Capriciousness and Christmas Trees
Talking HHS Reg Reform, Diving Deep on CAPTA, and Digging into NCANDS
Welcome, Wonks! We’ve got some big regulatory news and a reconciliation update. We have a thematically aligned deep dive and data explainer, too.
So let’s get after it, and turn to the latest news.
Child Welfare Policy News
Well wonks, my friends and family made fun of me for taking a class in grad school about federal administrative law in a health policy context (I mean, fair…) .
Well, joke’s on them! We’ve got some hot off the presses news related to U.S. Department of Health and Human Services (HHS) regulatory policy for you.
Major Wonky Change to HHS Regulatory Process
On February 28th, HHS Secretary Robert F. Kennedy, Jr. posted a policy statement with potentially significant implications for all regulatory procedure at HHS.
Boring titles like “Policy on Adhering to the Text of the Administrative Procedure Act”1 are the kind of thing wonks read on a Saturday morning.
What’s the Administrative Procedure Act (P.L. 79-404 AKA APA)? A 1946 law governing regulatory processes and granting federal courts jurisdiction over them2.
What Does it Do? Title V U.S. Code Section 5533 built a basic regulatory process.
What Does it Require? Rulemaking that includes public notice and comment:
Notice: Posting each step on Regulations.gov with relevant details.
Comment: An opportunity for the public to submit data, views, or arguments.
What it Looks Like in Practice. Here’s some key steps in a typical process:
Request for Information (RFI). An optional early-stage info-gathering tool.
Advance Notice of Proposed Rulemaking (ANPRM). Optional tool to outline what an agency wants to regulate in a preliminary way, and get early input.
Notice of Proposed Rulemaking (NPRM). Explains the action, rationale, changes to the Code of Federal Regulations, questions for input, etc.4
Final Rule. Explains input received, the final regulation, and when it takes effect.
Common law precedent uses the “Logical Outgrowth Doctrine5”, saying a final rule must be a “logical outgrowth” of earlier steps, to avoid last minute curveballs.
What Does it Not Apply to? Agency management, personnel, public property, loans, grants, benefits, or contracts. Also, the military and foreign policy.
BUT, in 1971, HHS adopted the Richardson Waiver6, waiving those exemptions. This is largely because so much of HHS policy is grants, benefits, and contracts.
So What Does this New Policy Change Do?
The new policy would repeal the Richardson Waiver and forgo APA procedure for regulatory policy changes to public property, loans, grants, benefits, or contracts.
The policy argues that this would reduce costs and improve efficiency and flexibility.
What Does it Mean for Child Welfare?
HHS oversees many child welfare programs that are “grants” or “benefits”, like:
Medicaid;
TANF;
CAPTA;
SSBG;
Titles IV-B and IV-E of the Social Security Act; and
Many more!
All of these could presumably now change without notice and comment.
Broader Implications Impacting Child Welfare
No notice and comment period. This would allow HHS to forgo public input on substantive questions, like Medicaid eligibility and benefits.
Fewer public updates. HHS could change policy with less formal notice.
Judicial review? This implies that much policy could now be outside courts’ APA review authority. This will be an ironically important question for the courts.
What Next?
With internal consistency, this policy statement does not invite public comment. We anticipate court challenges, so stay tuned for more.
As a final aside, you are not wrong if you’ve noticed that it feels like executive action has been quite… active… lately.
This WSJ analysis compares executive orders under each president since Reagan:
Yep, We Still Have to Talk Reconciliation
Oh right, budget reconciliation is still ongoing too.
Here’s your BLUF refresher as Congress considers major reconciliation policy.
Reconciliation Reminder
Overall Process
Check out our reconciliation overview (which also has a TANF deep dive)
Senate: Taking Two Steps
Less likely child welfare impact now, but more in a second bill later.
