Kinship Diversion: A parallel system of foster care

KinshipDiversion
Image: WAMU.org

The development of a system of informal kinship care that is parallel to the foster care system has recently begun to receive attention among academics, advocates and policymakers. This second system includes relatives who are caring for children under an informal arrangement facilitated by child welfare agencies through a practice called kinship diversion. This system has been called America’s Hidden Foster Care System by Josh Gupta-Kagan, Associate Professor of Law at the University of South Carolina.  Because most states don’t collect data on this practice, we don’t know how many children are affected, but it appears to be the most prevalent placement for children investigated by child protective services (CPS) agencies and greatly dwarfs kinship care within in the foster care system.

An issue brief from the research organization ChildTrends states that there is no agreement on the definition of kinship diversion, but in general it refers to a situation where a child welfare agency decides a child cannot be safe in a home due to abuse or neglect. But instead of taking custody of the child and requesting court approval for this move, the agency facilitates the transfer of custody to a relative outside the foster care system. This transfer is often effected through a “safety plan” or agreement between the parents, the agency, and the relative to keep the children safe. Whether stated or implied, parents know that failure to agree to the plan may result in the removal of their child and court involvement. According to Marla Spindel of the DC Kincare Alliance, sometimes the agency transfers custody of a child without the agreement of the parent, and only the agreement of the kinship caregiver.

The only national data on the prevalence of kinship diversion appears to come from a study of children who had contact with child welfare services within a fifteen-month period starting in February 2008. The researcher, Wendy Walsh, found that informal kinship care was the most common out-of-home placement for children found to be abused or neglected, accounting for almost half of children placed out of home. But these data are over ten years old. The limited data suggest that states are using kinship diversion in many more cases than they are licensing kin as foster parents. According to the most recent national data, 32 percent of children in formal foster care were in a relative home as of September 30, 2018. Gupta-Kagan cites a number of more recent studies in individual states that suggest kinship diversion is being used “with roughly the same frequency” as formal foster care overall–including relative and non-relative caregivers.

Newer data on kinship diversion are greatly needed. ChildTrends used a social worker survey to estimate the rates of kinship diversion in “several” unnamed jurisdictions. The researchers reported that “[I]n some jurisdictions, for every [ten] children entering foster care, an additional [seven] were diverted, while in others there was an equal split—for every child entering foster care, another child was diverted.” Without knowing how many and what jurisdictions were studied, and whether these were the highest and lowest ratios, it is hard to know how to interpret these data.

In addition to information about the extent of kinship diversion, we know little to nothing about how informal kinship care arrangements initiated through kinship diversion differ from foster care. Among the questions raised by ChildTrends are: Do kinship caregivers undergo a background check? Are services and supports provided and to whom? How do the services and supports differ from those provided in foster care? How long do diversion arrangements last? In their studies of three jurisdictions, ChildTrends found that agencies usually initiated background checks but often failed to complete them; an official case is not always opened; and services and supports to children, parents and caregivers are “inconsistently provided” and differ by jurisdiction. The “greatest disparity in supports” was that diversion caregivers do not receive foster care stipends and usually have to rely on welfare assistance to support the children.

As Gupta-Kagan points out, kinship diversion has raised various concerns both ends of the child welfare ideological spectrum. Those who are concerned about parents’ rights worry about the state removing children without due process protections for their parents. Moreover, unlike with foster care, there is no requirement that the agency make reasonable efforts toward reunification or develop case plans prescribing what parents must do to get their children back. Those who are concerned about children’s safety and well-being worry that kin caregivers may return the children to their parent at any time, regardless of safety, or may allow unsupervised visits with dangerous parents. Child advocates also worry that there is no permanency for these children as they move back and forth between parents and caregivers. Moreover, informal kinship caregivers may not receive the same level of screening as potential foster parents. These caregivers and the children they raise do not usually receive the same supports as they would in foster care, including stipends, case management, and mental health, drug treatment and parenting services. If not granted custody in court, these caregivers have no legal rights to obtain medical care, enroll children in school, or approve services, and a parent can come back and take custody of the child at any time. 

