Child Welfare: Implementation of the Adoption and Safe Families Act

CRS Report for Congress
Child Welfare: Implementation of the
Adoption and Safe Families Act
Updated November 8, 2004
Karen Spar
Specialist in Social Legislation
Domestic Social Policy Division
Matthew Shuman
Research Associate
Domestic Social Policy Division


Congressional Research Service ˜ The Library of Congress

Child Welfare: Implementation of the
Adoption and Safe Families Act
Summary
In response to rising numbers of children in foster care and concerns about the
safety of children that remain with or return to their families after placement in foster
care, the 105th Congress enacted the Adoption and Safe Families Act of 1997 (ASFA,
P.L. 105-89) with two primary goals: (1) to ensure that consideration of children’s
safety is paramount in child welfare decisions, so that children are not returned to
unsafe homes; and (2) to ensure that necessary legal procedures occur expeditiously,
so that children who cannot return home may be placed for adoption or another
permanent arrangement quickly. ASFA is considered the most sweeping change in
federal child welfare law in nearly 20 years.
Most provisions in the 1997 law amended Titles IV-B or IV-E of the Social
Security Act, which authorize grants to states for child welfare activities, including
foster care and adoption assistance. In FY2004, Titles IV-B and IV-E received
appropriations totaling $7.6 billion. As enacted in 1980 (P.L. 96-272), the underlying
law requires states to make “reasonable efforts” on behalf of abused and neglected
children or children at risk of abuse and neglect, to ensure that services are provided
to their families so they can remain safely at home or return home if they have been
placed in foster care. States also must conduct administrative and court hearings on
every child’s case according to a prescribed timetable and establish a permanent
placement plan for each child.
Periodically since P.L. 96-272 was enacted, concern arose that some states and
judges interpreted the federal child welfare laws as requiring family preservation and
reunification at all costs, including in cases where the child’s health or safety was in
jeopardy. ASFA was intended to clarify federal policy to ensure safety for children
who come into contact with the child welfare system. Moreover, ASFA was intended
to expedite permanency for foster children and to promote adoption for those
children who cannot safely return home.
Since 1997, all states have enacted their own laws to implement parts of ASFA,
and the federal Department of Health and Human Services (HHS) has issued
regulations to implement certain provisions of the 1997 law. Acting on a 1994
legislative directive (P.L. 103-432), HHS also initiated a review system in 2001 to
monitor state compliance with federal child welfare laws, including the provisions
of ASFA. HHS also issued several reports as mandated by ASFA.
Finally, ASFA authorized annual incentive payments to states that exceeded
their highest previous number of foster child adoptions in a given year, with larger
payments for adoptions of children with special needs. Congress reauthorized and
revised this program in 2003 (P.L. 108-145), to create separate incentives for
adoptions of older children. For adoptions in FY1998-FY2003, states “earned” a
total of $178 million (of which $17.9 million were earned by 31 states and Puerto
Rico for adoptions finalized in 2003). HHS data indicate approximately 52,500
children were adopted with the involvement of public child welfare agencies in 2002,
for an increase of nearly 70% since 1997. This report will not be updated.



Contents
In troduction ..................................................1
Background and Legislative History...............................2
Provisions of the Adoption and Safe Families Act....................3
Child Safety Provisions.....................................3
Timeframe Provisions......................................5
Eligibility for Adoption and Medical Assistance..................9
Reauthorization and Renaming of Family Preservation Program....10
State Accountability for Performance.........................11
State Innovation and Demonstration..........................11
Kinship Care............................................12
Adoption Incentive Program................................12
Additional ASFA Provisions................................15
Effects of ASFA Legislation....................................15
Demographics of Child Welfare System.......................16
State and Agency Views on ASFA...........................17
List of Figures
Figure 1. Trend in Public Agency Adoptions...........................17
List of Tables
Table 1. Amounts Appropriated and Awarded for Adoption Incentive Payments to
States ......................................................14
The May 21, 2003, version of this report was updated by Matthew Shuman, a Presidential
Management Intern on rotation from the U.S. Department of Health and Human Services.



Child Welfare: Implementation of the
Adoption and Safe Families Act
Introduction
In the mid-1980s, the number of children in foster care began to climb sharply,
while the number of children who were adopted from foster care remained static.
Most children who enter foster care eventually return to their families, but concern
developed in the 1990s about the growing number of children who did not return
home and were remaining in foster care for long periods of time. At the same time,
there was a growing perception that federal law needed clarification regarding the
importance of child safety. These factors prompted the 105th Congress to enact
legislation with two primary goals: (1) to ensure that consideration of children’s
safety is paramount in child welfare decisions, so that children are not returned to
unsafe homes; and (2) to ensure that necessary legal procedures occur expeditiously,
so that children who cannot return home may be placed for adoption or another
permanent arrangement quickly.
The Adoption and Safe Families Act (ASFA, P.L. 105-89) was enacted in
November 1997, and is considered the most sweeping change in federal child welfare
law since 1980, when the current configuration of federal child welfare programs was
established. Since 1997, all states have enacted their own laws to implement parts
of ASFA. In January 2000, the federal Department of Health and Human Services
(HHS) issued regulations to implement certain provisions of the 1997 law and, acting
on a 1994 congressional directive (P.L. 103-432), to establish a review system to
monitor state compliance with federal child welfare laws, including ASFA
provisions. HHS also has issued several reports that were mandated by ASFA and
has awarded six rounds of annual incentive payments, also authorized by ASFA (and
subsequently reauthorized in 2003), to states that increased their numbers of foster
child and special needs child adoptions.
This report provides background information and a description of ASFA, with
references to implementation by states and HHS and related actions that occurred
after the law’s enactment.1 This report is current as of the cover date and will not be
further updated. References to additional CRS reports are provided where relevant.
For information on child welfare issues in the 108th Congress, see Child Welfareth
Issues in the 108 Congress, CRS Report RL31746, by Emilie Stoltzfus, and for


1 See also Foster Care: States’ Early Experiences Implementing the Adoption and Safe
Families Act, HEHS-00-1, U.S. General Accounting Office, Dec. 1999 and Foster Care:
Recent Legislation Helps States Focus on Finding Permanent Homes for Children, but
Long-Standing Barriers Remain, GAO-02-585, U.S. General Accounting Office, June 2002.

information on the Adoption Incentives program created by ASFA, see CRS Report
RL32296, Child Welfare: The Adoption Incentives Program, by Kendall Swenson.
Background and Legislative History2
In December 1996, President Clinton directed HHS to develop
recommendations that would result in a doubling of the number of foster child
adoptions by 2002. In response, HHS released a report, Adoption 2002, on February

14, 1997. At the same time, related proposals were being developed in Congress.


