Sen. Ron Wyden (D-Ore.) was furious and heartbroken.
Nearly three years into an effort to fundamentally overhaul the nation’s foster care system, the bill Wyden had crafted alongside Senate Finance Chairman Orrin Hatch (R-Utah) was dying.
At 2:47 a.m. on a December morning in 2016, Oregon’s longtime senator stepped to the Senate dais to plead with his colleagues to pass the sweeping Family First Prevention Services Act, which would free up federal funds to help maintain families who would otherwise lose their children to foster care.
Since the federal government started funding child welfare in 1961, almost all the billions in reimbursements sent to the states had done the opposite: They paid to put and keep kids in foster care or adoptions, rather than preventing the breakup of biological families.
For years many advocates had argued that this funding mechanism had created a “perverse incentive” to tear families apart. With an opioid epidemic raging, leaving states from Indiana to New Mexico with ballooning numbers of foster children, hundreds of advocacy organizations and nearly every politician in Congress agreed the time for change had come. But child welfare officials in some state governments were campaigning against this fundamental re-ordering of the federal government’s role in foster care, alongside parts of the multi-billion-dollar “congregate care” industry states contract with to house foster youth.
“We know that federal policy shouldn’t create an incentive to rip these families apart,” Wyden said. “It should create incentives to keep families together.”
Arguing that the bill was an example of “principled bipartisanship,” Wyden, likely aware that his request to move the bill forward would fail, promised to not give up, even though the 114th Congress would soon be over and the new year would bring the partisan debates that have wracked Washington since.
“I am going to prosecute this case of improving the lives of these vulnerable youngsters and these families for as long as I have the honor to represent Oregon in the United States Senate,” Wyden said. “I think this is what public service is supposed to be all about.”
Despite his pleas, at 2:56 a.m., Sen. John Boozman (R-Ark.) objected on behalf of his republican colleague Mike Enzi (R-Wyo.). And with that, Family First was effectively dead.
But this is not the story of how the most significant change to federal child welfare policy in a generation flamed out. It is the tale of a handful of Hill staffers who stealthily kept the bill alive and ultimately attached it to the massive spending bill signed by President Donald Trump to prevent a government shutdown last month.
The surprise passage of Family First left many policymakers and advocates rejoicing, still others recoiling, and recast the role of government in the lives of millions of children and families for years to come.
A Fundamental Re-Ordering of Foster Care
Family First represents a wager by its architects and the culmination of decades of policy debate about when to level one of the most intrusive and painful measures a government has at its disposal: taking a child from his mother, father, family.
Parents, disproportionately black, are often subjected to trauma-ridden child abuse investigations and the ultimate removal of their children. In 2017, the American Journal of Public Health published a groundbreaking study estimating that 37 percent of all American children will have their parents investigated for child abuse by age 18. The number for black children was 53 percent. Nearly a quarter of the 437,465 children the federal government estimates were in foster care in 2016 are black, though African-Americans only represent 13 percent of the country’s general population.
Once in foster care, outcomes for these youngsters are bleak. This is especially true for many of those who wind up in the group homes that Family First aims to curb the use of.
“These facilities are routinely targeted by traffickers, and are often warehouses for youth who are rarely, if ever, allowed to engage in healthy social activities,” said Sen. Hatch in 2013, when he first proposed limiting federal spending on congregate care.
Changing these systemic issues has long been the goal of policymakers, child welfare administrators and advocates. They call their preferred policy focus “family preservation.” Once a family is known to the system, the idea goes, the system should respond when possible by offering supports to that family so the child doesn’t enter foster care at all.
Even though there’s a long-held bipartisan consensus that foster care should be averted, the federal government has done little to stop it, instead pouring roughly $9 billion annually in reimbursements to states for adoption and foster care services, including costly and sometimes dangerously inadequate group homes.
Family First changes how foster care is funded by effectively betting that temporary substance abuse, mental health and parenting education services will keep the highest-risk families together. The bill assumes that this will drive down entries into foster care and severely restricts federal funds available for group homes.
Family First’s designers accomplish these changes by restructuring Title IV-E of the Social Security Act, the entitlement that currently helps states pay only for foster care or adoptions. Starting in 2019, states will also be able to receive matching Title IV-E funds for services to prevent children from entering foster care. The new law also cuts off IV-E funds to group homes after two weeks, unless there are documented, compelling reasons for a child to stay.
