Rule2024-08982
Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children
Primary source
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Published
April 30, 2024
Effective
July 1, 2024
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
This rule finalizes requirements under titles IV-E and IV-B for children in foster care who are LGBTQI+ (an umbrella term used in this regulation). The proposed rule was published on September 28, 2023. Federal law requires that state and tribal title IV-E and 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. To meet these and other related statutory requirements, this final rule requires agencies to ensure that placements for all children are free from harassment, mistreatment, and abuse. The final rule requires that title IV-E and IV-B agencies ensure a Designated Placement is available for all children who identify as LGBTQI+ and specifies the Designated Placement requirements.
Full Text
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[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34818-34861]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08982]
[[Page 34817]]
Vol. 89
Tuesday,
No. 84
April 30, 2024
Part VIII
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Part 1355
Designated Placement Requirements Under Titles IV-E and IV-B for
LGBTQI+ Children; Final Rule
Federal Register / Vol. 89 , No. 84 / Tuesday, April 30, 2024 / Rules
and Regulations
[[Page 34818]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1355
RIN 0970-AD03
Designated Placement Requirements Under Titles IV-E and IV-B for
LGBTQI+ Children
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: Final rule.
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SUMMARY: This rule finalizes requirements under titles IV-E and IV-B
for children in foster care who are LGBTQI+ (an umbrella term used in
this regulation). The proposed rule was published on September 28,
2023. Federal law requires that state and tribal title IV-E and 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. To meet these and other related statutory
requirements, this final rule requires agencies to ensure that
placements for all children are free from harassment, mistreatment, and
abuse. The final rule requires that title IV-E and IV-B agencies ensure
a Designated Placement is available for all children who identify as
LGBTQI+ and specifies the Designated Placement requirements.
DATES: This final rule is effective on July 1, 2024. Title IV-E and IV-
B agencies must implement the provisions of this final rule on or
before October 1, 2026.
FOR FURTHER INFORMATION CONTACT: Rebecca Jones Gaston, Administration
on Children, Youth, and Families, (202) 205-8618,
<a href="/cdn-cgi/l/email-protection#2a4948494547474f445e596a4b494c04424259044d455c"><span class="__cf_email__" data-cfemail="e38081808c8e8e868d9790a3828085cd8b8b90cd848c95">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
Overview of Notice of Proposed Rulemaking
Overview of Final Rule
Legal Authority for the Final Rule
II. Background
LGBTQI+ Children in the Child Welfare System
Overrepresentation of LGBTQI+ Children in Foster Care
Impact of Family and Caregiver Behavior on LGBTQI+ Child
Wellbeing
Experience of LGBTQI+ Children in Foster Care
Mental Health Needs of LGBTQI+ Children
Current Approaches To Meet the Needs of LGBTQI+ Children in
Foster Care
III. Regulatory Provisions and Responses to Comments
Summary of Commenters
Summary of Comments From State and Local Child Welfare Agencies
Summary of Comments From Congressional Members
Summary of Comments From Advocacy Organizations, Providers, and
Universities
Summary of Comments From Individual Commenters
Section by Section Discussion of Regulatory Provisions
Title and Definition of LGBTQI+
Section 1355.22(a) Protections Generally Applicable
Section 1355.22(b)(1) Designated Placements and Services for
LGBTQI+ Children
Section 1355.22(b)(2) Process for Notification of and Request
for Designated Placements
Section 1355.22(b)(3) Placement and Services Decisions and
Changes
Section 1355.22(c) Process for Reporting Concerns About
Placements and Concerns About Retaliation
Section 1355.22(d) Retaliation Prohibited
Section 1355.22(e) Access To Supportive and Age- or
Developmentally Appropriate Services
Section 135.22(f) Placement of Transgender and Gender Non-
Conforming Children in Foster Care
Section 1355.22(g) Compliance With Privacy Laws
Section 1355.22(h) Training and Notification Requirements
Section 1355.22(i) Protections for Religious Freedom,
Conscience, and Free Speech
Section 1355.22(j) No Penalties for Providers That Do Not Seek
To Qualify as Designated Placements
Section 1355.22(k) Severability
Section 1355.22(l) Implementation
Section 1355.22(m) No Effect on More Protective Laws or Policies
Section 1355.34(c) Criteria for Determining Substantial
Conformity Comments on Cross-Cutting Issues
Kinship Caregivers
Impact of the Regulation on Foster Provider Availability and
Participation
Youth Disclosure of LGBTQI+ Status
Research on LGBTQI+ Children in Foster Care
Nondiscrimination Provisions
Implementation Costs
Requests for Technical Assistance and Implementation Supports
and Questions About Implementation and Compliance Monitoring
IV. Response to Comments Raising Statutory and Constitutional
Concerns
First Amendment and Religious Freedom
Statutory Authority
Arbitrary and Capricious
Spending Clause
Federalism Principles
Nondelegation Doctrine
Major Questions Doctrine
Fulton v. City of Philadelphia
V. Implementation Timeframe
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement
I. Executive Summary
Overview of Notice of Proposed Rulemaking
On September 28, 2023 (88 FR 66752), HHS issued a notice of
proposed rulemaking (NPRM) called Safe and Appropriate Foster Care
Placement Requirements for Titles IV-E and IV-B. ACF proposed the NPRM
to support states and tribes in complying with Federal laws that
require that all children in foster care receive safe and proper care.
In the NPRM, ACF proposed that it would require agencies to implement
specific processes and requirements to ensure that children in foster
care who identify as LGBTQI+ would be placed with foster care providers
who were trained to meet their specific needs related to their sexual
orientation and gender identity and who would facilitate access to age-
appropriate services to support their health and wellbeing. The NPRM
referred to these specially designated placements as ``Safe and
Appropriate'' placements for LGBTQI+ youth. Under the proposed rule,
agencies would be required to ensure that such placements were
available for any child in foster care who identifies as LGBTQI+ and
provided to any such child in foster care. However, the NPRM would not
have required providers to become designated as such a placement for
LGBTQI+ children. The NPRM also proposed agency procedures to ensure a
child who identifies as LGBTQI+ would not experience retaliation--
regardless of whether the child was in a specially designated ``Safe
and Appropriate'' placement, or whether the child was placed with a
foster care provider who had chosen not to seek such a designation.
The NPRM proposed that title IV-E/IV-B agencies would be required
to notify specified children (including all children at or above the
age of 14) about the availability of these placements, the process to
request such a placement, and the process to report placement concerns.
The NPRM also set forth specific steps for the placement of
transgender, intersex, and gender non-conforming children in sex-
segregated child care institutions and required specific training for
title IV-E/IV-B agency caseworkers and supervisors on how to
appropriately serve LGBTQI+ children.
Finally, the proposed rule explained that HHS would monitor a state
agency's compliance with the requirement in proposed Sec.
1355.22(a)(1) through the Child and Family Services
[[Page 34819]]
Reviews (CFSRs). As explained in the proposed rule, 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 currently 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.
Overview of Final Rule
In this final rule, ACF clarifies how title IV-E/IV-B agencies must
meet title IV-E and IV-B statutory requirements to appropriately serve
LGBTQI+ children in foster care.
ACF received a total of 13,768 comments on the NPRM and has
carefully considered each comment. A summary of comments and responses
are included in sections III and IV of this preamble. Based on comments
received, ACF has made modifications to the final rule.
To address requests from many commenters for further clarity about
the meaning of ``safe and appropriate,'' and its applicability to all
placements, the final rule distinguishes between the requirement of a
safe and appropriate placement, which is applicable to all children in
foster care, and a Designated Placement for LGBTQI+ children, which is
the term used in the final rule to describe providers who meet
specified requirements described in the rule to serve as a designated
provider for LGBTQI+ children. Because Federal law requires that every
child in foster care receive ``safe and proper'' care and placement in
the ``most appropriate setting available,'' ACF reiterates that all
foster care placements must be safe and appropriate for all children--
including LGBTQI+ children. This general protection that all foster
care placements must be safe and appropriate reiterates existing
statutory and regulatory requirements that title IV-E/IV-B agencies
must meet to comply with Federal law for all children in foster care.
This final rule specifies that as part of meeting the requirement to
provide a safe and appropriate placement for all children in foster
care, the title IV-E/IV-B agency must ensure that placements, including
those for LGBTQI+ children, are free from harassment, mistreatment, and
abuse, including related to a child's sexual orientation or gender
identity.
As set forth in the NPRM, HHS recognizes that LGBTQI+ youth face
significant disparities in the child welfare system. In order for
LGBTQI+ youth to receive care that meets Federal statutory guarantees
that each child in foster care will receive safe and proper care that
is consistent with the best interest and special needs of the child,
title IV-E/IV-B agencies must ensure LGBTQI+ children have access to
specially designated placements that are prepared to meet their unique
needs and create a supportive environment. This final rule refers to
those specially designated placements as ``Designated Placements.'' The
requirements of a Designated Placement are consistent with the
requirements proposed in the NPRM for specially designated placements
for LGBTQI+ children (which the NPRM referred to as ``Safe and
Appropriate'' placements), with some clarifying text added. Recognizing
that safe and proper treatment for LGBTQI+ children requires attention
to certain particular harms and risks that this population faces, this
final rule specifies that Designated Placement providers must have
particular training and provide particular protections for LGBTQI+
children that may not be relevant or necessary for non-LGBTQI+
children.
The final rule does not require any provider to become a Designated
Placement. Further, the rule specifies that nothing in the rule should
be construed as requiring or authorizing a state to penalize a provider
that does not seek or is determined not to qualify as a Designated
Placement provider. It also says that nothing in this rule shall limit
any State, tribe, or local government from imposing or enforcing, as a
matter of law or policy, requirements that provide greater protection
to LGBTQI+ children than this rule provides.
The rule requires that the title IV-E/IV-B agency ensure a
Designated Placement is available for, and may be requested by, any
child in foster care who identifies as LGBTQI+. In order to be
considered a Designated Placement for an LGBTQI+ child, the placement
must satisfy three conditions, each of which goes beyond the general
requirements that apply to all placements. First, the provider must
commit to establishing an environment that supports the child's LGBTQI+
status or identity. Second, the provider must be trained 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. Third, the provider must facilitate
the child's access to age- or developmentally appropriate resources,
services, and activities that support their health and well-being. HHS
has concluded that these conditions are generally necessary to
effectuate the statutory promise of a safe and appropriate placement
for children who are LGBTQI+ because of the extensive evidence of the
specific needs LGBTQI+ children have which require more specialized
support. This rule requires title IV-E/IV-B agencies to ensure that the
totality of their child welfare system includes sufficient placements
for LGBTQI+ children that meet each of these standards.
As explained further below, when making placement and services
decisions related to an LGBTQI+ child, the title IV-E/IV-B agency must
give substantial weight to the child's concerns or request for a
Designated Placement in determining the child's best interests.
The final rule requires agencies to notify certain children about
the availability of Designated Placements, the process to request one,
and the process to report concerns about their current placement or
about retaliation against them. Notification requirements apply to all
children age 14 and over, as well as those under age 14 removed from
their home due, in whole or part, to familial conflict about their
sexual orientation, gender identity, gender expression, or sex
characteristics; or if they have disclosed their LGBTQI+ status or
identity; or whose LGBTQI+ status or identity is otherwise known to the
agency. The final rule also requires that the title IV-E/IV-B agency
ensure that LGBTQI+ children have access to age and developmentally
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.
A number of commenters emphasized that, in many cases, if a child
requests services and a current placement chooses to accept them, that
could make a current placement more appropriate for an LGBTQI+ child
and prevent any need for a placement change. Other commenters raised
concerns about the potential for disruptive placement changes as a
result of the proposed rule. In response, the final rule recognizes
that, in addition to requesting a change in placement to a Designated
Placement, a child could also request that services be offered to
stabilize their current placement. Moreover, if a child requests a
Designated Placement, the final rule clarifies that to promote
placement stability, the title IV-E/IV-B agency must first consider
whether, if the current provider wishes to accept additional services,
it would allow the current provider to voluntarily meet the conditions
for a Designated Placement.
[[Page 34820]]
Promoting such stability is particularly important in cases where
children are placed with kin, siblings, close to families of origin,
and in family-like settings. In making the determination about the
child's best interests, the agency is required to give substantial
weight to the child's request. If the child's current provider elects
to become a Designated Placement, in accordance with the case review
system and protocols, the title IV-E/IV-B agency must regularly review
the status of the placement to ensure it progresses towards meeting the
relevant conditions. ACF expects this process will in some cases enable
title IV-E/IV-B agencies to provide Designated Placements while
preserving placement stability, particularly in settings where children
are placed with kin, with siblings, in close proximity to families of
origin, or in family-like settings as recommended by commenters.
The final rule also requires that the title IV-E/IV-B agency have a
procedure to protect LGBTQI+ children in foster care from retaliation
for disclosure of their LGBTQI+ status and/or identity, if they are
reported or perceived to have LGBTQI+ status and/or identity, or for
requesting a Designated Placement. It also requires training for title
IV-E/IV-B agency caseworkers and supervisors on how to appropriately
serve LGBTQI+ children and on how to implement the procedural
requirements of the rule. The final rule requires title IV-E/IV-B
agencies to ensure that agency contractors and subrecipients who have
responsibility for placing children in foster care, making placement
decisions, or providing services, as well as all placement providers,
are informed of the procedural requirements of the rule.
The statute at 42 U.S.C. 671(a)(8) enumerates safeguards which
restrict the use or disclosure of information concerning children in
foster care. These critical safeguards ensure the privacy and
confidentiality of children with very limited exceptions. Consistent
with title IV-E and IV-B confidentiality requirements at 42 U.S.C.
671(a)(8) and 45 CFR 1355.21(a), 1355.30(p)(3), and 205.50, the final
rule provides that agencies are prohibited from disclosing information
about a child's LGBTQI+ status or identity except as provided by
statute and that any such disclosure must be the minimum necessary to
accomplish the legally-permitted purposes. In response to comments, the
final rule clarifies the privacy and confidentiality protections for
information related to an LGBTQI+ child's status or identity. The
Children's Bureau will monitor a state agency's compliance through the
CFSRs, 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 currently
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. All requirements of the rule
will be subject to the partial review process.
The final rule expressly provides that insofar as the application
of any requirement under the rule would violate applicable Federal
protections for religious freedom, conscience, and free speech, such
application shall not be required. The rule does not require any
provider to become a Designated Placement, and specifies that nothing
in the rule should be construed as requiring or authorizing a state to
penalize a provider that does not seek or is determined not to qualify
as a Designated Placement from participation in the state's program
under titles IV-E and IV-B. The final rule also clarifies that the rule
does not limit any State, Tribal or local government or agency from
imposing or enforcing as a matter of state, tribal or local law or
policy, requirements that provide greater protection to LGBTQI+
children than this rule provides.
Legal Authority for the Final Rule
Titles IV-E and IV-B of the Social Security Act (the Act) require
title IV-E/IV-B agencies to provide case plans for all children in
foster care. Under section 475(1)(B) of the Social Security Act, 42
U.S.C. 675(1)(B), case plans must include a plan for assuring that the
child receives safe and proper care and that services are provided 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. The plan must also
discuss the appropriateness of the services provided to the child under
the plan. 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) of the Social Security Act, 42 U.S.C.
675(5)(A)) In order to receive title IV-E and IV-B funds, agencies must
have plans approved by ACF that provide for case plans and case review
systems that meet these statutory requirements (sections 471(a)(16) and
422(b) of the Social Security Act, 42 U.S.C. 671(a)(16) and 622(b)).
Additionally, in order to receive title IV-E funds, states and
tribes must certify in their title 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 [and] that the preparation will be continued, as necessary,
after the placement of the child'' (section 471(a)(24) of the Social
Security Act, 42 U.S.C. 671(a)(24)). The Act also requires that
agencies ensure that foster parents, as well as at least one official
at any child care institution providing foster care, receive training
on how to use and apply the ``reasonable and prudent parent standard,''
a ``standard characterized by careful and sensible parental decisions
that maintain the health, safety, and best interests of a child while
at the same time encouraging the emotional and developmental growth of
the child, that a caregiver shall use when determining whether to allow
a child in foster care under the responsibility of the State to
participate in extracurricular, enrichment, cultural, and social
activities'' (Social Security Act 471(a)(24) and (a)(10) and
475(10)(A), 42 U.S.C. 671(a)(24) and (a)(10) and 675(10)(A)).
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 (Social Security Act
section 471(a)(22), 42 U.S.C. 671(a)(22)).
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 titles IV-E and IV-B, implementing
regulations promulgated by the Secretary and the states' approved state
plans (section 1123A of the Social Security Act, 42 U.S.C. 1320a-2a).