Some stakeholders support kinship diversion because they think it is always better to keep children out of state custody and allow families to decide their own futures. In the jurisdictions that it studied, ChildTrends found a wide variety in opinion among stakeholders but widespread agreement (over 90 percent) in favor of kinship diversion among agency social workers in five states.

Gupta argues that the “hidden foster care system” enabled by kinship diversion is “likely growing and it is certainly becoming institutionalized through federal funding incentives, new federal funding which strengthen those incentives, and state policies which seek to codify the practice.” As Gupta points out, there is a strong financial incentive for states and other jurisdictions to use informal kinship care. They avoid expensive foster care payments as well as the expenses of case management and other services to children in foster care and their families. Gupta argues that the new Family First Act further incentives kinship diversion by allowing funding for services to children and their parents for a year or more while they remain in an informal kinship placement.

Gupta fails to mention another incentive for kinship diversion–reducing the foster care rolls–which has become increasingly viewed as a favorable outcome and even (somewhat paradoxically) as a goal of child welfare systems. For example, one of the four pillars by which the District of Columbia’s child welfare agency measures its performance is Narrowing the Front Door, or reducing entries into foster care. Casey Family Programs, the two-billion dollar private foundation with an oversize influence on child welfare policy around the county, still proclaims (somewhat anachronistically) on its website that one of its four primary goals is to “Safely reduce the need for foster care by 50 percent by the year 2020.”

Some kinship diversion critics, like Gupta-Kagan, argue for more regulation of the practice to require appointment of attorneys for parents, impose a maximum length of time for safety plans that change custody, and allow parents to seek court review of safety plans.  Others, like Marla Spindel of DC Kincare Alliance, believe that kinship diversion as currently practiced is both harmful and illegal under state and federal law.

There is a case to be made for an outright prohibition on kinship diversion to eliminate the possibility that an abused or neglected child be returned to the parents before a professional can assess that the child is safe. Custody changes involving CPS would have to take place through an official removal subject to court approval, leading to formal foster care, or through a time-limited Voluntary Placement Agreement (VPA, which is allowed by federal and state law). A VPA can be used to place a child with a relative for a limited time period (such as 90 or 180 days) with the requirement that court proceedings be brought if reunification with the birth parent is not achievable in that timespan.

DC Kincare Alliance (DKA) and the law firm Ropes & Gray has filed an unprecedented federal lawsuit against kinship diversion in the District of Columbia. The lawsuit was filed on behalf of three relative caregivers and  three children they are raising. DKA argues that CFSA is violating the federal Social Security Act and several DC laws by using kinship diversion instead of removing these children formally and licensing their caregivers as foster parents. The case seeks a court ruling that kinship diversion is illegal and an order prohibiting CFSA from engaging in this practice. It also seeks damages for lost foster care payments “and other injuries.”

As policymakers debate restrictions on kinship diversion, not time should be lost in learning all we can about the extent and nature of the practice today. At a minimum, as proposed by Gupta, states should be required to track every case of kinship diversion to provide information about the total number of cases, the safety and well-being of the children, how long they remain in these arrangements, and how cases are resolved. We also need to know the policies and practices that states are following in terms of clearances, supports, monitoring, and other ways the arrangements may differ from foster care. The hidden foster care system must be brought out of the darkness and into the light of day.

 

 

 

 

 

Family First Act: a False Narrative, a Lack of Review, a Bad Law

Family First ActThe passage of the Family First Prevention Services Act (FFPSA) was greeted with joy and celebration when it passed as part of the Bipartisan Budget Act of 2018. “The Family First Prevention Services Act will change the lives of children in foster care,” crowed the Annie E. Casey Foundation.  The new law “will change foster care as we know it,” raved the Pew Charitable Trusts. But the Act took effect on October 1 to little fanfare. Based on contacts with all the states, the Chronicle of Social Change expects only 14 states and the District of Columbia to implement the Act and 36 to delay implementation for up to two years as allowed by the law. But as of two weeks before implementation, only four states had submitted the plan required in order to implement the Act.

