Title II — Ensuring the Necessity of a Placement that is not in a Foster Family Home

H.R. 253 · 115th Congress · Jan 4, 2017 · Lineage

II Ensuring the Necessity of a Placement that is not in a Foster Family Home

Sec. 201 Limitation on Federal financial participation for placements that are not in foster family homes

(a)

Limitation on federal financial participation—

(1)

In general— Section 472 of the Social Security Act (42 U.S.C. 672), as amended by section 112, is amended—

(A)

in subsection (a)(2)(C), by inserting “, but only to the extent permitted under subsection (k)” after “institution”; and

(B)

by adding at the end the following:

“(k) Limitation on federal financial participation

“(1) In general—Beginning with the third week for which foster care maintenance payments are made under this section on behalf of a child placed in a child-care institution, no Federal payment shall be made to the State under section 474(a)(1) for amounts expended for foster care maintenance payments on behalf of the child unless—

“(A) the child is placed in a child-care institution that is a setting specified in paragraph (2) (or is placed in a licensed residential family-based treatment facility consistent with subsection (j)); and

“(B) in the case of a child placed in a qualified residential treatment program (as defined in paragraph (4)), the requirements specified in paragraph (3) and section 475A(c) are met.

“(2) Specified settings for placement—The settings for placement specified in this paragraph are the following:

“(A) A qualified residential treatment program (as defined in paragraph (4)).

“(B) A setting specializing in providing prenatal, post-partum, or parenting supports for youth.

“(C) In the case of a child who has attained 18 years of age, a supervised setting in which the child is living independently.

“(3) Assessment to determine appropriateness of placement in a qualified residential treatment program

“(A) Deadline for assessment—In the case of a child who is placed in a qualified residential treatment program, if the assessment required under section 475A(c)(1) is not completed within 30 days after the placement is made, no Federal payment shall be made to the State under section 474(a)(1) for any amounts expended for foster care maintenance payments on behalf of the child during the placement.

“(B) Deadline for transition out of placement—If the assessment required under section 475A(c)(1) determines that the placement of a child in a qualified residential treatment program is not appropriate, a court disapproves such a placement under section 475A(c)(2), or a child who has been in an approved placement in a qualified residential treatment program is going to return home or be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home, Federal payments shall be made to the State under section 474(a)(1) for amounts expended for foster care maintenance payments on behalf of the child while the child remains in the qualified residential treatment program only during the period necessary for the child to transition home or to such a placement. In no event shall a State receive Federal payments under section 474(a)(1) for amounts expended for foster care maintenance payments on behalf of a child who remains placed in a qualified residential treatment program after the end of the 30-day period that begins on the date a determination is made that the placement is no longer the recommended or approved placement for the child.

“(4) Qualified residential treatment program—For purposes of this part, the term qualified residential treatment program means a program that—

“(A) has a trauma-informed treatment model that is designed to address the needs, including clinical needs as appropriate, of children with serious emotional or behavioral disorders or disturbances and, with respect to a child, is able to implement the treatment identified for the child by the assessment of the child required under section 475A(c);

“(B) has registered or licensed nursing staff and other licensed clinical staff who—

“(i) provide care within the scope of their practice as defined by State law;

“(ii) are on-site during business hours; and

“(iii) are available 24 hours a day and 7 days a week;

“(C) to the extent appropriate, and in accordance with the child’s best interests, facilitates participation of family members in the child’s treatment program;

“(D) facilitates outreach to the family members of the child, including siblings, documents how the outreach is made (including contact information), and maintains contact information for any known biological family and fictive kin of the child;

“(E) documents how family members are integrated into the treatment process for the child, including post-discharge, and how sibling connections are maintained;

“(F) provides discharge planning and family-based aftercare support for at least 6 months post-discharge; and

“(G) is licensed in accordance with section 471(a)(10) and is accredited by any of the following independent, not-for-profit organizations:

“(i) The Commission on Accreditation of Rehabilitation Facilities (CARF).

“(ii) The Joint Commission on Accreditation of Healthcare Organizations (JCAHO).

“(iii) The Council on Accreditation (COA).

“(iv) Any other independent, not-for-profit accrediting organization approved by the Secretary.”

