The calls can come even in the middle of the night, without warning, to a grandmother, an uncle or an older sister. A child protective services worker describing a young relative in need of a temporary home. Tens of thousands of so-called kinship caregivers nationwide respond each year to calls like this, offering what children need in a time of crisis — stability and comfort within a family network.
Yet when government agencies remove children from their parents, the respite these relatives provide often isn’t supported by the monthly stipends that foster parents receive.
Now, a federal agency is confronting this key gap in the country’s child welfare system. A potentially historic reform is embedded in a dense set of proposed regulations released Tuesday, aimed at settling a longstanding policy dispute. If approved, the regulations confirm states have the option to make foster care licensing easier for a child’s kin, allowing them to receive the same financial help as foster parents — adults who have been through strict training and vetting but lack something essential: a prior connection to the child.
The leader of Wisconsin’s foster care system hailed the proposed new rules as a “welcome and needed change.”
“We know that the children we serve will be better served in the homes of people who know and love them, and the proposed changes to the rule will make that possible in many more cases,” Wendy Henderson, the administrator for her state’s Division of Safety and Permanence, said in an email.
The draft regulations released this week by the U. S. Administration for Children and Families could dramatically increase the number of relatives, close neighbors and friends who receive financial support to care for foster children. Recent estimates were unavailable by press time, but the Government Accountability Office reported in 2011 that the average minimum monthly payment to licensed foster homes was $511, with incremental increases for the number of children and their level of need. The payments cover clothing, food, school supplies and other essentials.
While the proposed regulations would not be binding, they make clear that states have the discretion to create a separate and more streamlined licensing and training process for kinship caregivers. The rules also state that agencies should ensure payments “made to a licensed or approved relative or kinship foster family home” are equal to “the amount that would have been made if the child was placed in a licensed or approved non-relative foster family home.”
The separate rules only grant flexibility on “non-safety” requirements for caregivers, such as those barring kids from sleeping in bunk beds or living in homes that may have lead-based paint in the walls.
According to the Administration for Children and Families, the draft rules could cost the federal government an estimated $3.085 billion over 10 years. The agency envisions “a slow rate of change,” because not all states will choose to change their standards immediately.
Mark Testa, a former university professor and widely cited expert on the topic, called the proposed regulation “the most important advance the federal government has made in kinship care policy in the last 40 years.”
Increasing reliance on kinship care
In proposing the change, open for public comment until April, the Administration for Children and Families acknowledges times have changed in the world of foster caregiving.
“All over the nation, there is a preference to prioritize placing children entering foster care with relatives and kin over non-relative foster families when appropriate,” the draft rule states. And strict standards created decades ago for children living with someone they do not know may be “irrelevant for children living with a relative or kin.”
Yet states have steadily increased their reliance on kinship caregivers, from 24% in 2002 to 35% in the most recent fiscal year, according to federal data. They are also “older, more likely to be single, more likely to be African American, more likely to live in poverty,” the draft rules states.
“We’ve done focus groups nationally with kinship families, and we have found that typically, white families are licensed and families of color are not,” said Heidi Redlich Epstein, director of kinship policy for the American Bar Association’s Center on Children and the Law. “These states hold families of color and families in poverty to standards that do not equate to safety.”
Redlich Epstein noted that there is widespread sentiment that the problem needs fixing.
“This has resonated with states when we pointed it out,” she said. “They want to fix it.”
“We have found that typically, white families are licensed and families of color are not.”
—Heidi Redlich Epstein, the American Bar Association’s Center on Children and the Law
In a statement released Tuesday, Health and Human Services Secretary Xavier Becerra endorsed the proposed changes as well, and encouraged state and tribal leaders to adjust their practices to fulfill the intent of the rules.
“The Biden-Harris Administration continues to prioritize keeping families safely together, including removing barriers for child welfare agencies to license grandparents, aunts, uncles, and other relatives and kin who step up to foster children during challenging times,” Becerra stated. “As this new proposed regulation gives states and tribes the ability to adopt separate licensing standards for relatives and other kin, we encourage agencies to place as few burdens as possible on kin, consistent with the safety and well-being of the child.”
“Dangerous confusion” over federal regulations
The Government Accountability Office estimates that upwards of 2.7 million children “lived with kin caregivers — grandparents, other relatives, or close family friends — because their parents were unable to care for them.” Roughly 134,000 were living in a temporary household with close kin after being placed there by the child welfare system, as of September 2021, but federal data doesn’t distinguish how many have been licensed to receive financial support from that system.
Testa points out that in Illinois for example, only four out of every 10 kinship homes are licensed. If the new rules stick and states take them up, he added, the relatives’ ability to care for these children would be greatly enhanced.
A recent report by Policy Matters Ohio described a common scenario under current rules nationwide — illustrating how relatives get shorted.
In that state, 4,507 children lived with relatives or other close relations who child welfare authorities had “approved” as safe and suitable in the fiscal year 2020. Two children living with their grandmother in Cleveland, for example, would have been eligible for $412 per month through the federal Temporary Aid for Needy Families (TANF) program — a general welfare fund for poor families that is separate from the child welfare system. But if that sibling pair had been placed with people they did not know in a licensed foster home, the household would have been eligible for a minimum of $1,248, and maximum of $5,238.
In 2020, Ohio implemented an increase in monthly TANF aid for relative caregivers that still falls short of the foster care maintenance payments. The state prevailed in a lawsuit brought by children’s advocates challenging the disparity in 2022.
“That decision showed there was dangerous confusion over the federal regulations on this issue,” said Ira Lustbader, director of litigation for the pro bono legal advocacy firm Children’s Rights, which was one of four co-counsels for the plaintiffs. “It’s exactly why it’s important to see that Health and Human Services has clarified these rules.”
Georgetta Lake, 79, a nonprofit executive in Columbus, Ohio said her family struggled with CPS to be allowed to care for her granddaughter — a girl she was familiar with, down to her love of puzzles and popcorn. She was never offered nor received foster care maintenance payments, she said, because she never went through the license and training process. These are common hurdles relatives face, she added.
“There are very harsh feelings in our community about child welfare in general. Why do we have to go through this licensing just to take care of my own kids? We are being penalized,” said Lake.
She expressed cautious optimism about the new regulations, because if they are approved by the federal agency this spring, she is not certain her state will change local rules to take advantage of them.
“For Ohio anyway, we will have to begin to advocate for, push for those families that have been left behind,” she said. “We’re already saving the system gobs of money by stepping up to the plate.”
The Ohio Department of Jobs and Family Services did not provide comment on the new regulations by press time.
Still, the many advocates who have been pressing for regulatory action — including advocacy groups such as Children’s Rights, Generations United, the American Bar Association’s Center on Children and the Law, and Think of Us — are optimistic that states will embrace the new rules.
“We have talked to states who have said, once this is finalized, we want to be ready on day one to do this,” said Sixto Cancel, a leading advocate for foster youth and founder of Think of Us. Cancel, 30, has made his story public to illustrate what many of his peers experience in foster care nationwide. In a 2021 New York Times op-ed he described his childhood growing up with strangers in abusive or unstable foster and adoptive homes, despite having four aunts who were experienced foster parents.
Foster care licensing requirements also prevented his oldest brother from taking him in with another younger brother.
“It’s not just about a paycheck,” Cancel said, describing his family’s painful struggles living apart. “If we would have gotten this support, we would have had different outcomes.”