In April 1997, the House passed the Adoption Promotion Act (H.R. 867) by a vote
of 416-5, and a bipartisan group of Senators introduced the Safe Adoptions and
Family Environments (SAFE) Act (S. 511) in March 1997. The SAFE Act was
superseded by another bipartisan package — the Promotion of Adoption, Safety, and
Support for Abused and Neglected Children (PASS) Act (S. 1195) — that was
introduced in the Senate on September 18. The PASS Act, with some changes from
the introduced version, was approved by the full Senate on November 8 as a
substitute for the House-passed version of H.R. 867. Differences between the House
and Senate were resolved, and a final, amended version of H.R. 867 — renamed the
Adoption and Safe Families Act — was passed on November 13 by a vote of 406-7
in the House and by unanimous consent in the Senate. President Clinton signed the
bill into law (P.L. 105-89) on November 19, 1997.
Most of the provisions in the 1997 law amended Title IV-B or IV-E of the
Social Security Act, which authorize grants to states for child welfare activities. The
majority of these grants are permanent authorizations and received appropriations
totaling $7.6 billion for FY2004.3 As enacted in 1980 (P.L. 96-272), these provisions
require states to make “reasonable efforts” on behalf of abused and neglected
children or children at risk of abuse and neglect, to ensure that services are provided
to their families so they can remain safely at home or return home if they have been
placed in foster care. States also must conduct administrative and court hearings on
every child’s case according to a prescribed timetable and establish a permanent
placement plan for each child.
Periodically during the years since P.L. 96-272 was enacted, there was concern
that some states and judges interpreted the federal child welfare laws as requiring


2 For a detailed discussion of issues that led to enactment of the Adoption and Safe Families
Act, see Adoption, Foster Care, and Child Welfare: Issues for Congress, CRS Report

97-256, by Karen Spar, Feb. 5, 1997 (archived, available upon request).


3 Title IV-B consists of two subparts: grants to states for child welfare services and training,
and grants to states for activities that promote safe and stable families (formerly known as
the family preservation and support program), and grants to eligible public or private entities
for mentoring children of prisoners. Title IV-E authorizes matching payments to states for
foster care and adoption assistance provided on behalf of certain children, including related
administrative and training costs. Title IV-E also authorizes grants to states for independent
living services and educational vouchers for older foster children. For additional program
information, see Section 11 of the House Ways and Means Committee Green Book, WMCP:
108-6, Mar. 2004; available through the House Ways and Means Committee website, at
[http://waysandmeans.house.gov/ Documents.asp?section=813].

family preservation and reunification at all costs, including in cases where the child’s
health or safety was in jeopardy. The Adoption and Safe Families Act was intended
to clarify federal policy to ensure safety for children who come into contact with the
child welfare system. Moreover, in response to concern about the growing numbers
f children in foster care, starting in the late 1980s and continuing through the 1990s,
ASFA was intended to expedite permanency for foster children and to promote
adoption for those children who cannot safely return home.
The 1997 law established significant new procedural requirements to promote
safety and expedite permanency, which the Congressional Budget Office (CBO)
estimated would save federal money by shortening the time that some children spend
in foster care. At the same time, the new law also contained some spending
provisions. These included financial incentive payments to states that increased their
numbers of adoptions from foster care; a requirement that states provide health
insurance coverage to special needs adopted children who are not eligible for federal
subsidies; a provision that continued eligibility for federal subsidies to special needs
children whose adoptions are disrupted; and a reauthorization and expansion of the
family preservation program under Title IV-B. CBO estimated the net cost of P.L.
105-89 at $40 million over a five-year period. To offset these costs, the law reduced
spending for the contingency fund under the Temporary Assistance for Needy
Families (TANF) block grant.
Provisions of the Adoption and Safe Families Act
Child Safety Provisions. The Adoption and Safe Families Act amended the
existing federal child welfare law to require that a child’s health and safety be of
“paramount” concern in any efforts made by the state to preserve or reunify the
child’s family, and to provide new assurances that children in foster care are safe.
“Reasonable Efforts” to Preserve Families. States continue to be
required to make “reasonable efforts” to avoid the need to place children in foster
care and to return them home if they are removed, but ASFA established exceptions
to this requirement. Specifically, states are not required to make efforts to preserve
or reunify a family if a court finds that a parent has killed another of his or her
children, or committed felony assault against the child or a sibling, or if his or her
parental rights to another child were previously involuntarily terminated. According
to the National Conference of State Legislatures (NCSL), which tracked the
enactment of state laws to implement ASFA, most states incorporated these
exceptions in their statutes.4
In addition, the federal law established that efforts to preserve or reunify a
family are not required if the court finds that a parent has subjected the child to
“aggravated circumstances.” Each state may define these circumstances in its own
laws, although ASFA cites abandonment, torture, chronic abuse, and sexual abuse
as examples. Moreover, P.L. 105-89 states that it does not preclude individual judges
from using their discretion to protect a child’s health and safety in any case,


4 National Conference of State Legislatures, Adoption and Safe Families Act of 1997
Resources, at [http://www.ncsl.org/programs/cyf/asfaslr.htm].

