MEPA - Multiethnic Placement Act of 1994, Amended 1996

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A Guide to The Multiethnic Placement Act of 1994
As Amended by the Interethnic Adoption Provisions of 1996
Chapter 2: The Provisions of MEPA-IEP

Substantive Provisions
1. What entities are subject to the Act?
  
  MEPA-IEP applies to any state or other entity that receives funds from the federal government and is involved in some aspect of adoptive or foster care placements. All state and county child welfare agencies involved in placements that receive federal title IV-E and title IV-B funds are subject to MEPA-IEP. The Act also applies to other public or private agencies involved in placements that receive federal funds from any source, whether they receive the funds directly or through a subgrant from a state, county, or another agency. This means that a child placement agency that receives no funding from either the federal foster care or child welfare programs under titles IV-E or IV-B, but does receive financial assistance from other federal programs, including the Adoption Opportunities Act, the Child Abuse Prevention and Treatment Act (CAPTA), and the Title XX, is subject to MEPA-IEP.
2. Placements
  1. What is prohibited?
    
    A state or other entity covered by MEPA-IEP may not:
    - delay or deny the placement of a child for adoption or into foster care on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved.
  2. What is denial?
    
    Under MEPA-IEP, the race, color, or national origin of a child or of a prospective parent cannot be used to make the child ineligible for foster care or adoption, or to deny a particular foster care or adoptive placement. In addition, an agency's failure to pursue reunification efforts, concurrent planning, or a judicial termination of parental rights because of the race or ethnicity of a child or of groups of children, would violate the law. Thus, a significant disparity between the rate at which certain minority children become legally available for adoption as compared to other children, while not itself direct evidence of a MEPA-IEP violation, may justify further inquiry to determine if the disparity was the result of intentional or inadvertent racial or ethnic bias. Moreover, a refusal to place a child with a particular prospective parent followed by a placement with another parent, would be suspect if these decisions appeared to be based on any of the impermissible factors.
    
    While explicitly prohibiting the use of race, color, or national origin to deny a foster care or adoptive placement, MEPA-IEP does not require that these factors must always be ignored when an agency or caseworker makes an individualized assessment of a particular child to determine the kind of placement that will serve that child's best interests. The 1997 and 1998 HHS Guidances indicate that in exceptional, non-routine, circumstances, a child's best interests may warrant some consideration of needs based on race or ethnicity. The use of these factors in exceptional circumstances as part of an individualized assessment of a child's best interests would not violate the "strict scrutiny" test found in the relevant constitutional and Title VI caselaw.
    
    As stated in the earlier 1995 Guidance, any consideration of race or ethnicity "must be narrowly tailored to advancing the child's interests and must be made as an individualized determination for each child." Although the best interests of some older children may justify limited attention to race or ethnicity, "it is doubtful that infants or young children will have developed such needs." Moreover:
    - [a]n adoption agency may not rely on generalizations about the identity needs of children of a particular race or ethnicity, or on generalizations about the abilities of prospective parents of one race or ethnicity to care for, or nurture the sense of identity of a child of another race ... or ethnicity.
    The 1997 and 1998 Guidances confirm that any consideration of race or ethnicity is appropriate only when based on specific concerns arising out of the circumstances of an individual case.
    
    HHS gives an example of an older child or adolescent who has the legal right to consent to an adoption and refuses placement with a family of a particular race. Neither the law nor good child welfare practice would require the adoption worker to ignore the child's wishes.
    
    While the adoption worker might wish to counsel the child, the child's ideas of what would make her or him most comfortable should not be dismissed, and the worker should consider the child's willingness to accept the family as an element that is critical to the success of the adoptive placement.
  3. What is delay?
    
