[Federal Register: February 26, 2008 (Volume 73, Number 38)] [Rules and Regulations] [Page 10337-10378] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr26fe08-13] [[Page 10337]] ----------------------------------------------------------------------- Part II Department of Health and Human Services ----------------------------------------------------------------------- Administration for Children and Families ----------------------------------------------------------------------- 45 CFR Part 1356 Chafee National Youth in Transition Database; Final Rule [[Page 10338]] ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families 45 CFR Part 1356 RIN 0970-AC21 Chafee National Youth in Transition Database AGENCY: Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (DHHS). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule adds new regulations to require States to collect and report data to ACF on youth who are receiving independent living services and on the outcomes of certain youth who are in foster care or who age out of foster care. The final rule implements the data collection requirements of the Foster Care Independence Act of 1999 (Pub. L. 106-169) as incorporated into the Social Security Act. DATES: Effective Date: April 28, 2008. Compliance Date: A State must implement and comply with this rule no later than October 1, 2010. FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director of Policy, Children's Bureau, Administration on Children, Youth and Families, 202/ 401-5789 or by e-mail at kathleen.mchugh@acf.hhs.gov. SUPPLEMENTARY INFORMATION: The preamble to this final rule is organized as follows: I. Background A. Legislative History B. Rule Development II. The National Youth in Transition Database (NYTD) A. Overview of Changes and Regulatory Provisions B. Implementation Timeframes C. Discussion of Non-Regulated Issues III. Section-by-Section Discussion of Final Rule IV. Impact Analysis I. Background A. Legislative History Each year thousands of young people are discharged from State foster care systems because they reach the age at which they are no longer eligible for out-of-home placement services. During the early 1980s, research and anecdotal evidence indicated that many young people who emancipated from foster care experienced numerous difficulties in their attempts to achieve self-sufficiency. Rather than making a successful transition to living on their own, a significant percentage of these youth experienced homelessness, unemployment, victimization, and dependence on various types of public assistance. In response to this problem, in 1986 President Reagan signed into law the Title IV-E Independent Living Initiative (Pub. L. 99-272). The law provided States with funding to make independent living services available to youth in foster care between the ages of 16 and 21. Several improvements were made to this law by the Foster Care Independence Act of 1999 (Pub. L. 106-169) signed by President Clinton on December 14, 1999. This law established the John H. Chafee Foster Care Independence Program (CFCIP) at section 477 of the Social Security Act (the Act). Compared to Public Law 99-272, the Foster Care Independence Act provides States with greater funding and flexibility to carry out programs to assist youth in making the transition from foster care to self-sufficiency. The legislation provides States with funding to identify and make available independent living services to youth ``who are likely to remain in foster care'' until at least age 18--thus removing the minimum age requirements for the receipt of independent living services. Public Law 106-169 also requires States to provide assistance and services to youth who age out of foster care, until age 21, and allows States to use part of their funding to provide room and board assistance to these youth. On January 17, 2002, President Bush signed into law the Promoting Safe and Stable Families Amendments of 2001 (Pub. L. 107-133), which provided States with funding specifically for post-secondary education and training vouchers for youth who are eligible for CFCIP services. The Foster Care Independence Act of 1999 requires ACF to develop and implement a data collection system, in consultation with various stakeholders, to perform two functions: (1) Track the independent living services States provide to youth; and, (2) develop outcome measures that may be used to assess State performance in operating their independent living programs. With regard to services, the Act requires us to identify data elements to track the number and characteristics of children receiving services under section 477 of the Act and the type and quantity of services States provide. With regard to outcomes, section 477(f)(1) of the Act requires that we develop outcome measures, including measures of educational attainment, receipt of a high school diploma, employment, avoidance of dependency, homelessness, non-marital childbirth, incarceration, and high-risk behaviors, and the data elements to track States' performance on the outcome measures. The law also requires that ACF impose a penalty in an amount that ranges from one to five percent of the State's annual allotment on any State that fails to comply with the reporting requirements. ACF must base a State's penalty amount on the degree of noncompliance (section 477(e)(2) and (3) of the Act). B. Rule Development In developing the rule we engaged in an extensive consultation process on the information that would comprise the NYTD. Our consultation included national discussion groups with child welfare agency administrators and independent living coordinators at the State, Tribal, and local levels; public and private agency youth service providers; technical assistance providers; child welfare advocates; group home staff and administrators; and current and former foster youth and foster parents. We also held conference calls with independent living coordinators and information technology managers from several States. Finally, we conducted a pilot test of the draft data elements in seven States and one Indian Tribe and formed a work group of national associations, resource centers and State and Tribal representatives to analyze the results of the pilot test. After gathering the information from consultation and conducting further internal deliberations, we published a notice of proposed rulemaking (NPRM) on July 14, 2006 (71 FR 40346-40382) that outlined the National Youth in Transition Database proposal. During the 60-day comment period, we received 67 substantive and unduplicated letters containing approximately 225 comments and questions on the proposal. The commenters included representatives from 38 State child welfare agencies and 14 national child welfare organizations, associations or advocacy groups, among others. We received widespread support for many of the general concepts of the NYTD, particularly the variety of service and outcomes data elements. Commenters had a number of suggestions for minor modifications or clarifications that they believed would enhance the rule and the NYTD. Commenters also raised a number of questions on matters that are beyond the scope of the NYTD proposal and final [[Page 10339]] rule. Most concerns from commenters centered around the timeframe for implementing the NYTD, the parameters of the reporting populations, cost and burden issues generally and particularly with regard to tracking youth who are no longer in foster care and the effect of penalties on State services and youth. II. The National Youth in Transition Database A. Overview of Changes and Regulatory Provisions We did not significantly change the final NYTD from the proposal in most areas. Although many of the thoughtful comments led us to reconsider aspects of our proposals and make numerous technical revisions, we found compelling reasons to retain key elements of the NYTD. We were convinced to make changes in two major areas: (1) To extend the time States have to develop their information systems and internal procedures to be able to collect and report data to the NYTD, and (2) to exclude education and training vouchers from the Federal funds that are subject to a penalty if a State