Rule2024-09663
Foster Care Legal Representation
Primary source
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Published
May 10, 2024
Effective
July 9, 2024
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
This rule allows title IV-E agencies to claim Federal financial participation (FFP) for the administrative costs of: legal representation in foster care proceedings provided by an attorney representing the title IV-E agency or any other public agency (including an Indian tribe) which has an agreement in effect under which the other agency has placement and care responsibility of a title IV-E eligible child; independent legal representation provided by an attorney representing a child in title IV-E foster care, a child who is a candidate for title IV-E foster care (hereafter, referred to as a child "who is eligible for title IV-E foster care"), the child's parent(s), the child's relative caregiver(s), and the child's Indian custodian(s) in foster care and other civil legal proceedings as necessary to carry out the requirements in the title IV-E agency's title IV-E foster care plan; and legal representation provided by an attorney representing an Indian child's tribe, or representation of an Indian child's tribe provided by a non-attorney, when the child's tribe participates or intervenes in any state court proceeding for the foster care placement or termination of parental rights (TPR) of an Indian child who is in title IV-E foster care or an Indian child who is a candidate for title IV-E foster care.
Full Text
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<title>Federal Register, Volume 89 Issue 92 (Friday, May 10, 2024)</title>
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[Federal Register Volume 89, Number 92 (Friday, May 10, 2024)]
[Rules and Regulations]
[Pages 40400-40417]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09663]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1356
RIN 0970-AC89
Foster Care Legal Representation
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 allows title IV-E agencies to claim Federal
financial participation (FFP) for the administrative costs of: legal
representation in foster care proceedings provided by an attorney
representing the title IV-E agency or any other public agency
(including an Indian tribe) which has an agreement in effect under
which the other agency has placement and care responsibility of a title
IV-E eligible child; independent legal representation provided by an
attorney representing a child in title IV-E foster care, a child who is
a candidate for title IV-E foster care (hereafter, referred to as a
child ``who is eligible for title IV-E foster care''), the child's
parent(s), the child's relative caregiver(s), and the child's Indian
custodian(s) in foster care and other civil legal proceedings as
necessary to carry out the requirements in the title IV-E agency's
title IV-E foster care plan; and legal representation provided by an
attorney representing an Indian child's tribe, or representation of an
Indian child's tribe provided by a non-attorney, when the child's tribe
participates or intervenes in any state court proceeding for the foster
care placement or termination of parental rights (TPR) of an Indian
child who is in title IV-E foster care or an Indian child who is a
candidate for title IV-E foster care.
DATES: This rule is effective on July 9, 2024.
FOR FURTHER INFORMATION CONTACT: Joe Bock, Children's Bureau, (202)
205-8618. Telecommunications Relay users may dial 711 first. Email
inquiries to <a href="/cdn-cgi/l/email-protection#c4a7a6a7aba9a9a1aab0b784a5a7a2eaacacb7eaa3abb2"><span class="__cf_email__" data-cfemail="abc8c9c8c4c6c6cec5dfd8ebcac8cd85c3c3d885ccc4dd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
II. Background
III. Overview of September 2023 NPRM Comments
IV. Section-by-Section Responses to Comments
V. Regulatory Process Matters
VI. Tribal Consultation Statement
I. Statutory Authority
Section 474(a)(3) of the Social Security Act (the Act) authorizes
Federal reimbursement for title IV-E foster care program administrative
costs, which are defined as costs ``found necessary by the Secretary
for the provision of child placement services and for the proper and
efficient administration of the State [title IV-E] plan.'' This
authorization applies to an Indian tribe, tribal organization, or
tribal consortium that has an approved title IV-E plan, in the same
manner as it applies to states.
This rule is published under the authority granted to the Secretary
of Health and Human Services (the Secretary) by section 1102 of the
Act, 42 U.S.C. 1302. Section 1102 of the Act authorizes the Secretary
to publish regulations, not inconsistent with the Act, as may be
necessary for the efficient administration of the functions with which
the Secretary is charged under the Act.
II. Background
Many families that come to the attention of a child welfare agency
are in the midst of or recovering from familial, health, housing, or
economic challenges or crises. These obstacles can impede a family's
ability to provide a safe and stable environment for their children.\1\
Addressing these obstacles to restore a family's stability and safety
and prevent a child from being removed from their home is critical to a
child's well-being. This is because removal, even for a short period of
time, exposes the child to a range of trauma and stress.\2\ A child who
is at risk of entering foster care has better outcomes when they remain
safely at home compared to when they are placed into foster care.\3\
Access to independent legal representation can help stabilize families,
improve safety, and reduce the need for more formal child welfare
system involvement, including foster care.\4\ For families with
children that have been placed in foster care, independent legal
representation can expedite reunification and improve permanency or
help provide access to needed supports for youth transitioning out of
the child welfare system.\5\
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\1\ Chandler CE, Austin AE, Shanahan ME. Association of Housing
Stress With Child Maltreatment: A Systematic Review. Trauma Violence
Abuse. 2022 Apr;23(2):639-659. doi: 10.1177/1524838020939136. Epub
2020 Jul 17. PMID: 32677550; PMCID: PMC7855012; ACYF-CB-IM-21-02,
p.2; ACYF-CB-IM-21-06 p. 12.
\2\ Sankaran, Vivek. ``Using Preventive Legal Advocacy to Keep
Children from Entering Foster Care.'' Wm. Mitchell L. Rev. 40, (3):
1036-1047, 2014.
\3\ Joseph J. Doyle, Jr. ``Causal Effects of Foster Care: An
Instrumental Variables Approach.'' Children and Youth Services
Review 35(7): 1143-1151, 2013.
\4\ Sankaran, Vivek. ``Using Preventive Legal Advocacy to Keep
Children from Entering Foster Care.'' Wm. Mitchell L. Rev. 40, (3):
1036-1047, 2014.
\5\ Gerber, Lucas A., Pang, Yuk C., Ross, Timothy, Guggenheim,
Martin, Pecora, Peter J., & Miller, Joel. ``Effects of an
interdisciplinary approach to parental representation in child
welfare,'' Children and Youth Services Review, Volume 102, 2019,
Pages 42-55, ISSN 0190-7409, <a href="https://doi.org/10.1016/j.childyouth.2019.04.022">https://doi.org/10.1016/j.childyouth.2019.04.022</a>; American Bar Association Center on
Children and the Law & National Council of Juvenile and Family Court
Judges. Supporting Early Legal Advocacy before Court Involvement in
Child Welfare Cases (March 2021).
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HHS regulations at 45 CFR 1356.60(c) detail cost-sharing
requirements for the Federal and non-Federal share of title IV-E foster
care program expenditures for the cost of administrative activities. A
title IV-E agency may claim FFP at the rate of 50 percent for allowable
title IV-E foster care administrative costs. A title IV-E agency may
also claim FFP for allowable administrative costs incurred by any other
public agency or tribe which has an agreement in effect under which the
other agency has placement and care responsibility of a title IV-E
eligible child pursuant to 472(a)(2)(B)(ii) of the Act. Another
``public agency'' is a child placing agency authorized by state/tribal
law to operate services to children and families, with supervision by
the title IV-E agency (Child Welfare Policy Manual section (CWPM) 8.1G
#1). Examples of other public agencies may be found in section G of the
CWPM and could include the state/tribal juvenile justice agency, a
court, or state/tribal mental health agency. The regulation at Sec.
1356.60(c)(2) provides examples of allowable title IV-E foster care
administrative expenditures that are necessary for the administration
of the title IV-E agency's plan, such as preparation for and
participation in judicial determinations, referral to services,
development of the case plan, case reviews, and case management and
supervision.
ACF policy historically allowed title IV-E agencies to claim FFP
for the foster care administrative costs of ``preparation for and
participation in judicial determinations'' as described in Sec.
1356.60(c)(2)(ii), only for the title IV-E agency's (and if applicable,
the Indian tribe or other public agency's) legal representation.
However, in 2019, ACF revised the policy to allow title IV-E agencies
to also claim FFP for the administrative costs of independent
[[Page 40401]]
legal representation provided by attorneys representing children who
are candidates for title IV-E foster care, children who are in title
IV-E foster care, and the children's parent(s) in all stages of foster
care legal proceedings (CWPM 8.1B #30, 31, and 32). This policy was
revised to ensure that reasonable efforts are made to prevent removal
and finalize the permanency plan; and parents and youth are engaged in
and complying with case plans. This policy change was well received and
generated positive interest from title IV-E agencies and child welfare
and legal partners. A ``candidate'' for title IV-E foster care is a
child who is potentially eligible for title IV-E foster care
maintenance payments and is at serious risk of removal from their home
as evidenced by the title IV-E agency either pursuing the child's
removal from the home or making reasonable efforts to prevent such
removal (section 472(i) of the Act). Further, the agency must document
the child's candidacy for title IV-E foster care maintenance payments
through one of the three acceptable methods identified in the CWPM,
such as a case plan (CWPM 8.1D #2), which we further explain in section
IV of this final rule. A child is not considered a candidate for title
IV-E foster care when the title IV-E agency has no formal involvement
with the child or simply because the child has been described as ``at
risk'' due to circumstances such as social or interpersonal problems or
a dysfunctional home environment (CWPM 8.1D).