regardless of whether the specific circumstances are cited in federal law. At the same
time, the federal law does not prohibit states from making efforts to preserve or
reunify a family in any case.
According to NCSL, the aggravated circumstances most typically included in
state definitions are those listed in the federal law. As of August 1999, some states
also included other circumstances, such as: physical abuse, assault or battery of child
(21 states); serious or chronic neglect (14 states); discretion of the court (14 states);
physical or sexual abuse or assault of another child (13 states); failure to comply with
or make progress under treatment plan (7 states); parent cannot be located after
diligent search (7 states); previous removal of child for physical or sexual abuse (7
states); conviction of various crimes (7 states); violent crimes against a parent of the
child (7 states); parental substance abuse (6 states); and mental illness or deficiency
precluding care of a child, even with services (6 states).
In final regulations issued on January 25, 2000, HHS specified that judicial
findings of “reasonable efforts,” including findings that reasonable efforts to prevent
removal or reunification are not required, must be explicitly documented and made
on a case-by-case basis. The regulations also state that such findings must be made
within 60 days of the child’s removal from home.
Criminal Background Checks. To further promote safety, the 1997 law
required that states conduct criminal background checks for all prospective foster or
adoptive parents and deny approval to anyone who has ever been convicted of felony
child abuse or neglect, spousal abuse, a crime against children (including child
pornography), or a violent crime including rape, sexual assault, or homicide. In
addition, states must deny approval to anyone with a felony conviction for physical
assault, battery, or a drug-related offense, if the felony occurred within the past five
years.
States may opt out of the ASFA criminal record check provisions either through
a letter from the state’s governor to the Secretary of HHS, or through legislation
enacted by the state legislature. According to HHS, as of August 2004, three states
(Idaho, Oklahoma, and Oregon) had opted out through enactment of legislation and
six states (Arizona, California, New York, Massachusetts, Nebraska, and Ohio) opted
out through a letter from their governors. In final regulations issued on January 25,
2000, HHS requires states to document that criminal records checks have been
conducted. If the state opts out of the specific ASFA requirement, the regulations
specify that licensing files for a foster or adoptive family, or for a child care
institution, must document that safety considerations have been addressed with5
respect to the family or the staff of the institution.


5 In his 2000 campaign website then-candidate Bush indicated that he would propose
elimination of the current law provision that allows states to opt out of the criminal record
check requirement. According to HHS, all states that opt out of the provision do perform
criminal background checks, but not necessarily in the way prescribed by ASFA. In general,
these states allow agency or court personnel discretion to approve certain prospective
caregivers with criminal histories that would preclude approval under the ASFA standards.
P.L. 108-36, requires states no later than June 2005 to do criminal background checks for
(continued...)

ASFA also required states to develop standards to ensure quality services that
protect the health and safety of children in foster care with public and private
agencies. These standards are in addition to licensing requirements that were already
established under Title IV-E. Finally, the law added references to child safety in
various sections of Titles IV-B and IV-E.
Timeframe Provisions. ASFA requires states to meet a variety of deadlines
regarding child welfare cases. These include deadlines for permanency hearings and
initiation of proceedings to terminate parental rights.
“Reasonable Efforts” to Promote Adoption. If the court finds that
efforts to preserve or reunify a family are not required, ASFA specifies that a
permanency hearing (formerly called “dispositional” hearing) must be held for the
child within 30 days of that court finding. In these cases, or whenever a child’s
permanency plan is adoption or another alternative to family reunification, the law
requires states to make reasonable efforts to place the child in a timely manner in
accordance with the permanency plan, which may include placement for adoption,
with a guardian, or in another planned, permanent arrangement. (HHS specified in
the January 2000 regulations that states must obtain a judicial determination that such
reasonable efforts were made within 12 months of the date the child entered foster
care and at least once every subsequent 12 months that the child remains in care.)
The law further provides that states must document specific efforts made to place the
child for adoption. In enacting these provisions, Congress intended to shorten the
length of time that children spend in foster care, once a court has determined that
family reunification is not feasible or likely.
ASFA also specifies that efforts to preserve or reunify a family can be made at
the same time as efforts are being made to place the child for adoption or
guardianship. This practice is referred to as “concurrent planning” and allows states
to develop a back-up plan in order to save time in the event that efforts to restore the
original family are unsuccessful.
The Adoption and Safe Families Act also contains provisions intended to
eliminate interjurisdictional issues as a potential barrier to a child’s adoption. First,
the law requires states to assure in their Title IV-B plans that they will develop plans
to make effective use of cross-jurisdictional resources to facilitate timely adoptions
for waiting children. As originally enacted, the law also denied federal foster care
and adoption assistance funding, under Title IV-E, to any state that is found to have
denied or delayed a child’s adoptive placement if an approved family is available
outside the child’s jurisdiction, or has denied a fair hearing to anyone who alleges a


5 (...continued)
prospective foster and adoptive parents and other adults living in the household as a
condition of receiving state grants under the Child Abuse Prevention and Treatment Act
(CAPTA). This provision, however, does not prescribe when a state must deny approval of
placement due to a criminal background check, and states that now opt out of the ASFA
criminal background check requirement might continue to do so.
For more detailed information, see Child Care and Child Welfare: Background
Checks, CRS Report RL32430, by Kendall Swenson.

violation of this provision. The law was subsequently amended (P.L. 105-200) to
establish a graduated series of financial penalties, rather than a complete denial of
funding, in cases of such violations. HHS released a program instruction in October
2002 to further clarify the regulations on interjurisdictional adoptions, including how
penalties would be assessed.6 In addition, ASFA directed the General Accounting
Office (GAO) to conduct a study of interjurisdictional adoption issues, including the
implementation of the Interstate Compact on the Placement of Children; GAO’s
report was published in November 1999.7 Additional legislation was considered
during the 108th Congress to improve and expedite interstate placements.8
Permanency Hearings. Prior to the enactment of ASFA, federal law
required that all foster children have a judicial hearing, known as a “dispositional”
hearing, within 18 months of their placement in care to determine their future status.
P.L. 105-89 now requires this hearing to occur within 12 months of the date the child
is determined to have entered care and changed the name to “permanency” hearing.
ASFA also requires that foster parents, pre-adoptive parents, and relative caregivers
be given notice and an opportunity to be heard at case reviews and permanency
hearings.
The law revised the list of permanency goals (which had included long-term
foster care) to include returning home, referral for adoption and termination of
parental rights (TPR), guardianship, placement with a relative, or, as a last resort,
another planned, permanent living arrangement. In its January 2000 regulations,
HHS specified that states must document a compelling reason for selecting “another
planned, permanent living arrangement” and gave the following examples of such
compelling reasons:
!an older teen specifically requests a permanency plan of
emancipation from foster care;
!a parent and child are strongly bonded but the parent cannot care for
the child because of an emotional or physical disability and the
child’s foster parents have agreed to raise the child to maturity and
to enable visits with the natural parent;
!a tribe has identified another planned permanent living arrangement
for the child.
HHS also specified in its regulations that the written case plan for a child be
developed within a reasonable period established by the state, but no later than 60
days after the child’s removal from home. If the child’s permanency plan is family
reunification, the regulations require that the case plan describe how the state will
achieve a safe placement for the child in the most family-like setting in close