An Act with Many Flaws

FFPSA has been revealed (as some knew all along) as a messy and poorly written piece of legislation. It starts with a misnomer. What the Act calls “prevention services” (“in-home parent skill-based,” mental health, and drug treatment programs for parents who have already been found to have abused or neglected their children) are aimed at prevention of foster care, not of child abuse and neglect before they occur. To most experts, these would be considered to be “intervention” and not “prevention” services. But beyond this misnomer, the legislation has multiple flaws which means it may create more problems than it solves.  Among these issues, covered in detail in a recent webinar from California’s Alliance for Children’s Rights and an article in Governing, are the following:

  1. Lack of new funding: FFPSA was designed to be budget neutral, redirecting funds toward foster care prevention services from congregate care and a delay of an expansion in adoption assistance. The Congressional Budget Office has estimated that FFPSA will actually result in a $66 million reduction in federal spending over a ten-year-period. This comes on the heels of 20 years of federal disinvestment in foster care, leaving jurisdictions struggling to maintain reasonable caseloads and services.  Some states are anticipating crippling losses of of funds due to the loss of their Title IV-E waiver programs, which expire at the end of the year and were far more generous and less restrictive than FFPSA. For example, California anticipates the loss of $320 million in federal funding when the waiver ends, forcing service reductions in some of its largest counties. New York will lose support for a program that hired more social workers and supervisors and has been credited with allowing youth to leave foster care earlier.
  2. Requirement that 50% of funding be spent on “well-supported” programs. FFPSA requires that 50% of funding be spent on programs that meet a rigorous set of criteria to be defined as “well-supported.” But so far, the clearinghouse created for the purpose of this provision has designated only six programs as “well-supported”: three mental health programs, three home visiting programs, and no drug treatment programs. Some states may prefer to adopt or expand in other similar programs that are not on the list. Therefore there has been a chorus of proposals that this provision be eliminated or delayed.
  3. Interaction with Medicaid: Each state’s Medicaid program covers a different set of services, but many of the services meeting FFPSA criteria, especially mental health and substance abuse treatment, are already funded by Medicaid in most cases. Allowing Title IV-E to supplement Medicaid funds might have helped improve the quantity and quality of services available. But in its guidance on implementing the legislation, the Children’s Bureau specified Title IV-E as the payer of last resort for these services. That means that Medicaid must pay first before Title IV-E can be billed. Thus, in states with more generous Medicaid programs, the law will greatly expand the services available to families. Moreover, it appears, based on the federal government’s answer to one state’s question, that programs paid for by Medicaid may not count toward the 50% of programs that must be “well-supported,” leaving states that use Medicaid to fund these programs in a difficult situation. 
  4. Restrictions on congregate care: One of the two main purposes of FFPSA was to restrict congregate care, which is basically any placement that is not a foster home. To do so, FFPSA cuts off funding after two weeks for any placement that is not a foster home, with four exceptions. Three of these are programs for special populations and the fourth is a new category called a Quality Residential Treatment Programs (QRTP)–a new category created by FFPSA. QRTP’s must meet numerous requirements, such as accreditation, 24-hour nurse coverage, and a “trauma-informed” approach. Moreover, a child must be assessed by a “qualified individual” as needing placement in a QRTP and that decision must be approved by the family court. Furthermore, a youth may not remain in a QRTP for more than 12 consecutive months without written approval from the head of the agency. As Child Welfare Monitor has discussed elsewhere, there is concern that some group homes will have trouble meeting the FFPSA criteria. Group homes are closing around the country due to insufficient funding and state-level policy changes. Many states have desperate shortages of foster homes, and closing group homes at the same time will worsen their placement crises. Furthermore many young people, especially those with more issues, may need more than 12 months in a group home and may lose all their gains if transferred prematurely to a foster home.  There is also a problem with Medicaid and QRTP’s, as it appears they will fall into a category of “Institutions for Mental Diseases” that are not payable by Medicaid.
  5. Kinship Diversion: FFPSA creates an avenue for prevention of foster care by placing a child with relatives (often called kinship diversion) while the parents receive prevention services for up to 12 months. If reunification with the parents never happens, there is no requirement that the children be placed formally with the relatives, or that the relatives receive any assistance either financially or with services. They would be forced to rely on Temporary Assistance for Needy Families (TANF), which is much less generous than foster care payments, and to make do with any services they can find in the community. There is concern that FFPSA may encourage states and counties to use kinship diversion rather than licensing relatives as foster parents, thus entitling them to more services and assistance and ensuring that the agency does not lose track of the children.

