Rule2024-28072
Adoption and Foster Care Analysis and Reporting System
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 5, 2024
Effective
February 3, 2025
Issuing agencies
Health and Human Services DepartmentChildren and Families Administration
Abstract
This rule finalizes revisions to the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations proposed on February 23, 2024. This final rule requires state title IV-E agencies to collect and report to ACF additional data related to the Indian Child Welfare Act of 1978 (ICWA) for children in the AFCARS Out-of-Home Care Reporting Population.
Full Text
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<title>Federal Register, Volume 89 Issue 234 (Thursday, December 5, 2024)</title>
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[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Rules and Regulations]
[Pages 96569-96590]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28072]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1355
RIN 0970-AC98
Adoption and Foster Care Analysis and Reporting System
AGENCY: Children's Bureau (CB), Administration on Children, Youth and
Families (ACYF), Administration for Children and Families (ACF), U.S.
Department of Health and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: This rule finalizes revisions to the Adoption and Foster Care
Analysis and Reporting System (AFCARS) regulations proposed on February
23, 2024. This final rule requires state title IV-E agencies to collect
and report to ACF additional data related to the Indian Child Welfare
Act of 1978 (ICWA) for children in the AFCARS Out-of-Home Care
Reporting Population.
DATES: This rule is effective on February 3, 2025 except for the
amendments to Sec. 1355.44 (amendatory instruction 3), which are
effective as of October 1, 2028.
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#86e5e4e5e9ebebe3e8f2f5c6e7e5e0a8eeeef5a8e1e9f0"><span class="__cf_email__" data-cfemail="432021202c2e2e262d3730032220256d2b2b306d242c35">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority To Issue Final Rule
II. Overview of 2024 Notice of Proposed Rulemaking Comments and
Background on the Final Rule
III. Implementation Timeframe
IV. Section-by-Section Discussion of Regulatory Provisions and
Responses to Comments
V. Regulatory Impact Analysis
VI. Tribal Consultation Statement
I. Statutory Authority To Issue Final Rule
This final rule is published under the authority granted to the
Secretary of Health and Human Services (HHS) by Section 1102 of the
Social Security Act (the Act) (42 U.S.C. 1302), which authorizes HHS to
publish regulations, not inconsistent with the Act, as may be necessary
for the efficient administration of the functions for which HHS is
responsible under the Act and Section 479 of the Act (42 U.S.C. 679),
which mandates that HHS regulate a data collection system for national
adoption and foster care data. Section 474(f) of the Act (42 U.S.C.
674(f)) requires HHS to impose penalties for non-compliant adoption and
foster care data.
II. Overview of 2024 Notice of Proposed Rulemaking Comments and
Background on the Final Rule
AFCARS is authorized by section 479 of the Act (42 U.S.C. 679),
which mandates that HHS regulate a data collection system for national
adoption and foster care data. The regulation at 45 CFR 1356.60(d) and
the statute at 42 U.S.C. 674(a)(3) detail cost-sharing requirements for
the Federal and non-Federal share of data collection system initiation,
implementation, and operation. A title IV-E agency may
[[Page 96570]]
claim Federal Financial Participation (FFP) at the rate of 50 percent
for costs of a data collection system specified by section 479 of the
Act (42 U.S.C. 679).
AFCARS data is used for a variety of requirements, including but
not limited to, providing national statistics on the child welfare
population, budgeting, providing reports to Congress, and monitoring
compliance with the title IV-B and IV-E requirements. Title IV-E
agencies must submit data files on a semi-annual basis to ACF. AFCARS
regulations were first published in 1993 and states began submitting
data in fiscal year (FY) 1995. The regulations governing operation of
AFCARS are codified at 45 CFR 1355.41 through 1355.47.
Recent Regulatory History
ACF published a final rule revising the AFCARS regulations on
December 14, 2016 (81 FR 90524, hereafter referred to as the ``2016
final rule''). The rule reflected child welfare legislative changes
that occurred since 1993 and included many new data elements, including
information related to ICWA, and implemented statutory fiscal penalties
for non-compliant AFCARS data. This rule was never implemented. Before
the 2016 final rule became effective, ACF published a new rule delaying
its implementation timeframe (83 FR 42225, August 21, 2018). On May 12,
2020, ACF published a final rule to again amend the AFCARS regulations
(85 FR 28410, hereafter referred to as the ``2020 final rule''). The
2020 final rule eliminated some of the data elements that were
promulgated in the 2016 final rule and reduced the level of detail in
others. The Executive Orders and actions leading to the 2020 final rule
are explained in detail in the preambles to the following issuances:
Advance Notice of Proposed Rulemaking (ANPRM) issued March 15, 2018 (83
FR 11449); NPRM issued April 19, 2019 (84 FR 16572); and the 2020 final
rule, issued May 12, 2020 (85 FR 28410). Some of the data elements that
were eliminated or altered in the 2020 final rule related to reporting
on the details of ICWA's procedural protections (see also discussion at
84 FR 16573, 16575, 16577, and 85 FR 28411, and 28412). The 2020 final
rule was implemented on October 1, 2022, and title IV-E agencies are
now required to report AFCARS data as codified in the regulation at 45
CFR 1355.41-.47. Title IV-E agencies were required to submit the first
data files with this information to ACF in May 2023. More information
is available on the CB website at: <a href="https://www.acf.hhs.gov/cb/data-research/afcars-technical-assistance">https://www.acf.hhs.gov/cb/data-research/afcars-technical-assistance</a>.
2024 NPRM Comment Summary and Analysis
The AFCARS NPRM was published on February 23, 2024 (89 FR 13652,
hereafter referred to as the ``2024 NPRM'') and it proposed to add or
revise approximately 45 data elements related to the procedural
protections of ICWA. These data elements are located in the Out-of-Home
Care Data File, 45 CFR 1355.44. The NPRM proposed to revise and expand
the current ICWA-related data elements in Sec. 1355.44(b) Child
Information and add a new paragraph Sec. 1355.44(i) Data Elements
Related to ICWA, for information to be reported on children to whom
ICWA applies. As explained in the NPRM (89 FR 13653), ACF is now adding
data elements and revising some of the current data elements to require
reporting of more detailed information related to ICWA's procedural
protections via AFCARS, in order to fulfill the AFCARS statutory
mandate to provide comprehensive national information on the
demographics of ``adoptive and foster children and their biological and
adoptive foster parents,'' ``the status of the foster care
population,'' and ``the extent and nature of assistance provided by
Federal, state, and local adoption and foster care programs and the
characteristics of the children with respect to whom such assistance is
provided'' (section 479(c)(3) of the Act). For AI/AN children to whom
ICWA applies, it is necessary to understand the extent to which they
receive ICWA's protections in order to fully understand their
``status'' and ``characteristics,'' and ``the extent and nature of
assistance'' provided to them.
ICWA data collection helps set the stage for more informed,
effective, and culturally responsive care for AI/AN children. We know
AI/AN children are disproportionately represented in the state child
welfare system. There is evidence that AI/AN children in state foster
care have experienced a separation and disconnection from their
community, culture, and language, giving them a sense of identity loss.
Outcomes that AI/AN children face while being in foster care without
culturally appropriate services include increased risk for runaway and
homelessness, suicidal ideations, and juvenile justice interventions.
The NPRM comment period closed on April 23, 2024. In response, we
received 81 comments from: 14 states and 1 county; 25 Tribes; 21
organizations; and 20 individuals/anonymous. Most commenters generally
supported collecting ICWA-related information in AFCARS and supported
the NPRM as proposed (75 total commenters supported, 3 commenters
opposed, and 3 did not express either sentiment). The supportive
commenters generally expressed that having data on ICWA's procedural
protections ``could inform real solutions to the persistent child
welfare challenges American Indian/Alaskan Native (AI/AN) children
face.'' They also expressed that the data ``will provide a full picture
of the status of AI/AN children and families and the reasons behind the
lagging outcomes they experience'' that can lead to ``improved policy
development, technical assistance, training, and resource allocation''
from having ``regularly updated and reliable data available.''
Twelve of the 14 states/county expressed support for collecting
information on ICWA's protections, saying that it will inform practice.
They generally expressed praise for ACF's commitment to ``augmenting
national understanding of the experiences'' of AI/AN children in foster
care and the extent to which they are receiving the procedural
protections required under ICWA. One of these commenters said that
``AFCARS policy limitations over the last 30 years have hindered Tribal
and state efforts to address reoccurring and chronic concerns about AI/
AN children's well-being'' and that that has contributed to states
``not having a full understanding of their progress in implementing
ICWA and difficulty in developing effective and collaborative responses
with Tribes.'' They generally expressed that the need for ongoing,
reliable, and accessible data has never been greater.
Two states and one individual expressed opposition to the NPRM,
saying that most of the data elements proposed in the NPRM are better
suited for a case review where ``individual case circumstances as well
as court order language could be reviewed and analyzed to paint a more
complete picture of the ICWA implementation process.'' They did not
believe that all the proposed data elements ``add value that informs
quality practice or compliance,'' considering the burden and costs
required for reporting and the time that would be taken ``away from
direct casework, potentially caus[ing] delays in timely permanency for
children.'' One of the two states that opposed the data collection
expressed concern that state child welfare agencies have ``no control
over whether the legal system notifies Tribes, the timeliness of the
notification, or the accuracy of the data'' and that this would lead to
the potential for the state to be ``penalized
[[Page 96571]]
for any legal system's non-compliance regarding notification and other
requirements of ICWA.'' One of the two states opposed to the data
collection also expressed the opinion that reporting on ICWA's
procedural protections is outside the scope of section 479 of the Act
(42 U.S.C. 679).
Nine of the 14 states/county commenters also expressed concern in
two areas:
<bullet> The burden and costs to update case management systems so
close to the 2020 final rule being implemented (which occurred in
October 2023), and being in the middle of upgrading their electronic
case management systems from a ``legacy system'' to a Comprehensive
Child Welfare Information System (CCWIS), and
<bullet> Wanting more time to implement a new final rule or
delaying penalties for this data.
Seven states said they would need to add data elements to their
child welfare information systems to report the NPRM elements because
the information is located in case notes or court orders/minutes and
not in an extractable data field for AFCARS reporting and said that
this information may be compiled differently in different judicial
jurisdictions across the state, so increased technical assistance may
be needed. Five states, three organizations, and one individual said
that states will struggle with implementation and that the burden of
updating systems to implement the proposal will vary greatly among
states, depending on the population of children in foster care to whom
ICWA applies and where they are in the process of upgrading their case
management systems. Two states expressed that the value of the data
outweighs the burden and costs of updating systems.
In general, all of the Tribal commenters (25) and the vast majority
of organizations (20) and individuals/anonymous (17) commenters
expressed support for collecting information on ICWA's procedural
protections. They expressed similar sentiments as the supportive
states, such as that the lack of federal data on ICWA ``has contributed
to states not having a full understanding of their progress in
implementing ICWA and difficulty in developing effective and
collaborative responses with Tribes.'' They felt that the NPRM proposal
will fill in knowledge gaps, provide a better picture of the status of
AI/AN children and families, their outcomes, and ``create substantial
new bodies of evidence for program evaluation and for evaluating the
relative compliance with ICWA across jurisdictions.'' They also
expressed that the data from the proposal will help inform legislative
and regulatory policies, indicate training needs for ICWA practices,
and inform where further resources should be allocated. Tribes
generally expressed that the ``trust responsibility of the Federal
Government justifies this important data collection, and the sad fact
is Native American children are still overrepresented in the foster
care and adoptive system in state court proceedings today.'' Four
Tribes and five organizations also expressed agreement with the
interpretation of section 479 of the Act (42 U.S.C. 679) to include the
collection and reporting of data related to the implementation of ICWA
and expressed that they are pleased to see the current Administration
adopt this clarification of authority. One Tribe and two organizations
spoke to the information being located in court documents or paper case
files by expressing that, in states that use good case management
practices, states will have access to court information and while there
may be situations where a court issues a judicial determination from
the bench or does not provide all the specific information that a state
may need in a court order, this does not change the fact that states
should be aware of, seek clarification, and document this information
in the case file.
Approximately 21 of the Tribal commenters and 15 organizations
recommended specific changes to the proposal, such as suggesting
wording changes for certain data elements and collecting more
information related to Tribes and AI/AN children who are in foster
care. These comments are delineated in IV. Section-by-Section
Discussion of Regulatory Provisions and Responses to Comments.
Final Rule Development
Based on the overwhelmingly supportive response to the NPRM in
general, we made few substantive changes in this final rule. Commenters
agreed with the statement in the NPRM preamble (89 FR 13653) that
adding data elements and revising the current data elements to report
more detailed information related to ICWA's procedural protections in
AFCARS will contribute to fulfilling the AFCARS statutory mandate to
provide comprehensive national information on the demographics of
``adoptive and foster children and their biological and adoptive foster
parents,'' ``the status of the foster care population,'' and ``the
extent and nature of assistance provided by Federal, state, and local
adoption and foster care programs and the characteristics of the
children with respect to whom such assistance is provided'' (section
479(c)(3) of the Act). The supportive commenters agreed with the
statements from the NPRM that inconsistent implementation of ICWA and a
lack of data on ICWA's procedural protections have led to variation in
applying ICWA (89 FR 13653). Thus, ACF anticipates that gathering more
ICWA-related data would help ACF, researchers, and other policymakers
better understand the status and experiences of AI/AN children and
families interacting with the state child welfare systems and better
address the continuing overrepresentation in foster care and other poor
outcomes that AI/AN children experience. More complete data collection
may provide a foundation for improved policy development, targeted
technical assistance, and focused resources. This could assist in
efforts to mitigate disproportionality for AI/AN children and families,
support pathways to timely permanency for these children, and help
maintain the integrity of Tribal communities. ICWA data collection
offers important benefits by supporting a proactive approach to child
welfare. Robust ICWA-related data collection is essential for achieving
more informed, effective, and culturally responsive care for AI/AN
children. ACF knows AI/AN children are disproportionately represented
in the state child welfare system today. There is evidence that AI/AN
children in state foster care have experienced a separation and
disconnection from their community, culture, and language, giving them
a sense of identity loss. Outcomes that AI/AN children have while being
in foster care without culturally appropriate services include
increased risk for runaway and homelessness, suicidal ideations, and
juvenile justice interventions.
Data collection promotes cooperation between Tribes and federal
agencies. It encourages transparency and communication, fostering trust
and reinforcing the government-to-government relationship between
tribes and the federal government in matters of child welfare. ACF
expects that the data collection will also reveal trends about Native
children in foster care--such as the rates of removal or placement in
non-Native homes--indicating where Tribes and federal agencies should
prioritize resources. Data can provide evidence to secure funding for
services that honor ICWA's intent. Collecting ICWA data will facilitate
identifying where federal and state agencies are struggling to
appropriately serve AI/AN
[[Page 96572]]
children and will provide federal agencies, states, and Tribes with
critical information about where there are knowledge gaps or
implementation barriers preventing better outcomes for AI/AN children.
This critical information will show where more research and/or
technical assistance is needed to ensure that the federal and state
child welfare systems appropriately serve AI/AN families.
As stated above, most commenters generally supported collecting
ICWA-related information in AFCARS and supported the NPRM as proposed,
which will aid in these efforts. Commenters also offered that the data
may be used to enhance the ability to develop a better understanding of
the trends in out-of-home placement and barriers to permanency for AI/
AN children and that it will underscore that improved policy
development, technical assistance, training, and resource allocation
will result from having regularly updated data available. A commenter
also offered that the data elements present an opportunity to expand
cross-agency collaboration that could inform policy change across
federal agencies that have the authority and responsibility to act, in
partnership with tribal nations, on behalf of AI/AN children and
families. Another commenter offered that the data may be used for
efforts to address the chronic harm caused by overrepresentation of AI/
AN children in foster care, inform persistent barriers to effective
implementation of ICWA and be used to craft effective, data-driven
solutions to the unique harms caused to Native communities by
overrepresentation in child welfare. Another commenter said that it is
important to track key data elements to ensure the foster care
population is being represented accurately and this data may give child
welfare agencies evidence of the population they are serving and be
used to implement innovative change to issues surrounding child
welfare.
