Family First Act Brings Major Changes One Year after Passage
When the Bipartisan Budget Act of 2018 passed last February in order to avoid a government shutdown, buried inside were massive changes to the child welfare system. Though its passage earned no national headlines, the Family First Prevention Services Act, according to Pew’s Stateline, “effectively blows up the nation’s troubled foster care system.”
The act, which was truly bipartisan, having been introduced by Sen. Ron Wyden (D-OR) and Sen. Orrin Hatch (R-UT), is meant to correct outdated foster care practices and prioritize keeping a child with their family versus placing them in foster care; it funds programs meant to prevent foster care. Family First is the most significant financial reform of the child welfare system in decades, altering Title IV-E of the Social Security Act to cover new prevention services for families.
Before Family First, “States were only getting the [major] child welfare funding if a child had been removed from their home,” Stefanie Sprow, the deputy director of child welfare and mental health at the Children’s Defense Fund (CDF) said. “We were concerned that that created a disincentive for states to help children and families to stay out of foster care.”
The law also limits federal funding for congregate care facilities—group homes. This is based on the evidence that children generally do better in family home settings than group ones.
Yet while most child welfare advocates support the motivations of Family First, some are also raising concerns about how the new law will work in practice. As every state embarks on the process of shifting their child welfare systems to match the requirements of a sometimes confusing new law, there are concerns about unintended consequences as well as praise for a rare move by Washington that’s viewed as having a positive intent by all sides of the political debate.
Removing a child from their home and family is traumatic, emotional, and devastating all at once. Historically, complaints about the child welfare system have often included that the state conflates poverty with neglect—so that poor families lose their children at much higher rates than middle- and upper-income families. Foster children are also disproportionately children of color—especially black and Native American children.
Dynamic changes to the system, therefore, promote keeping families unified, which is why prevention services are prioritized by advocates.
Family First, said John Sciamanna, vice president of public policy at the national Child Welfare League of America, “is an important step,” but it’s not “a silver bullet that’s going to fix everything.” In order to fund more prevention programs, the act moves money from other child welfare services (namely, group homes). There’s no new money for child welfare: over the next decade, the legislation saves federal money.
In what’s the most major provision of the law, Family First aims to prevent foster care by funding services for parents. Today, a common reason for child removal from the home is parental drug use. Foster care placements have risen over the past several years, likely because of the rise of opioid and heroin addiction. Family First aims to mediate this trend by providing federal funding for prevention services that will allow parents to receive up to 12 months of substance abuse treatment—these funds are also available for mental health services and in-home parenting skills classes. Notably, eligible services must be regarded as “evidenced-based,” as defined by the federal government.
In addition, by shifting funding away from group homes, the act incentivizes states to move away from congregate care. States can now only receive federal reimbursement for two weeks of a child’s stay in such a facility. (The exception in the law is Qualified Residential Treatment Programs (QRTPs)—a new standard that necessitates, among other requirements, accreditation, licensing, and a trauma-informed treatment model.)
States are technically required to implement the law by October of this year, but can ask the federal government to delay for up to two years. David Sanders, executive vice president of systems improvement at the child welfare operating foundation Casey Family Programs (CFP) and the former director of the Los Angeles County Department of Children and Family Services, told Spotlight that about half of states have informed CFP that they plan to implement by October 2019.
After it was passed—which ended a process over several years to get some version of child welfare finance reform passed—hundreds of child welfare organizations supported the law.
But not all child welfare advocates were in favor. Sanders said that CFP has heard positive feedback from states who are excited to implement the law. Yet groups in some states, particularly California, believe that though well-intentioned, the law has a number of issues that will play out as unintended consequences when the details are studied. Sean Hughes, a child welfare consultant in California and other states and former congressional staffer, said that the federal government “want[s] to push states and counties in the right direction, which is generally a good thing—but because they’re not administering [the systems], they’re a little bit removed from the ground-level dynamics and they may not understand some of the ramifications of some of these decisions.”
Hughes thinks the strong support for the law came from “a recognition that it was a challenging political environment to move legislation,” especially since, to pass, the legislation needed to be at least budget-neutral. He adds that “I think some advocates made the calculation [that this version of the act was] better than nothing.”
Sanders said that “Prevention of abuse and neglect is a much more effective intervention than waiting for children to be abused and then intervening—I couldn’t speak highly enough about the legislation.” The three prevention services in the law represent the biggest drivers of children into the foster care system.
But for Angie Schwartz, policy program director at the California-based Alliance for Children’s Rights, “Family First is aimed more at preventing entries into foster care than preventing abuse and neglect.” She noted that the act’s prevention services are only available if a child is at “imminent risk” of foster care—they’re a “candidate” for foster care—which could mean that a child has already experienced maltreatment. States decide themselves what substantiates “imminent risk.” Therefore, the services, she said, “are much further away from primary prevention, which [would be] trying to capture children and families before they get to that point of … the child welfare system even knowing about them.”
There are also fears that kinship care—care by relatives, which is routinely a goal of child welfare advocates when biological parents can no longer parent—may also be affected. For a parent to receive prevention services, their child must remain outside of foster care—so if the child goes to live with relatives while the parent is getting treatment, their extended family cannot receive the support and resources that typically come with foster care placements. This, said Cathy Senderling-McDonald, deputy executive director of the County
Welfare Directors Association of California, could allow states to “create [a] shadow foster care system.”