ACF published the September 2023 notice of proposed rulemaking
(NPRM) proposing to codify and expand the policy in CWPM 8.1B #30, 31,
and 32 (88 FR 66769, Sept. 28, 2023). Recent research, as described in
the September 2023 NPRM, demonstrates that providing independent legal
representation early in foster care proceedings and other civil legal
proceedings can help prevent children from entering foster care, and
for youth already in foster care it can improve the rate of
reunification and result in more permanent outcomes for the child and
the family. The NPRM proposed that providing independent legal
representation to a child who is a candidate for or in title IV-E
foster care, their parent(s), and their relative caregiver(s), to
prepare for and participate in civil legal proceedings is an allowable
administrative cost when necessary to carry out the requirements in the
agency's title IV-E foster care plan in accordance with section 471(a)
of the Act.
For Indian children that have been placed in foster care and are
subject to the Indian Child Welfare Act (ICWA), and their families,
early representation of an Indian child's tribe in foster care
proceedings promotes stability for the child by minimizing unnecessary
separation of children and their parents, maximizing placements of the
child with extended family and other preferred placements, and avoiding
unintended consequences adverse to a child's interests, such as loss of
tribal membership and benefits.\6\ ICWA was passed by Congress in 1978
to address the long history of failing ``to recognize the essential
tribal relations of Indian people and the cultural and social standards
prevailing in Indian communities and families'' (25 U.S.C. 1901(5)).
ICWA protects the ``best interests of Indian children and promotes the
stability and security of Indian tribes and families by the
establishment of minimum federal standards for the removal of Indian
children from their families and the placement of such children in
foster or adoptive homes which will reflect the unique values of Indian
culture, and by providing for assistance to Indian tribes in the
operation of child and family service programs'' (25 U.S.C. 1902).\7\
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\6\ Frequently Asked Questions Bureau of Indian Affairs Final
Rule: Indian Child Welfare Act (ICWA) Proceedings, June 17, 2016;
ICWA Compliance Task Force Report to the California Attorney
General's Bureau of Children's Justice, 2017.
\7\ ICWA and its implementing regulations define ``Indian
child,'' to mean any unmarried person who is under age eighteen and
is either a member of an Indian tribe or is eligible for membership
in an Indian tribe and is the biological child of a member of an
Indian tribe (25 U.S.C. 1903(4)). An ``Indian child's tribe'' means
the Indian tribe in which an Indian child is a member or eligible
for membership or, in the case of an Indian child who is a member of
or eligible for membership in more than one tribe, the Indian tribe
with which the Indian child has the more significant contacts (25
U.S.C. 1903(5)). An ``Indian custodian'' means any Indian person who
has legal custody of an Indian child under tribal law or custom or
under State law or to whom temporary physical care, custody, and
control has been transferred by the parent of such child (25
U.S.C.1903(6)).
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As one tribal leader told Congress, tribes cannot long survive as
``self-governing'' communities if they cannot pass their ``heritage''
on to the next generation. Holyfield at 34 (citation omitted). Congress
thus recognized that, by severing that connection to future
generations, the breakup of Indian families threatens ``the continued
existence and integrity of Indian tribes.'' 25 U.S.C. 1901(3). The
Federal Government has an interest in ensuring that Indian tribes,
vested with a statutory right to intervene in state foster care
placement proceedings in accordance with 25 U.S.C. 1911(c), have legal
representation to preserve and protect the continued existence and
integrity of Indian tribes. As the Supreme Court noted in a case
interpreting ICWA, ``Congress [ ] found that the breakup of Indian
families harmed not only Indian children and their parents, but also
their tribes.'' \8\
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\8\ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S.
30 at 33-34 (1989).
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The information provided by the tribe's attorney provides the
cultural and social standards of the child's tribe that are necessary
for the court to make essential determinations that reasonable efforts
were made as required under the title IV-E plan. For example, the Act
requires the court to determine whether the agency made reasonable
efforts to finalize a permanency plan. The tribal attorney's
representation of the cultural and social standards for family
connection, reunification and what permanency looks like in the child's
tribe, may be necessary to finalize the permanency plan for an Indian
child. For another example, if adoption is the permanency plan for an
Indian child, the tribal attorney can provide information on customary
adoption, which ensures ``the same stability and permanence of
traditional adoption without terminating parental rights.'' \9\
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\9\ Del Norte Cnty. Dep't of Health & Human Servs. v. Dylan N.
(In Re H.R.), 208 Cal. App 4th 751 (2012).
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This final rule supports the goal of tribal self-governance by
supporting Indian families, both by minimizing unnecessary separations
of Indian children from their parents and by maximizing their placement
with extended family, other tribal members, or other tribal families
when they cannot remain with their parents.
Equity Impact
This final rule advances the Administration's priority of equity
for those historically underserved and adversely affected by persistent
poverty and inequality (Executive Order 13985, Advancing Racial Equity
and Support for Underserved Communities Through the Federal Government
[Jan. 20, 2021]). Research documents the overrepresentation of certain
racial and ethnic groups in foster care relative to their
representation in the general population. African American and American
Indian or Alaska Native children are at greater risk than other
children of being placed in out-of-home care. They stay in foster care
longer and have disparate outcomes. For example, they are less likely
to reunify with their families.\10\
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\10\ Child Welfare Information Gateway (2021). Child welfare
practice to address racial disproportionality and disparity. U.S.
Department of Health and Human Services, Administration for Children
and Families, Children's Bureau. <a href="https://www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/">https://www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/</a>.
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[[Page 40402]]
Access to legal representation for an Indian child's tribe promotes
equity for those historically and adversely affected by inequality by
minimizing unnecessary separation of children and their parents, and by
maximizing placements of the child with extended family, within the
tribal community, and other preferred placements. Research also
documents the overrepresentation of children and parents with
disabilities in foster care relative to their representation in the
general population. Parents with disabilities are more likely than
nondisabled parents to have child welfare system involvement. Children
with disabilities are institutionalized at higher rates and for longer
periods of time. Children of parents with disabilities have higher out-
of-home placements than other children. Studies have also found
disabled parents have high rates of termination of parental rights
(TPR).\11\
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\11\ Albert SM, Powell RM. Supporting disabled parents and their
families: perspectives and recommendations from parents, attorneys,
and child welfare professionals. J Public Child Welf.
2020;15(5):529. doi: 10.1080/15548732.2020.1751771. PMID: 37220548;
PMCID: PMC10202498.
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Access to independent legal representation early in a case may
prevent children from entering foster care, including children of
color, American Indian or Alaska Native children and children with
disabilities who are disproportionately entering foster care. For
children in foster care, it may increase the rate of reunification and
provide a quicker timeframe for achieving permanency. For young adults
aging out of foster care, such legal representation may provide access
to services and supports needed to achieve permanency and long-term
stability.
This final rule may also help low-income families adversely
affected by persistent poverty who are struggling with unemployment,
inadequate income, unstable housing, evictions or homelessness, and
food insecurity when confronted with potential removal of a child from
the home, or when a relative is caring for a child in their home.
According to a 2017 study, 74 percent of low-income households
experienced at least one civil legal problem in the previous year,
including problems with health care, housing conditions, disability
access, veterans' benefits, and domestic violence.\12\ Of the low-
income households reporting civil legal problems, 92 percent received
inadequate or no legal help.\13\ Studies also show that when a child is
removed from the home, having access to legal representation not only
for child welfare proceedings but also for other civil legal issues
earlier in a case can improve the rate of reunification, halve the
amount of time needed to secure legal guardianship or adoption, and
result in more permanent outcomes for the child and the family.\14\
That means that parents without independent legal representation in
child welfare proceedings and in other civil legal proceedings are at a
disadvantage in having their children returned to them. Therefore,
providing families adversely affected by poverty with independent legal
representation in foster care and other civil legal proceedings
necessary to carry out the requirements in the agency's title IV-E
foster care plan may improve outcomes related to reunification and
permanency.
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\12\ Legal Services Corporation. 2022. The Justice Gap: The
Unmet Civil Legal Needs of Low-income Americans. Prepared by Mary C.
<a href="https://justicegap.lsc.gov/">https://justicegap.lsc.gov/</a>.
\13\ Id.
\14\ Thornton, Elizabeth, & Gwin, Betsy. High-Quality Legal
Representation for Parents in Child Welfare Cases Results in
Improved Outcomes for Families and Potential Cost Savings. 46 Fam.
L. Q. 139 (2012).
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III. Overview of September 2023 NPRM Comments
We received 122 comments in response to the September 2023 NPRM. We
reviewed and analyzed the public comments and considered them in
finalizing this rule. The comments are available in the docket for this
action on <a href="http://Regulations.gov">Regulations.gov</a>. We received comments from four title IV-E
child welfare agencies; 17 state and local government agencies; four
American Indian/Native American tribes, tribal consortia, tribal
organizations (``tribes'') and entities representing tribal interests;
31 national advocacy, public interest, philanthropic and professional
organizations (organizations); 26 providers of legal representation;
and 40 individuals and anonymous commenters.
General Comments in Support of the September 2023 NPRM
Summary of Comments on the Benefits of the Final Rule. Of the 122
comments received, 106 commenters supported issuing a final rule with
some suggestions and/or clarifications. All of the title IV-E agencies,
tribes and organizations representing tribal interests, providers of
legal representation, and state and local government agencies that
commented supported issuing a final rule. All but three of the
organizations and most individual and anonymous commenters also
supported issuing a final rule. We address suggestions and
clarifications in section IV of this final rule. Overwhelmingly,
commenters agreed that the rule as proposed would:
<bullet> Minimize barriers to access the support families need to
prevent children from entering foster care.\15\
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\15\ Sankaran, Vivek. ``Using Preventive Legal Advocacy to Keep
Children from Entering Foster Care.'' Wm. Mitchell L. Rev. 40, (3):
1036-1047, 2014.
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<bullet> For children who are in foster care, expedite
permanency.\16\
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\16\ American Bar Association Center on Children and the Law &
National Council of Juvenile and Family Court Judges. Supporting
Early Legal Advocacy before Court Involvement in Child Welfare Cases
(March 2021).