Under the 2020 final rule, the ICWA-related information currently
reported to AFCARS is:
<bullet> whether the child, mother, father, foster parents,
adoptive parents, and legal guardians are Tribal members,
<bullet> whether the state made inquiries whether the child is an
Indian child as defined in ICWA,
<bullet> the date that the state was notified by the Indian Tribe
or state or Tribal court that ICWA applies, and
<bullet> whether the Indian child's Tribe(s) was sent legal notice.
While that is helpful, it does not provide sufficient information
about the unique factors particular to AI/AN children to meaningfully
inform policymaking. Collecting more data elements related to ICWA's
procedural protections would enable HHS, other Federal agencies, and
the states to target policy development, training, and technical
assistance to specific areas of need. Commenters said that the data in
AFCARS is critical for advocates, policymakers, and child welfare
administrators to eliminate foster care disproportionality and service
disparities impacting Native children. A commenter also said that such
data may inform reducing the rate at which AI/AN children and youth
enter the child welfare system and improving outcomes for AI/AN
children and youth that do enter the system and that these data
elements may help improve outcomes for AI/AN children by facilitating
targeted ICWA trainings, efficient resource allocation, and/or improved
policymaking.
In response to the concern from one state about the potential for
the state to be penalized for any legal system's non-compliance
regarding notification and other requirements of ICWA, ACF wants to be
clear that this final rule is not a mechanism for enforcing or policing
ICWA. Regardless of what is reported by the state in the data elements,
ACF has no jurisdiction to impose consequences under ICWA on the state.
The states are responsible for reporting AFCARS data in accordance with
45 CFR 1355.46, which are compliance standards for reporting data that
is complete, submitted on time, and is internally consistent. These
compliance standards are not related to the ICWA statute or regulations
from the Bureau of Indian Affairs (BIA) at the Department of Interior.
In response to the concern from one state that reporting on ICWA's
procedural protections is outside the scope of section 479 of the Act,
as explained in the NPRM (89 FR 13655), the purpose of this final rule
is not to enforce state compliance with ICWA, but to gain a deeper and
proper understanding of the challenges facing Tribal children who are
in foster care. There is no other comprehensive, national data
collection related to ICWA that can inform our understanding of the
experiences of Tribal children in the child welfare system. Given the
long history of removal of AI/AN children from their families and
communities, the unique cultural considerations that apply to
Tribes,\1\ and Congress's determination that the ICWA procedural
protections are essential for AI/AN children and families ( 25 U.S.C.
1901 and 1902), ACF has determined that collecting robust ICWA-related
data concerning AI/AN children in the child welfare system can provide
valuable insights for ACF, states, Tribes and policymakers. ACF is the
most appropriate agency in the Federal government to collect data from
state child welfare agencies. The collection of ICWA-related data may
allow ACF and other stakeholders to better understand how the ICWA
procedural protections are operating in the context of child welfare,
whether implementation of those protections results in improved
outcomes for children, and where states are struggling to implement
them or in need of additional resources.
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\1\ EagleWoman (Wambdi A. WasteWin), Sisseton-Wahpeton Dakota
Oyate of the Lake Traverse Reservation, Angelique and G. William
Rice, United Keetoowah Band of Cherokee Indians in Oklahoma.
American Indian Children and U.S. Policy. Tribal Law Journal 16, 1
(2016). <a href="https://digitalrepository.unm.edu/tlj/vol16/iss1/2">https://digitalrepository.unm.edu/tlj/vol16/iss1/2</a>.
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In response to the two states that expressed that the value of the
data outweighs the burden and costs of updating systems, ACF agrees.
The overwhelmingly supportive comments received in response to the 2024
NPRM affirmed the importance of collecting these additional data
elements related to ICWA's protections. Collecting these additional
data elements would provide critical information about ICWA's
procedural protections, protections that were affirmed in the Supreme
Court's 2023 Brackeen decision upholding ICWA, reaffirming ICWA's
importance in addressing the longstanding practices that caused harm to
Indian children by unnecessarily separating them from their families
and communities. Also, collecting this data may provide insight into
potential areas for technical assistance and supports to help improve
child welfare outcomes. ICWA has been law for 40 years but there has
been little in-depth data collection regarding this law. Collecting
ICWA-related data in AFCARS is a step in the right direction to ensure
that Indian families are kept together when possible and to provide
insight into ICWA's requirements. Having uniform national data
regarding ICWA's requirements can assist policymakers in understanding
the scope of issues to inform policy changes. ACF also wants to
reiterate what was said in the 2024 NPRM (89 FR 13655), that in both
2018 and 2019, there were comments submitted by researchers and non-
governmental organizations with relevant expertise that described the
important uses for the potential data collection, including
underscoring the importance of certain casework activities and showing
[[Page 96573]]
national trends. A commenter also said that this data may allow Tribes
to ascertain how many of their children are in the child welfare
system, facilitate the Tribe's ability to locate and protect its
children, and possibly assist in planning an expansion of their
judicial and social services to ensure that Tribal courts have
sufficient capacity to hear custody proceedings involving their own
children. Having uniform national data regarding ICWA's requirements
can assist policymakers in understanding the scope of issues to inform
policy changes.
ACF continues to recognize that this rulemaking represents a change
in approach from the 2020 final rule, which reduced the number of ICWA
data elements to be collected in AFCARS. As ACF explained in the 2024
NPRM, ACF views robust ICWA-related data collection as necessary to
fulfill the AFCARS statutory purpose of collecting data ``necessary to
. . . assess (on a continuing basis) the incidence, characteristics,
and status of adoption and foster care in the United States, and to
develop appropriate national policies with respect to adoption and
foster care.'' 42 U.S.C. 679c(a)(2). Without more fulsome ICWA-related
data, ACF will continue to be limited in its ability to, among other
important functions, assess the current state of adoption and foster
care programs and relevant trends that affect AI/AN families; address
the unique needs of AI/AN children in foster care and their families by
clarifying how the ICWA requirements and title IV-E/IV-B requirements
interact in practice; improve training and technical assistance to help
states comply with titles IV-E and IV-B of the Social Security Act for
AI/AN children; develop future national policies concerning AI/AN
children served by child welfare programs; and inform and expand
partnerships across Federal agencies that invest in Indian families and
promote resilient, thriving Tribal communities (89 FR 13654). A renewed
understanding of the necessity of better understanding and supporting
AI/AN children in foster care motivated ACF to propose the 2024 NPRM
and it continues to undergird ACF's decision to collect this additional
ICWA-related information in AFCARS.
To address commenters' suggestions to collect even more ICWA-
related data, as stated in the 2024 NPRM (89 FR 13656), ACF also based
the decision not to add additional ICWA-related data elements in part
on concerns about the reliability and consistency of the data (85 FR
28411 and 28419). ACF's current understanding is that caseworkers would
have to draw language from court orders and possibly transcripts to be
able to report the specific information in these data elements, and
that this may be difficult at times. Furthermore, ACF's current-
understanding is that information and actions taken to meet ICWA's
requirements may be performed by the courts themselves, and therefore
the state title IV-E agency currently cannot always guarantee they have
the accurate information for reporting the AFCARS data elements and
therefore ACF limited the number of data elements that may be more have
more relaibility challenges and require more effort by the agency. ACF
plans to work with BIA on implementation of an eventual final rule and
will work with BIA on implementation of this rule to clarify what
information is required to be reviewed and interpreted so that agencies
can input and report the proper data for AFCARS. ACF will also work
with BIA to address instances where court orders are not clear or if
specific information is missing within and how that affects AFCARS
reporting. Given the importance of this data and why AFCARS is the
right mechanism to collect it, as explained in the preamble, ACF is
committed to providing the tailored technical assistance and training
needed to help address any data reliability issues that may arise and
believes it is sufficiently reliable to be worth collecting.
While ACF does not have any role in enforcing state compliance with
ICWA, it is responsible for ensuring that state child welfare systems
appropriately serve all children, including AI/AN children, and to set
national child welfare policy that takes into account the needs of all
foster and adoptive children.\2\ There is no other comprehensive,
national data collection related to ICWA that can inform our
understanding of the experiences of Tribal children in the child
welfare system. Given the long history of removal of AI/AN children
from their families and communities, the unique cultural considerations
and sovereignty issues that apply to Tribes,\3\ and Congress's
determination that the ICWA procedural protections are essential for
AI/AN children and families (25 U.S.C. 1901 and 1902), ACF continues to
determine that collecting more ICWA-related data in AFCARS can provide
valuable insights for ACF, states, Tribes and policymakers. ACF is the
most appropriate agency in the Federal government to collect data from
state child welfare agencies. This ICWA-related data will allow ACF and
other stakeholders to better understand how the ICWA procedural
protections are operating in the context of child welfare, whether
implementation of those protections results in improved outcomes for
children, and where states are struggling to implement them or in need
of additional resources (89 FR 13655).
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\2\ The NPRM stated that the Department of Interior Bureau of
Indian Affairs plays a role in enforcing state compliance with ICWA
(89 FR 13656). Subsequently, BIA informed ACF that it does not have
any role in enforcing state compliance with ICWA.
\3\ EagleWoman (Wambdi A. WasteWin), Sisseton-Wahpeton Dakota
Oyate of the Lake Traverse Reservation, Angelique and G. William
Rice, United Keetoowah Band of Cherokee Indians in Oklahoma.
American Indian Children and U.S. Policy. Tribal Law Journal 16, 1
(2016). <a href="https://digitalrepository.unm.edu/tlj/vol16/iss1/2">https://digitalrepository.unm.edu/tlj/vol16/iss1/2</a>.
---------------------------------------------------------------------------
ACF understands that this final rule will put an additional burden
on state child welfare agencies as does any additional data collection
requirement. ACF has given this serious consideration in developing
this final rule and analyzing the 2024 NPRM comments, both because of
concerns expressed by some states for resource issues, systems
upgrades, and data entry and because the AFCARS statute requires ACF to
``avoid unnecessary diversion of resources from agencies responsible
for adoption and foster care'' when regulating AFCARS (section
479(c)(1) of the Act). ACF is mindful of the cost to state title IV-E
agencies of collecting this data, but at the same time, is mindful of
the costs to AI/AN children, families, and Tribes, as well as ACF,
states, and policymakers, of not collecting the data. While any data
collection requirement imposes costs, the key consideration under the
statute is whether such costs result in an ``unnecessary diversion of
resources'' from agencies. As explained in the 2024 NPRM (89 FR 13657),
having more data on ICWA's procedural requirements may lead to
improvements in light of the disproportionately negative outcomes
generally experienced by AI/AN children, youth, and families \4\ and
the overrepresentation of AI/AN children in the child welfare
system.\5\
[[Page 96574]]
ACF realizes that all states have or are in the process of modifying
their data systems to collect the new data elements, largely unrelated
to ICWA, required by the 2020 final rule. ACF also realizes that adding
additional data elements to state data collection systems will present
an additional financial and personnel cost and that the data is
qualitative in nature, meaning that it likely will be more costly and
time-consuming to report because, we understand, that the information
is in paper files or case notes, and not already within data fields
ready for reporting. However, ACF does not see these as sufficient
reasons to not require reporting of ICWA procedural requirements in
AFCARS, given the importance of the data.
---------------------------------------------------------------------------
\4\ National Indian Child Welfare Association, State of American
Indian/Alaska Native Children and Families, Part 3: Adverse
Childhood Experiences and Historical Trauma, (2022) <a href="https://www.nicwa.org/wp-content/uploads/2022/11/NICWA-State-of-AIAN-Children-and-Families-Report-PART-3.pdf">https://www.nicwa.org/wp-content/uploads/2022/11/NICWA-State-of-AIAN-Children-and-Families-Report-PART-3.pdf</a>.
\5\ 4,622 children with a reported race (per 45 CFR
1355.44(b)(7)) of AI/AN entered foster care during FY 2021 (AFCARS
Report 29). While that is two percent of the child welfare
population, AI/AN children made up one percent of the child
population (Child Welfare Information Gateway (2021) Child Welfare
Practice to Address Racial Disproportionality and Disparity, <a href="https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/">https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/</a>).
We also want to note that the reported race of AI/AN is the closest
we have to understanding whether a child is an ``Indian child'' as
defined in ICWA at 25 U.S.C. 1903, as of FY 2021.
---------------------------------------------------------------------------
AFCARS may be modified when needed, for example, to reflect
legislative changes and other changing needs for particular kinds of
data. In general, AFCARS regulations may be amended at any time to
accommodate changes in law, policy, or other matters that are tied to
the title IV-B/IV-E programs and accordingly, ACF does not view this
final rule as implicating states' reliance interests. With the plan to
give states three federal fiscal years to implement this final rule,
ACF believes that allows time for states to make the needed
modifications.
Thus, in light of the supportive comments received and the
importance of the data, on balance, ACF determined that the value of
collecting the data outweighs the burden it imposes, and that any cost
imposition is not ``unnecessary.'' We address specific comments
received on burden and costs in V. Regulatory Impact Analysis.
Executive Orders 13985 and 14091
This rule is consistent with the administration's priority of
advancing 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 and 14091 Further Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government, Feb. 16, 2023). Research well-documents the
overrepresentation of certain groups in foster care relative to their
representation in the general population. AI/AN children are at greater
risk than other children of being confirmed for maltreatment and placed
in out-of-home care.\6\ The additional data in this final rule may
allow ACF and other stakeholders to better understand opportunities to
advance equitable outcomes for AI/AN children.
---------------------------------------------------------------------------
\6\ 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/racial-disproportionality/">https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/</a>.
---------------------------------------------------------------------------
Summary of Final Rule
Currently, state title IV-E agencies report the following related
to ICWA in AFCARS:
<bullet> Tribal membership of the child, mother, father, foster
parents, adoptive parents, and legal guardians--Sec. 1355.44(b)(4),
(c)(3) and (4), (e)(10) and (15), and (h)(4) and (9).
<bullet> Whether the state made inquiries whether the child is an
Indian child as defined in ICWA--Sec. 1355.44(b)(3).
<bullet> Whether ICWA applies for the child and the date that the
state was notified by the Indian Tribe or state or Tribal court that
ICWA applies--Sec. 1355.44(b)(5).
<bullet> Whether the Indian child's Tribe(s) was sent legal
notice--Sec. 1355.44(b)(6).
This final rule revises the current data elements in Sec.
1355.44(b) to report more detailed information on ICWA's procedural
protections and, in new Sec. 1355.44(i), adds data elements on certain
aspects of ICWA's procedural protections for requests for transfers to
Tribal court, termination/modification of parental rights, and foster
care, pre-adoptive and adoptive placement preferences. The section-by-
section preamble explains in detail how the current CFR will be amended
to include the new information for states to report. In summary, state
title IV-E agencies must report the following additional information
related to ICWA's procedural protections:
<bullet> Whether the state inquired with certain individuals as to
whether the child is an Indian child as defined in ICWA and when the
agency first discovered information indicating that the child is or may
be an Indian child as defined in ICWA (Sec. 1355.44(b)(3) and (4)).
<bullet> Whether the child's parent, Tribe, or Indian custodian was
sent notice in accordance with ICWA (Sec. 1355.44(b)(5)).
