Proposed Rule2023-21274
Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B
Primary source
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Published
September 28, 2023
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
Federal law requires that state and tribal title IV-E/IV-B agencies ("agencies") ensure that each child in foster care receives "safe and proper" care and has a case plan that addresses the specific needs of the child while in foster care to support their health and wellbeing. Federal law also requires that for children ages 14 and over, agencies must consult with them about their case plans. To ensure agencies meet these and other related statutory requirements, ACF proposes to specify the steps agencies must take when implementing the case plan and case review requirements for children in foster care who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary, or have non-conforming gender identity or expression (all of whom are referred to under the umbrella term LGBTQI+ for purposes of this regulation).
Full Text
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<title>Federal Register, Volume 88 Issue 187 (Thursday, September 28, 2023)</title>
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[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66752-66769]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21274]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1355
RIN 0970-AD03
Safe and Appropriate Foster Care Placement Requirements for
Titles IV-E and IV-B
AGENCY: Children's Bureau (CB), Administration on Children, Youth and
Families (ACYF), Administration for Children and Families (ACF),
Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: Federal law requires that state and tribal title IV-E/IV-B
agencies (``agencies'') ensure that each child in foster care receives
``safe and proper'' care and has a case plan that addresses the
specific needs of the child while in foster care to support their
health and wellbeing. Federal law also requires that for children ages
14 and over, agencies must consult with them about their case plans. To
ensure agencies meet these and other related statutory requirements,
ACF proposes to specify the steps agencies must take when implementing
the case plan and case review requirements for children in foster care
who identify as lesbian, gay, bisexual, transgender, queer or
questioning, intersex, as well as children who are non-binary, or have
non-conforming gender identity or expression (all of whom are referred
to under the umbrella term LGBTQI+ for purposes of this regulation).
DATES: In order to be considered, ACF must receive written comments on
or before November 27, 2023. We intend to notify tribal title IV-E/IV-B
agency leadership about the opportunity to provide comment on this NPRM
no later than September 28, 2023.
ADDRESSES: You may submit comments, identified by the Regulatory
Information Number (RIN), by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#81c2c3c2eeecece4eff5f2c1e0e2e7afe9e9f2afe6eef7"><span class="__cf_email__" data-cfemail="a3e0e1e0cccecec6cdd7d0e3c2c0c58dcbcbd08dc4ccd5">[email protected]</span></a>. Include the RIN number in
subject line of the message.
Instructions: All submissions received must include the agency name
and RIN for this rulemaking. All comments received by the methods and
due date specified above may be posted without change to
<a href="http://www.regulations.gov">www.regulations.gov</a>, including any personal information provided.
However, the Department may redact certain non-substantive content from
comments before posting, including threats, hate speech, profanity,
graphic images, or individually identifiable information about a third-
party individual other than the commenter. In addition, comments or
material designated as confidential or not to be disclosed to the
public will not be accepted. Comments may be redacted or rejected as
described above without notice to the commenter, and the Department
will not consider in rulemaking any redacted or rejected content that
would not be made available to the public as part of the administrative
record.
FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director, Policy
Division, Children's Bureau, (202) 205-8618. Telecommunications Relay
users may dial 711 first. Email inquiries to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="6a0908090507070f041e192a0b090c44020219440d051c">[email protected]</a>.
Upon request, the Department will provide an accommodation or auxiliary
aid to an individual with a disability who needs assistance to review
the comments or other documents in the public rulemaking record for the
proposed regulations. To schedule an appointment for this type of
accommodation or auxiliary aid, please call (202) 205-8618 for
assistance or email <a href="/cdn-cgi/l/email-protection#f0939293939f9d9d959e84b0919396de989883de979f86"><span class="__cf_email__" data-cfemail="d1b2b3b2b2bebcbcb4bfa591b0b2b7ffb9b9a2ffb6bea7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority To Issue NPRM
II. Background
III. Overview of Proposal
IV. Section-by-Section Discussion of Proposed Regulatory Changes
V. Regulatory Process Matters
VI. Tribal Consultation Statement
I. Statutory Authority To Issue NPRM
Titles IV-E and IV-B of the Social Security Act (the Act) require
title IV-E/IV-B agencies (referred to as ``agencies'') to provide case
plans for all children in foster care that include ``a plan for
assuring that the child receives safe and proper care and that services
are provided to the parents, child, and foster parents in order to
improve the conditions in the parents' home, facilitate return of the
child to his own safe home or the permanent placement of the child, and
address the needs of the child while in foster care.'' Section
475(1)(B). Agencies must also have case review systems through which
they ensure that each foster child's case plan is ``designed to achieve
placement in a safe setting that is the least restrictive (most family
like) and most appropriate setting available and in close proximity to
the parents' home, consistent with the best interest and special needs
of the child[.]'' Section 475(5). In order to receive IV-E and IV-B
funds, title IV-E/IV-B agencies must have plans approved by ACF that
provide for case plans and case review systems that meet these
statutory requirements. Section 471(a)(16) and section 422(b).
Additionally, in order to receive IV-E funds, states and tribes
must certify in their IV-E plans that they will ensure that before a
child in foster care is placed with prospective foster parents, the
prospective foster parents ``will be prepared adequately with the
appropriate knowledge and skills to provide for the needs of the child
. . .''. In addition, the preparation ``shall include . . . knowledge
and skills relating to the developmental stages of the cognitive,
emotional, physical, and behavioral capacities of a child.'' Section
471(a)(24). Agencies must also ensure that at least one staff member at
any child-care institution providing foster care receives this
training. Section 471(a)(10).
The Act authorizes the Secretary of Health and Human Services (the
Secretary) to review state compliance with the title IV-E and IV-B
program requirements. Specifically, the Act requires the Secretary to
determine whether state programs are in substantial conformity with
state plan requirements under IV-E and IV-B, implementing regulations
promulgated by the Secretary, and the states' approved state plans.
Section 1123A.
Section 1102 of the Act authorizes the Secretary to publish
regulations as may be necessary for the efficient administration of the
functions for which the Secretary is responsible under the Act.
II. Background
Titles IV-E and IV-B of the Act set forth numerous requirements for
state and tribal title IV-E/IV-B agencies (referred to as ``agencies'')
to meet for children in foster care. This NPRM applies to the state or
tribal agency administering or supervising the administration of the
title IV-E and title IV-B plans.
Titles IV-E and IV-B of the Act provide protections that are
designed to ensure that while in foster care, children receive safe and
proper care. As part of its title IV-E and IV-B plan, an agency must
develop a case plan for each child in care that, among other things,
assures that the child receives ``safe and proper'' care, and
``address(es) the needs of the child while in foster care.'' (Title IV-
E, section 475(1)(B) of the Act). This
[[Page 66753]]
includes a ``discussion of the appropriateness of the services that
have been provided to the child under the plan'' (Id.). Similarly, the
title IV-E/IV-B case review system requires that the agency have
procedures for assuring that each child has a case plan designed to
achieve placements in the most appropriate setting available,
consistent with the best interests and special needs of the child
(422(b), 471(a)(16), 475(1)(B), and 475(5)).
In addition, the Act requires the agency to certify that foster
parents are ``prepared adequately with the appropriate knowledge and
skills to provide for the needs of the child [and] that the preparation
will be continued, as necessary, after the placement of the child''
(471(a)(24)). Finally, the Act requires agencies to develop and
implement standards to ensure that children in foster care placements
are provided quality services that protect their safety and health
(471(a)(22)).
Overrepresentation of LGBTQI+ Children in Foster Care
LGBTQI+ children are overrepresented in the foster care population.
One recent confidential survey revealed that 32 percent \1\ of foster
children ages 12-21 surveyed report that they identify as having a
diverse sexual orientation or gender identity. A recent study using
nationally representative survey data found that youth with a minority
sexual orientation, such as lesbian, gay, and bisexual youth, are
nearly 2.5 times as likely as heterosexual youth to experience a foster
care placement.\2\
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\1\ Institute for Innovation and Implementation at University of
Maryland's School of Social Work and the National Quality
Improvement Center on Tailored Services, Placement Stability, and
Permanency for LGBTQ2S Children and Youth in Foster Care (2021), The
Cuyahoga Youth Count: A Report on LGBTQ+ Youth Experience in Foster
Care, <a href="https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf">https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf</a>.
\2\ Fish, J., Baams, L., Wojciak, A.S., & Russell, S.T. (2019),
Are Sexual Minority Youth Overrepresented in Foster Care, Child
Welfare, and Out-of-Home Placement? Findings from Nationally
Representative Data. Child Abuse and Neglect. <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7306404/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7306404/</a>.
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A study published in 2016 of the population of youth who have been
involved in both the foster care and juvenile justice systems found
that LGBTQI+ juvenile-justice involved youth were much more likely to
have been removed from their home and to have experienced being
physically abused.\3\
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\3\ Irvine, Angela, and Canfield, Aisha. The Overrepresentation
of Lesbian, Gay, Bisexual, Questioning, Gender Nonconforming and
Transgender Youth within the Child Welfare to Juvenile Justice
Crossover Population, 24.2 Am. U. J. Gender Soc. Pol'y & L., 243-261
(2016), <a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1679&context=jgspl">https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1679&context=jgspl</a>.
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LGBTQI+ youth are overrepresented in the child welfare system
because of a confluence of factors. Studies suggest that many LGBTQI+
youth face higher rates of parental physical abuse,\4\ and are more
likely to run away from home or be kicked out, often because of
conflict over their sexual orientation or gender identity.\5\ These
experiences place LGBTQI+ youth at greater risk of entering foster
care, and mean that many LGBTQI+ youth enter foster care with complex
needs and trauma related to the discrimination and stigma they have
experienced because of their sexual orientation or gender identity.\6\
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\4\ Friedman, M., Marshal, M., Guadamuz, T., Wei, C., Wong, C.,
Saewyc, C., and Stall, R., 2011: A Meta-Analysis of Disparities in
Childhood Sexual Abuse, Parental Physical Abuse, and Peer
Victimization Among Sexual Minority and Sexual Nonminority
Individuals American Journal of Public Health 101, 1481_1494,
<a href="https://doi.org/10.2105/AJPH.2009.190009">https://doi.org/10.2105/AJPH.2009.190009</a>.
\5\ Pearson, J., Thrane, L., & Wilkinson, L. (2017).
Consequences of runaway and thrownaway experiences for sexual
minority health during the transition to adulthood. Journal of LGBT
Youth, 14(2), 145-171, <a href="https://www.tandfonline.com/doi/full/10.1080/19361653.2016.1264909">https://www.tandfonline.com/doi/full/10.1080/19361653.2016.1264909</a>.
\6\ For a review of risk factors impacting children in foster
care see Matarese, M., Greeno, E. and Betsinger, A. (2017). Youth
with Diverse Sexual Orientation, Gender Identity and Expression in
Child Welfare: A Review of Best Practices. Baltimore, MD: Institute
for Innovation & Implementation, University of Maryland School of
Social Work, <a href="https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf">https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf</a>.
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Impact of Family and Caregiver Behavior on LGBTQI+ Youth Wellbeing
Research shows that the treatment LGBTQI+ youth receive from their
families and caregivers related to their sexual orientation or gender
identity is highly predictive of their mental health and wellbeing. For
example, a 2021 survey \7\ found that ``LGBTQ youth who felt high
social support from their family reported attempting suicide at less
than half the rate of those who felt low or moderate social support.
Moreover, the survey \8\ found the five most common ways that LGBTQ
youth reported feeling supported by their parents or caregivers
included having been welcoming to their LGBTQ friends or partners,
talking with them respectfully about their LGBTQ identity, using their
name and pronouns correctly, supporting their gender expression, and
educating themselves about LGBTQ people and issues.\9\
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\7\ The Trevor Project, 2022 National Survey on LGBTQ Youth
Mental Health, <a href="https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf">https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf</a>.
\8\ Ibid.
\9\ Ibid.
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Another study further quantified the negative impacts of family
rejection of LGBTQI+ children, which can lead to greater representation
in foster care. The study found that family behaviors, including
excluding LGBTQI+ children from family events and activities because of
their identity and not letting their child learn about their LGBTQI+
identity, that tried to change their child's LGBTQ identity increased
the risk of depression, suicide, illegal drug use and other serious
health risks.\10\ The study also found that family behaviors that
support LGBTQI+ children including by standing up for their child when
others mistreat them because of their LGBTQI+ identity had positive
outcomes, helped promote self-esteem, overall health, and protected
against suicidal behavior, depression and substance abuse.\11\ The
study found that LGB young adults who reported high levels of family
rejection during adolescence were more than eight times more likely to
report having attempted suicide, nearly six times more likely to report
high levels of depression, and more than three times more likely to use
illegal drugs compared with their LGB counterparts from families that
reported no or low levels of family rejection.\12\ Moreover, rejecting
caregiver behavior--including refusing to use a child's chosen name and
pronouns, ridiculing or name-calling because of the child's LGBTQI+
identity, or isolating behaviors such as blocking access to LGBTQI+
friends, events, and resources--contributes to higher rates of health
and mental health problems.\13\
[[Page 66754]]
Conversely, the study found improved health outcomes in youth whose
caregivers demonstrated supportive behavior towards the child's LGBTQI+
identity, including connecting the child to an LGBTQI+ adult role
model.\14\
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\10\ Innovations Institute, University of Connecticut School of
Social Work, Family Acceptance Project, and National SOGIE Center
(n.d.). Parents & Families Have a Critical Impact on Their LGBTQ
Children's Health Risks & Well-Being [Fact Sheet] <a href="https://lgbtqfamilyacceptance.org/family-matters/">https://lgbtqfamilyacceptance.org/family-matters/</a>. Data for the fact sheet
is drawn from Ryan, C (2021) Helping Diverse Families Learn to
Support Their LGBTQ Children to Prevent Health and Mental Health
Risks and Promote Well-Being, San Francisco, Family Acceptance
Project, San Francisco State University. Available at <a href="https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf">https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf</a> and Ryan, C., Huebner, D.,
Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of
negative health outcomes in white and latino lesbian, gay, and
bisexual young adults. Pediatrics, 123(1), Retrieved from <a href="http://pediatrics.aappublications.org/content/123/1/346">http://pediatrics.aappublications.org/content/123/1/346</a>.