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<bullet> Support Indian families, both by minimizing unnecessary
separations of Indian children from their parents and by maximizing
their placement with extended family, other tribal members, or other
tribal families when they cannot remain with their parents.
Comments About the Equity Impact of the Rule. Many commenters
expressed that the proposal would advance equity for those historically
underserved and adversely affected by persistent poverty and
inequality. They noted that legal representation in civil proceedings:
is critical to achieve equity; protects the rights of families and
prevents inequities; promotes equity for LGBTQI+ youth who are
overrepresented within the foster care system; and advances equity for
parents, children, and families in diverse and historically
underserved, disadvantaged, and marginalized identities.
Comments Not in Support of the September 2023 NPRM
Sixteen commenters opposed issuing a final rule. Thirteen
individuals opposed issuing a final rule citing negative personal
experiences with appointed attorneys, such as receiving ineffective or
low-quality legal representation, conflicts of interests among
attorneys representing other parties, and insufficient oversight or
auditing of cases to ensure attorneys are handling family legal matters
properly. Several individuals expressed the view that the purpose of
this rule is to financially benefit attorneys. Three organizations
opposed issuing a final rule cited to systemic issues with child
welfare and family court systems, distrust of appointed attorneys, and
lack of attorney oversight by the state.
[[Page 40403]]
Comments Outside the Scope of the Regulation
We received several comments outside the scope of this regulation,
and therefore, we are not addressing those comments here. Some of these
comments included requiring the final rule to endorse models of legal
representation and include models for effective contracting and agency
oversight of contracting and billing with legal providers. Commenters
also recommended that the rule address cost-allocation requirements,
which are governed by 45 CFR parts 75 and 95. Finally, some commenters
suggested that the final rule require training to ensure quality legal
representation by attorneys. This is outside the scope of this rule,
which is optional for title IV-E agencies, and which does not govern
requirements for attorney behavior, but rather provides requirements
claiming FFP for administrative costs. However, as we stated in ACYF-
CB-IM-21-06, we urge all state and tribal title IV-E agencies, courts,
administrative offices of the courts, and Court Improvement Programs to
work together to ensure that parents, children and youth, and child
welfare agencies, receive high quality legal representation at all
stages of child welfare proceedings, and to claim FFP for allowable
training costs authorized under section 474(a)(3)(B) of the Act.
Changes to the Final Rule
We made the following changes to the final rule which are further
explained in Section-by-Section Response to Comments:
<bullet> Title IV-E agencies may claim FFP for the administrative
costs of independent legal representation for Indian custodian(s) in
foster care and other civil legal proceedings (Sec.
1356.60(c)(4)(ii)).
<bullet> Title IV-E agencies may claim the administrative cost of
an attorney or non-attorney representing an Indian child's tribe when
the child's tribe participates or intervenes in any state court
proceeding for the foster care placement or (TPR) of an Indian child
who is in title IV-E foster care or an Indian child who is a candidate
for title IV-E foster care (Sec. 1356.60(c)(4)(iii)).
IV. Section-by-Section Responses to Comments
We respond to the comments we received on the September 2023 NPRM
in this section-by-section discussion.
Section 1356.60(c)(2)(xi)
Paragraph (c)(2)(xi) of the final rule references new paragraph
(c)(4) and now reads: ``Costs related to legal representation described
in paragraph (c)(4) of this section.''
Comment: One commenter suggested we add the word ``civil'' so that
paragraph (c)(2)(xi) reads: ``Costs related to civil legal
representation described in paragraph (c)(4) of this section.''
Response: We did not make this change to the final rule. Paragraph
(c)(2)(xi) explains that the costs that are allowable include both
foster care legal proceedings and other civil legal proceedings.
Section 1356.60(c)(4)
Paragraph (c)(4) identifies allowable administrative costs of legal
representation. Although some legal representation costs might be
coverable under paragraph (c)(2)(ii) that allows a title IV-E agency to
claim IV-E administrative funding for the costs of ``preparation for
and participation in judicial determinations,'' new paragraph (c)(4)
codifies and expands the list of allowable activities. New paragraph
(c)(4) does not include the costs of agency caseworkers preparing for
and participating in hearings, which are clearly within the scope of
paragraph (c)(2)(ii), and so does not displace paragraph (c)(2)(ii).
Comment: Several comments from national organizations, legal
providers, tribes and tribal organizations requested that the final
rule explicitly incorporate the examples of allowable activities of
professionals that support an attorney providing independent legal
representation to prepare for and participate in foster care legal
proceedings including paralegals, investigators, peer partners or
social workers as identified in CWPM 8.1B #32 and the preamble of the
September 2023 NPRM, as well as other professionals.
Response: We confirm that a title IV-E agency may claim title IV-E
administrative costs for activities to the extent that they are
necessary to support an attorney in providing independent legal
representation. However, we decline to change the regulatory text
because it is not possible to list all of the activities that may be
claimed. We encourage title IV-E agencies to contact CB regional
offices for assistance.
Comment: A few commenters requested that the final rule compel
state and local child welfare agencies to access title IV-E FFP for the
administrative cost of independent legal representation and to fund
every eligible provider of legal representation.
Response: We did not make this change to the final rule. As we
explained in the September 2023 NPRM, title IV-E does not provide
authority to require agencies to provide legal representation. This
rule gives title IV-E agencies the flexibility to choose whether to
claim FFP for allowable administrative costs of legal representation.
This is because title IV-E agencies determine the allowable costs
necessary to administer the title IV-E foster care program.
Comment: A few organizations and providers of legal representation
suggested that ACF allow other public agencies, organizations, and
individuals to access title IV-E funds directly from the Federal
Government.
Response: This is not permitted by Federal law and therefore we did
not make this change to the final rule. Title IV-E of the Act
authorizes only state and tribal title IV-E agencies with an approved
title IV-E foster care plan to claim FFP. However, title IV-E agencies
may contract with public and private entities to perform administrative
functions of the title IV-E foster care program. See CWPM 8.1E and G
for more information.
Section 1356.60(c)(4)(i)
Section 1356.60(c)(4)(i) clarifies that a title IV-E agency may
claim administrative costs for legal representation by an attorney
representing the title IV-E agency or any other public agency, such as
a tribe, that has an agreement with the title IV-E agency for placement
and care responsibility of a title IV-E eligible child under section
472(a)(2)(B)(ii) of the Act in foster care proceedings.
Comment: Commenters noted that although the preamble to the
September 2023 NPRM referred to ``any other public agency or tribe,''
the proposed regulatory text did not include the words ``or tribe.''
Commenters requested that ACF include tribes in the regulatory text.
Response: We agree with commenters, and accordingly have revised
the regulation text to include tribes in order to clarify that a tribe
may operate as the ``other public agency'' if it has an agreement with
the state under section 472(a)(2)(B)(ii) of the Act. This revision to
the regulation text does not change its meaning.
Comment: Many commenters requested that ACF clarify the meaning of
``an agreement in effect under which the other agency has placement and
care responsibility of a title IV-E eligible child pursuant to
472(a)(2)(B)(ii) of the Act'' as it applies to tribes.
Response: Under this paragraph, a title IV-E agency may claim the
FFP for the allowable administrative cost of an attorney providing
legal representation of an Indian tribe in foster care legal
proceedings only if the Indian tribe has
[[Page 40404]]
an agreement under which it takes placement and care responsibility of
title IV-E eligible children in foster care and is operating all or
part of the title IV-E program on behalf of the title IV-E agency
(section 472(a)(2)(B) of the Act). More information on this topic can
be found in CWPM 8.1G. We decline the recommendation to change the
final regulatory text.
Section 1356.60(c)(4)(ii)
Section 1356.60(c)(4)(ii) permits a title IV-E agency to claim FFP
for the administrative costs of independent legal representation
provided by an attorney representing a child in title IV-E foster care,
a child who is a candidate for title IV-E foster care, the child's
parent(s), the child's relative caregiver(s), and the child's Indian
custodian(s) in foster care and other civil legal proceedings as
necessary to carry out the requirements in the agency's title IV-E
foster care plan. Independent legal representation in civil proceedings
includes facilitating, arranging, brokering, advocating, or otherwise
linking clients with providers and services as identified in the
child's case plan pursuant to sections 422, 471(a)(16), and 475 of the
Act.
Comment: Several title IV-E agencies and tribal organizations
requested that the final rule add ``Indian custodian'' to the list of
individuals for whom a title IV-E agency may claim FFP for the
administrative costs of independent legal representation in foster care
and other civil legal proceedings. This is because ICWA uses the term
``Indian custodian'' to describe Indian persons who have legal custody
of a child under tribal law or custom or to whom temporary physical
care, custody and control has been transferred by the parent of such
child (25 U.S.C. 1903(6); 25 CFR 23.2). As one state commented, the
term ``Indian custodian'' may be more ``akin to a parent'' but is not
encompassed in the title IV-E definition of parent.\17\ The NPRM
explained that under title IV-E of the Act, the term ``parent(s)''
means a biological or adoptive parent(s) or legal guardian(s), as
determined by applicable state or tribal law (section 475(2) of the
Act). Commenters also noted that the ICWA protections that apply to
Indian parents generally also apply to Indian custodians. Another
commenter indicated that an Indian custodian may align with being a
relative caregiver, but not in all instances.
Response: We agree with commenters that it is important for Indian
custodians to have equitable access to legal representation, and
therefore changed the final rule to include Indian custodians so that
title IV-E agencies have the option to claim FFP for independent legal
representation of Indian custodians.
