Bills to Watch: Child Welfare, Juvenile Justice Legislation in 2018

Yesterday, Youth Services Insider hit on the two no-brainer pieces of legislation that Congress should get moving this year when it comes to youth services. Today, we look at the longer list of bills and policies to watch as Washington prepares for what will surely be a tumultuous fiscal 2018.

DACA Legislation

Last week President Trump announced he would shut down the Deferred Action for Childhood Arrivals (DACA) program, phasing it out by March 6, 2018. But Trump also indicated a preference for Congress to move fast to create a program to replace DACA, which allows nearly 800,000 undocumented young people to legally work or stay in school.

There are currently several pieces of pending immigration-reform legislation, including the bi-partisan Dream Act. Introduced in the Senate in July by Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.), it would create a pathway to permanent legal status for about a million young people as long as they met several criteria, including graduating high school; passing security checks; and either pursuing higher education, working for at least three years or serving in the military.

Previous efforts at finding a legislative solution to immigration reform have faltered before, most notably in 2010 and 2012. Unless Congress acts now, 800,000 young people who arrived in the U.S. as children will be eligible for deportation.

Juvenile Justice and Delinquency Prevention Act

Reauthorization of the law that set basic national standards for the treatment of juveniles is 10 years overdue. For the first time in that decade, both chambers have approved legislation, so it falls to a conference committee to hammer out an agreement that both chambers will sign off on.

Both versions of the bill dust off the federal law with new definitions of juvenile justice terminology, and require more data collection and reporting to the Justice Department on things like use of restraints and isolation. Both bills ratchet up the reporting requirements on compliance monitoring by the federal Office of Juvenile Justice and Delinquency Prevention; restart the effort to develop a national recidivism measure; and make it more difficult to lock up juveniles tried as adults in non-juvenile settings.

Among the key differences that the conference committee will need to work out:

  • Phase-out of the valid court order exception, the only loophole in federal standards for locking up a status offender. The Senate scuttled this in its final version to accommodate a lone dissenter on the subject.
  • Block Grant: The House wants to repeal the existing structure and replace it with a community-based violence prevention grant program, modeled on the Youth PROMISE Act that has been long-championed by Rep. Bobby Scott (D-Va.).
  • Audits: Both the House and Senate want a yearly audit from the Inspector General on JJDPA grantees. The House wants all grantees subject to audit in a three-year period; the Senate favors a sample approach that hones in on the biggest grants and grantees that have had problems before.

Any Health Care Bill, Especially One with Medicaid

Any legislation that rewrites the Affordable Care Act (ACA) has tremendous implications for youth services if the bill includes significant changes to Medicaid.

In child welfare, any child who is in foster care or is adopted from foster care has a guarantee of Medicaid coverage. And the ACA also extended automatic Medicaid eligibility for former foster youth until the age of 26.

All of the House and Senate versions of reform maintained the ACA guarantee to age 26 for former foster youth. But Early, Periodic Screening, Diagnosis and Treatment — the central promise of health assistance for foster youth and other Medicaid-eligible children — became optional in one of the House health care proposals.

And even if the number of guarantees to foster youth doesn’t change, the quality of those guarantees — what Medicaid would provide for these youth — could be affected by shifting Medicaid to a block grant, or by reversing the expansion of Medicaid.

There is no Medicaid guarantee involved in juvenile justice; in fact, youth who have been adjudicated and incarcerated are categorically ineligible for Medicaid while behind bars. But many states tap into Medicaid funds to forge contracts for non-incarceration services, especially interventions focused on the behavioral health of offenders.

Family First Prevention Services Act

Family First was the hot topic in federal child welfare policy in 2015 and 2016. The bill originated with Sen. Ron Wyden’s (D-Ore.) desire to expand the federal foster care entitlement to include time-limited services for biological parents, combined with Sen. Orrin Hatch’s (R-Utah) interest in limiting federal funds for congregate care.

The bill overwhelmingly passed in the House, but died in the Senate. It surely would have passed a floor vote, but that was not forthcoming, and the holds placed on Family First by a handful of Senators prevented unanimous consent.

The sense after last year’s defeat was that there was no energy, or time, to try again on Family First with Maternal, Infant, and Early Childhood Home Visiting Program (MIECHV) on the horizon and a new presidential administration coming into town. But there has been talk of a renewed effort to pass it, and the legislation has been reintroduced in both chambers.

“Skinny” Family First Package

The big ticket items in Family First are expanding the entitlement, projected to cost more than $1 billion, and the congregate care limits, projected to save several hundred million. The whole thing washed out from a budget neutrality standpoint with the addition of a delay to some federal adoption incentives promised by the Fostering Connections Act in 2008.

Anticipating the possibility that framework won’t be revived, the House has approved five cost-neutral bills that are derivatives of the bigger Family First package. Among the provisions passed by the House this summer:

  • Permits states to expand eligibility for the Chafee independent living program to 23, if the state has extended the upper age limit of foster care to 21.
  • Requires that states establish an electronic system to expedite foster care and guardianship placements in other states.
  • Allows for IV-E reimbursement for foster care payments made on behalf of a child living with their parent in a residential substance abuse facility.
  • Renews and sharpens definitions for the Department of Health and Human Services’ Regional Partnership Grants.
  • Attempts to put some federal oversight on the standards for foster homes and relative foster homes.

Interstate Placement of Foster Youth

In 2014, five states and the District of Columbia launched the National Electronic Interstate Compact Enterprise (NEICE) to replace the paper-driven process that has long accompanied moving foster and adoptive youth across state lines.The results have been immediate; delays in the processing of interstate placements have dropped dramatically in the ensuing years. The House has passed H.R. 2742, a bill entitled the Modernizing the Interstate Placement of Children in Foster Care Act, which would require each state to adopt NEICE or a comparable system by 2026. A companion bill in the Senate, S. 1257, awaits action by the Senate Finance Committee.The bills set aside $5 million a year between 2017 and 2021 for a grant program to help states move toward this goal.