(2)

Conforming amendment— Section 474(a)(1) of the Social Security Act (42 U.S.C. 674(a)(1)), as amended by section 112(b), is amended by striking “section 472(j)” and inserting “subsections (j) and (k) of section 472”.

(b)

Definition of foster family home, child-Care institution— Section 472(c) of such Act (42 U.S.C. 672(c)(1)) is amended to read as follows:

“(c) Definitions—For purposes of this part:

“(1) Foster family home

“(A) In general—The term foster family home means the home of an individual or family—

“(i) that is licensed or approved by the State in which it is situated as a foster family home that meets the standards established for the licensing or approval; and

“(ii) in which a child in foster care has been placed in the care of an individual, who resides with the child and who has been licensed or approved by the State to be a foster parent—

“(I) that the State deems capable of adhering to the reasonable and prudent parent standard;

“(II) that provides 24-hour substitute care for children placed away from their parents or other caretakers; and

“(III) that provides the care for not more than six children in foster care.

“(B) State flexibility—The number of foster children that may be cared for in a home under subparagraph (A) may exceed the numerical limitation in subparagraph (A)(ii)(III), at the option of the State, for any of the following reasons:

“(i) To allow a parenting youth in foster care to remain with the child of the parenting youth.

“(ii) To allow siblings to remain together.

“(iii) To allow a child with an established meaningful relationship with the family to remain with the family.

“(iv) To allow a family with special training or skills to provide care to a child who has a severe disability.

“(C) Rule of construction—Subparagraph (A) shall not be construed as prohibiting a foster parent from renting the home in which the parent cares for a foster child placed in the parent’s care.

“(2) Child-care institution

“(A) In general—The term child-care institution means a private child-care institution, or a public child-care institution which accommodates no more than 25 children, which is licensed by the State in which it is situated or has been approved by the agency of the State responsible for licensing or approval of institutions of this type as meeting the standards established for the licensing.

“(B) Supervised settings—In the case of a child who has attained 18 years of age, the term shall include a supervised setting in which the individual is living independently, in accordance with such conditions as the Secretary shall establish in regulations.

“(C) Exclusions—The term shall not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.”

(c)

Training for state judges, attorneys, and other legal personnel in child welfare cases— Section 438(b)(1) of such Act (42 U.S.C. 629h(b)(1)) is amended in the matter preceding subparagraph (A) by inserting “shall provide for the training of judges, attorneys, and other legal personnel in child welfare cases on Federal child welfare policies and payment limitations with respect to children in foster care who are placed in settings that are not a foster family home,” after “with respect to the child,”.

(d)

Assurance of nonimpact on juvenile justice system—

(1)

State plan requirement— Section 471(a) of such Act (42 U.S.C. 671(a)), as amended by section 131, is further amended by adding at the end the following:

“(37) includes a certification that, in response to the limitation imposed under section 472(k) with respect to foster care maintenance payments made on behalf of any child who is placed in a setting that is not a foster family home, the State will not enact or advance policies or practices that would result in a significant increase in the population of youth in the State’s juvenile justice system.”

(2)

GAO study and report— The Comptroller General of the United States shall evaluate the impact, if any, on State juvenile justice systems of the limitation imposed under section 472(k) of the Social Security Act (as added by section 201(a)(1)) on foster care maintenance payments made on behalf of any child who is placed in a setting that is not a foster family home, in accordance with the amendments made by subsections (a) and (b) of this section. In particular, the Comptroller General shall evaluate the extent to which children in foster care who also are subject to the juvenile justice system of the State are placed in a facility under the jurisdiction of the juvenile justice system and whether the lack of available congregate care placements under the jurisdiction of the child welfare systems is a contributing factor to that result. Not later than December 31, 2023, the Comptroller General shall submit to Congress a report on the results of the evaluation.

Sec. 202 Assessment and documentation of the need for placement in a qualified residential treatment program

Section 475A of the Social Security Act (42 U.S.C. 675a) is amended by adding at the end the following:

“(c) Assessment, documentation, and judicial determination requirements for placement in a qualified residential treatment program—In the case of any child who is placed in a qualified residential treatment program (as defined in section 472(k)(4)), the following requirements shall apply for purposes of approving the case plan for the child and the case system review procedure for the child:

“(1)

“(A) Within 30 days of the start of each placement in such a setting, a qualified individual (as defined in subparagraph (D)) shall—

“(i) assess the strengths and needs of the child using an age-appropriate, evidence-based, validated, functional assessment tool approved by the Secretary;

“(ii) determine whether the needs of the child can be met with family members or through placement in a foster family home or, if not, which setting from among the settings specified in section 472(k)(2) would provide the most effective and appropriate level of care for the child in the least restrictive environment and be consistent with the short- and long-term goals for the child, as specified in the permanency plan for the child; and

“(iii) develop a list of child-specific short- and long-term mental and behavioral health goals.

