Lifting the Veil: Reasonable Efforts
THE PAPER TIGER
"I knew I would be here, I knew in my worst, worst moments, I knew that I would be here again," said George Miller, Chairman of the Select Committee on Children, Youth and Families.
Ten years earlier, he had set out to help craft the legislation that was to change the child welfare and foster care systems.
"We were alarmed 10 years ago by the studies done at Stanford that indicated that in California you get 6 minutes on the average for a court review to review 6 months of your life. Which may in some instances be half of your life, if you are an infant," said Chairman Miller.
"We were alarmed; and now we hear there is 30 seconds spent on the periodic review. It is a clear violation of the law. Periodic review without advocates -- clear violation of the law."
The law that George Miller and the distinguished members of the Select Committee would enact would come to be know as Adoption Assistance and Child Welfare Act, or Public Law 96-272. The Act included a provision that "reasonable efforts" be made to prevent placement in foster care.
Ten years after he and the Committee drafted the legislation, here he was again, reminding the members of the Committee that the stories they heard that day were no different from those they had heard a decade earlier--that little, if anything, had changed.
Several months later, Chairman Miller would once again call the Select Committee to order by explaining to its newer members how Public Law 96-272 came to be enacted:A dozen years ago, I initiated an intensive investigation of our nation's foster care program. That query began when an official of the Department of Health, Education and Welfare admitted to me that the government had no idea where many of the 500,000 foster children were living, what services they were receiving, or whether any serious attempt was being made to reunite them with their families.The legislation would enjoy wide bipartisan support, as a Boston Globe columnist explains: "Religious conservatives were denouncing the breakup of families. Libertarians were attacking 'child-snatching' agencies that invaded homes. Liberals were accusing agencies of taking away poor minority children instead of giving their families needed services."
The role of the government was limited; we paid the bill, often for warehousing children in institutions and inappropriate settings, without services, without accountability, without any significant efforts to address whatever catastrophe had driven them into this Dickensian disaster of a system.
We heard stories of children taken from their homes, shipped hundreds of miles away to other states where they were kept for months, or even years, in unlicensed and unsuitable places. And we responded.
The reasonable effort requirement of P.L. 96-272 was implemented, in part, because the Congress determined that a large number of children were being unnecessarily removed from their homes.
As a California-based Grand Jury explained: "Public Law 96-272 mandates prevention of unnecessary separation of children from their families by providing social services to these families."
Then, as now, there were no services being provided to prevent the traumatic and often needless removal of children into state care, the Child Welfare League of America recently explained to a Senate Subcommittee:"Reasonable efforts" became part of P.L. 96-272 because at that time, foster care was virtually the only option available and there was recognition that alternatives were needed. Placing children in an overwhelmed, under-serviced foster care system was not then and is not now conducive to positive outcomes for children. In fact, there were many instances then, as now, of children being removed unnecessarily from families. It is important to recognize that children almost always are traumatized by removal from their own family.As Chairman Miller pointed out, the federal government often had no idea where many of the children were. The government paid the bill, often for warehousing children in institutions and inappropriate settings, without services, and without accountability.
Hence, Public Law 96-272 also included a provision that a reasonable system be developed to identify the hundreds of thousands of children in state care.
"The goals of the Act are modest," Children's Rights Project attorney Marcia Robinson Lowry explained to the Congress.
"As a condition of federal funding, states must have a reasonable information system to identify the children in federally-funded state custody. Under this law children come into state custody only after 'reasonable efforts' have first been made to keep them at home with their families.
"Once children are in state custody," Lowry explained, "a permanent plan is to be made for each child with the goal of returning them to their families, through the provision of services, or if that is not possible, that adoptive homes be sought for them. The Act also requires that children be kept in the most family like settings possible while in foster care, and that the children's status be reviewed periodically."
The problem of "foster care drift," in which children are shuffled through multiple placements for years of time was also a factor.
"These amendments were precipitated by studies which showed that the public child welfare system had become a holding system for children living away from parents, rather than a system assisting parents in carrying out their roles and responsibilities and providing for alternative permanent placement for children who cannot return to their own homes," explains the Departmental Appeals Board of the Department of Health and Human Services. "Thus, one of the goals of Public Law 96-272 was to ensure that children do not remain adrift in the foster care system."
SOME MEASURE OF SUCCESS
The Adoption Assistance and Child Welfare Act did enjoy some measure of success during the first few years following its passage.