6 See HHS program instruction, ACYF-CB-PI-02-09, issued Oct. 7, 2002, available at
[ ht t p: / / www.acf .hhs.gov/ pr ogr ams/ cb/ l a ws/ pi / pi 0209.ht m] .
7 Foster Care: HHS Could Better Facilitate the Interjurisdictional Adoption Process,
HEHS-00-12, U.S. General Accounting Office, Nov. 19, 1999.
8 For information on H.R. 4504, see the discussion of “Interstate Placement of Children,”
in Child Welfare Issues in the 108th Congress, CRS Report RL31746, by Emilie Stoltzfus.

proximity to the child’s parents. For all children, the case plan must describe how
the placement is consistent with the child’s best interests and special needs.
Termination of Parental Rights. One of the most significant provisions of
the 1997 law requires states to initiate proceedings for the termination of parental
rights (TPR) for certain foster children. This provision responded to concerns about
the number of children who were remaining in foster care for long periods of time
and who were not likely to return home. Prior to 1997, there was no comparable
provision in federal law. Specifically, P.L. 105-89 requires states to initiate TPR
proceedings in any case where the court has found that a parent has lost parental
rights to that child’s sibling; killed another of his or her children or committed felony
assault against the child or a sibling, or subjected the child to aggravated
circumstances (known as the fast track provision); or for infants determined under
state law to be abandoned. In addition, the law requires states to initiate TPR
proceedings for children who have been in foster care for 15 of the most recent 22
months (known as the 15 of 22 provision). States can opt not to initiate such
proceedings if the child is in a relative’s care, or if the state agency has documented
in the child’s case plan a compelling reason to determine that TPR would not be in
the child’s best interest, or if the state has not provided necessary services to the
family.
Regulations issued by HHS on January 25, 2000 require that states must file theth
TPR petition by the end of the child’s 15 month in care and provide a methodology
for calculating when this date occurs. For example, trial home visits or runaway
episodes are not counted toward the 15 months. The regulation also specifies that if
the state decides not to initiate TPR proceedings at the 15-month point with regard
to a particular child, because an exception exists in that child’s case as allowed under
the law, then the state does not need to apply the 15-month TPR requirement to that
child’s case again.
In the case of an abandoned child, the regulations require the state to initiate
TPR proceedings within 60 days of a court determination that the child is abandoned
(as defined by the individual state). Likewise, in the case of a child whose parent has
been convicted of a felony specified in the law, the regulations require the state to
initiate TPR proceedings within 60 days of a court determination that reasonable
efforts to reunite the child with that parent are not required.
As stated above, the law allows — but does not require — certain exceptions
to the TPR requirement, including that there is a compelling reason for determining
that such proceedings are not in the child’s best interests. The January 25, 2000,
regulations give the following examples of compelling reasons:
!adoption is not the appropriate permanency goal for the child;
!there are no grounds for TPR;
!the child is an unaccompanied refugee minor;
!there are international legal obligations or compelling foreign policy
reasons that preclude TPR.



The law and regulations also provide that whenever a state initiates TPR
proceedings, it must concurrently begin to seek and approve a qualified adoptive
family for the child.
For children who entered foster care after the enactment of P.L. 105-89, states
were required to comply with the TPR provision no later than three months after the
end of the first state legislative session that began after the date of enactment (which
was November 19, 1997). For children who already were in care on the date of
enactment, states could phase in compliance with the TPR requirement but had to be
in compliance for all children by no later than 18 months after the end of the
legislative session. For purposes of the TPR provision and the 12-month permanency
hearing, children are considered to have entered foster care on the first date that the
court finds they have been subjected to child abuse or neglect or 60 days after their
removal from home, whichever occurs first.
State Implementation of Timeframe Provisions. In 2002, the General
Accounting Office (GAO) published a report on the implementation of ASFA and
its effects on the child welfare system.9 The report cautioned that there was limited
information on these provisions due to a lack of data.
All six states in which GAO conducted site visits reported that the ASFA
timeframe provisions helped their child welfare agencies focus on more quickly
finding permanent homes for children. Some child welfare agency staff stated that
the timeframes helped them work more effectively with parents by being able to
inform them of the steps and timelines in the reunification process. Some states and
agencies expressed concern, though, that the timeframes may rush the adoption or
reunification process and lead to higher re-entry rates into foster care.
The GAO study also found that few states were using the fast track provision
due to a variety of court-related issues, such as judges or legal officials who are at
times reluctant to approve a fast track request and difficulty in scheduling TPR
hearings. Other reported difficulties in utilizing the fast track option included
father’s rights issues; the desire to give a parent another opportunity to demonstrate
the ability to care for a subsequent child; and the length of time from a child’s10
removal from the home to a parent’s conviction of an applicable crime. Some
states reported using the fast track provision in cases of infant abandonment or cases
involving serious abuse. States are not required to collect data on their use of the fast
track provision, and most states are not collecting this data.
Similarly to the fast track provision, states are not required to collect data on the

15 of 22 provision, and few states collect it. In its report, GAO recommended to


9 Foster Care: Recent Legislation Helps States Focus on Finding Permanent Homes for
Children, but Long-Standing Barriers Remain, GAO-02-585, U.S. Government Accounting
Office, June 2002.
10 For example, Massachusetts officials reported that, in most cases, children are removed
from the home after the crime is committed, but judges will not approve a fast track for these
cases until the parent is convicted of the crime, which often takes at least a year after the
crime was committed.

