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[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]

                     CHILD PROTECTION REVIEW SYSTEM

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON HUMAN RESOURCES

                                 of the

                      COMMITTEE ON WAYS AND MEANS
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 17, 2000

                               __________

                             Serial 106-84

                               __________

         Printed for the use of the Committee on Ways and Means

                    U.S. GOVERNMENT PRINTING OFFICE
67-409 CC                   WASHINGTON : 2001

_______________________________________________________________________
            For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 
                                 20402

                      COMMITTEE ON WAYS AND MEANS

                      BILL ARCHER, Texas, Chairman

PHILIP M. CRANE, Illinois            CHARLES B. RANGEL, New York
BILL THOMAS, California              FORTNEY PETE STARK, California
E. CLAY SHAW, Jr., Florida           ROBERT T. MATSUI, California
NANCY L. JOHNSON, Connecticut        WILLIAM J. COYNE, Pennsylvania
AMO HOUGHTON, New York               SANDER M. LEVIN, Michigan
WALLY HERGER, California             BENJAMIN L. CARDIN, Maryland
JIM McCRERY, Louisiana               JIM McDERMOTT, Washington
DAVE CAMP, Michigan                  GERALD D. KLECZKA, Wisconsin
JIM RAMSTAD, Minnesota               JOHN LEWIS, Georgia
JIM NUSSLE, Iowa                     RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas                   MICHAEL R. McNULTY, New York
JENNIFER DUNN, Washington            WILLIAM J. JEFFERSON, Louisiana
MAC COLLINS, Georgia                 JOHN S. TANNER, Tennessee
ROB PORTMAN, Ohio                    XAVIER BECERRA, California
PHILIP S. ENGLISH, Pennsylvania      KAREN L. THURMAN, Florida
WES WATKINS, Oklahoma                LLOYD DOGGETT, Texas
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
SCOTT McINNIS, Colorado
RON LEWIS, Kentucky
MARK FOLEY, Florida

                     A.L. Singleton, Chief of Staff

                  Janice Mays, Minority Chief Counsel

                                 ______

                    Subcommittee on Human Resources

                NANCY L. JOHNSON, Connecticut, Chairman

PHILIP S. ENGLISH, Pennsylvania      BENJAMIN L. CARDIN, Maryland
WES WATKINS, Oklahoma                FORTNEY PETE STARK, California
RON LEWIS, Kentucky                  ROBERT T. MATSUI, California
MARK FOLEY, Florida                  WILLIAM J. COYNE, Pennsylvania
SCOTT McINNIS, Colorado              WILLIAM J. JEFFERSON, Louisiana
JIM McCRERY, Louisiana
DAVE CAMP, Michigan

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Ways and Means are also published 
in electronic form. The printed hearing record remains the official 
version. Because electronic submissions are used to prepare both 
printed and electronic versions of the hearing record, the process of 
converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.

                            C O N T E N T S

                               __________

                                                                   Page

Advisory of February 10, 2000, announcing the hearing............     2

                               WITNESSES

U.S. Department of Health and Human Services, Hon. Olivia A. 
  Golden, Ph.D., Assistant Secretary for Children and Families...    12

                                 ______

Connecticut Department of Children and Families, Susan Hamilton..    36
Courtney, Mark E., School of Social Work, University of 
  Wisconsin-Madison..............................................    42
Greenwood, Hon. James C., a Representative in Congress from the 
  State of Pennsylvania..........................................     6
National Association of Foster Care Reviewers, Jerry R. Foxhoven.    29
Oregon Services to Children and Families, Ramona L. Foley........    32

                       SUBMISSION FOR THE RECORD

National Center for Youth Law, Oakland, CA, William Grimm, 
  statement......................................................    55

 
                     CHILD PROTECTION REVIEW SYSTEM

                              ----------                              

                      THURSDAY, FEBRUARY 17, 2000

                  House of Representatives,
                       Committee on Ways and Means,
                           Subcommittee on Human Resources,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 9:07 a.m. in 
room B-318, Rayburn House Office Building, Hon. Nancy L. 
Johnson (Chairman of the Subcommittee) presiding.
    [The advisory announcing the hearing follows:]

ADVISORY

FROM THE COMMITTEE ON WAYS AND MEANS

                    SUBCOMMITTEE ON HUMAN RESOURCES

                                                CONTACT: (202) 225-1025
FOR IMMEDIATE RELEASE

February 10, 2000

No. HR-15

      Johnson Announces Hearing on Child Protection Review System

    Congresswoman Nancy L. Johnson (R-CT), Chairman, Subcommittee on 
Human Resources of the Committee on Ways and Means, today announced 
that the Subcommittee will hold a hearing on the new Federal system for 
monitoring and enforcing the implementation by States of Federal child 
protection laws. The hearing will take place on Thursday, February 17, 
2000, in room B-318 Rayburn House Office Building, beginning at 9:00 
a.m.
      
    In view of the limited time available to hear witnesses, oral 
testimony at this hearing will be from invited witnesses only. 
Witnesses will include a representative from the Administration, 
representatives of State departments of children and family services, 
researchers, legal scholars, and advocates. However, any individual or 
organization not scheduled for an oral appearance may submit a written 
statement for consideration by the Committee and for inclusion in the 
printed record of the hearing.
      

BACKGROUND:

      
    In the early 1980s, the U.S. Department of Health and Human 
Services (HHS) established and operated a system for monitoring child 
protection systems and determining whether they comply with Federal 
requirements. Knowledgeable observers came to view the monitoring 
system as inadequate. In 1989, Congress suspended the collection of 
penalties resulting from the monitoring system. In the Social Security 
Act Amendments of 1994 (P.L. 103-387), Congress mandated that HHS 
establish a new integrated child protection review system that 
monitored compliance with State plans under Title IV-B and Title IV-E 
of the Social Security Act. The system was also required to allow for 
corrective action and to impose penalties. Regulations were required to 
be final by July 1995. The Administration published proposed 
regulations on September 18, 1998, and entertained public comments for 
90 days. Final regulations were published in the Federal Register on 
January 25, 2000, and will officially take effect on March 27, 2000.
      
    The child protection regulations establish reviews of the State 
child and family services activities and of the criteria States use to 
determine IV-E eligibility. In addition, the final regulations 
establish enforcement procedures for certain provisions of the 1996 
interethnic adoption amendments (sec. 1808 of P.L. 104-188) and of the 
Adoption and Safe Families Act of 1997 (P.L. 105-89).
      
    In announcing the hearing, Chairman Johnson stated: ``We must have 
a child protection system that will adequately protect children and 
promote permanent placements in loving homes. After waiting a long time 
for the Administration's final proposal, I am looking forward to 
learning from knowledgeable sources whether this plan will get the job 
done.''

FOCUS OF THE HEARING:

      
    The focus of the hearing will be on the State child and family 
services reviews and benchmarks used to determine State progress.
      

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

      
    Any person or organization wishing to submit a written statement 
for the printed record of the hearing should submit six (6) single-
spaced copies of their statement, along with an IBM compatible 3.5-inch 
diskette in WordPerfect or MS Word format, with their name, address, 
and hearing date noted on a label, by the close of business, Thursday, 
March 2, 2000, to A.L. Singleton, Chief of Staff, Committee on Ways and 
Means, U.S. House of Representatives, 1102 Longworth House Office 
Building, Washington, D.C. 20515. If those filing written statements 
wish to have their statements distributed to the press and interested 
public at the hearing, they may deliver 200 additional copies for this 
purpose to the Subcommittee on Human Resources office, room B-317 
Rayburn House Office Building, by close of business the day before the 
hearing.
      

FORMATTING REQUIREMENTS:

      
    Each statement presented for printing to the Committee by a 
witness, any written statement or exhibit submitted for the printed 
record or any written comments in response to a request for written 
comments must conform to the guidelines listed below. Any statement or 
exhibit not in compliance with these guidelines will not be printed, 
but will be maintained in the Committee files for review and use by the 
Committee.
      
    1. All statements and any accompanying exhibits for printing must 
be submitted on an IBM compatible 3.5-inch diskette WordPerfect or MS 
Word format, typed in single space and may not exceed a total of 10 
pages including attachments. Witnesses are advised that the Committee 
will rely on electronic submissions for printing the official hearing 
record.
      
    2. Copies of whole documents submitted as exhibit material will not 
be accepted for printing. Instead, exhibit material should be 
referenced and quoted or paraphrased. All exhibit material not meeting 
these specifications will be maintained in the Committee files for 
review and use by the Committee.
      
    3. A witness appearing at a public hearing, or submitting a 
statement for the record of a public hearing, or submitting written 
comments in response to a published request for comments by the 
Committee, must include on his statement or submission a list of all 
clients, persons, or organizations on whose behalf the witness appears.
      
    4. A supplemental sheet must accompany each statement listing the 
name, company, address, telephone and fax numbers where the witness or 
the designated representative may be reached. This supplemental sheet 
will not be included in the printed record.
      
    The above restrictions and limitations apply only to material being 
submitted for printing. Statements and exhibits or supplementary 
material submitted solely for distribution to the Members, the press, 
and the public during the course of a public hearing may be submitted 
in other forms.
      

    Note: All Committee advisories and news releases are available on 
the World Wide Web at ``http://waysandmeans.house.gov''.
      

    The Committee seeks to make its facilities accessible to persons 
with disabilities. If you are in need of special accommodations, please 
call 202-225-1721 or 202-226-3411 TTD/TTY in advance of the event (four 
business days notice is requested). Questions with regard to special 
accommodation needs in general (including availability of Committee 
materials in alternative formats) may be directed to the Committee as 
noted above.
      

                                

     Chairman Johnson of Connecticut. Good morning, everyone. 
Let me start by thanking our guests and welcoming you all. I am 
particularly grateful that our guests are here today and have 
provided actually very interesting and thought-provoking 
testimony on rather short notice. We regret that, but since the 
regulations go into effect March 27th, it did seem important to 
have the hearing as far in anticipation of that date as 
possible, and since we will be gone next week, here we are. So 
thank you very much for making it possible to have very good 
testimony and the kind of thoughtful attention to these 
regulations that is appropriate.
    First of all, let me just comment about the concept of 
Federal oversight. I am a firm advocate of State flexibility, 
and those of you who have worked with me know that. But that 
does not in any way relieve us of our responsibility to know 
whether the law is being implemented and whether the resources 
that we have provided are being used effectively.
    So oversight is extremely important. Sometimes, it is more 
important where there is more flexibility. So I look at these 
regulations and this opportunity to hold a hearing on them with 
great interest, and consider it one of our most serious 
responsibilities.
    It is particularly interesting when there is no conflict, 
no difference of opinion on the goals of the law. Clearly, 
child safety, child permanency, and child and family well-being 
are accepted by virtually everyone as appropriate goals, the 
right goals. So this hearing is really not about goals. It is 
about looking at and gathering a wide array of opinions as to 
whether the regulations are going to enable us to understand 
what States are doing in a timely fashion and whether they are 
going to enable us to develop a more creative and responsive 
and effective partnership with the States than we had under the 
old law.
    First, let me say that I really appreciate the tremendous 
improvement in the regulations since their proposed form. I 
thank HHS for making many, many changes and being very 
responsive to the thoughts and concerns of this Committee.
    In addition, as I learn more about the new review system 
and how it works, it seems evident that a great deal of thought 
and work has gone into its development, both to assure that we 
have accurate information that directs itself to children and 
their lives and the outcomes of our actions in their lives, and 
also to system development and quality issues.
    Certainly, I cannot base my judgments just on the 
experience of myself and my staff, as it is too limited. So 
that is why this hearing is very important for us to get a 
better grasp of what a variety of opinions in the community 
are, what the intentions were of the administration, what kind 
of partnership these regulations are going to enable us to 
develop in the years ahead, and most importantly the degree to 
which they are going to enable us to focus more effectively on 
children and how we are addressing the problems in their lives 
and how we are helping or not helping to promote positive 
change in their lives.
    [The opening statement follows:]

Opening Statement of Hon. Nancy L. Johnson, a Representative in 
Congress from the State of Connecticut

    I begin by welcoming and thanking all our guests. We did 
not give you much notice. Nonetheless, your statements are 
exceptionally interesting and thought provoking. Thank you.
    We were in a rush to plan this hearing because the 
important regulation on, among other topics, federal oversight 
of child protection programs, will go into effect on March 27. 
As all of you know, there has been no effective federal 
oversight of child protection programs for over a decade. After 
this long and unfortunate hiatus, I want to be certain that 
this regulation takes us a long way toward an efficient and 
effective child protection review system.
    Let me dispense quickly with a nonissue that is often 
raised when Republicans start talking about federal oversight. 
I am a firm advocate of state flexibility. In fact, I would 
like to find ways to provide states with more flexibility in 
the child protection program this year.
    But giving states flexibility does not mean surrendering 
federal responsibility. The decision to give states more 
flexibility simply reflects my belief that states and 
localities can do a better job of solving social problems than 
any highly prescriptive law we might write here in Washington.
    Even so, we are responsible for making sure that states 
spend federal money on the problems we specify and that they 
mount effective programs. In a system of highly competitive 
states and an informed public, federal publicity that programs 
are failing will inevitably lead to change by the state -
especially when their federal dollars are on the line.
    Our oversight role is especially straightforward when we 
have nearly universal agreement about the goals of the program 
in question. In the case at hand, I believe the goals of child 
safety, child permanency, and child and family well-being are 
accepted by virtually everyone. In fact, if any of our 
witnesses believe there are other major goals, please let us 
know in your testimony.
    My purpose in calling this hearing is to get as wide an 
array of opinions as possible on a very straightforward 
question: Will the new review system provide Congress and 
others with accurate information about the extent to which 
states are achieving the three goals of safety, permanency, and 
well-being?
    I believe the final regulation is a great improvement over 
the proposed regulation and I thank HHS for making a host of 
very good changes. In addition, as I learn more about how the 
new review system works, it seems evident that a great deal of 
thought and work has gone into its development. More important, 
it seems to me that the system holds solid promise for 
providing accurate information.
    But I would be very uncomfortable basing my judgments on 
merely my own knowledge and experience and that of my staff. 
That is why this hearing is so important. We can begin to build 
a public record that can be consulted by all interested parties 
to determine whether the proposed review system will do the 
job.
    In addition, no matter how good the final regulation might 
be, I am certain that we will hear things today that most of us 
agree should be incorporated into the review. The tone I want 
to set is that the new system holds great promise, but we 
should all be committed to improving the system as we go along. 
I already have a few ideas that I believe would strengthen the 
system, and I plan to use today's hearing to see how our superb 
group of expert witnesses respond to my suggestions. And 
without doubt, our witnesses will have suggestions of their 
own.
    So let me complement HHS for publishing a good regulation. 
But let me also implore you to keep an open mind about your 
product, to listen to states and advocates, and to work with 
Congress to improve the review system. We are off to a good 
start, but we have a long way to go.
      

                                

    Mr. Cardin.
    Mr. Cardin. Well, thank you, Madam Chair. This Subcommittee 
has no greater responsibility than ensuring the protection of 
our children who have been removed from homes because of abuse 
or neglect. Therefore, I commend you for holding this hearing 
on the regulations that were recently published by HHS to 
monitor State child welfare programs.
    Those regulations were issued pursuant to a congressional 
mandate of 1994, so they have been a long time in coming. 
However, the final result appears to be a good one--a 
comprehensive, performance-based evaluation system for services 
provided to at-risk children. This results-oriented monitoring 
system will be three-tiered.
    First, it will track aggregate statewide performance data 
on several key issues, including the safety of children in the 
child welfare system and the median length of stay for children 
in foster care. Second, it will conduct on-site, intensive 
reviews of a small sample of child welfare cases to confirm the 
statewide data. And, third, it will assess whether States have 
implemented specific services for foster children.
    Since this new review system and the corresponding Federal 
standards are rightly ambitious, I imagine there will be some 
concerns expressed by States on their ability to comply with 
these new regulations. In this regard, I think it is very 
important to understand that our objective is to get 
compliance, not to assess penalties. And that is very clear in 
the regulations that have been issued and I think there is 
really a new focus on that, that our effort is to help the 
States to comply with these standards and not to impose 
penalties.
    I look forward to hearing from Olivia Golden, the Assistant 
Secretary for Children and Families, regarding her vision for 
the implementation of this new regulation. One particular 
question I would like to hear her address is whether she has 
adequate staff in order to implement this regulation.
    Conducting on-site reviews, determining State compliance 
with national standards, or providing technical assistance to 
the States in attempting to improve their systems will 
certainly be very demanding on the Department's staff. Of 
course, I cannot think of any more deserving use for additional 
resources than creating a system to ensure the system of our 
children at risk.
    Madam Chair, I look forward to hearing all the witnesses 
today, including our colleague from Pennsylvania.
     Chairman Johnson of Connecticut. Well, thank you.
    Now, I would like to invite our colleague, Mr. Greenwood, 
to come forward. Your experience before you were elected to 
Congress makes your opinion and your thoughts around these 
issues very valuable to us. Thank you for being with us.

   STATEMENT OF HON. JAMES C. GREENWOOD, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF PENNSYLVANIA

    Mr. Greenwood. Thank you very much, and thank you for 
holding this hearing and thank you for giving me the 
opportunity to testify, and good morning.
    I am here for two reasons. As Mrs. Johnson just referred 
to, I am a former child worker, caseworker, with the Bucks 
County, Pennsylvania, children and youth agency. In fact, when 
I first ran for the legislature, I was at a candidates event 
and someone stood up and said, why should we elect you? You 
have been a social worker all your life. And I said, after 5 
years of working with acting-out adolescents, I think I am 
perfectly prepared to go to Harrisburg. And it has stood me 
well coming here as well.
    The other reason I am here is because there was a very 
disturbing incident that occurred in my district recently and I 
wanted to take the opportunity to talk with you briefly about 
it and ask you and your staff to review the new regulations in 
view of these events to see that these regulations do 
everything that they possibly can to prevent this kind of an 
occurrence.
    There was a fellow who moved from the State of New York 
into my district a few years ago, and with him he had 13 
children that had been placed in his care, some of them 
adopted, some of them foster children, most of them special-
needs children who had been difficult to place.
    He was originally a resident of the State of New York. An 
adoption and placement agency had placed these children with 
him. It turns out that when he was 19 years of age, he received 
his first adopted child. He was single. A 9-year-old 
emotionally dependent child was placed in his care, and I can 
tell you as a former foster care worker and as someone who 
reviewed potential foster parents and potential adoptive 
parents for placement of children, a red flag should go up 
immediately when a single 19-year-old male says I would like to 
adopt a child. There is nothing that should preclude that from 
happening, but that should receive considerable scrutiny.
    Over the course of the time when this individual was 19 
years old and 47 years old, he had 29 children in his care, 
some of them adopted, some of them foster children. And he was 
arrested for sexually molesting most of the children in his 
care over these years. He will go on trial later on this month.
    What is at issue here, I think, is this. We correctly have 
taken great pains to try to find homes for children who are 
difficult to adopt and difficult to find foster homes. These 
are kids with special needs, physical challenges, mental 
challenges, sibling groups, all of which are older children 
hard to place. And we have created financial incentives for the 
placement of these children, and we have moved to an era of 
greater and greater reliance upon private agencies to do this 
work.
    There was a time when only public agencies did the home 
studies, made the decisions about placement, and we have 
privatized a good bit of that out to agencies and much of that 
is working well. We also have an interstate compact process 
where States rely on one another to do the initial home studies 
and then to do the follow-up case work service where they are 
required to send caseworkers out periodically to check on these 
foster children, to check on the foster children, not the 
adopted children. Once a home is approved for adoption, there 
is essentially no further home study.
    But for children in foster care, there should be ongoing, 
periodic, regular review of the situation. The children should 
be--and I used to do this--the children should be interviewed; 
they should be interviewed out of the presence of their foster 
parents to make sure that they feel free to talk.
    Clearly, the system broke down here. Clearly, what happened 
here was that the State of New York contracted with a private 
agency headquartered in Massachusetts to find placements for 
these special-needs children. They appear to have accepted this 
individual virtually sight unseen as an appropriate foster 
parent, placed a myriad of children with him over the years, 
and then were involved in very little oversight.
    We haven't been able to ascertain yet the extent of that 
oversight. I have written to Governor Pataki, of New York, to 
ask for a full review and I expect to have that, but clearly 
something didn't work here. In our desire to make sure that we 
find permanent homes for these special-needs children, we have 
perhaps erred on the side of financial incentives and erred on 
the side of any foster home is better than none.
    What I am simply here to do this morning is to ask that 
you, Members of the Subcommittee and your staff, make sure that 
these new regulations do everything that they can to prevent 
this kind of occurrence in the future.
    Thank you for the opportunity.
    [The prepared statement follows:]

Statement of Hon. Jim Greenwood, a Representative in Congress from the 
State of Pennsylvania

