Who runs foster care, who pays for it and what the 1997 law changed

Pop quiz. Who runs foster care in America? If you said "the federal government," you are wrong, but you are in the company of most people who write angry letters about it. If you said "the state," you are closer. If you said "the county, a private agency under contract, a family court judge and a caseworker with more files than hours," congratulations. You have understood the system, and you probably need a drink.

Foster care is the clearest example in American life of a government program where everybody is in charge and nobody is responsible. Washington writes rules and signs checks. State legislatures write the laws. Agencies, some state-run and some county-run, hire the caseworkers. Judges decide the cases. Private and faith-based agencies recruit and support the families. When something goes wrong, every layer points at another one, and a child is left to find out which one actually answers the phone.

That is a bad way to run anything, and it is a particularly bad way to run the thing that decides where a frightened child sleeps tonight. So let us do what the people who rely on this system rarely get to do: draw the map. Who decides what, who pays, what two federal laws changed, and what a county commissioner or a state legislator can actually fix.

What foster care is, and what it is for

Foster care is temporary care, arranged by the government, for a child whom a court has found cannot safely remain at home. The usual cause is abuse or neglect. A court order, not a parent's request, is what normally puts a child in the system. The child is placed with a relative, which is called kinship care, or with a licensed foster family, or in a group setting, while the agency works toward one of three outcomes: return home, adoption, or another permanent arrangement such as guardianship.

The word "temporary" is carrying a lot of weight in that sentence, and the history of the system is largely the history of what happens when it stops being true. In the decades before 1980, children could drift for years from placement to placement, never going home and never being adopted. Two federal laws, in 1980 and 1997, were attempts to fix that. They took opposite emphases, and they are better understood as a pair.

Who does what

Here is the division of labor in one table.

A few details sharpen the picture. In most states, a single state agency runs the system. In a handful, the state supervises while counties run the day-to-day work, and that means the quality of the service in one county can differ sharply from the one next door. If your state is one of those, the county commissioner is a more important person than you thought.

The federal government's role is mostly through the purse. That brings us to the money.

Title IV-E: who pays

Title IV-E of the Social Security Act is the main federal funding stream. In rough terms, the federal government reimburses a state for part of what it spends on foster care for eligible children: the monthly payment to the foster family to cover the child's room and board, a share of administrative costs, and a share of training. For the monthly payments, the federal share follows the state's Medicaid matching rate, so wealthier states receive a smaller federal share and poorer states a larger one. Check your state's budget documents for the exact numbers.

Two things about this money surprise people.

First, eligibility is tied to the past. To qualify for Title IV-E reimbursement for a particular child, the child must have come from a family that would have qualified for the old Aid to Families with Dependent Children program under the income rules in effect in 1996. That standard was never indexed to inflation, so each year fewer families qualify, and states pick up the difference with their own dollars. It is a strange thing, a federal program whose gate is set by a program Congress abolished in the same year it set the gate. Reformers on the left and the right have both asked to delink it, and it is a good bipartisan question to put to a member of Congress.

Second, the federal money comes with strings. To receive it, a state must follow federal requirements: a written case plan for every child, regular court reviews, background checks for foster parents, and findings by the judge about the agency's efforts. These conditions are the vehicle through which Washington exercises influence, and they are what the two big laws changed.

The 1980 law: keep families together

The Adoption Assistance and Child Welfare Act of 1980 was signed in June of that year. Its aim was a reaction against a system in which children were taken too easily and then left too long. It did four main things.

1. It required states to make "reasonable efforts" to keep a family together before removing a child, and to reunite the family afterward when possible.
2. It required a written case plan for every child in care and periodic reviews, so that no child would be forgotten in the system.
3. It created federal adoption assistance, a subsidy for families adopting children with special needs, so that the cost of a child's care would not stand in the way of giving that child a permanent home.
4. It established Title IV-E as the funding structure we just described.

Notice the philosophy. In 1980 the worry was about a child in foster care who should never have been there. The remedy was to impose duties on the agency: try harder to keep the family intact. That was a reasonable response to a real problem. But it created its own problem, because "reasonable efforts" can be read to mean "keep trying forever."

The 1997 law: safety and a permanent home

By the middle of the 1990s a different worry had taken hold. A child could be returned to a home that was not safe, because the system was under pressure to reunify. Others languished for years in care while the process dragged on. The Adoption and Safe Families Act, signed in November 1997, was the response. It made the child's safety and health the paramount concern and a timely permanent home the goal.

