(v) provides short-term training for current or prospective foster
parents, adoptive parents, and the staff of State-licensed or State-
approved child-care institutions providing care to foster and adopted
children receiving assistance under title IV-E that addresses the
skills and knowledge base needed to carry out their duties with regard
to caring for foster and adopted children.
(5) Service array: Information from the State self-assessment and
on-site review determines that the State has in place an array of
services (45 CFR 1357.15(n) and section 422(b)(10)(B)(iii) and (iv) of
the Act) that include, at a minimum:
(i) services that assess the strengths and needs of children and
families assisted by the agency and are used to determine other service
needs;
(ii) services that address the needs of the family, as well as the
individual child, in order to create a safe home environment;
(iii) services designed to enable children at risk of foster care
placement to remain with their families when their safety and well
being can be reasonably assured;
(iv) services designed to help children achieve permanency by
returning to families from which they have been removed, where
appropriate, be placed for adoption or with a legal guardian or in some
other planned, permanent living arrangement, and through post-legal
adoption services;
(v) services that are accessible to families and children in all
political jurisdictions covered in the State's CFSP; and,
(vi) services that can be individualized to meet the unique needs
of children and families served by the agency.
(6) Agency responsiveness to the community: (i) the State, in
implementing the provisions of the CFSP, engages in ongoing
consultation with a broad array of individuals and organizations
representing the State and county agencies responsible for implementing
the CFSP and other major stakeholders in the services delivery system
including, at a minimum, tribal representatives, consumers, service
providers, foster care providers, the juvenile court, and other public
and private child and family serving agencies (45 CFR 1357.15(l)(4));
(ii) the agency develops, in consultation with these or similar
representatives, annual reports of progress and services delivered
pursuant to the CFSP (45 CFR 1357.15(l)(4));
(iii) there is evidence that the agency's goals and objectives
included in the CFSP reflect consideration of the major concerns of
stakeholders consulted in developing the plan and on an ongoing basis
(45 CFR 1357.15(m)); and
[[Page 50090]]
(iv) there is evidence that the State's services under the plan are
coordinated with services or benefits under other Federal or federally-
assisted programs serving the same populations to achieve the goals and
objectives in the plan (45 CFR 1357.15(m)).
(7) Foster and adoptive parent licensing, recruitment and
retention: (i) the State has established and maintains standards for
foster family homes and child care institutions which are reasonably in
accord with recommended standards of national organizations concerned
with standards for such institutions or homes (section 471(a)(10) of
the Act);
(ii) the standards so established are applied by the State to every
licensed or approved foster family home or child care institution
receiving funds under title IV-E or IV-B of the Act (section 471(a)(10)
of the Act);
(iii) the State complies with the safety requirements for foster
care and adoptive placements in accordance with sections 471(a)(16) and
475(1) of the Act and 45 CFR 1356.30;
(iv) the State has in place an identifiable process for assuring
the diligent recruitment of potential foster and adoptive families that
reflect the ethnic and racial diversity of children in the State for
whom foster and adoptive homes are needed (section 422(b)(9) of the
Act); and,
(v) the State has developed and implemented plans for the effective
use of cross-jurisdictional resources to facilitate timely adoptive or
permanent placements for waiting children (section 422(b)(12) of the
Act).
(d) Availability of review instruments.
ACF will make available to the States copies of the review
instruments, which will contain the specific standards to be used to
determine substantial conformity, on an ongoing basis, whenever
significant revisions to the instruments take place.
Sec. 1355.35 Program improvement plans.
(a) Mandatory program improvement plan. States found not to be
operating in substantial conformity shall develop a program improvement
plan. The program improvement plan must:
(1) Be developed jointly by State and Federal staff in consultation
with the review team;
(2) Identify the areas in which the State's program is not in
substantial conformity;
(3) Set forth the goals, the action steps required to correct each
identified weakness or deficiency, and dates by which each action step
is to be completed in order to improve the specific areas;
(4) Establish benchmarks that will be used to measure the State's
progress in implementing the program improvement plan and describe the
methods that will be used to evaluate progress;
(5) Identify the technical assistance needs and sources of
technical assistance, both Federal and non-Federal, which will be used
to make the necessary improvements identified in the program
improvement plan.
(b) Voluntary program improvement plan. States found to be
operating in substantial conformity may voluntarily develop and
implement a program improvement plan in collaboration with the ACF
Regional Office, under the following circumstances:
(1) The State and Regional Office agree that there are areas of the
State's child and family services programs in need of improvement which
can be addressed through the development and implementation of a
voluntary program improvement plan;
(2) ACF approval of the voluntary program improvement plan will not
be required; and
(3) No penalty will be assessed for the State's failure to achieve
the goals described in the voluntary program improvement plan.
(c) Approval of program improvement plans.
(1) A State determined not to be in substantial conformity must
submit the program improvement plan to ACF for approval within 60
calendar days from the date the State receives the written notification
from ACF that it is not operating in substantial conformity.
(2) Any program improvement plan will be approved by ACF if it
meets the provisions of paragraph (a) of this section.
(3) If the program improvement plan does not meet the provisions of
paragraph (a) of this section, the State will have 30 calendar days
from the date it receives notice from ACF that the plan has not been
approved to revise and resubmit the plan for approval.
(4) If the State does not submit a revised program improvement plan
according to the provisions of paragraph (c)(3) of this section, or if
the plan does not meet the provisions of paragraph (a) of this section,
withholding of funds pursuant to the provisions of Sec. 1355.36 this
part will apply.
(d) Duration of program improvement plans. A State will have two
years to successfully complete the provisions in its program
improvement plan. However, a State must complete provisions in its
program improvement plan that address child safety in less than two
years. The level of risk to child safety will be considered by the
State and ACF in determining such time frames. The ACF may grant a one-
year extension, for a maximum of three years, when the provisions in
the program improvement plan are too extensive for the State to
successfully complete within the two-year period.
(e) Evaluating program improvement plans. Program improvement plans
will be evaluated jointly by the State agency and ACF, in collaboration
with other members of the review team, as described in the State's
program improvement plan and in accordance with the following criteria:
(1) The methods and information used to measure progress must be
sufficient to determine when and whether the State is operating in
subsequent substantial conformity;
(2) The frequency of evaluating progress will be determined jointly
by the State and Federal team members, but no less than annually.
