Foster Care and Adoption Regulations for Licensure (214-RICR-40-15-1)

Regulation Authority:

42-72-5

Purpose and Reason:

A formatted version of this Concise Explanatory Statement is available upon request from the Department of Children, Youth and Families (401-528-3793) or the Secretary of State. Below is a summary of the changes the Department of Children, Youth and Families made to the proposed Foster Care and Adoption Regulations for Licensure in response to written comments and oral testimony received on the proposed rule. Home Study The Department received a comment stating that it was unclear from proposed changes who would conduct the home study required of each applicant. The Department does not agree that it is necessary to specify whether home studies will be conducted by the Department staff, contracted agency, or individual. A comment was made raising concern about the removal of specific elements of the home study including the requirement that all household members be available for interviews, that an assessment the applicants parenting ability is conducted, and past and present marriages are examined. To address these concerns the Department amended the home study section to include "past and present relationships" and "social relationships" and added "parenting ability" back to the regulation. A comment was received raising concern that personal references were removed as a requirement. Although this requirement was removed from the regulation, the Department will still be requesting personal references as part of the home study process. Criminal Records Checks Several comments were received regarding the Criminal Records Checks for household members that are part of the home study. To make it abundantly clear that there is no substantive change to this requirement, the Foster Care and Adoption Regulations for Licensure have been updated to reference the Department's existing policy, Criminal Records Checks, which provides all the necessary detail regarding Criminal Records Checks for foster and pre-adoptive parents. A comment was received raising concerns that the regulations do not require criminal background checks for all household members, only those older than age 18. In accordance with RIGL 14-1-34, the Department only conducts criminal background checks on household members age 18 and older. Department Clearances A comment was received with concern that the regulations do not require Child Protective Service (CPS) clearances for all household members, including those under age 18. The Department did not intend to modify this requirement. The regulations have been modified to reference the Department's existing policy, Clearance of Agency Activity, which requires these clearances for all “relative and non-relative foster and adoptive parents and household members.” A comment was received with the incorrect assertion that the Department would no longer be requiring applicants and household members over the age of 18, who have lived in another state in the preceding five years, to be cleared through the Child Abuse and Neglect State Central Registry of that state. The Department has always and will continue to follow this requirement of the federal Adam Walsh Child Protection and Safety Act of 2006 (PL 109-248). This requirement is detailed in the existing policy, Clearance of Agency Activity, which is now referenced in the regulations. A comment was received proposing that clearances through the Child Abuse and Neglect State Central Registry should be conducted if an applicant has ever lived in another state, not just during the preceding five years. The Department will continue to comply with the federal law regarding Adam Walsh Clearances. Physician’s Statement and Health History The Department received several comments expressing concern that a signed Physician’s Statement was removed as a requirement for licensure. To ensure that there are no physical or mental health issues that may adversely affect a child in care, these regulations have been amended to reflect that the Department will require that the applicant submit documentation, to include a physician’s note, copy of an annual physical exam or medical records. Additionally, the Department will maintain its right to request a statement from a medical professional for any applicant or household member, if issues arise from the disclosure or home study. Training A comment was received asking that language be included requiring in-service training for foster parents and requiring a specific number of additional training hours in relevant topics pertaining to foster care as a condition for renewing a license. The Department agrees that it is critically important that foster and adoptive parents are adequately trained and possess the knowledge and skills necessary to provide care for their foster and adoptive children. The Department follows the Foster Parent Bill of Rights, R.I.G.L. 42-72.10.1, which guarantees “sufficient training and information from the Department as necessary to provide care to foster children in their homes.” At this time, the Department will not amend these regulations to require in-service training to foster parents. Determination- Foster Parents Address Change A comment was received raising concern that it was not clear what the process is for notifying the Department when a licensee changes address. The Department agrees and has reinstated the removed language regarding an address change licensing visit and home safety inspection. Determination- Reasons for Denial Section 1.6.2B of the regulations list reasons that the Department can deny a license. A comment was received expressing misgivings about the Department’s ability to assess these items without requiring that the applicant disclose relevant information. As stated above the Department has expanded the section detailing what is required