House: One “Big, Beautiful Bill”
Comprehensive, significant child welfare implications (especially Medicaid)
What Matters for Child Welfare in Potential Reconciliation $ Reductions:
Medicaid
99% of kids in foster care, 7% of federal child welfare funds, deep dive below
Temporary Assistance for Needy Families (TANF)
19% of federal child welfare spending
Social Services Block Grant (SSBG)
10% of federal child welfare spending
So, What’s New?
On February 25th, the U.S. House approved its budget resolution on a 217-216 vote.
While a key step, in many ways this is just the end of the beginning of reconciliation.
The House and Senate still must agree and draft legislation reducing spending $1.5T.
Bipartisan votes are unlikely in a Congress of extremely thin margins.7
Members uncomfortable with Medicaid cuts, and who find them too small, both voted yes for the resolution. That’s more an agreement to keep negotiating than anything.
Much remains ahead, and we will continue breaking it down for your as this evolves.
Deep Dive on CAPTA
It’s time to finish our first deep dive series, which has provided overviews of each of the primary programs we laid out in the first edition of this newsletter, today is:
The Child Abuse Prevention and Treatment Act (P.L. 93-247 AKA CAPTA).8
CAPTA at a Glance9
First passed: 1974
Most recent reauthorization: 2010
Two Core Titles
Title I: State Grants Program
Funds states for child protective services and other activities.
Most Recent Appropriation: $105m10
Title II: Community-Based Child Abuse Prevention (CB-CAP)
Community-based organizations support families/prevent maltreatment.
Most Recent Appropriation: $70m
So let’s talk about the proverbial Christmas tree of child welfare policy, CAPTA.
Why a Christmas tree? This tree unfortunately does not have a lake of largesses around its base. Nope, it’s so known because of its MANY ornaments.
Placing the Paucity of Presents: Federal Funding for CAPTA
CAPTA is so small that ChildTrends’ biennial state child welfare financing survey11 lists is within “Spending of Other Federal Funds by Child Welfare Agencies”.
States each get a small grant through Title I of CAPTA to support their child protective services (CPS) system. They mostly fund that work with state and local funds.
Title II of CAPTA funds public-private-partnerships to prevent abuse and neglect using the science of risk and protective factors for maltreatment.12
As you can imagine, both of these sets of funds only go so far. So you might think CAPTA was a pretty flexible program, block grant style….
Hanging the Ornaments: Policy Requirements
Except nope, not at all. It has beaucoup requirements.
The word “assurance” appears 15 times in the statutory text of CAPTA. That’s an undercount, since most of those are followed by bulleted lists. Here’s just a handful:
Reporting Systems. Systems for reporting abuse and neglect, like a hotline.
Mandated Reporting. A state law for mandatory reporting of abuse and neglect.
Plans of Safe Care for Substance Exposed Infants. Policies and procedures addressing prenatal substance exposure or Fetal Alcohol Spectrum Disorder.
Investigation Systems. Systems for investigating child abuse and neglect.
There are around two dozen such assurances, which governors must provide HHS.
Meanwhile on Mount Crumpit: The Funding/Policy Balancing Act
So you may be wondering why we seem to load ornaments onto this tree like Charlie Brown, only to leave states feeling like "But Santy Claus, Why?"
A few factors are at play here. Because this is Child Welfare Wonk, you may have guessed that one is Congressional committee jurisdiction.
In the Senate, almost all major child welfare programs live in the Senate Finance Committee. In the House, most are in the Ways and Means Committee.13
So in general, the same Members oversee those programs. Most are tied to mandatory funding too, which are dollars that permanently support programs.
CAPTA is different, though. It sits in the Senate Health, Education, Labor, and Pensions (HELP) Committee and House Committee on Education and the Workforce.
It also relies on appropriations. So it becomes a magnet for well-intended policy that lacks the resources to translate into action.
Policymakers nearly passed a bipartisan reauthorization in 2022 that would have streamlined the assurances and increased funding authorization to $270m each Title.
For now though, CAPTA’s aspirations remain larger than its resources. Now as we wrap up, let’s turn to one of the law’s few requirements on HHS rather than states...