<bullet> Information on whether a court determined that ICWA
applies for the child; if yes, the date the court determined ICWA
applies, and the Tribe that the court determined is the Indian child's
Tribe (Sec. 1355.44(b)(6)).
<bullet> Whether the child's case record indicated a request to
transfer to Tribal court and if transfer was denied, the reason for
denial (Sec. 1355.44(i)(1)).
<bullet> Information on involuntary and voluntary terminations or
modifications of parental rights under ICWA (Sec. 1355.44(i)(2) and
(3)).
<bullet> Information on removals under ICWA (Sec. 1355.44(i)(4)).
<bullet> Information on the placement preferences under ICWA for
foster care, pre-adoptive, and adoptive placements (Sec.
1355.44(i)(5)-(8) and (10)-(13)).
<bullet> Whether the court determined that the state title IV-E
agency made active efforts to prevent the breakup of the Indian family
(Sec. 1355.44(i)(9)).
Confidentiality
ACF stated in the 2024 NPRM (89 FR 13656) that ACF will not release
specific information regarding a child's Tribal membership or ICWA
applicability except to the Indian Tribe in which the child is or may
be a member, in order to protect the child's confidentiality. ACF had
reached this decision in light of the need to ensure privacy and
confidentiality as several states have very few Indian children in
foster care. There is a significant privacy interest in that the
information given could reveal a child's identity. Safeguarding
information in instances where there is a small number of children in a
jurisdiction is consistent with existing practice. The current practice
for small populations in jurisdictions is to aggregate the data into
larger groups so that those children cannot be identified. This current
practice would not change under this final rule. Of the total
commenters, two commented on the topic of confidentiality and both
expressed support for collecting the data proposed in the 2024 NPRM and
ensuring safeguards protect privacy and confidentiality of AI/AN
children in foster care.
III. Implementation Timeframe
ACF is providing three (3) full Federal fiscal years for state
title IV-E agencies to comply with the revisions to Sec. 1355.44(b)
and (i), rather than the two fiscal years proposed, which we believe is
sufficient for state title IV-E agencies to implement the changes
necessary to comply with this final rule. This decision was informed by
the 2024 NPRM comments that we describe below. During the
implementation period, state title IV-E agencies must continue to
report to ACF the ICWA-related data that is currently required in Sec.
1355.44(b)(3)-(6). It is essential for states to continue to report
this information to ACF without interruption because AFCARS data is
used for various reports, national
[[Page 96575]]
statistics, planning, and monitoring. This means that the first report
period when state title IV-E agencies must begin collecting the
information required in this final rule begins October 1, 2028, and the
first data files containing this information will be due to ACF by May
15, 2029.
2024 NPRM Comments: Of the nine states that made comments relevant
to the implementation timeframe, four states asked for a three-fiscal
year timeframe and four states expressed wanting ``sufficient time,''
saying that this is due to their resource issues with implementing the
2020 final rule and making systems updates. Only two of the nine states
supported a two-fiscal year implementation timeframe. ACF recognizes
that while currently, most states have submitted compliant data files
for the 2020 final rule requirements, it took a majority of the states
over four fiscal years to fully implement the 2020 final rule. The
first data files submitted by most states in May 2023 were
noncompliant, meaning that the data files either did not report
historical information for those data elements that required it or
states instead submitted data as per the now-superseded 1993
regulations. Regarding specifically the ICWA-related data elements from
the 2020 final rule, approximately 12-14 states did not accurately
report the information, meaning, for example, that seven states
reported ``no'' to making any inquiries as to whether the child may be
an Indian child (Sec. 1355.44(b)(3)) and 14 states reported that they
had no children where ICWA applied (Sec. 1355.44(b)(5)), but we know
that some of these states have federally recognized Tribes. ACF
understands that the data in this final rule is important, however, ACF
feels strongly that the data can only be useful and reliable if we have
full, compliant data from all states. Thus, ACF considered the progress
states made in implementing the 2020 final rule over the last four
years, the length of time it took them to do so, and the increase in
data points that we are regulating in this final rule (49) and decided
to provide states with a three-fiscal year timeframe to implement this
final rule.
Additionally, ACF is specifying that states must report the new/
revised ICWA-related data elements required in this final rule for
children who enter the Out-of-Home Care Reporting Population on or
after the implementation date of the final rule (October 1, 2028). For
children who enter and exit the Out-of-Home Care Reporting Population
before the implementation date, only the 2020 final rule's ICWA-related
data elements will be reported. For children who enter the Out-of-Home
Care Reporting Population before the implementation date and exit on or
after implementation date, the state title IV-E agency must report the
information only for paragraphs (b)(4)(i) and (ii) and (b)(6)(i) from
this final rule. These data elements ask: whether the child is a member
of or eligible for membership in a federally recognized Indian Tribe;
all federally recognized Indian Tribe(s) that may potentially be the
Indian child's Tribe(s); and whether a court determined that ICWA
applies or that the court is applying ICWA because it knows or has
reason to know a child is an Indian child as defined in ICWA in
accordance with 25 CFR 23.107(b)(2). Similar information on the child's
Tribal membership, the names of Tribes, and whether ICWA applies for
the child are information that states are currently reporting under the
2020 final rule. This is described in the preamble and regulation text
for Sec. 1355.43 below.
One commenter recommended that ACF not apply all of the ICWA-
related data elements from this final rule for children who are in the
Out-of-Home Care Reporting Population before the implementation date
and exit on or after the implementation date because it would be
``overly burdensome'' to require states to retroactively seek out data
in older case files or court records, particularly for children who
were in foster care for many years. This would significantly reduce the
reliability and usefulness of the data reported. ACF agrees with this
recommendation based on implementing the 2020 final rule, where we had
required title IV-E agencies to report each date of removal, exit, and
exit reason for each child who had an out-of-home care episode prior to
October 1, 2020. This meant that title IV-E agencies did not need to
report complete historical and current information for every data
element that required it in the 2020 final rule for these children.
States had issues reporting historical information for those three data
elements for children who were in foster care for many years, even
though we understood at the time that this information would be in
their case records. Now, ACF understands from the 2024 NPRM commenters
that the information that will be used to report the ICWA-related data
elements in this final rule are located in case notes or court
documents/court orders and not currently in extractable data fields.
This means that for children in foster care prior to the implementation
date, ACF anticipates that states will struggle to locate and report
the details on ICWA's procedural protections especially for children
who have been in foster care for many years because this information
may be years old. In considering the comments received in response to
the 2024 NPRM and the lessons learned from implementing the 2020 final
rule, ACF decided to require the new/revised ICWA-related data elements
in this final rule to be reported only for children who enter the Out-
of-Home Care Reporting Population on or after the implementation date
of the final rule.
IV. Section-by-Section Discussion of Regulatory Provisions
References throughout this proposed rule to ``child'' or
``children'' are inclusive of youth and young adults aged 18 or older
who are served by the title IV-E and IV-B programs. ACF uses these
terms in the regulatory text and section-by-section preamble discussion
because these are used throughout the title IV-E and IV-B statute and
regulations.
Severability
For the reasons described above, ACF's authority to implement each
of the provisions in this the regulation is well-supported and should
be upheld in any legal challenge. ACF also believes that its exercise
of its authority reflects sound policy. However, in the event that any
portion of the rule is declared invalid, ACF intends that the other
provisions be severable because they could still function sensibly. For
example, ACF expects that if a court were to invalidate any paragraph
under new Sec. 1355.44(i), the other paragraphs should remain in
effect because the data elements are independent of each other (with
the exception that an invalidation of Sec. 1355.44(i)(7) would
necessitate an invalidation of Sec. 1355.44(i)(8), and an invalidation
of Sec. 1355.44(i)(12) would necessitate an invalidation of Sec.
1355.44(i)(13), because each of those pairs is linked). Additionally,
if a court were to invalidate any of the specific data elements within
any paragraph of Sec. 1355.44(b) or (i), ACF intends that the
collection of the other data elements within that subparagraph remain
in effect to the maximum extent practicable because the vast majority
of the data elements are independent of each other, and thus could
still be collected and would still be meaningful to collect even if
particular data elements were invalidated.
Section 1355.43 Data Reporting Requirements
This section contains data reporting requirements for AFCARS, such
as report periods and deadlines for
[[Page 96576]]
submitting data files, and descriptions of data quality errors. The
2024 NPRM proposed only technical edits to amend paragraphs (b)(1) and
(2) to correct cross references to data elements in Sec. 1355.44 and
remove paragraph (b)(3) to eliminate obsolete dates. No comments were
received on these amendments. However, ACF made changes to the proposal
to reflect the implementation directions for reporting information on
children who are in the Out-of-Home Care Reporting Population before
the implementation date and exit on or after the implementation date.
Thus, in this final rule, ACF made technical edits to paragraphs (b)(1)
and (2) to correct cross references to data elements in Sec. 1355.44
and in amended paragraph (b)(3) to require state title IV-E agencies to
report information only for the data elements in Sec. 1355.44(b)(4)(i)
and (ii), and (6)(i) for children who are in the Out-of-Home Care
Reporting Population before the implementation date and exit on or
after the implementation date. As explained in section III
Implementation Timeframe, ACF understands from the 2024 NPRM commenters
and our experience implementing the 2020 final rule that reporting the
details on ICWA's procedural protections for all data elements in this
final rule will be difficult in the case of children who have been in
foster care for many years. ACF understand that this is because the
case information may be years old (for example, whether there was
testimony from a qualified expert witness) and would be difficult to
report for these children. However, state title IV-E agencies must
report all information in this final rule for children who enter the
Out-of-Home Care Reporting Population on or after the implementation
date.
Section 1355.44 Out-of-Home Care Data File Elements
This section contains the data element descriptions for the Out-of-
Home Care Data File.
Section 1355.44(b) Child Information
Paragraph (b) contains specific information for the identified
child who is in the Out-of-Home Care Reporting Population.
Researching reason to know a child is an ``Indian Child'' as
defined in ICWA. In paragraphs (b)(3)(i) through (vii), the state title
IV-E agency must report whether it researched whether there is reason
to know that the child is an Indian child as defined in ICWA, which is
whether it inquired with the following entities: the child; the child's
biological or adoptive mother and father; the child's Indian custodian;
the child's legal guardian; and the child's extended family (as defined
in ICWA). The state title IV-E agency must also indicate whether the
domicile or residence of the child, the child's parent, or the child's
Indian custodian is on a reservation or in an Alaska Native village.
This data element replaces and expands the current data element in
Sec. 1355.44(b)(3) that asks whether the state title IV-E agency made
inquiries as to whether the child is an Indian child as defined in
ICWA, with a yes/no response option.
Comment: One commenter recommended adding a data element on
inquiring with a legal guardian because ``not all legal guardians would
be considered Indian custodians.''
Response: ACF agrees and added a data element in paragraph
(b)(3)(vii) to require the state to report whether it inquired with the
child's legal guardian for the reason cited by the commenter.
Comment: Three commenters recommended revising the response options
in paragraph (b)(3)(v) to add a response option for ``child not of
sufficient age and capacity.'' They suggested this revision because
``it would be difficult to understand why a state agency might not
inquire with the child.''
Response: ACF did not revise this data element for several reasons.
The data required to be reported in paragraph (b)(3) asks whether the
state inquired with the child, among others, with yes/no response
options. Whether a child was not of ``sufficient age and capacity''
would require us to seek public comment to define what that means.
Additionally, there are no requirements in the ICWA statute, BIA
regulations, or titles IV-B or IV-E that guide recording, measuring, or
ACF collecting this information. Additionally, the child's age is
collected in paragraph (b)(1).
Comment: One commenter recommended adding a data element for the
state to report at what point in the case the child was identified as
qualifying under ICWA.
Response: We did not add a data element on this because researching
whether a child is an ``Indian Child'' as defined in ICWA is already
being reported for paragraphs (b)(3)(i)-(vii) and the date that the
state first discovered the information indicating the child is or may
be an Indian child is already being reported for paragraph (b)(4)(iv).
Comment: One commenter recommended adding data elements for the
state to report on the involvement of the child's parents in the case,
such as how often the parents attended hearings and the quality of
their attendance.
Response: We did not add data elements on parents' involvement in
the case because it is impossible to report to AFCARS narrative
information and aggregate this information into national statistics.
Additionally, ACF does not believe that this information is a
particularly unique policy concern related to AI/AN Indian children
that warrants reporting to AFCARS, it was not part of the proposed
rule, and it would be difficult to interpret without substantially more
contextual information. Lastly, there are no requirements in the ICWA
statute, BIA regulations, or titles IV-B or IV-E that guide recording
or measuring such information.
Comment: One commenter asked for clarification on who are the
``certain individuals'' states must inquire with as to whether the
child is an Indian child.
Response: The regulation text in paragraphs (b)(3)(i) through (vii)
specifies those individuals. They are the child, the child's biological
or adoptive mother/father, Indian custodian, extended family, and legal
guardian. State title IV-E agencies must also report whether the
domicile or residence of the child/parent/Indian custodian is on a
reservation or in an Alaska Native village.
Comment: One commenter suggested adding data elements for the state
to inquire with ``other adult relatives'' and whether they are members
of an Indian Tribe saying that it will assist in determining if the
child is an Indian child as defined under ICWA.
Response: We did not add data elements for the state to collect
information on other adult relatives because inquiring with an
``extended family member'' is already being reported in paragraph
(b)(3)(iv) and ``extended family members'' is defined in ICWA at 25
U.S.C. 1903(2).
Comment: Two commenters suggested adding elements related to Tribal
ancestry for the child, parents, grandparents, and family for state
recognized or non-federally recognized Tribes, specifics about the
Tribe's federal recognitions status, and Tribal enrollment documents.
Response: We did not add data elements on family ancestry, the
status of a Tribe's federal recognition, or Tribal enrollment because
ICWA only applies to children who are members of or eligible for
membership in federally recognized Tribes (25 U.S.C. 1903(8).
Additionally, it is not feasible to collect information on Tribal
enrollment documents and ancestry in AFCARS because this information is
very detailed and would not yield any set of aggregated national
information.
[[Page 96577]]
Child's Tribal membership and reason to know. In paragraphs
(b)(4)(i) and (ii), the state title IV-E agency must continue to report
whether the child is a member of or eligible for membership in a
Federally recognized Indian Tribe, and if ``yes,'' the state title IV-E
agency must indicate all Federally recognized Indian Tribe(s) that may
potentially be the Indian child's Tribe(s). This information is
currently reported in Sec. 1355.44(b)(4)(i) and (ii) and is used to
help identify children in the out-of-home care reporting population who
are or may be Tribal members. In paragraphs (b)(4)(iii) and (iv), the
state title IV-E agency must indicate whether it knows or has reason to
know that the child is an Indian child as defined in ICWA, and if
``yes,'' then the state title IV-E agency must indicate the date that
it first discovered the information indicating the child is or may be
an Indian child as defined in ICWA. The information reported for
paragraphs (b)(4)(iii) and (iv) and (b)(6) (discussed below) would
replace the current data element in Sec. 1355.44(b)(5), which required
the state IV-E agency to report only whether ICWA applies and if so,
the date the state title IV-E agency was notified, because these
changes require more details related to ICWA's procedural requirements
on ``reason to know''. No comments were received on these amendments
and ACF does not have a reason to make further revisions, so no changes
were made to the proposal.
Notification. In paragraphs (b)(5)(i) and (ii), the state title IV-
E agency must report whether the Indian child's Tribe(s) was sent legal
notice in accordance with 25 U.S.C. 1912(a) (which is currently
required in Sec. 1355.44(b)(6)) and we newly require that if ``yes,''
the state title IV-E agency must report the Indian Tribe(s) that were
sent notice. In paragraph (b)(5)(iii), the state title IV-E agency must
report whether the Indian child's parent or Indian custodian was sent
legal notice prior to the first child custody proceeding in accordance
with 25 U.S.C. 1912(a). These data elements replace and expand on the
information reported for the current data element in Sec.
