Foster Care: Implementation of the Multiethnic Placement Act Poses Difficult Challenges
Released: 1998-09-15T00:00:00

Letter

Background

The Howard M. Metzenbaum Multiethnic Placement Act of 1994 is one of several recent congressional initiatives to address concerns that children remain in foster care too long. As originally enacted, the law provided that the placement of children in foster or adoptive homes could not be denied or delayed solely because of the race, color, or national origin of the child or of the prospective foster or adoptive parents. However, the act expressly permitted consideration of the racial, ethnic, or cultural background of the child and the capacity of prospective parents to meet the child’s needs in these areas when making placement decisions—if such a consideration was one of a number of factors used to determine the best interests of a child. Furthermore, it required states to undertake efforts to recruit foster and adoptive families that reflect the racial and ethnic diversity of children in need of care.

The 1996 amendment clarified that race, color, or national origin may be considered only in rare circumstances when making placement decisions.As amended, the act states that placement cannot be denied or delayed because of race, color, or national origin. Furthermore, the amendment removed language that allowed routine consideration of these factors in assessing both the best interests of the child and the capacity of prospective foster or adoptive parents to meet the needs of a child. An agency making a placement decision that uses race, color, or national origin would need to prove to the courts that the decision was justified by a compelling government interest and necessary to the accomplishment of a legitimate state purpose—in this case, the best interests of a child. Thus, under the law, the “best interests of a child” is defined on a narrow, case-specific basis, whereas child welfare agencies have historically assumed that same-race placements are in the best interests of all children. The amendment also added an enforcement provision that penalizes states that violate the amended act. The penalties range from 2 percent to 5 percent of the federal title IV-E funds the state would have received, depending upon whether the violation is the first or a subsequent one in the fiscal year. HHS estimates that the maximum penalty for a state with a large foster care population could be as high as $10 million in one year. Any agency, private or public, is subject to the provisions of the amended act if it receives federal funds. Agencies that receive funds indirectly, as a subrecipient of another agency, must also comply with the act. Such funds include but are not limited to foster care funds for programs under title IV-E of the Social Security Act, block grant funds, and discretionary grants.

Before placements can be made, a child welfare agency must have an available pool of prospective foster and adoptive parents. In order to become foster or adoptive parents in California, applicants undergo a process that requires them to open all aspects of their home and personal life to scrutiny. Typically, these prospective parents attend an orientation and are fingerprinted and interviewed. They then attend mandatory training that can last up to 10 weeks. If they meet the minimum qualifications—such as a background free from certain types of criminal convictions—their personal life is then reviewed in detail by caseworkers.This review is called a homestudy. According to one county, 20 percent or fewer applicants reach this milestone. A homestudy addresses the financial situation, current and previous relationships, and life experiences of the applicant. It also addresses the abilities and desires of the applicant to parent certain types of children—including children of particular races—and other issues. Only when the homestudy process is completed, a written report of its findings approved by a child welfare agency, and the home found to meet safety standards is an applicant approved as a foster or adoptive parent. Caseworkers may then consider whether a prospective foster or adoptive parent would be an appropriate caregiver for a particular foster child.

Social work practice uses the best interests of the child as its guiding principle in placement decisions. Caseworkers exercise professional judgment to balance the many factors that historically have been included when defining that principle. When considering what is in the best interests of the child, both physical and emotional well-being factors such as the safety, security, stability, nurturance, and permanence for the child are taken into consideration. In social work practice, the need for security and stability has included maintaining cultural heritage. The caseworker’s placement decision may also be affected by the administrative procedures used in an agency, the size of the pool of potential foster and adoptive parents, and, in some cases, individual caseworkers’ beliefs. An agency may have a centralized system for providing caseworkers with information on available homes, or it may be left to the caseworker to seek out an available foster home. Depending on the size of the pool of potential foster or adoptive parents and the needs of the child, a caseworker may have few or many homes to consider when making a placement decision. In any case, good casework practice includes making individualized, needs-based placements reflecting the best interests of a child.

