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History and Legislative Context for Waivers

Public Law 103-432, authorized by Congress in 1994, introduced the concept of Federal waivers to child welfare programs. Conceived as a strategy for generating new knowledge about innovative and effective child welfare practices, waivers grant States flexibility in the use of Federal funds for alternative services and supports that promote safety and permanency for children in the child protection and foster care systems. The 1994 law authorized the Department of Health and Human Services to approve a total of ten child welfare waiver demonstration projects. The Adoption and Safe Families Act (ASFA) of 1997 extended and expanded the authority to use waivers for child welfare programs, authorizing the Secretary of Health and Human Services to approve up to ten new demonstration projects each year. Through the waivers, States may spend Federal funds in a manner not normally allowed under current Federal laws and regulations in support of innovative child welfare practices. Knowledge gained through these waivers provides a valuable source of information to inform changes in policy and practice aimed at improving service delivery and enhancing the achievement of national child welfare priorities.

Federal child welfare waivers primarily affect the use of funds under title IV-E of the Social Security Act, which applies to payments for foster care. Available on an unlimited entitlement basis, title IV-E reimburses States for a portion of foster care maintenance expenses paid on behalf of eligible children and for related administrative costs. Among the requirements for eligibility is that children be removed from a family that would have qualified for the former AFDC¹ grant under guidelines in effect in July 1996. Through the child welfare waiver legislation, States may apply to use title IV-E funds for supports and services other than foster care maintenance payments that protect children from abuse and neglect, preserve families, and promote permanency. Under a waiver, States may also expend title IV-E funds on non-IV-E eligible children. When implementing a waiver project, States must remain in compliance with the following provisions of title IV-E:

• All requirements relating to the conduct of periodic foster care reviews;
• Requirements specifying safeguards for children during out-of-home placement;
• Required permanency hearings for children in State custody; and
• Requirements governing information to be included in a foster child's case plan.

The Department of Health and Human Services typically approves child welfare waivers for up to five years, although at the discretion of the Secretary they may be extended beyond five years. In addition to the provisions described above, waiver demonstrations must remain cost neutral to the Federal government (i.e., States cannot receive more in Federal reimbursement than the State would have received in the absence of the demonstration) and they must undergo rigorous program evaluation to determine their efficacy. Since 1996, 17 States have implemented 25 child welfare waiver demonstration components through 20 title IV-E agreements.² Some States have multiple waiver agreements, and some waiver agreements have multiple components. These projects examine innovative child welfare service strategies in several areas, including:

• Assisted guardianship/kinship care;
• Capped IV-E allocations and flexible funding to local agencies;
• Managed care payment systems;
• Services for caregivers with substance use disorders;
• Intensive service options;
• Enhanced training for child welfare staff;
• Adoption services; and
• Tribal administration of IV-E funds

This issue paper focuses specifically on the experiences and issues faced by States that have implemented assisted guardianship waivers.

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Growth of Interest in Assisted Guardianship Waivers

Since 1996, seven States have implemented assisted guardianship waiver demonstrations: Delaware, Illinois, Maryland, Montana, New Mexico, North Carolina and Oregon. Montana and New Mexico's demonstrations offer a guardianship option for children in either Tribal or State custody; procedures for processing the cases of children in Tribal custody are determined by appropriate Tribal government authorities. In two States - North Carolina and Oregon - assisted guardianship is one component of a larger, flexible funding waiver demonstration. Delaware, Illinois, Maryland, North Carolina, and Oregon have completed their initial five-year demonstration projects. Delaware and Maryland have now ended their waiver demonstrations, while Illinois, North Carolina and Oregon have been granted approval to extend their waiver demonstration projects for an additional five years.

The number of States implementing guardianship demonstrations reflects growing interest nationally in the use of guardianship as an alternative permanency option for some children in foster care, particularly for children who are placed with relatives, who cannot be safely reunified with birth parents and who cannot or do not wish to be adopted. Although many children are adopted by relatives each year, families may choose not to pursue adoption for many reasons:

• Reluctance to terminate parental rights: Relatives caring for the child of a daughter or son, sister, brother, or cousin may fear the detrimental effects on family relationships of terminating parental rights. In its waiver proposal, Illinois described focus group discussions with relative caregivers who revealed hesitation to participate in termination of parental rights (TPR) for fear of alienating relatives. The conflicts created among family members by pursuing TPR may prove more harmful to a child and his/her relatives than remaining in long-term foster care with relatives.

• Rejection of adoption by the child: Many children, particularly teenagers, may resist adoption because they want to maintain a connection to their biological parent(s) and siblings.