1355.44(b)(6) that asks whether the Indian child's Tribe(s) was sent
legal notice with yes/no response options.
Comment: Nine commenters requested that the data element include
language of whether the notice ``was sent 10 days prior'' to the first
custody hearing.
Response: We did not add the language of ``10 days prior'' to the
data elements because it is already built into the requirement for
reporting this data element in that the state must report that it
notified in accordance with ICWA at 25 U.S.C. 1912(a). The statute at
25 U.S.C. 1912(a) contains the specification that the notice must be
received by the parent/custodian more than 10 days prior to the first
child custody proceeding.
Comment: One commenter requested adding more data elements on: how
notice was transmitted, and if it was properly addressed, notice sent
to the BIA or the Tribe's designated ICWA agents listed on the BIA
website, and notice sent to the Federal Register.
Response: We did not add these suggested data elements because we
believe they are too detailed for national data collection, and we do
not have a reason to collect this information. Lastly, adding more data
elements for this type of information is outside the scope of the
NPRM's proposal for this data element, unnecessarily burdensome and
would increase state and federal costs to collect.
Comment: One commenter requested adding data elements on whether
the Tribe was notified of voluntary foster care placements that are not
covered under the ICWA notice requirements of 25 U.S.C. 1912(a) because
they felt it will enable policy makers to identify gaps in ICWA in
terms of countering practices that contribute to the disproportionate
removal of Indian children.
Response: We did not add this data element because there are no
requirements in the ICWA statute, BIA regulations, or titles IV-B or
IV-E that guide recording or measuring such information. Thus, adding a
data element on this would be requiring states to report on actions
they are not otherwise required to undertake. Lastly, this information
is outside the scope of the NPRM's proposal for this data element,
unnecessarily burdensome and would increase state and federal costs to
collect.
Comment: A few commenters requested adding data elements on the
date of the notice, the date the notice was received by the parent,
Indian custodian, and Tribe, and the date the petition was filed.
Commenters indicated it is ``easily located and are not qualitative or
too detailed in nature and provides important additional information
regarding whether notice was timely.''
Response: We did not add any data elements requiring the state to
report the dates of notices or petitions because there is no need to
have aggregated national statistics on this information. First, the
ICWA statute at 25 U.S.C. 1912(a) contains the specification that the
notice must be received at least 10 days before the proceeding, thus a
response from a state of ``yes'' in paragraphs (b)(5)(i) and (iii)
indicates that the timeframes are met. We did not add any data elements
on petition dates because information must to be reported to AFCARS
only when a child enters the Out-of-Home Care Reporting Population. Per
Sec. 1355.42, a child must be in ``foster care'' as defined in Sec.
1355.20 and in Sec. 1355.44(d)(1) the state reports the removal date
when a child enters the placement and care responsibility of the title
IV-E agency. Thus, children with only a removal petition filed and who
are not in the placement and care responsibility of the state are not
included in the Out-of-Home Care Reporting Population.
Comment: One commenter requested adding data elements on notice to
other adult relatives, non-Indian relatives, and kin because this
should align with ``the Fostering Connections to Success and Increasing
Adoptions Act of 2006 require[ment] that adult grandparents and other
adult relatives of the child be identified and notified within 30 days
of when a child is removed from his or her home.''
Response: We did not add data elements on this because there are no
requirements in the ICWA statute or BIA regulations for notice to other
adult relatives, non-Indian relatives, or kin. The commenter is not
referring to a requirement in ICWA. The commenter is referencing a
required notice to relatives under section 471(a)(29) of the Act (42
U.S.C. 671(a)(29)) that is much more expansive and applies to all
children in foster care, including children to whom ICWA applies. State
compliance with the notice to relatives requirement is monitored
through the Child and Family Services Review (see item 10C of the on-
site review instrument).
Comment: One commenter requested adding data elements on: when in
the case the Tribe was notified; how the Tribe was notified; when in
the case the Tribe intervened; what was the Tribe's level of
participation; was the Tribe a ``party'' to the case; a definition of
``proper notice'' to the Tribe; and Tribal affiliation information.
Response: We did not add data elements as suggested because they
are too detailed for aggregated national statistics, and ACF does not
have a reason to know this information. Regarding the suggestion for
adding ``when in the case the Tribe was notified,'' ACF does not have a
need for states to report the dates of when a Tribe was notified
because a response of ``yes'' in paragraphs (b)(5)(i) and (iii)
[[Page 96578]]
would indicate that the Indian child's Tribe, parent or Indian
custodian were given proper legal notice of the child custody
proceeding more than 10 days prior to the first child custody
proceeding in accordance with 25 U.S.C. 1912(a). Regarding adding ``how
the Tribe was notified,'' the ICWA statute and BIA regulations define
what constitutes notice and specifies the methods of how notice must be
sent, so we do not see a need to collect this information since the
procedure is already contained within the statutory and regulatory
requirements at 25 CFR 23.111 and Sec. 1912(a). Regarding adding
``when in the case that the Tribe intervened,'' ``the Tribe's level of
participation'' in a case, and whether the Tribe was a ``party'' to a
case, those proposed data elements are impossible to report to AFCARS
because narrative information cannot be reported to AFCARS and
aggregated into national statistics due to the wide variation in what
could be written. Reporting ``when in the case that the Tribe
intervened,'' ``the Tribe's level of participation'' in a case, and
whether the Tribe was a ``party'' to a case would not yield any insight
when this final rule is requiring reporting of requests to transfer
cases to Tribal court in paragraph (i)(1). Additionally, there are no
requirements in the ICWA statute, BIA regulations or titles IV-B or IV-
E that guide recording or measuring such information. Tribal
affiliation is reported in paragraph (b)(4) on child's Tribal
membership.
Application of ICWA. In paragraph (b)(6), ACF requires the state
title IV-E agency to report information related to ICWA's application.
In paragraph (b)(6)(i), the state title IV-E agency must report whether
a court determined that ICWA applies or that the court is applying ICWA
because it knows or has reason to know a child is an Indian child as
defined in ICWA in accordance with 25 CFR 23.107(b)(2). If the state
title IV-E agency indicates ``yes, ICWA applies,'' then it must
complete paragraphs (b)(6)(ii) and (iii) and new paragraph (i) of this
section. In paragraphs (b)(6)(ii) and (iii), the state title IV-E
agency must report the date that the court determined that ICWA applies
and the Indian Tribe that the court determined is the Indian child's
Tribe for ICWA purposes. Of the total commenters, seven commented on
this element and all of them expressed support. ACF did not receive
comments for changes to our proposal for this paragraph, thus we
finalize this data element as proposed.
Section 1355.44(i) Data Elements Related to ICWA
In new paragraph (i), we propose to obtain information on certain
requirements related to ICWA. This paragraph applies only to state
title IV-E agencies that reported ``yes, ICWA applies'' in paragraph
(b)(6)(i); otherwise, the state title IV-E agency must leave paragraph
(i) blank. Tribal title IV-E agencies do not report information in
paragraph (i). This section is new and is an expansion of the ICWA-
related information state title IV-E agencies are currently required to
report under Sec. 1355.44. The information proposed to be reported
relates to transfers to Tribal court, involuntary and voluntary
terminations/modifications of parental rights, active efforts, and
placement preferences under ICWA.
Request to transfer to Tribal court. In paragraph (i)(1), the state
title IV-E agency must report information on requests to transfer to
Tribal court. In paragraph (i)(1)(i), the state title IV-E agency must
report whether there was a request to transfer to Tribal court for each
removal date reported in Sec. 1355.44(d)(1). If the state title IV-E
agency indicates ``yes,'' it must report whether there was a denial of
the request to transfer to Tribal court in paragraph (i)(1)(ii). If the
state title IV-E agency indicated ``yes'' in paragraph (i)(1)(ii), then
it must complete paragraph (i)(1)(iii) indicating whether each reason
for denial in paragraphs (i)(1)(iii)(A) through (C) ``applies'' or
``does not apply.'' The reasons are: Either of the parents objected to
transferring the case to the Tribal court; the Tribal court declined
the transfer to the Tribal court; The state court determined good cause
exists for denying the transfer to the Tribal court.
Comment: Twenty-four commenters requested adding a data element
asking for the ``reason for the denial of transfer,'' if the state
reports ``yes'' for paragraph (i)(1)(ii) and 20 commenters requested
adding an element on the reason for the good cause that exists for
denying the transfer to Tribal court. Commenters stated that this
additional data might ``uncover unfair state practices'' and would
provide information on ``what state courts consider good cause to deny
transfers,'' which could indicate a need for state and Tribal courts to
collaborate to provide alternative forums, such as video conferencing.
Response: ACF agrees with commenters that the data element on
``reason for denial of transfer'' should be added and is adding a data
element asking for the reason for denial of the request to transfer to
Tribal court. We included this reporting at new paragraph (i)(1)(iii)
and the language used is modeled after the data element that was in the
2016 final rule (81 FR 90571). ACF added this for the reasons expressed
by the commenters, as well as that this information may improve
understanding of case transfers for continued quality improvement and
could deepen an understanding of ICWA, specifically where state courts
and Tribal courts interact. However, ACF did not add another data
element asking for the ``reason for good cause'' to deny transfers
because ACF does not have any indication of what potential reasons
could be without more input from public comment and the data element
would be of limited use without additional detail on what those
potential reasons could be.
Comment: Two commenters requested that we remove the language of
``case record indicated'' from paragraphs (i)(1)(i) and (ii) because
these are the only elements that ask whether the case record indicated
a specific fact, but all elements in this NPRM could be indicated by
the case record.
Response: We removed the language ``the child's case record
indicated'' as recommended by the commenters, which will allow for
consistency in the final rule.
Involuntary termination/modification of parental rights under ICWA.
In paragraph (i)(2), ACF requires that the title IV-E agency report
information on involuntary terminations or modifications of parental
rights under ICWA. If the title IV-E agency indicated ``involuntary''
in paragraph (c)(5) they must complete this paragraph, if applicable.
In paragraph (i)(2)(i), the title IV-E agency must report whether the
state court found beyond a reasonable doubt that continued custody of
the Indian child by the parent or Indian custodian is likely to result
in serious emotional or physical damage to the Indian child in
accordance with 25 U.S.C. 1912(f). In paragraph (i)(2)(ii), the state
title IV-E agency must report whether the court decision to
involuntarily terminate parental rights included the testimony of one
or more qualified expert witnesses in accordance with 25 U.S.C.
1912(f). In paragraph (i)(2)(iii), the state title IV-E agency must
report whether, prior to terminating parental rights, the court
concluded that active efforts had been made to prevent the breakup of
the Indian family and that those efforts were unsuccessful in
accordance with 25 U.S.C. 1912(d).
[[Page 96579]]
ACF did not receive comments suggesting changes to our proposal for
this paragraph, thus we finalize this data element as proposed. Three
commenters expressed support for this data element and one commenter
supported the element but said their state will need to make changes to
their electronic case management system to capture information to
report for paragraph (i)(2)(ii) because currently it is located only in
court minute entries and not in an extractable data field. Another
commenter opposed this data element, saying these elements ``are
process oriented elements that lend more to in-depth individual case
review than to quantitative reporting,'' that they are not captured in
their existing data system and ``would need to be identified through
time consuming case-by-case review of individual court orders.'' The
commenter further said that ``this type of data analysis would more
effectively be accomplished through case review processes.'' ACF
continues to believe that this data element reflects a key protection
of ICWA (89 FR 13653) and that including this data element contributes
to fulfilling the statutory requirements of the AFCARS mandate by
providing comprehensive national information on the demographics and
status of adoptive and foster children and their biological and
adoptive or foster parents in the foster care program. This data will
enable policymakers and researchers to develop more effective polices
and support mechanisms tailored to the needs of AI/AN children and
their families.
Voluntary termination/modification of parental rights under ICWA.
In paragraph (i)(3), we require the state title IV-E agency to report
information on voluntary terminations or modifications of parental
rights under ICWA. The state title IV-E agency must complete the
information in this paragraph if it indicated the termination of
parental rights was ``voluntary'' in Sec. 1355.44(c)(5). In paragraph
(i)(3)(i) through (iii), in accordance with 25 CFR 23.125, the state
title IV-E agency must indicate whether the consent to termination of
parental or Indian custodian rights was:
<bullet> Executed in writing.
<bullet> Recorded before a court of competent jurisdiction.
<bullet> Accompanied with a certification by the court that the
terms and consequences of consent were explained on the record in
detail and were fully understood by the parent or Indian custodian in
accordance with 25 CFR 23.125(a) and (c).
ACF did not receive comments suggesting changes to the proposal for
this paragraph, thus we finalize this data element as proposed. In
general, five commenters expressed support for this element. Another
commenter opposed this data element saying the data elements proposed
to be collected were ``process oriented,'' lend themselves more to in-
depth individual case review than to quantitative reporting,'' are not
captured in their existing data system, ``would need to be identified
through time consuming case-by-case review of individual court
orders,'' and that ``this type of data analysis would more effectively
be accomplished through case review processes.'' ACF continues to
believe that this data element is a key protection of ICWA (89 FR
13653) and aims to fulfill the statutory requirements of the AFCARS
mandate by providing comprehensive national information on the status
of adoptive and foster children and their biological and adoptive or
foster parents in the foster care program. It also seeks to address the
lack of data on AI/AN children. This data may enable policymakers and
researchers to develop more effective polices and support mechanisms
tailored to the needs of AI/AN children and their families.of data on
AI/AN children. This data may enable policymakers and researchers to
develop more effective polices and support mechanisms tailored to the
needs of AI/AN children and their families.
Removals under ICWA. In paragraph (i)(4), the state title IV-E
agency must report information on removals under ICWA, for each removal
date that is reported in paragraph (d)(1). In paragraph (i)(4)(i), the
state title IV-E agency must indicate whether the court order for
foster care placement was made as a result of clear and convincing
evidence that continued custody of the Indian child by the parent or
Indian custodian was likely to result in serious emotional or physical
damage to the Indian child in accordance with 25 U.S.C. 1912(e) and 25
CFR 23.121(a). In paragraph (i)(4)(ii), the state title IV-E agency
must indicate whether the evidence presented for foster care placement,
as reported in paragraph (i)(4)(i), included the testimony of a
qualified expert witness in accordance with 25 U.S.C. 1912(e) and 25
CFR 23.121(a). In paragraph (i)(4)(iii), the state title IV-E agency
must indicate whether the evidence presented for foster care placement,
as reported in paragraph (i)(4)(i), indicates that prior to each
removal date reported in paragraph (d)(1) of this section, active
efforts have been made to prevent the breakup of the Indian family and
that those efforts were unsuccessful in accordance with 25 U.S.C.
1912(d).
Comment: Twenty commenters requested adding data elements on
``voluntary removals under ICWA,'' stating that collecting this
information would ``help remedy a statutory hole within ICWA.''
Further, they stated that 25 U.S.C. 1913 ``does not offer the same
procedural due process protections found under the involuntary
proceedings as 25 U.S.C. 1912 does.'' They said that in practice,
``very few voluntary foster care placements, such as those done via a
safety plan with the state agency or under the Families First
Prevention Services Act in Title IV-E,'' meet the requirements of 25
U.S.C. 1913, thus collecting this data would ``help with education on
this issue and to ensure federal coordination between enforcement of
Title IV-E funding goals and ICWA's protections.'' However, commenters
did not provide further details to inform such an additional data
collection.