How a bad bill was born

The passage of FFPSA was the outcome of many years of advocacy, under the mantra of “child welfare finance reform.” So how did such a flawed bill pass after so many years of proposals and discussions? The answer includes a truncated legislative process, an insistence on budget neutrality,  and a false narrative promoted by a wealthy group of organizations.

False Narrative

This call for finance reform was based on the idea that, as expressed by one of its primary proponents, Casey Family Programs, in a white paper published in 2010:

 …the major federal funding source for foster care, Title IV-E, primarily pays for maintaining eligible children in licensed foster care, rather than providing services for families before and after contact with the child welfare system. The fact that no IV-E funding can be used for prevention or post-reunification services has created a significant challenge to achieving better safety and permanency outcomes for children.

This statement was literally true. Before implementation of FFPSA, Title IV-E funds were not available for services provided to families to help them avoid placement of their children in foster care. But plenty of other funds were available to cover these services. We’ve already mentioned that Medicaid currently pays for many or most of the services that will be provided under FFPSA, with the specifics depending on the state. Other funding sources  included Title IV-B, TANF, Social Services Block Grant, and CAPTA funds.

Moreover, Title IV-E does not cover all foster care costs. The federal government reimburses states for 50 to 75% of the cost of foster care payments, depending on the state. But only 38% of foster children were eligible for federal reimbursement under Title IV-E in 2016, down from an estimated 54% in 1999. The reason for this decline is an antiquated provision (often called the “Title IV-E lookback”) that links Title IV-E eligibility to eligibility for Aid to Families with Dependent Children, a welfare program that ended in 1996. Anything calling itself finance reform should have addressed this senseless linkage, but the framers did not.

So, between the availability of other funds and the fact that states had to pay a large share of foster care costs themselves,  it is hard to accept the narrative that states had an incentive to place children in care rather than provide services to their families to keep them at home. And indeed states have for years been providing in-home services to help families avoid foster care. According to federal data, 1,332,254 children received in-home or family preservation services in FY 2017 compared to only 201,680 children who received foster care services. So the argument for “finance reform” is simply a red herring.

The idea that a foster home is almost always better than a group home or residential placement is behind the other major part of FFPSA, the strict restrictions on funding for congregate care. But this narrative ignores the fact that there are not enough foster parents, especially those who are willing, loving and gifted enough to care for older and more troubled young people. Perhaps some supporters think that these foster parents will suddenly appear once group homes disappear. But this kind of wishful thinking failed when the mental hospitals closed in the 1960’s and the promised community mental health services did not appear, and there is no reason to think it will be more accurate this time around.

So how did a false narrative gain such a large following and become accepted as the truth? This idea has been supported by a powerful coalition of organizations led by Casey Family Programs, author of the white paper quoted above. Casey’s assets totaled $2.2 billion at the end of 2018 and it spent $111 million that year in pursuit of its goals, which include “safely reducing the need for foster care by 50 percent by the year 2020.” Casey has relentlessly promoted this narrative through publications, testimony, and assistance to jurisdictions that agree to implement its agenda.