HHS that it review the feasibility of collecting — in a cost-efficient manner — data
on state usage of the fast track and 15 of 22 provisions, including the number of
children exempted and reasons for those exemptions. Of the nine states that did
provide GAO with information on the 15 of 22 provision, most indicated there were
more cases which were exempted than actually utilized it. For example, in
Oklahoma, just over 1,000 TPRs were filed because the child was in care for 15 of
22 months; however, nearly 3,000 children who had been in care for 15 of 22 months
were exempted from the requirement to file a TPR. States provided a number of
reasons as to why they might not request a TPR for a child who has been in care for
15 of 22 months. These reasons included adoption is not a realistic option; a TPR
would not be in the best interest of the child; the child’s parents need more than 15
months to address their problems; and court delays for hearings and appeals.11
Information on state use of the ASFA TPR provisions is collected during the on-
site portion of federal compliance reviews12 and beginning with the reviews
conducted in FY2002, HHS standardized the way this information is provided in
each state’s final report. Of the 35 states reviewed in FY2002, findings from 12
states indicated that agencies are not filing for TPR in a timely manner and their
reasons for not filing are not provided in the case files. In addition, 12 states said the
appeals process for TPR decisions is “extremely lengthy” and therefore a challenge
to achieving permanency.13
Eligibility for Adoption and Medical Assistance. Under Title IV-E,
states may receive open-ended federal entitlement funds for part of the costs of
operating adoption assistance programs for special needs children. Under these
programs, parents who adopt children with special needs may receive monthly
adoption subsidies through agreements with their state. The federal government
helps states with part of these costs, but only for children whose biological parents
would have been eligible for the former Aid to Families with Dependent Children
(AFDC) program, or who are eligible for Supplemental Security Income (SSI).
Adoptive parents of children with special needs who do not meet these criteria may
receive subsidies through state-funded programs.
Children who are eligible for federal adoption assistance are also deemed
eligible for Medicaid. States have the option to provide Medicaid coverage to special


11 In the GAO study, states and agencies reported that adoption may not be a realistic option
for children with severe behavioral or medical problems, for whom adoptive parents are
often difficult to find, and adoption may not be in the best interests of adolescents who are
functioning well in out-of-home settings and maintaining contact with their families. With
regards to services for parents, states cited access to needed services coupled with the
likelihood of reunification as factors in exempting a child from the 15 of 22 provision.
Several states highlighted lack of access to substance abuse services as a barrier.
12 These reviews are known as Child and Family Services Reviews. They were mandated
by Congress in 1994 and implemented through regulations issued in Jan. 2000.
13 General Findings from the Child and Family Services Review, U.S. Department of Health
and Human Services, Oct. 2004, available at [http://www.acf.hhs.gov/programs/cb/cwrp/
results.htm], see Summary of the Results of the 2001-2004 Child and Family Services
Reviews.

needs adopted children who do not meet the income eligibility criteria for federal
adoption subsidies. However, ASFA requires states to provide health insurance
coverage to these children if they have special needs for medical, mental health, or
rehabilitative care. This health coverage may be through Medicaid or another
program, as long as benefits are comparable. According to the American Public
Human Services Association (APHSA), all states are in compliance with this
provision; 46 states and the District of Columbia provide coverage to these children
through Medicaid, and the remaining four states provide coverage through a fully
state-funded program.14
In addition, to be eligible for adoption incentive payments (described below) in
FY2001 or FY2002, states were required to provide health coverage to any special
needs child living in their state whose adoptive parents had entered into an adoption
assistance agreement with any other state.15 (When Congress reauthorized the
adoption incentives program in 2003, this requirement was extended through
FY2007.) States also must comply with this provision to be approved for a child
welfare demonstration project (or waiver). HHS reported that it had received
certification from all states that they provide such coverage.
The Adoption and Safe Families Act also contains a provision intended to
ensure that children who had once been eligible for federally subsidized adoption
assistance will continue to be eligible in a subsequent adoption if their initial
adoption is disrupted or their adoptive parents die, regardless of whether they would
have qualified for AFDC or SSI based on the income and assets of their first adoptive
family.
Reauthorization and Renaming of Family Preservation Program.
The 1997 law reauthorized and changed the name of the former family preservation
program, which is a capped entitlement under subpart 2 of Title IV-B and was
originally scheduled to expire at the end of FY1998. Under P.L. 105-89, the program
was renamed Promoting Safe and Stable Families and reauthorized through FY2001;
legislation (P.L. 107-133) to extend the program through FY2006 was enacted in theth16
107 Congress. The entitlement ceiling was set at $240 million in FY1997 and
$255 million in FY1998, and was reauthorized under P.L. 105-89 at $275 million in
FY1999; $295 million in FY2000; and $305 million in FY2001. The currently
authorized annual entitlement ceiling is $305 million, plus an additional $200 million17


in discretionary funds. The FY2004 appropriation for PSSF was $404 million.
14 Report on the Interstate Movement of Children Receiving Adoption Assistance, by
Elizabeth Oppenheim and Shannon Guiltinan, American Public Human Services
Association, Washington, D.C., Dec. 1998.
15 HHS reminded states of this requirement in information memorandum, ACYF-CB-IM-01-

03, issued Mar. 7, 2001.


16 See Child Welfare: Reauthorization of the Promoting Safe and Stable Families Program,
CRS Report RL30894, by Emilie Stoltzfus and Karen Spar.
17 Of this amount, $305 million was appropriated in mandatory dollars and $99 million was
appropriated in discretionary funds.

As enacted in 1993, the former family preservation program required states to
devote significant expenditures to each of two types of services: family preservation
and community-based family support. The Adoption and Safe Families Act added
two more categories: time-limited family reunification services (limited to the 15-
month period that begins after a child is determined to have entered foster care), and
adoption promotion and support services. Program instructions issued by HHS
specify that states must have a “strong rationale” for spending less than 20% of funds
on each of the four current categories of activities. In the GAO (2002) study, states
reported they most commonly used their PSSF adoption promotion and support funds
to recruit adoptive parents and to provide post-adoption services.
A study by James Bell Associates found that the percentage of PSSF funds
allocated for adoption promotion and support increased from 15% in FY1999 to 20%
in FY2002 and for time-limited family reunification increased from 16% in FY1999
to 21% in FY2002. The percentage allocated for family support decreased from 40%
in FY1999 to 29% in FY2002, and the percentage of funds allocated for family
preservation increased slightly from 29% to 30%.18
State Accountability for Performance. The Adoption and Safe Families
Act also aimed to increase the accountability of states for the performance of their
child welfare programs. The legislation required HHS, in consultation with public
officials and child welfare advocates, to develop outcome measures in various
categories (i.e., number of foster care placements and adoptions, length of stay in
foster care) and to rate state performance according to these measures in an annual
report. HHS published the final list of outcome measures in the Federal Register on
August 20, 1999, and has subsequently issued four annual reports on child welfare19
outcomes by state, for the years 1998 through 2001.
In addition, the 1997 law directed HHS to conduct a study and develop
recommendations for a performance-based financial incentive system under Titles
IV-B and IV-E. The law stated that, to the extent feasible, this system should be
based on the annual performance report described above. HHS was required to
submit a progress report to Congress within six months of the new law’s enactment
and a final report within 15 months. Although a progress report was submitted, no20
final report has been released.
State Innovation and Demonstration. Legislation enacted in 1994
authorized HHS to approve up to 10 states to receive waivers from Title IV-B and
IV-E rules in order to conduct demonstration projects. The Adoption and Safe
Families Act allowed HHS to approve an additional 10 demonstrations in each of
FYs 1998 through 2002. Federal law does not mandate specific goals for these