Response: ACF did not add a data element on ``voluntary foster care
removals under ICWA.'' The NPRM did not indicate that we were
considering collecting data on such removals, and therefore, we will
not finalize a new data element without public input and Tribal
consultation on issues such as what constitutes a voluntary foster
placement under ICWA and which requirements in 25 U.S.C. 1913 are most
important to collect in AFCARS.
Comment: One commenter recommended adding a data element on when
states enter into voluntary service agreements with parents prior to a
child custody proceeding.
Response: We did not add a data element on this for several
reasons. ICWA statute and BIA regulations do not require the state to
provide a notice to Tribes when they engage in pre-removal voluntary
agreements with a child's parents. AFCARS does not capture information
about services provided to the family prior to the child entering
foster care, thus it would not be feasible to have states report this
information. The state is not required to report information in AFCARS
until a child enters the Out-of-Home Care Reporting Population. Lastly,
the NPRM did not indicate that we were considering collecting data on
pre-removal voluntary services agreements and we would want further
public input and Tribal consultation before adding this as a new data
element.
Comment: One commenter asked for a measurable or clear definition
of ``active
[[Page 96580]]
efforts'' and recommended adding data elements on whether an active
efforts finding was made to preserve and reunify the family and the
timing in the case of such finding.
Response: We did not add a data element on this because reporting
whether active efforts were made to preserve and reunify the family are
reported in paragraph (i)(4)(iii). We did not add data elements to
report the timing of active efforts decisions because there is no need
for this information to be reported to ACF to be aggregated at the
national level. A definition of ``active efforts'' is not needed or
appropriate in AFCARS because BIA regulations already define ``active
efforts'' (25 CFR 23.2).
Available ICWA foster care and pre-adoptive placement preferences.
In paragraph (i)(5), the state title IV-E agency must report which
foster care or pre-adoptive placements (reported in Sec.
1355.44(e)(1)) that meet the placement preferences of ICWA in 25 U.S.C.
1915(b) and (c) were willing to accept placement for the child, from a
list of five options. The following five options in paragraph (i)(5)(i)
through (v) are: A member of the Indian child's extended family (as
defined in ICWA); a foster home licensed, approved, or specified by the
Indian child's Tribe; an Indian foster home licensed or approved by an
authorized non-Indian licensing authority; an institution for children
approved by an Indian Tribe or operated by an Indian organization which
has a program suitable to meet the Indian child's needs; and a
placement that complies with the order of preference for foster care or
pre-adoptive placements established by an Indian child's Tribe. The
state title IV-E agency must indicate in each paragraph (i)(5)(i)
through (v) ``yes,'' or ``no,'' or ``not applicable.'' If the Indian
child's Tribe established a different order of preference by resolution
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must
complete paragraph (i)(5)(v) and leave paragraph (i)(5)(i) through (iv)
blank.
ACF did not receive comments for changes to our proposal for this
paragraph, thus we finalize this data element as proposed. In general,
five commenters expressed support for this data element and one
commenter supported the element and said they will need to make changes
to their electronic case management system to capture information to
report this data element. Two commenters opposed this data element,
stating that information on placement histories is already reported to
AFCARS and this data element does not add ``sufficient value'' compared
to the effort to report it. ACF believes that this data element is a
key protection of ICWA (89 FR 13653) and aims to fulfill the statutory
requirements of the AFCARS mandate by providing comprehensive national
information on the status of adoptive and foster children and their
biological and adoptive or foster parents in the foster care program.
It also seeks to address the lack of data on AI/AN children. We believe
that this data may enable policymakers and researchers to develop more
effective polices and support the needs of AI/AN children and their
families. Additionally, a commenter stated that the collection of this
data may show where resources, training and recruitment efforts might
be needed to increase the number of available preferred placement
options. Another commenter said that the placement preferences are
crucial to keeping families together, and this data may aid in
understanding the needs of AI/AN children and tribal communities, and
respecting the intent of ICWA. Establishing this requirement will not
be duplicative because while placement information is reported in
AFCARS at Sec. 1355.44(e), that information is not specifically asking
about available placements.
Foster care and pre-adoptive placement preferences under ICWA. In
paragraph (i)(6), the state title IV-E agency must report whether each
of the Indian child's foster care or pre-adoptive placements (reported
in Sec. 1355.44(e)(1)) meet the placement preferences of ICWA at 25
U.S.C. 1915(b) and (c) by indicating with whom the Indian child is
placed from a list of six response options: a member of the Indian
child's extended family; a foster home licensed, approved, or specified
by the Indian child's Tribe; an Indian foster home licensed or approved
by an authorized non-Indian licensing authority; an institution for
children approved by an Indian Tribe or operated by an Indian
organization which has a program suitable to meet the Indian child's
needs; placement that complies with the order of preference for foster
care or pre-adoptive placements established by an Indian child's Tribe;
or placement does not meet ICWA placement preferences.
ACF did not receive comments suggesting changes to our proposal for
this paragraph, thus we finalize this data element as proposed. Five
commenters expressed support for this data element and one commenter
supported the element and said they will need to make changes to their
electronic case management system to capture information to report this
data element. Two commenters opposed this data element, stating that
reporting data related to ICWA placement preference without additional
context is not useful when developing policy or program changes and
there are multiple factors that determine whether a child is placed
within ICWA placement preference or not. ACF believes that this data
element is a key protection of ICWA (89 FR 13653) and aims to fulfill
the statutory requirements of the AFCARS mandate by providing
comprehensive national information on the status of adoptive and foster
children and their biological and adoptive foster parents in the foster
care program. It also seeks to address the lack of data on AI/AN
children. We believe that this data may enable policymakers and
researchers to develop more effective polices and support the needs of
AI/AN children and their families. A commenter said that collecting
information on placement preferences may help ensure that children grow
up in culturally appropriate environments that maintain their
connections with their families, Tribes, and heritage, provide an
understanding around placement preferences, and identify areas for
improvement in serving AI/AN children and families, including cross-
system collaborations between local and state child welfare agencies
and Tribes.
Good cause under ICWA and Basis for good cause, foster care. For
placements that do not meet the ICWA placement preferences (reported in
paragraph (i)(6)), the state title IV-E agency must report in paragraph
(i)(7) whether the court determined by clear and convincing evidence,
on the record or in writing, a good cause to depart from the ICWA
placement preferences in accordance with 25 U.S.C. 1915(b) or to depart
from the placement preferences of the Indian child's Tribe in
accordance with 25 U.S.C. 1915(c). If the response is ``yes,'' then the
state title IV-E agency must complete paragraph (i)(8), in which we
propose to require that the state title IV-E agency report the state
court's basis for determining good cause to depart from the ICWA
placement preferences. The state title IV-E agency must indicate
``yes'' or ``no'' in each paragraph (i)(8)(i) through (v):
<bullet> Request of one or both of the Indian child's parents.
<bullet> Request of the Indian child.
<bullet> The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the placement preferences in ICWA at 25
U.S.C. 1915, but none has been located.
[[Page 96581]]
<bullet> The extraordinary physical, mental, or emotional needs of
the Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the placement
preferences live.
<bullet> The presence of a sibling attachment that can be
maintained only through a particular placement.
Comment: In general, five commenters expressed support for this
data element and one commenter supported the element and said they will
need to make changes to their electronic case management system to
capture information to report this data element. Two commenters opposed
this data element, stating that reporting data related to ICWA
placement preference without additional context is not useful when
developing policy or program changes and there are multiple factors
that determine whether a child is placed within ICWA placement
preference or not.
Response: We believe that this data element is a key protection of
ICWA (89 FR 13653) and aims to fulfill the statutory requirements of
the AFCARS mandate by providing comprehensive national information on
the status of adoptive and foster children and their biological and
adoptive foster parents in the foster care program. It also seeks to
address the lack of data on AI/AN children. We believe that this data
may enable policymakers and researchers to develop more effective
polices and support mechanisms tailored to the needs of AI/AN children
and their families. A commenter said that gathering data on which of
the possible good cause exceptions was relied upon may help states,
Tribes, and advocates get a better sense of where they need to focus
their efforts to increase the number of preferred placement options.
Comment: One commenter suggested adding data elements on whether a
good cause finding was made to deviate from ICWA's placement
preferences, the basis of the good cause finding, and how good cause
was reached.
Response: We did not add any of the suggested data elements because
whether a good cause finding was made and the basis for good cause will
already be collected in paragraph (i)(7)-(8) and (12)-(13) of this
final rule. In reference to collecting good cause information using a
qualitative method of collection, we did not add data elements on that
because it is impossible to collect narrative information in AFCARS and
for ACF to aggregate such information into national statistics.
Active Efforts. In paragraph (i)(9), the state title IV-E agency
must report whether it made active efforts to prevent the breakup of
the Indian family in accordance with 25 U.S.C. 1912(d) and 25 CFR 23.2.
Comment: One commenter suggested adding data elements on the
details on active efforts, such as whether they were culturally
appropriate services and the standard to measure culturally appropriate
services.
Response: We did not add these data elements for several reasons as
it represents a data collection outside the scope of the NPRM. We
understand that it is important to provide culturally appropriate
services, however, adding more details for active efforts without much
more context would be difficult to interpret and burdensome.
Additionally, there is no need or use for this information to be
reported to ACF to be aggregated at the national level. This data
element only collects information on whether the state provided active
efforts (yes or no) and not the types of efforts provided. Therefore,
it is not possible to ascertain whether services were culturally
responsive or how they were measured because we do not have any
measurements for this type of information. Lastly, there is no
definition of ``culturally appropriate'' services outlined in statute
or regulations and therefore, no guidelines on how to report such
information.
Comment: One commenter suggested adding a definition of active
efforts to AFCARS.
Response: We did not make any changes to the final rule. A
definition is not needed or necessary because the element cross-
references to the citation in the BIA regulations for the definition of
``active efforts'' (25 CFR 23.2).
Comment: One commenter suggested adding data elements to collect
data on the steps that the state title IV-E agency took to make active
efforts ``using a qualitative method instead of a quantitative
method.''
Response: We did not add data elements on this because adding more
details for active efforts without much more context would be difficult
to interpret and burdensome. Also, it is impossible for AFCARS to
collect in AFCARS narrative information and for ACF to aggregate this
information into national statistics due to the wide variation in what
could be written.
Available ICWA adoptive placements. If the state title IV-E agency
indicated the child exited to adoption in Sec. 1355.44(g)(3) Exit
reason, the state title IV-E agency must report in paragraph (i)(10)
which adoptive placements from a list of four were willing to accept
placement of the child. The following four options in paragraphs
(i)(10)(i) through (iv) are: a member of the Indian child's extended
family; other members of the Indian child's Tribe; other Indian
families; a placement that complies with the order of preference
placements established by an Indian child's Tribe. If the Indian
child's Tribe established a different order of preference by resolution
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must
complete paragraph (i)(10)(iv) and leave paragraph (i)(10)(i) through
(iii) blank.
ACF did not receive comments suggesting changes to our proposal for
this paragraph, thus we finalize this data element as proposed. In
general, five commenters expressed support for this data element and
one commenter supported the element and said they will need to make
changes to their electronic case management system to capture
information to report this data element. Two commenters opposed this
data element, stating that reporting data related to ICWA placement
preference without additional context is not useful when developing
policy or program changes and there are multiple factors that determine
whether a child is placed within ICWA placement preference or not.
ACF believes that this data element is a key protection of ICWA (89
FR 13653) and aims to fulfill the statutory requirements of the AFCARS
mandate by providing comprehensive national information on the status
of adoptive and foster children and their biological and adoptive
foster parents in the foster care program. It also seeks to address the
lack of data on AI/AN children. We believe that this data may enable
policymakers and researchers to develop more effective polices and
support mechanisms tailored to the needs of AI/AN children and their
families. A commenter said that collecting information on placement
preferences may help ensure that children grow up in culturally
appropriate environments that maintain their connections with their
families, Tribes, and heritage, provide an understanding around
placement preferences, and identify areas for improvement in serving
AI/AN children and families, including cross-system collaborations
between local and state child welfare agencies and Tribes.
Adoption placement preferences under ICWA. If the state title IV-E
agency indicated the child exited to adoption in Sec. 1355.44(g)(3)
Exit reason, the state title IV-E agency must report in paragraph
(i)(11) whether the child's adoptive placement meets the adoptive
placement preferences of ICWA in 25 U.S.C. 1915(a) or (c) by indicating
with whom the Indian child is placed from a list of the following five
options: a
[[Page 96582]]
member of the Indian child's extended family; other members of the
Indian child's Tribe; other Indian families; placement that complies
with the order of preference for adoptive placements established by an
Indian child's Tribe; or placement does not meet ICWA placement
preferences.
Comment: In general, five commenters expressed support for this
data element and one commenter supported the element and said they will
need to make changes to their electronic case management system to
capture information to report this data element. Two commenters opposed
this data element, stating that information on placement histories is
already reported to AFCARS and this data element does not add
``sufficient value'' compared to the effort to report it.
Response: We believe that this data element is a key protection of
ICWA (89 FR 13653) and aims to fulfill the statutory requirements of
the AFCARS mandate by providing comprehensive national information on
the status of adoptive and foster children and their biological and
adoptive foster parents in the foster care program. It also seeks to
address the underrepresentation of data on AI/AN children. We believe
that this data may enable policymakers and researchers to develop more
effective polices and support mechanisms tailored to the needs of AI/AN
children and their families. A commenter said that collecting
information on placement preferences may help ensure that children grow
up in culturally appropriate environments that maintain their
connections with their families, Tribes, and heritage, provide an
understanding around placement preferences, and identify areas for
improvement in serving AI/AN children and families, including cross-
system collaborations between local and state child welfare agencies
and Tribes.
Comment: One commenter suggested adding data elements on: whether a
guardianship or adoption of a child was with a Tribal member, the
child's Tribe, other; whether the placement preferences were provided;
and whether placement preferences were accommodated.
Response: We did not add any data elements because AFCARS already
collects whether the adoptive parent or guardian is a member of an
Indian Tribe in Sec. 1355.44(h)(4) and (9). We do not collect the name
of a Tribe when a child exits to adoption or guardianship because we do
not have a need for this information aggregated at the national level.
The data elements on placement preferences in this final rule will
provide information on whether the preferences were followed and
whether the child was placed for adoption with ``a member of the Indian
child's extended family,'' ``other members of the Indian child's
Tribe,'' or ``other Indian families.
Good cause under ICWA and Basis for good cause, adoption. For
placements that do not meet the ICWA placement preferences (as reported
in paragraph (i)(11)), ACF proposes to require that the state title IV-
E agency indicate in paragraph (i)(12) whether the court determined by
clear and convincing evidence, on the record or in writing, a good
cause to depart from the ICWA placement preferences under 25 U.S.C.
1915(a) or to depart from the placement preferences of the Indian
child's Tribe under 25 U.S.C. 1915(c). If the response for paragraph
(i)(12) is ``yes,'' then the state title IV-E agency must complete
paragraph (i)(13), in which we propose to require that the state title
IV-E agency report the state court's basis for determining good cause
to depart from the ICWA placement preferences. The state title IV-E
agency must indicate ``yes'' or ``no'' in each paragraph (i)(13)(i)
through (v):
<bullet> Request of one or both of the child's parents.
<bullet> Request of the Indian child.
<bullet> The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the adoptive placement preferences in ICWA
at 25 U.S.C. 1915, but none has been located.
<bullet> The extraordinary physical, mental, or emotional needs of
the Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the adoptive
placement preferences live.
<bullet> The presence of a sibling attachment that can be
maintained only through a particular adoptive placement.
