In October 2002, the US Department of Health and Human Services issued a Program Instruction that reviews the requirements under the Adoption and Safe Families Act (ASFA) and subsequent amendments regarding interjurisdictional placements. The focus of the Program Instruction are the activities that the Administration for Children and Families (ACF) will undertake in investigating alleged violations, overseeing the development of corrective action plans, and determining fiscal penalties. The Program Instruction, ACYF-CB-PI-02009, is available at:
http://www.acf.dhhs.gov/programs/cb/laws/pi/pi0209.htm

Background

ASFA prohibited states that receive funding under Title IV-E from:

Denying or delaying the placement of a child for adoption when an approved family is available outside of the jurisdiction with responsibility for handling the case of the child; and
Failing to grant an opportunity for a fair hearing to an individual who alleges that that a State has denied or delayed the placement of a child under such circumstances.

These provisions are popularly referred to the "geographic barriers" provisions of ASFA.
ASFA originally provided, as the penalty for failing to comply with these provisions, that all Title IV-E funding to which a State was entitled during the relevant time period could be withheld. In 1998, the Child Support Performance and Incentive Act (P.L. 105-200) repealed that provision and reduced the penalty (to between 2% and 5% of the amount of Title IV-E funds claimed by the State during the relevant quarter). With regard to corrective action plans, P.L. 105-200 also clarified requirements regarding corrective action plans. States now have 6 months to complete a corrective action plan for systemic violations of the "geographic barriers" provision of ASFA. Different provisions apply, however, when a violation against an individual is found.

The Program Instruction

In summary, the Program Instruction addressed systemic violations of the "geographic barriers provision of ASFA, individual violations of that provision, and the ASFA requirement regarding the use of cross jurisdictional resources.

1. Systemic Violations of the "Geographic Barriers" Provision of ASFA. Alleged systemic violations of the "geographic barriers" of ASFA are to be investigated by the Administration for Children and Families (ACF) through a "partial review." This review will examine any State statute, regulation, policy, procedure, or practice that "on its face" permits the delay or denial of a child's placement for adoption when an approved family outside the jurisdiction is available and/or the State fails to grant an opportunity to be heard to an individual who alleges such a delay or denial. If ACF determines that the state is out of compliance, the State will be required to develop a corrective action plan. The Program Instruction outlines the required content of the corrective action plan; how the corrective action plan will be evaluated; and when states do not complete the corrective action plan and come into compliance with ASFA, how ACF will determine and levy fiscal penalties.

2. Individual Violations of the "Geographic Barriers" Provision of ASFA. An individual who believes that a State has denied or delayed the adoptive placement of a child when there is an approved family outside the jurisdiction may request a fair hearing to determine whether a violation has occurred. The State is required by ASFA to provide a fair hearing. If the fair hearing officer finds a violation, the State is required to notify the appropriate ACF Regional Office, and ACF will notify the State of the final finding. A violation will have occurred if the State is found to have: (1) delayed or denied a child's placement for adoption when an approved family outside the jurisdiction was available or (2) failed to grant an opportunity to be heard to an individual who alleged such a delay or denial. The Program Instruction specifically notes that compliance with the Indian Child Welfare Act does not constitute a violation of the "geographic barriers" provision of ASFA.

Unlike the response described with regard to systemic violations, no corrective action plan is permitted when an individual violation is found. ACF, however, will not make a final finding until the State has exhausted all legal remedies available to it. The same fiscal penalties that apply to systemic violations apply to individual violations.

3. ASFA Requirements Regarding the Use of Cross Jurisdictional Resources. In addition to the "geographic barriers" provision of ASFA, the law requires that States address in their Title IV-B plans how they will use cross-jurisdictional resources to facilitate timely adoptive or permanent placements for waiting children. This requirement is subject to review as part of the Child and Family Service Reviews (CFSRs) which utilize a statewide assessment, stakeholder interviews, and case record reviews. Should the CFSR indicate that the State is not planning for or using cross jurisdictional resources, ACF will address this issue in the final report and the issue will be included in the State's Performance Improvement Plan. Should the CFSR reveal that the State has policies, procedures, or practices that may constitute a systemic violation of the "geographic barriers" provision of ASFA, the State would become subject to a partial review on this issue.