Common Ground on Family First Concerns: Kinship Protection and Nurse-Narrowing

The Family First Prevention Services Act will either pass in September or drift into the ether, never to be heard from again. And it will live or die as is; there won’t be changes to it.

If Family First does pass, opponents of the bill will surely seek administrative rules and/or follow-up legislation to address some of their concerns. And there do seem to be some points about the bill that everyone acknowledges will need addressing. Following are a look at two of those.

Relatives and Removal

YSI-MB-PageThe federal IV-E entitlement for foster care operates on a selective reimbursement basis. State and county agencies receive funds for youth placed into care, but not for every child.

The primary test for federal support is whether the biological parent(s) live below the poverty line from fiscal year 1996.

Normally, this is a straightforward, although many would say ludicrous, proposition. If the child is removed from a parent, and the parent meets the income test, then the child is IV-E eligible.

The test becomes less clear if the child has been placed with a relative.

In that case, if the child has been there in the relative’s legal custody for the past six months, it would be the relative’s home that the IV-E income test applies to if the child ends up being taken into foster care.

So let’s say a mom loses custody, and child goes to grandma. A year goes by, grandma can’t handle the child anymore because of an illness. In this situation, the federal government will only share the cost of foster care through IV-E if the grandmother meets that 1996 income test.

If she doesn’t, the state or county’s choices are to pay in full for foster care, or try to reunify the child with his parent. And the worry there is that one of those options is going to cost a lot more than the other.

This is not a Family First problem. That scenario can happen right now. But some advocates in California have raised the concern that if Family First takes effect, systems would be put in this situation a lot more often.

That’s because Family First opens up the IV-E entitlement dollars for time-limited substance abuse and mental health treatments to help address maltreatment without needing foster care. In some of those cases, children might live with the parent while treatment is ongoing. But the expectation is that many children will live with relatives during these time-limited services.

So let’s say a mom goes through six months of drug treatment while her child lives with an aunt. She returns home, and the child stays with the aunt for a few months while she tries to get back on her feet. But mom relapses, and the system ponders a foster care removal now that time-limited services have not worked.

The child in that case is only IV-E eligible if the aunt’s home meets the 1996 income test. If the aunt isn’t IV-eligible, then the state or county must now pay for 100 percent of foster care placements.

To demonstrate the perverseness of the standard in this case: If that child had gone home for just one month to live with mom before she relapsed, and the mom was IV-E eligible, then he could have gone right back to the aunt with full IV-E support if she was still willing.

Youth Services Insider has it on pretty good authority that Congressional leadership on the bill are aware of the potential unintended consequence here, and will move to clean it up. It would likely involve either legislation or regulation that exempted custody transfers involved in the IV-E time-limited services from the six-month rule for eligibility tests.

Clinical Congregate

One of Family First’s two primary goals is to reduce the federal support of congregate care placements for youth in foster care. The bill caps federal support for such placements at two weeks, with three notable exceptions:

  • Qualified residential treatment programs (QRTP).
  • A prenatal, postpartum or parenting support program.
  • An independent living program for people who remain in foster care after age 18.

The latter two are straightforward, but the QRTP is a class essentially created by this bill. Among the specified hallmarks of a QRTP, per Family First, is the presence of nursing and clinical staff during business hours and on-call at all times.

This prompted concern about the costs involved for a congregate provider to staff registered nurses at that level. It also raised questions about the concept of presence; many programs have staff who do their work with youth outside the brick and mortar of a congregate setting. Would that not count?

It is a tricky part of the legislation. The new QRTP standards are the main driver of federal limitation on congregate care funding, so they need to have meaning. Some bill opponents have suggested they are too stringent; on the other side, family preservation advocate Richard Wexler thinks the standards aren’t worth the paper they are written on.

Family First’s chief architects, Sens. Orrin Hatch (R-Utah) and Ron Wyden (D-Ore.), attempted to address concerns about QRTP standards in what’s known as a “colloquy,” a informal written dialogue meant to address issues with legislation.

In the colloquy, the two make it clear that there is a lot of flexibility on both issues. Following is a lengthy part of their discussion that covers these issues.

Sen. Wyden: I would also like to clarify something with my colleagues around the nursing staff language in this legislation. Is it true that there is no statutory definition of what exactly comprises “nursing staff”?

Senator Hatch: That is correct. Federal statute does not define the term “nursing staff”. When such a term is not defined, typically agencies refer to how each State defines the term and the scope of practice. If the term is not defined, one would interpret the term to mean a person licensed to provide nursing services in the State where the services are provided. Staff nurses are typically employed by the facility or employer through which they provide their services. 

I also believe that since there is no statutory definition of “nursing staff,” this term can be applied to persons capable of administering nursing services, but who are not registered nurses (RNs).

Is this your understanding as well, Senator Wyden?

Senator Wyden: Yes, I do think the term can be interpreted to include nursing personnel who are not registered nurses.

Senator Hatch: I understand that if enacted, HHS would need to interpret the nursing provisions through the regulatory process.  Are you aware of how HHS would interpret the term, “registered or licensed nursing staff”?

Senator Wyden: For child welfare purposes, HHS has indicated that they are unaware of any federal law or regulation that provides a tight definition of the term. Absent existing or new regulations, at this point they report that they would look to the State to verify that their State-specific standard is met. Nursing licensing standards and processes vary quite a bit by State. Some States have separate boards that provide licenses for different kinds of nurses, including as licensed practical nurses (LPNs), licensed vocational nurses, and registered nurses. Again, given the different processes in each State, HHS believes they would currently rely on each State’s individual child welfare interpretation when determining if the “registered or licensed nursing staff” requirement has been met.

Senator Wyden: So, we agree that a skilled nursing staff is a critical feature of a QRTP, but also that there is a great deal of flexibility in terms of how nursing staff is defined. 

In many States there are some tremendously effective programs that have these staff working on site some of the time and in the community some of the time. Some staff also work during nights and weekends. Does the bill’s requirement that these staff be on-site during business hours preclude these programs from operating as qualified residential treatment programs, or QRTPs?

Sen. Hatch: To clarify, nothing in this language would prevent a program from operating in the ways you described. The QRTP definition refers to a set of program standards, not a brick and mortar facility. Staff in QRTPs serving children with behavioral and emotional challenges need to be where the children in the program are. Clinical and nursing staff that are available to provide services in the community to children being served by the qualified residential treatment program certainly would be considered to be “on-site” for the purposes of this bill.

We want to ensure that federal dollars flow only to group care settings that offer treatment to meet the needs of children with behavioral or emotional challenges who cannot be cared for by their parents, with kin or in family foster homes. We also want to make sure that these most vulnerable young people are getting the treatment they need. It is common for these staff to provide services to children on nights and weekends.

Again, the language about having nurses and clinical staff available 24-7 would certainly allow that. We also want to ensure that these young people do not live or spend unnecessary time in a QRTP. Therefore, the QRTP must be equipped to effectively treat them and return them to a family setting, not to institutions. This is difficult and demanding work.

Sen. Wyden: I agree that the intention with this language is to ensure that we have qualified nursing and clinical staff available to meet whatever treatment needs the children have and wherever they can best be met. It is not meant to be interpreted as constraining programs from doing the type of innovative and trauma-informed work you are describing.

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John Kelly
About John Kelly 1131 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.