\11\ Ibid.
\12\ Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009).
Family rejection as a predictor of negative health outcomes in white
and latino lesbian, gay, and bisexual young adults. Pediatrics,
123(1), Retrieved from <a href="http://pediatrics.aappublications.org/content/123/1/346">http://pediatrics.aappublications.org/content/123/1/346</a>.
\13\ Ryan, C (2021) Helping Diverse Families Learn to Support
Their LGBTQ Children to Prevent Health and Mental Health Risks and
Promote Well-Being, San Francisco, Family Acceptance Project, San
Francisco State University. Available at <a href="https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf">https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf</a>.
\14\ Ibid.
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Experience of LGBTQI+ Children in Foster Care
A meaningful body of research demonstrates that LGBTQI+ children in
foster care face disproportionately worse outcomes and experiences than
other children in foster care due to their specific health and well-
being needs are often unmet. LGBTQI+ youth in foster care report
experiencing mistreatment related to their sexual orientation or gender
identity. One study \15\ found that, ``one of the most consistent
themes that LGBTQ youth have conveyed in focus groups and qualitative
interviews is a tendency to be harassed, teased, and bullied by staff,
peers, and care providers . . . LGBTQ youth are often excluded and
rejected by their peers and caretakers . . . It is common for LGBTQ
youth in group home and foster home settings to be isolated to their
own bedroom or to their own wing of the house due to fears of placing
them with youth of the same sex.''
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\15\ McCormick, A., Schmidt, K., and Terrazas, S. (2017) LGBTQ
Youth in the Child Welfare System: An Overview of Research,
Practice, and Policy, Journal of Public Child Welfare, 11:1, 27-39,
DOI: 10.1080/15548732.2016.1221368, <a href="https://doi.org/10.1080/15548732.2016.1221368">https://doi.org/10.1080/15548732.2016.1221368</a>.
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Children in foster care who identify as LGBTQI+ are more likely to
be placed in congregate care settings (group homes and residential
care), experience multiple placements, and have adverse experiences in
their placement than non-LGBTQI+-identifying youth.\16\ One study found
that LGBTQI+ youth in foster care are more likely to experience at
least 10 foster care placements, with youth of color who are LGBTQ
reporting the highest rates.\17\ Moreover, older children identifying
as LGBTQI+ in foster care report less satisfaction with their child
welfare experience and had higher rates of negative outcomes, including
emotional distress, greater rates of homelessness, and more
placements.\18\
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\16\ Wilson, Cooper, Kastanis & Nezhad (2014).
\17\ Jeffrey Poirier, Jim Casey Youth Opportunities Initiative:
Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare,
1-26 (2018), <a href="https://www.proquest.com/docview/2056448464">https://www.proquest.com/docview/2056448464</a>.
\18\ Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender
minority disproportionality and disparities in child welfare: A
population-based study. Children and Youth Services Review, 58, 11-
17, and Bianca D.M. Wilson, Angeliki A. Kastanis, Sexual and gender
minority disproportionality and disparities in child welfare: A
population-based study, Children and Youth Services Review, Volume
58, 2015, Pages 11-17, ISSN 0190-7409, <a href="https://doi.org/10.1016/j.childyouth.2015.08.016">https://doi.org/10.1016/j.childyouth.2015.08.016</a>.
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Children in foster care who identify as LGBTQI+ report a perception
of poor treatment by the foster care system more frequently than their
non-LGBTQI+ counterparts, and feel less frequently that they can be
themselves.\19\ Children in foster care who identify as LGBTQI+ are
less likely to report at least ``good'' physical and mental health, and
are less likely to have at least one supportive adult on whom they can
rely for advice or guidance, than their non-LGBTQI+ counterparts in
foster care.\20\
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\19\ Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021).
The Cuyahoga youth count: A report on LGBTQ+ youth's experience in
foster care. Baltimore, MD: The Institute for Innovation &
Implementation, University of Maryland School of Social Work.
<a href="https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf">https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf</a>.
\20\ Jeffrey Poirier, Jim Casey Youth Opportunities Initiative:
Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare,
1-26 (2018), <a href="https://www.proquest.com/docview/2056448464">https://www.proquest.com/docview/2056448464</a>.
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In one study that looked at LGBTQI+ status-related discrimination,
37.7 percent of children in foster care ages 12 through 21 who identify
as LGBTQI+-reported poor treatment connected to their gender
expression, sexual minority status, or transgender status.\21\ The
study also showed that LGBTQI+ foster youth were more likely than their
non-LGBTQI+ foster youth counterparts to have been hospitalized for
emotional reasons or been homeless at some point in their life.\22\
Youth in foster care identifying as LGBTQI+ have also reported more
fights in school and more mental health problems compared with their
non-LGBTQI+ counterparts.\23\
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\21\ Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S.
(2014), Sexual and Gender Minority Youth in Foster care: Assessing
Disproportionality and Disparities in Los Angeles, The Williams
Institute, UCLA School of Law <a href="https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf">https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf</a>.
\22\ Ibid.
\23\ Baams, Laura., Stephen T. Russell, and Bianca D.M. Wilson.
LGBTQ Youth in Unstable Housing and Foster Care, American Academy of
Pediatrics, Volume 143, Issue 3, March 2019. <a href="https://doi.org/10.1542/peds.2017-4211">https://doi.org/10.1542/peds.2017-4211</a>.
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Research has also demonstrated correlations between LGBTQI+
children who spent time in foster care and who later experienced
housing instability, homelessness, and food insecurity.\24\
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\24\ DeChants, J.P., Green, A.E., Price, M.N, & Davis, C.K.
(2021), Homelessness and Housing Instability Among LGBTQ Youth, West
Hollywood, CA, The Trevor Project, <a href="https://www.thetrevorproject.org/wp-content/uploads/2022/02/Trevor-Project-Homelessness-Report.pdf">https://www.thetrevorproject.org/wp-content/uploads/2022/02/Trevor-Project-Homelessness-Report.pdf</a>;
Dworsky, A, 2013. ``The Economic Well-Being of Lesbian, Gay, and
Bisexual Youth Transitioning Out of Foster Care,'' Mathematica
Policy Research Reports Mathematica Policy Research, <a href="https://www.acf.hhs.gov/sites/default/files/documents/opre/opre_lgbt_brief_01_04_2013.pdf">https://www.acf.hhs.gov/sites/default/files/documents/opre/opre_lgbt_brief_01_04_2013.pdf</a>.
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These many findings illustrate the need for child welfare personnel
and foster parents to be educated and trained on their critical role in
the lives of LGBTQI+ youth to avoid re-traumatization and further
victimization of youth.\25\ Implementing strategic foster parent
training and recruitment to meet the well-being needs of children who
are LGBTQI+ is critical.
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\25\ For a review of best practices for child welfare
practitioners, see Matarese, M., Greeno, E. and Betsinger, A.
(2017). Youth with Diverse Sexual Orientation, Gender Identity and
Expression in Child Welfare: A Review of Best Practices. Baltimore,
MD: Institute for Innovation & Implementation, University of
Maryland School of Social Work. <a href="https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf">https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf</a>.
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Mental Health Needs of LGBTQI+ Youth
Research consistently shows that when LGBTQI+ youth experience
supportive environments and services, they experience the same positive
mental health outcomes as other youth.\26\ However, research
demonstrates that LGBTQI+ youth in foster care face significant mental
health disparities that result from experiences of stigma and
discrimination. A 2020 survey found that LGBTQI+ youth in foster care
were 2.6 times more likely to report a past year suicide attempt than
LGBTQI+ youth who were not in foster care, with 35 percent of LGBTQI+
foster youth reporting such an attempt.\27\ Reports of past year
suicide attempt rates were even higher among LGBTQI+ foster youth of
color (38 percent) and non-binary and transgender foster youth (45
percent).\28\ Additionally, two child welfare agency studies showed
that foster youth who identified as LGBTQI+ were more likely to be
hospitalized for emotional reasons compared to non-
[[Page 66755]]
LGBTQI+ foster youth.\29\ Due to the mental health challenges
experienced by LGBTQI+ children in foster care it is essential to place
LGBTQI+ children in placements that can provide the support and
specialized resources necessary to support their health and wellbeing.
We encourage the public to submit additional data, including personal
stories from current and former LGBTQI+ foster children and others,
that speak to the risks to children of placements that are not safe and
appropriate, and the advantages of placements that are.
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\26\ Substance Abuse and Mental Health Services Administration
(SAMHSA): Moving Beyond Change Efforts: Evidence and Action to
Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP22-03-
12-001. Rockville, MD: Center for Substance Abuse Prevention.
Substance Abuse and Mental Health Services Administration, 2023.
<a href="https://store.samhsa.gov/sites/default/files/pep22-03-12-001.pdf">https://store.samhsa.gov/sites/default/files/pep22-03-12-001.pdf</a>.
\27\ The Trevor Project, The Trevor Project Research Brief:
LGBTQ Youth with a History of Foster Care (2021), <a href="https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf">https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf</a>.
\28\ The Trevor Project, The Trevor Project Research Brief:
LGBTQ Youth with a History of Foster Care (2021), <a href="https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf">https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf</a>.
\29\ Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S.
(2014), Sexual and Gender Minority Youth in Foster care: Assessing
Disproportionality and Disparities in Los Angeles. Los Angeles, The
Williams Institute, UCLA School of Law. Also see Institute for
Innovation and Implementation at University of Maryland's School of
Social Work and the National Quality Improvement Center on Tailored
Services, Placement Stability, and Permanency for LGBTQ2S Children
and Youth in Foster Care (2021), The Cuyahoga Youth Count: A Report
on LGBTQ+ Youth Experience in Foster Care, <a href="https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf">https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf</a>.
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One area of particular concern for the mental health of LGBTQI+
youth in foster care may be the possible exposure to so-called
``conversion therapy.'' Efforts to change or suppress a child's sexual
orientation, gender identity, or gender expression are not supported by
credible evidence and have been rejected as harmful by the American
Academy of Child and Adolescent Psychiatry, the American Academy of
Pediatrics, the American Psychiatric Association, the American
Psychological Association, and the National Association of Social
Workers, among others.\30\ The American Psychological Association (APA)
has concluded that any behavioral health or gender identity change
effort that attempts to change an individual's gender identity or
expression is inappropriate.\31\ After reviewing scientific evidence on
gender identity change efforts, harm, affirmative treatments, and
professional practice guidelines, the APA has affirmed gender identity
change efforts are associated with reported harm, and the APA opposes
gender identity change efforts because of their association with
harm.\32\ Likewise, according to the APA sexual orientation change
efforts are ``coercive, can be harmful, and should not be part of
behavioral health treatment.'' \33\
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\30\ Substance Abuse and Mental Health Services Administration,
FAQs About Finding LGBTQI+ Inclusive Providers. <a href="https://www.samhsa.gov/behavioral-health-equity/lgbtqi/faqs">https://www.samhsa.gov/behavioral-health-equity/lgbtqi/faqs</a>.
\31\ American Psychological Association, APA Resolution of
Gender Identity Change Efforts, February 2021, <a href="https://www.apa.org/about/policy/resolution-gender-identity-change-efforts.pdf">https://www.apa.org/about/policy/resolution-gender-identity-change-efforts.pdf</a>.
\32\ Ibid.
\33\ American Psychological Association, APA Resolution on
Sexual Orientation Change Efforts, February 2021, <a href="https://www.apa.org/about/policy/resolution-sexual-orientation-change-efforts.pdf">https://www.apa.org/about/policy/resolution-sexual-orientation-change-efforts.pdf</a>.
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Further, evidence from qualitative studies, listening sessions, and
Congressional testimony makes clear that many LGBTQI+ foster youth do
not currently receive placements or services that are safe and
appropriate, as required by statute.\34\
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\34\ For examples, see Charles Gallo testimony before the Ways
and Means Committee Worker and Family Support Subcommittee Hearing
on ``Making a Difference for Families and Foster Youth,'' May 12,
2021. <a href="https://www.congress.gov/117/meeting/house/112622/witnesses/HHRG-117-WM03-Wstate-Charles-GalloW-20210512.pdf">https://www.congress.gov/117/meeting/house/112622/witnesses/HHRG-117-WM03-Wstate-Charles-GalloW-20210512.pdf</a>, Creating Safer
Spaces for Youth who are LGBTQ in Broward County, Florida:
Collecting SOGIE Data for Lice-Coaching Services. Vol. 96, No. 1,
Special Issue: Sexual Orientation, Gender Identity/Expression, and
Child Welfare (First of two issues) (2018), pp. 27-52 (26 pages)
<a href="https://www.jstor.org/stable/48628034">https://www.jstor.org/stable/48628034</a>, Mountz, S., Capous-Desyllas,
M., & Pourciau, E. (2018). `Because we're fighting to be ourselves:'
voices from former foster youth who are transgender and gender
expansive. Child Welfare, Suppl.Special Issue: Sexual Orientation,
Gender Identity/Expression, and Child Welfare, 96(1), 103-125.
Retrieved from <a href="https://www.proquest.com/scholarly-journals/because-were-fighting-be-ourselves-voices-former/docview/2056448509/se-2">https://www.proquest.com/scholarly-journals/because-were-fighting-be-ourselves-voices-former/docview/2056448509/se-2</a>.