    Madam Chairwoman and Members of the Subcommittee:
    I appreciate the opportunity to testify today about an 
alarming incidence of abuse in my district and about the 
federal government's role in protecting children as we provide 
assistance to States for foster care and adoption. As a former 
Children and Youth Social Services caseworker and a legislator 
who has strongly advocated children and adoption issues in both 
the Pennsylvania Legislature and the Congress, I was horrified 
this past November to learn that Mr. Thomas Cusick, a resident 
of Bucks County in my district who moved from Staten Island in 
January 1998, was arrested on charges that he sexually molested 
a number of foster and adopted special needs boys in his home. 
On February 28, Mr. Cusick will be tried on 37 counts of 
indecent assault, endangering the welfare of a child, 
involuntary deviant sexual intercourse, and corruption of 
minors. At the time of his arrest, Mr. Cusick was 47 years-old, 
unmarried, and did not appear to have a job. However, he did 
have custody of thirteen foster and adopted children with 
emotional and physical problems. Bucks County Children and 
Youth Services estimates that he has had custody of roughly 28 
youngsters over the past 29 years. He is reported to have 
adopted his first child, a nine year-old boy, when he was only 
age eighteen.
    Mr. Cusick assumed custody of some or all of these children 
in Staten Island through Downey Side Families For Youth, a 
private adoption agency that claims to be exclusively devoted 
to locating homes for special needs children who prove 
difficult to be placed. As I understand the circumstances, the 
New York City Regional Office of Children and Families 
contracted Downey Side to examine Mr. Cusick's home and to 
place these children on the agency's behalf. Mr. Cusick, by 
anyone's standards, was not an appropriate parent for all of 
these children. In response to this unfortunate incident, I 
wrote to Governor George Pataki of New York in January to 
request that his office investigate Mr. Cusick's foster and 
adoption-related case histories and share his conclusions with 
me. Fortunately, the Governor informed me on February 11 that 
he has directed the Commissioner of Children and Family 
Services to thoroughly review the placements and I expect to 
hear from his office in the very near future. While this 
tragedy may prove to be an anomaly, I believe we can safely 
conclude in the meantime that our child welfare system, which 
is designed to protect children, failed to do so in these 
instances.
    When I was a caseworker who found suitable homes for 
troubled kids, part of my responsibility was to examine the 
home to determine if the family offered a healthy and loving 
environment where these children could develop to live happy 
and productive lives. So I know that many foster kids run into 
barriers to timely placement in permanent homes because they 
are older, in sibling groups, or have traumatic histories and 
associated emotional and physical problems. Therefore, I 
strongly supported the Adoption and Safe Families Act (ASFA) in 
1997 because I empathized with those children who languish in 
foster care unnecessarily long and I understood the unique 
challenges that caseworkers face to place these children.
    I have come before the Subcommittee today to discuss two 
broad concerns about the federal government's attention to 
states' child protection systems. First, during the years that 
these children were placed in Mr. Cusick's home, I think the 
federal government did not do enough to monitor cases of 
children in States' foster care systems. Second, I believe 
current child welfare procedures may be obstructing the timely 
and safe placement of special needs children.
    I am concerned that the lack of federal attention to 
states' child protection systems in recent years has allowed 
the Tom Cusick's of the world to harm our children. Under 
current law, States are supposed to continually monitor the 
foster and adoptive placements of children. However, I would 
argue that the Department of Health and Human Services (HHS) 
has failed to enforce federal law and assess State child 
welfare performance for many years. I am happy to see that the 
Secretary has issued regulations to review states child welfare 
performance and I hope the new system will in fact subject 
States' to stricter scrutiny from the federal government. But, 
I remain skeptical that these regulations may not adequately 
address the problem of interjurisdictional placements.
    Congress included language in ASFA to encourage child 
welfare agencies to place children outside their jurisdiction. 
For a variety of personal, cultural, and professional reasons, 
many caseworkers tend not to trust other States' standards of 
practice as they do their own. For instance, different States 
may have similar criteria for home studies, pre-placement 
adoptive parent education, and post-placement services; yet, 
human services professionals are often reluctant to cross 
jurisdictional boundaries because the legal and financial 
responsibility remains with their State or county agency after 
the child is placed. Ultimately, I believe current practices to 
place children across State lines contradicts our 
Constitutional principle of ``full faith and credit.'' At a 
minimum, I think Republicans and Democrats alike can agree that 
the federal government's role in interstate adoptions should be 
reexamined.
    I can not necessarily conclude at this time that the lack 
of federal review or interjurisdictional barriers were the 
major factors that allowed these children to be placed in Mr. 
Cusick's care. However, we can ask: if New York State's 
performance had been subject to scrutiny from the federal 
government under the new HHS regulations, would Mr. Cusick have 
been able to take in so many troubled kids only to abuse them? 
And, if the caseworkers in New York State did not have to 
factor in the burdens of interstate placement, would they have 
been so willing to place that thirteenth child with Mr. Cusick? 
Or the twelfth, the eleventh? I am sure a myriad of errors 
contributed to these inappropriate placements and I hope the 
new HHS regulations will prevent such occurences in the future, 
but I urge the Members of the Subcommittee and the 
Administration to remain cautiously skeptical as you proceed 
with the new system.
    I hope the information about Tom Cusick has been helpful to 
my colleagues on the Subcommittee. I look forward to working 
with you and the Administration to examine these events more 
closely and improve the reliability of foster care and adoption 
services. Again, I want to thank Chairwoman Johnson and the 
Subcommittee Members for the opportunity to appear today. I 
would be happy to answer any questions you may have.
      

                                

     Chairman Johnson of Connecticut. Thank you very much, 
Congressman Greenwood. I know you have put a lot of time into 
investigating this case and that you came to that investigation 
with a lot of experience. Have you been able to get the 
information that you felt you needed in a timely fashion or 
were there barriers to----
    Mr. Greenwood. No, I don't think there have been barriers. 
My staff did a number of things, contacted the bureaucracy in 
New York. We actually sent them out to Harrisburg, 
Pennsylvania, to talk to our foster care folks to look at the 
issues involved. I felt that the bureaucracy in New York was 
responding fairly slowly, so I wrote directly to the Governor 
and that got a little attention. So I think we will hear back 
promptly.
    So I don't think that is the issue. I don't think getting 
answers is the issue. The question is are we, in our 
appropriate desire to make sure that these special-needs kids 
find good homes, erring on the side of, as I said, any home is 
better than no home. And I think that that is the reality right 
now.
     Chairman Johnson of Connecticut. And are we overseeing 
those placements in a way that when we err in our judgment of 
what is a good home, we catch it?
    Mr. Greenwood. I think we are not. I think that we are 
increasingly relying on private agencies to do the placement, 
and that is fine, but what should have happened in this case is 
that the private agency that made these placements--number one, 
I think it is extraordinary that a single man between the ages 
of 19 and 47 was able to have 20-some children in his care to 
begin with. I think that we all talk a lot about what families 
mean--the best families are moms and dads, and if you can do 
that, that is best. But there should have been some scrutiny 
into this man's motivations, frankly.
    Second, the private agency should have sent a caseworker to 
this home, and maybe many caseworkers because these children 
probably had various caseworkers, and should have been in that 
home on a regular basis; I would say a quarterly basis, at 
least, to talk to these children, to see how they were doing, 
and that seems not to have happened.
    And the State agency who contracted with the private agency 
should have been querying the private agency with regard to 
their home investigations. How frequently are you down there? 
What are you finding? And somebody somewhere in this system 
should have noticed that 29 children were placed with a single 
male individual over the course of these years, and that, I 
think, should have, if nothing else, created a situation where 
you would have more than the usual scrutiny and not less.
     Chairman Johnson of Connecticut. I certainly agree with 
all of those comments. I, in addition, am very concerned about 
being able to move interstate with foster children because you 
distance them from their original family so significantly.
    Mr. Greenwood. Right, and this individual apparently picked 
up and moved from New York to Pennsylvania, taking all of these 
children with him. And having been a foster care worker, I had 
90 children in my care at one time and they were all within my 
county and I know how difficult it was for me to keep tabs on 
all of these children when they were all within 20 miles of my 
office.
    To think that we are going to have caseworkers from 
Massachusetts and New York come down on a regular basis to 
Pennsylvania--and the children and youth agency in my county 
was completely unaware of the presence of this individual and 
these 13 kids in his care until the arrests were made, and then 
they had the responsibility of dispersing all of these children 
in other homes.
    And if you think about what makes this particularly tragic, 
if you think about a special-needs child who is born perhaps 
mentally retarded with severe physical disabilities and the 
first event in his life is that he is abandoned by his 
biological parents, placed into care, then he is placed in the 
care of a foster parent and then that foster parent is abusive 
and there is no one to talk to, no one to watch over him, and 
then because of the arrest the child is displaced again into 
yet another home, it is really tragic and it is contrary to 
everything we are trying to accomplish here.
     Chairman Johnson of Connecticut. It is, and it is a 
perfect example of all the problems. And as we listen to these 
regulations, it will give us a concrete measure of what we need 
to address. But the interstate issues are very disturbing.
    Mr. Cardin.
    Mr. Cardin. Well, Jim, first, thank you for being here. We 
very much appreciate the information. It makes it easier for 
us, I think, to understand the seriousness of the problem and 
the need for these national standards. I agree with Mrs. 
Johnson. We want to provide maximum flexibility to our States, 
but with the protection of children it is important that we 
have national standards.
    You have really raised an issue, a real challenge to us. 
What happens when one State places the child, but the abuse 
happens in a second State? It is not an easy issue for us to 
get a handle on and it is something I think this Subcommittee 
is going to need to take a look at, working with the 
Department, to figure out a way that we can have adequate 
supervision and adequate oversight when the child is physically 
out of the jurisdiction of the State that made the original 
placement.
    So thank you, but this won't be the last time we are going 
to be calling upon you.
    Mr. Greenwood. Thank you, and let me make one other 
comment. When I was a foster care worker, children would be 
abused and come into care and I would go to court with a 
petition to get custody of these children, and then I would go 
to our foster care placement director and say, where should I 
put these kids?
    And she was marvelous and she had a network of foster 
parents throughout the county, and even then some of those were 
marginal. Some of those, we knew there were problems with the 
foster parents; they had their own quirks, and so forth.
    One of the things I think we ought to be looking at is what 
are the incentives to be a foster parent, because it is still 
extraordinary--the reason that this happened, the reason that 
29 children were placed with a single male individual who 
turned out to be a child molester is because it is very, very 
difficult to find appropriate foster homes and adoptive homes 
for these kinds.
    So I think, again, we need to look at what the incentives 
are because we need to have a system in which good, healthy 
couples with all the right motivations find it a good deal to 
be foster parents, and I think we are still falling short in 
that.
    Mr. Cardin. Madam Chair, I would ask that our Subcommittee 
be informed as to what steps New York is taking in response to 
this case because it seems to me the point that Congressman 
Greenwood has made cries out for a change in policy in New York 
in placing foster children. It is fine for us to implement a 
system, but it seems to me there should be some action taken. 
So I would appreciate it if you would inform us as to the 
response from New York.
    Mr. Greenwood. We will do that. Thank you.
     Chairman Johnson of Connecticut. Yes, we certainly will be 
interested in following this with you. But it is also a very 
appropriate case to hear right before we hear testimony about 
these new regulations because for the first time they are 
moving from paperwork reviews of State activity to really case 
reviews and trying to get a better handle on what is happening 
to children.
    No case review system, since it is just a sample, is going 
to also give us confidence that absolutely every home is being 
overseen, and so we need to think that through. But I think 
also at least my belief is that States are having a harder and 
harder time recruiting foster families and training them to 
deal with the difficulties of the children that we are placing 
with them.
    And there are some options. I know in Connecticut we are 
developing safe homes where large sibling groups can be put 
together for a period of time while their future is thought 
out, and they don't then lose their parents and all their 
siblings at the same time.
    Mr. Greenwood. And that is critical.
     Chairman Johnson of Connecticut. Right.
    Mr. Greenwood. From personal experience, I know how painful 
it is for a sibling group to have experienced abuse at the 
hands of one of their biological parents and to be yanked out 
of that family, taken to court, and then split up. They need 
each other at that time.
     Chairman Johnson of Connecticut. And when we had testimony 
on the independent living bill, we had some really touching 
testimony on that issue. But one of the reasons I am such a big 
advocate of flexibility is that States are developing some 
group home capabilities for these kinds of children which may 
be a better solution than a single family, given our difficulty 
in actually training these families to the level of 
sophistication they need to care for children with such complex 
problems.
    Mr. Greenwood. There is a whole other issue here and that 
is the issue of institutions, so-called orphanages, versus the 
move toward family placements--it was appropriate for us to try 
to move children out of the institutional setting into the 
family setting. But I think in the course of that, we have in 
some cases erred on the side of any family, however you define 
that, being better than any institution, and that is not 
necessarily the case.
     Chairman Johnson of Connecticut. Right.
    Mr. Greenwood. These children would have been far better 
off had they all been placed in a well-run institution that was 
family oriented than any old household that calls itself a 
family.
     Chairman Johnson of Connecticut. I think we are learning a 
lot about those things, but we will be very interested in 
following this case with you, making sure you get the right 
information, understanding what your judgments are in it, and 
working with you and also with the Secretary to make sure that 
our changes in law, if they are necessary, or our system does 
protect children better than they clearly were protected in 
this case.
    Thank you very much for being here.
    Mr. Greenwood. Thank you for the opportunity.
     Chairman Johnson of Connecticut. Now, I would like to 
welcome Assistant Secretary Olivia Golden, Assistant Secretary 
for Children and Families from the Department of Health and 
Human Services.
    You have been before us before, Secretary Golden, and we 
look forward to your testimony and to working with you on the 
issues that were raised by Congressman Greenwood. Welcome.

STATEMENT OF HON. OLIVIA A. GOLDEN, PH.D., ASSISTANT SECRETARY 
FOR CHILDREN AND FAMILIES, U.S. DEPARTMENT OF HEALTH AND HUMAN 
                            SERVICES

    Ms. Golden. Thank you for the opportunity to discuss the 
final rule on monitoring of child welfare programs. The 
regulation is another major milestone in our shared commitment 
to protect children from abuse and neglect, ensure that foster 
care is a temporary setting, encourage adoption, and promote 
child and family well-being.
    The last several years have brought about major changes in 
the laws governing child welfare services. Most recently, 
thanks particularly to your leadership, Madam Chairman, and Mr. 
Cardin, we were successful in passing the Foster Care 
Independence Act of 1999, as you just alluded to, the law that 
will help to ensure that young people who leave foster care 
without finding a permanent home receive the support they need 
to take on the responsibilities of adulthood.
    Together, the administration and Congress have enacted 
other far-reaching pieces of legislation, including the 
Adoption and Safe Families Act, ASFA; the Multi-Ethnic 
Placement Act; and the Inter-Ethnic Adoption Provisions. One 
key accomplishment stemming from these changes has been the 
first significant increase in adoptions from the foster care 
system. In 1998, 36,000 children were adopted, up from 28,000 
in 1996.
    While we have accomplished a great deal, we know that there 
is much left to do and, of course, we just heard about that. As 
I noted in my testimony before you last spring, State 
government has ultimate responsibility for carrying out child 
welfare programs and for protecting children in their care and 
custody. But the Federal Government plays an important role in 
providing technical assistance and holding States accountable.
    The final rule makes a critical contribution by outlining a 
new results-oriented child and family services review process 
that will serve as the Federal Government's key tool for 
finding out how State child welfare programs are doing and 
ensuring children's safety, permanency, and well-being. It also 
provides a framework for providing States technical assistance 
and helping them make program improvements, and it provides a 
tough but fair way to ensure accountability.
    We reshaped the reviews entirely, as noted in both opening 
statements, with a goal of focusing on outcomes, on the actual 
results that child welfare systems were delivering for children 
rather than on process. We conducted 13 pilot reviews that have 
informed the development of the regulations in fundamental 
ways.
    While we were developing the new approach to monitoring, 
major bipartisan child welfare legislation was enacted, the 
Inter-Ethnic Adoption Provisions and ASFA. So we took the 
opportunity to clarify provisions in those laws through this 
regulation, as well as updating the process for reviewing a 
child's eligibility for the Title IV-E Federal foster care 
program.
    I would now like to focus specifically on the child and 
family services reviews. The new reviews look at how a State 
performs in ensuring that children are safe, that children in 
foster care have the opportunity to achieve timely and 
appropriate permanence, and that children and families who are 
involved in the child welfare system have their needs met in 
ways that promote their well-being. Holding States accountable 
for results in these areas is a major positive departure from 
prior reviews.
    The reviews also examine the functioning of key systemic 
factors that affect the ability of State programs to serve 
children and families effectively, and the chart as well as my 
written testimony provide a full list of the outcomes and 
systemic factors covered in the reviews.
    In making decisions about States' performance, we will use 
both quantitative and qualitative information obtained from a 
statewide assessment completed by State staff and external 
representatives, and including statewide data indicators that 
provide a broad view of how the State is performing; a sample 
of cases reviewed on-site in the State by a joint team of State 
and Federal staff; interviews with community stakeholders, such 
as courts; and interviews with the children and families who 
receive services, as well as foster families, caseworkers, and 
service providers.
    The final regulation responds to many helpful comments we 
received in response to the proposed rule. For example, in 
response to comments encouraging us to make the process for 
determining State compliance more quantifiable, we have 
strengthened the objective elements of the regulation while 
retaining a focus on quality.
    We also received comments on the balance in the regulation 
between program improvement and technical assistance on the one 
hand, and accountability and the imposition of penalties on the 
other. We are confident that States want to improve outcomes 
for children and families, and will welcome the opportunities 
to receive technical assistance and make program improvements 
before we withhold Federal funds. At the same time, we have 
strengthened accountability in the regulation, for instance, by 
adding provisions for gradually increasing the penalties for 
areas of non-compliance that remain uncorrected over time.
    We firmly believe that this regulation will result in 
positive changes in the lives of vulnerable children and 
families. We are currently in the process of identifying the 
first group of States to be reviewed and will conduct initial 
child and family service reviews in 17 States per year.
    In conclusion, I want to thank you for your deep commitment 
to this important work, and I would be pleased to answer any 
questions.
    [The prepared statement follows:]

Statement of Hon. Olivia A. Golden, Ph.D., Assistant Secretary for 
Children and Families, U.S. Department of Health and Human Services

    Thank you for the opportunity to appear before you today to 
discuss the final rule on the monitoring of child welfare 
programs published by the Department of Health and Human 
Services (HHS) on January 25, 2000. The issuance of the 
regulation is another major milestone in furthering our shared 
commitment to protecting children from abuse and neglect, 
ensuring that foster care is a temporary setting and not a 
place for children to grow up, promoting adoption for children 
who cannot safely be reunified with their own families, and 
promoting the well-being of all children and families served by 
the child welfare system.
    As we discussed when I appeared before this Subcommittee 
last April, these last several years have brought about major 
changes in the laws and procedures governing the delivery of 
child welfare services. Most recently, thanks particularly to 
your extraordinary efforts, Madam Chairman and Mr.Cardin, we 
were successful in passing another important piece of 
legislation, the Foster Care Independence Act of 1999, which 
will help to ensure that young people who leave foster care 
without finding a permanent home, are given the supports, 
educational and vocational opportunities they need to take on 
the responsibilities of adulthood on their own. Working 
together in a bipartisan fashion, the Administration and 
Congress have enacted other far-reaching pieces of child 
welfare reform legislation, including the Adoption and Safe 
Families Act (ASFA) of 1997, the Multiethnic Placement Act of 
1994 and the Inter-ethnic Adoption provisions of the Small 
Business Job Protection Act of 1996. Together these laws make 
it clear that ensuring child safety must be the paramount 
concern of child welfare services; that timely decisions about 
permanency must be made for all children in foster care; and 
that barriers to adoption, whether based on racial 
discrimination, geographic boundaries, or simply outmoded 
assumptions, must be torn down.
    One key accomplishment stemming from the changes in law and 
the increased attention to child welfare issues has been the 
first ever significant increase in adoptions from the foster 
care system. As you know, this past September, we made the 
first awards to 35 States under the Adoption Incentive program, 
one of the innovative reforms authorized through ASFA. In 1998, 
36,000 children were adopted from the foster care system, up 
from 31,000 in 1997 and 28,000 in 1996.
    While we have accomplished much in the past several years, 
we know that there is much left to do. Allegations of abuse and 
neglect involving nearly 3 million children are reported to 
child protective services agencies each year, and nearly 1 
million children are found to be victims of maltreatment. Over 
half a million children are in foster care on any given day 
over. Over 100,000 children in foster care are awaiting 
adoptive families, and, on average, these waiting children have 
been in foster care for more than three years.
    As I noted in my testimony before you last spring, it is 
ultimately State government that has responsibility for 
carrying out child welfare programs and for protecting children 
in their care and custody, through a complex system that 
involves many agencies, organizations and individuals. States 
retain significant flexibility in designing programs and 
services to best meet the needs of children and families in 
their jurisdictions. But the Federal government also plays an 
important part by creating a common policy framework; sharing 
in the financing of child welfare services; supporting 
research, evaluation and innovation; providing technical 
assistance; and perhaps most importantly, by holding States 
accountable.
    The final rule we have just published makes a critical 
contribution to these last two roles: technical assistance and 
accountability. It outlines a new results-oriented child and 
family services review process that will serve as the Federal 
government's key tool for finding out how State child welfare 
programs are doing at ensuring children's safety, permanency 
and well-being. It also provides a framework for providing 
States technical assistance and helping them to make needed 
program improvements, and it provides a tough, but fair way to 
ensure accountability. Finally, in addition to implementing 
this new approach to federal monitoring of State child welfare 
programs, the final rule also clarifies key provisions of ASFA, 
the Multiethnic Placement Act and Inter-ethnic Adoption 
provisions; and implements a new title IV-E foster care 
eligibility review system.

