FOSTER CARE MAINTENANCE PAYMENTS PROGRAM[297]
Sec. 472. [42 U.S.C. 672] (a) In General.—
(1) Eligibility.—Each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative specified in section 406(a) (as in effect on July 16, 1996) into foster care if—
(A) the removal and foster care placement met, and the placement continues to meet, the requirements of paragraph (2); and
(B) the child, while in the home, would have met the AFDC eligibility requirement of paragraph (3).
(2) Removal and foster care placement requirements.—The removal and foster care placement of a child meet the requirements of this paragraph if—
(A) the removal and foster care placement are in accordance with—
(i) a voluntary placement agreement entered into by a parent or legal guardian of the child who is the relative referred to in paragraph (1); or
(ii) a judicial determination to the effect that continuation in the home from which removed would be contrary to the welfare of the child and that reasonable efforts of the type described in section 471(a)(15) for a child have been made;
(B) the child’s placement and care are the responsibility of—
(i) the State agency administering the State plan approved under section 471; or
(ii) any other public agency with which the State agency administering or supervising the administration of the State plan has made an agreement which is in effect; and
(iii) an Indian tribe or a tribal organization (as defined in section 479B(a)) or a tribal consortium that has a plan approved under section 471 in accordance with section 479B; and
(C) the child has been placed in a foster family home, with a parent residing in a licensed residential family-based treatment facility, but only to the extent permitted under subsection (j), or in a child-care institution, but only to the extent permitted under subsection (k).[298]
(3) AFDC eligibility requirement.—
(A) In general.—A child in the home referred to in paragraph (1) would have met the AFDC eligibility requirement of this paragraph if the child—
(i) would have received aid under the State plan approved under section 402 (as in effect on July 16, 1996) in the home, in or for the month in which the agreement was entered into or court proceedings leading to the determination referred to in paragraph (2)(A)(ii) of this subsection were initiated; or
(ii)(I) would have received the aid in the home, in or for the month referred to in clause (i), if application had been made therefor; or
(II) had been living in the home within 6 months before the month in which the agreement was entered into or the proceedings were initiated, and would have received the aid in or for such month, if, in such month, the child had been living in the home with the relative referred to in paragraph (1) and application for the aid had been made.
(B) Resources determination.—For purposes of subparagraph (A), in determining whether a child would have received aid under a State plan approved under section 402 (as in effect on July 16, 1996), a child whose resources (determined pursuant to section 402(a)(7)(B), as so in effect) have a combined value of not more than $10,000 shall be considered a child whose resources have a combined value of not more than $1,000 (or such lower amount as the State may determine for purposes of section 402(a)(7)(B)).
(4) Eligibility of certain alien children.—Subject to title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996[299], if the child is an alien disqualified under section 245A(h) or 210(f) of the Immigration and Nationality Act[300] from receiving aid under the State plan approved under section 402 in or for the month in which the agreement described in paragraph (2)(A)(i) was entered into or court proceedings leading to the determination described in paragraph (2)(A)(ii) were initiated, the child shall be considered to satisfy the requirements of paragraph (3), with respect to the month, if the child would have satisfied the requirements but for the disqualification.
(b) Foster care maintenance payments may be made under this part only on behalf of a child described in subsection (a) of this section who is—
(1) in the foster family home of an individual, whether the payments therefor are made to such individual or to a public or private child-placement or child-care agency, or
(2) in a child-care institution, whether the payments therefor are made to such institution or to a public or private child-placement or child-care agency, which payments shall be limited so as to include in such payments only those items which are included in the term “foster care maintenance payments” (as defined in section 475(4)).
(c)[301] Definitions.—For purposes of this part:
(A) In general.—The term “foster family home” means the home of an individual or family—
(i) that is licensed or approved by the State in which it is situated as a foster family home that meets the standards established for the licensing or approval; and
(ii) in which a child in foster care has been placed in the care of an individual, who resides with the child and who has been licensed or approved by the State to be a foster parent—
(I) that the State deems capable of adhering to the reasonable and prudent parent standard;
(II) that provides 24-hour substitute care for children placed away from their parents or other caretakers; and
(III) that provides the care for not more than six children in foster care.
(B) State flexibility.—The number of foster children that may be cared for in a home under subparagraph (A) may exceed the numerical limitation in subparagraph (A)(ii)(III), at the option of the State, for any of the following reasons:
(i) To allow a parenting youth in foster care to remain with the child of the parenting youth.
(ii) To allow siblings to remain together.
(iii) To allow a child with an established meaningful relationship with the family to remain with the family.
(iv) To allow a family with special training or skills to provide care to a child who has a severe disability.
(2)Child-care institution.—
(A) In general.—The term “child-care institution” means a private child-care institution, or a public childcare institution which accommodates no more than 25 children, which is licensed by the State in which it is situated or has been approved by the agency of the State responsible for licensing or approval of institutions of this type as meeting the standards established for the licensing.
(B) Supervised settings.—In the case of a child who has attained 18 years of age, the term shall include a supervised setting in which the individual is living independently, in accordance with such conditions as the Secretary shall establish in regulations.
(C) Exclusions.—The term shall not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.