As we describe in section II, the Federal Government has an
obligation to support the integrity of Indian tribes by minimizing
unnecessary separations of Indian children from their parents and by
maximizing their placement with extended family, other tribal members,
or other tribal families when they cannot remain with their parents (25
U.S.C. 1901(3)). Title IV-E of the Act requires title IV-E agencies to
make reasonable efforts to preserve and reunify families (42 U.S.C.
671(a)(15)(B) and (C)). This includes ensuring that Indian children
remain with Indian custodians and reducing the need for more formal
child welfare system involvement. Providing legal representation to
Indian custodians of children in title IV-E foster care may minimize
some of the barriers that prevent a child from being placed with an
Indian custodian, enable more children to maintain family and tribal
connections, stabilize placements and result in more permanent outcomes
for the child and the family. Further, Indian custodians often have
information essential to helping courts and title IV-E agencies
preserve Indian families in the context of the long history of child
custody proceedings ``often fail[ing] to recognize the essential tribal
relations of Indian people and the cultural and social standards
prevailing in Indian communities and families'' (25 U.S.C. 1901(5)).
Comment: Over 55 commenters from organizations and legal providers
expressed concern about ``independent legal representation'' as
described in the preamble. Some commenters interpreted the NPRM as
proposing to allow the title IV-E agency to regulate the practice of
law in a way that may be inconsistent with state statutes; court rules;
and policies or guidelines of entities regulating attorney practice,
including the entity's ethical opinions and rules of professional
responsibility. Other commenters thought the NPRM appeared to require
the attorney to explain to the client that the title IV-E agency may be
paying for the cost of legal representation and to ask the client for
their consent. Commenters believe this does not align with how legal
aid and public defender offices are funded and would be difficult to
implement if an attorney was not aware of the source of funding for the
legal representation.
Response: The NPRM proposed that the title IV-E agency may
determine what ``independent'' means for the purpose of identifying
allowable administrative costs for which a title IV-E agency may claim
FFP. Neither the NPRM nor this final rule suggest interpreting the term
``independent'' in a way that attempts to regulate attorneys or the
practice of law. ACF has no authority in that area nor does the title
IV-E agency, and therefore no changes were made to the final rule. To
clarify, for purposes of the final rule, the term ``independent''
conveys that representation is not subject to control or influence by
other parties, interested persons, nor the title IV-E agency.
The NPRM also suggested, but did not regulate, some minimum
expectations for title IV-E agencies to consider when determining what
``independent'' should mean. For example, the NPRM suggested that
agencies ensure the attorney providing legal representation does not
have any concurrent conflicts of interest and that there is no
interference with the lawyer's professional judgement or relationship
with the client. It also suggested, but did not require, that the term
``independent'' mean that an attorney does not accept compensation for
representing a client from someone other than the client, unless the
client gives informed consent.
Comment: Several commenters requested guidance on the amount and
type of information that an attorney providing independent legal
representation must share with the title IV-E agency to satisfy Federal
audit, data, and claims reporting requirements. For example, a title
IV-E agency explained that it needs to know the number and names of
individuals receiving independent legal representation to ensure
eligibility under this final rule. However, a few providers of legal
representation expressed concern that a title IV-E agency may ask for
too much information as a means to exert undue influence or direct such
representation.
Response: We made no changes to the final rule. We would like to
clarify that a title IV-E agency should, at a minimum, ensure a legal
service provider shares information that is necessary for the title IV-
E agency to comply with Federal program requirements and requirements
for audits, data and financial reporting as determined necessary by the
Secretary (section 471(a)(6) and (13) of the Act). See also 45 CFR part
75 (Unform Administrative Requirements, Cost Principles, and Audit
Requirements for HHS Awards); 45 CFR part 95, subpart E (Cost
Allocation Plans). For example, this may include, but is not limited to
information the title IV-E agency must report in the Form CB-496
``Title IV-E
[[Page 40405]]
Programs Quarterly Financial Report (Foster Care, Adoption Assistance,
Guardianship Assistance, Prevention Services and Kinship Navigator
Programs). Title IV-E agencies seeking guidance on allowable claiming
practices for FFP should contact their CB regional office.
Comment: Many commenters asked ACF to adopt the definition of
``candidate for title IV-E foster care'' as used in section 475(13) of
the Act, to allow title IV-E agencies to claim FFP for the cost of
legal representation for children and families who participate in the
title IV-E prevention service program.
Response: We made no changes to the final rule. Section 475(13) of
the Act defines a candidate for foster care for the title IV-E
Prevention Program under section 474(a)(6)(B)(i) of the Act. This is a
different definition than a title IV-E foster care candidate under this
final rule. Further, this final rule and the September 2023 NPRM
proposed allowable administrative costs for legal representation under
the title IV-E foster care program as authorized under section
474(a)(3) of the Act. Therefore, administrative costs for legal
representation under the title IV-E prevention services program is
outside the scope of this final rule.
Comment: Several commenters requested we clarify whether the final
rule allows title IV-E agencies to claim FFP for the cost of
independent legal representation to resolve a child's or parent's
immigration status, including proceedings related to obtaining Special
Immigrant Juvenile status, and address other immigration-related
barriers that may inhibit successful permanency. Another commenter
asked whether a title IV-E agency can claim FFP for the cost of
independent legal representation to meet the needs of undocumented
caregivers/parents in obtaining relief from deportation, noting that
thousands of children have entered the child welfare system because of
a parent's deportation.
Response: We understand that immigration issues may lead to foster
care placements and could pose barriers to successful reunification,
placement, or permanency of a child in foster care. However, a child
must be a U.S. citizen or ``qualified immigrant'' as defined in 8
U.S.C.1641(b),\18\ among other requirements, to be eligible for title
IV-E foster care (Personal Responsibility Work Opportunity
Reconciliation Act of 1996 (Public Law 104-193); 8 U.S.C. 1611; CWPM
8.4B). A title IV-E agency may claim independent legal representation
for title IV-E eligible children in any proceeding consistent with the
requirements of this rule. However, a title IV-E agency may not claim
FFP for the administrative cost of independent legal representation of
children who are not U.S. citizens or qualified immigrants. A title IV-
E agency may claim representation costs for parents of a title IV-E
eligible child if such representation is needed to carry out the
requirements in the agency's title IV-E foster care plan in relation to
the title IV-E eligible child.
---------------------------------------------------------------------------
\18\ 8 U.S.C. 1641(b) refers to ``qualified alien.''
---------------------------------------------------------------------------
Comment: A few commenters expressed concern about potential
conflicts that may arise if a title IV-E agency claims FFP for
independent legal representation of an eligible child's relative
caregiver. Some commenters recommended that we limit reimbursement
available under title IV-E for relative caregivers to minimize the
potential for a conflict between parents and relative caregivers noting
specific concerns about relative caregiver representation in cases
involving substance use disorders and also in Indian child welfare
cases.
Response: While we appreciate the complex and potentially adverse
interests of individuals involved in a child's care, the title IV-E
agency may choose whether and what type of independent legal
representation to claim FFP for, as described in the final rule. To
provide title IV-E agencies with flexibility, we decline to revise the
regulatory text. As explained in this final rule and the September 2023
NPRM, we expect that attorneys providing legal representation do not
have any concurrent conflicts of interest and that there is no
interference with the lawyer's professional judgement or relationship
with the client. We expect that attorneys will practice law in a way
that is consistent with state statutes; court rules; and the
requirements of entities regulating attorney practice, including the
entity's ethical opinions and rules of professional responsibility.
Comment: A commenter requested we amend ``civil legal proceedings''
to include ``administrative actions'' necessary to carry out the
requirements in the agency's title IV-E foster care plan, because some
civil legal issues involve proceedings which are deemed administrative
rather than judicial in nature. Specifically, a few commenters asked
whether a title IV-E agency may claim the cost of independent legal
representation by an attorney in administrative actions for public
benefit eligibility determinations, denials and appeals.
Response: In the September 2023 NPRM, we identified allowable civil
legal costs to include ``securing public benefits when it is necessary
to meet the plan requirement to make reasonable efforts to prevent the
unnecessary removal of a child from the home or to finalize a case plan
in support of a child's permanency goal as required by section
471(a)(15) of the Act.'' This may include certain public benefit
eligibility determinations, denials and appeals that are administrative
in nature, and they are considered civil legal proceedings for purposes
of this rule. We are maintaining these provisions in this final rule,
and as such decline to change the regulatory text.
Comment: Some legal representation providers and organizations made
comments indicating a belief that a case plan is the only way to
document a child's candidacy for title IV-E foster care, and that a
case plan may only be developed after a child enters foster care,
thereby preventing the agency from claiming FFP for independent legal
representation of a child who is not yet in title IV-E foster care.
Response: A case plan is one of several ways a title IV-E agency
may document a child's candidacy for title IV-E foster care and may be
developed prior to a child entering foster care. The CWPM 8.1D #2
explains that there are three acceptable methods for documenting
candidacy: (1) A defined case plan which clearly indicates that, absent
effective preventive services, foster care is the planned arrangement
for the child; (2) An eligibility determination form which has been
completed to establish the child's eligibility for title IV-E foster
care maintenance payments; or (3) Evidence of court proceedings in
relation to the removal of the child from the home, in the form of a
petition to the court, a court order or a transcript of the court
proceedings. This policy provides additional guidance that for purposes
of documenting a child's candidacy for title IV-E foster care, a case
plan sets foster care as the goal for the child absent effective
preventive services is an indication that the child is at serious risk
of removal from their home because the title IV-E agency believes that
a plan of action is needed to prevent that removal.
