Title IV-E Foster Care Program Federal Reimbursement for Pre-Petition Legal Representation
Commission to Develop a Pilot Program to Provide Legal Representation
to Families in the Child Protection System - October 17, 2022
Prepared by nonpartisan legislative staff (rev. for 10/17/22 mtg.) Page 1
Background
Title IV-E of the Social Security Act authorizes federal funding of foster care, adoption assistance and other child
welfare programs. The federal government reimburses States for a percentage of eligible costs of the state foster
care program. The reimbursement percentage is referred to as the Federal Financial Participation (FFP) rate, or
match rate. Title IV-E reimbursement is available for several categories of foster care program costs (foster care
maintenance payments, trainings, etc.), including:
• Foster Care Administrative Costs: “Federal financial participation is available at the rate of fifty percent
(50%) for administrative expenditures necessary for the proper and efficient administration of the Title IV-E
Plan.”
i
FFP for administrative costs under Title IV-E is contingent on an approved Public Assistance Cost
Allocation Plan (PACAP) that outlines the procedures to identify, measure and allocate costs to all programs
administered or supervised by the State agency.
ii
In 2019, the Children’s Bureau within the U.S. Department of Health and Human Services, Administration for
Children and Families newly allowed Title IV-E agencies to be reimbursed at the 50% rate for administrative
costs for independent legal representation provided to parents and children.
iii
Restrictions applicable to Title IV-E reimbursement for independent legal representation
Client
Title IV-E reimbursement is available only for independent legal representation of:
iv
• Post-petition: Children in Title IV-E foster care or their parents:
Title IV-E eligibility is determined based on a series of statutory requirements
including, but not limited to, requirements relating to the removal of the child from
the home (e.g., whether there is a judicial finding that reasonable efforts were made
before removal, where required); the type of foster care placement (e.g., licensing
requirements), and income eligibility (e.g., child would have been eligible for aid
under AFDC requirements in effect in 1996).
v
• Pre-petition: Children who are candidates for title IV-E foster care or their parents.
A “candidate” for foster care is a child “who is potentially eligible” for Title IV-E
foster care (see test above), “who is at serious risk of removal from the home,” and for
whom the Title IV-E agency’s involvement is “for the specific purpose of either
removing the child from the home or satisfying the reasonable efforts requirement
with regard to preventing removal.”
Key restriction—investigation insufficient: The mere investigation of a report of abuse or
neglect is insufficient to satisfy the candidacy test; instead, the Title IV-E agency must have
either initiated removal proceedings or “made a decision that the child should be placed in
foster care unless preventive services are effective.”
vi
Professional
Reimbursement for independent legal representation is available for the costs of:
vii
• Attorneys; and
• Paralegals, investigators, peer partners or social workers to the extent their services are
“necessary to support an attorney providing independent legal representation.”
Type of
service
provided
The advocacy must help the qualifying child or parent of the qualifying child “prepare for and
participate in all stages of foster care proceedings.”
• Examples of “allowable administrative activities”: independently investigating the facts of
the case; meeting with clients; home or school visits; attending case planning meetings;
preparing briefs, memos and pleadings; obtaining transcripts; interviewing and preparing
clients and witnesses; maintaining files; presenting the case at the hearing; appellate work;
Title IV-E Foster Care Program Federal Reimbursement for Pre-Petition Legal Representation
Commission to Develop a Pilot Program to Provide Legal Representation
to Families in the Child Protection System - October 17, 2022
Prepared by nonpartisan legislative staff (rev. for 10/17/22 mtg.) Page 2
and supervising other attorneys, paralegals, investigators, peer partners or social workers
who are supporting the independent attorney in preparing for the foster care legal
proceedings.
viii
Key restriction—ancillary civil legal services: Although the Children’s Bureau
encourages
ix
Title IV-E agencies “to consider using state, local and tribal funds, including title
IV-E reimbursement dollars” to provide legal advocacy to address ancillary civil legal issues
— e.g., housing or domestic violence issues — the administrative cost of civil legal advocacy
that is not directly related to preparing for or participating in all stages of foster care legal
proceedings does not qualify for Title IV-E administrative cost reimbursement.
x
Potential policy change: The Children’s Bureau is considering proposing an amendment to its
federal regulations that would “allow a title IV-E agency to claim Federal financial
participation for the administrative cost of” both pre-petition and post-petition independent
legal representation in “related civil legal proceedings.”
xi
Required
procedural
steps
• Contract or MOU with independent legal provider: Only the state Title IV-E agency
may claim federal reimbursement for Title IV-E administrative costs, including the costs
of independent legal representation. The Title IV-E agency may arrange for independent
legal representation services to be delivered by another entity through a contract or
memorandum of understanding.
xii
• PACAP amendment: The Title IV-E agency must amend its PACAP to include
independent legal representation, identifying the type of clients for whom legal
representation costs will be incurred (e.g., parents of children in foster care or candidates
for foster care) and describe the measures that it will employ to identify, measure and
allocate those costs.
xiii
Allocation
methods
• Option 1: Identify eligible clients: Theoretically, a state could identify and document that
every client served is a child or parent of a child eligible for Title IV-E foster care (post-
petition) or qualifies as a candidate for Title IV-E foster care (pre-petition).