    The 1996 IEP amendments to MEPA confirm that any delay in placement based on impermissible factors is illegal. As explicitly stated in the earlier 1995 HHS and OCR Guidance, the widespread pre-MEPA policy and practice of "holding periods" in order to make a same-race adoptive placement of a child in agency custody are impermissible and clearly violate the federal law. Similarly, an agency may not require a certain period of time to search for a same race placement if an appropriate transracial placement is available when the child's need for placement arises. Nor may the agency routinely permit same-race placements while requiring caseworkers to specially justify a transracial placement. If no appropriate placement options are immediately available, the agency may conduct a search, but the search cannot be limited to same-race prospective parents except in those rare circumstances where the child has a specific and demonstrable need for a same-race placement.
    
    Although MEPA-IEP prohibits states and agencies from delaying a child's placement for the purpose of finding a racial or ethnic match, many other factors contribute to delays within the child welfare system. Among these are high caseloads that impede the completion of individualized assessments of children's needs, court delays in scheduling mandatory review or termination hearings, the distinctive physical and emotional needs of children who have been abused or neglected which may make it difficult to secure appropriate out-of-home care, misinformation about the availability of medical and other assistance and subsidies for foster care and adoptive children, and cultural norms that are hostile to formal adoption.
    
    Given the existence of both discriminatory and non-discriminatory barriers to permanency, it is important for states and child welfare agencies to monitor whether minority children as a whole are being disproportionately held back from foster, fost-adopt, or adoptive placements at each stage of the child protection process. Both systemic patterns and the placement histories of particular children should be internally monitored so that marked disparities can be identified, explained, and ultimately reduced or eliminated.
    
    In addition, agencies should monitor whether they are timely in processing transracial or transethnic placements. That is, agencies can check to see whether transracial or interethnic placements and adoptions are taking substantially longer than other cases and, if so, why.
    
    One of the best ways to reduce delays, regardless of their cause, is for agencies to undertake a comprehensive and well-documented assessment of each child's placement needs as promptly as possible once a child is likely to enter out-of-home care. If placement with a relative is an option, the relative should be notified and assisted in completing any requirements for serving as the child's caregiver. If the court determines that reunification efforts are not required for a particular child, a permanency case plan should be prepared and reasonable efforts devoted to its prompt implementation. Active recruitment and retention of appropriate and diverse foster and adoptive families is also essential to any overall policy aimed at achieving permanency.
    
    Senator Coats made it clear that the prohibition on delay does not relieve agencies from making an aggressive effort to identify families that can meet the needs of the waiting children:
    - [MEPA] also prohibits any delay in making an adoption placement. While I have expressed concern about the effect of this prohibition I have determined that it is the best legislative approach we can take at this time. I do however want to reiterate my concern that this not be perceived as an excuse for agencies not to aggressively recruit prospective adoptive parents. Agencies should, on an ongoing basis-consistently, creatively, and vigorously recruit and study families of every race and culture of children needing adoptive families.
3. The opportunity to become an adoptive or foster parent
  
  Entities covered by MEPA-IEP may not:
  - deny to any person the opportunity to become an adoptive or a foster parent, on the basis of race, color, or national origin of the person, or of the child involved.
  Although the debate surrounding MEPA-IEP has usually focused on discrimination against white parents who wish to adopt African American children, researchers have also pointed out discriminatory practices that keep African American and other minority families from becoming foster and adoptive parents.
  
  The central legal issue in discrimination against white parents is whether same race placement policies unfairly deprive them of the general opportunity to become foster or adoptive parents. However, the controversies usually have arisen in the context of a particular family who wants to adopt or foster a particular child.
  
  The equal protection clause and Title VI prohibit agencies from using race or ethnicity to deprive individuals of the general opportunity to serve as a foster or adoptive parent, assuming they are otherwise qualified to do so. Nonetheless, in individual cases, MEPA-IEP focuses on the specific and distinctive needs of the child and on the capacity and willingness of particular individuals to meet those needs. Because placement decisions are based on the needs of the child, no one is guaranteed the "right" to foster or adopt a particular child.
  
  Agencies should make sure that they are not systematically and inappropriately filtering out transracial or interethnic placements in the process of selecting foster and adoptive parents. For example, agencies can track what happens to all parents willing to adopt white or African American children, and can determine whether parents from different racial or ethnic groups are being screened out or rejected at a far higher than average rate.
  