Comment: In general, five commenters expressed support for this
data element and one commenter supported the element and said they will
need to make changes to their electronic case management system to
capture information to report this data element. Two commenters opposed
this data element, stating that reporting data related to ICWA
placement preference without additional context is not useful when
developing policy or program changes and there are multiple factors
that determine whether a child is placed within ICWA placement
preference or not.
Response: We believe that this data element is a key protection of
ICWA (89 FR 13653) and aims to fulfill the statutory requirements of
the AFCARS mandate by providing comprehensive national information on
the status of adoptive and foster children and their biological and
adoptive foster parents in the foster care program. It also seeks to
address the underrepresentation of data on AI/AN children. We believe
that this data may enable policymakers and researchers to develop more
effective polices and support mechanisms tailored to the needs of AI/AN
children and their families. A commenter said that collecting
information on placement preferences may help ensure that children grow
up in culturally appropriate environments that maintain their
connections with their families, Tribes, and heritage, provide an
understanding around placement preferences, and identify areas for
improvement in serving AI/AN children and families, including cross-
system collaborations between local and state child welfare agencies
and Tribes.
Comment: One commenter suggested adding data elements on: whether a
good cause finding was made to deviate from ICWA's placement
preferences; the basis of the good cause finding; and how good cause
was reached using a qualitative data collection method to obtain data
that is informative and serves as a foundation for training and support
needs, regarding ICWA.
Response: We did not add any data elements because whether a good
cause finding was made and the basis for good cause will already be
collected in paragraph (i)(7)-(8) and (12)-(13) of this final rule. In
reference to collecting good cause information using a qualitative
method of collection, ACF did not add data elements as suggested
because it is impossible for AFCARS to collect narrative information
and for ACF to aggregate this information into national statistics.
V. Regulatory Impact Analysis
Congressional Review Act
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-
[[Page 96583]]
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 rule does not meet the criteria set forth in 5 U.S.C. 804(2).
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, requires) requires Federal agencies to determine, to the extent
feasible, a rule's impact on small entities, explore regulatory options
for reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. The term ``small
entities,'' as defined in the RFA, comprises small businesses, not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. HHS considers a rule to have a
significant impact on a substantial number of small entities if it has
at least a three percent impact on revenue on at least 5 percent of
small entities. However, the Secretary certifies, under 5 U.S.C.
605(b), as enacted by the RFA (Pub. L. 96-354), that this rulemaking
will not result in a significant impact on a substantial number of
small entities. This rule does not affect small entities because it is
applicable only to state title IV-E agencies. Therefore, an initial
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. Section 202 of UMRA
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any one year of
$100 million in 1995 dollars, updated annually for inflation. In 2024,
that threshold is approximately $183 million. This rule does not
contain mandates that will impose spending costs on state, local, or
Tribal governments in the aggregate, or on the private sector, in
excess of the threshold.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to determine
whether a policy or regulation may negatively affect family well-being.
If the agency determines a policy or regulation negatively affects
family well-being, then the agency must prepare an impact assessment
addressing seven criteria specified in the law. ACF concluded it is not
necessary to prepare a family policymaking assessment (see Pub. L. 105-
277) because this rule would not have any impact on the autonomy or
integrity of the family as an institution.
Executive Order 13132
Executive Order 13132 on Federalism requires that Federal agencies
consult with state and local government officials in the development of
regulatory policies with Federalism implications. Consistent with
Executive Order 13132, ACF solicited comments from state and local
government officials on the 2024 NPRM and considered them in finalizing
this rule. See sections II through IV of the preamble, where we address
the elements of the federalism summary impact statement: the extent of
the agency's prior consultation with State and local officials, a
summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met.
Regulatory Planning and Review Executive Orders 12866, 13563, and 14094
Executive Orders 12866, 13563, and 14094 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 is supplemental to, and reaffirms the principles,
structures, and definitions governing regulatory review as established
in Executive Order 12866, emphasizing the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. Section 3(f) of Executive Order 12866 defines
``a significant regulatory action'' and was amended by Executive Order
14094 to mean ``any regulatory action that is likely to result in a
rule that may: (1) have an annual effect on the economy of $200 million
or more . . . or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
Tribal governments or communities; (2) create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) materially alter the budgetary impacts of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues for which
centralized review would meaningfully further the President's
priorities, or the principles set forth in the Executive Order, as
specifically authorized in a timely manner by the Administrator of OIRA
in each case''. A regulatory impact analysis must be prepared for rules
determined to be significant regulatory actions within the scope of
section 3(f)(1) of Executive Order 12866. ACF consulted OMB and
determined that this rule meets the criteria for a significant
regulatory action under Executive Order 12866 and was subject to OMB
review.
Costs and Benefits
AFCARS is the only comprehensive case-level data set on the
incidence and experiences of children who are in out-of-home care under
the placement and care of the title IV-E agency or who are under a
title IV-E adoption or guardianship assistance agreement. The statute
requires that AFCARS provide comprehensive national information with
respect to these children. Collecting robust ICWA-related data will
provide the major benefit of allowing ACF to better understand the
underlying reasons for the disproportionality of AI/AN child
involvement in the child welfare system.
Federal reimbursement under title IV-E will be available for a
portion of the costs that state title IV-E agencies will incur as a
result of the revisions in this rule, depending on each state title IV-
E agency's cost allocation plan, information system, and other factors.
Estimated costs to the Federal Government are provided below in the
Burden estimate section. ACF estimates the Federal portion of the
overall information collection costs to be approximately $2,486,304
annually.
Alternatives Considered
Federal agencies must justify the need for regulatory action and
consider a range of policy alternatives. We speak to two alternatives
that were considered and rejected.
<bullet> ACF considered not seeking to expand the ICWA related data
elements in AFCARS. An alternative course of action would be to do
nothing and leave the requirements at 45 CFR 1355.44 in place because
they were streamlined in the 2020 final rule in response to comments
solicited at that time. ACF rejected this option because of the
[[Page 96584]]
reasons described earlier in the final rule. Under this alternative,
state title IV-E agencies would continue to report the ICWA-related
data required through the 2020 final rule. However, this information
would not be robust enough to provide the data on AI/AN children needed
to understand their experiences in the foster care system.
<bullet> ACF also considered the alternative of implementing a
process to monitor ICWA's procedural protections through a case review
outside of AFCARS. ACF decided against that approach because we believe
that requiring state title IV-E agencies to collect and report
information related to the more detailed aspects of ICWA's procedural
protections via AFCARS is preferable because it will result in
comprehensive national data (Sec. 479(c)(2) and (3) of the Act (42
U.S.C. 679(c)(2) and (3))). The fact that the statutory penalties for
noncompliant AFCARS submissions apply to data under this final rule may
incentivize agencies to provide timely and complete data submissions
(Sec. 474(f) of the Act (42 U.S.C. 674)). (Note that agencies are
afforded an opportunity to correct and resubmit noncompliant data
files, as outlined in 45 CFR 1355.46).
Paperwork Reduction Act
This rule contains information collection requirements (ICRs) that
are subject to review by OMB under the Paperwork Reduction Act (PRA) of
1995, 44 U.S.C. 3501-3520. The PRA sought to minimize government-
imposed burdens from information collections on the public. In keeping
with the notion that government information is an asset, it also is
intended to improve the practical utility, quality, and clarity of
information collected, maintained, and disclosed. The PRA 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)). A description of the PRA provisions is given
in the following paragraphs with an estimate of the annual burden. To
fairly evaluate whether an information collection should be approved by
OMB, the Department solicits comment on the following issues:
<bullet> The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
<bullet> The accuracy of our estimate of the information collection
burden.
<bullet> The quality, utility, and clarity of the information to be
collected.
<bullet> Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
Information collection for AFCARS is currently authorized under OMB
number 0980-0267. This rule contains information collection
requirements in Sec. 1355.44 the Out-Of-Home Care Data File that the
Department has submitted to OMB for its review. This final rule
requires state title IV-E agencies to report ICWA-related information
for children who are in the Out-of-Home Care Reporting Population
(Sec. 1355.42(a)) for the data elements in Sec. 1355.44(b) and (i).
2024 NPRM Comments
There were few comments made on the burden and costs of the 2024
NPRM and fewer provided estimated burden hours and cost amounts. ACF
did not make changes to the burden estimates in this final rule based
on this information because there was not enough detailed information
to draw any different conclusions than we did in calculating the burden
estimates for the 2024 NPRM. OMB did not receive comments in response
to the 2024 NPRM. Thus, what follows is a burden estimate for this
final rule, using the 2024 NPRM burden estimate since we did not make
substantive changes in this final rule. Changes in the final rule
estimate are attributed to updated input numbers, such as labor rate,
number of children in foster care, and adding several additional data
points to be reported.
Eleven commenters (including states, organizations, and one
individual) expressed a concern that states will struggle with
implementing this final rule, even if they have a CCWIS, and that
burden will vary greatly among states depending on the number of ICWA-
eligible children in their reporting population, e.g., it is possible
that states with large populations may have data collection methods
already in place and can more easily adapt to the requirements. Five
states said the 2024 NPRM will impose ``significant'' fiscal, staffing,
system changes, and time burden on states. An individual said that the
proposal is ``an unnecessary recordkeeping . . . cost'' to the state.
One organization and two states said that child welfare workers are
already ``overburdened,'' and that ``data entry . . . would take time
away from direct casework.'' One state added that while reimbursement
may be available under title IV-E to support the activities required
for implementation, ``ICWA is not a funding source and no additional
funding appears to be made available'' for implementation and so the
proposal is a ``burden on state funds to cover state match and for
costs associated with foster children that do not meet IV-E eligibility
requirements.''
Two states, one Tribe, and one organization expressed support for
the 2024 NPRM, saying that the value of the data proposed outweighs the
burden and cost of updating systems. Two states said that the
additional data is necessary and fulfills unmet data needs. One Tribe
and one organization countered arguments for state burdens by saying
that if states are practicing ``good case management,'' then they will
have access to court documents. One Tribe added that ``although there
will be additional efforts and resources required to collect this new
data, for over 30 years since the establishment of the AFCARS in 1993,
there has been little effort to close this gap in data collection for
AI/AN children and families until recently.'' One organization also
said that due to the ``data deficit . . . Native children and families
have carried the burden of overrepresentation in child welfare systems,
negatively impacting their wellbeing, without data-driven approaches to
address the families' needs or to prevent system involvement.''
Three of the nine commenters who expressed concern about burden
provided estimates for burden hours and cost amounts and we summarize
their input below:
<bullet> One commenter said they have eight children receiving
foster care services to whom ICWA applies, which is less than 0.13% of
their Out-of-Home Care Reporting Population. They estimated total costs
for developing and implementing the proposed modifications from the
2024 NPRM to their existing legacy system would be approximately
$491,556.30. They explained that this would comprise one-time costs of
$419,400.52 and $15,504.08 to verify and adjust existing procedures to
comply with the requirements each year after the changes are
implemented. They also estimated a cost of $56,651.70 for the tasks
associated with staff training and administrative tasks to deploy
system updates state-wide. They estimated that it will take
approximately 10,396 hours to complete the initial work and 344 hours
for ongoing work after the changes are implemented.
<bullet> One commenter estimated total initial project costs,
including implementation and training, to be $201,751. This comprised
1,200 hours of technical staff time and a cost of $188,400 for
development and implementation of CCWIS and AFCARS changes. They
estimated total hours for staff for development, testing,
implementation, and training is 450
[[Page 96585]]
hours for a total cost of $13,351. They estimated ongoing costs for
data quality oversight to be $2,967 based on previous projects.
Regarding staff time to enter the additional data elements, they
estimated burden hours to be 12,952 per year, for a total annual cost
of $367,577. They included some estimates for staff labor rates being
$26.84 per hour for a Family Services Specialist and $33.00 per hour
for a Family Services Specialist Supervisor.
<bullet> Another commenter only provided an estimated burden hour
amount of cumulatively 687 hours annually collecting and entering the
proposed data.
While ACF considered the information provided by these three
commenters, information from these few entities cannot be used to
change average burden hours/cost across all states, as the burden
calculations in this rule follow. However, we used this limited
information to see whether the generalized estimates that follow (which
are spread across all states and do not account for states of very
different sizes and of which, some may have larger populations of
children served than others) may be in line with what some states may
experience in implementing this final rule. Since these are rough
estimates based on the information available to ACF, we believe they
are consistent.
Burden Estimate
Discussion: The following are estimates. ACF estimates the burden
and costs associated with this final rule using the estimates from the
2024 NPRM, which used the 2020 final rule as a base by which to
estimate the burden of adding the ICWA-related data elements. The 2020
final rule estimates can be seen beginning at 85 FR 28421. This final
rule has a narrow focus in that ACF is adding data elements related to
ICWA's procedural protections applicable only to state title IV-E
agencies. Because ICWA does not apply to Tribal title IV-E agencies,
they do not have to report the data elements in this final rule, thus
they are not included in this burden estimate.
Respondents: The respondents comprise 52 state title IV-E agencies.
Recordkeeping Burden: Searching data sources, gathering
information, and entering the information into the system, developing
or modifying procedures and systems to collect, validate, and verify
the information and adjusting existing ways to comply with AFCARS
requirements (including testing), administrative tasks associated with
training personnel on the AFCARS requirements (e.g., reviewing
instructions, developing the training and manuals), and training
personnel on AFCARS requirements. ACF understands that actual burden
hours and costs will vary due to sophistication and capacity of
information systems and availability of staff and financial resources,
thus this is an average across states. ACF wants to note that
regardless of the size of the state's population of children in out-of-
home care to whom ICWA applies, recordkeeping tasks such as training
and modifications to case management systems and electronic case files
will still need to occur because the state must be prepared to report
the applicable AFCARS data elements should a child enter the reporting
population.
Reporting burden: Extracting the information for AFCARS reporting
and transmitting the information to ACF, which includes modifying, or
developing a new data file for reporting.
Assumptions for Estimates
ACF made several assumptions when calculating the burden and costs.
First, we will describe the 2024 NPRM estimates and then describe how
the estimates changed for this final rule.
<bullet> 2024 NPRM Estimated Burden Hours: The 2024 NPRM burden
estimates were used by calculating the increase in data elements
proposed over the 2020 final rule.
[cir] 2024 NPRM Recordkeeping Burden Hours: The 2024 NPRM estimated
the total recordkeeping burden to be 48,183 hours annually.
[ssquf] The 2024 NPRM estimated an average 44,875 hours annually
for searching data sources, gathering information, and entering the
information into the case management system for children who enter
foster care. This comprised of 0.20 hours annually for each child who
entered foster care for the data elements in Sec. 1355.44(b)(3)
through (6) (a 5 percent increase in data points to report for all
children who enter foster care) and 0.76 hours annually for the data
elements in Sec. 1355.44(i) (a 19 percent increase in data points to
report for children to whom ICWA applies). ACF is again using a child's
reported race as AI/AN as a proxy for a child to whom ICWA applies.
These percentage increases were derived from the increase in reporting
over the 2020 final rule, which was 4.02 hours annually for each child
who entered foster care for all 2020 final rule data points and 206,812
children who had entered foster care in FY 2022.
[ssquf] The 2024 NPRM estimated 1,608 hours annually for developing
or modifying standard operating procedures and IT systems to collect,
validate, and verify the information and adjust existing ways to comply
with the AFCARS requirements, and testing. This comprises 335 hours
annually for the data elements in Sec. 1355.44(b)(3) through (6) (a 5
percent increase in data points to report for all children who enter
foster care) and 1,273 hours annually for the data elements in Sec.
1355.44(i) (a 19 percent increase in data points to report for children
to whom ICWA applies). The 2020 final rule estimated 6,700 hours for
these tasks for all 2020 final rule data points.