does not comply with the NYTD requirements. These major changes, along with all other changes, are discussed in more detail throughout the preamble. A final overview of the NYTD follows. States will report to NYTD four types of information about youth: services provided to youth, youth characteristics, outcomes, and basic demographics. In terms of services, States will identify the type of independent living services or financial assistance that the State provides to youth. There are 11 broad service categories: Independent living needs assessment. Academic support. Post-secondary educational support. Career preparation. Employment programs or vocational training. Budget and financial management. Housing education and home management training. Health education and risk prevention. Family support and healthy marriage education. Mentoring. Supervised independent living. The State also will identify the characteristics of each youth receiving independent living services, such as their education level and tribal membership. In terms of outcomes, States must collect and report information on youth who are or were in foster care that we can use to measure the collective outcomes of these youth and potentially assess the State's performance in this area. We will collect data on six general outcomes: Increase youth financial self-sufficiency. Improve youth educational (academic or vocational) attainment. Increase youth connections with adults. Reduce homelessness among youth. Reduce high-risk behavior among youth. Improve youth access to health insurance. The States must survey young people who are or were previously in foster care regarding their outcomes information. States will collect information on these youth at three specific intervals: On or about the youth's 17th birthday while the youth is in foster care; two years later on or about the youth's 19th birthday; and again on or about the youth's 21st birthday. States must report on 19- and 21-year-olds who participated in data collection at age 17 while in foster care, even if they are no longer in the State's foster care system or receiving independent living services at ages 19 and 21. States will collect outcome information on a new baseline population of youth (17-year-olds in foster care) every three years. Finally, States will identify basic demographic information, such as sex and race of each youth in each of the reporting populations. States will report all four types of information (services, characteristics, outcomes if applicable in that year, and basic demographics) to the NYTD semi-annually on a Federal fiscal year basis. ACF will evaluate a State's data file against file submission and data compliance standards designed to ensure that we have quality data on youth. States that fail to achieve any of the compliance standards for a reporting period will be given an opportunity to submit to us corrected data. If a State's corrected data does not comply with the data standards, the State will be subject to a penalty in an amount that ranges from one to five percent of the State's annual CFCIP funding, depending on the level of noncompliance. The funds subject to a penalty will not include the State's education and training voucher allotment. B. Implementation Timeframe Implementation of the NYTD will occur on October 1, 2010. This means that a State must begin to collect data on October 1, 2010 (Federal fiscal year (FFY) 2011) and submit the first report period data to us by May 15, 2011, in accordance with the NYTD requirements in this final rule. This later implementation date is in direct response to comments raised by stakeholders in response to the NPRM. In the NPRM preamble, we indicated that States would have at least a year between issuance of a final rule and the implementation date of the NYTD. We did not establish a specific implementation date at that time. However, a large number of commenters who represented the perspectives of States, advocates and other stakeholders, believed that a year was not enough time to comply with the NYTD requirements for a number of reasons. We carefully considered the information provided to us through comment, and reviewed our rationale for the one-year implementation timeframe. We found that the commenters raised issues to us that we had not fully considered in developing our original estimates of how long States would need to comply with this rule and we agree that a change is warranted. Most commenters stated that implementing the NYTD would require changes to a State's Statewide Automated Child Welfare Information System (SACWIS). These changes would take more time than we originally suggested because the NYTD provisions which relate to youth who are still in foster care or who are receiving independent living services must be incorporated into a State's SACWIS in accordance with existing SACWIS rules in 45 CFR 1355.53(b)(5)(iii) and ACF-OISM-001 (1995). Forty-four States are in some stage of SACWIS development or operation and would thus need to make these changes in their SACWIS. SACWIS changes often require a State to develop and award contracts to implement new programming and design features and secure new funding. The commenters pointed out that tight State budgets and long lead times needed to secure State appropriations mean that States are not guaranteed funding or legislative approval to implement the NYTD quickly. These combined issues can lead to a protracted period before the State has in hand final approval to even start developing a system, let alone begin the work required to change data systems to accommodate the new data requirements. We agree with these points as our own experiences interacting with States that are attempting to secure funding for SACWIS confirm that internal State processes for obtaining funding for [[Page 10340]] information system changes, and then implementing system changes take a significant amount of time. In addition to concerns about SACWIS or development of other information system capability, commenters registered significant uncertainty about States' ability to comply with the outcomes component of the NYTD in the suggested timeframe. This was of particular concern to States, given their inexperience with administering an outcomes survey over an extended time to youth who have left foster care. We have acknowledged throughout the NPRM and final rule process that the outcomes component is one of the most challenging aspects of the NYTD. As such, we believe that we must give States a sufficient opportunity to conduct planning activities and take advantage of technical assistance. Most commenters suggested that a two to three year implementation timeframe is more reasonable. We agree that a minimum of two years to implement the requirements of the NYTD is justified and have set the compliance date as October 1, 2010 accordingly. Providing less time than two years will not serve us or the States well in our mutual goals to understand and serve youth better. The later implementation date is designed to ensure that States are prepared and able to submit quality data on youth independent living services and youth outcomes. In the first year of start-up activities, ACF plans to provide intensive technical assistance to support States as they assess their system design and development needs. During the second year of start-up activities, we plan to continue technical assistance, release technical documents on file and transmission procedures, and support States as they conduct voluntary tests of their systems. All compliance standards and the associated penalties will take effect during the first year of implementation and will not be delayed further as some commenters suggested. We do, however, hope to encourage States to submit data to us voluntarily prior to the required implementation date. Doing so could mean that States are able to test their systems prior to the compliance date, and we in turn can begin providing technical assistance based on States' actual experiences. We intend to issue guidance on whether and how we may be able to accept voluntary data submissions prior to the compliance date. C. Discussion of Non-Regulated Issues