Evaluation of progress will be performed in conjunction with the annual
updates of the State's CFSP, as described in paragraph (f) of this
section.
(3) Action steps may be jointly determined by the State and ACF to
be achieved prior to projected completion dates, and will not require
any further evaluation at a later date; and
(4) The State and ACF may jointly renegotiate the terms and
conditions of the program improvement plan as needed, provided that:
(i) The renegotiated plan is designed to correct the areas of the
State's program determined not to be in substantial conformity;
(ii) The amount of time needed to implement the provisions of the
plan does not extend beyond three years from the date the original
program improvement plan was approved; and
(iii) The renegotiated plan is approved by ACF.
(f) Integration of program improvement plans with CFSP planning.
The elements of the program improvement plan must be incorporated into
the goals and objectives of the State's CFSP. Progress in implementing
the program improvement plan must be included in the annual reviews and
progress reports related to the CFSP required in 45 CFR 1357.16.
Sec. 1355.36 Withholding Federal funds due to failure to conform
following the completion of a State's program improvement plan.
(a) For the purposes of this section: (1) The term ``title IV-B
funds'' refers to the State's combined allocation of title IV-B subpart
1 and subpart 2 funds; and
(2) The term ``title IV-E funds'' refers to the State's
reimbursement for
[[Page 50091]]
administrative costs for foster care under title IV-E.
(b) Determination of the amount of Federal funds to be withheld.
ACF will determine the amount of the State title IV-B and IV-E funds to
be withheld due to a finding that the State is not operating in
substantial conformity, as follows:
(1) Title IV-B funds and a portion of title IV-E funds will be
withheld for States determined not to be operating in substantial
conformity only after the State has had an opportunity to correct the
areas of nonconformity through the development and implementation of a
program improvement plan.
(2) Title IV-B and IV-E funds will not be withheld from a State if
the determination of nonconformity was caused by the State's correct
use of formal written statements of Federal law or policy provided the
State by DHHS.
(3) A portion of the State title IV-B and IV-E funds will be
withheld by ACF for the year under review and for each succeeding year
until the State's failure to comply is ended either through the
successful completion of a program improvement plan or until a
subsequent full review determines the State is operating in substantial
conformity.
(4) The amount of title IV-B and title IV-E funds to be withheld by
ACF will be computed as follows:
(i) The pool of title IV-B and title IV-E funds from which funds
will be withheld due to a determination that a State is not operating
in substantial conformity includes:
(A) The State's allotment of title IV-B funds for each of the years
to which withholding applies, and
(B) An amount equivalent to 10 percent of the State's Federal
claims for title IV-E foster care administrative costs for each of the
years to which withholding applies.
(ii) An amount equivalent to one percent of the funds described in
paragraph (b)(4)(i) of this section for each of the years to which
withholding applies will be withheld for each of the seven outcomes
listed in Sec. 1355.34(b)(2) of this part that is determined not to be
substantially achieved, and
(iii) An amount equivalent to one percent of the funds described in
paragraph (b)(4)(i) of this section for each of the years to which
withholding applies will be withheld for each of the seven systemic
factors listed in Sec. 1355.34(c)(2) of this part that is determined
not to be in substantial conformity.
(5) The maximum amount of title IV-B and title IV-E funds to be
withheld due to the State's failure to comply is fourteen percent per
year of the funds described in paragraph (b)(4)(i) of this section for
each year to which the withholding of funds applies.
(c) Suspension of withholding. (1) For States determined not to be
operating in substantial conformity, ACF will suspend the withholding
of the State title IV-B and title IV-E funds during the time that a
program improvement plan is in effect, provided that:
(i) The program improvement plan conforms to the provisions of
Sec. 1355.35 of this part; and
(ii) The State is actively implementing the provisions of the
program improvement plan.
(2) Suspension of the withholding of funds is limited to three
years following each review, or the amount of time approved for
implementation of the program improvement plan, whichever is less.
(d) Terminating the withholding of funds. For States determined not
to be in substantial conformity, ACF will terminate the withholding of
the State's title IV-B and title IV-E funds related to the
nonconformity under the following circumstances:
(1) When the State's failure to conform is ended by the successful
completion of a program improvement plan;
(2) Upon determination by the State and ACF that action steps have
been completed and goals achieved as specified in the program
improvement plan, ACF will rescind the withholding of the portion of
title IV-B and title IV-E funds related to those goals as of the date
at the end of the quarter in which they were determined to be achieved.
(e) Withholding of funds. (1) States determined not to be in
substantial conformity which fail to successfully complete a program
improvement plan will be notified by ACF of this final determination of
nonconformity in writing within 10 business days after the latest
completion date specified in the plan, and advised of the amount of
title IV-B and title IV-E funds which are to be withheld.
(2) Title IV-B and title IV-E funds will be withheld based on the
following:
(i) Funds related to goals and action steps which have not been
achieved at the conclusion of a program improvement plan will be
withheld by ACF at that time for a period beginning October 1 of the
fiscal year for which the determination of nonconformity was made to
the latest completion date specified in the program improvement plan;
and
(ii) The withholding of funds commensurate with the level of
nonconformity at the end of the program improvement plan will begin at
the latest completion date specified in the program improvement plan
and will continue until a subsequent full review determines the State
to be in substantial conformity.
(3) When the point in time at which the State is determined to be
in substantial conformity falls within a specific quarter, the amount
of funds to be withheld will be computed to the end of that quarter.
(4) A State agency that refuses to participate in the development
or implementation of a program improvement plan, as required by ACF,
will be subject to the maximum withholding of fourteen percent of its
title IV-B and title IV-E funds, as described in paragraph (b)(5) of
this section, for each year or portion thereof to which the withholding
of funds applies.
(5) Interest on withheld funds. The State agency will be liable for
interest on the amount of funds withheld by the Department, in
accordance with the provisions of 45 CFR 30.13.
Sec. 1355.37 Opportunity for public inspection of review reports and
materials.
The State agency must make available for public review and
inspection all self-assessments (1355.33(b)), report of findings
(1355.33(e)), and program improvement plans (1355.35(a)) developed as a
result of a full or partial child and family services review.