• Option 2: Allocation: But, if a state provides independent legal representation without
direct reference to the child’s Title IV-E foster care eligibility (or candidacy), the state
must employ an allocation method to assure that IV-E funds are claimed for only the
proportionate share of costs. The state’s proportion of children in foster care who are IV-E
eligible (known variously as the “coverage,” “penetration” or “participation” rate) may be
used to allocate the costs of independent legal representation, including pre-petition legal
representation.
xiv
In Maine, the penetration rate was 48% in FY’20 and 46% in FY’21.
xv
Key restriction—reimbursement calculation:
Source of
state
matching
funds
The non-federal share of the cost of independent legal representation must derive from state or
local appropriated funds or donated funds but may not derive from any federal funds or from
third-party in-kind contributions or expenditures. A state may not use attorney pro bono
services as a source of the state match, but might be able to consider the salary of an attorney
funded by a public interest fellowship as a source of the state match.
xvi
X
Cost to state of pre-petition
legal representation
X
50%
(FFP rate)
Approx. 46 - 48 %
(Maine’ s penetration rate)
Title IV-E Foster Care Program Federal Reimbursement for Pre-Petition Legal Representation
Commission to Develop a Pilot Program to Provide Legal Representation
to Families in the Child Protection System - October 17, 2022
Prepared by nonpartisan legislative staff (rev. for 10/17/22 mtg.) Page 3
Pathways to Title IV-E funding for pre-petition legal representation
➢ Option 1: Seek Title IV-E administrative cost FFP for the costs of providing pre-petition legal
representation. The federal guidance documents cited in this memorandum suggests a Title IV-E agency
may enter into a contract or memorandum of understanding (MOU) with an entity to provide pre-petition
independent legal representation to candidates for foster care or their parents, submit a PACAP
amendment, and seek Title IV-E administrative cost reimbursement for the expense of the pre-petition
legal representation, as long as the independent legal representation meets all of the legal and
administrative requirements briefly summarized in this memorandum.
Important restrictions (from above):
o It may be inadvisable to design the pilot project to serve families whose children are subject
to an investigation of suspected abuse or neglect (rather than limiting the project to children
with open services cases) as these children do not qualify as “candidates for foster care.”
o Title IV-E reimbursement is not currently available for ancillary civil legal services.
o Federal reimbursement for covered services will be approximately 23% to 24% of the cost of
those services (based on the 50% match rate and Maine’s ~ 46 - 48% penetration rate). The
remaining program costs must be funded with state, local or private (not pro bono) funds.
Key observation: Legislative staff have not been able to locate any program that currently claims
Title IV-E reimbursement for pre-petition independent legal representation. According to
national experts, Title IV-E agencies and pre-petition legal representation programs have not yet
pursued this option likely because the process (administrative requirements, including billing and
documentation requirements) for submitting such claims is not yet clear. The potential audit and
financial penalty risks for submitting inappropriate claims may also have led to caution in this
area, especially given the relatively low level of federal reimbursement (match rate X penetration
rate) and the fact that reimbursement is not available for the cost of providing ancillary civil legal
services, which are a hallmark of many pre-petition legal representation projects.
xvii
➢ Option 2: Use Title IV-E reimbursement funds from the provision of post-petition legal representation
to fund pre-petition legal representation programs. Approximately 23 states currently receive Title IV-
E administrative cost reimbursement for providing post-petition independent legal representation to
parents and children in child protection proceedings by entering into contracts or MOUs with post-
petition legal services providers, submitting PACAP amendments and adhering to the applicable legal and
administrative requirements briefly summarized in this memorandum.
xviii
A state is not restricted in the
manner in which it utilizes the federal reimbursement dollars received after submitting these claims.
Several states, including Iowa and Colorado, use the Title IV-E reimbursement dollars they obtain from
providing post-petition legal representation to fund distinct pre-petition legal representation programs.
Key observations:
o If this option is pursued, the pre-petition legal representation program may be 100% federally
funded (no state match is required); it is not necessary to design the program to serve
“candidates for foster care”; and the program may provide ancillary civil legal services.
o The amount of Title IV-E federal reimbursement dollars for post-petition legal representation
that might be available to fund a pre-petition pilot program depends on multiple factors. In
calendar year 2021, the Maine Commission on Indigent Legal Services (MCILS) approved
vouchers totaling ~$5 million for post-petition legal representation of indigent parents.
xix
Multiplying this figure by the FFP (50%) rate and Maine’s FY2021 penetration rate (46%),
yields approximately $1 million in potential federal Title IV-E reimbursement dollars.