We received a number of comments and questions on topics that are outside the scope of this rulemaking. Such comments addressed general topics such as technical assistance requests, performance standards, ongoing consultation between various stakeholders on the CFCIP program and NYTD, technical questions about modifying SACWIS and strategies for tracking youth. The proper forum for these requests is through the ACF regional offices and our technical assistance providers. III. Section-by-Section Discussion of Final Rule Section 1356.80 Scope This section requires the State agency that administers or supervises the administration of the Chafee Foster Care Independence Program under section 477 of the Social Security Act to comply with the data collection and reporting requirements in this final rule. We did not receive comments on this section. We made a minor modification to the section to include State agencies that ``supervise the administration'' of the CFCIP in addition to those that directly administer the program in the scope of these NYTD requirements. This modification brings the scope statement in line with the statutory requirements for an administrating or supervisory State agency in section 477(b)(2) of the Act. Section 1356.81 Reporting Population This section describes the three reporting populations of youth on whom States must obtain services and outcomes information to report to the NYTD: The served, baseline and follow-up populations. Served Population In paragraph (a), we describe the served population as youth who receive an independent living service paid for or provided by the State agency during a six-month report period. Comment: A number of commenters sought clarity on which youth comprise the served population and asked whether specific subgroups were a part of the population. Specifically, commenters asked whether tribal youth, youth involved with the juvenile justice system, youth who receive services through the staff of a group home or child care institution, and youth no longer in foster care would fall within the served population. Response: In general, a youth is in the served population if during the report period, the youth received at least one independent living service paid for or provided by the State agency. We are making a minor amendment to the final rule to remove the reference to ``services'' as only one independent living service is required during the report period for the youth to be a part of the served population. An independent living service is provided by the State agency if it is delivered by State agency staff or an agent of the State, including a foster parent, group home staff, child care institution staff or the service is provided pursuant to a contract between the State agency and a provider, agency or any other entity regardless of whether the contract includes funding for the particular service. Independent living services that are paid for or provided by the State agency can be delivered in a variety of formats. The served population is not limited on the Federal level by age, foster care status or placement type, although State eligibility rules for their independent living programs may restrict which youth receive independent living services. Therefore, tribal youth, youth involved with the juvenile justice system, youth who receive services through foster care providers and youth no longer in foster care are a part of the served population if they receive an independent living service paid for or provided by the State agency during the report period. Comment: Some commenters suggested that we gather data in some way on youth who do not receive independent living services. Some commenters suggested that we require States to identify and explain why subgroups of youth do not receive services, such as youth who were eligible for independent living services in the State and/or youth who are referred to independent living. Other commenters suggested that we capture information on youth who do not receive independent living services outside of the NYTD. Response: In developing the NPRM, we considered and rejected an approach to require States to identify and explain why youth do not receive independent living services. We explained in the NPRM that the statute's mandate is limited to collecting data on independent living services that youth receive (section 477(f)(1)(B)(i) of the Act). We believe that gathering information on why youth do not receive independent living services is better suited to research or evaluation activities and therefore we are not making a change to the final rule in this regard. We want to be clear, however, that we have designed the outcomes component of the NYTD to look at the outcomes of youth whether or not they receive independent living services that are paid for or provided by the State [[Page 10341]] agency. This outcomes information can be used in conjunction with information from the Adoption and Foster Care Analysis and Reporting System (AFCARS) to tell us more about youth who do not receive independent living services and how they fare. Comment: Some commenters urged us to expand the served population to include youth who receive independent living services that are brokered or arranged by the State agency through an agreement with other public or private agencies, rather than just those independent living services that are paid for or provided by the State agency. Commenters believed that broadening the scope of the served population would be in keeping with CFCIP State plan requirements to coordinate services with other Federal, State and local programs serving youth. Further, commenters suggested that including services that are arranged, brokered, or offered through collaboration would better reflect the range of independent living services youth may receive. Response: We carefully considered the issues raised by commenters but are not convinced that the suggestions to expand the served population, for example, to include those youth served through collaborations, agreements or other State agency arrangements that are neither paid for nor provided by the State agency, offers a significant improvement to the NYTD. We recognize that States collaborate with community partners in a variety of ways to benefit youth as required under the CFCIP State plan. However, including youth served as a result of those collaborations or otherwise arranged or brokered by the State agency in the served population is too far removed from the statutory mandate to collect data on youth served under the CFCIP. Further, we believe that expanding the served population to include youth who receive independent living services in their community that are neither paid for nor provided by the State agency would distort what we can learn about the services provided under the CFCIP. Rather, we are interested in a State collecting and reporting information on youth who receive an independent living service due to the State agency's commitment of funds or resources to provide the service. Therefore, an independent living service is provided by the State agency if it is delivered by State agency staff or an agent of the State, including a foster parent, group home staff, or child care institution staff. The service is also provided by the State agency if it is provided to the youth pursuant to a contract for such services between the State agency and a provider, public or private agency or any other entity, regardless of whether the contract includes funding for the particular service. Services that are paid for directly or indirectly by the State agency are included as well. We believe this definition of the served population is sufficiently broad, and, as such, are retaining the served population description as stated in the NPRM. Comment: A commenter thought the served population definition was too broad and suggested that we limit it to foster care youth and former foster care youth who are 17 years old and receiving independent living services. Response: As we discussed in the NPRM, the statute is clear that we are to collect data on all youth who receive independent living services under the CFCIP and does not carve out