Finally, the Act authorizes the Secretary to ``make and publish
such rules and regulations . . . as may be necessary to the efficient
administration of the functions with which [the Secretary] is charged
under [the Social Security Act].'' (Section 1102 of the Social Security
Act, 42 U.S.C. 1302)
[[Page 34821]]
II. Background
LGBTQI+ Children in the Child Welfare System
As the NPRM explained, a significant body of evidence demonstrates
that LGBTQI+ children are overrepresented in the child welfare system
and face poor outcomes in foster care.\1\
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\1\ Some studies cited below defined their scope as LGBTQ, LGBT,
or Lesbian, Gay, and Bisexual (LGB) children or youth specifically.
Where one of those studies is cited, this regulation uses the same
acronym as the study itself.
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Overrepresentation of LGBTQI+ Children in Foster Care
LGBTQI+ children are overrepresented in the foster care population.
One recent confidential survey revealed that 32 percent of foster youth
ages 12-21 surveyed report that they identify as having a diverse
sexual orientation or gender identity.\2\ Another large confidential
survey found that 30.4 percent of foster children aged 10-18 identify
as LGBTQ+.\3\ 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 two and a half times as
likely as heterosexual youth to experience a foster care placement.\4\
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\2\ 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 LBTQ2S Children and Youth in Foster Care (2021).
Cuyahoga Youth Count: A Report on LBTQ+ 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>.
\3\ Baams, L., Russell, S.T., and Wilson, B.D.M. 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>.
\4\ 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 LGBTQ+ juvenile-justice involved youth were three times more
likely to have been removed from their home and twice as likely to have
experienced being physically abused in their homes prior to removal
than their non-LGBTQ+ juvenile-justice involved counterparts.\5\
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\5\ 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 A.m. 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+ children are overrepresented in the child welfare system
because of a confluence of factors. Studies suggest that LGBTQ+
children face higher rates of parental physical abuse and are more
likely to run away from home or be kicked out than their non-LGBTQ+
counterparts, often because of conflict over their sexual orientation
or gender identity.\6\ These experiences place LGBTQI+ children at
greater risk of entering foster care and mean that many LGBTQI+
children 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. As a result of reviewing this research,
and hearing from LGBTQI+ individuals with lived experience in foster
care, we have developed this regulation to improve how title IV-E/IV-B
agencies address the needs of this population.\7\
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\6\ 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://ajph.aphapublications.org/doi/full/10.2105/AJPH.2009.190009">https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2009.190009</a>.
Pearson, J., Thrane, L., & Wilkinson, L. (2017). Consequences of
runaway and thrown away 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>. 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>.
\7\ ACF held two listening sessions with LGBTQI+ youth with
lived experience in foster care on February 9, 2023, and December
18, 2023.
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Impact of Family and Caregiver Behavior on LGBTQI+ Child Wellbeing
Research shows that the support LGBTQI+ children 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 2022 survey 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. That survey found that LGBTQ
youth who felt high social support from their family in these ways
reported less than half the number of suicide attempts than LGBTQ youth
who experienced low or moderate social support from their family.\8\
Another study quantified the negative impacts of family rejection of
LGBTQ children, which can lead to greater representation in foster
care.\9\ The study found that family behaviors, including excluding
LGBTQ children from family events and activities because of their
identity, not letting their child learn about their LGBTQ identity, or
trying to change their child's LGBTQ identity increased the risk of
depression, suicide, illegal drug use, and other serious health risks.
The study also found that family behaviors that support LGBTQ children,
including standing up for their child when others mistreat them because
of their LGBTQ identity, had positive outcomes, helped promote self-
esteem, overall health, and protected against suicidal behavior,
depression, and substance abuse. The study found that lesbian, gay, and
bisexual 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 lesbian, gay, and bisexual
counterparts from families that reported no or low levels of family
rejection.\10\ Studies found improved health outcomes in youth whose
caregivers demonstrated supportive behavior towards the child's LGBTQ+
identity, including connecting the child to an LGBTQ+ adult role
model.\11\ Moreover, caregiver behavior
[[Page 34822]]
that is not affirming, including refusing to use a child's chosen name
and pronouns, or ridiculing or name-calling because of the child's
LGBTQ+ identity, contributes to increased risks for serious health
concerns for the child, such as depression, suicidal thoughts, suicidal
attempts, and illegal drug use.\12\
---------------------------------------------------------------------------
\8\ 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>.
\9\ See 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]. 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. 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), <a href="https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext">https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext</a>.
\10\ 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), <a href="https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext">https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext</a>.
\11\ Ryan, C (2021) Helping Diverse Famiies 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, <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>.
\12\ 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 mental health and
well-being needs often being unmet. 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 proper, as required by statute.\13\
---------------------------------------------------------------------------
\13\ For examples, see Weston 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 Life-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,
<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>. ACF held two
listening sessions with LGBTQI+ youth with lived experience in
foster care on February 9, 2023, and December 18, 2023.
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LGBTQI+ children in foster care report experiencing mistreatment
related to their sexual orientation or gender identity. One study found
that ``one of the most consistent themes that LGBTQ youth in foster
care have conveyed in focus groups and qualitative interviews is a
tendency to be harassed, teased, and bullied by staff, peers, and
[foster] 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.'' \14\
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\14\ 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
rather than family like settings), experience multiple placements, and
have adverse experiences in their placement than non-LGBTQI+-
identifying youth.\15\ 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.\16\
---------------------------------------------------------------------------
\15\ 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>.
\16\ Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T., 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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A 2021 study showed that children in foster care who identify as
LGBTQ+ report a perception of poor treatment by the foster care system
more frequently than their non-LGBTQ peers and feel less frequently
that they can be themselves.\17\ 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.\18\
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\17\ 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>.
\18\ Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T., 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>.
---------------------------------------------------------------------------
In one study that looked at LGBTQ+ status-related discrimination,
37.7 percent of children in foster care ages 12 through 21 who identify
as LGBTQ+ reported poor treatment connected to their gender expression,
sexual minority status, or transgender status. The study also showed
that LGBTQ+ foster youth were more likely than their non-LGBTQ+ foster
youth counterparts to have been hospitalized for emotional reasons or
been homeless at some point in their life.\19\
---------------------------------------------------------------------------
\19\ 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>.
---------------------------------------------------------------------------
Research has also demonstrated strong correlations between LGBTQI+
children who spent time in foster care and who later experienced
housing instability, homelessness, and food insecurity. LGBTQI+ youth
who reported past housing instability or a current homeless episode
were six times more likely to have been in foster care than LGBTQI+
youth who did not report any housing instability.\20\
---------------------------------------------------------------------------
\20\ 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>.
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These many findings illustrate the need for child welfare personnel
and foster parents to be trained on their critical role in the lives of
LGBTQI+ children to avoid re-traumatization and further victimization
of children.\21\ Implementing strategic training and recruitment to
meet the well-being needs of children who are LGBTQI+ is critical.
---------------------------------------------------------------------------
\21\ 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+ Children
Research consistently shows that when LGBTQI+ youth experience
supportive environments and services, they experience the same positive
mental health outcomes as other youth.\22\ 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 LGBTQ youth in foster care
were more than two and a half times more likely to report a past year
suicide attempt than LGBTQ youth who were not in foster care, with 35
percent of LGBTQ foster youth reporting
[[Page 34823]]
such an attempt. Reports of past year suicide attempt rates were even
higher among LGBTQ+ foster youth of color (38 percent) and non-binary
and transgender foster youth (45 percent).\23\
---------------------------------------------------------------------------
\22\ 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>.
\23\ 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>.
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One area of particular concern for the mental health of LGBTQI+
youth in foster care is possible exposure to sexual orientation or
gender identity or expression change efforts (so-called ``conversion
therapy''), as well as other actions to change, suppress or undermine a
child's sexual orientation, gender identity, or gender expression. Such
efforts 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.\24\ The American
Psychological Association (APA) has concluded that any behavioral
health or other effort that attempts to change an individual's gender
identity or expression is inappropriate and, further, can cause harm
and/or suffering. 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 these
practices because of their association with harm.\25\ Likewise,
according to the APA, sexual orientation change efforts are ``coercive,
can be harmful, and should not be part of behavioral health
treatment.\26\ A literature review by Substance Abuse and Mental Health
Services Administration (SAMHSA) discussed in its 2023 report, ``Moving
Beyond Change Efforts: Evidence and Action to Support and Affirm
LGBTQI+ Youth'' concluded that [sexual orientation change efforts] were
not effective and may cause harm.'' It found that no research has
``demonstrated that gender identity change efforts are effective in
altering gender identity.'' In fact, the review found that ``exposure
to gender identity change efforts . . . is associated with harm,
including suicidality, suicide attempt, and other negative mental
health outcomes such as severe psychological distress.'' \27\
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\24\ 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>.
\25\ 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>.
\26\ 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>.
\27\ 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, <a href="https://store.samhsa.gov/product/moving-beyond-change-efforts-evidence-and-action-support-and-affirm-lgbtqi-youth/pep22-03-12-001">https://store.samhsa.gov/product/moving-beyond-change-efforts-evidence-and-action-support-and-affirm-lgbtqi-youth/pep22-03-12-001</a>.
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Current Approaches To Meet the Needs of LGBTQI+ Children in Foster Care
Current approaches for meeting the needs of LGBTQI+ children in
foster care 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 a report on
``Protecting the Rights and Providing Appropriate Services to LGBTQI+
Youth in Out-of-Home Care'' (``Report'').\28\ 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 supportive'' 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. The Report found that
eight states and the District of Columbia offer developmentally
appropriate case management that helps child welfare workers support
LGBTQI+ youth. The Report found that 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.
---------------------------------------------------------------------------
\28\ 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>.
---------------------------------------------------------------------------
However, the Report also demonstrates that a majority of title IV-
E/IV-B agencies do not have laws, regulations, or policies to make
appropriate services and supports or Designated Placements available to
an LGBTQI+ child in foster care. Without such laws or policies,
agencies may not adequately meet statutory requirements that guarantee
that LGBTQI+ children in foster care, like all foster children, receive
a safe and proper 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 LGBTQI+ child
who is at risk of entering or is in foster care.\29\ ACF believes this
final rule will help address the extensively documented risk factors
and adverse outcomes for LGBTQI+ children in foster care.
---------------------------------------------------------------------------
\29\ 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. Regulatory Provisions and Responses to Comments
Summary of Commenters
The comment period for the NPRM was open for 60 days and closed on
November 27, 2023. We received a total of 13,768 comments consisting
of:
<bullet> Comments from 15 state or local child welfare agencies and
governmental entities, such as state attorneys generals (AG) and a
state civil legal aid office;
<bullet> Two letters representing 26 congressional members;
<bullet> Comments from 65 advocacy organizations, providers, and
university institutes; and
<bullet> 13,536 comments from individuals, more than 12,000 of
which consisted of two form letters, one in support and one in
opposition.
We also received comments that were submitted on a different NPRM,
were out of scope, or were duplicate submissions, and will therefore
not be addressed. No comments were received by the deadline from Indian
Tribes, Tribal organizations or consortiums, or organizations that
represent Tribal interests. The comments are available in the docket
for this action on <a href="https://www.regulations.gov/docket/ACF-2023-0007/comments">https://www.regulations.gov/docket/ACF-2023-0007/comments</a>. We reviewed and analyzed all of the NPRM comments and
considered them in finalizing this rule.
Below is a summary of comments received. We include a detailed
[[Page 34824]]
response to comments in section IV of this preamble.
Summary of Comments by Commenter Type
Summary of Comments From State and Local Child Welfare Agencies
Four states or government entities expressed support: three were
supportive of ACF's goal to improve care for LGBTQI+ children but also
expressed concerns and recommended substantive changes to the proposal,
and one expressed a neutral position. The supporters expressed that
they are currently undertaking efforts to meet the needs of LGBTQI+
children in foster care, such as state-level non-discrimination laws, a
foster children's bill of rights, resource groups for LGBTQI+ community
outreach, requiring providers to demonstrate an ability to support
LGBTQI+ children, and training for their workforce on cultural
competency and sensitivity related to sexual orientation and gender
identity. State agencies and governments who supported the rule
expressed appreciation for the efforts of HHS to establish protections
for LGBTQI+ children in foster care. They also supported some of the
NPRM's requirements around assessing that placements meet the unique
needs of LGBTQI+ children, reporting concerns with such placements, and
placing children in sex-segregated child care institutions according to
their gender identity.
Four states or government entities and the three letters
representing 20 state attorneys general opposed the proposal. The state
agencies and governments who opposed the rule stated a general belief
that the NPRM creates a separate and distinct process for LGBTQI+
children that violates privacy and raised concerns related to the
religious beliefs of providers. Additional concerns raised included
that the NPRM would require an ``upfront'' conversation about a child's
sexual orientation and gender identity instead of allowing a child to
decide when to share this information with their case worker. Those
states or entities who opposed the NPRM also argued that it creates a
``cumbersome fix'' for a problem that lacks clear definition while
states are currently having issues finding enough providers for all
children in foster care. They also argued that the NPRM's provisions
would disincentivize families who may object to providing specially
designated care for LGBTQI+ children from serving as foster parent
providers and would ``drive individuals and organizations of faith
away.'' They also expressed concerns that most congregate care
providers are not currently equipped to meet the provisions around
placing children according to their gender identity. Finally, there
were objections to what they saw as unfunded burdens on the agencies to
develop new trainings, modify licensing and placement rules, and revise
case management systems to track placements, notifications, and other
requirements in the NPRM.
Letters from State attorneys general raised legal concerns that the
NPRM violates various statutory and constitutional requirements; these
concerns are addressed in section IV.
Suggestions for revisions from state and local child welfare
agencies and Government entities included:
<bullet> Expanding the approach proposed in the NPRM to apply the
process to report placement concerns and provide notice to all children
in foster care and not only to those specified in the NPRM, such as
those over age 14;
<bullet> Providing clear guidance related to all of the rule's
requirements and specifically the treatment of kin placements;
<bullet> Providing more funding to establish or enhance services
for LGBTQI+ children within the states; in rural areas; and for
recruitment, retention, and training of child welfare workers and
foster care providers; and
<bullet> Replacing specific terms or phrases to broaden or provide
flexibility to certain requirements, such as replacing ``retaliation''
with ``discrimination'' and replacing ``age-appropriate'' with
``developmentally appropriate.''
Summary of Comments From Congressional Members
Two sign-on letters from a total of 26 congressional members
expressed opposition to the NPRM. They generally expressed a belief
that the NPRM imposes mandates on a subset of children based
exclusively on the child's gender identity and sexual orientation while
there are no Federal policies that define ``safe and proper care'' for
other children with unique characteristics, such as those living with a
disability. They argued that the proposed rule would dissuade families
of faith from being foster parents, thus impacting availability of
foster care placements and that the training requirements would impact
availability of caseworkers. They also expressed concern that the
proposed rule will impose ``significant financial and administrative
burdens'' on title IV-E agencies. They expressed concerns about the
NPRM's requirements for transgender children and that placing children
according to their gender identity could result in children being
placed in settings ``they find uncomfortable and invasive or, at worst,
unsafe.''
Summary of Comments From Advocacy Organizations, Providers, and
Universities
Of the 65 advocacy organizations, providers, and university
institutions that commented, 34 were supportive of the Department's
goal to improve care for LGBTQI+ children but also recommended
substantive changes to the proposal. Seven expressed support without
recommending changes to the proposal, and 24 opposed.
Those organizations, providers, and university institutions who
supported the rule without making changes concurred with the research
summarized in the NPRM that demonstrates the complex challenges faced
by LGBTQI+ children in foster care and agreed that the NPRM would help
prevent discrimination and retaliation against LGBTQI+ children by
allowing them to express their identities without fear of
discrimination. They argued that the NPRM balances the exercise of
religion with the need to ensure child wellbeing and represents an
essential step towards creating an inclusive and supportive child
welfare community. Some of the providers who commented expressed
support for the NPRM and outlined the programs, policies, and
procedures that they currently undertake to assist LGBTQI+ children in
foster care. These practices included training kin caregivers and
families of origin on affirming care, helping youth identify lasting
affirming connections, having a mix of residential facilities for
children, and training for facilities staff.
The 34 advocacy organizations, providers, and university institutes
that expressed general support but also concerns with the NPRM's
requirements appreciated ACF's commitment to ensuring that LGBTQI+
children in foster care are protected from harm. They agreed that
LGBTQI+ children are overrepresented in the child welfare system and
appreciated that ACF's summary of research documents the discrimination
and challenges LGBTQI+ children in foster care face.