    Background and History of the Regulation

    The final rule grows out of a 1994 congressional mandate 
directing the Department to revamp its system of child welfare 
monitoring, reflects extensive consultation and field testing, 
and incorporates key provisions of ground-breaking child 
welfare legislation passed during the time the new system was 
being developed. The final rule also reflects serious 
consideration of comments received on the proposed rule, 
including several from Members of Congress and this 
Subcommittee, which were extremely helpful in developing the 
final approach.
    First, in 1994, as a result of widespread dissatisfaction 
with the prior review process, legislation was enacted that 
directed the HHS to develop a new monitoring system for child 
and family services. The Congress had already indicated 
dissatisfaction with the prior review process by declaring a 
moratorium on the Department's ability to collect penalties 
based on it. Specifically, the statute required HHS to regulate 
the requirements subject to review and the criteria used to 
measure compliance. In addition, the law also required the 
Department to provide States an opportunity for corrective 
action before imposing a penalty and specified that the penalty 
should be based on the degree of non-compliance.
    We believed that the legislative mandate for change was so 
significant that we took the time to re-shape the reviews 
entirely, with the goal of focusing on outcomes--on the actual 
results that state child welfare systems were delivering for 
children in terms of safety, permanence, and well-being -rather 
than on process. We engaged in extensive consultation with the 
field on the conceptual framework, and we conducted thirteen 
pilot reviews that have informed the development of the child 
and family service reviews in fundamental ways.
    While we were developing the revamped approach to 
monitoring, major bipartisan child welfare legislation was 
enacted: the Inter-ethnic Adoption provisions and the Adoption 
and Safe Families Act. We took the opportunity to clarify 
provisions in these laws by incorporating key elements into 
this regulation as well. In taking this approach, we have 
produced an encompassing rule that provides States with 
information on the manner in which their programs will be 
reviewed and evaluated, as well as the criteria and 
requirements that must guide the administration of their 
programs.
    Finally, we issued a Notice of Proposed Rulemaking (NPRM) 
on September 18, 1998 and invited nationwide comment. We 
received 176 letters of comment from Members of Congress, State 
and local child welfare agencies, national and local advocacy 
groups for children, educational institutions, individual 
social workers, providers of child welfare services, State and 
local courts, national and State associations representing 
groups of practitioners, Indian tribes, and local community 
organizations. In analyzing these comments, we adhered to the 
following principles: keeping the focus on the goals of safety, 
permanency and well-being in State child welfare systems; 
moving child welfare systems toward achieving positive child 
and family outcomes while maintaining accountability; 
maintaining our stewardship role over the use of Federal funds; 
enforcing statutory requirements in ways that encourage strong 
State/Federal partnerships and program improvements; and using 
the lessons learned in the pilot reviews and information 
gathered in the consultation.

    Overview of the Final Rule

    I would now like to provide an overview of the final rule, 
which covers four basic areas. First, the regulation outlines 
our response to the legislative mandate to re-design Federal 
reviews of State programs. The review process described in the 
regulation focuses on outcomes, that is, how a State performs 
in ensuring that:
     Children are safe and free from risks of harm;
     Children in foster care have an opportunity to 
achieve timely and appropriate permanency in their lives; and
     Children and families who are involved with the 
child welfare system have their needs met in ways that promote 
their well-being and strengthen their opportunities for success 
in life.
    Holding States accountable for results in these areas is a 
major departure from prior reviews and we believe that this 
approach to monitoring will have positive consequences for 
children.
    Second, the rule includes the penalty and corrective action 
components of the Inter-ethnic Adoption provisions, which will 
assist us in enforcing its provisions.
    Third, the rule also implements certain key aspects of the 
Adoption and Safe Families Act that are directed at improving 
States' efforts to achieve safety and timely permanency for 
children.
    Finally, we have also updated the reviews of a child's 
eligibility for the title IV-E Federal foster care program. 
This final rule clarifies the statutory eligibility provisions, 
and also incorporates several requirements of the Adoption and 
Safe Families Act into the reviews.
    I will now provide a more detailed look at each of the four 
sections.

    Child and Family Service Reviews

    By focusing on outcomes, the new reviews will determine 
what is actually happening to children and families as a result 
of their receipt of child welfare services, including child 
protective services, foster care, family preservation and 
family support, and adoption services. We will review State 
programs on the following seven outcomes:
     Children are, first and foremost, protected from 
abuse and neglect;
     Children are safely maintained in their own homes 
whenever possible and appropriate;
     Children have permanency and stability in their 
living situations;
     The continuity of family relationships and 
connections is preserved for children;
     Families have enhanced capacity to provide for 
their children's needs;
     Children receive appropriate services to meet 
their educational needs; and
     Children receive adequate services to meet their 
physical and mental health needs.
    The reviews also examine the functioning of key systemic 
factors that affect the ability of State programs to serve 
children and families effectively, including the State's 
capacity to generate automated information on the children it 
serves; the implementation of a case review system and quality 
assurance procedures; staff training and the availability of a 
range of services for children and families; the State's 
relationship with and responsiveness to the communities it 
serves; and the recruitment of foster and adoptive families.
    In making decisions about the States' performance in these 
areas, we will use both quantitative and qualitative 
information that is obtained from several sources:
     A statewide assessment completed by State staff 
and representatives from outside the State agency in order to 
assure accountability and balanced perspectives on the issues;
     Statewide data indicators that provide a broad 
view of how the State is performing and that are based on the 
ASFA outcomes measures, such as repeat maltreatment of 
children, length of stay in foster care, and the length of time 
it takes for children to achieve adoption or reunification;
     A sample of cases selected randomly that is 
reviewed on-site in the State by a joint team of State and 
Federal staff;
     Interviews with community stakeholders, such as 
courts, children's legal representatives, foster families, and 
other agency representatives; and
     Interviews with the children and families who 
receive services, as well as the foster families, caseworkers, 
and service providers involved with these children and 
families.
    We are very pleased that we have retained the features of 
the child and family service reviews that States and other 
commenters supported most strongly in their comments on the 
NPRM. These include:
     A timely outcome-based approach to reviewing child 
and family services, with a focus on the quality of services
     A tough but fair accountability process with an 
emphasis on program improvements, including opportunities for 
the States to have penalties suspended and rescinded if they 
make required improvements.
     A focus on State and Federal partnerships 
resulting from jointly reviewing programs and developing 
program improvement plans
    The final regulation includes a number of changes that 
respond to the many extremely helpful comments we received 
about how best to design the process to accomplish these shared 
goals. For example, a number of commenters on the NPRM 
suggested that we increase the sample of cases reviewed on-
site. However, a key lesson we learned in the pilots was that 
an extremely intensive on-site review, including interviews 
with key participants such as the child and the foster or 
adoptive family rather than just a review of what is already in 
the case files, is critical to developing good information 
about the real outcomes for children. We also learned in the 
pilots that high quality reviews are so time-intensive that we 
could not realistically increase the sample and maintain the 
quality of review. To balance these competing concerns and 
respond fully to the comments, we have kept the small but 
intensive sample as one key source of information but at the 
same time considerably strengthened a second source of 
information--a rigorous statewide assessment that looks at key 
statewide performance data. In those cases where the statewide 
assessment and the on-site review give different results, we 
have incorporated a process for resolving discrepancies between 
the statewide assessment and the on-site review, including 
giving States the option of going to a larger sample.
    Similarly, several comments, including some of the comments 
we received from members of Congress, encouraged us to make the 
measures by which we determine a State's compliance more 
measurable and quantifiable. We found these comments very 
helpful and have responded by strengthening the objective 
elements of the regulation while at the same time retaining a 
focus on necessarily subjective judgments of quality in the 
intensive review process. Among the specific statewide data 
indicators that we have included are measures of repeat 
maltreatment, the length of time children spend in foster care 
and the length of time it takes for children in foster care to 
achieve permanency, either through adoption or reunification. 
We will establish national standards for each of the statewide 
data indicators and use the review process to help all States 
improve their performance and achieve the standards. Other 
steps we have taken to increase objectivity include 
strengthening the statewide assessment procedures, defining 
more precisely how the States will be rated on the systemic 
factors under review, and strengthening the procedure for 
resolving discrepancies between information in the statewide 
assessment and the on-site review. We believe these steps will 
enable us to retain the qualitative focus of the reviews and to 
increase objectivity.
    Finally, we received comments on the balance in the 
regulation between program improvement and technical assistance 
on the one hand and accountability and the imposition of 
penalties on the other. We are confident that States want to 
improve the outcomes for the children and families they serve, 
and will welcome the opportunities to engage in program 
improvement planning that are a part of this regulation. As 
required in the 1994 statute, we have included opportunities 
for States to receive technical assistance, to make 
improvements where needed, and to correct areas of non-
compliance before we withhold Federal funds.
    At the same time, we have strengthened the accountability 
provisions in the final regulation. For example, we have added 
to our proposed penalty structure for non-compliance provisions 
for gradually increasing the penalties for those areas of non-
compliance that remain uncorrected over time. The graduated 
penalty provisions demonstrate our seriousness about working 
with States to ensure that they undertake program improvement 
efforts that lead to lasting changes, not short-term fixes for 
problems. Accountability is also enhanced by including 
community representatives who are external to the State agency 
in completing the statewide assessment and participating in the 
on-site reviews.

    Multiethnic Placement Act (MEPA) and Inter-ethnic Adoption 
Provisions

    I would now like to discuss the second part of the 
regulation, which addresses the enforcement, penalty, and 
corrective action processes for violation of the Inter-ethnic 
Adoption Provisions. As you know, the 1996 Inter-ethnic 
Adoption Provisions are aimed at preventing discrimination in 
foster care and adoptive placements. The law prohibits delaying 
or denying the placement of a child with a prospective foster 
or adoptive parent on the basis of the child's or the adult's 
race or ethnicity. The statute also outlines penalties for 
violations of the law.
    Both ACF and the Office of Civil Rights (OCR) have been 
rigorously enforcing MEPA since its enactment and the Inter-
ethnic Adoption Provisions. For instance, in fiscal year 1999, 
OCR conducted over sixty-eight activities including complaint 
investigations, compliance reviews, training and technical 
assistance. This regulation furthers our efforts by clarifying 
how the enforcement process works and the penalties associated 
with violations.
    The penalty process follows the statute closely. States 
found to have discriminated against an individual will be 
assessed a penalty consistent with the statute. If there are 
violations, not against an individual, but associated with the 
State maintaining a policy, statute, or procedure that would 
result in a violation against an individual if applied, the 
State must take corrective action within six months to avoid 
the assessment of a penalty.

    The Adoption and Safe Families Act (ASFA)

    The third part of this regulation is its implementation of 
certain provisions of ASFA. The ASFA made a wide range of 
reforms to Federal child welfare law, by emphasizing the 
necessity of ensuring children's safety; by shortening the time 
frames for making permanency decisions for children in foster 
care in recognition of their developmental needs and sense of 
time; by ensuring that permanency planning begins the moment a 
child enters foster care; by emphasizing the importance of 
results and accountability; and by encouraging innovation in 
the delivery of child welfare services.
    The new regulations further the implementation of ASFA in 
two ways. First, we have incorporated the core principles of 
ASFA, that the safety and well-being of children must be the 
paramount concern in decision-making and that foster care is a 
temporary setting and not a place for children to grow up, into 
the core procedures and measures of the child and family 
services reviews and the title IV-E foster care eligibility 
reviews. In addition, the regulation specifically addresses and 
clarifies a number of ASFA provisions.
     The regulation includes the ASFA requirement that 
States file a petition to terminate parental rights for 
children who have been in foster care for 15 of the most recent 
22 months, abandoned infants, and children of parents who have 
committed certain offenses, unless an exception applies. We 
have made it clear in the regulation that there are no blanket 
exemptions from the termination of parental rights requirement, 
and we emphasize that States must make decisions not to pursue 
termination on a case-by-case basis. We have provided some 
examples of situations in the regulation that may constitute a 
compelling reason for not filing a petition to terminate 
parental rights, such as a situation involving an unaccompanied 
refugee minor.
     With regard to the reasonable efforts provisions 
in ASFA, the regulation clarifies that States can define in 
State law the ``aggravated'' circumstances under which the 
State is not required to make reasonable efforts to prevent 
removal or to reunify a family due to safety considerations. We 
fully supported State flexibility with regard to this 
provision.
     We also clarified in the regulation that States 
are now required to obtain a court order at least every twelve 
months to show that the State made reasonable efforts to 
finalize a permanent plan for the child in a timely manner, 
whether the plan is to reunify the child and parents, or 
achieve permanency through adoption or legal guardianship.

    Title IV-E Reviews and Other Foster Care Requirements

    The fourth major area included in the regulation is the 
title IV-E eligibility reviews. In these reviews, we exercise 
our stewardship role by ensuring that Federal funds are used 
only for eligible children who are placed with eligible 
providers. This is a critical review since many of the child 
protections included in ASFA, such as reasonable efforts 
provisions and criminal background clearances on foster and 
adoptive parents, are addressed in the title IV-E foster care 
reviews.
    Among the foster care provisions we clarify in the 
regulation are the requirements relating to licensure of foster 
family homes as a prerequisite for the receipt of title IV-E 
foster care payments. The regulation clarifies that States must 
use the same licensing or approval requirements for all foster 
family homes, whether they are relative or non-relative foster 
homes. States may make some exceptions for relative homes in 
areas that do not affect the safety of children, for example, 
waiving a requirement about the minimum square footage of the 
home. In order to allow States a period of time to transition 
to the new requirements, the regulation allows States six 
months to bring all foster family homes into compliance with 
their licensing standards before we will withhold funds on that 
basis.
    Through the regulation, we are also implementing the 
requirements for criminal background clearances on foster and 
adoptive families prior to a child's placement. Unless a State 
opts out of the requirement through the governor's action or 
the passage of a State law, the statute requires States to 
conduct criminal background clearances on prospective foster 
and adoptive parents as a pre-condition for the receipt of 
title IV-E Federal foster care funds.

    Next Steps

    We are very excited to be implementing this regulation as 
we believe that it will result in positive changes in the lives 
of vulnerable children and families. We are currently in the 
process of identifying the first group of States to be 
reviewed. Among the criteria that we are using to determine the 
order in which States will be reviewed through the child and 
family services review process are:
     States with identified child safety issues should 
be early in the schedule;
     States that have indicated a need for technical 
assistance to improve their programs should be early in the 
schedule; and
     States that were reviewed through pilots can be 
reviewed later, in the absence of a strong need under the first 
two criteria.
    We will conduct initial child and family service reviews in 
17 States per year, beginning immediately to work with the 
group of states that will be completed in FY 2001. We expect 
that this group will complete the statewide assessment this 
year and be ready for on-site reviews early in FY 2001. We will 
also begin conducting the new title IV-E eligibility reviews 
and expect to conduct 10 reviews during the current fiscal 
year. Over the next four years, we will conduct both types of 
reviews in all 50 States.
    In addition to implementing the new reviews, we are also, 
of course, moving forward in the full range of other activities 
needed to further our agenda in the child welfare area. We are 
continuing to provide technical assistance to States in the 
implementation of ASFA and MEPA and ensuring that their State 
laws are in compliance. We will again be working with States to 
award additional child welfare waiver demonstrations that can 
tell us about new ways to finance or deliver services to 
children. We will also be working with States to implement the 
provisions of the expanded and improved Independent Living 
Program. There is much work remaining, but we are committed to 
continuing to do all we can to improve the lives of the 
thousands of children and families in our nation's child 
welfare system.
    In conclusion, I would like to thank all of the members of 
this Subcommittee for your efforts and your ongoing commitment 
to this important work. I would be pleased to answer any 
questions you may have.
      

                                