Its main provisions:

• Safety first. The act said that a child's health and safety is the paramount concern in deciding what efforts must be made. Reasonable efforts to preserve the family no longer overrode the question of whether the child was safe.
• The 15-of-22-month clock. When a child has been in foster care for fifteen of the most recent twenty-two months, the state must file a petition to terminate parental rights, with exceptions. The arithmetic is simple: fifteen months is roughly two-thirds of twenty-two. The idea was to force a decision before a child's whole childhood vanished into the waiting.
• The exceptions. The state does not have to file if the child is being cared for by a relative, if the agency documents a compelling reason that filing would not be in the child's best interests, or if the state has not provided the family with the services the case plan called for. The exceptions exist because a rigid clock can do harm of its own.
• Aggravated circumstances. In the most serious cases, such as certain kinds of severe abuse, the state need not make reasonable efforts to reunify at all. A court can move straight to permanency planning.
• Concurrent planning and incentives. States are encouraged to work on reunification and an alternative permanent plan at the same time, and the act created financial bonuses for states that increase adoptions.

ASFA was bipartisan, signed by President Clinton. It is one of those rare laws that came from people who did not agree about everything and agreed about the child. If you want to see the same Congress and president in a different mood, read divided government gave us welfare reform and a balanced budget.

The 2018 law: help before removal

The most recent big change is the Family First Prevention Services Act, enacted in February 2018 as part of the Bipartisan Budget Act. It did two principal things.

First, it let states use Title IV-E money for prevention services, such as mental-health care, substance-abuse treatment and in-home parenting skills, for families whose children are at imminent risk of entering foster care. Before this, federal foster care money flowed mostly after removal. Money for helping a family stay together was scarce. The reform moved the dollars toward the front door.

Second, it limited federal reimbursement for group-home and congregate placements except in specified circumstances, with the aim of keeping more children in family settings.

States have the option of opting in and developing their plans, and they have done so at different speeds. That is where a legislator comes in. Whether your state has an approved plan, which services it covers and how it measures results are all questions you can ask your state agency directly.

The criticisms, stated fairly

Every one of these laws has critics, and in the interest of honesty let me state their best arguments.

From the child-welfare reform side: the 15-of-22-month clock can push toward terminating rights for parents who are making progress but facing a shortage of treatment slots. If the state failed to provide the services, the parent is punished for the state's failure. The exceptions are meant to cover this, but how often they are used depends on the county.

From the family-preservation side: poverty is too often mistaken for neglect, and a family without enough money is investigated when it needed help. A fair system should ask whether the problem is a lack of resources before it asks whether the parents failed.

From the fiscal-conservative side: the federal financing structure has historically rewarded removal and placement over prevention, and the old income test is a relic. Spending should follow outcomes.

And from the child's side, the criticism no one can answer: too many young people still age out of the system without a family. The goal of every law above was to prevent that. The record is mixed.

I do not think any of this means the laws were mistakes. It means that a system that handles other people's children requires constant, boring, local attention, which is not the kind of thing that wins a speech.

What a county commissioner or a state legislator can actually do

Here is the practical list. If you want to change foster care in your area, these are the levers, ranked by how directly an elected official can pull them.

1. Caseloads and staffing. Caseworker burnout is real. A county or state that funds more workers or a manageable caseload does something no federal law can. Ask what the average caseload is and who sets the cap.
2. Kinship licensing. States set their own standards for approving a relative's home. Reasonable, safe standards that do not exclude a grandmother over a technicality can keep children with people they know.
3. Payment rates. The monthly payments to foster families are set at the state level. If they do not cover the real cost of a child, families leave.
4. Court capacity. Judges, hearing dates and lawyers for children and parents are funded by the state or county. A delayed hearing is a child waiting.
5. Contracts with private and faith-based agencies. Counties and states choose which agencies they contract with, and on what terms. For why that matters, see What the 9-0 Fulton decision means for foster care and faith agencies.
6. Whether and how to use Family First. The choice of prevention services is a state decision.
7. Transparency. Publish the data: how many children are waiting, how long they wait, how many placements they have. What gets measured gets fixed.

Notice what is not on the list: any single action by Congress. The best place to start is the nearest meeting of the county board.

If your own family is thinking about opening a home, you will find the step-by-step path in ten steps from a church pew to a licensed foster or adoptive home. And the record of what the movement does for children after birth is in 'Pro-life stops at birth' is the line to answer, so let's answer it.

The bottom line

• Foster care is run by states, and in some places counties, under federal rules attached to Title IV-E money. No single official is in charge, which is the root of most of its problems.
• The 1980 law said keep families together. The 1997 law said safety and a permanent home come first, with a 15-of-22-month clock and real exceptions. The 2018 law moved money toward prevention.
• The levers that matter most sit close to home: caseloads, kinship rules, payment rates, court capacity and contracts. These are decided in your county and state capital.
• Ask your county commissioner and state legislator for the numbers: how many children are waiting, for how long, and how many caseworkers there are.
• If you are able, open your home or support a family who does. No program replaces a person who says yes.