youth in foster care or former foster care youth of a certain age. Further, narrowing the reporting population in such a way may limit the information we can learn about how States are serving youth through the CFCIP. As such, we are not making the suggested change to the served population. Comment: Several commenters sought clarification on how the served population was distinct from or related to the baseline and follow-up population. Response: The NYTD has two separate but related components: independent living services and youth outcomes. The reporting populations are separate for each component, although not mutually exclusive. States are to collect and report independent living services information on youth who fall within the served population. The served population is made up of youth who have received at least one independent living service that is paid for or provided by the State agency during a six-month report period. The youth's age and foster care status is not relevant to whether he or she is in the served population. States are to collect and report outcomes information on youth who are in the baseline and follow-up populations. The baseline population is comprised of all 17-year-olds in foster care during a year in which such outcomes data is due (beginning in FFY 2011), regardless of whether the youth receives any services. The follow-up population is a subgroup of the baseline population: Youth who participated in the outcomes data collection when they were 17 years old, but who are now 19 or 21 years old. A few simple examples (that do not address sampling) illustrate how the reporting populations may overlap or diverge: Example 1. In December 2010, a youth turns 17 years old while in foster care and takes a budgeting class that is paid for by the State agency in January 2011. This youth would be part of the served population for the first report period of FFY 2011 (October 1, 2010 through March 31, 2011) and reported as receiving the ``budget and financial management'' service. The same youth would also be a part of the baseline population for whom the State must administer the outcomes survey. This is because FFY 2011 is a year in which the States must collect data on the baseline population, which is comprised of those youth in foster care who reach their 17th birthday in the FFY. Example 2. In November 2011, a different 17-year-old in foster care takes a budgeting class that is paid for by the State agency. This youth would be part of the served population for the first report period of FFY 2012. However there is no outcomes data collection due in FFY 2012, therefore, the youth is not in the baseline population. Example 3. In December 2012, the same youth from example 1 reaches 19 years old. By the end of March 2013, this youth had not received any independent living services that were paid for or provided by the State agency during the first report period (October 1, 2012 through March 31, 2013), so the youth is not a part of the served population. However, two years ago, this youth completed the outcomes survey as part of the baseline population. Therefore, the youth is a part of the follow-up population and the State is required to collect and report outcomes data for this youth. Baseline Population In paragraph (b), we describe the baseline population for the purpose of collecting outcome information as a youth who is in foster care as defined in 45 CFR 1355.20 and reaches his or her 17th birthday in FFY 2011, or reaches 17 in every third fiscal year following FFY 2011. Comment: Some commenters raised questions and concerns about the lack of clarity in the description of the baseline population. Commenters requested specific guidance on whether the baseline population included youth in juvenile justice facilities, youth in placements of a short duration, youth placed in shelter care, youth in tribal custody, youth on trial home visits, youth in unlicensed, unapproved or unpaid placements, and youth who have run away from their foster care settings. Response: We defined the baseline population as 17-year-olds in foster care [[Page 10342]] consistent with our regulatory definition of foster care in 45 CFR 1355.20 during a Federal fiscal year in which such data is required based on the implementation schedule. This means, that a youth will be in the baseline population if the youth is in foster care and 17 years old in FFYs 2011, or is in foster care and 17 years old in each third fiscal year following FFY 2011 (i.e., 2014, 2017, etc.). We made a minor change to the rule to specify the beginning fiscal year in which this data is required and the timetable upon which data on a new cohort of youth is due. The baseline population includes 17-year-old youth who are in 24- hour substitute care under the State's placement and care responsibility who are in foster family homes (whether the foster parents are relatives of or unrelated to the child), group homes, shelter care and child care institutions, regardless of whether such homes or institutions are licensed, approved or paid. The baseline population includes children who may have run away from their foster care setting but who are still in the State agency's placement and care responsibility. The baseline population also includes youth who receive title IV-E foster care maintenance payments in the placement and care of another public agency (e.g., a juvenile justice agency or tribal agency) pursuant to a title IV-E agreement under section 472(a)(2)(B)(ii) of the Act. The baseline population excludes youth in detention facilities, forestry camps, training schools and facilities primarily for the detention of youth adjudicated delinquent. The definition also excludes youth who are in the placement and care responsibility of a tribal agency unless the conditions specified above regarding title IV-E agreements apply. Youth who are at home but in the placement and care responsibility of the State agency also are excluded from the baseline reporting population, whether the State considers this a trial home visit, at-home supervision, after care or some other status. Since these youth are excluded from the baseline population, they are not in the follow-up population either. We anticipate providing more detail through technical assistance and other guidance documents on how States may ensure that they are accurately including children in the baseline population. Comment: Some commenters requested consistency between the NYTD baseline reporting population and the AFCARS foster care reporting population. One such commenter was concerned that an inconsistency would diminish our ability to analyze data across the two databases. Response: We do not believe that complete consistency between the NYTD baseline reporting population and the AFCARS foster care reporting population is necessary. AFCARS exists for a purpose separate and distinct from the NYTD. The AFCARS reporting population includes all children in foster care as defined in 45 CFR 1355.20 as does the NYTD, but extends slightly broader in specific circumstances, such as youth in detention and youth that are at home temporarily (see the ACF Child Welfare Policy Manual Section 2.7 at http://www.acf.hhs.gov/programs/ cb). We are staying consistent with the definition of foster care for the NYTD to reflect part of the population of youth a State must serve under its CFCIP: Youth in foster care who are likely to age out of foster care. Further, one of the original reasons we chose the baseline reporting population was because it represents a readily accessible population of youth to whom States can administer the survey. Finally, we do not agree that the slight differences between the AFCARS foster care and the NYTD baseline reporting populations diminish the analytic value of the NYTD. Since every youth reported in the baseline population will also be reported to AFCARS and the youth will be identified in the same way in both databases, we will have the necessary foundation for analysis of the foster care experiences of youth who are reported for their outcomes in the NYTD. Comment: One commenter suggested that we specify that in order to be included in the baseline