However, some of the advocacy organization and providers that
commented expressing overall support also raised concerns about the
approach of the NPRM and some stated that it was vague, lacking
clarification at various decision-making points, and would negatively
impact the availability of providers, specifically kin and religious
[[Page 34825]]
providers. Commenters raised concerns over freedom of religion and the
legality of the NPRM's proposed requirements. Several organizations
argued the NPRM as drafted could harm, instead of help, LGBTQI+
children in foster care. Specific concerns about the NPRM raised by
these commenters include that the proposed rule added a layer of
bureaucracy on child welfare agencies; may present a burden for kin
caregiver providers to meet; creates a ``two-tiered system'' where non-
LGBTQI+ children have an expectation of safety anywhere, but for
LGBTQI+ children only certain placements are ``safe and appropriate'';
places the onus on children to request a placement change, requiring
them to disclose their identity when they may not feel comfortable
doing so; did not explicitly contain anti-discrimination policies;
lacked additional funding to implement the rule's requirements; and
questioned whether CFSR would be the best mechanism for monitoring. As
with all comments noted in these summaries, these concerns are
addressed in the comment and response section that follows.
A number of the commenters who opposed the NPRM said that, while
they agreed that every child in foster care should feel safe and be in
a hostility-free environment, they were concerned that the NPRM only
applied to LGBTQI+ children. Those that opposed generally argued the
NPRM infringes upon religious liberties, questioned whether it was
legal in its approach, and stated it minimized the contributions of
faith-based providers. Some providers who submitted comments said the
NPRM would have ``unintended consequences'' such as exacerbating the
placement shortage. They also argued the NPRM was overly broad and
vague, for example stating that not defining ``hostility, mistreatment,
and abuse'' was ``deliberate'' to enable labeling providers as unsafe
for ``simply disagreeing with the state's so-called `appropriate'
method for caring for LGBT children.'' They expressed concern that the
NPRM would preclude ``reasonable efforts'' to help children think
through their ``current feelings and assumptions'' arguing that foster
parents should be free to offer their views. They also expressed
concerns that ``age-appropriate services and supports'' could require
gender-affirming care for transgender minors, which they argued creates
various risks for children and should not be provided. Some commenters
said that the NPRM's provision to place children according to their
gender identity would ``threaten girls' privacy'' and that requiring
use of a youth's chosen pronouns is a violation of free speech. A few
commenters suggested instead creating a certification process for
providers who have undergone training to be particularly supportive and
affirming for LGBTQI+ children in foster care, such as something
similar to having training to be a therapeutic foster care placement.
Summary of Comments From Individual Commenters
As noted earlier, we received approximately 13,536 comments from
individuals, more than 12,000 of which consisted of two form letters.
Of those, over 1,700 form letters expressed support, and over 10,000
form letters expressed opposition. Additionally, over 100 non-form
letters expressed support, over 1,300 non-form letters expressed
opposition, and 25 non-form letters expressed a neutral position. In
general, the supportive commenters agreed that LGBTQI+ children are
overrepresented in foster care, applauded HHS for requiring agencies to
maintain enough safe and appropriate placements for LGBTQI+ children,
and expressed their belief that this rule would be a ``huge step
forward'' in keeping children safe. They also agreed that LGBTQI+
foster children should not be subjected to abuse or discrimination,
including by placements that practice ``conversion therapy.'' Some
commenters stated that agencies have no policies that protect LGBTQI+
children in foster care and that the proposals in the NPRM will create
important mandates for agencies and providers. Others expressed that
ensuring that providers are trained and equipped with skills to provide
for a child's needs regarding sexual orientation and gender identity is
the ``next step in improving the well-being of the LGBTQI+ youth in
foster care.'' Supportive commenters asked who will define ``safe and
proper care.''
Commenters who expressed opposition expressed a belief that the
approach taken in the NPRM would harm, rather than help, children in
foster care. They argued that it would disqualify most faith-based
providers and label people of faith and religious organizations as
``unsafe'' and ``inappropriate.'' The individuals and anonymous
commenters who opposed the NPRM expressed concerns that the proposal
would reduce the number of available providers, exacerbate the
placement shortage, and discourage religious families and individuals
from becoming foster parents or seeking employment in the child welfare
profession. There were also a substantial number of commenters who
appeared to misunderstand or misinterpret the NPRM's provisions,
including a substantial number of comments discussing the
appropriateness or lack thereof of gender-affirming care for children.
These comments are outside the scope of the rule because this rule does
not establish any particular standard of medical care or require that
anyone receive any particular medical services.
The 25 commenters who expressed neutral positions shared personal
stories of their experience with LGBTQI+ children or foster care, views
on child rearing, or generally that placements should be free from
hostility and mistreatment.
Section by Section Discussion of Regulatory Provisions
We respond to the relevant comments we received in response to the
NPRM in this section-by-section discussion.
Title and Definition of LGBTQI+
In the proposed rule we proposed the title of Sec. 1355.22 to be
``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.'' The proposed rule used the terms
``LGBTQI+ status'' and ``LGBTQI+ identity'' in various locations to
refer to LGBTQI+ children.
Comments: Some commenters encouraged ACF to amend the rule to
explicitly include other identities--such as children who are Two
Spirit--to be as inclusive as possible and provide clarity for
providers. Some commenters encouraged ACF to explicitly include
children with a variation in sex characteristics in addition to
intersex children, as not all such children identify as intersex. Other
commenters encouraged ACF to include protections based on ``LGBTQI+
identity'' in addition to ``LGBTQI+ status'' to provide maximum clarity
about which children are entitled to Designated Placements.
Response: ACF agrees that addressing the needs of Two Spirit youth
in the child welfare system is an important part of this regulation.
ACF also agrees with the importance of providing clarity to title IV-E/
IV-B agencies and providers about the meaning of the term ``LGBTQI+.''
For the purposes of this rule, the term refers to children who identify
as lesbian, gay, bisexual, transgender, queer or questioning, intersex,
as well as children who are non-binary, Two-Spirit, or have non-
[[Page 34826]]
conforming gender identity or expression, all of whom are referred to
under the umbrella term of LGBTQI+ for this regulation.
For streamlining purposes, ACF updated the final rule's regulatory
text to read ``LGBTQI+ children (including children who are lesbian,
gay, bisexual, transgender, queer or questioning, and intersex).'' The
word ``including'' clarifies that the umbrella term LGBTQI+ includes
children who are non-binary, Two-Spirit, or have non-conforming gender
identity or expression as well.
We also agree with commenters that the use of both ``LGBTQI+
status'' and ``LGBTQI+ identity'' offers greater clarity. The term
``LGBTQI+ status'' is frequently used in reference to protecting
LGBTQI+ individuals from discrimination, harm, and mistreatment based
on their ``LGBTQI+ status.'' Protecting a child from mistreatment based
on their ``LGBTQI+ status'' would include protections should the child
disclose their LGBTQI+ identity, should a third party identify a child
as LGBTQI+, or should the child be perceived as having an LGBTQI+
identity. Other sections of the NPRM provided protections to children
based on their ``LGBTQI+ identity.'' The term ``LGBTQI+ identity'' is
frequently used when a person self-identifies as LGBTQI+. For this
final rule, ACF uses the term ``LGBTQI+ status or identity,'' and any
reference to LGBTQI+ children is intended to include both children with
LGBTQI+ status and LGBTQI+ identity. For brevity, ACF has revised the
title of this final regulation to be ``Designated Placement
requirements under titles IV-E and IV-B for LGBTQI+ children.''
In regard to questions about children with variations in sex
characteristics, ACF acknowledges that not all children with variations
in sex characteristics self-identify with the term intersex but
believes that the term LGBTQI+ provides sufficient clarity that the
rule's protections apply to such children.
Final Rule Change: ACF updated the title of the regulation to
``Designated Placement requirements under titles IV-E and IV-B for
LGBTQI+ children'' and updated the rule text to read ``LGBTQI+ children
(including children with lesbian, gay, bisexual, transgender, queer or
questioning, and intersex status or identity).''
Section 1355.22(a) Protections Generally Applicable
In Sec. 1355.22(a)(1) of the proposed rule, ACF proposed to
require that title IV-E/IV-B agencies ensure that a safe and
appropriate placement is available for and provided to all children in
foster care, including each LGBTQI+ child in foster care. The proposed
rule referred to specially designated placements for LGBTQI+ children
in foster care as ``Safe and Appropriate'' placements. The NPRM
proposed that a ``Safe and Appropriate'' placement for an LGBTQI+ child
would be a placement in which (1) the provider will establish an
environment free of hostility, mistreatment, and abuse based on the
child's LGBTQI+ status; (2) the provider is required to be trained on
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) the provider will facilitate
the child's access to age-appropriate resources, services, and
activities that support their health and well-being. The NPRM further
clarified that providers would not be required to be ``Safe and
Appropriate'' as the rule does not compel any particular provider to
seek a special designation to provide supportive care to LGBTQI+
children.
Comments: Numerous commentors, including those who supported and
opposed the requirements of the proposed regulation, provided
recommendations for using clearer terminology in the final rule.
Some commenters suggested that every child is already entitled to a
safe and appropriate placement under Federal child welfare law, and
that the final rule should clarify that this requirement applies to all
children in foster care, not just to children in specially designated
placements for LGBTQI+ children.
A number of commenters were opposed to applying the protections in
paragraph (a) of the NPRM only to LGBTQI+ children for various reasons,
including that it could appear that LGBTQI+ children are provided
protections not guaranteed to others. Another commenter stated that
there are no other Federal policies that define how a state must
provide ``safe and proper care'' to children of other unique
circumstances.
Many commenters expressed concern with the terminology ``safe and
appropriate'' placements, interpreting that such a placement was only
available to LGBTQI+ children. One commenter expressed the belief that
using the term ``safe and appropriate'' permits the state to place the
child with caregivers who are merely tolerant of the child's sexual
orientation or gender identity rather than in a home that is fully
supportive. Commenters stated the rule does not go far enough to affirm
children, and that the ``free from hostility, mistreatment, and abuse''
threshold was insufficient.
A number of commenters recommended that the final rule should
require all placement providers to meet the requirements to be a safe
and appropriate placement, unless they obtain a waiver based on a
religious objection. Other commenters argued that unless all placement
providers are required to be supportive, some LGBTQI+ foster children
will not receive the benefit of such placements because they are not
comfortable disclosing their identity to their caseworker.
Conversely, many commenters wrote that the proposed rule relies on
a false assumption that only placements that support a child's LGBTQI+
identity are safe and proper. A commenter explained that the proposed
rule would create a two-tiered system for both foster families and
child-placing agencies in which consideration is given to homes that
promote a liberal view of sexuality and gender. Commenters stated that
this could particularly impact providers with religious beliefs and
viewpoints that oppose same-sex marriage and believe that there are
only two genders, for example. One commenter stated that, absent clear
definitions and parameters for a safe home, foster families who hold
certain religious convictions are at risk of being inappropriately
deemed unsafe. One commenter stated that a foster family should not
have to agree with a child's beliefs and that the foster parent's
belief regarding sexuality and gender identity does not compromise
their ability to provide safe and appropriate care for non-LGBTQI+
children.
Response: ACF appreciates commenters' views and suggestions. ACF
agrees that the terminology used in the NPRM, which referred to
placements that are specially designated for LGBTQI+ children as ``Safe
and Appropriate,'' needed clarification.
First, consistent with comments received, ACF confirms that Federal
law requires all foster care placements to be safe and appropriate. ACF
did not intend to suggest otherwise with the terminology it used in the
NPRM. The agency sought to clarify how these Federal statutory
requirements should be met in the context of LGBTQI+ children who, as
the preamble to this rule demonstrates, have specific needs related to
placements and services. One important aspect of a safe and appropriate
placement for all children is that the placement be free of harassment,
mistreatment, and abuse, and at 45 CFR 1355.22(a), we have incorporated
regulatory language
[[Page 34827]]
making clear that this requirement applies to all children in all
placements, including LGBTQI+ children. We discuss the change to using
the term ``harassment'' rather than the term ``hostility''--the term we
had employed in the NPRM--below.
Second, ACF acknowledges the concerns of commenters that families
who do not meet or seek to meet specified requirements to serve as a
designated provider for LGBTQI+ children could be mislabeled as
``unsafe'' under the terminology of the proposed rule. ACF acknowledges
the particular concerns of faith-based providers and families of faith
who serve as foster families. We appreciate the vital role that many
families and providers of faith play in the child welfare system, and
ACF is committed to upholding Federal legal protections for religious
exercise, free speech, or conscience as further discussed in the
``Response to Comments Raising Statutory and Constitutional Concerns''
section of this preamble.
In response to these concerns, HHS has revised the terminology used
in the final rule. The rule now uses the phrase ``Designated
Placements'' as shorthand to refer to providers that are specially
designated to serve LGBTQI+ children because they have made a set of
commitments and undergone training to better meet the needs of LGBTQI+
children. State and Tribal agencies must have available a sufficient
number of these placements as part of their responsibilities to satisfy
the statutory requirement that all children in foster care have access
to a safe and appropriate placement.
ACF disagrees with commenters who asserted that placements that
affirm the identity of LGBTQI+ children are not beneficial for the
child. As described in the introductory section of this preamble
addressing Mental Health Needs of LGBTQI+ Youth, an extensive body of
research consistently shows that when LGBTQI+ youth experience
supportive environments and services, they experience the same positive
mental health outcomes as other youth. Further, evidence from 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. In view of the
data, ACF disagrees with the commenter's view that supportive
placements are not necessarily desirable for safe and appropriate
placement of children.
Comments: Multiple commenters asked for clarification of what
specific requirements would apply to placement providers (i.e., foster
family homes, child care institutions) that do not choose to become
Designated Placements for LGBTQI+ children. Commenters asked that ACF
provide examples of what such providers would and would not be required
to do. For example, some commenters vocalized the importance of
allowing placement providers to talk with children about their own
feelings, and to have the ability to offer alternative viewpoints to
LGBTQI+ children. Conversely, many commenters also suggested that the
rule be expanded to require that all foster parents should be able to
meet the needs of any child who enters their home to ensure that all
children, including those who identify as LGBTQI+, are able to thrive
in care.
Response: As noted above, ACF appreciates the opportunity to
clarify that all children in foster care are entitled to safe and
appropriate care under Federal law, regardless of whether they are
LGBTQI+ or not, and if they are LGBTQI+, regardless of whether they are
in a Designated Placement. Titles IV-E and IV-B of the Act provide
protections that are designed to ensure that while in foster care, all
children receive ``safe and proper care'' (Social Security Act section
475(1)(B), 42 U.S.C. 675(1)(B)). Specifically, as part of its title IV-
E and IV-B plans, an agency must develop a case plan for each child in
foster 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'' (Id.). This statutory process 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 (Social Security Act sections 422(b),
471(a)(16), 475(1)(B), and 475(5), 42 U.S.C. 622(b), 671(a)16), and
675(5)). The responsibility to develop and implement foster children's
case plans lies with the child welfare agency. Child welfare agencies
assign foster children to placement providers in accordance with their
case plans. These decisions are individualized and take many aspects of
a child's circumstances into account. These general protections for
safe and appropriate foster care placements apply to all placements and
all children.
ACF appreciates the opportunity to further clarify what these
general statutory provisions require. These statutory terms, which
apply to all placements, at a minimum mean that the placement must be
free from harassment, mistreatment, and abuse--including related to a
child's sexual orientation, gender identity, or LGBTQI+ status. In this
final rule, we use the term ``harassment'' in place of the term
``hostility'' used in the proposed rule. We agree with the concern,
articulated by commenters, that the term ``hostility'' is
insufficiently clear to provide guidance to providers. By using the
term ``harassment,'' we seek to clarify that the general protections
focus on the provider's conduct; a provider will not violate this rule
simply because of the view or beliefs the provider may have or by good-
faith and respectful efforts to communicate with LGBTQI+ children about
their status or identities. Under its settled meaning in the law, the
concept of harassment requires conduct that is sufficiently severe or
pervasive to create an unsafe or hostile environment based on the
child's characteristics. See, e.g., Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 78 (``When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment, Title VII is violated.'')
(citation omitted).