in a Health History. New language was added to state that “applicants must disclose his or her physical health, mental health and/or substance abuse history.” A comment was received asserting that the requirement that an applicant will be notified of the licensing decision in writing has been removed. This requirement, however, remains in the regulations and can be found in Section 1.6.4 C.1.b. i. Procedure for review relating to possible licensing actions. Variance and Waiver After reviewing guidance from the federal Administration for Children and Families (ACF), the Department has reversed its decision to remove “Waiver” from the regulations. The Department agrees with ACF’s statement that, “special situations may arise where there are grounds for waiving a requirement for an individual relative/foster parent on behalf of a foster child.” A comment was received stating concerns about the oversight of foster homes during the time a variance is granted and section 1.6.3, which states "The DCYF Director or designee may grant a variance for a specific timeframe when the situation does not the situation does not jeopardize the health, safety and well-being of the children in care." The comment requested that the regulations include an exact time frame for granting a variance as opposed to the language, "specific time frame". The Department disagrees with this recommendation. As variances are issued on a case-by-case basis, designating an exact time frame in regulation to apply to different situations where a variance might be utilized would not be appropriate. Additionally, there was no change from the previous regulations regarding variances being issued for a "specific time frame." A comment was received stating that the concerned party is “interested in learning who will be overseeing the unlicensed homes during the variance and licensing process to ensure that the placement continues to justify the issuance of the variance or the license in general.” Variances are issued to allow homes, in certain situations, to achieve licensure. There are never unlicensed homes that have been granted a variance. Variances are monitored by DCYF licensing staff. As stated in the regulations a variance is an “administrative decision that allows a foster or pre-adoptive home to meet a standard for licensure in a manner other than that specified in the regulations. A variance is granted on a case-by-case basis only when the purpose of the licensing standard is achieved and the safety of the child is maintained.” The comment states that, “removing the requirement that the issuance of a variance needs to be recorded in RICHIST is absolutely troubling, as RICHIST is the Department's main database for recordkeeping and any changes in status regarding the providers serving our youth should be maintained in this system.” Any variance issued will continue to be recorded in RICHIST. This language was removed from these regulation as it is an internal DCYF staff operating procedure and not a requirement for the public. DCYF licensing operating protocol captures the procedure for recording variances in RICHIST. Revocation and Other Licensing Action- Notifying the OCA of Licensing Actions A comment was received stating concerns that language delineating the Department’s responsibility to notify the Office of the Child Advocate of licensing action has been removed. The OCA will continue to be notified of any licensing action. This was removed from these regulation as it is an internal DCYF staff operating procedure and not a requirement for the public. As stated above, DCYF licensing operating protocol delineates the procedure for notifying the Office of the Child Advocate of any licensing actions. Renewal A comment was received requesting clarification regarding who is responsible for overseeing a licensee during the two year period they are licensed. The Department licensing staff is responsible for overseeing licensed homes and follows up on reports of non-compliance with licensing standards or safety issues. A comment was received also requesting clarification about the home study required for license renewals. The comment suggested that both criminal record checks and CPS clearances are completed both in state and nationwide, for all members of the household, not just those individuals are over the age of eighteen. Consistent with federal law and DCYF’s policy, Clearances of Agency Activity, at renewal, the Department requires updated BCI checks for all household members age 18 and older and national criminal records checks (fingerprinting) for any household member age 18 and older with no national criminal record check documentation currently on file with the Department. The Department modified section 1.6.7 to make this clear. Removal Requests A comment was received that indicated concern that the procedure to notify the Department requesting the removal of a child has been removed from the regulations. The Department removed this language to avoid redundancy as Department policy, Request for Removal of Child from Foster Care Home, delineates the procedure for removal requests. The Department has modified the regulation to include a reference to the Request for Removal of Child from Foster Care Home policy. Licensing standards- General Requirements A comment was received stating concerns that the removal of the requirement that “all children and adults residing in the household are considered to determine how they may be affected by, or have an effect upon, a foster or pre-adoptive child placed in the home." The Department has added language to section 1.6 to specify that an assessment of family relationships is a required component of the home study. Comments were received that raised concerns that the Department had removed the requirement that babysitters undergo BCI and Department clearances. The Department made