Sec. 1355.38 Enforcement of section 471(a)(18) of the Act regarding
the removal of barriers to interethnic adoption.
(a) Determination that a violation has occurred in the absence of a
court finding. (1) If ACF becomes aware of a possible section
471(a)(18) violation, whether in the course of a child and family
services review, the filing of a complaint, or through some other
mechanism, it will refer such a case to the Department's Office for
Civil Rights (OCR) for investigation.
(2) Based on the findings of the OCR investigation, ACF will
determine if a violation of section 471(a)(18) has occurred. A section
471(a)(18) violation occurs if a State or an entity in the State:
(i) has denied to any person the opportunity to become an adoptive
or foster parent on the basis of the race, color, or national origin of
the person, or of the child, involved;
(ii) has delayed or denied the placement of a child for adoption or
into foster care on the basis of the race, color, or national origin of
the adoptive or foster parent, or the child involved; or,
(iii) with respect to a State, maintains any statute, regulation,
policy,
[[Page 50092]]
procedure, or practice that, if applied, would likely result in a
violation against a person as defined in paragraphs (2)(i) and (2)(ii)
of this section.
(3) ACF will provide the State or entity involved with written
notification of its determination.
(4) If there has been no violation, there will be no further
action. If ACF determines that there has been a violation of section
471(a)(18), it will take enforcement action as described in this
regulation.
(5) Compliance with the Indian Child Welfare Act of 1978 does not
constitute a violation of section 471(a)(18).
(b) Corrective action and penalties for violations with respect to
a person or based on a court finding.
(1) A State found to be in violation of section 471(a)(18) with
respect to a person, as described in paragraphs (a)(2)(i) and
(a)(2)(ii) of this section, will be penalized in accordance with
paragraph (g)(2) of this section. A State determined to be in violation
of section 471(a)(18) of the Act as a result of a court finding will be
penalized in accordance with paragraph (g)(4) of this section. The
State may develop, obtain approval of, and implement a plan of
corrective action any time after it receives written notification from
ACF that it is in violation of section 471(a)(18) of the Act.
(2) Corrective action plans are subject to ACF approval.
(3) If the corrective action plan does not meet the provisions of
paragraph (d) of this section, the State must revise and resubmit the
plan for approval until it has an approved plan.
(c) Corrective action for violations resulting from a State's
statute, regulation, policy, procedure, or practice.
(1) A State found to have committed a violation of the type
described in paragraph (a)(2)(iii) of this section must develop, obtain
approval of, and implement a corrective action plan within six months
of receiving notification from ACF that it is in violation of section
471(a)(18) of the Act. If the State fails to implement the corrective
action plan within six months, a penalty will be imposed in accordance
with paragraph (g)(3).
(2) Corrective action plans are subject to ACF approval.
(3) If the corrective action plan does not meet the provisions of
paragraph (d) of this section, the State must revise and re-submit the
plan until it has an approved plan.
(4) ACF will consider a State to have implemented its corrective
action plan when it begins to carry out the action step(s) in the plan.
(5) Once implemented, a State must complete the corrective action
plan according to the time frame in the plan. If the State fails to
complete the corrective action plan within the specified time, a
penalty will be imposed in accordance with paragraph (g)(3) of this
section.
(d) Contents of a corrective action plan. A corrective action plan
must:
(1) identify the issues to be addressed;
(2) set forth the steps for taking corrective action;
(3) identify any technical assistance needs and Federal and non-
Federal sources of technical assistance which will be used to complete
the action steps; and,
(4) specify dates for completing each action step. Extension of
these dates may be negotiated with ACF.
(e) Evaluation of corrective action plans. ACF may evaluate action
steps in a corrective action plan that address a violation of section
471(a)(18) as they are completed. ACF will evaluate corrective action
plans and notify the State (in writing) of its success or failure to
complete the plan within 30 calendar days of the latest projected
completion date specified in the plan. If the State has failed to
complete the corrective action plan, ACF will calculate the amount of
reduction in the State's title IV-E payment and include this
information in the notification of failure to complete the plan.
(f) For the purposes of this section: The term title IV-E funds
refers to the Federal share of expenditures a State claims for foster
care maintenance payments, adoption assistance payments,
administrative, and training costs under title IV-E and the State's
allotment for the Independent Living program.
(g) Reduction of title IV-E funds. (1) Title IV-E funds may be
reduced in specified amounts in accordance with subsection (h) under
the following circumstances:
(i) a determination that a State is in violation of section
471(a)(18) of the Act with respect to a person as described in
paragraphs (a)(2)(i) and (a)(2)(ii) of this section, or;
(ii) after a State's failure to implement or complete a corrective
action plan described in paragraph (c) of this section.
(2) Once ACF notifies a State that it has committed a section
471(a)(18) violation with respect to a person, the State's title IV-E
funds will be reduced for the fiscal quarter in which the State
received such notification and for each succeeding quarter within that
fiscal year or until the State completes a corrective action plan,
whichever is sooner.
(3) For States that fail to implement or complete a corrective
action plan as described in paragraph (c) of this section, title IV-E
funds will be reduced by ACF for the fiscal quarter in which the State
received notification of its violation. The reduction will continue for
each succeeding quarter within that fiscal year or until the State
completes the corrective action plan, whichever is sooner.
(4) If, as a result of a court finding, a State is determined to be
in violation of section 471(a)(18) of the Act, ACF will assess a
penalty without further investigation. Once the State is notified of
the violation, its title IV-E funds will be reduced for the fiscal
quarter in which the court finding was made and for each succeeding
quarter within that fiscal year or until the State completes a
corrective action plan, whichever is sooner.
(5) The maximum number of quarters that a State will have its title
IV-E funds reduced due to the State's failure to conform to section
471(a)(18) of the Act is limited to the number of quarters within the
fiscal year in which a determination of nonconformity was made.
However, an uncorrected violation may result in a subsequent review,
another finding, and additional penalties.
(h) Determination of the amount of reduction of Federal funds. ACF
will determine the reduction in title IV-E funds due to a section
471(a)(18) violation in accordance with section 474(d)(1) of the Act.