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Current Approaches for Meeting the Needs of LGBTQI+ Children in Foster
Care
Current approaches for meeting the needs of LGBTQI+ children vary
across states and tribes. Some agencies use, or are working towards
implementing, child welfare practice models that address the specific
needs of LGBTQI+ children, in line with existing Federal statutory
requirements applicable to all children in foster care. In 2023, the
Child Welfare Information Gateway issued Protecting the Rights and
Providing Appropriate Services to LGBTQI+ Youth in Out-of-Home Care
(the Report).\35\ The report provides a review of state laws,
regulations, and policies related to reducing the negative experiences
of any child who identifies as LGBTQI+, including laws and policies
that support a child's ability to be safe and free from discrimination;
have access to needed care and services; and be placed in safe and
appropriate placement settings with caregivers who have received
appropriate training. The Report found that 22 states and the District
of Columbia require agencies to provide youth who identify as LGBTQI+
with services and supports that are tailored to meet the specific needs
of an LGBTQI+ child, such as providing clothing and hygiene products
and referring to the child by the name and pronouns that align with
their gender identity.\36\ Eight states and the District of Columbia
offer developmentally appropriate case management that helps child
welfare workers support LGBTQI+ youth.\37\ Fifteen states and the
District of Columbia require training on LGBTQI+ issues for foster
caregivers and related staff, including on how to communicate
effectively and professionally with youth who identify as LGBTQI+, and
education on current social science research and common risk factors
for LGBTQI+ youth experiencing various negative outcomes.\38\
---------------------------------------------------------------------------
\35\ Child Welfare Information Gateway, Protecting the Rights
and Providing Appropriate Services to LGBTQIA2S+ Youth in Out-of-
Home Care, 2023, <a href="https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/LGBTyouth/">https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/LGBTyouth/</a>.
\36\ Ibid.
\37\ Ibid.
\38\ Ibid.
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However, the Report also demonstrates that a majority of agencies
do not have laws, regulations, or policies to make appropriate services
and supports, or safe and appropriate placements, available to a child
in foster care who identifies as LGBTQI+. Without such laws or
policies, agencies may not adequately meet statutory requirements that
guarantee LGBTQI+ youth in foster care face, like all foster youth, a
safe and appropriate placement. In March 2022, ACF published
Information Memorandum (IM) ACYF-CB-IM-22-01 which included suggestions
on how agencies could best provide services and supports to each child
who identifies as LGBTQI+ who is at risk of entering or is in foster
care.\39\ ACF is proposing this NPRM to address the extensively
documented risk factors and adverse outcomes that children in foster
care who identify as LGBTQI+ experience.
---------------------------------------------------------------------------
\39\ Children's Bureau, Guidance for Title IV-B and IV-E
Agencies When Serving LGBTQI+ Children and Youth, March 2, 2022,
<a href="https://www.acf.hhs.gov/cb/policy-guidance/im-22-01">https://www.acf.hhs.gov/cb/policy-guidance/im-22-01</a>.
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III. Overview of Proposal
To support states and tribes in complying with Federal laws that
require that all children in foster care receive safe and proper care,
in this NPRM, ACF is proposing to require that agencies implement
specific processes and requirements to ensure children in foster care
who identity as LGBTQI+ are provided with placements the agency
designates as safe and appropriate for an LGBTQI+ child, and with
services that are necessary to support their health and wellbeing.
These requirements clarify how title IV-E/IV-B agencies must meet IV-E
and IV-B statutory requirements, including for the case review system
and case plan, to appropriately serve children in foster care who
identify as LGBTQI+. While
[[Page 66756]]
the general requirements for the case review system are not new, ACF is
proposing to prescribe how agencies must implement the requirements to
provide placements and services to children in foster care who identity
as LGBTQI+.
Under this proposed rule, agencies must ensure that a safe and
appropriate placement is available for and provided to any child in
foster care who identifies as LGBTQI+ and requests such a placement.
The NPRM proposes to require agencies to ensure that the totality of
their child welfare system includes sufficient placements for LGBTQI+
children that meet these standards, but would not require that every
provider become designated as a safe and appropriate placement for
LGBTQI+ children.\40\ To be considered as a safe and appropriate
placement for a LGBTQI+ child means the provider with whom the agency
places the child will establish an environment free of hostility,
mistreatment, or abuse based on the child's LGBTQI+ status, the
provider is trained to be prepared with the appropriate knowledge and
skills to provide for the needs of the child related to the child's
self-identified sexual orientation, gender identity, and gender
expression,\41\ and the provider will facilitate the child's access to
age-appropriate resources, services, and activities that support their
health and well-being (671(a)(24)) if the child wishes to access those
resources, services, and activities. The proposed rule also includes
requirements to notify children about the availability of these
placements, the process to request such a placement, and the process to
report placement concerns. The proposed requirements would also
prohibit retaliation against a child who identifies as or is perceived
to be LGBTQI+, require specific steps before the placement of
transgender, intersex, and gender non-conforming children in sex-
segregated child-care institutions (CCIs), require specific training
for IV-E/IV-B agency caseworkers and supervisors ton how to
appropriately serve LGBTQI+ youth and on how to implement the
procedural requirements of this proposed rule, The proposed
requirements would also require IV-E/IV-B agencies to ensure that
agency contractors and subrecipients, as well as any placement
providers who do not seek designation as safe and appropriate
placements, are informed of the procedural requirements of the proposed
rule. These proposed requirements aim to fulfill existing case review
system requirements and other statutory requirements that require that
all children in foster care are appropriately placed in a safe setting
consistent with the best interest and special needs of each child. The
details of our proposals are described further in the section by
section of the preamble below.
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\40\ As described in the Section-by-Section Discussion of
Proposed Regulatory Changes, for example, nothing in this proposed
rule will limit, preclude, or deny any religious provider's ability
to participate in the foster care system, as religious providers who
have sincerely held religious beliefs that conflict with the
policies of this proposed rule are not required to offer such
placements for LGBTQI+ children.
\41\ Note that only providers seeking to be designated as safe
and appropriate providers for LGBTQI+ children would be required to
complete specific training to provide for the needs of the child
related to the child's self-identified sexual orientation, gender
identity, and gender expression. Training and notification
requirements proposed for all other contractors and providers are
outlined in the Section-by-Section Discussion of Proposed Regulatory
Changes.
---------------------------------------------------------------------------
Furthermore, ACF is proposing to modify the current regulations in
Sec. 1355.34 to monitor a state agency's compliance with the
requirement in proposed Sec. 1355.22(a)(1) through the Child and
Family Service Reviews (CFSR). The CFSRs are a formal monitoring
protocol in which the state's efforts to comply with title IV-E and IV-
B program requirements are assessed at the case and systems level. No
tribal title IV-E agency is subject to CFSRs because none has a
sufficient number of children in foster care and children receiving in-
home services for ACF to apply the onsite CFSR case sampling
procedures.
Upon enactment of a final rule, ACF proposes to monitor both state
and tribal title IV-E/IV-B agency's plan compliance with the proposed
requirements of Sec. 1355.22(a) through (c) using the existing partial
review process outlined in Sec. 1355.34 because these requirements
must be included in the state or tribe's title IV-E plan that ACF must
review and approve. Therefore, no regulatory changes to the partial
review process are necessary. If ACF becomes aware of a potential non-
compliance issue with Sec. 1355.22, it will initiate the partial
review process. Evidence of non-conformity identified through the
partial review process may result in the state/tribal title IV-E/IV-B
agency entering into a program improvement plan. The program
improvement plan will be developed on a case-by-case basis by ACF and
the agency will consider the extent of noncompliance. If the title IV-
E/IV-B agency remains out of compliance, the agency will be subject to
a penalty related to the extent of the noncompliance.
Equity Impact
This NPRM is consistent with the Administration's priority of
advancing equity for LGBTQI+ individuals as well as those historically
underserved and adversely affected by persistent poverty and inequality
(see Advancing Racial Equity and Support for Underserved Communities
Through the Federal Government (Executive Order (E.O.) 13985), issued
Jan. 20, 2021; Advancing Equality for Lesbian, Gay, Bisexual,
Transgender, Queer, and Intersex Individuals (E.O. 14075), issued June
15, 2022). E.O. 14075 laid out objectives to reduce disparities that
LGBTQI+ children face, including in foster care. LGBTQI+ children often
have greater service needs, are at an increased risk for poor outcomes,
are more likely to be placed in group settings and experience more
placements, including those that may harm their well-being by
undermining or suppressing their identity. By requiring agencies to
ensure that safe and appropriate placements are available for and
provided to LGBTQI+ children, we will work with agencies to ensure
compliance with statutory requirements for all children in foster care
to have a safe and appropriate placement that supports their health and
well-being.
IV. Section-by-Section Discussion of Proposed Regulatory Changes
Required Protections for LGBTQI+ Children in Foster Care To Receive
Safe and Appropriate Placements
Section 1355.22
Title IV-E establishes case plan requirements in sections
471(a)(16), 475(1) and 475(5)(A) and (D) of the Act and 45 CFR
1356.21(g), assuring that a child in foster care receives safe and
proper care consistent with the best interest and special needs of the
child, and that the case plan provide a discussion of the safety and
appropriateness of the child's placement. To ensure that LGBTQI+ youth
receive safe and proper care consistent with their best interests and
special needs, in paragraph (a), ACF proposes procedural requirements
that the title IV-E/IV-B agency must meet for each child in foster care
who self-identifies as LGBTQI+ or who has entered the child welfare
system, in whole or in part, because of familial conflict related to
their LGBTQI+ identity.
ACF proposes to require in paragraph (a)(1) that the title IV-E/IV-
B agency ensure a safe and appropriate placement is available for, and
provided to, any
[[Page 66757]]
child in foster care who identifies as LGBTQI+.
Requirements of a Safe and Appropriate Placement
For a placement to be considered safe and appropriate for a child
who identifies as LGBTQI+, we propose to require that the title IV-E/
IV-B agency make available and ensure that a child is placed with a
foster care provider (e.g., foster family home, child care institution)
who: (1) will establish an environment free of hostility, mistreatment,
or abuse based on the child's LGBTQI+ status, (2) is trained to be
prepared with the appropriate knowledge and skills to provide for the
needs of the child related to the child's self-identified sexual
orientation, gender identity, and gender expression, and (3) will
facilitate the child's access to age-appropriate resources, services,
and activities that support their health and well-being.
1. A Placement That Is Free From Hostility, Mistreatment, or Abuse
Title IV-E provides that each child in foster care must receive a
placement that is safe. In paragraph (a)(1)(i) we propose that the
agency must place the child with a placement provider (e.g., foster
family home, child care institution) who will establish an environment
free from hostility, mistreatment, or abuse based on the child's
LGBTQI+ identity and status. In the background section of this proposed
rule, we explain the significant body of evidence which demonstrates
that when LGBTQI+ children face hostility, stigma, or rejection related
to their sexual orientation or gender identity they are put at
significant increased risk of adverse mental health outcomes and
attempt suicide at higher rates.\42\ For example, under the proposed
requirement, a provider who used derogatory language or slurs about a
child's LGBTQI+ identity would not be a safe and appropriate placement.
Similarly, a provider who attempted to undermine, suppress, or change
the sexual orientation, gender identity, or gender expression of a
child, including through the use of so-called ``conversion therapy''
would not be a safe and appropriate placement As explained by the
Substance Abuse and Mental Health Services Administration (SAMHSA),
efforts that attempt to suppress or change a child's sexual orientation
or gender identity ``are inappropriate, ineffective, and harmful
practices that should not be provided to children and adolescents.''
\43\ In meeting the proposed requirement, the agency must not place
LGBTQI+ identifying children with a provider who unreasonably limits or
denies a child's ability to express their sexual orientation, gender
identity, or gender expression. For example, to be considered a safe
and appropriate placement, a provider is expected to utilize the
child's identified pronouns, chosen name, and allow the child to dress
in an age-appropriate manner that the child believes reflects their
self-identified gender identity and expression.
---------------------------------------------------------------------------
\42\ See Substance Abuse and Mental Health Services
Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and
Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No.
PEP2203-12-001. Rockville, MD: Center for Substance Abuse
Prevention. Substance Abuse and Mental Health Services
Administration, 2023.
\43\ Substance Abuse and Mental Health Services Administration
(SAMHSA): Moving Beyond Change Efforts: Evidence and Action to
Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP22-03-
12-001. Rockville, MD: Center for Substance Abuse Prevention.
Substance Abuse and Mental Health Services Administration, 2023.)
---------------------------------------------------------------------------
2. A Placement With a Provider Trained To Provide for the Needs of an
LGBTQI+ Child
For a placement to be considered safe and appropriate for children
who identify as LGBTQI+, we propose in paragraph (a)(1)(ii) that the
agency must place the child with a placement provider who is trained to
be prepared with the appropriate knowledge and skills to provide for
the needs of the child related to the child's self-identified sexual
orientation, gender identity, and gender expression. This includes
foster family home providers and staff who work in child-care
institutions (CCIs) as defined in 45 CFR 1355.20.\44\
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\44\ As noted throughout this document, the proposed rule would
not require that all providers seek designation as a safe and
appropriate placement for LGBTQI+ children, but instead requires the
state or tribal title IV-E/IV-B agency to ensure that the totality
of its child welfare system provides safe and appropriate placements
for all LGBTQI+ children.
---------------------------------------------------------------------------
Title IV-E requires the agency to certify that foster parents are
``prepared adequately with the appropriate knowledge and skills to
provide for the needs of the child [and] that the preparation will be
continued, as necessary, after the placement of the child''
(471(a)(24)). These requirements are important for protecting the
safety and mental health of the child. As explained in studies cited
above and SAMHSA's 2023 report Moving Beyond Change Efforts: Evidence
and Action to Support and Affirm LGBTQI+ Youth, research demonstrates
that when a LGBTQI+ child has their identity respected and supported by
the caregivers in their life, their risks of attempted suicide decrease
dramatically.
Some states already provide training of practices to serve LGBTQI+
children, as noted on the Child Welfare Information Gateway's State
Statutes Search.\45\ Many agencies have not yet incorporated provider
training addressing the needs of a child who identifies as LGBTQI+ into
their curriculum. We anticipate that all title IVE/IVB agencies will
need to develop or revise their training curriculum to meet the
proposed provider training requirements in this NPRM.
---------------------------------------------------------------------------
\45\ Child Welfare Information Gateway, State Statute Search.
