1. LINK and SPARC Webinar 2018 Overcoming Licensing Barriers for Kin
Ana Beltran, Generations United Heidi Redlich Epstein, ABA Center on Children and the Law

2. Legal Impact Network for Kin (LINK)
Network of kinship attorneys created by ChildFocus, the ABA Center for Children and the Law and Generations United with funding from the Annie E. Casey Foundation
Over 60 members in almost half the states that provide direct services for kinship families or advocate for kinship care- related laws and policy change
Goals:
Improve the availability and quality of free and low-cost legal representation for kinship families
Create better state and federal kinship care laws and policies based on the most pressing legal challenges facing kinship families
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3. State Policy and Advocacy Reform Center (SPARC)
Network of 48 child welfare advocates in 37 states (and D.C) designed to strengthen child welfare advocacy at the state level building the capacity of and connections between state child welfare advocates
SPARC network strengthens connections among state advocates by:
Forming smaller working groups focused on finding solutions to challenging problems
Connecting state and national experts in the field and facilitating hands-on policy strategy, advice, research, and coaching for state partners.
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4. Background

5. Federal Licensing Requirements
Federal law says little about the actual licensing of foster homes:
States must designate a state authority responsible for standards
States have broad flexibility so long as those standards “are reasonably in accord with recommended standards of national organizations…”
“a waiver of any such standard may be made only on a case-by-case basis for non-safety standards (as determined by the State) in relative foster family homes...”
States must periodically review their licensing standards
42 U.S.C. § 671 (a)(10) and (11)
The federal Adam Walsh Act requires states to conduct criminal background and child abuse registry checks, 42 U.S.C. § 671(a)(20)(A)
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6. Origins of Project
Many children in foster care are in the unlicensed care of their relatives
subject to rules and restrictions
limited or no support
With a license (“approval” or “certification” in some states), kinship families receive:
monthly financial assistance
support services
access to the federal Guardianship Assistance Program (GAP) in 35 states, DC and 8 tribes
court and caseworker oversight
Generations United and the ABA Center on Children and the Law conducted 50 state and DC survey of family foster home licensing standards
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7. Research Findings
State standards don’t always lead to safe and appropriate placements in the best interests of the children
Common Barriers:
Problematic standards
Varying standards
Collected model language to help develop our model standards
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8. Problematic Standards
Upper age limits
Requirements to have high school diplomas and/or speak English
Requirements to own a vehicle
Income requirements with limitations on home businesses
Potential discrimination on the basis of disability
Bias against rural families
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9. Varying Standards
Standards concerning requirements that should not vary from jurisdiction to jurisdiction like capacity, child abuse and neglect, and criminal background checks and raise questions:
how are standards determined?
what are the best standards?
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10. Undocumented Relatives

11. Undocumented Relatives – Federal Law
Title IV-E allows placements with undocumented relatives or those living outside U.S.
Relatives may provide foster care and receive IV- E foster care payments IF child is IV-E eligible
Background checks for licensing are often a barrier
Nothing in federal law prohibits individuals with undocumented immigration status from becoming either licensed or unlicensed foster care providers. However, many states have implemented licensing standards that either expressly prohibit approval of undocumented caregivers or create barriers to approval.
10 states have general waiver or variance provisions that may apply : CO, HI, IA, LA, NJ, NC, OK, TN, VA
8 states have an alternative approval processes that may apply: CO, HI, KY, LA, MD, NM, NC,UT
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12. State Standards that Prevent Full Licensure
20 states have explicit citizenship or immigration foster licensing standards that prevent full licensure of undocumented caregivers (AZ, CO, GA, HI, IA, KY, LA, MD, MA, MI, MS, MO, NJ, NM, NC, OK, OR, TN, UT, VA)
In 13 states, kin with undocumented status may be able to use a waiver or variance provision or alternative approval method
5 states do not allow the citizenship standard to be waived for kin: Arizona, Georgia*, Michigan, Mississippi, and Missouri
3 states exempt kin from the citizenship or immigration standard: Massachusetts, New Jersey, and Oregon
* Provisions suggest that citizenship or immigration-related standards are non- waivable.
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13. Other State Standards that Impact Undocumented Immigrants
Many states have other foster licensing standards that may impact undocumented immigrants, such as:
Language/Communication: Alabama, Arkansas, Florida, New Hampshire, Ohio, Texas
State Residency: Maine, New Hampshire
Request Citizenship-Related Information: Alabama, Alaska, Nevada, South Carolina, Texas
3 jurisdictions express a commitment to ensuring that immigration status does not prevent kin placements: California, Indiana, New York City
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14. Model Family Foster Home Licensing Standards
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15. The Model Standards Package of Materials
NARA, Generations United, and ABA created the standards
Available free of charge at includes:
a purpose statement
ten guiding principles
the model standards
an interpretive guide
a crosswalk tool
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16. Model Standards
Uses model language from states and from accreditation agencies like Child Welfare League of America and the Council on Accreditation
Covers family foster home licensing
Does not cover:
licensing processes or procedures
care of children after placement in a licensed home
other post-licensing requirements like recordkeeping
No waivers or variances needed
Treatment foster home and tribal home standards: available at
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17. Purpose Statement - Summary
To fulfill the public policy intent behind licensing standards, which is to ensure that children in foster care have safe and appropriate placements
To fill the previous void in “national standards”
To reflect community standards and be flexible so children in out of home care are placed in the best homes for them
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18. Categories Covered by Model Standards
Definitions
Basic Eligibility
Physical and Mental Health
Home Study
Capacity
Sleeping
Other living space
Fire safety/evacuation
Additional health & safety
Criminal history records check
Abuse and neglect records check
Assurances
Pre-license training
Emergency placement
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19. Implementation