     Chairman Johnson of Connecticut. Thank you very much, 
Secretary Golden. I think this does represent a great leap 
forward in Federal oversight regulations and has the potential 
to develop a partnership between State agencies, providers, and 
the Federal Government that could be very fruitful and very 
positive.
    Ms. Golden. Thank you.
     Chairman Johnson of Connecticut. I was curious as to why 
your measure is going to be 95 percent of cases in on-site 
review for substantial conformity. What is the logic of 95 
percent?
    Ms. Golden. Well, let me try to lay out the pieces of the 
review and how they fit together to determine a State's 
substantial conformity because one of the key features--and we 
have a chart up there; I don't know if we have placed it so 
that you can see it. But one of the key features of the reviews 
is that we use multiple sources of information and bring them 
together. I think you are referring to the standard for 
substantial conformity for the on-site reviews in the second 
and subsequent review cycles, so let me tell you a little bit 
about how the multiple pieces come together.
    The first element of the child and family service reviews 
that is really important to answering that question is that we 
don't have an all-or-nothing pass/fail. What we are doing--and 
I think the previous testimony really illustrated why it 
matters so much--we are looking at multiple outcomes and at 
multiple aspects of service delivery.
    The list is there and you probably can't see it, but we are 
looking at seven outcomes, including safety, including 
permanence, and at seven systemic factors like case review 
system, quality assurance system, and licensing and recruitment 
for foster parents. So the first thing is it is not all-or-
nothing. We are looking at seven outcomes and seven systemic 
factors, and we expect that most States will have areas of 
strengths and areas they need to improve within that.
    The second part of the answer is that we are bringing 
together information from a statewide assessment--that is the 
first box there--and an on-site review because what we have 
learned about looking at outcomes is that no single source of 
information tells you everything you need to know about whether 
children are safe. So we will be looking at statewide 
information and looking at whether States, based on that 
information, meet national standards in those areas where we 
have good national data. Where we don't have national data, we 
will be working with State information. So we will have that 
piece.
    Then comes the on-site review where we will be intensively 
looking at a sample of cases, not only the paper in the folder 
but also talking with people. And as you note, as the reviewers 
work on those cases, they are going to be looking--and I 
believe it is 90 percent of the cases the first time, 95 
percent in subsequent reviews--at whether in each of these 
areas they see evidence of success. So that is going to be one 
of the pieces of information.
    If that information is different from the information in 
the State standard we have a means to resolve the difference. 
Let me just give you an example. On safety, one of the areas 
where we have good national data is re-abuse rates for children 
who have been abused or neglected. We have good national data, 
so we can say to a State, based on State performance, this 
counts as substantial conformity or it doesn't.
    And supposing we had a State that succeeded based on the 
statewide indicator, but we went into the cases in the on-site 
review and found fewer cases than the required percent that 
were successful. We are trying to put those different pieces of 
information together and so we have a discrepancy resolution 
step. What we have said is if the statewide information and 
what we get in an individual case review aren't the same, if we 
find that it is successful statewide but there is a problem in 
the individual place, then we would try to resolve that with 
the State and understand what was going on.
    So, for example, if a State said the reason only half of 
our cases were successful in this location is that what you 
found is a fluke; it is a particular supervisor or it is a 
specific problem, it is not consistent with the State 
information, then we would go to a bigger sample or other 
information.
    So I think that the fundamental answer is that as we went 
through the pilots, we concluded that for the intensive reviews 
we couldn't say that every case has to demonstrate to us that 
it operated consistent with safety. But we need a high standard 
and we have a protection against it being a fluke because we 
are putting it in the context of this other information.
    Is that helpful?
     Chairman Johnson of Connecticut. It is helpful, and I 
think one of the strengths of this set of regulations is that 
you are looking at multi-sources of information, and within 
each source you are looking at multi-factors.
    Ms. Golden. That is right.
     Chairman Johnson of Connecticut. I do worry about 95 
percent because it only leaves 5 percent for improvement and 
when you have a system like that, you tend to get--I mean, if 
it is a very good system, maybe it doesn't work out quite to 95 
percent and you are going to have a corrective action plan or 
you are going to have an improvement plan.
    What we hope will come out of these is even if you are 
found in substantial conformance, through this process the 
State will have a pretty clear indication of some of the areas 
in which it needs to improve. So I see this as a sort of 
continuous improvement model, and that is why I like the multi-
sources and all the things we are considering, and the more 
flexible penalty process and the technical assistance and all 
those things, because in this area there is no State agency--I 
don't care how perfect they are, how well-funded they are, how 
hard they train their employees. These are difficult kids, 
these are difficult situations, and in most instances things 
aren't going to work out perfectly.
    So it is a strength to look at so many sources of 
information and so many aspects within each data set or each 
oversight action. And I appreciate that you need some 
definition of substantial conformity, but I am troubled by the 
95 percent. I think particularly when you look at the number of 
States that have been under court order and the minimal impact 
that court orders have had on children and the maximum impact 
they have had on bureaucracy, we really have a system that has 
been under extraordinary pressure from every source and a lot 
of outsiders telling it exactly what to do.
    I think this is exactly the right approach not only for us 
to know what is happening, but also for us to be a good partner 
in developing better systems and better oversights and better 
outcomes for kids.
    Ms. Golden. The one other thing I would say about that 
specific percent is that that is about the judgment of 
reviewers as they look at cases about whether everything 
possible was done to achieve that outcome. Obviously, we 
received comments on both sides about whether people were 
worried reviewers would be too generous or would be too strict. 
And we have tried to work on that by building in some 
provisions for them to de-brief.
    But I think one thing that might reassure you somewhat is 
that we do have that process. We thought about what to do if 
the findings in the case review are not consistent with what we 
find in the statewide information, either direction--if we find 
that there is a problem in the intensive review that doesn't 
show up in the statewide information, or the other way around, 
we thought about whether we could just pick one of them. And we 
realized we couldn't, in good conscience, do that. So we have 
built in a way to bring the information together.
    So if your concern were to happen and the reviewers to 
judge in a very strict way and that standard were to be too 
tough and the State did well on the statewide assessment, there 
would be the opportunity to bring those pieces of information 
together and discuss them. So I am hoping that will be helpful.
     Chairman Johnson of Connecticut. Well, I will be 
interested in comments on this in the rest of the hearing.
    We also in recent legislation have required States to set 
up citizen review boards, and by June every State should have 
set up at least two citizen review boards. What role will they 
play in this whole process of oversight?
    Ms. Golden. Well, we got a very useful letter of comments 
from the National Association of Foster Care Review Boards, and 
there are a number of elements of the rule that I think will be 
helpful. We do require in the stakeholder interviews that 
administrative review boards are a required entity to be 
interviewed.
    We also have a number of other opportunities for input into 
the process, and we also responded. Their comments, as well as 
other people's comments, asked us to make sure there was more 
objectivity in the process and that, consistent with 
partnership, we also made sure that the process wasn't driven 
by people with a stake in it.
    So we have in the final rule increased out reliance on the 
national information, as well as what is available in the 
State. We have built in opportunities for stakeholder 
interviews, not only broad community stakeholders, but also 
foster families, for example, who would provide services in 
individual cases. So we have built in a number of opportunities 
for outside interaction, including particularly interviews with 
the review boards.
     Chairman Johnson of Connecticut. And do you think you have 
the resources to carry out these reviews?
    Ms. Golden. We are ready to go. We are right now out there 
talking with the States and making the choices which we expect 
to make this spring about the first cohort. And we are going to 
be moving to do the statewide assessment work with them, and we 
are then moving to the intensive on-site reviews.
    We have a lot of information that will let us plan the on-
site reviews. We know from the pilots that we will need about 
25 people in there for a week, a mix of Federal staff, State 
staff, and peer reviewers. I do think that one important thing 
for you to know is that we are expecting to do that, make the 
plans for this year consistent with this year's budget. For 
next year, our plans are consistent with the President's 
request for our administrative resources in fiscal year 2001.
    As an agency, ACF has been getting smaller in terms of our 
staffing over the last few years, and we have been seeking to 
stop that decline and be able to maintain our staffing. The 
President's request for fiscal year 2001 would stop our decline 
in staffing and enable us to have some modest increases for 
this and other priorities. So we would certainly value your 
support in being able to take those modest steps which will 
help us.
     Chairman Johnson of Connecticut. Have you begun to train 
your regional staff people?
    Ms. Golden. We have begun to train our regional staff 
people, and we also are, as I say, right now in the process 
where the regions are talking with the States so we can pick 
the 17 States we will start with. My long testimony offers the 
criteria that we are using, but we are not waiting. We are 
eager to move ahead because I think we share your views and 
those of Mr. Cardin that this is really an important step.
     Chairman Johnson of Connecticut. And just last on a 
slightly different subject, this Committee is responsible for 
working as part of the team to implement the Hague Treaty on 
Inter-Country Adoption. In the House version, HHS would oversee 
the accreditation process of adoption agencies so that they can 
facilitate Hague adoptions. In the Senate version, the State 
Department would oversee the accreditation process.
    Does the administration have a view on which approach 
should be taken to accreditation?
    Ms. Golden. Yes. The administration's position, and also 
the administration's proposal has been that HHS, because of our 
extensive experience in adoption and child welfare, should 
oversee the accreditation function specifically. We would carry 
it out through one or more private entities, but we would have 
to be responsible for the oversight and for the implementation. 
HHS and the State Department are in agreement on that. It is 
the administration position, so we would be eager to work with 
you on that issue.
     Chairman Johnson of Connecticut. Thank you.
    Mr. Cardin.
    Mr. Cardin. Thank you, Madam Chair.
    Secretary Golden, first of all, congratulations, good work.
    Ms. Golden. Thank you.
    Mr. Cardin. This is, I think, very good news for our 
children.
    Ms. Golden. Thank you.
    Mr. Cardin. You gave a very diplomatic answer to Mrs. 
Johnson on resources. It is our responsibility to really 
oversee and to at least explore what is necessary resources in 
order to implement this regulation. And I applaud you because I 
think this process is one that gets maximum input from all of 
the constituency groups and allows for changes in a system that 
will be much more sensitive to the needs of children.
    Ms. Golden. Yes.
    Mr. Cardin. But it is very labor-intense, and I am 
concerned that with a budget that has been declining and is, as 
you said, a modest increase whether you have the resources and 
personnel, training dollars, and so forth, in order to 
implement this plan in a timely way.
    And I would ask that you make available to us what is 
necessary in this regard so we can evaluate it and act as 
Congress should act in order to at least make these points 
known that if we are serious about a Federal role in overseeing 
safety of children who are in foster care that we have a budget 
that implements that.
    Ms. Golden. We will certainly do that. Let me say a little 
bit about what it is that gives me confidence, at the same time 
obviously that it is a major task. The first is that we are 
going into this with more knowledge than we normally have when 
we go into something new because we have carried out the pilot 
reviews. So we are able to plan around concrete numbers, around 
knowing how many people we will need on-site.
    It will be a partnership. There will be Federal reviewers, 
State reviewers, and peer experts whom we will be bringing to 
the table. And on the technical assistance side, we work 
primarily through outside experts, our national resource 
centers. And for that what we have to have is a core of staff, 
not a lot of staff, but a core who are effective and able to 
link States up with the technical assistance resources.
    So I feel very confident that we are moving forward on it 
and planning for it. I do really appreciate your commitment 
because I do think that the President's request for 2001 and 
the ability to stabilize our past decline and have that modest 
increase is really important to us.
    Mr. Cardin. Well, let me ask you another question. As you 
phase in this regulation, how will you decide what States will 
be your initial focus? Is that going to be at all influenced by 
your staff support, budget, or what standards will you be using 
to determine how the States line up? Are any States 
volunteering to come first?
    Ms. Golden. States are volunteering, as I am sure you will 
hear later in the testimony, and we are having to assess how 
the volunteers line up with the criteria. As my long testimony 
noted, there are three criteria we are using.
    First of all, States with child safety issues that we know 
about ought to go early. Second, States that have identified 
technical assistance needs ought to go early. And, third, 
States that we have been to recently through a pilot we ought 
to be able to do later, unless there is kind of an urgent need 
under one of the first two criteria. So those are the criteria 
we are using. We are now in conversations with the States and 
we expect to make decisions this spring. We haven't made them 
yet.
    Mr. Cardin. Well, again, we appreciate your keeping us 
informed as that process unfolds as to how those decisions are 
being made.
    In response to Mrs. Johnson's question, you indicated that 
as you do a sample, if you find a discrepancy, you may do a 
larger sample in order to confirm or to find out the 
information. In the next panel, there are going to be witnesses 
who question whether 30 to 50 cases is an adequate number to do 
a sample. And I guess the concern is that, OK, if you do the 30 
to 50 sample and you don't find anything unusual, you might 
move on when there still might be a problem in that State 
because the sample size was inadequate.
    How comfortable are you with this 30 to 50? It seems to me 
it is a relatively small number.
    Ms. Golden. What we do in the reviews, and the reason that 
I think we have got the right mix is we bring together 
information from different sources. And one of the things that 
I found very useful in reading the testimony of the next panel 
is that there are both concerns expressed about a small sample 
and concerns expressed about statewide data. And the reason we 
put them together is that neither works right alone, but when 
you put them together you get the best information that you 
have.
    We received comments about the sample size and we spent a 
lot of time considering those. What we concluded was that what 
we learned from the pilots is that the intensive on-site 
reviews tell you an enormous amount not only about outcomes for 
children, because there are some outcomes that we simply can't 
get through the statewide data consistently in all States, but 
they also tell you a great deal about why.
    So, for example, in the statewide indicators let's take the 
example of you found a safety problem from the statewide 
indicators. Repeat abuse or abuse of children in foster care 
was at a level that was a problem, judging by the national 
standards. What you could then do when you went into the 
intensive interviewing is find out why, get some ideas about is 
this because workers aren't trained sufficiently to understand 
how to interpret information or they are too swamped to respond 
to it or information gets lost between the cracks.
    So bringing together the statewide assessment which looks 
big-picture and the intensive interviews which really fill out 
the picture is going to give you the best picture of what is 
really the case.
    Mr. Cardin. I agree with that.
    Ms. Golden. Right.
    Mr. Cardin. The concern is whether 30 to 50 is enough to do 
the intense interviews, whether that is enough cases. I like 
the mix. I think the mix is----
    Ms. Golden. What we tried in our pilots essentially was to 
figure out whether you could do more and still have them be 
this intensive. And we basically concluded that you couldn't, 
that if you do more routinely, that is all the time, you get 
back to paper reviews. The reason we are saying 25 reviewers 
on-site for a week is that doing the intensive reviews and the 
stakeholder interviews, people are really doing two or three 
cases in that week. So I think what we have built in is that 
discrepancy process where if the two pieces don't fit together, 
we can seek additional information to try to sort it out.
    Mr. Cardin. Thank you. Thank you, Madam Chair.
     Chairman Johnson of Connecticut. I just wanted to pursue 
one other question. If you could comment on the data that we 
are getting from NCANDS and AFCARS, are all the States 
reporting now and is the data going to be adequate to this new 
outcomes approach?
    Ms. Golden. Yes. I think the results of several years of 
investment and work and the commitment that the Committee has 
shown and that we in the States have had is paying off. And 
what we have done and the regulation is use data from those 
sources and national data only in those areas where it is good 
enough, which is not every area, but there are a set of 
indicators primarily about safety and permanency where the data 
are good enough.
    Those are indicators like the one I was mentioning, repeat 
abuse, or abuse of children in foster care, and then in 
permanency indicators about how many children move to adoption 
and reunification within particular periods of time, months in 
foster care. So what we have done is select the areas where the 
data are good enough to use them.
    Now, I think that is essentially only for two of our seven 
outcomes. In the other areas, for example, are children's 
health needs being met while they are in foster care, there 
isn't national data available. So States will have to do the 
best they can with their State data in the statewide 
assessment, in the stakeholder interviews, and then we will 
have to look at that in-depth in the interviews.
    But I do think there have been enormous strides in the last 
several years. I would actually note that the work of the 
Committee and the administration in creating the adoption 
incentives program which put a great deal of importance for 
States on the quality of the adoption data under AFCARS--that 
has been a significant part of improvement, as well as just all 
of our shared commitment.
     Chairman Johnson of Connecticut. It wasn't very many years 
ago when we could not say how many kids were in foster care in 
America. And so when I look at your permanency outcome section 
and the national standards that you have established, the depth 
of the data is really startling. Can AFCARS really tell us and 
are we beginning to know statewide how many kids entered foster 
care in the last 12 months?
    The depth of data you are looking for about how long they 
have been in foster care, whether it is a second time in, 
whether there has been abuse, all of these different issues 
which are terribly important for us to know--do we have the 
capability of collecting that data through all the 50 States?
    Ms. Golden. Yes. I mean, it is a wonderful accomplishment.
     Chairman Johnson of Connecticut. It is really amazing.
    Ms. Golden. Just two notes. One is that in the regulation 
there is a chart showing the numbers that we use in order to 
come up with the standards. We are averaging over several years 
to make sure we get as many States as possible and have as good 
a base of information as possible.
    I do want to note that, again, the strategy that I talked 
to you about, that we are trying to bring information together 
from different sources, that is important here, too, because 
all of the sources have weaknesses. Intensive review of 
individual cases doesn't reach as many cases as you would want 
to. Statewide numbers from these national data sources have the 
big advantage of comprehensiveness, but as you note, we are in 
the early stages of using them.
    So that is why we built a strategy that brings all those 
pieces together and has the chance to reconcile because I do 
anticipate that, for example, on the percent of children 
adopted in less than 24 months, a State could say to us, well, 
even since those numbers we have made dramatic improvements, 
you are looking at something out of date, and so the fact that 
we don't meet that standard doesn't mean we are not in 
substantial conformity. And then we would have other 
information from the on-site reviews and the interviews that we 
could put together to come to a conclusion.
     Chairman Johnson of Connecticut. In other words, while we 
do have these data systems in place in terms of looking at all 
50 States, they are really very recently in place and it will 
take us a while to actually mature that data and be able to 
rely on it nationwide?
    Ms. Golden. Well, they are recently in place, but the ones 
we have selected are the ones where we think the data are good 
enough. We do hope that it will be possible to expand, and we 
have built the possibility here of expanding the use of these 
indicators as other portions of the data get stronger. But I 
really do think this is something where the Committee should 
take enormous credit because there is no way this was possible 
5 years ago.
     Chairman Johnson of Connecticut. It is really true. It was 
just simply incredible that a nation like ours with the 
technological sophistication, where you were seeing inventory 
management in grocery stores, could not tell you how many kids 
were in foster care.
    Ms. Golden. Absolutely.
     Chairman Johnson of Connecticut. And that is why I was 
really impressed with the sort of dimensions of the data that 
you are now looking for in that area or feeling able to rely 
on.
    Ms. Golden. Absolutely.
     Chairman Johnson of Connecticut. And we do look forward to 
keeping in touch with you about how the AFCARS system and the 
other data sets are maturing in their reliability and 
comprehensiveness. So thank you very much.
    Ms. Golden. Thank you.
     Chairman Johnson of Connecticut. It was really a pleasure 
to have your testimony. We look forward to working with you and 
we hope that you will have someone who will be able to stay and 
listen to the comments of others----
    Ms. Golden. Yes, we will do that.
    Chairman Johnson [continuing]. Because this is a final 
opportunity to have a public thought process about these. But I 
do want to join Ben Cardin in congratulating you, Secretary 
Golden, on your outstanding leadership of this process and your 
dedication to making bureaucracy effective and serving 
children.
    Ms. Golden. Thank you. May I introduce to you some of the 
people who did the actual work?
     Chairman Johnson of Connecticut. We would like to do that.
    Ms. Golden. Kathy McHugh; Jerry Milner; and Joe Semidei, 
who is the new Associate Commissioner for the Children's 
Bureau.
     Chairman Johnson of Connecticut. Well, we thank all of you 
very much for the time and effort you put in. It does show in 
your result, and you are fortunate to have such an articulate 
spokesman and ally.
    Ms. Golden. Thank you so much.
    [Questions submitted by Mr. Coyne, and Ms. Golden's 
responses, follow:]
    Mr. Coyne: Often, placing a foster home in provisional 
status is a good incentive for the foster parent to meet 
licensing requirements. Why do the new regulations require that 
states stop making payments to provisionally licensed foster 
homes?
    Ms. Golden: I would like to clarify that the requirement 
that foster family homes be licensed prior to the placement of 
children is not a new requirement, rather it is an existing 
statutory requirement that we have now incorporated into our 
regulations. The Social Security Act, at section 471 (a)(10), 
requires States to establish and maintain standards for foster 
family homes, and to apply the standards to any foster family 
home receiving funds under titles IV-B or IV-E. At section 472 
(c), the Act defines foster family homes as those foster family 
homes that are licensed by the State as meeting the standards 
established for such licensing. The Act does not provide for 
different levels of licensure, or less than full licensure, for 
foster homes, nor do we have the authority to do so through 
regulation. Furthermore, we do not believe that permitting 
Federal funds to support foster care services in homes that are 
not fully licensed would be consistent with the spirit of the 
Adoption and Safe Families Act (ASFA) which requires that the 
child's health and safety be paramount considerations in all 
decisions regarding placement and reunification. Although 
``provisional'' licensure is, at times, a temporary precursor 
to full licensure, it also can become an indefinite arrangement 
in which children are placed in homes that have not been shown 
to meet safety requirements, such as criminal background 
clearances. Assuring that vulnerable children who have been 
removed from their families due to abuse and neglect are placed 
in foster family homes that have met full licensure standards, 
including requirements related to child safety, is fundamental 
to assuring that child safety is our primary concern.
    Mr. Coyne: The new regulations require court determination 
of reasonable efforts by the state to prevent removal of the 
child from a home. This will swell the backlogs in an already 
overburdened court system. S. 708, The Strengthening Abuse and 
Neglect Courts Act of 1999 has been introduced to reduce 
backlogs in such courts. Can you describe how this law would 
help?
    Ms. Golden: As you know, the courts play a critical role in 
ensuring the safety and permanency of children. The requirement 
for a judicial determination of reasonable efforts to prevent 
removal of a child from the home is actually not a new 
requirement but a longstanding and critical protection for 
children. This requirement, found at section 471 (a)(15)(B)(i) 
of the Social Security Act, as well as the requirement to make 
reasonable efforts to reunify children who are in foster care 
with their parents, was made through the Adoption Assistance 
and Child Welfare Act of 1980, and has been a part of Federal 
policy and State child welfare practice for the past twenty 
years. The Adoption and Safe Families Act (ASFA) amended 
section 471, at section 471 (a)(15)(c), to add the new 
requirement for States to make reasonable efforts to make and 
finalize a child's permanency plan. The new final rule puts 
into regulation both the longstanding requirements for 
reasonable efforts determinations, and the new requirement 
contained in the ASFA.
    With respect to the legislation you mentioned, the 
Strengthening Abuse and Neglect Courts Act of 1999, my 
understanding is that the bill includes a number of provisions 
to authorize additional grant programs in both the Department 
of Justice and the Department of Health and Human Services to 
assist courts in meeting their responsibilities for overseeing 
cases of child abuse and neglect and foster care. For instance, 
one provision would authorize the Secretary of HHS to award 15-
20 grants, totaling $10 million, to State and local child abuse 
and neglect courts to:
    (1) promote the permanency goals of ASFA; and (2) enable 
these courts to reduce their existing backlog of pending cases, 
especially with regard to termination of parental rights cases.
      

                                

     Chairman Johnson of Connecticut. And now the panel, if 
they would all come forward, Jerry Foxhoven, President of the 
National Association of Foster Care Reviewers; Ramona Foley, 
the Administrator of Oregon Services to Children and Families; 
Sue Hamilton, the Director of the Legal Division of the 
Connecticut Department of Children and Families, who has been 
so helpful to me and I appreciate it; and Mark Courtney, an 
Assistant Professor at the School of Social Work at the 
University of Wisconsin, in Madison, who has been a very great 
help to this Committee.
    Mr. Foxhoven.

STATEMENT OF JERRY R. FOXHOVEN, PRESIDENT, NATIONAL ASSOCIATION 
           OF FOSTER CARE REVIEWERS, ATLANTA, GEORGIA

    Mr. Foxhoven. Thank you, Madam Chair. Thank you for 
inviting me to testify in front of you and your Subcommittee 
about this important matter. And I also want to commend HHS for 
the rules that they have promulgated. You are probably going to 
hear that a lot today. I know they have done a lot of work and 
this is a great first step, and I think you will know from my 
written testimony that we consider it to be a good first step, 
but it is not the final step.
    The three issues that I wanted specifically to talk to the 
Subcommittee about are, one, the independence issue. We must 
recognize that some of the information that HHS will get in 
these kinds of reviews will not be of an independent nature. 
Obviously, the National Association of Foster Care Reviewers is 
a child advocacy organization, not a trade association, but one 
that advocates that each child should have an independent 
review in his case to make sure he doesn't fall through the 
cracks.
    While there is some input from foster care review boards, 
and so forth, a lot of States don't have them and most States 
don't have them statewide. So we want to particularly ask this 
Subcommittee to consider the importance of at some point having 
some form of independent review for every child.
    We don't expect that each child be like each chicken in the 
country and have a Federal inspector look over their shoulder. 
But if we can do some kind of looking at the children from an 
independent basis, it will provide some kind of safeguard to 
each child to provide them the safety that the Federal law 
guarantees them.
    One good example that I can give you, for instance, is that 
in my home State of Iowa the legislature passed a statute 
requiring that each caseworker meet with each child at least 
once every 6 months face to face. And as that was beginning to 
happen, they tried to move it up to once every 3 months, and in 
a county which is the largest county in Iowa, Polk County, the 
largest district in Iowa, we don't have citizen review there or 
independent review there.
    We had it in a neighboring county, and so when we did a 
review of a case in a neighboring county, we asked the review 
members who were independently reviewing, where do you meet, is 
there a big enough space for the meeting? Well, they weren't. 
They were what the reviewers now call drive-bys, and that was 
that they would drive by the office by an open window and the 
worker would wave, see the child, and that met the need. The 
paperwork would never have revealed that, and even the State 
director didn't realize that that was county-wide. Independent 
review is extremely important and can provide the safety net 
for every one of the children.
    The second concern that we had was the accountability 
issue. We do have some concerns about the number of cases 
reviewed, but we recognize again that the Federal Government 
can't review a broad base of cases. It would just take too much 
time to do a good review. The solution for that, again, is to 
make sure that every child has some kind of independent review, 
somebody looking at each child's case to make sure that they 
are provided the permanency that they are being promised.
    The last is the accountability versus improvement issue. We 
do have some concerns, or at least I personally have some 
concerns about the length of time that States are given for the 
improvement. We know we want flexibility and we know we want 
balance, but also the Federal Government has come to parents 
who have had lifetimes of poor experiences, bad traits, and bad 
parenting skills, and told them improve those in 12 months 
because our kids just aren't willing to wait for you any 
longer.
    And we commend you for saying that, but we also wonder why 
on the same hand we can say to States, but if you are doing the 
same thing for kids and aren't doing what is necessary to move 
them in the direction, we will give you 3 to 5 years to get 
there. We are not saying that immediately, again, that has to 
be, but we should rethink the proposition, and you should 
rethink the proposition of saying to States that if you are 
substantially out of compliance, you have a great deal of time 
to get back in. You can work on a plan to get back in in 3 to 5 
years. We don't give parents that kind of time.
    And, again, whether the failure is on behalf of the State 
or the failure is on behalf of the parents is pretty well 
irrelevant. The kids aren't getting the safety and permanency 
that they need, and we ask that they be granted that just as 
soon as possible.
    Those are the three issues that we have the biggest 
concerns for. The rules, I think, for the most part do provide 
a very good step, a very good start for them. We do believe 
that every State with some form of independent review would do 
much better in every individual case, and then the HHS when 
they come around and do their reviews could have information 
that they know is accurate because it comes from an independent 
source that looks at every case of every child and compares 
data and accumulates it both for the Federal and the State to 
develop an improvement plan with recommendations.
    If you have any questions, I would be glad to answer them.
    [The prepared statement follows:]

Statement of Jerry R. Foxhoven, President, National Association of 
Foster Care Reviewers, Altanta, Georgia