(1) State agencies that violate section 471(a)(18) with respect to
a person or fail to implement or complete a corrective action plan as
described in paragraph (c) of this section will be subject to a
penalty. The penalty structure will follow section 474(d)(1) of the
Act. Penalties will be levied for the quarter of the fiscal year in
which the State is notified of its section 471(a)(18) violation, and
for each succeeding quarter within that fiscal year until the State
comes into compliance with section 471(a)(18). The reduction in title
IV-E funds will be computed as follows:
(i) 2 percent of the amount of title IV-E funds claimed by the
State for the fiscal year in which the first finding of noncompliance
was made;
(ii) 3 percent of the amount of title IV-E funds claimed by the
State for the fiscal year in which the second finding of noncompliance
was made;
(iii) 5 percent of the amount of title IV-E funds claimed by the
State for the fiscal year in which the third or
[[Page 50093]]
subsequent finding of noncompliance was made.
(2) Any entity (other than the State agency) which violates section
471(a)(18) of the Act during a fiscal quarter with respect to any
person must remit to the Secretary all title IV-E funds paid to it by
the State during the quarter in which the entity is notified of its
violation.
(3) No fiscal year payment to a State will be reduced by more than
5 percent where the State has been determined to be out of compliance
with section 471(a)(18) of the Act.
(4) The State agency or entity, as applicable, will be liable for
interest on the amount of funds reduced by the Department, in
accordance with the provisions of 45 CFR 30.13.
Sec. 1355.39 Administrative and judicial review.
States determined not to be in substantial conformity with titles
IV-B and IV-E State plan requirements, or in violation of section
471(a)(18) of the Act:
(a) May appeal the final determination and any subsequent
withholding of, or reduction in, funds to the HHS Departmental Appeals
Board within 60 days after receipt of a notice of nonconformity
described in Sec. 1355.36(e)(1) of this part, or receipt of a notice of
noncompliance by ACF as described in Sec. 1355.38(b) of this part; and
(b) Will have the opportunity to obtain judicial review of an
adverse decision of the Departmental Appeals Board within 60 days after
the State receives notice of the decision by the Board. The State must
appeal to the district court of the United States for the judicial
district in which the principal or headquarters office of the agency
responsible for administering the program is located.
(c) The procedure described in paragraphs (a) and (b) of this
section will not apply to a finding that a State has been determined to
be in violation of section 471(a)(18) which is based on a judicial
decision.
PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E
4. The authority citation for Part 1356 continues to read as
follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq., and 42
U.S.C. 1302.
5. Section 1356.20 is amended by revising paragraph (e)(4) to read
as follows:
Sec. 1356.20 State plan document and submission requirements.
* * * * *
(e) * * *
(4) Action. Each Regional Administrator, ACF, has the authority to
approve State plans and amendments thereto which provide for the
administration of foster care maintenance payments and adoption
assistance programs under section 471 of the Act. The Commissioner,
ACYF, retains authority for determining that proposed plan material is
not approvable, or that a previously approved plan no longer meets the
requirements for approval.
* * * * *
6. Section 1356.21 is revised to read as follows:
Sec. 1356.21 Foster care maintenance payments program implementation
requirements.
(a) To implement the foster care maintenance payments program
provisions of the title IV-E State plan and to be eligible to receive
Federal financial participation (FFP) for foster care maintenance
payments under this part, a State must meet the requirements of this
section, and sections 472, 475(1), 475(4), 475(5) and 475(6) of the
Act.
(b) Reasonable efforts. In order to satisfy the ``reasonable
efforts'' requirements of section 471(a)(15) as implemented through
section 472(a)(1) of the Act, the State must meet the requirements of
paragraphs (b), (d) and (g)(4) of this section. In determining
reasonable efforts to be made with respect to a child and in making
such reasonable efforts, the child's health and safety must be the
State's paramount concern.
(1) Judicial determination of reasonable efforts to prevent removal
in non-emergency situations. When a child is removed from home pursuant
to a court order, the court must determine, before issuing such an
order, whether reasonable efforts had been made to prevent removal
prior to the removal of the child from home. Except as specified in
paragraph (b)(2) of this section, if a judicial determination regarding
reasonable efforts to prevent removal is not made prior to the child's
removal from the home, as evidenced in the court order initiating that
removal, the child is not eligible under the title IV-E foster care
maintenance payments program for the duration of that stay in foster
care.
(2) Judicial determinations of reasonable efforts to prevent
removal in emergency situations. (i) A child will be considered to be
removed from his/her home in an emergency situation when a court order
has not been obtained in advance of the removal.
(ii) When it is necessary to remove a child from his/her home prior
to obtaining a court order, the judicial determination as to whether
reasonable efforts were made to prevent removal or that reasonable
efforts to prevent removal were not required in accordance with
paragraph (b)(5) of this section must be made at the first full hearing
pertaining to removal of the child or no later than 60 days after a
child has been removed from home, whichever is first. A State may claim
Federal financial participation from the first day of the month in
which all eligibility criteria have been met.
(iii) If the determination concerning reasonable efforts to prevent
removal is not made as specified in clause (ii) above, the child is not
eligible under the title IV-E foster care maintenance payments program
for the duration of that stay in foster care.
(3) Judicial determination of reasonable efforts to reunify the
child and family. (i) The court must determine that the State agency
made reasonable efforts to reunify the family within twelve months of
the date the child enters foster care when the permanent plan or goal
for the child is to reunify the family, and at least once every twelve
months thereafter as long as the permanent plan or goal is
reunification. If such a judicial determination regarding reasonable
efforts to reunify is not made, the child becomes ineligible under
title IV-E from the end of the twelfth month following the date the
child entered foster care or the most recent judicial determination of
reasonable efforts to reunify, and remains ineligible until such a
determination is made.
(ii) When, in accordance with paragraph (b)(5), the court
determines that reasonable efforts to reunify the child and family are
not required, the State must hold a permanency hearing within 30 days
of such a determination, unless the requirements of the permanency
hearing are fulfilled at the hearing in which the aforementioned
determination was made.
(4) Judicial determination of reasonable efforts to make and
finalize permanent placements other than reunification. The court must
determine that the State agency made reasonable efforts to make and
finalize a child's permanent placement at least once every twelve
months from the date the permanency goal becomes adoption or placement
in another permanent home. If such a judicial determination regarding
reasonable efforts to make and finalize a permanent placement is not
made, the child will become ineligible under title IV-E from the end of
the
[[Page 50094]]
twelfth month following the date the alternate permanency goal was
established or the most recent judicial determination of reasonable
efforts to make and finalize a permanent placement, and will remain so
until such a determination is made.
