Tennessee’s legislature is debating SB 1868—a bill that would allow the state’s child-welfare agency to send foster kids to a juvenile jail. These children, who have often suffered years of abuse and neglect at the hands of their parents or caregivers, not surprisingly exhibit severe mental-health problems or even violent behaviors.
Though many Tennesseans are outraged by the idea, the state child-welfare agency, like many others around the country, has nowhere to put these kids. Thanks to a lack of beds in therapeutic mental-health facilities or group homes, states are placing hundreds of foster kids in homeless shelters, hotels, offices, and juvenile detention facilities.
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The situation is a direct consequence of the federal Family First Prevention Services Act (FFPSA). Passed with bipartisan support in 2018, the legislation aimed to put more resources into preventing children from entering foster care and to reduce significantly the number of kids who would go into congregate-care settings. Now, thanks to a new report from the Government Accountability Office (GAO), we can see what an unqualified disaster the FFPSA has been.
Since the law went into effect in 2021, more than half of state child welfare agencies have reported an increase or no decline in the percentage of kids placed in congregate care, according to the GAO report. Eighteen states reported they have been placing more youth in “hotel rooms, office buildings, and hospital emergency rooms.” More state child-welfare agencies “reported an increase than a decrease in the length of time youth remained in emergency shelters and stopgap placements since October 2021.” A recent investigation by Georgia Senator Jon Ossoff and Virginia Representative Jen Kiggans found that detention facilities in 25 states were holding youth who were awaiting placement in psychiatric residential treatment because those placements were not available.
The senators who championed FFPSA—most vocally, Oregon’s Ron Wyden and the late Orrin Hatch of Utah—held repeated hearings about the abusive and corrupt practices of residential-care facilities, tarring the entire sector with the misdeeds of a few. Christina Buttons, author of a Manhattan Institute report on youth residential treatment, argued that these investigations “drew sweeping generalizations from isolated incidents and ignored evidence showing that substantiated cases of abuse are rare.” Wyden and his allies also brought in witnesses who had never been in foster care. People like Paris Hilton, sent to residential-treatment and wilderness programs by her wealthy parents, have repeatedly spoken before Congress about their experiences, though the regulations governing care for children in foster care are entirely different from their circumstances.
FFPSA has added to the financial strain that rising insurance and staffing costs have already placed on facilities for foster kids with serious behavioral and mental-health issues. The law did so by creating a new category of congregate-care programs, Qualified Residential Treatment Programs (QRTP), and by requiring foster agencies to meet specific standards to remain eligible for federal reimbursement. With few exceptions, programs that don’t meet QRTP standards are ineligible for federal funding after two weeks of placement. For many of these kids, two weeks is not enough.
FFPSA also triggered a regulatory issue relating to Medicaid’s Institutions for Mental Disease (IMD) exclusion, which has forced many providers to limit their number of beds to 16 or below, further straining capacity in the system. Facilities with more beds now must either shrink their capacity, lose funding, or close. For years, this rule has forced well-run facilities that could care for children with high levels of need to shut down because they cannot afford to operate with fewer than 16 beds.
Wyden, chair of the Senate Finance Committee from 2021 to 2025 and now ranking member, has ignored numerous pleas to fix the IMD problem. The Senate would need 60 votes to do so. Republicans could theoretically ram through a fix by attaching it to a reconciliation bill, but they evidently don’t prioritize child welfare enough to do that.
Despite all evidence to the contrary, Wyden insists that FFPSA has been a rousing success. In May 2024, he said the law had helped “bring an end to the policy of warehousing vulnerable kids in large buildings that are more like prisons and leave kids more traumatized when they leave than they were when they entered.” But thanks to reduced reimbursement for legitimate facilities that care for children in need, foster kids are being housed in actual prisons.
In response to the GAO report, Wyden still refuses to see any fault in his legislation, telling The Imprint, “I will continue to hold [Assistant Secretary] Alex Adams and the Administration for Children and Families accountable for any action or inaction that allows the intent of the bipartisan Family First Act to be tarnished.”
In a way, Wyden’s statement is an admission that FFPSA itself is the problem. Adams and his agency are bound to follow the law as it is written—not as it is intended. And FFPSA is poorly written, as each passing day makes clearer.
Photo: Justin Paget / DigitalVision via Getty Images