110th Congress Second Session: Expectations for Child Welfare Legislation
Cassie Statuto Bevan, Ed.D.

The lame-duck status of President Bush, election year frenzy resulting in a short legislative session, and pay-as-you go rules combine to lower expectations of the passage of a comprehensive package of child welfare reforms this session. It is very difficult to predict legislative action in general. However, it is especially difficult when the intended beneficiaries of the action are non-voting constituents. Inaction on legislation designed to assist a “silent majority” has no political or financial consequences.

Moreover, legislative proposals, federal laws and even regulations governing the child welfare system as well as the system itself are reactive. A number of horrific deaths of abused and neglected children known to the child welfare system (and about half are) might bring some congressional attention. The chances of legislative action increase exponentially if the children’s deaths took place “back home” in the member’s district and the member is in the majority party as a leader or a chairman with jurisdiction. Barring public outcries it is not likely that this session of Congress will bring much action to the plight of maltreated children or their families.

There are, however, some indicators that can be useful in trying to predict legislative action. One such indicator is the President’s budget that lays out the Administration’s request for funding or eliminating programs. A second indicator is the “must pass” legislation that targets expiring programs or provisions. The third indicator is the “low hanging fruit” i.e., legislation that is both non-controversial and low-cost that can pass the committees, both chambers and secure the signature of the President to become law. The final indicator is the “laying down of a marker” by a Subcommittee Chairman by introducing a comprehensive bill that is highly visible, wide-ranging and representative of his/her constituent base. This proposal is more of a political statement than a legislative vehicle. The “marker” is introduced with the knowledge that the bill will not pass in its introduced version. It will, however, become the subject of hearings, activate the partisan base and perhaps, if there are some provisions where bipartisan, bicameral agreement can be reached, even become law. Equally important, this strategy shows the Subcommittee Chairman as a leader on the issues within his jurisdiction. It will also signal the policies the Chairman wants to address in the next Congress where the environment will presumably be more favorable (in this case where the Democrats pick up more Congressional seats and gain the White House).

President’s Fiscal Year 2009 Budget

The President’s Budget for child welfare programs is reflected in the Fiscal Year 2009 (FY09) request for the Administration for Children and Families. The request includes both mandatory or entitlement programs (where the federal government is obligated to provide services or make payments to eligible persons entitled to receive these benefits by meeting the eligibility standard established under law) and discretionary programs (subject to yearly appropriations). Mandatory programs make up an overwhelming 71% of the FY09 budget. These programs, funded under the open-ended entitlement stream, are under Title IV-E and include, in part, foster care room and board (maintenance payments), adoption assistance payments, adoption incentive payments, the Chafee Foster Care Independence Program and the operation and development of the data system, the Statewide Automated Child Welfare Information System (SACWIS). Title IV-E also pays for training and administrative costs. “Child Welfare Services” under Title IV-B is discretionary funding. This money assists states in keeping children safe, as well as supporting and preserving families.

The Congressional Budget Office (CBO) assumes that foster care caseloads will continue to decline while the adoption assistance programs will increase. This assumption is reflected in the FY09 budget estimates for Title IV-E that put the payments for foster care at $188 million less than the FY08 enacted level, while the adoption assistance payments are expected to increase by $130 million over the FY08 enacted level. Child welfare services under Title IV-B are level funded under the FY09 budget.

Funding for child welfare services and programs is not limited to Title IV-B. Both the Social Services Block Grant (SSBG) and the Community Services Block Grant (CSBG) provide a broad range of services including but not limited to: protecting children from abuse and neglect, supporting and preserving families, promoting self-sufficiency and decreasing dependency. Both of these block grants are viewed as the “glue” that allows states to piece services together. However, these block grants were evaluated by the federal evaluation tool, the Performance Assessment Rating Tool (PART) where deficiencies were found and are reflected in the President’s FY09 request. For SSBG, the FY09 request is $1.2 billion, a decrease of $500 million from the FY08 enacted level with a goal of eliminating this program in 2010. For CSBG, the President requested this program be eliminated because its PART concluded that “results were not demonstrated” and some of its services were duplicative.

This budget is not likely to be used as a blueprint for spending. It is an indicator of the President’s priorities but these priorities are not shared by the majority party in Congress. Budget battles are fought every year with this year expected to be especially contentious.