(5) Circumstances in which reasonable efforts are not required to
prevent a child's removal from home or to reunify the child and family.
Reasonable efforts to prevent a child's removal from home or to reunify
the child and family are not required if the State agency obtains a
judicial determination that such efforts are not required because:
(i) a court of competent jurisdiction has determined that the
parent has subjected the child to aggravated circumstances (as defined
in State law, which definition may include but need not be limited to
abandonment, torture, chronic abuse, and sexual abuse);
(ii) a court of competent jurisdiction has determined that the
parent has:
(A) committed murder (which would have been an offense under
section 1111(a) of title 18, United States Code, if the offense had
occurred in the special maritime or territorial jurisdiction of the
United States) of another child of the parent;
(B) committed voluntary manslaughter (which would have been an
offense under section 1112(a) of title 18, United States Code, if the
offense had occurred in the special maritime or territorial
jurisdiction of the United States) of another child of the parent;
(C) aided or abetted, attempted, conspired, or solicited to commit
such a murder or such a voluntary manslaughter; or
(D) committed a felony assault that results in serious bodily
injury to the child or another child of the parent; or,
(iii) the parental rights of the parent to a sibling have been
terminated involuntarily.
(6) Reasonable efforts to place a child for adoption or with a
legal guardian may be made concurrently with reasonable efforts to
reunify.
(7) The State may use the Federal Parent Locator Service to search
for absent parents in order to facilitate the permanency plan.
(c) Contrary to the welfare determination. Under section 472(a)(1)
of the Act, a child's removal from the home must have been the result
of a judicial determination (unless the child was removed pursuant to a
voluntary placement agreement) to the effect that continuation of
residence in the home would be contrary to the welfare, or that
placement would be in the best interests, of the child.
(1) In nonemergency situations. When a child is removed from home
pursuant to a court order, the court must make the ``contrary to the
welfare'' determination prior to the removal of the child from home.
The judicial determination must be documented in the court order which
removes the child from home. If such a judicial determination is not
made prior to the removal, the child is not eligible for title IV-E
foster care maintenance payments for the duration of his/her stay in
foster care.
(2) In emergency situations. When it is necessary to remove a child
from home prior to obtaining a court order, the ``contrary to the
welfare'' determination must be made in the first court ruling that
sanctions (even temporarily) the removal of a child from home. If the
determination regarding ``contrary to the welfare'' is not made in the
first court ruling pertaining to removal from the home, the child is
not eligible for title IV-E foster care maintenance payments for the
duration of his/her stay in foster care.
(d) Documentation of judicial determinations. The judicial
determinations regarding ``contrary to the welfare'' and ``reasonable
efforts'' to prevent removal, reunify the family, make and finalize a
permanent placement, and that reasonable efforts are not required must
be explicit and must be made on a case-by-case basis and so stated in
the court order.
(1) If the ``reasonable efforts'' and ``contrary to the welfare''
judicial determinations are not included as required in the court
orders identified in paragraphs (b) and (c) of this section, a
transcript of the court proceedings is the only other documentation
that will be accepted to verify that these required determinations have
been made.
(2) Neither affidavits nor nunc pro tunc orders will be accepted as
verification documentation in support of ``reasonable efforts'' and
``contrary to the welfare'' judicial determinations.
(3) Court orders which reference and rely on State law to
substantiate that judicial determinations have been made are not
acceptable, even if State law provides that a removal must be based on
a judicial determination that remaining in the home would be contrary
to the child's welfare or that removal can only be ordered after
reasonable efforts have been made.
(e) Trial home visits. A trial home visit must not exceed six
months in duration, unless a longer visit is ordered by a court. If a
trial home visit extends beyond six months and has not been authorized
by the court, or exceeds the time period the court has deemed
appropriate, and the child is subsequently returned to a foster care
setting, that placement must then be considered a new placement and
title IV-E eligibility must be re-established. Under these
circumstances, a new court order removing the child from the home,
including judicial determinations regarding ``contrary to the welfare''
and ``reasonable efforts'' to prevent removal, is required.
(f) Case review system. In order to satisfy the provisions of
section 471(a)(16) of the Act regarding a case review system, each
State's case review system must meet the requirements of sections
475(5) and 475(6) of the Act.
(g) Case plan requirements. In order to satisfy the case plan
requirements of sections 471(a)(16), 475(1) and 475(5)(A) and (D) of
the Act, the State agency must promulgate policy materials and
instructions for use by State and local staff to determine the
appropriateness of and necessity for the foster care placement of the
child. The case plan for each child must:
(1) Be a written document, which is a discrete part of the case
record, in a format determined by the State, which is developed jointly
with the parent(s) or guardian of the child in foster care; and
(2) Be developed within a reasonable period, to be established by
the State, but in no event later than 60 days from the time the State
agency assumes responsibility for providing services including placing
the child; and
(3) Include a discussion of how the case plan is designed to
achieve a safe placement for the child in the least restrictive (most
family-like) setting available and in close proximity to the home of
the parent(s) when the case plan goal is reunification and a discussion
of how the placement is consistent with the best interest and special
needs of the child; and
(4) Include a description of the services offered and the services
provided to prevent removal of the child from the home, to reunify the
family, and to finalize a placement when the case plan goal is or
becomes adoption or placement in another permanent home in accordance
with sections 475(1)(E) and (5)(E) of the Act.
(This requirement has been approved by the Office of Management and
Budget (OMB) under OMB control number 0980-0140)
(h) Application of permanency hearing requirements. (1) If a State
chooses to claim Federal financial participation (FFP) for the costs of
foster care maintenance payments, it must, among other requirements,
comply with those in section 475(5)(C) of the Act.
[[Page 50095]]
(2) The provisions of this paragraph and section 475(5)(C) of the
Act apply to all children under the responsibility of the title IV-E
State agency for placement and care, except for a child with special
needs or circumstances which prevent his or her return to the home or
being placed for adoption. If this child is placed in a court-
sanctioned permanent foster family home with a family caregiver
specified by the court, no permanency hearings are required during that
specified permanent placement. If the foster care placement of this
child is subsequently changed, the State is again required to hold
permanency hearings, the first of which must be held within three
months of the date of such change.
