[Code of Federal Regulations]
[Title 45, Volume 4]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1355.34]

[Page 261-264]
 
                        TITLE 45--PUBLIC WELFARE
 
CHAPTER XIII--OFFICE OF HUMAN DEVELOPMENT SERVICES, DEPARTMENT OF HEALTH 
                           AND HUMAN SERVICES
 
PART 1355--GENERAL--Table of Contents
 
Sec. 1355.34  Criteria for determining substantial conformity.

    (a) Criteria to be satisfied. ACF will determine a State's 
substantial conformity with title IV-B and title IV-E State plan 
requirements based on the following:
    (1) Its ability to meet national standards, set by the Secretary, 
for statewide data indicators associated with specific outcomes for 
children and families;
    (2) Its ability to meet criteria related to outcomes for children 
and families; and
    (3) Its ability to meet criteria related to the State agency's 
capacity to deliver services leading to improved outcomes.
    (b) Criteria related to outcomes.
    (1) A State's substantial conformity will be determined by its 
ability to substantially achieve the following child and family service 
outcomes:
    (i) In the area of child safety:
    (A) Children are, first and foremost, protected from abuse and 
neglect; and,
    (B) Children are safely maintained in their own homes whenever 
possible and appropriate;
    (ii) In the area of permanency for children:
    (A) Children have permanency and stability in their living 
situations; and
    (B) The continuity of family relationships and connections is 
preserved for children; and
    (iii) In the area of child and family well-being:
    (A) Families have enhanced capacity to provide for their children's 
needs;
    (B) Children receive appropriate services to meet their educational 
needs; and
    (C) Children receive adequate services to meet their physical and 
mental health needs.
    (2) A State's level of achievement with regard to each outcome 
reflects the extent to which a State has:
    (i) Met the national standard(s) for the statewide data indicator(s) 
associated with that outcome, if applicable; and,
    (ii) Implemented the following CFSP requirements or assurances:
    (A) The requirements in 45 CFR 1357.15(p) regarding services 
designed to assure the safety and protection of children and the 
preservation and support of families;
    (B) The requirements in 45 CFR 1357.15(q) regarding the permanency 
provisions for children and families in sections 422 and 471 of the Act;
    (C) The requirements in section 422(b)(9) of the Act regarding 
recruitment of potential foster and adoptive families;
    (D) The assurances by the State as required by section 
422(b)(10)(C)(i) and (ii) of the Act regarding policies and procedures 
for abandoned children;
    (E) The requirements in section 422(b)(11) of the Act regarding the 
State's compliance with the Indian Child Welfare Act;
    (F) The requirements in section 422(b)(12) of the Act regarding a 
State's plan for effective use of cross-jurisdictional resources to 
facilitate timely adoptive or permanent placements; and,
    (G) The requirements in section 471(a)(15) of the Act regarding 
reasonable efforts to prevent removals of children from their homes, to 
make it possible for children in foster care to safely return to their 
homes, or, when the child is not able to return home, to place the child 
in accordance with the permanency plan and complete the steps necessary 
to finalize the permanent placement.
    (3) A State will be determined to be in substantial conformity if 
its performance on:
    (i) Each statewide data indicator developed pursuant to paragraph 
(b)(4) of this section meets the national standard described in 
paragraph (b)(5) of this section; and,
    (ii) Each outcome listed in paragraph (b)(1) of this section is 
rated as ``substantially achieved'' in 95 percent of the cases examined 
during the on-site review (90 percent of the cases for a State's initial 
review). Information from various sources (case records, interviews) 
will be examined for each outcome and a determination made as to the 
degree to which each outcome