Budget Neutrality

As mentioned above, FFPSA does not add resources to the system but instead redirects them from congregate care and adoption assistance to services designed to keep families together. Much of the savings will come from states taking on the full cost of group home placements that they cannot avoid. The Congressional Budget Office estimates that about 70% of the children residing in group home placements (other than residential treatment programs) would become ineligible for Title IV-E funding in 2020. So the cost of funding this placements will be shifted to states and counties that are often already struggling to fund these necessary placements. Moreover, the continuation of the TItle IV-E “lookback” means that the federal share of foster care funding will continue to decrease.

Much of the blame for the Act’s budget neutrality goes to Casey and its fellow advocates, who have been uninterested in increasing resources for foster care. As longtime Hill staffer Sean Hughes points out, “…Congressional staffers will tell you that child welfare advocates are perhaps the only group of federal advocates that consistently decline to even ask for new resources.” According to Hughes, these advocates have been unwilling to increase resources for foster care because of their bias toward family preservation. (Remember Casey’s goal of reducing foster care by 50% by 2020). They apparently hope that “starving the foster care beast” might result in fewer foster care placements, whether or not children might be left in unsafe situations. The framers wanted a budget neutral bill, and the advocates were happy to accept it in order to reallocate resources away from foster care (through the continuation of the “lookback” and the restrictions on group homes) toward family preservation.

Lack of review

Aside from a pair of hearings that were orchestrated by the bill’s sponsors to support their vision for the legislation, there were no hearings or floor debate on the Family First Act after it was introduced in 2016. In 2017, it passed the House by voice vote, and its Senate sponsors failed to get it passed. In 2018, after failing twice to attach it to larger bills without hearings of debate, the sponsors succeeded at the eleventh hour in getting it attached to the budget act. Young people whose lives were saved by group homes were never able to tell their stories. The technical problems with Medicaid eligibility were never discussed and may not have even been noticed until long after passage.

A bill called the Family First Transition Act has been introduced to ease the transition to the new legislation. It would delay for two years the implementation of the 50% “well-supported” requirement for services reimbursement,  provide a small amount of transition funding to help states implement the Act, and provide temporary grants to jurisdictions with expiring waivers to make up for a portion of their loss under FFFPSA. However, none of these temporary fixes would cure this fundamentally flawed bill, the inevitable result of a false narrative, inadequate funding, and a truncated legislative process.

This post was updated on November 7, 2019, to specify that the Children’s Bureau made the determination that Title IV-E would be the payer of last resort for prevention services to foster care candidates. This designation of Title IV-E as payer of last resort was not made in the Act itself.

 

 

 

 

 

 

The Family First Act: A Bad Bill that Won’t Go Away

continuing rsolution

Some bad ideas just won’t go away. The Family First Prevention Services Act (FFPSA) is rearing its ugly head yet again. The act, which failed to pass the Senate in 2016, has been incorporated into the continuing appropriations bill passed by the House of Representatives on February 6.

Chapter I of the Act, billed as “Investing in Prevention and Family Services,” would allow Title IV-E funds to be used to fund services meant to keep children out of foster care, including mental health and substance abuse treatment, parent training and counseling, and kinship navigator programs.

The general idea of allowing Title IV-E funds to be used for services to prevent foster care placement makes sense. (I prefer to call these family preservation services rather than “preventive services” because true preventive services would seek to prevent maltreatment before it occurred, rather than preventing removal from the home after maltreatment has already occurred.)  But the bill limits the list of services funded to mental health, substance abuse treatment, and parent education and training. It does not include services like domestic violence prevention, peer mentoring or support groups, crisis intervention, housing assistance, and many others that could be crucial to keeping families together.