While the thrust of the act, as amended, is toward race-blind foster care and adoption placement decisions, other federal policies that guide placement decisions inherently tend toward placing children with parents of the same race. The Indian Child Welfare Act of 1978 grants Native American tribes exclusive jurisdiction over specific Native American child welfare issues. The Multiethnic Placement Act does not affect the application of tribal jurisdiction. Section 505 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 amended section 471(a) of the Social Security Act to require states to consider giving priority to relatives of foster children when making placement decisions. Some states, such as California, require that caseworkers first try to place a child with relatives—known as kinship caregivers—before considering other types of placement. Consequently, the Multiethnic Placement Act affects about one-half of the California foster care caseload—those foster and adoptive children who are not under tribal jurisdiction or cared for by relatives.

The 1994 Act Launched Efforts to End Discriminatory Placement Activities

HHS, the state of California, and foster care and adoption agencies in the two counties we reviewed took actions to inform agencies and caseworkers about the passage of the 1994 act. HHS also provided technical assistance to states, including working with states to ensure that state laws were consistent with the act. California changed state law and regulations, and the two counties we reviewed also changed policies to conform to the new law. In addition, the two counties provided training on the act to caseworkers responsible for making placement decisions.

HHS Implementation Efforts

HHS recognized the significance of the change in casework practice that the 1994 law would require of child welfare agencies by restricting the use of race in placement decisions. In response, HHS launched a major effort to provide policy guidance and technical assistance.

The underpinning for HHS’ actions was coordination among its units that do not customarily issue joint policies—such as the Children’s Bureau and the Office for Civil Rights—to ensure that the agency provided consistent guidance. These two units have the responsibility within HHS for implementing the act. The Children’s Bureau administers programs of federal financial assistance to child welfare agencies and has responsibility for enforcing compliance with the laws authorizing that assistance. The Office for Civil Rights has the responsibility for enforcing compliance with civil rights laws. HHS officials told us that this internal coordination was also essential because the agency itself needed to undergo cultural changes. For example, in order to provide joint guidance, officials in the Office for Civil Rights needed to understand a social work perspective on the role of race in making placement decisions, and officials in the Children’s Bureau needed to understand civil rights principles in the context of their programs. Officials told us that they also notified agency grantees of the act and reviewed selected documents to see that they were consistent with it.

Within 6 weeks of enactment of the new law, HHS issued a memorandum to states that summarized the act and provided its text. About 5 months later—and 6 months before the act went into effect—HHS issued its policy guidance. (See app. III for the text of the guidance.) The guidance, jointly issued by the Children’s Bureau and the Office for Civil Rights, was based on legal principles in title VI of the Civil Rights Act of 1964. The guidance introduced key legal concepts and identified certain illegal practices, such as the use of a time period during which a search would occur only for foster or adoptive parents of the same race as the foster child. Some states believed that HHS’ guidance regarding the use of race in placement decisions was more restrictive than provided for in the act. However, HHS maintained that its guidance accurately reflected the statutory and constitutional civil rights principles involved. To assist states in understanding what they must do to comply with the act, officials from the Children’s Bureau and the Office for Civil Rights jointly provided training to state officials and discussed the new law with state child welfare directors in at least 10 states. In addition, HHS contracted with a National Resource Center for a monograph on the new law; the monograph was released at the time the act went into effect and provided additional guidance for states’ use when implementing the act. Finally, HHS made other information and resources available to states from its contracted Resource Centers, including assistance to individual states.

To ensure that state laws were consistent with the act, the Office for Civil Rights reviewed each state’s statutes, regulations, and policies. It then worked with states whose laws did not conform to initiate corrective action. The review found that the statutes, rules, or policies of 28 states and the District of Columbia did not conform. All of them completed changes to comply with the 1994 law. Furthermore, as part of its ongoing efforts to determine whether agency policies and caseworker actions comply with civil rights law, including the act, the Office for Civil Rights continued to investigate complaints of discrimination that were filed with the agency. Past complaints have consisted, for example, of charges brought by foster parents who were not allowed to adopt a child who had been in their care; the denial of the opportunity to adopt the child was allegedly because the child was of a different race than the foster parents.