Must Pass Legislation

There are two “must pass” provisions that will expire without Congressional action this session. The first are the adoption incentive payments established in the Adoption and Safe Families Act of 1997. The adoption incentive payments were given to states that increased their adoptions out of foster care over the previous year. This discretionary funding was authorized to pay $4,000 for finalized adoptions and $6,000 for “special needs” adoptions. The adoption incentive program has been reauthorized once since its inception, state baselines have been updated, eligibility for the additional $2,000 “special needs” payments has been limited to children under age nine at the time the adoption was finalized and a third adoption incentive of $4,000 for the adoption of children age nine and older has been established.

In the FY09 budget the President is requesting some modifications of the incentive structure and a $15 million plus up for the adoption incentive program above the FY08 enacted level. With a $20 million adoption incentive program the reauthorization will continue the commitment to increase the number of adoptions of children out of foster care.

The second “must pass” legislation is reauthorization of the Child Abuse Prevention and Treatment Act (CAPTA). This discretionary program has two parts: the “State Grant” program that provides grants to states to, among other things, improve its intake, assessment, screening and investigation of child abuse and neglect reports; devise risk assessment tools, and provide for referrals of newborns born drug-exposed. The FY09 budget calls for level funding for the “State Grant” provision despite the fact that the PART rating for CY04 was “Results Not Demonstrated.”

The second part of CAPTA are the “Child Abuse Discretionary Activities” that support over 50 grants for, among other things, research and demonstration contracts, research on the prevention, causes, and treatment of child maltreatment. In addition, these funds are used to provide for a national clearinghouse and a national resource center as well as to provide of the continuation of a national incidence study of child abuse and neglect. The request calls for a Home Visitation initiative and funding to conduct a feasibility study of a national child abuse and neglect offender registry. The FY09 budget calls for level funding of the “Child Abuse Discretionary Activities”

Low Hanging Fruit Legislation

It is possible that in addition to securing passage of the “must pass” legislation, that the powerful Ways and Means Committee (with jurisdiction over all of foster care and adoption but not the Child Abuse Prevention and Treatment Act) will address some low ticket provisions. Raising the training match for both public and private agencies to 75% is one such item. Under current law public agencies receive foster care and adoption assistance training with a 75% match by the federal government under IV-E entitlement funding. However, private agencies receive only a 50% federal match for training under IV-E. The states and private agencies do not see the rationale for this difference since private agencies as well as public agencies need training to provide services.

A second provision is the bipartisan legislation (H.R. 5461) in the House of Representatives calling for a White House Conference on Children and Youth. The legislation sponsored by Mr. Fattah (D-PA) and Mr. Porter (R-NV) would require the next President to sponsor a White House Conference in 2010. The bill was referred to the Education and Labor Committee. The White House Conference would bring the child welfare experts, advocates and policymakers together to make recommendations on promoting the welfare of children. The authorization of appropriations in the bill is $10 million but since this is only an authorization it does not receive a cost from the Congressional Budget Office. Moving this bill through the House would be a relatively easy way to appeal to advocacy organizations mobilizing their base to secure passage.

Laying a Legislative Marker Down

The final indicator useful in predicting congressional interest in child welfare policy is the “laying down of a marker” by a Subcommittee Chairman. On February 14, 2008, Subcommittee Chairman McDermott (D-WA) introduced a comprehensive child welfare bill dubbed “Invest in KIDS Act.” The bill is designed to improve foster care services, provide accountability and help foster children secure safe, stable and permanent families. It is likely that the bill will be the subject of congressional hearings as early as March. The bulk of the bill increases entitlement spending and is unlikely to get out of the committee. However, there are some important, no cost provisions that could be viewed as “low hanging fruit” and as such garner some action. Under the bill states are required to: (1) make reasonable efforts to place siblings together; (2) develop a health oversight and coordination plan for children in foster care; and, (3) develop an educational stability plan for children in foster care. These are clearly necessary provisions with no costs where there could be bipartisan and bicameral consensus.

Conclusion

In sum, it remains to be seen how much political will exists to move child protection legislation beyond the reauthorization of CAPTA and the adoption incentive program.

With the entire House of Representatives up for re-election, one-third of the Senate and the race to the White House, the legislative session will end early to allow Members to go home and campaign. There is also the sense that the Democrats fragile hold on the Senate will be strengthened in this election and that seats will be picked up in the House of Representatives. At this point, it is still unclear who the parties’ nominees will be, let alone who will take the White House. All of these factors impact not only the child protection legislation we will see in FY09 but in the next Congress as well. Stay tuned.