Monday, May 21, 2012

Foster care in America: HHS guidelines undermine child welfare waivers

The best chance in decades to get serious about reducing the number of children torn from their families each year is being undermined by the agency that is supposed to make it work.

Last September, Congress restored the authority of the Department of Health and Human Services to issue “waivers” from rules that restrict a huge proportion of federal child welfare aid to funding foster care and only foster care.

Under current law, the foster care money is an open-ended entitlement.  For every “eligible” child placed in foster care – and that’s nearly half of all foster children – the federal government picks up a large share of the cost.  This creates a horrendous incentive: Though foster care costs more than better alternatives in total dollars, there are times when it might cost a state or county less to use foster care because the federal government picks up so much of the tab.

States that receive waivers get the chance to spend the money on better alternatives, as well as on foster care.  In exchange, they accept the money as a flat grant instead of the current open-ended entitlement.  The state gets the same amount of money, plus inflation, for every year of the waiver (typically five years), even if there are fewer children in care.  So as foster care is reduced, the state gets to keep the savings, as long as those savings are plowed back into child welfare.

The Congressional Research Service estimates that, had this deal been made available to every state back in 2005, and had every state accepted it, the states would have had $5 billion more to spend on child welfare by 2010 than they actually got under the current entitlement.

So the fact that Congress now is allowing ten states per year over the next three years to receive these waivers seemed like a real breakthrough.  But the devil is in the details – in this case, the guidelines issued by the Administration on Children, Youth and Families (ACYF).  The guidelines appear to have been written to undermine any effort to use waivers to prevent children from entering foster care or to speed reunification.  They will be discussed at a so-called “town hall meeting” at the ACYF offices in Washington this afternoon.


For starters, the guidelines accept the false premise that all children in foster care have been abused or neglected.  The guidelines emphasize addressing the trauma caused by that abuse.  Nowhere do the guidelines recognize that many children in foster care have not, in fact, been abused or neglected (unless one considers poverty itself to be neglect) and it is foster care itself that often causes the trauma.

So it’s no wonder that instead of encouraging states to curb needless foster care – indeed, that’s not even listed as a goal - the guidelines give top priority to doing no more than providing a bigger Band-Aid to cover the gaping wounds opened by needless foster care placement.  The second priority is to create still more incentives to push adoption.

For page after page, the guidelines prattle on about improving “well-being outcomes.”  In other words: Try to undo some of the harm already done by bouncing children from home to home by providing more “counseling.” Or try to undo the harm done by moving foster children from school to school with mentoring programs and tutoring.

To the extent that helping families is mentioned at all, it is in a context that strongly implies providing more “counseling” for them – after their children already are in foster care.

Thus, for example, the guidelines state that

in order to achieve better outcomes for children who have experienced maltreatment it is essential to engage families, whether biological, foster or adoptive, in the process of healing and recovery. [Emphasis added.]

Note first the use of the pejorative, offensive term “biological parent,” instead of “birth parent,” which is value neutral.  The rest of the sentence makes clear the author’s view that all children in foster care have been abused and need help to heal from what the abusers did to them.


At least one study actually has tried to measure how much good this Band-Aid approach would do.  The answer?  Not much.

The study, done by Casey Family Programs in cooperation with Harvard Medical School, found that only about 20 percent of former foster children are “doing well” as young adults. (There is a complete analysis of the study and a link to the full study on our website here.)

The authors went on to design a complex mathematical formula to attempt to figure out how much they could improve these outcomes if  they could invent and use the perfect Band-Aid and every single problem besetting the foster care system magically were fixed. Their answer: 22.2 percentage points.  In other words, if tomorrow, foster care miraculously became perfect, it would churn out walking wounded only three times out of five, instead of four.  Yes, that’s worth doing – but not at the expense of better solutions.

To see why Band-Aids don’t work, one need look only at an example from the ACYF guidelines concerning an issue they propose to target: the misuse and overuse of psychiatric mediation on foster children.  This is a very serious, very real problem – but it is a problem inherent in foster care.  We know this because when children with exactly the same kinds of needs are placed in kinship foster care – that is with relatives – the percentage placed on meds is far lower.  It’s not hard to figure out why.  Grandparents are a lot more likely to love these children than total strangers – so grandparents are a lot more likely to put up with behavior that would prompt a stranger to demand a prescription to make the child more docile.

Thus, the solution to the misuse and overuse of psychiatric medication on foster children is to keep more children out of foster care and, where that’s absolutely unavoidable, do more to place them with relatives.  But the guidelines are seeking proposals not to curb foster care but only to provide that bigger Band-Aid, in this case “behavioral and psychosocial interventions [that] are considered first line or concurrent treatments for children for whom psychotropic medication is being considered or used.”


The second priority is using waiver funds to further increase adoptions. 

Since 1997, the American child welfare system has been fanatical about equating permanence for children with adoption. The federal government even has offered states a bounty of up to $12,000 for every finalized adoption of a foster child over a baseline number – sometimes with awful results.  There is no similar incentive for reunifying families.

Instead of trying to balance the scales by asking for waiver proposals that emphasize quickly and safely reunifying families, the guidelines seek proposals that will further tilt those scales toward adoption.  Indeed, in a section discussing the need for programs to address permanence, every example deals with adoption.

Still another section deals with changing financial incentives for the foster care-industrial complex, the network of private foster care agencies, professional helpers and assorted hangers-on that lives off a steady supply of foster children.

The guidelines call for proposals that will implement “performance based payments.”  Often called performance-based contracting, this has enormous potential to reduce needless foster care.  A state with a waiver could use flexible funds to reward agencies for keeping children out of foster care or increasing the number of children reunified with their parents.  But the guidelines ignore those possibilities.  Instead, the one and only example offered is this:

A state could condition provider payments … on measurable improvements in child well-being outcomes or increased numbers of successful adoptions among the longest-waiting children in foster care.


On one level, this fundamental betrayal of the primary purpose of waivers shouldn’t be surprising.  These priorities are a perfect reflection of the priorities Bryan Samuels, the commissioner of ACYF, the agency which drafted the guidelines.  His unfortunate priorities have been noted on this Blog before.

Fortunately, Samuels’ boss knows better.  His boss is George Sheldon, commissioner of the Administration for Children and Families (ACYF is a division of ACF and both are within HHS).  As Secretary of Florida’s Department of Children and Families Sheldon and his predecessor, Bob Butterworth implemented the only statewide waiver granted the last time they were made available in 2006.  They used the waiver to cut significantly both the number of children in foster care on any given day and entries into care.  They did it by emphasizing permanence in all its forms – reducing the number of children who entered care, bolstering reunification and adoption.

Few people in child welfare seem to have a better understanding of the need to prevent needless foster care than Sheldon.  And Sheldon championed waivers both before and after taking the job at ACF.

That suggests that a state that really wants to use its waiver to actually reduce foster care through prevention and reunification probably still can do it – and should not be discouraged from trying by these guidelines.  The guidelines have lots of wiggle room.  And, frankly, it’s possible there won’t be much competition for the ten waivers available each year.

So a state with gutsy leadership and a strong commitment to prevention and family preservation still should be able to get a waiver.  But the state will have to emphasize what Bryan Samuels already should know:

● The best way to improve the “well-being” of children at risk of foster care is to make sure they are never placed in foster care.

● And the best way to improve the “well-being” of foster children is to get them the hell out of foster care.