these changes to comply with the normalcy provisions of the federal Preventing Sex Trafficking and Strengthening Families Act. To clarify this, the Department has updated this section to require the use of the “reasonable and prudent parenting standard.” Foster parents are trained on how to apply this standard and further examples and explanation will be provided in a guidance document. A comment was received stating concerns regarding the regulation of income and finances of prospective foster families. The regulations no longer require that the caregiver provide written verification of income and expenses if requested or that the caregiver demonstrate that the household has sufficient income to maintain stability without a monthly foster maintenance payment. The regulation is amended to state that the caregiver must demonstrate that he or she is able to exercise appropriate fiscal management. Using this standard, the Department will continue to assess the caregiver’s ability to manage his or her finances. A suggestion was made to require foster families to provide receipts for all purchases made with clothing vouchers from the Department. The Department will continue to investigate any misuse of agency funds that comes to their attention but will not require the submission of receipts. Licensing standards- Safety and Well-Being A comment was received that raised concerns about the apparent removal of some of the general safety requirements. The Department eliminated redundant standards that were covered elsewhere in the list of safety requirements. Although the Department maintains that requiring foster homes to be in compliance with all state building codes and maintained in a clean, safe and sanitary manner incorporated the stricken language and is intended to cover all of those items, the safety standard language regarding indoor plumbing, safe drinking water and garbage removal was incorporated back into the regulation to alleviate any concerns. Foster and pre-adoptive homes will continue to be held to the same general safety and well-being standards as they were held to previously. The Department received comments that expressed concern with changes to the fire and lead safety requirements. Under the previous regulations, achieving licensure required that kinship, foster, and adoptive parents live in homes that comply with fire and lead standards that are far more stringent than what is required for residents without a foster child placement. These standards put an undue financial burden on kinship, foster, and adoptive families and prevented them from being granted a license in a timely way. When a kinship provider was unable to meet these standards, DCYF was faced with an untenable choice: allow a child to remain in an unlicensed home or move the child to a non kinship or more restrictive, institutional setting. The changes to these regulations allow DCYF to hold families with a foster child in the home to the same safety standard as other RI families and ensure that children in the care of DCYF are living with kin in fully licensed homes. The Department received a comment requesting that the Department require weapons to be locked in an area inaccessible to the child. The Department agrees with this suggestion and has amended the regulations accordingly. A comment was received stating concerns regarding the removal of specific examples of prohibited behavior management practices. The removed language was an attempt to provide clarity to applicants about the Department’s expectations for behavior management. The Department added language to this section describing appropriate discipline and language prohibiting harsh, cruel, or unusual punishment. Because there are an immeasurable number of activities that would constitute harsh discipline, it would not be possible to list all forms of harsh or unusual discipline. The Department was concerned that any attempt to do so may leave the public with the impression that activities not explicitly prohibited are permitted. To address these concerns, the Department has added the phrase “but not limited to” in the sentence preceding the list of prohibited disciplinary practices. Biological Parent in the home A comment was received requesting that the Department consider allowing a biological parent to reside in the same home as his/her child in foster care on a case by case basis. The Department agrees that it could, in some cases, be appropriate for a biological parent to reside in the same home as a foster child. In such cases, a waiver would be granted to allow this arrangement. Appeal/Hearing The Department received a written request to include specific language about steps to request an appeal. The Department added a reference to the Department’s existing policy, Complaints and Hearings, which details this procedure. Family Composition A comment was received about section 1.7.1, stating concerns that the limits could be a barrier for placing large sibling groups or families with more than 7 children. The Department agrees and has amended the policy to specify that exceptions will be made for large sibling groups. In addition, a waiver could be granted if appropriate. Safe Sleeping A comment was received regarding Section 1.7.2H and the prevention of sleep-related infant deaths suggesting that the regulations require that families follow the guidelines for safe sleeping issued by the American Academy of Pediatrics (AAP). The Department agrees with this recommendation and has modified the regulation to state that licensees must comply with current AAP policies on safe infant sleeping environments. Gender non-conforming foster youth A comment was received on Section 1.7.2 H suggesting that language be included to provide for gender non-conforming and transgendered youth. The Department agrees with this recommendation and has modified this section.