Flawed, Rushed Family First Bill Undermines Thoughtful Child Welfare Reform

In the world of policy, decision makers try to balance the needs of various constituencies to drive toward incremental change. Reform efforts that start with the best of intentions can have unintended consequences, often for the very people they are trying to help. However, when we know what the consequences are before legislation is passed, we can follow the cardinal rule of any intervention: First, do no harm.

Such is the case with a law pending in Congress today. The Family First Prevention Services Act of 2016 has laudable goals of preventing child abuse and ensuring that more foster children are raised by loving families, instead of in group homes. California and its county-run child welfare system share these goals, having enacted a massive reform effort informed by a two-year process of gathering input from current and former foster children and experts in the field. On the face of it, you’d think we would be supporting this bill wholeheartedly. If the bill wasn’t being rushed forward without a willingness to address its significant flaws, we would be.

Instead, we’re asking for the bill to be slowed down in the Senate, after rapid passage in the House a mere 11 days after its formal introduction with a committee hearing that offered no opportunity to seek reasonable amendments to address the major concerns that we and other states and children’s advocacy organizations have identified.

On the surface, the Family First Act sounds like a great deal: It would enable states to, for the first time, access uncapped federal funding for a time-limited, defined set of prevention services for children who are at imminent risk of placement into foster care. Once you dig a little deeper, though, the problems begin to mount.

With respect to the prevention services that could be paid for using federal dollars, the allowable services are relatively narrow in scope and the 12-month limit on these services isn’t enough time to make an ongoing difference in the lives of stressed parents and their children. Further, the children who receive these services must be at “imminent” risk of placement in foster care, a term of art in child welfare that essentially means the child and his or her family are quite close to foster care placement, instead of allowing these services to be provided much earlier in the process and avoid that family devolving dangerously close to outright abuse or neglect.

A potentially greater concern is that receipt of prevention services while a child is living with a relative would result in fewer children being eligible for federal foster care funding if our prevention efforts are unsuccessful and they do end up needing formalized care. This has the potential to create a shadow child welfare system, where relatives are asked to care for children who may receive services, but do not have a formal case open in the system. These relatives would not receive additional funding or services to care for the child beyond the prevention services authorized in the bill.

In California, we have spent years building a system where kin caregivers are treated the same as foster parents, and that work continues even today. This would potentially undermine all of those efforts and harm many thousands of children statewide, and even more nationally.

Another significant concern is how new prevention services are paid for, which rhetoric surrounding the bill overlooks: Not one new penny of federal money is being appropriated for the Family First Act. Instead, all of the funding comes from cuts elsewhere in child welfare, generating savings that will outpace even the expected expenditures on prevention, according to the Congressional Budget Office (CBO). In fact, the CBO estimates that Family First will save the federal government $910 million over the next 10 years, because states will be unable to meet the new group home rules it contains. As Congressman Lloyd Doggett (D-Texas) noted about Family First, “all this money is taken from another program,” calling it “robbing Peter to pay Paul.”

Turning to the group home rules in the bill, the Family First legislation comes as California is in the midst of a multi-year effort to reshape how families providing home-based care are supported and to reduce the use of congregate care by recruiting more caregivers. This approach, known as the Continuum of Care Reform (CCR) has been carefully crafted with collaboration from the state, county human services agencies and children’s advocates, who agree that children should grow up in families, not in group homes. However, CCR also recognizes there are children who have high levels of need that are unlikely to be met in a home-based setting, such as victims of child sex trafficking who need specialized care in carefully selected placements so they can heal and stabilize before returning safely to a family home.

Contrast California’s thoughtful approach with the Family First bill that allows only one form of “qualified residential treatment programs,” requiring on-site nursing staff during business hours regardless of children’s medical needs and open only to children who have a serious emotional disturbance or other severe mental illness. These programs would be subject to extremely short time frames to assess children’s needs, or federal funding would be lost. And, the assessments would have to be done by professionals outside of the system serving the child – a head-scratching requirement that will have states and service providers scrambling in a system that is already short on qualified mental health professionals to serve our children.

All of these new requirements would force states like California to shut down innovative programs that meet the needs of specific populations of foster youth or run them wholly with state and county funds, a Hobson’s choice that is likely to result in further harm to these vulnerable children.

The approach taken by the Family First bill is even more perplexing given that Congress itself has identified victims of child sex trafficking as a very vulnerable group of children through the 2014 Preventing Sex Trafficking and Strengthening Families Act. Under Family First, many of these youth likely would not meet the medical definition required in the legislation to merit placement in programs for children with severe emotional disturbances. Instead of offering up new options to address the increasingly complex issues facing children, the federal legislation is taking options off the table.

Despite these significant concerns about how critical – but fixable – provisions of the Family First Act will hurt children, the issues raised by CWDA, the states of California, New York, Minnesota, Washington and North Carolina, and a number of child welfare advocates have thus far been dismissed, with neither the House nor Senate being willing to entertain amendments that would make the legislation work for all children. The general sentiment – from lawmakers as well as some national advocacy groups that are supporting the bill – has been that the bill should be passed even with the known problems, based on the flawed premise that a chance to open federal coffers for prevention services will never come again in our lifetimes, and that the upside of the bill (more prevention services) is worth the downside of children being harmed due to overly restrictive placement requirements and loss of eligibility for federal funds when placed with relatives.

We cannot accept this deeply flawed bill as it is, nor can we accept a legislative process that jams it through without fixing it first. Promises of fixes in future legislation are not enough: There is no doubt that Family First would have negative consequences for children and relative caregivers nationwide if passed in its current form. Promises of possible flexibility in administrative regulations to implement the law are also not enough: The concerns raised above are statutory, and the bill gives the executive branch flexibility on only some of these issues. Add the uncertainty around the current election cycle, and it becomes very clear that banking on the next administration to fix these issues is unwise.

Congress is setting a hasty timetable of its own making. Congressional members leave for summer recess on Friday, July 15 and return after Labor Day. There is plenty of time for staff to work on options for Congress to consider upon its return. These critical issues are fixable and amendments are being drafted for discussion. There is no reason to rush policymaking when the stakes are this high and acknowledged problems exist with the bill. If Congress wants to move quickly on a bill that is a priority, they find a way to do so; action to date on the Family First Prevention Services Act proves that to be the case.

When a parent sees something that will hurt her child, she speaks up immediately and stops it from happening. She finds a way to fix the problem now. She doesn’t wait a year to fix it. She doesn’t take a promise about a fix that might happen sometime down the road.

This is why we’re speaking up now, on behalf of all abused and neglected children. We cannot accept that our children – especially our most vulnerable children – deserve anything less than all of our utmost attention to how their lives will be affected by legislation before it is passed, not after.

Cathy Senderling-McDonald is the deputy executive director of CWDA. This piece was first published on the CWDA blog.