Family, Children and Adult Services Procedure Letter No. 62
October 19, 1998
TO: All Family, Children and Adult Services Manual Holders
FROM: Arnold R Tompkins, Director
SUBJECT: Re-Issuance of Agency Adoption and Foster Care Policies and Compliance with the Federal Multiethnic Placement Act (MEPA), Interethnic Placement Act (IEPA), and the Adoption Promotion and Safe Families Act (ASFA)

This procedural letter is in response to agency questions regarding interpretation of the Multiethnic Placement Act (MEPA), the Interethnic Placement Act (IEPA), and jurisdictional issues addressed in the Adoption Promotion and Safe Families Act (ASFA). It is crucial that agencies understand and implement these federal laws correctly and that agencies' written policies and materials are in compliance with these laws. Copies of the Interethnic Placement Act and the Administration for Children and Families Information Memorandum ACYF-IM-CB-97-04, issued June 5, 1997, are attached for your review. Also attached is a Department of Health and Human Services May 8, 1998 response to questions raised by the General Accounting Office regarding MEPA issues.

The Multiethnic Placement Act/Interethnic Placement Act

Because the United States Department of Health and Human Services (HHS) is conducting a review of all Ohio laws, rules and policies to assure compliance with MEPA/IEPA, we must ask you to again review your agency adoption, foster care and recruitment policies. We are under tight time restrictions to bring all state and local policies into compliance. Due to complaints issued against Ohio agencies, we must supply copies of all foster and adoption agency written policies to HHS by January 1, 1999. It is crucial that each of these policies be in total compliance with MEPA/IEPA or the state and local agencies could lose significant IV-E funds. HHS has provided significant technical assistance to Ohio to help us better understand MEPA/IEPA. In this letter and the accompanying documents, this enhanced understanding is explained. We are asking you to review these documents and to then review your written policies and practices to assure that total compliance is achieved. Though agencies submitted their policies in July 1998, because of the clarifications provided by HHS, almost all will need to be amended. All PCSAs, PCPAs and PNAs shall review and amend their adoption and foster care policies and resubmit them to the regional office for review prior to November 16, 1998. The regional office will review the policies for compliance with MEPA/IEPA and forward the policies and copies of their review forms to ODHS

Central Office by November 30, 1998. The following information is provided to assist agencies in reviewing and amending their policies and practices.

The Multiethnic Placement Act, originally enacted in 1994, was amended in 1996 by the Interethnic Placement Act. The provisions of IEPA affirm and strengthen the prohibition against discrimination in adoption and foster care placements. Race, color, or country of origin may not be used as the basis for placement decisions nor may such factors be used to delay or deny any foster or adoptive placement. The language of MEPA stated that placement decisions should not be based solely on race, color or national origin. IEPA removed the word "solely" and mandated that placement decisions could not categorically consider race, color, or national origin of the parents and children involved. The amended Act reads as follows:

"...neither the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care placements may-

"(A)deny to any person the opportunity to become an adoptive or foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved; or

"(B)delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved."

IEPA also repealed the "Permissible Consideration" clause of MEPA. That clause had stated: "An agency or entity {which receives federal assistance} may consider the culture, ethnic, or racial background of the child and the capacity of the prospective foster or adoptive parents to meet the needs of a child of such background as one of a number of factors used to determine the best interests of a child." Congress felt that this language had given agencies some leeway to continue to consider race in placement selection. By repealing this language, the law now strictly prohibits delay or denial of placement on the basis of race, color or national origin.

MEPA/IEPA also requires that agencies diligently recruit foster and adoptive families that reflect the ethnic and racial diversity of children needing out-of-home care.

Nationally, there has been some question about interpretation and wording that is considered acceptable in individual agency implementation plans. The Department of Health and Human Service indicates that acceptable wording would be similar to that in Wisconsin's directive which states "The operative standard in foster care or adoptive placements has been and continues to be 'the best interest of the child.' Nevertheless, any consideration of race, color, or national origin in foster care or adoption placements must be narrowly tailored to advance the child's best interests and must be made as an individualized determination of each child's needs and in light of a specific prospective adoptive or foster care parent's capacity to care for that child."