However, to the extent any of the state funds spent by MCILS on post-petition legal
representation are used as a state match or as maintenance of effort dollars for other federal
Title IV-E Foster Care Program Federal Reimbursement for Pre-Petition Legal Representation
Commission to Develop a Pilot Program to Provide Legal Representation
to Families in the Child Protection System - October 17, 2022
Prepared by nonpartisan legislative staff (rev. for 10/17/22 mtg.) Page 4
funds (such as TANF), these expenditures would not be available to use as a basis for Title
IV-E reimbursement. In addition, the cost of additional staff resources, either within MCILS
or DHHS (or both), required to claim the Title IV-E reimbursement for post-petition legal
representation to indigent parents would reduce the amount of Title IV-E reimbursement
dollars that would remain available to spend on a pre-petition pilot program.
i
45 C.F.R. §2356.60(c), at https://www.ecfr.gov/current/title-45/subtitle-B/chapter-XIII/subchapter-G/part-1356.
ii
45 C.F.R. §1356.60(c), at https://www.ecfr.gov/current/title-45/subtitle-B/chapter-XIII/subchapter-G/part-1356, see also id.
Part 95, Subpart E, at https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-95/subpart-E/section-95.505.
iii
Children’s Bureau, ACYF-CB-IM-21-06 at 3, 10-11 (Jan. 14, 2021), at https://www.acf.hhs.gov/sites/default/files/
documents/cb/im2106.pdf; see also Children’s Bureau, Child Welfare Policy Manual, §8.1B: Title IV-E, Administrative
Functions/Costs, Allowable Costs - Foster Care Maintenance Payments Program, questions 30-32 at
https://www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=36.
iv
Child Welfare Policy Manual, §8.1B, supra note iii at questions 30-32.
v
42 U.S.C. §672, at https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-
section672&num=0&edition=prelim.
vi
42 U.S.C. §672(i)(2), supra note v; Children’s Bureau, Child Welfare Policy Manual, §8.1D; Title IV-E, Candidates for
title IV-E foster care, questions 2, 5, 6, 9 and 10, at
https://www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=79.
vii
ACYF-CB-IM-21-06, supra note iii at 3; Child Welfare Policy Manual, §8.1B, supra note iii at question 32.
viii
Child Welfare Policy Manual, §8.1B, supra note iii at question 30; Children’s Bureau, Technical Bulletin, Frequently
Asked Questions: Independent Legal Representation at 3 (July 20, 2020), at, https://www.acf.hhs.gov/cb/training-technical-
assistance/technical-bulletin-faqs-independent-legal-representation; ACYF-CB-IM-21-06, supra note iii at 11.
ix
ACYF-CB-IM-21-06, supra note iii at 12-13.
x
Email correspondence from Bob Cavanaugh, Region 1 Program Manager, Children’s Bureau (Sept. 13, 2022).
xi
See U.S. Dept. of Health & Human Servs., Proposed Rule, Foster Care Legal Representation, RIN 0970-AC89 (Spring
2022), at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=0970-AC89. This proposed rule has
not yet been formally proposed in the Federal Register, but appears in the federal government’s Spring 2022 Unified Agenda
of Regulatory and Deregulatory Actions, available here: https://www.reginfo.gov/public/do/eAgendaMain.
xii
Technical Bulletin, supra note viii, at 7.
xiii
For more detail on the PACAP amendment requirements and the Children’s Bureau’s suggestions developing the PACAP
amendment, see Technical Bulletin, supra note viii, at 4-5, 8; ACYF-CB-IM-21-06, supra note iii at 13-14. According to the
Children’s Bureau, a title IV-E State Plan amendment, is not required, however. See Technical Bulletin, supra note viii, at 6.
xiv
Technical Bulletin, supra note viii, at 4.
xv
See Todd A. Landry, Director, Maine Dept. of Health & Hum. Servs., Child & Family Servs., Memorandum: Overview of
Title IV-E Funding (Augusta 18, 2022), at https://legislature.maine.gov/doc/8783.
xvi
Technical Bulletin, supra note viii, at 6; Children’s Bureau, Child Welfare Policy Manual, §8.1F; Title IV-E,
Administrative Functions/Costs, Match Requirements, question 2 at
https://www.acf.hhs.gov/cwpm/public_html/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=35.
xvii
Zoom conversation on Sept. 1, 2022 with Vivek Sankaran, Esq., Director, Child Advocacy Law Clinic and Child Welfare
Appellate Clinic, University of Michigan Law School and Emilie Taylor Cook, Preventative Legal Advocacy Fellow, Barton
Child Law & Policy Center, Emory University School of Law; Zoom conversation on Sept. 22, 2022 with Emilie Taylor
Cook and Melissa Carter, Executive Director, Barton Child Law & Policy Center, Emory University School of Law.
xviii
Children's Bureau, FY 2021 Title IV-E Foster Care Claims and Caseload (Data Reported as of July 14, 2022) (Column
AG: In-Plac. Legal Representation - Child or Parent FFP”), available at https://www.acf.hhs.gov/cb/report/report/programs-
expenditure-caseload-data-2021.
xix
See Annual Report of the Maine Commission on Indigent Legal Services at p.5 (Jan. 14, 2022), at
https://legislature.maine.gov/doc/7944 (this figure was calculated by adding the attorney voucher totals for the following case
types: “child protection petition”, “petition for termination of parental rights” and “review of child protective order”).