Comment: Over 50 organizations and legal providers asked whether a
title IV-E agency may claim FFP for independent legal representation
for either a child, parent or relative in various scenarios, including:
prior to a petition being filed in court to remove a child from home,
during the course of a CPS investigation, from the time a petition to
remove a child from home is filed through the entire trajectory of the
[[Page 40406]]
case (including appeals), and for youth in extended foster care.
Response: We do not have enough information to be able to provide a
definitive answer about the availability for FFP for independent legal
representation in case specific scenarios. The allowability of the cost
of independent legal representation is not determined based on the
status of a petition to remove a child from home or a CPS
investigation. A title IV-E agency may choose to claim FFP for
allowable administrative costs of independent legal representation as
authorized in this rule if:
<bullet> A title IV-E agency determined that the child is a
candidate for or in title IV-E foster care (or is the parent, relative,
or Indian custodian of such child);
<bullet> The independent legal representation is provided in a
foster care or other civil legal proceeding;
<bullet> The title IV-E agency determined that independent legal
representation is necessary to carry out the requirements in the
agency's title IV-E foster care plan; and
<bullet> The independent legal representation in civil legal
proceedings is identified in the child's case plan.
Current policy in CWPM 8.1D #2 provides further details about a
child who is a candidate for title IV-E foster care that may be useful
to these commenters asking about situations where children have not yet
been placed in foster care. Specifically, policy clarifies that ``a
child may not be considered a candidate for [title IV-E] foster care
solely because the title IV-E agency is involved with the child and
his/her family. For the child to be considered a candidate for [title
IV-E] foster care, the title IV-E agency's involvement with the child
and family must be for the specific purpose of either removing the
child from the home or satisfying the reasonable efforts requirement
with regard to preventing removal.'' The policy also explains decisions
made by the U.S. Department of Health and Human Services Department
Appeals Board (DAB): ``The fact that a child is the subject of [a child
abuse/neglect report] falls far short of establishing that the child is
at serious risk of placement in foster care and thus of becoming
eligible for IV-E assistance . . . A candidate, in the opinion of the
DAB is a child who is at serious risk of removal from his/her home
because the title IV-E agency is either pursuing that removal or
attempting to prevent it. A child cannot be considered a candidate for
foster care when the title IV-E agency has no formal involvement with
the child or simply because s/he has been described as `at risk' due to
circumstances such as social/interpersonal problems or a dysfunctional
home environment.'' We recommend that if organizations and legal
providers have questions about allowable costs for legal
representation, they contact the title IV-E agency for more
information. Title IV-E agencies may contact the CB regional office
specialist for assistance.
Section 1356.60(c)(4)(iii)
Paragraph (c)(4)(iii) permits a title IV-E agency to claim FFP for
administrative costs of legal representation provided by an attorney or
representation provided by a non-attorney of a title IV-E eligible
Indian child's tribe (as defined in 25 U.S.C. 1903(5)), when the
child's tribe participates or intervenes in any state court proceeding
for the foster care placement or TPR.
Comment: We received several comments on the proposal. A commenter
noted that securing attorneys who are knowledgeable about ICWA and
tribal customs can be very expensive. Comments indicated that smaller
tribes may not have the funding resources to hire attorneys to
represent the Indian child's tribe's interest in state court
proceedings for the foster care placement of, or TPR to, an Indian
child, and thus have historically allowed non-attorneys to represent
the tribe. One commenter was supportive of the reimbursement of non-
attorneys regardless of whether they are representing the tribe in a
case or whether they are providing support to an attorney's preparation
for and participation in a case. Another commenter noted that early
representation of an Indian child's tribe in child welfare court
proceedings can, among other things, facilitate placements in
accordance with ICWA placement preference and believes that the
expertise independent attorneys bring to foster care proceedings can be
a determining factor in whether a family stays together, receives
necessary services, or is timely reunified after family separation.
Finally, a commenter expressed the view that allowing a tribe to select
its own representative supports tribal sovereignty.
Response: We amended the final rule to allow a title IV-E agency to
claim the administrative cost of an attorney providing legal
representation or a non-attorney representing an Indian child's tribe
when the child's tribe participates or intervenes in any state court
proceeding for the foster care placement or TPR of an Indian child who
is in title IV-E foster care or an Indian child who is a candidate for
title IV-E foster care. ACF believes this change may: result in more
Federal financial support for a title IV-E eligible Indian child's
tribe's participation in state foster care and TPR proceedings, ensure
that a tribe's interest is preserved in placement recommendations, and
honor tribal sovereignty and self-determination to identify a
representative per the tribe's wishes. We believe this change will
result in minimal fiscal impact, if any, because the costs of a non-
attorney representative will likely be less than for an attorney.
Comment: Several commenters encouraged ACF to allow title IV-E
agencies to claim FFP for the administrative cost of representation for
a title IV-E eligible Indian child's tribe in state proceedings for
foster care placement and TPR even if a tribe does not intervene in
accordance with 25 U.S.C. 1911(c). Prior to intervention, a tribe may
be involved at key decision points in the child's case. Commenters
explained that early in state proceedings for the foster care placement
of an Indian child, the tribe's representative works with the child
welfare agency and state court to address the needs of the child, their
family and the child's tribe. One commenter expressed the view that
limiting representation to situations where a tribe has intervened in a
case restricts tribes' sovereign decisions with respect to the best
interest of tribal children.
Response: We agree with the commenters and revised the final rule
to allow a title IV-E agency to claim administrative costs for
representation of a title IV-E eligible Indian child's tribe to
participate in state court proceedings for foster care placement and
termination of parental rights (TPR) when necessary for the proper and
efficient administration of the IV-E foster care plan (42 U.S.C.
674(a)(3)). This modification means that a title IV-E agency may claim
these administrative costs when the child's tribe participates but does
not intervene in a state court proceeding for foster care placement and
TPR in accordance with 25 U.S.C. 1911(c).
As explained in section II, the Federal Government has an interest
in ensuring that an Indian child's tribe has legal representation to
preserve and protect the continued existence and integrity of Indian
tribes. As the Supreme Court noted in a case interpreting ICWA,
``Congress [ ] found that the breakup of Indian families harmed not
only Indian children and their parents, but also their tribes.''
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 at 33-34
(1989). It is well documented that for Indian children who have been
placed in foster care, and their families, early
[[Page 40407]]
representation of an Indian child's tribe in state foster care
proceedings promotes stability for the child by minimizing unnecessary
separation of children and their parents, and by maximizing placements
of the child with extended family and other preferred placements
(Frequently Asked Questions Bureau of Indian Affairs Final Rule: Indian
Child Welfare Act (ICWA) Proceedings, June 17, 2016). As the commenters
note, much of a tribe's representation occurs early in state court
foster care proceedings without regard to whether a child's tribe
intervenes.
However, the Department appreciates the opportunity to clarify that
this change applies only when the title IV-E agency determines that
representation for the Indian child's tribe to participate in the state
court proceeding is necessary for the proper and efficient
administration of the title IV-E foster care plan (42 U.S.C.
674(a)(3)). Prior to intervening, tribal attorneys or non-attorney
representatives often participate in state court proceedings at key
decision points and in judicial determinations that are required by the
title IV-E foster care plan. For example, the Act requires the court to
determine whether the agency made reasonable efforts to preserve and
reunify families. The child's tribe's representation of the cultural
and social standards for family connection, reunification and what
permanency looks like in the child's tribe, may be necessary to
finalize the permanency plan for an Indian child, regardless of whether
the child's tribe has intervened.
We believe this change will not result in a fiscal impact. This is
because the Adoption and Foster Care Analysis and Reporting System
(AFCARS) data provides the number of title IV-E eligible children who
identified as American Indian or Alaska Native, alone or in
combination. In the September 2023 NPRM we assumed that this population
of children is potentially subject to ICWA requirements in state court
foster care placement and TPR. We further assumed that each such Indian
child's tribe will intervene in such proceedings. Therefore, there will
not be a fiscal impact regardless of whether an Indian child's tribe
chooses to participate, rather than intervene, in the proceeding as
allowed by this final rule.
Comment: Several commenters requested that a final rule ensure that
tribal nations have authority to choose the attorney representing an
Indian child's tribe in state court proceedings for the foster care
placement of, or TPR to, an Indian child for which the title IV-E
agency is claiming FFP. The commenters explained the importance of each
sovereign tribal nation selecting an attorney to represent an Indian
child's tribe who is knowledgeable about the tribe's customs,
membership requirements and benefits, culture, placement preferences,
social services and other family supports, and is highly skilled in
matters related to ICWA.
Response: We did not make changes to the final rule. The final rule
provides an option for a title IV-E agency to claim FFP for the cost of
an attorney to represent a title IV-E eligible Indian child's tribe and
does not require that the title IV-E agency select that attorney. As
the commenters noted, it is important that each sovereign tribal nation
make that selection. This ensures that the tribe is represented by an
attorney who is knowledgeable about the tribe's customs and other
matters relevant in state court proceedings. However, a title IV-E
agency may decide whether to contract with the attorney selected by a
tribal nation.
Comment: Commenters suggested that the final rule require
consultation between state title IV-E agencies and tribes to develop
agreements for legal representation that are compatible with tribal
governance structures.
Response: We did not change the final rule because it is the option
of the title IV-E agency to claim title IV-E FFP for administrative
costs as described in this final rule. However, we encourage title IV-E
agencies that choose to claim title IV-E FFP for the cost of legal
representation as described in this final rule to consult with tribes
that are interested in developing agreements for this purpose.
