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Friday, April 20, 2012

Child Welfare Policy Manual

Child Welfare Policy Manual April 20, 2012 1. AFCARS 1.1 AFCARS, Compliance and Penalties 1. Question: How are the penalties calculated for a submission (e.g., the 90% accuracy requirement)? (Deleted 07/05/2002) 1.2 AFCARS, Data Elements and Definitions 1. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2A AFCARS, Data Elements and Definitions, Adoption Specific Elements 1. Question: In terms of reporting adoptions it is not clear whether States are required to submit data on adoptions for which an agency may have limited involvement, such as only performing a home study. The agency's data on these adoptions may be very limited. Does the Department want information on such adoptions submitted to AFCARS? Answer: The regulations encourage, but do not require, States to report data on children adopted without the types of State involvement indicated in the "Reporting Population" section in Appendix B to 45 CFR 1355. The State is required to report an adoption if : 1) the child was in foster care under the responsiblity and care of the State child welfare agency and subsequently adopted; 2) the child has special needs and on whose behalf the State provided reimbursementfor non-recurring expenses of adoption; or 3) an adoption service or payment is being provided by way of an arrangement with the State agency. Because a State that has performed only a home study does not fall within one of these three categories, the State is not required to report information on such a child. If the State chooses to report information on such a child, or other children adopted without State involvement as indicated above, - the appropriate response is to enter a "No" for adoption element 4 "Did the State Agency Have any Involvement in This adoption?" Source/Date: ACYF-CB-PIQ-94-01 (7/8/94); updated (5-28-02) Legal and Related References: 45 CFR 1355.40; Appendix B to 45 CFR 1355 2. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2A.1 AFCARS, Data Elements and Definitions, Adoption Specific Elements, Adoptive parents 1. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2A.2 AFCARS, Data Elements and Definitions, Adoption Specific Elements, Birth parents 1. Question: When an adoption is dissolved and the child is then re-adopted, should the State submit the information on the first adoptive (legal) parents or the birth parents? Answer: The AFCARS report should always include information on the legal parents. Therefore, in this case, the State should submit information on the previous adoptive parents. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: What if a State has information on both the legal as well as one or more putative fathers? For whom should information be provided? Answer: Information should be provided on the legal father; however, if a child has one or more putative fathers and a legal father is not established, the year of birth used should be that of the putative father whose parental rights were terminated last. (See: 45 CFR 1355, Appendix B, Section I, Roman Numeral IV, Question A2. Also see: Appendix D, Detailed Adoption, Element Number 17.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 1.2A.3 AFCARS, Data Elements and Definitions, Adoption Specific Elements, Child's demographics 1. Question: AFCARS reporting requires all data submissions to be in numeric format, however, the data element definitions, both for foster care and adoption, indicate the use of the U.S. Postal Service's two letter State abbreviation. What should be used? Answer: A numeric code is to be used for the State identification. It is the first two digits of the State's Federal Information Processing Standard (FIPS). (See: 45 CFR 1355, Appendix B, Section I, Roman Numeral I, Question A. Also see: Appendix D, Detailed Adoption, Element Number 01.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2A.4 AFCARS, Data Elements and Definitions, Adoption Specific Elements, Court actions 1.2A.5 AFCARS, Data Elements and Definitions, Adoption Specific Elements, Financial information 1.2A.6 AFCARS, Data Elements and Definitions, Adoption Specific Elements, Placement 1.2B AFCARS, Data Elements and Definitions, Foster Care Specific Elements 1. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2B.1 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Case plan goal 1. Question: Some States require that parental rights must be terminated before a child's case plan can reflect a goal of adoption. What should be indicated as a goal, if this is a State's policy? Answer: The child's goal should be reflective of the "actual" goal; adoption. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral VI. Also see: Appendix D, Detailed Foster Care, Element Number 43.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: If a child's case plan goal is Independent Living how is it indicated on the AFCARS questionnaire? Answer: Any child with a case plan goal of independent living should be indicated as having a goal of emancipation. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral VI. Also see: Appendix D, Detailed Foster Care, Element Number 43.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 1.2B.2 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Child's demographics 1. Question: What if a parent refuses to disclose whether or not a child has been previously adopted? Answer: If a parent refuses to answer this question, "Unable to Determine" would represent the correct response. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral II. Also see: Appendix D, Detailed Foster Care, Element Number 16.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: AFCARS requires race/ethnicity information on all children. But if a child is identified as Hispanic, what information is entered for the race question? Answer: If a child is identified as Hispanic or "Latino" in element number 09, then his/her ethnicity should also be further clarified, using element number 08, according to how the child or the child's parents define him/her. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral II, Questions C.1 and C.2. Also see: Appendix D, Detailed Foster Care, Element Numbers 8 and 9.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 3. Question: Should the FIPS code be that of the child's place of residence or that of the agency responsible for the case? Answer: The FIPS code should be the agency's not the child's place of residence. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 3) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 4. Question: AFCARS reporting requires all data submissions to be in numeric format, however, the data element definitions, both for foster care and adoption, indicate the use of the U.S. Postal Service's two letter State abbreviation. What should be used? Answer: A numeric code is to be used for the State identification. It is the first two digits of the State's Federal Information Processing Standard (FIPS). (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral I, Question D. Also see: Appendix D, Detailed Foster Care, Element Number 4.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 5. Question: In the AFCARS regulation at section 1355.40 (b)(2) there is a reference to the most recent date of a periodic review (either administrative or court) being entered for children who have been in foster care for nine months or more and other references indicate seven months. Is this a typographical error? Answer: No. It is not a typographical error. Section 422 of the Social Security Act requires periodic reviews at least every six months; in practice, a 30 day grace period has been allowed, resulting in a seven month period in which to complete a review without penalty. For AFCARS reporting this fact, coupled with the intention to allow 60 days to enter the date associated with the review, results in a nine month time frame for entry of information about the periodic review. Therefore, any child in foster care at least nine months must have a periodic review date entered into the AFCARS report. In summary, the review must take place within seven months of the child's entry into the foster care system (or of the last periodic review). The review date must be entered into the system within 60 days of the review date. This results in the nine month time frame referenced in the regulation. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 6. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2B.3 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Episode and removal circumstances 1. Question: Following a trial home visit which extends beyond six months and where the child is considered "discharged," what happens if the child returns to a group home? Is this a new placement, a new episode, or an entirely new removal? Answer: The return to a group home or any other substitute care setting will represent a removal and the removal is the start of a new episode. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: If a child is removed from a home in which a sibling was alleged to have been abused, but the child being removed from the home was not abused, should physical abuse (alleged/reported) be marked as a condition associated with the child's removal? Answer: A record should only indicate conditions associated with the removal of the child who is the subject of the record. In the context of AFCARS, and using the above example of alleged abuse of the child's sibling, if physical abuse is alleged/reported for the child who is the subject of the record then that condition is considered to be associated with the decision to remove that child from home and Element #26 should be coded as 1 (yes). If physical abuse has not been alleged/reported for the child who is the subject of the record, physical abuse does NOT apply and element #26 should be answered as 0 (does not apply). (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element numbers 26 - 40.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 3. Question: What if the only reason for a child's removal from home is mental abuse? How do you code this for AFCARS? Answer: You should mark "Neglect (Alleged/Reported)" (Foster Care, element number #28) with a "1". (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Numbers 26 - 40.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 4. Question: Please clarify the meaning of the terms removal, placement, episode, and discharge. Answer: A Removal is either the physical act of a child being taken from his or her normal place of residence, by court order or a voluntary placement agreement and placed in a substitute care setting, or the removal of custody from the parent or relative guardian pursuant to a court order or voluntary placement agreement which permits the child to remain in a substitute care setting. Placement occurs after removal and is the physical setting in which a child finds himself or herself, that is, the resultant foster care setting. A new Placement setting results when the foster care setting changes, for example, when a child moves from one foster family home to another or to a group home or institution. An Episode is a removal with one or more placement settings. A previous episode is one that has been completed by a discharge. A current episode is a removal and one or more placement settings without a discharge. A Discharge represents that point in time when the child is no longer in foster care under the care and responsibility or supervision of the State agency. For AFCARS purposes, situations in which the State retains supervision of a child and the child returns home on a trial basis, for an unspecified period of time, are considered a discharge from foster care after a six month period. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral III, Questions A and B. Also see: Appendix D, Detailed Foster Care, Element Numbers 18, 20, and 23.)) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94); Final Rule (65 FR 4020) (1/25/00) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 5. Question: Does the definition of Neglect include cases of failure to provide supervision (non-supervision)? Answer: Yes. Neglect is alleged or substantiated negligent treatment or maltreatment, including failure to provide adequate food, clothing, shelter or care and includes failure to provide supervision (non-supervision). (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral IV, Question B. Also see: Appendix D, Detailed Foster Care, Element Number 28.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 6. Question: For both of the computer-generated transaction dates: should the date be generated on the date that the data was first entered or the date that the data was last updated? Answer: This date should represent the date that the data was FIRST entered. The reason for this element is to insure that the record is entered into the system in a timely fashion. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 22 and 57.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 7. Question: For a child who is in and out of the foster care system over a period of several years, what does the State report for foster care element 18 "Date of first removal from home" if it does not have the date of the first removal? Answer: This information is required by the regulations at appendix A to 45 CFR 1355 and should exist in the case record or a court record. As is the case for all missing data, if the date of the child's first removal from home is not available, the date should be left blank.(See: 45 CFR1355, Appendix D, Detailed Foster Care, Element Number 18.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95), updated (5-28-02) Legal and Related References: 45 CFR 1355.40; Appendix A to 45 CFR 1355 8. Question: A State title IV-E agency has an agreement in effect pursuant to section 472(a)(2)(B)(ii) of the Social Security Act with the State juvenile justice agency. As such, the State reports to AFCARS children who are in the placement and care responsibility of the State juvenile justice agency and receiving title IV-E foster care maintenance payments in a foster family home or child care institution. When such a child is no longer receiving title IV-E foster care maintenance payments because the child is placed in an unallowable facility (e.g., in detention), should the State stop reporting the child to AFCARS? Answer: It depends. Children in foster care who are placed in a juvenile justice facility and who are expected to be returned to a foster care setting should continue to be included in the AFCARS reporting population (see Child Welfare Policy Manual Section 1.3 QA# 12). This means that the State will report to AFCARS the date the child was placed in the unallowable facility as the date of placement in current foster care setting (foster care element #23) and indicate that the child?s current placement setting (foster care element #41) is an institution. The State will also increment the number of previous placement settings (foster care element #24). If, however, the State does not expect the child to return to a foster care setting, the State may enter the child as discharged (foster care element #56) as of the date the child left the foster family home or child care institution and indicate the reason for discharge (foster care element #58). Source/Date: 8/21/2006 Legal and Related References: Social Security Act - section 479 1.2B.4 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Financial elements 1. Question: Should a State report that a child is eligible for, but not actually receiving title IV-E foster care maintenance payments in foster care element 59, "Sources of Federal Financial Support/Assistance for Child?" Answer: No. The State should only indicate whether a child received a title IV-E foster care maintenance payment during the reporting period in answering foster care element 59. Source/Date: (5-28-02) Legal and Related References: Appendix A to 45 CFR 1355.40 1.2B.5 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Foster family home 1. Question: What procedures should a child welfare worker follow in order to most effectively obtain accurate information on the racial and ethnic status of children and adults? Answer: AFCARS requires the reporting of race and Hispanic/Latino Origin on children in foster care, children who have been adopted, foster care providers, and adoptive parents. As noted in Appendices A and B of the Federal regulations at 45 CFR 1355, in the sections related to the instructions for foster care and adoption data elements, race and Hispanic/Latino origin information is based on how a client/adult perceives him/herself, or in the case of young children, how the parent identifies the child. This means the information on race and Hispanic/Latino Origin is to be self-reported by the individual. Additionally, racial and ethnic information should be collected and stored as separate pieces of information about the client. Workers must ask clients this information and not make assumptions on which and how many races a person may be and whether the client is Hispanic or Latino or not. When a worker, rather than the client, makes this determination, he or she may be under-representing all possible races. For AFCARS extraction and submission purposes, information not collected or not available for a particular client record (for whatever reason) is mapped as all blanks (not all zeros, all 9?s, etc.). Missing information should never be mapped to a valid AFCARS value. Source/Date: 7/19/04 Legal and Related References: Section 479 of title IV-E of the Social Security Act; 45 CFR 1355, Appendix A, Section II Definitions and Instructions for Foster Care Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity and Appendix B, Section II Definitions and Instructions for Adoption Data Elements, II. Child’s Demographic Information, c. Race/Ethnicity 1.2B.6 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Outcome information 1. Question: Some States do not capture information about outcomes except when the children not only are discharged from agency custody, but also the case is closed and the agency is no longer providing any type of services to the family. If this is the case for a particular State, how will penalties be assessed for lack of information? (Deleted 07/05/2002) 1.2B.7 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Placements 1. Question: How does a State code a record where the status of the placement changes? For example, if a child is in a foster family home placement setting and that family decides to adopt the child, thus becoming a pre-adoptive home placement setting, how do States record the placement setting, the date of placement, and the number of placements? Answer: The State should change the placement setting to pre-adoptive home. However, the number of placements should not change nor should the date of placement. There is no internal consistency check among these elements and therefore, there will be no error detected with the change of placement even though the number of placements has not increased. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Numbers 23, 24, and 41.) Source/Date: ACYF-CB-PIQ 95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: The internal consistency check for date of placement in current foster care setting states that it must be later than the date of latest removal from home. Can't it also be equal to the date of latest removal? Answer: Yes. The system will not consider it an error if the date of placement in current foster care setting is the same day as the date of latest removal from home. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 23.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 3. Question: If a child is on a trial home visit or has run away as of the end of the reporting period, what is to be reported in the "Date of placement in current foster care setting" field? (Deleted 07/05/2002) 4. Question: How do States indicate emergency shelter care - as "institution" or "group home?" Answer: Generally, the shelter should be coded as the type of placement that it most closely resembles. Therefore, the size of the facility should determine whether the shelter care is considered as an institution or a group home. It is also possible for an emergency shelter to be coded as relative or non-relative foster care if the shelter is a home. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 5. Question: Please provide a more inclusive definition of Pre-Adoptive Home, Foster Family Home (Non-Relative), Institution and Trial Home Visit. Answer: A Pre-Adoptive Home is a home in which the family has been approved to adopt the child. The family may or may not be receiving a foster care payment or an adoption subsidy on behalf of the child. The child is considered in foster care until the adoption has been finalized, that is, a judge has signed the adoption decree. A Foster Family Home (Non-Relative) is a licensed or approved foster family home regarded by the State as a foster care living arrangement. This placement setting also includes what are referred to in some States as receiving foster homes. An Institution is a child care facility operated by a public or private agency and providing 24-hour care and/or treatment for children who require separation from their own homes and group living experience. These facilities may include: child care institutions, residential treatment facilities, maternity homes, nursing homes, hospitals, etc. A Trial Home Visit occurs when the child has been in a foster care placement, but, under continuing State agency supervision, is then returned to the principal caretaker for a limited and specified period of time. If a time period is not specified the child should be identified as having been returned home at the point at which the trial home visit exceeds six months. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral V, Question A. Also see: Appendix D, Detailed Foster Care, Element Number 41.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 6. Question: "Group homes" as they are called in some States may more closely match the AFCARS definition of "institutions" by their size, so the data reported may look like the State has foster homes and institutions as placements, and nothing much else. Won't this be a problem? Answer: For AFCARS' reporting purposes "Group Homes" are defined as substitute care settings which house 12 or fewer children, whereas, an "Institution" provides care for more than 12 children. Given this distinction of size, and if States are consistent in their use of size as a distinguishing factor, it should be clear as to the types of substitute care children are in and should not pose a major problem. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 7. Question: Please clarify the meaning of the terms removal, placement, episode, and discharge. Answer: A Removal is either the physical act of a child being taken from his or her normal place of residence, by court order or a voluntary placement agreement and placed in a substitute care setting, or the removal of custody from the parent or relative guardian pursuant to a court order or voluntary placement agreement which permits the child to remain in a substitute care setting. Placement occurs after removal and is the physical setting in which a child finds himself or herself, that is, the resultant foster care setting. A new Placement setting results when the foster care setting changes, for example, when a child moves from one foster family home to another or to a group home or institution. An Episode is a removal with one or more placement settings. A previous episode is one that has been completed by a discharge. A current episode is a removal and one or more placement settings without a discharge. A Discharge represents that point in time when the child is no longer in foster care under the care and responsibility or supervision of the State agency. For AFCARS purposes, situations in which the State retains supervision of a child and the child returns home on a trial basis, for an unspecified period of time, are considered a discharge from foster care after a six month period. (See: 45 CFR 1355, Appendix A, Section I, Roman Numeral III, Questions A and B. Also see: Appendix D, Detailed Foster Care, Element Numbers 18, 20, and 23.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 8. Question: For AFCARS reporting purposes what information is entered for a child who returns to a placement setting different than the placement setting from which he/she ran away or left for a trial home visit? Answer: If the child, after having run away or experienced a trial home visit, returns to a placement setting different than the one he/she ran away from or left for a trial home visit, then the "Date of Placement in Current Foster Care Setting," "Current Placement Setting," and "Number of Previous Placement Settings during this Removal Episode" will be changed. The following information should be entered, "Date of Placement in Current Foster Care Setting" will be changed to the date the child enters the "different" placement setting, "Current Placement Setting" will be changed to the appropriate setting, and "Number of Previous Placement Settings during this Removal Episode" will be increased by one (+1). (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 23, 41, and 24, respectively.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 9. Question: Why are trial home visits (which count as placements for element 41 and may last up to 6 months or more) not counted as placements for element 24 - number of placements? Answer: Trial home visits and Runaway are the same in that they are recorded as placement settings. This allows the State to more accurately show the physical setting that the child is in at the time the report period ends. However, they are not counted in the number of placements in order to guard against misleading data. For example, in the case of a child in a group home who runs away for one week and then returns to the group home, if the runaway were counted as a placement it would appear that the child had three placements, when actually the agency had only placed the child once. Likewise, if the child was placed in a trial home visit with the intent that the child would be discharged back to the family the trial home visit should not be considered a placement. The number of placements element is meant to gather information on how many times the agency found it necessary to move the child while in foster care. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 24.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 10. Question: "Runaway" is an option for a child's "Current Placement Setting"; should it be counted when calculating the answer to, "Number of Previous Placements During This Removal Episode"? Answer: No. While it is important for ACF to know the number of children in runaway status at a particular time, "runaway" is not a placement setting and should not be counted as such. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Numbers 41 and 24, respectively). Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 11. Question: For AFCARS reporting purposes what information is entered for a child who returns to the same placement setting from which he/she ran away or left for a trial home visit? Answer: If the child returns to the same placement setting they were in, prior to running away or having the trial home visit, only the "Current Placement Setting" will be changed and it will be changed to the placement setting he/she was in prior to running away or leaving for their trial home visit. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 41.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 12. Question: The data element, "Number of Previous Placement Settings During This Removal Episode" clearly indictes previous placement settings; however, the definition in the regulation says to include the current placement setting in this count. This seems to be contradictory. Which is correct? Answer: When answering the question, "Number of Previous Placement Settings During This Removal Episode", include the current placement setting. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 24. Also see: Appendix A, Section II, Roman Numeral III, Removal/Placement Setting Indicators.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 13. Question: Mental health institutions and jails are not normally considered to be the same type of facility. Some States expressed concern with counting them as the same for AFCARS. Why are they counted all the same as "institutions?" Answer: "Institution," as it is used for AFCARS reporting, generally indicates large groups of children, even though we acknowledge that this could represent children in mental health facilities, nursing homes, long-term hospital care, juvenile justice facilities, and many other placement settings serving large numbers of individuals. To assist ACF in clarifying placements, we encourage States to footnote significant percentages, for example, 25% of children in institutional care are in juvenile justice facilities. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 14. Question: If a child goes home on a regular basis (e.g., the child is placed in an institution, but goes home to his or her family on weekends), is this considered two placements each week? (Deleted 07/05/2002) 15. Question: Occasionally a child may be placed in the home of a neighbor or family friend who is in the process of being licensed but is not licensed at the end of the reporting period. In this case, how should that placement setting be coded? Answer: ACF hopes that it will be a rare occasion when a child is placed in an unlicensed facility. But in those rare cases, code the placement setting as the definition that most closely resembles the placement setting. For this case, the placement setting should be coded as a non-relative foster home. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 41). Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 16. Question: How are children in shelter care indicated on the AFCARS questionnaire? (Deleted 07/05/2002) 17. Question: If the provider changes status (e.g. was a county service foster home and changes to a child placement service) and the child remains with the same family is this 1 placement setting or 2 placement settings? Answer: AFCARS reporting is not concerned with the status of the substitute care provider, only the number of placement setting changes a child experiences. Consequently, the child in the above question does not experience a placement setting change, therefore, no change will be made to "Number of Previous Placement Settings during this Removal Episode", (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 24.) If a child's placement setting status changes to a setting as defined for AFCARS reporting, e.g., a group home becomes licensed as an institution, then for AFCARS reporting purposes we would request that the child's "Current Placement Setting" be changed as appropriate. However, there would be no change in the "Date of Placement in the Current Foster Care Setting" nor in the "Number of Previous Placements During this Removal Episode". (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 41, 23, and 24 respectively.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 18. Question: If a child is in a foster family home and then goes to a different foster family home, is this one placement or two placements? Answer: Two placement settings in the current episode. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Number 24.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 19. Question: If a foster family moves to another city or county or State, is the move considered to be a new placement for the child living with the family? Answer: If the child remains with the same family, it should not be considered a new placement if the family moves. (See: 45 CFR 1355, Appendix D, Detailed Foster Care, Element Numbers 23, 24, and 41.) Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 20. Question: The AFCARS definition of "institution" seems different from the definition used for IV-E and adoption programs. Why? Answer: The definitional use of institutional care setting for AFCARS was purposely broadened to make it applicable to situations which cannot be recorded in any other manner. But it remains the same for purposes other than AFCARS reporting. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 21. Question: How should the State count brief periods spent away from the child's foster care provider in foster care element 24, " Number of previous placement settings during the removal episode"? Answer: In general, the State is required to count a placement that lasts more than 24 hours while the child is in foster care under the placement, care or supervision responsibility of the State agency. See 45 CFR 1355.40 and CWPM 1.2B.7 and 1.3. This includes moves that may be made on an emergency or unplanned basis, such as shelter care placements, treatment facility placements, and certain placements for juvenile justice purposes. See CWPM 1.3. However, there are certain temporary living conditions that are not placements, but rather represent a temporary absence from the child's ongoing foster care placement. As such, the State must exclude the following temporary absences from the calculation of the number of previous placement settings for foster care element 24. Visitation with a sibling, relative, or other caretaker (i.e., preplacement visits with a subsequent foster care provider or preadoptive parents) Hospitalization for medical treatment, acute psychiatric episodes or diagnosis Respite care Day or summer camps Trial home visits Runaway episodes Source/Date: (5-28-02) Legal and Related References: Social Security Act - section 479; 45 CFR 1355.40 & appendices; Child Welfare Policy Manual Sections 1.2B.7 and 1.3 22. Question: How should a State count a child's placement back into a previous foster home in foster care element 24, "Number of previous placement settings during the removal episode"? Should a State only increase the number of previous placement settings if the child is placed in a foster care setting in which he has not been placed before? Answer: Foster care element 24 is meant to gather information on how many times the agency found it necessary to move the child while in foster care. Therefore, the number of previous placement settings during the removal episode must reflect all placement moves including the current placement and placements into a previous foster care setting, regardless of whether the child was previously placed in that setting. The exception to this policy is with regard to a child who returns to the same foster care setting following a temporary absence that is specifically excluded from the calulation of previous placment settings.(see CWPM 1.2B.7). Source/Date: (5-28-02) Legal and Related References: Appendix A to 45 CFR 1355.40 23. Question: If a child is on a trial home visit or has run away how should the State report this child in AFCARS? Answer: The State must indicate the date the child was placed on the trial home visit, or known to have run away from the last placement setting as the "Date of placement in current foster care setting" (foster care element 23). The State must also change the "Current Placement Setting" (foster care element 41) to either "Runaway" or "Trial Home Visit", as appropriate. The State should not increase the "number of previous placement settings during this removal episode" (foster care element 24). Source/Date: (5-28-02) Legal and Related References: Social Security Act - section 479; 45 CFR 1355.40 & appendices 24. Question: Should a State report in AFCARS a child who is under the placement and care responsibility of the State title IV-B/IV-E agency but who has not yet been placed in a foster care setting because the child ran away prior to placement? Answer: Yes. The State should report to AFCARS children who are under the placement and care responsibility of the title IV-E agency but who ran away prior to the child?s placement in a foster care setting. In this situation, the State should report the child as having a current placement setting (foster care element #41) of runaway and indicate the date the child ran away as the date of placement in current foster care setting (foster care element #23). Since there has not been an actual placement, the State should indicate a placement count (foster care element #24) of zero. Source/Date: 8/21/2006 Legal and Related References: Social Security Act - section 479 25. Question: If a child in foster care moves within a child care institution at a single location (e.g., from one building, dorm, cottage, or wing to another within the institution) should a State report this to AFCARS as a change in placement? Is it relevant whether the child is moving within the institution because of a change in the level of care necessary? Answer: No to both questions. The child remains at a single child care institution and placement and the State must not indicate a change in the date of placement in current foster care setting (foster care element 23), number of previous placement settings (foster care element 24) or the current placement setting (foster care element 41) due to such a move. Source/Date: 8/21/2006 Legal and Related References: Social Security Act - section 479 1.2B.8 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Principal caretaker 1. Question: When an adoption is dissolved and the child is then re-adopted, should the State submit the information on the first adoptive (legal) parents or the birth parents? Answer: The AFCARS report should always include information on the legal parents. Therefore, in this case, the State should submit information on the previous adoptive parents. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: What if a State has information on both the legal as well as one or more putative fathers? For whom should information be provided? Answer: Information should be provided on the legal father; however, if a child has one or more putative fathers and a legal father is not established, the year of birth used should be that of the putative father whose parental rights were terminated last. (See: 45 CFR 1355, Appendix B, Section I, Roman Numeral IV, Question A2. Also see: Appendix D, Detailed Adoption, Element Number 17.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 3. Question: If a child's principal caretakers are a same sex couple how is it indicated for AFCARS reporting? Answer: The couple should be entered as either an unmarried or married couple depending on how State law views them. (See: 45 CFR 1355, Appendix B, Section I, Roman Numeral VII, Question A. Also see: Appendix D, Detailed Foster Care, Element Numbers 44 and 49.) Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 1.2B.9 AFCARS, Data Elements and Definitions, Foster Care Specific Elements, Termination of parental rights 1.3 AFCARS, Reporting Population 1. Question: Please clarify the definition of the AFCARS foster care reporting population, that is, the children States are to submit AFCARS data on. Answer: Foster care is defined in 45 CFR 1355.20 and 1355.40. Section 1355.20 gives the general definition of foster care as 24 hour substitute care for all children placed away from their parent(s) or guardian(s) and for whom the State agency has placement and care responsibility. Section 1355.40 (a)(2), defines the foster care population for AFCARS reporting purposes. Each State's data transmission must include all children in foster care, as defined in section 1355.20, for whom the State title IV-B/IV-E agency has responsibility for placement, care or supervision. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: Should children who are still receiving funding from the State agency be reported on in AFCARS even if they are age 18 or over? Answer: In general, States are to report all children in foster care and under the placement, care of supervision of the State agency to AFCARS. In the case of youth 18 years of age or over, State must report to AFCARS: youth who have not yet reached the State's legal age of majority; and youth who have attained 18 years of age, but not yet 19 years of age on whose behalf the State is providing title IV-E foster care maintenance payments. Pursuant to long-standing Departmental policy, States are instructed to exclude those youth who are considered to be adults in a State from the child protection requirements in section 422 of the Act and AFCARS reporting requirements. However, youth who receive title IV-E foster care maintenance payments must be reported to AFCARS and be provided the section 422 protections regardless of whether they have reached the legal age of majority in the State. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95); updated (5-28-02) Legal and Related References: Social Security Act - section 479; 45 CFR Part 1355 3. Question: Are past placement histories to be included or only current active cases? Answer: All cases which are open at any time during the reporting period, whether or not there have been any changes in the file, need to be reported. Any cases which are closed, that is, the child is discharged from care, etc., need to be included in the current report only if the closure activity was entered into the system during the current reporting period. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 4. Question: Do States report on the children in State custody even though the State has no placement or financial responsibility? Answer: Yes. Children who are under State custody and in foster care are included in AFCARS regardless of whether or not a payment is made. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 5. Question: Do States report on children whose care is in the control of tribal courts? Answer: What court the child goes through is not of particular importance. The determining factor is whether the State title IV-B/IV-E agency has placement and care responsibility and/or supervision. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 6. Question: What guidelines or qualifiers, if any, exist as to the inclusion of American Indian children in the AFCARS reporting population? Answer: There are no guidelines or qualifiers related to American Indian children. They are to be included in AFCARS as any other child under the care and responsibility or supervision of the State child welfare agency. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 7. Question: Do States report on children in private agency care? Answer: If the care of the child is under the State child welfare agency (e.g., the private agency is providing care by contract with the State), that child should be included in AFCARS reporting; if it is strictly private, that is, there is no contractual relationship with the IV-B/IV-E agency, do not report on the child. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 8. Question: What is the relationship between State and tribal organizations to access client data, especially non-IV-E funded clients? Answer: Children affiliated with Tribes which have title IV-E agreements with a State are to be included in the AFCARS reporting population. Any child in substitute care in which joint custody exists between the tribal court and IV-B/IV-E agency, is included in the AFCARS reporting population. If an agreement exists the title IV-B/IV-E agency should have access to the necessary records. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 9. Question: What agency submits data on adoption for children placed out of State (i.e., cooperative placement agreements)? Answer: The State which has/had custody of the child or is party to the adoption assistance agreement must submit the AFCARS data. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 10. Question: Under what circumstances, if any, should children in emergency care be included in the AFCARS reporting population? Answer: The reporting population includes children in emergency care, if the emergency care exceeds 24 hours, regardless of whether the placement and care responsibility or supervision is on the basis of a court order, legislation or regulation. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 11. Question: Are children at home (i.e., trial home visits) to be included in the AFCARS reporting population? Answer: Yes. Any child who is returned home on a trial home visit, for a specifically limited period of time and for whom the State agency continues to maintain placement and care responsibility or supervision should be included in AFCARS. If a child is returned home on a trial basis with no specific time period indicated, and the State agency maintains placement and care responsibility or supervision, he or she should be indicated as in foster care for a period of up to six months. After six months such child should be indicated as discharged from foster care and returned home and should not be included in subsequent AFCARS reports unless the child is returned to foster care. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 12. Question: Are children in juvenile justice facilities included in AFCARS reporting? Answer: Children who are removed from their home and initially placed in a juvenile justice facility are not to be included in AFCARS reporting. For children already in a juvenile justice facility with respect to whom a subsequent court order is signed giving placement, care or supervision to the title IV-E/IV-B agency, the date of the court order will be used as the date of removal from the home. Children in a foster care setting who are moved to a juvenile justice facility and who are expected to be returned to a foster care setting should continue to be included in the AFCARS reporting population. The child's move into the juvenile justice facility should be reported as a placement change and recorded as an institutional foster care setting. Children in a foster care setting who are moved to a juvenile justice facility and who become the responsibility of another agency should not be included in the AFCARS reporting population. The date the court order was signed will serve as the date of discharge from foster care and the reason for discharge would be reported as transfer to another agency. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94); ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 13. Question: What if a child in care is known to two different State agencies? Which agency should report on the child? Answer: The agency which currently has placement and care responsibility or supervision should report on the child. If there is joint responsibility (e.g., both the juvenile justice agency and the child welfare agency) then the child welfare agency should report on the child. Source/Date: ACYF-CB-PIQ-94-01 (7/8/94) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 14. Question: If the State has placement and financial payment responsibility for some children, but the State does not have custody, do we report them? Answer: Yes. These children should be included in the AFCARS reporting population. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 1.4 AFCARS, Technical Requirements 1. Question: For programming purposes, are "6 months" and "180 days" supposed to be literally the same? Automated systems must be programmed precisely as to what date to use. Answer: The reference to 6 months is 6 calendar months, whereas, 180 days equals 180 days, irrespective of calendar months. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. Question: What links are States to maintain between children in the AFCARS foster care data transmission and the AFCARS adoption data transmission? If the State uses encrypted numbers, the child's number will appear the same on both the foster care and the adoption reports. Does this violate confidentiality? Answer: No link may be maintained in the AFCARS transmissions for children who leave foster care and are adopted. If the State is still concerned about possible linkage of the foster care and adoption records, it should adopt a different encryption algorithm for the adoption data report. Source/Date: ACYF-CB-PIQ-95-01 (3/8/95) Legal and Related References: Social Security Act - section 479; 45 CFR Parts 1355, 1356 and 1357 2. CAPTA 2.1 CAPTA, Assurances and Requirements 1. Question: Must the policies that are the subject of the CAPTA assurances be embodied in State statutes? (Updated 12/13/2011) Answer: There are five assurances in CAPTA that require provisions in State law. Those are: 1) a law for mandatory reporting by individuals required to report child abuse and neglect (section 106(b)(2)(B)(i)); 2) provisions for immunity from prosecution under State and local laws and regulations for individuals making good faith reports of suspected or known instances of child abuse or neglect (section 106(b)(2)(B)(vii)); 3) upon implementation of provisions, procedures or mechanisms to assure that the State does not require reunification of a surviving child with a parent who has committed certain felonies, that conviction of any one of those felonies constitute grounds under State law for the termination of parental rights of the convicted parent as to the surviving children (section 106(b)(2)(B)(xvii)); 4) authority under State law for the State CPS system to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, as may be necessary to prevent the withholding of medically indicated treatment from disabled infants with life-threatening conditions (section 106(b)(2)(C)(iii)); and 5) authority under State law to permit the State's CPS system to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, to provide medical care or treatment for a child when such care or treatment is necessary to prevent or remedy serious harm to the child, or to prevent the withholding of medically indicated treatments from disabled infants with life-threatening conditions (section 113(b)). However, if a State has a law in effect which conflicts with the provisions in any assurance, or the State's statutory definitions of "child abuse and neglect" and "sexual abuse" do not meet the minimum standards in sections 3(2) and 111(4) of CAPTA, it must modify its statute to correspond with the CAPTA requirements. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 3, 106, 111 and 113 2. Question: Does the Administration on Children, Youth and Families (ACYF) intend to do in-depth reviews of State statutes and policies to determine State eligibility under the CAPTA Amendments of 1996? Answer: CAPTA, as amended in the 1996 reauthorization, made a shift from eligibility requirements to submission of a State plan with assurances in the form of certifications by the State's Chief Executive Officer that certain provisions, procedures, or programs are in place in the State. Legislative history confirms that it was Congressional intent to simplify and streamline the administration of CAPTA at the Federal, State and local levels (Congressional Record - House, September 25, 1996, p. H11148). Accordingly, the primary responsibility for review of State statutes and policies rests with the States. If there are instances in which ACYF is presented with evidence of potential deficiencies (e.g., through the new child and family services program reviews being conducted by the Children's Bureau, or other sources), action will be taken to verify whether a problem actually exists. If a deficiency is verified, the State will be notified in writing and will be required to take corrective action within a specified timeframe. Funds will not be jeopardized unless the State fails to correct the deficiency within the specified timeframe. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 2/3/05 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) 2.1A CAPTA, Assurances and Requirements, Access to Child Abuse and Neglect Information 2.1A.1 CAPTA, Assurances and Requirements, Access to Child Abuse and Neglect Information, Confidentiality 1. Question: What are the Child Abuse Prevention and Treatment Act (CAPTA) confidentiality requirements? Answer: In general, CAPTA requires that a State preserve the confidentiality of all child abuse and neglect reports and records in order to protect the rights of the child and the child's parents or guardians (section 106(b)(2)(B)(viii) of CAPTA). However, CAPTA allows the State to release information to certain individuals and entities. The State may share confidential child abuse and neglect reports and records that are made and maintained in accordance with CAPTA with any of the following: Individuals who are the subject of a report (section 106(b)(2)(B)(viii)(I)); A grand jury or court, when necessary to determine an issue before the court or grand jury (section 106(b)(2)(B)(viii)(V)); and Other entities or classes of individuals who are authorized by statute to receive information pursuant to a legitimate State purpose (section 106(b)(2)(B)(viii)(VI)). In addition, States have the option to allow public access to court proceedings that determine child abuse and neglect cases, so long as the State, at a minimum, can ensure the safety and well-being of the child, parents and families (see the last paragraph of section 106(b)(2) of CAPTA). The State must provide certain otherwise confidential child abuse and neglect information to the following: Any Federal, State, or local government entity, or any agent of such entity, that has a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect (permitted by 106(b)(2)(A)(viii)(II) but required by section 106(b)(2)(B)(ix)); Child abuse citizen review panels, if such panels are established to comply with section 106(c) of CAPTA (permitted by 106(b)(2)(B)(viii)(III) but required by section 106(c)(5)(A)); Public disclosure of the findings or information about the case of child abuse or neglect that results in a child fatality or near fatality (required by section 106(b)(2)(A)(x)), unless such disclosure of information would jeopardize a criminal investigation or proceeding; and Child fatality review panels. Although disclosure to such panels is merely permissible under the language of section 106(b)(2)(A)(viii)(IV), section 106(b)(2)(A)(x) of CAPTA requires disclosure of findings or information about the case of child abuse or neglect that results in a child fatality or near fatality. Accordingly, disclosure to a child fatality review panel is required. Authorized recipients of confidential child abuse and neglect information are bound by the same confidentiality restrictions as the child protective services agency. Thus, recipients of such information must use the information only for activities related to the prevention and treatment of child abuse and neglect. Further disclosure is permitted only in accordance with the CAPTA standards. There may be other Federal confidentiality restrictions for the State to consider when implementing the confidentiality provisions under CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: CAPTA section 106(b)(2)(B) and 106(c)(5)(A) 2. Question: Would legislation that protects the identity of the reporter, but would otherwise open child abuse and neglect reports and records to the public, meet the confidentiality provisions in section 106 (b)(2)(B)(viii) of the Child Abuse Prevention and Treatment Act (CAPTA)? Answer: In general, such broad public access to child abuse and neglect reports and records is not consistent with CAPTA. States must preserve the confidentiality of all reports and records in order to protect the rights of the child and the child's parents or guardians, except in certain specified circumstances. There are two circumstances in which information contained in child abuse and neglect reports and records, which are typically kept confidential, may be shared with the public. First, a State must release findings or information to the public about a case of child abuse or neglect which results in a child's death or near fatality consistent with section 106(b)(2)(B)(x) of CAPTA. Additionally, a State may open court proceedings that determine child abuse and neglect to the public (see the last paragraph of section 106(b)(2) of CAPTA). There may be other Federal confidentiality restrictions for the State to consider when implementing the confidentiality provisions under CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 106(b)(2) and 106(b)(2)(B) 3. Question: Do States have the authority to release otherwise confidential child abuse and neglect information to researchers for the purpose of child abuse and neglect research? Answer: Yes. Consistent with section 106(b)(2)(B)(viii)(II) and (VI) of CAPTA, States have authority to release information to researchers of child abuse and neglect in either of two ways: (1) the CPS agency may contract with a researcher, thereby making the researcher its "agent;" or (2) States may statutorily authorize release of such information to researchers as a legitimate State purpose, since research involving data in CPS records can provide important information that will help government officials plan programs for abused and neglected children and develop future policy directions. Source/Date: ACYF-NCCAN-PIQ-97-04 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(viii) 4. Question: The confidentiality provision at section 106(b)(2)(B)(viii) of the Child Abuse Prevention and Treatment Act (CAPTA) requires that States have a State law or operate a statewide program that includes methods to preserve the confidentiality of all child abuse and neglect records and reports and provides for exceptions in certain circumstances. The statutory language states that such records "shall only be made available to" a specified list of persons and entities. Are States required to disclose child abuse and neglect records to the persons and entities enumerated in subsections (I)-(VI) under section (viii)? Answer: In general, States are permitted, but not required, to disclose otherwise confidential information to the persons or entities in the enumerated categories in subsections (I)-(VI) under section (viii). However, the disclosure described in subsections (II), (III) and (IV), is required by subsequent provisions in CAPTA. Specifically, subsection (ix) requires disclosure to any Federal, State or local entity, or agent of such entity, that has a need for the information in order to carry out its responsibilities under law to protect children from abuse and neglect, so that disclosure as described under subsection (viii)(II) is mandatory. Likewise, in accordance with section 106(c)(5)(A), the State must provide a citizen review panel with access to information on cases that the panel needs to review if the information is necessary for the panel to carry out its functions. Further, section 106(b)(2)(B)(x) of CAPTA requires States to allow for public disclosure of the findings or information of the case of child abuse or neglect that results in a child fatality or near fatality. Thus, the disclosure described in subsection (viii)(IV) also is required. Otherwise, States are permitted, but not required, to disclose information to the persons or entities in the enumerated categories. There may be other Federal confidentiality restrictions for the State to consider when implementing the confidentiality provisions under CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 106(b)(2)(B)(viii) and (b)(2)(B)(x) 5. Question: Is there a prohibition against redisclosure of confidential child abuse and neglect information? Answer: Yes. Authorized recipients of otherwise confidential child protective services (CPS) information are bound by the same confidentiality restrictions as the CPS agency. Thus, recipients of such information must use the information only for activities related to the prevention and treatment of child abuse and neglect. Further disclosure is permitted only in accordance with the CAPTA standards. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 2/3/05 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106 6. Question: Will States compromise compliance with titles IV-B and IV-E of the Social Security Act if they comply with the confidentiality requirements in sections 106(b)(2)(B)(viii)(V) and (VI) of CAPTA? Answer: Title IV-E requires that States provide safeguards restricting the use and/or disclosure of information regarding children served by title IV-E foster care. Records maintained under both title IV-E and IV-B (both of which are subject to the Department's confidentiality provisions in 45 CFR 205.50) are to be safeguarded against unauthorized disclosure. The regulation at 45 CFR 205.50 states that the release or use of information concerning individuals applying for or receiving financial assistance is restricted to certain persons or agencies that require it for specified purposes. Such recipients of information are in turn subject to standards of confidentiality comparable to those of the agency administering the financial assistance programs. There may be instances where CPS information is subject both to disclosure requirements under CAPTA and to the confidentiality requirements under title IV-E and 45 CFR 205.50. To the extent that the CAPTA provisions require disclosure (such as in section 106(b)(2)(B)(ix) to other governmental entities), the CAPTA disclosure provision would prevail in the event of a conflict since the CAPTA confidentiality provisions were most recently enacted. However, where the CAPTA provision is permissive (such as to the public in open courts as described in the last paragraph of section 106(b)(2)), it allows States to disclose such information without violating CAPTA, but it does not make such disclosure permissible in other programs if it is not otherwise allowed under the other program's governing statute or regulations. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 9/27/11 Legal and Related References: Social Security Act - sections 471 (a)(8) and (c); Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106; 45 CFR 205.50, 45 CFR 1355.21 (a) 7. Question: Do the confidentiality requirements in the Child Abuse Prevention and Treatment Act apply to the members of citizen review panels? Answer: Citizen review panel members are bound by the confidentiality restrictions in section 106 (c)(4)(B)(i) of CAPTA. Specifically, members and staff of a panel may not disclose identifying information about any specific child protection case to any person or government official, and may not make public other information unless authorized by State statute to do so. Further, section 106 (c)(4)(B)(ii) of CAPTA requires States to establish civil sanctions for violations of these confidentiality restrictions. States that have civil sanctions in place for breaches of confidentiality need not enact new legislation, so long as their existing provisions encompass the CAPTA requirements. Source/Date: ACYF-CB-PI-98-01 (1/7/98); updated 2/3/05 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) section 106(c) 8. Question: Is it permissible under the Child Abuse Prevention and Treatment Act (CAPTA) for the State to disclose to the public information in the child abuse and neglect record that does not pertain to the case of child abuse and neglect that results in a child fatality or near fatality? Answer: No. Except as discussed below, States must preserve the confidentiality of all child abuse and neglect reports and records in order to protect the rights of the child and family. Consistent with section 106(b)(2)(B)(viii) of CAPTA, reports and records made and maintained pursuant to the purposes of CAPTA shall be made available only to the entities and under the circumstances described in section 106(b)(2)(B)(viii)(I - VI) of CAPTA. As the question implies, a State must release findings or information to the public about a case of child abuse or neglect which results in a child's fatality or near fatality consistent with section 106(b)(2)(B)(x) of CAPTA. In addition, a State may open court proceedings that determine child abuse and neglect to the public if the safety and well-being of the child, parents and families involved are protected (see the last paragraph of section 106(b)(2) of CAPTA). Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act section 106(b)(2) 2.1A.2 CAPTA, Assurances and Requirements, Access to Child Abuse and Neglect Information, Expungement 1. Question: How will States be able to determine whether a pattern of abuse or neglect exists if unsubstantiated records must be expunged? While the statute allows these records to be kept in casework files, if the files are not maintained in a central location, previous unsubstantiated report(s) may go undetected if a subsequent report comes into another office, or even another worker. Answer: The impetus behind the expungement requirement was the concern of Congress that families are negatively and sometimes unjustly affected by maintenance of public records of unsubstantiated allegations of abuse or neglect. However, it was not the intent of Congress to prevent CPS agencies from keeping information on unsubstantiated reports for use in future risk and safety assessments (Senate Report 104-117, dated July 10, 1995, p. 14). While CAPTA requires prompt expungement of records that are accessible to the general public or are used for purposes of employment or other background checks in cases determined to be unsubstantiated, it also allows CPS agencies to retain information on unsubstantiated reports in their casework files. Since the issue for Congress is disclosure of information regarding cases that are unsubstantiated or unfounded, this requirement should not adversely affect a State's ability to determine possible cumulative harm. For instance, a State could choose to implement a system which would consider an unsubstantiated case "expunged" for any purpose other than investigation of a new report. This should be possible even in States where casework files are computerized. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xii) 2. Question: How does the CAPTA expungement requirement affect States that have a three-tier system which includes a middle category that indicates a reasonable basis for concern? Answer: This requirement relates only to unsubstantiated or unfounded cases and would not affect retention of records for a middle category which indicates that there is reason to suspect that child abuse or neglect has occurred. Source/Date: ACFY-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xii) 2.1A.3 CAPTA, Assurances and Requirements, Access to Child Abuse and Neglect Information, Open courts 1. Question: Would there be a conflict with the Child Abuse Prevention and Treatment Act (CAPTA) confidentiality requirements if a State chooses to open proceedings relating to child abuse and neglect to the public? Answer: No. The 2003 amendments to CAPTA specifically give States the flexibility to determine State policies with respect to open courts, so long as such policies ensure the safety and well-being of the child, parents and families (last paragraph of section 106(b)(2)). There may be other Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 3/22/06 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2); Titles IV-E and IV-B of the Social Security Act 2. Question: Some States have enacted laws that allow open courts for juvenile protection proceedings, including child in need of protection or services hearings, termination of parental rights hearings, long-term foster care hearings and in courts where dependency petitions are heard. Questions have arisen about whether courts that are open to the public and allow a verbal exchange of confidential information meet the confidentiality requirements under CAPTA. Do the confidentiality provisions in CAPTA restrict the information that can be discussed in open court? (Deleted 04/17/2006) 3. Question: How widely should the "open courts" provision in the last paragraph of section 106(b)(2) of the Child Abuse Prevention and Treatment Act (CAPTA) be applied considering the "open courts" provision in title IV-E of the Social Security Act? Answer: The "open courts" provision in CAPTA applies to court proceedings that determine whether child abuse and neglect has occurred. However, section 471(c) of the Social Security Act permits States to provide the public with access to court proceedings that determine child abuse and neglect, or other court hearings held pursuant to titles IV-B or IV-E. In doing so, States must at a minimum, ensure the safety and well-being of the child, parents and family. Since this later-enacted law allows open courts in a broader range of court proceedings, a State may allow open courts in any of the proceedings authorized by section 471(c) of the Act and not be considered out of compliance with CAPTA. Finally, States also should ensure that they are complying with any other relevant State or Federal confidentiality laws. In particular, entities that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must ensure that they do not disclose confidential information in violation of HIPAA?s privacy regulations. * * For more detailed information about the circumstances under which State agencies or other covered entities can disclose confidential information under HIPAA's privacy regulations, contact the U.S. Department of Health and Human Services' Office for Civil Rights or the State Attorney General's Office. Source/Date: 10/24/2006 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2); Social Security Act – section 471(c) 2.1A.4 CAPTA, Assurances and Requirements, Access to Child Abuse and Neglect Information, Public disclosure 1. Question: Section 106(b)(2)(B)(x) of CAPTA requires States to provide for the public disclosure of findings or information about a case of child abuse or neglect which results in a child fatality or near fatality. For the purposes of this requirement, what is considered a "near fatality"? (Updated 04/19/2012) Answer: A "near fatality" is defined under section 106 (b)(4)(A) as "...an act that, as certified by a physician, places the child in serious or critical condition." For example, if hospital records reflect that the child's condition is "serious" or "critical", this would be considered a "near fatality" under CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - 106(b)(4)(A) 2. Question: The requirement for public disclosure states that "findings or information" about a case must be disclosed. Does this mean that States have the option to disclose either the findings of the case, or information which may be general in nature and address such things as practice issues rather than provide case-specific information? Answer: No. The intent of this provision was to assure that the public is informed about cases of child abuse or neglect which result in the death or near death of a child. As with the use of the other "or's" in this provision ("child abuse or neglect" and "child fatality or near fatality"), we understand the language to be inclusive and not limiting. Specifically, the reference to "findings or information" requires the disclosure of information about such a case even if there are no findings. Thus, when child abuse or neglect results in the death or near death of a child, the State must provide for the disclosure of the available facts. However, nothing in this provision should be interpreted to require disclosure of information which would jeopardize a criminal investigation or proceeding. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(x) 3. Question: One State has child fatality review panels that are charged with the review and evaluation of child fatalities and near fatalities in the State. In this process, they evaluate the extent to which the agency is effectively discharging its child protection responsibilities. The child fatality review panels publish an annual report that includes information, findings and recommendations on each case, and this report is made public. Would this process meet the requirement in section 106(b)(2)(B)(x) for public disclosure of findings or information about cases of child abuse or neglect that result in child fatality or near fatality? Answer: Yes. This process allows for public disclosure in such cases and would meet the CAPTA requirement. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(x) 4. Question: Section 106(b)(2)(B)(x) of the Child Abuse Prevention and Treatment Act (CAPTA) requires a State to provide an assurance that it will have provisions which "allow" for public disclosure in the case of child abuse or neglect that results in a child fatality or near fatality. Section 2.1A.1, Q/A #1 of the Child Welfare Policy Manual (CWPM) "requires" public disclosure in such cases. Does a State have the option of disclosing information on these child fatalities and near fatalities, for example, when full disclosure may be contrary to the best interests of the child, the child's siblings, or other children in the household? Answer: No. "Provisions which allow for public disclosure" in section 106(b)(2)(B)(x) of CAPTA means that the State must have procedures or provisions that allow the public to access findings or information about a child abuse or neglect case that results in the fatality or near fatality of a child. The State does not have discretion in whether to allow the public access to the child fatality or near fatality information; rather, the public has the discretion as to whether to access the information. In other words, the State is not required to provide the information to the public unless requested, but may not withhold the facts about a case unless doing so would jeopardize a criminal investigation. Also see Q/A #2 under section 2.1A.4 of the CWPM for further discussion of this CAPTA provision. Finally, States also should ensure that they are complying with any other relevant State or Federal confidentiality laws. In particular, entities that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must ensure that they do not disclose confidential information in violation of HIPAA?s privacy regulations. * * For more detailed information about the circumstances under which State agencies or other covered entities can disclose confidential information under HIPAA's privacy regulations, contact the U.S. Department of Health and Human Services' Office for Civil Rights or the State Attorney General's Office. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106; Child Welfare Policy Manual - sections 2.1A.1 Q/A #1, 2 & 4 and 2.1A.4 Q/A #2 5. Question: Section 106(b)(2)(B)(x) of the Child Abuse Prevention and Treatment Act (CAPTA) requires a State to have provisions that allow for public disclosure of the findings or information about the case of child abuse or neglect that results in a child's fatality or near fatality. Is the State required to turn over all of the information in the entire case record, when requested? Answer: No. The State is not required to release all of the information in the entire case record. Rather, the State must provide for the disclosure of the "available facts" in such situations. As such, the State may determine its procedures in accordance with these parameters, and can release the full investigation; a summary of the investigation; or a statement of findings or available facts about the incident among other options. Also, see section 2.1A.4, Q/A #2, of the Child Welfare Policy Manual for further discussion on this issue. Finally, States also should ensure that they are complying with any other relevant State or Federal confidentiality laws. In particular, entities that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must ensure that they do not disclose confidential information in violation of HIPAA's privacy regulations. * * For more detailed information about the circumstances under which State agencies or other covered entities can disclose confidential information under HIPAA's privacy regulations, contact the U.S. Department of Health and Human Services' Office for Civil Rights or the State Attorney General's Office. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106; Child Welfare Policy Manual - section 2.1A.4 Q/A #2 6. Question: In a case of child abuse or neglect that results in a child fatality or near fatality, is the State required by Federal law to disclose to the public personal information about the child, including name, date of birth and date of death? Answer: No. Section 106(b)(2)(B)(x) of the Child Abuse Prevention and Treatment Act (CAPTA) only requires the State to release to the public findings or information about a case of child abuse or neglect that results in a child's death or near fatality; disclosure of the child's name, date of birth, date of death or other personal information is not a Federal requirement. However, a State is not prohibited by CAPTA from having procedures or policies that release such information. Finally, States also should ensure that they are complying with any other relevant State or Federal confidentiality laws. In particular, entities that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must ensure that they do not disclose confidential information in violation of HIPAA's privacy regulations. * * For more detailed information about the circumstances under which State agencies or other covered entities can disclose confidential information under HIPAA's privacy regulations, contact the U.S. Department of Health and Human Services' Office for Civil Rights or the State Attorney General's Office. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106 7. Question: In a case of child abuse or neglect that results in a child fatality or near fatality, is the State required to provide information on the child's siblings, or other children in the household? Answer: No. The information about another child in the household who is not a fatality or near fatality victim is not subject to the CAPTA public disclosure requirement. This information in fact may be protected by the confidentiality requirements applicable to titles IV-B/IV-E of the Social Security Act. Finally, States also should ensure that they are complying with any other relevant State or Federal confidentiality laws. In particular, entities that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must ensure that they do not disclose confidential information in violation of HIPAA's privacy regulations. * * For more detailed information about the circumstances under which State agencies or other covered entities can disclose confidential information under HIPAA's privacy regulations, contact the U.S. Department of Health and Human Services' Office for Civil Rights or the State Attorney General's Office. Source/Date: 10/24/2006 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106 2.1B CAPTA, Assurances and Requirements, Appeals 1. Question: Please explain the requirements in the Child Abuse Prevention and Treatment Act (CAPTA) for appealing findings of child abuse or neglect. Answer: States are required to have in place an appeals process by which an individual who is officially found to have committed child abuse or neglect can appeal such a finding. States have some flexibility in determining the type of appeals process that best meets their needs. For example, the appeals process can be established through the courts, through some other external appeals process, or through an internal appeals process. The appeals process, however, must meet the following minimum conditions in order to satisfy the CAPTA requirements: 1) The process must afford the individual with a finding of child abuse or neglect an opportunity for due process. 2) The office or individual(s) hearing such appeals cannot be involved in any other stage of the case. 3) The office or individual(s) established to hear such appeals must have the authority to overturn a previous finding of child abuse or neglect. 4) Individuals must be given written notification of their right to appeal, and the method by which they may appeal, at the time they are notified of the official finding of child abuse or neglect. Source/Date: ACYF-CB-PI-98-08 (6/29/98); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xv) 2. Question: To whom does the appeals process under 106(b)(2)(B)(xv)(II) apply? Answer: CAPTA requires States to establish provisions, procedures and mechanisms by which individuals who disagree with an official finding of abuse and neglect can appeal such finding. We understand this provision to apply to the perpetrator; however, individuals with standing under State law are not precluded from participating in the appeals process should such individuals disagree with a finding of abuse or neglect. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xv)(II) 3. Question: The Department has stated that an appeals process under CAPTA should include steps to assure that individuals with appeal rights receive timely notification of the right to appeal a finding of child abuse and neglect. What is considered timely notification (e.g., at the time individuals come to the attention of the agency or after the finding of abuse and/or neglect)? Answer: While there is nothing in Federal statute or regulation which defines "timely notification" for this purpose, we believe that the term is directly related to an official finding of abuse or neglect. Therefore, States should implement processes and procedures to assure that individuals are notified of their right to appeal upon a final finding of abuse or neglect. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97) ; updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xv)(II) 4. Question: Must States set up an administrative appeals process if they do not maintain a central registry? Answer: Yes. Pursuant to section 106 (b)(2)(B)(xv)(II) of the Child Abuse Prevention and Treatment Act (CAPTA), States must have a process to hear appeals from individuals who disagree with an official finding of child abuse or neglect. There is nothing in the statutory language or legislative history that indicates that this requirement is limited to only those States with central registries. Additionally, in order for an appeals process to be complete, it must include steps to assure that individuals with such rights receive timely notification. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xv)(II) 2.1C CAPTA, Assurances and Requirements, Expedited Termination of Parental Rights 1. Question: The provision at section 106(b)(2)(B)(xv)(I) of CAPTA requires that States provide for expedited termination of parental rights for abandoned infants. What is considered "expedited" for this purpose? Answer: The intent of this provision was to assure that infants who have been abandoned by their parents do not end up in "foster care limbo" (Congressional Record - House, September 25, 1996, p. H11148). To meet this requirement, States are expected to establish procedures to assure that termination of parental rights for abandoned infants is handled more expeditiously than terminations would normally be handled in the State. One approach might be to prescribe a specific period of time by which a termination must be initiated for abandoned infants. The American Bar Association's Center on Children and the Law published a monograph in 1996 entitled, "Early Termination of Parental Rights: Developing Appropriate Statutory Grounds", which may be of assistance to States as they implement this provision of CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xv)(I) 2.1D CAPTA, Assurances and Requirements, Guardian Ad Litems 1. Question: What is the meaning of the requirement in section 106(b)(2)(B)(xiii) of CAPTA for guardians ad litem, including the requirement that they obtain a first-hand understanding of the situation and needs of the child? (Updated 12/13/2011) Answer: In order to provide States with more flexibility in appointing a guardian ad litem, the CAPTA clarifies that such guardian does not have to be an attorney, but also may be a court-appointed special advocate for the child. The Congress (in 1996) noted that, under the current system, there are more and more cases where an appointed guardian ad litem has no contact with the child and makes uninformed recommendations to the court. Therefore, language was added to clarify that the role of such individuals include obtaining a first-hand understanding of the situation in order to make an informed recommendation to the court (Congressional Record - House, September 25, 1996, p. H11149). In addition, Congress added language to this provision in 2003 via Public Law 108-36 to require that States train guardians ad litem appropriate to their role in representing children. Public law 111-320 (2010) further amended section 106(b)(2)(B)(xiii) to require that the training include early childhood, child, and adolescent development. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 2/3/05; 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xiii) 2. Question: The Child Abuse Prevention and Treatment Act (CAPTA) provision at section 106(b)(2)(B)(xiii) requires that attorneys or court-appointed special advocates who are appointed as guardians ad litem (GAL) receive training appropriate to their role. What are the minimum conditions for this requirement? (Updated 12/13/2011) Answer: The statute is clear that the State must have provisions and procedures in place to assure that every child who is the subject of an abuse or neglect proceeding is appointed a GAL, and that the GAL receive training appropriate to the role, including training that addresses early childhood, child, and adolescent development, prior to being appointed to represent the child in the proceeding regardless of whether the GAL is an attorney or court-appointed special advocate. The specifics of a State's plan for training its guardians ad litem may vary, depending upon individual State circumstances and needs. So long as the GAL is trained before s/he is appointed to represent a child, the CAPTA requirement will be met. Source/Date: 05/02/06; updated 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(ix) 2.1E CAPTA, Assurances and Requirements, Reunification 1. Question: If a State does not "require" reunification, in general, must it do anything further regarding the mandate in section 106(b)(2)(B)(xvi) which requires that provisions, procedures, and mechanisms be implemented to assure that the State does not require reunification with a parent who has been convicted of murder, manslaughter, felonious assault or sexual abuse of the surviving child or another child of the parent, or who is required to register with a sex offender registry? (Updated 12/13/2011) Answer: Yes. To comply with this section of CAPTA, States must have provisions, procedures, and mechanisms in place which address the fact that reunification is not required in the circumstances enumerated under 106(b)(2)(B)(xvi). Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 2/3/05; 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xvi) 2. Question: Section 106(b)(B)(xvi) of CAPTA requires that provisions, procedures, and mechanisms be implemented to assure that a State does not require reunification with a parent who has been convicted of certain felonious acts, a parent who has been convicted of sexual abuse against the surviving child or another child of the parent, or a parent who is required to register with a sex offender registry. On the other hand, the Indian Child Welfare Act (ICWA) requires that "any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have been unsuccessful" (25 U.S.C §1912(d)). Does a conflict exist between the two statutes? (Updated 12/13/2011) Answer: No. There is no conflict between the CAPTA provision and the ICWA requirement noted above. The CAPTA provision does not prohibit States from making reasonable efforts to reunify families as required under ICWA (as well as under title IV-E); it merely ensures that States not require reunification under certain circumstances. Therefore, it does not conflict with the ICWA requirement regarding efforts to prevent the breakup of Indian families. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 2/3/05; 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106 (b)(2)(B)(xvi); Indian Child Welfare Act (25 U.S.C §1912(d)) 3. Question: Does section 106(b)(2)(B)(xvii) of CAPTA mean that children cannot be reunified with a parent who has committed the specific crimes therein or must be registered with a sex offender registry pursuant to section 113(a) of the Adam Walsh Child Protection and Safety Act of 2006? (Updated 12/13/2011) Answer: No. This provision is not a prohibition against reunification, but rather assures that reunification is not required in cases where the parent has committed the crimes listed in 106(b)(2)(B)(xvii) or had to register with the Adam Walsh sex offender registry. The decision as to whether to reunify or seek termination of parental rights is within the sole discretion of the State and is determined on a case-by-case basis. Source/Date: ACYF-NCCAN-PIQ 97-01 (3/4/97); updated 2/3/05; 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xvii) 2.1F CAPTA, Assurances and Requirements, Infants Affected by Illegal Substance Abuse 1. Question: We understand section 106(b)(2)(B)(ii) of the Child Abuse Prevention and Treatment Act (CAPTA) to mean that health care providers must notify Child Protective Services (CPS) of all infants born and identified as affected by illegal substance abuse, withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder. We do not believe that this provision requires the health care provider to refer such children and families to CPS as a report of suspected child abuse or neglect. Is this interpretation accurate? (Updated 12/13/2011) Answer: Yes, this interpretation is accurate. CAPTA requires that the health care provider must notify CPS of all infants born and identified as affected by illegal substance abuse, withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder. Such notification need not be in the form of a report of suspected child abuse or neglect. It is ultimately the responsibility of CPS staff to assess the level of risk to the child and other children in the family and determine whether the circumstance constitutes child abuse or neglect under State law. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA requirement. Source/Date: 05/02/06; updated 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(ii) 2. Question: If drug-exposure is not defined as child abuse or neglect in the State's reporting statute, are health care providers still required to "notify" child protective services under section 106(b)(2)(B)(ii) of the Child Abuse Prevention and Treatment Act (CAPTA)? (Updated 12/13/2011) Answer: Yes. The State is required to have policies and procedures to implement section 106(b)(2)(B)(ii) of CAPTA regardless of how child abuse and neglect is defined in the State. Health care providers must notify CPS of all infants born and identified as affected by illegal substance abuse, withdrawal symptoms resulting from prenatal drug exposure, or a Fetal Alcohol Spectrum Disorder. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: 05/02/06; updated 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(ii). 3. Question: The Child Abuse Prevention and Treatment Act (CAPTA) provision at section 106(b)(2)(A)(ii) requires States to adopt policies and procedures to address the needs of infants identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure. Does this requirement include an infant who is affected by prenatal exposure to alcohol? Answer: No. The inclusion of an infant?s prenatal exposure to alcohol was considered but excluded from the requirement by Congress. Specifically, the House bill included "fetal alcohol syndrome" in the provision, but the Senate bill did not. Rather, the original Senate language which does not mention prenatal exposure to alcohol was finally adopted in conference and enacted into law. The Senate Report (S. Rpt. 108-12) notes: "While the committee felt constrained, because of limited ability to detect and diagnose it at birth, not to include prenatal exposure to alcohol in this requirement, the Committee remains concerned about the affects [sic] of alcohol on infants and a possible later diagnosis of fetal alcohol syndrome." The Senate Report further stated that "[t]he committee wants to be clear that it is not intending to pre-empt State law regarding what constitutes child abuse or requirements for prosecution, nor does the committee intend to signal that States should no longer investigate cases involving prenatal exposure to alcohol." Therefore, although the inclusion of infants who are born with prenatal exposure to alcohol is not required by the CAPTA provision, neither is it prohibited. Source/Date: 05/02/06 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(A)(ii) 2.1F.1 CAPTA, Assurances and Requirements, Infants Affected by Illegal Substance Abuse, Plan of Safe Care 1. Question: Which agency is responsible for developing the plan of safe care and what is a plan of safe care, as required by section 106(b)(2)(B)(iii) of the Child Abuse Prevention and Treatment Act (CAPTA)? Answer: The statute does not specify which agency or entity (such as hospitals or community-based organizations) must develop the plan of safe care; therefore, the State may determine which agency will develop it. The plan of safe care should address the needs of the child as well as those of the parent(s), as appropriate, and assure that appropriate services are provided to ensure the infant's safety. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(iii). 2.1G CAPTA, Assurances and Requirements, Triage 1. Question: Section 106(b)(2)(B)(v) of the Child Abuse Prevention and Treatment Act (CAPTA) requires the State to have triage procedures, including the use of differential response, for the appropriate referral of a child not at risk of imminent harm to a community organization or voluntary protective service. At what point must the State Child Protective Services (CPS) agency refer a child – at the point there is a report of abuse or neglect on a child; at the point the child is screened out of CPS; or after the results of the investigation determine that there is no imminent risk of harm to the child? (Updated 12/13/2011) Answer: The statute does not prescribe a point in time in which a referral to a community organization must be made. Thus, the State has the flexibility to determine appropriate procedures for when and how to refer a child it determines is not at imminent risk to a community organization or voluntary protective services provider. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: 05/02/06; updated 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(v); Sections 1171 through 1179 of the Social Security Act; and 45 CFR Parts 160 and 164, Subpart E 2. Question: What is the expected scope of public outreach the citizen review panels are supposed to undertake per the Child Abuse Prevention and Treatment Act (CAPTA) provision at section 106(c)(4)(C)? In one State, one panel is interested in surveying foster parents while another is interested in surveying some of their local community service providers. Is either of these too narrow? Answer: At a minimum, we expect the panels to reach out to the immediate community. In doing so, individual panels have discretion as to whom in the community to survey, depending on the issues for which the panel feels it needs input in order to meet its obligation to evaluate the extent to which State and local CPS agencies are effectively discharging their child protection responsibilities as required by section 106(c)(4)(C) of CAPTA. For example, one panel may evaluate issues related to recruiting and retaining foster parents. In that case, it would be appropriate for the panel to survey foster parents. Surveying foster parents, however, would not necessarily help the panel meet its obligations if the issue of concern was the high number of child deaths in the State. The public outreach should be tailored to meet the needs of the panel in achieving its goals. Source/Date: 05/02/06 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(c)(4)(C) 2.1H CAPTA, Assurances and Requirements, Notification of Allegations 1. Question: The provision at section 106(b)(2)(B)(xviii) of the Child Abuse Prevention and Treatment Act (CAPTA) requires the State to have provisions or procedures to advise the individual subject to a child abuse or neglect investigation of the complaints or allegations made against him or her at the time of the initial contact. Would a State be out of compliance with CAPTA if it implemented a rule to specify that "initial contact" in the CAPTA provision at section 106(b)(2)(B)(xviii) meant "face-to-face" contact only? Answer: Yes. The CAPTA provision requires that the State notify the individual of the complaints or allegations made against him or her at the initial time of contact regardless of how that contact is made. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(xviii) 2. Question: The provision at section 106(b)(2)(B)(xviii) of the Child Abuse Prevention and Treatment Act (CAPTA) requires the State to have provisions or procedures to advise the individual subject to a child abuse or neglect investigation of the complaints or allegations made against him or her at the time of the initial contact. One State employs an alternative response system, which is a non-adversarial approach to assess low- and moderate-risk level reports of child abuse and neglect. Does the Federal requirement at section 106(b)(2)(B)(xviii) of CAPTA apply only to child maltreatment investigations or does it also apply to child maltreatment alternative response assessments? Answer: The State must advise the individual subject to a child abuse or neglect investigation of the complaint or allegation against him/her whether the State is investigating the complaint through a formal investigation or an alternate response system. The method by which the State assesses the complaint against a person is not the issue. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(b)(2)(B)(xviii) 3. Question: The provision at section 106(b)(2)(B)(xviii) of the Child Abuse Prevention and Treatment Act (CAPTA) requires the State to have provisions or procedures to advise the individual subject to a child abuse or neglect investigation of the complaints or allegations made against him or her at the time of the initial contact. Would a State be out of compliance with CAPTA if it provided notification only to parents who have an allegation of child abuse or neglect? Answer: Yes. The provision requires notification to "an individual subject to a child abuse or neglect investigation" and does not limit this notification to parents only. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(xviii) 2.1I CAPTA, Assurances and Requirements, Referrals to IDEA, Part C 1. Question: Must a State refer every child under the age of three in a substantiated case of child abuse or neglect to the Individuals with Disabilities Education Act (IDEA) Part C agency, or may the State first screen these children to determine whether such a referral is needed? Answer: The Child Abuse Prevention and Treatment Act (CAPTA) provision at section 106(b)(2)(B)(xxi) requires that States have provisions and procedures for the referral of children under the age of three who are involved in substantiated cases of child abuse or neglect to early intervention services funded by Part C of the Individual with Disabilities Act (IDEA). Part C of the IDEA, which was reauthorized on December 3, 2004 by Public Law 108-446, contains a provision very similar to the one in CAPTA. The Conference Report accompanying the IDEA legislation indicates that the conferees did not intend the IDEA provision to require every child under the age of three who is involved in a substantiated case of child abuse or neglect to receive an evaluation. Rather, the intention was that such children be screened to determine whether a referral to early intervention services is warranted (House Report 108-779, p. 241). CAPTA does not specifically require that every child under the age of three who is involved in a substantiated case of child abuse or neglect must be referred to Part C services. Therefore, States have the discretion as to whether to refer every such child under the age of three for early intervention services, or to first employ a screening process to determine whether a referral is needed. We believe that this is consistent with the purpose of the provision, which is to assure that all children who have a substantiated case of child abuse or neglect will be given special attention to determine whether they need early intervention services and to assure referral when such services are warranted. It is up to the State to determine how children referenced in section 106(b)(2)(B)(xxi) of CAPTA will be screened and, if appropriate, referred to the Part C early intervention program in the State. The IDEA regulations at 34 CFR 303.321(d) provide procedures for use by primary referral sources for referring a child to a Part C agency for evaluation and assessment or appropriate services. Under 34 CFR 303.321(d)(3) primary referral sources include hospitals, physicians and social service agencies, which can include the Child Protective Services (CPS) agency, as well as other sources. Some State CPS agencies are using other primary referral sources to assist in screening a child (after substantiation), while other State IDEA Part C programs are working with CPS agencies and training CPS social workers to conduct appropriate screenings. Both approaches meet the CAPTA requirements. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(xxi); Public Law 108-446; House Report 108-779, p. 241; 34 CFR 303.321(d). 2. Question: Can the provision at section 106(b)(2)(B)(xxi) of the Child Abuse Prevention and Treatment Act (CAPTA), which requires referral of a child under the age of three who is involved in a substantiated case of child abuse or neglect to early intervention services, be read to mean that children who are wards of the State must be so referred? Answer: No. The statute specifically requires the State to refer children under the age of three who are involved in substantiated cases of child abuse and neglect to early intervention services funded under Part C of the Individuals with Disabilities Education Act (IDEA). Therefore, since many children who are involved in substantiated cases of child abuse and neglect never come into foster care, we cannot narrow the requirement to children who are wards of the State. There may be Federal confidentiality restrictions for the State to consider when implementing this CAPTA provision. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(xxi) 3. Question: Does the "child" as mentioned in section 106(b)(2)(B)(xxi) of the Child Abuse Prevention and Treatment Act (CAPTA) include only those children under the age of three who are involved in a substantiated case of child abuse or neglect or does this include any child in the family or household who is under the age of three? Answer: CAPTA requires the State to refer any child under the age of three who is the subject of a substantiated case of child abuse or neglect to early intervention services under Part C of the Individuals with Disabilities Education Act. The State is not required to refer other children in the household under the CAPTA provision. However, we encourage States to refer all children who are suspected of having a disability and warranting a referral to early intervention services, taking into consideration Federal confidentiality restrictions when implementing this CAPTA provision. Source/Date: updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(xxi). 2.1J CAPTA, Assurances and Requirements, Criminal Background Checks 1. Question: Are fingerprints required as part of the criminal background check requirement in section 106(b)(2)(B)(xxii) of CAPTA? (Updated 12/13/2011) Answer: Yes. Public Law 111-320 amended section 106(b)(2)(B)(xxii) of CAPTA in 2010 to require that States have provisions and procedures that require criminal background checks for prospective foster and adoptive parents and other adults residing in the household that meet the title IV-E criminal background check requirements. The title IV-E requirements in section 471(a)(20) of the Social Security Act require fingerprint-based criminal record checks of national crime information databases. Source/Date: 05/02/06; updated 12/9/11 Legal and Related References: Social Security Act – section 471(a)(20); Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(b)(2)(B)(xxii) 2. Question: Does the requirement at section 106(b)(2)(A)(xxii) of the Child Abuse Prevention and Treatment Act (CAPTA) for criminal background checks for prospective foster and adoptive parents and other adults living in the household apply if no title IV-E foster care or adoption assistance payments are made? (Deleted 02/09/2012) 2.2 CAPTA, Citizen Review Panels 1. Question: How will States know how many citizen review panels they must establish to meet the requirements of section 106(c)(1)(A)-(B) since that number is dependent upon the amount of funds received by the State under the Community-Based Grants for the Prevention of Child Abuse and Neglect Program under Title II of CAPTA? Answer: CAPTA requires that States establish a minimum of three citizen review panels. The only exception to this requirement is for States that receive the minimum allotment of $175,000 under Title II of CAPTA, and they are required to establish no less than one citizen review panel. The Department has notifed States in writing regarding whether one or three panels will be required in each State. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 2/3/05 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(c)(1)(A)-(B) and Title II 2. Question: Do States have the flexibility to determine how to implement the citizen review panels requirement in section 106(b)(2)(B)(xiv) of CAPTA? Answer: Yes. States have the flexibility to implement the citizen review panel requirement in ways that best meet their needs, so long as the panels meet the requirements set forth under section 106 (c) of CAPTA. States should pay particular note to section 106 (c)(2) of CAPTA which specifies the requirements for membership of the panel. We encourage the States to give special attention to the qualifications of the panelists to review complex cases of child maltreatment, including a balance among children's attorneys, child advocates and CASA volunteers who are familiar with the difficulties of the child protection system. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 106(b)(2)(B)(xiv) and (c)(2) 3. Question: What are the functions that citizen review panels must perform? Answer: Pursuant to sections 106(c)(4)(A)(i) and (ii) of the Child Abuse Prevention and Treatment Act (CAPTA), each panel must evaluate the extent to which the State is fulfilling its child protection responsibilities in accordance with its CAPTA State plan by: (1) examining the policies, procedures and practices of State and local child protection agencies, and (2) reviewing specific cases, where appropriate. In addition, consistent with section 106(c)(4)(A)(iii) of CAPTA, a panel may examine other criteria that it considers important to ensure the protection of children, including the extent to which the State and local CPS system is coordinated with the title IV-E foster care and adoption assistance programs of the Social Security Act. This provision also authorizes the panels to review the child fatalities and near fatalities in the State. In order to assess the impact of current procedures and practices upon children and families in the community and fulfill the above requirements, citizen review panels must provide for public outreach and comment (section 106(c)(4)(C) of CAPTA). Finally, each panel must prepare an annual report that summarizes the activities of the panel and makes recommendations to improve the CPS system at the State and local levels, and submit it to the State and the public (section 106(c)(6) of CAPTA). Source/Date: ACYF-CB-PI-99-09 (6/2/99); updated 3/22/06 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(c) 4. Question: Section 106 (c)(5) of CAPTA requires States to provide citizen review panels with access to information on cases that the panel wants to review "if such information is necessary for the panel to carry out its functions". Who determines what confidential information is necessary for these functions? Answer: The Congress intended that citizen review panels be established to evaluate the extent to which States are meeting the goals of protecting children and their responsibilities related to the State plan. In carrying out these responsibilities, it is important for the review panels to have access to confidential information, as necessary, to assist in their duties. The intent of section 106 (c)(5) was to direct States to provide the review panels with information that the panel determines is necessary to carry out these functions (Congressional Record - House, September 25, 1996, p. H11149). Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 2/3/05 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(c)(5) 5. Question: Do the confidentiality requirements in the Child Abuse Prevention and Treatment Act apply to the members of citizen review panels? Answer: Citizen review panel members are bound by the confidentiality restrictions in section 106 (c)(4)(B)(i) of CAPTA. Specifically, members and staff of a panel may not disclose identifying information about any specific child protection case to any person or government official, and may not make public other information unless authorized by State statute to do so. Further, section 106 (c)(4)(B)(ii) of CAPTA requires States to establish civil sanctions for violations of these confidentiality restrictions. States that already have civil sanctions in place for breaches of confidentiality need not enact new legislation, so long as their existing provisions encompass the CAPTA requirements. Source/Date: ACYF-BC-PI-98-01 (1/7/98); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - section 106(c)(4)(B) 6. Question: Must a State include families who are involved with the Child Protective Services (CPS) agency as members of its citizen review panels? Answer: The provision at section 106(c)(2) of the Child Abuse Prevention and Treatment Act requires that members of the citizen review panels be broadly representative of the community in which the panel is established and include members with expertise in the prevention and treatment of child abuse and neglect. There is no requirement that families involved with CPS be part of the citizen review panel. Source/Date: 05/02/06 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) – section 106(c)(2) 2.3 CAPTA, Definitions 1. Question: We find the "rape" and "statutory rape" language in the definition of sexual abuse found at section 111 (4)(B) of CAPTA confusing, especially within the context of the general definition of child abuse and neglect at section 3 (2). Please clarify. Answer: The provision at section 3 (2) defines child abuse and neglect as "at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm." Section 111 (4)(B) goes on to say that the term sexual abuse includes "the rape, and in the cases of caretaker or inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children." We understand section 111 (4)(B) to define the circumstances in which a parent or caretaker, although not the perpetrator, is chargeable with child abuse and neglect because of sexual acts committed by a third party. For the purposes of CAPTA, child abuse and neglect, by definition, is limited to a recent act or failure to act on the part of a parent or caretaker. Thus, if a child is raped due to a failure to act on the part of a parent or caretaker, such failure to act would be considered child abuse by the parent or caretaker under CAPTA, regardless of the identity of the perpetrator. In addition, the definition at section 111 (4)(B) means that action or failure to act by a parent or caretaker that results in statutory rape by another caretaker or family member is considered to be sexual abuse. Source/Date: ACYF-NCCAN-PIQ-97-03 (9/26/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 3 and 111 2. Question: Definitions are found in sections 106(b)(4), as well as in sections 3 and 111. What is the difference between the definitions found in these sections? (Updated 12/13/2011) Answer: The differences in the definitions found in these sections is in what they govern. The definitions of "near fatality" and "serious bodily injury" in sections 106 (b)(4) of CAPTA refer to those specific terms as used in subsection (b) of section 106 of CAPTA. For instance, whenever the terms "near fatality" or "serious bodily injury" are used in subsection (b), the definitions found in section 106(b)(4) would apply. Section 111, on the other hand, provides the broader definitions of "sexual abuse" and "infant or toddler with a disability," which are used for all other purposes of Title I of CAPTA. The definitions in section 3 provide still broader definitions such as "child abuse and neglect" and "child with a disability," which are used throughout all of CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 2/3/05; 12/9/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 3, 106(b) and 111 3. Question: Section 106(b)(2)(B)(x) of CAPTA requires a State to provide for the public disclosure of findings or information about a case of child abuse or neglect which results in a child fatality or near fatality. For the purposes of this requirement, what is considered a "near fatality"? Answer: A "near fatality" is defined under section 106 (b)(4)(A) as "an act that, as certified by a physician, places the child in serious or critical condition." For example, if hospital records reflect that the child's condition is "serious" or "critical," this would be considered a "near fatality" under CAPTA. Source/Date: ACYF-NCCAN-PIQ-97-01 (3/4/97); updated 9/27/11 Legal and Related References: Child Abuse Prevention and Treatment Act (CAPTA), as amended (42 U.S.C. 5101 et seq.) - sections 106(b)(2)(B)(x) and (b)(4(A) 3. INDEPENDENT LIVING 1. Question: Does title IV-E preclude a State agency from passing on to the child title IV-E funds for his use for his maintenance in an independent living program? (Deleted 02/25/2011) 3.1 INDEPENDENT LIVING, Certifications and Requirements 1. Question: Will States need to make any specific changes in their legislation and policy to comply with the Chafee Foster Care Independence Program (CFCIP)? Answer: States should review their laws and make changes, as appropriate, to assure consistency with the expanded purposes of the CFCIP program. We anticipate that some State policy changes will be necessary. In particular, States should look for possible legal or regulatory conflicts around age limits for services (both the removal of a lower age limit and serving youth between ages 18 and 21), age issues concerning room and board provisions, and Medicaid eligibility requirements. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3) 2. Question: Who is considered the Chief Executive Officer (CEO) of the State for purposes of signing the certifications? Answer: Section 477 (b)(3) of the Social Security Act requires the CEO of the State to certify that the State will adhere to various provisions of the program. The highest ranking official is considered the Chief Executive Officer, that is, the governor of each State and Territory and the mayor of the District of Columbia. If the governor has the legal authority under state law to delegate the responsibility to someone else and makes such a legal delegation, that person may sign the certifications for the governor. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3) 3.1A INDEPENDENT LIVING, Certifications and Requirements, Adolescent Participation 1. Question: Is there a Federal requirement for the State to formulate a life skills assessment or enter into a personal responsibility contract with each youth receiving services under the CFCIP? Answer: No. The certification at section 477(b)(3)(H) requires the State to ensure that "adolescents" participate directly in designing their own program activities "and accept personal responsibility for living up to their part of the program." There is no specific requirement for States to utilize life skills assessments or personal responsibility contracts to comply with this certification. However, various assessment tools and personal responsibility contracts are currently used by some States to assist youth to make the transition from adolescence to adulthood and we believe that this is a good approach to determining needs and developing appropriate services. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(H) 3.1B INDEPENDENT LIVING, Certifications and Requirements, Age 1. Question: Is it correct that there is no minimum age requirement for youths to receive Chafee Foster Care Independence Program (CFCIP) services? Answer: Yes. It is correct that there is no minimum age requirement for the CFCIP program. The CFCIP legislation gives States broad discretion to define the population of children who are "likely to remain in foster care until age 18." Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(a) 2. Question: Who must the State serve in the age 18-21 category in independent living services? Answer: Section 477(b)(3)(A) of the Social Security Act requires States to provide services to youth between ages 18 and 21 who left foster care because they attained 18 years of age. Therefore, States must serve youth between ages 18 and 21 who left foster care because they turned 18 ("aged out" of foster care) and may serve other former foster care youth who did not "age-out" of foster care. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(A) 3. Question: At what age do independent living services have to be provided to foster care youth? Answer: Pursuant to section 475 of the Social Security Act, the State is required to develop and implement a case plan that, for children age 16 and older, identifies those programs and services that will be provided to assist the youth in transitioning from foster care to independence. The Chafee Foster Care Independence Program (CFCIP) is a funding resource for independent living programs and services, with no lower age limit requirements, and is available for youth who meet the State's eligibility requirements for CFCIP. However, the requirements at Section 475 of the Act must be met even for those youth who are not eligible for CFCIP. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 475(1)(B) and (1)(D), section 477 3.1C INDEPENDENT LIVING, Certifications and Requirements, Coordination 1. Question: What is specifically being asked of the State regarding the coordination requirement at 477(b)(3)(F) of the Social Security Act? Answer: The law requires each State to coordinate its Independent Living Program and services with other agencies and providers that serve youth. Programs listed in the legislation (transitional living programs, abstinence education programs, local housing programs, programs for disabled youth and school-to-work programs) must be included in the State's coordination effort; however, we encourage States to coordinate with an even broader range of youth-oriented agencies and programs such as health-related programs, local job training and employment programs, community colleges and youth shelters. Regulations at 45 CFR 1357 offer guidance on how the State must consult and coordinate with other public/private entities for the title IV-B program that might be useful to the State in implementing the CFCIP program. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(F); 45 CFR 1357 3.1D INDEPENDENT LIVING, Certifications and Requirements, Fraud and Abuse 3.1E INDEPENDENT LIVING, Certifications and Requirements, Miscellaneous Requirements 1. Question: Does the court have to approve the youth's case plan that describes the services needed for him/her to transition from adolescence to adulthood? Answer: No. The Social Security Act at sections 475(1) and (5) addresses case plan and case review system requirements for titles IV-E and IV-B. There is no statutory requirement for judicial approval. The court's role is to exercise oversight of the permanency plan, review the State agency's reasonable efforts to prevent removal from the home, reunify the child with the family, conduct permanency hearings and finalize permanent placements. Although approval is not required, the court must address, as part of the permanency hearing, the services needed to assist youth ages 16 and over to make the transition from foster care to independent living. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 475(1) and (5) Child Welfare Policy Manual 8.3C.1 3.1F INDEPENDENT LIVING, Certifications and Requirements, Objective Eligibility Criteria 1. Question: What are the program eligibility requirements for programs and services provided by the State? Answer: The State determines, within the purposes defined in the statute at section 477(a) of the Social Security Act (the Act), the assistance and services that will be made available to all youth whom the State defines as eligible for the program. In defining the program eligibility requirements, the State is required: 1) to ensure that the programs serve children of various ages and at various stages of achieving independence (section 477(b)(2)(C) of the Act); 2) to use objective criteria for determining eligibility for benefits and services under the programs (section 477(b)(2)(E) of the Act); and 3) to ensure fair and equitable treatment of benefit recipients (section 477(b)(2)(E) of the Act). The Department supports positive youth development, which values youth and an individual youth's involvement in planning his/her activities and goals. Furthermore, we view independent living as part of the developmental process critical to the well-being of all children and youth. States are expected to develop or locate services and training that are appropriate to the individual's age, circumstances and developmental needs. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477 2. Question: If a foster care youth (under age 18) is placed in another State, which State is responsible for providing the funding for CFCIP services? Answer: The sending State is responsible for foster care maintenance payments, case planning, including a written description of the programs and services which will help a child 16 or over prepare for the transition from foster care to independence, as required by section 475(1)(D) of the Social Security Act (the Act) and a case review system as required by section 475(5)(C) of the Act. The sending State must also fund the identified independent living services for foster care youth ages 16-18 because the sending state has placement and care responsibility for the youth. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 475 3. Question: If a former foster care youth (between the ages of 18-21) moves from the State in which he or she aged out of foster care to another State, which State is responsible for providing CFCIP services? Answer: Section 477(b)(3)(A) requires States to certify that they will provide assistance and federally-funded CFCIP services to youth who have left foster care because they have attained 18 years of age. It is irrelevant where the youth "aged out" of foster care. The State in which the youth resides is responsible for services if the State provides the services needed by the youth. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(A) 4. Question: Does marriage have any impact on a youth's eligibility for CFCIP? Answer: Section 477(b)(2)(E) of the Act requires the State to use objective criteria for determining eligibility for the CFCIP program. The State may decide that marriage will be considered in determining a youth's eligibility for CFCIP. Once the eligibility criteria are set, all youth must be treated equitably. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(2)(E) 5. Question: Can former foster care youth be required by the court to participate in the CFCIP? Answer: The court may order a youth to participate in independent living services, however, the youth must meet the State's eligibility requirements to be eligible for services. Additionally, section 477(b)(3)(H) requires the State to ensure that youth participate directly in designing their own program activities that prepare them for independent living and that the youth accept personal responsibility for living up to their part of the program. If a youth is unwilling to participate or accept personal responsibility, he/she cannot receive services. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(H) 6. Question: Are youth who do not age out of the foster care system because permanency was attained prior to age 18 eligible for CFCIP services? For example, a youth was in foster care but reunited with his/her family and is living at home or was adopted before attaining 18 years of age. Would such a youth be eligible for CFCIP services at age 18? Answer: Section 477(b)(3)(A) requires States to provide federally-funded CFCIP services to youth between ages 18 and 21 who left foster care because they attained 18 years of age. The State may also provide assistance and services to other former foster care youth whom the State defines as eligible, consistent with the statutory purposes defined in section 477(a). The youth in the example could receive federally-funded CFCIP services if the State included former foster care youth who did not "age out" of foster care at age 18 in its eligibility criteria. However, room and board is available only to the extent consistent with the limitation in section 477(b)(3)(B). Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477 3.1G INDEPENDENT LIVING, Certifications and Requirements, Room and Board 1. Question: What is meant by "room and board" as used in section 477(b)(3)(B) of the Social Security Act? Is it intended to cover all cost items included in the title IV-E foster care maintenance payment definition? Would it also include such costs as rental deposits, rent, utilities, and household start-up purchases? Answer: "Room and board" has no statutory definition, but typically includes shelter and food. These are the most expensive and essential items that youth ages 18-21 may not be able to cover with their own incomes. The term does not include all items covered by the title IV-E foster care maintenance payment definition. States may set a reasonable definition of room and board that may include rent deposits, utilities and other household start-up purchases. In setting the definition, States should be cautioned that the number of items that are covered in the definition of "room and board" may impact the number of youth the State can actually assist. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(B) 2. Question: Does the law at 477 (b)(3)(A) and (B) of the Social Security Act (the Act) allow "room and board" payments for youth between 18-21 years of age who are in a higher education situation? Answer: Yes. The law allows it, but does not mandate it. Section 477(b)(3)(A) and (B) of the Act provide that no more than 30 percent of Federal funds from the allotted amount can be used for room and board for youth 18-21 who have aged out of foster care. States may set criteria for the use of these funds that may or may not include college attendance. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3) 3. Question: Can a State provide Chafee Foster Care Independence Program (CFCIP) funds to an organization for the purpose of acquiring real property under the statutory provision that permits limited room and board expenditures for former foster care children between the ages of 18 and 21? Answer: Federal funds are generally unavailable for the acquisition of real property in the absence of express statutory authority and there is no such authority in the CFCIP legislation. Accordingly, neither States themselves nor the organizations they fund may purchase real property with CFCIP funds. Additionally, States may not use purchased property to qualify for the match to CFCIP funds. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477; 42 Comptroller General 480 (1966) 4. Question: May a State use Chafee funds to provide room and board for youth (between the ages of 18-21) who voluntarily remain in foster care? Answer: Although the law does not expressly contemplate youth ages 18-21 in foster care, allowing room and board for these youth accords with the statutory purposes identified in sections 477(a)(1-5) of the Act. Therefore, it is permissible to expend Chafee funds for youth between the ages of 18-21 who voluntarily remain in State foster care including room and board services. However, a State may not require youth to remain in foster care over the age 18 in order to receive CFCIP services. The certification at section 477(b)(3)(A) stipulates that the State will serve youth who have left foster care because they have attained 18 years of age. Requiring a youth to remain in foster care to receive services contravenes this certification. The State must also meet the Federal non-supplantation requirement for youth ages 18-21. Federal funds spent for room and board for youth 18-21, both in and out of foster care, are subject to the 30 percent expenditure limitation found at section 477(b)(3)(B). Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477 3.1H INDEPENDENT LIVING, Certifications and Requirements, Training 1. Question: What funds under section 477(b)(3)(D) of the Social Security Act (the Act) will be used for training the individuals listed there and whose responsibility is it to train them? Answer: The certification at section 477(b)(3)(D) of the Act requires the State or Tribe receiving Chafee funds to train the categories of people enumerated therein and to utilize the funds that are available for this purpose. The funds specified at section 474(a)(3) of the Act are the administrative dollars which can be claimed for such training. Under that section of the Act, the cost of training certain individuals is reimbursable from title IV-E administrative funds at the rate of up to 75 percent Federal Financial Participation (FFP). If the State/Tribe with an approved title IVE plan contracts with private entities to perform case management functions, it may claim the percent reimbursement permitted by statute for training the contractor's staff to perform the contracted functions. The certification for training in the CFCIP law simply adds independent living training to the pool of allowable title IV-E training activities; it has no general impact on the FFP match for training costs. In addition, regulations at 45 CFR 1356.60 (b)(2) require that all training activities and costs funded under title IV-E shall be included in the title IV-E agency's training plan for title IV-B. The certification at section 477(b)(3)(D) of the Act also encourages such training to be coordinated with the Chafee Foster Care Independence Program training conducted for youth participants. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program; revised 08/31/09 Legal and Related References: Social Security Act - sections 474 and 477 2. Question: Does the law permit training to be directly charged to title IV-E or must the training costs be cost allocated? Answer: States and Tribes receiving Chafee funds should treat independent living training for foster parents, adoptive parents, case managers and workers in group homes on independent living issues like any other training costs under title IV-E and allocate appropriately. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program; revised 08/31/09 Legal and Related References: Social Security Act - sections 477 and 474; 45 CFR 235, 45 CFR 1356.60 3. Question: May States claim the costs of training foster parents under their CFCIP funds? Answer: No. The certification at 477(b)(3)(D) specifies that States "will use training funds provided under the program of Federal payments for foster care and adoption assistance" to provide training to help foster parents, adoptive parents, workers in group homes, and case managers understand and address issues confronting adolescents. Since the statute expressly directs that title IV-E administrative funds be used for training, Chafee funds are not permitted for this use. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(D) 3.1I INDEPENDENT LIVING, Certifications and Requirements, Tribal 1. Question: Must the Tribes participate in the title IV-E program in order to access Chafee Foster Care Independence Program (CFCIP) funds and services? Is their participation in the title IV-E program a prerequisite for soliciting their input? Answer: The answer to both of these questions is "no." Section 477(b)(3)(G) of the Social Security Act requires each State to consult with each Indian Tribe within the State. States must certify that each Indian Tribe in the State has been consulted on the programs to be carried out under the State plan, that the State made efforts to coordinate programs with the Tribes and that benefits and services under the programs will be made available to Indian children in the State on the same basis as to other children in the State. Whether or not a Tribe has a title IV-E agreement with the State is immaterial. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(G) 2. Question: Are entities other than "tribes" included in the requirements at section 477(b)(3)(G) of the Social Security Act? Answer: Yes. Any Indian Tribal Organization that is federally recognized is included. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(G) 3. Question: How will the State document its compliance with the requirements to consult and coordinate with the Tribes? Answer: Section 477 (b)(3)(G) of the Social Security Act requires the CEO of the State to certify that the State has consulted with every Tribe within the State. The certification form (Attachment B of ACYF-CB-PI-01-02) also requires the State to provide the dates of consultations with the Tribes. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(G); ACYF-CB-PI-01-02 4. Question: Why is the requirement for States to consult with Tribes in the Chafee Foster Care Independence Act? Answer: The original bill, HR 1802, which required States to inform Tribes about the enhanced independent living program, was strengthened in the final law to require consultation with the Tribes about the programs to be carried out under the State plan. Included in the Congressional Record of the House, dated June 25, 1999 are remarks from one representative concerning the upgrading of this provision. "Tribes are in the best position to know the needs of Indian children and of possible local resources available for assistance, and this amendment is a first step in recognizing the level of communication and coordination that is necessary for the provision of independent living services." The Department expects that consultation with Tribes will take place as explicitly required, that there have been efforts to coordinate the programs with such Tribes, and that benefits and services will be made available to Tribal youth as specified at section 477(b)(3)(G) of the Social Security Act. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(b)(3)(G) 5. Question: Some Tribal representatives feel the wording for the assurance at 477(b)(3)(G) should indicate that "benefits and services under the programs will be made available to Indian youth in the State on "an equal basis" rather than on "the same basis" as to other youth in the State. Is the change in wording allowable? Answer: No. The certifications are taken directly from the law. "On the same basis" means that the State will provide program services equitably to both State and Indian children who meet the State's eligibility criteria. This is further supported by section 477(b)(2)(E) of the Act with the requirement that States must ensure fair and equitable treatment of benefit recipients. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(E) and (G) 3.2 INDEPENDENT LIVING, Data Collection 3.2A INDEPENDENT LIVING, Data Collection, Data Elements 1. Question: Do tribal youth, youth involved with the juvenile justice system, youth who receive services through the staff of a group home or child care institution, and youth no longer in foster care fall within the served population as defined in 45 CFR 1356.81(a)? Answer: In general, as required in 45 CFR 1356.81(a), a youth is in the served population if during the report period, the youth received at least one independent living service paid for or provided by the State agency. An independent living service is provided by the State agency if it is delivered by State agency staff or an agent of the State, including a foster parent, group home staff, child care institution staff or the service is provided pursuant to a contract between the State agency and a provider, agency or any other entity regardless of whether the contract includes funding for the particular service. The served population is not limited on the Federal level by age, foster care status or placement type, although State eligibility rules for their independent living programs may restrict which youth receive independent living services. Therefore, tribal youth, youth involved with the juvenile justice system, youth who receive services through foster care providers and youth no longer in foster care are a part of the served population if they receive an independent living service paid for or provided by the State agency during the report period. Source/Date: 73 FR 10340 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f)(1)(B)(i); 45 CFR 1356.81(a) 2. Question: How is the served population as defined in 45 CFR 1356.81(a) distinct from or related to the baseline and follow-up population as defined in 45 CFR 1356.81(b) and (c)? Answer: The National Youth in Transition Database (NYTD) has two separate but related components: independent living services and youth outcomes. The reporting populations are separate for each component, although not mutually exclusive. States are to collect and report independent living services information on youth who fall within the served population, as defined by 45 CFR 1356.81(a). The served population is made up of youth who have received at least one independent living service that is paid for or provided by the State agency during a six-month report period. The youth?s age and foster care status is not relevant to whether he or she is in the served population. States are to collect and report outcomes information on youth who are in the baseline and follow-up populations, as defined by 45 CFR 1356.81(b) and (c) respectively. The baseline population is comprised of all 17-year-olds in foster care during a year in which such outcomes data is due (beginning in Federal Fiscal Year (FFY) 2011), regardless of whether the youth receives any services. The follow-up population is a subgroup of the baseline population: youth who participated in the outcomes data collection when they were 17 years old, but who are now 19 or 21 years old. A few simple examples (that do not address sampling) illustrate how the reporting populations may overlap or diverge: Example 1. In December 2010, a youth turns 17 years old while in foster care and takes a budgeting class that is paid for by the State agency in January 2011. This youth would be part of the served population for the first report period of FFY 2011 (October 1, 2010 through March 31, 2011) and reported as receiving the? budget and financial management? service. The same youth would also be a part of the baseline population for whom the State must administer the outcomes survey. This is because FFY 2011 is a year in which the States must collect data on the baseline population, which is comprised of those youth in foster care who reach their 17th birthday in the FFY. Example 2. In November 2011, a different 17-year-old in foster care takes a budgeting class that is paid for by the State agency. This youth would be part of the served population for the first report period of FFY 2012. However, there is no outcomes data collection due in FFY 2012. Therefore, the youth is not in the baseline population. Example 3. In December 2012, the same youth from example 1 reaches 19 years old. By the end of March 2013, this youth had not received any independent living services that were paid for or provided by the State agency during the first report period (October 1, 2012 through March 31, 2013), so the youth is not a part of the served population. However, two years ago, this youth completed the outcomes survey as part of the baseline population. Therefore, the youth is a part of the follow-up population and the State is required to collect and report outcomes data for this youth. Source/Date: 73 FR 10341 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f)(1)(B)(i); 45 CFR 1356.81(a), (b), and (c) 3. Question: Does a youth have to be in foster care on their 17th birthday to be included in the baseline population? Answer: A youth does not need to have his or her 17th birthday while in foster care, but consistent with the data collection rule in 45 CFR 1356.82(a)(2), the youth must have been in foster care within 45 days following his or her 17th birthday during the specified reporting year. Source/Date: 73 FR 10342 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f)(1)(B); 45 CFR 1356.82(a)(2) 4. Question: Who is included in the follow-up population as defined in 45 CFR 1356.81(c)? Are youth who remain in foster care at ages 19 and 21 in the follow-up population? Would youth in the follow-up population at age 19 need to have participated in the outcomes data collection to be a part of the follow-up population at age 21? Answer: The follow-up population as defined in 45 CFR 1356.81(c) is comprised solely of youth who are either 19 or 21 years old who participated in the outcomes data collection as part of the baseline population at age 17. A youth is considered to have participated at age 17 if he or she provided at least one valid answer to a question in the outcomes survey. A youth who participated in the data collection at age 17, but not at age 19 for a reason other than being deceased remains a part of the follow-up population at age 21. A youth is in the follow-up population as described regardless of the youth?s foster care status at ages 19 or 21 and regardless of whether the youth ever received independent living services. Source/Date: 73 FR 10342 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f)(1)(B); 45 CFR 1356.81(c), 45 CFR 1356.82(a)(3) 5. Question: Are States that sample required, per 45 CFR 1356.83(e), to identify the 19-year-old youths who participated in the outcomes data collection as part of the baseline population at age 17, and who are not in the sample? Answer: Yes. This information is required so that ACF can determine whether the State meets the outcomes universe and participation rate standards (45 CFR 1356.85(b)). A State must identify such youth in the two semi-annual report periods for the Federal fiscal year in which the State reports actual outcomes information on 19-year-old youth who are in the sample (45 CFR 1356.83(g)(34)). States will not report information on non-sampled youth again when the youth reach the age of 21 years old. Source/Date: 73 FR 10344 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f); 45 CFR 1356.82(b), 45 CFR 1356.83(e) and (g) 3.2B INDEPENDENT LIVING, Data Collection, Outcome Measures 1. Question: Regarding the data element required in 45 CFR 1356.83(g)(6), does the race category of American Indian or Alaska Native include youth who have an attachment or affiliation with a non-Federally recognized Tribe? Answer: The race category does include youth who identify with an American Indian or Alaska Native Tribe regardless of whether that Tribe is recognized by the Federal government. This race category is per the Office of Management and Budget?s Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity, at http://www.whitehouse.gov/omb/inforeg/re_guidance2000update.pdf (See 73 FR 10345). Source/Date: 73 FR 10345 (February 26, 2008); [insert approval date] Legal and Related References: Social Security Act – section 477(f); 45 CFR 1356.83(g)(6) 2. Question: What is the difference between “educational financial assistance” as required in 45 CFR 1356.83(g)(32) and “educational aid” as referenced in 45 CFR 1356.83(g)(41)? Answer: ?Educational financial assistance? is a service element that refers to financial supports that the State agency pays for or provides for the youth; ?educational aid? is an outcome element and refers to monies or other types of educational financial aid, from any source, that helps cover the youth?s educational expenses as an indicator of their financial self-sufficiency. The intention is to obtain data on both concepts (See 73 FR 10349-10350). Source/Date: 73 FR 10349-50 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f); 45 CFR 1356.83(g)(32) and (41) 3. Question: Is the State permitted to conduct data cross-matching with other administrative databases to gather data on youth, such as those maintained by States to support corrections, Temporary Assistance for Needy Families, Medicaid, employment, education, and child support? Answer: For outcomes data collection, ACF is requiring that the States use the survey method prescribed in 45 CFR 1356.82(a)(2). The State must administer the outcomes survey in Appendix B of 45 CFR Part 1356 to youth directly. Therefore, the State may not provide information in the data elements described in paragraphs 45 CFR 1356.83(g)(37) ? (g)(58) from any other source. On the other hand, information on the youth?s characteristics (e.g., adjudicated delinquent, educational level, or foster care status) does not need to be collected from the youth directly and may come from a source of administrative data. Source/Date: 73 FR 10350 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f); 45 CFR 1356.82(a)(2), 45 CFR 1356.83(g)(34) – (58) 4. Question: Regarding the data required in 45 CFR 1356.83(g)(40), should a State report a youth who receives Supplemental Security Income/Social Security Disability Insurance (SSI/SSDI) payments which are applied to the cost of foster care or only those that are paid to the youth directly? What if a youth does not know he/she was an SSI/SSDI recipient if such payments were applied to the cost of foster care? Should a State ‘correct’ a youth’s response accordingly? Answer: If the youth is a SSI/SSDI beneficiary but his or her payment is going towards the cost of foster care, then the youth is receiving social security payments consistent with the description for the data element in 45 CFR 1356.83(g)(40). However, the State is not to correct a youth?s response if the youth is a beneficiary but responds in the negative to the social security survey question. Although this may result in some cases of a youth answering the question incorrectly, it is important to the integrity of the survey and data to represent the youth?s understanding of his or her own circumstances. Source/Date: 73 FR 10351-52 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f)(1); 45 CFR 1356.83(g)(40) 5. Question: Please explain the calculation of the participation rate, as required in 45 CFR 1356.85(b)(3), to exclude youth who are deceased or institutionalized. Answer: The regulation at 45 CFR 1356.85(b)(3) excludes youth who are reported by the State as deceased, incapacitated or incarcerated in the follow-up population in our calculation of the participation rate. Excluding individuals who should not participate due to the nature of the survey from the calculation of response rates is a standard practice. ACF will use the data States report in the outcomes reporting status element described in 45 CFR 1356.83(g)(34) in calculating the participation rate. For example, for a State that does not sample there are 215 17-year-old youth in the baseline population who participate in the outcomes survey. Two years later, none of the 215 youth are in foster care and five of these youth become incapacitated, incarcerated or deceased. In another two years, 10 more of the original baseline youth become incapacitated, incarcerated or deceased. ACF will calculate whether the State has reported some outcomes information on 60% of the remaining 200 youth in the follow-up population at age 21 to determine whether the State has met its participation rate. However, please note that even though outcomes information for incapacitated, incarcerated and deceased youth will be unavailable for the report period, a State must still report all other information for such youth. For example a State may not report outcome data for an incarcerated youth during a report period, but must report service information if she received independent living services that were paid for or provided by the State agency at some point in the report period. Source/Date: 73 FR 10357 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – section 477(f); 45 CFR1356.83(g)(34) and 45 CFR 1356.85(b)(3) 3.2C INDEPENDENT LIVING, Data Collection, Penalties for Noncompliance 3.2D INDEPENDENT LIVING, Data Collection, Systems Requirements 1. Question: Please provide guidance on the Federal funding sources States may use to pay for the costs related to the NYTD and whether title IV-E reimbursement is available for States that do not incorporate NYTD functionality into their Statewide automated child welfare information systems (SACWIS). Answer: A State may use Chafee Foster Care Independence Program (CFCIP) funds for any and all costs associated with implementing the NYTD. A State with a SACWIS must incorporate NYTD information collection and reporting activities related to children in foster care into their SACWIS and may claim such information system costs as administrative costs under title IV-E pursuant to section 474(a)(3)(C) and (D) of the Social Security Act to the extent they are allowable and consistent with a State's advanced planning document (APD) and cost allocation plan (45 CFR 1355.50 - 1355.57 and 1356.60(e)). A State may not claim reimbursement under title IV-E for NYTD information system costs that are not incorporated into an approved APD for a SACWIS. The authority to claim information systems costs under title IV-E in 45 CFR 1356.60(d) is limited to collecting and reporting data necessary to meet the AFCARS requirements in 45 CFR 1355.40 and those necessary for the proper and efficient administration of the title IV-E State plan and not the CFCIP plan (See 73 FR 10361). Source/Date: 73 FR 10361 (February 26, 2008); (01/26/10) Legal and Related References: Social Security Act – sections 474(a)(3)(C), (D) and 477(f); 45 CFR 1355.40, 45 CFR 1355.50 - 1355.57 and 45 CFR 1356.60(e) 3.3 INDEPENDENT LIVING, Fiscal 3.3A INDEPENDENT LIVING, Fiscal, Administrative Costs 1. Question: May a State use funds under section 477 of the Social Security Act (the Act) for administrative costs and information system costs? Answer: Yes. Section 477(d)(1) of the Act permits a State to use its Chafee allocation in a manner that is resonably calculated to accomplish the purposes of the program. States, therefore, have flexibility in using their funds for administrative activities to assist former foster care youth and youth who are expected to age out of foster care in achieving self-sufficiency. This includes using Chafee funds for any information system development and operations cost that is consistent with the purposes in section 477(a) of the Act and to comply with any requirements promulgated under section 477(f)of the Act. States should note, however, that pursuant to section 477(b)(3)(D) of the Act, Chafee funds may not be used to train foster parents, workers in group homes, and case managers in issues confronting adolescents. The statute provides that States must claim such training, to the extent allocable to title IV-E, as a title IV-E administrative cost (see Child Welfare Policy Manual Section 3.1H). Source/Date: 6/09/04 Legal and Related References: Sections 477(b)(3)(D) and 477(d)(1) of the Social Security Act, Child Welfare Policy Manual Section 3.1H. 3.3B INDEPENDENT LIVING, Fiscal, Allocations 1. Question: Will the Department allow reallocation of State unspent funds to other States that could match the additional amount? Answer: Section 477(d)(4) of the statute, enacted by the Promoting Safe and Stable Families Act, provides for the reallocation of CFCIP funds for which States have not applied. If a State does not apply for its entire CFCIP allocation in a given year, the funds will be reallocated to other States. The Department will give further guidance and instructions in its yearly program instruction regarding funding and State plan updates. Source/Date: 7/25/02 Legal and Related References: Social Security Act 477; Public Law 107-133 2. Question: Which fiscal year and data source is being used for determining Chafee Foster Care Independence Program allocations for each State? Answer: The Adoption and Foster Care Analysis and Reporting System (AFCARS) data will be used to determine allocations. The law requires that data available from the most recent fiscal year be used to determine annual allocation amounts. AFCARS reports are not available for immediate use at the end of the fiscal year; therefore, allocations will be based on AFCARS data that are two full fiscal years behind the fiscal year for which States will be receiving funds, i.e., funds allocated for FY 2001 will be based on FY 1999 data. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 477(c) 3. Question: How will the fact that the Chafee Foster Care Independence Program allotment will be based on the most recent AFCARS data on the number of children in State foster care as a proportion of the number of children in foster care nationwide affect States that have lowered their foster care caseloads over the last several years? Answer: The Social Security Act (the Act) at section 474 (4) sets a formula, similar to that of other programs, that allows the Department to allocate the funds as equitably as possible among the States. Through the "hold harmless" clause in section 477(c)(2)(A) of the Act, a State is eligible to receive, at a minimum, its allocation for FY 1998 under the former ILP program or $500,000, whichever is greater. With these provisions in the legislation, no State will receive less funds than it received previously for the Independent Living Program. In FY 2000, only two entities received no increase in funding while others received increases in funding between two percent and 3,700+ percent. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - sections 474(a) and 477(c) 3.3C INDEPENDENT LIVING, Fiscal, Match 1. Question: Will all expenditures of Chafee funds require a match? Answer: Yes. Section 474(a)(4) of the Social Security Act has been amended to make payments to the State at 80 percent of the total amount expended by the State. Therefore, a 20 percent State match is required. Federal reimbursement ends once the State expends its allotted amount. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 474(a)(4) 2. Question: Can in-kind expenditures related to room and board for qualified youth be used as State match just like any other in-kind expenditure or will there be limitations on in-kind expenditures for room and board? Answer: The current Chafee Foster Care Independence Program will continue to follow the regulations at 45 CFR Part 92, Uniform Administrative Requirements for Grants...to State and Local Governments. These regulations define in-kind match, its uses and its prohibitions. When "room and board" was not allowed, those expenditures could not to be used for matching purposes. Now that "room and board" is allowed, such expenditures may be used as a match. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: 45 CFR Part 92 3. Question: How much of the State's funds for "room and board" can be used as matching funds? Answer: The State can use any amount of its "room and board" expenditures to meet the State match requirements. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 474(c)(4) 4. Question: Private agencies have stepped forward to offer CFCIP training at no cost to the State. Can the State use private agency provided training as its State match? Answer: There are two types of training offered pursuant to Chafee, each with different match requirements. Section 477(b)(3)(D) requires training for foster and adoptive parents, case managers and workers in group homes on topics and issues confronting adolescents preparing for independent living to conform to section 474(a)(3)(A) and (B) of the Social Security Act. Longstanding Federal policy prohibits third party, in-kind contributions from qualifying as the State share under Federal matching requirements for the title IV-E program. The second category of training under CFCIP is for youth who are participating in the program. Training provided to these youth is a service within the purposes of section 477 of the Act. The match requirements for section 477 are codified at 45 CFR 92.24 and permit the use of third party, in- kind contributions. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(D), section 474 of the Social Security Act, 45 CFR Part 92, Child Welfare Policy Manual, Section 8.1F 3.3D INDEPENDENT LIVING, Fiscal, Non-supplantation 1. Question: If States have utilized other Federal sources of funds (e.g., Title XX), under the former ILP, can Chafee funds be used to replace them? Answer: According to section 477(d)(2), States may not supplant any funds (i.e., Federal and non-Federal) that are available for the same general purposes in the State. Chafee funds are to supplement the funds which were used for the general purposes described at sections 477(a)(1-5). States may shift funds or change priorities within the general purposes of the Chafee legislation. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477 3.3E INDEPENDENT LIVING, Fiscal, Use of Funds 1. Question: Does the Chafee legislation allow States to develop and utilize trust funds for youth? Answer: Yes. Trust funds are consistent with the purposes of the legislation at sections 477(a)(1) and (5), which provide for financial, as well as other appropriate support and services designed to help youth transition to adulthood. If a State chooses to establish a trust fund program for youth, the State must describe the design and delivery of the trust fund program in the State's CFCIP plan as required by section 477(b)(2)(A). Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477 2. Question: Can Chafee funds be used to rehabilitate buildings to house youth that are in the independent living program? Answer: According to a long-standing Comptroller General decision, appropriated funds ordinarily may not be used for improvements to private property unless specifically authorized by law. While major improvements are not permitted, minor renovation is allowed. Major improvements involve structural changes to the foundation, roof, floor, exterior or load-bearing walls of a facility, or the extension of a facility to increase its floor area. Major improvements also include any extensive alteration of a facility such as to significantly change its function and purpose, even if such renovation does not include any structural change. Minor renovation may include window replacements, the addition of a wall, painting, plumbing and other minor repairs. Criteria for minor repairs include: improvements which are determined to be incidental to and essential for the effective accomplishment of the authorized purposes of the appropriations, the expenditures are in reasonable amounts, the improvements are used for the principal benefit of the Government, and the interests of the Government are fully protected. The ACF Regional Office can provide additional guidance to States in this area. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477, Controller General Decision B-141832, DHHS Grants Policy Directives (GPD) 3.04 3. Question: If a State currently offers a program for homeless youth, can the Chafee Foster Care Independence Program (CFCIP) be used to fund such a program? Answer: The statute at section 477(d)(2) of the Social Security Act requires that CFCIP funds be used to supplement and not supplant any funds that are available for the same general purposes in the State. However, two examples of how Chafee funds might be used are: 1) CFCIP funds could expand an existing homeless youth program by funding additional beds for youth who have aged out of foster care and are thereby eligible for the program; or 2) CFCIP funds could fund an existing homeless youth program, for those who are Chafee eligible, so long as the non-supplantation requirement is met. Any funds diverted from this particular housing program must be used for services and programs that meet the purposes of the CFCIP program at section 477(a) of the Act. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(d)(2) 3.4 INDEPENDENT LIVING, Related Foster Care Requirements 1. Question: Can the permanency plan for a child when s/he is "placed in another planned permanency living arrangement" include independent living and/or emancipation in accordance with 475(5)(C) of the Social Security Act? Answer: Yes. On a case-by case basis only. If the State identifies independent living as the permanency plan, it must document to the court a "compelling reason" that it is not in the best interest of the child to return home, be referred for termination of parental rights, or be placed for adoption, with a fit and willing relative, or with a legal guardian. An example of a compelling reason found in the regulation at 45 CFR 1356.21(h)(3)(i) is the case of an older teen who requests that emancipation be established as his/her permanency plan. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: Social Security Act - section 475, 45 CFR 1356.21(h) 2. Question: What is the definition of "foster care" to be used in connection with the Chafee Foster Care Independence Program? Answer: In general, the definition of foster care at 45 CFR 1355.20 applies. It defines foster care as "24 hour substitute care for all children placed away from their parents or guardians and for whom the State agency has placement and care responsibility..." However, in light of the requirement from the Social Security Act in section 477(b)(3)(G) that States make benefits and services available to Indian children on the same basis as other children in the State, children in Tribal or BIA placements who are otherwise eligible are considered to have been "in foster care" for purposes of this program. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477(b)(3)(G), 45 CFR 1355.20 3. Question: Can foster care include non-paid relative care where a foster care maintenance payment is not being made? Answer: Yes. The definition of foster care at 45 CFR 1355.20 does not require a payment. Source/Date: Questions and Answers on the Chafee Foster Care Independence Program Legal and Related References: 45 CFR 1355.20 4. Question: Is an Indian boarding school considered a foster care setting for the purposes of eligibility for Chafee Independent Living services? Would it matter if the boarding school were outside the U.S., e.g., in Canada? Answer: If the Indian youth is placed in the boarding school as his/her foster care placement, the youth is eligible for the services of the Chafee program. This answer is the same whether or not the Indian boarding school is in Canada. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477, 45 CFR 1355.20 5. Question: Are youth who have been dually adjudicated with both delinquent and abuse/ neglect determinations, but are placed only in a detention facility eligible for Chafee services? Answer: No. According to the definition of a child care institution, which is a foster care placement option at 45 CFR 1355.20, "detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent" are not considered foster care placements. Therefore, a youth who is placed in a detention facility is not considered to be in foster care. If the youth has never been in foster care, Chafee funds cannot be used to serve him/her. Source/Date: 7/25/02 Legal and Related References: Social Security Act - section 477, 45 CFR 1355.20 3.5 Independent Living, Educational and Training Vouchers 1. Question: If a youth ages out of foster care in one State and then changes his or her State of residency, which State is responsible for providing a youth with an educational and training voucher? Answer: For a youth in foster care, the State with placement and care responsibility is responsible for providing a voucher to an eligible youth. The State in which a former foster youth resides is responsible for providing such an eligible youth with a voucher. This provision, however, does not apply to a former foster care youth who already is receiving a voucher and moves to another State for the sole purpose of attending an institution of higher education. In that instance, we expect that the youth?s original State of residence will continue to provide a voucher to the youth for as long as the youth remains eligible for the program. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 475 and 477(b)(3)(A); Child Welfare Policy Manual Section 3.1F Q&A 2 and 3 2. Question: Is the amount of a youth’s educational and training voucher exempt from Federal taxes? Answer: Nothing in section 477 of the Social Security Act exempts Chafee Educational and Training Vouchers or scholarships financed with general Chafee funds from Federal taxes. Under certain conditions, however, scholarships may be tax exempt. Since the Administration for Children and Families cannot provide authoritative advice on Federal taxes, the State and/or student should contact the Internal Revenue Service directly for more information. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 477 3. Question: Since one of the purposes of the Chafee Independent Living program is to provide educational services to former foster care recipients between the ages of 18 and 21 (section 477(a)(5)), can general Chafee funds be used to supplement the $5,000 per-year ceiling for a youth in the Chafee Educational and Training Voucher (ETV) program? Answer: No. Appropriations law precludes the use of general Chafee funds to supplement the $5,000 per-year ceiling. When an agency has a specific appropriation for a particular item (such as ETVs), and also has a general appropriation broad enough to cover the same item (such as general Chafee funds), only the more specific appropriation may be used. Therefore, expenditures for the ETV program must be made for the specific purposes set forth in the law and limited to expenses associated with institutions of higher education. General Chafee funds may not be used for voucher expenses associated with institutions of higher education, but may be used for other non-higher education-based learning activities (such as General Equivalency Degree programs, mentoring programs and other supportive services for eligible youth). General Chafee funds may also be used for activities that are outside the scope of an institution's definition of "cost of attendance," and are not covered by the ETV program. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Sections 477(a)(5) and 477(i); GAO/OGC-91-5 Appropriations Law-Vol. 1, Chapters 2 and 4 3.5A Youth Eligibility 1. Question: Must a youth be 18 years of age to receive a Chafee Educational and Training Voucher? Answer: No. The statute does not place any minimum age restrictions for the Chafee Educational and Training Voucher program. Source/Date: 4/4/05 Legal and Related References: Social Security Act - Section 477(i)(1) 2. Question: If a State amends its title IV-E State plan to define youth at age 14 as eligible for Chafee services, can the State also make foster care youth who are adopted at age 14 eligible for Educational and Training Vouchers (ETV) under the "youth otherwise eligible" criteria in section 477(i)(1) of the Social Security Act (the Act)? Answer: No. For purposes of the ETV program, section 477(i)(2) of the Act permits former foster youth who have been adopted from foster care to be considered as "youth otherwise eligible" for services. However, it restricts eligibility to youth who are adopted on or after the youth's 16th birthday. Source/Date: 4/4/05 Legal and Related References: Social Security Act - Section 477(i)(1) and (2) 3. Question: Must students attend school full-time to receive a Chafee Educational and Training Voucher? Answer: No. Federal law does not require that students attend school on a full-time basis to receive a voucher. Source/Date: 4/4/05 Legal and Related References: Social Security Act - Section 477(i); Higher Education Act of 1965, as amended - Section 472. 4. Question: If a youth has been receiving a Chafee voucher to attend college, but is not taking classes during the semester the youth turns age 21, will the youth continue to be eligible for a voucher through age 23? Answer: If the State determines that the youth is still enrolled, based on the academic institution's definition of "enrollment," in a postsecondary education or training program and has been making satisfactory progress toward completing the program, despite not actually taking classes at the time the youth turns 21, the State may continue the youth's eligibility for a voucher until age 23 (section 477(i)(3) of the Social Security Act). The State should consult the individual institution's policy on enrollment and standards for satisfactory academic progress to make this determination. Source/Date: 4/4/05 Legal and Related References: Social Security Act - Section 477(i)(3) 5. Question: Would a voucher be available for a youth to get an adult high school certificate or General Equivalency Degree (GED) at a community college? Answer: Typically, no, because Chafee requires that a youth attend an institution of higher education, as defined in section 102 of the Higher Education Act (HEA) of 1965, as amended. Among other things, HEA defines what constitutes an "institution of higher learning" based on certain criteria. We encourage the State to consult the specific community college or institution of higher education about whether such a youth is considered a student for whom the institution can calculate the cost of attendance and whether the college or institution of higher education meets the criteria in sections 101 and 102 of HEA. Source/Date: 4/4/05 Legal and Related References: Social Security Act - Section 477(i); Higher Education Act of 1965, as amended - Section 472 3.5B Coordination and Duplication 1. Question: The Chafee voucher program requires States to describe how they will avoid duplication of benefits under this and any other Federal assistance program. Does this mean that an award of an educational and training voucher precludes a youth from also receiving a Pell grant award? Answer: No. A youth may receive both a Pell grant and a voucher. "Avoiding duplicated benefits" means that the youth cannot receive a combination of Federal educational assistance and vouchers that totals more than the actual cost of attendance, or otherwise claim for the same expense under multiple Federal programs. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 477(b)(3)(J), Section 477(i)(5) 3.5C Eligible Expenses and Institutions 1. Question: What type of institutions fall within the definition of "institution of higher education" for the purposes of the educational and training voucher program under section 477 of the Social Security Act? Answer: The term "institution of higher education" is defined in Sections 101 and 102 of the Higher Education Act (HEA) of 1965, as amended. The U.S. Department of Education, Office of Postsecondary Education, can help States determine which institutions meet the law?s criteria. In general, the term includes three different types of institutions: public and nonprofit institutions of higher education; proprietary institutions of higher education; and postsecondary vocational institutions. A public or nonprofit institution of higher education must meet the following criteria (section 101(a) and (b) of HEA): (1) admits as regular students only persons with a high school diploma or General Equivalency Degree (GED), OR students above the age of compulsory school attendance in the State where the institution is located; (2) is authorized by the State to provide postsecondary education; (3) provides an educational program for which the institution awards a bachelor?s degree or at least a two-year program (e.g., an associate degree) that is acceptable for full credit toward such a degree OR provides at least a one-year training program to prepare students for gainful employment in a recognized occupation; and (4) is accredited by a nationally recognized accrediting agency or association, recognized by the Department of Education, or has been granted pre-accreditation status by the agency or association, and the Secretary has determined that there is a satisfactory assurance that the institution will meet the accreditation standards of the agency or association within a reasonable time. A proprietary (for-profit) institution of higher education must provide a training program to prepare students for gainful employment in a recognized occupation and meet the same criteria as described in (1) and (2) above for public or nonprofit schools. In addition, the institution must: be accredited by an agency or association recognized by the Department of Education; be in existence for at least two years; and, have at least 10 percent of its funding come from sources other than title IV of HEA (section 102(a)(1)(A) and 102(b) of HEA). A postsecondary vocational institution must be a public or nonprofit school in existence for at least two years, which provides a training program to prepare students for gainful employment in a recognized occupation. The school must also meet the criteria described in (1), (2) and (4) above (section 102(a)(1)(B)) and 102(c) of HEA). Certain institutions may not be considered an "institution of higher education" without obtaining special Secretarial approval if they have a high percentage of distance learning classes or students, incarcerated students and students without a high school degree, or have previously filed for bankruptcy or have been convicted of fraud using HEA funds (section 102(a)(3) and (a)(4) of HEA). Schools outside of the United States cannot be considered institutions of higher education for the purposes of the Educational and Training Voucher program (section 102(a)(1)(C) of HEA). Source/Date: 4/4/05 Legal and Related References: HEA of 1965 – Section 101 and 102 2. Question: Section 477(i)(4) of the Social Security Act allows States to use educational and training vouchers to pay for the "cost of attendance" up to $5,000 per year. What is included in the definition of "cost of attendance?" Answer: The definition of "cost of attendance" is in section 472 of the Higher Education Act of 1965, as amended. The cost of attendance is calculated by the institution of higher education in establishing a youth?s financial need and can vary depending on the student?s full-time or part-time status and where the student is receiving instruction (i.e., in jail, study-abroad or distance learning). In general, the definition includes a student's: ? Tuition, fees and other equipment or materials required of all students in the same course of study ? Books, supplies and an allowance for transportation costs and miscellaneous personal expenses, including computers ? Room and board (which may vary depending on whether the student lives at home, in student-housing or an apartment) ? Child care expenses for a student who is a parent ? Accommodations related to the student's disability, such as a personal assistant or specialized equipment that is not paid for by another source ? Expenses related to the youth's work experience in a cooperative education program ? Student loan fees or insurance premiums on the student loan Source/Date: 4/4/05 Legal and Related References: Higher Education Act of 1965, as amended – Section 472; Social Security Act – Section 477(i)(4) 3. Question: What child care expenses are included in the definition of "cost of attendance" for the voucher program? Answer: According to the Higher Education Act of 1965, as amended, if the youth has at least one child, the cost of attendance includes an allowance for child care expenses. The institution must determine the actual allowance, if any, for child care expenses. The institution's determination must be based on the number and age of the youth's child(ren) and may not exceed the reasonable cost for child care in the community where the youth lives. The expenses may cover, but are not limited to, child care necessary for class attendance, periods of study, field-work, internships, and commuting time. Source/Date: 4/4/05 Legal and Related References: Higher Education Act of 1965 – Section 472 4. Question: If the State is paying for the "cost of attendance" for a student under the Educational and Training Voucher program, what are allowable transportation expenses under the definition of "cost of attendance?" May the State use funds from the voucher program to pay for expenses related to a student's personal vehicle? Answer: There is no statutory definition of allowable transportation expenses. The institution may determine the amount of transportation expenses, if any, to allow in determining the cost of attendance. The State should consult with the institution to determine which expenses are allowable and appropriate. If expenses related to the student's personal vehicle are not a part of the cost of attendance, they are not an allowable expense under the voucher program. The State may pay for costs, such as a youth's car insurance or car repairs, that are reasonable and necessary for the youth to become independent or attend classes out of regular Chafee program funds. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 477 5. Question: Can the State use funds awarded in the current fiscal year for the Educational and Training Voucher (ETV) program to pay all or a portion of a youth’s educational or vocational student loans from previous years? Answer: No. Fundamental principles of both appropriations law and grants management policy dictate that funds are not available for expenditure or obligation by the grantee (in this case, the State) until they are awarded to the grantee. Accordingly, funds cannot be expended by a grantee for costs incurred prior to the effective date of the grant award. The use of a current fiscal year's ETV funds to finance a youth's educational or vocational loans that were incurred prior to the awarding of grant funds is prohibited. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 477; GAO/OGC-91-5, Vol. 1, Chapter 5 6. Question: There is a $5,000 per year maximum per youth for the Educational and Training Voucher fund. Does this maximum apply only to Federal funds? If so, can the State spend additional dollars from all-State funds or other sources for this purpose? Answer: Yes to both questions. Consistent with section 474(a)(4) of the Social Security Act, a State will be reimbursed for 80 percent of the amount of a youth?s voucher, up to the $5,000 per year/per youth maximum. The State is responsible for a 20 percent match up to that limit. The State is free to use additional State or other funds for this purpose. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 474(a)(4) 7. Question: Section 477(i)(4)(B) of the Social Security Act states that a voucher or vouchers provided for an individual "shall not exceed the lesser of $5,000 per year or the total cost of attendance, as defined in the Act." Does the $5,000 ceiling apply to an academic year, a Federal or State fiscal year, a calendar year or any 12-month period? Answer: Since the law does not define the term "year" as applied to the $5,000 ceiling, the State has the discretion to decide the 12-month period to which to apply the ceiling. Accordingly, the voucher amount of up to $5,000 per year/per youth may be for any 12-month period of the State?s choosing. It should be noted, however, that the funds must be spent within the two-year expenditure period that is based on the Federal fiscal year. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 474(i)(B)(4) 8. Question: Would a voucher be available for a youth to get an adult high school certificate or General Equivalency Degree (GED) at a community college? Answer: Typically, no, because Chafee requires that a youth attend an institution of higher education, as defined in section 102 of the Higher Education Act (HEA) of 1965, as amended. Among other things, HEA defines what constitutes an "institution of higher learning" based on certain criteria. We encourage the State to consult the specific community college or institution of higher education about whether such a youth is considered a student for whom the institution can calculate the cost of attendance and whether the college or institution of higher education meets the criteria in sections 101 and 102 of HEA. Source/Date: 4/4/05 Legal and Related References: Social Security Act - Section 477(i); Higher Education Act of 1965, as amended - Section 472 3.5D Administrative Costs 1. Question: Can a State claim the administrative costs under the title IV-E Foster Care program (section 474(a)(3) of the Social Security Act (the Act)) for implementing the Educational and Training Voucher program? Answer: No. Only costs that are closely related to the administration of the title IV-E foster care maintenance payments or adoption assistance programs may be claimed under section 474(a)(3) of the Act. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 474 2. Question: Can Chafee voucher program funds be used to pay for staffing? Answer: Yes. States may use funds from the voucher program to pay for the salaries, expenses and training of staff who administer the State's voucher program. States must properly allocate costs to all benefiting programs, and the allocation of such costs must be included in the State?s approved cost allocation plan. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 477 3.5E Match 1. Question: Can non-State funds (e.g., private dollars, in-kind) be used to match the voucher funds? Answer: Yes. States may use third-party, in-kind sources to match Chafee funds consistent with 45 CFR Part 92.24. Source/Date: 4/4/05 Legal and Related References: 45 CFR Part 92 2. Question: Must State or in-kind funds used to match the voucher program follow the same program rules as the Federal dollars? Answer: Yes. States may not use matching funds for unallowable costs of the voucher program or to otherwise serve youth who are ineligible for the vouchers in accordance with 45 CFR 92.24. Source/Date: 4/4/05 Legal and Related References: 45 CFR Part 92 3.5F Use of Funds 1. Question: Can funds for the voucher program be used for non-voucher related expenses, i.e., mentoring programs or other supportive activities for eligible youth? Answer: No. Section 477(h)(2) of the Social Security Act (the Act) restricts funds under the voucher program to "education and training vouchers for youths who age out of foster care." Therefore, States may use voucher funds only to provide the vouchers and conduct administrative activities necessary to provide the vouchers. States may, however, use the regular Chafee program funds authorized under section 477(h)(1) of the Act to support these and other activities not allowable under the Educational and Training Voucher program. Source/Date: 4/4/05 Legal and Related References: Social Security Act – Section 477 4. MEPA/IEAP 4.1 MEPA/IEAP, Diligent Recruitment 1. Question: Can you give us some guidance with respect to satisfying the diligent recruitment requirements of the Multiethnic Placement Act (MEPA)? Answer: As recognized in the MEPA, in order to achieve timely and appropriate placement of all children, placement agencies need an adequate pool of families capable of promoting each child's development and case goals. This requires that each agency's recruitment process focuses on developing a pool of potential foster and adoptive parents willing and able to foster or adopt the children needing placement. The failure to conduct recruitment in a manner that seeks to provide all children with the opportunity for placement, and all qualified members of the community an opportunity to adopt is inconsistent with the goals of MEPA and could create circumstances which would constitute a violation of Title VI of the Civil Rights Act of 1964 and section 471(a)(18) of the Social Security Act. An adequate recruitment process has a number of features. Recruitment efforts should be designed to provide to potential foster and adoptive parents throughout the community information about the characteristics and needs of the available children, the nature of the foster care and adoption processes, and the supports available to foster and adoptive families. Both general and targeted recruiting are important. Reaching all members of the community requires use of general media--radio, television, and print. In addition, information should be disseminated to targeted communities through community organizations, such as religious institutions and neighborhood centers. The dissemination of information is strengthened when agencies develop partnerships with groups from the communities from which children come, to help identify and support potential foster and adoptive families and to conduct activities which made the waiting children more visible. To meet MEPA's diligent efforts requirements, an agency should have a comprehensive recruitment plan that includes: 1) a description of the characteristics of waiting children; 2) specific strategies to reach all parts of the community; 3) diverse methods of disseminating both general and child specific information; 4) strategies for assuring that all prospective parents have access to the home study process, including location and hours of services that facilitate access by all members of the community; 5) strategies for training staff to work with diverse cultural, racial, and economic communities; 6) strategies for dealing with linguistic barriers; 7) non-discriminatory fee structures, and 8) procedures for a timely search for prospective parents for a waiting child, including the use of exchanges and other interagency efforts, provided that such procedures must insure that placement of a child in an appropriate household is not delayed by the search for a same race or ethnic placement. Agencies receiving Federal funds may not use standards related to income, age, education, family structure, and size or ownership of housing, which include groups of prospective parents on the basis of race, color, or national origin, where those standards are arbitrary or unnecessary or where less exclusionary standards are available. Source/Date: Legal and Related References: Social Security Act - Section 471(a)(18); The Multiethnic Placement Act (MEPA) of 1994 (PL 103-382); Title VI of the Civil Rights Act of 1964; The Small Business Job Protection Act of 1996 (Public Law 104-188). 