Of course, children in foster care are especially vulnerable and
rely on their providers to provide a supportive and protective
environment. Protecting LGBTQI+ children from harassment, mistreatment,
or abuse in all foster care placements is of particular importance
given the vulnerability of these children. For example, as described in
the preamble to this rule, a significant body of evidence demonstrates
a connection between the risk that a LGBTQI+ child will consider or
attempt suicide and the conduct and treatment of their caregivers
towards the child's sexual orientation or gender identity. A 2009 study
cited above showed that ``LGB young adults who reported higher levels
of family rejection during adolescence were 8.4 times more likely to
report having attempted suicide [and] 5.9 times more likely to report
high levels of depression'' compared with children of families of low
or no such behaviors.\30\ Application of the legal
[[Page 34828]]
definition of harassment must necessarily attend to this context. See
Oncale, 523 U.S. at 81(1998) (determination of harassment ``requires
careful consideration of the social context in which particular
behavior occurs and is experienced by its target'').
---------------------------------------------------------------------------
\30\ 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), <a href="https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext">https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext</a>.
---------------------------------------------------------------------------
Harassment does not include an isolated hurtful remark or action.
But it can include deprivation of key resources. See id. at 650-651
(actionable harassment exists when it keeps ``female students from
using a particular school resource--an athletic field or a computer
lab, for instance''). Conduct need not physically deprive an individual
of such a resource to constitute harassment; harassment includes
conduct that so undermines and detracts from the victims' . . .
experience [with the program], that the victim[s] are effectively
denied equal access to [the program's] resources and opportunities.''
Id. at 651.
Harassment, mistreatment, or abuse of any child in foster care is
impermissible in any placement. A provider that harasses a child about
that child's religious beliefs or practices violates the general
guarantee that all foster placements must be safe and appropriate.
Similarly, a provider that harasses a child about that child's LGBTQI+
status or identity violates the same guarantee.
In response to commenters who sought clarity about what conduct
would or would not be permissible in placements that had not sought
designation as a Designated Placement, ACF appreciates that some
providers, like some caregivers, parents, and kin, may struggle to
understand an LGBTQI+ child's identity, or have questions or concerns
about a child's wellbeing upon learning that a child in their care is
LGBTQI+. Good-faith and respectful efforts to engage children
appropriately do not constitute harassment, mistreatment, or abuse.
However, though the inquiry must be fact specific, providers can cross
the line into harassment, mistreatment, or abuse if they are found to
have engaged in behaviors such as punishing the child, subjecting the
child to harsher rules, or excluding the child from community
activities because they are LGBTQI+; or disparaging the child, calling
them shameful, or using slurs or derogatory language because they are
LGBTQI+. Such conduct can also constitute prohibited retaliation as
outlined in paragraph (d) of this rule.
ACF understands that many providers will be learning over time how
to best engage LGBTQI+ children. As discussed below at Section
1355.22(b)(3) Placement and Services Decisions and Changes, ACF
recognizes that some providers may be willing to accept and benefit
from additional resources and training in order establish a supportive
environment for an LGBTQI+ child. ACF will provide technical assistance
and guidance to agencies to support training and resources for
providers who desire such training. ACF again notes that good-faith and
respectful efforts to communicate with LGBTQI+ children about their
status or identity do not constitute harassment, mistreatment, or
abuse.
Additionally, consistent with the proposed regulation, this final
rule requires that the title IV-E/IV-B agency ensure that no LGBTQI+
child experience retaliation in any placement, including those that are
not Designated Placements. Revisions to the rule's nonretaliation
provisions are described below. Accordingly, if a placement provider
were to engage in (or attempt to engage in) retaliation against an
LGBTQI+ child, the title IV-E/IV-B agency must take steps to protect
the child from such retaliation. Depending on the circumstances and
child's wishes, those steps could include moving the child to a new
Designated Placement.
ACF reiterates that the final rule does not directly regulate the
actions of individual foster care providers, as title IV-E/IV-B
agencies are responsible for ensuring that each placement the agency
makes meets requirements that it is safe and appropriate. As with all
provisions of this rule, caseworkers who make individualized placement
decisions about each child in foster care will make case-by-case
determinations about which placement is in the best interest of the
child to implement the requirements of Federal statutory protections as
well as this rule.
ACF reiterates that this rule does not prohibit individuals and
organizations from continuing to participate as foster care providers
if they do not wish to serve as Designated Placements. Although states
and tribes must have sufficient Designated Placements for LGBTQI+
children, the final rule does not require any placement to meet the
requirements of a Designated Placement. The fact that a given provider
has not sought to become a Designated Placement is not evidence that
the provider has engaged in harassment, mistreatment, or abuse. We have
added a new provision at Sec. 1355.22(j), which states that nothing in
this rule requires or authorizes a State to penalize a provider in the
state's titles IV-E and IV-B program because the provider does not seek
or is determined not to qualify for the status of a Designated
Placement under this rule.
Consistent with the NPRM, this rule also requires that placement
providers who have not chosen to become Designated Placements for
LGBTQI+ children are informed of the procedural requirements to comply
with the rule, including the non-retaliation provision, described
below.
Comment: Many commenters said the proposed rule did not define the
terms ``hostility,'' ``mistreatment,'' and ``abuse'' and sought clarity
on their meaning. One commenter suggested the final regulations provide
greater specificity about what actions by providers/social workers
cannot be permitted because they undermine, rather than create safe and
appropriate spaces for, LGBTQI+ and other children.
Response: As described elsewhere in this preamble, we are
clarifying that as part of meeting the requirement to provide a safe
and appropriate placement for all children in foster care, the title
IV-E/IV-B agency must ensure that placements, including those for
LGBTQI+ children, are free from harassment, mistreatment, or abuse. As
we explain above, we now use the term ``harassment'' in place of the
term ``hostility'' used in the NPRM in response to requests from
commenters for greater clarity. Applying the ``harassment,
mistreatment, or abuse'' test advances the goal of providing a safe
environment to children while ensuring that agency staff and foster
care providers will not violate those general protections simply for
holding any view or belief or for good-faith and respectful efforts to
communicate with LGBTQI+ children about their status or identity. Since
those requirements and all of the rule's retaliation requirements apply
to all foster care placements, they also necessarily apply to all
placement providers, including Designated Placements. We note, as well,
that the final rule's non-retaliation provision is not limited to
providers. Thus, similar actions by caseworkers would also be
prohibited by this rule. And because the general protections apply to
all children, this final rule prohibits harassment, mistreatment, or
abuse even when not directed against a child based on LGBTQI+ status or
identity. For example, harassment of a child because of their religious
beliefs or cultural practices would violate those general statutory
protections. For further discussion of these issues, we refer the
reader to the beginning of this section.
[[Page 34829]]
Final Rule Changes: We have revised the final rule so that 45 CFR
1355.22(a) now provides that as part of meeting the requirement to
provide a safe and appropriate placement for all children in foster
care, the title IV-E/IV-B agency must ensure that placements, including
those for LGBTQI+ children, are free from harassment, mistreatment, or
abuse.
Section 1355.22(b)(1) Designated Placements and Services for LGBTQI+
Children
The NPRM preamble explained that title IV-E/IV-B agencies should
have a sufficient number of placements specially designated to serve
LGBTQI+ children throughout their foster care system to meet the
requirement of the proposed rule to ensure that a safe and appropriate
placement is available for and provided to each LGBTQI+ child in foster
care.
Comments: Several commenters asked for clarification on preamble
language regarding ``sufficient placements.'' For the determination of
``sufficient'' placements, they expressed concern that, in their view,
the NPRM preamble failed to clearly articulate how agencies must
determine whether their networks would include enough providers.
Commenters cautioned that depending on how sufficient numbers are
calculated, educational continuity and keeping children in their
communities could be undermined. Commenters also stated the proposed
rule failed to clarify how different placement types would be factored
into determinations of sufficient numbers of providers. One commenter
emphasized the need for geographic representation of placements.
Response: As noted above, the final rule clarifies that all
providers must be safe and appropriate for all children. Title IV-E/IV-
B agencies need to have sufficient Designated Placements to be
responsive to the needs of LGBTQI+ children. Consistent with the
proposed rule, this final regulation does not prescribe a specific
number of Designated Placements that will be needed in a given child
welfare program. Title IV-E/IV-B agencies are in the best position to
determine the number of such placements that will be required to meet
their local needs and comply with this regulation. Accordingly, the
regulation does not mandate a specified number of placements, but
rather mandates what the title IV-E/IV-B agency must do to provide
access to Designated Placements. The title IV-E/IV-B agency will need
to determine the number of placements needed to meet these
requirements. In recognition of the diversity of programs and local
contexts across the Nation, we are not seeking to establish a uniform,
standard requirement that applies to all jurisdictions and populations.
Each state and tribe is unique and best suited to identify their
placement needs and how to meet the provision in the final rule based
on considerations such as variation in population; geographical
disbursement including rural, remote, and urban populations; and the
number of children in need of foster care placements, among other
consideration. ACF encourages agencies to use data, modeling, and case
work to estimate how many Designated Placements may be needed. ACF will
provide further technical assistance to states and tribes to help them
achieve this requirement. As we discuss below, this final rule
clarifies that nothing in this rule shall be construed to require or
authorize a state or tribe to penalize a provider in the title IV-E and
IV-B program because the provider does not seek or is determined not to
qualify as a Designated Placement under this rule.
The final rule also clarifies the requirements for a placement to
be considered a Designated Placement for LGBTQI+ children. First, in
addition to the protections generally applicable, the provider must
commit to establish an environment that supports the child's LGBTQI+
status or identity. We have added the term ``commit'' to reflect that
assent to this designation will be documented by title IV-E/IV-B
agencies and in recognition that current placements, working toward
designation as part of a placement stabilization plan, may express
their commitment while working to establish the environment as
described in the rule. The criteria for Designated Placements include
provider training as discussed below. Finally, a Designated Placement
must facilitate the child's access to age- or developmentally
appropriate resources, services, and activities that support their
health and well-being.
Provider Training for Designated Placements
The proposed rule clarified that for a placement to be considered
specially designated for an LGBTQI+ child, the provider must be
``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.'' In the NPRM, we requested comments on how ACF can ensure
training curriculums for foster care providers are of high quality.
Comment: Many commenters responded with recommendations on how ACF
can ensure training curricula for foster care providers are of high
quality. Many commenters recommended ACF work with LGBTQI+ youth with
lived experience and other experts in the community to develop core
elements that should be presented in high quality trainings. One
commenter recommended that trainings and measures of success should be
reviewed and evaluated by LGBTQI+ youth with lived experience. Several
commenters recommended ACF ensure trainings are certified by
organizations with experience serving LGBTQI+ children. One commenter
recommended ACF develop a set of guidelines for placement providers'
trainings to ensure the trainings address a robust set of topics. One
commenter recommended ACF create a few standards for key concepts that
must be included in trainings, at minimum, and discuss how to create
supportive and inclusive environments for all sexual orientations and
gender identities. The commenter also recommended trainings provide
strategies on how to ask and respond to questions around these topics
in a respectful way and that therapists who work with LGBTQI+ youth in
care should provide evidence-based services and care. One commenter
recommended all training include information about the critically
important role of faith for the mental health of LGBTQI+ youth and that
ACF should urge states to approve diverse training options, including
at least one approved training sequence designed by and for
theologically conservative faith-based providers. Several commenters
recommended provider training should be offered annually for new
resource families or as an opportunity for a training ``refresher'' and
ideally should be coupled with coaching opportunities to reinforce
training content. One commenter recommended training modules be updated
and provide for recurring trainings as the agency best sees fit and
that ACF should put in place a system to implement a data check to
understand the effectiveness of these training programs. Several
commenters recommended ACF highlight programs that have been developed
to work with existing resource families and recommend that States
provide similar programs to placement providers who are assessed as not
yet supportive to LGBTQI+ children. One commenter recommended ACF
should provide specific funding and grant opportunities to assist
states and tribes to provide appropriate
[[Page 34830]]
training pertaining to LGBTQI+ children in foster care.
Many commenters had suggestions about foster care provider
training, such as requiring that providers receive relevant trainings
and resources that enable and empower them to care for LGBTQI+
children; agencies offer the same provider training requirements for
kinship caregivers, and offer expanded provider training to ensure that
all kinship and foster caregivers are equipped to be safe and
appropriate, regardless of the child's sexual orientation or gender
identity; and incentives are offered to agencies using evidence-based
trainings. Another commenter said that being designated to provide care
for LGBTQI+ children should not be solely defined by the receipt of
specific provider training and instead be determined by an ability and
willingness of the caregiver to meet the child's needs. Commenters also
requested clarity on what constitutes ``appropriate knowledge'' and
``skills,'' recommending ACF work with faith-based groups on provider
training development, while others suggested not to be overly specific.
Other commenters disagreed saying that there is no ``official federal
training available'' for providers and that since foster care training
curriculum are administered by state and county authorities, enforcing
specific provider training requirements would violate individual state
statues. Other commenters suggested adding information about
professional standards as part of the provider training requirement.
One commenter suggested expanding the rule to include training for
all service providers, including attorneys and guardians ad litem.
Response: We considered all of the recommendations and comments. We
have revised the final rule in paragraph (b)(1)(ii) to add additional
specificity to the training for foster care providers. In addition to
requiring the training to reflect evidence, studies, and research about
the impacts of rejection, discrimination, and stigma on the safety and
wellbeing of LGBTQI+ children, the final rule also requires the
training to provide information for providers about professional
standards and recommended practices that promote the safety and
wellbeing of LGBTQI+ children. Those recommended practices should
reflect evidence-based supportive behaviors shown to improve health and
other outcomes for LGBTQI+ children and exclude behaviors shown to lead
to poor health outcomes for LGBTQI+ children. ACF acknowledges that
training materials could be improved through engagement with people
with lived experience, and strongly encourages title IV-E/IV-B agencies
to do so, though we have not chosen to make it a requirement. So long
as the requirements in this final rule are satisfied, ACF will defer to
states and tribes on how to best incorporate these additional
requirements into their training. ACF will provide technical assistance
to help agencies implement this requirement.
The final rule does not extend these training requirements in
paragraph (b)(1)(ii) beyond the foster care provider, as the training
is focused on becoming a Designated Placement for a child. ACF
acknowledges title IV-E/IV-B agencies should offer training and
services to kinship caregivers and foster families that opt to become
Designated Placements for LGBTQI+ children, particularly those
currently placed with them. The final rule in Sec. 1355.22(b)(2)
states that services and training can be offered to current providers,
including kin, to help them become a Designated Placement if they wish
and thus promote sibling unification, and retaining sibling, kinship,
family, and community ties. ACF acknowledges that training on
supportive services for LGBTQI+ children could be beneficial for
guardians ad litem and attorneys. However, requirements for training
attorneys are beyond the scope of this rule.
Other Comments on Designated Placement Requirements
Comment: One commenter wanted the rule to more clearly specify who
is included in the term placement provider.
Response: Placement providers are foster family homes, child care
institutions, or other facilities that provide foster care to children,
consistent with the definition of foster care at 45 CFR 1355.20.
Comment: One commenter requested clarification on whether short-
term, emergency placements are exempt from the Designated Placement
requirements for an LGBTQI+ child if a designated provider is
unavailable. One commenter expressed the need to afford flexibility for
states to offer exceptions or alternatives for LGBTQI+ children placed
with kin caregivers when it is in the best interest and desire of an
LGBTQI+ child.
Response: The issues raised by the commenters regarding short-term
or emergency placements are related to agency decision making and
provider licensing which are determined at the local level. State and
Tribal title IV-E/IV-B agencies that have placement and care
responsibility of children who are in foster care have the authority to
make placement decisions for the child. In doing so, they must consider
the Federal statutory and regulatory requirements for foster care
placements and must balance all of these factors in making a placement
decision on a case-by-case basis. This requirement includes relative
placement preferences, jointly placed sibling placement requirements,
least restrictive placement requirements, and requirements for
placements in close proximity to the parent's home and the child's
school of origin. However, we are not revising the final rule to
provide specific exemptions. ACF encourages title IV-E/IV-B agencies to
work with foster care placement providers who wish to become Designated
Placements, including relative placements to build their capacity to
provide such placements through coaching, training, and education. As
noted above, ACF encourages agencies to use case work, data, and
modeling to ensure that there are enough placements as needed in
specific geographic areas, which will help ensure that children are
placed in proximity to the parent's home and child's school of origin.
Ensuring adequate numbers of Designated Placements will also help
increase the likelihood that LGBTQI+ children will be placed with
siblings.
Comment: Several commenters had suggestions or requested
clarification regarding the terms used in this provision of the NPRM.
Several organizations suggested using the term ``developmentally
appropriate'' instead of ``age-appropriate.''
Response: We agree with commenters that in addition to age-
appropriate resources, services and activities, a child should have
access to developmentally appropriate resources, services, and
activities. Therefore, we are revising the final rule to read ``age- or
developmentally- appropriate.'' This is to be consistent with the
definition in section 475(11)(A) of the Act (Social Security Act
Section 475(11)(A), 42 U.S.C. 675(11)(A)).