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has been achieved for each case reviewed.
    (4) The Secretary may, using AFCARS and NCANDS, develop statewide 
data indicators for each of the specific outcomes described in paragraph 
(b)(1) of this section for use in determining substantial conformity. 
The Secretary may add, amend, or suspend any such statewide data 
indicator(s) when appropriate. To the extent practical and feasible, the 
statewide data indicators will be consistent with those developed in 
accordance with section 203 of the Adoption and Safe Families Act of 
1997 (Pub. L. 105-89).
    (5) The initial national standards for the statewide data indicators 
described in paragraph (b)(4) of this section will be based on the 75th 
percentile of all State performance for that indicator, as reported in 
AFCARS or NCANDS. The Secretary may adjust these national standards if 
appropriate. The initial national standard will be set using the 
following data sources:
    (i) The 1997 and 1998 submissions to NCANDS (or the most recent and 
complete 2 years available), for those statewide data indicators 
associated with the safety outcomes; and,
    (ii) The 1998b, 1999c, and 2000a submissions to AFCARS (or the most 
recent and complete report periods available), for those statewide data 
indicators associated with the permanency outcomes.
    (c) Criteria related to State agency capacity to deliver services 
leading to improved outcomes for children and families. In addition to 
the criteria related to outcomes contained in paragraph (b) of this 
section, the State agency must also satisfy criteria related to the 
delivery of services. Based on information from the statewide assessment 
and onsite review, the State must meet the following criteria for each 
systemic factor in paragraphs (c)(2) through (c)(7) of this section to 
be considered in substantial conformity: All of the State plan 
requirements associated with the systemic factor must be in place, and 
no more than one of the state plan requirements fails to function as 
described in paragraphs (c)(2) through (c)(7) of this section. The 
systemic factor in paragraph (c)(1) of this section, is rated on the 
basis of only one State plan requirement. To be considered in 
substantial conformity, the State plan requirement associated with 
statewide information system capacity must be both in place and 
functioning as described in the requirement. ACF will use a rating scale 
to make the determinations of substantial conformity. The systemic 
factors under review are:
    (1) Statewide information system: The State is operating a statewide 
information system that, at a minimum, can readily identify the status, 
demographic characteristics, location, and goals for the placement of 
every child who is (or within the immediately preceding 12 months, has 
been) in foster care (section 422(b)(10)(B)(i) of the Act);
    (2) Case review system: The State has procedures in place that:
    (i) Provide, for each child, a written case plan to be developed 
jointly with the child's parent(s) that includes provisions: for placing 
the child in the least restrictive, most family-like placement 
appropriate to his/her needs, and in close proximity to the parent' home 
where such placement is in the child's best interests; for visits with a 
child placed out of State at least every 12 months by a caseworker of 
the agency or of the agency in the State where the child is placed; and 
for documentation of the steps taken to make and finalize an adoptive or 
other permanent placement when the child cannot return home (sections 
422(b)(10)(B)(ii), 471(a)(16) and 475(5)(A) of the Act);
    (ii) Provide for periodic review of the status of each child no less 
frequently than once every six months by either a court or by 
administrative review (sections 422(b)(10)(B)(ii), 471(a)(16) and 
475(5)(B) of the Act);
    (iii) Assure that each child in foster care under the supervision of 
the State has a permanency hearing in a family or juvenile court or 
another court of competent jurisdiction (including a Tribal court), or 
by an administrative body appointed or approved by the court, which is 
not a part of or under the supervision or direction of the State agency, 
no later than 12 months from the date the child entered foster care (and 
not less frequently than every 12 months thereafter during the