V. Regulatory Process Matters
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 is supplemental to, and reaffirms the principles,
structures, and definitions governing regulatory review as established
in Executive Order 12866, emphasizing the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. Based on ACF's estimates of the likely
impacts associated with this rule, the Office of Management and Budget
(OMB) designated this rule as a significant regulatory action under
section 3(f)(1) of Executive Order 12866, as amended by Executive Order
14094. The estimated cost and transfer impacts of this final rule are
provided below (see the section titled ``Accounting Statement'').
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act)
requires Federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. This rule does not
affect small entities because it is applicable only to state and tribal
title IV-E agencies. Therefore, a regulatory flexibility analysis is
not required for this rule.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was
enacted to avoid imposing unfunded Federal mandates on state, local,
and tribal governments, or on the private sector. That threshold level
is currently approximately $183 million. This rule does not contain
mandates that would impose spending costs on state, local, or tribal
governments in the aggregate, or on the private sector, in excess of
the threshold.
Congressional Review
The Congressional Review Act (CRA) allows Congress to review major
rules issued by Federal agencies before the rules take effect (see 5
U.S.C. 801(a)(1)(A)). The CRA defines a ``major rule'' as one that has
resulted, or is likely to result, in (1) an annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers; individual industries; Federal, State, or local
government agencies; or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity, or
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets
(see 5 U.S.C. Chapter 8). OMB's Office of Information and Regulatory
Affairs has determined that this final rule does meet the criteria set
forth in 5 U.S.C. 804(2).
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 2000 requires Federal agencies to
[[Page 40408]]
determine whether a policy or regulation may negatively affect family
well-being. If the agency determines a policy or regulation negatively
affects family well-being, then the agency must prepare an impact
assessment addressing seven criteria specified in the law. This
regulation does not impose requirements on states or families. This
rule will not have any impact on the autonomy or integrity of the
family as an institution.
Comment: We received one comment on ACF's assessment, expressing
the view that when the ACF proposes a regulation and also conducts the
assessment, the result is bias that leads to no detailed study taking
place. The commenter requested that ACF conduct a study that ensures a
more thorough examination of the potential effects of the proposed rule
on families by soliciting input from a diverse range of stakeholders
and considering the comments received, especially those emphasizing the
impact on family dynamics.
Response: As described in the September 2023 NPRM and above,
independent research and data from existing legal programs demonstrate
the benefits of providing independent legal representation. Providing
representation early in foster care proceedings and other civil legal
proceedings can help prevent children from entering foster care, and
for youth already in foster care it can improve the rate of
reunification and result in more permanent outcomes for the child and
the family. We received no additional comments from the public
expressing this concern. ACF's Assessment of Federal Regulations on
Policy and Family is reviewed by the Secretary of HHS as well as the
President's Office of Management and Budget, Office of Information and
Regulatory Affairs, which reviews all significant Federal regulations
from executive agencies.
Executive Order 13132
Executive Order 13132 prohibits an agency from publishing any rule
that has federalism implications if the rule either imposes substantial
direct compliance costs on state and local governments and is not
required by statute, or the rule preempts state law, unless the agency
meets the consultation and funding requirements of section 6 of the
Executive order. This rule does not have federalism impact as defined
in the Executive order. Shortly after publication of the NPRM, we held
a briefing session with states and tribes and any other interested
partners on the contents of the NPRM.
Comment: One commenter asked ACF to conduct a thorough re-
assessment of the application of Executive Order 13132 because the
definition of ``independent legal representation'' should be determined
within their respective jurisdictions, rather than being subjected to
Federal discretion.
Response: The final rule does not have any federalism implications
and thus a re-assessment is not necessary. As discussed earlier, the
final rule does not include any mandates or impose a regulatory
definition of ``independent legal representation''. Therefore,
Executive Order 13132 does not apply.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to
minimize government-imposed burden from information collections on the
public. In keeping with the notion that government information is a
valuable asset, it also is intended to improve the practical utility,
quality, and clarity of information collected, maintained, and
disclosed.
The Paperwork Reduction Act defines ``information'' as any
statement or estimate of fact or opinion, regardless of form or format,
whether numerical, graphic, or narrative form, and whether oral or
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This
includes requests for information to be sent to the government, such as
forms, written reports and surveys, recordkeeping requirements, and
third-party or public disclosures (5 CFR 1320.3(c)). There is no burden
to the Federal Government or to title IV-E agencies as a result of this
final regulation. It is optional for a title IV-E agency to claim
administrative costs. If the agency elects to do so, there are no new
reporting requirements because the agency will continue to make
administrative cost claims through the Form CB-496.
Annualized Cost to the Federal Government
Total Projections to Implement Final Rule. The estimate for the
final rule was derived using fiscal year (FY) 2019 data from the
Adoption and Foster Care Analysis and Reporting System (AFCARS) on the
number of title IV-E eligible children who identified as American
Indian or Alaska Native, alone or in combination, and FY 2021 claiming
data from the Form CB-496 ``Title IV-E Programs Quarterly Financial
Report (Foster Care, Adoption Assistance, Guardianship Assistance,
Prevention Services and Kinship Navigator Programs).'' We did not use
FY 2020 or 2021 data from AFCARS because such data would likely reflect
anomalies due to the COVID-19 public health emergency period.
ACF estimates that the Federal cost in the presence of the final
rule over ten fiscal years (2024-2033) is estimated to be
$2,936,285,160. The combined total for Federal and agency costs over
ten fiscal years is estimated to be $5,872,570,319. (These estimates
encompass all provisions being codified for the first time by this
rule.) It is optional for a title IV-E agency to claim the
administrative cost of providing independent legal representation in
foster care and civil legal proceedings to eligible children, their
parents, their relative caregivers, and their Indian custodians and for
representation for an Indian child's tribe that participates or
intervenes in state court proceedings for the foster care placement and
TPR of an eligible child.
Assumptions: ACF made several assumptions when calculating the
administrative costs for this final rule.
<bullet> FY 2021 title IV-E foster care administrative cost claims
are used as the base year amounts for projection purposes in this final
rule and were sourced from Form CB-496 FC part 1. These are actual
claims, and not estimates. For the purposes of these burden estimates,
we will use the phrase ``candidates'' to refer to the number of
children claimed as title IV-E candidates and ``IV-E FC'' for children
who are in title IV-E foster care, the two populations of children (and
their parents, relative caregivers, and Indian custodians) to which the
costs of this final rule apply.
<bullet> AFCARS data provides the number of title IV-E eligible
children who identified as American Indian or Alaska Native, alone or
in combination. In the September 2023 NPRM, we assumed that this
population of children is potentially subject to ICWA requirements in
state court proceedings for the foster care placement of, or TPR to, an
Indian child. We further assumed that each such Indian child's tribe
would intervene in state court proceedings for the foster care
placement of, or TPR to, an Indian child. As described previously in
this final rule, a child's tribe may choose to participate rather than
intervene in state court proceedings.
<bullet> Title IV-E agencies may claim reimbursement for 50 percent
of the administrative costs to provide legal representation in foster
care proceedings, including those in which an Indian child's tribe has
participated or intervened in state court proceedings for the foster
care placement of, or TPR to, an Indian child, and civil
[[Page 40409]]
proceedings, and the title IV-E agency must pay its share with state or
tribal funds. This non-Federal share will be an equal percentage of 50
percent because a title IV-E agency must match the same amount of funds
for which it seeks Federal reimbursement.
<bullet> We assume an overall annual one percent caseload growth
rate in the population of candidates for title IV-E foster care and IV-
E FC for whom title IV-E administrative costs will be claimed in civil
legal proceedings and in FC legal proceedings, including those in which
an Indian child's tribe has participated or intervened in state court
for the foster care placement of, or TPR to, an Indian child. This is
based on current title IV-E budgetary projections.
<bullet> We assume an annual FFP claims growth factor of 4.7
percent for FY 2024 and 2.3 percent from FY 2025 to FY 2033 for the
administrative costs of independent legal representation in FC and in
other civil legal proceedings. This is based on current title IV-E
budgetary projections of the percentage of change in title IV-E
administrative cost claims annually. We assume the calculated FY 2021
title IV-E foster care administration eligibility rate for children
classified as American Indian or Alaska Native, alone or in
combination, will remain unchanged for the ten FY (FYs 2024-2033)
project period.
<bullet> An implementation level is used in the calculations for
the chart below as an estimated projection for the growth in the number
of children (either directly or on behalf of a parent, relative
caregiver, or Indian custodian) receiving independent legal
representation in foster care legal proceedings or civil legal
proceedings. Similarly, an implementation level is used in the
calculations for the chart below as an estimated projection for the
growth in the number of children whose tribe is receiving legal
representation by an attorney, or representation by a non-attorney, in
state foster care placement and TPR legal proceedings. The
implementation level is different for the cost estimates for foster
care legal proceedings and civil legal proceedings, and state court
foster care placement legal proceedings in which an Indian child's
tribe has participated or intervened as explained below:
[cir] For independent legal representation in foster care legal
proceedings, the implementation level is measured separately for
children who are candidates and IV-E FC. The base year (FY 2021)
implementation levels are calculated from Form CB-496 FC part 1 which
identifies for each title IV-E agency on a quarterly basis the average
monthly number of children where independent legal representation for
foster care proceedings is being provided for a candidate or IV-E FC.
For FY 2021, the independent legal representation for foster care
proceedings implementation level is 15.4 percent for IV-E FC and 7.9
percent for candidates. For FYs 2024-2033, the implementation levels
are derived from the experience observed in the reported caseload data
between FY 2020 and FY 2021 where a 24 percent growth rate occurred for
children in title IV-E foster care. We assume that the growth rate will
peak in this year and then gradually diminish as more title IV-E
agencies take up the option to claim for these costs, and more children
are receiving this representation.