    Madam Chair and members of the Subcommittee of Human 
Resources, I am honored to have been asked to appear before you 
today to testify about the New Federal System for Monitoring 
and Enforcing the Implementation by States of Federal Child 
Protection Laws.
    My name is Jerry R. Foxhoven, and I am the President of the 
National Association of Foster Care Reviewers. I am a 
volunteer, citizen reviewer, who has volunteered my time for 
over a decade in working with Citizen Reviewers in Iowa and on 
a national basis who review individual cases of children in the 
foster care system. The National Association of Foster Care 
Reviewers is an advocacy organization for children in foster 
care. It is an association of people and organizations who 
believe that quality independent review can have a tremendous, 
positive impact on the outcomes of children in foster care. 
Unlike some other national associations, we are not a trade 
association for review program administrators.
    The final rules developed by Health and Human Services 
governing States and the implementation of the recent new laws 
in child welfare specifically including the Adoption and Safe 
Families Act and the Inter-Ethnic Adoption Provisions are a 
great first step. The rules have acknowledged the original 
goals of Public Law 96-272 to be safety, permanency, and child 
and family wellbeing. Furthermore, these rules acknowledge that 
these are the same goals for the Adoption and Safe Families Act 
of 1997. Most importantly, the rules have changed the focus of 
state program reviews. Rather than simply being a check for the 
accuracy and completeness of case file documentation, the focus 
is now upon examining the results that child and family 
services programs achieve.
    The National Association of Foster Care Reviewers will be 
submitting written testimony as well which will expand upon my 
remarks today, and deal with specific provisions of the final 
rules. As I have just stated, these rules are a tremendous 
first step because of their stress of the goals to be achieved 
(safety, permanency and wellbeing for children and families) as 
well as a shift from measuring documentation to measuring 
outcomes and results.
    Those rules acknowledge that the flexibility that is 
inherent in an outcomes-based approach must be properly 
balanced with sufficient federal oversight and state 
accountability. The National Association of Foster Care 
Reviewers is an accountability organization. We believe that 
all states, in order to receive the federal funding that they 
do, must be willing to hold themselves accountable for 
producing results. These final rules take a first step in that 
direction.
    We believe that there are several inadequacies under these 
final rules that require second and perhaps third steps. First, 
the accountability reviews included in the rules are not 
independent. The conductors or convenors of the review process 
have a vested interest in the outcome of the reviews. We 
believe that this is contrary to the best interest of children 
and to the intent of Congress. Our Association has long 
advocated for the importance of independence in review of 
children and care. We have advocated for the growth of 
independent review, whether administrative or citizen in 
nature, for all children in foster care. We have developed, 
through a joint project with the Children's Bureau, and with 
federal funds, a set of guidelines setting forth a best 
practices guide for independent review of children in foster 
care. Along with that we have developed a curriculum for 
training of reviewers and even a curriculum for the training of 
the trainers of reviewers. We believe that independent review 
can more effectively allow the federal government to evaluate 
outcomes for children.
    Secondly, we believe that the rules do not provide 
sufficient accountability of children and resources. Under the 
rules, only a sampling of cases (50-150) every three to five 
years is performed. Health and Human Services admits that this 
is a costly proposition to review a substantial number of 
cases. Our association believes that review of virtually every 
case in foster care is not only necessary for the federal 
government to review compliance, but is also important to 
assure that all children are guaranteed the safety, permanency, 
and wellbeing promised by the federal laws.
    Finally, we believe the rules fail to balance 
accountability with improvement. Of course, improvement is an 
important goal. However, the rules allow improvement to 
dominate over accountability. If a review shows a substantial 
failure to comply with the mandates of federal law, these rules 
may require a child to wait anywhere from one to five more 
years to see an improvement. The law holds parents accountable 
and requires them to remedy problems within twelve (12) months 
or risk losing their children. It is hard to understand why 
states should not be held accountable at the same level. Just 
as children should not have to wait beyond twelve months for 
parents to ``get their act together'' the same children should 
not have to wait any longer for states to ``get their act 
together''.
    A good second step to overcome these inadequacies would be 
to clarify the requirements for existing foster care review 
programs. Good independent foster care review programs have a 
two-tiered structure. A state governing board, which is 
independent and conducts oversight of the entire review 
program, collects and disseminates data which was independently 
gathered and makes recommendations for changes. The second tier 
is the mechanism to review the individual cases of children in 
foster care (whether administrative, citizen, or a 
combination). The second tier allows individual review of all 
children in foster care.
    On behalf of all the children in out of home placement in 
the United States, we commend you and the Department of Health 
and Human Services for this important first step in achieving 
safety, permanency and wellbeing for children. We also 
encourage you to consider taking the second and subsequent 
steps necessary to provide the independence necessary to assure 
compliance, accountability, and success in outcomes.
    Thank you again or the opportunity for the National 
Association of Foster Care Reviewers to provide input to you on 
the Rules for Monitoring and Enforcing the Implementation by 
States of the Federal Child Protection Laws.
      

                                

     Chairman Johnson of Connecticut. Thank you very much.
    Ms. Foley.

  STATEMENT OF RAMONA L. FOLEY, ADMINISTRATOR, DEPARTMENT OF 
   HUMAN SERVICES, STATE OFFICE FOR SERVICES TO CHILDREN AND 
                    FAMILIES, SALEM, OREGON

    Ms. Foley. Thank you. I appreciate the opportunity of being 
invited here today to talk about the process. I am currently 
Administrator for Child Welfare Services for the State of 
Oregon. I have been there since August. Prior to that, I worked 
in South Carolina, where I was Child Welfare Director for the 
past 5 years, and South Carolina was one of the pilot States.
    My confidence in this new system of review led us to 
volunteer to be a State to go through this process this year, 
starting in Oregon hopefully next month. I am glad to hear what 
Assistant Secretary Golden said today about looking also at 
States who weren't high performers in this first round. That 
was going to be one of my recommendations, and the good thing 
about volunteering is my peers will not know if we are going 
first because we volunteered or because we have poor outcomes.
    The strengths of the new system that I would highlight--the 
focus on outcomes, I think, is excellent. Having been a 
survivor of the old 427 reviews, we all know what it was like 
to count how many times something happened. I commend HHS for 
adding the ASFA, the Adoption and Safe Families Act, 
performance reports as the major component. To not do that I 
think would have been a real shame not to take advantage of 
that.
    I commend HHS for the recognition that some safeguards 
cannot wait for a 2-year corrective action plan. I am one of 
the child welfare folks that feels strongest about that. If you 
have a State that is not performing in terms of safety, if you 
have a State that is not providing due process in terms of 
cases going to court, that cannot wait 2 years. That has to 
have a quicker corrective action plan, and I think the 
revisions in the regulations allow for that.
    I also like the idea of permission of the Secretary to 
extend to year three, that you can't just not take seriously 
what your corrective action plan or your program improvement 
plan is going to be. You must get the Secretary's permission to 
extend that even in the best of circumstances beyond the 2 
years.
    Some of the challenges I see that we are still going to be 
faced with here. The priority is now being given to the 
Adoption and Safe Families Act performance reports. These 
reports are coming out to our Governors and to our child 
welfare directors. The child welfare agencies saw the previews 
of these in September, and in Oregon, for example, we went 
ahead and started trying replicating this process for each of 
our 39 branches. So we will already have some sense of what 
kinds of corrective action or program improvements we need 
branch by branch in our State.
    A second challenge, I think, will be, as we have talked 
about earlier, the 30 to 50 cases to be reviewed. We will be 
looking now at potentially a universe of a State's cases in 
foster care, child protection and adoption, and trying to 
somehow relate the universe to what in Oregon would be \1/2\ of 
one percent of our cases read, if we read only 50 cases.
    I agree with what was found in the pilots that there has 
been little discrepancy between statewide data and the findings 
from the small sample. I don't have a solution to that. It is 
awful to criticize something and not have the solution. I don't 
know what the solution is, but I do think 50 cases being read 
may not alter tremendously what you are already finding by the 
time you look at the performance measures and the statewide 
assessment for a State. High performers may still be high 
performers; low performers probably still need a lot of help 
quickly.
    How substantial compliance will be determined is along that 
same line. I think that is going to be a challenge. We have 
heard some of that discussed here today. I think that I am 
pleased to hear Olivia Golden say that there will be an effort 
to look first at how States are performing before they decide 
conclusively where they will go for the early review process in 
this country.
    The resources are an issue. I was also pleased to hear the 
testimony that there is a serious look at what the resource 
issue will be for the Federal officials. As a State, we will be 
investing a lot of resources in this process and we would like 
to make sure that our Federal partners are there with us and 
are going to be accessible as we go through a process that is 
fairly extensive. I think the training of our Federal officials 
who come on-site will be critical, and what the resource 
centers have to offer.
    Again, I commend HHS for the last 5 years of effort. I 
think it is never easy to put in place a system that pleases 
everyone, and certainly this probably will not please everyone, 
but I think it is certainly an advancement for States. And we 
are anxious to work with HHS in regard to the three things that 
I think have happened over the past 4 years at the same time, 
that being the data we now have from AFCARS and NCANDS, how to 
blend that into this process; the ASFA and its performance 
reports that we are now going to be receiving on a yearly 
basis.
    And then, third, as part of reform some States have 
developed extensive quality assurance systems, and I think we 
can take advantage of that. Some of those systems currently are 
mandated by State law; some require extensive interviews with 
stakeholders. And I think when the statewide assessment is done 
in each State, there is an opportunity there to take advantage 
of that. So we look forward to going through the review process 
and seeing how these things complement each other, as opposed 
to contradict each other.
    Thank you very much.
    [The prepared statement follows:]

Statement of Ramona L. Foley, Administrator, Department of Human 
Services, State Office for Services to Children and Families, Salem, 
Oregon

    Madam Chairman and Members of the Subcommittee on Human 
Resources of the Committee on Ways and Means.
    My name is Ramona Foley and I appreciate the invitation to 
appear before you and to offer testimony on the new federal 
child protection review system. I appear on behalf of the 
Oregon Department of Human Services where I serve as the 
Administrator of the State Office for Services to Children and 
Families. I have been in my current position since August, 
1999; however, I have more than thirty years of experience in 
public social services. For the five years prior to my 
appointment in Oregon, I was the Director of Family 
Preservation and Child Welfare Services for the South Carolina 
Department of Social Services. My knowledge of the new federal 
review process dates back to 1996 when South Carolina 
volunteered to serve as one of the pilot sites for the review. 
Subsequently, I have had the opportunity to participate in many 
discussions of the review process, such discussions having been 
made possible by Health and Human Services (HHS) and by the 
American Public Human Services Association (APHSA). And while I 
am not representing APHSA or its affiliate, the National 
Association of Public Child Welfare Administrators (NAPCWA), I 
should mention that I am the President-elect of NAPCWA and, 
therefore, enjoy the opportunity of an ongoing dialogue with my 
colleagues around the country.
    Finally, in the way of introduction, I consider myself an 
advocate for children and their families and am a strong 
proponent of accountability in terms of improved outcomes 
within our programs and in terms of expenditures of the federal 
and state dollars for which we are responsible.
    In regards to the final regulations, I want to commend HHS 
for continuing in its efforts to emphasize outcomes over 
process, to emphasize the desire for program improvement over 
immediate sanctions, and for its recognition that program 
improvement does not happen overnight, but in fact, takes time 
and commitment on the part of the public child and family 
services system, as well as all the other key stakeholders 
within a state. These are undergirding principles, which I 
believe are critical in balancing the desire for improved 
outcomes with the desire for improved fiscal accountability.
    The requirement for a statewide assessment is a good 
example of the improvements over the previous process-driven 
427 reviews. While states can perform such assessments without 
a mandate, it is often difficult to justify the time and effort 
it takes to engage in such a comprehensive effort. When we 
piloted the proposed HHS review process in South Carolina, we 
found that this part of the review was the most beneficial in 
terms of our staff and of our stakeholders identifying the 
strengths and the challenges within the state's system. In 
fact, my confidence in this comprehensive approach has led my 
state to agree to be the first state in Region X to undergo the 
new child and family services review. The review is scheduled 
to begin next month and as a new state administrator, I 
especially welcome the opportunity to assess how we are doing 
as a state in providing safety and permanency for our children.
    In addition to the statewide assessment, there are two 
revisions, which are described in the final regulations and on 
which I wanted to commend HHS. The first of these revisions is 
its effort to make the new Adoption and Safe Families Act 
(ASFA) state performance reports a key component of the 
statewide assessment. The child welfare outcomes and measures 
used in the performance reports were developed in a different 
context than that of the review process, but as many commenters 
pointed out, it is essential that a state focus on a set of 
outcomes and that the outcomes not contradict each other. While 
the outcomes associated with ASFA and those articulated in the 
review process are not identical, they are compatible within 
the broader goals of safety, permanency and well-being.
    Another revision in the final regulations, which I believe 
is an improvement to the draft regulations, relates to the 
duration of program improvement plans. The new language which 
requires a state's improvement in less than two years ``when 
there are particularly egregious areas of nonconformity 
impacting child safety'' raises the level of a state's 
accountability to a higher standard and thus is consistent with 
our desire to have safety for all children known to public 
child welfare systems. To this end, I also support the 
additional requirement that the Secretary must approve any one-
year extension that is requested beyond the two years allowed 
for program improvement. I believe that by elevating such a 
request to the Secretary's level, there is a strong and clear 
message to state officials that successful compliance with 
program improvement plans is a top priority and must be treated 
as such. And, the message is further enhanced by new language 
in which penalties begin if a state fails to participate in 
program improvement plans or fails to show improvement in the 
plan that has been implemented.
    Having mentioned several of the most significant 
improvements made in the final regulations, I want to now focus 
on those areas which I think will continue to pose the greatest 
challenges in the new review process. The first challenge is 
giving priority to the new performance reports to the states' 
governors and agency heads. While I welcome the compatibility 
of these reports with the review outcomes, I believe states 
will be responsive to this initial set of performance reports 
and will move immediately to make needed program improvements. 
They will not want to wait for technical assistance from HHS 
pending the completion of the full child and family service 
review. In fact, last September states began the review of the 
preliminary data for the upcoming performance reports. In 
Oregon, for example, we are replicating the statewide 
performance reports in a way that will yield individual branch 
reports for each of our 39 branches. We will then be able to 
set priorities and implement action plans that address not only 
a specific outcome, but which also address the priority that 
the outcome might have for a specific local branch and its 
local community. And while this process will no doubt enhance 
our upcoming federal review, in some ways it will mean that our 
potential need for technical assistance cannot be delayed until 
the completion of our federal review in 2001.
    A second challenge we continue to face in the final 
regulations is the case review process required in the on-site 
review. As the case readings and interviews are still limited 
to 30-50 cases (or a maximum of 150), I remain concerned that 
the findings represent anecdotal information in the best of 
circumstances and a distorted view of a state's casework 
practice in the worst of circumstances. With the advent of 
improved data from the National Child Abuse and Neglect Data 
System (NCANDS) and the Adoption and Foster Care Analysis and 
Reporting System (AFCARS) and with the performance outcomes 
generated by ASFA, the 30-50 case review would seem to be even 
less informative than it was in the pilot review in 1996. In 
fact, among the pilots, it was noted by HHS that there was 
``little discrepancy between the statewide data and the 
findings from the small sample.'' So, I am left with the 
question as to the value of the small sample given the past 
four years of improvements in our statewide data systems. Some 
argument could be made that the quality of service delivery can 
only be assessed by reviewing case files and interviewing 
stakeholders. But many states have now developed their own 
extensive quality assurance systems, some of which provide 
annual, statistically valid case reviews for each of their 
local offices or others which incorporate extensive interviews 
with community stakeholders and yield recommendations for 
statewide system improvements.
    Related to the case records review, but a different 
challenge, is that of the criteria for determining substantial 
compliance. I believe it will be difficult to reconcile the 
performance report indicators for substantial compliance with 
the indicators for substantial compliance based on the on-site 
case reviews. To some extent, this will be comparing the 
universe of the child welfare services population at a 75% 
benchmark with a statistically insignificant review of cases at 
the 90-95% benchmark. For a state like Oregon, this is the 
comparison of how well we are meeting our federal performance 
outcomes for all of our child welfare cases to how well we are 
meeting a similar, though not identical, set of outcomes for 
\1/2\ of 1% of our child welfare cases. (The \1/2\ of 1% is the 
result of comparing 10,000 open cases to 50 cases to be read in 
the sample.) And this comparison is further complicated as we 
move to the third tier of the child and family service review, 
that of determining from individual stakeholders how well we 
are complying with the processes of the seven systemic factors. 
While each of these levels of review may yield valuable 
information, it is also likely that for high performance 
systems, these tiers of reviews will continue to indicate 
substantial compliance; and that for those systems which are 
struggling to meet substantial compliance in their state's 
performance measures, the successive tiers of review will 
likewise validate their failure to substantially comply.
    Still another challenge that warrants mentioning, but for 
which there is not an obvious solution, is the issue of 
resources. As planned by HHS, all states should have an initial 
review within the next four years. Assuming that even one third 
of the states will need aggressive program improvement plans, 
one must ponder where the Federal resources will come from for 
the on-site reviews and for the technical assistance that 
states may request to successfully complete their plans. As a 
state official, I could take the position that this is not my 
problem, but rather is one that belongs to the Administration 
on Children and Families (ACF). However, as a state preparing 
to go into the new review process, Oregon will be investing 
significant time and energy in order to produce a thorough and 
high quality statewide assessment. Therefore, we have a vested 
interest in knowing that our federal partners will be 
accessible to us throughout this review and that the federal 
team members who will be a part of our joint team will be 
individuals whose knowledge, experience and training related to 
child and family services will be evident to our own staff as 
well as to our community partners. I respect ACF's position 
that the qualifications of the federal reviewers ``is an 
important matter for internal ACF consideration.'' However, it 
must be included as a challenge in that ACF's ability to have 
its staff travel to national meetings or to participate in 
regional training events has been greatly curtailed in the past 
due to budget restraints. The result of this is that federal 
team members who have not had the advantage of staying current 
with the field will struggle if called upon to address complex 
issues such as those related to child safety. (For example, one 
of the issues to be addressed in the on-site reviews relates to 
the nature of reports of maltreatment. Given the variation in 
state laws in terms of reporting, this measurement of child 
safety could pose difficulty for any reviewer who is not 
familiar with the state's statutes and accompanying policies 
and their application to practice.)
    I should also point out that some of the challenges I have 
described may in fact be clarified in the forthcoming HHS CFSR 
procedures manual. The details of the exact review procedures 
and efforts towards ``objective'' review are subjects of this 
manual and so I, along with my colleagues in other states who 
will be initiating the review process next month, look forward 
to reviewing the manual and the review instruments that will be 
used in the on-site review.
    When HHS conveys in the rule the ``sense of urgency about 
the need to implement needed improvements,'' I find this sense 
of urgency to be totally consistent with the direction in which 
the states themselves wish to proceed and that Congress has 
given us with ASFA. And if the states' performance reports 
yield outcomes which indicate that this ``sense of urgency'' 
appears to be greater for some states than for others, I would 
encourage HHS to not only consider this, but to exercise 
flexibility to adjust its own schedule of states to be reviewed 
this year in order to ensure that the states with the greatest 
need for help are indeed the ones to which the most attention 
can be directed first. After all, if the safety and permanency 
of children are values to which we all adhere, none of us would 
want to deprive a sister state of having access to resources in 
year one rather than having to wait for year four.
    I want to acknowledge the enormous effort that HHS has 
exerted to provide the states with a review system that is 
years ahead of the old 427 audits. I find it helpful, too, to 
keep in mind that while HHS has spent the past several years 
developing a system that can both inform the states and the 
public, the reality is that other positive things have evolved 
as well: our NCANDS and AFCARS data are providing us with a 
wealth of information, far beyond what most of us thought would 
be possible in child welfare ten years ago; ASFA and its focus 
on outcomes and dissemination of performance reports will 
inform us and will shape our program improvement plans in an 
unprecedented way; and our own state quality assurance systems 
continue to bring our community partners to the table and thus 
open up our child and family services systems to the public's 
scrutiny and input.
    To take advantage of these three current opportunities, I 
hope that HHS will continue in its efforts to gain information 
from the review process and to be willing to make adjustments 
as we all collectively find better ways of ensuring quality in 
our child and family service systems. It is certainly too soon 
to judge the new review process, but I commend HHS for 
partnering with the states in this critical endeavor.
                                                 Thank you.
      

                                

     Chairman Johnson of Connecticut. Thank you.
    Ms. Hamilton.