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continuation of foster care) (sections 422(b)(10)(B)(ii), 471(a)(16) and 
475(5)(C) of the Act);
    (iv) Provide a process for termination of parental rights 
proceedings in accordance with sections 422(b)(10(B)(ii), 475(5)(E) and 
(F) of the Act; and,
    (v) Provide foster parents, preadoptive parents, and relative 
caregivers of children in foster care with notice of and an opportunity 
to be heard in permanency hearings and six-month periodic reviews held 
with respect to the child (sections 422(b)(10)(B)(ii), 475(5)(G) of the 
Act, and 45 CFR 1356.21(o)).
    (3) Quality assurance system: The State has developed and 
implemented standards to ensure that children in foster care placements 
are provided quality services that protect the safety and health of the 
children (section 471(a)(22)) and is operating an identifiable quality 
assurance system (45 CFR 1357.15(u)) as described in the CFSP that:
    (i) Is in place in the jurisdictions within the State where services 
included in the CFSP are provided;
    (ii) Is able to evaluate the adequacy and quality of services 
provided under the CFSP;
    (iii) Is able to identify the strengths and needs of the service 
delivery system it evaluates;
    (iv) Provides reports to agency administrators on the quality of 
services evaluated and needs for improvement; and
    (v) Evaluates measures implemented to address identified problems.
    (4) Staff training: The State is operating a staff development and 
training program (45 CFR 1357.15(t)) that:
    (i) Supports the goals and objectives in the State's CFSP;
    (ii) Addresses services provided under both subparts of title IV-B 
and the training plan under title IV-E of the Act;
    (iii) Provides training for all staff who provide family 
preservation and support services, child protective services, foster 
care services, adoption services and independent living services soon 
after they are employed and that includes the basic skills and knowledge 
required for their positions;
    (iv) Provides ongoing training for staff that addresses the skills 
and knowledge base needed to carry out their duties with regard to the 
services included in the State's CFSP; and,
    (v) Provides training for current or prospective foster parents, 
adoptive parents, and the staff of State-licensed or State-approved 
child care institutions providing care to foster and adopted children 
receiving assistance under title IV-E that addresses the skills and 
knowledge base needed to carry out their duties with regard to caring 
for foster and adopted children.
    (5) Service array: Information from the Statewide assessment and on-
site review determines that the State has in place an array of services 
(45 CFR 1357.15(n) and section 422(b)(10)(B)(iii) and (iv) of the Act) 
that includes, at a minimum:
    (i) Services that assess the strengths and needs of children and 
families assisted by the agency and are used to determine other service 
needs;
    (ii) Services that address the needs of the family, as well as the 
individual child, in order to create a safe home environment;
    (iii) Services designed to enable children at risk of foster care 
placement to remain with their families when their safety and well-being 
can be reasonably assured;
    (iv) Services designed to help children achieve permanency by 
returning to families from which they have been removed, where 
appropriate, be placed for adoption or with a legal guardian or in some 
other planned, permanent living arrangement, and through post-legal 
adoption services;
    (v) Services that are accessible to families and children in all 
political subdivisions covered in the State's CFSP; and,
    (vi) Services that can be individualized to meet the unique needs of 
children and families served by the agency.
    (6) Agency responsiveness to the community:
    (i) The State, in implementing the provisions of the CFSP, engages 
in ongoing consultation with a broad array of individuals and 
organizations representing the State and county agencies responsible for 
implementing the CFSP and other major stakeholders in

[[Page 264]]

the services delivery system including, at a minimum, tribal 
representatives, consumers, service providers, foster care providers, 
the juvenile court, and other public and private child and family 
serving agencies (45 CFR 1357.15(l)(4));
    (ii) The agency develops, in consultation with these or similar 
representatives, annual reports of progress and services delivered 
pursuant to the CFSP (45 CFR 1357.16(a));
    (iii) There is evidence that the agency's goals and objectives 
included in the CFSP reflect consideration of the major concerns of 
stakeholders consulted in developing the plan and on an ongoing basis 
(45 CFR 1357.15(m)); and
    (iv) There is evidence that the State's services under the plan are 
coordinated with services or benefits under other Federal or federally-
assisted programs serving the same populations to achieve the goals and 
objectives in the plan (45 CFR 1357.15(m)).
    (7) Foster and adoptive parent licensing, recruitment and retention:
    (i) The State has established and maintains standards for foster 
family homes and child care institutions which are reasonably in accord 
with recommended standards of national organizations concerned with 
standards for such institutions or homes (section 471(a)(10) of the 
Act);
    (ii) The standards so established are applied by the State to every 
licensed or approved foster family home or child care institution 
receiving funds under title IV-E or IV-B of the Act (section 471(a)(10) 
of the Act);
    (iii) The State complies with the safety requirements for foster 
care and adoptive placements in accordance with sections 471(a)(16), 
471(a)(20) and 475(1) of the Act and 45 CFR 1356.30;
    (iv) The State has in place an identifiable process for assuring the 
diligent recruitment of potential foster and adoptive families that 
reflect the ethnic and racial diversity of children in the State for 
whom foster and adoptive homes are needed (section 422(b)(9) of the 
Act); and,
    (v) The State has developed and implemented plans for the effective 
use of cross-jurisdictional resources to facilitate timely adoptive or 
permanent placements for waiting children (section 422(b)(12) of the 
Act).
    (d) Availability of review instruments. ACF will make available to 
the States copies of the review instruments, which will contain the 
specific standards to be used to determine substantial conformity, on an 
ongoing basis, whenever significant revisions to the instruments are 
made.

[65 FR 4078, Jan. 25, 2000, as amended at 66 FR 58675, Nov. 23, 2001]