(3) In accordance with paragraph (b)(5) of this section, when a
court determines that reasonable efforts to return the child home are
not required, a permanency hearing must be held within 30 days of that
determination, unless the requirements of the permanency hearing are
fulfilled at the hearing in which the aforementioned determination was
made.
(4) If the State concludes, after considering other permanency
options, that the most appropriate permanency plan for a child is
placement in a permanent foster family home, the State must document,
to the State court, the compelling reason which prevented the child
from being placed in an adoptive home, with a relative, or with a legal
guardian. An example of a compelling reason for establishing such a
permanency goal is the case of an older teen who specifically requests
that such a goal be established.
(5) When an administrative body, appointed or approved by the
court, conducts the permanency hearing, the procedural safeguards set
forth in the definition of permanency hearing must be so extended by
the administrative body.
(i) Application of the requirements for filing a petition to
terminate parental rights at section 475(5)(E) of the Social Security
Act. (1) Unless one of the exceptions at subparagraph (2) exists, the
State must file a petition (or, if such a petition has been filed by
another party, seek to be joined as a party to the petition) to
terminate the parental rights of a parent(s):
(i) whose child has been in foster care under the responsibility of
the State for 15 of the most recent 22 months. The petition must be
filed by the end of the child's fifteenth month in foster care. In
calculating when to file a petition for termination of parental rights,
the State:
(A) must use the date the child entered foster care as defined at
section 475(5)(F) of the Act as the date from which the 22 month clock
begins for calculating the 15 months in foster care;
(B) must use a cumulative method of calculation when a child
experiences multiple exits from and entries into foster care during the
22 month period;
(C) must not include trial home visits or runaway episodes in
calculating 15 months in foster care; and,
(D) need only apply section 475(5)(E) to a child once if the State
does not file a petition because one of the exceptions at paragraph (2)
of this section applies;
(ii) whose child has been determined by a court of competent
jurisdiction to be an abandoned infant (as defined under State law).
The petition to terminate parental rights must be filed within 60 days
of the judicial determination that the child is an abandoned infant;
or,
(iii) who has been found, by a court of competent jurisdiction, to
have committed one of the felonies listed at paragraph (b)(5)(ii) of
this section. Under such circumstances, the petition to terminate
parental rights must be filed within 60 days of a judicial
determination that reasonable efforts to reunify the child and parent
are not required.
(2) The State may elect not to file or join a petition to terminate
the parental rights of a parent per paragraph (i)(1) of this section
if:
(i) at the option of the State, the child is being cared for by a
relative;
(ii) the State agency has documented in the case plan (which must
be available for court review) a compelling reason for determining that
filing such a petition would not be in the best interests of the child.
Two examples of compelling reasons for not filing a petition to
terminate parental rights are:
(A) that adoption is not the appropriate permanency goal for the
child; or,
(B) insufficient grounds for filing a petition to terminate
parental rights exist; or,
(iii) the State agency has not provided to the family, consistent
with the time period in the case plan, services that the State deems
necessary for the safe return of the child to the home, when reasonable
efforts to reunify the family are required.
(3) When the State files or joins a petition to terminate parental
rights in accordance with paragraph (i)(1) of this section, it must
concurrently identify, recruit, process, and approve a qualified
adoptive family for the child.
(j) Child of a minor parent in foster care. Foster care maintenance
payments made on behalf of a child placed in a foster family home or
child-care institution, who is the parent of a son or daughter in the
same home or institution, must include amounts which are necessary to
cover costs incurred on behalf of the child's son or daughter. Said
costs must be limited to funds expended on those items described in the
definition of foster care maintenance payments.
(k) Removal from the home of a specified relative.
(1) For the purposes of meeting title IV-E eligibility under the
requirements of section 472(a)(1) of the Act, the term removal from the
home applies if a child had been living with a parent or other
specified relative within six months of:
(i) a voluntary placement agreement entered into by such parent or
relative which leads to physical removal of the child from the home;
(ii) a State agency's initiation of court proceedings which results
in a judicial removal of the child from such parent or relative; or
(iii)the State agency's physical removal of the child from the home
of another specified relative, or a court-ordered removal of custody
from the specified relative while the child was residing in the home of
an interim caretaker.
(2) Under the circumstances described in paragraph (k)(1) of this
section, the act of ``removal from the home'' must have occurred for
the purposes of title IV-E eligibility. This does not include
situations where legal custody is removed from the parent or relative
and the child remains with the same relative in that home under
supervision by the State agency.
(l) Living with a specified relative. For purposes of meeting the
requirements for living with a specified relative prior to removal from
the home under section 472(a)(1) of the Act and all of the conditions
under section 472(a)(4), either of the two following situations may
apply:
(1) The child was living with and physically removed from the home
of the parent or specified relative and was AFDC eligible in that home
in the month of initiation of court proceedings, as well as at the time
of removal; or
(2) The child was removed from the custody of the parent or
specified relative with whom the child had been living within six
months of the month in which court proceedings were initiated and the
child would have been AFDC eligible in that month if he/she had still
been living in that home.
(m) Review of payments and licensing standards. In meeting the
requirements of section 471(a)(11) of the Act, the State must review at
reasonable, specific,
[[Page 50096]]
time-limited periods to be established by the State:
(1) The amount of the payments made for foster care maintenance and
adoption assistance to assure their continued appropriateness; and
(2) The licensing or approval standards for child care institutions
and foster family homes.
(n) Foster care goals. The specific foster care goals required
under section 471(a)(14) of the Act must be incorporated into State law
by statute or administrative regulation provided such administrative
regulation has the force of law.
(o) Notice and opportunity to be heard. The State must provide the
foster parent(s) of a child and any preadoptive parent or relative
providing care for the child with notice of and an opportunity to be
heard in permanency planning hearings and reviews held with respect to
the child during the time the child is in the care of such foster
parent, preadoptive parent, or relative caregiver. Notice of and an
opportunity to be heard does not provide a foster parent, preadoptive
parent, or a relative caring for the child with standing as a party to
the case.