<a href="https://www.childwelfare.gov/topics/systemwide/laws-policies/state/">https://www.childwelfare.gov/topics/systemwide/laws-policies/state/</a>.
---------------------------------------------------------------------------
We are not proposing a specific training curriculum that agencies
would need to use to train foster care providers (i.e., foster family
homes and child care institutions). However, agencies would need to
ensure that the training curriculum adequately prepares foster family
home and child-care institution providers to meet the best interests
and special needs of an LGBTQI+ child. For a training to adequately
prepare a provider to meet the best interests and special needs of an
LGBTQI+ child, it would need to be a training that reflects evidence,
studies, and research about the impacts of rejection, discrimination,
and stigma on the safety and wellbeing of LGBTQI+ youth, and provides
information for providers about practices that promote the safety and
wellbeing of LGBTQI+ youth. HHS seeks comments on how ACF can ensure
these training curriculums for foster care providers are of high
quality.
We encourage agencies to consider using or adapting foster care
provider training already established by entities with specialized
knowledge on this topic, such as the National SOGIE Center, a
collaborative led by Innovations Institute at the University of
Connecticut School of Social Work and funded by the ACF Children's
Bureau to improve permanency, stability, and well-being for this
population.\46\ The Child Welfare Information Gateway has also issued
publications providing guidance on how to create a welcoming and safe
placement for children in foster care who identify as LGBTQI+,
[[Page 66758]]
including Supporting LGBTQ+ Youth: A Guide for Foster Parents.\47\
---------------------------------------------------------------------------
\46\ See National SOGIE Center, Trainings, <a href="https://sogiecenter.org/offerings/training/">https://sogiecenter.org/offerings/training/</a>. National SOGIE Center trainings
include trainings for agency facilitators, such as All Children--All
Families Training of Facilitators. Also see the San Francisco State
University Family Acceptance Project, <a href="https://familyproject.sfsu.edu/">https://familyproject.sfsu.edu/</a>.
\47\ Child Welfare Information Gateway (2021). Supporting LGBTQ+
youth: A guide for foster parents. U.S. Department of Health and
Human Services, Administration for Children and Families, Children's
Bureau. <a href="https://www.childwelfare.gov/pubPDFs/LGBTQyouth.pdf">https://www.childwelfare.gov/pubPDFs/LGBTQyouth.pdf</a>.
---------------------------------------------------------------------------
As explained in studies cited above and SAMHSA's 2023 Moving Beyond
Change Efforts: Evidence and Action to Support And Affirm LGBTQI+
Youth, research demonstrates that even just one supportive adult can
positively impact the mental health of LGBTQI+ youth. This support can
reduce negative mental health outcomes and risk of suicide. The
placement provider can and should be a supportive adult for the
children in their care. Moreover, the SAMHSA report also found that
``family or caregiver, peer, school, and community support for youth of
diverse sexual orientation and/or gender identity promotes better
mental health and fewer negative outcomes and can lead to positive
development and emotional resilience.'' \48\ These findings demonstrate
how a supportive placement can promote positive outcomes, while also
illustrating how a lack of support on the part of an adult caregiver
does not.
3. A Placement That Will Facilitate Access to Age-Appropriate
Resources, Services, and Activities
The title IV-E/IV-B case review system requires that the agency
have procedures for assuring that each child has a case plan designed
to achieve placements in the most appropriate setting available
consistent with the best interests and special needs of the child
(422(b), 471(a)(16), 475(1)(B), and 475(5)). To ensure that children
have their special needs met, we propose in paragraph (a)(1)(ii)(B)
that the agency must place the LGBTQI+ child with a placement provider
will facilitate the child's access to age-appropriate resources,
services, and activities that support the child's health and wellbeing,
which may include services and supports related to their sexual
orientation or gender identity. This proposal will ensure specifically
that a child who identifies as LGBTQI+ will have access to a range of
services and activities that addresses their specific health and
wellbeing needs. These may include, but are not limited to,
facilitating access to behavioral health supports respectful of their
LGBTQI+ identity, interacting with LGBTQI+ mentors and peers, joining
and participating in affinity groups, and connecting the child to
available LGBTQI+ supportive resources and events, either in person or
virtually depending on local availability. A significant body of
research demonstrates that these services are essential to support the
child's safe and appropriate placement, and to support the emotional,
developmental, and behavioral health needs of LGBTQI+ children in
foster care.\49\ As such, a safe and appropriate provider for an
LGBTQI+ child must not discourage or prevent the child who identifies
as LGTBQI+ from receiving age-appropriate services and supports that
support their health and well-being related to the child's self-
identified sexual orientation, gender identity, or gender expression.
HHS understands that some IV-E/IV-B agencies will have more limited
access to age-appropriate resources, services, and activities due to
fewer service providers able to provide LGBTQI+ supportive services.
HHS seeks comments on how ACF can best support agencies, including
those located in rural and other resource limited areas, in fulfilling
this requirement.
---------------------------------------------------------------------------
\49\ See Substance Abuse and Mental Health Services
Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and
Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No.
PEP22-03-12-001. Rockville, MD: Center for Substance Abuse
Prevention. Substance Abuse and Mental Health Services
Administration, 2023.
---------------------------------------------------------------------------
Prohibition of Disclosure of Sensitive Information
Title IV-E/IV-B agencies are prohibited from disclosing information
concerning foster children for any purpose except for those
specifically authorized by statute section 471(a)(8). Information about
a foster child's LGBTQI+ identity, as well as any other information in
their foster care case file, is protected by these confidentiality
requirements. Foster children's personal information may only be
disclosed for specific authorized purposes, which are, in paraphrase:
the administration of the title IV-E plan and that of other Federal
assistance programs; any investigation, prosecution, or audit conducted
in connection with any of those programs; and reporting child abuse and
neglect to appropriate authorities. Under ACF regulations and policy,
information that the IV-E/IV-B agency discloses for those allowable
purposes may not be redisclosed by recipients unless the redisclosure
is also for one of the enumerated allowable purposes. 45 CFR 205.50;
Child Welfare Policy Manual 8.4E.
Notification and Requests for Safe and Appropriate Placements
In paragraph (a)(2) ACF proposes to require that the title IV-E/IV-
B agency establish a process by which a child identifying as LGBTQI+
may request a safe and appropriate placement as described in paragraph
(a)(1). This will help the agency ensure that plan requirements
regarding placements are fulfilled, consistent with the child's best
interest and special needs. In paragraph (a)(2)(i), we propose that the
agency's process include a notice to specified children of the
availability of these placements and how to request them. Specifically,
at a minimum, the agency must provide notice to a child aged 14 and
over, and a child under age 14 if the child was removed, either in
whole or in part, as a result of familial conflict about their actual
or perceived LGBTQI+ identity, or if the child's LGBTQI+ identity is
otherwise known to the agency. This proposed requirement is imposed on
the state or tribal agency and is not a requirement of providers. As
discussed further on in the proposed rule, this proposal gives states
and tribes flexibility to determine how to work with providers to
disseminate such information.
We are proposing the agency provide notification to all children
aged 14 and older because the existing case plan requirement in section
475(1)(B) of the Act already requires that each child's case plan
``shall be developed in consultation with the child'' for children 14
and older. Nothing in this proposed rule would preclude agencies from
notifying children earlier of the availability of safe and appropriate
placements.
In paragraph (a)(2)(ii), ACF proposes that the notice must be
provided in an age-appropriate manner, both verbally and in writing. We
propose these two communication forms to provide the child with
different opportunities and ways to understand that placements
described in paragraph (a)(1) are available and how they can be
requested. For example, having a verbal conversation provides a ready
opportunity for a child to ask questions to their caseworker as needed.
In contrast, written information allows the agency to provide children
with uniform, consistent information that a child or youth can review
at their convenience. The agency process for a child to request a
placement defined in proposed paragraph (a)(1) may vary by state,
tribe, and/or locality. Examples include a process for the child to:
call or text the agency caseworker/other agency personnel, inform
agency
[[Page 66759]]
personnel in person, or email the agency caseworker/other agency
personnel. Other options may include establishing private, secure
accounts on a social media platform or smart phone application that
could be used by children in foster care and accessed by designated
agency caseworkers or agency personnel. In paragraph (a)(2)(iii), we
propose that the notice must inform the child of how they may request a
safe and appropriate placement.
Once the child's LGBTQI+ identity is known to the title IV-E/IV-B
agency, it is the responsibility of the agency to provide the required
information to the child, while protecting the privacy and
confidentiality of the child. Regardless of the method used, agencies
must ensure the privacy and confidentiality of any information shared
by a child who is seeking a safe and appropriate placement.
Reporting and Responding to Concerns About Placements That Are Not Safe
or Appropriate
In paragraph (a)(3), ACF proposes to require the title IV-E/IV-B
agency to implement a process for children identifying as LGBTQI+ to
report concerns about any placements that do not meet the requirements
of paragraph (a)(1). We are proposing this requirement to ensure that
agencies meet case plan requirements to assure that the child receives
safe and appropriate care.
In paragraph (a)(3)(i), we propose that the agency provide a notice
of the availability of this process to all children who meet the
requirements of paragraphs (a)(2)(i)(A) and (B). Specifically, we
propose that the agency provide the notice to all children in foster
care age 14 and over, and a child under age 14 if the child was
removed, either in whole or in part, as a result of familial conflict
about their actual or perceived LGBTQI+ identity, or if the child's
LGBTQI+ identity is otherwise known to the agency. Once the child's
LGBTQI+ identity is known to the title IV-E/IV-B agency, it is the
responsibility of the agency to provide the information about the
agency's process to the child.
The proposed agency process for children to report concerns about
their placement may vary by state, tribe, and/or locality. Examples
include a process for the child to: call or text the agency caseworker/
other agency personnel, inform agency personnel in person, call a
hotline, or email the agency caseworker/other agency personnel. Other
options may include establishing private, secure accounts on a social
media platform or smart phone application that could be used by
children and accessed by designated agency caseworkers or agency
personnel. Regardless of the method used, agencies must ensure the
privacy and confidentiality of any information shared by a child who is
seeking a safe and appropriate placement. In paragraph (a)(3)(ii), ACF
proposes that the agency must provide notice to the child explaining
how to report concerns about placements to the child in an age-
appropriate manner, both verbally and in writing. We propose these two
communication forms to provide the child with different opportunities
and ways to understand the agency's process for the child to make a
report about their placement concerns not meeting paragraph (a)(1). For
example, having a verbal conversation provides a ready opportunity for
a child to ask questions to their caseworker as needed. In contrast,
written information allows the agency to provide children with uniform,
consistent information that a child or youth can review at their
convenience.
We propose in paragraph (a)(3)(iii) that the agency respond
promptly to the child's reported concerns. The title IV-E/IV-B agency
must notify all children who meet the requirements of paragraph
(a)(2)(i) of the availability of this process in an age-appropriate
manner, both verbally and in writing and in a manner consistent with
the agency's timeframes for investigating child abuse and neglect
reports.
ACF has reviewed state agencies policies and practices about
investigating child abuse and neglect in order to provide context for
this proposal and identified existing state agency requirements for
handling such reports and responding to reports with different levels
of urgency.\50\ We propose that the agency determine the timeframe for
responding promptly to a child's report by requiring the agency to
align this proposed process with existing timelines for agency child
abuse and neglect reporting and investigating procedures. All states
are required to initiate a child abuse and neglect investigation in a
timely manner, which is generally defined as within 72 hours. However,
when there is reasonable cause to believe that a child is in imminent
danger, most agencies require investigations to be initiated
immediately, in as little as two hours and not longer than 24 hours
after the report is made. Further, in many agencies, the investigation
must begin within 12 hours of a report if serious harm is indicated. In
certain cases, we anticipate that a report from a LGBTQI+ youth that
they feel their placement is not safe or appropriate should merit a
response of great urgency from the agency. For example, given the
extensive evidence that LGBTQI+ youth who face bullying,
discrimination, or harassment related to their sexual orientation or
gender identity are at significantly increased risk of violence or
self-harm, we anticipate that agencies should respond with urgency when
a LGBTQI+ child raises concerns that a placement that is not safe and
appropriate.
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\50\ Child Welfare Information Gateway, State Statute Search.
<a href="https://www.childwelfare.gov/topics/systemwide/laws-policies/state/">https://www.childwelfare.gov/topics/systemwide/laws-policies/state/</a>.
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ACF solicits public comment on whether and how best to define
``promptly'' as applied to this provision, understanding that the
circumstances of the child's report may dictate the timeframes and
immediacy of the action the IV-E/IV-B agency must take in responding to
the report.
Protection From Retaliation
In paragraph (a)(4), ACF proposes to require that the title IV-E/
IV-B agency have a procedure to ensure that no child in foster care
experiences retaliation when the child has disclosed their LGBTQI+
identity, is otherwise reported or perceived to have an LGBTQI+
identity, has requested a safe and appropriate placement, or has
reported concerns that the placement is not meeting the requirements of
paragraph (a)(1). Retaliation in this context can be committed by title
IV-E/IV-B agency personnel, the agency's contractors, or foster care
providers. This proposed requirement will assist agencies in ensuring
that a child in foster care receives safe and appropriate care
consistent with the best interest and special needs of the child. The
term retaliation means imposing negative consequences on the child
because of the child's disclosure of their LGBTQI+ identity, perceived
LGBTQI+ identity, request, or report. This may include such things as
unwarranted placement changes (including unwarranted placement in
congregate care rather than in family-like settings), restriction of
access to LGBTQI+ peers or age-appropriate materials, required
participation in efforts to degrade, disparage or change the child's
sexual orientation or gender identity, disclosing the child's LGBTQI+
identity in ways that cause harm or risk the privacy of the child, or
other activities that stigmatize a child's LGBTQI+ identity.
ACF is proposing this requirement because we are concerned about
the
[[Page 66760]]
potential for a child who identifies or is perceived as LGBTQI+ to be
subjected to negative consequences in response to disclosure of their
actual or perceived LGBTQI+ identity.
