States Approaching the GAP with Caution

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From a policy perspective, there is nary a person with a bad word to say about the guardianship assistance payments established by the Fostering Connections to Success and Increasing Adoptions Act of 2008, passed by the last Congress and signed by President George W. Bush in October.

The program allows states to use a portion of its Title IV-E money from the Administration for Children and Families (ACF) to assist relatives who are willing to become legal guardians of youths who would otherwise be destined for foster care.

How it works: A state or county agency comes to an agreement with a relative willing to take guardianship, assists them financially in gaining legal guardian status, and pays them a regular benefit that can be  as much or less than the state's assistance to foster parents. Because these arrangements require less monitoring on the part of a child welfare system, it enables agencies to devote their staff to fewer youths.

Representatives for child welfare systems and agencies like the program. Family preservation advocates like it. President Barack Obama already set aside about $50 million in his 2010 budget for it. So why have only six states officially submitted plans to ACF to opt in for the funding?

The District Columbia, Tennessee, Rhode Island, Maine, Missouri, Pennsylvania and Oregon are  the only ones who have submitted the necessary plans to start guardianship assistance programs under Title IV-E, the entitlement money provided to states for foster care.

There appear to be a few reasons that other state agencies are taking their time deciding whether to opt in:

1) Legislation. The National Association of Public Child Welfare Administrators (NAPCWA) is interviewing every state about its efforts to implement Fostering Connections Act programs. A number of states are interested, said NAPCWA Director Anita Light, but have determined that they will need to pass new legislation in order to start participating in IV-E GAP.

"It's not that those states are not supportive, they just have to make changes," Light said. NAPCWA has produced final reports for eight states, with 10 more coming soon.

She expects to see more states in this situation to submit plans to ACF by the fourth quarter of this fiscal year. CW Today is skeptical. Legislation can take a long time to hammer through in states where legislatures convene only once or twice a year. And any bill that remotely involves spending will be tough because of reason number two...

2) The economy. Fostering Connections enabled states to access IV-E money for this venture. But like IV-E funds for foster care, it's not free; states have to match the money, many at 50 percent (poorer state contribute less).

Matching it with any other federal dollars is prohibited. So implementing GAP means ponying up for the payments and any costs involved in creating a system to manage it.

That probably wouldn't have been a problem if the act was passed in, say, 2007. But with a bad economy already and much worse budget shortfalls projected for most states in 2010, the words "increase" and "spending" aren't used consecutively in many state budget debates these days.

"In some cases, it's the additional costs associated with implementing optional programs," said Light. "Maybe a year ago,  we wouldn't be having the issues."

That is a shame, because there couldn't be a better year to implement GAP from a fiscal perspective. The stimulus package upped the federal contribution of IV-E money for 2009, so this is the year states will pay the lowest share of its child welfare costs.

That all frustrates advocates like Terence Kane, public policy analyst for Generations United, who is preaching the potential for cost savings. The Congressional Budget Office estimated that the feds would save $791 million between now and 2018 through GAP, so states could reasonably anticipate savings as well since it is a matching program.

But it doesn't surprise Kane, either. "States are going to be hesitant about new options in this economy," he said. Our job is "continuing to educate" states.

One thing that might help here is the $14 million solicitation ACF put out last week for projects that would help states make Fostering Connections Act programs work.

3) TANF is cheaper. States that operate guardianship assistance programs now have three basic options to fund them. One is using state revenue (and you can guess how stable anything completely state-funded is at the moment), two is a IV-E waiver project arranged with ACF, and the other is through its block of Temporary Assistance for Needy Families (TANF) grants.

Because of the aforementioned structure of IV-E GAP, continuing to operate out of TANF might be an attractive option. It can set its own rules for who is eligible and how the program works. And best of all from a fiscal perspective, states don't have to match the TANF money.

The rules for IV-E GAP also may have miffed some states operating their own programs. A letter sent to ACF in April criticized the agency for barring states with existing programs from incorporating their current caseloads into the new program.

That rule and others were announced in interim program instructions issued to IV-E agencies in December, before the new administration took over. Any changes to them are highly unlikely to come before Carmen Nazario, Obama's choice to lead ACF, is confirmed by the Senate.

4) Impact on Adoption. John Mattingly, the commissioner of New York City's child welfare system, is well-regarded for his efforts at child welfare reform (in the city and, before that, at the Annie E. Casey Foundation). But even he is approaching the idea of a subsidized guardianship program with caution because of its implications on adoption. Mattingly addressed his concerns in an e-mail to the Center for New York City Affairs in April:

"Those of us who have been in the field long enough know that most times, relatives will adopt if reunification is not a live option, if the agency supports them in their decision, and if it will achieve permanence for the child. In sum, kinship guardianship can be the best option for a small percentage of children, but the State of New York needs to be careful to craft regulations for its use that will continue the emphasis on adoption for most children who cannot return home."   

The thinking there is that adoption is still the more permanent result for the child, and relatives who would otherwise adopt might like the benefits of the guardianship better than any help they'd get for adopting. Fair enough. But the question is, how do you regulate that? And if you can't think of a perfect way, is that concern really worth not implementing GAP at all?

5) Crafting a Standard Agreement. Once a state opts in to IV-E GAP, "it is obligated to provide such assistance to any child who is eligible for title IV-E kinship guardianship assistance payments," according to ACF's program instructions. In other words: Once you're in, you're in all the way.

The basic eligibility stuff is the same as foster care; if a child meets the criteria for reimbursement for IV-E foster care, he or she counts for GAP too. The other determinants are more subjectively made by local agencies:

    -Are reunification or adoption not appropriate permanency options?

    -Does the child demonstrate a strong attachment to the prospective guardian?

    -Does the guardian demonstrate a strong commitment?

State and local agencies will need to train staff to recognize who qualifies, and how to start that process.

The agencies also will need to develop a standard agreement for guardians to sign that spells out what would void the guardianship. Advocates and watchdogs should keep eyes on those agreements, because there is already evidence that they could vary from state to state. For instance, Oregon's agreement stipulates that if a child covered under GAP is incarcerated for 30 days, the agreement is terminated. California (which runs its own program and hasn't opted into IV-E GAP yet) extended its guardianship program a couple years ago to include kids who were coming home from incarceration.