18 Analysis of States’ Annual Progress and Services Reports and Child and Family Services
Plans (1999-2002), James Bell Associates, Arlington, VA, Apr. 5, 2002.
19 These reports are available on the Children’s Bureau website, at [http://www.acf.hhs.gov/
programs /cb/publications/cwo.htm] .
20 Progress Report to the Congress on Conducting a Study of Performance-Based Financial
Incentives in Child Welfare, U.S. Department of Health and Human Services, Children’s
Bureau, at [http://www.acf.hhs.gov/programs/cb/publications/congress/].

demonstrations. However, the 1997 law directed the Secretary to give consideration
to any applications received with the following purposes: (1) to identify and address
barriers to adoption for foster children; (2) to identify and address parental substance
abuse problems that result in foster care placement for children, including through
placement of children together with their parents in appropriate residential treatment
facilities; and (3) to address kinship care. Between 1996 and 2001, a total of 25
demonstration project components were approved and implemented in 17 states.21
The authorization for new waiver projects expired at the end of FY2002, but
was extended through September 30, 2004, and subsequently through March 30,
2005, under temporary reauthorizations of Temporary Assistance for Needy Families
(TANF) and related welfare reform programs. In November 2003, HHS solicited
new proposals from the states and, in September 2004, announced approval of two
new waiver projects.22 A long-term welfare reauthorization, H.R. 4 (108th Congress),
which passed the House in February 2003 and the Senate Finance Committee in
October 2003, would amend and reauthorize the waiver authority through FY2008.
The House-passed version of H.R. 4 also would remove the limit on project
approvals for a fiscal year; prohibit HHS from refusing to grant a waiver to a state
because of the project’s similarity to another or from imposing limits on the number
of waivers or demonstrations projects undertaken by a single state; direct HHS to
develop a streamlined process for consideration of extensions and amendments of
demonstration projects; and require HHS to make available to interested parties any
evaluation report provided to, or made by, HHS with respect to demonstration
projects.
Kinship Care. The Adoption and Safe Families Act also required HHS to
submit a report to Congress on the issue of kinship care, including recommendations
for policy in this area. This report, which was developed with the assistance of an23
advisory panel mandated in the statute, was submitted by HHS in June 2000.
Adoption Incentive Program. ASFA established a new program of
incentive payments to states to increase their number of foster child adoptions, with
additional incentives for the adoption of children with special needs. This adoption
incentive program was a key recommendation in the Clinton Administration’s
Adoption 2002. As reauthorized in 2003 (P.L. 108-145), the program continues to
provide incentive payments for increased adoptions of foster children, with additional


21 For a summary of these demonstrations, see the HHS website, at
[http://www.acf.hhs.gov/programs/cb/initiatives/cwwaiver.htm]. Also see Summary of the
Child Welfare Waiver Demonstration Projects and Profiles of the Child Welfare Waiver
Demonstration Projects, James Bell Associates, Arlington, VA, Feb. 2003; Cornerstone
Consulting Group’s “Child Welfare Waiver Watch” on the website of the American Public
Human Services Association, at [http://www.aphsa.org/Policy/ChildWelfare.asp]; and Child
Welfare Waiver Demonstrations, CRS Report RL31964, by Matthew Shuman.
22 See the discussion of “Waivers” in Child Welfare Issues in the 108th Congress, CRS
Report RL31746, by Emilie Stoltzfus.
23 Report to the Congress on Kinship Foster Care, U.S. Department of Health and Human
Services, Assistant Secretary for Planning and Evaluation, June 2000, available at
[http://aspe.hhs.gov/hsp/kinr2c00/].

incentives for the adoption of children with special needs who are under age nine,
and provides a separate incentive payment for increased adoptions of children age
nine and older.
Adoption Incentive Legislation. As in the adoption assistance program
under Title IV-E, which provides ongoing subsidies to adoptive parents of eligible
special needs children, the definition of “special needs” for purposes of the adoption
incentives program is determined by each state and may include age, ethnicity, or
membership in a sibling group, in addition to disability or a medical condition that
makes a child difficult to place for adoption.
The Adoption and Safe Families Act originally established incentive payments
equal to $4,000 for each foster child whose adoption was finalized over a certain base
level and $6,000 for each special needs adoption above the base level. The law
authorized $20 million annually for these incentive payments for FY1999 through
FY2003. In addition, the law provided for an automatic adjustment to discretionary
budget caps, to help ensure that these funds would actually be appropriated. For
adoptions finalized in 1998, the baseline was the average number of adoptions in
1995 through 1997. For adoptions finalized in 1999 through 2002, the baseline was
the highest number of adoptions in any preceding year, beginning with 1997.
The 1997 legislation also authorized HHS to provide technical assistance to help
states increase their number of foster child adoptions and authorized appropriations
of $10 million annually for this purpose for each of FY1998-FY2000. HHS was
required to use half of any funds appropriated under this provision to provide
technical assistance to the courts; however, no funds were appropriated.
Reauthorization Legislation of 2003. The original adoption incentives
program expired at the end of FY2003 and was reauthorized with the Adoption
Promotion Act of 2003 (P.L. 108-145). Under the reauthorization, states continue
to receive credit for all increased adoptions of foster care children and receive
additional incentive payments for increases in adoptions of children with special
needs. However, the special needs payment is now limited only to adoptions of
special needs children who are under age nine at the time the adoption is finalized.
The Adoption Promotion Act created a third incentive payment, equal to $4,000, for
increased adoptions of children who are age nine or older at the time of adoption.
Like the original two incentive payments, states have to exceed their baseline number
of such “older child” adoptions to earn this payment. For all three incentive
payments, the baseline that states must exceed is revised each year to the highest
annual total of such adoptions since FY2002. P.L. 108-145 also reauthorized for
FY2004 through FY2006 the provisions concerning technical assistance to states and
localities (including the language reserving 50% of appropriations for assistance to24


courts) to help increase adoptions or other permanent placements for children.
24 For more details, see Child Welfare: The Adoption Incentives Program, CRS Report
RL32296, by Kendall Swenson. This report also contains state-by-state data on performance
and payments under the Adoption Incentives program since the program’s inception.