Another thorny issue is how a service will qualify as “evidence-based”—the Children’s Bureau within the Department of Health and Human Services’ Administration for Children and Families is creating a clearinghouse of approved programs. That clearinghouse, which is being put together by a government contractor, was meant to be released to states in October 2018, but it’s not yet complete. States should expect it in April—six months before they can begin accessing funds. Just after the act passed, many advocates were “feeling really confident that there were a lot of states interested in moving forward with the 2019 start date,” said Sprow of CDF. “Unfortunately, now we’re starting to see a bit of backpedaling because we are experiencing some pretty big delays in the information coming out from the Children’s Bureau. It’s slowed down a lot of the planning.”
In addition, many of the programs that states may currently be using might not be approved as part of the clearinghouse. For a program model to be considered “evidence-based,” it is required to have shown results through studies that used at least one form of a control group—and that may not always be the case, even with well-regarded programs.
The treatment of congregate care particularly alarms advocates in California, and led to many—not just in California, but also in states like Texas and New York—being unable to fully support the law. For Senderling-McDonald in California, this was informed by California’s own experience of implementing extensive reforms five years ago, where they worked to prioritize family-based care and transition group homes into short-term therapeutic residential programs (a model similar to—but not as restrictive as—QRTPs). She said they “haven’t yet been able to fully develop and sustain the kinds of foster parents—in numbers, skills, and interest—who are willing and able to take on children coming out of group homes,” who often have a “higher level of need.” Some of these children may in fact do better in therapeutic residential facilities. But according to Schwartz, “The limitations on QRTPs in the federal law could conceivably tie our hands to serve the full-range of kids that we know need therapeutic intervention.” California has also not yet been able to fully transition their group homes to the therapeutic-focused programs.
Senderling-McDonald said that one of the reasons that the Congressional Budget Office (CBO) cost estimate for the 2016 version of the act (which was very similar to what passed) was a net savings was because the CBO “assumed states can’t meet [the congregate care requirements]” for at least several years. Many states, the CBO wrote, will still be using traditional group homes after the law is implemented—they just won’t be funded by federal dollars any longer. She said California will very likely delay implementation for two years.
Many of the changes, then, will play out differently across all 50 states, each with very different foster care populations (some states have high populations of children in group homes, while others rely more on a family-based foster model). In Colorado, for example, over one-third of all foster children in the state live in group homes: it’s likely this law could help push them toward prioritizing family-based care. And in states with more-restrictive Medicaid programs, the newly-available prevention service funding could be particularly helpful (though in states with more-generous Medicaid programs, which may cover substance abuse and mental health treatment, the law might create a complex process of deciding which funding to draw down).
Though the slow-moving Children’s Bureau has complicated state planning, many nonprofit groups are working to assist states with implementation, like CFP and a host of others. CFP has been working with all 50 states to assist with implementation, hosting state convenings, webinars, and also working with the Children’s Bureau.
“The legislation in and of itself is not going to change the conditions for children who are served in the child welfare system. It’s a tool—but states really need to have a vision and plan for how they are going to transform their systems,” Sanders said.
CDF, too, has been working with state partners to help them understand the technical complexities of the legislation. So much of planning and implementation is simply unpacking each and every provision to understand how it would work in practice.
Family First, Sprow said, “won’t be as significant as it can be unless states are thinking critically and thoughtfully about this process and how to get these provisions implemented in a way that helps children and families.”
For example, Oregon is bringing together a number of partners in a Family First working group; the group’s chair, State Sen. Sara Gelser (D), is “very excited about the potential” of the law. Gelser told Spotlight that the state is not just listening to welfare officials, but also representatives from all branches of government, health providers, court representatives, tribes, universities, the disability community, former foster youth, advocates, as well as birth parents and foster parents. (Gelser is particularly enthusiastic about involving former foster youth and families, whom she calls “the real experts on the system.”) The diversity of experiences represented in the working group will allow the state to make well-informed decisions in regards to implementing Family First—especially because it will impact people and groups across so many sectors. “Keeping families healthy and kids safe can’t just be the job of Child Welfare,” she wrote in an email to Spotlight. “It is a multi-program endeavor, and I think we are starting to see what that can look like.” For instance, Gelser said they are interested in integrating family-based prevention services into the specialty courts system.
In Oregon, Gelser wrote, the congregate care limitations are “daunting but exciting.” Oregon already has limited capacity for child welfare placements—yet “even the beds we have are not necessarily the beds kids need” as many group homes don’t have clear treatment missions. Family First is a chance for the state to support congregate care providers in building up their programs, which may also require concerted state investment alongside federal funds.
California is also putting together groups of stakeholders. The planning process is not all about figuring out how to deal with the known challenges—it’s also about seeing what sorts of real opportunities are within the law that could make experiences better for children.
States need to be thinking “This is one step,” said Schwartz. “And now we need to figure out what more needs to be done in order to really deliver on that vision of being able to meaningfully invest in prevention.”
Kalena Thomhave is a writing fellow with the American Prospect.