  Agencies can also use this information to determine whether certain placements are screened out at specific stages of the foster care or adoption process. For example, are prospective parents willing to accept children of other ethnic groups included in lists of eligible applicants for children of all ethnic groups? Are these prospective parents actually matched with children from different racial and ethnic backgrounds? Do all prospective parents have the opportunity to meet and observe children of different racial and ethnic groups? If a very low proportion of transracial or interethnic foster and adoptive placements survive the various steps of screening and placement, the agency should carefully examine its practices to determine why this is happening and whether it is due to discrimination.
  
  The 1995 Guidance makes clear that the prohibition on discrimination includes not only denials overtly based on race, color, or national origin but also using race-neutral policies that have the effect of excluding groups of prospective parents on the basis of race, color, or national origin, where those standards are arbitrary or unnecessary or where less exclusionary standards are available. Race-neutral policies that may have the effect of discriminating on the basis of race, color, or national origin may include those related to income, age, education, family structure, and size or ownership of housing, where such policies are not shown to be necessary to the programs objectives or there are no less discriminatory alternatives available that will achieve those objectives. Restrictive criteria such as these have been cited as barriers to the inclusion of African American and other minority families in the pool of prospective foster and adoptive parents who can provide homes for children. Other barriers to participation include lack of minority staff and management in placement agencies, lack of recruitment in appropriate communities, lack of communication about the need for families in appropriate communities, fees and costs that make adoption difficult or impossible for low income families, negative perceptions about child welfare agencies in minority communities, and the traditional use of informal rather than formal adoption in certain cultures. Barriers to participation can be addressed in an appropriate recruitment plan.
4. Diligent Recruitment
  
  MEPA-IEP requires states to develop plans that:
  - provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed.
  Experience demonstrates that minority communities respond when they are given information about the need for homes and when they are treated with respect. There are many models for successful recruiting. The 1995 Guidance explains that the recruitment plan must focus on developing a pool of potential foster and adoptive parents willing and able to foster or adopt the children needing placement. Recruitment must seek to provide all children with the opportunity for placement and to provide all qualified members of the community with an opportunity to adopt or foster a child.
  
  The Guidance specifies that an appropriate comprehensive recruitment plan includes:
  1. A description of the characteristics of waiting children.
  2. Specific strategies to reach all parts of the community.
  3. Diverse methods of disseminating both general and child specific information.
  4. Strategies for assuring that all prospective parents have timely access to the home study process, including location and hours of services that facilitate access by all members of the community.
  5. Strategies for training staff to work with diverse cultural, racial and economic communities.
  6. Strategies for dealing with linguistic barriers.
  7. Non-discriminatory fee structures.
  8. Procedures for a timely search for prospective parents for a waiting child, including the use of exchanges and other interagency efforts, provided that such procedures must ensure that placement of a child in an appropriate household is not delayed by the search for a same race or ethnic placement.
  The Guidance recognizes that both general and targeted recruitment activities are important. These include use of the general media (radio, television and print), dissemination of information to targeted community organizations, such as religious groups and neighborhood centers, and the development of partnerships with community groups to make waiting children more visible and to identify and support prospective adoptive and foster parents. Recruitment activities should provide potential foster and adoptive parents with information about the characteristics and needs of the available children, the nature of the foster care and adoption process, and the financial, medical, counseling and other assistance and support available to foster and adoptive families.
5. Interaction with Indian Child Welfare Act
  
