Passed in 1997, ASFA is one of the first pieces of Federal legislation that acknowledges the unique position of kin within the foster care system. The law differentiates between public kinship care and non-kin foster care in two ways. First, it clearly indicates that “a fit and willing relative” could provide a “planned permanent living arrangement.” Second, it states that termination of parental rights does not have to occur within the allotted time frame if, “at the option of the State, the child is being cared for by a relative.”
In January 2000, HHS issued a final rule for the implementation of this act. The regulation contains two provisions that may significantly affect States’ public kinship care practices. First, the final rule clarifies the definition of foster family home, as used in title IV-E. This definition, may reduce the number of kinship care homes eligible for Federal foster care reimbursement. Second, the final rule expands the circumstances under which a child may remain with a relative following a court-ordered removal of parental custody and be eligible for Federal foster care beneifts.
Title IV-E defines a foster family home as “a foster family home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State having responsibility for licensing homes of this type, as meeting the standards established for such licensing” Sec. 472 (c) (1). The regulation for ASFA amends this definition to clarify that the statute makes no distinction between approved and licensed homes. Therefore, in order to be eligible for reimbursement under title IV-E, a foster family home, whether that of a relative or a nonrelative, must be fully licensed by the State. States may waive certain licensing requirements unrelated to child safety, such as square footage requirements, for relative homes, provided such determinations are made on a case-by-case basis, based on the home of the relative and the needs of the child, but States may not exclude relative homes, as a group, from any requirements. The revised definition of a family foster home may have an impact on the 22 States that now license or approve kinship homes differently from non-kin foster homes, yet provide such kin with foster care payments.
The regulation also states that “provisional licensure or approval is insufficient for meeting title IV-E eligibility requirements. States may not claim title IV-E reimbursement until final licensure or approval is granted.” Currently, many States use provisional licensing so that they can place children with kin immediately rather than waiting for kin to complete the often lengthy licensing process. States generally perform safety checks for provisional licensing but may not address factors unrelated to child health and safety until later. Some observers have argued that placing children in a licensed home or in shelter care while the relative goes through the licensing process may further disrupt the children’s lives during an already difficult time (American Public Human Services Association, 1998; California Department of Social Services, 1998). Others, including many Kinship Care Advisory Panel members, have recommended that HHS hold to the “licensed or approved” language of title IV-E and amend the foster family home definition to stipulate that approved homes must meet the same child safety standards as licensed homes (California Department of Social Services, 1998; U.S. Department of Health and Human Services, 1999).
At the same time, the final rule may increase the number of relatives eligible to receive Federal foster care benefits by changing current policy concerning what constitutes a child’s home or foster home for the purposes of title IV-E eligibility. Under previous policy, if a child living with a relative was placed in the legal custody of the State agency yet continued to live with the relative, the child was not considered as having been removed from the home and was therefore ineligible for Federal foster care benefits. Data show that such nonremoval cases are very common (Beeman et al., 1996; Testa et al., 1996). The regulation modifies this policy so that a child who had been living with a parent (or other specified relative) within six months of the initiation of court proceedings to alter custody would be eligible for title IV-E, assuming all other criteria for eligibility were met. Thus, if an AFDC-eligible parent (or other specified relative) leaves his or her child with another caretaker, and the state takes custody of the child within six months of the child’s placement with that caretaker, the child would be IV-E-eligible.