Tuesday, June 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Advocates welcome proposal to ease rules on kinship foster care

New measures unveiled by the Biden administration would remove some hoops for people who take temporarily custody of vulnerable younger members of their family.

WASHINGTON (CN) — A couple yanked out of their retirement to Spain. A 63-year-old suddenly parenting six grandchildren. A woman forced to leave her senior living facility so she could take custody of three grandchildren.

These are the realities faced by those who want to keep their relatives from being thrust into an unfamiliar foster care home. Frequently, grandparents are suddenly parents again as they hope to keep children out of the system.

Depending on the state, relatives can face the hurdles of a complex and lengthy process before taking custody or having access to some financial aid for children. Those caregivers have to complete the arduous licensing process before getting access to reimbursements for expenses.

To reduce the burden on family members fostering relatives, the Biden administration has proposed formalizing federal recommendations that would let local child welfare agencies ease licensing standards.

The U.S. Department of Health and Human Services estimated in 2021 that the foster care system included 391,098 children, 35% of whom are in the care of a relative in what is legally defined as kinship foster family homes.

“Today, nearly a third of children in foster care are being raised by kin — many of whom are grandparents,” President Joe Biden said in a 2022 proclamation. “This helps children retain family bonds and a sense of cultural identity, which are so important to a child’s resilience and well-being.”

Thirty-nine states fully administer their child welfare system. In California, Colorado, Minnesota, New York, North Carolina, North Dakota, Ohio, Pennsylvania and Virginia, county governments fully oversee the system. Nevada and Wisconsin share administration between the state and counties. 

State and local regulations take their baseline from federal licensing requirements, which include fingerprinting and background checks. They can impose additional requirements but cannot require less than the federal rules. Tennessee, for example, also requires a home study, five references and a training program.

The HHS proposal for kinship foster homes would allow state and local child welfare agencies to adopt different licensing standards when the parties are related by blood, marriage, adoption or an otherwise “emotionally significant relationship with the child, such as godparents, and close family friends.” It would encourage agencies to hold those caregivers only to federal standards, rather than additional requirements instituted by state and local agencies. Regardless of whether the caregiver is related to the child, however, the federal background check requirements would still apply.

“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,” HHS Secretary Xavier Becerra said in a press release.

Under former President Donald Trump, HHS provided guidance in December 2020 to welfare agencies to encourage eased licensing burdens. The proposed move under Biden’s administration formalizes that guidance.

Marla Spindel, executive director of the DC KinCare Alliance, leads an organization that provides legal services to relative caregivers and supports the proposed regulation. She said many states and the District of Columbia already provide waivers to certain regulations for related caregivers, but it’s not unilateral.

The District of Columbia provides waivers to several nonsafety related licensing requirements for related caregivers, such as rules on the number of bedrooms in a house or the number of foster children a certain age living in the home. 

“Those can be pretty restrictive, especially for low-income people who are living in smaller places,” Spindel said. “It’s definitely been invaluable to relatives to have those waivers in place so they can meet licensing requirements and have it done quickly.”


D.C. relative caregivers can receive a temporary license within 24 hours. But Spindel noted that Maryland provides no such waivers. So if the closest relative is outside the district line, they have to go through the same licensing hurdles as an unrelated caregiver. That can put children in the home of a stranger while they wait for the process to be completed.

The licensing standard has served as a large economic roadblock to keeping children with a family member on top of rising costs for child care. 

For example, median annual child care costs increased 11.4%, or about $1,000 to $1,300, between 2018 and 2022 in the Hampton Roads area of southeastern Virginia, The Virginian-Pilot reported.

One adult working full-time with just one child needs to earn at least $34.15 an hour to afford food, child care, medical costs, housing, transportation and other life expenses for them both, according to the Massachusetts Institute of Technology's living wage calculator. Two adults working full-time would need to earn at least $19.01 per hour each to provide for themselves and just one child.

Karen L. Nicolson, executive director of the Center for Elder Law & Justice in New York, said her organization helped a woman overcome certification roadblocks to foster her grandchildren, which increased her income for the children from $700 per month to $3,024. However, there are many who don’t receive the same assistance in navigating the process.

“But there are many more children … and the people raising them do not have the representation they need to navigate the confusing and overwhelmed justice and social services systems,” she wrote in The Buffalo News.

Even if foster families do go through the licensing process, they sometimes face a system that gives them less money than other caregivers. In Texas, relatives in some situations can receive $12.67 per day for each child, but unrelated foster parents can receive at least $27.07 per day, according to the Texas Tribune

HHS would not make a representative available for an interview, but a spokesperson for the agency sent an email laying out a few of barriers that confront relative caregivers: age limits, income requirements and time-consuming training. Equity is another consideration.

The HHS spokesperson said the agency's proposal would provide “a support to low-income prospective relative caregivers, many of whom are families of color, are from underserved rural areas, or are members of other communities in which long-term systemic factors such as poverty hamper families from making intergenerational progress.”

Kinship foster care is the “preferred setting” for children, according to the National Association of Counties, but socioeconomic and administrative barriers can make it difficult for family members to become licensed providers.

“NACo supports federal efforts, including this proposed rule, to increase and incentivize kinship placements to facilitate the best possible outcomes for the children in our care,” the organization said on its website. “By lessening delays in the kinship foster family licensing process, this change will allow for increased financial assistance to kinship foster care households.”

The HHS spokesperson noted that the recommendations to reduce burdens for related caregivers are ones that advocates and experts have long supported.

“If [an] agency chooses to implement separate licensing or approval standards for relative and kin foster family homes that remove barriers to relative caregivers, more relative caregivers may become licensed, which is important because only licensed caregivers can receive foster care payments on behalf of an eligible child,” the spokesperson wrote.

The regulation is coming down through HHS’ Administration for Children and Families, which is seeking public comment through April 17. Afterward, the agency will submit a final rule to the federal register identifying the date it becomes effective.

Input on the proposed rule can be submitted through the federal register.

January Contreras, assistant secretary for the Administration for Children and Families, said “millions of children” live with related caregivers and “children do better when they’re with their families.”

“Placing children with kin allows them to maintain a sense of place and belonging and to maintain their cultural identity and connection to their own community,” Contreras said in a press release. “By allowing child welfare agencies to approve different licensing standards that recognize the needs and benefits of kin caregivers, more family members would be eligible to be licensed and receive financial resources to support the child’s well-being.”

Categories: Government Law National

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.