“(B)

“(i) The State shall assemble a family and permanency team for the child in accordance with the requirements of clauses (ii) and (iii). The qualified individual conducting the assessment required under subparagraph (A) shall work in conjunction with the family of, and permanency team for, the child while conducting and making the assessment.

“(ii) The family and permanency team shall consist of all appropriate biological family members, relative, and fictive kin of the child, as well as, as appropriate, professionals who are a resource to the family of the child, such as teachers, medical or mental health providers who have treated the child, or clergy. In the case of a child who has attained age 14, the family and permanency team shall include the members of the permanency planning team for the child that are selected by the child in accordance with section 475(5)(C)(iv).

“(iii) The State shall document in the child's case plan—

“(I) the reasonable and good faith effort of the State to identify and include all such individuals on the family of, and permanency team for, the child;

“(II) all contact information for members of the family and permanency team, as well as contact information for other family members and fictive kin who are not part of the family and permanency team;

“(III) evidence that meetings of the family and permanency team, including meetings relating to the assessment required under subparagraph (A), are held at a time and place convenient for family;

“(IV) if reunification is the goal, evidence demonstrating that the parent from whom the child was removed provided input on the members of the family and permanency team;

“(V) evidence that the assessment required under subparagraph (A) is determined in conjunction with the family and permanency team; and

“(VI) the placement preferences of the family and permanency team relative to the assessment and, if the placement preferences of the family and permanency team and child are not the placement setting recommended by the qualified individual conducting the assessment under subparagraph (A), the reasons why the preferences of the team and of the child were not recommended.

“(C) In the case of a child who the qualified individual conducting the assessment under subparagraph (A) determines should not be placed in a foster family home, the qualified individual shall specify in writing the reasons why the needs of the child cannot be met by the family of the child or in a foster family home. A shortage or lack of foster family homes shall not be an acceptable reason for determining that a needs of the child cannot be met in a foster family home. The qualified individual also shall specify in writing why the recommended placement in a qualified residential treatment program is the setting that will provide the child with the most effective and appropriate level of care in the least restrictive environment and how that placement is consistent with the short- and long-term goals for the child, as specified in the permanency plan for the child.

“(D)

“(i) Subject to clause (ii), in this subsection, the term qualified individual means a trained professional or licensed clinician who is not an employee of the State agency and who is not connected to, or affiliated with, any placement setting in which children are placed by the State.

“(ii) The Secretary may approve a request of a State to waive any requirement in clause (i) upon a submission by the State, in accordance with criteria established by the Secretary, that certifies that the trained professionals or licensed clinicians with responsibility for performing the assessments described in subparagraph (A) shall maintain objectivity with respect to determining the most effective and appropriate placement for a child.

“(2) Within 60 days of the start of each placement in a qualified residential treatment program, a family or juvenile court or another court (including a tribal court) of competent jurisdiction, or an administrative body appointed or approved by the court, independently, shall—

“(A) consider the assessment, determination, and documentation made by the qualified individual conducting the assessment under paragraph (1);

“(B) determine whether the needs of the child can be met through placement in a foster family home or, if not, whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and whether that placement is consistent with the short- and long-term goals for the child, as specified in the permanency plan for the child; and

“(C) approve or disapprove the placement.

“(3) The written documentation made under paragraph (1)(C) and documentation of the determination and approval or disapproval of the placement in a qualified residential treatment program by a court or administrative body under paragraph (2) shall be included in and made part of the case plan for the child.

“(4) As long as a child remains placed in a qualified residential treatment program, the State agency shall submit evidence at each status review and each permanency hearing held with respect to the child—

“(A) demonstrating that ongoing assessment of the strengths and needs of the child continues to support the determination that the needs of the child cannot be met through placement in a foster family home, that the placement in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment, and that the placement is consistent with the short- and long-term goals for the child, as specified in the permanency plan for the child;

“(B) documenting the specific treatment or service needs that will be met for the child in the placement and the length of time the child is expected to need the treatment or services; and

“(C) documenting the efforts made by the State agency to prepare the child to return home or to be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home.