population a youth must have been in foster care for a minimum length of time to ensure that the youth had benefited from available independent living services. Response: As we stated in the preamble to the NPRM, we decided not to require a minimum length of time in foster care because that approach overly complicated the data collection without a measurable benefit or a clear basis on which to determine the appropriate minimum length of time. We did not receive information that convinced us to change our approach and have not made this change to the final rule. Comment: A commenter asked whether youth had to be in foster care on their 17th birthday to be included in the baseline population. Response: A youth does not need to have his or her 17th birthday while in foster care, but consistent with the data collection rule in section 1356.82(a)(2), the youth must have been in foster care within 45 days following his or her 17th birthday during the specified reporting year. More detailed guidance on the reporting populations will be forthcoming in technical assistance and policy documents, as needed. Follow-up Population Paragraph (c) defines the follow-up population as youth who turn 19 or 21 years old in a certain fiscal year who participated in the State's outcomes data collection as part of the baseline population at 17 years old. Comment: Some commenters requested more clarity regarding the follow-up population or made statements that indicated their confusion about who was included in the population. A few other commenters asked specifically whether youth who remained in foster care at ages 19 and 21 would be in the follow-up population. Other commenters asked whether youth in the follow-up population at age 19 had to have participated in the outcomes data collection to be a part of the follow-up population at age 21. Response: The follow-up population is comprised solely of youth who are either 19 or 21 years old who participated in the outcomes data collection as part of the baseline population at age 17. A youth is considered to have participated at age 17 if he or she provided at least one valid answer to a question in the outcomes survey. A youth who participated in the data collection at age 17, but not at age 19 for a reason other than being deceased remains a part of the follow-up population at age 21. A youth is in the follow-up population as described regardless of the youth's foster care status at ages 19 or 21 and regardless of whether the youth ever received independent living services. Comment: A number of commenters wanted outcomes data collection to continue beyond age 21 to age 23 or older for a number of reasons. These commenters were concerned that we will get an incomplete view of college attendance and educational attainment, employment, marriage and other outcomes that are influenced by age if we stop collecting data at age 21. Alternatively, a commenter urged us not to extend the follow-up population of youth to age 23 unless there was demonstrable evidence that collecting such data was feasible. Response: We appreciate the arguments in favor of an extended follow-up data collection activity and acknowledge that the system as designed may result in limited information on some of the more age- sensitive outcomes. However, as we [[Page 10343]] stated in the NPRM, we believe that adults who are 23 years old are even more likely to decline to participate in data collection and States are more likely to lose contact with much older youth. We received many comments that echoed these same concerns for 19- and 21- year olds. We believe that requiring States to collect outcomes information on an even older population is unreasonable and better suited for research or evaluation activities. Therefore, we are not adding an older follow-up population to the final rule. Section 1356.82 Data Collection Requirements This section specifies the data collection requirements for the served, baseline and follow-up populations. In paragraph (a)(1), we require the State agency to collect information for the data elements specified in section 1356.83(b) and (c) for youth in the served population for as long as the youth receives services. Comment: A couple of commenters supported the ongoing collection of client-level data on youth who receive independent living services. Response: We agree that this is a valuable feature of the NYTD and are not making changes to the final rule. In paragraph (a)(2), we require the State agency to collect information for the data elements specified in section 1356.83(b) and (d) for the baseline population. The State agency must collect this information on a new baseline population every three years and must collect this data within certain timeframes using specific survey questions. Comment: A number of commenters supported the general concept of collecting outcomes information based on a staggered schedule with a new cohort of the baseline population (17-year-olds in foster care) beginning every three years. Two commenters suggested that we require States to reduce the time between the new cohorts of youth. Their concern was that the three-year span would lead to gaps in the data and would not be representative of youth receiving services or aging out of foster care. Response: As we stated in the preamble to the NPRM, we chose this schedule in order to avoid imposing an unnecessary burden on States. Participants in the consultation process pointed out that youth outcomes generally do not change sufficiently to justify collecting the data annually, and collecting outcome data every three years should be sufficient to document trends and address the statutory requirements. As such, no changes to the final rule are warranted. Comment: A few commenters disagreed with the requirement to collect information on youth in the baseline population within 45 days following the youth's 17th birthday as required by section 1356.82(a)(2)(i) and (ii). One such commenter believed more time was needed to engage youth who may be resistant, who had run away, were institutionalized or incarcerated at the time of their 17th birthday. The commenters requested either a 90-day timeframe or the entire six- month report period to obtain the outcomes data from the youth. Response: As stated in the preamble to the NPRM, we chose the 45- day timeframe as a compromise between requiring data collection to occur on the youth's 17th birthday and a longer timeframe which could lead to a less comparable baseline population. We still believe that the 45-day timeframe is responsive to the real-life scheduling constraints and does not create an unreasonable burden. We are, therefore, retaining the 45-day timeframe. We would like to note, however, that youth who are incarcerated or are institutionalized in a psychiatric facility or hospital would not be a part of the baseline population because they are not in foster care according to the definition in 45 CFR 1355.20 (see earlier discussion on the baseline population). Youth who have run away from their foster care setting for the 45-day time span following their 17th birthday would be a part of the baseline population, but a State could report the youth as having run away in the outcomes reporting status element (section 1356.83(g)(34)) to explain why that youth's information was not collected. In paragraph (a)(3), we require the State agency to collect information for the data elements specified in section 1356.83(b) and (e) for the follow-up population of 19- and 21-year-olds. Comment: A number of commenters suggested that ACF should collect the outcome data and track the older youth rather than the States. In their view, this approach would resolve other concerns raised related to the State's burden to collect data and penalties for State non- compliance with the data collection, and could create consistency in outcomes data collection across the country. Response: The statute mandates that we develop data collection requirements and impose penalties on States that do not comply with those requirements (section 477(e)(2) and (f) of the Act). As such, the statute creates an obligation for States to meet the data collection requirements and not