The number of children in foster care during the mid-1970s was reduced from its high of half a million to a low of nearly half that number, or 262,000 in 1982.
The reasonable efforts requirement succeeded in reducing the foster care population to nearly half of its previous level.
Lack of federal enforcement resulted in the subsequent doubling of the foster care population, which exceeds previous levels today.
Source: Compiled by author
The reasonable efforts requirement suffered from a near-complete lack of enforcement on the federal level.
The only method of enforcement the Congress devised was that of providing incentive funds to states who complied with the requirements of the federal law. States would "self-certify" compliance, but would be subjected to periodic audits by the Department of Health and Human Services to ensure their compliance. In the event of failure, the state would return those incentive funds over and above the federal contribution.
These periodic audits of state compliance would come to be known as "section 427 reviews."
Over time, the states would learn that these reviews were all but meaningless, as Michael Petit, Deputy Director of the Child Welfare League of America recently explained to the Congress:Having served as a State administrator myself and having interviewed hundreds over the years, 427 is a meaningless process for most of the States. It represents no kind of sanctions to the States whatsoever. It is viewed as a paper tiger.The reasonable efforts requirement also suffered from the lack of a clear definition.
A 1993 study determined that "the reasonable efforts requirement has not been formally defined in federal legislation or regulation, nor has it been addressed conclusively by the courts."
The report stressed that the lack of definition in the reasonable efforts requirement "leads to confusion, burdens the courts, and allows states and agencies to disregard it."
The report also asserted that those states, jurisdictions, and agencies which did adhere to the requirement did so without federal guidance.
Indeed, the failure of the federal government to provide effective oversight has long been an issue. In 1986, six years after the Adoption Assistance and Child Welfare Act became law, Mark Soler, director of the National Youth Law Center explained:In foster care, the Department of Health and Human Services has failed to promulgate meaningful regulations to implement the Adoption Assistance and Child Welfare Act. It has applied even the minimal Federal regulations that were developed in an inconsistent and arbitrary manner, resulting in confusion among State officials and only token implementation of the laws protecting children."I never thought we would be here this long," said a frustrated George Miller two years later. By this time, eight years had elapsed since he and the members of the Select Committee had gone through the tortuous process of crafting the Adoption Assistance and Child Welfare Act.
There is no clear Federal voice as to what is required under Public Law 96-272.
"I think what has been demonstrated here is that you may have a system that, for lack of a better phrase, is simply in contempt," said Miller. "This system has been sued and sued and orders have been issued and people have just continued on their merry way. And HHS has just continued to look the other way. You have a system that is not only somewhat out of control; it is also illegal at this point."
There was no expression of interest on the part of the administration in getting the child welfare system back on track, said Miller, and as a result "what we see is that it is chewing up an increasing number of children in the process."
"The reviews that are done of the States are irresponsible," said Marcia Robinson Lowry. "States are passing HHS audits with systems in which no reasonable person could consider children are being well treated. It is virtually impossible to fail an HHS audit."
Nevertheless, several states have managed to accomplish just that.
Louisiana was among those states to accomplish the impossible, having failed its compliance audit. When asked what her state had done about it, Sydney Olson, then Assistant Secretary in charge of child welfare has no idea what, if anything, her agency had done, prompting the exasperated Chairman George Miller to ask: "What do you do in this department?"
Perhaps the best indication of the states contempt for federal oversight came when Congressman Thomas Downey, who was co-chairing the hearings, read aloud from the prepared testimony of Olson's predecessor as provided at the hearings held one year earlier, comparing it to the testimony Olson had just delivered. Word for word, the excerpts were identical.
"This reminds me of the book reports I used to do in high school," said Downey, adding that he had recycled them in the tenth and twelfth grades. "My reports didn't change. Remarkably, apparently neither does your testimony from year to year."
Added the frustrated Chairman Miller: "What you are really engaged in is state-sponsored child abuse."
In 1984, the Office of the Inspector General of HHS identified 28 states "that were having difficulties in satisfying the program requirements."
A full decade after the implementation of the Act, between the period of March 1990 through October 1992, several states and the District of Columbia managed to accomplish the impossible and fail their compliance audits.
The Illinois Department of Children and Family Services, for example, was found ineligible to receive $5,634,432 in federal incentive funds for fiscal year 1991. Federal reviewers determined "that Illinois was well below the 90% compliance level required for that year."
Reviewers found "overwhelming evidence" of the state's lack of compliance. During its review, they found the first 8 out of 12 sampled cases out of compliance. Continuing the review, they concluded that 52 of 107 sampled cases were out of compliance.