    STATEMENT OF SUSAN HAMILTON, DIRECTOR, LEGAL DIVISION, 
  CONNECTICUT DEPARTMENT OF CHILDREN AND FAMILIES, HARTFORD, 
                          CONNECTICUT

    Ms. Hamilton. Good morning, Madam Chairman, Representative 
Cardin. My name is Susan Hamilton and I am Director of the 
Legal Division at the Connecticut Department of Children and 
Families. I am here today on behalf of Commissioner Kristine 
Ragaglia and I would like to start by thanking you for giving 
us an opportunity to come today to comment on this topic. And I 
would also like to extend some sincere appreciation from the 
State of Connecticut and Commissioner Ragaglia personally for 
your commitment toward children's issues and dedication toward 
this topic.
    As you may be aware, Connecticut was one of the pilot 
States that participated in the early review process back in 
1996. That gave us an opportunity to join with ACF in reviewing 
our child welfare system. The review process at that time 
actually incorporated many of the components that are now part 
of the final review that is outlined in the regulations. Again, 
the focus at that time was on safety, permanency, and the child 
and family well-being outcomes.
    The review did, in fact, provide us with a quantitative and 
a qualitative assessment of our statewide child welfare system 
and was effectively able to identify not only areas in which we 
were achieving the desired outcomes, but also areas in which we 
needed to work on some improvements. And I think it is 
important to note that as a result of that review, we did, in 
fact, make some significant program and practice changes that 
helped to promote those outcomes and objectives.
    For example, in the area of our administrative case 
reviews, we decided to incorporate many of the measures and 
outcomes that were included in the on-site case review 
instrument into our case review process, and that has proved to 
be an effective way of measuring on a case-by-case basis 
success at achieving those outcomes.
    I think overall the feedback from the review that was done 
during the pilot was positive. I think there is clear support 
in Connecticut for focusing on results and outcomes, as opposed 
to the prior process of utilizing more of a checklist and more 
of a focus on compliance with mere procedural requirements.
    I think we certainly appreciated the opportunity at that 
time, and now certainly in connection with the new regulations, 
to work in partnership with ACF and doing a team approach to 
the review process, and we applauded at that time, and in the 
reviews that will be forth coming, the involvement of all the 
stakeholders in interviews and case reviews, and the 
combination of looking at those issues as well as compliance 
with the statewide data indicators.
    I would like to talk briefly on some of the key components 
of the review process. I did discuss at length in my written 
testimony some of the comments Connecticut has with regard to 
the outcomes and the criteria that will be measured. I think 
that the process will, again, facilitate a more accurate 
determination of substantial conformity. We certainly support 
the use of the two phases in the process, the statewide 
assessment as well as the on-site review.
    I would also applaud HHS and the decision to incorporate 
the ASFA outcome measures into the outcome measures that will 
be used as part of the national standards. In Connecticut, as 
you may know, we have developed a rather comprehensive 
strategic planning process, and in our efforts to try to 
standardize what we are looking at on a statewide basis, it is 
certainly helpful to us that some of the Federal requirements 
are being standardized as well.
    In connection with the on-site review process, again I 
think one of the strengths that we wanted to commend HHS for 
including is the comprehensive component of looking at the 
information from families, children, community providers, 
foster parents, and key stakeholders in the process as part of 
the review of substantial conformity.
    I do share, and Connecticut does share, some of the 
concerns that were raised earlier with respect to the 
percentage of cases that need to be found in compliance in 
order to achieve that level of substantial conformity, although 
I can appreciate the importance of having a high standard. And 
I think that it makes some sense to have that high standard, 
given that there is a discrepancy resolution process in place 
in the regulations and that there is an opportunity for States 
to develop program improvement plans before financial penalties 
are imposed.
    In terms of the program improvement plans, I think I share 
Ramona Foley's concerns with respect to the timeframes. I think 
it is important that the regulations do clarify that when there 
are egregious areas of non-conformity that specifically relate 
to child safety that those must be remedied in under the 2-year 
timeframe, and that we do need to keep in mind the complexity 
and the seriousness of the remedies that will be required to 
address each area of non-conformity in identifying the length 
of time that should be permissible to effectuate the plan.
    One of the concerns that I think DCF may share with some of 
the other States who are operating under consent decrees is the 
possibility for conflict between the consent decree mandates 
and the program improvement plans.
    I understand that the regulations do not require us to 
include consent decree mandates into the program improvement 
plans, but I think it might be helpful to allow States to 
include the relevant consent decree mandates into the program 
improvement plans and then allow those program improvement 
plans to supersede the individual requirements of the consent 
decrees. That may require additional statutory and regulatory 
changes which the State of Connecticut would certainly support.
    In closing, on behalf of Commissioner Ragaglia, again I 
would like to express our thanks for giving us this opportunity 
to come today. I hope the comments are helpful, and I do 
believe overall that the regulations will provide a more 
effective way of measuring States' compliance with the Federal 
requirements and will ultimately result in improved services 
and outcomes for children and families.
    Thank you.
    [The prepared statement follows:]

Statement of Susan Hamilton, Director, Legal Division, Connecticut 
Department of Children and Families, Hartford, Connecticut

    Good morning Representative Johnson, Representative 
English, Representative Cardin and members of the Subcommittee 
on Human Resources. My name is Susan Hamilton, and I am 
Director of the Legal Division at the Connecticut Department of 
Children and Families (DCF). I am here today on behalf of 
Kristine D. Ragaglia, Esq., Commissioner of DCF, to comment on 
the final regulations published in the Federal Register on 
January 25, 2000 pertaining to the new integrated child 
protection review system for monitoring and enforcing States' 
implementation of federal child welfare laws.
    As you may be aware, Connecticut participated in a pilot of 
this new child welfare review process in 1996 which allowed the 
Administration for Children and Families (ACF) to join with the 
State in assessing the State's child welfare system. The review 
included many of the components of the final child and family 
services reviews outlined in the new regulations and focused on 
the outcomes of safety, permanency and child and family well-
being. This review process provided both a qualitative and 
quantitative assessment of our child welfare system and 
identified areas where the State was achieving the desired 
outcomes as well as areas in need of improvement.
    Based on the results of this review, DCF was able to 
develop and implement both policy and practice changes that 
promoted the above goals of safety, permanency and child and 
family well-being. For example, DCF examined and improved the 
quality of its administrative case review (ACR) process and 
incorporated some of the measurements and outcomes from the on-
site case review instrument into the ACR process. In addition, 
DCF increased and improved the training provided to field 
staff, supervisors and managers in areas including, but not 
limited to, risk assessment, comprehensive family assessments, 
child welfare supervision, and documentation. DCF also 
developed and implemented a marketing campaign designed to 
increase the number of available licensed foster homes.
    The overall feedback received following the pilot review 
was favorable, and there is clear support in Connecticut for 
focusing on results and outcomes during the review process as 
opposed to mere compliance with procedural requirements. In 
addition, DCF appreciated the opportunity to work in 
partnership with ACF during the review process and applauded 
the involvement of all stakeholders, including parents, 
children and community providers, in the review process.
    I would now like to comment specifically on some of the key 
components of the new child and family services reviews:

                         Timetable for Reviews

                             (Sec. 1355.32)

    As specified in Sec. 1355.32(a), a complete initial review 
must be conducted within 4 years after the regulation becomes 
effective (3/27/00). This should give States adequate time to 
become familiar with the new review process. In addition, the 
remaining timetables identified with respect to States which 
are found to be operating in substantial conformity, as well as 
those States found not to be operating in substantial 
conformity, seem appropriate and should ensure that there is 
adequate review of each State's child welfare system.

              Outcomes and Criteria/Procedures for Reviews

                             (Sec. 1355.33)

    As noted above, DCF supports the partnership between State 
and Federal reviewers who comprise the review teams as well as 
the comprehensive, outcome-focused nature of the reviews as 
outlined in the new regulations. More specifically, the three 
outcomes for children and families that have been established 
as indicators of States' conformity with federal law (i.e. 
child safety, permanency for children, and child and family 
well-being) are consistent with what should be measured in 
evaluating the performance of a State's child welfare system. 
In addition, the seven specific criteria outlined in the 
regulation that will be used to measure States' performance 
with regard to these outcomes focus appropriately on protecting 
children from abuse and neglect, maintaining children in their 
own homes whenever possible, providing children with timely 
permanency, preserving the continuity of family relationships 
and connections for children when appropriate, and providing 
appropriate services to children and families. 
    Along with the outcomes for children and families that will 
be used as indicators of States' conformity with federal law, 
the new review system also appropriately requires an assessment 
of each State's capacity to deliver services leading to 
improved outcomes for children and families. The seven systemic 
factors reviewed include: statewide information system on 
children in foster care, case review system for all children in 
foster care, standards to protect the health and safety of 
children in foster care and an identifiable quality assurance 
system, staff development and training program, service array 
for children and families, agency responsiveness to the 
community, and foster and adoptive parent licensing, 
recruitment, and retention. Review of these systemic factors 
along with the outcomes for children and families should 
facilitate more accurate determinations of substantial 
conformity.
    The two-phase review process established by the regulation 
seems to provide a comprehensive approach for evaluating 
States' performance. The first phase of this process, the 
statewide assessment, is appropriately conducted by internal 
and external State team members and requires the State to 
address both the systemic factors outlined above as well as its 
performance in meeting the national standards in the outcome 
areas of safety, permanency and child and family well-being 
using data from the Adoption and Foster Care Analysis and 
Reporting System (AFCARS) and the National Child Abuse and 
Neglect Data System (NCANDS).
    Although the national standards by which States will be 
measured during the statewide assessment are not specified in 
the regulations, the preamble of the regulations explains that 
standards have been developed for the outcome areas of child 
safety and permanency using currently available data. The 
national standards related to the child safety outcome 
appropriately include the: (1) percent of children with 
substantiated abuse or neglect reports for whom a subsequent 
abuse or neglect report is substantiated; and (2) the 
percentage of foster children who are the subject of 
substantiated abuse or neglect by a foster parent or facility 
staff.
    The national standards related to the child permanency 
outcome include the: (1) percent of children who entered foster 
care during a review period who re-entered within 12 months of 
a prior foster care episode; (2) percent of children reunified 
with their parents within 12 months after their latest removal 
from home; (3) the percent of foster children adopted in less 
than 24 months after their latest removal from home; and (4) 
the percent of children in foster care less than 12 months who 
had no more than two placement settings; and (5) the median 
length of stay in foster care for children entering foster care 
for the first time.
    These national standards have been established at the 75th 
percentile of all States' performance on the particular 
outcome, as measured through AFCARS and NCANDS, and are 
appropriately based on the outcome measures developed in 
accordance with Section 203 of the Adoption and Safe Families 
Act (ASFA). Internally, DCF has developed a comprehensive 
strategic plan to promote the goals of safety and permanency 
for children which incorporates the ASFA outcome measures. 
Given the importance of standardizing the measurements we are 
using to assess performance at a statewide level, DCF supports 
the decision to make the ASFA measures consistent with the 
statewide data indicators used in the child and family services 
reviews.
    While there may be some concerns with the present 
reliability and accuracy of the AFCARS and NCANDS data, the 
quality of these data sources seems to be improving as a result 
of the penalties imposed for non-compliance with AFCARS 
submission requirements, the opportunity for States' self-
analysis prior to submission and the financial incentives for 
improving AFCARS data. In addition, as noted in the preamble to 
the regulations, AFCARS is an appropriate data source to use in 
Federal reviews as it is the statutorily-mandated information 
collection system for Federal child welfare programs.
    The statewide assessment phase of the review must also 
include an assessment of the characteristics of the agency that 
have the most significant impact on its capacity to deliver 
services to children and families and an assessment of the 
strengths and areas in need of improvement related to the 
State's child and family services programs. Based on the 
quantitative and qualitative outcome of the statewide 
assessment, the State and the ACF regional office will jointly 
decide the location of the on-site reviews and the types of 
cases that will be reviewed. Again, this provides an effective, 
collaborative process for identifying the structure for the 
second phase of the review process.
    The second phase of the review process, which consists of 
an on-site review with a joint Federal/State team, properly 
relies on information from the statewide assessment to 
determine areas in need of improvement or further review. As 
the regulations set forth, the State's largest metropolitan 
area must be included in the locations selected for the on-site 
review. While urban areas may include a higher percentage of 
families and children who are involved with the child welfare 
system, it is important to include these areas in order for the 
review to accurately represent statewide issues.
    The sources of information collected during the on-site 
review, which include case records, interviews with children 
and families, interviews with caseworkers, foster parents, 
service providers, and key stakeholders both internal and 
external to the agency, will likely provide a more 
comprehensive and accurate assessment of whether or not the 
state is in substantial conformity with federal law using both 
qualitative and quantitative performance indicators. The new 
review system also seems to have adequately identified an 
effective way of resolving discrepancies between the statewide 
assessment and the findings of the on-site review by allowing 
the State to submit additional data or jointly review 
additional cases with ACF. As noted in the preamble of the 
regulations, this approach permits on-site exploration of why 
performance related to the statewide data indicators might not 
be an accurate indicator of statewide performance.

                         Substantial Conformity

                             (Sec. 1355.34)

    As outlined in the regulations, a State will be considered 
in substantial conformity with regard to the three child and 
family outcomes (and the seven associated criteria) discussed 
earlier if the State's performance has met the national 
standard(s) associated with the outcome, if applicable, and if 
each outcome is ``substantially achieved'' in 95% of the cases 
examined during the on-site review (90% of the cases in an 
initial review). The determination of whether an outcome has 
been ``substantially achieved'' is appropriately based on 
information from various sources including case records and 
interviews. In addition to the above measures, a State's level 
of achievement related to the child and family outcomes is 
properly measured by the extent to which it has implemented 
certain identified statutory and regulatory requirements which 
relate, in part, to service provision, family preservation, 
permanency planning, recruitment of foster and adoptive 
parents, effective use of cross-jurisdictional placement 
resources, and reasonable efforts.
    While the percentage of cases identified above seems high, 
this standard is undoubtedly necessary in order promote the 
objectives of the child and family services reviews. In 
addition, a high threshold makes sense in this new review 
system which allows the States to implement a corrective action 
plan before financial penalties are imposed if they are found 
not to be in substantial conformity.
    In addition to the criteria related to outcomes, States 
must meet certain criteria related to service delivery in order 
to be considered in substantial conformity with federal child 
welfare laws. In connection with the capacity to deliver 
services leading to improved outcomes (i.e. the seven systemic 
factors discussed above), a State will be considered in 
substantial conformity if all State plan requirements 
associated with that systemic factor are in place and no more 
than one of the State plan requirements fails to functions. 
This determination appropriately includes a process by which 
the Federal/State team rates the State's conformity with State 
plan requirements based on information from the statewide 
assessment as well as the on-site review and stakeholder 
interviews. Information from both phases of the review process 
must support the determination of substantial conformity.
    It appears that the process for determining substantial 
conformity for the systemic factors does include specific 
criteria that must be rated numerically to ensure objectivity 
and consistency among reviewers and across States in assessing 
outcome achievement. However, as recognized in the preamble, it 
is equally important to allow for professional judgment in 
determining performance with respect to the service delivery 
criteria.

                       Program Improvement Plans

                             (Sec. 1355.35)

    As mentioned earlier, the new child and family services 
review process requires States to remedy areas of nonconformity 
by developing a program improvement plan (PIP). This allows 
States an opportunity to improve programs and services before 
financial penalties can be imposed. The PIP, which is developed 
jointly by State and Federal staff in consultation with the 
review team, must appropriately include goals, action steps, 
completion dates, benchmarks for measuring improvement, and any 
need for technical assistance to implement the PIP. A State 
must submit its PIP within 90 days from receipt of the letter 
from ACF informing the State that it is not in substantial 
conformity. This seems to be an adequate amount of time to 
submit the PIP to ACF for approval. If ACF does not approve the 
PIP, the State is given an additional 30 days to revise the 
plan which is reasonable assuming that ACF provides the State 
with clear guidelines and recommendations regarding what 
aspects of the PIP are in need of revision. 
    States must report quarterly to the Department of Health 
and Human Services (HHS) on their progress towards implementing 
their PIP and have a specified time in which to complete their 
PIP. The time allotted cannot exceed 2 years, except that HHS 
may grant a 1-year extension in rare circumstances. It is 
important that, as the regulations require, the established 
duration of the plan be based upon the seriousness and 
complexity of the remedies required to correct the area of 
nonconformity. In addition, DCF supports the requirement that 
egregious areas of nonconformity impacting child safety be 
satisfactorily addressed in less than two years.
    In regards to the amount of financial penalties imposed, 
and the graduated penalties for continuous nonconformity, the 
regulations seem to adequately promote program and practice 
improvements, as well as accountability, without impeding the 
States' ability to make the necessary improvements by imposing 
immediate penalties. In addition, it seems effective to vary 
the amount of federal funds withheld depending on the extent of 
the State's nonconformity and to calculate the penalties as a 
percentage of certain pools of federal funds.
    One of the concerns that DCF shares with other State 
agencies that are operating under consent decrees is the 
possible conflict that might arise between PIPs and consent 
decree mandates. While we understand that States are not 
required to include the provisions of consent decrees into 
PIPs, it would be helpful to permit States to include relevant 
consent decree mandates into their PIPs to address areas of 
nonconformity and then allow the PIP to supercede the 
individual requirements of the consent decree. This could be 
clarified in the child and family services reviews procedures 
manual referenced in the preamble but might also require other 
statutory and/or regulatory changes.
    In closing, on behalf of Commissioner Ragaglia, I would 
like to thank you for the opportunity to speak with you today 
on this important topic, and I hope my comments have been 
helpful. Overall, I believe the regulations, along with the 
other documents and review instruments that will be used during 
the review process, will provide a more effective system for 
reviewing States' compliance with federal requirements and will 
result in improved services and outcomes for children and 
families.
    Thank you.
      

                                

     Chairman Johnson of Connecticut. Thank you very much.
    Mr. Courtney.

 STATEMENT OF MARK E. COURTNEY, ASSISTANT PROFESSOR, SCHOOL OF 
          SOCIAL WORK, UNIVERSITY OF WISCONSIN-MADISON

    Mr. Courtney. Good morning. Thanks for the opportunity to 
comment on these regulations. I would like to make three 
general observations today about the new review system.
    First, whatever its limitations, I believe that the new 
system is a vast improvement over what we had before. For the 
first time in Federal regulation, Title IV-B and IV-E, will be 
overseen in terms of outcomes as opposed to paper compliance 
with administrative procedures, which is a great improvement.
    The review system appropriately builds on Federal efforts 
to support management information systems by using data from 
those systems, and as the capability of these systems improves, 
so will our knowledge of outcomes for children and families. 
And the collaborative Federal-State review process and 
mechanisms for allowing timely corrective action, supported by 
Federal technical assistance, are also significant improvements 
over the previous approach.
    Second, I believe that the limitations of the new system 
and potential pitfalls result not so much from the design of 
the reviews, per se, or from the benchmarks, per se, but from 
our poor understanding of how child welfare programs function.
    Child welfare management information systems are only 
beginning to shed light on the kinds of safety and permanency 
outcomes that the benchmarks capture. Moreover, these measures 
vary considerably both between and within States. For example, 
the median time to discharge, one of the measures, for children 
first entering foster care in Iowa is 3 months, in Maryland 13 
months, and in Illinois 41 months.
    Similarly, the rate of reentry to foster care varied among 
States in the Multistate Foster Care Archive from 18 percent in 
California to over 26 percent in Wisconsin. Within Wisconsin, 
substantiation rates for child neglect vary from less than 10 
percent in some counties to over 60 percent in others.
    Unfortunately, while we know that these safety and 
permanency indicators vary between and within States, we know 
very little about why they vary. Without knowing why one State 
differs from another on any given outcome, we run the risk of 
creating unintended consequences and imposing Federal financial 
sanctions on States that don't meet national standards.
    For example, one of the national standards pertains to the 
percentage of children entering foster care who are, in fact, 
reentering care within 1 year of a previous foster care 
episode. This makes some sense, since we want to keep foster 
care reentry down. Nevertheless, the measure is biased in favor 
of States with increasing foster care entries, since children 
who reenter care after exiting in a previous year will be 
counted against a growing number of entries. In contrast, the 
measure is biased against States with declining entry rates, a 
consequence that no one would argue is sound policy.
    Median length of stay until discharge for children entering 
care is also a problematic benchmark in some cases. States 
where older children and youth make up the bulk of foster care 
entries, for example, my home State of Wisconsin, may generally 
fare better under this measure than States with younger entry 
cohorts simply because older children's length of stay is cut 
short when they age out of care.
    The bottom line is that interstate variation in the 
proposed benchmarks can be due to a variety of explanations, 
only one of which is that States with better outcomes are 
actually providing superior services. In short, the poor 
knowledge base regarding child welfare populations and programs 
calls for considerable caution in routinely applying one-size-
fits-all outcome benchmarks tied to Federal funding.
    Until our knowledge base is vastly improved, Federal 
reviewers will be wise to carefully explore alternative 
explanations for interstate variation in outcomes before 
lowering the fiscal boom. The new review system must be 
implemented in the context of much greater commitment to 
understanding the operation of public child welfare programs.
    Third, I believe that the Department of Health and Human 
Services should move as quickly as possible to identify and 
pilot-test at the State level indicators of child and family 
well-being. Child safety and permanence are central to child 
welfare practice and policy, but the well-being of children and 
families is central to many current child welfare policy 
debates.
    For some measures of well-being, we will need new data to 
do this. But in other cases, the data already exist and are 
simply not being put to proper use. For example, Medicaid 
claims data can and should be used to examine whether children 
being placed in foster care are given required health and 
mental health assessments in a timely manner. Children who 
enter the child welfare system cannot afford to wait another 10 
years for the managers of the system to begin to seriously 
assess child well-being.
    In summary, I believe that the new child welfare review 
system is a vast improvement over the old system and should be 
applauded. Nevertheless, our lack of knowledge about child 
welfare services and populations and the absence of systematic 
measures of child well-being in the review system will limit 
the meaningfulness of review findings for some time to come.
    [The prepared statement follows:]

Statement of Mark E. Courtney, Assistant Professor, School of Social 
Work, University of Wisconsin-Madison

    Too-frequent news stories documenting the horrors 
associated with failures of our nation's child protection 
system attest to the need for federal oversight and support for 
child welfare services. The new federal child protection review 
system is long overdue. I would like to make three general 
observations today about the new review mechanism.
    First, whatever its limitations, I believe that the review 
system is a major step in the right direction. For the first 
time in federal regulation of Title IV-B and IV-E there will be 
a greater focus on outcomes for children than on paper 
compliance with administrative processes. The review system 
appropriately builds on federal efforts to support child 
welfare management information systems by relying on AFCARS and 
NCANDS data to measure progress. As the capabilities of these 
systems are enhanced over time so will the capacity to assess 
child and family outcomes. The collaborative federal-state 
review process and mechanisms for allowing timely corrective 
action, supported by federal technical assistance, are 
significant improvements over the previous approach.
    Second, I believe that the limitations and potential 
pitfalls of the new review system result not so much from the 
design of the reviews or the benchmarks per se, but from our 
poor understanding of how child welfare programs function. 
Child welfare management information systems are only beginning 
to shed light on the kinds of child safety and permanency 
outcomes that the benchmarks capture. Moreover, these measures 
vary considerably both between and within states. For example, 
data from the Multistate Foster Care Data Archive indicate that 
between 1988 and 1997 the median time to discharge for children 
first entering foster care in Iowa was three months, in 
Maryland 13 months, and in Illinois 41 months. Similarly, the 
rate of reentry to foster care varied among the ten Archive 
states from 18 percent in California to over 26 percent in 
Wisconsin. Within Wisconsin, the substantiation rate for 
reported child neglect varies from less than 10 percent to 
nearly 60 percent between counties. Unfortunately, while we 
know that these safety and permanency indicators vary between 
and within states, we know very little about why they vary. 
Without knowing why one state differs from another on any given 
outcome, we run the risk of creating unintended consequences in 
imposing financial sanctions on states who do not meet national 
standards.
    For example, one of the national standards pertains to the 
percentage of children entering foster care who are in fact 
reentering care within one year of a previous foster care 
episode. This makes some intuitive sense since we want to 
minimize reentry to foster care. Nevertheless, the measure is 
biased in favor of states with increasing foster care entries 
since children who reenter care after exiting in the previous 
year will be counted against a growing number of entries. In 
contrast, the measure is biased against states with declining 
entry rates, a consequence that no one would argue is sound 
policy. Median length of stay until discharge for children 
entering foster care is also a problematic benchmark. States 
where older children and youth make up the bulk of foster care 
entries may generally fare better under this measure than 
states with younger entry cohorts simply because older 
children's length of stay is cut short when they ``age out'' of 
care. The bottom line is that interstate variation in the 
proposed benchmarks can be due to a variety of explanations, 
only one of which is that the states with ``better'' outcomes 
are actually providing superior services.
    In short, the poor knowledge base regarding child welfare 
populations and programs calls for considerable caution in 
routinely applying one-size-fits-all outcome benchmarks tied to 
federal funding. Until our knowledge base is vastly improved, 
federal reviewers will be wise to carefully explore alternative 
explanations for interstate variation in outcomes before 
lowering the fiscal boom. The new review system must be 
implemented in the context of a much greater commitment to 
understanding the operation of public child welfare programs.
    Third, I believe that the Department of Health and Human 
Services should move as quickly as possible to identify and 
pilot test at the state level indicators of child and family 
well-being. Child safety and permanence are central to child 
welfare practice and policy, but the well-being of children and 
families is at the heart of many current child welfare policy 
debates. For some measures of well-being new data will need to 
be generated but in other domains data already exist that are 
not being put to proper use. For example, Medicaid claims data 
can and should be used to examine whether children being placed 
in foster care are given required health and mental health 
assessments. Children who enter the child welfare system cannot 
afford to wait another ten years for the managers of the system 
to begin to seriously assess child well-being.
    In summary, I believe that the new child protection review 
system is a vast improvement over the old system and should be 
applauded. Nevertheless, our lack of knowledge about child 
welfare services and populations and the absence of systematic 
measures of child well-being will limit the meaningfulness of 
review findings for some time to come.
      