• Cultural opposition to termination of parental rights: In some communities, TPR may conflict with deeply-rooted cultural traditions, particularly with respect to child-rearing practices and the definition of families. Cultural opposition to TPR is particularly evident in some American Indian communities; waiver proposals from Montana and New Mexico both cited cultural norms against TPR as a motivation for pursuing alternatives to adoption. Other States' waiver proposals cited reluctance in some African American communities to adopt the children of family members (North Carolina) and African American cultural norms that support the "informal adoption" of children by extended family members (Maryland) as reasons to explore other permanency options.

While it is possible for families to go to court to seek legal guardianship of the children placed in their care, many families that might wish to pursue this option cannot manage without the ongoing financial assistance and access to supportive services available through State foster care programs, especially in situations involving children with special needs. For these families "assisted" guardianship (also often referred to as "subsidized" guardianship) offers another option that may be more viable. While providing a permanent home for a child in the least restrictive setting possible, assisted guardianship gives families a regular financial payment while affording caregivers enhanced decision making authority regarding a child's education, medical care, and other needs. Under assisted guardianship, there is also reduced legal oversight and intrusion by the child welfare system.

A barrier to implementation of these programs, however, is that while Federal title IV-E payments help States to pay for the maintenance of a child in a foster care setting or, for special needs children, in an adoptive home, title IV-E funds cannot normally be used to pay subsidies to legal guardians. The guardianship demonstrations approved under the child welfare waiver authority granted participating States authority to use title IV-E funds for this purpose.

While support for guardianship as a permanency option for children in foster care has grown, some concerns have also been raised:

• Perception that guardianship is less permanent: Some child welfare professionals and advocates believe that guardianship is "less permanent" than reunification or adoption. For example, they fear that parents may eventually contest a guardianship order and that the courts will revoke the order, thereby returning a child to a potentially unsafe home. Furthermore, some adoption advocates fear that if given a choice, caregivers will choose guardianship over adoption, thereby decreasing the number of "more permanent" adoptions.

• Safety concerns: Some child welfare advocates have expressed concerns about biological parents' access to their children in guardianship arrangements. Without agency supervision, they fear that relatives will be more likely to informally return a child to the care of a biological parent, even when child safety remains an issue.

The guardianship waiver demonstrations have provided a means to explore the extent to which guardianship offers a permanent, safe placement environment for children, comparable to adoption, at a cost equal to or less than long-term foster care. This paper presents key findings from these demonstration projects.

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Key Characteristics of Assisted Guardianship Demonstration Projects

In addition to meeting the requirements and limitations applicable to all waiver demonstrations (e.g., continuing to provide all procedural and safety protections for children in foster care, conducting a rigorous evaluation and ensuring Federal cost neutrality), States implementing assisted guardianship projects must ensure also that:

• Children placed in guardianship arrangements will be able to remain in their placements, to the extent they remain appropriate placements, at the end of the demonstration; and

• Children who are eligible for Medicaid while in foster care will retain that eligibility when moving to guardianship.

Although all guardianship waiver demonstrations are similar in that they provide financial support for guardians of children who have previously been in foster care, the demonstrations have varied in other respects, such as the eligibility criteria for determining which children and families will be considered for guardianship and the amount of subsidy payments. Table 1 provides a summary of State guardianship program characteristics. Key differences among States include:

Caregiver Relationship and Licensing Status

Although many States have expressed particular interest in relative or "kin" providers as guardians, six States opened their guardianship demonstrations to both relatives and non-relative caregivers. Only Maryland limited its demonstration to either "kinship" caregivers, defined as unlicensed relative caregivers funded through TANF, or licensed relative foster care providers. Three States - Delaware, Montana, and New Mexico - limited receipt of guardianship subsidies to licensed or otherwise approved foster care providers, whether relatives or non-relatives.

Payment Amount and Support Services

Five States offered assisted guardianship subsidies equal to or similar to the monthly foster care or adoption payment. Maryland's guardianship subsidy is substantially lower than that State's monthly foster care payment, but is higher than the TANF child-only payment made to kinship caregivers. North Carolina originally had a guardianship payment lower than the foster care payment, but later raised it to equal foster care subsidies. All States have offered a varying array of post-guardianship services that are similar to post-adoption services, including individual and family counseling, parenting skills training, mental health and medical assessments, caseworker assistance and emergency stabilization, and payment of one-time court costs and legal fees associated with the establishment of guardianships.