In a similar action, Illinois raised a number of legal arguements, among them contending that if disallowances based on the review methodologies "are not outright unlawful, they are clearly against stated Congressional policy and must on that basis be deemed arbitrary and capricious."
The Appeals Board was unpersuaded by this argument, however, as Illinois had already raised it in the previous action.
In 1995, the HHS Departmental Appeals Board determined that of 100 sampled payments for which the state of Pennsylvania had filed for federal reimbursement, 25 were found to be ineligible, primarily for lack of proper judicial determinations with respect to reasonable efforts having been rendered to prevent removal, or determinations that remaining in the home would be contrary to the best interests of the child.
The state of New York is among those to share the dubious distinction of failing an HHS compliance audit. This case merits review at some length, as it details the extent to which the states will go to maximize federal foster care revenue.
The disallowance was based on an audit of State claims for foster care maintenance payments made by the New York City Department of Social Services.
Federal auditors determined that the City had made errors in determining eligibility, or had failed to document eligibility, in 186 of 257 sample cases, projecting a disallowance of $64,123,732.
Auditors also initially disallowed an additional $27,991,567 which was claimed for "administrative costs."
The 186 disallowed cases included:
76 children who were not removed from the home of a specified relative as a result of a judicial determination, or were no longer under the jurisdiction of the court, or did not have a timely judicial determination 65 children who had judicial determinations which did not contain evidence that the court had reached a decision to the effect that continuation in the home would be contrary to the welfare of the child, or that reasonable efforts were made to prevent removal or made it possible for the child to return home 58 children who were not eligible for AFDC either initially or during their placement in foster care 22 children who had neither a Social Security number nor an application for a number prior to April 1, 1985 15 children who were not removed from the home of a specified relative, or were not physically removed from the home, although foster care payments had been claimed for them 16 children who were no longer in foster care yet payments continued
In addition to all of this, 5 case folders were not found, 6 case folders were inadequately documented, 15 children were ineligible because responsibility for their care and placement was either not imposed on New York City or was transferred to private agencies, another 4 children were voluntarily placed into care without a signed voluntary agreement in violation of regulations, while another 3 children were ineligible because they were not United States citizens or legal aliens.
On appeal, it was found that "the auditors were in a sense being conservative in using the percentage of payments found in error, rather than the percentage of children for whom those payments had been made." Auditors found that 76.6% of the children in the sample, as compared to 52.6% of the payments, were in error.
True to form, the U.S. Department of Health and Human Services has continued in its efforts to undermine the few meager protections offered to children by the Adoption Assistance and Child Welfare Act.
In August of 1994, the Department issued a report citing some of the same disallowances detailed here, including that of New York, presenting them as examples of the "proliferation of rules" which when tied with penalties for noncompliance have "hampered the States in their administration of the Federal Foster Care program."
Incredibly, the report argues that: "The children in need of foster care services may be deprived of Federal support because the State's difficulty in meeting the precise statutory requirements prescribed for the use of Federal funds."
"There is no allowance for or definition of 'substantial compliance'," says the report.
Apparently, the Department of Health and Human Services is of the opinion that 76.6% of all children in a sample group in New York; 52 of 107 sampled cases in Illinois; and 25 of 100 cases in Pennsylvania being out of compliance would constitute "substantial compliance."
The continued efforts of the Department of Health and Human Services to derail the Act have served well to undermine confidence in its key provisions.
As the report notes: "In recent months some of these eligibility requirements have been viewed as 'technical' in nature by Members of Congress and State officials."
The law was destined for failure, as the Department of Health and Human Services was hostile to the law from its inception, wrote George Miller in 1990. "Frankly, we don't know whether or not the law works because the Department of Health and Human Services, throughout the 1980s, failed to enforce compliance.
"One of the first acts of the Reagan administration in 1981 was to try to repeal the law. When the Congress wouldn't let that happen, the Department effectively repealed the law through its lax enforcement."
Adds Miller: "I'm asking the same questions I asked more than a dozen years ago when we developed this landmark legislation. And still there are no answers."
But the hostility toward the legislation on the part of the Federal leadership was not the only factor leading to the failure of the Act. The real battle would be fought by a variety of special interest groups with vested interests in maintaining the levels of children in foster care, and by a bureaucratic structure intent on ensuring its own survival.
Copyright © 1997 - 2002 Rick Thoma
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Last Updated August 28, 2002