“(5) In the case of any child who is placed in a qualified residential treatment program for more than 12 consecutive months or 18 nonconsecutive months (or, in the case of a child who has not attained age 13, for more than 6 consecutive or nonconsecutive months), the State agency shall submit to the Secretary—

“(A) the most recent versions of the evidence and documentation specified in paragraph (4); and

“(B) the signed approval of the head of the State agency for the continued placement of the child in that setting.”

Sec. 203 Protocols to prevent inappropriate diagnoses

(a)

State plan requirement— Section 422(b)(15)(A) of the Social Security Act (42 U.S.C. 622(b)(15)(A)) is amended—

(1)

in clause (vi), by striking “and” after the semicolon;

(2)

by redesignating clause (vii) as clause (viii); and

(3)

by inserting after clause (vi) the following:

“(vii) the procedures and protocols the State has established to ensure that children in foster care placements are not inappropriately diagnosed with mental illness, other emotional or behavioral disorders, medically fragile conditions, or developmental disabilities, and placed in settings that are not foster family homes as a result of the inappropriate diagnoses; and”

(b)

Evaluation— Section 476 of such Act (42 U.S.C. 676), as amended by section 111(d), is further amended by adding at the end the following:

“(e) Evaluation of State procedures and protocols To prevent inappropriate diagnoses of mental illness or other conditions—The Secretary shall conduct an evaluation of the procedures and protocols established by States in accordance with the requirements of section 422(b)(15)(A)(vii). The evaluation shall analyze the extent to which States comply with and enforce the procedures and protocols and the effectiveness of various State procedures and protocols and shall identify best practices. Not later than January 1, 2019, the Secretary shall submit a report on the results of the evaluation to Congress.”

Sec. 204 Additional data and reports regarding children placed in a setting that is not a foster family home

Section 479A(a)(7)(A) of the Social Security Act (42 U.S.C. 679b(a)(7)(A)) is amended by striking clauses (i) through (vi) and inserting the following:

“(i) with respect to each such placement—

“(I) the type of the placement setting, including whether the placement is shelter care, a group home and if so, the range of the child population in the home, a residential treatment facility, a hospital or institution providing medical, rehabilitative, or psychiatric care, a setting specializing in providing prenatal, post-partum or parenting supports, or some other kind of child-care institution and if so, what kind;

“(II) the number of children in the placement setting and the age, race, ethnicity, and gender of each of the children;

“(III) for each child in the placement setting, the length of the placement of the child in the setting, whether the placement of the child in the setting is the first placement of the child and if not, the number and type of previous placements of the child, and whether the child has special needs or another diagnosed mental or physical illness or condition; and

“(IV) the extent of any specialized education, treatment, counseling, or other services provided in the setting; and

“(ii) separately, the number and ages of children in the placements who have a permanency plan of another planned permanent living arrangement; and”

Sec. 205 Effective dates; application to waivers

(a)

Effective dates—

(1)

In general— Subject to paragraph (2) and subsections (b) and (c), the amendments made by this title shall take effect on October 1, 2017.

(2)

Transition rule— In the case of a State plan under part B or E of title IV of the Social Security Act which the Secretary of Health and Human Services determines requires State legislation (other than legislation appropriating funds) in order for the plan to meet the additional requirements imposed by the amendments made by this title, the State plan shall not be regarded as failing to comply with the requirements of such part solely on the basis of the failure of the plan to meet the additional requirements before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session shall be deemed to be a separate regular session of the State legislature.

(b)

Limitation on federal financial participation for placements that are not in foster family homes and related provisions— The amendments made by sections 201(a), 201(b), 201(d), and 202 shall take effect on October 1, 2019.

(c)

Application to States with waivers— In the case of a State that, on the date of enactment of this Act, has in effect a waiver approved under section 1130 of the Social Security Act (42 U.S.C. 1320a–9), the amendments made by this title shall not apply with respect to the State before the expiration (determined without regard to any extensions) of the waiver to the extent the amendments are inconsistent with the terms of the waiver.