Not Giving Up
Becky Shipp, who until October of last year worked for Hatch in the Senate Finance Committee, was one of two staffers who led the march toward ultimate victory in February.
Her counterpart in the early days of the Family First Act was Laura Berntsen, Wyden’s domestic policy advisor for the Senate Finance Committee. Berntsen had become fluent in child welfare policy while working for Rep. Jim McDermott (D-Wash.), who, until his departure from the House in 2016, was known to jokingly refer to himself as the “grandfather” of foster care issues.
Off Capitol Hill, advocates began to drum up public support for Family First before it was even introduced in the House in June 2016. By the time actual text was submitted for markup in the House Ways and Means Committee, First Focus, a D.C.-based advocacy organization, had already organized a sign-on letter campaign, as had the Pennsylvania Center for Children’s Justice. The Alliance for Strong Families and Communities, a large association of youth services providers, dropped its own finance reform plan to endorse Family First.
The act was passed unanimously in the House, but ran aground in the Senate, where Sens. Barbara Boxer (D-Calif.), Mike Enzi (R-Wyo.), Mike Lee (R-Utah) and John Cornyn (R-Tex.) held up efforts pass Family First through “unanimous consent.”
As the bill stagnated over summer, the American Academy of Pediatrics – an early endorser of the bill with 66,000 members around the country – generated six op-eds from members in state and local newspapers including The Hill, Omaha World-Herald and The Sacramento Bee.
Over the Thanksgiving break, Family First’s architects managed to attach it to a larger drug and medical product bill called the 21st Century Cures Act. The four legislators that had earlier held up Family First again voiced concerns about its inclusion in Cures. And a concerted effort by The Baptist Children’s Homes of North Carolina to kill the bill convinced Congresswoman Virginia Foxx (R) and Sen. Richard Burr (R) to object. Ultimately Family First was stripped from the larger Cures Act. It was this development that had compelled Wyden to call for a unanimous vote on the bill during that early morning Senate speech.
“It was the worst day of my professional life,” Shipp said. But she and Bernsten didn’t give up, and instead searched for another larger bill, or “vehicle,” to turn Family First into law.
In May of 2017, the two Senate staffers held a confidential conference call with key advocates to discuss a renewed push for Family First, with a new version of the bill amended to sate group home providers who had argued that the law was too restrictive. But that effort never materialized.
When Shipp departed for a job in the private sector last year, Berntsen was left to keep Family First alive.
“Laura was the silent warrior who wouldn’t give up,” said Jeremy Kohomban, the CEO of The Children’s Village in New York, a youth services provider who is also credited by insiders as one of the bill’s primary boosters off the Hill.
But Berntsen was not alone. Ryan Martin, her new counterpart on the Republican side of Senate Finance, as well as a small cast of House staffers and a couple of lobbyists steeped in social service policy from years working in the Senate, all quietly managed to keep Family First flickering while Washington, D.C., was roiled by contentious partisan debates and myriad controversies surrounding the White House.
When Family First abruptly re-emerged as part of the House’s continuing appropriations resolution on Feb. 6, it took many in the child welfare community by surprise.
“It seems like there weren’t any advocate-types who knew,” said Marlo Nash, policy director of the Alliance for Strong Families and Communities, in an email. “Or, if they did, they weren’t talking.”
Off the Hill, two influential lobbyists had been educating congressional staffers in the lead up to Family First’s appearance in the spending bill, according to multiple sources close to the negotiations. Melanie Nathanson and Megan Hauck, who lead what Bloomberg Government named one of the top 10 lobbying firms in 2016, had been involved in such work since 2012, as part of a contract with Casey Family Programs, a highly influential charitable foundation that has long advocated for services aimed at keeping families together as Family First does.
Finding Money, ‘Shocking’ Opponents
For the staff involved in making sure Family First was included in the February spending bill, there wasn’t much to gain from publicizing their plans.
On one hand, more than 500 child welfare advocacy and other organizations had come out in support of the bill. On the other, Family First had failed before. In those instances, a few members of Congress, foster care service providers, and a crew of advocates and public agency leaders in California objected, derailing the bill.
Because there was consensus on Family First, a GOP source said, “there wasn’t huge outreach on the outside to push this.”
The main players on the House side were Ted McCann, a policy assistant to Speaker Paul Ryan, Wendell Primus, an advisor to Minority Leader Nancy Pelosi (D-Calif.), and Anne DeCesaro and Morna Miller, who staff the House Ways and Means Subcommittee on Human Resources.