California Implementation Efforts

Implementation of the 1994 act required changes to law and regulations at the state level and to policies at the county level. The state of California began its implementation efforts in August 1995 by issuing an informational memorandum to alert counties to the act before it went into effect. In addition, state officials began a collaborative effort with an association of county child welfare officials to devise an implementation strategy. The state also began the process of amending its state law to comply with the federal statute. When amended, the state law eliminated a discriminatory requirement that same-race placements be sought for 90 days before transracial placements could be made. The state also revised its adoption regulations after the state law was passed. State officials told us that it was not necessary to revise the foster care regulations because they were already consistent with the act. Although the change in state law eliminated the requirement to seek same-race placements, that provision had not previously been included in the foster care regulations. In addition, state officials believe that the act focused primarily on adoption issues. Thus, adoption regulations required revision, whereas foster care regulations did not. In the counties we reviewed, one county finished revision of its foster care and adoption policies in February 1996. The other county issued a memorandum to its staff in January 1996 to alert them to the new law. However, that county has not formally revised its foster care or adoption policies in over 20 years, according to one county official.

The state and counties planned training on the 1994 law, but only the counties actually conducted any. The state planned to roll out training, but suspended the planned training when the act was amended in August 1996. State officials told us that they needed to revise the training to reflect the amendment. The two counties, however, developed their own training programs by relying on information they obtained from the county child welfare association. In both counties, supervisors in the adoption unit took the lead in developing and presenting one-time training sessions to foster care and adoption caseworkers. Most, if not all, foster care and adoption caseworkers in the two counties received training. Both counties also incorporated training on the 1994 act into their curriculums for new caseworkers.

HHS and California Were Slow to Respond to the 1996 Amendment

Following amendment of the act, HHS was slower to revise its policy guidance and provided less technical assistance to states than it did after the passage of the 1994 act. While California informed its counties of the change in federal law, it did not do so until 3 months after HHS issued its policy guidance on the amended act. Although HHS did not repeat its technical assistance effort to assist states in understanding the amended law, the state and counties we reviewed provided some training on the amended act to staff.

HHS Policy on the 1996 Amendment Reiterates Civil Rights Focus

HHS did not notify states of the change in the law until 3 months after its passage and did not issue policy guidance on the amendment until 6 months after the notification. (See app. IV for the text of the guidance.) As was the case with the policy guidance on the original act, HHS’ revised guidance was issued jointly by the Children’s Bureau and the Office for Civil Rights. The policy guidance noted changes in the language of the law, such as the elimination of the provision that explicitly permitted race to be considered as one of a number of factors. The guidance also described the penalties for violating the amended act and emphasized civil rights principles and key legal concepts that were included in the earlier guidance on the original act. The new guidance expressed HHS’ view that the amended act was consistent with the constitutional and civil rights principles that HHS used in preparing its original guidance. However, it was not until May 1998, when we submitted a set of questions based on concerns that county officials and caseworkers raised with us, that HHS issued guidance answering practical questions about changes in social work practice needed to make casework consistent with the amended act. (See app. V for a list of the questions and answers.) The guidance on social work practice issues clarified, for example, that public agencies cannot use race to differentiate between otherwise acceptable foster placements even if such a consideration does not delay or deny a child’s placement. The agency did not repeat the joint outreach and training to state officials that it provided for the 1994 act. While the technical assistance provided by the Resource Centers is ongoing, the monograph on the act has not yet been updated to reflect the amendment.

