House Revives Family First Act with Amendments and Real Shot to Pass

Thought by many to be left for dead by a handful of Senate objectors, the Family First Preservation Services Act has been given new life as part of a larger bill. And on the coattails of that legislation, this significant reform to how foster care is financed has a real chance to become law before Congress adjourns for the holidays.

The House Ways and Means Committee attached a revised version of Family First to the 21st Century Cures Act, the central provisions of which pertain to the way the Food and Drug Administration approves medications and medical devices. The Cures Act also funds an increase in the research budget of the National Institutes of Health, and designates $1 billion in federal funds to help fight America’s growing opioid epidemic.

The House is expected to vote on and pass the bill by Wednesday. And U.S. News and World Report reported in a summary of the debate on the Cures Act that Obama would likely sign the bill.

This leaves the Senate as the lone question mark on the bill. A sign that it will at least get a floor vote: Senate Majority Leader Mitch McConnell (R-Ky.) said the Cures Act and funding the government are his only legislative priorities for the lame-duck session.

“I’d like to see us finish that important new measure this year,” McConnell told Dani Kass of Law360.com this week. Medical news website STAT reported over the weekend that negotiations were ongoing between McConnell and Senate Democrats about a final Senate version of the Cures Act.

Family First would, for the first time, enable states to use federal Title IV-E dollars to pay for time-limited services to help families with children who are at risk of entering foster care. Title IV-E is an entitlement program that currently can only be used to pay for foster care and adoption.

The act would also cut off federal funding for most congregate care settings, including group homes, after two weeks.

Changes to Bill

The version of Family First in this package includes several revisions aimed at addressing concerns voiced by critics of the legislation, including state and county child welfare agencies in California and New York. Upon first review of the new text, it seems clear to Youth Services Insider that the biggest change is a relaxing of the limitations on federal funds for congregate care.

As in the previous version, the bill cuts off federal funds for congregate placements after two weeks. And as with the previous version, the bill offers exceptions for homes serving pregnant foster youth, supervised living placements for those over 18, and qualified residential treatment programs (QRTP), a new classification of placements that require the presence of clinical staff and accreditation.

But the new version includes a fourth exception for “a setting providing high quality residential care and supportive services and youth who have been found to be, or are at risk of becoming, sex trafficking victims.” This was a population many felt were excluded unfairly from the first rounds of Family First.

The onus will be on the Department of Health and Human Services (HHS) to sharpen the definitions of “high quality” and “at risk of becoming” in program instructions to states. Here is what the Children’s Bureau, a division of HHS, had to say about the nexus of child welfare and trafficking in a 2015 issue brief:

Children and youth involved with the child welfare system due to abuse or neglect and then placed in foster care or group homes — as well as youth who are involved with the justice system, are homeless, or have run away — are all at high risk of being trafficked.

If HHS applies that same interpretation to this bill – that any person placed in foster care is at high risk of being trafficked – then any residential program that is deemed “high-quality” could be exempted from the congregate care limits.

The new Family First version also relaxes the clinical staffing requirements for a QRTP if a state can show that its average length of stay in foster care is under nine months, and that it either holds less than five percent of its foster care population in congregate care settings or has reduced the size of the group by 20 percent since a preceding fiscal year.

Another significant change comes in language that holds harmless any placement involved in prevention services from factoring into the IV-E foster care eligibility determination for a child.

IV-E prevention services under Family First are available for any child; there is no eligibility test, other than the designation that a child is at “imminent risk” of entering foster care.

The new prevention funds are meant to prevent the need for foster care in the sense of placement with strangers, or long-term stays with kin. But it was always envisaged that, in cases where parents needed significant help with addiction or mental health issues, relatives would take children in for short periods.

But IV-E federal payments for foster care are based in large part on the income of the caretaker. Child welfare systems do not receive federal foster care reimbursement for kids whose caretakers’ incomes are above 1996 poverty levels (yes, that standard is as stupid as it sounds).

There was concern that in cases where Family First-funded prevention services failed in quickly reuniting parent and child, an unintended consequence might be that the system would lose federal support for the child’s foster care placement. This version makes clear that this could not be a factor.

Back from The Dead

Under Family First, a state or county agency could use matched IV-E dollars for time-limited services for 12 months after identifying a child deemed at risk of being removed to foster care. States would be responsible for developing a federally approved plan for such services, and would eventually have to report on the impact of these services. State agencies would need to show results; by 2021, they will need to report how many children deemed at risk of foster care did not end up in foster care after these services were rendered.

Earlier iterations of the bill cast a wide net on what might be considered time-limited prevention services, including assistance with affordable and safe housing. The draft planned for next week includes just three areas: mental health, substance abuse treatment and “in-home parent skill-based programs.”

Family First would also reframe the use of Title IV-B money, a much smaller block of funds that go to states to focus on the reunification of children in foster care. The bill would remove the 12-month time limit for reunification services, and then also allow for service continuation after the child has returned home.

As Congress headed home in September, many proclaimed Family First to be dead, because it was partially paid for with the delay of some guarantees of more federal funds for adoption assistance, a concession largely embraced by the adoption advocacy community. Others suggested to Youth Services Insider that nothing is truly dead in the bizarre world of Washington politics.

Those folks appear to be correct. When the clock struck October, meaning a new fiscal year had begun, Family First lost a big chunk of the savings from that delay. But the new version in the Cures Act appears to simply further delay the adoption funding for another fiscal year to keep the bill viable.

The new text of the Family First bill can be viewed by clicking here and searching for Division D of this fairly lengthy (900-some page) script of the Cures Act.

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John Kelly
About John Kelly 1046 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.