Appropriations.The history of appropriations for adoption incentive
payments is somewhat complicated because states — as a group — exceeded
lawmakers’ expectations and finalized more adoptions in the early years of the
program than Congress had anticipated. P.L. 105-89 originally authorized
appropriations of $20 million annually for FY1999 through FY2003 for adoption
incentive payments (for adoptions finalized in fiscal years 1998 through 2002). In
addition, the law provided for an automatic increase in discretionary budget caps (up
to $20 million) to help ensure that these funds were actually appropriated for each
year. However, in some years, the amount of incentive payments that states actually
“earned” exceeded the $20 million level. As a result, Congress, when necessary,
provided additional amounts (above the $20 million), usually in subsequent years’
appropriations bills, to enable HHS to pay states the full amount of incentive
payments earned. (See Table 1, below.) Also in each year’s appropriations law,
Congress has limited the availability of these funds to certain years, even though the
authorizing law provides that appropriated amounts shall remain available for
allocation to the states until expended.
State Implementation. A GAO (2002) report and a Cornerstone Consulting
Group study indicate that states most commonly use their incentive awards to fund
the recruitment of adoptive families and provide post-adoptive services.25 Some
states reported using their incentive funds for one-time expenses, such as studies,
training, events, and the purchase of legal services, due to the uncertainty of receiving
future adoption incentive awards. Additionally, states reported that, because the
awards were relatively small compared to their overall child welfare budgets, they
were able to use their funds in innovative and flexible manners. No state reported
that the adoption incentive bonus was the primary motivator for improving its
adoption system. The primary concerns of states regarding the incentives were that
they may give the impression that adoption is the best plan in all cases, that states
with increased adoptions before ASFA may have trouble exceeding their baselines
(this concern was expressed before the 2003 reauthorization updated the baselines),
and that the law did not make further changes in the structure of federal funding for
child welfare.


25 The Cornerstone study showed that states used funds in the following areas: post adoption
services (16 states); recruitment of adoptive families (11); legal services to expedite
adoption (5); contract enhancements for case management, recruitment, home studies, etc.
(7); training (9); subsidy increases (4); adoption awareness (6); staff (2); general child
welfare services (3); and distribution to county child welfare services, in some cases based
on performance (11). A Carrot among the Sticks: The Adoption Incentive Bonus,
Cornerstone Consulting Group, Inc., 2001.

Table 1. Amounts Appropriated and Awarded for Adoption
Incentive Payments to States
(in millions)
Amounts AppropriatedAmounts Awarded
P.L. 105-277 (FY1999$20.0For adoptions finalized in 1998$42.5
appropriations)(35 states)
P.L. 106-113 (FY200041.8aFor adoptions finalized in 199951.5
appropriations)(43 states and D.C.)
P.L. 106-554 (FY200143.0For adoptions finalized in 200033.2
appropriations)(35 states and D.C.)
P.L. 107-116 (FY200243.0For adoptions finalized in 200117.6
appropriations)(23 states and Puerto Rico)
P.L. 108-7 (FY200342.7bFor adoptions finalized in 200215.0
appropriations)(25 states and Puerto Rico)
P.L. 108-199 (FY20047.5cFor adoptions finalized in 200317.9d
appropriations)(31 states and Puerto Rico)
Source: Compiled by the Congressional Research Service from data available from the U.S.
Department of Health and Human Services
a. Amount shown reflects 0.38% across-the-board reduction.
b. Amount shown reflects 0.65% across-the-board reduction.
c. Amount shown reflects 0.59% across-the-board reduction.
d. These funds were awarded under the revised adoption incentives program, which established three
baselines for foster child adoptions, adoptions of special needs children under age nine, and
older child adoptions.
Additional ASFA Provisions. Additional provisions in P.L. 105-89: gave
child welfare agencies access to the Federal Parent Locator Service; clarified
eligibility for the independent living program;26 established a sense of Congress in
favor of standby guardianship laws; and made a statement of intent about
“reasonable” parenting. The law required HHS to prepare a report on the relationship
between substance abuse and child welfare, based on information from the Substance
Abuse and Mental Health Services Administration within HHS, as well as the
Administration for Children and Families; the report was submitted to Congress in
April 1999.27 Unless specified otherwise, the law took effect upon enactment
(November 1997), except that, where enactment of new state laws was required,
states had until three months after their first legislative session to comply.


26 This program was completely revised in the 106th Congress. See Child Welfare: The
Chafee Foster Care Independence Program, CRS Report RS20230, by Emilie Stoltzfus.
27 Blending Perspectives and Building Common Ground, U.S. Department of Health and
Human Services, Assistant Secretary for Planning and Evaluation, Apr. 1999, available at
[http://aspe.hhs.gov/hsp/subabuse99/execsum.htm] .