7. Section 1356.30 is redesignated as section 1356.22 and
paragraphs (a) and (b) revised to read as follows:
Sec. 1356.22 Implementation requirements for children voluntarily
placed in foster care.
(a) As a condition of receipt of Federal financial participation
(FFP) in foster care maintenance payments for a dependent child removed
from his home under a voluntary placement agreement, the State must
meet the requirements of:
(1) Section 472 of the Act, as amended;
(2) Sections 422(b)(10) and 475(5) of the Act;
(3) 45 CFR 1356.21(h), (i), and (j); and
(4) The requirements of this section.
(b) Federal financial participation is available only for voluntary
foster care maintenance expenditures made within the first 180 days of
the date the voluntary placement agreement was signed by all pertinent
parties unless there has been a judicial determination by a court of
competent jurisdiction, within the first 180 days of the date the
voluntary placement agreement was signed, to the effect that the
continued voluntary placement is in the best interests of the child.
(c) The State agency must establish and maintain a uniform
procedure or system, consistent with State law, for revocation by the
parent(s) of a voluntary placement agreement and return of the child.
8. New Sec. 1356.30 is added to read as follows:
Sec. 1356.30 Safety requirements for foster care and adoptive home
providers.
(a) Unless an election provided for in paragraph (d) of this
section is made, the State must provide documentation that criminal
records checks have been conducted with respect to prospective foster
and adoptive parents.
(b) The State may not approve or license any prospective foster or
adoptive parent, nor may the State claim FFP for any foster care
maintenance or adoption assistance payment made on behalf of a child
placed in a foster home operated under the auspices of a child placing
agency or on behalf of a child placed in an adoptive home through a
private adoption agency, if the State finds that, based on a criminal
records check conducted in accordance with paragraph (a) of this
section, that a court of competent jurisdiction has determined that the
prospective foster or adoptive parent has been convicted of a felony
involving:
(1) child abuse or neglect;
(2) spousal abuse;
(3) a crime against children (including child pornography); or,
(4) a violent crime, including rape, sexual assault, or homicide,
but not including other physical assault or battery.
(c) The State may not approve or license any prospective foster or
adoptive parent, nor may the State claim FFP for any foster care
maintenance or adoption assistance payment made on behalf of a child
placed in a foster home operated under the auspices of a child placing
agency or on behalf of a child placed in an adoptive home through a
private adoption agency, if the State finds, based on a criminal
records check conducted in accordance with paragraph (a) of this
section, that a court of competent jurisdiction has determined that the
prospective foster or adoptive parent has, within the last five years,
been convicted of a felony involving:
(1) physical assault;
(2) battery; or,
(3) a drug-related offense.
(d) (1) The State may elect not to conduct or require criminal
records checks on prospective foster or adoptive parents by:
(i) notifying the Secretary in a letter from the Governor; or
(ii) enacting State legislation.
(2) Such an election also removes the State's obligation to comport
with paragraphs (b) and (c) of this section.
(e) In all cases where no criminal records check was conducted, the
licensing file for that foster family, adoptive family, child care
institution, or relative placement must contain documentation that
safety considerations with respect to the caretaker(s) have been
addressed.
Secs. 1356.65, 1356.70 [Removed]
8. Sec. 1356.65 and Sec. 1356.70 are removed.
9. New Sec. 1356.71 is added to read as follows:
Sec. 1356.71 Federal review of the eligibility of children in foster
care and the eligibility of foster care providers in title IV-E
programs.
(a) Purpose and scope. (1) This section sets forth requirements
governing Federal reviews of State compliance with the title IV-E
eligibility provisions as they apply to children and foster care
providers under paragraphs (a) and (b) of section 472 of the Act.
(2) The requirements of this section apply to State agencies that
receive Federal payments for foster care under title IV-E of the Act.
(b) Composition of review team and preliminary activities preceding
an on-site review. (1) The review team must be composed of
representatives of the State agency, and ACF's Regional and Central
Offices.
(2) The State must be responsible for providing ACF with the
complete payment history for each of the sample and oversample cases
prior to the on-site review.
(c) Sampling guidance and conduct of review. (1) The list of
sampling units in the target population (i.e., the sampling frame) will
be drawn by ACF statistical staff from the Adoption and Foster Care
Analysis and Reporting System (AFCARS) data which are transmitted by
the State agency to ACF. The sampling frame will consist of cases of
children who were eligible for foster care maintenance payments during
the reporting period reflected in a State's most recent AFCARS data
submission. If these data are not available or are deficient, an
alternative sampling frame will be selected by ACF in conjunction with
the State agency.
(2) A sample of 80 cases (plus a 10 percent oversample of eight
cases) from the title IV-E foster care program will be selected for the
first review utilizing probability sampling methodologies. Usually, the
chosen methodology will be simple random sampling, but other
probability samples may be utilized, when necessary and appropriate.
(3) Cases from the oversample will be substituted and reviewed for
each of the original sample of 80 cases which is listed in error in
AFCARS.
[[Page 50097]]
(4) At the completion of the first eligibility review, the review
team will determine the number of ineligible cases. When the total
number of ineligible cases does not exceed eight, ACF can conclude with
a probability of 88 percent that in a population of 1000 or more cases
the population ineligibility case error rate is less than 15 percent.
(Three years after the date the final rule becomes effective, the
acceptable population ineligibility case error rate threshold will be
reduced from less than 15 percent (eight ineligible cases) to less than
10 percent (four ineligible cases)). A State agency which meets this
standard is considered to be in ``substantial compliance'' (see
paragraph (h) of this section). A disallowance will be assessed for the
ineligible cases for the period of time the cases have been determined
to be ineligible.
(5) A State which has been determined to be in ``non-compliance''
(i.e., not in substantial compliance) will be required to develop a
program improvement plan according to the specifications discussed in
paragraph (i) of this section, as well as undergo a second on-site
review. For the second review, a sample of 150 cases (plus a 10 percent
oversample of 15 cases) will be drawn from the most recent AFCARS
submission. Cases from the oversample will be substituted and reviewed
for each of the original sample of 150 cases which is listed in error
in AFCARS.