Final Rule Changes: The final rule provides requirements for a
placement to be considered a Designated Placement, which goes beyond
the general protection of an environment free of harassment,
mistreatment, and abuse, which is now described as safe and
appropriate. To be considered Designated, a placement must meet the
criteria described in Sec. 1355.22(b)(1).
[[Page 34831]]
Section 1355.22(b)(2) Process for Notification of and Request for
Designated Placements
Section 1355.22(b)(2) describes the process the title IV-E/IV-B
agency must implement to notify an LGBTQI+ child that they may request
a Designated Placement or request that services be offered to their
current placement to become a Designated Placement. In the NPRM, where
the provision to request a placement for an LGBTQI+ child was located
at Sec. 1355.22(a)(2), ACF proposed that title IV-E/IV-B agencies must
implement a process by which a child identifying as LGBTQI+ may request
a placement specially designated as meeting specified requirements for
LGBTQI+ children, and that the title IV-E/IV-B agency must consult with
such child to provide an opportunity to provide input into that
placement. The NPRM proposed that this process must safeguard the
privacy and confidentiality of the child. It also proposed to require
that title IV-E/IV-B agencies notify all children over the age of 14
that specially designated placements for LGBTQI+ children are
available, as well as providing such notification to children under the
age of 14 who have been removed from their home due to familial
conflict about their LGBTQI+ status, and children who have disclosed
their LGBTQI+ identity or whose LGBTQI+ identity or status is known to
the agency. The NPRM further proposed that the notice should be
provided in an age-appropriate manner both verbally and in writing, and
that the notice must inform the child about how they request a safe and
appropriate placement.
Notification Requirements--Frequency, Age, and Developmental-
Appropriateness
Comment: Many commenters provided recommendations on how often the
agency must provide the child notification and recommended providing
multiple notifications to children. Suggestions included providing
notice at least two times a year; continuously; at regular intervals;
and no less than twice per year. One commenter stated that children
should be notified within 72 hours of entering foster care that having
a safe and appropriate foster placement is a right. They also
recommended that youth should acknowledge receipt of rights at case
hearings and placement changes and that rights be publicly posted in
congregate care facilities, and accessible to youth in foster homes.
Response: There are existing mandated requirements for agencies to
provide care and services to children in foster care. This includes
conducting an initial case plan within 60 days of a child's removal and
conducting monthly home visits with the child. These are opportunities
that agencies already have in their ongoing work that will allow them
to provide proper notifications in accordance with the rule; while the
rule specifies information that must be included in the notice,
agencies are not required to establish a new process to notify children
that Designated Placements are available. ACF intends to clarify
opportunities to ensure children are informed through technical
assistance. We encourage agencies to use all opportunities available to
ensure children are well informed. Therefore, we have determined not to
make these changes in the final rule. However, ACF takes this
opportunity to clarify that in response to comments about enforcement
of the rule's provisions, the final rule provides for the notification
requirement to be monitored through the CFSRs, 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. This
change is discussed below under Section 1355.34(c) Criteria for
Determining Substantial Conformity.
Comment: Numerous commenters recommended that the notice of
availability of safe and appropriate placements should be provided to
all children regardless of age, rather than the age of 14 as specified
in the NPRM. One organization commented that notice at age 14 is too
late and should be provided at an earlier age. Another suggested
varying ages at which to begin offering notifications.
Response: ACF appreciates the comments about the importance of
providing notification to children. In the final rule, ACF has kept the
age requirement for notification to all children 14 and over, in
alignment with the existing case plan requirement in section 475(1)(B)
of the Social Security Act.
Moreover, in addition to requiring agencies to notify all children
age 14 and over, the final rule also requires agencies provide notice
about Designated Placements to those under age 14 who are removed from
their home due, in whole or part, to familial conflict about their
sexual orientation, gender identity, gender expression or sex
characteristics; have disclosed their LGBTQI+ status or identity; or
whose LGBTQI+ status or identity is otherwise known to the agency. It
also requires that the title IV-E/IV-B agency ensure that LGBTQI+
children have access to age- or developmentally 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. Comment: Many commenters
recommended that the NPRM requirement for the written and verbal notice
to be provided in an ``age-appropriate'' manner be revised. They
recommended that age appropriate be changed to ``developmentally
appropriate.''
Response: We agree with commenters that in addition to providing
written and verbal notice in an age-appropriate manner, the notice
should also be provided in a developmentally appropriate manner.
Therefore, we are revising the final rule to read ``age- or
developmentally appropriate.'' This is to be consistent with the
definition in section 475(11)(A) of the Social Security Act, 42 U.S.C.
675(11)(A).
Requested Placements
Comment: A number of commenters stated that while the NPRM proposed
that the agency must notify the child specified in the NPRM that a safe
and appropriate placement was available, they understood it as written
that a safe and appropriate placement is only available if the child
requested the placement. Some commenters indicated that this would be
too heavy a burden on the child to self-identify and to initiate the
request, which would exacerbate negative health outcomes for these
children. One commenter recommended removing all of paragraph (a)(2) in
the NPRM because if all placements are safe and appropriate as
required, there would be no need to request one, and others commented
that they support this section as proposed.
Response: As we have previously discussed, the final rule expressly
provides that all placements, including placements for LGBTQI+
children, must be safe and appropriate. However, we have clarified that
because not all placements will be Designated Placements, the rule
provides for a process by which a Designated Placement may be offered
or requested. HHS intends that there are multiple processes through
which Designated Placements may be provided to an LGBTQI+ child,
including when initiated by a child's request.
Final Rule Changes: The final rule provides for a process by which
an LGBTQI+ child may request a Designated Placement or request that
[[Page 34832]]
their current placement be offered services. The final rule maintains
the proposed rule's minimum age of notification of 14 and over, and
continues to require agencies to provide notice about Designated
Placements to those under age 14 who are removed from their home due,
in whole or part, to familial conflict about their sexual orientation,
gender identity, gender expression, or sex characteristics; have
disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or
identity is otherwise known to the agency. In addition, the final rule
adds a requirement that the notice given to children must also inform
the child of non-retaliation protections and the process whereby a
child may report concerns about retaliation.
Section 1355.22(b)(3) Placement and Services Decisions and Changes
Comments: A number of commenters raised concerns about the impact
that they believed the proposed regulations would have on the placement
stability of LGBTQI+ youth. One commenter raised a concern that if only
some foster care providers are designated safe and appropriate for
LGBTQI+ children, it may result in decreased placement stability for
LGBTQI+ children. Other commenters stated that the result of an LGBTQI+
child requesting a placement that affirms their identity will be to
move to another provider, and that such placement changes cause
upheaval and trauma for children. Some commenters said that LGBTQI+
youth, especially those who are in placements with their siblings,
would avoid requesting Designated Placements for fear of being
separated from their siblings, community, or school.
Response: ACF agrees that placement stability is a vitally
important component of a youth's experiences and outcomes in foster
care, and that placement stability is impacted by a foster care
provider being able to meet a child's individual needs. ACF further
acknowledges that research shows that LGBTQI+ youth in the child
welfare system have lower levels of placement stability compared with
other youth.\31\
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\31\ 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,
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>. Poirier, J., Wilkie, S., Sepulveda, K &
Uruchima, T., 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 response to concerns about placement stability, we note first
that the placement stability of LGBTQI+ youth will be positively
impacted by a title IV-E/IV-B agency's success in ensuring there are
sufficient Designated Placements to meet the needs of LGBTQI+ youth. As
clarified in the NPRM, IV-E agencies may claim Federal funds under
title IV-E for certain activities to comply with this rule, including
recruiting and training providers to be Designated Placements.
ACF further acknowledges that one consequence of an LGBTQI+ child
requesting a Designated Placement may be a move to a new placement and
that in certain instances, the child's first preference may not be a
change in placement but rather that steps be taken to make the current
placement more supportive of the child's LGBTQI+ status or identity.
Accordingly, we revised the final rule in several important ways.
First, we have made clarifications at Sec. 1355.22(b)(2) related
to notification requirements. In addition to the requirement that title
IV-E/IV-B agencies implement a process under which a child may request
a Designated Placement, this final rule further requires that this
process also enables a child to request services for a current
placement to receive services to become supportive. Agencies must
provide notice that the child can request a placement change or
services for a current placement, and the process the agency will use
for responding to the request. The final rule also clarifies that the
title IV-E/IV-B agency's process for considering such a request must
provide the child with an opportunity to express their needs and
concerns.
Second, we have added a new section at Sec. 1355.22(b)(3) which
provides further clarity on how the title IV-E/IV-B agency should reach
placement and services decisions. The final rule clarifies that when
making placement and service decisions related to an LGBTQI+ child, the
title IV-E/IV-B agency shall give substantial weight to the child's
expressed concerns or requests when determining the child's best
interests. As noted in the final regulatory text, placement decisions
should give substantial weight to the child's requests; determining a
child's best interests will require that the title IV-E/IV-B agency
engage directly with the child to understand their needs and concerns.
The final rule further provides that, to support placement
stability, when a request for a placement change or services is made,
the title IV-E/IV-B agency must first determine whether actions could
be taken to support the current provider in voluntarily meeting the
conditions of a Designated Placement, and if the provider is willing to
meet the conditions of a Designated Placement, requires that the title
IV-E/IV-B agency use the case review process to regularly review the
provider's compliance in providing a supportive environment. We believe
this clarification in the final rule will allow more LGBTQI+ children
to be safely served in their current placement.
Under these revised provisions, if an LGBTQI+ child expressed their
preference to receive a Designated Placement, but their current
provider had not sought to become a Designated Placement provider, the
title IV-E/IV-B agency would be required to consider whether actions
could be taken to support the current provider in meeting the
conditions of a Designated Placement to maintain the child's placement
stability, if the provider wishes to become such a placement. For
example, the current placement provider could be offered the
opportunity to receive the training needed to become a Designated
Placement to better meet the needs of the LGBTQI+ child. Other steps to
promote placement stability could include--consistent with child's best
interests and the willingness of the provider--more regular visits by
the caseworker, or counseling for the child alone or in conjunction
with the placement provider to address any challenges.
As noted throughout this rule, we reiterate that nothing in this
rule compels any provider to seek to become a Designated Provider. In
the case of a provider who is not interested in becoming a Designated
Placement for an LGBTQI+ child currently in their care, the title IV-E/
IV-B agency could meet the child's needs by placing the child with a
Designated Placement provider or, consistent with the child's
preference for placement stability and the agreement of the current
provider, by providing training and services necessary to make the
current placement more supportive. To further support the placement
stability of LGBTQI+ children, we reiterate that this rule's
prohibition on retaliation encompasses unwarranted placement changes
for a child because of their LGBTQI+ status or identity.
Compliance with some requirements of this rule will be assessed
through the CFSRs and all requirements are subject to the partial
review process. In pertinent part, the CFSRs assess the degree to which
States have the necessary array of placement options available to serve
the needs of all children who come into their care. The
[[Page 34833]]
reviews also assess state performance in ensuring placement stability.
Section 1355.22(c) Process for Reporting Concerns About Placements and
Concerns About Retaliation
Section 1355.22(3) of the proposed rule described the process the
agency must implement for LGBTQI+ children to report concerns about a
placement that does not meet the requirements of this rule and concerns
about retaliation. The NPRM proposed to require that title IV-E/IV-B
agencies implement a process for LGBTQI+ children to report concerns
about any placement that fails to meet the requirements of a placement
that is specially designated for LGBTQI+ children. The NPRM proposed
that this process must safeguard the privacy and confidentiality of the
child. Like the requirement that certain children be notified that
specially designated placements for LGBTQI+ children are available, the
NPRM proposed that the same children be notified verbally and in
writing about the process to raise concerns about a placement. Finally,
the NPRM proposed to require that IV-E agencies ``respond promptly'' to
a 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.
Comment: Several commenters expressed their views on how an agency
should respond to the child's placement concerns, when to make a
placement change, and foster family home licensing considerations, such
as placing the license on a hold while the family engages in training
and is reassessed.
Response: State and Tribal title IV-E/IV-B agencies have placement
and care responsibility for children who are in foster care, and this
allows such agencies to make placement decisions for each child on a
case-by-case basis. In reference to whether there should always be a
placement change when a child expresses a concern, we want to clarify
that, absent a safety concern or the specific desires of the child,
placement changes should not necessarily be the first course of action.
As noted above, the final rule requires that before initiating any
placement changes, the title IV-E/IV-B agency must consider whether
additional services and training would allow the current provider to
meet the conditions for a Designated Placement, and whether the current
provider is willing to meet the conditions of a Designated Placement.
Thus, with the child's consent and subsequent agreement by the
provider, we encourage the agency to offer the foster care provider
supports including training, coaching, and information to enable the
provider to provide an affirming home for the child. This approach
should be prioritized when a child wishes to remain in their placement
for reasons of sibling unification, proximity to family and community
of origin and schools, wish to remain in a family-like setting, or
generally to avoid placement disruption. Where caregivers agree to
accept such services and training, we encourage agencies to work in an
ongoing way to build caregivers' capacity to provide this kind of care
for LGBTQI+ children.
Prompt Response to Concerns
In the NPRM, we requested public comment on whether and how best to
define ``promptly'' as applied to the requirement at proposed paragraph
(a)(3)(iii) that an agency respond promptly to a child's reported
concerns.
Comment: Many commenters offered suggestions on how to define
``promptly'' as it applies to this paragraph. Many commenters responded
with several suggestions recommending ``promptly'' be defined as
immediate and that these instances should be investigated sooner than
current agency timelines for investigating reports of abuse or neglect.
Many included a timeframe for response in their recommendation to occur
within two hours to 24 hours. Several expressed that any reported
concerns should be handled with urgency as the LGBTQI+ population is
already identified in the rule as having significant risk. Other
commenters recommended ACF not define the term, leave flexibility to
states to define it, and suggested that these requests be handled by an
independent entity, such as an ombudsman.
Response: ACF has reviewed all of the suggestions, and, while we
appreciate the comments, we are not defining ``promptly'' in the final
rule. ACF is not mandating a uniform timeframe for agencies to respond
to a placement concern as that would be unnecessary when agencies
already have established protocols to respond to reports of child abuse
and neglect investigations. As such, the title IV-E/IV-B agency will
determine the timeframe for responding promptly to a child's report
consistent with their existing timelines for agency child abuse and
neglect reporting and investigating procedures commensurate with the
seriousness of the child's concern. 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. As part of its
existing monitoring process, ACF may evaluate whether a title IV-E/IV-B
agency is responding to all concerns promptly, including that those
raised by LGBTQI+ children are responded with the same level of
promptness as it responds to other comparable concerns. While this
final rule does not dictate a timeline for response, a title IV-E/IV-B
agency that treated concerns raised by LGBTQI+ children about the
safety of their placements with lesser priority than concerns raised by
other youth may be subject to the partial review process to determine
compliance with this requirement.
Other Comments on Reporting Concerns About a Placement
Comment: Several commenters suggested that ACF monitor and enforce
these provisions for responding to placement concerns to the maximum
extent possible.
Response: These provisions in the final rule are monitored as part
of the partial review process. This means that if ACF becomes aware of
a potential non-compliance issue with the provisions in Sec. 1355.22,
it will initiate a ``partial'' review, which is a review of state and
tribal title IV-E/IV-B plan requirements (45 CFR 1355.33(e)). If there
is evidence of non-conformity identified through the partial review
process, the state/tribal title IV-E/IV-B agency will be required to
enter into a program improvement plan and make necessary changes to
come into compliance. Therefore, since there is already an established
protocol for monitoring, no changes to the final rule are warranted.
Comment: Several commenters recommended adding a requirement to
engage LGBTQI+ youth with lived experience in process development. One
commenter recommended that it should be required for agencies to have
an independent forum for reporting, investigating, and resolution of
reported concerns, such as a Foster Care Ombudsman. One commenter
recommended that agencies provide updates about the ``investigation''
to youth and allow options for ongoing communication to keep youth
updated such as phone call or email.
Response: We considered these comments and determined to retain the
provision as proposed in the NPRM to allow agencies to design their
notification processes. Instead, technical assistance is available to
states and tribes as warranted in implementing in a manner consistent
with best practices, including by engaging youth with lived
[[Page 34834]]
experience. Therefore, we are not making changes to the final rule.
Comment: Many organizations recommended adding that the written and
verbal communication needed to be developmentally appropriate, rather
than age appropriate.
Response: We agree with commenters that in addition to
developmentally-appropriate services, a child should have access to
developmentally-appropriate communications. Therefore, we are revising
the final rule to read that ``notice must be provided in an age- or
developmentally appropriate manner, both verbally and in writing.''