[ssquf] The 2024 NPRM estimated 1,621 annual burden hours for
modifying IT systems and adjust existing ways to comply with the
proposal. This comprises 354 hours annually for the data elements in
Sec. 1355.44(b)(3) through (6) (a 5 percent increase in data points to
report for all children who enter foster care) and 1,346 hours annually
for the data elements in Sec. 1355.44(i) (a 19 percent increase in
data points to report for children to whom ICWA applies).
Administrative tasks associated with training personnel on the
requirements include reviewing instructions and developing training and
manuals. ACF understands that training hours will vary depending on the
size of the agency's workforce needing training and the current
training conducted regarding ICWA, therefore ACF assumes that
implementing the data elements here will be incorporated in ongoing
training efforts. The 2020 final rule estimated 7,086 hours for all
2020 final rule data points.
[cir] 2024 NPRM Reporting Burden Hours: The 2024 NPRM estimated the
total reporting burden to be 8 hours annually. This comprises 2 hours
annually for each child who entered foster care for the data elements
in Sec. 1355.44(b)(3) through (6) (a 5 percent increase in data points
to report for all children who enter foster care) and 6 hours annually
for the data elements in Sec. 1355.44(i) (a 19 percent increase in
data points to report for children to whom ICWA applies). Reporting
burden is compiling the data file and transmitting to ACF. The 2020
final rule estimated reporting would take 34 hours annually extracting
and reporting information for all 2020 final rule data points.
<bullet> Number of children in out-of-home care: To determine the
number of children for which state title IV-E agencies will have to
report the expanded ICWA-related data in the Out-of-Home Care Data File
on average, ACF used the most recent FY 2022 AFCARS data available
(report #30): 186,602 children entered in foster care during FY 2022.
Of those, 4,276 children were
[[Page 96586]]
reported to have a race of AI/AN. ACF used the number of children who
entered foster care rather than the entire population of children in
foster care because states will not have to collect and report all data
elements on all children in foster care.
<bullet> Additional and Revised Data Elements for State Title IV-E
Agencies: The current Out-of-Home Care Data File contains 186 data
points (see Appendix A of Technical Bulletin #20). ACF proposes to
revise or add in the Out-Of-Home Care Data File approximately 49 data
points related to state title IV-E agencies reporting the new/revised
ICWA-related information. The reason why the number of data points
increased is because ACF added a data element in Sec.
1355.44(b)(3)(vii) and added 3 data elements in Sec.
1355.44(i)(1)(iii)(A)-(C). Thus, the percentage increase in reporting
over the 2020 final rule represents revisions to the current ICWA-
related data elements to expand the information to be reported in Sec.
1355.44(b)(3)-(6), which represents a six percent increase in data
points for state title IV-E agencies to report for all children who
enter foster care over the 2020 final rule (11 new data points/186
current data points = 0.06). New data points to be added in Sec.
1355.44(i) represents a 20 percent increase in data points for state
title IV-E agencies to report for children to whom ICWA applies (38 new
data points/186 current data points = 0.20). These percent increases in
data points will be used in calculating the reporting and recordkeeping
burden for state title IV-E agencies as a result of this final rule.
ACF understands from states during the implementation period of the
2020 final rule and comments to the 2024 NPRM that to report the
revised/new information related to ICWA, much work will need to be
accomplished to examine paper or electronic case notes, court records,
court orders, and other documents to locate the needed information and
enter it into the case management system. ACF also understands that the
burden will vary across jurisdictions, depending on how robust the
agency's electronic case management system is and the availability of
documents.
<bullet> Systems changes: As of May 2023, 46 state title IV-E
agencies have declared that they are implementing or intend to
implement a Comprehensive Child Welfare Information Systems (CCWIS)
(see 45 CFR 1355.50 et seq. for requirements). ACF recognizes that
state title IV-E agencies will require revisions to electronic case
management systems to meet the requirements proposed in this final
rule, regardless of CCWIS status. As more states build CCWIS, ACF
anticipates it will lead to more efficiency in reporting. However, ACF
understands from the 2024 NPRM that the bulk of the information that
would be used to respond to the expanded ICWA-related data collection
is located in paper files or court documents.
<bullet> Labor rate: ACF assumes that there will be a mix of the
following positions working to meet both the one-time and annual
requirements of this rule. ACF understands that approximately half of
the state title IV-E agencies will utilize a contract to implement IT/
case management systems changes to comply with an eventual final rule
based on state advance planning documents approved by ACF. To inform
this estimate, ACF also reviewed 2023 Bureau of Labor Statistics data
for job roles in categories of information technology (IT) and computer
programming, administrative, management, caseworkers, subject matter
experts, and legal staff and used the average hourly wage for each job
role. ACF used the job roles for social services and legal staff who
may be employed by the child welfare agency and systems/engineer staff
who may be employed by the agency or retained by a contract to build or
revise case management systems. The wages are described below.
[cir] Office and Administrative Support Occupations (43-0000)
(e.g., Administrative Assistants, Data Entry, Legal Secretaries,
Government Program Eligibility Interviewers, Information and Record
Clerks) at $23.05, Social and Community Service Managers (11-9151) at
$40.10, Community and Social Service Operations (21-0000) (e.g., Social
Workers, Child and Family Social Workers, Counselors, Social Service
Specialists) at $28.36, Social Workers (21-1020) at $30.23, Child,
Family, and School Social Workers (21-2021) at $29.68, and Paralegals
and Legal Assistants (23-2011) at $31.95, Computer Information and
Systems Managers (11-3021) at $86.88, Computer and Mathematical
Occupations (15-0000) (e.g., computer and information analysts,
computer programmers, and database and systems administrators) at
$54.39, Information Security Analysts (15-1212) at $59.97, Computer
Hardware Engineers (17-2061) at $71.04, Database Administrators (15-
1242) at $50.39, Database Architects (15-1243) at $65.88, and Computer
Programmers (15-1251) at $51.80. The rounded average labor rate for
these wages is $48 and to account for associated overhead costs, ACF
doubled this rate, which is $96.
Calculations for Estimates
Recordkeeping Burden Estimate for State Title IV-E Agencies: Adding
the burden hours estimated in the bullets below produced a total of
51,789 recordkeeping hours annually, as summarized below. As stated
earlier in the ``Assumptions for Estimates'' discussion, the bullet on
``Additional and Revised Data Elements for State Title IV-E Agencies''
above, ACF estimates that this final rule has an increase in reporting
of 6 percent in data points for state title IV-E agencies to report for
all children who enter foster care in Sec. 1355.44(b)(3) through (6)
(11 new data points/186 current data points = 0.06); and 19 percent in
new data points in Sec. 1355.44(i) for state title IV-E agencies to
report for children to whom ICWA applies (38 new data points/186
current data points = 0.20).
<bullet> ACF estimates that searching data sources, gathering
information, and entering the information into the case management
system for children who enter foster care would take on average 48,205
hours annually. The 2020 final rule estimated these tasks to be 4.02
hours annually for each child who entered foster care for all 2020
final rule data points. For this final rule, the expanded ICWA-related
information to be added in:
[cir] Section 1355.44(b)(3) through (6) is a 6 percent increase in
data points to report for all children who enter foster care (4.02 x
0.06 = 0.24 hours). These data points apply to all children who enter
foster care (0.24 hours x 186,602 children = 44,784 hours).
[cir] Section 1355.44(i) is a 20 percent increase in data points to
report for children to whom ICWA applies (4.02 x 0.20 = 0.80 hours).
ACF again used a child's reported race as AI/AN as a proxy for a child
to whom ICWA applies (0.80 hours x 4,276 children = 3,421 hours).
[cir] The total estimate of searching/gathering/entering
information into the case management system is 48,205 annual burden
hours (44,784 + 3,421 = 48,205).
<bullet> Developing or modifying standard operating procedures and
IT systems to collect, validate, and verify the information and adjust
existing ways to comply with the AFCARS requirements, and testing ACF
estimates would take 1,742 hours annually. The 2020 final rule
estimated 6,700 hours for these tasks for all 2020 final rule data
points. For this final rule, the expanded ICWA-related information to
be added in:
[cir] Section 1355.44(b)(3) through (6) is a 6 percent increase in
data points to
[[Page 96587]]
report for all children who enter foster care (6,700 x 0.06 = 402
hours).
[cir] Section 1355.44(i) is a 20 percent increase in data points to
report for children to whom ICWA applies (6,700 x 0.20 = 1,340 annual
hours).
[cir] The total estimate of developing or modifying standard
operating procedures and IT systems is 48,205 annual burden hours (402
+ 1,340 = 1,742).
<bullet> Administrative tasks associated with training personnel on
the requirements include reviewing instructions, developing training
and manuals and training personnel on the requirements and ACF
estimates it will take on average 1,842 annual burden hours. ACF
understands that training hours will vary depending on the size of the
agency's workforce needing training and the current training conducted
regarding ICWA, therefore ACF assumes that implementing the data
elements here will be incorporated in ongoing training efforts. The
2020 final rule estimated 7,086 hours for all 2020 final rule data
points. For this final rule, the information to be added in:
[cir] Section 1355.44(b)(3) through (6) is a 6 percent increase in
data points to report for all children who enter foster care (7,086 x
0.06 = 425 hours).
[cir] Section 1355.44(i) is a 20 percent increase in data points to
report for children to whom ICWA applies (7,086 x 0.20 = 1,417 hours).
[cir] The total estimate of administrative tasks associated with
training personnel to comply with the final rule is 1,842 annual burden
hours (425 + 1,417 = 1,842).
Thus, the total recordkeeping burden estimate is 48,205 hours
searching and gathering information + 1,742 hours developing or
modifying IT systems + 1,842 hours administrative tasks = 51,789 hours.
Reporting Burden Estimate for State Title IV-E Agencies: ACF
estimates that extracting the additional ICWA-related information for
AFCARS reporting and transmitting the information to ACF would take on
average 9 hours annually for all states. The 2020 final rule estimated
reporting would take 34 hours annually extracting and reporting
information for all 2020 final rule data points. For this final rule,
the expanded ICWA-related information to be added in:
<bullet> Section 1355.44(b)(3) through (6) is a 6 percent increase
in data points to report for all children who enter foster care (34 x
0.06 = 2 hours).
<bullet> Section 1355.44(i) is a 20 percent increase in data points
to report for children to whom ICWA applies (34 x 0.20 = 7 hours).
The total estimate of reporting the expanded ICWA related
information to comply with the final rule is 9 annual burden hours (2 +
7 = 9).
----------------------------------------------------------------------------------------------------------------
Number of Average burden Total annual
Collection-AFCARS for State Title IV-E agencies Number of responses per hours per burden hours
respondents respondent response for NPRM
----------------------------------------------------------------------------------------------------------------
Recordkeeping................................... 52 2 497.97 51,789
Reporting....................................... 52 2 0.09 9
---------------------------------------------------------------
Total....................................... .............. .............. .............. 51,798
----------------------------------------------------------------------------------------------------------------
Annualized Cost to the Federal Government
Federal reimbursement under title IV-E will be available for a
portion of the costs that state title IV-E agencies will incur because
of the revisions in this final rule and actual costs will vary,
depending on each agency's cost allocation, information system, and
other factors. ACF estimates that it would cost the Federal government
approximately $2,486,304 for reimbursement. For this estimate, ACF used
the 50 percent Federal financial participation (FFP) rate thus, we
estimate the costs for Federal and non-Federal to be the same.
----------------------------------------------------------------------------------------------------------------
Estimate
Collection-AFCARS for State Title IV-E agencies Total annual Average hourly Total cost federal costs
burden hours labor rate (50% FFP)
----------------------------------------------------------------------------------------------------------------
Recordkeeping................................... 51,789 $96 $4,971,744 $2,485,872
Reporting....................................... 9 96 864 432
---------------------------------------------------------------
Total....................................... .............. .............. 4,972,608 2,486,304
----------------------------------------------------------------------------------------------------------------
In the above estimates, ACF acknowledges the following: (1) ACF has
used average figures for state title IV-E agencies of very different
sizes and of which, some may have larger populations of children served
than other agencies, and (2) these are rough estimates of burden and
costs based on the information available to ACF.
OMB is required to make a decision concerning the collection of
information contained in this regulation between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment is best assured of having its full effect if OMB receives it
within 30 days of publication. Written comments to OMB or the
information collection should be sent directly to the following: Office
of Management and Budget, either by fax to 202-395-6974 or by email to
<a href="/cdn-cgi/l/email-protection#d7989e859688a4a2b5babea4a4beb8b997b8bab5f9b2b8a7f9b0b8a1"><span class="__cf_email__" data-cfemail="1a5553485b45696f78777369697375745a757778347f756a347d756c">[email protected]</span></a>. Please mark faxes and emails to the
attention of the desk officer for ACF.
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 notes that consultation is triggered for a new rule
adoption that significantly affects Tribes, meaning the new rule
adoption has substantial direct effects on one or 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
[[Page 96588]]
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.
ICWA does not apply to Tribal title IV-E agencies, and therefore, they
do not have to report the data elements in this final rule. However,
while E.O. 13175 and ACF's Tribal Consultation Policy do not formally
apply to this final rule, ACF still sought Tribal input on the 2024
NPRM during the comment period via Tribal consultation.
ACF announced the Tribal consultation in writing via a ``Dear
Tribal Leader Letter'' (DTLL) on March 6, 2024 noting the date,
purpose, virtual location, and registration process for consultation.
The DTLL was also shared in the publication ``News from CB,'' via the
Children's Bureau (CB), the Resource Center for Tribes, and through
CB's program offices and community partners. Tribal Consultation was
held via a Zoom webinar on April 3, 2024, at 3:30 p.m. Eastern and
there were 55 attendees. During the webinar, CB provided a background
and history of regulation development and an overview of the NPRM. ACF
invited general comments on the NPRM and comments on the potential
benefits and disadvantages of including this data in AFCARS. In
general, participants expressed support for the proposal and said that
Tribes have advocated for including these data elements for a long
time. One participant expressed their view that states do not have a
sufficient understanding of the importance of ICWA and as a result, do
not work well with Tribes on these issues. The participant felt that
the proposed elements will give Tribes data that they can use to
communicate with states regarding ICWA and Tribal children who are in
the placement and care responsibility of states. A few participants did
not provide a specific comment but instead asked questions related to
interpreting ICWA's requirements, which are outside the scope of this
final rule.
Additionally, prior to publication of the NPRM, the Department
addressed collecting ICWA-related information in AFCARS at the
Secretary's Tribal Advisory Council (STAC), which is a group of tribal
leaders that advises the Secretary on Tribal affairs, meetings in 2022.
In September 2022, ACF updated the STAC of ACF's intention to seek
revision of AFCARS to propose ICWA-related data elements similar to
what was in the 2016 final rule. The members of the STAC have
consistently expressed support for restoring ICWA-related data elements
to AFCARS.
Meg Sullivan, Principal Deputy Assistant Secretary for the
Administration for Children and Families, performing the delegable
duties of the Assistant Secretary for Children and Families
List of Subjects in 45 CFR Part 1355
Administrative costs, Adoption Assistance, Child welfare, Fiscal
requirements (title IV-E), Grant programs--social programs, Statewide
information systems.
(Catalog of Federal Domestic Assistance Program Number 93.658,
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child
Welfare Services--State Grants).
Dated: November 25, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, ACF proposes to amend 45
CFR part 1355 as follows:
PART 1355--GENERAL
0
1. The authority citation for part 1355 continues to read as follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42
U.S.C. 1302.
0
2. Amend Sec. 1355.43 by revising paragraph (b) to read as follows:
Sec. 1355.43 Data reporting requirements.
