ACF Releases Rules for Extending Foster Care, GAP to Age 21

Rules published by the Administration for Children and Families this summer  could make it easier for cash-strapped states to use new federal options to offer guardianship programs and extend foster care to age 21.

But some national child welfare advocates are concerned that “easy” might come at the expense of “inclusive” when it comes to the guidance, which governs implementation of the Fostering Connections to Success and Increasing Adoptions Act.

The act provides states with two new optional features. They can now opt to use federal Title IV-E matching funds to pay for the foster care costs of young adults up to age 21 (the previous ceiling for federal money was 18), and they can arrange for guardianship assistance payments (GAP) between foster youth and kin.

GAP arrangements require less monitoring and interaction with child welfare agencies, and are most commonly used when a relative is willing to be a permanent guardian for a child but does not wish for the birth parent to have his or her parental rights terminated. 

 ACF did not respond to requests for comment or information for this story. The director of the ACF division in charge of IV-E – Bryan Samuels – was “on travel,” according to spokesman Ken Wolfe.

The program instruction for Fostering Connections finally was published in mid-July, and includes a number of parameters that offer more flexibility to states than state officials and national policy advocates had expected.

Rules Offer Flexibility

One rule permits states to expand foster care past age 18 without having to extend it to 21, meaning that states could choose to increase the age to 19 or 20.

Another allows state IV-E agencies to limit extended foster care to young adults who are on specified educational or employment tracks. “For example,” the instructions state, “a title IV-E agency may provide extended assistance to youth enrolled in post-secondary education only.”

The guardianship provisions also provide eligibility range. The 37 states with some existing form of guardianship will be allowed to maintain whichever definition of “kin” that they use now. States can choose to define kin narrowly as strictly blood relatives, or they can use a broader universe that includes family friends or even foster parents.

A state agency also can choose to establish a targeted age group for guardianship assistance payments, which would enable it to offer GAP only in the case of older foster youth. Another rule allows states to limit guardianship eligibility to youths who have been in foster care for more than a consecutive six-month period. The law only mentions a consecutive six-month waiting period.

 Many states have moved toward implementation of Fostering Connections in the past year. Last summer, only six states had submitted plans to establish IV-E GAP programs, for which money has been available since 2009 (see “A Funding Offer Wins Praise, but Few Takers,” June 2009). Now, eight plans have been approved and nine more are pending HHS approval.

Another 12 states have passed state laws pertaining to a federal GAP but have not yet submitted plans to HHS, and two states have pending legislation. In the near future, the total number of states with federally approved GAP plans could jump from eight to as high as 31.   

Fewer states have made moves toward extending foster care to older youth. ACF could start reimbursing states for older youth in care on Oct. 1. But as of April, only one state had submitted a plan to extend its age group (ACF did not respond to requests for updated information). Seven other states have passed legislation about extending foster care, and six have pending legislation.

Nineteen states have taken no action regarding the new foster care options, and some state legislatures with pending legislation will not convene again for months. In many of those states and others, the elephant in the room with most policy changes is a gloomy budget situation. 

Language in the program instruction suggests that ACF was less restrictive with the rules than it might have been in better financial times. In one section on extended foster care eligibility, the agency says it is “providing flexibility … because we want to encourage a title IV-E agency to take advantage of the option as soon as possible, even if the agency can do so on only a limited basis.”


At what expense?

Child welfare observers in Washington want more time to persuade states to make full use of the new options before ACF offers them middle ground. Advocates have met regularly over the past month to develop a list of flexible rules they hope ACF will either amend or rescind.

“We want states to pick up [the options], but in a way that helps the greatest number of kids,” said Jaia Peterson Lent, deputy executive director at the Washington, D.C.-based Generations United. “We don’t want flexibility at the expense of certain children.”

On the other hand, state fiscal crises remain a barrier to expansion in some states.

California, which was one of the first states to establish a state-funded guardianship program, finds itself in that situation with Assembly Bill 12, which would enact the expansion of foster care and establish a IV-E GAP program.

If the program instruction had not afforded states flexibility, AB-12 would be dead in the water, according to Kathy Watkins, legislative program manager for the San Bernardino (Calif.) County Human Services System, who helped craft the legislation. The present version of the bill, she explained, starts by offering foster care and GAP to 19-year-olds in 2012, then 20-year-olds in 2013 and finally 21-year-olds in 2014.

“We’re using the flexibility to do staggered implementation,” Watkins said. “It’s not the ideal; we wouldn’t have chosen to do it, but we’re in a dire fiscal situation here and have to be fiscally prudent.”


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