The Office for Civil Rights took several actions to ensure that state actions were consistent with the amended act. It addressed case-by-case complaints of violations and, in 1997, began reviews in selected locations. Officials told us that it was not necessary to conduct another comprehensive review of state statutes because they said they would work with states on a case-by-case basis. In addition, officials explored the use of AFCARS to monitor foster care and adoption placements. HHS officials who work with AFCARS confirmed that neither the historical data needed to determine placement patterns related to race that may have existed before the 1994 act’s effective date nor the current information on most states’ foster children—including California’s—was sufficiently complete or adequate to allow its consideration in determining whether placement decisions included use of race-based criteria.

State and County Implementation Activities for the 1996 Amendment Under Way but Incomplete

Passage of the amendment in 1996 again required changes in state law, regulations, and policy. A bill was introduced in the California legislature in February 1998 to make California State law consistent with the federal amendment. The bill originally contained language to delete a nonconforming provision in state law that explicitly allows consideration of race as one of a number of factors in a placement decision. However, state officials told us the bill has been stalled in the legislative process and its passage is uncertain. Although federal law takes precedence over state law when such situations arise, an HHS Office for Civil Rights official told us that HHS encourages states to pass conforming legislation. Furthermore, state officials told us that state regulations on adoption and foster care placement cannot be changed until this bill becomes law. Therefore, California regulations continue to reflect only the 1994 law. In September 1997, the state notified its counties of the amendment to the act. Although counties can change their own policies without state actions, in the two counties we visited, only one has begun that process: in that county, the adoption unit has begun to update its regulations, but the foster care unit has not done so.

Despite the lack of a change in state law, the state resumed its training activities in February 1998, when it offered its first training seminar on the amended act. A limited number of county workers in the southern portion of the state attended that seminar, which included 3 hours of training. The state held two additional training sessions in the state and plans to include training on the amended act at two other seminars. To date, the state has targeted the training to licensing and recruitment staff—who work with potential foster and adoptive parents—and not to caseworkers or supervisors who place children in foster and adoptive homes. But it is these latter staff who are most directly responsible for placement decisions and thus for complying with the amended act’s provisions. Finally, one of the two counties we visited is now developing written training material to reflect the 1996 amendment and has provided formal training on it to some workers. The other county charged its supervisors with training their staff one-on-one.

HHS and the State Face Continuing Implementation Challenges

Officials at all levels of government face a diverse set of challenges as they continue to implement the amended act. Major issues that remain include changing caseworkers’ and practitioners’ beliefs about the importance of race-based placement decisions, developing a shared understanding at all levels of government about allowable placement practices, and developing an effective federal compliance monitoring system.

The Act’s Removal of Race From Placement Decisions Not Consistent With Long-Standing Social Work Practice and Some Caseworkers’ Beliefs

The belief that race or cultural heritage is central to a child’s best interests when making a placement is so inherent in social work theory and practice that a policy statement of the National Association of Social Workers still reflects this tenet, despite changes in the federal law. Matching the race of a child and parent in foster care placements and public agency adoptions was customary and required in many areas for the last 20 years. The practice was based on the belief that children who are removed from their homes will adapt to their changed circumstances more successfully if they resemble their foster or adoptive families and if they maintain ties to their cultural heritage. In this context, the childrens’ needs were often considered more compelling than the rights of adults to foster or adopt children. One state official made this point directly, stating that her purpose is to find families for children, not children for prospective parents.

Officials’ and caseworkers’ personal acceptance of the value of the act and the 1996 amendment varies. Some told us that they welcomed the removal of routine race-matching from the child welfare definition of best interests of a child and from placement decisions. Those who held this belief said the act and the 1996 amendment made placement decisions easier. Others spoke of the need for children—particularly minority children—always to be placed in homes that will support a child’s racial identity. For those individuals, that meant a home with same-race parents. Furthermore, some who value the inclusion of race in placement decisions told us that they do not believe that the past use of race in the decision-making process delayed or denied placements for children.

