Federal rule change opens up funding for civil legal rep

In May 2024, the federal Department of Health and Human Services finalized a rule change that makes more federal funding available for civil legal representation related to foster care proceedings. The rule goes into effect on July 9, 2024.

Previously, states could obtain federal matching funds for costs related to representation of parents and children in foster care proceedings, but the rule change allows reimbursement for representation costs related to a child who is a "candidate for title IV-E foster care" (meaning they are not yet in foster care), as well as "other civil legal proceedings as necessary to carry out the requirements in the title IV-E agency's title IV-E foster care plan", which could include services like eviction defense.

To explain this change, HHS put several comments in the finalized rule:

• HHS clarified that “The allowability of the cost of independent legal representation is not determined based on the status of a petition to remove a child from home or a CPS investigation."  Instead, reimbursement is possible if:

• "A title IV-E agency determined that the child is a candidate for or in title IV-E foster care (or is the parent, relative, or Indian custodian of such child);
• The independent legal representation is provided in a foster care or other civil legal proceeding;
• The title IV-E agency determined that independent legal representation is necessary to carry out the requirements in the agency's title IV-E foster care plan; and
• The independent legal representation in civil legal proceedings is identified in the child's case plan.”

• Despite the above language, it is not a hard-and-fast prerequisite that there is a case plan.  HHS explained that "“A case plan is one of several ways a title IV-E agency may document a child's candidacy for title IV-E foster care and may be developed prior to a child entering foster care. The CWPM 8.1D #2 explains that there are three acceptable methods for documenting candidacy: (1) A defined case plan which clearly indicates that, absent effective preventive services, foster care is the planned arrangement for the child; (2) An eligibility determination form which has been completed to establish the child's eligibility for title IV-E foster care maintenance payments; or (3) Evidence of court proceedings in relation to the removal of the child from the home, in the form of a petition to the court, a court order or a transcript of the court proceedings.

• The fact that a a title IV-agency is involved with a child is not sufficient to make the child a "candidate for foster care.  Instead, the agency's inovlvement must be "for the specific purpose of either removing the child from the home or satisfying the reasonable efforts requirement with regard to preventing removal."

• HHS made it clear that the pursuit of public benefits could be a reimburseable expense "when it is necessary to meet the plan requirement to make reasonable efforts to prevent the unnecessary removal of a child from the home or to finalize a case plan in support of a child's permanency goal as required by section 471(a)(15) of the Act.”

• HHS declined to address the specific role played by attorneys or require specific training of attorneys, as they considered such things outside the scope of the rule.