Effects of ASFA Legislation
Though numerous changes to state and federal laws and programs have been
amended and developed as a result of the Adoption and Safe Families Act,
researchers have had difficulty judging ASFA’s effects on the child welfare system.
Many states had already begun to make adjustments to their systems before 1997 and
some had previously enacted laws similar to ASFA. This has made it difficult to
determine how much of the shift in child welfare outcomes and data was due to
ASFA or other state and federal laws and programs.28
The lack of comparable and reliable pre- and post-ASFA data also limits the
analysis of ASFA’s effects. For example, GAO (2002) noted that the University of
Chicago collected pre-ASFA child welfare data for several states, but this data cannot
be matched with data from HHS because of differences in the measurement
techniques. Additionally, children often remain in foster care for several years before
being adopted, and, therefore, evidence of the effects of the 1997 enactment of ASFA
were not necessarily immediately apparent. Nonetheless, current data can provide
useful information on the characteristics and experiences of the child welfare
population after the enactment of the 1997 law.
Demographics of Child Welfare System. The number of public child
welfare agency adoptions began to rise before enactment of ASFA but rose more
sharply after the law’s passage, from approximately 31,000 children in 1997 to more
than 52,500 in 2002. (See Figure 1.) HHS analysis of data from the Adoption and
Foster Care Analysis and Reporting System (AFCARS) has revealed various29
characteristics of children in the public child welfare system. Children in care are
increasingly being adopted by relatives (from 15% of adoptions in FY1998 to 24%
in FY2001). Black non-Hispanic children comprised 43% of adoptions in FY1998
and 35% of adoptions in FY2001; Hispanic children were 12% of adoptions in
FY1998 and 16% in FY2001; and white non-Hispanic children were 37% of
adoptions in FY1998 and 38% in FY2001.30 Among children waiting for adoption
(defined as children with a goal of adoption and/or a TPR issued), their average age
at the time of removal from home increased during the FY1998-FY2001 period, from
4.1 years to 4.7 years. The average age of waiting children at a given point in time
also rose, from 7.7 years at the end of FY1998 to 8.4 years at the end of FY2001.
One of the primary goals of ASFA was to expedite legal proceedings so that
children who cannot safely return to their families can more quickly move to
adoption or another permanent placement. Several ASFA provisions were intended
to expedite the process for obtaining termination of parental rights in the hopes that


28 A Carrot Among the Sticks: The Adoption Incentive Bonus, Cornerstone Consulting
Group, Inc., 2001.
29 The Impact of ASFA on Adoption, a presentation by Penelope Maza, U.S. Department of
Health and Human Services, Children’s Bureau, Mar. 2003.
30 In 2000, a multi-race category was added to AFCARS. Some children that may have been
included in other categories, such as black non-Hispanic, may have been shifted to the multi-
race category. Caution should be used when comparing race statistics between years.

this would, in turn, shorten the length of time a child who could not be returned home
would remain in foster care. For children who were waiting for adoption, the average
time from removal to obtaining a TPR decreased from 37 months in FY1998 to 30
months in FY2001. However, for those waiting children whose parental rights had
been terminated, their average time spent in foster care since TPR was achieved
increased slightly, from 22 months in FY1998 to 24 months in FY2001. The total
continuous time spent in foster care for waiting children stayed steady at an average
of 44 months.
Figure 1. Adoptions with Public Agency Involvement, FY1995-FY2002
60,000
50,000
50 , 92 7 50 , 2 79 5 2, 546
46,781
40,000
37,072
30,000
31,030
27,761
25,69320,000
10,000
0
19 95 19 96 1 99 7 19 98 19 99 2 00 0 20 01 2 002
Source: Figure prepared by the Congressional Research Service based on data compiled by the U.S.
Department of Health and Human Services as of Oct. 2004. The final number of adoptions for a given
year may be revised.
In its annual child welfare outcomes report, HHS presented information on state
performance in finalizing adoptions within 24 months of the child’s entry into foster
care. For purposes of federal compliance reviews (Child and Family Services
Reviews), HHS has established a national standard of 32% for this outcome; in other
words, to achieve this national standard, at least 32% of adoptions must be finalized
within 24 months. In FY1999, 31 states met this standard, while 27 met the standard
in FY2001.31


31 Child Welfare Outcomes 2001: Annual Report, U.S. Department of Health and Human
Services, Children’s Bureau, available at [http://www.acf.hhs.gov/programs/cb/publications/
cwo01/].

State and Agency Views on ASFA. A July 2002 phone poll of 41 state
child welfare agency representatives conducted by the University of Southern Maine
(USM) showed that child welfare agencies tended to view ASFA requirements as
“good case practice” and are continuing to train staff on their implementation.32 Data
from the phone poll also indicate that states which have already undergone a Child
and Family Services Review (CFSR) have a better understanding of the requirements
of ASFA and how to implement ASFA than states which have yet to undergo a
CFSR.
In order to meet the requirements set forth by ASFA, states have made
adjustments to their service delivery systems and administrative practices. In
response to ASFA, states have improved their data systems, worked more closely
with the courts, passed legislation, and hired additional staff, such as attorneys and
caseworkers. Interviews with state and local agency directors in 2000, conducted as
a part of the National Survey of Child and Adolescent Well-Being (NSCAW), found
that states were focusing on “developing new casework strategies to promote child33
safety at the front end of service delivery.” Some state administrators also noted
that ASFA had an impact on permanency through reduction in time frames, the
institution of concurrent planning at the front end of child welfare, reduction of time
in foster care, and an increase in adoptions. State administrators also reported that
they had experienced several unanticipated problems in implementing the ASFA
requirements. These problems included providing substance abuse treatment to
parents while maintaining the ASFA time frames; the lack of adoptive placements,
especially for hard-to-place groups such as adolescents; backlogs in the juvenile
courts; and child welfare staff being held accountable for time frames that were
dependent on other agencies, such as the courts and mental health providers.
The NSCAW study also provided information on ASFA’s effect on local
agencies. For approximately 60% of local agencies, ASFA led to a greater emphasis
on child’s safety when compared to family preservation programs, and 93% reported
that ASFA shortened time frames for decision making to less than 12 months.
Almost three-quarters of respondents noted an increased emphasis on adoption for
children living in kinship care, and 54% indicated an increased emphasis on the
adoption of older children. Most agencies indicated that they experienced no change
in caseload numbers, but did report an increase in the average number of hours spent
on each case. Thirty-three percent of local agencies reported that access to drug
treatment for clients had been expedited.


32 Building the Child Welfare Team: Results of the 2002 Adoption and Safe Families Act
Phone Poll, University of Southern Maine, Edmund S. Muskie School of Public Policy,
Portland ME, July 2002, available at [http://muskie.usm.maine.edu/asfa/report_final02.htm].
33 National Survey of Child and Adolescent Well-Being (NSCAW), U.S. Department of
Health and Human Services, Administration on Children, Youth, and Families, June 2001,
at [http://www.acf.dhhs.gov/programs/core/ongoing_research/afc/wellbeing_intro.html].