(6) At the completion of the second eligibility review, the review
team will calculate both the sample case ineligibility and dollar error
rates for the cases determined ineligible during the review. An
extrapolated disallowance equal to the lower limit of a 90 percent
confidence interval for the population total dollars in error for the
amount of time corresponding to the AFCARS reporting period will be
assessed if both the child/provider (case) ineligibility and dollar
error rates exceed 10 percent. If neither, or only one, of the error
rates exceeds 10 percent, a disallowance will be assessed only for the
ineligible cases for the period of time the cases have been determined
to be ineligible. The State must provide the payment history for all
165 cases at the beginning of the eligibility review.
(d) Requirements subject to review. States will be reviewed against
the requirements of title IV-E of the Act regarding:
(1) The eligibility of the children on whose behalf the foster care
maintenance payments are made (section 472(a)(1)-(4) of the Act).
(2) The eligibility of the providers of foster care (see sections
471(a)(20), 472(b) and (c), and 475(1) of the Act).
(e) Review instrument. A title IV-E foster care eligibility review
checklist will be used when conducting the eligibility review.
(f) Eligibility determination--child. The case record of the child
must contain proper and sufficient documentation to verify a child's
eligibility in accordance with paragraph (d)(1), in order to
substantiate payments made on the child's behalf.
(g) Eligibility determination--provider.
(1) For each case being reviewed, the State agency must make
available a licensing file which contains the licensing history,
including a copy of the certificate of licensure/approval or letter of
approval, for each of the providers in the following categories:
(i) Public child-care institutions with 25 children or less in
residence;
(ii) Private child-care institutions;
(iii) Group homes; and
(iv) Foster family homes, including relative homes.
(2) The licensing file must contain documentation that the State
has complied with the safety requirements for foster, relative, and
adoptive placements in accordance with Sec. 1356.30.
(3) If the licensing file does not contain sufficient information
to support a child's placement in a licensed facility, the State agency
may provide supplemental information from other sources (e.g., a
computerized database).
(h) Standards of compliance. (1) Disallowances will be taken, and
plans for program improvement required, based on the extent to which a
State is not in substantial compliance with recipient or provider
eligibility provisions of title IV-E, or applicable regulations in 45
CFR Parts 1355 and 1356.
(2) Substantial compliance and non-compliance are defined as
follows:
(i) Substantial compliance--For the first review (of the sample of
80 cases), eight or fewer of the title IV-E cases reviewed must be
determined to be ineligible. (This critical number of ``errors'', i.e.,
ineligible cases, is reduced to four errors or less, three years after
the final rule becomes effective). For the second review (if required),
substantial compliance means either the case ineligibility or dollar
error rate does not exceed 10 percent.
(ii) Noncompliance--means not in substantial compliance. For the
first review (of the sample of 80 cases), nine or more of the title IV-
E cases reviewed must be determined to be ineligible. (This critical
number of ``errors'', i.e., ineligible cases, is reduced to five or
more three years after the final rule becomes effective). For the
second review (if required), noncompliance means both the case
ineligibility and dollar error rates exceed 10 percent.
(3) The ACF will notify the State in writing within 30 calendar
days after the completion of the on-site eligibility review of whether
the State is, or is not, operating in substantial compliance.
(4) States which are determined to be in substantial compliance
must undergo a subsequent review after a minimum of three years.
(i) Program improvement plans. (1) States which are determined to
be in noncompliance with recipient or provider eligibility provisions
of title IV-E, or applicable regulations in 45 CFR Parts 1355 and 1356,
will develop a program improvement plan designed to correct the areas
determined not to be in substantial compliance. The program improvement
plan will:
(i) Be developed jointly by State and Federal staff;
(ii) Identify the areas in which the State's program is not in
substantial compliance;
(iii) Not extend beyond one year (i.e., a State will have a maximum
period of one year in which to implement the provisions of the program
improvement plan); and
(iv) Include:
(A) specific goals;
(B) the action steps required to correct each identified weakness
or deficiency; and,
(C) a date by which each of the action steps is to be completed.
(2) States determined not to be in substantial compliance as a
result of the first review must submit the program improvement plan to
ACF for approval within 60 calendar days from the date the State
receives the written notification that it is not in substantial
compliance. This deadline may be extended an additional 30 calendar
days when a State agency submits additional documentation to ACF in
support of cases determined to be ineligible as a result of the on-site
eligibility review.
(3) The ACF Regional Office will intermittently review, in
conjunction with the State agency, the State's progress in completing
the prescribed action steps in the program improvement plan.
(4) If a State agency's program improvement plan is not submitted
for approval in accordance with the provisions of paragraph (i)(1) and
(2) of this section, funds will be disallowed
[[Page 50098]]
pursuant to the provisions of paragraph (k) of this section.
(j) Disallowance of funds. The amount of funds to be disallowed
will be determined by the extent to which a State is not in substantial
compliance with recipient or provider eligibility provisions of title
IV-E, or applicable regulations in 45 CFR Parts 1355 and 1356.
(1) States which are in found to be in substantial compliance
during the first or second review will have disallowances (if any)
determined on the basis of individual cases reviewed and found to be in
error. The amount of disallowance will be computed on the basis of
payments associated with ineligible cases for the entire period of time
that each case has been determined to be ineligible.
(2) States which are found to be in noncompliance during the first
review will have disallowances determined on the basis of individual
cases reviewed and found to be in error, and must implement a program
improvement plan in accordance with the provisions contained within it.
A second review will be conducted no later than during the AFCARS
reporting period which immediately follows the program improvement plan
completion date on a sample of 150 cases drawn from the State's most
recent AFCARS data. If both the case ineligibility and dollar error
rates exceed 10 percent the State is in non-compliance and an
additional disallowance will be determined based on extrapolation from
the sample to the universe of claims paid for the duration of the
AFCARS reporting period. If either the case ineligibility or dollar
rate does not exceed 10 percent, the amount of disallowance will be
computed on the basis of payments associated with ineligible cases for
the entire period of time the case has been determined to be
ineligible.
(3) The State agency will be liable for interest on the amount of
funds disallowed by the Department, in accordance with the provisions
of 45 CFR 30.13.
(4) States may appeal any disallowance actions taken by ACF to the
HHS Departmental Appeals Board in accordance with regulations at 45 CFR
Part 16.
[FR Doc. 98-24944 Filed 9-17-98; 8:45 am]
BILLING CODE 4184-01-P