  MEPA-IEP specifically provides that it has no effect on the Indian Child Welfare Act (ICWA). ICWA was enacted in 1978 in response to concerns about the large number of Native American children who were being removed from their families and their tribes and the failure of states to recognize the tribal relations of Indian people and the cultural and social standards of Indian communities. ICWA establishes standards and procedures for certain "custody proceedings" that affect Indian children, including voluntary and involuntary terminations of parental rights and foster care, pre-adoptive, and adoptive placements. An "Indian child" for purposes of ICWA is an unmarried individual under the age of 18 who is either a member of a federally recognized Indian tribe or is eligible for membership and is the biological child of a tribal member. ICWA gives tribal courts exclusive jurisdiction over proceedings concerning Indian children whose "domicile" (permanent home) is on a reservation and allows tribes to intervene in state court proceedings concerning non-reservation Indian children. MEPA-IEP does not alter ICWAs recognition of tribal rights, nor does it affect ICWAs preferences for placing Indian children with members of their extended families or other tribal members. Because MEPA-IEP does apply, however, to placement activities not covered by ICWA, Indian adults are protected by MEPA-IEP against discrimination if they want to become foster or adoptive parents of non-Indian children.
  
  The exemption of ICWA from the provisions of MEPA-IEP underscores the importance of early and comprehensive assessments of a child's history and needs upon entering out-of-home care. If a caseworker has reason to know that a child may have some Indian heritage, it is essential to determine whether the child is a member of a federally recognized Indian tribe, or may be eligible for membership by virtue of being the biological child of a member. Delays in determining a child's status as an "Indian child" can have the unfortunate consequence, years later, of disrupting stable placements with non-Indian foster or adoptive parents to rectify an earlier failure to abide by ICWA. If it turns out that a child is of mixed ancestry, including some Indian heritage, but is not an "Indian child" under ICWA, then the child's placement is not subject to ICWA and the child is entitled to the MEPA-IEP protections against discriminatory placement decisions.
6. Implementation
  
  Compliance with the original provisions of MEPA was required by October 21, 1995, and compliance with the 1996 IV-E provisions was required by January 1, 1997. States had to submit their recruitment plans to HHS by October 31, 1995. They had the option of doing so as part of a consolidated state plan that includes the plans submitted under title IV-B subparts 1 and 2 or, for states submitting a separate title IV-B subpart 1 plan, as a separate plan amendment.
  
  The Administration for Children and Families (ACF) and the Office for Civil Rights (OCR) in the Department of Health and Human Services (HHS) joined together to provide legal and social work expertise to assist the states and agencies in implementing MEPA. HHS issued its first MEPA Guidance on April 20, 1995. It issued basic information about the Interethnic Adoption Provisions on November 14, 1996, its Guidance on the Interethnic Adoption Provisions on June 5, 1997, and further Guidance in the form of questions and answers on May 11, 1998. These documents are available from HHS or any HHS Regional Office. They are also available on the Internet along with OCR regulations and information about how to file an OCR complaint. The Internet address of the OCR Home Page is http://www.hhs.gov/ocr.
  
  In 1995, HHS conducted a systematic review of States statutes, regulations, and published policies in the area of adoption and foster care to assess their compliance with MEPAs nondiscrimination provisions. At that time, the Interethnic Placement provisions had not been enacted; thus HHS review focused only on MEPA. Since the passage of the Interethnic Placement provisions, HHS continues to review issues, statutes, regulations and policies that come to its attention and provides technical assistance when needed. However, because such statutes, regulations, and policies may not always come immediately to the attention of HHS, the Department encourages States to review their own statutes and policies to ensure compliance with the Interethnic Placement provisions. As discussed below, HHS will be including compliance with the title IV-E provisions of MEPA-IEP provisions in the child welfare review process.
  