The agency must ensure that children who disclose their identity,
are perceived to have an LGBTQI+ identity, report a problem with a
placement, or request a safe and appropriate placement are not
subjected to any attempt to undermine, suppress, or change their sexual
orientation, gender identity, or gender expression, efforts sometimes
referred to as so-called ``conversion therapy.'' This includes ensuring
the privacy and confidentiality of any information shared during these
processes. As described in the background section of this proposed
rule, these practices put LGBTQI+ youth at significant risk and are
never safe or appropriate.
Access to Supportive and Age-Appropriate Services
In paragraph (a)(5), ACF proposes to require that the title IV-E/
IV-B agency ensure that children who identify as LGBTQI+ have access to
age-appropriate services that support their needs related to their
sexual orientation and gender identity or expression This includes
clinically appropriate mental and behavioral health care supportive of
their sexual orientation and gender identity and expression as needed.
Clinically appropriate services means that they are based on current
evidence and generally accepted medical standards of care.
Studies show that LGBTQI+ children have higher rates of suicidality
than their heterosexual peers.\51\ Two recent child welfare agency
studies showed that LGBTQI+ youth in foster care were more likely to be
hospitalized for emotional reasons compared to non-LGBTQI+ youth.\52\
Being in foster care also appears to be an independent risk factor for
LGBTQI+ youth: a 2020 survey found that ``LGBTQ youth who reported
having been in foster care had three times greater odds of reporting a
past-year suicide attempt compared to those who had not.'' \53\
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\51\ The Trevor Project (2021), Facts About LGBTQ Youth Suicide.
<a href="https://www.thetrevorproject.org/resources/article/facts-about-lgbtq-youth-suicide/">https://www.thetrevorproject.org/resources/article/facts-about-lgbtq-youth-suicide/</a>.
\52\ Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S.
(2014). Sexual and Gender Minority Youth in Foster care: Assessing
Disproportionality and Disparities in Los Angeles. Los Angeles: The
Williams Institute, UCLA School of Law. <a href="https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf">https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf</a>.
1 Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021). The
Cuyahoga youth count: A report on LGBTQ+ youth's experience in
foster care. Baltimore, MD: The Institute for Innovation &
Implementation, University of Maryland School of Social Work.
<a href="https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf">https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf</a>.
\53\ The Trevor Project (2021) The Trevor Project Research
Brief: LGBTQ Youth with a History of Foster Care <a href="https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf">https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf</a>.
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The proposal to ensure that children who identify as LGBTQI+ have
access to services that are tailored to their specific needs, including
needs related to their LGBTQI+ identity is supported by the existing
case plan requirements as defined in section 475(1)(B) of the Act,
specifically, the section requiring that each child have a plan ``for
assuring that . . . services are provided to the parents, child, and
foster parents in order to . . . address the needs of the child while
in foster care, including a discussion of the appropriateness of the
services that have been provided to the child under the plan.'' The
proposal also provides guidance to states and tribes regarding how ACF
interprets, for LGBTQI+ children, the IV-E state plan requirement that
agencies develop and implement standards to ensure that children in
foster care placements are provided quality services that protect their
safety and health. Section 471(a)(22).
ACF understands that some states also have few services providers
able to provide LGBTQI+ supportive services. ACF seeks comments on how
ACF can best support agencies, including those located in rural and
other resource limited areas, in fulfilling this requirement.
Placement Requirements for Transgender, Gender Non-Conforming, and
Intersex Children
The title IV-E statute provides that each child must have a case
plan designed to achieve placements in the most appropriate setting
available consistent with the best interests and special needs of the
child (422(b), 471(a)(16), 475(1)(B), and 475(5)). To meet these
statutory requirements, in paragraph (b), ACF proposes to require when
the title IV-E/IV-B agency is placing a transgender, gender non-
conforming, and intersex child with a safe and appropriate provider
that is a sex segregated child-care institution, that they must make
placements consistent with the child's self-identified gender identity.
Evidence demonstrates that when transgender, intersex, or gender non-
conforming youth have their gender identity respected it reduces the
risk of adverse mental health outcomes and attempted suicide, and
provides benefits such as enhancing a child's sense of safety and
overall well-being, supporting their sense of self and positively
impacting their mental health. Conversely, when transgender \54\ gender
non-confirming youth are forced to use sex-segregated spaces that do
not align with their gender identity it can exacerbate the
psychological distress related to gender dysphoria.\55\ The IV-E/IV-B
agency must consult with the transgender, gender non-conforming, or
intersex child to provide an opportunity to voice any concerns related
to placement when the agency is considering a placement in such a
facility. when the agency is considering a placement in such a
facility.
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\54\ See Substance Abuse and Mental Health Services
Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and
Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No.
PEP2203-12-001. Rockville, MD: Center for Substance Abuse
Prevention. Substance Abuse and Mental Health Services
Administration, 2023.
\55\ Ibid.
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Training and Informational Requirements
In paragraph (c), ACF proposes to require that title IV-E/IV-B
agencies ensure that their employees who have responsibility for
placing children in foster care, making foster care placement
decisions, or providing services are trained to implement the
procedural requirements of this proposed rule and to appropriately
serve LGBTQI+ children. Such training should adequately prepare
caseworkers and supervisors with the appropriate knowledge and skills
to address the needs of foster children on their caseload related to
sexual orientation, gender identity, and expression. The training
should also ensure that all agency caseworkers and supervisors are
prepared to implement and fulfill the requirements of this proposed
rule. For a training to adequately prepare agency staff to meet the
best interests and special needs of an LGBTQI+ child, it would need to
be a training that reflects evidence, studies, and research about the
impacts of rejection, discrimination, and stigma on the safety and
wellbeing of LGBTQI+ youth, and provides information for agency staff
about practices that promote the safety and wellbeing of LGBTQI+ youth.
This proposed requirement is necessary to ensure that IV-E/IV-B
agencies can properly implement the case plan and case review
requirements of the Act for LGBTQI+ foster children.
In paragraph (c), ACF also proposes to require that title IV-E/IV-B
agencies ensure that all agency contractors and subrecipients who have
responsibility
[[Page 66761]]
for placing children in foster care, making placement decisions, or
providing services are informed of the procedural requirements
necessary to comply with this proposed rule. Similarly, we propose to
require that agencies ensure that all placement providers who have not
chosen to seek designation as safe and appropriate placement providers
for LGBTQI+ foster children are also informed of the procedural
requirements necessary to comply with this proposed rule. As part of
this requirement, agencies would be required to ensure that
contractors, subrecipients, and placement providers are all informed of
the required non-retaliation provisions outlined in paragraph (a)(4).
Ensuring Compliance Through the Child and Family Services Review
ACF proposes to revise the Child and Family Services Review (CFSR)
regulations to make clear that the CFSR process will assess agencies on
their compliance with the requirements of these proposed regulations.
Specifically, we propose to revise Sec. 1355.34(c)(2)(i) to add
``including placements described in Sec. 1355.22(a)(1)'' to the case
review system requirement for provisions to place the child in an
appropriate placement that meets their needs. We also propose to add at
the end of Sec. 1355.34(c)(2)(i) within the parenthetical ``Sec.
1355.22(a)(1))''. Under the current CFSR regulations, the Children's
Bureau reviews how title IV-E agencies ensure the safety and
appropriateness of foster care placements. This proposed amendment will
ensure that the requirements proposed to be added to Sec.
1355.22(a)(1) are included in the CFSRs, and specifically examined
under the case review systemic factor outlined in Sec.
1355.34(c)(2)(i).
In implementing the requirements proposed under this rule, ACF
anticipates that agencies will likely need to produce new
administrative records to monitor and track requests for safe and
appropriate placements and adjudication of those requests. Such
administrative records, including at the case file level, may be
reviewed through the CFSR process. ACF invites public comment on what
further guidance states may need on producing such administrative
records, while protecting the privacy and confidentiality of LGBTQI+
youth.
Severability
For the reasons described above, ACF believes that its authority to
implement each of the provisions in the proposed regulation is well-
supported in law and practice and should be upheld in any legal
challenge. ACF also believes that its exercise of its authority
reflects sound policy. However, in the event that any portion of the
proposed rule is declared invalid, ACF intends that the other
provisions be severable.
Religious Liberty and Other Freedoms
ACF appreciates the vital role that religious providers play in
providing care and services to children in the child welfare system.
ACF values the child welfare services that faith-based organizations
provide, consistent with HHS-wide regulations governing social services
ensuring that religious organizations are eligible on the same basis as
any other organization to participate in child welfare programs
administered with title IV-E and IV-B funds. See 45 CFR 87.3(a). ACF
takes seriously its obligations to comply with the Constitution and
Federal laws that support and protect religious exercise and freedom of
conscience, including the First Amendment and the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. 2000bb et seq., as well as all other
applicable Federal civil rights laws and HHS regulations including 45
CFR part 87 (``Equal Treatment for Faith-Based Organizations''). ACF
will continue to operate the title IV-E and IV-B programs in compliance
with these legal requirements. ACF remains fully committed to
thoroughly considering any organization's assertion that any
obligations imposed upon them that are necessitated by this proposed
rule as finalized conflicts with their rights under those laws.
If a title IV-E/IV-B provider alleges that any obligation that this
proposed rule as finalized requires a state or tribe to impose
substantially burdens the provider's religious exercise, ACF will apply
the test set out by RFRA to determine whether an exemption is required.
Under RFRA, when Federal action substantially burdens an individual or
entity's exercise of religion, the Federal government must afford that
individual or entity an exemption to the rule unless the government can
demonstrate that applying the burden in that particular instance
furthers a compelling governmental interest and is the least
restrictive means of doing so. See 42 U.S.C. 2000bb-1(b). Accordingly,
under RFRA, we first assess whether the particular application of the
rule substantially burdens the provider's exercise of religion. If so,
we assess whether applying the requirement furthers a compelling
interest and whether there are less restrictive alternatives available.
Thus, even if the rule substantially burdens a religious practice, an
exemption would not be required if the burden is necessary to the
advancement of a compelling government interest through the least
restrictive means possible. We will apply RFRA in accordance with the
statutory text and applicable case law.
When drafting this proposed rule, ACF has taken these RFRA
principles into account, and has endeavored to write each provision to
provide states and tribes with the flexibility to implement the
measures without imposing any substantial burdens on providers'
religious exercise that we can reasonably anticipate. Most importantly,
nearly all of the requirements in this proposed rule would be imposed
directly on state and tribal IV-E/IV-B agencies, as opposed to on any
private foster care agency, foster parent, kinship caregiver or other
provider. The only requirement that would be imposed on private
providers by the proposed rule is the requirement to be informed of the
procedural requirements to comply with the proposed rule (including the
required non-retaliation provisions outlined in paragraph (a)(4)). All
other requirements would be responsibilities of the state and tribal
IV-E/IV-B agencies, and ACF believes that these responsibilities have
been drafted in a manner that the IV-E/IV-B agencies can satisfy
without imposing any substantial burden on religious providers that is
reasonably foreseeable.
As the Supreme Court has recently made clear, the First Amendment
protects faith-based entities that provide foster care services. See
Fulton v. City of Philadelphia, 593 U.S. __(2021). Consistent with this
protection, the proposed rule, if adopted, would not require any faith-
based provider to seek designation as a safe and appropriate provider
for LGBTQI+ children as described in this proposed rule if the provider
had sincerely held religious objections to doing so. When drafting the
text, ACF was cognizant that a foster care requirement that precludes a
child welfare provider from participating in the program while adhering
to its religious beliefs might substantially burden religious exercise.
Rather than placing requirements on child welfare providers, this rule
as proposed would require agencies to ensure that their child welfare
networks as a whole include sufficient numbers of providers that are
willing to supply safe and appropriate placements for LGBTQI+ children
so that all children who request such a placement will receive an
appropriate one. To the extent that current networks are insufficient,
the Department believes that IV/B/IV-E
[[Page 66762]]
agencies will be able to meet this requirement through outreach,
training and other supply-building activities to build their provider
networks, and can do so without imposing substantial burdens on
religious exercise of providers. When states and tribes select
organizations to participate in the child welfare program, ACF would
recommend that states and tribes do not adopt selection criteria that
adversely disadvantages any faith-based organizations that express
religious objections to providing safe and appropriate placements for
LGBTQI+ children.
While this proposed rule would require title IV-E/IV-B agencies to
establish processes for children to receive notification concerning the
availability of safe and appropriate placements, how to request them
and the means of reporting any concerns about such placements, ACF
expects agencies would adopt these notice requirements without
substantially burdening the religious exercise of any child welfare
providers that expressed religious objections to disseminating the
notices in any reasonably foreseeable way. For example, under the
proposed rule, a title IV-E/IV-B agency may provide the notices
directly through agency staff. Alternatively, state and tribal agencies
may require the providers in their child welfare network to disseminate
the notices as a general matter while exempting any entities that
express religious objections to doing so and utilizing agency staff in
those limited instances. In addition, HHS is not aware of any instances
in which a faith-based organization has requested a religious exemption
from an HHS notice requirement that is generally applicable to social
service providers notwithstanding the fact that the notice informs
beneficiaries of alternative providers.
This proposed rule similarly would enable title IV-E/IV-B agencies
to retain discretion when determining how to ensure that contracted
caseworkers and supervisors who are responsible for placing children in
foster care, making placement decisions or providing services, as well
as placement providers who choose not to seek designation as safe and
appropriate placements are informed of the requirements of this rule.
To be clear, this proposed regulatory requirement only requires that
contractors/subrecipients and those placement providers who are not
seeking designation as safe and appropriate placements for LGBTQI+
children are informed of the procedural requirements, including the
non-retaliation provision.