the Federal government. Comment: A number of commenters asked practical questions about obtaining contact information for older youth. Specific inquiries included how to contact older youth who move out of State, using administrative databases to locate youth, or who would be the best individuals to administer the outcomes survey. Response: We will provide States with policy guidance and/or technical assistance to address these issues. We do not believe that it is appropriate to address these concerns in regulation. Comment: Some commenters were concerned that we did not regulate the method by which States must administer the outcomes survey to youth (e.g., in person, via the internet or over the phone). The concern was that this variability could impede data quality and limit the conclusions we could draw from the data. Response: We acknowledge that the method a survey is administered may impact the quality of the data. However, we believe that States are too different to offer a single approach to this data collection and we are not in a position to regulate the best way to gather the data at this time. Further, we have set file and data standards for the data, including standards for youth participation, such that States will have an incentive to gather the best data possible (see discussion in section 1356.85). We hope to overcome any remaining challenges associated with survey variability through technical assistance rather than prescriptive rules. For these reasons, we are not regulating a specific data collection methodology in response to these comments. Comment: A commenter was concerned about privacy rights or confidentiality issues that will make it difficult to track youth over time to complete the survey. Although information may be available about the youth through other systems, e.g., child support, the commenter asserts that the State cannot access that information because of confidentiality restrictions. The commenter requested that we address these issues. Response: We do not believe that there are privacy or confidentiality concerns raised by the NYTD. The youth outcome survey is voluntary for the youth to complete, and it is up to the youth how much detailed contact information he or she will provide in order to be located upon exit from foster care. We understand that there may be information available to a State to locate the youth that can only be accessed with [[Page 10344]] the youth's permission. We will provide technical assistance to States to assist them in developing appropriate methods to track youth and garner youth participation. In paragraph (b), we permit States to select a sample of 17-year- olds who participated in the outcomes data collection as a part of the baseline population to follow over time rather than the entire baseline population of youth who participated in the data collection in that State. When a State samples youth at age 17, the sample becomes the follow-up population and no further sampling of this population at ages 19 or 21 is permitted. Also in this paragraph we require a State to identify those youth in the follow-up population who are not in the sample. Comment: A commenter believed that States should not use sampling but attempt to gather outcomes data from all 19- and 21-year-olds in the follow-up population. The commenter believed that this was a reasonable suggestion given that States were required to collect outcomes data on a staggered schedule. Response: As stated in the preamble to the NPRM, we are providing States the option to sample in direct response to feedback we received during the consultation process. States requested that any outcomes survey of youth who had left foster care utilize sampling to mitigate the burden of tracking these youth. Nothing in the NYTD prohibits States that could track a subgroup of their follow-up population through sampling from collecting outcomes information on more youth or on the entire follow-up population. We are not making any changes to the final rule in response to this comment, however, we have made a change in paragraph 1356.82(b) to require States that sample to identify youth at age 19 who are not selected in the sample. This change is explained further in the discussion on section 1356.83(e). Section 1356.83 Reporting Requirements and Data Elements This section specifies the NYTD report periods, deadlines for reporting data to ACF and the data elements. In paragraph (a), we require a State to submit the required data file to ACF on a semi-annual basis, within 45 days of the end of each report period. Comment: A number of commenters offered alternative deadlines for submitting a data file to ACF that ranged from 60 to 90 days after the end of each report period. Some commenters cited concerns about having the same State workers prepare data files for the NYTD and simultaneously for AFCARS. A couple of commenters believed that in order to generate a common identifier for youth reported to both AFCARS and the NYTD that a State would need to report their data to AFCARS first. Response: Our experience has shown that States can meet the 45-day requirement for AFCARS and we expect States can meet it for the NYTD as well. We understand that States may use the same workers to extract files for AFCARS and the NYTD, but believe that 45 days is sufficient time to do both activities. Timely data is important so that ACF can conduct the analysis to share with the States and other stakeholders. We do not believe the concern about common identifiers has merit. Although we are requiring a State to submit an identifier for a youth to the NYTD that is the same as the one submitted to AFCARS in certain circumstances, the way this is accomplished is through a standard encryption routine. When applied to a State identifier, the routine will generate the same encrypted result (i.e., the common identifier) each time. The act of submitting data to AFCARS or the NYTD is not what generates the common identifier so whether the data is submitted to AFCARS or the NTYD first is inconsequential. We are not making changes in response to this comment. Comment: While one commenter supported the twice yearly reporting cycle, a number of other commenters suggested moving to an annual reporting cycle to reduce the burden on States. Some commenters believed that an annual report period would ease the burden of reporting data for States and ease penalty and outcome calculations for Federal officials. To keep the reporting cycles consistent with AFCARS, some commenters suggested moving AFCARS to an annual report period as well. Response: As stated in the preamble to the NPRM, we considered a 12-month reporting period, but believed that a longer period increases the risk of inaccurate or missing data. Further, since we want to preserve our ability to analyze NYTD data along with AFCARS data, we want comparable reporting periods. The six-month report period for AFCARS is integral to a number of ACF priorities and legislative requirements. Comment: A commenter suggested that local providers be allowed to report data directly to ACF without the involvement of the State agency in an effort to create additional efficiencies for States. Response: We disagree with the suggestion to permit local providers to report a youth's data directly to the Federal government, leaving out the State agency's involvement, for a number of reasons. The State agency is responsible for ensuring compliance with the NYTD requirements and standards under the risk of fiscal sanctions and, therefore, must be the responsible party for submitting data to ACF. Further, we do not believe that individual providers could ensure that all information on a youth (i.e., demographics, characteristics, services and outcomes, if applicable) could be reported in a single youth record as required by section 1356.83(f) if multiple providers have engaged a youth in a report period. Also, we do not see that such a process would be efficient for the State as it would have to maintain oversight of one or more entities that would submit information to ACF. However, States are not prohibited from contracting or otherwise working with private agencies to compile the