  Staff from ACF and the Office for Civil Rights (OCR), in addition to conducting Compliance Reviews, are available for technical assistance, and teams from ACF and OCR have gone to at least one state in each region to provide technical assistance. They are also available to respond to requests from other states. In addition, states may request the assistance of groups like the American Bar Association Center on Children and the Law and the National Resource Center on Special Needs Adoption and the National Resource Center on Permanency Planning through a request to their regional Administration on Children and Families (ACF) office. For more information on this, please contact the ACF Regional Offices or the Resource Centers listed in the Appendices.
7. Enforcement
  
  MEPA-IEP can be enforced through administrative action by HHS or through litigation by individuals or the Justice Department. Noncompliance may result in loss of federal funds, in injunctive relief, and, in certain cases, in an award of money damages.
  1. Administrative enforcement
    1. Title VI
      
      Failure to comply with MEPA-IEPs prohibitions against discrimination is a violation of Title VI of the Civil Rights Act. The 1995 Guidance suggests that failure to engage in appropriate recruitment efforts could also constitute a violation of Title VI. Title VI prohibits discrimination on the basis of race, color, or national origin in programs receiving federal assistance. Anyone who believes he or she has been subjected to discrimination in a program funded by HHS may file a complaint with the Office for Civil Rights (OCR). Information about how to file a complaint is available from HHS or any of its regional offices.
      
      OCR must investigate promptly whenever it receives a complaint or other information indicating that a violation of Title VI has occurred. OCR can also initiate its own compliance reviews to determine whether any Title VI violations have occurred. OCR staff review the policies and practices of the entity receiving federal funds, the circumstances that led to the complaint, and other information about a possible violation.
      
      If OCR determines that a violation of Title VI has occurred, it will notify the entity involved and seek voluntary compliance. If voluntary compliance is not forthcoming, HHS may bring administrative proceedings to terminate federal assistance. These proceedings provide the state or the agency with a formal due process hearing to determine whether a violation has occurred and whether fiscal sanctions should be imposed. In the alternative, OCR may refer the matter to the Justice Department with a recommendation to initiate judicial proceedings.
      
      HHS is required to seek the cooperation of recipients of federal funds in obtaining compliance with Title VI, and HHS is committed to working closely with covered agencies to promote voluntary compliance. An agency may agree to come into voluntary compliance at any point during the investigation or any action to terminate funding.
    2. Title IV-B
      
      In order to receive title IV-B funds for child welfare services, promoting safe and stable families, and family preservation and support services, States and Tribes must develop a plan that meets the requirements of IV-B including the requirements for a recruitment plan. States and Tribes are required periodically to submit new plans under title IV-B. Failure to develop a recruitment plan could result in the loss of title IV-B funding. Before granting federal assistance, HHS must determine whether a state plan complies with federal statutes, regulations and guidelines. This determination must be completed within ninety days of the date the state submits the plan. After the initial plan is approved, HHS may withhold future payment of federal funds if the plan no longer complies with federal law, either because of changes in federal requirements or because of plan amendments submitted by the state. Federal funds also may be withheld if the state fails to administer the plan in substantial compliance with federal law. However, HHS is working jointly with States and Tribes to achieve voluntary compliance, and could afford States and Tribes an opportunity for corrective action before withholding funds.
    3. Title IV-E
      The 1996 Interethnic Placement Provisions added MEPA-IEP provisions to title IV-E. States found to be in violation of these provisions are subject to graduated financial penalties that will vary depending on the amount of title IV-E funding the state receives and the frequency and duration of violations. States will have the opportunity to avoid a financial penalty through a corrective action process if the violation is cured within six months. HHS estimates that penalties will range from under $1,000 to over $10 million. Other covered entities that violate MEPA-IEP will have to repay the amount of money they received from the state during each quarter in which a violation occurs.
      
      ACF will start screening for indications of MEPA-IEP compliance as part of the child welfare review process starting in 1999. OCR will continue to address compliance by investigating complaints and conducting independent reviews. ACF and OCR are working together to develop common protocols and review standards along with policies and procedures for monitoring compliance, developing corrective action plans, and imposing penalties. The formal review standards and protocols will be published in the Federal Register.
  2. Private law suits
    
    MEPA-IEP expressly provides a federal cause of action for any individual who is aggrieved by a violation of the title IV-E provisions of MEPA-IEP. This gives anyone who is adversely affected by a violation the right to file a lawsuit within two years after the violation occurs. Another provision removes an obstacle to bringing an action for failure to comply with the recruitment plan requirements under title IV-B. In addition, the 1995 Guidance suggests that the failure to implement an appropriate recruitment plan could give rise to a discrimination claim under Title VI. Other violations of MEPA-IEP that constitute discrimination may also give rise to civil rights claims based on the Constitution and Title VI.
    
