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The Federal Government Is Overhauling Foster Care. States Aren't Ready.

Everyone agrees that America’s foster care system needs reform. But some worry the new law may do more harm than good.

Tucked inside the $1.3 trillion spending bill passed by Congress in February 2018 was a piece of legislation called the Family First Prevention Services Act. The measure was little noticed outside human services circles. But once it’s implemented, the new law will completely upend the way child welfare operates at the state level.

At its core, Family First redirects the way states will get reimbursed for their services. For the first time, the federal government will pay states for evidence-based programs aimed at keeping kids in their homes rather than placing them in foster care. Mental health care, in-home parenting programs and substance abuse treatment will now all be covered. For instance, a mom in a residential substance abuse program will be able to have her child with her -- something not financially possible before Family First. “We’re really encouraging states to rethink what foster care even looks like, toward a new system that doesn’t require as many kids in foster care,” says David Sanders, executive vice president of systems improvement at Casey Family Programs, a child welfare organization and one of the chief proponents of the new law.

To fund this more prevention-based approach, reimbursement for children staying in group homes will be limited to two weeks, with the exception of children with severe emotional and health needs. That’s a significant shift from the past, when group home stays were essentially uncapped. But it dovetails with changing attitudes about how states should be caring for children in need of services. “Group homes should be used for stabilization, not for placement,” says Susan Dreyfus, president and CEO of the Alliance for Strong Families and Communities. 

States had until last November -- just nine months after the bill was signed -- to let the federal government know if they intended to delay implementation for two years. Otherwise, the law will go into effect this October. Only eight or so states are expected to go ahead with the rollout: Kentucky and South Carolina, for example, have signaled to officials that they will move forward with adopting the law this year. But it’s a bit of a moving target, because although the deadline has passed, it hasn’t been enforced; some states haven’t yet announced a delay but also are not planning to implement this year. 

Even for those states that do push implementation back by two years, officials say they’re working at a breakneck pace to upend their child welfare systems. “Ohio has delayed,” says Mark Mecum, CEO of Ohio Children’s Alliance. Still, “we are aggressively designing an implementation, and we are meeting weekly with state stakeholders.”

It’s hard to find anyone who would argue against the basic tenets of Family First -- focusing on prevention, keeping children with their parents when at all possible, limiting the time kids spend in group facilities and prioritizing evidence-based programs that work. But many child welfare advocates and state officials nonetheless have serious concerns about how the new policy will play out. The timeline for implementing the new approach is unrealistic, they say, and the law ignores many of the frontline realities of the current state of child services. They contend that it’s a patchy and haphazard approach, and one that in many cases is redundant to what states are already doing. 

Much about the new law sounds great. But it’s not clear how effective it will be. And in the immediate future, at least, many people worry it could do more harm than good. Ultimately, it’s not an improvement over the current approach, says Mecum. “It’s using federal child welfare dollars for very narrowly defined services, many of which are actually already reimbursable under Medicaid.”

“It’s nice on rhetoric,” agrees Daniel Heimpel, the president of Fostering Media Connections, which publishes The Chronicle of Social Change, a nonprofit news site that covers child welfare, “but short on a plausible path forward.” 

The two-week cap on group home stays, for example, is a fine idea but simply unworkable right now, say many child welfare advocates. Heimpel agrees with the notion that “there is an overreliance on group homes. But the idea that there is alternate capacity? It’s just not there yet. Unless states are ready to step up and find relatives [willing to take kids in], you’re going to have problems.” 

The Chronicle of Social Change has reported that half of states saw their foster home care capacity decrease between 2012 and 2017, either because of a decrease in beds or a significant uptick in the number of kids in need of care. Capping the number of nights in group homes would add pressure on the already strained system. 

The rush to get most kids out of group homes ignores difficult situations that child welfare agencies find themselves in, says Kurt Kelly, CEO of the Florida Coalition for Children, an umbrella group of the state’s child welfare agencies. “There are good things about this law, because we are talking about moving services more to the preventative side,” says Kelly. “But if they had listened to our model, they would have seen that we are already doing that.” Florida redesigned its child welfare system in 1998 as a private community-based care model, one that outsources most child welfare services to local nonprofits. The state has seen some success: Before the redesign, 4 in 10 kids in foster care were in group homes. Now, it’s down to 1 in 10.  

Reducing the number of children in group homes is an important goal, Kelly says. But there are still many cases in which a group home may be the better option, and the Family First cap doesn’t allow for that. “Let’s say a mother dies on opioids, and she has five kids. There are very few foster homes that will take five kids. But in a group setting, we can take them in together and hold them and work with them.”

Florida’s situation highlights another troubling aspect of implementing Family First: It may require states to move backward before they can move forward. That’s because right now, 26 states plus the District of Columbia have what’s called a Title IV-E waiver. It grants states and localities more flexibility in how they spend their money from the federal government for child welfare -- as with Florida’s private community care model. 

Those waivers have been available since 1994, but they are set to expire at the end of September. Because so many states are delaying Family First implementation for two years, they’ll have to go back to an old system of care until they fully adopt the law. In some states, that’ll mean reverting to a 15- to 20-year-old system. There’s a chance the federal government will grant states an extension on their waiver if they are delaying the law, but so far there’s been no communication regarding that from the Administration for Children and Families.

Kelly says he’s heard the expiration could mean losing anywhere from $20 million to $120 million. “I only have a budget of $700 million, so if you took out $120 million, that is significant,” Kelly says. “It’s an unbelievable disruption. Unless we get an extension on the waiver, it will be very serious.”

Even the architects behind Family First warn that states may face hurdles in implementing the new law, including potentially significant technical challenges. States will inevitably have to change their system of payments, notes Sanders of Casey Family Programs, and that could cause problems. “This will require a different way of tracking payments, and it’s complex, so there could be glitches,” he says.

Despite all those challenges, Family First advocates say the growing pains will be worth it. The law “makes a strong statement that we want children with strong families, and moving more [resources] to the front end,” says Dreyfus of the Alliance for Strong Families and Communities. “It’s the first volley toward a system we’ve always wanted.” 

In 2016, Sanders and Dreyfus both worked on the final report from the Commission to Eliminate Child Abuse and Neglect Fatalities, a group created by Congress at the end of 2012. They found that four to eight children die at the hands of their parents or caregivers every day, a number that hasn’t changed much over the years. The report recommends a more preventive approach by identifying the most at-risk families and intervening with appropriate treatments. “We said, ‘Here are the tragedies in the child welfare system,’ and the public is outraged when those instances happen,” says Sanders. “But we didn’t find any state that had a plan to reduce that number. The Family First Act will finally address that.”

State and local child welfare officials are right to be concerned about the fine print of the law, Dreyfus says. But she hopes that they keep their eye on the bigger picture: a more proactive, healthier system for America’s most vulnerable children and families. “If people would get out of the minutiae and understand the larger direction it’s taking us, in two and a half, five years, we will have a radically different child welfare system,” Dreyfus says. “Is it gonna be hard work? You bet,” she says. “But we’ve done hard work before.” 

*CORRECTION: Wisconsin plans to delay implementation of the Family First law. A previous version of this stated otherwise.

Mattie covers all things health for Governing.

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