This is to be consistent with the definition in section 475(11)(A) of
the Social Security Act, 42 U.S.C. 675(11)(A).
Final Rule Changes: As part of the final rule, ACF clarifies that,
absent a safety concern or the specific desires of the child, placement
changes should not necessarily be the first course of action. The final
rule requires the process for reporting concerns about a child's
placement also include reports about retaliation. In addition, it adds
that a child should receive developmentally-appropriate notice both
verbally and in writing of the process for reporting concerns about a
placement or retaliation.
Section 1355.22(d) Retaliation Prohibited
In the proposed rule, ACF proposed to require that title IV-E/IV-B
agencies must have a procedure to ensure that no LGBTQI+ child in
foster care experiences retaliation for disclosing their LGBTQI+
identity, for requesting a specially designated placement for LGBTQI+
children, or for reporting concerns that their current placement does
not meet their needs related to being LGBTQI+. The proposed rule
described examples of what would be considered retaliatory under the
rule.
Comment: Many commenters strongly supported the NPRM's prohibition
on retaliation and said that such protections were important for the
safety, health, and wellbeing of LGBTQI+ children who face heightened
risks when they disclose their sexual orientation or gender identity.
Other commenters raised concerns about the retaliation prohibition
and said that religious providers could be accused of retaliation for
merely disagreeing with a child's sexual orientation or gender
identity. As discussed in Section IV, a couple of commenters asserted
that concepts included in the proposed rule that relate to a child's
identity place individuals and organizations of faith at risk of being
accused of retaliation that would unconstitutionally infringe on their
free exercise of religion.
Response: ACF appreciates commenters' views on the rule's
prohibition on retaliation. We agree with commenters who observed that
LGBTQI+ children are particularly vulnerable to retaliation when their
sexual orientation or gender identity is disclosed. We also acknowledge
the concerns of some providers who worried about being accused of
retaliation when engaged in conduct related to their faith or beliefs.
As we address more fully below in our response to the First Amendment
and Religious Freedom comments, ACF is committed to upholding Federal
protections for free speech, religious exercise, and conscience for all
providers and children in the child welfare system. In particular, we
have developed this rule in a manner that respects these guarantees.
The Department will apply Federal protections for religious exercise,
free speech, and conscience, including by applying the Department's
regulatory protections for seeking religious accommodations.
In response to requests for clarification, we are first more
clearly specifying the actions for which retaliation is impermissible.
The proposed rule had referred to retaliation for the child disclosing
their LGBTQI+ identity; requesting a placement specially designated for
LGBTQI+ children (which the final rule now refers to as Designated
Placement); or for reporting concerns about the safety and
appropriateness of their current placement. To this list, the final
rule makes clear that the intended reference is to both LGBTQI+ status
and identity, and further specifies that retaliation is impermissible
for having a child's LGBTQI+ status or identity disclosed by a third
party; for the child being perceived to have an LGBTQI+ status or
identity; or for the child's request or report related to requirements
for placements or services.
The proposed rule had specified that 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. In response to commenters' requests for
greater clarity on what actions would constitute retaliation, the final
rule provides additional detail about such actions and how they
interact with other provisions of the rule, such as the prohibition on
harassment, mistreatment, or abuse in all foster placements.
Comment: Some commenters expressed concern that, in their opinion,
the proposed rule did not provide sufficient reassurance that LGBTQI+
children would be protected from retaliation, whether for disclosure of
their status or identity, requesting a new placement, or reporting a
placement that is not safe and appropriate. One commenter expressed
concern that absent Federal protections ``caseworkers could further
harm children by engaging in discriminatory behavior,'' and shared the
example of a caseworker blaming a child for mistreatment they
experienced as a result of their status or identity. This commenter was
also concerned that the rule ``fails to protect all families, including
kin, and current and prospective foster and adoptive parents'' from
discrimination in their interactions with the child welfare system.
Finally, this commenter noted that absent Federal protections,
officials might use retaliatory child protection investigations, such
as a state investigating a parent because of bias toward the child's or
the parent's disclosed or perceived identity or status.
Response: We agree with commenters that it is important that
children have strong protections against retaliation for having
disclosed their LGBTQI+ identity or status and having requested a new
placement or reporting a placement that is not safe and appropriate. As
a result, we have made several adjustments in the final rule.
First, we specify in paragraph (d)(2)(v) that the title IV-E/IV-B
agency will be considered to have retaliated against a child if it uses
information about the child's LGBTQI+ identity or status to initiate or
sustain a child protection investigation or discloses information about
the child's LGBTQI+ identity or status to law enforcement in any manner
not permitted by law. While both of these actions already fall under
the definition of retaliation in paragraph (d)(2)(iv), which includes
``disclosing the child's LGBTQI+ status and/or identity in ways that
cause harm or risk the privacy of the child,'' we believe it is
appropriate to name these actions directly in order to give assurance
to LGBTQI+ children that such actions are not allowable.
Second, in paragraph (d)(2)(vi), we clarify that the prohibition on
retaliation includes retaliation against current or potential
caregivers (including foster parents, pre-adoptive parents, adoptive
parents, kin caregivers, and birth families) for supporting a child's
LGBTQI+ status or identity. We believe
[[Page 34835]]
this is necessary to ensure that children can benefit from the
protections of this rule, as we are concerned that retaliation against
a supportive adult could be used in an effort to prevent or discourage
an LGBTQI+ child from requesting or receiving a Designated Placement or
necessary services. While we do not define all of the actions that
could constitute ``retaliation'' in this context, as it may vary
significantly depending on circumstances, we understand it to mean any
harmful action taken against a current or potential caregiver for an
LGBTQI+ child because of their support of that child's LGBTQI+ identity
or status.
Third, Sec. 1355.22(b)(3)(iii) of the final rule includes a
requirement that children receiving notice of the availability of
Designated Placements also be provided notice of the retaliation
protections in this final rule and describe the process by which a
child may report a concern about retaliation. The title IV-E/IV-B
agency must provide this information in an age- and developmentally
appropriate manner, verbally and in writing, and must safeguard the
confidentiality of the child. At a minimum, the agency must provide the
notice about this process to: (1) all children age 14 and over, and (2)
children under age 14 who have been removed from their home due to
familial conflict about their sexual orientation, gender identity,
gender expression or sex characteristics or have disclosed their
LGBTQI+ status and/or identity, or it is otherwise known to the agency.
In addition, the agency must respond promptly to the child's concerns,
consistent with the agency's timeframes for investigating child abuse
and neglect reports.
Finally, in response to comments raising concerns about enforcement
of these provisions and safeguards on keeping a child free from
retaliation, ACF welcomes the opportunity to clarify that state
agencies' compliance with the final rule's requirements will be
monitored by CB through the CFSRs, 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.
Comment: Several commenters recommended that the provision be
expanded to all children in foster care to ensure no child experiences
retaliation. One commenter recommended modifying the final rule to
include a prohibition on retaliation of the disclosure of the child's
LGBTQI+ ``status'' in addition to the child's identity.
Response: We agree with commenters that retaliation against any
child because of their characteristics or identity is harmful and
impermissible. For example, title VI of the Civil Rights Act of 1964,
which prohibits all recipients of Federal financial assistance from
discriminating on the basis of race, color, or national origin,
specifically prohibits retaliation against anyone seeking to vindicate
a right under that law. This prohibition includes discrimination and
retaliation against children based on their shared ancestry or ethnic
characteristics, including children who are perceived to be Jewish,
Christian, Muslim, Sikh, Hindu, or Buddhist, or of another religious
group, if the discrimination is based on their ancestry or ethnic
characteristics. The purpose of this rule is to clarify the specific
protections necessary for LGBTQI+ youth to receive safe and proper care
in an appropriate placement. In particular, safe and proper care for
LGBTQI+ youth requires that no child in foster care experiences
retaliation as a result of their LGBTQI+ status or identity or for
being perceived to have an LGBTQI+ status or identity. This intent is
reflected in the current text of the final rule.
Comment: One commenter recommended modifying the final rule to
include that a child should not experience retaliation if an LGBTQI+
child's identity is disclosed by a ``third party.''
Response: We agree with the commenter and modified the final rule
to ensure a child does not experience retaliation as a result of
disclosure of an LGBTQI+ child's identity or status by a third party.
As such, the provision now includes a prohibition on retaliation
whether the child or a third party discloses the LGBTQI+ child's status
or identity. This is to ensure that the provision is applied as broadly
as needed and provides protection for a child whose identity or status
is shared with another party resulting in the possibility of
retaliation as discussed in the preamble of the proposed rule.
Comment: Several commenters recommended that retaliation include
restricting normalcy activities (e.g., attempts to restrict access to
activities that allow youth to make and maintain friends, and develop
problem solving skills) due to their sexual orientation or gender
identity. One commenter recommended modifying the final rule to reflect
that retaliation is not limited to items listed and can include
restriction of access to supportive community resources.
Response: ACF agrees that restricting an LGBTQI+ child's access to
age- and developmentally appropriate supportive resources or
activities, or access to supportive peers or family members, based on
their LGBTQI+ status or identity, would constitute retaliation under
this rule. We also agree that disclosing the child's LGBTQI+ status
and/or identity in ways that cause harm or risk the privacy of the
child are impermissible forms of retaliation. The final rule clarifies
the conduct that will be considered retaliation includes the examples
listed at Sec. 1355.22(d)(2)(i) through (vi).
Comment: One commenter voiced concern about a ``lack of an
enforcement policy related to retaliation'' and stated without
significant enforcement policy, the provision is hollow.
Response: We considered the commenters concern and, to provide
further clarity, modified the regulatory provisions for monitoring in
the final rule. The final rule now includes monitoring a state agency's
compliance with the requirements of Sec. 1355.22(d) through the CFSR.
Final Rule Changes: Consistent with the Protections Generally
Applicable for all placements, discussed above, the final rule
clarifies that harassment, mistreatment, or abuse would also be
considered retaliation. In response to comments on other possible
retaliatory actions against LGBTQI+ children or their caregivers, the
final rule also specifies that a title IV-E/IV-B agency, provider, or
any entity acting on behalf of an agency or provider will be considered
to have retaliated against a child if it restricts access to
developmentally appropriate materials or community resources; discloses
private information in a way that causes harm or violates the rights of
a child; or uses information about the child's LGBTQI+ status or
identity to initiate or sustain an investigatory action. The final rule
extends the prohibition on retaliation to include retaliation against
current or potential caregivers. It clarifies a requirement that
children receiving notice of the availability of Designated Placements
also be provided notice of the retaliation protections, and it provides
for monitoring state agency compliance through the CFSR.
Section 1355.22(e) Access to Supportive and Age- or Developmentally
Appropriate Services
Section 1355.22(a)(5) of the proposed rule described the
requirements for the agency to provide access to services that support
the child's LGBTQI+ status and/or identity and includes clinically
appropriate mental and behavioral health care that is supportive of
their
[[Page 34836]]
sexual orientation and gender identity and expression.
Comment: Many organizations suggested adding medical care (some
referred to this as health care) and clarifying what this entails.
Several commenters said it was unclear whether the rule allows or
requires gender-affirming medical care, with some commenters opposing
access to gender-affirming care and others supporting such access. Many
organizations suggested the rule should state that gender-affirming
medical care is among the potential age-appropriate resources and
services that may support transgender children's health and well-being.
Other commenters said that gender-affirming care should never be
considered ``appropriate'' services.
Response: This rule does not establish any standard of medical
care. Title IV-E agencies determine what services to provide to an
individual child, on a case-by-case basis, in accordance with statutory
requirements. Specifically, the case plan must assure ``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, including a
discussion of the appropriateness of the services that have been
provided to the child under the plan''. See section 475(1)(B) of the
Social Security Act, 42 U.S.C. 675(1)(B). What services are appropriate
for an individual child would depend on many individual factors,
including physicians' recommendations, the input and consent of the
child's authorized legal representative or parent, the child's input,
and the best available medical guidance at the time. Nothing in this
rule preempts state laws regulating the practice of medicine or
prohibiting particular treatments.
Comment: Many commenters recommended explicitly defining mental and
behavioral health care as broad and inclusive of wellness practices and
alternative supports.
Response: Mental and behavioral health supports are examples of
required supports for which the agency must provide access to all
children in foster care, including LGBTQI+ children. As such, ACF has
determined it is not necessary to provide a definition for these
examples. Title IV-E/IV-B agencies will determine what mental and
behavioral health care services are needed on a case-by-case basis in
accordance with a child's case plan to, among other things, facilitate
the child's safe return home or the permanent placement of the child.
Comment: Several commenters suggested explicitly prohibiting the
use of so-called ``conversion therapy'' and other harmful interventions
that undermine and conflict with a youth's identity. Other commenters
asked about the definition and ability to use ``talk therapy.'' Others
provided information that addressed out of scope issues regarding this
topic.
Response: As we stated in the NPRM, efforts to change or suppress a
child's sexual orientation, gender identity, or gender expression--also
known as so-called ``conversion therapy''--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. The final rule, at Sec. 1355.22(d)(2)(ii),
includes ``Attempts to undermine, suppress, change, or stigmatize a
child's sexual orientation or gender identity or expression through so-
called ``conversion therapy'' as a form of prohibited retaliation
against any child known or perceived to have an LGBTQI+ status or
identity.
Section 1355.22(e) requires that the title IV-E/IV-B agency must
ensure that LGBTQI+ children have access to age- or developmentally
appropriate services that are supportive of their sexual orientation
and gender identity or expression, including clinically appropriate
mental and behavioral health supports, which can include forms of talk
therapy.
Comment: Several commenters had suggestions or requested
clarification regarding the terms used in this provision. Several
organizations suggested using the term ``developmentally appropriate''
instead of ``age-appropriate.''
Response: We agree with commenters that in addition to age-
appropriate services, a child should have access to developmentally
appropriate services. Therefore, we are revising the final rule to read
``age- or developmentally appropriate''. This is to be consistent with
the definition in section 475(11)(A) of the Social Security Act, 42
U.S.C. 675(11)(A).
Comment: A few commenters recommended ACF provide technical
assistance, consultants, or funding to support recruitment of providers
in rural areas to support LGBTQI+ children in foster care. Several
organizations expressed their views on working with local and national
agencies and individuals with lived experience to maintain a list of
national resources to assist agencies in identifying supportive and
age-appropriate services and to add standards of care for what
constitutes clinically appropriate care and services.
Response: ACF has a current solicitation for a training and
technical assistance contractor to assist states and tribes by
providing training to increase Designated Placements for LGBTQI+
children and youth in foster care. ACF intends to issue implementation
guidance for the final rule incorporating many of these recommendations
for recruiting Designated Placement providers including in rural areas,
including partnering with local and national agencies serving LGBTQI+
youth, and approaches which are informed by the lived experiences of
LGBTQI+ children and youth in foster care.
Final Rule Changes: The final rule states that attempts to
undermine, suppress, change, or stigmatize a child's sexual orientation
or gender identity or expression through so-called ``conversion
therapy'' is a form of prohibited retaliation against any child known
or perceived to have an LGBTQI+ status and/or identity. The final rule
also adds that, in addition to age-appropriate services, a child should
have access to developmentally appropriate services.
Section 1355.22(f) Placement of Transgender and Gender Non-Conforming
Children in Foster Care
In the NPRM, ACF proposed that 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 NPRM further proposed
to require that IV-E/IV-B agency also consult with the transgender,
gender non-conforming, or intersex child to provide an opportunity to
voice any concerns related to the placement when the agency is
considering a placement in such a facility.
Comment: A commenter asked that the final rule clarify placement
procedures for non-binary and Two-Spirit children living in sex-
segregated child care institutions.
Response: As explained in the preamble to the final rule for Sec.
1355.22, non-binary and Two-Spirit children are included throughout
this regulation under the term LGBTQI+. Thus, this provision for the
agency to place the child consistent with their gender identity also
applies to non-binary and Two-Spirit children and we have added the
language to reflect this in the
[[Page 34837]]
preamble for clarity. When making placement decisions for children
whose gender identity doesn't meet the sex-segregated options at the
child care institution, the title IV-E/IV-B agency should engage with
the child to determine the safest living arrangement that is in the
child's best interest among the options that are available, giving
substantial weight to the child's request.