Mental Health Timelines

Sen. Roy Blunt (R-Mo.) and Rep. Brenda Lawrence (D-Mich.) lead a bipartisan stable of sponsors pushing for firm timelines on mental health services for youth who enter care. Bills in both chambers would amend the federal IV-B program to set two hard deadlines: screenings within 30 days of entry to foster care and “comprehensive assessments” within 60 days.

Unaccompanied Alien Children Program

Over the summer, the House Judiciary Committee marked up and passed a bill that would dramatically change the way the Unaccompanied Alien Children (UAC) program operates. The program is operated by HHS, and is the only truly national child welfare system we have in the United States.

Here’s the brief version of the UAC program’s history. Minors from Mexico and Central America arrive, unaccompanied, at our southern border. For Mexican children, unless there seems to be a legitimate claim for asylum, the Department of Homeland Security quickly returns them to Mexico. Central American children are handed over within 48 hours to HHS while court dates are set to determine a claim of asylum.
Most of these children are placed into HHS-contracted shelters, and then placed with parents or relatives in the United States. Many never show up for the court proceedings, entering the ranks of undocumented immigrants in the country. This was a relatively small program until the number of unaccompanied minors from Central America exploded in 2012, going from under 10,000 per year to more than 50,000.
The Obama administration blamed violence in countries like Honduras, Guatemala and El Salvador. Republicans blamed the administration.
Judiciary chairman Bob Goodlatte (R-Va.) said at the hearing on the bill: “An intelligence report in 2014 illustrated that the previous administration’s policies of lax immigration enforcement played the key role in enticing parents already in the U.S. illegally to hire coyotes to smuggle their children into the country illegally. Word spread that not only would kids not be removed, they would be handed over to the parents who put them at risk in the first place by attempting to smuggle them into the U.S.”
The bill passed by House Judiciary, introduced by Rep. John Carter (R-Texas), would do two key things. First, it would keep unaccompanied minors in Homeland Security’s custody for up to 30 days. Second, it would end the differential treatment of Central American children; they would be subject to a hasty return home, the same as Mexican children.
Thus far, interest in unaccompanied minors has only been expressed in the House. Carter introduced this bill with companion legislation in the other chamber last Congress, but he lost his partner in the Senate: current Attorney General Jeff Sessions.

Housing After Foster Care

In April, Rep. Mike Turner (R-Ohio) and a slew of co-sponsors introduced the Fostering Stable Housing Opportunities Act, seeking to provide some assistance to youth who are facing the likelihood of aging out of foster care into adulthood.
The bill does not provide any federal funds to that end, but instructs federal public housing providers to give preferential status to youth who are within six months of aging out. In some states this occurs at 18; other states have expanded their foster care system to include youth up to age 21.
In July, Sens. Chuck Grassley (R-Iowa) and Debbie Stabenow (D-Mich.) introduced complementary legislation in the Senate. They were joined by Sens. Al Franken (D-Minn.), Tim Kaine (D-Va.), Angus King (I-Maine) and Tim Scott (R-S.C.).

Federal Funds and Service Provider Selectivity

This summer, Texas became the most recent state to pass bills that protect faith-based child welfare providers who state a religious opposition to serving certain households (namely, LGBT couples and unmarried people).

Sen. Mike Enzi (R-Wyo.) and Mike Kelly (R-Penn.) have introduced bills that would restrict federal funds for states that did not permit faith-based providers to discriminate based on religious principles.
The Child Welfare Provider Inclusion Act of 2017 would empower the Department of Health and Human Services to dock 15 percent of either the Title IV-B or IV-E allocation of a state that takes “adverse action” against “a child welfare service provider on the basis that the provider has declined or will decline to provide, facilitate, or refer for a child welfare service that conflicts with, or under circumstances that conflict with, the provider’s sincerely held religious beliefs or moral convictions.”
Rep. John Lewis (D-Ga.) has introduced a bill that would do the exact opposite. Lewis’ Every Child Deserves a Family Act (H.R. 2640) prohibits any recipient of federal assistance for adoption and foster care placements from discriminating against any potential client.

Appropriations Bills

The early indication from House appropriators is that the massive spending cuts proposed by the Trump administration will not be a guidepost. Trump proposed massive cuts to spending on the Workforce Investment Opportunity Act, and outright eliminated the 21st Century Learning Centers (after-school programs for low-income youth) and AmeriCorps. The House cut back on all three, but not nearly as much as Trump proposed.
Two funding streams where the House proposed significant cuts:
  • The aforementioned Unaccompanied Alien Children (UAC) program, which it slated for a $450 million haircut in 2018.
  • The House zeroed out funds related to compliance with the Juvenile Justice and Delinquency Prevention Act (JJDPA), which as mentioned above is long overdue for reauthorization.
The Senate appropriators slated $60 million for JJDPA. They have yet to produce a report for Department of Health and Human Services funding, which is the agency that oversees UAC. The House’s cut to UAC is probably predicated somewhat on the declining number of minors arriving at the border alone.

National Home Study & Standards and Database

A bill in both chambers of Congress calls for development of an evidence-based standard model for home studies, and also establishes a national database of home studies to speed up interstate records searches. Neither includes money to carry this out, so that would be left presumably to the Department of Health and Human Services.
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John Kelly
About John Kelly 942 Articles
John Kelly is senior editor for The Chronicle of Social Change.

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