    Litigation can result in court orders requiring the defendant state or agency to comply with the law and an award of attorneys fees if the person bringing the lawsuit is successful. Monetary compensation, known as "damages", may also be available in certain circumstances to individuals who are harmed by discriminatory policies and practices.
8. Barriers to Implementation
  
  Agency administrators should anticipate barriers to implementation of MEPA-IEP and make plans for reducing those barriers. Some of the potential barriers are discussed below.
  1. Confusion
    
    Confusion about the requirements of MEPA-IEP is likely to exist among child welfare workers and the general public as a result of the public debate about transracial adoption and same race placement policies. Confusion is also likely to result from the changes MEPA-IEP will require in law and policy in some states. It is important that administrators act quickly to say what is and what is not required by the law and to specify which current policies and practices must change and which are not affected. Administrators should develop clear written guidelines that detail mandatory requirements and areas where professional judgment is appropriate.
    
    Agency staff must be given an opportunity to clarify issues and to discuss and understand how the law applies to their daily practice. Training sessions and meetings in which the law and policies are applied to facts of real or simulated cases can be helpful in translating the provisions of MEPA-IEP into actual practice. Supervisory staff should encourage review and discussion by all staff members of placement practices and decisions.
    
    Administrators should also develop ways of informing the general public and prospective foster and adoptive parents about the law and the policy and practices of the agency. Recruitment materials, communications between workers and individual parents, and information distributed to the general public should provide a consistent message about what the law requires and what the agency is doing. Information about the reasons for the law and the way that the agency plans to meet the best interest of the children will help the public and prospective parents understand the agencies' policies and practices.
  2. Lack of resources
    
    Child welfare agencies have faced increased responsibilities and decreasing resources in recent years. Implementation of MEPA-IEP may be viewed as another unfunded mandate that will take time away from other issues that affect the lives of children.
    
    Since MEPA-IEP incorporates good social work practice, much of the implementation should be consistent with the work administrators, supervisors, and caseworkers are doing on a regular basis. Administrators should look for ways to incorporate MEPA-IEP implementation into ongoing activities, such as supervision, training, and case reviews.
    
    It is clear however, that some additional resources will be needed for implementation. Administrators should identify all potential sources of support and make use of them. In addition to title IV-E administrative funds and Adoption Opportunities Grants, administrators should make use of HHS technical assistance and the services available from the federal resource centers listed in the appendix.
    
    They should also explore the resources available from nongovernmental sources, such as private foundations. Permanence, the problems of children in foster care, and the effects of discrimination are among the priorities of many foundations, and agencies should be able to develop fundable projects that include MEPA-IEP implementation. Agencies should also be creative in using free community resources, such as churches and community groups in collaborative implementation activities.
  3. Resistance
    Agencies may also encounter resistance from individual workers either because of their personal views or a perception that the federal law is dictating decisions in individual cases where professional discretion should be exercised. Administrators can overcome this resistance by discussing with workers the basic goals and underlying values of the law in addition to its specific provisions. Staff meetings or discussion groups can provide an opportunity for value clarification that will promote consistent decision making in individual cases. Open discussion is particularly important because implementation of MEPA-IEP can raise explosive and emotional issues concerning the needs of children and the meaning of racism and discrimination.
  4. Fear of litigation
    Fear of litigation can create a climate in which social workers or supervisors are fearful of exercising their discretion in the best interest of the children. Administrators should provide their staff with competent legal advice about what is and what is not legal, and agencies should be prepared to back up appropriate worker decisions when they create difficulties or result in litigation. Workers must clearly understand what the law requires of them, but must be free to exercise their professional judgment within the requirements of the law. Workers will want to maintain the necessary documentation to describe the bases for child placement decisions.