This proposed rule enables title IV-E/IV-B agencies to retain
flexibility to determine how title IV-E/IV-B agencies will ensure that
LGBTQI+ children will upon request be transferred from any entity that
will not provide a safe and appropriate placement as described by the
finalized rule to one that will. ACF expects agencies to adopt transfer
processes that minimize the extent of any obligations on faith-based
providers that need to transfer children as a result of this proposed
rule as finalized. ACF notes that it has no historical basis to
anticipate religious objections to cooperating with such transfers, as
HHS has not received any religious objections in other instances in
which HHS required faith-based grantees to refer third parties impacted
by religious objections to alternative providers.
As we have explained, we have crafted this proposed rule to
minimize the likelihood that it will impose substantial burdens on
religious exercise in violation of the Constitution or RFRA.
Nevertheless, should any child welfare service provider incur any
unforeseen religious objections to compliance with an obligation that
is necessitated by this proposed rule as finalized (as opposed to any
discretionary measure imposed by a state or tribe) ACF will consider
requests for accommodation on a case-by-case basis in accordance with
the Constitution and Federal statutes. ACF recognizes that RFRA
requires a fact-specific case-by-case analysis of whether any specific
obligation necessitated by this proposed rule imposes a substantial
burden on religious exercise, and, if so, whether that obligation is in
the particular case the least restrictive means of furthering a
compelling government interest. See Gonzales v. Centro, 546 U.S. 418
(2006). This case-by-case analysis will allow ACF to consider whether
any substantial burden imposed on the provider's exercise of religion
is in furtherance of a compelling governmental interest, and is the
least restrictive means of advancing that interest. This will involve
considering any harm an exemption could have on third parties involved
in the child welfare program. See Cutter v. Wilkinson, 544 U.S. 709,
720 (2005). This process provides an opportunity for service providers
to raise with ACF any concerns regarding obligations necessitated by
this proposed rule as finalized, which would enable ACF to determine
whether an exemption or modification of the application of the
provision at issue is appropriate under the Federal religious freedom
law at issue.
As to the process for filing any requests for religious
accommodation, state and tribal child welfare agencies must continue to
notify sub-awardees of their religious freedom rights. As required
under 45 CFR 87.3(a) and (k), state and tribal child welfare agencies
must continue to ensure that their notices or announcements of award
opportunities include language that is substantially similar to that in
section (a) of appendix A to part 87. Similarly, notices of award or
contract must include language that is substantially similar to that in
section (a) of appendix B to part 87. In relevant part, these
appendices require that sub-awards and contracts inform sub-awardees of
their right to carry out child welfare programs consistent with
religious freedom, nondiscrimination, and conscience protections in
Federal law, including the Free Speech and Free Exercise Clauses of the
First Amendment of the U.S. Constitution, RFRA, or any related or
similar Federal laws or regulations; and that religious accommodations
may also be sought under many of these religious freedom,
nondiscrimination, and conscience protection laws.
A provider requesting any religious accommodation would submit the
request to their state's or tribe's title IV-E/IV-B agency. If the
request concerns a religious objection to an obligation that is
required or necessitated by this proposed rule as finalized, the title
IV-E/IV-B agency must promptly forward the request to ACF, which will
consider the request in collaboration with the Office of the General
Counsel.
Kinship Caregivers
A significant body of evidence demonstrates that when children in
the foster care system are placed with kinship caregivers that they
have better outcomes.\56\ We note that a title IV-E agency shall
consider giving preference to an adult relative over a non-related
caregiver when determining an out-of-home placement for a child,
provided that the relative caregiver meets all relevant state or tribal
child protection standards (section 471(a)(19) of the Act). HHS invites
public comment on how agencies can best comply with the requirements of
this proposed rule and prioritize placements with kinship caregivers.
In particular, HHS invites public comment on what resources
[[Page 66763]]
agencies may need from HHS to support kinship caregivers in caring for
an LGBTQI+ child.
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\56\ Child Welfare Information Gateway. (2022). Kinship care and
the child welfare system. U.S. Department of Health and Human
Services, Administration for Children and Families, Children's
Bureau. <a href="https://www.childwelfare.gov/pubs/f-kinshi/">https://www.childwelfare.gov/pubs/f-kinshi/</a>.
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Recruitment of Safe and Appropriate Providers
In order to comply with the requirements in this proposed rule, we
anticipate that a majority of states would need to expand their efforts
to recruit and identify providers and foster families that the state or
tribe could designate as safe and appropriate placements for a LGBTQI+
child to ensure that the totality of their child welfare system
includes enough safe and appropriate placements to meet the needs of
LGBTQI+ children in care. To support states and tribes in meeting these
recruitment needs, ACF allows sharing costs between the Federal
Government and state and tribal governments, providing Federal title
IV-E funding for 50 to 75 percent of the administrative, recruitment
and training costs of this NPRM. HHS invites public comment on how best
we can support states and tribes in recruiting providers to provide
safe and appropriate placements.
V. Regulatory Process Matters
Regulatory Planning and Review Executive Orders 12866, 13563, and 14094
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 is supplemental to, and reaffirms the principles,
structures, and definitions governing regulatory review as established
in Executive Order 12866, emphasizing the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. Section 3(f) of Executive Order 12866, as
amended by Executive Order 14094, defines ``a significant regulatory
action'' as an action that is likely to result in a rule that may: (1)
have an annual effect on the economy of $200 million or more (adjusted
every 3 years by the Administrator of the Office of Information and
Regulatory Affairs (OIRA) for changes in gross domestic product), or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, territorial, or tribal governments
or communities; (2) create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; (3)
materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligations of recipients
thereof; or (4) raise legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in the order. OIRA has determined that this
proposed rule does meet the criteria for a significant regulatory
action under section 3(f) of Executive Order 12866. Thus, it was
subject to Office of Management and Budget (OMB) review.
Costs and Benefits
The benefits of this NPRM are that placing children in foster care
with providers the agencies designate as safe and appropriate for
LGBTQI+ children will reduce the negative experiences of such children
by allowing them to have access to needed care and services and to be
placed in nurturing placement settings with caregivers who have
received appropriate training. Ensuring such placements may also reduce
LGBTQI+ foster children's high rates of homelessness, housing
instability and food insecurity.\57\ As thoroughly documented by
SAMHSA, ``[s]upportive family, caregivers, community, school, child
welfare, and healthcare environments have been shown to positively
impact both the short- and long-term health and well-being of LGBTQI+
youth.'' \58\ This proposed rule promotes a supportive environment for
children in foster care who self-identify as LGBTQI+.
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\57\ DeChants, J.P., Green, A.E., Price, M.N, & Davis, C.K.
(2021), Homelessness and Housing Instability Among LGBTQ Youth.,West
Hollywood, CA: The Trevor Project, <a href="https://www.thetrevorproject.org/wp-content/uploads/2022/02/Trevor-Project-Homelessness-Report.pdf">https://www.thetrevorproject.org/wp-content/uploads/2022/02/Trevor-Project-Homelessness-Report.pdf</a>;
Amy Dworsky, 2013. ``The Economic Well-Being of Lesbian, Gay, and
Bisexual Youth Transitioning Out of Foster Care,'' Mathematica
Policy Research Reports b2f4fb67aab149f9a5e75f558, Mathematica
Policy Research; <a href="https://www.acf.hhs.gov/sites/default/files/documents/opre/opre_lgbt_brief_01_04_2013.pdf">https://www.acf.hhs.gov/sites/default/files/documents/opre/opre_lgbt_brief_01_04_2013.pdf</a>.
\58\ Substance Abuse and Mental Health Services Administration
(SAMHSA): Moving Beyond Change Efforts: Evidence and Action to
Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP2203-12-
001. Rockville, MD: Center for Substance Abuse Prevention. Substance
Abuse and Mental Health Services Administration, 2023.
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ACF acknowledges that there will be a cost to implement changes
made by this proposed rule as we anticipate that a majority of states
would need to expand their efforts to recruit and identify providers
and foster families that the state or tribe could designate as safe and
appropriate placements for a LGBTQI+ child. This cost would vary
depending on an agency's available resources to implement an eventual
final rule. To inform the final rule, ACF intends to seek comments on
whether state and tribal agencies are likely to incur additional
substantial costs.
Alternatives Considered
As an alternative to this NPRM, ACF considered providing sub-
regulatory guidance requiring agencies to implement the provisions of
the NPRM for children who identify as LGBTQI+. However, this
alternative was rejected because it would not have the force of law and
thus could not effectively ensure that LGBTQI+ children and youth in
foster care receive appropriate placements and services. ACF has
already provided extensive resources and sub-regulatory guidance to
agencies about improving the health and wellbeing of LGBTQI+ children
in foster care, but those resources alone have not been sufficient to
ensure that LGBTQI+ youth are protected from mistreatment in foster
care.\59\
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\59\ Children's Bureau, Guidance for Title IV-B and IV-E
Agencies When Serving LGBTQI+ Children and Youth, March 2, 2022,
<a href="https://www.acf.hhs.gov/cb/policy-guidance/im-22-01">https://www.acf.hhs.gov/cb/policy-guidance/im-22-01</a>.
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Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act)
requires Federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. The term ``small
entities,'' as defined in the RFA, comprises small businesses, not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. HHS considers a rule to have a
significant impact on a substantial number of small entities if it has
at least a 3 percent impact on revenue on at least 5 percent of small
entities. However, the Secretary certifies, under 5 U.S.C. 605(b), as
enacted by the RFA (Pub. L. 96-354), that this proposed rule will not
result in a significant impact on a substantial number of small
entities. Therefore, an initial regulatory flexibility analysis is not
required for this document.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was
enacted to avoid imposing unfunded Federal mandates on state, local,
and
[[Page 66764]]
tribal governments, or on the private sector. Section 202 of UMRA
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2022, that
threshold is approximately $177 million. This proposed rule does not
contain mandates that will impose spending costs on state, local, or
tribal governments in the aggregate, or on the private sector, in
excess of the threshold.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal agencies to determine whether a policy or
regulation may negatively affect family well-being. If the agency
determines a policy or regulation negatively affects family well-being,
then the agency must prepare an impact assessment addressing seven
criteria specified in the law. ACF believes it is not necessary to
prepare a family policymaking assessment (see Pub. L. 105-277) because
this proposed rule will not have a negative impact on the autonomy or
integrity of the family as an institution.
Executive Order 13132
Executive Order 13132 requires Federal agencies to consult with
state and local government officials if they develop regulatory
policies with federalism implications. Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government close to the
people. ACF conducted a regulatory impact analysis (RIA) to estimate
costs, transfers, and benefits of provisions in the proposed rule. The
cost of implementing changes made by this proposed rule would vary
depending on a state's specific situation and implementation choices.
This proposed rule would not have substantial direct impact on the
relationship between the Federal Government and the states, or on the
distribution of power and responsibilities among the various levels of
government. However, we anticipate that this proposed rule will have a
substantial direct impact on the cost that title IV-E agencies will
incur to implement administrative procedures and recruit and train
their workforce and providers. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this action has
sufficient federalism implications that warrants the preparation of a
federalism summary impact statement.
Federalism Summary Impact Statement
The Social Security Act requires agencies to provide children in
foster care with safe and appropriate placements and services (42
U.S.C. 675(1)(b)) and ensure that prospective foster parents are
prepared adequately with the appropriate knowledge and skills to
provide for the needs of the child (42 U.S.C. 671(a)(24)). ACF believes
this proposed regulation is necessary to ensure children in foster care
who identify as LGBTQI+ are provided appropriate placements and access
to support services that address the well documented disparities that
LGBTQI+ youth in foster care face. LGBTQI+ youth are overrepresented in
the child welfare system, far too often experience trauma, including
being placed in foster care or congregate care settings that are
hostile to their identity, or lacking access to health care and mental
health services to support them. This proposal may have federalism
implications due to the substantial direct financial impact on state or
local governments. Although ACF has not consulted directly with state
or local governments prior to issuing this NPRM, ACF has spent years
reviewing research and agency practices, and supporting pilot programs
in this area. For example, the National Quality Improvement Center
(QIC) on Tailored Services, Placement Stability, and Permanency for
Lesbian, Gay, Bisexual, Transgender, Questioning, and Two-Spirit
Children and Youth in Foster Care (LGBTQ2S+ QIC) was led by the
Institute for Innovation & Implementation at the University of Maryland
School of Social Work in Baltimore along with participating core
partners: Human Service Collaborative, National Indian Child Welfare
Association, Ruth Ellis Center, Tufts University, and Youth M.O.V.E.
National.<SUP>60 61</SUP> State and local governments may be concerned
about the cost imposed by the NPRM. ACF has attempted to meet this
concern by sharing costs between the Federal government and state
governments, providing Federal title IV-E funding for 50 to 75 percent
of the administrative, recruitment and training costs of this NPRM. We
also believe that after the first 3 years of implementation, the
financial impact on state governments would be minimal. To inform the
final rule, ACF will seek to further consult with state and local
governments and request that such governments provide comments on
provisions in the proposed rule and on whether state and local
governments are likely to incur additional substantial costs.
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\60\ See QIC LGBTQ2S About the QIC, <a href="https://qiclgbtq2s.org/about-the-qic/">https://qiclgbtq2s.org/about-the-qic/</a>.
\61\ Also see Sexual & Gender Minority Youth in Foster Care:
Assessing Disproportionality and Disparities in Los Angeles, 2014,
<a href="https://www.acf.hhs.gov/cb/report/sexual-gender-minority-youth-foster-care-assessing-disproportionality-and-disparities-los">https://www.acf.hhs.gov/cb/report/sexual-gender-minority-youth-foster-care-assessing-disproportionality-and-disparities-los</a>, a
project which received Children's Bureau funding.
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Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to
minimize government-imposed burden from information collections on the
public. In keeping with the notion that government information is a
valuable asset, it also is intended to improve the practical utility,
quality, and clarity of information collected, maintained, and
disclosed. The Paperwork Reduction Act defines ``information'' as any
statement or estimate of fact or opinion, regardless of form or format,
whether numerical, graphic, or narrative form, and whether oral or
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This
includes requests for information to be sent to the government, such as
forms, written reports and surveys, recordkeeping requirements, and
third-party or public disclosures (5 CFR 1320.3(c)).