[cir] For legal representation by an Indian child's tribe in state
court proceedings for the foster care placement of, or TPR to, an
Indian child, a single implementation level is measured for children
who are candidates and in IV-E FC. The base year (FY 2021)
implementation level is set at zero percent since Federal funding for
this cost will not be available until this final rule is implemented by
title IV-E agencies. Although there is no known data on the extent to
which we anticipate title IV-E agencies will begin providing
representation for an Indian child's tribe to participate or intervene
in state court proceedings for the foster care placement of, or TPR to,
an Indian child, we anticipate that this administrative cost will be
made available to five percent of potentially eligible children in FY
2024 and that most of the growth will occur in years two through five
(FYs 2025-2028). In FY 2028 we anticipate 35 percent of potentially
eligible tribes will receive legal representation. In subsequent FYs,
the implementation growth rate will gradually diminish as more title
IV-E agencies take up the option to claim for these costs, and thus
there are more children on whose behalf a tribe is receiving this
representation.
[cir] For independent legal representation in civil legal
proceedings, the implementation level presumes that administrative cost
claims will be limited to those children on whose behalf independent
legal representation in foster care legal proceedings are claimed. Not
all children receiving legal representation in FC proceedings need
representation related to civil matters because the reasons for child
welfare involvement vary. Additionally, not all title IV-E agencies
providing independent legal representation in foster care legal
proceedings will opt to also provide such legal representation in civil
proceedings. We have no estimate for FY 2021 costs for legal
representation in civil legal proceedings as these will be new costs as
a result of this final rule. We assume that the proportion of children
receiving legal representation for civil legal proceedings (for both
candidates and IV-E FC) will be derived from among those receiving
representation for foster care legal proceedings. We estimate that the
civil legal proceedings title IV-E caseload will grow gradually each FY
from 20 percent in FY 2024, to 45 percent in FY 2028 and up to 56
percent in FY 2033 of the children on whose behalf representation is
also being provided for foster care legal proceedings. While there is a
great deal of interest in providing legal representation in civil legal
proceedings the projections take into account that, in most instances,
new or revised protocols will need to be developed with various
organizations to implement the final rule. There will also be a need to
secure state or tribal funds for the non-Federal share of funding,
which often requires legislative approvals.
Federal Cost Estimate for Independent Legal Representation in Foster
Care Legal Proceedings
Here we describe the individual calculations by line that are in
the following chart. All entries in the chart and the narrative below
are rounded to the nearest whole number. The calculations to obtain
these amounts, however, were performed without applying rounding to the
involved factor(s).
Line 1. National number of children (candidates and IV-E FC)
receiving legal representation in foster care legal proceedings. Line 1
of the table below provides that the actual number of children
receiving independent legal representation in FC proceedings in FY 2021
(extrapolated into the future for the purpose of characterizing the
analytic baseline) was 10,477 candidates and 26,092 IV-E FC. Line 1
also includes estimates of the annual number of children receiving
independent legal representation in foster care proceedings in the
following subsequent years: FYs 2024, 2025, 2026, 2028 and in 2033, the
estimated number of children is 29,525 candidates and 73,530 IV-E FC.
Line 2. National average FFP claim per child (candidates and IV-E
FC) for independent legal representation in foster care proceedings.
Line 2 of the table below displays that in FY 2021, the actual average
title IV-E administrative cost claim per child receiving independent
legal
[[Page 40410]]
representation in foster care legal proceedings was $742 for title IV-E
candidates and $2,709 for children in title IV-E foster care. We also
provide estimates of the average title IV-E claim per child in the
following subsequent years: FYs 2024, 2025, 2026, 2028 and in 2033 the
per child average claim is estimated at $3,481 (IV-E FC) and $954
(candidates). We note that IV-E agencies will have an incentive to
ensure that the attorneys' fee costs that they submit for IV-E
reimbursement are reasonable because the IV-E agency will be
responsible for the 50% state share of the cost.
Line 3. Average FFP claims for candidates and children in title IV-
E foster care for independent legal representation in foster care legal
proceedings. Line 3 of the table below displays that in FY 2021, the
actual FFP for children receiving independent legal representation in
foster care legal proceedings was $7,777,621 for candidates and
$70,689,345 for children in IV-E FC. We also provide estimates of the
average annual claims for these children in the following subsequent
years: FYs 2024, 2025, 2026, 2028 and in 2033 the estimated cost is
$28,160,009 (candidates) and $255,941,062 (IV-E FC).
Line 4. Total Federal costs for independent legal representation in
foster care legal proceedings (candidates and IV-E FC). Line 4 of the
table below provides that the actual total FFP in FY 2021 was
$78,466,966, which is the sum of the costs of independent legal
representation in foster care legal proceedings for candidates and IV-E
FC. We also provide estimates of the total FFP for these costs in the
following subsequent years: FYs 2024, 2025, 2026, 2028 and in 2033 the
estimated annual cost is $284,101,071. The estimates for these
subsequent FYs were calculated by multiplying line 1 by line 2 for
candidates and IV-E FC.
Line 5. Non-Federal costs for independent legal representation in
foster care legal proceedings. Line 5 of the table below displays the
total FY 2021 non-Federal costs of independent legal representation in
foster care proceedings for candidates and IV-E FC was $78,466,966.
This number is the same as line 4 because the FFP rate used in these
estimates is 50 percent, thus we estimate the costs for Federal and
non-Federal to be the same. We also provide estimates of the total non-
Federal costs of independent legal representation in foster care legal
proceedings in the following subsequent years: FYs 2024, 2025, 2026,
2028 and in 2033 the estimated annual cost is $284,101,071.
Line 6. Total Federal and non-Federal costs of independent legal
representation in foster care legal proceedings. Line 6 of the table
below is the sum of lines 4 and 5 for the total Federal and non-Federal
costs of independent legal representation in foster care legal
proceedings for candidates and IV-E FC. The total FY 2021 costs were
$156,933,932. We also provide estimates of these total Federal and non-
Federal costs in the following subsequent years: FYs 2024, 2025, 2026,
2028 and in 2033 the estimated annual cost is $568,202,142.
Federal Cost Estimate of Independent Legal Representation in Other
Civil Legal Proceedings
Line 7. Number of children (candidates and IV-E FC) receiving
independent legal representation in civil legal proceedings. Line 7 of
the table below displays the estimated number of children who will
receive independent legal representation in civil legal proceedings
either directly, or on behalf of a parent, relative caregiver, or
Indian custodian in FY 2024 as 10,137 children. There is no estimate
for FY 2021 in the chart because these costs were not claimed; these
will be new costs as a result of this final rule. We also provide
estimates for subsequent years: FYs 2025, 2026, 2028 and in 2033 the
estimated number of children is 63,482. This is based on the
implementation level which is the percentage of children receiving
independent legal representation in foster care legal proceedings who
are projected to also receive independent legal representation in civil
legal proceedings in the year.
Line 8. National average title IV-E administrative cost claim per
child for independent legal representation in civil legal proceedings.
Line 8 of the table below displays that in FY 2021, we assumed the
average FFP claim per child (candidates and IV-E FC) receiving
independent legal representation in civil proceedings to be $1,262. We
also provide estimates for these costs for the following subsequent
years: FYs 2024, 2025, 2026, 2028 and in 2033, we estimate the average
FFP claim per child to be $1,621. These cost estimates were derived
from data provided by the ``Detroit Model'' legal services program in
which legal representation in civil issues for child welfare clients
was calculated as an average yearly amount of $2,524 gross ($1,262 50
percent FFP title IV-E Federal share) per client. We used the Detroit
model project because we do not have current title IV-E administrative
cost claims reported on the Form CB-496 for civil proceedings that we
can use for an estimate of the cost of providing independent legal
representation in civil legal proceedings in this rule. This is the
only program model known to us providing civil legal representation in
pre-petition cases for which average cost data is available, thus the
only way for us to estimate these costs.\19\ One commenter agreed that
the working estimate of an administrative cost claim per child for
independent legal representation in civil legal proceedings is
plausible. Other commenters noted that the reasonableness of attorney
fees may vary across counties, and depend on factors including
geography, accessibility, cost of living, and local economies.
---------------------------------------------------------------------------
\19\ Detroit Center for Family Advocacy Pilot Evaluation report
July 2009-June 2012; Sankaran, Vivek. Case Closed: Addressing Unmet
Legal Needs and Stabilizing Families. M.L. Raimon, co-author. Center
for the Study of Social Policy [2014] [Detroit model project].
---------------------------------------------------------------------------
Line 9. Federal costs of independent legal representation in civil
legal proceedings. Line 9 of the table below provides the estimated
Federal administrative costs at 50 percent FFP for independent legal
representation in civil legal proceedings for candidates and IV-E FC.
These costs were calculated by multiplying the expected average monthly
caseload (line 7) by the expected average annual claim per child (line
8). We provide estimated Federal costs of $13,393,972 for FY 2024 and
in subsequent years: FYs 2025, 2026, 2028 and in 2033 the estimated
Federal cost is $102,928,630.
Line 10. Non-Federal costs of independent legal representation in
civil legal proceedings. Line 10 provides the estimated non-Federal
share of administrative costs for independent legal representation in
civil legal proceedings for candidates and IV-E FC, which is 50 percent
of the total on line 11. This number is the same as line 9 because the
FFP rate used in these estimates is 50 percent, thus we estimate the
costs for Federal and non-Federal to be the same. We provide estimated
non-Federal costs of $13,393,972 beginning in FY 2024 and in subsequent
FYs: 2025, 2026, 2028 and in 2033 the estimated non-Federal cost is
$102,928,630. There is no estimate for FY 2021 in the chart because
these costs were not claimed; these will be new costs as a result of
this final rule.
