Family First Prevention Services Act Update: Federal Rules, Delay Deadlines, State Flexibility and More

Family First Act
Jerry Milner testifies before a House Ways and Means subcommittee about implementation of the Family First Prevention Services Act

It’s been a little more than five months since the Family First Prevention Services Act, one of the biggest shifts in the history of federal child welfare financing, was shoehorned into a stopgap spending bill. The law’s two main provisions – reimbursement for services aimed at preventing the use of foster care, and limitations on federal funds for congregate care placements – take effect in October of 2019.

This week Jerry Milner, associate commissioner of the Children’s Bureau (CB) and one of Trump’s top child welfare officials, appeared before the House Ways and Means Subcommittee on Human Resources to provide some clarity on how things were progressing as the Department of Health and Human Services prepares to implement and administer Family First.

Milner has been front and center on Family First for the administration, heading up site visits and receiving state delegations in the nation’s capital. CB, which oversees child welfare programs at the Department of Health and Human Services, recently began a three-stop listening tour on Family First with Casey Family Programs.

Here are a few notes that Youth Services Insider gleaned about where things stand. Before we start: click here for our full guide to the Family First Act, and click here for background on how this entitlement reform made its way into federal law.

Timeline on Rules and Regs

The Children’s Bureau has already issued some basic program instructions laying out the timeline for Family First implementation. It started with changes to Title IV-B, the block grant that funds family preservation and reunification from foster care, which is subject to some adjustments in the law.

Then, in early July, CB followed with instructions on the changes to Title IV-E, the entitlement program that currently funds only foster care and adoption placements. This is the source of the Family First overhaul: it opens IV-E up to include services aimed at preventing removals, and limits IV-E support for congregate care placements to two weeks (with very significant exceptions).

You can click here to read the IV-B guidelines, and click here to read the IV-E version. Again: This is preliminary information about timelines, not the nitty-gritty details on technical matters related to Family First that will be sure to follow in the coming months.

Milner said more substantial program instructions on the IV-E prevention program are anticipated to be ready by the first quarter of fiscal 2019, which begins this October.

He also mentioned a few more notices that were already in the pipeline. One is the initial plan for reviewing programs and service models that will be permitted for the front-end prevention services. This list will only include interventions that meet a set threshold of “evidence-based,” and all must be related to substance abuse, mental health, and parenting skills.

CB already concluded a round of public input on how the clearinghouse should prioritize its review process in the early stages, and asked for recommendations on possible candidates for inclusion. The actual building and operation of the clearinghouse will be done by a contractor; procurement for that is “already on the street,” Milner said, and a bid will be accepted by October.

The other Family First-related document in the pipeline is the national model standards on foster home licensing, which the law requires the federal government to establish. At the hearing, Rep. Terri Sewell (D-Ala.) said she hoped CB would lean on the model standards developed several years ago by the American Bar Association, Generations United, and the National Association for Regulatory Administration.

Milner said the model standards were reviewed as part of the process, and that CB’s model standard would soon appear in the Federal Register.

Maximizing State Flexibility

Milner made it clear in his testimony that the feds will be giving states a lot of leeway on defining the boundaries of their IV-E prevention programs.

“We do not intend to regulate definitions of key concepts beyond what’s in statute,” Milner said. “We will also strive to provide maximum flexibility in claiming for prevention services.”

This means that states will have wide discretion in defining one of the key terms in the law: a “candidate for foster care.” The prevention services funding can only be tapped for families where the child is designated to be a candidate for foster care (pregnant or parenting youth in foster care are a notable exception to this litmus test).

Here is how the actual Family First text defines a candidate for foster care, with some of the legal mumbo-jumbo edited out to make it coherent:

“The term ‘child who is a candidate for foster care’ means, a child who is identified in a prevention plan … as being at imminent risk of entering foster care … but who can remain safely in the child’s home or in a kinship placement as long as [Family First prevention services] that are necessary to prevent the entry of the child into foster care are provided. The term includes a child whose adoption or guardianship arrangement is at risk of a disruption or dissolution that would result in a foster care placement.”