                                

     Chairman Johnson of Connecticut. Thank you very much.
    I would like to ask the two of you who represent States 
that were pilot States to comment on Mr. Courtney's testimony 
because one of the real problems that you run into particularly 
from the Federal level is even when you try to establish this 
kind of system that is more case-sensitive, you do get this 
one-size-fits-all approach and you get certain unintended 
consequences.
    I think the issue you brought up--you went through them so 
fast and I hadn't thought about them in advance, so it is hard 
to grasp them. But the way length of stay could actually 
disadvantage States that were doing an excellent job and 
advantage States that maybe aren't doing an excellent job is 
very concerning.
    I know this is also off the top of your head, Ms. Foley and 
Ms. Hamilton, but, you know, as you listen to the questions 
that he raises that result from our now knowing a lot more data 
than we ever knew, but not knowing a lot more ``why's'' than we 
ever knew, how would you respond to that?
    Ms. Foley. Well, I think for me what Mark points out--these 
are accurate observations, and I think that is the reason we 
can't simply use the performance report cards to say how well 
States are doing. Two other examples of that is you can alter 
length of stay by having a lot of children come into care and 
go back out quickly. That doesn't mean that that is a good case 
work practice, but it can drive down your length of time in 
care. So the volume of children coming in per 1,000 children in 
your population, I think, is something that has to be taken 
into consideration when we do the statewide assessments.
    Another example is the reentry into care. What we don't 
want to have is an oral history that begins having a chilling 
effect on a child who does need to reenter care. And, you know, 
you can always practice one direction or the other. We often do 
that with media attention to stories about kids either coming 
into care or not getting returned home. But I think that has to 
be part of this broader evaluation, and I still believe that 
the measurements we have are going to at least move us to 
having those conversations. Previously, we haven't even been 
able to talk about those things because we didn't have any 
measurements that would look across the States.
    Ms. Hamilton. I think I would share Ms. Foley's comments in 
the sense that I think by looking at just the statewide 
indicators and the outcomes, although clearly we want to start 
being able to look at measurements in those areas, it is very 
difficult to identify across States what is the appropriate 
length of stay, what is the appropriate time a child should 
remain in care.
    I mean, I think that we need to balance those statewide 
data indicators along with the case reviews and the case-by-
case determinations as to what is in a child's best interest 
and what makes sense. I am not sure what the answer is to that. 
I think that the new regulations do try to balance that and I 
think do identify that, and I think it is a strength that they 
are focusing at least right now on the outcomes where they 
think those data elements are at least accurate and can move us 
along in the direction of measuring data.
     Chairman Johnson of Connecticut. In looking at length of 
stay, I know in the hospital area, you know, when we look at 
DRGs, we take into account the illness. Now, in looking at 
length of stay for foster children, is there any 
differentiation between children with severe mental health 
problems who clearly require a longer length of stay in a 
psychiatric setting before moving into what we would normally 
think of as the system--is there any differentiation in the 
data sought or in the measures for children of different levels 
of acuity of need?
    Ms. Foley. Currently, there is not. The length of time in 
care measures all children in State custody. We do have some 
research, though, that is speaking to that. Lynn Usher, at 
Chapel Hill, has done some research in regard to some of the 
national foundations in which he is looking at cohorts of 
children, in other words trying to glean from the data the 
importance of looking at children who may have entered care in 
the last 2 years versus children who entered care, as Mark 
said, 10 years ago or 12 years ago who can be considered 
outliers to some extent in these systems. So I think there is 
some research in that area. I don't think our research at this 
point or our data is fine-tuned to the point that we can 
capture that.
     Chairman Johnson of Connecticut. Is there any 
discrimination as you move into this new system between the 
kids who have been there and didn't come in with the kind of 
attention that the new kids are coming in with versus the 
outcomes for the kids who are coming into essentially a 
different system?
    Ms. Foley. Definitely, I think we will see a huge 
difference.
     Chairman Johnson of Connecticut. But do you keep the data 
separately or are we going to be able to see that?
    Ms. Foley. It can be pulled out separately. You can 
actually look now at AFCARS and look at entry dates and you can 
have sub-populations with AFCARS. You can look at who entered 
within the last year, who entered since the Adoption and Safe 
Families Act went into place. You can look at adoption as the 
plan versus other compelling reasons. Eventually, you will be 
able to look at any reason a child exits and then how long the 
child was in care based on when they came in and when they 
exited.
     Chairman Johnson of Connecticut. Does AFCARS note whether 
the child has severe mental health problems?
    Ms. Foley. Yes, it does. I believe it does. Yes, it does.
     Chairman Johnson of Connecticut. Mr. Courtney is 
questioning exactly how well AFCAR does this. I have been 
trying to interpret the nodding of your head, which is neither 
up and down nor sideways.
    Mr. Courtney. It has a field for health problems, but this 
is one of the reasons I said I think we need some measures of 
well-being because a social worker checking a box saying a 
child has a health problem--for example, I know from 
California's data, if you look at that field in AFCARS, you 
will find that only 5 percent to 6 percent of children have any 
kind of health or mental problem. And we know that is a gross 
under-estimate of the health and mental health needs of those 
children. So the data are there, but whether they are 
meaningful is another issue.
    I do want to throw one other thing in, with all respect to 
Assistant Secretary Golden. The measures of re-abuse--there are 
a number of States who cannot generate reliable data on re-
abuse, including my home State of Wisconsin. So it is not the 
case that we have data in all States for that particular 
measure because there are a number of States that don't keep 
identifiers with child abuse reports. And so there is no way to 
know that a child who was previously abused has been re-abused. 
And the fact that the NCANDS data has an indicator for that 
again doesn't mean that that is a reliable indicator.
     Chairman Johnson of Connecticut. Thank you.
    Mr. Foxhoven, you have had a lot of experience in sort of 
reviewing cases from a very different perspective both in terms 
of the legal framework within which the departments have to 
work and also other aspects of care and options. How do you 
respond to the problems associated with one-size-fits-all?
    Mr. Foxhoven. Well, first of all, I think the rules let a 
State go to HHS and say you shouldn't apply this strictly to us 
because we are outside the realm of the norm for this 
particular reason, we have cut down the number of kids coming 
into care. So I think the rules do anticipate that. I think 
they have already intended you to be able to go in and say let 
us show you that there is a reason why we don't fit into this 
mold, and I think that seems very appropriate.
    But I also think that we need to look at some kind of 
opportunity to put a bar up for people to reach, as well, and 
not just to say, well, maybe you haven't done so well in the 
past, but we are not going to make you meet what everybody else 
does. It always seems peculiar to me, for instance, that some 
of the States that do particularly well do some other things. 
And you will talk to States that don't do well and they say, 
well, yes, but we can't do that because we have got all these 
other problems in our program.
    And I like to respond maybe that is why they don't have the 
problems in their program is because they are doing that. The 
people that hire Ramona Foleys have independent review in their 
State. So to say we don't have a great program here so we can't 
afford to start with independent review--well, maybe that is 
part of it. It is that whole approach of we are going to do 
whatever is necessary.
    Illinois has turned around not only because they have Jess 
McDonald, but because he has added independent review in there 
and he is willing to take a look. And so I think that holding a 
bar up and saying to States that aren't doing very well maybe 
you need to do more of those things to do a better program--I 
don't think there is anything wrong with that. A kid that is in 
Alabama or California or Nebraska or Kentucky should all have 
the same opportunities and have just as much safety, 
permanency, and well-being as the ones in the other part of the 
country.
     Chairman Johnson of Connecticut. Thank you.
    I also want to mention that, Ms. Hamilton, I think your 
comment about the consent decrees is very, very important for 
us to note, and for the Department to think through with us as 
well. Once we have a different system in place and we have a 
much better information collection capability, and so on and so 
forth--I mean, Connecticut is in a very, very different 
situation than we were, when was it, 10 years ago when we had 
the consent decree, and in a sense constantly serving two 
masters with the different things, and a core system that has 
some knowledge, but after all this is not their area of 
expertise. This does concern me.
    And there are a lot of States with consent decrees and 
there is a lot of resource waste that is going on in this 
situation. And I think we need to come up with a process by 
which those States get reintegrated into our system and can 
work their way out from under consent decrees. I think it is 
sort of too much to ask any judge to say now this department no 
longer has any problems and so should be free of the consent 
decree. That is just not realistic.
    So I am very interested in pursuing that, and hope that we 
will have a vehicle this year. I had kind of lost track of that 
issue, but it is very important and these regulations give us a 
chance to reconsider that.
    Mr. Cardin.
    Mr. Cardin. Thank you, Madam Chair.
    Mr. Foxhoven, I am interested in your assessment that it 
could be three to 5 years before we see improvements where a 
State has been identified with the need to make mandatory 
program improvements.
    My understanding--and I was listening to the testimony of 
all four of you--is that the regulation requires that there be 
quarterly reports on progress and that it cannot be longer than 
2 years, and then when child safety is involved it has got to 
be much shorter than 2 years. So what is your assessment of 
three to 5 years?
    Mr. Foxhoven. I come up with that because, first of all, we 
know that they are not going to start getting the reviews 
tomorrow and so it is going to take some lag before we even get 
to these States, and the law has been in effect for a while. 
First of all, the law has been out there for States to follow 
for a while.
    Second, safety, permanency, and well-being are not rocket 
scientist ideas that just have been come up with by Congress 
last year and everybody said, gee, that is a good idea, we 
should have safety for kids. We have known that since we have 
taken kids out of home that we should provide safety for them. 
And the Federal Government has been telling States to do this 
for years and years and years, so now that the law has passed, 
even though the regs haven't been in force, the States have 
known what they have needed to do.
    Mr. Cardin. As I understand it, the standards are not 
different under this regulation. They have all been legally 
required as far as child safety is concerned. So the seven 
standards or goals that are here are not--that is not new by 
law. What is new here is a process.
    Mr. Foxhoven. Of evaluating whether the States have met 
that standard.
    Mr. Cardin. Correct. So when that is fully implemented, 
when that process is fully implemented, do you still feel that 
there will that long of a time before a State can change its 
practices?
    Mr. Foxhoven. I think there will be a number of States that 
will come to HHS and say we can't do it in the 2-year time 
period, and will ask for more time.
    Mr. Cardin. But if it fundamental for child safety, I am 
not sure that HHS is going to be very sympathetic.
    Mr. Foxhoven. That might be true, and I guess the question 
will be what we mean by child safety. And as to permanency, 
permanency is the other issue, too. The Federal Government 
doesn't say to parents, as long as the kids are safe, we don't 
care how long it takes for you to get your act together. We 
want permanency for kids, too, and in a 12-month time period, 
if you don't have some hope of providing that permanency for 
kids, we tell parents then you are going to lose them because 
we are going to give somebody else the opportunity to get the 
permanency for the kids.
    And the same thing is true with the States. If they can't 
provide some permanency for the kids, they need to have a plan 
that shortens that time period. They have had quite a bit of 
time to be working on them already, and my position is that 
when HHS designates that you are substantially out of 
compliance, they should be getting a plan that gets them back 
in as quickly as possible.
    Mr. Cardin. Agreed, and three to 5 years would not be 
acceptable for us. As we look at the regulations and the 
implementation of the regulations, we are going to be asking 
for a lot quicker progress made by States in complying with all 
of the major deficiencies. Two years, we think, is an outer 
limit to get in compliance. And I appreciate very much your 
observations and best intentions sometimes can take a lot 
longer than we anticipate.
    Mr. Foxhoven. And I will only tell you this. Those of us 
that are active advocates for children are never totally happy. 
You are never going to make us totally happy because if three 
kids are neglected or die in care or don't get permanency, we 
want those three kids to be saved, and so you are never going 
to make us all happy.
    Mr. Cardin. And we don't want to. And this regulation 
speaks to that.
    Mr. Foxhoven. It is a huge step forward.
    Mr. Cardin. We are never going to be happy because, by 
definition, 25 percent of the States are going to be out of 
compliance with each of the 7 standards because if you are not 
in the 75th percentile, you are out of compliance. And being 
out of compliance does not mean that you are going to be 
subject to a penalty; it means that you need to have a plan to 
improve. And each State is different, so we are never going to 
be satisfied. I think the regulation incorporates----
    Mr. Foxhoven. And I am the first to commend HHS. I think 
the regs are a huge step forward.
    Mr. Cardin. And I must compliment our two State people here 
because it appears like you are agreeing that we should never 
be satisfied, even though by definition States will be out of 
compliance and have to be because of the percentiles.
    Ms. Foley. That is true, and the other thing I keep going 
back to is the report cards, the performance measures that are 
going to be coming out as a result of ASFA. I am not naive. I 
think that child welfare administrators across the country will 
have some explaining to do, as we say to Governors. I think 
Governors are going to pay attention to what is happening, and 
I think quite likely HHS may begin finding States in slightly 
better shape by the time they get there for the statewide 
assessment than they would have absent those performance 
measurements coming out to the Governors.
    Mr. Cardin. Mr. Courtney, I very much appreciate your 
testimony because I think we all agree with the essence. But it 
is important that we have these goals to meet, and during the 
process, as I think is your own testimony, the interaction with 
HHS will help define these goals in a more sophisticated way so 
States aren't going to be penalized because on one factor they 
are actually ahead of where other States are. But when you look 
at it in conjunction with another statistic, it may not look as 
positive. I think it is a very good point, and we expect that 
the plans will be very sensitive to that type of an evaluation.
    Mr. Courtney. Yes, I hope so. My concern is that I don't 
know that the States--for example, the idea that a State would 
come forward if it were out of compliance with one or more of 
these measures, and the fiscal penalties are very clear in the 
regulation. I would assume then that the State would appeal the 
fact that they were not in compliance.
    My concern is that I believe a number of States would not 
really have any idea why they were out of compliance. They 
might actually be running their system quite well, but for some 
of the reasons I laid out and a number of other reasons I could 
lay out, they are not in compliance below the 25th percentile 
and they really don't have the technical expertise to even know 
why they are out of compliance with that.
    And I think that that goes back to my original comment that 
I think that we are just now getting the data to begin to 
understand how these systems function. And we see a wide 
diversity, and some of that diversity is due to systems that 
aren't functioning well. Some of that diversity is due to the 
fact that we really don't have a national child welfare system. 
We have 51 States and the District of Columbia, and then in 
county-administered systems we have many counties that operate 
very differently.
    And when I say substantiation rates differ, I am saying 
that that jurisdiction has defined how it is going to respond 
to child maltreatment differently than the next jurisdiction. 
This is one important explanation for that. And I am somebody 
who is actually in favor of having more uniformity in how we 
provide child welfare services, but I think one of the 
consequences of having these kinds of outcomes is that, over 
time, it really will force, I think, States and localities to 
come to terms with how different they are in terms of how they 
substantiate child maltreatment, how they define child 
maltreatment.
    I don't know that that was the goal of these regulations 
originally, but I think that will be one of the consequences of 
them. I am in favor of that. I just wanted to make the 
Committee aware that I think that is almost an inevitable 
outcome of this process.
    Mr. Cardin. It seems like what the regulation has captured 
is what Mrs. Johnson said at the beginning of the hearing, and 
that is giving maximum flexibility to our States and our local 
governments to develop plans that work in your community, but 
establishing national accountability. And I don't know if we 
can ask for much more than that, and then have an effective way 
to enforce that so that we don't have to wait years and what 
happened in New York is corrected and it doesn't take 20 
children being placed before that happens.
    Thank you, Mrs. Johnson.
     Chairman Johnson of Connecticut. Thank you.
    I do think, though, Mr. Courtney, that your comments raise 
an extremely significant issue, and it may be reasonable for us 
to develop a small pot of research money that we would be able 
to use when we hit those first States whose numbers don't look 
very good but whose systems at some level seem right. So we can 
go back in and say why, you know, what is really happening 
here, because we know we know very little about the ``why's'' 
of some of this.
    And from working, frankly, in the Medicare system where now 
we see us doing an individual thing here that looks good and it 
is having a terrible effect on the whole system and in the end 
costing us more money and not saving us money, I think this 
issue of what really are we doing is always hard. And the 
diversity in our system may very well be its strength. We don't 
even know that and numbers may not tell us that.
    So I think we need to think about it, and any thoughts any 
of you would have on how we would structure that pot of money 
so it will be available when we get a year or two down the road 
and whenever we realize that we have to know what is behind the 
numbers, because in a sense it is going to be hard to leave a 
State holding the bag, in a sense, without any resources to 
know how or why. So I think that really is very important and 
we will take that under consideration as well.
    Also, Mr. Foxhoven, you mentioned that you would like to 
write more detailed comments, and we would be interested in 
having those, and anyone else who wants to add additional 
comments. We also would like to have you answer some questions 
in writing because there is not a lot that is known about some 
of the aspects of your work.
    [Questions submitted by Chairman Johnson, and Mr. 
Foxhoven's responses, follow:]

    1. Are you familiar with Senator Grassley's proposal which 
would have required all states to have independent foster care 
review boards to cover all children in foster care? As I 
understand this proposal, states would be required to use 
foster care review boards to review children in foster care 
every six months? Under current law states have this option. 
How many states use foster care review boards to review all 
cases of children in foster care every six months? How many 
states have statewide review boards? Does Iowa?

    Response:

    I am very familiar with Senator Grassley's proposal. The 
Board of Directors of the National Association of Foster Care 
Reviewers has voted to support that proposal. Your 
understanding of the proposal as well as the background giving 
rise to the proposal is partially correct and partially in 
error. Current federal law does give the states the option to 
use foster care review boards to conduct a review of children 
in foster care. However, the idea of review of all children in 
foster care is not an option for states who wish to receive 
federal funds for foster care services -it is a requirement. 
How states elect to conduct case reviews varies. Some states 
use judicial review, some citizen review, some administrative 
review, and some a combination. There is also some question as 
to whether some states are reviewing all children every six 
months under any form of review system, even though it is 
required. The Grassley proposal requires states to have a two-
tiered structure: a state governing board (State Independent 
Foster Care Review Board) and a mechanism to review individual 
cases of children in foster care which can be administrative, 
judicial, citizen or some combination of these structures. The 
goal is not only to insure review of all children in foster 
care every six months, but also to provide an independent 
collection of data, as well as an independent analysis of that 
data for use in improving state practice and policies in a 
manner that will improve outcomes for children in care.
    A survey conducted by the National Association of Foster 
Care Reviewers in 1996 revealed the following about the states' 
efforts to meet the federal requirement for 6 month periodic 
reviews:
     14. 3% of the states use citizen foster care 
review boards.
     23% of the states use judicial review .
     12. 5% of the states use administrative review 
structures.
     50. 2% of the states use a combination of the 
above.
    Currently, only about 9 states use foster care review 
boards to review all cases of children in foster care every six 
months on a statewide basis. In most of the states where foster 
care review programs are being used, the program is being 
systematically expanded with a goal of eventual statewide 
coverage. This is true in Iowa. Iowa's citizen foster care 
review board conducts a registry statewide to provide 
independent data. The reviews themselves are conducted in only 
a portion of the state. A plan is in place for eventual 
expansion to all areas of the state. Currently, in some areas 
of Iowa, the citizen's foster care review board reviews all 
children in care every six months. In the areas where the board 
has just recently been expanded, the boards do not yet review 
all cases, but will do so in the near future. Cases not 
reviewed by the review board are reviewed by one or more of the 
other forms of review. I am including a color-keyed map of Iowa 
showing the presence and function of the foster care review 
board in Iowa at this time.

    2. Foster Care review programs are emerging in many states, 
but it seems that these programs are varied in size, structure 
and scope. Only 25 jurisdictions have foster care review boards 
in place, with some operated by the courts, some by non-profit 
agencies, and some by the state agencies. Who pays for foster 
care review boards? Who pays for the training of volunteers and 
staff? How is the National Association of Foster Care Reviewers 
funded?

    Response:

    In the case of the foster care review boards that are 
operated by non-profit agencies, the cost of the program is 
funded, at least in part, by private resources. As such, 
generating the funds necessary is a recurring problem for those 
programs. The rest of the programs, like all public child 
welfare services, are funded by the taxpayers in one form or 
another. Periodic case review in any form is an administrative 
function that is eligible for reimbursement under Title IV-E. 
States that use an administrative structure, rather than foster 
care review boards, to conduct reviews use Title IV-E to cover 
the costs associated with the periodic reviews. Likewise, most, 
if not all, of the citizen review programs use a combination of 
state dollars and IV-E dollars drawn down through their state 
child welfare programs. Training of reviewers, whether 
administrative and/or citizen volunteers, is part of the cost 
of the program. Training of reviewers, which is included in the 
state's IV-B plan, is reimbursable under Title IV-E as well.
    The National Association of Foster Care Reviewers is a not-
for-profit organization. We are not currently funded by any 
governmental appropriation. Our funding is currently derived 
from the following sources:
     70% from training and consultation contracts;
     25% from donations from private foundations; and
     5% from membership dues.