Line 11. Total Federal and non-Federal cost of independent legal
representation in civil legal proceedings. Line 11 displays the annual
estimated total (Federal + non-Federal) costs for independent legal
representation for
[[Page 40411]]
candidates and IV-E FC in civil legal proceedings. This is the sum of
lines 9 and 10. We estimate these total costs beginning in FY 2024 as
$26,787,943 and in subsequent FYs: 2025, 2026, 2028 and in 2033, the
estimate is $205,857,260. There is no estimate for FY 2021 in the chart
because these costs were not claimed; these will be new costs as a
result of this final rule.
Line 12. Number of Indian children on whose behalf a tribe may
receive representation in state foster care legal proceedings
(candidates and IV-E FC). Line 12 of the table below provides the
estimated number of Indian children for whom legal representation may
be received by their tribe in state FC proceedings. In FY 2021
(extrapolated into the future for the purpose of characterizing the
analytic baseline) candidates and IV-E FC are not listed since this
administrative cost was not available. We estimate that the total
number, beginning in 2024 and subsequent FYs 2025, 2026, 2028 and 2033
is 3,342 for candidates and 7,814 for IV-E FC.
Line 13. National average FFP claim per child (candidates and IV-E
FC) for tribal representation in state foster care legal proceedings.
Line 13 of the table below provides the average title IV-E claim per
child for the tribal representation in state foster care proceedings.
In FY 2021 (extrapolated into the future for the purpose of
characterizing the analytic), the average title IV-E administrative
cost claim per child receiving legal representation in state foster
care legal proceedings was $1,262 (estimated) for title IV-E candidates
and $2,709 (actual) for children in title IV-E foster care. We estimate
the total per child claim for subsequent FYs 2024, 2025, 2026, 2028,
and 2033 is $1,621(candidates) and $3,481 (IV-E FC).
Line 14. Average FFP for IV-E FC and candidate itemized for tribal
representation in state foster care legal proceedings. Line 14 of the
table below displays estimates for the average annual claims for
children whose tribe is receiving legal representation in state foster
care proceedings. In FY 2021, there was no actual FFP for children
receiving tribal legal representation in such legal proceedings. For
subsequent FYs 2024, 2025, 2026, 2028 and 2033 the estimated cost is
$5,419,446 (candidates) and $27,200,314 (IV-E FC).
Line 15. Total FFP for tribal representation in state foster care
legal proceedings. Line 15 of the table below provides the total FFP
for tribal representation in state foster care legal proceedings by
multiplying line 12 for candidates by line 13 for IV-E FC. For FY 2021
(base year), there was no actual FFP for children receiving tribal
legal representation in state foster care legal proceedings. Estimates
of the total annual FFP for these costs in FYs 2024, 2025, 2026, 2028
and 2033 is $32,619,760.
Line 16. Total non-Federal cost for tribal representation in state
foster care legal proceedings. Line 16 provides the estimated non-
Federal share of administrative costs for tribal legal representation
in state foster care legal proceedings for candidates and IV-E FC by
multiplying line 1 by line 2, which is 50 percent of the total on line
17. This number is the same as line 15 because the FFP rate used in
these estimates is 50 percent, therefore we estimate the costs for
Federal and non-Federal to be the same. We provide estimated non-
Federal costs of $2,641,921 beginning in FY 2024 and in subsequent FYs
2025, 2026, 2028 and 2033, the estimated non-Federal cost is
$32,619,760. There is no estimate for FY 2021 in the chart because
these costs were not claimed; these will be new costs as a result of
this final rule.
Line 17. Total cost for state foster care legal proceedings. Line
17 displays the annual estimated total Federal and non-Federal costs
for tribal representation for candidates and IV-E FC in state foster
care legal proceedings. This is the sum of lines 15 and 16. We estimate
these total costs beginning in FY 2024 as $5,283,842 and in subsequent
FYs 2025, 2026, 2028 and 2033, the estimate is $65,239,520. There is no
estimate for FY 2021 in the chart because these costs were not claimed;
these will be new costs as a result of this final rule.
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[[Page 40412]]
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[[Page 40413]]
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[[Page 40414]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.128
[[Page 40415]]
Accounting Statement
From a society-wide perspective, many of the effects estimated
above are transfers from either the Federal Government or title IV-E
agencies to title IV-E participants. The table immediately below
presents annualized estimates of the incremental FFP claims, reported
as Federal budget transfers, and estimates of the incremental non-
Federal share, reported as other transfers, consistent with the yearly
estimates reported in rows 4 and 5 (where applicable) and 9, 10, 15 and
16 in the table above. These estimates cover a 10-year time horizon and
apply both a 7% and 3% discount rate.
[GRAPHIC] [TIFF OMITTED] TR10MY24.129
[[Page 40416]]
[GRAPHIC] [TIFF OMITTED] TR10MY24.130
VI. Tribal Consultation Statement
Executive Order 13175, Consultation and Coordination with Indian
Tribal Governments, requires agencies to consult with Indian tribes
when regulations have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.'' Similarly, ACF's
Tribal Consultation Policy says that consultation is triggered for a
new rule adoption that significantly affects tribes, meaning the new
rule adoption has substantial direct effects on one on more Indian
tribes, on the amount or duration of ACF program funding, on the
delivery of ACF programs or services to one or more Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes. This final rule does not meet either
standard for consultation. Executive Order 13175 does not apply to this
final rule because it does not impose any burden or cost on tribal
title IV-E agencies, nor does it impact the relationship or
distribution of power between the Federal Government and Indian Tribes.
Rather, it provides title IV-E agencies an option for claiming
additional administrative costs for legal representation under title
IV-E of the Act. Although not required for this final rule, ACF is
committed to consulting with Indian tribes and tribal leadership to the
extent practicable and permitted by law. ACF engaged in consultation
with tribes and their leadership on the September 2023 NPRM as
described below.
Description of Consultation
On September 29th, 2023, ACF issued a letter to tribal leaders
announcing the date, purpose, virtual location, and registration
information for tribal consultation and shared it widely through a
variety of peer groups and email list-serves. Tribal Consultation was
held via a Zoom teleconference call on October 30, 2023. A report of
the tribal consultation may be found on the CB website at: <a href="https://www.acf.hhs.gov/cb/report/tribal-consultation-nprms-legal-foster-care">https://www.acf.hhs.gov/cb/report/tribal-consultation-nprms-legal-foster-care</a>.
In summary, the consultation participants requested clarifications on
allowable administrative costs, access to funding for legal
representation provided early in a case, information the tribe will
need to report to the title IV-E agency for claiming costs, and
additional funding for the cost of representation in state court
proceedings for the foster care placement of, or TPR to, an Indian
child, which we responded to in section IV. The participants also
raised issues that are out of scope of the NPRM and more technical in
nature, such as the types of agreements that must be in place to access
Federal funding through the title IV-E agency. We would like to note
that more information about agreements and contracts is available in
CWPM 8.1E and G. ACF will work with title IV-E agencies and interested
tribes to provide additional technical assistance on these issues.
Jeff Hild, Principal Deputy Assistant Secretary for the
Administration for Children and Families, performing the delegable
duties of the Assistant Secretary for Children and Families, approved
this document on April 24, 2024.
List of Subjects in 45 CFR Part 1356
Administrative costs, Adoption assistance, Child welfare, Fiscal
requirements (title IV-E), Grant programs--social programs, Statewide
information systems.
[[Page 40417]]
(Catalog of Federal Domestic Assistance Program Number 93.658,
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child
Welfare Services--State Grants).
Dated: April 30, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, ACF amends 45 CFR part
1356 as follows:
PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E
0
1. The authority citation for part 1356 continues to read as follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq., 42
U.S.C. 1302.
0
2. Amend Sec. 1356.60 by revising paragraphs (c)(2)(viii) through (x)
and adding paragraphs (c)(2)(xi) and (c)(4) to read as follows:
Sec. 1356.60 Fiscal requirements (title IV-E).
* * * * *
(c) * * *
(2) * * *
(viii) Rate setting;
(ix) A proportionate share of related agency overhead;
(x) Costs related to data collection and reporting; and
(xi) Costs related to legal representation described in paragraph
(c)(4) of this section.
* * * * *
(4) The following are allowable administrative costs of legal
representation:
(i) Legal representation in foster care proceedings provided by an
attorney representing the title IV-E agency or any other public agency
(including an Indian tribe) which has an agreement in effect under
which the other agency has placement and care responsibility of a title
IV-E eligible child pursuant to 472(a)(2)(B)(ii) of the Act;
(ii) Independent legal representation provided by an attorney
representing a child in title IV-E foster care, a child who is a
candidate for title IV-E foster care, the child's parent(s), the
child's relative caregiver(s), and the child's Indian custodian(s) in
foster care and other civil legal proceedings as necessary to carry out
the requirements in the agency's title IV-E foster care plan.
Independent legal representation in civil proceedings includes
facilitating, arranging, brokering, advocating, or otherwise linking
clients with providers and services as identified in the child's case
plan pursuant to sections 422, 471(a)(16), and 475 of the Act; and
(iii) Legal representation provided by an attorney representing an
Indian child's tribe (as defined by 25 U.S.C.1903(5)), or
representation of an Indian child's tribe provided by a non-attorney,
when the child's tribe participates or intervenes in any state court
proceeding for the foster care placement or termination of parental
rights of an Indian child who is in title IV-E foster care or an Indian
child who is a candidate for title IV-E foster care.
* * * * *
[FR Doc. 2024-09663 Filed 5-8-24; 4:15 pm]
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