Chapter II of FFPSA is billed as “Ensuring the Necessity of a Placement that is Not in a Foster Family Home.” This chapter would forbid federal reimbursement for a placement other than a foster family home (often called “congregate care”) beyond two weeks without an “age-appropriate, evidence-based, validated functional assessment” using a tool approved by the Secretary of Health and Human Services to determine that the child’s needs cannot be met “with family members or through placement in a foster family home.” Such placements must also be approved by a court within 60 days. The bill also establishes stringent requirements that must be met by agencies seeking to qualify for reimbursement, including on-site nurses, for example.

This approach is problematic for two reasons.

First, we don’t have enough foster homes. States around the country are reporting foster home shortages. Reports of children being housed in offices and hotels have come from California, Texas, Oregon, Kansas, and Georgia, Tennessee, and Washington DC. With group homes closed, this problem will only worsen.

The attempt to close congregate care facilities without providing an alternative is eerily reminiscent of the closure of institutions for the mentally ill in the 1960s. These hospitals were supposed to be replaced with community health services that were never funded. We are still reaping the consequences with the abundance of mentally ill people sleeping on the streets of America’s cities.

Nevertheless, the authors of the Family First Act made sure to specify that: “A shortage or lack of foster family homes shall not be an acceptable reason for determining that the needs of the child cannot be met in  a foster family home.” One wonders where these children should go but perhaps the sponsors don’t care. It is the states and counties that will find a place for the children, even if the federal government does not pay a share.

Second, we don’t have enough good-quality foster homes. Anyone who works with foster children and parents knows that a minority of foster parents do a spectacular job, treating their charges like their own children. But many of the other homes barely improve upon the abusive or neglectful homes the children were removed from.

I’m talking about foster parents that never visit the child’s school or transport them to activities, insist that the social worker to take them to the doctor and therapist, refuse to meet the child’s birth family, and siphon off part of the foster care payment for their own purposes. These children need extra love, support, and enrichment, not the bare bones of room and board and nothing else.

The widespread simplistic belief that a foster family home is always better than a non-family setting has been promoted widely with heavy support from ideologically driven funders and advocates including the Annie E. Casey Foundation and Casey Family Programs. These groups employ slogans like Every Kid Needs a Family, ignoring the fact that most children entering foster care do have a family that they want to return to, and would not necessarily prefer being placed in a family of strangers rather than an educational or group setting where they can receive the enrichment they need while awaiting reunification.

Research supports the idea that quality is more important than the type of setting, and that high-quality group care can have even better outcomes than high-quality foster home care. Moreover large sibling groups can often be kept together only by placement in a non-family setting.

It is hard to understand that anyone believe that a loveless, bare-bones foster home is better than an idyllic environment like the Crossnore School in North Carolina, where foster children  (including sibling groups) benefit from dedicated cottage parents, an onsite school, and multiple forms of mental health treatment, including equine-assisted therapy. But the bare-bones foster home has one advantage over Crossnore. It is much cheaper.

Clearly, legislators want the savings from eliminating non-family options to offset the increased costs imposed by the expansion of Title IV-E to include preventive services. The Congressional Budget Office estimated that the restriction on non-family placements would offset almost 70% of the costs of extending IV-E reimbursement to family preservation services, over a ten-year period.

It is not surprising that government officials in the three states with the largest foster care populations–California, New York, and Texas, have all expressed concern about or opposition to the Family First Act. Other states have expressed their opposition as well .

Aside from a pair of hearings that were orchestrated by the bill’s sponsors to support their vision for the legislation, there have been no hearings or floor debate on the Family First Act. Last year, it passed the House by voice vote, and its Senate sponsors tried to get it through without a vote before going on summer recess. They failed, thanks to courageous Senators who cared about children enough to resist pressure from the powerful coalition supporting the bill.

Lets hope that the same wise and courageous Senators make sure this dangerous legislation is not allowed to slip into law in the urgent effort to pass a continuing resolution. Lets not save money on our most vulnerable kids. Spending money on better placements now will surely reap savings down the road in crime, unemployment, and welfare receipt.