20. State Efforts to Compare and Align with the Model
In May 2016, South Carolina passed legislation with capacity standard language from our Model Standards, SC Act 187
Child Welfare League of America (CWLA) used the Model draft standards and the research done to develop the standards when consulting with Massachusetts. In its report issued to the state in May 2014, CWLA recommended that Massachusetts consider adopting the Model Standards.  See page 18, number 9
Provided technical assistance and crosswalked various state standards with the Model

21. Federal Legislation To Have States Compare and Align with the Model
Two pieces of federal legislation are pending that would require states to compare and align their standards with a Model:
HR 253, the Family First Prevention Services Act of 2017
HR 2866, Reducing Unnecessary Barriers for Relative Foster Parents Act
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22. Recent Federal Case

23. D.O. v. Glisson
A U.S. Court of Appeals for the Sixth Circuit case important for relatives approved to care for children in Kentucky’s foster care system, with implications outside of Kentucky
The Circuit Court ruled:
Kentucky’s child welfare agency must pay relatives "approved" to care for children in foster care just as they do “licensed” foster parents
All approved and licensed foster parents have a privately enforceable right to monthly foster care maintenance payments

24. Kentucky Relatives Impacted by the Case
Relatives “approved” to care for children in the legal custody of the Kentucky child welfare agency
“Approval” of a relative in Kentucky means: 
has completed a home study and a criminal background check
Is not formally licensed as a foster parent
There must be an open child welfare case
This decision does not impact children:
adopted by their relatives
whose relatives have permanent legal custody or guardianship
who are cared for by relatives outside the child welfare agency

25. Relatives in Ohio Should Also Be Impacted
Sixth Circuit decisions also impact Ohio, Michigan and Tennessee
Of these, Ohio is the only state that similarly “approves” relatives and is the only state where caregivers should be impacted
Roughly a third of all states “approve” relatives – so there is the possibility for other states to eventually be impacted

26. The Supreme Court Denied Kentucky’s Appeal
Kentucky sought an appeal from the U.S. Supreme Court, which it denied in October 2017
Had the Supreme Court taken the appeal, and agreed with the Sixth Circuit, it could have impacted grandfamilies around the country
Since the U.S. Supreme Court did not, the decision only applies to Kentucky, Ohio, Michigan and Tennessee

27. The U.S. Supreme Court May Eventually Decide a Similar Case
It will never hear an appeal of this particular case, but it could hear another case in the future with the same core issue
The U.S. Supreme Court likes to hear cases when several of the Circuit Courts do not agree:
There was one case from the 8th Circuit that had ruled differently than the Sixth Circuit
If there are other cases in the future, and there is a conflict among more Circuits, the U.S. Supreme Court may rule on this issue one day
Generations United’s FAQ on Glisson case available here

28. Action Steps
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29. Compare and Align State Standards with Model
Establish workgroup or taskforce:
Consider what are the barriers to licensing for relatives in your state? Common barriers include:
Criminal history of relative
Training requirements
Housing requirements like square footage, etc.
Compare state licensing standards to Model Standards, using the crosswalk tool
When possible, change standards to align with the Model Standards
We are pursuing legislation on Capitol Hill to ask states to do this.
The task force/workgroup would consist of:
Agency staff
Judicial representative
State legislator or staff
Kinship foster parent
Non-related foster parent
Youth in care
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30. Best Practices
Licensing waivers or variances to be approved at the local level instead of the state level
Designated kinship liaisons to help relatives through the difficult licensing process
Tools, see wikiHow for Kinship Foster Care
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31. Role of the Legal Community
Determine if your state requires relatives to be licensed in order to care for children in state custody
If relatives are not licensed:
Ask why and make sure it is by choice - Why is grandma safe enough to place but not safe enough to pay?
Ensure relatives understand their placement options
Determine if there is a barrier to licensing that can be easily fixed, e.g. new bed, fire extinguisher
Ultimately it is agency decision if the relative can be licensed, the court cannot order a home to be licensed
© 2018 grandfamilies.org

32. Role of the Legal Community, cont’d
Ask about the use of licensing waivers or variances in your jurisdiction
If relatives are not licensed, find out if they have all necessary supports and services to safely care for the child
© 2018 grandfamilies.org

33. Resources

34. ABA Center on Children and the Law
A collaboration of the
ABA Center on Children and the Law
Generations United
Casey Family Programs

35. Additional Kinship Resources
Generations United
ChildFocus -
Bridging Refugee Youth and Children’s Services (BRYCS), Guardianship Toolkit –
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36. Questions or State Assistance - Contact Us
Ana Beltran, JD
Special Advisor
Generations United
Heidi Redlich Epstein, JD, MSW
Director of Kinship Policy
ABA Center on Children & the Law
© 2018 grandfamilies.org