information that States will ultimately submit to ACF. We are not changing the final rule to permit any entity other than the State agency to submit NYTD data to ACF. In paragraphs (b) through (e), we require the State agency to report certain data elements for each youth depending on whether the youth is a part of the served, baseline, or follow-up populations. We did not receive comments on these paragraphs. However, we are making a technical change to the reporting requirements for 19-year old youth in the follow-up population for those States that sample. In paragraph (e), we have amended the final rule to require a State that samples to identify the 19-year-old youth who participated in the outcomes data collection as part of the baseline population at age 17, who are not in the sample. This information is required so that we can determine whether the State meets the outcomes universe and participation rate standards (section 1356.85(b)). A State must identify such youth in the two semi-annual report periods for the Federal fiscal year in which the State reports actual outcomes information on 19-year-old youth who are in the sample (section 1356.83(g)(34)). States will not report information on non-sampled youth again when the youth reach the age of 21 years old. This requirement stands in contrast to our proposal as described in the NPRM for a State to identify youth who will be in the follow-up sample at age 17. We proposed that States would report that information in a separate data element entitled ``sampling status'' for the semi- annual report periods in which baseline outcomes data is due on the 17- year- [[Page 10345]] olds (71 FR 40359 and 40361-2). However, the proposal was not viable because the sampling procedures in section 1356.84 require the State to select a sample based on a universe of all youth in a fiscal year who participate in the State's outcome data collection at age 17. Therefore, we erred in proposing that a State identify a sample at the end of each report period before the State could identify the appropriate and complete sampling frame of youth. The final rule provision for identifying youth who are not in the follow-up sample when such youth are aged 19 corrects this error. We don't expect this revision to be a concern to States as it will permit States more time to decide whether and how to sample. In paragraph (f), we require the State agency to report all applicable data elements for an individual youth in a single record per report period. We did not receive comments on this paragraph and are not making changes to the final rule. Data Element Descriptions Paragraph (g) includes all of the data element descriptions for the NYTD. State In paragraph (g)(1), we request information on the State that reports the youth to the NYTD. We received no comments on this data element description and are not making any changes in the final rule. Report Date Paragraph (g)(2) describes the report date of the NYTD file which indicates the six-month period that the file encompasses. The report date is the month and year that corresponds with the end of the report period, which will always end on either March 31 or September 30 of any given year. We received no comments on this data element description and are not making any changes in the final rule. Record Number In paragraph (g)(3), we describe the record number as a unique, encrypted person identification number that the State must retain for the youth across all reporting periods. The State must use a consistent number for reporting the same youth to AFCARS and the NYTD. Comment: A commenter noted that not all youth in the reporting populations will have an established common identifier. The commenter asserted that a State may need to conduct a labor-intensive and manual matching process to avoid identifying the same youth in multiple ways, particularly for youth from the juvenile justice system. Response: The State is required to use the same unique identifier for a NYTD youth as is used for AFCARS if that youth is or was in foster care in the State. The State is not required to use the same identifier used for the youth in other youth-serving systems. As we stated in the NPRM, this requirement is intended to allow us to perform case-level longitudinal cohort analysis. We believe the benefits of the usefulness of this data outweigh the burden on States to establish rules for a common identifier for youth across the NYTD and AFCARS data sets. Date of Birth In paragraph (g)(4), we require that a State report the youth's date of birth. We received no comments on this data element description and are not making any changes in the final rule. Sex In paragraph (g)(5), the State is to report the youth's sex. Comment: Several commenters suggested that we not limit the data element on ``sex'' to male or female biology but permit youth to identify their sexual orientation and/or gender identity. These commenters believed that we should track youth services and outcomes for youth who identify themselves as gay, lesbian, bisexual, transgendered, or in some other way because such youth may be overrepresented in foster care, have unique service needs and be at increased risk for poor outcomes. Finally, a couple of commenters disagreed with our description of a youth's sex as his or her gender and recommended that we have an element that focuses on the youth's gender as a matter of identity separate from the youth's biological sex. Response: We agree with the commenters that the words ``sex'' and ``gender'' are not synonymous. We are amending the regulation text to eliminate references to the youth's gender and instead refer to a youth's ``sex'' in reference to this element. However, we are not amending the data element to incorporate matters of gender identity or sexual orientation. This data element is for basic demographic purposes and we expect States to cull this information from its existing child welfare information system. The element is not intended to elicit from youth very personal information on sexual orientation, gender characteristics or sex development. Race In paragraphs (g)(6) through (g)(12) we describe the data elements in which a State must report the youth's race. These are separate elements that permit data collection and reporting on multiple races. We received no comments on the race categories of Asian, Black or African American, Native Hawaiian or other Pacific Islander, and White and are making no changes to the final rule for those elements. Comment: A couple of commenters noted that the description of American Indian or Alaska Native was the only race category that includes a condition of community affiliation. The commenters recommended that this condition be removed or that we provide additional guidance on categorizing persons who do not maintain tribal affiliation or community attachments but would otherwise consider themselves as American Indian or Alaska Native. Response: We are not making a change to this element because it reflects the Office of Management and Budget's (OMB) definition of American Indian or Alaska Native (see OMB's Provisional Guidance on the Implementation of the 1997 Standards for Federal Data on Race and Ethnicity, at http://www.whitehouse.gov/omb/inforeg/re_ guidance2000update.pdf) and is consistent with the AFCARS race category. Since race information is self-selected by the individual or the individual's parent, the person may choose the race category he/she believes best represents him/her. Comment: A couple of commenters sought clarity on whether the race category of American Indian or Alaska Native includes youth who have an attachment or affiliation with a non-federally recognized tribe. Response: The race category does include youth who identify with an American Indian or Alaska Native tribe regardless of whether that tribe is recognized by the Federal government. Because this race category is reflective of the OMB definition, we do not believe a change in the regulation text is warranted. Comment: Several commenters were concerned that we proposed a race category of ``declined'' when there is not a comparable race category in either AFCARS or the National Child Abuse