(d) Notwithstanding any other provision of this title, Federal payments may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of children removed from their homes pursuant to voluntary placement agreements as described in subsection (a), only if (at the time such amounts were expended) the State has fulfilled all of the requirements of section 422(b)(8).
(e) No Federal payment may be made under this part with respect to amounts expended by any State as foster care maintenance payments under this section, in the case of any child who was removed from his or her home pursuant to a voluntary placement agreement as described in subsection (a) and has remained in voluntary placement for a period in excess of 180 days, unless there has been a judicial determination by a court of competent jurisdiction (within the first 180 days of such placement) to the effect that such placement is in the best interests of the child.
(f) For the purposes of this part and part B of this title, (1) the term “voluntary placement” means an out-of-home placement of a minor, by or with participation of a State agency, after the parents or guardians of the minor have requested the assistance of the agency and signed a voluntary placement agreement; and (2) the term “voluntary placement agreement” means a written agreement, binding on the parties to the agreement, between the State agency, any other agency acting on its behalf, and the parents or guardians of a minor child which specifies, at a minimum, the legal status of the child and the rights and obligations of the parents or guardians, the child, and the agency while the child is in placement.
(g) In any case where—
(1) the placement of a minor child in foster care occurred pursuant to a voluntary placement agreement entered into by the parents or guardians of such child as provided in subsection (a), and
(2) such parents or guardians request (in such manner and form as the Secretary may prescribe) that the child be returned to their home or to the home of a relative,
the voluntary placement agreement shall be deemed to be revoked unless the State agency opposes such request and obtains a judicial determination, by a court of competent jurisdiction, that the return of the child to such home would be contrary to the child’s best interests.
(h)(1) For purposes of title XIX, any child with respect to whom foster care maintenance payments are made under this section is deemed to be a dependent child as defined in section 406 (as in effect as of July 16, 1996) and deemed to be a recipient of aid to families with dependent children under part A of this title (as so in effect). For purposes of subtitle I of title XX, any child with respect to whom foster care maintenance payments are made under this section is deemed to be a minor child in a needy family under a State program funded under part A of this title and is deemed to be a recipient of assistance under such part.
(2) For purposes of paragraph (1), a child whose costs in a foster family home or child care institution are covered by the foster care maintenance payments being made with respect to the child’s minor parent, as provided in section 475(4)(B), shall be considered a child with respect to whom foster care maintenance payments are made under this section.
(i) Administrative Costs Associated With Otherwise Eligible Children Not In Licensed Foster Care Settings.—Expenditures by a State that would be considered administrative expenditures for purposes of section 474(a)(3) if made with respect to a child who was residing in a foster family home or childcare institution shall be so considered with respect to a child not residing in such a home or institution—
(1) in the case of a child who has been removed in accordance with subsection (a) of this section from the home of a relative specified in section 406(a) (as in effect on July 16, 1996), only for expenditures—
(A) with respect to a period of not more than the lesser of 12 months or the average length of time it takes for the State to license or approve a home as a foster home, in which the child is in the home of a relative and an application is pending for licensing or approval of the home as a foster family home; or
(B) with respect to a period of not more than 1 calendar month when a child moves from a facility not eligible for payments under this part into a foster family home or child care institution licensed or approved by the State; and
(2) in the case of any other child who is potentially eligible for benefits under a State plan approved under this part and at imminent risk of removal from the home, only if—
(A) reasonable efforts are being made in accordance with section 471(a)(15) to prevent the need for, or if necessary to pursue, removal of the child from the home; and
(B) the State agency has made, not less often than every 6 months, a determination (or redetermination) as to whether the child remains at imminent risk of removal from the home.
(j)[303]Children placed with a parent residing in a licensed residential family-based treatment facility for substance abuse.—
(1) In general.—Notwithstanding the preceding provisions of this section, a child who is eligible for foster care maintenance payments under this section, or who would be eligible for the payments if the eligibility were determined without regard to paragraphs (1)(B) and (3) of subsection (a), shall be eligible for the payments for a period of not more than 12 months during which the child is placed with a parent who is in a licensed residential family-based treatment facility for substance abuse, but only if—
(A) the recommendation for the placement is specified in the child’s case plan before the placement;
(B) the treatment facility provides, as part of the treatment for substance abuse, parenting skills training, parent education, and individual and family counseling; and
(C) the substance abuse treatment, parenting skills training, parent education, and individual and family counseling is provided under an organizational structure and treatment framework that involves understanding, recognizing, and responding to the effects of all types of trauma and in accordance with recognized principles of a trauma-informed approach and trauma-specific interventions to address the consequences of trauma and facilitate healing.
(2) Application.—With respect to children for whom foster care maintenance payments are made under paragraph (1), only the children who satisfy the requirements of paragraphs (1)(B) and (3) of subsection (a) shall be considered to be children with respect to whom foster care maintenance payments are made under this section for purposes of subsection (h) or section 473(b)(3)(B).