Comment: Some commenters expressed concern about the NPRM
requirement for children to be placed in sex segregated child care
institutions consistent with their self-identified gender identity, not
their ``biological sex.'' They stated it is a danger and ``disregards
the child's safety and privacy interests to be placed in a mixed-sex
setting'' that a child ``may find uncomfortable and invasive or, at
worst, unsafe.'' One state recommended that the final rule allow for
discussions that incorporate the child's preference as well as safety
and risk concerns. Response: ACF agrees that it is important to
incorporate a child's preference for all placements. While ACF believes
the requirement to offer a transgender or gender non-conforming child a
placement consistent with their gender identity is most applicable to
placements in child care institutions and sex segregated facilities, we
have determined that it is necessary to extend that requirement to
apply to all placements for transgender and gender non-conforming
children. ACF accordingly updated the final rule text to apply to all
placements for transgender and gender non-conforming children. The
final rule text states that, when considering placing a child, the
title IV-E/IV-B agency must offer the child a placement consistent with
their gender identity. The updated regulatory text is consistent with
the statutory requirement to place children in the ``most appropriate
setting available'' (section 475(5) of the Social Security Act, 42
U.S.C. 675(5)(A)) and the rule's requirement that title IV-E/IV-B
agencies must give substantial weight to the child's expressed concerns
or requests when determining the LGBTQI+ child's best interest when
making placement and service decisions.
ACF disagrees with the assertion that allowing transgender and
other youth to access sex-segregated facilities consistent with their
gender identity will diminish safety or privacy. Courts have held that
all individuals' safety and privacy can be protected without also
excluding transgender individuals from accessing sex-separate
facilities and activities consistent with their gender identity.\32\
Title IV-E/IV-B agencies have a range of tools at their disposal to
accommodate any individuals' privacy concerns in a nondiscriminatory
manner. However, a title IV/IV-B agency will be in violation of this
rule if it refuses to offer a child a placement consistent with their
gender identity. We also note that no application of this rule shall be
required insofar as it would violate Federal religious freedom,
conscience, or free speech law and that providers may request an
accommodation from any rule provision as described in Section IV of the
preamble, below.
---------------------------------------------------------------------------
\32\ See, e.g., Grimm v. Gloucester City, 972. F.3d 586 (2020).
---------------------------------------------------------------------------
In addition, the NPRM proposed to require consultation with the
child and the final rule maintains this requirement. The final rule
requires that the title IV-E/IV-B agency consult with the child to
provide an opportunity for the child to voice any concerns related to
their placement when the agency is considering placing the child in
such a facility.
Comment: One commenter was concerned that the NPRM did not account
for the preferences of parents whose rights are intact in these agency
placement decisions.
Response: Title IV-B/IV-E agencies have an established
responsibility to engage with parents. For example, under 45 CFR
1356.21, title IV-E agencies ``must make reasonable efforts to maintain
the family unit and prevent unnecessary removal of a child from [their]
home, as long as and the child's safety is assured; [and] to effect the
safe reunification of the child and family if temporary out-of-home
placement is necessary to ensure the immediate safety of the child.''
Under state and tribal law, parents often also retain certain rights
even after their children have been removed from their physical and/or
legal custody. We expect that agencies will act with appropriate
awareness of parental rights under the law of the applicable state or
tribe.
Comment: A few commenters expressed concerns that the provision may
conflict with state laws and policies that govern sex-segregated
childcare institutions and that many sex-segregated childcare
institutions are not equipped to meet these placement requirements.
Response: The requirement to offer children a placement consistent
with their gender identity is based on ACF's careful consideration of
current research on best practices to promote children's health and
wellbeing, as described in Section II of the preamble. This regulatory
requirement does not preempt state or tribal laws regarding sex-
segregated institutions. It simply requires that a child be offered a
placement that is consistent with their gender identity. It thus
clarifies, for children in foster care, the IV-E statutory requirement
to place foster children in ``a safe setting . . . consistent with the
best interest and special needs of the child.'' Section 475(5) of the
Social Security Act, 42 U.S.C. 675(5)(A). If a state law prohibits
placement in sex-segregated institutions based on gender identity, then
the title IV-E/IV-B agency should explore all other placement options
in order to offer a foster child a placement consistent with their
gender identity, while also meeting the child's other particular needs.
ACF further notes that pursuant to Sec. 1355.22(d)(2)(iii), agencies
may not place children in child care institutions solely due to their
sexual orientation or gender identity or expression or allow child care
institutions or other providers to segregate or isolate children on the
basis of their sexual orientation or gender identity or expression.
Comment: Some commenters suggested having single or private rooms
for youth who are non-binary and Two-Spirit who are placed in sex-
segregated childcare institutions to ensure their comfort.
Response: ACF appreciates the commenter's concern for the privacy
of such children and notes nothing in this rule would preclude those
entities from accommodating the privacy needs of any child in their
care. Appropriate placements should be determined based on the child's
individual needs and their expressed preferences. We understand the
commenters' concern that such children might feel especially
uncomfortable in sex-segregated childcare institutions and encourage
agencies to work with such children to ensure they receive appropriate
placements.
Comment: Commenters made recommendations throughout about how
Federal funding should be used and that it should be prohibited in
specified circumstances, such as if a childcare institution does not
allow children to be placed according to their gender identity.
Response: The final rule does not regulate how Federal funding
under title IVE is reimbursed to states and tribes. Eligibility for
title IV-E reimbursement of the placement of a particular child is
based on many factors, including that the child is placed in a child
care institution or foster family home as defined in section 472 of the
Social Security Act. The final rule implements
[[Page 34838]]
title IV-E and IV-B plan requirements, and not the particulars of title
IV-E foster care funding. Therefore, the recommendations are not within
the purview of this final rule and no changes were made to the final
rule.
Final Rule Change: The final rule clarifies that the requirement
for title IV-E/IV-B agencies to offer placements for transgender and
gender non-conforming children consistent with a child's gender
identity applies to all placements, not exclusively to sex-segregated
child care institutions.
Section 1355.22(g) Compliance With Privacy Laws
As explained in the NPRM, 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)
of the Social Security Act. Information about a foster child's LGBTQI+
identity or status, 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.
Comments: Commenters provided input on the impact of the
regulations on the privacy and confidentiality of LGBTQI+ youth. In
addition, in the NPRM we requested public comment on what further
guidance states may need on producing administrative records to monitor
and track requests for safe and appropriate placements for LGBTQI+
children, while protecting the privacy and confidentiality of all
children.
Several commenters expressed concerns that children may feel unsafe
disclosing their LGBTQI+ identity or reporting mistreatment in their
current out-of-home placement due to their sexual orientation or gender
identity. LGBTQI+ youth with lived experience in foster care have
shared in comment letters, surveys, and testimony that they do not
disclose their sexual orientation, gender identity or expression to
foster parents and caseworkers for fear of lack of acceptance,
unwarranted placement changes, fear of separation from siblings and/or
unwarranted placements in congregate care facilities, feeling a
``taboo'' against sharing their LGBTQI+ identity, fearing prejudice,
and lacking privacy. Commenters additionally stated that state laws
restricting discussion of LGBTQI+ identities in school may have a
chilling effect on whether children feel safe disclosing their sexual
orientation or gender identity.
A few commenters made suggestions related to enhanced
confidentiality provisions for data collection on a child's sexual
orientation, gender identity, or sex characteristics. These included a
recommendation to include a provision to require the agency to disclose
information only when necessary for the wellbeing of the child or
required by court, to regulate permissible uses of data, data sharing,
and data security/storage protocols, to require consistency with
confidentiality requirements for health data, and to require the
child's consent to any disclosure under section 471(a)(8) of the Social
Security Act (42 U.S.C. 671(a)(8)) about a specific child's sexual
orientation, gender identity, or sex characteristics. Two commenters
recommended provisions on how to store, seal and maintain a child's
record. Specifically, they stated that the final rule should require
agencies to seal physical records related to a child's sexual
orientation, gender identity or expression and separately maintain the
information from the case record and that electronic records should be
maintained under separate, heightened data security levels.
Response: These experiences and concerns illustrate the need for
data confidentiality, and protections from retaliation for disclosure
or presumption of a child's LGBTQI+ identity and status. Such
requirements are essential to help ensure that children will feel safe
to disclose their identity and request Designated Placements.
Some states have existing privacy and data confidentiality
requirements related to foster children's sexual orientation, or gender
identity or expression. For example, California law provides that all
children in foster care have the right ``to maintain privacy regarding
sexual orientation and gender identity and expression, unless the child
permits the information to be disclosed, or disclosure is required to
protect their health and safety, or disclosure is compelled by law or a
court order.'' Cal. Welf. & Inst. Code sec. 16001.9(a)(19). In response
to comments, and to address risks related to the disclosure of a
child's LGBTQI+ status or identity and to help ensure children feel
safe in making such disclosures and requesting Designated Placements,
the final rule includes a number of important protections. First, Sec.
1355.22(b)(2) provides that the process for requesting a Designated
Placement or services to make a current placement a supportive one must
safeguard the privacy and confidentiality of the child, consistent with
section 471(a)(8) of the Social Security Act (42 U.S.C. 671(a)(8)) and
45 CFR 205.50. Second, Sec. 1355.22(c) provides that the process for
reporting concerns about a current placement must safeguard the privacy
and confidentiality of the child, consistent with section 471(a)(8) of
the Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50. Third, Sec.
1355.22(d)(2)(v) provides that prohibited retaliation includes
disclosing the child's LGBTQI+ status or identity in ways that cause
harm or risk the privacy of the child or that infringe on any privacy
rights of the child. Fourth, Sec. 1355.22(g) specifies that the title
IV-E/IV-B agency must comply with all applicable privacy laws,
including section 471(a)(8) of the Act (42 U.S.C. 671(a)(8)) and 45 CFR
205.50, in all aspects of its implementation of this section, and that
information that reveals a child's LGBTQI+ status or identity may only
be disclosed in accordance with law and any such disclosure must be the
minimum necessary to accomplish the legally-permitted purposes. The
amount of information necessary to achieve the purpose of the
disclosure would be determined on a case-by-case basis and in
consideration of the best interest of the child. For example, the
information needed to make a referral for a child to receive services
related to the child's identity or status could be greater than another
type of referral for services. In addition, states that allow open
courts would want to be mindful about the information shared in reports
to the court as that information could be later shared openly.
The incorporation of these provisions is consistent with existing
legal requirements relating to privacy and confidentiality. As
discussed earlier in the preamble, title IV-E/IV-B agencies are
required to maintain a child's information confidentially and may
disclose it only for purposes specifically authorized by law. 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
[[Page 34839]]
8.4E. Regarding the statutory provision that allows title IV-E/IV-B
agencies to disclose a child's information for investigations,
prosecutions, criminal or civil proceedings, or audits ``conducted in
connection with the administration of any [Federal assistance]
programs,'' the requirement that the proceeding or audit be ``conducted
in connection with the administration'' of title IV-E or another
Federal assistance program strictly limits the disclosures allowed.
Title IV-E/IV-B agencies may not disclose information for purposes such
as investigating whether children or families are in compliance with
generally-applicable state or local laws, as such investigations would
not be conducted in connection with the administration of a Federal
assistance program.
Final Rule Changes: The final rule includes several revisions to
address privacy protections. Paragraph (g) was added to make explicit
that title IV-E/IV-B agencies must comply with all applicable privacy
laws, including section 471(a)(8) of the Act and 45 CFR 205.50.
Information revealing a child's LGBTQI+ status or identity may only be
disclosed in accordance with law. Such disclosure should be the minimum
necessary to accomplish the legally-permitted purposes. The final rule
also includes disclosing the child's LGBTQI+ status or identity in ways
that cause harm as conduct that constitutes prohibited retaliation. It
also specifies that the title IV-E/IV-B agency must comply with all
applicable privacy laws.
Section 1355.22(h) Training and Notification Requirements
In the NPRM, ACF proposed to require that in order to meet the
requirements of the rule, title IV-E agencies must ensure that its
employees who have responsibility for placing children in foster care,
making placement decisions, or providing services are trained to
implement the procedural requirements of this section, and are
adequately prepared with the appropriate knowledge and skills to serve
an LGBTQI+ child related to their sexual orientation, gender identity,
and gender expression. The NPRM further proposed that the IV-E agency
must 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. Finally, the NPRM proposed that the IV-E agency
must 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.
Comment: Several organizations recommended engaging LGBTQI+ youth
with lived experience in development and implementation, providing
guidance or resources on minimum number of hours, frequency of
trainings, curricula, topics, developing a list of curricula, or core
elements for training requirements for employees. Many of the
commenters provided specific topics and/or core elements and suggested
curricula. A few commentors also recommended that the trainings be
certified by certain non-profit agencies.
Response: We have reviewed all the recommendations and appreciate
recommendations for high-quality training. ACF has determined not to
make any changes to the final rule in order to provide appropriate
flexibility to agencies to determine the breadth of training consistent
with the statute and rule and not prescribe specific requirements on
hours, frequency, development, implementation, topics, or core
elements. ACF intends to issue implementation guidance for the final
rule which incorporates many of these recommendations for high-quality
initial and ongoing training for providing supportive care for LGBTQI+
children. We expect the guidance will be informed by the lived
experiences of LGBTQI+ children and youth in foster care, and we
encourage title IV-E/IV-B agencies to engage LGBTQI+ youth with lived
experience in foster care in developing employee trainings. Further,
ACF is committed to providing ongoing training and technical assistance
to assist states, tribes, and agencies to provide training to increase
Designated Placements for LGBTQI+ children in foster care.
Comment: Several commenters recommended that training should be
mandatory for all staff, including all contractors and subrecipients of
the child welfare agency.
Response: ACF has determined not to make any changes to the final
rule for the following reasons: it would be overly burdensome to title
IV-E/IV-B agencies to have specific training requirements for those
employees who do not have responsibility for placing children in foster
care, for making placement decisions, or for providing services. The
rule is designed to effectuate Designated Placements in the least
burdensome manner possible. Thus, the final rule retains the provision
as proposed.
Comment. Some commenters recommended that all agency contractors
must be informed of the procedural requirements.
Response: The requirement to be informed of the requirements in the
final rule is essential only for those contractors that are fulfilling
foster care placements and services. We are not expanding the
requirement to include contractors and subrecipients who are not going
to be involved with placements because it is unnecessary and overly
burdensome for the agency to notify such contractors and subrecipients
about the requirements of the rule. Thus, no changes to the final rule
are warranted.
Comment: Some commenters recommended that all providers, including
those that are seeking to serve as a designated placement for LGBTQI+
children must be informed of the procedural requirements.
Response: We agree with the commenters and have revised the final
rule to ensure that all foster care providers are informed about the
provisions in the final rule. Providers who are Designated Placements
will receive additional training to meet the needs of the LGBTQI+
child, as knowing the full protections required for these children is
necessary for fulfilling their role as a Designated Placement.
Final Rule Changes: The final rule clarifies agencies must ensure
that all placement providers are informed of the procedural
requirements to comply with this rule, including the required non-
retaliation provisions.
Section 1355.22(i) Protections for Religious Freedom, Conscience, and
Free Speech
Comment: Many commenters raised concerns that religious families
and organizations will have sincerely held religious beliefs that
conflict with the rule and as a result, those families and
organizations will be deemed to not be ``safe and appropriate'' by the
Federal Government. These commenters asserted that both individuals and
organizations of faith will be discouraged from applying or continuing
to provide foster care services because they will be penalized for
their beliefs. Another commenter said that if adhering to a certain
view of sexuality equates to a hostile environment, faith-based
institutions and religious foster parents will not fit the standard.
Similarly, a commenter wrote that a ``safe and appropriate'' placement
designation implies that a home that espouses certain ethics of
[[Page 34840]]
marriage, sexuality, and gender identity is harmful to LGBTQI+
children. Several commenters also stated that in order to be considered
a safe and appropriate placement, a provider would be 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.
Response: ACF appreciates the vital role that faith-based providers
and families of faith play in the child welfare system. Indeed, many
families of faith are compelled by their religious beliefs to provide
loving care to children in foster care, including LGBTQI+ children. ACF
further anticipates that some faith-based providers and families of
faith will seek to become Designated Placements for LGBTQI+ children,
while others will choose not to do so.
ACF remains fully committed to complying with all religious
freedom, free speech, and conscience laws and regulations, 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''). A provider requesting any
accommodation would submit the request to their state's or tribe's
title IV-E/IV-B agency. If the title IV-E/IV-B agency determines that
the request concerns an objection based on religious freedom,
conscience, or free speech to an obligation that is required or
necessitated by this rule, the title IV-E/IV-B agency must promptly
forward the request to ACF, which will consider the request in
collaboration with the HHS Office of the General Counsel. ACF will
carefully consider any organization's assertion that any obligations
imposed upon them that are necessitated by this final rule conflicts
with their rights under the Constitution and Federal laws that support
and protect religious exercise, free speech, and freedom of conscience.
