A pair of California-based child advocacy groups is calling for drastic changes to the way that state compliance with federal child welfare laws is monitored, and the way that states are penalized for compliance failure.
A state should not receive any federal child welfare funding unless and until it is in “substantial compliance with the requirements set forth in all child welfare laws,” according to Shame on U.S., a scathing report published today by the San Diego-based Children’s Advocacy Institute (CAI) and the Los Angeles-based First Star.
“States are consistently failing to protect abused and neglected children with little to no consequence from the executive branch,” said CAI Attorney Elisa Weichel in a statement. “It is even less understood that many federal courts have denied private citizens the right to file suit for violations of federal child welfare law. This report connects these dots for the first time, holding all three branches accountable, pointing out their inter-related failures and the critical need to cure these deficiencies.”
The report has been shared with current leadership at the Department of Health and Human Services (HHS), and an early version was shown to former leaders. HHS has not commented publicly on the report.
The report is a product of three years of research on the way that compliance with federal child welfare laws is carried out. “What we learned through the documents provided, those not provided, and those that do not exist — as well as our interviews and research over the last three years — is deeply disturbing,” the report says.
The report takes specific issue with three aspects of compliance:
Child and Family Services Reviews (CFSR)
The CFSR has been conducted twice in each state by the Department of Health and Human Services (HHS), and gauges the state’s performance on seven outcomes and seven systemic factors. The report takes the view that the CFSR process is a general assessment indicating adherence to federal law, done instead of a full compliance check on individual laws.
“Although the efficacy of the CFSR process is highly questionable in terms of ensuring state conformity with federal child welfare laws and standards, it at least provided some modicum of external oversight and monitoring of at least a few aspects of federal child welfare law,” the report says.
Not once in those two rounds has one state been found in “substantial conformity” with the review. States enter into a Program Improvement Plan (PIP) upon failure on the CFSR, and face withholding of federal IV-E funds if they fail to meet the goals in the plan.
Yet report authors could only identify two instances in which states were assessed penalties, according to the report.
“Although the imposition of financial penalties or sanctions is a tool HHS has within its discretion that, arguably, could in fact ensure state conformity with federal requirements, thus far HHS has only imposed penalties on states that cannot even meet the terms of their own customized PIP,” the report says.
A third round of the CFSR was initially scheduled to begin in 2012, but was postponed until 2015 as HHS developed a revised version of it.
Adoption and Foster Care Analysis and Reporting System
The Department of Health and Human Services is not actively penalizing states that declare themselves out of compliance with the data collection standards put in place with the creation of AFCARS.
“By refusing to impose financial penalties on states that fail to comply with federal data reporting requirements, ACF has ignored one of the most incentivizing tools it has to ensure states’ submission of reliable, consistent, and complete data — information that could have meaningfully contributed to the improvement of the adoption and foster care processes,” the report says.
Child Abuse Prevention and Treatment Act (CAPTA) Disclosure
The law requires states to have provisions allowing for public disclosure of information about abuse and neglect cases that result in fatalities.
The report accuses HHS of ignoring a directive from the Senate Health, Education, Labor and Pensions Committee to develop regulations, instructions and technical assistance for states on the matter.
“Instead,” the report says, “HHS amended its Child Welfare Policy Manual to allow states to withhold information under circumstances so broad that they effectively nullify CAPTA’s public disclosure mandate entirely.”
First Star and CAI have twice reviewed and graded the states on their fidelity to CAPTA disclosure requirements.
It was information about CAPTA compliance that prompted the recommendation to tie all child welfare financing to overall compliance, CAI National Policy Director Amy Harfeld suggested at a press conference held to announce the report.
“The excuse we got [from HHS], in terms of CAPTA, was that it was not worth enough money to merit enforcement,” Harfeld said. “They are afraid states would just turn down the money. We think that’s unacceptable on its face.”
Losing IV-E funding, however, would put a state at risk of missing millions of dollars. “There’s no reason they can’t simply tie in IV-E with CAPTA,” she said. “If they think IV-E is on the line if they don’t follow CAPTA, states will be much more fearful to lose.”
Aside from its focus on monitoring and enforcement, Shame on U.S. touches on several other issues involving the current outlay of federal child welfare funds:
IV-E Eligibility: The report notes the near-universal support for an end to the income eligibility test used to determine which children are eligible for federal IV-E foster care support. The income test has remained the same for nearly 20 years, shrinking the portion of foster youths who qualify for federal support.
“The level and theory behind the look back are now unconnected to any logical rationale and it is leading to the irrational and unconscionable federal abandonment of these children,” the report says. “Its continuation is an affront to our basic ethical obligations.”
Federal Court Role: The federal courts have “walked away from any role as a check on state compliance with the Constitution or federal law applicable to these children,” the report says, leaving only the limited approach of class action litigation.
“Recent appellate court decisions effectively bar the courts from entertaining cases and preclude any appeal or writ that might reach the U.S. Supreme Court for the large-scale resolution needed,” the report says.
Social Security Administration: This federal agency often empowers state child welfare agencies to be representative payees for foster youths who are entitled to payments under two assistance programs: Supplemental Security Income, and Old Age, Survivors and Disability Insurance Benefits.
The report says many of those agencies then use those assistance funds to pay for child welfare services, and should put it away as savings for the youth when they exit care.
“It is difficult to understand how it is in a child’s best interests to use that child’s own money to reimburse the state for services that the child is under no obligation to pay for in the first place,” the report said.
Child Welfare Financing: Noting increased attention to child welfare financing, the report laments that “some advocates…have conceded defeat” in the effort to increase federal expenditures on child welfare.
“Taking a defensive posture, and allowing these programs to be locked into the cuts we have already suffered, are not appropriate ways to kick off the child welfare finance debate,” the report said.
Shame on U.S. takes specific aim at the budget-neutral proposal being pushed by the Annie E. Casey Foundation, which sets limits on the number of years that the federal government will support foster care placements for individual children.
“The excision of federal monies based on one or three years of care allows state compensation reductions after that point in time — without any limit or floor whatever,” the report said. “That is an unintended and very real consequence typifying what is prudently considered when advocating major legislative or funding change.”
Production of the report began in 2011 with a Freedom of Information Act request of the U.S. Department of Health and Human Services (HHS) for documents reflecting its performance in enforcing aspects of two important statutes upon which children rely for their safety: the Child Abuse Prevention and Treatment Act and the Adoption Assistance and Child Welfare Act.
John Kelly is the editor of The Chronicle of Social Change