Information collection requirements for case plans required under
title IV-E and IV-B are currently authorized under OMB number #0970-
0428. This NPRM does not require changes to the existing information
collection as there will be minimal burden associated with the proposed
case plan requirements. Any additional costs would be minimal because
agencies are already required to provide case review protections to
children in foster care, and the NPRM simply provides more specificity
for an LGBTQ child. While agencies will need to develop policies to
comply with some of the provisions in the NPRM, the casework to provide
safe placements, consult with children, and notify them of the
procedures for reporting concerns or requests for placement changes is
part of the agency's ongoing work with a child in foster care.
Information collection for the CFSR is currently authorized under
OMB # is 0970-0214. This NPRM does not significantly change or add
burden to existing information collection requirements because the CFSR
already includes reviewing case plan requirements for safe and
appropriate placements and collecting information on the state's case
review system under the statewide assessment. Therefore, no revisions
are needed in that collection.
[[Page 66765]]
Annualized Cost to the Federal Government
ACF estimated that the proposed regulatory changes would cost the
Federal Government $9,712,740 over three fiscal years (2025-2027). ACF
estimated that the combined total Federal and agency costs over three
fiscal years would be $40,834,548.
The estimate for this NPRM was derived using fiscal year (FY) 2021
data from the Adoption and Foster Care Analysis and Reporting System
(AFCARS) on children in foster care, FY 2022 claiming data from the
Form CB-496 ``Title IV-E Programs Quarterly Financial Report (Foster
Care, Adoption Assistance, Guardianship Assistance, Prevention Services
and Kinship Navigator Programs),'' National Child Abuse and Neglect
Data System (NCANDS) child protection caseworker data collected between
FY 2003 and FY 2014, state surveys, and the U.S. Department of Labor
Bureau of Labor Statistics (BLS).
The portions of this NPRM's requirements determined to have an
identifiable impact on title IV-E/IV-B agency costs were as follows:
<bullet> To comply with the requirement that all LGBTQI+ children
in foster care have access to a safe and appropriate placement,
agencies will likely need to increase the recruitment of providers who
are qualified to provide safe and appropriate care.
<bullet> Training agency caseworkers and supervisors on the
procedural requirements in the NPRM and on how to adequately serve
LGBTQI+ foster children, and training placement providers seeking to
become designated as safe and appropriate placement providers on how to
meet the needs of LGBTQI+ children in foster care, as required in the
proposal.
Assumptions: ACF made several assumptions when calculating
administrative and training costs for this proposed rule.
ACF assumes that quantifiable incremental costs with respect to the
above activities will largely be incurred on behalf of children in
foster care who are age 14 and older. ACF expects the population of
children under age 14 who meet the proposed requirements of paragraph
(a)(2)(i)(A) or (B) to be relatively small, and therefore not likely to
have a significant impact on cost. We are, however, accounting for the
cost to recruit and train sufficient safe and appropriate placement
providers to serve all children in need of such a placement regardless
of age. This is accomplished by calculating recruitment and training
costs using the maximum expected level of affirmative placement needs
for children ages 14 and older.
We assume that states and tribes will not be able to use title IV-B
funding to implement this NPRM if it becomes a final rule. Children in
foster care who are not title IV-E eligible are also subject to the
proposed requirements based on the proposed rule's applicability to
title IV-E and IV-B agencies. Title IV-B funding is available for 75
percent Federal financial participation (FFP) for recruitment and
training of placement providers (42 U.S.C. 624(a)). However, those
funds are limited to an annual allotment provided to each title IV-B
agency. Therefore, we assume agencies will likely need to cover 100
percent of the safe and appropriate placement provision costs on behalf
of non-title IV-E eligible children in foster care.
ACF assumes an overall annual one percent caseload growth rate in
the foster care population based on our current title IV-E budgetary
projections. Since this NPRM focuses on older children in foster care,
we increased this growth rate slightly (to an average of 1.4 percent
annually) to consider an expected further growth in the age 18 and
older foster care population, as more states opt to extend foster care
through age 20.
ACF assumes that if the proposal becomes final, the requirements
will become effective at the beginning of FY 2025 and thus will apply
to the entire population of children in foster care who are age 14 and
older in that FY. This will result in the majority of incremental costs
for the NPRM activities occurring in FY 2025. We expect costs in FYs
2026 and 2027 to be about half of those for FY 2025 since the required
activities will affect primarily those children in care who are turning
age 14 in the FY, or who are newly entering care at age 14 and older.
After the third year of implementation, we anticipate that incremental
costs will largely be eliminated as available safe and appropriate
placement providers are recruited and the proposed policies,
procedures, and training requirements are implemented.
Federal cost estimate for implementation of safe and appropriate
placements: The table below displays the individual calculations by
line. All entries in the table and the narrative below are rounded to
the nearest whole number. The calculations to obtain these amounts,
however, were performed without applying rounding to the involved
factor(s).
Line 1. National number of children in foster care (FC). Line 1 of
the table below displays the actual number of children in FC at the
beginning of FY 2022 (baseline), which was 391,098. Line 1 also
displays estimates of the annual number of children in FC in the
subsequent FYs 2025, 2026, and 2027.
Line 2. National number of children in FC age 14 and older. Line 2
of the table below displays the actual number of children in FC who
were age 14 and older at the beginning of FY 2022 (baseline) which was
92,852. We also provide estimates of the number of children in FC age
14 and older in the following subsequent FYs 2025, 2026, and 2027. In
2027 the caseload is estimated at 104,705.
Line 3. National average monthly number of children in title IV-E
FC age 14 and older. Line 3 of the table below displays the actual
number of title IV-E eligible children in FC age 14 or older at the
beginning of FY 2022 (baseline), which was 36,817. This number is
calculated by applying the percentage of all children in FC (title IV-E
and non-IV-E eligible) that are age 14 or older to the reported count
of title IV-E eligible children receiving FC administrative cost
services. For example, in FY 2022 the title IV-E FC caseload for
administrative costs was 155,075 and the percentage of all children in
FC who were age 14 or older was 23.74 percent. Therefore, the
calculated count of title IV-E eligible children in FC age 14 and older
is 36,817 (155,075 x 23.74%). We also provide estimates of the number
of children in FC age 14 and older in the following subsequent years:
FYs 2025, 2026, and 2027.
Line 4. National number of children to be notified of safe and
appropriate (S&A) placement requirements. Line 4 of the table below
provides an estimate of the number of children in FC who must be
notified of the safe and appropriate placement provisions in proposed
Sec. 1355.22(a)(2)(i). For the first year of implementation (FY 2025)
this number is the same as the Line 2 number (national number of
children in foster care age 14 and older) since all of these children
are required to be so notified. For FYs 2026 and 2027, we multiplied
the national number of children in FC age 14 and older (Line 2) by the
proportion of this population that entered care in that FY based on
baseline year AFCARS data showing 40.64 percent. This step avoids
counting children that are likely to have already received the
notification in a prior FY. For example, in FY 2027 the national number
of children that must be notified of safe and appropriate placement
requirements is 42,552 (104,705 (Line 2) x 40.64% (Line 4) = 42,552).
[[Page 66766]]
Line 5. Percentage of national foster care placements for children
needing S&A placements. Line 5 of the table below displays the
estimated percentage of national foster care safe and appropriate
placements needed for children who identify as LGBTQI+. For each FY, we
divided the number of children in foster care ages 14 and older (Line
4) by the expected total annual number of children entering foster
care. Data available through surveys shows that about 30 percent of
older children in foster care identify as LGBTQI+. For example, a 2014
survey of children ages 12 through 21 in foster care in Los Angeles
County, California, found that 19 percent of children in foster care
identified as LGBTQI+.\62\ Similarly, a 2021 study of foster children
ages 12 through 21 in Cuyahoga County, Ohio, found that 32 percent
identified as LGBTQI+.\63\ For the purposes of this cost estimate,
ACF's estimate of children age 14 and over in foster care who identify
as LGBTQI+ is 30 percent. For example, in FY 2025 on Line 4, the
national number of children to be notified of safe and appropriate
placement provisions is 97,973 and the base year total foster care
entries is 206,812. ACF estimated 30 percent of older children in
foster care identify as LGBTQI+. Therefore, Line 5, the percentage of
national foster care placements for LGBTQI+ children needing safe and
appropriate placements, is 14.2 percent ((97,973 x 30%) / 206,812).
This estimate is purposefully high to account for some children under
age 14 who may also need such safe and appropriate placements.
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\62\ Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S.
(2014), Sexual and Gender Minority Youth in Foster care: Assessing
Disproportionality and Disparities in Los Angeles, The Williams
Institute, UCLA School of Law <a href="https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf">https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf</a>.
\63\ Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021).
The Cuyahoga youth count: A report on LGBTQ+ youth's experience in
foster care. Baltimore, MD: The Institute for Innovation &
Implementation, University of Maryland School of Social Work.
<a href="https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf">https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf</a>.
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Line 6. Total incremental costs (Federal and non-Federal) for
recruiting safe and appropriate foster care placements. Line 6 of the
table below displays the estimated total cost of recruiting placement
providers to meet the proposed requirements for safe and appropriate
placement providers for LGBTQI+ children in the foster care system.
This estimate for each FY is based on data collected from ten title IV-
E/IV-B agencies across the Nation with respect to their current annual
budgets for foster care recruitment activities. We used this data to
calculate a nationwide total estimated annual foster care recruitment
cost of $185,998,176 based on an extrapolation of the provided data
using FY 2022 foster care caseload information. This figure was then
multiplied by the calculated portion of the FC caseload ages 14 and
older, and then further reduced to 30 percent of that number (estimated
LGBTQI+ identification percentage) to reflect the maximum anticipated
need for new safe and appropriate placements in each FY. The resulting
amount was then reduced by another 50 percent to reflect the likelihood
that a significant portion of the safe and appropriate placement
recruitment budget would be obtained by refocusing the existing budget
for recruitment costs towards safe and appropriate placements. This
would promote the agency's ability to comply with the proposed
requirement in paragraph (a)(1), given agency recruitment budgets may
be limited.
For example, in FY 2025 we estimate that up to 30 percent of
notified children (Line 4) as a percentage of all newly placed children
in that FY may require the availability of a placement that is
designated by the agencies as safe and appropriate. This percentage for
FY 2025 of 14.2 percent (29,392 / 206,812) is then multiplied by the
national estimated foster care recruitment cost budget ($185,998,176)
resulting in a total of $26,433,752. This figure is then reduced by 50
percent to reflect the anticipated incremental cost for safe and
appropriate placement provider recruitment efforts of $13,216,876. This
estimate is purposefully high to account for some children under age 14
who may also need safe and appropriate placements. The total cost for
FYs 2025, 2026, and 2027 is $24,521,626.
Line 7. Total costs (Federal and non-Federal) for safe and
appropriate placement training (caseworkers, supervisors & providers).
Line 7 of the table below provides the estimated total cost of training
required for safe and appropriate placements. This estimate for each FY
is derived by first identifying the baseline cost of providing a model
SOGIE training curriculum developed by the National Quality Improvement
Center on Tailored Services, Placement Stability, and Permanency for
LGBTQ2S Children and Youth in Foster Care (QIC-LGBTQ2S); a project
funded by ACF. This curriculum provides for a two-hour training that
can be conducted in-person or remotely for an average group of 30
participants. The identified average cost of delivering this training
is $300 plus overhead of 100 percent bringing the total cost to $600 or
$20 per participant. Our estimate increases this figure by three
percent per year to account for inflation.
We estimate the number of caseworker and casework supervisor
(staff) in FY 2025 to be 100 percent of individuals in these positions.
National foster care caseworker staffing level data was obtained from
reports provided by six state title IV-E/IV-B agencies representing
about 16 percent of the national FY 2021 foster care population. This
data was then extrapolated using FC caseloads to obtain an estimate of
the total number of national FC caseworkers in FY 2021. An estimated
annual caseworker growth rate of +2.2 percent was also computed using
national NCANDS child protection caseworker data collected between FY
2003 and FY 2014. This data results in an estimated FY 2025 national
total of 38,374 FC caseworkers. The casework supervisor count uses the
generally applied ratio of one supervisor for five workers resulting in
an FY 2025 number of 7,675. The provider trainee population is
calculated by using the count of children to be notified of safe and
appropriate placement provisions (Line 4) multiplied by 30 percent
(maximum expected portion of these children identifying as LGBTQI+) and
is then further reduced by the expectation that each provider will, on
average, serve 1.5 children. This results in an FY 2025 safe and
appropriate placement provider trainee population of 22,044. The
expected number of trainees for subsequent FYs is lower based on the
expected number of newly placed children in each of these FYs.
Other costs included in the training estimate are staff
participation costs and travel and per diem for in-person trainings
conducted outside of the local area. Staff participation costs include
salary and overhead for each worker spent in the training (two hours).
Caseworker title average salary data (as of May 2022) sourced from the
U.S. Department of Labor; Bureau of Labor Statistics (BLS) was used in
the calculation along with an estimated overhead cost rate of 100
percent. This results in an FY 2022 (baseline) hourly cost (salary +
overhead) of $55.98. The cost for two hours of activity is thus $111.97
per participant. A cost-of-living adjustment of +2 percent per year is
than added for each subsequent year. Travel and per diem costs are
estimated in FY 2022 (base year) as $100 per participant at in-person
trainings which are expected to constitute 50 percent of total
trainings. An inflation factor of
[[Page 66767]]
three percent per year is applied to these costs for later FYs. For
example, in FY 2025 we expect a total of 68,092 trainees (caseworkers,
supervisors & foster care providers). Therefore, the 50 percent of that
total expected to have travel & per diem costs is 34,046 trainees. At
an average cost of $109 per participant the total cost in this category
is $3,711,035. The total FY 2025 estimate for safe and appropriate
placement training is $10,137,404. This amount lowers to $3,180,036 for
FY 2027. The total cost for FYs 2025, 2026, and 2027 is $16,312,223.