Data You Oughta Know: NCANDS
Last week we started breaking down data sets you oughta know with AFCARS.
This week, we cover the National Child Abuse and Neglect Data System (NCANDS)
Data You Oughta Know: National Child Abuse and Neglect Data System (NCANDS).
Who Manages It: ACF
Where Does it Come From: State and tribal agencies implementing CAPTA.
What Do They Report: Reports of child abuse and neglect, on a voluntary basis.
Why Do They Report It: CAPTA requires HHS to collect it.
What Reports Does it Create?
Additional Data to Dig In
Child File and related Code Book
Includes de-identified child-specific case information
Agency File and related code book
Includes data not reportable at the child level
What Kind of Stuff Does it Tell Us (FY23 stats):
Number of maltreatment reports annually: 4.4m
Number of children the reports cover: 7.8m
Number of children who received investigation or alternative response: 3.1m
Substantiated victims of child abuse or neglect: 546,159
National estimate of child maltreatment fatalities: 2,000
Most frequent reporters of maltreatment:
Legal/Law Enforcement Personnel- 21.4%
Education Personnel- 21.1%
Medical Personnel-11.2%
Why You Oughta Know: NCANDS is the best14 public dataset we have to describe maltreatment at a population level.
Okay, that’s all for this week gang. Have a good week, Wonks!
Have a good week, Wonks!
The standard here is if it’s “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”, unconstitutional, exceeds statutory authority, does not follow required procedure, or is unsupported by evidence.
If you really want to sound like a wonk (AKA sit alone at restaurants reading the Federal Register), you can refer to it as “straight 553 rulemaking” to differentiate it from additional statutory processes layered on top of it by certain laws on particular agencies or policies. 553 is a sort of floor, and many laws impose further requirements beyond it.
Depending on the issue this may include things like economic cost/benefit analysis of the rule or analysis of the associated paperwork and how much time it will take to do.
For the footnote following nerds, an apt overview of the logical outgrowth doctrine is expressed in a recent 2022 DC Circuit case, Brennan v. Dickson, 45 F.4th 48, 69-70 (2022), explaining :
“To comport with the APA's notice-and-comment requirements, an agency's final rule must be a logical outgrowth of the version set forth in its notice of proposed rulemaking. Covad Comms. Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006). If it were otherwise, agencies could evade their notice-and-comment obligations by adopting final rules unrelated to their published proposals. An agency may not leave the public to “divine [the agency's] unspoken thoughts” on a final rule “surprisingly distant from the proposed rule.” CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076, 1080 (D.C. Cir. 2009) (citing Int'l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259-60 (D.C. Cir. 2005) (formatting modified)). At the same time, the APA does not require that rules be subjected to multiple cycles of notice and comment until the version adopted as final is identical to the last notice of proposed rulemaking; after all, the very premise of agencies' duty to solicit, consider, and respond appropriately to comments is that rules evolve from conception to completion. The public right to have a say in such development is honored so long as affected parties “should have anticipated” the final rule in light of the notice. Covad Comms. Co., 450 F.3d at 548. Notice suffices when it has “expressly asked for comments on a particular issue or otherwise made clear that the agency was contemplating a particular change.” CSX Transp., 584 F.3d at 1081.”
218-215 House & 53-47 Senate
This ACF legislative history is a good primer to start with.
You can see more about these approps figures in context in the most recent ACF Congressional Justification (CJ). Unfamiliar with CJs? We will do a deep dive during budget season, but know that these documents are treasure troves of information, combined with an Administration’s priorities.
Fellow fans will astutely notice that we are nearly at 2 years out from the last survey release, so it’s countdown time!
If you’re interested in learning more, check out the Children’s Trust Fund Alliance and Prevent Child Abuse America as a start. Both do a lot of Title II-funded work and are on the cutting edge of this type of prevention.
Except Medicaid over at Energy and Commerce. But Medicaid is so big it insists upon the level of attention it receives.
With all usual caveats; it’s voluntary, it lags, the categories only tell us so much, etc.