    3. Some foster care review boards have been in existence 
for 20 years. Are you aware of any independent evaluation of 
the effectiveness of these boards?

Response:

    Because the Social Security Act has required periodic 
review of all children in foster care at six-month intervals 
since 1980 with the passage of P.L. 96-272, theoretically all 
foster care review programs should have been in existence since 
that time (or 20 years). In the past, the framework of 
evaluation of all review programs has been to try to directly 
link review and the reduction of length of stay and permanency. 
The truth is that there are multiple variables which affect 
these child-specific outcomes. Outcomes of review programs have 
more to do with supporting effective decision-making of those 
who have the authority and responsibility for case practice and 
policy and for motivating case and system stakeholders to 
perform essential activities which will lead to better outcomes 
for children in care. I am aware of six research articles 
examining different aspects of periodic reviews. Unfortunately, 
none of these had a control group. Those research articles are 
as follows:
     Wert, Sue E.; Fein, Edith; Haller, Wendy; 
``Children in Placement (CIP): A Model for Citizen-Judicial 
Review,'' Child Welfare, Volume LXV, Number 2, March-April 
1986.
     Leashore, Bogart R.; ``Workers' Perceptions of 
Foster Care Review in the District of Columbia,'' Child 
Welfare, Volume LXV, Number 1, January-February, 1986.
     Ross, R. Danforth; Reif, Janice C.; Farie, John 
C.; ``Special Report: An Administrative Intercase Review System 
That Works,'' Child Welfare, Volume LXVLI, Number 5, September-
October 1987.
     Lindsey, Elizabeth; Wodarski, John; ``Foster 
Family Care Review by Judicial-Citizen Panels: An Evaluation,'' 
Child Welfare, Volume LXV, Number 3, May-June 1986.
     Gambrill, Eileen; Stein, Theodore J.; 
Controversial Issues in Child Welfare, ``Have External Review 
Systems Improved the Quality of Care for Children?,'' (Allyn 
and Bacon).
    The National Association of Foster Care Reviewers is 
currently under contract with a review program to develop tools 
to assess the process and outcome efficiency as well as the 
effectiveness and customer satisfaction of their program, as 
well as the role and function of the review program in 
supporting and informing case and system decision-makers in 
their efforts to make sound decisions. Several foster care 
review programs have begun surveying the customers of their 
programs (the decision-makers, caseworkers, supervisors, 
judges, and policy makers) to determine if and how they use the 
information and reports generated by review programs and what 
additional information is needed to make better decisions. This 
is being done in Arizona, Miami-Florida, and Delaware, as well 
as some others.

    4. You mention in your testimony that a set of foster care 
review guidelines have been developed. How are these guidelines 
being disseminated and used? What resources are available to 
foster care reviewers for learning about best practices? Are 
these guidelines voluntary? Are foster care review boards 
accredited? By whom?

Response:

    In 1995, the National Association of Foster Care Reviewers 
signed a three-year cooperative agreement with the Children's 
Bureau, requiring the Association to develop the following:
     Guidelines for foster care review administration;
     Training materials; and
     The capacity to provide technical assistance to 
the states for foster care review.
    Under the cooperative agreement, the project was completed, 
and the Children's Bureau ``signed off'' on the completed 
project. The Guidelines are a voluntary ``best-practices 
guide'' for review of children in foster care. A copy of the 
guidelines, entitled ``Safe Passage to Permanency--Guidelines 
for Foster Care Review,'' is enclosed for your review. There 
are currently no federal resources being invested in the 
dissemination of the products and tools developed through this 
cooperative agreement.
    The National Association of Foster Care Reviewers is 
committed to the dissemination of the guidelines and their 
implementation. The Association has sent copies of the 
guidelines on a complimentary (free) basis to foster care 
review administrators. The Association has also provided the 
funding for a monthly roundtable meeting of administrators 
which includes an examination of different aspects of the 
guidelines. The guidelines are, therefore, being used as a 
benchmarking tool for states and foster care review programs. 
The administrators are able to ask themselves how they compare 
to best practice.
    State programs are currently contracting with the National 
Association of Foster Care Reviewers for a number of services, 
including the following:
     An assessment of the state's existing foster care 
review program to assist the state and/or community in 
improving their review capacity;
     Training for foster care reviewers (various levels 
of curriculum have been developed);
     Technical assistance in data collection, program 
assessment, and outcome measures.
    Foster Care Review Programs are not currently accredited by 
anyone. The National Association of Foster Care Reviewers is 
currently exploring the development of a voluntary, 
accreditation program to be administered by the Association 
that will base accreditation upon compliance with the 
guidelines. It is anticipated that this program will not begin 
for at least one to two years.

    5. How do foster care reviewers define independence from 
the state child protection system? Who appoints reviewers? Do 
you recommend that boards include a certain number of foster 
and adoptive parents? How many?

Response:

    The National Association of Foster Care Reviewers believes 
that the essential features that insure a review program's 
independence are the following:
     The foster care review program (regardless of 
structure) does not report to the entity or individual who is 
directly responsible for child welfare practice;
     The individual case reports and aggregate system 
reports have uninterrupted access to all system stakeholders, 
including the public. There can be no filtering of information.
     The foster care review program has an independent 
budget that can not be controlled or influenced by an 
individual or entity over whom the review program is 
responsible for providing oversight or of whom the review 
programs recommendations could impact.
     The governing board of the foster care review 
program is comprised of individuals who have no vested interest 
in the outcomes of individual or aggregate review reports (such 
as state employees or contractors).
    It is important not to confuse the two tiers of the review 
program, as explained in the answer to question 1: the state 
governing board and the mechanism to conduct reviews. The 
guidelines, and hence the National Association of Foster Care 
Reviewers, does not recommend who should be a reviewer or who 
should appoint the reviewers. The person or persons conducting 
the reviews may be citizens, staff or employees of the child 
welfare agency, and/or judges. Furthermore, the reviewers may 
be appointed by various sources. Currently, reviewers are 
appointed by various sources in various states (e.g., the 
Judge, the Chief Judge, the Governor, or local officials). The 
Association does not take a position on who should conduct the 
reviews, who should appoint reviewers, or what the makeup of 
the state governing board should be, so long as the review 
program meets the independence requirements set forth above.

    6. What would it cost to review every case every six 
months?

Response:

    We assume that the Children's Bureau or the Office of 
Management and Budget can give you costs that are currently 
expended for the review of children in care. Since the law 
already requires that the states review all children in foster 
care at least once every six months, there should be relatively 
little, if any, additional cost to switch to a different review 
system. Of course, a quality review, as described by the 
guidelines, would be more expensive than any review that is 
more of a guise than an actual review. However, the Association 
assumes that the Children's Bureau, in an audit, would require 
that all reviews be quality reviews and not a sham. The only 
additional cost would be the cost necessary to transform a poor 
review program into a quality one, which would have to take 
place in any event upon a quality audit by the Children's 
Bureau.
    Thank you for giving the National Association of Foster 
Care Reviewers this opportunity to provide this additional 
information to you. We would be more than willing to provide 
additional written and/or oral testimony upon request.

    [Attachments are being retained in the Committee files.]
      

                                

     Chairman Johnson of Connecticut. I meant to mention this 
when Secretary Golden was here, so if you will carry this back 
to her. Many of you who have watched the work of this 
Committee, including our hearing over in Baltimore last Monday, 
but also our work on the fatherhood bill and a number of other 
settings--there has been a lot of concern both on my part and 
on Ben's part with the distribution rules. And I was pleased to 
see that in the President's budget proposal, the Department is 
proposing some new approaches to distribution of child support 
arrearages and payments.
    So we are developing legislation on that. We have a lot of 
ideas between us to go forward with that. The administration's 
proposals are also being thought about. So we will be moving 
forward and I wanted to mention that because the timeframe of 
this session is who knows what, but it might be short. And so 
we are moving rapidly to get ideas in that area particularly 
more solidified because we hope to be able to move forward on 
some of those issues.
    So thank you very much, those of you who testified. I 
appreciate your input and your thoughts, and we look forward to 
working with you. And thanks to the Department and those who 
worked so hard on these regulations.
    Thank you.
    [Whereupon, at 10:46 a.m., the hearing was adjourned.]
    [A submission for the record follows:]

Statement of William Grimm, National Center for Youth Law, Oakland, 
California

    On behalf of the National Center for Youth Law, I am 
submitting this written statement for the record of the hearing 
conducted on February 17th, 2000. In the announcement of the 
hearing, Congresswoman Johnson asked if the Child Protection 
Review System as set forth in the final regulations published 
on January 25, 2000, would ``get the job done.'' Based upon our 
more than fifteen years of experience litigating cases against 
state child welfare agencies on behalf of abused and neglected 
children, we believe that they will not get the job done. While 
the system outlined in those regulations is a vast improvement 
over the previous 427 reviews conducted by the agency and has 
the goals of increasing the scrutiny and accountability of 
child welfare systems, it is unlikely that these goals will be 
achieved. The process is seriously flawed and its full 
implementation is likely to be stymied by any state agency 
found out of compliance with the mandates of the statute. In 
the following paragraphs, we set forth some of the reasons why 
we believe that the new system is flawed.
    The National Center for Youth Law (NCYL) is a non-profit 
advocacy organization located in the San Francisco Bay Area 
which for more than twenty five years has represented the 
interests of children living in poverty. For almost twelve 
years I have led NCYL's advocacy on behalf of children and 
youth who have been abused or neglected and those placed in 
foster care. I have been lead counsel in federal civil rights 
cases brought in three states on behalf of this population of 
vulnerable children and have worked with attorneys involved in 
similar cases in many other jurisdictions. As counsel in those 
cases, I have conducted extensive discovery--both formal and 
informal--related to the operation of state child welfare 
agencies and studied their compliance with federal statutory 
and constitutional provisions. During the last few years, NCYL 
has worked closely with foster parents in several states. Under 
a grant from the Packard Foundation, we are providing support 
and training for foster parents to help them exercise their 
rights to participate in hearings concerning the children 
placed in their homes--one of the mandates of the Adoption and 
Safe Families Act of 1997. Several months ago, NCYL convened a 
meeting of the attorneys in the country who have sought to 
enforce the provisions of Titles IV-E and B through a variety 
of strategies, including class action litigation.
    The regulations establishing a child and family services 
review system are long overdue. Under Section 203 of the Social 
Security Act Amendments of 1994, Congress directed that HHS 
promulgate regulations for the review of state programs funded 
through Title IV-B & IV-E. Congress imposed a deadline for the 
final regulations of July 1, 1995, with an effective date not 
later than April 1, 1996. Four years past the deadline, the 
outline of the review system is in place. During this time, 
thousands of children have spent their early childhood caught 
up in child welfare systems that have not protected them nor 
provided them with either stability or permanence. We mention 
this history because it is indicative of the lack of priority 
placed by HHS upon oversight and monitoring of child welfare 
agencies. It is evidence that there has been little sense of 
urgency at HHS to resume its role of protecting children 
through ensuring that states adhere to the promises implicit in 
their acceptance of federal funds. It suggests that any 
assumptions that that same agency will now faithfully, 
diligently, timely, and aggressively implement the review 
system it took so long to devise are not warranted. But there 
are other reasons to be cautious in the endorsement and 
enthusiasm about the new review system.

Absence of Sufficient Resources to Conduct the Reviews

    Child and Family Services Reviews (CFSR) consist of two 
phases--a statewide self-assessment and an on-site review. The 
on-site review includes a sample of 30-50 cases for which 
multiply sources of information must be collected. This 
cumulative information about the child, his/her family, agency, 
and service providers is then used in determining substantial 
conformity. For each case in the sample, the file must be 
reviewed and interviews conducted with the child, family, 
foster parents(s), caseworkers, and service providers. 
Additional non-case specific interviews with key stakeholders 
such as children's guardians ad item, court personnel, and 
administrative reviewers must be completed.
    Prior to the final adoption of the CFSR, HHS conducted 
pilot reviews in twelve states. In the preamble to the final 
rule, HHS points out that it ``learned that reviewing cases 
intensely, including all the relevant interviews, requires a 
large number of staff resources and is an extremely time-
consuming process.'' Our experience with similar process used 
by court-appointed auditors in Arkansas, one of the state's 
operating under a consent decree, confirms the amount of 
resources needed to conduct such a review.
    We question whether HHS has the staff and resources to 
conduct the kind of full reviews it calls for in the 
regulations. Even if they presently have adequate resources to 
complete the sample of 30-50 cases, in light of their 
statements in the preamble, it is a certainty that the agency 
does not have the resources to review a larger sample. Under 
the existing CFSR scheme, the state may compel HHS to review 
triple the number of cases in the original sample in order to 
resolve discrepancies amidst the data used to determine 
substantial compliance. Assistant Secretary Golden in her 
comments before the Committee on February 17th, concedes that 
with current resources, increasing the sample size would 
inevitably compromise the quality of the review. We also are 
concerned that if HHS staff resources are not sufficient, the 
agency may respond by reducing the number of federal staff on 
the review teams. These concerns about the objectivity of the 
teams we address further in a later section.

The Order in Which Reviews are Conducted

    Within four years of the effective date of the final rule, 
a full (CFSR) review of each state must be completed. Assistant 
Secretary Golden told the Committee on February 17th, that the 
agency ``will conduct initial child and family service reviews 
in 17 States per year, beginning immediately to work with the 
group of states that will be completed in FY 2001. We expect 
that this group will complete the statewide assessment this 
year and be ready for on-site reviews early in FY 2001.'' 
Nowhere in the regulations or the preamble is there any 
suggestion of what criteria will be used to select the first 17 
States. Assistant Secretary Golden does suggest that there are 
criteria the agency is using to select the States but her 
testimony refers only to States ``with identified safety 
issues'' without giving a hint of how that determination will 
be made.
    Within the regulations setting forth the duration of 
program improvement plans, there is a requirement that 
``particularly egregious areas of non-conformity impacting 
child safety must receive priority. . .'' We believe that a 
similar principle of prioritizations should apply in 
determining which States to include in the first series of 
reviews. There are several possible criteria which might be 
applied here. Although we point out concerns about AFCARS data 
below, it and NCANDS information might be utilized to select 
the States for the first reviews. States already operating 
under a consent decree or judgment and subject to ongoing 
audits and/or oversight might be deferred to a later group. 
Since it is not possible to begin all reviews simultaneously, 
it is critical that HHS establish some rationale basis for 
selecting one State before another. States in which the ASFA 
outcome measures suggest greater risks to children and a 
failure to achieve the goals of safety, permanency, and child 
well-being should be elevated to the top of the list.

Methodology Assures Challenges to Non-Compliance Findings

    Although the on-site review must ``cover the State's 
programs under titles IV-B and IV-E of the Act, including in-
home services and foster care,'' it calls for a sample of cases 
no larger than 50 and as small as 30. HHS points out that there 
were ``strong concerns'' about the sample size of 30-50 cases. 
Commenters complained that it ``may not be representative of 
the State's service populations,'' it ``would not lead to 
credible judgements of substantial compliance'', would not be 
``statistically valid'', and would generate only ``anecdotal 
evidence.''
    This summary echoes the comments submitted by the American 
Public Human Service Association to the proposed regulations. 
APSHA's letter to HHS on behalf of this public agency members 
contains multiple references to the sample size. At one point 
it wrote that ``the sample size of cases must be representative 
of the state-otherwise the information is anecdotal at best, 
and we question how a judgment of conformity can be credibly 
made.'' Later it cautions that ``the statistical validity of 
the sample size. . . [is] inextricably linked to a fair and 
effective review system'' and questions again if ``a small 
sample size [can] accurately reflect the totality of the 
system? ''
    These comments provide a good idea of how state 
administrators will respond to a finding of non-compliance 
which uses this small sample as part of the underlying basis 
for the finding. To those of us who have brought lawsuits on 
behalf of the children harmed by state child welfare systems, 
these are familiar complaints. The refrain is the same. The 
named plaintiffs are not representative of children in foster 
care. The information in the complaint is only anecdotal. We 
believe that the comments criticizing the small sample size are 
a warning, a harbinger of the state's challenge to findings of 
non-compliance. As HHS seeks to hold agency's accountable for 
compliance with the law, they will encounter that same 
arguments faced by the plaintiffs in the litigation brought to 
enforce those laws.
    For any state found out compliance, we foresee automatic 
challenges to the findings and a demand for additional case 
reviews. These additional case reviews will result in 
significant delays in completion of the CFSR and the 
development and implementation of any program improvement plan. 
While the dispute or discrepancy over a finding of non-
compliance remains unresolved, there is no provision for any 
program improvement plan or partial plan to be required during 
this time. HHS' hands are tied during this time. The delays 
implicit in this system are significant.

Limitations of the AFCARS Data

    HHS will use certain statewide data indicators that are 
drawn from the ASFA outcome measures in assessing States' 
performance. These data indicators, though not set forth in the 
regulations, are described in the preamble and mentioned in 
Assistant Secretary Golden's testimony. They include such 
things as repeat maltreatment of children, length of stay in 
foster care, and the number of placements experienced by 
children during a 12 month period while in foster care. States' 
AFCARS submissions are the data source for many of these 
indicators.
    The regulations also provide that AFCARS data will be used 
to establish the national standard against which state 
compliance, in part, will be measured. The ``initial national 
standards for the statewide data indicators will be based upon 
the 75th percentile of all State performance for that 
indicator, as reported in AFCARS or NCANDS.''
    We share the concerns of others who expressed a lack of 
confidence in the reliability of data drawn from AFCARS. We 
cite just a few examples from our work around the country.
    One of the performance indicators relates to placement 
stability. It asks ``of all children served who have been in 
foster care less than 12 months from the time of the latest 
removal from home, what percentage have had not more than two 
placement settings?'' From our conversations with foster 
parents, our review of records, and our discovery in 
litigation, we believe that this data collected and submitted 
by the States as part of their AFCARS submission, is 
inaccurate. Oftentimes, it appears that shelter care and other 
brief placements are not included in the count. Sometimes, if 
the agency does not pay foster care maintenance payments for 
the placement, it does not show up in the count. A study which 
we recently obtained in litigation pending in the State of 
Washington raises similar issues about the accuracy of 
placement setting data.
    Another of the performance indicators relates to repeat 
abuse and/or neglect. It asks ``of all children who were 
victims of substantiated or indicated child abuse and/or 
neglect during the period under review, what percentage had 
another substantiated or indicated report within a 12-month 
period? '' We are concerned that as more states adopt systems 
for diverting some child abuse/neglect reports from the normal 
investigative process that the states' data on substantiated 
reports will not reflect the true incidence of abuse. For 
example, recent statutory amendments to the child protective 
services law in Nevada allow the agency, under certain 
circumstances, to provide counseling, training, or other 
services to the family in lieu of completing an investigation 
of the complaint. In these situations, even though abuse or 
neglect may have occurred, there is no official finding, no 
determination of whether or not the abuse was substantiated. 
Several other states have adopted similar dual response 
systems. At a recent presentation during the annual conference 
of the Child Welfare League of America, the speakers described 
an Alternative Response System being developed in California. 
In that system, some of the reports called into the hotline 
that meet the statutory definition of abuse/neglect are 
diverted from the investigative process to contracted 
community-based services. No formal investigation is completed 
and no finding--substantiated or un-substantiated--is made. As 
a consequence, repeat incidents of abuse do not get into the 
state's central registry and the data on reabuse of children is 
incomplete. We do not mean to suggest that these alternative 
responses may not be a suitable innovation. There is, however, 
littler independent evaluation of these systems. In any case, 
they have an impact upon the accuracy of data concerning the 
incidence of abuse.
    Finally, we question the utility of measuring the safety 
risks to children in foster homes by simply using data on the 
percentage of children in care who were the subject of 
substantiated or indicated maltreatment by a foster parent or 
facility staff. First of all, this measure, by its terms, 
excludes incidents in which one child in the home or facility 
is mistreated by another child in the facility. Unfortunately, 
this is an all too real risk to children in and out of home 
placement. Secondly, our discovery in at least one case has 
confirmed that while the official reports of abuse or neglect 
in foster homes were not substantiated, there were substantial 
violations of licensing standards which placed the foster 
children at risk. Finally, our interviews with children in 
foster care confirm that they often do not report the abuse and 
neglect that occurs in out of home placements.

Objectivity in the Review Process

    The CFSR requires that the reviews be conducted by a team 
with members chosen from four groups. HHS staff are one of the 
groups. The three remaining groups include staff of the agency 
that is being evaluated, representatives selected by the State, 
and other individuals to whom the State must agree.
    The objectivity of the persons entrusted with performing 
the reviews is critical to the integrity of the process. My own 
experience with internal quality assurance programs in several 
states has reaffirmed this principle. Congress recognized the 
importance of wholly external reviewers with it gave HHS the 
authority to grant demonstration waivers but required that the 
State obtain an evaluation by an independent contractor of the 
effectiveness of the project, using an evaluation design 
approved by the Secretary. The importance of having reviews 
conducted by persons other than the agency or its appointees is 
implicit in other parts of the statute as well. Permanency 
hearings must be conducted by the court or an administrative 
body appointed or approved by the court. When so much is at 
stake, triggered by a finding of non-compliance--mandatory 
program improvement, increased federal scrutiny, loss of 
federal funds--there is a great impetus to find--there is a 
great impetus to find compliance. Insulating the process from 
bias is key if there is to be confidence in the results.
    Futhermore, we agree with HHS' conclusion that the review 
process needs to evaluate the quality of the decision-making 
process and service delivery expected of caseworkers. For this 
task, HHS points out that we must be willing to accept the 
professional judgement of reviewers in determining substantial 
conformity. This assessment of quality and its dependence upon 
the subjective judgement of reviewers makes the selection of 
teams members from outside the agency all the more critical.
    We appreciate the opportunity to share our concerns and 
suggestions with the Committee.

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