and Neglect Data System (NCANDS). These commenters noted that State child welfare information systems may not be programmed to record this information currently. The commenters also asked technical questions about [[Page 10346]] how they should report declined race information to AFCARS and NCANDS if they must make changes to their information systems. Response: We have proposed a comparable change to the race categories in an NPRM on AFCARS published in the Federal Register on January 11, 2008. The changes to the AFCARS child race elements are described at 73 FR 2092 and 2130. NCANDS data is beyond the scope of this regulation. Comment: A commenter noted that AFCARS does not permit a State to indicate that a person identifies with multiple races, including one which the person does not know and questioned whether there needed to be consistency for States reporting information across the data sets. Response: As noted above, we have proposed regulatory changes to the AFCARS race elements to make this information comparable across the two data sets. In reviewing this element, we noted the need to modify the final rule to remove the parenthetical remark that a youth or parent may be unable to communicate the youth's race ``due to age, disability or abandonment.'' The phrasing of the parenthetical remark was unclear as to whom the conditions of age, disability or abandonment applied. Further, we believe that the statement confused the issue of self- identification of race information because it suggested that youth who were abandoned as infants or who were of a certain age would not be able to identify a race for themselves. Instead, we want to reaffirm that self-reporting or self-identification is the preferred method for a State to collect data on race and ethnicity. If this information is not available in a State's child welfare information system (i.e., collected for foster care purposes), the State should first solicit this information from a youth. If the youth is not able to communicate this information because of a severe disability or some other reason, the State should solicit race information from a parent. Once these avenues have been exhausted and these individuals have not been able to provide a response, the State may report the youth race as ``unknown.'' Finally, we also modified the name of this element to be solely ``unknown,'' as opposed to ``unknown/unable to determine'' to avoid confusion. Hispanic or Latino Ethnicity In paragraph (g)(13), we describe a youth of Hispanic or Latino ethnicity as a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin, regardless of race. Comment: A couple of commenters raised a concern about reporting declined ethnicity information for the NYTD similar to their concerns regarding the race declined category. Response: In the same AFCARS NPRM we mentioned above, we have proposed a comparable change to the ethnicity data. See the proposed changes at 73 FR 2092 and 2130. Foster Care Status--Services In paragraph (g)(14), we require a State to indicate whether a youth within the served population is in foster care consistent with the definition in 45 CFR 1355.20 at any point during the report period. Comment: A commenter noted that some of the measures of permanency used in the Child and Family Services Reviews (CFSRs) are calculated based on the experiences of children who have been in foster care for eight or more days (71 FR 32969-32987, June 7, 2006 and 72 FR 2881- 2890, January 23, 2007). The commenter requested that we consider using similar selection criteria for determining whether a youth in the served population is considered to be in foster care for NYTD purposes. Response: We do not believe that the data selection rules we use for the purposes of calculating whether States achieve certain CFSR outcomes are appropriate for defining the parameters of the NYTD. We apply the 8-day exclusion for the purpose of the CFSR permanency measure and not as a condition for which children must be reported to AFCARS. For the NYTD we are requiring States to report data on a youth's receipt of independent living services and foster care status to permit us to determine appropriate performance measures at a later date which may or may not include selection rules. In other words, the data must be broad so that we have options for how to interpret and use the data. We are not making any changes to this element description in the final rule. We would like to clarify here, however, that a youth is in foster care consistent with the definition of foster care in 45 CFR 1355.20, only if the youth has not yet reached the State's age of majority. Local Agency In paragraph (g)(15), we require a State to report either: (1) The county or equivalent jurisdictional unit that has primary responsibility for placement and care of a youth who is in foster care, or (2) the county with primary responsibility for providing services to a youth who is not in foster care. We received no comments on this data element and are making only minor modifications to the language and adding a cross-reference to the definition of foster care in 45 CFR 1355.20. Federally Recognized Tribe In paragraph (g)(16), the State must report whether a youth is enrolled in or eligible for membership in a federally recognized tribe. Comment: A few commenters requested more clarity on this element. In particular, commenters requested information on how to categorize youth whose eligibility or enrollment status is undetermined, how to report a youth who resides in a State without any federally recognized tribes and the overlap between this element and the race category of American Indian or Alaska Native. Response: We are revising the name of the data element and the regulation text to clarify that we are seeking information on a youth's enrollment or eligibility for membership in a federally recognized tribe only. We understand that there may be a period of time in which the youth's tribal affiliation is undetermined, and if this remains the case when data reporting is due to us, the element should be reported as missing the information (i.e., a blank response). If a State is unsure about whether a youth meets the criteria for enrollment or is a member of the tribe, and the youth does not know this information, the State may contact the tribe(s) in question. Where a youth resides is irrelevant for determining whether the youth is eligible for membership or enrolled in a federally recognized tribe. There are distinctions between this element and the race category of American Indian and Alaska Native. The race category is self- identified information and is indicative of how a person views him or herself and his affiliation with the original peoples of the Americas. The federally recognized tribe element focuses on either enrollment in or eligibility for membership in one of the over 560 federally recognized tribes only. The two categories, however, are not mutually exclusive. Comment: A commenter suggested that a simpler description of the element we are interested in is whether the Indian Child Welfare Act (ICWA) applies for a youth. Response: We disagree that the alternate suggestion to collect information on whether ICWA applies to a youth is a viable substitute for information on whether a young person [[Page 10347]] is enrolled in or eligible for membership in a federally recognized tribe. Narrowing the element to identify an ICWA-protected child would exclude youth over age 18 and those who are not involved in a custody proceeding before a State court from the NYTD population. As such, we are retaining this element as proposed. Adjudicated Delinquent In paragraph (g)(17), the State is to indicate whether a youth has been adjudicated by a Federal or State court as a juvenile delinquent. Comment: Several commenters had concerns about the description of the data element ``adjudicated delinquent.'' One commenter suggested that we instead require States to report whether a youth had ever been involved with the juvenile justice system. Other commenters were concerned about overrepresentation of delinquent youth in the dataset and States being held accountable for the outcomes of delinquent youth who