Senate Can and Must Pass Legislation to Keep Families Together

WASHINGTON – Senate Finance Committee Ranking Member Ron Wyden, D-Ore., today said the Senate “can and must” pass the bipartisan Family First Prevention Services Act when Congress returns to its legislative agenda in the fall.

“The weight of the status quo is severe, and it falls heaviest on the thousands of foster kids living in quiet struggle,” Wyden said. “If this bill were to come before the Senate in an up-or-down vote, I believe it would sail through on a bipartisan basis. It’s the right policy for kids, and it’s the right policy for taxpayers, whose investments in foster care today aren’t helping children and families the way they should.”

Wyden, along with Chairman Orrin Hatch, R-Utah, introduced the Family First Prevention Services Act last month. It has the support of more than 190 child advocacy groups. It passed the House of Representatives in June.

Read his full remarks, as prepared for delivery:

“M. President, with a weeks-long recess upon us, sometimes opportunities to make history get lost. I’m going to take a few minutes to describe an historic opportunity to help vulnerable families and children at risk. I hope my colleagues rise to the occasion when Congress resumes its legislative work in September.

The bipartisan, bicameral legislation called the Family First Prevention Services Act would give new hope to hundreds of thousands of children and their families. It would, for the first time, allow states to permanently invest federal foster care dollars to safely keep families together, instead of ripping them apart. It passed the House by voice vote at the end of last month, and in my view it ought to be an easy bipartisan win. I remain hopeful the Senate will come together to pass it in the months ahead.

I want to take a few minutes to look back at how this proposal came together before describing what it can accomplish. In the mid-1990s, there was a debate in the Congress as to whether sending kids to orphanages was the right idea. It was obvious, in my view, that there had to be better alternatives.

Along with many of my colleagues from both sides of the aisle, I saw an opportunity for our child welfare policies to empower and unite families, so I authored the Kinship Care Act. It said that aunts or uncles or grandparents who met the right standards would be notified and have first preference when it came to caring for a niece or nephew or grandchild. It was the first federal law of its kind. And over the past two decades Congress, in a bipartisan manner, has built on that framework.

Two years ago, I became Chairman of the Finance Committee, and I wanted to continue that progress and keep building on those values. Because even though the 1990s are long gone, the foster care system is still badly flawed. When you look at the child welfare policies on the books today, you see big incentives for breaking families up. You don’t see anywhere near enough incentive for keeping families together and helping them heal and thrive. It’s a system that boxes families into two often bad options: foster care, or nothing at all. So two years ago, I began working on legislation to change that.

I put forward a proposal in 2015 called the Family Stability and Kinship Care Act. In the months that followed, I worked with Republican and Democratic colleagues in the Senate and the House on a bipartisan path forward. Last month, Chairman Hatch and I, along with Ways and Means Chairman Brady, Ranking Member Sander Levin and Congressman Vern Buchanan in the House, introduced our bipartisan, bicameral bill. Here’s what our legislation would do.

First, it takes the current system that’s rife with flaws and turns it on its head. Instead of paying a dollar for families to be split up, the bill says, let’s see if it’s possible to use that dollar to help a family stay together. Let’s see if that dollar can keep a youngster safe at home, where he or she’s most likely to be healthy and happy and succeed in school.

Colleagues, remember that most youngsters in foster care aren’t there because of physical or sexual abuse. Kids predominantly wind up in foster care because of circumstances that lead to neglect. Maybe Mom or Dad needs help dealing with a child’s behavioral issues. Maybe they need substance abuse treatment. Maybe a relative could step in and help, especially if they have support.

It provides critical assistance to families struggling with addiction to opioids or other substances. It invests in programs that help fight child abuse and neglect. And lastly, it takes what I believe are vital steps to prioritize safety by setting basic standards for foster care facilities and group homes.

I want to focus on that last point for a moment. Some troubled or abused youngsters have been through such severe trauma that they need the kind of help they can only get in a temporary, high-quality treatment facility. They’re kids who struggle with mental health illnesses or behavioral problems. Young people recovering from addiction. Victims of sex trafficking. The support they need is unique, and they need access to reliable care in a safe place. But those placements need to be an intervention, not a destination. In my view, when they’re able, children should have the opportunity to reunite with kin or join a foster or adoptive family.

For the first time, our bill would lay down basic standards so that youngsters don’t have to face the prospect of growing up in those circumstances. These are standards guided by the states and laid out to protect kids. They’re designed to raise the bar for group homes and make sure that children aren’t sent away and forgotten. In my view, this policy is a no-brainer.

I understand a small handful of states have raised concerns about this legislation.  The concerns essentially revolve around three common points.

First, I’ve heard concerns that there will not be enough family foster homes to meet demand. It’s true that across the country, many states are facing severe shortages in family foster homes. That’s why the bill invests new funding for competitive grants to improve foster parent recruitment and retention. Moreover, the whole premise of the bill is to prevent children from unnecessarily entering foster care in the first place. States across the country have shown they can safely reduce foster care and in so doing, reduce the demand for foster homes. And let’s not forget, states would have over three years before these new group home standards come into effect giving more than adequate time to plan for the changes.