Line 8. Total costs (Federal and non-Federal) for all safe and
appropriate placement activities. Line 8 displays the annual estimated
total (Federal + non-Federal) costs for all recruitment and training
activities for LGBTQI+ children. This is the sum of lines 6 and 7. We
estimate these total costs in FY 2025 as $23,354,280 and the total cost
for FYs 2025, 2026, and 2027 is $40,834,548.
Line 9. Total title IV-E FFP for all safe and appropriate placement
activity costs. Line 9 displays the annual estimated total title IV-E
Federal share of costs for all placement activities for LGBTQI+
children. This is calculated by applying the applicable match rate and
the estimated title IV-E participation (eligibility) rate that is
generally used to allocate foster care administrative costs. Title IV-E
agencies may claim FFP for 50 percent of the administrative costs that
agencies incur to provide for activities performed on behalf of title
IV-E eligible children in foster care, recruitment of foster homes and
CCIs, and certain other administrative activities identified in 45 CFR
1356.60. The agency must pay the remaining 50 percent non-Federal share
of title IV-E administrative costs with state or tribal funds.
Title IV-E agencies may claim reimbursement for 75 percent of
allowable training costs to provide for activities performed on behalf
of title IV-E eligible children in foster care including training of
agency caseworkers and supervisors (including staff participation
costs) and training of foster care providers providing care to title
IV-E eligible children. The title IV-E agency must pay the remaining 25
percent non-Federal share of title IV-E training costs with state or
tribal funds. For example, the FY 2025 amount is calculated by using
the FY 2025 estimated title IV-E foster care participation rate of
39.65 percent along with the applicable FFP rates of 50 percent for
administrative costs and 75 percent for training costs. We estimate
these total title IV-E FFP costs beginning in FY 2025 as $5,635,017 and
the total cost for FYs 2025, 2026, and 2027 is $9,712,740.
Line 10. Total title IV-E non-Federal share for all safe and
appropriate placement activity costs. Line 10 displays the annual
estimated total title IV-E non-Federal (state or tribe) share of costs
for all safe and appropriate placement activities for LGBTQI+ children.
This is calculated by applying the applicable non-Federal share match
rate and the estimated non-IV-E participation (eligibility) rate that
is generally used to allocate foster care administrative costs. For
example, the FY 2025 amount is calculated by using the FY 2025
estimated title IV-E foster care participation rate of 39.65 percent
along with the applicable non-Federal share matching rates of 50
percent for administrative costs and 25 percent for training costs. We
estimate these total title IV-E non-Federal share costs beginning in FY
2025 as $3,625,219 and the total cost for FYs 2025, 2026, and 2027 is
$6,478,612.
Line 11. Total title IV-B non-Federal share for all safe and
appropriate placement activity costs. Line 11 displays the annual
estimated total title IV-B non-Federal (state or tribe) share of costs
for all safe and appropriate placement activities. This is calculated
by deducting such placement activity costs that are allocable to title
IV-E from such total costs. Although costs allocated to title IV-B are
subject to Federal matching at the 75 percent rate, as explained
previously we assume that none of these costs will be federally
reimbursed through title IV-B due to the limited annual allotments for
the title IV-B program. Therefore, agencies may need to fund the cost
entirely from state or tribal funds or other sources of funding. We
estimate these total title IV-B non-Federal share costs beginning in FY
2025 as $14,094,043 and the total cost for FYs 2025, 2026, and 2027 is
$24,643,197.
Line 12. Total title IV-E and IV-B non-Federal share for all safe
and appropriate placement activity costs. Line 12 displays the annual
estimated total title IV-E and IV-B non-Federal share of costs for all
safe and appropriate placement activities. This is the sum of amounts
on Lines 10 and 11. We estimate these total title IV-E and IV-B non-
Federal share costs beginning in FY 2025 as $17,719,263 and the total
cost for FYs 2025, 2026, and 2027 is $31,121,809.
----------------------------------------------------------------------------------------------------------------
2022 Three-year
Year (baseline) 2025 2026 2027 total
----------------------------------------------------------------------------------------------------------------
1. National number of children in foster 391,098 404,273 410,541 416,548 ............
care (FC).................................
2. National number of children in FC age 14 92,852 97,973 101,482 104,705 ............
and older.................................
3. National average monthly number of 36,817 38,847 40,239 41,517 ............
children in title IV-E FC age 14 and older
4. National number of children to be N/A 97,973 41,244 42,554 ............
notified of safe and appropriate (S&A)
placement provisions......................
5. Percentage of national FC placements for N/A 14.2% 6.0% 6.2% ............
children needing S&A placements...........
6. Total incremental costs (Federal and non- N/A $13,216,876 $5,564,006 $5,740,744 $24,521,626
Federal) for S&A placement recruitment....
7. Total costs (Federal and non-Federal) N/A $10,137,404 $2,995,483 $3,180,036 $16,312,223
for S&A placement training (caseworkers,
supervisors & providers)..................
8. Total Federal and non-Federal costs for N/A $23,354,280 $8,559,488 $8,920,780 $40,834,548
all S&A placement activities (Lines 6+7)..
9. Total title IV-E FFP for all S&A N/A $5,635,017 $1,993,899 $2,083,823 $9,712,740
placement activity costs..................
10. Total title IV-E non-Federal share for N/A $3,625,219 $1,400,029 $1,453,364 $6,478,612
S&A placement activity costs..............
11. Total title IV-B non-Federal share for N/A $14,094,043 $5,165,561 $5,383,593 $24,643,197
S&A placement activity costs..............
12. Total titles IV-E and IV-B non-Federal N/A $17,719,263 $6,565,589 $6,836,957 $31,121,809
share for S&A placement activity costs
(Lines 10+11).............................
----------------------------------------------------------------------------------------------------------------
VI. Tribal Consultation Statement
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, requires agencies to consult with Indian tribes
when regulations have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes and either impose substantial
direct compliance costs on tribes or preempt tribal law. Similarly,
ACF's Tribal Consultation Policy says that consultation is triggered
for a new rule adoption that significantly affects tribes,
[[Page 66768]]
meaning the new rule adoption has substantial direct effects on one on
more Indian Tribes, on the amount or duration of ACF program funding,
on the delivery of ACF programs or services to one or more Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. This proposed rule does not
meet either standard for consultation.
Some title IV-E/IV-B tribal agencies may need to amend their
practices to ensure that a placement is available for and provided to
an LGBTQI+ child in foster care that supports the child's identity.
However, we do not expect the costs to be substantial. Tribal title IV-
E agencies may claim FFP for title IV-E foster care administrative and
training costs for a portion of the administrative costs incurred. We
intend to notify tribal title IV-E/IV-B agency leadership about the
opportunity to provide comment on the NPRM no later than the day of
publication. In addition, we intend to engage in consultation with
tribes during the comment period of this NPRM.
Jeff Hild, Acting Assistant Secretary of the Administration for
Children & Families, approved this document on September 22, 2023.
(Catalog of Federal Domestic Assistance Program Number 93.658,
Foster Care Maintenance; 93.645, Child Welfare Services--State
Grants).
List of Subjects in 45 CFR Part 1355
Adoption and foster care, Child welfare, Grant programs--social
programs.
Dated: September 25, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, ACF proposes to amend 45
CFR part 1355 as follows:
PART 1355--GENERAL
0
1. The authority citation for part 1355 continues to read as follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42
U.S.C. 1302.
0
2. Add Sec. 1355.22 to read as follows:
Sec. 1355.22 Placement requirements under titles IV-E and IV-B for
children who identify as lesbian, gay, bisexual, transgender, queer or
questioning, intersex, as well as children who are non-binary or have
non-conforming gender identity or expression.
(a) Protections. The title IV-E/IV-B agency must meet the following
requirements for each child in foster care who identifies as lesbian,
gay, bisexual, transgender, queer or questioning, or intersex, as well
as each child who is non-binary or has non-conforming gender identity
or expression (LGBTQI+).
(1) Safe and appropriate placement. The title IV-E/IV-B agency must
ensure that a safe and appropriate placement is available for and
provided to all children in foster care, including those who identify
as LGBTQI+. As used in this section, for a placement to be considered
safe and appropriate for an LGBTQI+ child, the agency must place such
child with a placement provider that:
(i) Will establish an environment free of hostility, mistreatment,
or abuse based on the child's LGBTQI+ status;
(ii) Is trained to be prepared with the appropriate knowledge and
skills to provide for the needs of the child related to the child's
self-identified sexual orientation, gender identity, and gender
expression. The training must reflect evidence, studies, and research
about the impacts of rejection, discrimination, and stigma on the
safety and wellbeing of LGBTQI+ children, and provide information for
providers about practices that promote the safety and wellbeing of
LGBTQI+ children; and
(iii) Will facilitate the child's access to age-appropriate
resources, services, and activities that support their health and well-
being.
(2) Process for requesting safe and appropriate placement. The IV-
E/IV-B agency must implement a process by which a child identifying as
LGBTQI+ may request a safe and appropriate placement, as described in
paragraph (a)(1) of this section. The title IV-E/IV-B agency must
consult with such child to provide an opportunity to provide input into
their safe and appropriate placement. The process must safeguard the
privacy and confidentiality of the child, consistent with section
471(a)(8) of the Act and 45 CFR 205.50, and must include the following
components:
(i) Notice of the availability of safe and appropriate placements
must be provided to, at minimum:
(A) All children age 14 and over; and
(B) Children under age 14 who:
(1) Have been removed from their home due, in whole or part, to
familial conflict about their sexual orientation, gender identity, or
sex characteristics; or
(2) Have disclosed their LGBTQI+ identity or whose LGBTQI+ identity
is otherwise known to the agency;
(ii) The notice must be provided in an age-appropriate manner, both
verbally and in writing; and
(iii) The notice must inform the child of how they may request a
safe and appropriate placement.
(3) Process for reporting concerns about placements. The title IV-
E/IV-B agency must implement a process for children identifying as
LGBTQI+ to report concerns about any placements that fail to meet the
requirements of paragraph (a)(1) of this section. The process must
safeguard the privacy and confidentiality of the child, consistent with
section 471(a)(8) of the Act and 45 CFR 205.50, and must include the
following components:
(i) The title IV-E/IV-B agency must notify all children who meet
the requirements of paragraphs (a)(2)(i)(A) and (B) of this section of
the availability of this process;
(ii) The notice must be provided in an age-appropriate manner, both
verbally and in writing; and
(iii) The title IV-E/IV-B agency must respond promptly to an
LGBTQI+ child's reported concern, consistent with the agency's
timeframes for investigating child abuse and neglect reports depending
on the nature of the child's report.
(4) Retaliation prohibited. The title IV-E/IV-B agency must have a
procedure to ensure that no LGBTQI+ child in foster care experiences
retaliation for the child disclosing their LGBTQI+ identity, for
requesting a safe and appropriate placement as described in paragraph
(a)(1) of this section, or for reporting concerns that their current
placement is not safe and appropriate. Retaliation includes unwarranted
placement changes including unwarranted placements in congregate care
facilities, restriction of access to LGBTQI+ peers, or attempts to
undermine, suppress, or change the sexual orientation or gender
identity of a child, or other activities that stigmatize a child's
LGBTQI+ identity.
(5) Access to supportive and age-appropriate services. The title
IV-E/IV-B agency must ensure that children who identify as LGBTQI+ have
access to age-appropriate services that are supportive of their sexual
orientation and gender identity, including clinically appropriate
mental and behavioral health supports.
(b) Placement of transgender and gender non-conforming children in
foster care. When considering placing a transgender, gender non-
conforming or intersex child in sex segregated child-care institutions,
the title IV-E/IV-B agency must place the child consistent with their
gender identity. The IV-E/IV-B agency must also consult with the
transgender, gender non-conforming, or intersex child to provide an
opportunity
[[Page 66769]]
to voice any concerns related to placement when the agency is
considering a placement in such a facility.
(c) Training and notification requirements. In addition to meeting
the requirements of paragraph (a)(1)(ii) of this section, the title IV-
E-/IV-B agency must:
(1) Ensure that its employees who have responsibility for placing
children in foster care, making placement decisions, or providing
services:
(i) Are trained to implement the procedural requirements of this
section; and
(ii) Are adequately prepared with the appropriate knowledge and
skills to serve an LGBTQI+ child related to their sexual orientation,
gender identity, and gender expression.
(2) Ensure that all of its contractors and subrecipients who have
responsibility for placing children in foster care, making placement
decisions, or providing services are informed of the procedural
requirements to comply with this section, including the required non-
retaliation provisions outlined in paragraph (a)(4) of this section.
(3) Ensure that any placement providers who have not chosen to
become designated as safe and appropriate placements for LGBTQI+
children are informed of the procedural requirements to comply with
this section, including the required non-retaliation provision outlined
in paragraph (a)(4) of this section.
(d) Severability. Any provision of this section held to be invalid
or unenforceable as applied to any person or circumstance shall be
construed so as to continue to give the maximum effect to the provision
permitted by law, including as applied to persons not similarly
situated or to dissimilar circumstances, unless such holding is that
the provision of this section is invalid and unenforceable in all
circumstances, in which event the provision shall be severable from the
remainder of this section and shall not affect the remainder thereof.
0
3. In Sec. 1355.34, revise paragraph (c)(2)(i) to read as follows:
Sec. 1355.34 Criteria for determining substantial conformity.
* * * * *
(c) * * *
(2) * * *
(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, including placements described in Sec.
1355.22(a)(1), and in close proximity to the parents' home where such
placement is in the child's best interests; for visits with a child
placed out of State/Tribal service area at least every 12 months by a
caseworker of the agency or of the agency in the State/Tribal service
area 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)(8)(A)(ii) and
471(a)(16) 475(5)(A) of the Act and Sec. 1355.22(a)(1));
* * * * *
[FR Doc. 2023-21274 Filed 9-27-23; 8:45 am]
BILLING CODE P
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