2. Question: Is it permissible under the Multiethnic Placement Act (MEPA) to target minority families that are representative of the children in foster care in our recruitment of potential foster and adoptive parents? Answer: To comply with the "diligent recruitment" provision, MEPA allows for targeted recruitment to increase the number of minority families in the pool of families available to provide adoptive or foster family homes. A title IV-E agency may conduct targeted recruitment activities for a special population itself and/or it may utilize the services of a private recruitment agency based on that agency's understanding of the needs of a specific community. However, targeted recruitment activities cannot be the only vehicle used by a title IV-E agency for identifying families for minority children. The overall recruitment program of the title IV-E agency must be open to all qualified families regardless of race, color, or national origin. Source/Date: ACYF-CB-PI-95-23 (10/11/95) (revised 07/14/10) Legal and Related References: Social Security Act - section 422(b)(9); The Multiethnic Placement Act (MEPA) of 1994 (PL 103-382); The Small Business Job Protection Act of 1996 (PL104-188) 4.2 MEPA/IEAP, Enforcement of Section 471 (a)(18) of the SSA 1. Question: What criteria will be used to determine if a violation of section 471(a)(18) of the Act has occurred? Answer: We have not developed any specific "criteria" for determining if a violation of section 471(a)(18) of the Social Security Act (the Act) has occurred. We will determine on a case-by-case basis whether the title IV-E agency has delayed or denied a child's adoptive or foster care placement or denied a person the opportunity to become an adoptive or foster parent based on race, color, or national origin. It is impossible to define every situation and circumstance that would result in a civil rights violation. Thus, the ACF Regional office will review the specific facts of each case to determine if a title IV-E agency or entity is in violation of section 471(a)(18) or if a policy or practice is consistent with previously issued guidance. Source/Date: Preamble to the Final Rule (65 FR 4020) (1/25/00) (revised 07/14/10) Legal and Related References: Social Security Act - section 471 (a)(18); 45 CFR 1355.38 2. Question: Section 474(a) of the Social Security Act restricts the application of penalties for MEPA violations to one fiscal year. By what authority can ACF continue a penalty into the next fiscal year? Answer: The regulations do not provide for a continuation of a penalty into the subsequent fiscal year if a title IV-E agency fails to come into compliance. ACF may and has the authority to initiate a full or partial review in a subsequent fiscal year for those title IV-E agencies that are in violation of section 471(a)(18) of the Act and have failed to complete corrective action to come into compliance. Thus, any statute, regulation, policy, procedure or practice that remains uncorrected from a previous fiscal year may result in a new finding of a violation of noncompliance with section 471(a)(18) of the Act. We will not disregard an uncorrected violation simply because a fiscal year has ended. It is part of the Department's oversight responsibility to ensure that all title IV-E agencies are in compliance with section 471(a)(18) of the Act at any given time and any uncorrected violation may be subject to a review at the beginning of a new fiscal year. Source/Date: Preamble to the Final Rule (65 FR 4020) (1/25/00) (revised 07/14/10) Legal and Related References: Social Security Act - section 471 (a)(18); 45 CFR 1355.38 3. Question: Does section 471(a)(18) of the Social Security Act (the Act) apply to a private international adoption agency that receives Federal funds, but not title IV-E funds? Answer: No. Section 471(a)(18) of the Act is a title IV-E plan requirement. Therefore, private agencies that do not receive title IV-E funds are not subject to the title IV-E plan provisions, even if such agencies receive Federal funds from a source other than title IV-E and are involved in adoption or foster care placements of any type. However, these private agencies still must ensure that they do not violate Title VI of the Civil Rights Act of 1964 (Title VI) by delaying or denying a foster care or adoption placement decision on the basis of race, color or national origin (Section 1808(c) of Public Law 104-188). Title IV-E agencies should note that all entities, both public and private, that receive any Federal funds, regardless of the source, and regardless of whether those funds are used for child welfare purposes, must comply with title VI. Title VI broadly prohibits all federally funded entities from discriminating, denying benefits or excluding an individual from participating in an activity or program on the basis of race, color, or national origin. The U.S. Department for Health and Human Services Office for Civil Rights (OCR) enforces title VI. For more information on Title VI, please refer to the OCR Title VI fact sheet: http://www.hhs.gov/ocr/title6.html. Source/Date: 12/31/07 (revised 07/14/10) Legal and Related References: Social Security Act – section 471(a)(18); P.L. 104-188 – section 1808(c) 4.3 MEPA/IEAP, Guidance for Compliance 1. Question: What are examples of some impermissible activities under the Multiethnic Placement Act (MEPA)? Answer: MEPA reflects Congress' judgement that children are harmed when placements are delayed for a period longer than is necessary to find qualified families. The legislation seeks to eliminate barriers that delay or prevent the placement of children into qualified homes. In particular, it focuses on the possibility that policies with respect to matching children with families of the same race, culture, ethnicity may result in delaying, or even preventing, the adoption of children by qualified families. It also is designed to ensure that every effort is made to develop a large and diverse pool of potential foster and adoptive families, so that all children can be quickly placed in homes that meet their needs. In the context of child placement decisions, the United States Constitution and Title VI of the Civil Rights Act of 1964 (Title VI) forbid decision making on the basis of race or the ethnicity unless the consideration advances a compelling governmental interest. The only compelling governmental interest, in this context, is protecting the "best interests" of the child who is to be placed. Moreover, the consideration must be narrowly tailored to advancing the child's interests and must be made as an individualized determination for each child. An adoption agency may take race into account only if it has made an individualized determination that the facts and circumstances of the specific case require the consideration of race in order to advance the best interests of the specific child. Any placement policy that takes race or ethnicity into account is subject to strict scrutiny by the courts to determine whether it satisfies these tests. Practices that clearly violate MEPA or Title VI include statutes or policies that: 1) establish time periods during which only a same race/ethnicity search will occur; 2) establish orders of placement preferences based on race, culture, or ethnicity; 3) require caseworkers to specially justify transracial placements; or 4) otherwise have the effect of delaying placements, either before or after termination of parental rights, in order to find a family of a particular race, culture, or ethnicity. Other rules, policies, or practices that do not meet the constitutional strict scrutiny test would also be illegal. Source/Date: "Policy Guidance: Race, Color, or National Origin As Considerations in Adoption and Foster Care Placements," United States Department of Health and Human Services (4/20/95) Legal and Related References: The Multiethnic Placement Act (MEPA) of 1994 (PL 103-382; Title VI of the Civil Rights Act of 1964 2. Question: May public agencies allow foster or adoptive parents to specify the race, color, national origin, ethnicity or culture of children for whom they are willing to provide care? Answer: In making decisions about placing a child, whether in an adoptive or foster setting, a public agency must be guided by considerations of what is in the best interests of the child in question. The public agency must also ensure that its decisions comply with statutory requirements. Where it comes to the attention of a public agency that particular prospective parents have attitudes that relate to their capacity to nurture a particular child, the agency may take those attitudes into consideration in determining whether a placement with that family would be in the best interests of the child in question. The consideration of the ability of prospective parents to meet the needs of a particular child should take place in the framework of the general placement decision, in which the strengths and weaknesses of prospective parents to meet all of a child's needs are weighed so as to provide for the child's best interests, and prospective parents are provided the information they need realistically to assess their capacity to parent a particular child. An important element of good social work practice in this process is the individualized assessment of a prospective parent's ability to serve as a foster or adoptive parent. This assessment can include an exploration of the kind of child with whom a prospective parent might comfortably form an attachment. It is appropriate in the context of good practice to allow a family to explore its limitations and consider frankly what conditions (for example, disabilities in children, the number of children in a sibling group, or children of certain ages) family members would be able or willing to accept. The function of assessing the needs and limitations of specific prospective foster or adoptive parents in order to determine the most appropriate placement considering the various individual needs of a particular child is an essential element of social work practice, and critical to an agency's ability to achieve the best interests of that child. The assessment function is also critical, especially in adoptive placements, to minimizing the risk that placements might later disrupt or dissolve. The assessment function must not be misused as a generalized racial or ethnic screen; the assessment function cannot routinely include considerations of race or ethnicity. The Department generally does not distinguish between foster and adoptive settings in terms of an agency's consideration of the attitudes of prospective parents. However, it is possible that a public agency may attach different significance in assessing the best interests of a child in need of short term or emergency placement. Agencies are not prohibited from discussing with prospective adoptive and foster parents their feelings, capacities and preferences regarding caring for a child of a particular race or ethnicity, just as they discuss other individualized issues related to the child. However, as the Department has emphasized, any consideration of race or ethnicity must be done in the context of individualized placement decisions. An agency may not rely on generalizations about the needs of children of a particular race or ethnicity, or on generalizations about the abilities of prospective parents of one race or ethnicity to care for a child of another race or ethnicity. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 3. Question: May public agencies assess the racial, national origin, ethnic and/or cultural needs of all children in foster care, either by assessing those needs directly or as part of another assessment such as an assessment of special needs? May they do this for a subset of all children in foster care? Answer: Public agencies may not routinely consider race, national origin and ethnicity in making placement decisions. Any consideration of these factors must be done on an individualized basis where special circumstances indicate that their consideration is warranted. A practice of assessing all children for their needs in this area would be inconsistent with an approach of individually considering these factors only when specific circumstances indicate that it is warranted. Assessment of the needs of children in foster care, and of any special needs they may have that could help to determine the most appropriate placement for a child, is an essential element of social work practice for children in out-of-home care, and critical to an agency's ability to achieve the best interests of the child. Section 1808 of Public Law 104-188 by its terms addresses only race, color, or national origin, and does not address the consideration of culture in placement decisions. There are situations where cultural needs may be important in placement decisions, such as where a child has specific language needs. However, a public agency's consideration of culture would raise Section 1808 issues if the agency used culture as a proxy for race, color or national origin. Thus, while nothing in Section 1808 directly prohibits a public agency from assessing the cultural needs of all children in foster care, Section 1808 would prohibit an agency from using routine cultural assessments in a manner that would circumvent the law's prohibition against the routine consideration of race, color or national origin. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 4. Question: May public agencies assess the racial, national origin, ethnic and/or cultural capacity of all foster or adoptive parents, either by assessing that capacity directly or as part of another assessment such as an assessment of strengths and weaknesses? Answer: No. Race, color and national origin may not routinely be considered in assessing the capacity of particular prospective foster or adoptive parents to care for specific children. However, assessment by an agency of the capacity of particular adults to serve as foster or adoptive parents for specific children is at the heart of the placement process, and essential to determining what would be in the best interests of a particular child. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 5. Question: May public agencies honor the request of birth parents to place their child, who was involuntarily removed, with foster parents of a specific racial, national origin, ethnic and/or cultural group? What if the child was voluntarily removed? Answer: No, not even if the child is voluntarily removed. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 6. Question: If an action by a public agency will not delay or deny the placement of a child, may that agency use race to differentiate between otherwise acceptable foster/adoptive placements? Answer: No. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 7. Question: May public agencies decline to transracially place any child with a foster/adoptive parent who has unsatisfactory cultural competency skills? Answer: Good practice requires an assessment of the capacity of potential foster/adoptive parents to accommodate all the needs of a particular child. It is conceivable that in a particular instance race, color or national origin would be a necessary consideration to achieve the best interests of the child. However, any placement decision must take place in a framework that assesses the strengths and weaknesses of prospective parents to meet all of a child's needs so as to provide for the child's best interests. Prospective parents should be offered, typically through training provided by an agency, information sufficient to confirm or broaden their understanding of what types of children for whom they might most appropriately provide a home. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 8. Question: How can public agencies assure themselves that they have identified an appropriate placement for a child for whom racial, national origin, ethnic and/or cultural needs have been documented? Answer: Adoption agencies must consider all factors that may contribute to a good placement decision for a child, and that may affect whether a particular placement is in the best interests of the child. Such agencies may assure themselves of the fitness of their work in a number of ways, including case review conferences with supervisors, peer reviews, judicial oversight, and quality control measures employed by title IV-E agencies and licensing authorities. In some instances it is conceivable that, for a particular child, race, color or national origin would be such a factor. Permanency being the sine qua non of adoptive placements, monitoring the rates of disruption or dissolution of adoptions would also be appropriate. Where it has been established that considerations of race, color or national origin are necessary to achieve the best interests of a child, such factor(s) should be included in the agency's decision-making, and would appropriately be included in reviews and quality control measures such as those described above. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 9. Question: May a home finding agency that contracts with a public agency, but that does not place children, recommend only homes that match the race of the foster or adoptive parent to that of a child in need of placement? Answer: No. A public agency may contract with a home finding agency to assist with overall recruitment efforts. Some home finding agencies may be used because of their special knowledge and/or understanding of a specific community and may even be included in a public agency's targeted recruitment efforts. Targeted recruitment cannot be the only vehicle used by a title IV-E agency to identify families for children in care, or any subset of children in care, e.g., older or minority children. Additionally, a home finding agency must consider and include any interested person who responds to its recruitment efforts. Source/Date: ACYF-CB-IM-98-03 (5/11/98) (revised 07/14/10) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 10. Question: May a home finding agency that contracts with a public agency, but that does not place children, dissuade or otherwise counsel a potential foster or adoptive parent who has unsatisfactory cultural competency skills to withdraw an application or not pursue foster parenting or adoption? Answer: No. No adoptive or foster placement may be denied or delayed based on the race of the prospective foster or adoptive parent or based on the race of the child. Dissuading or otherwise counseling a potential foster or adoptive parent to withdraw an application or not pursue foster parenting or adoption strictly on the basis of race, color or national origin would be a prohibited delay or denial. The term "cultural competency," as we understand it, is not one that would fit in a discussion of adoption and foster placement. However, agencies should, as a matter of good social work practice, examine all the factors that may bear on determining whether a particular placement is in the best interests of a particular child. That may in rare instances involve consideration of the abilities of prospective parents of one race or ethnicity to care for a child of another race or ethnicity. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 11. Question: May a home finding agency that contracts with a public agency, but that does not place children, assess the racial, national origin, ethnic and/or cultural capacity of all adoptive parents, either by assessing that capacity directly or as part of another assessment such as an assessment of strengths and weaknesses? May they do this for a subset of adoptive parents, such as white parents? Answer: No. There should be no routine consideration of race, color or national origin in any part of the adoption process. Any assessment of an individual's capacity to be a good parent for any child should be made on an individualized basis by the child's caseworker and not by a home finding agency. Placement decisions should be guided by the child's best interest. That requires an individualized assessment of the child's total needs and an assessment of a potential adoptive parent's ability to meet the child's needs. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 12. Question: How does HHS define "culture" in the context of MEPA guidance? Answer: HHS does not define culture. Section 1808 of Public Law 104-188 addresses only race, color, or national origin, and does not directly address the consideration of culture in placement decisions. A public agency is not prohibited from the nondiscriminatory consideration of culture in making placement decisions. However, a public agency's consideration of culture must comply with Section 1808 in that it may not use culture as a replacement for the prohibited consideration of race, color or national origin. Source/Date: ACYF-CB-IM-98-03 (5/11/98) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 13. Question: Please provide examples of what is meant by delay and denial of placement in foster care, excluding situations involving adoption. Answer: Following are some examples of delay or denial in foster care placements: 1) A white newborn baby's foster placement is delayed because the social worker is unable to find a white foster home; the infant is kept in the hospital longer than would otherwise be necessary and is ultimately placed in a group home rather than being placed in a foster home with a minority family. 2) A minority relative with guardianship over four black children expressly requests that the children be allowed to remain in the care of a white neighbor in whose care the children are left. The title IV-E agency denies the white neighbor a restricted foster care license, which will enable her to care for the children. The agency's license denial is based on its decision that the best interests of the children require a same-race placement, which will delay the permanent foster care placement. There was no individualized assessment or evaluation indicating that a same-race placement is actually in the best interests of the children. 3) Six minority children require foster placement, preferably in a family foster home. Only one minority foster home is available; it is only licensed to care for two children. The children remain in emergency shelter until the agency can recertify and license the home to care for the six children. The children remain in an emergency shelter even though a white foster home with capacity and a license to care for six children is available. 4) Different standards may be applied in licensing white versus minority households resulting in delay or denial of the opportunity to be foster parents. 5) Foster parent applicants are discouraged from applying because they are informed that waiting children are of a different race. 6) There are placement delays and denials when title IV-E agencies expend time seeking to honor the requests of biological parents that foster parents be of the same race as the child. Source/Date: ACYF-CB-IM-98-03 (5/11/98) (revised 07/14/10) Legal and Related References: Social Security Act - Titles IV-B and IV-E; The Small Business Job Protection Act of 1996 (PL104-188); The Multiethnic Placement Act of 1994 (PL 103-382) 14. Question: If a Tribal title IV-E agency places an Indian child in accordance with the Indian Child Welfare Act (ICWA), does that violate section 471(a)(18) of the Social Security Act (the Act)? (New 03/07/2012) Answer: No. The Indian Child Welfare Act of 1978 (ICWA), Public Law 95-608, was passed in response to concerns about the large number of Indian children who were being removed from their families and Tribes and the failure of States to recognize the culture and tribal relations of Indian people. ICWA, in part, creates procedural protections and imposes substantive standards on the removal, placement, termination of parental rights and consent to adoption of children who are members of or are eligible for membership in an Indian tribe. ICWA and section 471(a)(18) of the Act work together to provide important protections for children. When a Tribal title IV-E agency places an Indian child (as defined by ICWA) according to the placement preferences established in ICWA, the agency is acting in accordance with section 474(d)(4) of the Act and 45 CFR 1355.38(a)(5). Therefore, it does not violate section 471(a)(18) of the Act. However, Tribal title IV-E agencies must ensure that children achieve permanency in a timely manner (see section 471(a)(15)(C) of the Act). This is consistent with the Bureau of Indian Affairs' (BIA) guidance to State courts. The BIA has explained that if, after a diligent search has been completed for families in accordance with the ICWA preference criteria, and a suitable prospective foster care, preadoptive, or adoptive family has not been identified, the agency has good cause to expand the search beyond the order of preference (BIA Guidelines for State Courts; Indian Child Custody Proceedings; 44 FR 67584). As with State agencies, if a Tribal title IV-E agency places a child to whom the ICWA protections do not apply, then the agency must comply with section 471(a)(18) of the Act, which prohibits agencies from: delaying or denying a child's foster care or adoptive placement on the basis of the child's or the prospective parent's race, color, or national origin; and denying to any individual the opportunity to become a foster or adoptive parent on the basis of the prospective parent's or the child's race, color, or national origin. Source/Date: 03/06/2012 Legal and Related References: Social Security Act - sections 471(a)(18) and 474; 45 CFR 1355.38(a)(5); The Indian Child Welfare Act of 1978; BIA Guidelines for State Courts on Indian Child Custody Proceedings; 44 FR 67584 (November 26, 1979) 5. MONITORING 5.1 MONITORING, Child and Family and Services Review (CFSR) 1. Question: The child and family services review assesses compliance with only certain State plan requirements rather than all State plan requirements. How will you ensure compliance with those State plan requirements not addressed in the child and family services review? Answer: We have selected those requirements for the child and family services review that are most directly related to the achievement of successful outcomes in the areas of safety, permanence and child and family well-being. However, the State remains responsible for complying with all State plan requirements for titles IV-B and IV-E, even if each requirement is not subject to review in the child and family services review. The regulations at 45 CFR Section 1355.32 (d) clarify that we will use a partial review to determine conformity with State plan requirements outside the scope of the child and family services reviews. Because defining the variety of State plan compliance issues in advance is not possible, we will approach each circumstance on a case-by-case basis. Consistent with section 1123A, the necessary elements of the program improvement plan and, if necessary, the amount of the withholding, will be commensurate with the extent of the State's non-conformity. Source/Date: Preamble to the Final Rule (65 FR 4020) (1/25/00) Legal and Related References: Social Security Act - section 1123A; 45 CFR 1355.32 (d) 2. Question: How will the child and family service reviews work in county-administered systems? Answer: We did not make separate provisions for State-administered and county-administered systems. The State title IV-B and IV-E plan requirements subject to review are applicable to all counties in the State, and the statewide data indicators used in the reviews reflect statewide practice. The statewide assessment is designed to be completed by the State, not by individual counties, and responses should reflect official State policies and the most typical State practice, while noting where outstanding exceptions exist. It is only the locations of the on-site review that focus on specific counties, but that is true regardless of whether the State is county-administered or State-administered. The locations are determined based on the regulation, which requires that the State's largest city be a site, and by the statewide assessment, which provides information relevant to deciding the location of the other two review sites. Ultimately, we have no authority to hold individual counties accountable for compliance or non-compliance with the requirements being reviewed. It is the State that is accountable, and responsible for assuring that counties administering their own programs operate in compliance with applicable requirements. Source/Date: Questions and Answers on the Final Rule (65 FR 4020) (1/25/00) Legal and Related References: 45 CFR 1355.33 3. Question: At 45 CFR 1355.33 (b) are there special requirements or criteria for the "external partners" who are supposed to be included in the child and family services review team? Can these individuals be paid or compensated? Answer: In the regulation, we identified agencies/entities external to the State that participated in the development of the State's Child and Family Services plan as appropriate partners to include on the review team. The State may cover per diem and travel expenses for its external partners' participation to the extent that it so chooses. Moreover, the State may, pursuant to an approved cost allocation plan, allocate the cost of conducting a child and family services review, which may include compensation for the State's external partners, to title IV-E. Source/Date: Questions and Answers on the Final Rule (65 FR 4020) (1/25/00) Legal and Related References: 45 CFR 1355.33 4. Question: What are the requirements for ensuring confidentiality during the case review portion of the review? Answer: All case-specific information disclosed during a child and family services review is confidential. Both titles IV-B and IV-E have restrictive disclosure provisions (found at section 471 (a)(8) of the Act and 45 CFR 205.50). One of the purposes for which a State is authorized to disclose such information, however, is for an audit or similar activity conducted by the Department in connection with the State plan. Further, Federal regulations at 45 CFR 205.50 require that recipients of information concerning children and families receiving assistance and/or services from the title IV-B/IV-E agency be held to the same standards of confidentiality as the agency. The confidentiality standards for case-specific information are addressed in the procedures manual for use in conducting the child and family services review. In addition, the confidentiality of case records routinely will be reinforced during reviewer training prior to each review. States have complete flexibility in establishing procedures to ensure that confidentiality requirements are met. States may choose to require the reviewers who are not State or Federal employees to sign confidentiality agreements prior to reviewing confidential information. Source/Date: Preamble to the Final Rule (65 FR 4020) (1/25/00) Legal and Related References: Social Security Act - section 471 (a
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