After The Cures Act debacle in 2016, these staffers and Berntsen and Martin from Senate Finance all agreed that they would attach Family First to the next available “vehicle,” according to numerous sources close to the bill’s development. Whenever health-related bills, like the Children’s Health Insurance Program (CHIP) or the Maternal, Infant, and Early Childhood Home Visiting Program, came up for extension, they would make sure that Family First went along for the ride.
The problem was finding spending cuts to offset the roughly $344 million that Family First would cost, according to the GOP source.
The offsets included changes to “child support enforcement fees” and amendments to an incentive paid to prisons and jails, according to an email from DeCesaro sent to advocates on Feb. 6, the day that Family First was included in the House version. Family First created another major offset by delaying increased federal spending on subsidies for parents who adopt foster children. That funding would have ballooned over the next two years as the feds covered more infant and newborn adoptions; instead, to make way for Family First, the federal boost won’t happen until 2024.
But finding these so-called “pay-fors” was not the only hurdle. Minority Leader Pelosi and her advisor, Primus, had met consistent resistance from her home state. The California Department of Social Services, the California Welfare Director’s Association, and Los Angeles County’s enormous Department of Children and Family Services had all lined up again in opposition to the bill. One California source said that Trent Rohr, the director of San Francisco’s Human Services Agency, sent Pelosi a letter stating even her home city was opposed.
In October, lead officials within California’s Department of Health and Human Services sent a letter to Primus and Pelosi asking for a series of amendments to the bill if and when it came up again. Frank Mecca, the executive director of the welfare director’s association, and other sources say that they didn’t receive a reply until Family First was already in the spending bill.
On Feb. 7, Primus sent Diana Dooley, California’s secretary of Health and Human Services, and Will Lightbourne, the director of Social Services, an email in reply to their October letter, stating that the bill was moving forward and that Pelosi’s office had worked hard to address their concerns.
“Opportunities for significant reform in this partisan period in our nation’s history simply do not arise and remain indefinitely,” Primus wrote. “The consequences of inaction are dire and the overwhelming majority of child welfare advocates nationally, as well as many advocates in California, recognize that this bill would be the most significant improvement to federal child welfare funding in a generation.”
Mecca, who was a lead player in California’s resistance, found Primus’ response less than satisfactory.
“It is disappointing to us that the concerns of the state where, depending on the metric, 10 to 15 percent of all kids in the foster care system live, were never really meaningfully engaged, or that they took seriously the concerns that we had,” Mecca said. “It is shocking and disappointing.”
With McCann in Ryan’s office and DeCesaro in the Human Resources Subcommittee finding the offsets, and Pelosi’s Primus fending off the California revolt, Family First made it into the House spending bill, and then stuck in the Senate version.
On Feb. 7, Martin and Berntsen of Senate Finance sent out an email to about 20 child welfare advocates alerting them that Family First was on the move once again.
“I know you all have been waiting with anxiety and thank you to everyone who helped rally over here,” Martin and Berntsen wrote. “Given we’ve grown accustomed to last minute disappointments, it’s no time to rest and we’re working hard to make sure it gets signed into law this time.”
Moments Like These
Two days later, early in the morning of Feb. 9, President Trump signed the spending bill and, likely unwittingly, changed foster care forever.
Statements emailed to The Imprint on behalf of Sens. Hatch and Wyden, the bill’s two principal architects, reflect their feeling of accomplishment.
“I am thrilled that we were able to get the Family First Prevention Services Act across the finish line, especially after years of dedication and hard work from both sides of the aisle and from hundreds of organizations across the country,” Hatch said.
Wyden pointed out how bipartisan the effort was, and made sure to note the role of foster youth.
“I’m exceedingly grateful for the tireless support from so many former foster youth and other advocates who fought for these changes, and appreciative of my colleagues for working side-by-side for over two years to help give vulnerable children what they deserve – the best chance at growing up in a safe and loving home,” Wyden said.
A few hours after Family First had been signed into law, Becky Shipp was sitting in the Metro on her way to her new job at the Sheridan Group, a policy and advocacy consulting firm.
“I felt this flood of joy that this could happen,” Shipp said. “I turned off the phone and sat there and savored this moment because these don’t come along that often.”
John Kelly, editor-in-chief of The Imprint, contributed to this story.