Child Age

Many States have preferred to restrict the assisted guardianship option to older children, particularly for those in non-relative foster care. Illinois and Oregon established a minimum age of 12 for children in non-relative placements to enter into a guardianship arrangement; Delaware and Montana restricted participation to children 12 and older in all placement settings, although Montana later eliminated this age requirement. The remaining States offered guardianship to all ages. Some States' interest in limiting participation to older children reflects the assumption that adoption is still the preferred permanency option - and more likely to succeed - for younger children, while recognizing that adolescents face more barriers to adoption and need expanded options for achieving permanency.

Child's IV-E Eligibility

Three States (Illinois, Maryland, and North Carolina) opened their guardianship demonstrations to both IV-E and non-IV-E eligible children; Delaware, Montana, New Mexico, and Oregon restricted their guardianship waiver projects exclusively to IV-E-eligible children.

Length of Time with Caregiver

States also differ on the minimum length of time a child must reside with a single caregiver before becoming eligible for assisted guardianship: three States (Delaware, Illinois, and North Carolina) established one year with a single caregiver as a minimum threshold for participation, whereas, two States (Maryland and Montana) set the length of stay at six months. Children in Oregon's demonstration must have resided in out-of-home placement for at least 12 months and lived with the same prospective guardian for at least 6 months. New Mexico set no minimum time in out-of-home placement to participate in its waiver demonstration.

Table 1
Features and Eligibility Criteria for Assisted Guardianship/Kinship Permanence Programs

State	Program Features	Payment Amount	Eligibility Requirements
			Length of Time with Caregiver	Child Age	Caregiver Relationship	Child’s IV-E Eligibility	Caregiver Licensing/ Approval Status
Delaware	Implemented 7/1/96. Family and child were eligible to receive case management, child health care, mental health care, and “post-adoption” services.	Equal to monthly foster care payment	1 year	12+	Kin or non-relatives	IV-E only	Licensed foster care providers only
Illinois	Implemented 5/1/97. Legal guardianship offered to eligible relative caregivers and licensed foster parents for children in their care. Support services offered: home study; preliminary screenings and counseling; payment of one-time court costs and legal fees; and periodic casework assistance, emergency stabilization, and special services (e.g., physical therapy). Illinois plans to implement an enhanced guardianship option for youth aged 14 and older offering independent living and transitional supports.	Equal to monthly adoption assistance payment	Originally 2 years Changed to 1 year in July 2001	12+ for child with unrelated foster care provider All ages for kinship care	Kin or non-relatives	IV-E and non-IV-E	Both licensed foster care and unlicensed relative care
Maryland	Implemented 3/1/98. Offered kinship caregivers and relative foster parents the option of becoming legal guardians. $300 subsidy for kinship caregivers and relative foster parents. Participating guardians continued to receive financial assistance and support services. Guardians given priority for receiving services, including individual and family counseling, parent training, medical support, and mental health assessments.	Greater than TANF payment for kinship caregivers but less than payment for relative foster parents	6 months	All ages	Relatives or “kin” only	IV-E and non-IV-E	Licensed and unlicensed relatives
Montana	Implemented 6/21/01. Allows caregivers to assume guardianship of child while retaining the child’s IV-E eligibility. Guardianship families in the demonstration may access social and mental health services typically available to adoptive families.	$10 less than monthly foster care payment	6 months	Originally 12+. Age requirement eliminated in year 3.	Kin or non-relatives	IV-E only	Licensed foster care providers only (both relatives and non-relatives)
New Mexico	Implemented 7/1/00. Provides permanency for children who might otherwise linger in out-of-home care. Two components: (1) Tribal assisted guardianship; and (2) State assisted guardianship.	Similar to but does not exceed monthly adoption assistance payment	No minimum time required	All ages	Kin or non-relatives	IV-E only	Licensed foster care providers only
North Carolina	Implemented 7/1/97. Experimental counties participating in the State’s capped IV-E allocation demonstration had the option to provide assisted guardianship to eligible families.	Originally less than monthly foster care payment. Increased in October 2002 to equal foster care payment	1 year	All ages	Relative or unrelated caregivers	IV-E and non-IV-E	Both licensed foster care and unlicensed relative care
Oregon	Implemented 7/1/97. Both kin caregivers and non-relative foster parents were eligible to receive a subsidy payment that did not exceed the regular out-of-home care payment.	Equal to basic monthly foster care rate	1 year in custody, 6 months with prospective guardian	Any age if placed with relative 12+ if placed with non-relative	Kin or non-relatives	IV-E only	Both licensed foster care and unlicensed relative care

¹Aid to Families with Dependent Children, the predecessor to the current Federal Temporary Assistance to Needy Families (TANF) program.Back

²In 2004 and 2005, three additional States - Arizona, Minnesota and Wisconsin - received approval for, but have not yet implemented, their child welfare waiver demonstrations.Back

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