* * * * *
(b) Out-of-home care data file. A title IV-E agency must report the
information required in Sec. 1355.44 pertaining to each child in the
out-of-home care reporting population, in accordance with the
following:
(1) The title IV-E agency must report the most recent information
for the applicable data elements in Sec. 1355.44(a), (b), and (c).
(2) The title IV-E agency must report the most recent information
and all historical information for the applicable data elements in
Sec. 1355.44(d) through (i).
(3) For state title IV-E agencies only, regarding only the ICWA-
related data elements in Sec. 1355.44(b)(3) through (6) and (i): For a
child who entered the out-of-home care reporting population as defined
in Sec. 1355.42(a) prior to October 1, 2028 and exits the out-of-home
care reporting population on or after October 1, 2028, the state title
IV-E agency must report information for the data described in Sec.
1355.44(b)(4)(i) and (ii) and (6)(i) only.
* * * * *
0
3. Effective Oct. 1, 2028, amend Sec. 1355.44 by revising paragraphs
(b)(3) through (6), and adding paragraph (i) to read as follows:
Sec. 1355.44 Out-of-home care data file elements.
* * * * *
(b) * * *
(3) Researching reason to know a child is an ``Indian Child'' as
defined in the Indian Child Welfare Act (ICWA). For state title IV-E
agencies only: Indicate whether the state title IV-E agency researched
whether there is reason to know that the child is an Indian child as
defined in ICWA. Complete each paragraph (b)(3)(i) through (vii) of
this section.
(i) Indicate whether the state title IV-E agency inquired with the
child's biological or adoptive mother. Indicate ``yes,'' ``no,'' or
``the biological or adoptive mother is deceased.''
(ii) Indicate whether the state title IV-E agency inquired with the
child's biological or adoptive father. Indicate ``yes,'' ``no,'' or
``the biological or adoptive father is deceased.''
(iii) Indicate whether the state title IV-E agency inquired with
the child's Indian custodian if the child has one. Indicate ``yes,''
``no,'' or ``child does not have an Indian custodian.''
(iv) Indicate whether the state title IV-E agency inquired with the
child's extended family. Indicate ``yes'' or ``no.''
(v) Indicate whether the state title IV-E agency inquired with the
child. Indicate ``yes'' or ``no.''
(vi) Indicate whether the domicile or residence of the child, the
child's parent, or the child's Indian custodian is on a reservation or
in an Alaska Native village. Indicate ``yes'' or ``no.''
(vii) Indicate whether the state title IV-E agency inquired with
the child's legal guardian if the child has one. Indicate ``yes,''
``no,'' or ``child does not have a legal guardian.''
(4) Child's Tribal membership and reason to know. For state title
IV-E agencies only:
(i) Indicate whether the child is a member of or eligible for
membership in a federally recognized Indian Tribe. Indicate ``yes,''
``no,'' or ``unknown''.
(ii) If the state title IV-E agency indicated ``yes'' in paragraph
(b)(4)(i) of this section, indicate all federally recognized Indian
Tribe(s) that may potentially be the Indian child's Tribe(s).
(iii) Indicate whether the state title IV-E agency knows or has
reason to know, that the child is an Indian child as defined in ICWA.
Indicate ``yes'' or ``no.'' If the state title IV-E agency indicates
``yes,'' then it must complete
[[Page 96589]]
paragraph (b)(4)(iv) of this section. If the state title IV-E agency
indicates ``no,'' then it must leave paragraph (b)(4)(iv) of this
section blank.
(iv) Indicate the date that the state title IV-E agency first
discovered the information indicating the child is or may be an Indian
child as defined in ICWA.
(5) Notification. For state title IV-E agencies only:
(i) Indicate whether the Indian child's Tribe(s) was sent legal
notice prior to the first child custody proceeding in accordance with
25 U.S.C. 1912(a). Indicate ``yes'' or ``no.'' If the state title IV-E
agency indicates ``yes,'' then it must complete paragraph (b)(5)(ii) of
this section. If the state title IV-E agency indicates ``no,'' then it
must leave paragraph (b)(5)(ii) of this section blank.
(ii) Indicate the Indian Tribe(s) that were sent notice as required
in ICWA at 25 U.S.C. 1912(a).
(iii) Indicate whether the Indian child's parent or Indian
custodian was sent legal notice prior to the first child custody
proceeding in accordance with 25 U.S.C. 1912(a). Indicate ``yes'' or
``no.''
(6) Application of ICWA. (i) Indicate whether a court determined
that ICWA applies or that the court is applying ICWA because it knows
or has reason to know a child is an Indian child as defined in ICWA in
accordance with 25 CFR 23.107(b)(2). Indicate ``yes, ICWA applies,''
``no, ICWA does not apply,'' or ``no court determination.'' If the
state title IV-E agency indicates ``yes, ICWA applies,'' then it must
complete paragraphs (b)(6)(ii) and (iii) and paragraph (i) of this
section; otherwise leave blank.
(ii) Indicate the date that the court determined that ICWA applies
or determined to apply ICWA in accordance with 25 CFR 23.107(b)(2).
(iii) Indicate the Indian Tribe that the court determined is the
Indian child's Tribe for ICWA purposes.
* * * * *
(i) Data elements related to ICWA. Reporting information in
paragraph (i) is for state title IV-E agencies only. Report information
in this paragraph (i) only if the state title IV-E agency indicated
``yes, ICWA applies'' in paragraph (b)(6)(i) of this section.
Otherwise, the state title IV-E agency must leave paragraph (i) of this
section blank.
(1) Request to transfer to Tribal court. (i) Indicate whether there
was a request to transfer to Tribal court for each removal date
reported in paragraph (d)(1) of this section. Indicate ``yes'' or
``no.'' If the state title IV-E agency indicates ``yes,'' the state
title IV-E agency must complete paragraph (i)(1)(ii) of this section.
If the state title IV-E agency indicates ``no,'' the state title IV-E
agency must leave paragraph (i)(1)(ii) of this section blank.
(ii) Indicate whether there was a denial of the request to transfer
to Tribal court. Indicate ``yes'' or ``no.'' If the state title IV-E
agency indicated ``yes,'' then the state title IV-E agency must
complete paragraph (i)(1)(iii) of this section. If the state title IV-E
agency indicated ``no,'' the state title IV-E agency must leave
paragraph (i)(1)(iii) of this section blank.
(iii) Indicate whether each reason for denial in paragraph
(i)(1)(iii)(A) through (C) of this section ``applies'' or ``does not
apply.''
(A) Either of the parents objected to transferring the case to the
Tribal court.
(B) The Tribal court declined the transfer to the Tribal court.
(C) The state court determined good cause exists for denying the
transfer to the Tribal court.
(2) Involuntary termination/modification of parental rights under
ICWA. If the state title IV-E agency indicated ``involuntary'' in
paragraph (c)(5) of this section, the state title IV-E agency must
complete paragraphs (i)(2)(i) through (iii) of this section. Otherwise,
the state title IV-E agency must leave paragraphs (i)(2)(i) through
(iii) of this section blank.
(i) Indicate whether the state court found beyond a reasonable
doubt that continued custody of the Indian child by the parent or
Indian custodian is likely to result in serious emotional or physical
damage to the Indian child in accordance with 25 U.S.C. 1912(f).
Indicate ``yes'' or ``no.''
(ii) Indicate whether the court decision to involuntarily terminate
parental rights included the testimony of one or more qualified expert
witnesses in accordance with 25 U.S.C. 1912(f). Indicate ``yes'' or
``no.''
(iii) Indicate whether, prior to terminating parental rights, the
court concluded that active efforts have been made to prevent the
breakup of the Indian family and that those efforts were unsuccessful
in accordance with 25 U.S.C. 1912(d). Indicate ``yes'' or ``no.''
(3) Voluntary termination/modification of parental rights under
ICWA. If the state title IV-E agency indicated ``voluntary'' in
paragraph (c)(5) of this section, indicate whether the consent to
termination of parental or Indian custodian rights was:
(i) Executed in writing. Indicate ``yes'' or ``no.''
(ii) Recorded before a court of competent jurisdiction. Indicate
``yes'' or ``no.''
(iii) Accompanied with a certification by the court that the terms
and consequences of consent were explained on the record in detail and
were fully understood by the parent or Indian custodian in accordance
with 25 CFR 23.125(a) and (c). Indicate ``yes'' or ``no.''
(4) Removals under ICWA. For each removal date reported in
paragraph (d)(1) of this section:
(i) Indicate whether the court order for foster care placement was
made as a result of clear and convincing evidence that continued
custody of the Indian child by the parent or Indian custodian was
likely to result in serious emotional or physical damage to the Indian
child in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a).
Indicate ``yes'' or ``no.''
(ii) Indicate whether the evidence presented for foster care
placement as indicated in paragraph (i)(4)(i) of this section included
the testimony of a qualified expert witness in accordance with 25
U.S.C. 1912(e) and 25 CFR 23.121(a). Indicate ``yes'' or ``no.''
(iii) Indicate whether the evidence presented for foster care
placement as indicated in paragraph (i)(4)(i) of this section indicates
that prior to each removal reported in paragraph (d)(1) of this section
that active efforts have been made to prevent the breakup of the Indian
family and that those efforts were unsuccessful in accordance with 25
U.S.C. 1912(d). Indicate ``yes'' or ``no.''
(5) Available ICWA foster care and pre-adoptive placement
preferences. Indicate which foster care or pre-adoptive placements,
(which are reported in paragraph (e)(1) of this section and meet the
placement preferences of ICWA in 25 U.S.C. 1915(b) and (c)) were
willing to accept placement for the child. Indicate in each paragraph
(i)(5)(i) through (v) of this section ``yes,'' ``no,'' or ``not
applicable.'' If the Indian child's Tribe established a different order
of preference by resolution in accordance with 25 U.S.C. 1915(c), the
state title IV-E agency must complete paragraph (i)(5)(v) of this
section and leave paragraph (i)(5)(i) through (iv) blank.
(i) A member of the Indian child's extended family.
(ii) A foster home licensed, approved, or specified by the Indian
child's Tribe.
(iii) An Indian foster home licensed or approved by an authorized
non-Indian licensing authority.
(iv) An institution for children approved by an Indian Tribe or
operated by an Indian organization which has a program suitable to meet
the Indian child's needs.
[[Page 96590]]
(v) A placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
Tribe.
(6) Foster care and pre-adoptive placement preferences under ICWA.
Indicate which foster care or pre-adoptive placements, reported in
paragraph (e)(1) of this section, meet the placement preferences of
ICWA in 25 U.S.C. 1915(b) and (c) by indicating with whom the Indian
child is placed. Indicate ``a member of the Indian child's extended
family,'' ``a foster home licensed, approved, or specified by the
Indian child's Tribe,'' ``an Indian foster home licensed or approved by
an authorized non-Indian licensing authority,'' ``an institution for
children approved by an Indian Tribe or operated by an Indian
organization which has a program suitable to meet the Indian child's
needs,'' ``a placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
Tribe'' or ``placement does not meet ICWA placement preferences.'' If
the state IV-E agency indicated ``placement does not meet ICWA
placement preferences,'' then the state IV-E agency must complete
paragraph (i)(7) of this section. Otherwise, the state title IV-E
agency must leave paragraph (i)(7) of this section blank.
(7) Good cause under ICWA, foster care. Indicate whether the court
determined by clear and convincing evidence, on the record or in
writing, a good cause to depart from the ICWA placement preferences in
accordance with 25 U.S.C. 1915(b) or to depart from the placement
preferences of the Indian child's Tribe in accordance with 25 U.S.C.
1915(c). Indicate ``yes'' or ``no.'' If the state title IV-E agency
indicated ``yes,'' then the state title IV-E agency must indicate the
basis for good cause in paragraph (i)(8) of this section. If the state
title IV-E agency indicated ``no,'' then the state title IV-E agency
must leave paragraph (i)(8) of this section blank.
(8) Basis for good cause, foster care. If the state title IV-E
agency indicated ``yes'' to paragraph (i)(7) of this section, indicate
the state court's basis for determining good cause to depart from ICWA
placement preferences by indicating ``yes'' or ``no'' in each paragraph
(i)(8)(i) through (v) of this section:
(i) Request of one or both of the Indian child's parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the placement preferences in ICWA at 25
U.S.C. 1915 but none has been located.
(iv) The extraordinary physical, mental, or emotional needs of the
Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the placement
preferences live.
(v) The presence of a sibling attachment that can be maintained
only through a particular placement.
(9) Active efforts. Indicate whether the state title IV-E agency
made active efforts to prevent the breakup of the Indian family in
accordance with 25 U.S.C 1912(d) and 25 CFR 23.2. Indicate ``yes'' or
``no.''
(10) Available ICWA adoptive placements. If the state title IV-E
agency indicated the child exited to adoption in paragraph (g)(3) of
this section, indicate which adoptive placements that meet the
placement preferences in ICWA at 25 U.S.C. 1915(a) and (c) were willing
to accept placement. Indicate in each paragraph (i)(10)(i) through (iv)
of this section ``yes,'' ``no,'' or ``not applicable.'' If the Indian
child's Tribe established a different order of preference by resolution
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must
complete paragraph (i)(10)(iv) of this section and leave paragraph
(i)(10)(i) through (iii) of this section blank.
(i) A member of the Indian child's extended family.
(ii) Other members of the Indian child's Tribe.
(iii) Other Indian families.
(iv) A placement that complies with the order of preference
placements established by an Indian child's Tribe.
(11) Adoption placement preferences under ICWA. If the state title
IV-E agency indicated the child exited to adoption in paragraph (g)(3)
of this section, indicate whether the adoptive placement meets the
adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) and (c) by
indicating with whom the Indian child is placed. Indicate ``a member of
the Indian child's extended family,'' ``other members of the Indian
child's Tribe,'' ``other Indian families,'' ``a placement that complies
with the order of preference for adoptive placements established by an
Indian child's Tribe,'' or ``placement does not meet ICWA placement
preferences.'' If the state IV-E agency indicated ``placement does not
meet ICWA placement preferences,'' then the state IV-E agency must
complete paragraph (i)(12) of this section; otherwise, leave paragraph
(i)(12) of this section blank.
(12) Good cause under ICWA, adoption. If the state title IV-E
agency indicated ``placement does not meet ICWA placement preferences''
in paragraph (i)(11) of this section, indicate whether the court
determined by clear and convincing evidence, on the record or in
writing, a good cause to depart from the ICWA adoptive placement
preferences under 25 U.S.C. 1915(a) or to depart from the adoptive
placement preferences of the Indian child's Tribe under 25 U.S.C.
1915(c). Indicate ``yes'' or ``no.'' If the state title IV-E agency
indicated ``yes,'' then the state title IV-E agency must indicate the
basis for good cause in paragraph (i)(13) of this section. If the state
title IV-E agency indicated ``no,'' then the state title IV-E agency
must leave paragraph (i)(13) of this section blank.
(13) Basis for good cause, adoption. If the state title IV-E agency
indicated ``yes'' in paragraph (i)(16), indicate the state court's
basis for determining good cause to depart from ICWA adoptive placement
preferences by indicating ``yes'' or ``no'' in each paragraph
(i)(13)(i) through (v) of this section.
(i) Request of one or both of the child's parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the adoptive placement preferences in ICWA
at 25 U.S.C. 1915 but none has been located.
(iv) The extraordinary physical, mental, or emotional needs of the
Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the adoptive
placement preferences live.
(v) The presence of a sibling attachment that can be maintained
only through a particular adoptive placement.
[FR Doc. 2024-28072 Filed 12-3-24; 8:45 am]
BILLING CODE P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.