Applicants wishing to foster or adopt transracially cannot categorically be subject to processes that delay the education/assessment/approval process. It is not legal to categorically require all families indicating a desire to adopt or foster transracially to attend additional classes, if doing so will cause delay in the assessment process, the approval/licensure process, or placement of a child into the home. Ohio's Administrative Code rules are in the process of being amended to be consistent with the federal law.

Ohio's family preparation process and assessment (homestudy) is designed to prepare all families to parent children with diverse histories and situations. The department believes that foster care and adoptive placements are, almost without exception, transcultural. The foster or adoptive family usually differs from the child placed with them in some area (socioeconomically, racially, ethnically, religiously, etc.) It is extremely likely that most foster or adoptive parents will be asked to meet the needs of a child of another culture. For that reason, all families should be assessed and prepared to parent children from diverse backgrounds with diverse needs. The curriculum designed by the Ohio Child Welfare Training Program (OCWTP), through its vendor, the Institute for Human Services (IHS), seeks to help potential foster and adoptive parents assess their current skills and build new awareness and skills in many areas. Among these areas, education and awareness-building is provided regarding the challenges faced by parents in meeting their foster or adopted child's cultural needs. The assessment (homestudy) process is another educational opportunity. Additionally, the assessment process allows families to self-determine, with the aid of their assessor, their strengths and limitations in a variety of areas impacting their ability to meet specific child needs.

If, upon assessment, specific educational enhancement is needed to assist applicants to develop their skills to be capable of meeting child needs in any area, not limited to race or culture, the agency should provide or arrange for these experiential learning and/or educational opportunities. Once an applicant completes the educational and assessment process, the applicant can be potentially matched for foster care or adoption with any child in need of placement. Of course, foster and adoptive parents may indicate their inability to meet certain needs, for instance, parents may indicate that they cannot parent a child who needs ongoing contact with a birth parent or who acts out sexually. At the time of matching, all the child's needs must be considered and the individual family's ability to meet those needs must be determined. Appropriate records should be kept for every child's foster care or adoptive placement, indicating the therapeutic and clinical reasons why the chosen family was determined as best able to meet that child's special and unique needs.

A violation of MEPA/IEPA is a violation of the family and/or child's civil rights, and action may be taken by the federal government regarding agencies, entities or individuals that violate the law. Sanctions of federal funding or other actions may occur if complaints are found to be valid.

Jurisdictional Issues in the Adoption Promotion and Safe Families Act (ASFA)

The prohibitions regarding jurisdictional issues listed in ASFA apply only to adoptive placements. ASFA states that an agency or entity that receives federal assistance and is involved in adoptive placements may not delay or deny the placement of a child for adoption when an approved family is available outside of the jurisdiction of the custodial agency.

Regardless of a family or child's geographic location, all families expressing interest in a particular child must be considered at the time of matching. The child's needs and best interest are paramount. Ohio Administrative Code rules indicate that placement decisions are a group process within the agency responsible for such decisions. Documentation of these placement decisions must clearly indicate why the matched family was chosen, and why the family was determined as best able to meet this particular child's needs. If a particular family is determined as not able to meet a child's needs, the documentation should indicate this.

Potential families expressing an interest in an individual child or sibling group have the right to a fair hearing should they not be in agreement with the agency's decision not to place the child with them. Agencies or individuals violating this federal law are open to sanctions and federal action.

Nothing in MEPA/IEPA or ASFA can override the provisions of the Indian Child Welfare Act (ICWA). When multiple conditions apply, the provisions of ICWA have priority.

Administrative Codes rules already reflect changes made to comply with these laws, with a few minor changes still in process.

ODHS Central and District Office staff are available to provide technical assistance to your agency regarding the wording of your policies and your practice issues. Informational sessions will be offered in the coming months to assure that all agencies are knowledgeable of and understand the requirements of MEPA/IEPA and ASFA.