(k)[304]Limitation on federal financial participation.—
(1) In general.—Beginning with the third week for which foster care maintenance payments are made under this section on behalf of a child placed in a child-care institution, no Federal payment shall be made to the State under section 474(a)(1)for amounts expended for foster care maintenance payments on behalf of the child unless—
(A) the child is placed in a child-care institution that is a setting specified in paragraph (2) (or is placed in a licensed residential family-based treatment facility consistent with subsection (j)); and
(B) in the case of a child placed in a qualified residential treatment program (as defined in paragraph (4)), the requirements specified in paragraph (3) and section 475A(c)are met.
(2) Specified settings for placement.—The settings for placement specified in this paragraph are the following:
(A) A qualified residential treatment program (as defined in paragraph (4)).
(B) A setting specializing in providing prenatal, postpartum, or parenting supports for youth.
(C) In the case of a child who has attained 18 years of age, a supervised setting in which the child is living independently.
(D) A setting providing high-quality residential care and supportive services to children and youth who have been found to be, or are at risk of becoming, sex trafficking victims, in accordance with section 471(a)(9)(C).
(3)Assessment to determine appropriateness of placement in a qualified residential treatment program.—
(A) Deadline for assessment.—In the case of a child who is placed in a qualified residential treatment program, if the assessment required under section 475A(c)(1)is not completed within 30 days after the placement is made, no Federal payment shall be made to the State under section 474(a)(1) for any amounts expended for foster care maintenance payments on behalf of the child during the placement.
(B) Deadline for transition out of placement.— If the assessment required under section 475A(c)(1) determines that the placement of a child in a qualified residential treatment program is not appropriate, a court disapproves such a placement under section 475A(c)(2), or a child who has been in an approved placement in a qualified residential treatment program is going to return home or be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home, Federal payments shall be made to the State under section 474(a)(1) for amounts expended for foster care maintenance payments on behalf of the child while the child remains in the qualified residential treatment program only during the period necessary for the child to transition home or to such a placement. In no event shall a State receive Federal payments under section 474(a)(1)for amounts expended for foster care maintenance payments on behalf of a child who remains placed in a qualified residential treatment program after the end of the 30-day period that begins on the date a determination is made that the placement is no longer the recommended or approved placement for the child.
(4) Qualified residential treatment program.—For purposes of this part, the term “qualified residential treatment program” means a program that—
(A) has a trauma-informed treatment model that is designed to address the needs, including clinical needs as appropriate, of children with serious emotional or behavioral disorders or disturbances and, with respect to a child, is able to implement the treatment identified for the child by the assessment of the child required under section 475A(c);
(B) subject to paragraphs (5) and (6), has registered or licensed nursing staff and other licensed clinical staff who—
(i) provide care within the scope of their practice as defined by State law;
(ii) are on-site according to the treatment model referred to in subparagraph (A); and
(iii) are available 24 hours a day and 7 days a week;
(C) to extent appropriate, and in accordance with the child’s best interests, facilitates participation of family members in the child’s treatment program;
(D) facilitates outreach to the family members of the child, including siblings, documents how the outreach is made (including contact information), and maintains contact information for any known biological family and fictive kin of the child;
(E) documents how family members are integrated into the treatment process for the child, including post-discharge, and how sibling connections are maintained;
(F) provides discharge planning and family-based aftercare support for at least 6 months post-discharge; and
(G) is licensed in accordance with section 471(a)(10)and is accredited by any of the following independent, not-for-profit organizations:
(i) The Commission on Accreditation of Rehabilitation Facilities (CARF).
(ii) The Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
(iii) The Council on Accreditation (COA).
(iv) Any other independent, not-for-profit accrediting organization approved by the Secretary.
(5) Administrative costs.—The prohibition in paragraph (1) on Federal payments under section 474(a)(1)shall not be construed as prohibiting Federal payments for administrative expenditures incurred on behalf of a child placed in a childcare institution and for which payment is available under section 474(a)(3).
(6) Rule of construction.—The requirements in paragraph (4)(B) shall not be construed as requiring a qualified residential treatment program to acquire nursing and behavioral health staff solely through means of a direct employer to employee relationship.
[297] See Vol. II, P.L. 96-272, §102(e), with respect to the Secretary’s report to Congress on the placement of children in foster care pursuant to certain voluntary agreements.
[298] P.L. 115–123, §50712(a)(1), struck “or” and inserted “, with a parent residing in a licensed residential family-based treatment facility, but only to the extent permitted under subsection (j), or in a”. Effective February 9, 2018.
P.L. 115–123, §50741(a)(1)(A), inserted “, but only to the extent permitted under subsection (k)” after “institution”. Effective February 9, 2018.
[299] See Vol. II, P.L. 104-193, §§400-435.
[300] See Vol. II, P.L. 82-414, §§210(f) and 245A(h).
[301] P.L. 115–123, §50741(b), struck subsection (c) and inserted a new subsection (c). Effective February 9, 2018.
[302] See Vol. II, P.L. 115–123, §50731(a), with respect to deadline for HHS to identify reputable model licensing standards for use under this paragraph.
[303] P.L. 115–123, §50712(a)(2), inserted subsection (j). Effective February 9, 2018.
[304] P.L. 115–123, §50741(a)(1)(B), added subsection (k). Effective February 9, 2018.