CB’s decision to let states take it from there is significant. To demonstrate the range, here are three possible interpretations of that term that a state might decide to adopt.

Very broad: Any child whose parent has tested positive for an illicit substance, or has a diagnosed mental health disability, is a candidate for foster care.

Broad: Any child whose parent (or parents) has been referred to the state or local hotline for alleged maltreatment is a candidate for foster care.

Narrow: Only pursuant to the substantiation of maltreatment a child is a candidate for foster care.

When you combine the range of that definition with the likely variance in states’ willingness to spend big on these services, we could see some erratic patterns in the amount of IV-E prevention spending.

Opting Out

In the recent program instructions on IV-E, the Children’s Bureau instructed states to let it know by early November if they intended to seek a delay on the onset of Family First’s congregate care limitations. Any state can seek approval for up to a two-year delay, with the caveat that it would be precluded from drawing down prevention services funds during that time period.

The November deadline caught some states by surprise, since the law doesn’t take effect until October of 2019.

“There was no deadline requirement for this decision in the law, and by expecting a decision now, for a year later, appears to push states to make rushed decisions about these important reforms,” said Rep. Adrian Smith (R-Neb.), who chaired the hearing.

Milner assured Smith that the November deadline was just for planning purposes and was not binding. States would be permitted to announce a delay closer to 2019, and could reconsider their decision to delay.

What was made clear by Milner is that states would have full control on the decision to delay on the congregate care provisions. Counties in states like California, Ohio and New York, where state agencies have little direct involvement in child welfare, will be beholden to the state’s decision to go ahead.

On the flipside, Milner did stress that those states who do opt into the prevention services would not be required to implement evenly across the state. So if California opts in, for example, it is not required that Yolo County and Alameda County have the same infrastructure for IV-E prevention services in place.

Accreditation Traffic Jam

Rep. Jackie Walorski (R-Ind.) told Milner she had heard concern from residential providers in the state that there would not be enough time to get accredited in line with Family First’s “Qualified Residential Treatment Program” (or QRTP) exception to the limitations on congregate care. States could continue to seek IV-E funds for QRTP placements beyond the two-week threshold for congregate care in Family First.

[Note: Jennifer Flowers, CEO of Accreditation Guru, sounded this same alarm on our website back in May].

One of the requirements to become a QRTP is receiving accreditation by an “independent, nonprofit” accrediting agency. Family First lists three by name – Commission on Accreditation of Rehabilitation Facilities (CARF), the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), and the Council on Accreditation (COA) – but permits CB to sign off on other options.

“This is great thing,” Walorski said, referring to the requirement. “However, the anxiety kicks in when they look at the fact that it takes one to two years to complete [accreditation] and there’s a limited number of accreditation organizations who will be facing significant increases in their workload.”

Milner said this was “one of the top two issues we consistently hear about. It is, frankly, a very big concern.”

Walorski asked if perhaps states could provisionally assume QRTP status while accreditation was pending. Milner said he was “not aware of anything in the statute that would allow that.”

Kinship Navigator

In addition to funding evidence-based prevention services, Family First offers a federal split on the cost of Kinship Navigator programs that pass the test of being “evidence-based.” These navigator programs are meant to help relatives, who are caring for children who might otherwise end up in foster care, access public benefits and other supports. It’s a critical piece of the puzzle, especially since Family First doesn’t guarantee any direct financial support to such relatives.

Only problem: There might not be a navigator program that meets the threshold. Rep. Danny Davis (D-Ill.) told Milner that he had heard there might not be any kinship navigator programs that could be considered evidence-based.

“What are you doing to change that?” Davis asked.

Milner said he had “heard from a number of stakeholders” that there are not “possibly any” navigator programs that meet the standard. He did note there was one navigator program CB was looking into that might qualify; Youth Services Insider’s guess would be Kin-Tech, which is operated by The Children’s Home in Florida.

Milner also noted that CB was working with the Office of Planning, Research and Evaluation, another division of the Administration for Children and Families, on a contract “designed to build evidence for promising programs” and that would include kinship navigator models.

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