State and Local Officials Need Information on How to Change Social Work Practice

State program officials in California are struggling to understand the amended act in the context of casework practice issues. They are waiting for the HHS Children’s Bureau or the federal National Resource Centers to assist them in making the necessary changes in day-to-day casework practices. In particular, the use of different definitions by caseworkers and attorneys of what constitutes actions in a child’s best interests makes application of the act and the amendment to casework practice difficult. State officials characterized the federal policy guidance as “too legalistic.” Furthermore, although officials from the Office for Civil Rights have provided training to state officials and continue to be available to conduct training, these state officials do not consider Office for Civil Rights officials capable of providing the desired guidance on how to conduct casework practice consistent with the amended act; as a result, state officials are hesitant to request such guidance from the Office for Civil Rights.

The officials in the two counties we visited said their implementation efforts were hampered by the lack of guidance and information available to them from federal and state sources. The questions on casework practice that we submitted to HHS arose in the course of our discussions with county officials and caseworkers. County officials stressed that they began their implementation efforts with little federal and state technical assistance to help them understand the implications of the act for making foster care and adoption placement decisions; they relied instead on an association of county child welfare officials to obtain the information they needed. Despite the counties’ efforts to independently obtain information to proceed with implementation, documents we reviewed in both counties reflected a lack of understanding of the provisions of the amended act. For example, in one county, a draft informational document that was being prepared to inform caseworkers about the amended act included permission for caseworkers to consider the ethnic background of a child as one of a number of factors in a placement decision, even though the 1996 amendment removed similar wording from federal law. In addition, while the caseworkers we interviewed were aware that the act and the 1996 amendment do not allow denial or delay of placements related to race, color, or national origin, some caseworkers were unsure how and when they are allowed to consider such factors in making placement decisions.

The need for clear guidance on practical casework issues was demonstrated in a state-sponsored training session we attended in February 1998. The training consisted of presentations from four panelists: an attorney from the HHS Office for Civil Rights, an attorney from a National Resource Center, and two representatives from private agencies that recruit minority foster and adoptive parents for the state of California. While the panelists’ presentations noted that placements could not be denied or delayed for race-based reasons, they offered contradictory views of permissible activities under the law. For example, the panelists were asked if race could be used to choose a placement when two available families are equally suitable to meet the needs of a child but one family is of the same race as the child. The attorney from the Office for Civil Rights advised that race could not be used as the determining factor in that example, whereas the attorney from the Resource Center said that a case could be made for considering race in that circumstance. The state has since modified the training session to provide a more consistent presentation. However, the paucity of practical guidance contributes to continued uncertainty about allowable actions under the amended act. For example, although the act and the 1996 amendment apply equally to foster and adoption placements, some state and county officials told us that they believe it applies primarily to adoption placements.

Development of a Compliance Monitoring System Hampered by Lack of Data and Documentation

Federal officials will need to seek new ways to identify appropriate data and documentation that will allow them to effectively determine whether placement decisions conform to the provisions of the amended act.

Federal AFCARS information is the primary source of federal administrative data about foster care and adoption. It allows HHS to perform research on and evaluate state foster care and adoption programs, and it assists HHS in targeting technical assistance efforts, among other uses. However, AFCARS data are not sufficient to determine placement patterns related to race that may have existed before the 1994 act’s effective date. Our examination of AFCARS indicated that the future use of this database for monitoring changes in placement patterns directly related to the amended act is unlikely. For example, the database lacks sufficient information on the racial identity of foster and adoptive children and their foster parents to conduct the type of detailed analysis of foster care and adoption patterns that would likely be needed to identify discriminatory racial patterns.

Analysis of any administrative data will be hampered by difficulties in interpreting the results. Data showing a change in the percentage of same-race placements would not, alone, indicate whether the amended act was effective in restricting race-based placement practices. For example, an increase in the percentage of same-race placements for black foster children could indicate that the amended act is not being followed. Conversely, the same increase could mean that the amended act is being followed but more black foster and adoptive parents are available to care for children because of successful recruitment efforts. If relevant information on changes in the pool of foster and adoptive parents is not available for analysis—as is the case with AFCARS data—then it would not be possible to rule out the success of recruitment efforts as a contributor to an increase in same-race placements.