A second concern I have heard is that there is there is too much rigidity when it comes to licensing standards, accreditation, and assessment requirements for children placed in residential treatment programs for youth in need of higher levels of care.  The sponsors of the legislation as well as the Department of Health and Human Services have made it abundantly clear that there is significant flexibility in these provisions of the bill. With respect to child welfare law, there is no statutory or regulatory definition for what constitutes “licensed clinical and nursing staff”. A wide variety of models could be used to meet these criteria. What we must not lose sight of is the fact that the terminology in this bill is based on what we know is in the best interest of children. The standards laid out in this bill are supported by the American Academy of Pediatrics, the Pediatric Nurse Practitioners, the American Association of Child and Adolescent Psychiatry, the Children’s Defense Fund and over 130 other organizations.

A third concern I have heard is that the time frame for assessing youth to determine whether they need residential treatment is too short. Under the legislation, a state can receive a federal match for up to two weeks for any foster care placement that is allowable under current law. That means placements like child care institutions, shelters, group homes, and family foster homes for up to two weeks. After those two weeks, in order to receive a federal match for room and board, a child may only be served in a family foster home, a supervised independent living placement for youth 18 and older, a facility specializing in serving pregnant and parenting youth, or a qualified residential treatment program. If a child is served in a qualified residential treatment program, the state still has up to 30 days to perform an assessment. That means the state has up to six weeks to perform assessments to determine the appropriateness of a child’s placement. And even then, if the residential treatment program is deemed NOT to be in the child’s best interest, the state has an additional 30 days to receive federal funding on behalf of that child to find a more appropriate placement. That adds up to nearly three months for the states to continue to receive federal funding while determining the best placement for a child. Let me tell you, 10 weeks is a long time in the life of a vulnerable kid and should be plenty of time to find an appropriate placement.

In addition to these technical questions, some just say the change is coming too fast. For example, a newspaper recently reported that officials in one particular state warned the bill “could worsen the state’s already worrisome shortage of foster care beds….” And that it could “disqualify about 3,000 slots in group homes and institutional settings” from federal financial help. To my mind, it can be too easy in this debate to lose sight of the fact that right now, a lot of vulnerable youngsters are in desperate circumstances. So let’s focus for a moment on the question of group homes in that particular state.

Last year, the state in question lost a class-action lawsuit over its foster care program. The lawsuit found that the state violated the constitutional rights of foster children by exposing them to unreasonable risks in a system where children “often age out of care more damaged than when they entered.” I want to repeat that finding, because in my view it speaks volumes; that children “often age out of care more damaged than when they entered.”

The U.S. District judge who wrote the decision directed the state to stop placing certain children in unsafe settings such as foster group homes that lack 24-hour supervision. At question was whether group homes should continue to operate at all, given concerns that they cause “an unreasonable risk of harm” to foster children. The Court heard testimony that in foster group homes that mix younger children with older children, sexual abuse “is usual rather than unusual.” The Court heard stories of one foster boy who was “sexually abused almost every night by one of the bigger boys in the home” while the caretakers were asleep on the other side of the house. So in my judgement, if that’s the way things are now, then that’s a situation that cries out for change. It’s time to take a fresh approach that will do a better job of protecting kids and families.

Here’s my bottom line, colleagues. The weight of the status quo is severe, and it falls heaviest on the thousands of foster kids living in quiet struggle.

Doing nothing is easy, I realize that. But it’s long past time for the Congress to overcome the inertia of the status quo. And the fact is, most of the reforms you’re seeing today are incremental – foisted upon states in decrees, settlement agreements, and court orders in class action lawsuits.

My home state of Oregon is no exception. Oregon’s Department of Human Services was just hit by a $60 million lawsuit. Too often states fail to provide for the most basic safety for these vulnerable kids, and that’s why advocates are turning to the courts for change.

In recent years, the advocacy organization Children’s Rights has filed class action lawsuits in Arizona, Connecticut, DC, Georgia, Massachusetts, Michigan, Missouri, New Jersey, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas, and Wisconsin.

Absent reforms and partnership with the federal government, unfortunately, these types of lawsuits that produce only slow improvements will continue to be one of few clear avenues to drive change. It’s time Congress stepped up. The standards laid out in this bill are supported by the American Academy of Pediatrics, the Pediatric Nurse Practitioners, the American Association of Child and Adolescent Psychiatry, and the Children’s Defense Fund and countless others. The experts agree with our premise: that group home care should be used only when it’s clinically necessary.

Colleagues, this bill is not perfect, but no legislation is ever perfect. I have been clear that there will be opportunities – both through the regulatory and legislative processes – to strengthen this legislation and build on it. But in my judgement, this bill gets us closer to a world where foster care is needed less often – a system where the priority is keeping children and families together.

If this bill were to come before the Senate in an up-or-down vote, I believe it would sail through on a bipartisan basis. It’s the right policy for kids, and it’s the right policy for taxpayers, whose investments in foster care today aren’t helping children and families the way they should.

I urge my colleagues to support the Family First Prevention Services Act. The Senate can and must get this done in the months ahead and send it to the president’s desk.

As Civil Rights icon Marian Wright Edelman said, “Don’t make our most vulnerable children wait longer” for the help they need.

With that, I ask that my comments be placed in the Congressional Record.”

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