Under ACF's established practice, a state or tribe may not disqualify
from participation in the program a provider that has requested the
accommodation unless and until the provider has made clear that the
accommodation is necessary to its participation in the program and HHS
has determined that it would deny the accommodation. See 45 CFR 87.3(c)
and (q) (2014).
We reiterate that this rule does not diminish each state's and
tribe's obligation to ensure that faith-based 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) (2014). Further, states and tribes are prohibited from
discriminating for or against an organization on the basis of the
organization's religious character, motives, or affiliation, or lack
thereof, or on the basis of conduct that would not be considered
grounds to favor or disfavor a similarly situated secular organization.
Id.
Finally, to address some of the concerns that religious providers
who decline to become designated as a placement provider for LGBTQI+
children could be deemed unsafe, the final rule uses different and
clearer terminology, as outlined earlier in this preamble. The preamble
notes that all placements must be safe and appropriate for all
children, regardless of their sexual orientation or gender identity.
And the final rule clarifies that all placements of LGBTQI+ children,
like all other children, must be safe and appropriate, whereas
placements that are offered by providers who decide to become specially
designated to provide care for LGBTQI+ children will be referred to as
Designated Placements. As we have explained elsewhere in this preamble,
the general requirement to avoid harassment, mistreatment, and abuse--
which applies to all children in all placements--does not turn on a
provider's religious or nonreligious motivation for engaging in conduct
that rises to the level of harassment, mistreatment, or abuse. Nor
would a provider's merely holding particular views about sex and
gender, whether for religious or nonreligious reasons, nor would
respectful efforts to communicate with LGBTQ+ children about their
status or identities violate that general requirement.
Comment: Some commenters discussed the impact of the rule on
kinship caregivers who are people of faith, and who may have religious
concerns or objections to provisions within this rule. For example, one
commenter said that the proposed rule would require training for
relatives of children who are LGBTQI+ in some circumstances. The
commenter wrote that such a rule would violate the religious beliefs of
kinship caregivers. Another commenter said that although the rule
provides an exemption framework for religious providers, that framework
does not appear to apply to individual foster parents. Similarly, the
commenters expressed concern about how the proposed rule would impact
individual foster care providers with deeply held religious beliefs
that are not affiliated with a faith-based organization--which could
include kinship caregivers.
Response: ACF appreciates that kinship caregivers often provide the
best possible placement for a child in foster care. That includes
kinship caregivers who are people of faith. Title IV-E agencies should
seek to comply with the requirements of this rule while continuing to
prioritize placements with kinship caregivers whenever a caseworker has
determined that doing so is in the best interest of a child.
To be clear as to the training requirement, this final rule only
requires that providers, including kinship caregivers, be informed of
the procedural requirements of this rule, including the non-retaliation
provision. The separate training requirement in paragraph (b)(1)(ii)
applies only to those providers who voluntarily choose to offer
Designated Placements. ACF understands that there could be instances in
which a kinship caregiver has a religious objection to a requirement in
this rule. But that does not mean the rule violates the religious
beliefs of all kinship caregivers, or any other providers, irrespective
of whether they have requested an accommodation. As with any provider
that requests a religious accommodation, a kinship caregiver with a
religious objection to a requirement of the rule could seek an
accommodation by submitting the request to their state's or tribe's
title IV-E/IV-B agency, which should then follow the same process that
applies to other providers. As discussed more fully above, under that
process, if the title IV-E/IV-B agency determines that the request
concerns an objection based on Federal legal protections for religious
exercise, free speech, or conscience an obligation that is required or
necessitated by this rule, the title IV-E/IV-B agency must promptly
forward the request to ACF, which will consider the request in
collaboration with the HHS Office of the General Counsel.
As ACF acknowledged in the proposed rule preamble, in Fulton v.
City of Philadelphia, 593 U.S. 522 (2021), the Court held that
Philadelphia's decision to apply a non-discrimination requirement to a
specific faith-based foster care provider, having made clear that the
city had ``no intention'' of granting an exception to that
organization, violated the Free Exercise Clause of the First Amendment.
Id. at 535. In contrast, in the preambles to both the proposed rule and
this final rule, ACF has made clear that the agency is fully committed
to carefully considering any provider's assertion that any obligations
imposed upon them that are necessitated by this
[[Page 34841]]
final rule conflict with their rights under the Constitution and
Federal laws and regulations supporting and protecting religious
exercise and freedom of conscience. ACF will enforce these Federal
protections by granting religious accommodations that are consistent
with them where appropriate. RFRA protects the religious liberty rights
of individuals as well as ``corporations, companies, associations,
firms, partnerships, societies, and joint stock companies.'' 42 U.S.C.
2000bb-1; 1 U.S.C. 1. This practice of considering such requests on a
case-by-case basis is consistent with applicable department-wide
regulations at 45 CFR 87.3(b) and (c). This individualized approach to
any religious accommodation requests is also practical because ACF
expects that many other care providers of varying religious or
nonreligious backgrounds will be willing to be Designated Placements.
ACF also recognizes that the facts that are relevant to any potential
objection may vary considerably because the involvement of the child
welfare system in kinship care varies from jurisdiction to jurisdiction
as each state or tribe has its own laws and practices. For example,
while some potential kinship care providers may have a pre-existing
relationship with a child in foster care, others may not.
Through the religious accommodation process to which ACF refers
above, this rule recognizes that, insofar as the application of any
requirement under this section would violate applicable Federal
protections for religious freedom, conscience, and free speech, such
application shall not be required. It also states that nothing in this
rule shall be construed to require or authorize a state to penalize a
provider in the state's titles IV-E and IV-B program because the
provider does not seek or is determined not to qualify as a Designated
Placement.
Final Rule Change: The final rule clarifies that insofar as the
application of any requirement under the rule would violate applicable
Federal protections for religious freedom, conscience, and free speech,
such application shall not be required. The proposed rule did not
include this provision in the proposed regulation text.
Section 1355.22(j) No Penalties for Providers That Do Not Seek To
Qualify as Designated Placements
Comment: Several commenters suggested that any agency contractors
or subcontractors and their licensed foster care providers who do not
seek a special designation to serve LGBTQI+ children should not have a
contract with the state or at a minimum should not be able to utilize
or claim any Federal funds. Other commenters asserted that the rule
will penalize those providers who do not seek that designation and will
thus discourage them from applying or continuing to provide foster care
services.
Response: ACF does not intend for this final rule to require any
provider to seek the status of a Designated Placement. To make that
point clear, we have added a new Sec. 1355.22(j). This provision
states that nothing in this rule requires or authorizes a State to
penalize a provider in the state's titles IV-E and IV-B program because
the provider does not seek or is determined not to qualify for the
status of a Designated Placement under this rule. It therefore
underscores our intent that, as far as Federal law is concerned, the
choice to become a Designated Placement is a voluntary one to be made
by each foster care provider. By adopting this structure, ACF ensures
that LGBTQI+ children in the foster care system will have Designated
Placements available to them without requiring states or tribes to
override the choices of providers who do not wish to be Designated
Placements.
Final Rule Change: The final rule clarifies that nothing in the
rule shall be construed to require or authorize a state or tribe to
penalize a provider in the state's titles IV-E and IV-B program because
the provider does not seek or is determined not to qualify as a
Designated Placement under this rule. The proposed rule did not include
this provision.
Section 1355.22(k) Severability
Section 1355.22(e) of the Proposed Rule described the severability
provision in the event that a portion of the rule, if final, is
determined by be invalid or unenforceable.
We received no comments about this section and made no changes to
the final rule, as it appears at Sec. 1355.22(k).
Section 1355.22(l) Implementation
Comment: We received comments expressing concerns that the
provisions in the rule added burden on child welfare agencies. One
commenter indicated that its state would require two to three years to
implement these new provisions.
Response: We acknowledge that agencies will need time to come into
compliance with these provisions, and this final regulation provides
approximately two Federal fiscal years for implementation. The
implementation date is on or before October 1, 2026.
Section 1355.22(m) No Effect on More Protective Laws or Policies
Comment: Commenters sought clarity about whether this regulation
would preempt conflicting state laws.
Response: As noted throughout this preamble, this rule does not
preempt state laws that regulate health care or other matters that
extend beyond the federally funded title IV-E/IV-B system. Rather, it
interprets key terms that delineate the care title IV-E/IV-B agencies
must provide to foster children in the programs carried out with
Federal title IV-B and IV-E financial assistance. It is within HHS'
authority to implement the requirements applicable to the receipt of
Federal matching funds under the Social Security Act for the
administration of the title IV-B and IV-E programs, and nothing in this
regulation requires state agencies or other persons to fail to comply
with general state laws that regulate matters like health care that go
beyond the foster care system.
This rule sets a Federal floor for safe and appropriate care of
LGBTQI+ children in the title IV-B/IV-E program. But it does not limit
states from providing additional protections to those children. To
clarify that point, in this final rule, ACF has added a new Sec.
1355.22(m), entitled ``No effect on more protective laws or policies.''
This provision applies to the entirety of the final rule and makes
clear that nothing in the rule shall limit any State, Tribal, or local
government from imposing or enforcing, as a matter of state law,
requirements that provide greater protection to LGBTQI+ children than
this rule provides. This provision makes clear that, in the context of
LGBTQI+ children, the final rule creates a Federal floor to enforce
Congress's mandate that children in title IV-E/IV-B programs receive
safe and appropriate care. The rule requires that states ensure that
they have a sufficient number of Designated Placements to serve all
children in foster care who identify as LGBTQI+ and request or would
benefit from such a placement. It imposes certain specific requirements
on providers who have voluntarily agreed to serve as Designated
Placements. It reaffirms that all children in title IV-E/IV-B programs,
including LGBTQI+ children, are entitled to protections against
harassment, abuse, and mistreatment, regardless of their placement. And
it creates specific nonretaliation protections for LGBTQI+ children,
also regardless of their placement.
ACF believes that these provisions, taken together, advance the
statutory guarantee that children in title IV-E/IV-
[[Page 34842]]
B programs receive safe and appropriate care. But those provisions set
a floor only. States and tribes may legitimately decide that the
welfare and interests of LGBTQI+ children require greater protection.
Nothing in titles IV-E and IV-B authorizes ACF to stand in the way of
those state decisions, and ACF makes clear in this provision it has no
intention to do so.
ACF understands that a number of States have adopted statutes or
policies that provide protections for LGBTQI+ children that go beyond
those in this rule. Some of these States require training on how to
support LGBTQI+ youth for all providers. See, e.g., N.M. Admin. Code
8.26.5.18.A.(3) (requiring policies to ``educate prospective and
current foster or adoptive families on how to create a safe and
supportive home environment for youth in foster care regardless of
their sexual orientation, gender identity or gender expression'').
Others have adopted their own detailed requirements governing
placements for LGBTQI+ children. See, e.g., MD Policy SSA-CW #23-05
(Dec. 15, 2023). In a recent review of state laws and policies, ACF
found that ``[l]aws and policies in 22 States and the District of
Columbia require that agencies provide youth who identify as LGBTQIA2S+
with services and supports that are affirming of the youth's LGBTQIA2S+
identity and are tailored to meet their specific needs.'' Children's
Bureau, Protecting the Rights and Providing Appropriate Services to
LGBTQIA2S+ Youth in Out-of-Home Care at 2 (2023) (footnote omitted). In
particular, ``[p]olicies in 21 States and the District of Columbia
address the needed qualifications for persons who provide out-of-home
care for children or youth who identify as LGBTQIA2S+.'' Id. at 4
(footnote omitted). And ``[f]ifteen States and the District of Columbia
require training on LGBTQIA2S+ issues for foster caregivers and related
staff.'' Id. (footnote omitted). These state laws and policies rest on
the State's authority to provide protections for children in its foster
care system, not on this final rule. The State's authority to provide
those protections preexisted this final rule, and nothing in this final
rule limits a State's, tribes, or local government's power to impose or
enforce laws and policies like these.
Final Rule Change: The final rule clarifies that nothing in the
rule shall limit any State, tribe, or local government from imposing or
enforcing, as a matter of law or policy, requirements that provide
greater protection to LGBTQI+ children than the rule provides. The
proposed rule did not include this provision.
Section 1355.34(c) Criteria for Determining Substantial Conformity
Section 1355.34(c)(2)(i) describes an amendment to the Child and
Family Services Review (CFSR) to monitor compliance with requirements
in Sec. 1355.22(b)(1).
Comment: Several commenters expressed support of this provision;
however, one state expressed concern with monitoring the proposed
placement provisions through the CFSR, stating it is already a
cumbersome review process. In addition, a few commenters provided
recommendations that are not within the purview of this final rule,
such as changing the overall CFSR process and others suggested expanded
monitoring processes in addition to the CFSR. Several commenters raised
the concern that the proposed rule's prohibition on retaliation would
not be enforced.
Response: We are modifying the final rule to expand the
requirements in the rule to be monitored through the CFSR to include
the retaliation provisions in paragraph (d) and Designated Placements
and services requirements in paragraph (b), as applicable. Under the
current CFSR regulations, the Children's Bureau reviews how state title
IV-E agencies ensure the appropriateness of foster care placements as
required by the title IVE/IVB case review system. Monitoring through
the CFSR is the appropriate vehicle because the final rule implements
these statutory case review system requirements that agencies must meet
for LGBTQI+ children in foster care.
Comment: One state questioned how ACF intends to monitor compliance
with these regulations and whether ACF anticipates making changes to
reporting requirements for LGBTQI+ children and youth.
Response: As stated in the NPRM preamble, ACF will monitor both
state and tribal title IV-E/IV-B agency plan compliance with the
requirements of Sec. 1355.22 using the partial review process outlined
in Sec. 1355.34(c)(2)(i). If ACF becomes aware of a potential non-
compliance issue with Sec. 1355.22, it will initiate the partial
review process. In addition, the final rule now includes monitoring a
state agency's compliance with Sec. 1355.22(b) and (d) through the
CFSR. Related to changes in reporting, the requirements in the final
rule must be included in the state or tribe's title IV-E plan that ACF
must review and approve.
Comment: One commenter recommended HHS clarify how, if at all, this
proposed rule will impact state laws and questioned whether it was
HHS's position that this rule will preempt state law? Would such state
laws disqualify states from receiving funding for foster care or lead
to an enforcement action by HHS? One commenter expressed concern that
enforcing the requirements for safe and appropriate placements for
LGBTQI+ children would constitute Federal overreach. The commenter also
stated that the final rule would ``enforce a narrow definition of this
requirement that usurps a state's constitutional authority to determine
what is in the best interests of a child in its foster care system.''
Response: ACF refers commenters to our responses in section IV of
the preamble to comments regarding federalism, nondelegation and
Spending Clause concerns. As noted there, this rule does not preempt
generally-applicable state laws. Rather, it interprets key terms
regarding the care title IV-E/IV-B agencies must provide to foster
children in order to qualify for the Federal title IV-B and IV-E
Federal financial assistance programs. ACF also refers commenters to
the new Sec. 1355.22(m), entitled ``No effect on more protective laws
or policies,'' which is discussed above.
Comment: A few commenters recommended to expand agency
accountability beyond monitoring through the CFSR or to modify the CFSR
process. Suggestions included to engage with impacted youth and
families, youth advisory boards, and other experts, develop qualitative
data collection and reporting processes, and provide annual reports to
ACF.
Response: ACF reviewed the suggestions provided but we are not
making any changes to add other monitoring requirements. Several of the
recommendations are outside the authority of this final rule because
they are suggestions for changing ACF's monitoring process or adding
new monitoring processes for the provisions in the rule. However, ACF
would like to note that the CFSR process includes reviewing qualitative
data and consultation with youth and others as required under those
regulations. For example, as part of the Round 4 CFSRs, through a
series of focus groups, 18 young people with self-identified lived
child welfare experience were asked about the best methods of
recruiting, engaging, supporting, and retaining young people in all
aspects of the CFSRs.
Final Rule Changes: ACF is retaining the provision in the final
rule as proposed to review Sec. 1355.22(b)(1) (which was numbered as
Sec. 1355.22(a)(1)
[[Page 34843]]
in the NPRM) and adding provisions to also review Sec. 1355.22(b) and
(d) through the CFSR, which is the authority that governs reviews of
title IV-B and IV-E programs.
Comments on Cross-Cutting Issues
In the proposed rule, ACF requested public comment on various
topics and provisions in the NPRM. Responses to these questions are
described below.
Kinship Caregivers
In the NPRM, we requested public comment on how agencies can best
comply with the requirements of the proposed rule and prioritize
placements with kinship caregivers. In particular, we invited public
comment on what resources agencies might n
[…truncated; see source link]Indexed from Federal Register on April 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.