While case files are another source of information about placement decisions, and such files are used in one type of review periodically performed by HHS, reviewing those files may provide little documentation to assist in determining whether placement decisions are consistent with the amended act’s restrictions on the use of race-based factors. In the two counties we visited, the processes caseworkers described for making placement decisions generally lacked a provision for documenting the factors considered, the placement options available, or the reason a particular placement was chosen. Our review of a very limited number of case files in one county, and our experience reading case files for other foster care studies, confirmed that it is unlikely the content of placement decisions can be reconstructed from the case files.

Conclusions

The Multiethnic Placement Act, as amended, has been difficult for agencies to implement. Successful implementation requires changing state laws, policies, and regulations; organizational and personal beliefs in the value of race as a significant factor in making foster and adoptive placements; and casework practices so that they incorporate civil rights principles into the definition of a child’s best interests.

The federal and state agencies we reviewed began the administrative portion of this task immediately after enactment in 1994. But early prompt action was not sustained after the act was amended. Furthermore, our discussions with California state officials, and our observation of state-sponsored training sessions, suggest that federal policy guidance was not sufficiently practice-oriented to allow caseworkers to understand how to apply the law to the placement decisions they make.

Because foster care and adoption placement decisions are largely dependent upon the actions of individual caseworkers, their willingness to accept a redefinition of what is in the best interests of a child is critical to the successful implementation of this legislation. While some caseworkers welcomed the new law, others frankly discussed with us their concerns about eliminating almost all racial considerations from placement decisions.

HHS and the state of California face the challenge to better explain to practitioners how to integrate social work and legal perspectives on the role of race in making decisions that are in a child’s best interests. Because these perspectives are not compatible, tension between them is inevitable. Without a resolution to that tension, full implementation of the amended act may be elusive.

Agency Comments and Our Evaluation

We provided HHS, the state of California, and the two counties in California that we reviewed with the opportunity to comment on a draft of this report. We received comments from HHS, the state of California, and San Diego County.

In commenting on a draft of the report, HHS expanded on two topics addressed in the report: technical assistance, including training; and monitoring for compliance with the act and its amendment. In discussing technical assistance, HHS reiterated its implementation efforts as described in our report, provided information on related actions it has taken in states other than California, and noted that it expects to publish the updated monograph on the amended act in the fall of 1998. In commenting on the challenge of developing a compliance monitoring system, HHS described its pilot efforts to integrate monitoring of compliance with the amended act into its overall monitoring of child welfare outcomes and noted that it expects to publish a notice of its proposed monitoring processes in the Federal Register in October 1998. We agree that an integrated approach to compliance monitoring of child welfare issues could be an effective one. However, because we have not seen HHS’ proposal, we cannot assess whether the proposed monitoring will be sufficient to ensure that foster care and adoption placements are consistent with the requirements of the amended act. In this regard, HHS agreed that AFCARS data have limited utility in tracking state compliance with the amended act. HHS also made technical comments, which we incorporated where appropriate. The full text of HHS’ comments are contained in appendix VI.

The state of California and San Diego County provided technical comments, which we incorporated where appropriate.

As agreed with your office, we will make no further distribution of this report until 30 days from the date of this letter. At that time, we will send copies of this report to the Secretary of Health and Human Services and program officials in California. We will also make copies available to others on request.

Please contact me on (202) 512-7215 if you or your staff have any questions. Other GAO contacts and staff acknowledgments are listed in appendix VII.

The Howard M. Metzenbaum Multiethnic Placement Act of 1994

Interethnic Adoption Provisions Amending the Multiethnic Placement Act of 1994

HHS Guidance on the Multiethnic Placement Act of 1994

HHS Guidance on the Interethnic Adoption Provisions

HHS Clarification of Placement Practice Issues

Comments From the Department of Health and Human Services

GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

In addition to those named above, Patricia Elston led the federal fieldwork and coauthored the draft, and Anndrea Ewertsen led the California fieldwork and coauthored the draft.

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