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June 01, 2012

New Federal Child Welfare Initiatives: What Advocates Should Know

Howard Davidson

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The Children’s Bureau, part of the Administration on Children and Families of the U.S. Department of Health and Human Services, recently issued written materials on several new federal child welfare initiatives. The following highlights three significant initiatives that those who advocate for abused and neglected children in the courts should know about.

Designing Title IV-E Waivers for State Demonstration Projects

(Solicitation for states to apply for Title IV-E Waivers for demonstration projects, issued May 14, 2012).

Importance for Legal Advocates

State “waivers” free IV-E dollars to improve access to child welfare services.

Lawyers and judges who practice in the child welfare arena know well the shortcomings in their state related to funding for key services for children and families. Normally, there are tight restrictions on what their IV-E dollars can be used for, but if their state obtains a “waiver” it can mean more children get evidence-based services and treatment. There’s now a short window of opportunity to prod their state child welfare agency to design a waiver concept and develop a proposal, or to work with them on their proposal.

HHS can authorize 10 IV-E waiver projects that meet program priorities.

Under the recent federal child welfare law, the Child and Family Services Improvement and Innovation Act (P.L. 112-34), HHS is authorized to grant up to 10 new multi-year “waivers” on the restrictions a state has in using its large allocation of Title IV-E funding. State “demonstration proposals” are due by July 9, 2012. That law sets requirements for these waivers, and HHS has noted it is giving priority to projects that will either:

  • Produce positive well-being outcomes, particularly focusing on trauma experienced by abused/neglected children;
  • Enhance social and emotional well-being of children/youth available for adoption and who have already been adopted;
  • Yield significant improvements in children’s and family’s lives while contributing to the “evidence base”; or
  • Leverage other resources/partners, including establishing financial incentives based on achievement of positive child outcomes.

This emphasis on well-being outcomes is very timely. The announcement says HHS will prioritize applications for activities that, for example, will be using flexibility to test or implement a) innovative, valid and reliable “screening and assessment” and b) evidence-based or evidence-informed “intervention approaches.” HHS hopes that such activities will produce positive well-being outcomes “with particular attention to addressing the trauma experienced by children who have been abused and/or neglected.” Priority will also be given to testing innovative policy alternatives that yield “more than modest” improvements in child/family lives and contribute to the “evidence base”.

The announcement details suggestions for states to consider projects that would improve Medicaid-Child Welfare linkages. It also says that they are “interested in proposals that would increase the impact of interventions by establishing financial incentives” based on positive child outcomes and potential cost-savings. Finally, note that all applicants must select two “child welfare program improvement policies” to implement, from a list of 10 (some examples from the list: having a foster care bill of rights; limiting use of congregate care; keeping siblings together; preparing youth for transition; and helping youth reconnect with their biological family).

Promoting Social and Emotional Well-Being for Children and Youth Receiving Child Welfare Services 

(Information Memorandum issued April 17, 2012)

Importance for Legal Advocates

Child well-being is a current focus in child welfare.

Improving child well-being outcomes is a “hot” development sweeping the child welfare field. Several HHS (and ABA Center on Children and the Law) initiatives are addressing this. This memorandum highlights both recent federal law requirements and opportunities for children to better access:

  • enhanced mental health services,
  • Early and Periodic Screening, Diagnosis and Treatment (EPSDT), 
  • trauma screening and treatment,
  • oversight and monitoring of use of psychotropic medication, and
  • early intervention requirements under CAPTA.

Lawyers and judges can play key roles in working with their child welfare agency to enhance the timely delivery of this assistance.

This memorandum complements the request for demonstration proposals described above. In essence, this document encourages the entire child welfare system to leverage policy and law to focus on significantly better results for children the system serves. The memorandum:

  • highlights studies of projects to better address child well-being,
  • describes the screening and functional assessment process that more children known to the courts should be able to access,
  • lists evidence-based and evidence-informed practices that have been used successfully.
  • highlights what a child welfare process would look like that shifts its focus to promoting children’s social and emotional well-being (including engaging the judiciary and the courts on how to improve accountability for these well-being measures), and
  • lists tools and resources available to help accomplish this.

The memo and the waiver announcement include a recent one-page “ACYF Well-Being Framework” that can be used by advocates to examine whether appropriate child outcomes are being achieved.

Training opportunities for judges and lawyers on child well-being are emerging.

One potential barrier to having a more well-being focused practice is the limitation of available funding to help prepare those involved with abused and neglected children to better address their needs.  In a more recent, development, the Children’s Bureau on May 22, 2012 amended their Child Welfare Policy Manual (in which questions about HHS policy interpretations are answered). 

Under Section 8.1H (Title IV-E Administrative Functions/Costs and Training) the Bureau has provided a nonexclusive list of allowable IV-E funded training topics related to protective factors in healthy child development. Training on how to treat a child’s conditions is explicitly mentioned as not allowable.  However, permissible training topics include:

  • supporting and using evidence-based practice;
  • using screening and assessment tools;
  • promoting awareness of child risk, protective factors, and prevention;
  • facilitating resilience in foster children, including promoting attachment and stable relationships;
  • understanding relational competence in family relationships, principles of child growth and social, emotional, physical, and intellectual development, and child trauma and its impact; and helping children without bias, including LGBTQ youth.

This development is important to attorneys and judges.  A provision of the 2008 Fostering Connections Act (Section 203) extended the list of those who can receive short-term Title IV-E funded training through their child welfare agency (with a 75% match by HHS). It now includes “the staff of abuse and neglect courts, agency attorneys, attorneys representing children or parents, guardians ad litem, or other court-appointed special advocates representing children in proceedings of such courts.” 

The above topics, for those working in courts on child welfare cases are critical to understand to help assure an enhanced focus on child well-being outcomes.  Judges and leaders within the child welfare legal community should discuss how to approach their child welfare agency’s Title IV-E Training Director about this policy clarification so training on these well-being issues can be promptly and appropriately provided to the bench and bar in these cases.


Meeting the New Annual Credit Report Requirement of Federal Law 

(Program Instruction issued May 8, 2012)

Importance for Legal Advocates

Guidance is now available on the new credit check requirement for older youth in foster care.

The Child and Family Services Improvement and Innovation Act (P.L. 112-34) established a requirement for states receiving Title IV-E money (all states). They must now, for every child in foster care age 16 and older, receive a copy of any consumer credit report on that child/youth annually, until they are discharged from foster care. States must comply with this provision by August 13, 2012. This provision of the law also includes a challenge for legal advocates for children; it states the child should receive “assistance (including, when feasible, from any court-appointed advocate for the child) in interpreting and resolving any inaccuracies in the report.”

HHS had earlier given states time to begin implementing this provision until this instruction was released. It notes the Children’s Bureau met with each of the three major Credit Reporting Agencies (CRA) to discuss the requirement and how agencies could best fulfill this federal provision. In the future, there may be a universal or automated way of making these checks, but for now states must make these requests for each foster child using the contact information for each CRA (each of the three CRAs have identified a separate process described in attachments to the instruction).

Advocates now have a clear process for handling identity theft.

Information is also contained in an attachment on how to “clear” a credit report when a child has been a victim of identity theft. The instruction also describes the requirement that each foster care agency will need to create a document that establishes and verifies the agency’s identity and legal authority to make the credit check, as well as verification that the child/youth is in foster care (court order or other appropriate document). If a foster youth has turned 18, then the agency must have an approach for working with the young adult to obtain, with their consent, the report and then work collaboratively to dispute inaccuracies.

Howard Davidson is the director of the ABA Center on Children and the Law, Washington, DC.